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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
interpretatio
