EXHIBIT 10.18AGREEMENT BETWEEN OWNER AND ARCHITECT

 

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                                                                   Exhibit 10.18

 

 

                           AGREEMENT BETWEEN OWNER AND

                                    ARCHITECT

 

AGREEMENT made as of the 2nd day of October, 2003.

 

 

BETWEEN the Owner:             Dry Creek Rancheria Band of Pomo Indians

                               Attn: Elizabeth Elgin DeRouen,

                               Tribal Chairperson

                               P.O. Box 607

                               Geyserville, CA 95441

 

and the Architect:             FFKR Architects/Planners II

                               730 Pacific Avenue

                               Salt Lake City, Utah 84104

 

For the following Project:     RIVER ROCK CASINO STRUCTURED PARKING: A

                               Project consisting of a Parking Structure

                               with a capacity of approximately 1,350

                               automobiles. Total project cost expected to

                               not exceed $36,000,000 (thirty six million

                               dollars). Final Guaranteed Maximum Price

                               (GMP) and Project Schedule to be

                               established by General Contractor.

 

The Owner and the Architect agree as set forth below:

 

 

 

                        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 Basic Services and other

services to be performed by the Architect, Architect's employees and Architect's

consultants as enumerated in Articles 2, 3 and 11 of this Agreement, and as

otherwise required in this Agreement.

 

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. The Architect shall submit for the Owner's approval a schedule for the

performance of the Architect's services ("Schedule"), 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 the approved Schedule

shall not, except for reasonable cause, be exceeded by the Architect or Owner.

The Architect agrees to provide sufficient resources to meet the design schedule

and to

 

 

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coordinate and cooperate with the persons and entities retained by the

Contractor to provide the electrical and mechanical engineering designs,

Drawings and/or Specifications for the Project and their employees and agents

(collectively, the "Design-Build Consultants") consistent with the terms of this

Agreement. The Owner and Architect acknowledge and agree that the Architect's

services required by this Agreement are in part dependent upon and must be

coordinated with the services to be performed by the Design-Build Consultants,

which will be retained by the Contractor. Since the Architect shall have no

control or right of control over the work or schedules of the Design-Build

Consultants, or any responsibility therefor beyond coordination

responsibilities, the Architect shall not be responsible or liable for any delay

in the performance of the Architect's services or any delay in the Work caused

solely by the Design-Build Consultants. The Owner acknowledges that the Owner

and Contractor are solely responsible for determining the Construction Schedule

and the Scheduled Completion Date.

 

1.1.3 The services covered by this Agreement are subject to the time limitations

contained in Subparagraph 10.5.1.

 

                                    ARTICLE 2

 

                       SCOPE OF ARCHITECT'S BASIC SERVICES

 

2.1 DEFINITION

 

2.1.1 The Architect's Basic Services consist of those described in Paragraphs

2.2 through 2.6 and any other services identified in Article 11 as part of Basic

Services.

 

2.1.2 Prior to executing this Agreement the Owner engaged the Architect to

commence Programming and design studies of the Project, including limited

preliminary structural and civil engineering analysis. With the approval of the

Owner, the Architect engaged URS Corporation (structural engineering) and

Oberkamper Associates (civil engineering). The Owner has now chosen to contract

with Swinerton Builders as general contractor of the Project ("Contractor") and

as the Design-Builder of the electrical and mechanical systems, materials and

other elements of the Project. The Contractor currently intends to engage

Cupertino Electrical (electrical engineering) and Western Plumbing and Heating

(mechanical engineering) to provide the electrical and mechanical engineering

for the Project. The Owner acknowledges and agrees that the Contractor and the

Design-Build Consultants will not be permitted by Owner to use or rely upon any

of the limited structural, electrical or mechanical analysis of the Architect's

above-named consultants and shall be solely responsible and liable for the

electrical and mechanical designs of the Project, including compliance of such

designs with all applicable Federal, state and local laws, codes, ordinances and

regulations. It is agreed that the Architect shall have no responsibility or

liability whatsoever for the Schematic Design Documents, Design Development

Documents, Construction Documents or other documents describing the electrical

or mechanical systems, materials or other elements for the Project and shall

have no responsibility or liability whatsoever for the accuracy or adequacy of

such documents, systems, materials or elements or their compliance with

applicable laws, codes, ordinances or regulations. The Architect's services

pursuant to this Agreement shall be limited to architectural and structural

systems and materials ("Architectural Work"). The Architect and Design-Build

Consultants shall issue separate Working Drawings and Specifications,

 

