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98-110 BSA Architects, Senior Center • 82991 Standard Form of Agreement Between Owner and Architect AGREEMENT made as of the Twenty -Fifth day of September in the year of Nineteen Hundred and Ninety- Eight. Between the Owner: City of Cupertino (Name and address) City Hall - Department of Parks and Recreations 10300 Torre Avenue Cupertino, CA 95014 -3366 and the Architect: (Name and address) BSA Architects A California Corporation 350 Pacific Avenue, 3rd floor San Francisco, CA 94111 For the following Project: (Include detailed description of Project, location, address and scope.) Programming, schematic design and design development services for the renovation / expansion or full replacement of the Cupertino Seniors Center, located at 21251 Stevens Creek Blvd. at Mary Street. The overall program will be approximately 14,000 square feet with related site improvements. For phase two of this project, this agreement can be amended to incorporate the remaining services for construction documents, bid phase and construction administration outlined herein. The Owner and Architect agree as set forth below. K: \9841 \cup- contract 1 BSA Architects TERMS AND CONDITIONS OF AGREEMENT BETWEEN OWNER AND ARCHITECT ARTICLE 1 ARCHITECT'S RESPONSIBILITIES 1.1 ARCHITECT'S SERVICES 1.1.1 The Architect's services consist of those services performed by the Architect, Architect's employees and Architect's consultants as enumerated in Articles 2 and 3 of tF.is Agreement and any other services included in Article 12. 1.1.2 The Architect's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Work. Upon request of the Owner, the Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded by the Architect or Owner. 1.1.3 The services covered by this Agreement are subject to the time limitations contained in Subparagraph 11.5.1. ARTICLE 2 SCOPE OF ARCHITECTS BASIC SERVICES 2.0 DEFINITION 2.0.1 The Architect's Basic Services consist of those described in Paragraphs 2.2 through 2.6 and any other services identified in Article 12 as part of Basic Services, and include normal structural, mechanical and electrical engineering services. 2.1 PROGRAMMING, ASSESSMENT AND PRELIiYIINARY DESIGN PHASE 2.1.1 The architect shall meet with appointed City staff and other representatives of the senior center to review all efforts related to this project to date. They shall work with said representatives to review and refine the building space program, site constraints and project goals. 2.1.2 The architect shall prepare a written program document documenting the existing spaces and new space needs. 2.1.3 The architect shall document and assess the existing building, using existing plan documents as provided by the owner as the basis for the documentation, supplemented by limited field measurements. The assessment shall include seismic analysis, ADA analysis and review of the existing finishes, mechanical and electrical systems and other features, including adjacent site areas. 2.1.4 This assessment and documentation shall be presented to the general membership of the senior center, the Parks and Recreation Commission and the City Council. 2.1.5 Based on the approved program, the architect shall prepare a series of design alternatives for the two options of renovating and expanding the existing building or tearing it down for replacement with an entirely new structure. 2.1.6 The architect shall provide a preliminary estimate of construction costs for the two alternatives. 2.1.7 The preferred design options for each alternative, with comparative cost estimates and analysis shall be presented by the architect to the three groups defined in item 2.1.4 above. K: \9841 \cup - contract 2 BSA Architects 2.2 SCHEMATIC DESIGN PHASE 2.2.1 The Architect shall provide a preliminary evaluation of the program as developed in the preliminary phase, schedule and construction budget requirements, each in terms of the other, subject to the limitations set forth in Subparagraph 5.2.1. 2.2.2 The Architect shall review with the Owner alternative approaches to design and construction of the Project. 2.2.3 Based on the mutually agreed -upon program, schedule and construction budget requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Documents consisting of the following: Site Plan Landscape Plan Schematic Grading, Drainage and Utility Plan Floor Plan Representative Building Sections Building Elevations Preliminary Engineering Diagrams and/or System Descriptions Outline Specifications 2.2.4 The Architect shall submit to the Owner a preliminary estimate of Construction Cost based on current area, volume or other unit costs. 2.3 DESIGN DEVELOPMENT PHASE 2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Architect shall prepare, for approval by the Owner, Design Development Documents consisting of the following drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate. Building Code Analysis Site Plans Landscape and Preliminary Irrigation and Planting Plans Grading, Drainage and Utility Plans Representative Site Details Floor Plans Building Sections Exterior Elevations Representative Wall Sections and Related Details Selected Interior Elevations and Enlarged Plans Reflected Ceiling Plans Preliminary Door, Window and Finish Schedules Structural, Mechanical and Electrical Layouts, Schedules and Diagrams Outline Specifications 2.3.2 The Architect shall submit to the Owner a more comprehensive Design Development estimate of Construction Cost based on current area, volume or other unit costs. 