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HomeMy WebLinkAboutCIM/Huntington, LLC - aka CIM Group, LLC - 2003-09-15Council/Agency Meeting Held: Deferred/Continued to: �IlApproved ❑ Conditionally Approved ❑ Denied City Clper ( ature v Council Meeting Date: December 15, 2003 Department ID Number: ED 03-32 CITY OF HUNTINGTON BEACH REQUEST FOR REDEVELOPMENT AGENCY ACTION _ a ca SUBMITTED TO: HONORABLE CHAIRMAN AND REDEVELOPMENT AGENCY,-�==y,.; MEMBERS SUBMITTED BY: RAY SILVER, Executive Director aW PREPARED BY: DAVID C. BIGGS, Deputy Executive Director y' SUBJECT: RECEIVE & FILE "EXHIBIT A" TO FOURTH IMPLEMENTATION AGREEMENT WITH CIM/HUNTINGTON LLC Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: "Exhibit A," Assignment of Architectural Agreements and Plans and Specifications, was not included when the Redevelopment Agency took action on the Fourth Implementation Agreement. Funding Source: N/A Recommended Action: Receive & File "Exhibit A" to Fourth Implementation Agreement with CIM Huntington LLC. Alternative Action(s): Request modifications to "Exhibit A," if desired. Analysis: On September 15, 2003, the Redevelopment Agency approved a Fourth Implementation Agreement with CIM/Huntington LLC for The Strand Project. "Exhibit A," Assignment of Architectural Agreements and Plans and Specifications, was inadvertently not included with the Request for Redevelopment Agency Action. "Exhibit A" is being presented as a Receive & File item to ensure that the Redevelopment Agency has seen the Agreement in its entirety. Environmental Status: N/A Attachment(s): RCA Author: D. Biggs, ext 5909 Assignment of Architectural Agreements and Plans and Specifications A EXHIBIT A ASSIGNMENT OF ARCHITECTURAL AGREEMENTS AND PLANS AND SPECIFICATIONS FOR VALUE RECEIVED, the undersigned, CIM/HUNTINGTON, LLC, a California limited liability company ("Developer"), assigns to the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic ("Agency"), all of its right, title and interest in and to: 1. All architectural, design, engineering and development agreements, and any and all amendments, modifications, supplements, addenda and general conditions thereto (collectively, "Architectural Agreements"); and 2. All plans and specifications, shop drawings, working drawings, amendments, modifications, changes, supplements, general conditions and addenda thereto (collectively "Plans and Specifications") heretofore or hereafter entered into or prepared by any architect, engineer or other person or entity (collectively the "Architect"), for or on behalf of the Developer in connection with the construction of the improvements on the Site (as defined in the DDA), pursuant to that certain Disposition and Development Agreement entered into by and between the Developer and the Agency with respect to the Site dated June 17, 1999, which Disposition and Development Agreement was supplemented by that certain [First] Implementation Agreement entered into between the Agency and CIM Group, LLC dated April 6, 2000; that certain Second Implementation Agreement entered into between the Agency and CIM Group, LLC dated March 5, 2001, that certain Third Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated October 30, 2002, and that certain Fourth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated September 15, 2003 (collectively, the "DDA"). Any capitalized term not defined herein shall have the meaning ascribed to it in the DDA. The Plans and Specifications, as of the date hereof, are those which the Developer will hereafter deliver to the Agency. The Architectural Agreements include, but are not limited to: a. Abbreviated Standard Form of Agreement Between Owner & Architect, AIA Document B 151 — 1997 Edition, dated August 22, 2003 b. Exhibits A, B, C, D, F, G, H, J & K to AIA document B-151 (see a.) This ASSIGNMENT OF ARCHITECTURAL AGREEMENTS AND PLANS AND SPECIFICATIONS (the "Assignment of Plan Documents") constitutes a present and absolute assignment to the Agency as of the Effective Date; provided, however, the Agency confers upon the Developer the right to enforce the terms of the Architectural Agreements and the Developer's rights to the Plans and Specifications so long as the Agency's rights thereto under the next sentence have not yet accrued. Upon the termination of the DDA for any reason, or in the event Developer fails to commence construction within the time provided in the Revised Schedule of Performance for commencing the work and improvements required for development of the Site, or in the event Developer fails to complete construction within the time provided in the Revised Schedule of Performance for completion of construction of all improvements, or upon the Agency obtaining title or possession to the Site, the Agency may, in its sole discretion, give notice to the Architect of its intent to enforce the rights of the Developer under the Architectural Agreements and of its rights to the Plans and Specifications and may initiate or participate in any legal proceedings respecting the enforcement of said rights. The Developer acknowledges that by accepting this assignment, the Agency does not assume any of the Developer's obligations under the Architectural Agreements or with respect to the Plans and Specifications. The Developer represents and warrants to the Agency, as of the Effective Date, that: (a) all Architectural Agreements entered into by the Developer are in full force and effect and are enforceable in accordance with their terms and no default, or event which would constitute a default after notice or the passage of time, or both, exists with respect to said Architectural Agreements; (b) all copies of the Architectural Agreements and Plans and Specifications delivered to the Agency are complete and correct; and (c) the Developer has not assigned any of its rights under the Architectural Agreements or with respect to the Plans and Specifications. The Developer agrees: (a) to pay and perform all obligations of the Developer under the Architectural Agreements; (b) to enforce the payment and performance of all obligations of any other person or entity under the Architectural Agreements; (c) not to modify the existing Architectural Agreements nor to enter into any future Architectural Agreements without the Agency Executive Director's prior written approval; and (d) not to make any further assignment which is senior in priority to the Agency's assignment, for security or any other purpose, of its rights under the Architectural Agreements or with respect to the Plans and Specifications, without the Agency Executive Director's prior written consent. This Assignment of Plan Documents shall be governed by the laws of the State of California, and the Developer consents to the jurisdiction of any federal or state court within the State of California having proper venue for the filing and maintenance of any action arising hereunder and agrees that the prevailing party in any such action shall be entitled, in addition to any other recovery, to reasonable attorneys' fees and costs. The "Effective Date" of this Assignment of Plan Documents shall be the "Effective Date" of the Fourth Implementation Agreement entered into between the Agency and CAM/HUNTINGTON, LLC dated September 15, 2003. This Assignment of Plan Documents shall be binding upon and inure to the benefit of the successors and assigns of the Developer and the Agency. The Agency shall have the right (upon written notice to the Developer) to assign its rights under this Assignment of Plan Documents to any nominee(s) of the Agency designated by the Agency. The attached Exhibit 1, and each Architect's Consent executed by an Architect (as defined hereinabove), are incorporated herein by reference. [remainder of page left intentionally blank] IN WITNESS WHEREOF, this Assignment of Plan Documents has been executed by the Developer by its duly authorized officer as of the date set forth opposite his signature. Developer CIMMUNTINGTON, LLC, a California limited liability company By: CIM CALIFORNIA URBAN REAL ESTATE FUND, L.P. (the "Fund"), a Delaware limited partnership, its manager By: CIM URBAN FUND GP, LLC, a California limited liability company, its general partner By: CIM GROUP, LLC, a California limited liability company, its manager By: ORCHARD CAPITAL CORPORATION, a California corporation, its manager Date: /0 - a By: Richard S. Ressler, its President EXHIBIT 1 TO ASSIGNMENT OF ARCHITECTURAL AGREEMENTS AND PLANS AND SPECIFICATIONS ARCHITECT'S CONSENT [A Consent shall be completed in counterpart by each Architect] The undersigned architect (the "Architect") hereby consents to the Assignment of Plan Documents made by CIM/HUNTINGTON, LLC in favor of the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH pursuant to that certain Fourth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated September 15, 2003, which Fourth Implementation Agreement further supplements that certain Disposition and Development Agreement entered into by and between the Developer and the Agency with respect to the Site dated June 17, 1999, which Disposition and Development Agreement was supplemented by that certain [First] Implementation Agreement entered into between the Agency and CIM Group, LLC dated April 6, 2000; that certain Second Implementation Agreement entered into between the Agency and CIM Group, LLC dated March 5, 2001, that certain Third Implementation Agreement entered into between the Agency and CEWHUNTINGTON, LLC dated October 30, 2002. The Disposition and Development Agreement as supplemented by the [First], Second, Third and Fourth Implementation Agreements shall collectively be referred to as the "DDA." Except as otherwise defined herein, the terms used herein shall have the meanings given them in the Assignment of Plan Documents and the DDA, as applicable. This Architect's Consent (the "Consent") is part of the Fourth Implementation Agreement. The Architect acknowledges that there presently exists no unpaid claims due to the Architect except as set forth on Schedule 1 attached hereto and incorporated herein by reference, arising out of the preparation and delivery of the Plans and Specifications to the Developer and/or the performance of the Architect's obligations under the Architectural Agreements. The Architect agrees that if, at any time, upon the termination of the DDA for any reason, or in the event Developer fails to commence construction within the time provided in the Revised Schedule of Performance for commencing the work and improvements required for development of the Site, or in the event Developer fails to complete construction within the time provided in the Revised Schedule of Performance for completion of construction of all improvements, or upon the Agency obtaining title or possession to the Site, then, so long as the Architect has received, receives or continues to receive the compensation called for under the Architectural Agreements, the Agency may, at its option, use and rely on the Plans and Specifications for the purposes for which they were prepared, and the Architect will continue to perform its obligations under the Architectural Agreements for the benefit and account of the Agency in the same manner as if performed for the benefit or account of the Developer in the absence of the assignment. t The Architect further agrees that, in the event of a breach by the Developer of the Architectural Agreements, or any agreement entered into with the Architect in connection with the Plans and Specifications, so long as the Developer's interest in the Architectural Agreements and Plans and Specifications is assigned to the Agency, the Architect will give written notice to the Agency of such breach at the address shown below. The Agency shall have thirty (30) days from the receipt of such written notice of default to remedy or cure said default. Nothing herein shall require the Agency to cure said default or to undertake completion of construction of the improvements on the Site. The Architect warrants and represents that it has no knowledge of any prior assignment(s) of any interest in either the Plans and Specifications and/or the Architectural Agreements. "Agency" as used in this Consent includes any nominee(s) of the Agency designated by the Agency. ARCHITECT M. Arthur Gensler Jr. & Associates Inc. Dated: �GG� Name: Marty Borko Title: Vice President Architect's Address: 2500 Broadway, Suite 300 Santa Monica, CA 90404 Agency's Address: REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH CITY HALL ATTN: EXECUTIVE DIRECTOR 2000 MAIN STREET HUNTINGTON BEACH, CALIFORNIA 92648 SCHEDULE OF