 

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which the Contractor may, for its own convenience and the convenience of its

Subcontractors, combine as one set of Working Drawings and Specifications. The

Architect shall have no responsibility or liability for the coordination of the

Designs, Drawings or Specifications of the Design-Build Consultants, each in

terms of the other. This responsibility and liability shall rest solely with the

Contractor and the Design-Build Consultants. The Architect's sole responsibility

for coordination shall be a shared responsibility to work in conjunction with

the Contractor and the Design-Build Consultants to coordinate the Architect's

and the Architect's Structural and Civil Consultant's architectural, structural

and civil Designs, Drawings and Specifications (the "Architectural Design") with

the electrical and mechanical Designs, Drawings and Specifications of the

Design-Build Consultants. In the performance of this coordination, the Architect

shall be entitled to assume that the Design-Build Consultants have coordinated

their designs, Drawings and Specifications, each in terms of the other, and

shall be entitled to rely upon the accuracy and completeness of such

coordination, without any duty or responsibility for the verification thereof.

Using the Construction Specification Institute 16 division format for

construction specifications, the "Architectural Design" shall include the

preparation of Division 1 (General Requirements - Architectural, Structural and

Civil Work), Division 2 (Site Work - Architectural and Structural and Civil

Work), Division 3 (Concrete - Architectural, Structural and Civil Work),

Division 4 (Masonry - Architectural, Structural and Civil Work), Division 5

(Metals - Architectural, Structural and Civil Work), Division 6 (Wood and

Plastics - Architectural, Structural and Civil Work), Division 7 ('Thermal and

Moisture Protection - Architectural, Structural and Civil Work), Division 8

(Doors and Windows - Architectural, Structural and Civil Work), Division 9

(Finishes - Architectural, Structural and Civil Work), Division 10 (Specialties

- Architectural, Structural and Civil Work), Division 11 (Equipment -

Architectural, Structural and Civil Work), Division 12 (Furnishings -

Architectural, Structural and Civil Work) and Division 14 (Conveying Systems -

Architectural, Structural and Civil Work). The Design-Build Consultants shall be

responsible for the preparation of Division 1 (General Requirements - Electrical

and Mechanical Work), Division 2 (Site Work - Electrical and Mechanical Work),

Division 3 (Concrete - Electrical and Mechanical Work), Division 4 (Masonry -

Electrical and Mechanical Work), Division 5 (Metals - Electrical and Mechanical

Work), Division 8 (Doors and Windows - Electrical and Mechanical Work), Division

10 (Specialties - Electrical and Mechanical Work), Division 11 (Equipment -

Electrical and Mechanical Work), Division 12 (Furnishings - Electrical and

Mechanical Work), Division 14 (Conveying Systems - Electrical and Mechanical

Work), Division 15 (Mechanical Work) and Division 16 (Electrical Work). It is

agreed that the Architect shall have no responsibility or liability whatsoever

for construction phase administration of the electrical or mechanical Work,

except to the extent that such Work must be coordinated and interfaced with the

Architectural Work. The construction phase administration of the electrical and

mechanical Work shall be solely the responsibility and liability of the

Design-Build Consultants to be retained by the Contractor specifically for this

purpose.

 

2.1.3 The Owner acknowledges that the decision to use the design-build method of

construction for the electrical and mechanical Work was the option chosen by the

Owner after consultation with the Contractor to reduce overall costs of

construction and design. The Owner further acknowledges that the Design-Build

Consultants have been chosen by Contractor with the approval of the Owner and

that the Architect has not selected or recommended the Design-Build Consultants

and has not represented, warranted or otherwise expressed an opinion that the

Design-Build Consultants by reason of professional

 

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background or experience are competent to perform the design or construction

administration services to be required of them, as described in this Agreement.