2.4 CONSTRUCTION DOCUMENTS PHASE - PHASE 2 - 2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Architect shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for the construction of the Project, including structural and energy calculations required by the local building authority. 2.4.2 The Architect shall assist the Owner in the preparation of the necessary bidding information, bidding forms, the Conditions of the Contract, and the form of Agreement between the Owner and Contractor. The Architect's assistance shall be limited to advice on technical architectural matters and shall not include advice on legal or insurance matters. 2.4.3 The Architect shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. K: \9841 \cup - contract 3 BSA Architects 2.4.4 The Architect shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. However, the Owner is responsible for the payment of any costs related to the filing and processing of said documents. 2.5 BIDDING OR NEGOTIATION PHASE - PHASE 2 - N.I. 2.5.1 The Architect, following the Owner's approval of the Construction Documents and of the latest preliminary estimate of Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals and assist in awarding and preparing contracts for construction. 2.6 CONSTRUCTION PHASE -- ADMINISTRATION OF THE CONSTRUCTION CONTRACT - PHASE 2 - 2.6.1 The Architect's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the earlier of the issuance to the Owner of the fmal Certificate for Payment or 60 days after the date of Substantial Completion of the Work, unless extended under the terms of Subparagraph 10.3.3. 2.6.2 The Architect shall provide administration of the Contract for Construction as set forth below. 2.6.3 Duties, responsibilities and limitations of authority of the Architect shall not be restricted, modified or extended without written agreement of the Owner and Architect with consent of the Contractor, which consent shall not be unreasonably withheld. The Owner shall be solely responsible for ensuring that any agreement between the Owner and Contractor or any other party is in conformance with the terms and conditions contained in this Agreement. If the agreement between the Owner and Contractor or any other agreement requires services of the Architect beyond the Basic Services described in this Agreement, the Owner agrees that the Architect shall be compensated for such services, if provided, as Additional Services. 2.6.4 The Architect shall be a representative of and shall advise and consult with the Owner (1) during con- struction until fmal payment and release of bonds to the Contractor is due, and (2) as an Additional Service at the Owner's direction from time to time during the correction period described in the Contract for Construction. The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement unless otherwise modified by written instrument. 2.6.5 The Architect shall visit the site at bi- weekly interva.s or as otherwise agreed by the Owner and Architect in writing to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of the Work. On the basis of on -site observations as an architect, the Architect shall keep the Owner informed of the progress and quality of the Work. (More extensive site representation may be agreed to as an Additional Service, as described in Paragraph 3.2). 2.6.6 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. 2.6.7 The Architect shall at all times have access to the Work wherever it is in preparation or progress. 2.6.8 Except as may otherwise be provided in the Contract. Documents or when direct communications have been specially authorized, the Owner, Contractor and Architect shall communicate through the Owner's Project Manager. Communications by and with the Architect's consultants shall be through the Architect. 2.6.9 Based on the Architect's observations and evaluations of the Contractor's Applications for Payment, the Architect shall review and the Project Manager shall certify the amounts due the Contractor. 2.6.10 The Architect's review of the Contractor's certification for payment shall constitute a representation to the Owner, based on the Architect's observations at the site as provided in Subparagraph 2.6.5 and on the data comprising the Contractor's Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, quality of the Work is in accordance with the Contract Documents. Y- - - . _ . - • - .. . . .. • - - - . .. . . . - - - - - .. - , . . - .. - . • • - ..... •. _. .- ., . •- - - - ... _• . .- - • - . - -•- - • -- - -- - - - -- - - - • .. •... - • - •- K: \9841 \cup - contract 4 BSA Architects - • - - :mount certified. However- i:auancc of a Certificate for Payment shall not be a •• - - . • . — . , •- - •ods, techniques, sequences or procedures, (3) reviewed : • - - : • • - . - ... • • .. • . • - - . • a requested by thc Owner to • substantiate the Contractor's right to payment or (4) asccrta . : : .. .. - -- . 