UNPAID CLAIMS Schedule 1 to Assignment of Architectural Agreements and Plans and Specifications dated as of ,rgt-2��2'0'0-3 D ,between CIM/HUNTINGTON, LLC ("Developer") and the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH ("Agency"). Invoice No. Date Amount Due Basic Services - Fees 55916 9/19/03 $102,483.00 Through the end of DD: $151,155.00 Total Fees Due: $253,638.00 Basic Services - Expenses 53507 4/16/03 $1,889.72 53890 5/09/03 $2,419.04 54379 6/13/03 $5,409.29 54944 7/18/03 $2,007.80 55276 8/15/03 $1,431.29 55917 9/19/03 $3,446.67 End of DD Expenses: $3,167.49 Total Expenses Due: $19,771.30 Leasing Plans 53861 4/26/03 $1,035.00 Meetings & Presentations 53862 4/26/03 $3,490.00 53891 5/09/03 $1,497.50 54177 5/21/03 $3,990.00 54380 6/13/03 $1,610.00 55919 9/19/03 $ 520.00 Total Due for Meetings: $11,107.50 Tenant Handbook 54381 6/13/03 $2,282.50 54390 6/13/03 $1,785.00 54931 7/18/03 $ 805.00 55278 8/15/03 $ 245.00 55273 8/15/03 $ 250.00 Total Due for Handbook $5,367.50 General Add Services Per Contract Allowance 54943 7/18/03 $2,510.00 55275 8/15/03 $5;005.00 Total Due: $7,515.00 Hotel Expansion @ 5`" & Walnut 55918 9/19/03 $5,405.00 Public Restrooms 55921 9/19/03 $ 960.00 Building C Revisions 55922 9/19/03 $1,680.00 Grand Total of Outstanding Invoices: $306,479.30 Abbreviated of Agreement Architect B1: d� r- Owner i�, - and AIA Document B151 -1997 1997 Edition - Electronic Format This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401. This document has been approved and endorsed by the American Subcontractors Association and the Associated Specialty Contractors, Inc. Copyright 1974, 1978, 1987, ©1997 by The American Institute of Architects. Reproduction of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will subject the violator to legal prosecution. AGREEMENT made as of the Z day of M 5 in the year two thousand and three. (In words. indicate day, month and year) BETWEEN the Architect's client identified as the Owner: (Name, address and other information) CIM/Huntin on. LLC 6922 Hollywood Boulevard Suite 900 Los Angeles. CA 90028 Tel (323) 8E0-4900 Fa ;32318604901 and the Architect: (Name, address and other information) M. Arthur Gensler Jr & Associates. Inc. 2500 Broadway #300 Santa Monica. CA 90404 Tel (310)449-5600 Fax (310) 449-5850 For the following Project: (Include detailed description of Project, location and address) The Project is F-enerally described as Blocks 104 and 105 in the City of Huntington Beach. Califomia. See the Project Description and A- COPYRIGST 1997 - OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: bl 5 1 -gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006. which expires on 1 I/l/2003. Electronic Format B 15'.-1997 1 Scope of Services attached hereto as Exhibit "A" and the legal description included as part of the Preliminary Title Report from Old Republic Title Company The Owner and Architect agree as follows. ARTICLE 1 ARCHITECT'S RESPONSIBILITIES 1.1 Services. The services ("Services") erformed by the Architect, Architect's employees and Architect's consultants shall be as enumerated herein and in the Exhibits attached hereto. "fficles 2, 3 and 12. 1.2 Project Schedule. The Architect's set-�iees Services shall be performed in compliance with the Owner -approved Project Schedule contained in Exhibit "C" which shall be based on perform?nce by the Architect as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. The In Exhibit "C". the Architect shall submit for the Owner's approval a whedAe Project Schedule in a format and containing information at a level of detail that is acceptable to the Owner, for the performance of the Architect's sen,iee Services which when approved by the Owner through executing this Agreement, may only be adjusted as the Pfejeet proceeds. with the Owner's prior written approval. This sehedttle Project Schedule shall include reasonable allowances for periods of time required for the Owner's review and approval in writing and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this &Ghedvle Project Schedule approved by the Owner shall not, except for reasonable cause, be exceeded by the Architect or Owner without the Owner's prior written authorization. Nothing in this Agreement shall be construed as a waiver of the Owner's right to enforce compliance by the Architec,, ith the Owner -approved Project Schedule. 1.3 Architect's Representative. The Architect shall designate a representative authorized to act on behalf of the Architect in all aspects regarding-wi h-respee4e the Project. 1.4 Remaining Basic Services. The serwiees Services covered by this Agreement are subject to the tifne limitations provisions contained in Subparagraph 1 1.5.1. ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES 2.1 DEFINITION Basic Services. The Architect's Basic Services consist of those described herein identified in AFtiele 12 as ..aA of Basis ee..yiees, and include neFffial coordinating all structural, mechanical, and electrical. acoustical, plumbing and other engineering services and landscape architects for this Project and the Description of Work and Scope of Services contained in Exhibit "A". The above -listed engineers and consultants shall be referred to herein as the "Consultants" It is further understood that the Architect may recommend for the Owner's written approval that certain portions of the Project be "design/built" by the contractors providing- such portions of the Project. _ 2 1.1 Additional Engineering Further, the Owner shall retain additional enp-ineerinp, and other specialty consulting services that are necessary to complete the Project and shall submit a description of the scope of such services to the Architect for review and written approval prior to retaining or undertaking any such additional engineering and other specialty consulting 2.1.2_ Coordination of Contract Documents. The Architect will coordinate the plans and_sDjtcJf�ations of all Consultants includin but not limited to all civil mechanical electrical and plumbing plans and specifications and documents provided by any Consultants. including additional engineering and other specialty consulting services with the other contract documents provided by the Architect. its Consultants and the general contractor (,together the "Contract Documents"). The Owner shall enforce the Architect's proposed schedule and the Architect's efforts to coordinate the Services with the Owner's Consultants The Architect may reasonably rely on the accuracy and completeness of the plans and specifications provided by the Owner -retained consultants. However, if the Architect knows or has reason to know of deficiencies or defects in such plans or specifications or services information surveys or resorts provided by the Owner -retained consultants the Architect shall notify the Owner in writing of such deficiencies or defects. -A - A OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b151-gensier-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on 11/1/2003. Electronic Format B151-1997 2 - 2 1 3 Revisions Except as limited by Paragraph 3 3 below throughout the phases of the Services described herein. the Architect will perform as Basic Services any agreed to revisions to drawings specifications or other Contract Documents which are requested by the Owner as a part of the Owner's review and as a part of the plan finalization process This provision applies to any items described in Subparagraph 2.1.2. 2 l 4 Project Budget Throughout the _phases of the Services described herein the Architect will be responsible for its actions and will not charge the Owner for anv revisions to drawings which must be approved by city. state or county age, ncies_specifications or other Contract Documents which are required to bring the Construction Cost (as that term is defined in Article 5) to an amount that is at or below the Project Budget (as that term is defined in Subparagraph 2 2 5) as a result of the Architect's actions. 2 1 5 Coordination of All Documents; Legal Requirements The Architect shall use its best efforts in"thg coordination of all drawings specifications or other Contract Documents regardless of whether such drawings specifications. or other Contract Documents are prepared or,performed by the Architect. by the Architect's consultants or byothers.The Architect shall use its best efforts in the coordination and interval checking of all submitted drawings, pecifications and documents including Contract Documents prepared by the Architect or its consultants for the accuracy of all dimensional and layout information contained therein as fully as if each of the documents were prepared by the Architect The Architect may -reasonably rely on the accuracy and completeness of the plans and specifications provided by the Owner -retained consultants However if the Architect knows or has reason to know of deficiencies or defects in such plans or specifications or services information surveys or reports provided by the Owner-retahyed consultants the Architect shall notify the Owner in writing of such deficicn^ies or defect-, The Architect Eha!! u— it - best efforts in assuring (i) the completeness and accuracy of all drawings specifications and Contract Documents prepared by the Architect or its consultants and (ii) that such drawings specifications and contract document comply with all applicable codes ordinances. regulations. laws and statutes (collectively "Legal Requirements") 2 1 6 Included Basic Services See Exhibit "A"- Description of Project and Scope of Services attached herd 2.2 SCHEMATIC DESIGN PHASE 2.2.1 Program Review. The Architect shall review the program furnished by the Owner to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the Owner. The Architect's review shall include, but not be limited to Site and space requirements materials building_ systems and equipment and methods of Project deliver. 2.2.2 Preliminary Evaluation. The Architect shall provide a preliminary evaluation of the Owner's program, scheduleProject Schedule and se—i—er}budget Project Budget requirements, each in terms of the other, Subparagraph The Architect shall advise the Owner of any need or advisability of the Owner's securing any tests analyses. studies reports or Consultants' services in connection with the development of the drawings specifications or other Construction Documents for the Project. 2.2.3 Alternatives. The Architect shall review with the Owner alternative approaches to design and construction of the Project. 2.2.4 Schematic Design Documents. Based on comments from conceptual review by the City of Huntington Beach. the Huntington Beach community, market analysis, and the muWally agreed-upen Owner's rogram, sehedale Project Schedule and mien budget Proiect Budget requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. 2.2.5 Project Budget Review. The Afehitect shall submit to the QA%er a preliminary estimate of Construction Cost based eF1 . The Architect shall review with the Owner the Project Budget OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration" as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b151-gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on 1 l/1/2003. Electronic Format B 151-1997 3 ,,.,en ts, Budget shall be amended and approved by the Owner in writing to include the Owner's approved changes- if any 2 2 6 Cost Estimates and Project Budget Compliance The Owner through the Contractor or other Owner Consultants may supply Proiect Construction Cost estimates to the Architect at the end of the Schematic Desin Phase and the mid -point and end point of the Design Development and Construction Documents Phases If the Construction Cost estimate that is based on the Architect's desigp and the Owner's Consultants' designs exceeds the Project Budget the Owner may elect to modify the Project Budget, or the Architect and the Owner's Contractor and Consultants shall participate in value engineering and redesigning of the Project in order to brine the Construction Cost estimate based on the redesign to a value equal to or less than the Project Budget The Architect shall participate in the value engineering and shall redesign the Project at its sole cost Notwithstanding any of the above the Architect shall not be held responsible for such value engineering and re -designing at its own cost for market fluctuations in excess of an annual rate of inflation 7et5' V416er 2.3 DESIGN DEVELOPMENT PHASE —% 2.3.1 Design Development Documents. Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, sehedule Project Schedule or eensiruEtion bu4get; Project Budget. the Architect shall prepare, for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, '~ ', 1; ' and ' etr- "' ;"' , f&rand such other elements as may be appropriate. 