 

2.1.4 The Architect agrees as a Basic Service to review and consult with the

Owner regarding exposed to view electrical and mechanical elements of the

Project, but such review and consultation shall be limited to the appearance of

such elements and to compliance of such elements with the architectural design

concept of the Project. The Architect will not review, and shall have no duty or

responsibility to review the technical adequacy or appropriateness of such

elements.

 

2.2 DESIGN PHASE

 

2.2.1 The Architect and the Owner have mutually created the Program which

describes the Project and have a mutual understanding of the requirements of the

program.

 

2.2.2 The Architect shall review with the Owner proposed site use and selection

of the architectural systems, materials and other elements of the Project,

including alternative approaches to design and construction of such systems,

materials and elements.

 

2.2.3 Based on the mutually agreed-upon Program, Schedule and construction

budget requirements, the Architect shall prepare, for approval by the Owner, an

Architectural Design consisting of drawings, models, and other documents

illustrating the scale and relationship of the Project as to architectural,

structural and civil systems, materials and such other elements and to more

fully fix and describe the size and character of the Project as to the

architectural, structural and civil systems, materials and such other elements

as may be appropriate.

 

2.3 CONSTRUCTION DOCUMENTS PHASE

 

2.3.1 Based on the approved Architectural Design Documents and any further

adjustments in the scope or quality of the Project or in the construction

budget, the Architect shall prepare, for approval by the Owner, Architectural

Construction Documents consisting of Drawings and Specifications setting forth

in detail the requirements for the construction of the Project, including

architectural, structural and civil systems, materials and such other elements

as may be appropriate ("Architectural Work"). Architectural Work shall not

include those systems and elements that are to be provided by the Design-Build

Consultants.

 

2.3.2 The Architect will exercise ordinary professional skill and care to design

the Architectural Work in compliance with applicable Federal, state and local

laws, codes, ordinances and regulations.

 

2.3.3 This Project will use the fast-track method of construction. The Owner and

Architect acknowledge and agree that the Architectural Construction Documents

will be issued in multiple bid packages, that construction will commence before

the Architectural Design is completed and that while this method of construction

has the advantage of reducing financing and other costs of the Owner, it

increases the risks of design and coordination errors and could increase the

number of Change Orders.

 

 

 

 

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2.3.4 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 Architectural Work.

 

2.3.5 The Architectural Construction Documents shall include all Drawings and

Specifications required to obtain all Architectural permits and approvals

necessary to complete the construction of the Architectural Work.

 

2.4 BIDDING OR NEGOTIATION PHASE

 

2.4.1 The Architect, following the Owner's approval of the Architectural

Construction Documents for discrete portions of the Work, shall assist the Owner

in reviewing bids or negotiated proposals obtained by the Contractor on such

portions of the Work, as well as answer questions and respond to requests for

information in connection with such bids.

 

2.5 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT

 

2.5.1 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 final Certificate for Payment or 60 days after the date of Substantial

Completion of the Architectural Work, unless extended under the terms of

Subparagraph 9.3.3.

 

2.5.2 The Architect shall provide administration of the Contract for

Construction as set forth below and in AlA Document A201-1997, General

Conditions of the Contract for Construction, as modified by the Owner and

Contractor. To the extent that the General Conditions are not inconsistent with

this Agreement, the terms of the General Conditions shall control. In the event

there is any conflict between the provisions of this Agreement and the terms of

the Contract for Construction or the General Conditions of the Contract for

Construction, the terms of this Agreement shall control as such terms relate to

the Architect. The Owner shall submit the Contract for Construction and the

General Conditions of the Contract for Construction to the Architect for its

review prior to entering into an Agreement with the Contractor.

 

2.5.3 Duties, responsibilities and limitations of authority of the Architect

shall not be restricted, modified or extended without written agreement of the

Owner and Architect.

 

2.5.4 The Architect shall be a representative of and shall advise and consult

with the Owner (1) during construction until final payment 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.