2.6.11 The Architect shall have authority to recommend to the Project Manager that they reject Work which does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the Work. 2.6.12 The Architect shall review and take appropriate action upon those Shop Drawings, Product Data and Samples required of the Contractor by the Construction Contract, but only for the limited purpose of checking for general conformance with the visual design concept expressed in the Contract Documents. The Architect shall not be responsible for any deviations between (1) the Shop Drawings or (2) the Contract Documents and field conditions. The Architect's action shall be taken within 10 working days of receipt, with an additional 5 working days for sub - consultant review, unless otherwise agreed upon in advance of any specific submittals. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions fir installation or performance of equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor to the extent required by the Contract Documents. The Architect's review shall not constitute review of safety precautions or, unless otherwise specifically stated by the Architect, of construction means, methods, techniques, sequences or procedures. The Architect's review of a specific item shall not indicate review of an assembly of which the item is a component. When professional certification of performance characteristic s 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. 2.6.13 The Architect shall prepare the necessary technical back -up information so that the City can prepare and issue Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Architect as provided in Subparagraphs 3.1 1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. 2.6.14 The Architect shall review the Work to dete rmin e advise the Project Manager on the date or dates of Substantial Completion and the date of final completion, shall receive and forward to the Owner for the Owner's review and records written warranties and related documents required by the Contract Documents and assembled by the Contractor, and shall issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 2.6.15 The Architect shall interpret an decide review and advise the Project Manager on matters concerning performance of the Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests shall be made with reasonable promptness and within any time limits agreed upon. 2.6.16 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. - - • . • _ . - - -. - . and initial decisions, the Architect shall endeavor to secure fa' - •. : - : - ,: • - :: - e - : - : : - , not show partiality to either, and shall not be liable for resu . - • . • . . - _ .. faith. 2.6.17 The Architect's decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in thc Contract Documents 2.6.18 The Architect shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractor relating to the execution or progress of the Work as provided in the Contract Documents. 2.6.19 The Architect's decisions on claims, disputes or other matters, including those in question between the Owner and Contractor, except for those relating to aesthetic effect as provided in Subparagraph 2.6.17, may be subject to arbitration dispute resolution as provided in this Agreement and in the Contract Documents. K: \9841 \cup- contract 5 BSA Architects ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in Article 12, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services. The services described under Paragraphs 3.2 and 3.4 may be provided if authorized or confirmed in writing by the Owner and Architect. If services described under Contingent Additional Services in Paragraph 3.3 are required due to circumstances beyond the Architect's control, the Architect shall notify the Owner prior to commencing such services. If the Owner deems that such services described under Paragraph 3.3 are not required, the Owner shall give prompt written notice to the Architect. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Architect shall have no oblgation to provide those services. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive representation at the site than is described in Subparagraph 2.6.5 is required, the Architect shall provide one or more Project Representatives to assist in carrying out such additional on -site responsibilities. 3.21 Project Representatives shall be selected, employed and directed by the Architect, and the Architect shall be of Projcct Representatives shall be described in thc edition of AIA Document B352 currcnt as of thc date of this, Agreement, unless otherwise agreed. 3.2.3 The furnishing of such project representation shall not modify the rights, responsibilities or obligations of the Architect as described elsewhere in this Agreement. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Making revisions in Drawings, Specifications or other documents when such revisions are: .1 inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or Project budget; .2 required by the enactment, interpretation or revision of codes, laws or regulations subsequent to the preparation of such documents; or .3 due to changes required as a result of the Owner's failure to render decisions in a timely manner. 3.3.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, the Owner's schedule, or the method of bidding or negotiating and contracting for construction, except for services required under Subparagraph 5.2.5. 