2.3.2 . [Intentionally deleted. 2 3 3 Project Budget Compliance The Architect does not guarantee the Project Budget as rnodified to reflect"Owner changes or general market conditions (see Paragraph 2 4 3) but agrees that revisions erformed by the Architect to keen the Project Budget within the Construction Cost estimates and the actual construction bids are included in the Architect's Basic Services at no additional cost to the Owner excel2t as limited by Paragral2h 3.3d below. S Nv#t; 2.4 CONSTRUCTION DOCUMENTS PHASE V 2.4.1 Construction Documents. Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the mien-budgc4 Project 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. 2.4.2 Bid Documents; Legal Requirements; 'Testing. 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. Construction drawings and specifications or other construction or Contract Documents submitted by the Architect to the Owner for approval or to any contractors for bidding or negotiation shall be complete and unarrribiguous and jn compliance with all Legal Requirements and as provided in Exhibit "A" except to the extent expressly and sl2ecifically otherwise stated in detail in writing by the Architect at the'time of such submission The Owner acknowledges that ti-le Architect's drawings. specifications or other construction documents may be the subject of requests for information or c larification during the design and construction administration phases By submitting such for construction contract purposes tlae Architect certifies that, to the best of its ability, the Architect has informed the Owner of any tests studies analyses or reports which are necessary or advisable to be performed b or r for the Owner at that point in time. The Architect shalladditionallyconfirrsrl these facts in writing at any time, if the Owner so requests. A ATE5 OWNER-AlZCHI FEC I A - 1997 EDITION - OF ARCHITECTS, 1735 NEW YORK AVENUE N,W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photo copying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the ALA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration 2s noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b151-gensler-hbv4.aia -- 8/22/2003. AIA License Number 10 12006, which expires on I I/l/2003. Electronic Format B151-1997 4 2.4.3 Proiect Budget Review. The Architect shall advis may recommend to the Owner of -any that adjustments to �ev�eus the Proiect Budget are indicated by changes.in requirements or general market conditions. 2.4.4 Fillings. The Architect shall assist the Owner in filing documents required for the approval of governmental authorities having jurisdiction over the Project. 2.5 BIDDING OR NEGOTIATION PHASE 2.5.1 Bidding, The Architect, following the Owner's approval of the Construction Documents and of the latest p=.a4n+ipmv�- est-imate 9 , Project Budget, shall assist the Owner in obtaining bids or negotiated proposals and assist in awarding andiwepafing contracts for construction. 2 5 2 Proiect Budget Compliance If the lowest bona fide responsive bid by a general contractor satisfactory to the Owner ("Lowest Bidder") for construction of the Project pursuant to the approved Construction Documents exceeds the most recent Owner - approved Project Budget by more than two percent 2%) of the most recent Owner -approved Project Budget or exceeds the Project Schedule then the Architect shall at its sole cost and expense participate in a value engineeringprocess with thMOwner and op ssibly the bidding contractor and revise the Construction Documents as required and approved by the Owner to reduce or modify the scope quality or quantity of the Project so that the amended bids will not exceed the Project Budget or amended Project Budget and/or the Proiect Schedule However if the Lowest Bidder bid exceeds the most recent Owner -approved Project Budget -by less than or equal to two percent (2%) of the most recent Owner -approved Proiect Budget and such exceedance is due to the Architect's Negligence or Wrongful Acts, as defined below. the Architect shall at its sole cost and expense participate in a value engineering process with the Owner and possibly the bidding contractor and revise the Construction Documents as required and approved by the Owner to reduce or modify the scone, quality or auantity of the Proiect so that the amended bids will not exceed the Proiect Budget or amended Proiect Budget. and/or the Project Schedule. 2.6 CONSTRUCTION PHASED —ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 Construction Phase Term. The Architect's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the initial Contract for Construction and terminates at the '" f the 60days after the date of Substantial Completion of the Work. Substantial Completion shall be defined as the completion of the Proiect to the point when the regulatory authorities having jurisdiction over the Project have issued and the contractor has delivered to the Owner (the original) and the agencies and lenders (a true and correct cogy) of a Temporary Certificate of Occupancy and all other necessarypermits licenses and governmental approvals required in order for the Project to be occupied. 2.6. 1 1 Architect's Site Visits As part of the Basic Servicesprovided by the Architect the Architect shall visit the PrQject at least once ever week during the Construction Phase and at the Owner's written request and as an Additional Service. Periodically during a one (1) year warranty period after Substantial Completion to review the Proiect and shall prepare a report to be issued to the Owner and at the Owner's direction to the contractor ("Contractor") indicating outstanding, construction work ("Work") to be corrected and warranty issues to be addressed by the Contractor. 2.6.1.2 Architect's Negligence or Wrongful Acts To the extent that after Substantial Completion services are required of the Architect or its Consultants for correction of Work or satisfaction of a warranty and such-wrvices are in no way a result in whole or in part of any wrongful acts negligence error, omission inconsistency or delay in the Architect's and Consultants' performance or conduct (collectively the "Architect's Negligence or Wrongful Acts") such services shall be considered an Additional Service for which the Architect will be reasonably compensated on an hourly basis pursuant to Exhibit "H" and won the prior written authorization of the Owner If such services are the result in whole or in part because of the Architect's Negligence or Wronaful Acts, such services shall be performed as apart of the Architect's Basic Services at no additional cost to the Owner. 2.6.2 Contract Administration. The Architect shall provide administration of the Contract for Construction asset forth below A OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b 15 1 -gensier-hbv4. aia -- 8/22/2003. AIA License Number-1012006, which expires on 1 I/1/2003. Electronic Format B151-1997 5 and in the edition ef AIA Doeument A20 1, Genefal Conditions ef the Centr-act for- Genstfuoien, ou"ent as of the date of this A __--Ment, tifileSS 0 ei=wise pfevided in this Agfeement. N4edifiGatiens made to the General Conditions, when adopted as pai4 of DeGuments, shall be enfer-oeable under this Agreement enly to the extent that the), afe eonsistent with this Agr-eefnew- actual contract for construction entered into between the Owner and the Contractor. The Architect agrees to reasonable modifications of this Agreement as necessM to conform it to the provisions of the construction contract between the Owner and the Contractor or construction lender agreements subject to the Architect's reasonable approval of the modifications To the extent that such modifications do not result in an increase in the Architect's Scone of Services, the Architect shall not be entitled to added compensation based on such modifications, 2.6.3 Written Modifications. Duties, responsibilities and limitations of authority of the Architect under this Paragraph 2.6 shall not be restricted, modified or extended without written agreement of the Owner and Architect_ with ;,erase.,, of the Gentr-aeter-, which consent -Ali!! not be up&easenably withheu 2.6.4 Consultation Services. The Architect stall be a fepr-esentati a of and shall advise and consult with the Owner during the administration of 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 amendment. 2.6.5 Site Visits. The Architect, as a reffesentative of the Owner, shall visit the site at as indicated in Paragraph 2.6.1.1 and intervals appropriate to the stage of the Contractor's operations, or as otherwise agreed by the Owner and the Architect in Afliele 42, (1) to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) to endeavor in eood faith to guard the Owner against defects and deficiencies in the Work, and (3) to determine in-ger}eral if the Work is being performed in a manner indicating that the Work, when fully 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 er rt quantity of the Work. The Architect shall neither have control over or charge of, nor be responsible for, the 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 rights and responsibilities under the Contract Documents unless modified by the Architect's Contract Documents including, but not limited to the Architect's drawings. specifications. designs or requirements in the Contract Documents that expressly specify construction means methods, techniques, sequences. or safety precautions. Notwithstanding any of the above provisions if a manufacturer or supplier provides the construction means. methods techniques sequences or safety precautions the Architect shall not be liable for such as long as the Architect did not alter any portion of such construction means methods techniques sequences or safety precautions. Further. the Architect shall make a good faith effort to assist the Owner in bringing an3� action against such manufacturer or supplier if their construction means methods techniques sequences or safely precautions prove to be defective or otherwise cause damages. defects, deficiencies or other claims related to or arising out of the Work or the Project. 2.6.6 Notice of Concerns. The Architect shall repeat give prompt written notice to the Owner of any known fault- defect, omission, inconsistency in the Contract Documents or Project or known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor. However, the Architect shall not be responsible for the . Contractor's failure to perform the Work in accordance With the requirements of the Contract Doc�umeyx�s. The Arch;t". shall be responsible and liable for its consultants' wrongful acts and negligence and for the Architect's - Negligence or Wrongful Acts. but shall not have control over or charge of and shall not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons or entities performing portions of the Work. 2.6.7 Access. The Architect shall at all times have access to the Work wherever it is in preparation or progress. 2.6.8 Communications. ExeeSt as ether -wise vf:avided in this Aefeement er- when dir- t eem*vwnwatiens have been speeially Communications by and with the Architect's consultants shall be through the Architect. AmL communication with Owner's consultants should be coordinated with Owner. 2.6.9 CERTIFICATES FOR PAYMENT COAIAMCUMENf- -A OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted . below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b151-gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on 11/l/2003. Electronic Format B151-1997 6 i�l' 2.6.9.1 Review and Certify. 44ie Based on the Architect's observations. the Architect shall review and certify the amounts due the Contractor and shall issue certificates in such amounts. The Owner may at its own risk overrule. in whole or in part, a certification by the Architect of amounts due to the Contractor in which case the amount certified will not be due and payable to the Contractor. 2.6.9.2 Certificates for Payment. The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's evaluation of the Work 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, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject (1) to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, (2) to results of subsequent tests and inspections, (3) to correction of minor deviations from the Contract Documents prior to completion, and (4) 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 in the amount certified subject to the foregoing ofthis Subparagraph 2.6.9.2 and the limitations set forth in Subparagraph 2.6.9.3. 