 

2.5.5 The Architect shall visit, review and observe the site at intervals

appropriate to the stage of construction or as otherwise agreed by the Owner and

Architect in writing to become generally familiar with the progress and quality

of the Architectural Work

 

 

 

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completed and to determine in general if the Architectural Work is being

performed in a manner indicating that the Architectural Work when completed will

be in accordance with the Architectural 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 Architectural 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 Architectural Work, and shall

endeavor to guard the Owner against defects and deficiencies in the

Architectural Work. The Architect shall promptly submit to the Owner a written

report of the results of each such site visit. The Architect will exercise

reasonable care and diligence in discovering and promptly reporting to the Owner

defects or deficiencies in the Architectural Work. The Architect shall perform

such visits to the site of the Architectural Work only with competent personnel

who are experienced in such tasks and reasonably acceptable to the Owner. The

Owner will engage, or the Construction Contract will require that Contractor

engage, the Design-Build Consultants or independent electrical and mechanical

engineering consultants to make periodic on-site observations as appropriate to

the stage of construction of the electrical and mechanical Work on the Project.

The Architect shall have no duty or responsibility whatsoever to make periodic

on-site observations of the electrical or mechanical Work, to check the quality

or quantity of such Work, to discover or to report to the Owner defects or

deficiencies in such Work, to inform the Owner of the progress and quality of

such Work, or to endeavor to guard the Owner against defects and deficiencies in

such Work; nevertheless the Architect shall report to the Owner any defects or

deficiencies in such Work as are actually known to be such by the Architect.

 

2.5.6 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, unless Architect's provision of services impacts Contractor's

schedule. 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.

 

2.5.7 The Architect shall at all times have access to the Work wherever it is in

preparation or progress.

 

2.5.8 Except as may otherwise be provided in the Contract Documents or when

direct communications have been specially authorized, the Owner and Contractor

shall communicate through the Architect with regard to the Architectural Work,

provided that Owner shall be copied on all written communications between

Contractor and Architect. Communications by and with the Architect's consultants

shall be through the Architect.

 

2.5.9 Based on the Architect's observations of the Work and evaluations of the

Contractor's Applications for Payment, the Architect shall review and certify

the amounts due the Contractor for the Work.

 

2.5.10 The Architect's certification for payment shall constitute a

representation to the Owner, based on the Architect's observations of the Work

at the site as provided in Subparagraph 2.5.5 and on the data comprising the

Contractor's Application for Payment,

 

 

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that, to the best of the Architect's knowledge, information and belief, the Work

has progressed to the point indicated and the quality of the Work is in

accordance with the Contract Documents. The foregoing representations are

subject to an evaluation of the Architectural Work for general 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 Certificate for Payment shall further constitute a

representation that the Contractor is entitled to payment for the Work in the

amount certified. However, the issuance of a Certificate for 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. The Architect's Certificate for

Payment shall not be a representation that the quality of the electrical or

mechanical Work is in accordance with the Contract Documents or that the

electrical or mechanical systems, materials or other Design-Build elements are

adequate or comply with applicable laws, codes, ordinances or regulations.

 

2.5.11 The Architect shall have authority to recommend to the Owner the

rejection of Architectural Work which does not conform to the Architectural

Contract Documents. Whenever the Architect considers it necessary or advisable

for implementation of the intent of the Architectural Contract Documents, the

Architect will have authority to recommend that the Owner require additional

inspection or testing of the Architectural Work in accordance with the

provisions of the Architectural Contract Documents, whether or not such

Architectural 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.

 

2.5.12 The Architect shall review and take other appropriate action upon

Contractor's submittals for the Architectural Work such as Shop Drawings,

Product Data and Samples, but only for the limited purpose of checking for

conformance with information given and the design concept expressed in the

Architectural Contract Documents. The Architect's action shall be taken with

such reasonable promptness as to cause no unreasonable delay in the Contractor's

Work or in construction by the Owner or by Owner's separate contractors, while

allowing sufficient time in the Architect's professional judgment to permit

adequate review. Review of such submittals is not conducted for the purpose of

determining the accuracy and completeness of details such as dimensions and

quantities or for substantiating instructions for 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 a review or approval of

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 Architectural Contract Documents, the

 

 

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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 Architectural Contract Documents. The Architect shall have no duty or

responsibility whatsoever to review or to take any action upon the Contractor's

submittals for the electrical or mechanical Work such as Shop Drawings, Product

Data and Samples. The Contractor's submittals for the electrical and mechanical

Work shall be submitted directly to the Design-Build Consultants or to

independent consultants retained by the Owner, if any, for review and

appropriate action. A copy of such Contractor's submittal and any action taken

by consultants reviewing such submittals shall be provided to the Architect for

informational and coordination purposes only.