3.33 Preparing Drawings, Specifications and other documentation and supporting data, evaluating Contractor's proposals, and providing other services in connection with Owner generated Change Orders and Construction Change Directives. 3.3.4 Providing services in connection with evaluating substitutions proposed by the Contractor and making subsequent revisions to Drawings, Specifications and other documentation resulting therefrom. 3.3.5 Providing consultation concerning replacement of Work damaged by fire or other cause during con- struction, and furnishing services required in connection with the replacement of such Work. 3.3.6 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 3.3.7 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the Work. 3.3.8 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Architect is party thereto. K: \9841 \cup - contract 6 BSA Architects 3.3.9 Preparing documents for alternate, separate or sequential bids or providing services in connection with bidding, negotiation or construction prior to the completion of the Construction Documents Phase. 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Providing design and documentation services for off -site civil improvements including but not limited to utilities, public works and signalization. 3.4.2 Providing financial feasibility or other special studies. 3.4.3 Providing planning surveys, site evaluation or comparative studies of prospective sites. 3.4.4 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project. 3.4.5 Providing services relative to future facilities, systems and equipment. 3.4.6 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. 3.4.7 Providing services to verify the accuracy of drawing; or other information furnished by the Owner. 3.4.8 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner. 3.4:9 Providing services in connection with the work of a construction manager or separate consultants retained by thc Owner. 3.4.10 ' • . -: - . - ,. . 3.4.11 ' - : -' _.. - '. :. - -- . . .:. 3.4.12 Providing analyses of owning and operating costs. 3.4.13 Providing interior design and other similar services required for or in connection with the selection, pro- curement or installation of furniture, furnishings and related equipment. 3.4.14 Providing services for planning tenant or rental spaces. 3.4.15 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.16 Work • in connection with the requirements of Owner's agents, representatives, vendors; i.e. bankers, in- surance company, etc. Proposed language for any certificates or certifications requested of the Architect shall be submitted to the Architect for review and approval at least 15 days prior to the date on which they are needed by the Owner or due to be submitted to others. The Owner shall not request and the Architect shall not be required to execute certificates or certifications which would require knowledge or services beyond the scope of this Agreement or which would impose on the Architect obligations which exceed the standard of care. 3.4.17 Providing assistance in the utilization of equipment or systems such as testing, •, preparation of operation and maintenance manuals, training personnel for operating and maintenance, and consultation during operation. 3.4.18 Providing services after issuance to the Owner of the final Certificate for Payment, or in the absence of a final Certificate for Payment, more than 60 days after the date of Substantial Completion of the Work. 3.4.19 Providing services of consultants for other than architectural, landscape, kitchen, signage, civil, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 3.4.20 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. K: \9841 \cup - contract 7 BSA Architects ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 The Owner shall provide full information regarding requirements for the Project, including a program which shall set forth the Owner's objectives, schedule, constraints and criteria, including space requirements and relationships, flexibility, expandability, special equipment, systems and site requirements. 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 4.3 If requested by the Architect, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Architect in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services. 4.5 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, dccd restrictiona, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvement and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall h. referenced to a prgect benchmark. 4.6 The Owner shall furnish the services of geotechnical engineers when such services are requested by the Architect. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. 4.6.1 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Architect. 4.7 The Owner shall furnish structural, mechanical, chemical, : ' : : - .. . • - , tests for hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.8 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports required by Paragraphs 4.5 through 4.8 shall be furnished at the Owner's expense, and the Architect shall be entitled to rely upon the accuracy and completeness thereof. 4.10 Prompt written notice shall be given by the Owner to the Architect if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.11 The proposed language of certificates or certifications requested of the Architect or Architect's consultants shall be submitted to the Architect for review and approval at least 14 days prior to execution. The Owner shall not request certifications that would require knowledge or services beyond the scope of this Agreement. 