2.6.9.3 Limitations. 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. 2.6.10 Rejection of Work. The Architect shall have authority to reject Work that does not conform to the Contract Documents. The Owner may overrule the Architect's resection in writing. Whenever the Architect considers it necessary or advisable, the Architect shall have authority to require reasonable 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 or entities performing portions of the Work. 2.6.11 Submittals and Shop Drawings. The Architect shall review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect, with input from the Contractor as necessary, shall determine what aspects of the construction work shall be -the subject of shoe drawings and submittals The Architect shall not knowingly permit such aspects of the construction work to proceed in the absence of approved shop drawings and submittals Notwithstanding anything else herein the Architect's responsibilities"and liabilities for the design of the Project as required in Exhibit "A" will not be voided or relieved by the design and submittal by others of shoo drawings or other submittals. The Architect's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner, Contractor or separate contractors, while allowing sufficierit time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted tur the purpose of det6rmining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures unless modified by the Architect's Contract Documents including but not limited to the Architect includingspecifications.designs. or requirements in the Contract Documents expressly specifXing construction means methods techniques sequences or safety precautions. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 2.6.11_.1 _RFI's. The Archibect_s_hall acknowledge the receipt of each Contractor -generated Request for Infonnation ("RFI" within twenty four (24) hours after receiving such RFI Further, the Architect and its consultants as necessary and appropriate. shall issue an answer to the Contractor and the Owner for each RFI in writing (along with necessar�descriptive drawings specifications, or Wr other Contract Documents) with the promptness necessary to avoid unnecessary delay or cost but in no case more than three Q ► _c_jZ C i days after a RFI is received by the Architect. A- - OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration ms noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. User Docurvtent: b 15 1 -gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on 11/1/2003. Electronic Format B151-1997 7 2.6.12 Limited Delegation. , The Architect shall not delegate any desig�t responsibilities without the specific written approval of the Owner, which may be denied for any reason: but ifgranted then such approval shall only be given for a specific component of the Project and the Architect shall remain liable and responsible for such delegated responsibilities and their coordination and intimation with all the other Contract Documents. 2.6.13 Change Order Advise. The Architect shall prepare and/or advise in the preparation or evaluation of Change Orders and Construction Change Directives, with supporting documentation and data if dee as necessary by the Mehiteet-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, whish are :scent with the f al, SO !' «... a Tl 2.6.14 Determination of Completion. The Architect shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, shall receive from the Contractor 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 based upon a final inspection indicating the Work complies with the requirements of the Contract Documents. 2.6.15 Interpretations. The Architect shall interpret and decide matters concerning performance of the 9wneFand Contractor under, and requirements of, the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests shall be made in writing within any time limits agreed upon . in writing or otherwise within fourteen (14) days. 2.6.16 Written Interpretations. Interpretations and decisions of the Architect shall be consistent with the intent of and requirements indicated in or reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making sursh inter-pr-etatiens and initial dersisions, the AF6114A-6-4shiall enddeeaver- to seewe fa4hfiil PeFfOfffiafiee by both O-A%eF and Geatr-astor-, shall not show pai4iality te eitheF, and shall not be liable &F r-esulis of inter-pn4atiefis or- deeisiefis so re"delzed in geed faith. 2.6.17 Non -Binding Decisions. The Architect in an effort to assist the Proiect Neutral. as detailed in Exhibit "G". shall render initial non-bindingdecisions on claims, disputes or other matters in question between the Owner and Contractor as provided in the Contract Documents. , 2.6.18 Alternative Dispute Resolution ("ADR"). The Architect's non-binding_decisions on claims, disputes or other matters in question between the Owner and Contractor, , shall be subject to Project Neutral review, to mediation, arA arbitration litigation or other dispute resolution procedures as provided in this Agreement. Exhibit "G" and in the Contract Documents. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 Prior Written Approval. The services described in this Article 3 are not included in Basic Services unless so identified in Article 12 or any Exhibitattached hereto, and they shall be paid for by the Owner as provided iat this Agreement, in addition to the compensation for Basic Services. The services described under- PaFagFaphs 3.2 and -3.n in this Article 3 shall only be provided OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can tae reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Docurnent: b 15 1 -gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on l I/l/2003. Electronic Format 13151-1997 8 )/05/2003 11:35 FAX 213 620 8816 ALLEN, MATKINS if authorized or confirmed in writing by the Owner prior toperforaunce of such services, lisep4aes ` esari'� -'-de- ^"-A fi__+ �r due Ay6hit ..Ws R .mil the Mr.t 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 Project Repr"entatives. If more extensive representation at the site than is described in Subparagraph 2.6.5 is required, upon prior written authorization by the Owner_ the Architect shall provide one or more Project Representatives to assist in carrying out such additional on -site responsibilities. 3.2.2 N111tual Agreement of Duties, Atthe Owner's written prior authorization. Project Representatives shall be selected, employed and directed by the Architect, and the Architect shall be compensated therefor as ageed by the Ownef and Architect. The duties, responsibilities and limitations of authority of Project Representatives shall be as described in the ed- __ --4' A T A D"Yamm t r 352 e a ..f the "e of *is A gf-Aoemea Owner's prior written authorization for Sdditional Prtrleet Representation, unless otherwise agreed. 3.2.3 Further Protections Against Defects. Through the presence and observations at the site of such Project Representatives, the Architect shall endeavor to provide further protection for the Owner against defects and deficiencies in the Work, but the furnishing of such project representation shall not modify the rights, responsibilities or obligations of the Architect as described elsewhere in this Agme neri. • 3.3 CONTINGENT ADDITIONAL SERVICES 3,3.1 Making revisions in drawings, specifications or other documents when such revisions are: .1 .eiPnificantiv inconsistent with approvals or instructions previously given by the Owner. including revisions made necessary by significant adjustments in the Owner's program or Project budget; gr .2 required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents_ pxovided Architect did not know of or have reason to know i2f the im.,.pact on suc4 documents dttring-Mrc-p-aratjon of �=,e of such groposed enactments or revisions .3 due t,..-h~6m o _ed e- t.lt-of the r,.. ems f :r. @ to fen we— d ens 11atentional Iy elered_ 3.3.2 Scope Changes. Providing services required because of significant Owner-ggproved changes in the Project including, but not limited to, scoop_ u%. 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.:.3t .wearer Architect's Negffigence or Wrongful Acts NotwithstatrdingMy other provision herein Services performed by thq architect related to Owner-at;oroved changes in the Proiect which arise out of or rgault from the Architect's Negliggnce or Wrongful Acts. or the ne lieaful acts of its Consultants M part of Basic Services and, therefore the Architect shall not charge the Owner for such Sgpdgs 3.3.4 Pfqvidifig . 3.3.S Damaged Work. Providing consultation concerning replacement of Work damaged bar fire or other cause during construction, and furnishing services required in connection with the replacement of such Work. 3.3.6 Defaulting Contractor. lFevidin F,2&rpt m provided in Subparagra2h 3.3.3 ovidi _Z ervices made necessary by the e l e ovi-l�c.-�or' A - - AA - i THE AM R1CM7TRSTnUTF - OF ARCHITECTS, 1735 NEW YORK AVENUE N,W., WASWNGTON,1),C. 20006-5292. WARKNG: Unlicensed phorscopying violates US. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiratiom as norad below, expiration as noted below, expiration as noted Belo—. expiration as noted below, expiration as noted below. expiration as noted below. expiration us noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. Userpoct-amcrlt: b 151-scnsler-hbv5.aia -- 9/5/2003. n1ALicense Number 1011.006, which expires on 10/31/2003. Electronic Format 8151-199.7 9 as expressly declared by the Owner in writin 3.3.7 Extensive Claims. Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the Work unless such claims are predicated upon the Architect's Negligence or Wrongful Acts, or the nep-lieence or wronefiil acts of its Consultants. An extensive number of claims shall mean claimwhich are the result of material Owner changes in the Project scope and not (1)_a part of the plan finalization process (2) a result of coordination required to complete the Contract Documents (3) a result of the Architect's Negligence or Wrongful Acts or (4) a result of the negligence or wrongful acts of its Consultants. 3.3.8 Hearings and ADR. Providing services in connection with a public hearing, a dispute resolution proceeding Ora legal proceeding except where the Architect is party thereto. 3.3.9 , Intentionally Deleted-1 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Programming. -Providing analyses of the Owner's needs and programming the requirements of the Project. 3.4.2 Financial Feasibility. Providing financial feasibility or other special studies. 3.4.3 2gl2M,l Pccviding planning surveys, site evaluations. or ccrnparative studies of prospective sites. 3.4.4 Studies. Providing special surveys; or environmental studies 3.4.5 Future Facilities. Providing services relative to future facilities, systems and equipment. 3.4.6 Existing Conditions. Providing services to investigate existing conditions or facilities or to make -measured drawings thereof. 3.4,7 Existing Drawings. Providing services to verify the accuracy of drawings or other information fumished by the Owner for existing facilities. 3.4.8 ' _[Intentionally deleted.l 3.4.9 rintentionally deleted.] 3.4.10 Providing detailed estimates of Construction Cost. 3.4.11 Equipment Surveys. Providing detailed quantity surveys or inventories of material, equipment and labor. 3.4.12 Operating Costs. Providing analyses of owning and operating costs. 3.4.13 Interior Design. Providing interior design and other similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. 3.4.14 Tenant Improvements. Providing services for planning tenant or rental spaces. A - -AIA-COPYiZl(;HT l997-'IHZAMERIC7ZNnT9TM= OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration m noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration w noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Docurutent: b 15 1-gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which -expires on 11/I/2003. Electronic Format B151-1997 �- 10 i+ ' 3.4.15 Inventories; Appraisals. Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.16 - Reproducible Record Drawings. Preparing a set of reproducible record drawings showing significant changes in the Work made during construction based on marked -up prints, drawings and other data furnished by the Contractor to the Architect unless the need for such reproducible record drawings is the result in whole or in part of errors or omissions in the Architect's Construction Documents the Architect's Negligence or Wrongful Acts or the negligence or wrongful acts of its Consultants. 