 

2.5.13 The Architect shall prepare, or shall review and sign or take other

appropriate action on, Change Orders and Construction Change Directives with

regard to the Architectural Work, with supporting documentation and data if

deemed necessary by the Architect with respect to the Architectural Work as

provided in Subparagraphs 3.1.1 and 3.3.3, for the Owner's approval and

execution. The Architect shall review and make recommendations to Owner or take

other appropriate action on Change Orders and Construction Change Directives

with regard to the mechanical or electrical Work with supporting documentation

and data if deemed necessary by the Architect, for the Owner's approval and

execution. The Architect may authorize minor changes in the Architectural 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 Architectural Contract

Documents. Such changes shall be effected by written order issued by the

Architect.

 

2.5.14 The Architect shall conduct inspections to determine the date and dates

of Substantial Completion and the date of final Completion of the Architectural

Work, shall receive and forward to the Owner for the Owner's review and records

written warranties and related documents required by the Architectural Contract

Documents for the Architectural Work and assembled by the Contractor, and shall

issue a final Certificate for Payment for the Architectural Work upon compliance

of the Architectural Work with the requirements Of the Architectural Contract

Documents. The Architect shall, with the assistance of mechanical and electrical

peer reviewers engaged by it, conduct inspections of the electrical and

mechanical Work to determine the date or dates of Substantial Completion and the

date of final completion of such Work. The Owner shall require, through the

Construction Contract, that the Design-Build Consultants submit Certificates of

Substantial Completion and Certificates of Final Completion of their respective

portions of the Work to the Owner, with a copy to the Architect. The Architect

shall, with the assistance of mechanical and electrical peer reviewers engaged

by it, verify the accuracy and completeness of such certifications.

 

2.5.15 The Architect shall interpret and make recommendations concerning

performance of the Owner and Contractor under the requirements of the

Architectural Contract Documents on written request of either the Owner or

Contractor. The Architect's response to such requests shall be made with

reasonable promptness. The Architect shall have no duty or responsibility to

interpret or to make recommendations concerning performance of the Owner and

Contractor under the requirements of the Contract Documents describing the

electrical or mechanical Work.

 

 

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2.5.16 Interpretations and recommendations of the Architect shall be consistent

with the intent of and reasonably inerrable from the Architectural Contract

Documents and shall be in writing or in the form of drawings. When making such

interpretations and recommendations, the Architect shall endeavor to secure

faithful performance by both Owner and Contractor, shall not show partiality to

either, and shall not be liable for results of interpretations or

recommendations so rendered in good faith.

 

2.5.17 The Architect's recommendations on matters relating to aesthetic effect

shall be final if consistent with the intent expressed in the Architectural

Contract Documents and accepted by the Owner.

 

 

2.5.18 The Architect shall render written recommendations 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 Architectural Work as

provided in the Architectural Contract Documents. If such recommendations are

not implemented, such claims, disputes or other matters in question may be

subject to litigation.

 

2.5.19 The Architect, in cooperation with the Design-Build Consultants, shall

prepare a set of reproducible record drawings showing significant changes in the

Architectural Work made during construction based on marked-up prints, drawings,

and other data furnished by the contractor to the Architect.

 

                                    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 11, 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 3.3 shall only be

provided if authorized or confirmed in writing by the Owner and, with respect to

the services described in Subparagraphs 3.3.12 and 3.3.16, if the Architect

agrees to perform such services. Notwithstanding anything to the contrary in

this Agreement, Owner shall not be responsible to pay and the Architect shall

not be entitled to receive reimbursement or compensation for any Additional

Services if such services were required due to the fault of the Architect or the

Architect's failure to perform in accordance with the terms of this Agreement.

 

3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES

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