4.12 The Owner shall require the Contractor to provide the Owner with record drawings indicating the location and size of all underground or imbedded construction not covered in the original drawings, change orders, supplemental drawings, or Shop Drawings. The Contractor shall be required to record such construction on reproducible drawings furnished to the Contractor by the Owner. The Contractor shall be required to submit completed record drawings to the Architect for review. Such a review by the Architect shall not relieve the Contractor of his or her responsibilities for the accuracy and completeness of the information recorded. K: \9841 \cup - contract 8 BSA Architects ARTICL.E 5 CONSTRUCTION COST 5.1 DEFINITION 5.1.1 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. 5.1.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Architect, plus a reasonable allowance for the Contractor's overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work during construction. 5.1.3 Construction Cost does not include the compensation of the Architect and Architect's consultants, the costs of the land, rights -of -way, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2. RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed es- timates of Construction Cost, if any, prepared by the Architect, represent the Architect's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding, market or negotiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will riot vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Architect. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of this Agreement by the furnishing, proposal or establishment of a Project budget. ARTICLE 6 USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 6.1 The Drawings, Specifications and other documents, including those furnished on electronic media, disk, tape, or cartridge, prepared by the Architect for this Project are instruments of the Architect's service for use solely with respect to this Project and, unless otherwise provided, the Architect shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyright. The Owner shall be permitted to retain copies, including reproducible copies, of the Architect's Drawings, Specifications and other documents for information and reference in connection with the Owner's use and occupancy of the Project. The Architect's Drawings, Specifications or other documents shall not be used by the Owner or others on other projects, for additions to this Project or for completion of this Project by others, unless the Architect is adjudged to be in default under this Agreement, except by agreement in writing and with appropriate compensation to the Architect. In the event of any unauthorized use, reuse or modification to the Architect's Drawings, Specifications and other documents by : - : - : - : - _: - - ' - the Owner or the Owner 's agents, the Owner agrees to indemnify, defend and hold the Architect harmless from and against any and all claims, liabilities, suits, demands, losses, costs and expenses, including reasonable attorneys' fees and all legal expenses and fees incurred on appeal, and all interest thereon, accruing or resulting to any and all persons, firms, or any other legal entity, on account of any damage or loss to property or persons, including death, arising out of such unauthorized use, reuse or modification of the Architect's Drawings, Specifications and other documents, except where the Architect is found to be- selely liable for such damages or losses by a court or forum of competent jurisdiction. Notwithstanding any provision of this Agreement to the contrary, it is understood by the parties that the Owner is a public agency and is required to adhere to the provisions of the California Public Records Act. It is agreed that nothing contained herein is intended to affect Owner's obligations under said act. 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Architect's reserved rights. K: \9841 \cup - contract 9 BSA Architects • 6.3 Due to risk of damage, anomalies in transcription and modification during use, whether intended or oth- erwise, it is agreed that the Architect shall archive a copy of the electronic media transferred to the Owner, the contents of which it is expressly agreed shall be conclusive proof in all disputes over the content of electronic media furnished to the Owner. Hard paper copies of the information contained on the electronic media are available and their use is recommended. Use of the electronic media at the Owner's election shall be at the sole risk of the Owner. ARTICLE 7 DISPUTE RESOLUTION 7.1 All claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof shall be subject l:o mediation under the auspices of a recognized, neutral third -party professional mediation service experienced in handling construction disputes, or other mediation method or service acceptable to the parties, prior to undertaking any other dispute resolution action. A demand for mediation shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for mediation be made after the date when the institution of legal or equitable proceedings based on such claim, dispute or other matter in question wou:.d be barred by the applicable statutes of limitations. ARTICLE 8 TERMINATION, SUSPENSION OR ABANDONMENT 8.1 This Agreement may be terminated by either party upon not less than seven days' written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. 