3.4.17 Equipment Testing, Balancing and Training. Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance, and consultation during operation. 3.4.18 Services Beyond Completion. Providing services aftef issuanee te the OwneF ef4he-final GeAifioate f F paz ,.,,o„t the able„ee e f a final Genif,e to f o.,.,.ne„t ,. a than si 60 days after the date of Substantial Completion of the Work. 3.4.19 Additional Consultants. Providing services of consultants other than those included in the Project Description and Scope of Services attached hereto as Exhibit "A". €er , Eivil. .md e'er pantie sre€ the- 3.4.20 (Intentionally deleted.l 3 4 21 Negligence or Wrongful Acts Notwithstanding anXthing to the contrarpressed elsewhere in Article 3, no architectural services made necessary,, in whole or in partby the Architect's Negligence or Wrongful Acts. or the negligence or wrongful acts of its Consultants shall be compensated as an Additional Service under this Agreement. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 Information. The Owner shall provide full necessary and Complete information in a timely manner regarding the requirements for and limitations on the Project, including a written 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. The Owner shall furnish to the Architect, within 15 days after receipt of a written request, information necessary and relevant for the Architect to evaluate, give notice of or enforce lien rights. However provided the Owner has met its progress payment obligations under this Agreement the Architect shall with respect to itself and its Consultants and sub -consultants assure that the Project is lien free and shall provide lien releases for the Architect and its Consultants and sub - consultants for every progress payment. 4.2 Project Budget. The Owner and General Contractor shall establish and periodically update in writing an overall budget for- the- Project -Dud Zet, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 4.3 Owner's Representative. The Owner sh" may designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such designated representative shall render decisions in a timely manner pertaining to documents submitted by the Architect in order to avoid unreasonable delay in the Architect's services. 4.4 Scope of Services. The Owner has provided a Scope of Services and a Program in Exhibit "A". Further, upon the reasonable request of the Architect and with the Owner's prior approval. the Owner shall furnish surveys to describe 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; a OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: bl5l.gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on 11/l/2003. Electronic Format B151-1997 _= ll !� nevl' adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and neeessaFy data with fe&peet4e location of existing buildings related to a Project benchmark, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths for sanitary and storm drain pipes, manholes, and related devices, and other utilities that can be determined without excavation. All the information on the survey shall be referenced to a Project benchmark. 4.5 Geotechnical Report. _The Owner shall furnish the services of geotechnical engineers when such services are reasonably 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 tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate recommendations. The Architect shall review and comment on, in writing,, the data and reports resulting from such Architect -requested services and acknowledge in writing to the Owner that the geotechnical engineers addressed the issues requested by the Architect to be addressed The Architect shall not be liable for the data or reports prepared by the Owner -retained geotechnical engineers. However. L i S a-wcLre,?2i74v-k- 4.6 Owner's Consultants. The Owners all furnish the services of consultants other than those designated in Paragraph 4.5. or listed in Exhibit A. when such services are reasonably requested by the Architect, afw are reasonably required by the scope of the Project and are not otherwise retained by the Architect. 4.7 Testing. The Upon the Owner's prior written approval and in addition to the engineering and special Consultant work required herein, the Owner shall may furnish structural, mechanical, and chemical tests; tests for air and water pollution; tests for hazardous materials; and other laboratory and environmental tests, inspections and reports required by law or reasonably required by the Contract Documents. 4.8 Legal, Accounting and Insurance Services. The Owner shall,, to the extent deemed necessary by the Owner. furnish all legal, accounting and insurance services that may be necessary at any time for the Project to meet the Owner's needs and interests. Such services shall include 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 Notice of Defects in Services, Information, Surveys and Reports. ate Unless otherwise agl:eed to in writing the services, information, surveys and reports required by Paragraphs 4.4 through 4.8 shall be furnished at the Owner's expense, and the Architect shall be entitled to reasonablyrely upon the accuracy and completeness thereof. However, if the Architect knows or has - reason to know of deficiencies or defects in such services information surveys and reports it shall so notify the Owner in writing 4.10 Notice of Fault or Defects in Contract Documents. The Owner parties shall provide prompt written notice to the Arshitest other Dam -if the -Owner it becomes aware of any fault or defect in the Project, including any errors, omissions or inconsistencies in the Contract Documents and the Architect's Instruments of Service. 4 11 Article 4 Items Furnished Oniy if Requested Ngt_withstandine anything to the contrary in this Article 4 the Owner shall be required to furnish information or services described in -this Article 4 only to the extent that such information or services are both reasonably required and actually requested by the Architect in writing in order to perform the Architect's Services under this Agreement. 4 12 Approval of Certificates. 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 ten L10 i days prior to execution. ARTICLES CONSTRUCTION COST 5.1 DEFINITION AMER ICANINSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: bl5l-gens1er-hbv4.aia -- 8/22/2003. AIA License Number 1012006. which expires on 1111/2003. Electronic Format B 151-1997 12 5.1.1 Construction Cost. The Construction Cost shall be the total cost or, to the extent the Project is not completed, the estimated cost to the Owner of all elements of the Project including, but not limited to, all elements of the Project designed or specified by the Architect. relocation and installation of all off -Site utilities: all work indicated on civil engineering plans: CalTrans related work: art -work- on -Site utility installation deposits and engineering fees: construction of all improvements within the Project boundaries, excluding tenant improvements: interior finishes for the hotel: Project signage• hazardous material or waste abatement and remediation including, but not limited to oil well abandonment, securily, telephone_, cable parking equipment and other similar s ecialiy systems• and the Owner's contractor's overhead,, profit insurance premiums taxes and bonds. If the Construction Cost exceeds the Project Budget the Architect shall proceed as indicated in Paragraph 2.3.3. 5.1.2 Inclusions. The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and Contractor and equipment designed, specified, selected or specially provided for by the Architect, including the costs of management or supervision of construction or installation provided by a separate construction manager or contractor, plus a. reasonable allowance for their 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. 5.1.3 Exclusions. Construction Cost does not include the compensation of the Architect and the Architect's consultants, the Owner's Engineering Consultants. the costs of the land, insurance, rights -of -way and financing or other costs that are the responsibility of the Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 No Warranty of Construction Costs; Project Budget Compliance. dens Subject to the provisions contained in Subparagraph raph 5.2.2 below. evaluations of the Owner's Project budget, Budget. the preliminary estimate of Construction Cost and detailed estimates of Construction Cost, if any, prepared by the Contractor Afehitect, represent the "its-gntractor's judgment as a design pfofe&4ffA-g2nYaLtgr 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 not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Architect. However if the Construction Cost exceeds the Project Budged the Architect shall proceed as indicated in Subparagtaph 2.3.3. 5.2.2 Fixed Project Budget. Ne fixed lifnit ae-9 Ceensuquet-in-a Gest shall be established as a eendition of this Agr-eeme t by the fumishing, proposal oF establishment of a J?Fqjerst budget, unless sueh fixed limi; has been agreed tapen in mAing and signed by the ^"4'es hereto rThe Project Budget as adjusted from time to time by the Owner in writing during the design development and construction document phase shall upon approval of and adjustments thereto by the Owner constitute a fixed PrQj ct Budget Once such a fixed lia+4 Project Budget has been established, the Architect, with the Owner's prior written approval, shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to. be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids as may be necessary to adjust th-t Construction Cost to comply with the fixed limit. Fixed -limits, if any, Project Budget. The Project Budget shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction ifsproved by the Owner in writing. 5.2.3 Delay in Bidding. If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner, the fixed liwA Project Budget Cost. shall be adjusted to reflect changes r, •f any. in the general level of prices in the construction industry. 5.2.4 Exceeding the Project Budget. If a fixed Omit Project Budget of Construction Cost (adjusted as provided in Subparagraph 5.2.3) is exceeded by the lowest bona fide bid or negotiated proposal, as provided hit Paragraph 2.5.2. the Owner shall do one or more of the following: .1 give written approval of an increase in such fixed Iiff4t; Project Budget: OF ARCHITECTS, 1735 NEW PORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission, of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Docur=tent: b 151-gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on 11/1/2003. Electronic Format B151-1997 13 / Y1.^ 4AA &- .2 authorize rebidding or renegotiating of the Project within a reasonable time; .3 terminate in accordance with Paragraph 8.5; or .4 cooperate in revising the Project scope and quality as required to reduce the Construction Cost. 5.2.5 Project Budget Compliance. If the Owner chooses to proceed under Clause 5.2.4.4, the Architect, without additional compensation, shall modify the documents for which the Architect is responsible under this Agreement as necessary t® comply with the fixed Project Budget. , if entitled to eempensatian in aeeer-d—anee with this AgFeement feF all serviees per-fefni-Add loy.h.let-heri- A-r.- not the.-Geffitpaction Phase is semrnensed: ARTICLE 6 USE OF ARCHITECT'S INSTRUMENTS OF SERVICE 6.1 Instruments of Service. , ' the A re-hileet's easultants, shall be deemed the authors and eymer-s of their- law,statutory and otham ed rights, in6luding eep5gFightsT The Architect's Instruments of Service including drawings and spec'ftnc are suigct to_ the copyright of the Architect; however. the PrQiect i� the QroQeuty of the Qwner. and the, Architect may not use the Instruments of Service therefor for anypurpose not relating to the PrQiect without the Owner's written consent The Owner shall be furnished with one complete set of reproductions of the drawings and specifications in CAD format electronically and on disk Provided the Owner has paid all undisputed amounts due under this Agreement. all Instruments of Service shall be the trope= of the Owner who may use them without the Architect's permission for any nose relating to the Project including but not limited to additions to or completion of the Project utilizing another architect or consultant at the Owner's own risk and liability. The Architect and Owner agree that no paM other than the Owner is an intended b neficiary of the Instruments of Service However, while the Architect shall be liable for all of its documents referenced herein it shall not be liable for any subsequent design professional's modifications to such documents unless authorized by the Architect. Further in no event will Architect be liable for use or modifications of such documents for use on other projects except as' necessary_for the Owner or Owner's contractors to establish connections to this Project 6.2 License. Upon execution of this Agreement, the Architect grants to the Owner a nonexclusive license to reproduce the Architect's Instruments of Service sek4y for purposes of constructing, using and maintaining the Project, provided that the Owner shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. The Architect shall obtain similar nonexclusive licenses from the Architect's consultants consistent with this Agreement. > to make ehanges, 6.3 Contractor Reproductions. , no etheF lkem5e OF Fight shalI be deemed gFanted or- implied unde-.4u.