8.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Architect shall be com- pensated for services performed prior to notice of such suspension. When the Project is resumed, the Architect's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the Architect's services. 8.3 This Agreement may be terminated by the Owner upon not less than seven days' written notice to the Architect in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Architect may terminate this Agreement by giving written notice. 8.4 Failure of the Owner to make payments to the Architect in accordance with this Agreement may be treated by the Architect as substantial nonperformance and cause fo r termination. No failure on the part of either party of this Agreement to exercise its rights hereunder shall be or operate as a waiver, release or relinquishment of any rights or powers conferred under this Agreement. 8.5 If the Owner fails to make payment when due the Architect for services and expenses, the Architect may, upon seven days' written notice to the Owner, suspend performance of services under this Agreement. Unless payment in full is received by the Architect within seven days of the date of the notice, the suspension shall take effect without further notice. In the event of a suspension of services, the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. The Architect shall further have the right to retain possession of all Drawings, Specifications and other documents prepared for this Project until full payment of all amounts due for services performed has been received. The Architect shall not be held liable for any claims, liabilities, costs and expenses, damages or losses shat may result from any such withholding of Drawings, Specifications and other documents. 8.6 In the event of termination not the fault of the Architect, the Architect shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses as defined in Paragraph 8.7. 8.7 In the event that the Owner terminates this Agreement without fault of the architect prior to completion of construction, or the Owner chooses to engage the Architect for partial or less than full services, the Owner agrees to indemnify, defend and hold the Architect harmless from and against any and all claims, liabilities, suits, demands, losses, costs and expenses, including reasonable attorneys' fees and all legal expenses and fees incurred on appeal, and all interest thereon, accruing or resulting to any and all persons, firms, or any other legal entity, on account of any damage or loss to property or persons, including death, arising out of the project, except where the Architect is found to be solely liable for such damages or losses by a court or forum of competent jurisdiction. K: \9841 \cup- contract 10 BSA Architects ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 Unless otherwise provided This Agreement shall be governed by the laws of the principal place of busi ncss of the Architect. State of California and the City of Cupertino, and the venue for any litigation between the parties shall be Santa Clara county.. 9.2 Should any legal proceeding be commenced between the parties to this Agreement seeking to enforce any of its provisions, including, but not limited to, fee provisions, the prevailing party in such a proceeding shall be entitled, in addition to such other relief as may be granted, to a reasor..able sum for attorneys' fees which shall be determined by the court or forum in such a proceeding or in a separate action brought for that purpose. For purposes of this provision, "prevailing party" shall include a party which dismisses an action for recovery hereunder in exchange for payment of the sum allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action or proceeding. 9.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations sL.all commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion, or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. 9.4 The Owner and Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, but only to the extent covered by property insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in the General Conditions of the Contract for Construction. The Owner and Architect each shall require similar waivers from their contractors, consultants and agents. 9.5 The Owner and Architect, respectively, bind themselves, their partners, successors, assigns and legal rep- resentatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither Owner nor Architect shall assign this Agreement without the written consent of the other. 9.6 This Agreement represents the entire and integrated agreement between the Owner and 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 ar.d Architect. 