- A gFeement. The Q-Atner- shall not assign, delegate, sublieense, pledg El OF OtheFWiS-O tfaftSfef-aRy- _U Owner shall be permitted to authorize the Contractor, Subcontractors, Sub -subcontractors and material or equipment suppliers to reproduce applicable portions of the Instruments of Service appropriate to and for use in their execution of the Work by license granted in Paragraph 6.2. Submission or distribution of Instruments of Service 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 reserved rights of the Architect and the Architect's consultants. The Owmer- shall net use the lfistftunients of Set -Arse feF AltUrsild A DOCUMENI B 1517MBREVIAAGREEMENT OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b151-gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on 1 l/l/2003. Electronic Format B 151-1997 14 0-W v 6.4 Electronic Versions. Prior to the Architect providing to the Owner any Instruments of Service in electronic form or the Owner providing to the Architect any electronic data for incorporation into the Instruments of Service, the Owner and the Architect shall by separate written agreement set forth the specific conditions governing the format of such Instruments of Service or electronic data, including any special reasonable limitations or licenses not otherwise provided in this Agreement. ARTICLE 7 DISPUTE RESOLUTION 7.1 MEDIATION 7.1.1 ADR. See Exhibit "G" entitled "Alternative Dispute Resolution" or "ADR" which is incorporated herein b this reference.of or- related to this Agr-eefnepA shall be subieet to modi-Hea as a condition pfeeedent to aFbitfafion or- the institution of legal or- equitable pFoeeedings by eithef flager- r-elates te- somply with the lien notiese oF filing deadlines pFier- to Fesolutien of the fnaaer- by fnediatior,0- by -A-; [Intentionally deletedl 7.1.2 , disputes and other- ffiattef!s in —ediation m4iieh, unless the pat4ies mutually agree ethef:wise, shall be in aracer-dance with the G tpuletion Mediation R---- Amer-iean Ar-bitFatien Association euFfently in effeei. Request fer- mediation shall be filed- in ;.A.wki-ng +11—+ Nf� t , -stRd -fel tFation but, in such ev— mediation shall pForee . d in advanee of wbitfaiion or- legal er- equi;able be stayed pending mediation fef a pe frem the date of filing, unless stayed for- a 18flgeF PeFied b;L-agFeefnent o"" Pai:ties er- OUA erdeF. [Intentionally deleted] 7.1.3mediater-'s fee and any filing fees equally. T-hp MAdk4tion sh-1 I t— 1,-JA ;- -L- -I--- —U-FA thp PFejeet is loeated, wiless another- le-r-atien is mutually agreed upon. �ehed in fnediatien shall be settlement agFeements in any eewt haying jufisdietien the ° [Intentionally deletedl 7.2 ARBITRATION 7.2.1 Any elaim, dispute or- ethef maner- in question ar-ising out of or- related to this AgFeement- shall be su�eet to afbitiuti Prior- te afbitFatien, the paAies shall efideavoF te r-eselve disputes by mediation in aecer-danee with-lPar-agraph 7.1. [Intentionally deleted 7.2.2 Claims, disputes and etheF fnaaeFs in question between the paFties that afe net r-eselved late ffiediation Aa"e decided by afbitr-ation which, unless the paFties mutually agfee other -wise, shall be in ae-so-rd-awree A.A.46� the ---- - ---1 - -r-bitFatien Rules efthe AmeFiea- . A ffb4atioft Asseraiation euFrentiy in effect. The demand feF aFbitratien shall be filed ---. m-king WM the ethe . ^.,,' «^ tt : " ^_o « a with the Afner-isan Ar-bitfatien Asseeiation.jIntentionally delete dl 7.2.3 , dispute.--e has ;-141SP-A. 144 no em,,ent shall the demand feF ar-bitfation be made aftef the date when institution of lega4- or- equitabie-pFeeeedings-b;-I,-;-P.H- . [Intentionally deletedl 7.2.4 fnanneF, an -additional per -son eF entity not a p", to this AgFeement, emsept by wr-itten ------ this Agr-eement and signed by the OwneF, Ar-ehiteet, and any ethef peFson er- entity sought te be- o-ar-bWatioa involving an additional pefson or- eatity shall nAt eensfitiate eensent to aFbitfatien ofany elaim, dispute of ethef KM - net described in -the --itten eensen; er-with a peFsen or- entity net fiamed 9r. d-e-seffibed thlff@iR. Ae for-egoing agreement te- ar-bitfate and etheF agFeements to ar-bitfate with an additional per -son or- enfity duly eonsented te_L-, paltiestethi, ha44- jlntentiona ly deletedl A A - OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Docurr-sent: b 151-gensler-hbv4.aia — 8/22/2003. AIA License Number 1012006, which expires on 1 l/l/2003. Electronic Format B151-1997 15 7.2.5 with appliesable law in any raeuft ha sdi^tion tt, [Intentionally deletedl 7.3 CLAIMS FOR CONSEQUENTIAL DAMAGES No Waiver. , „^.t,.'^ to ffnination in .,,.,., rAwneo;uitt, A,.tiele 8. Any waiver of consequential damages in this Agreement or the Contract Documents is deemed deleted. ARTICLE 8 TERMINATION OR SUSPENSION 8.1 Termination for Non -Payment. If the Owner fails to make payments of undisputed amounts to the Architect in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at the Architect's option, cause for suspension of performance of services under this Agreement unless the Architect has failed to perform in accordance with the terms of this Agreement: If the Architect elects to suspend services due to non-payment of undisputed amounts, prior to suspension of services, the Architect shall give seven days' written notice to the Owner. In the event of a suspension of services due to non-payment of undisputed amounts, the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services, the Architect shall be paid all sums of undisputed amounts due prior to suspension and any reasonable expenses directly related to the Project incurred in the interruption and resumption of the Architect's services as approved oved in advance in writing by the Owner. The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. 8.2 Suspension. If the Project is suspended by the Owner for more than -N 99 consecutive days, the Architect shall be compensated undiluted amounts for services performed prior to notice of such suspension. When the Project is resumed, the Architect shall be compensated for reasonable expenses incurred in the interruption and resumption of the Architect's services. The Architect's fees for the remaining services and the time schedules shall m_a�Lbe equitably adjusted as approved in advance in writing by the Owner. 8.3 Termination for Suspension. If the Project is suspended or -the Architect's services are suspended for more than 90 consecutive days, the Architect may terminate this Agreement by giving not less than seven days' written notice. 8.4 Termination for Breach. 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. 8.5 Termination for Convenience. This Agreement may be terminated by the Owner upon not less than seven days' written notice to the Architect for the Owner's convenience and without cause. 8.6 Termination ror Convenience Compensation. In the event of te.-mination not the fault of thte Architect, the Architect shaii be compensated undisputed_ amounts for services performed prior to termination, together with reasonable Reimbursable Expenses then due. . 8.7 Cooperation After Termination. Tefmination r. e ^aa:t: n to compensation for- the sentiees ef the Agr-eement the AFehiteet's anticipated profit en the value ef the ser-viees fiat per-femed by the AfAit In the event of any termination under this Article 8. the Architect consents to the Owner's selection of another architect of the Owner's choice to assist the Owner in any way in completing or resolvingthe he Project. Upon the payment of undisputed amounts due the Architect hereunder, the Architect agrees to provide any Instruments of Service in hard copy and manipulative electronic format including drawings and specifications prepared up to the date of termination requested by the Owner in connection with the completion or resolution of the Proiect and consents to and authorizes the making of any reasonable changes to the design of t1he Project by the Owner and such other architect as the Owner may retain which changes shall be made at the sole risk of the Owner or Owner's other -A A -1997-THEAMERICANINSTITUIE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b 15 1 -gensler-hbv4. aia -- 8/22/2003. AIA License Number 1012006, which expires on 11/l/2003. Electronic Format B151-1997 = 16 architect without liability to the Architect Any services provided by the Architect which are requested by the Owner after termination shall be compensated by the Owner under a new agreement. ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 Applicable Law. This Agreement shall be governed by the law of the location fthe ^h::t 9.2 Defined Terms. Terms in this Agreement shall have the same meaning as those in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement and modified by the Owner for this Project. 9.3 Statutes of Limitation. Causes A-f action between Oie i3afties to this Aefeement veilaining to aets or- failtifes to art shall be limitations eefmnearve to F:un any later- than the date when the Architeet'- - ' i ubstantially . The statutes of limitation for the Jurisdiction where the Project is located shall apply without modification. 9.4 Waiver of Subrogation. To the extent , of actual recovery of insurance Qroceeds the Owner and Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damagesm—Texcept such r-ighis as they ma have ie the pfeeeed&of-sueh insufance as -set fbRlh ;-- the edition of AIA Daeument A201, General Conditions of the CepAyaet for Construction, GuFreat as of the date of this Affeeffient. The Owner or the Architect, as appropriate, shall require of the contractors, subcontractors, consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated herein. 9.5 Binding Agreement; Assignment. The Owner and Architect, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither the Owner nor the Architect shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to an institutional lender providing financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under this Agreement. The Architect shall execute all consents reasonably required to facilitate such assignment. 9.6 Integrated Agreement. This Agreement represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect. 9.7 No Third -Party Beneficiaries. 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 Hazardous Materials. Unless otherwise provided in this Agreement, the Architect and Architect's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials or toxic substances in any form at the Project site. However. the Architect shall immediately report to the Owner the presence and location of any_hazardous material of which it becomes aware. 9.9 Promotional Materials. The Architect shall have the right upon prior written consent of the Owner, which consent shall not be unreasonably withheld, to include photographic or artistic representations of the design of the Project among the Architect's promotional and professional materials. The Architect shall be given reasonable access to the completed Project to make such representations. However, the Architect's materials shall not include the Owner's confidential or proprietary information_ The Owner considers all information concerning this Project to be confidential and roprietary unless otherwise expressly indicated to the Architect in writing. ' The Owner shall ma -provide professional credit for the Architect in the Owner's promotional A OF ARCHITECTS, 1735 NEW YORK AVENUE N.W , WASHINGTON, D.C. 20006-5291 WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b 15l-gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on I IJI/2003, Electronic Format B 151-1997 17 materials for the Project. 9.10 Certificates. If the Owner requests the Architect to execute certificates, the proposed language of such certificates shall be submitted to the Architect for review at least 14 days prior to the requested dates of execution. The Architect shall not be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of this Agreement. ARTICLE 10 PAYMENTS TO THE ARCHITECT 10.1 DIRECT PERSONNEL EXPENSE Direct Personnel Expense. Direct Personnel Expense is defined as the direct salaries of the Architect's personnel (emplo ees) engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, si*eh as including, but not limited to employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, employee retirement plans and similar contributions and benefits Persons found not to be the Architect's personnel (employees) because Direct Personnel Expenses are not paid by the Architect for them shall be considered independent contractors for billingpurgoses under this Agreement. 10.2 REIMBURSABLE EXPENSES 10.2.1 Reimburseable Expenses. With the exceea ion of the reproduction of the Construction Documents at the written request of the Owner (which Owner -request need not include a dollar limitations the Architect shall not be reimbursed for any individual Reimbursable Expense item costing, in excess of one thousand dollars ($1 000 00)without the Owner's rp for written approval. The Owner must approve any such Reimbursable Expenses in writing prior to the Architect inctu-rin such uch expenses or the Owner shall not be obligateu topay for such unapproved Reimbursable Expenses. Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Architect and Architect's employees and consultants directly related to the Project, as identified in the following Clauses: -110rp4 i qq Un It ea�r`v- vi Y '1 �rv'.ej ht%�r i .1 out-of-town travel and subsistence_, and electronic communications authorized by the Owner in writing in advance; .2 fees paid for securing approval of authorities having jurisdiction over the Project; .3 reasonable reproductions, plots, standard form documents, postage, handling and delivery of Instruments of Service; .4 expense of overtime work requiring higher than regular rates if authorized of the overtime work in advance by the Owner in writing; .6 renderings, models and mock-ups requested by the Owner; .6 expense of professional liability insurance dedicated exclusively to this Project or the expense of additional insurance coverage or limits requested by the Owner in excess of that normally carried by the Architect and the Architect's consultants; .7 reimbursable expenses as designated in Article 12; .g etheF , fflila_ difeet Pr-ejeet related a ndit fee all other expenses are deemed compensated for by the payment of Basic and Additional Services unless authorized in advance and in writing by the Owner as reimbursable expenses. 10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 10.3.1 Initial Payment. . not applicable OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b151-gensler-hbv4.aia — 8/22/2003. AIA License Number 1012006, which expires on 11/1/2003. Electronic Format B 151-1997 �- 18 �'w &4� 10.3.2 Monthly Payments. Subseque" ayments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service, on the basis set forth in Subparagraph 11.2.2. 10.3.3 Time Extended. If the time initially established in Subparagraph 1 1.5.1 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: 11.5.1. 10.3.4 Deleted Portions of the Project. When eempensation is based on e^tage of Ceftstruetr^^ Qs i,alf any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Subparagraph 11.2.2z based on (I the lowest bona fide bid of --fiegetiated proposal, @F (2) if ne such bid or. proposal is r-eeeived, the fnest ------- estifna4e let—ailedestimate e f GenstFuction Cost Fr- such ..ef4i....s of the Pr-ejeet_ 10.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES l '� Additional Services and Reimburseable Expenses. its Undisputed pa ents on account of the Architect's Additional f^r Reimbursable Exnenses improved in writing by the OwnPT• in advance shall be made monthly upon presentation of the Architect's statement of services rendered or expenses incurred. 10.4.1 Prior Written Approval and Monthly Billine. The Architect shall present each month astatement of Additional _Sen is s if any and Reimbursable Expenses if any, incurred for the preceding month The Architect's right to payment for any Additional Services shall be conditioned on the Architect obtaining written authorization from the Owner for such Additional Services. Further. except as provided in Subparagraph 10 2 1 with respect to Owner -requested reproduction of Construction Documents the Architect's right tQnavment for any individual Reimbursable Expense item costine in excess of one thousand dollars 1 00.00 shall require written authorization from the Owner. 10.6 PAYMENTS WITHHELD No Payment of Contractor Penalties or Liquidated Damages. 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 is liable for under this Agreement or for which the Architect has been adjudged to be liable. 10.6 ARCHITECT'S ACCOUNTING RECORDS Project Records: Audits. The Architect shall keep and maintain full. complete and detailed records of allLgntract Documents and Proiect records inciti(finct but not limited to. drawinas. specifications, as -built drawlrlcis�. all records of time spent and Reimbursable Expenses incurred during the term of this Agreement The Architect shall allow the Owner or the Owner's representatives to inspect and audit during business hours the Architect's books accounts and records pertaining to the Project and its Services on the Project and all direct costs materials supplies labor and other items of costs as invoiced AdditionallyLReGOFd f R__e_-mbHFSable Expenses aPA-_recgrdUf expenses pertaining to Additional Services and services performed on the basis of hourly rates or a multiple of Direct Personnel Expense shall be available to the Owner or the Owner's authorized representative at mutually convenient times and shall be retained by the Architect for a period often (10) years after final payment. Provisions of this Paragraph shall be applicable to the books and records of all Consultants subconsultants and subcontractor Derformine Services for the Architect and the Owner and the Architect shall include such provisions in ally subcontracts. Consultant agreements and other agreemen ARTICLE 11 BASIS OF COMPENSATION A OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Docurment: b 15 1 -gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on 11/l/2003. Electronic Format B151-1997 19 EAAe- The Owner shall compensate the Architect as follows: 11.1 Initial Payment. An Initial Payment of none Dollars ($ -0- ) shall be made upon execution of this Agreement and credited to the Owner's account at final payment. 11.2 BASIC COMPENSATION 11.2.1 Stipulated Sum. 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.- the all inclusive fixed fee Stipulatgd Sum entered as the "Total Basic Compensation" amount in Subparagraph 11.2.2, below. (Insert basis of compensation, including stipulated sums, multiples or percentages, and identify phases to which particular methods of compensation, apply, if necessary) 11.2.2 Monthly Payments Based Upon the Percentage of Completion. 'eFmere s Compensation is based on a stipulated sum_- Monthly progress payments for Basic Spercentage of Gonstmetien-Q�, ervices based on a percentage of completion basis for reach phase of the Basic Services shall total the following percentages of the total Basic Compensation payable: (Insert additional phases as appropriate) Schematic Design Phase: $125,245 Design Development Phase: $318,765 per-eent 44) Construction Documents Phase: $567,100 pefeefA 9/.) Bidding or Negotiation Phase: $ 53,9UU persenk Construction Phase: $226,190 pefsen�t- %1 Allowances: $ 47,000 Total Basic Compensation ("Stipulated Sum"): One Million Three Hundred Thirty -Eight Thousand Two Hundred Dollars j$1.338.200 for one hundred percent (100%)_for the Architect's Basic Services. 11.3 COMPENSATION FOR ADDITIONAL SERVICES 11.3.1 Additional Project Representation by Architect's Employees. For Project Representation Beyond Basic Services, as described in Paragraph 3.2, compensation shall be computed as follows: See Exhibit "K" (Ootional Additi4nal_Services listed in the Stipulated Sum Matrix) and Exhibj "H"_(Architect's HQuIv Rate chedule),attached hereto. 11.3.2 Additional Services by Architect's Employees, 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: (Insert basis of compensation, including rates and multiples of Direct Personnel Expense for Principals and employees, and identify Principals and classify employees, ifrequire d. Identify specific services to which particular methods of compensation apply, if necessary) See Exhibit "H" - Architect's Hourly Rate Schedule, attached hereto. 11.3.3 Additional Services by Independent Consultants. For Additional Services of Consultants, and independent Consultants both for whom Direct Personnel Expenses are not paid by the Architect including additional , mechanieal and elee;Fical services and those provided under Subparagraph 3.4.19 or identified in Article 12 as part of Additional Services, a ale of ( )times the amounts billed to the Architect for such services plus ten ercent (10%) of such amounts. (Identify specific types of consultants in Article 12, if required.) 11.4 REIMBURSABLE EXPENSES Reimbursable Expenses. 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 one zero ( 1,10 ) times toe that portion of expextses incurred by the Architect, the Architect's employees, and consultants and independent Consultants attributable to and directly related to the Project. OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: bl51-gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on I I/l/2003. Electronic Format B 151-1997 20 �vinn 1,� 11.5 ADDITIONAL PROVISIONS 11.5.1 Time Extended; Remaining Basic Services. if the Basic Services covered by this Agreement have not been completed within t ) fnenth_ of the date heFeof, in accordance with the Project Schedule attached as Exhibit "C". through no fault of the Architect, extension or in no way as a result in whole or in part of the Architect's Negligence or Wrongful Acts. or the neglfgence or wrongful acts of its Consultants. the Architect's remaining services beyond that time ("Remainimg Basic Servigu shall be compensated the' amounts already detailed in this Agreement plus an amount to reflect an increase in the consumer price index if any, between the effective date of this Agreement and 'the end of the time period indicated above to compensate the Architect for inflation for am Remaining Basic Services Such adjustment for inflation must be agreed to by the Owner in writing prior to the Architect continuing to provide the Remaining Basic Services and once all the other requirements in this paragraph are met Under no circumstances shall the Architect be entitled to be paid for the same services as both Basic Services and Remaining, Basic Services. 11.5.2 Payment Schedule. Payments of undisputed amounts are due and payable th& ( 30 ) days from the date of the Architect's invoice. its Undisputed amounts unpaid foL five ( 45 ) 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. (Insert rate of interest agreed upon.) not applicable (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Architect's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Specific legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) 11.5.3 Hourly Rates. The rates and multiples set forth for Additional Services shall be adjusted in accordance with Exhibit "H% Architect's Hourly Rate Schedule the ^ ^^^t sal I - tices of the A n hire t. ARTICLE 12 OTHER CONDITIONS OR SERVICES (Insert descriptions of other services, identify Additional Services included within Basic Compensation and modifications to the payment and compensation terms included in this Agreement.) 12.1 Key Personnel The Architect shall assign the Key Personnel and Employees identified in Exhibit "D" to the Project. Such Key Personnel and Employees shall devote as much of their time to the Project as maybe appropriate to and consistent with full timely performance of this Agreement by the Architect The Architect agrees that the Key Personnel and Employees shall not be removed from their responsibilities on this Project without the written consent of the Owner except in the event of death, disability or departure from the employ of the Architect In the event however, that Key Personnel and Employees should unavailable due to Project suspension death disability or departure from the employ of the Architect. any subsequent Kev Personnel and Employees selected by the Architect for this Project.must b!; approved in advance by the Owner in writing. Such approval by the Owner shall not be unreasonably withheld. 