9.7 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect. 9.8 Unless otherwise provided in this Agreement, the Architect and Architect's consultants shall have no re- sponsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials in any form at the Project site, including but nor, limited asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. The Owner acknowledges that the Architect is unable to reasonably obtain professional Liability (Errors and Omissions) or other insurance for claims arising out of the performance or failure to perform professional services related to the investigation, detection, abatement, replacement or removal of products, materials or processes containing asbestos, asbestos - related materials, or other hazardous substances. Accordingly, the Owner hereby agrees that no claim or suit for negligence, breach of contract, indemnity or any other cause of action will be brought by the Owner against the Architect arising out of the presence of asbestos, asbestos - related materials, or any other hazardous substance, in any form whatsoever, as defined by the Environmental Protection Agency or any other public authority, in any building or structure that is the subject of services performed by the Architect on this Project. The Owner further agrees to indemnify, defend and hold the Architect harmless from and against any and all claims, liabilities, suits, demands, losses, costs and expenses, including reasonable attorneys' fees and all legal expenses .and fees incurred on appeal, and all interest thereon, accruing or resulting to any and all persons, firms or any other legal entity, on account of any damage or loss to property or persons, including death, arising out of the presence of hazardous substances, including, but not limited to, asbestos or asbestos - related materials, except where the Architect is found to be solely liable for such damages or losses by a court or forum of competent jurisdiction. 9.9 The Architect shall have the right to include representations of the design of the Project, including pho- tographs of the exterior and interior, among the Architect's promotional and professional materials. The Architect's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Architect in writing of the specific information considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Architect on the construction sign and in the promotional materials for the Project. K: \9841 \cup- contract 11 BSA Architects 9.10 Notwithstanding any other provision in this Agreement to the contrary, nothing contained herein shall be construed: .1 to constitute a guarantee, warranty or assurance, either express or implied, that the Architect's Services will yield or accomplish a perfect outcome for the Project; or .2 as an assumption by the Architect of the liability of any other party. ARTICLE 10 PAYMENTS TO THE ARCHITECT 10.1 DIRECT PERSONNEL EXPENSE 10.1.1 Direct Personnel Expense is defined as the direct salaries of the Architect's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, :assurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 10.2 REIMBURSABLE EXPENSES 10.2.1 Reimbursable Expenses will be charged in addition to the compensation for Basic and Additional Services and include expenses incurred by the Architect and Architect's employees and sub - consultants in the interest of the Project, as identified in the following Clauses. 10.2.1.1 Expense of transportation in connection with the Project; expenses in connection with authorized out -of- town travel; long- distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. 10.2.1.2 Expense of reproductions, postage and handling of Drawings, Specifications and other documents. 10.2.1.3 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 10.2.1.4 Expense of renderings, models, computer generated animations and/or mock -ups requested by the Owner. 10.2.1.5 Expense of additional insurance coverage or limits, including professional liability insurance, requested by the Owner in excess of that normally carried by the Architect and Architect's consultants. 10.2.1.6 . . •. ..- .. .. : -. .. ... -• . ..- �. 103 PAYMENTS ON ACCOUNT OF BASIC SERVICES 10.3.2 Subsequent payments for Basic Services shall be made monthly on the basis set forth in Subparagraph 11.2.2. 10.3.3 If and to the extent that the time initially established in Subparagraph 11.5.1 of this Agreement is exceeded or extended through no fault of the Architect, compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Subparagraph 11.3.2. 10.3.4 - - • : • - : - • - : ' : • • :: - : : - : : - - - :: - : :onstruction Cost and any portions of the Project are 10.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 10.4.1 Payments on account of the Architect's Additional Services and for Reimbursable Expenses shall be made monthly upon presentation of the Architect's statement of services rendered or expenses incurred. K: \9841 \cup - contract 12 BSA Architects 10.5 PAYMENTS WITHHELD 10.5.1 No deductions shall be made from the Architect's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the Work other than those for which the Architect has been found to be liable. 10.6 ARCHITECT'S ACCOUNTING RECORDS 10.6.1 Records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense shall be available to the Owner or the Owner's authorized representative at mutually convenient times. ARTICLE 11 BASIS OF COMPENSATION The Owner shall compensate the Architect as follows: 11.1 AN INITIAL PAYMENT OF Dollars ($ ) shall be made upon execution of this Agreement and 11.2 BASIC COMPENSATION 11.2.1 FOR BASIC SERVICES, as described in Article 2, and any other services included in Article 12 as part of Basic Services, Basic Compensation shall be computed as follows: Monthly invoices shall be based on labor expended, sub- cor..sultant charges and reimbursable costs incurred during that period. Charges shall be on a time and materials basis not to exceed the overall total sum of $331,000. Should the estimated maximum for each phase not be used, any balance shall carry forward into the next phase of work. 11.2.2 The estimated breakdown of the total fee for Architectural, Engineering and other sub - consultant services for the first phase of work is as follows. A more detailed breakdown is provided in Exhibit A. Programming, Assessment and Preliminary Design Phase $39,500 Schematic Design Phase: $38,500 Design Development Phase: $63,300 Total for Phase One Basic Compensation: $141,300 Upon completion of phase one services, this contract can be amended to incorporate the remaining services. The fees listed herein are subject to revision based upon the agreed upon scope of work at the end of Design Development: Construction Documents Phase: $124,500 Bidding or Negotiation Phase: $16,000 Construction Phase: $49,200 Total for Phase Two Basic Compensation. $189,700 Reimbursable expenses will be charged in addition to these costs per section 10.2 above. 11.3 COMPENSATION FOR ADDITIONAL SERVICES 11.3.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described in Paragraph 3.2, compensation shall be computed as follows: Should weekly site representation by the Architect be desired the Owner, an additional amount of $15,000 would be added to the basic services fee for the Construction Phase as defined in section 11.2.2 above. K: \9841 \cup- contract 13 BSA Architects 113.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT, as described in Articles 3 and 12, other than (1) Additional Project Representation, as described in Paragraph 3.2, and (2) services included in Article 12 as part of Basic Services, but excluding services of consultants, compensation shall be computed as follows: Principal $135 / hour Project Manager $95 / hour Other Professional Staff $55 - 105 / hour in direct proportion to salary Administrative $35 / hour 11.3.3 FOR ADDITIONAL SERVICES OF SUB - CONSULTANTS, including additional structural, mechanical and electrical engineering services and those provided under Subparagraph 3.4.19 or identified in Article 12.2 as part of Additional Services, a multiple of one point ten (1.10) times the amounts billed to the Architect for such sevices. 11.4 REIMBURSABLE EXPENSES 11.4.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph 10.2, and any other items included in Article 12 as Reimbursable Expenses, a multiple of one point ten (1.10) times the expenses incurred by the Architect, the Architect's employees and consultants in the interest of the Project. 11.5 ADDITIONAL PROVISIONS 11.5.1 IF THE BASIC SE VICES covered by this Agrccm - - - - - - - - - - - - - - - - • - • - - • - -. - - • - - - :: - - - - _ - - :. : - - - itcct, extension of the Architect's services beyond that . . - - .. - . :; e._.3 and 11.3.2. 11.5.2 Payments are due and payable thirty (30) days from the date of the Architect's invoice. Amounts unpaid (60) days after the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Architect. One point zero (1.0) percent per month 11.5.3 The rates and multiples set forth for Additional Services shall be annually adjusted in October in accordance with normal salary review practices of the Architect. K: \9841 \cup- contract 14 BSA Architects • ARTICLE 12 OTHER CONDITIONS OR SERVICES 12.1 INDEMNITY: The Owner and Architect agree to indemnify, defend and hold each other and their consultants harmless from and against any and all liabilities, losses, damages, costs and expenses, including reasonable attorneys' fees and all legal expenses and fees incurred through appeal, and all interest thereon, accruing or resulting to any and all persons, firms or any other legal entities on account of any damages or losses to property or persons, including injuries or death, or economic losses, but only to the extent resulting from the other party's negligent acts, errors or omissions as determined by a court or forum of competent jurisdiction. 12.2 SUB - CONSULTANTS: In addition to those of the Architect, the services to be performed under the terms of this agreement include the work of the following sub - consultants, listed by trade: Structural Engineering: Dasse Design Mechanical Engineering: Mechanical Design Studio Electrical Engineering: Zeiger Engineers Specifications: Jack Lamb Cost Estimating: Adamson Associates Landscape Architecture: Keller Mitchell & Company Civil Engineering: BKF Engineers Acoustical Consulting: Charles Salter & Associates Kitchen Consulting: Cini -Little Signage and Graphics: Donnelly Design Energy Analysis: BEC Consulting 12.3 EXHIBITS: This agreement also includes the following attached exhibits: Exhibit A: Schedule of Charges for Architectural and Engineering Services Exhibit B: Proposed Project Schedule Exhibit C: Certificate of Insurance for BSA Architects This Agreement entered into as of the day and year first written above. 0 " ' , ARCHITECT oggui (Si nature) ,)ig • ture'� • - cJ total (� PAL . ' �I � i,IW V r (Printed name and title) (A rinted name and title) K: \9841 \cup- contract 15 BSA Architects