12.2 Insurance The Architect shall provide the required insurance indemnity and notice as detailed in Exhibiit__"_B" to this Agreement. 12.3 Exhibits. This Agreement incorporates by reference, the entire text of the following Exhibits: Exhibit "A" -- Project Description and Scone of Services Exhibit "B" -- Insurance. Indemnity and Notice Requirements Exhibit "C" -- Project Schedule Exhibit "D" --Architect's Key Personnel Exhibit "E" -- r .__ JA9m'­rFyrm Exhibit "F" -- Project Budget c AIA DOCUMENJ B 15 1 -A - A OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b 15 1 -gensler-hbv4.aia -- 8/22/2003. AIA License Number 1012006, which expires on 11/1/2003. Electronic Format B 151-1997 �- 21 - 9/09/2003 14:43 FAX 213 620 8816 ALLEN, NATKINS WJuua Exhibit "F" -- Proiect Budget ExhM "G" - Altematiye Dispute Resolution Exhibit "H" -- Architect's Hourly Rate Schedule Exhibit "I" - intentionally Blank Exhibit "J" - Environmental J(;) List Exhibit "K" - Stltulated Sum Matrix 12 4 Repre3entati0ns/W8rr3ntie3The Architect hereby represent% and Promises to the Owner that the Architect is financially solvent-an-cL gossesses s lUcieat experience licenses authority, personnel and working capital to complete the Services required hereunder in the applicable iurisdictions• that the Architect has mi ited the site for the Rzgject ,=13 farniliari7ed itself wit the Legal Reouiretnents and general eonditious under which the Services required hereunder are to be Performed: and that the Architect shall correlate sic with the agrggMrnx and Construction Documents 12.5 Time Limits The Architect has assumed no hourly or ti a li 'ts for its Basic Service beginning with Schematic Design through Project close-out and the Architect assumes no hourly or time limit an Proiect Site observation services durin construction except as otherwise expresso stated in F.Xhibits "A" and "K" with respect to the Construction Administration Phase. 12 6 Sequencing Pursuant to the Owner's dir"tio-g-thc Architect has established its fee based upon a generally traditional seauence of design and approval activities The Arcb4eg may analyze i ltemative approaches to advance the desigp process and facilitate the con faction Arogrecs consistent with the overall Protect Schedule If alternative scenarios are explored. precept its alter:t,atiyes..tta.the Owner for written aoprov be or; jj&_Ahgj=bye approach can be utilised. 12.7 Billing The Architect shall bill on a monthly basis in proportion to jU Services perfo=d for eaehphase ofBasie Service The Architect anticipates that th Qwn u aL be reviewing and authorizingpaytnent to the Architect through the Owner's accounting�office or through some other process as indicated by the Owner in writing The A[ hired will present its haygicec with all mQuired back -Ilo includinz lien releases, no later than the first of each moMb with DA)Micnt of undisputed -amounts to be made to the Architect as rovidcd in Sub 12.8 Preliminary Title and Environmental Reports The Preliminary Thle_ReDort dated December 24. 2002 from Old Renublic Title Company i_'Title Report") for the Project Site and a list of the environmental rcportWEnvironmental Reports" -available for the PZoiect Site is attached hereto as Exhibit "J" The Owner and Architect a_4knowlydge that the pulpose of referring to the Title Report and1providing the list of the Envirgntriclatal RelQrts as an Exhibit to this Agreement is to provide the Architect with documents and access to documents that contain information that may limit or impact the design or construction of The Pr iect The Amhiteci t shall give appropriate consideration to the content of the Title Report and Environmental Reports during the erfortnance of its Services hereund The Architect may reasonably rem on the Title Report and Environmerlta Tteports The Arc itectshall not be liable for the content of or errors or omissions in iheTitle Report or Environmental Reports_ However, if the: Architect is aware or knows of deficiencies or.defects in these rgpojU. the Architect shall notify the Owner in writins' o uch efficiencies r defects_ 12.9 Confidentiality. The„-49-h mil, Dat disclose nr permit the disclosure of any confidential information except as requ IbcBerfg=ance of this Agreement during the performance of this Agreeniquit a d for ten (10) years subsea en -to its°termination which confidential information concerns the Owner's c;oerajgns_ activities business affairs as well as all such information pertaining to the Owner's stt si iaries affiliates and venture members The Architect shall require the sarrt confrdentialily of its CgMS3jh=tL=d subcontractor. 12.10 Rules and Regulations All rules and regulations in effect at the Project or access thereto regarding passUbadges lists of employees, safety and conduct shall be strictly observed by the c it ct and its Qersonnel employees Consultants subcontractor% and subconsultants. 12.11 Compliance with Law/Safety Program. The Architect hereby agrees that it W1 (a) comraLy with allLeeal R�guirement%_ anti (b)(b) begmMonsl1r. for its own safetvpmeTam and compliance with all applicable Occupational SaRgy and Health Administration rules and regulations. 12.12 EJc ual Employment. The Arc 'test shall not discriminate in the hiring of its personnel or in its Consultants, subeonsultants and subcontractors on account of race color religion sex or national origin and shall abide by al fede al and state eaual�e ployment lawn and regularions in effect regarding such hiring A DOCUMENT E115 1-AHBREVIAMD- - OF ARCHITECTS, 1735 NEW YORK AvENLIE N.W , WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopyingviolates U.S. eopytighE laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AiA and can be reproduced without violation until the date of expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below, expiration as noted below, User Document, b151- gensler-hbv5.aia - 9/9/2003. AIA License Number 1012006, which expires on 10/31 /2003. P-lectronic Format B 151-1997 12 13 Governing Law. This Agreement snail be governed by and interpreted in accordance with the laws of the State of California. 12.14 Survival Any and all warranties provisions rights and obligations of the parties herein described and agreed to and that are to be performed subsequent to the termination of this Agreement shall survive the termination of this Agreement. 12.15 Progress During Dispute. In the event of any dispute between the Owner and the Architect, the Architect shall proceed with the performance of its obligations under the Contract Documents in accordance with the Project Schedule. with reservation of all rights and remedies the Architect may have at law or in equity. The Owner will continue to make payments of undisputed amounts in accordance with Article 9 of the General Conditions. 12.16 Owner's Approvals Whenever the consent approval or agreement of the Owner is required under any of the Contract Documents such consent approval or agreement to be effective must be in writing The Architect shall request such consents. approvals and agreements in a timely manner so that completion of the Services or construction work will not be delayed. Any costs incurred by the Owner as a result of the Architect's Negligence or Wrongful Acts including but not limited to the failure to make timely request's for the Owner's consent, approval or agreement shall be borne entirely by the Architect. 12.17 Execution Neither the Owner nor the Architect shall have any_rights or obligations with respect to the terms and conditions contained in this Agreement -unless and until this Agreement has been executed by the Owner and the Architect, 12.18 Notices All notices or demands of any kind which either l2arty hereto may be required or desire to serve upon the other under the terms of the Contract shall be in writing and shall be served upon such other party by personal service (which may be by private messer►&r or air fr'eiai Courier)or bkmailing a copy thereof try certillud or registered mail,postage prepaid. with reiuni- receipt requested to the addresses set forth on the first page of this Agreement Notwithstanding anything herein or elsewhere in the Contract Documents meeting minutes shall not be considered valid notice p-ursuant to this Agreement and this Paragraph In case of delivery of notice by mail such delivery shall be deemed complete on the actual date of delivery as shown by the addressee's certified or registered mail receipt or at the expiration of the third (3rd) business day following the date of mailing. whichever occurs first. In case of delivery by personal service such delivery shall be effective on the date of such delivery The persons and addresses to which notices and demands shall be delivered may be changed from time to time by notice served as provided herein by either pa= upon the other. Failure to accept a notice shall not affect the validity thereof 12.19 Instrument Execution..In connection with the financing of the Project the Architect and all of its consultants and others performing the Services must execute and deliver. and (if appropriate) acknowledge all instruments reasonably required by the Owner or the lender, including but not limited to subordinations of any rights interests and claims under the Contract Documents and subcontracts at law, or otherwise. to the liens, benefits, rights and privileges of any lender. 12.20 _Lien Subordination. The Architect for itself and its Consultants and sub -consultants hereby subordinate all of their liens that they- may have or acquire under the Contract Documents or otherwise as to the Project Services or construction work and the propeM upon which the construction work is being constructed to the lien and security interest securing 124=ent of sums now or hereafter borrowed by the Owner from the lender. At the request of the Owner. the Architect and its Consultants and sub - con -,?!pants steall execute such addi.tional documents as may be requested from time to time by the Owner o-M3Lvsh lender? . evidence the provisions hereof and shall cause its Consultants sub -consultants and suppliers furnishing labor or materials for the Services to subordinate their liens to such aforesaid sums. 12.21 Time. The Architect acknowledges and agrees that it has reviewed and negotiated the various time limits or periods set forth in the Contract Documents and that any changes in such time limits or periods made in accordance with the terms of the Contract Documents will be similarly reviewed and negotiated by it The Architect agrees es to perform its obligations with due diligence within such time limits and periods in accordance with the terms of the Contract Documents. acknowledging that in the event it fails to do so the Owner may suffer damages costs and expsnses by reason of such failure of performance, including, without limitation. consequential damages. 12 22 Owner's Liability. Notwithstanding anhing to the contrary contained in this Agreement or in any of the other Contract Documents no partner, member person or entity holding any interest in the Owner shall be personally liable whether directlyor indirectly by reason of any default by the Owner in the performance of any of the obligations of the Owner under this Agreement including without limitation the Owner's failure to pay the Architect as required hereunder and in the event of any such default the Architect hereby agrees to look solely to its contract rights against the Owner and its lien rights against the Project site to secure the performance and payment of all such obli atg ions. A A - A OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b151-gender-hbv4.aia — 8/22/2003. AIA License Number 1012006, which expires on 11/1/2003. Electronic Format BI51-1997 "; "l I.Fm. 1) •t Documents no partner member person or entity holding any interest in the Owner shall be personally liable whether directly or indirectly, by reason of any default by the Owner in the performance of any of the obligations of the Owner under this Agreement including, without limitation. the Owner's failure to pay the Architect as required hereunder and in the event of any such default the ,Architect hereby agrees to look solely to its contract rights against the Owner and its lien rights against the Project site to secure the performance and payment of all such obligations. 12.23 Title. The parties acknowledge and agree that the Work to be performed hereunder is with respect to property that has yet to be acquired by Owner (but which Owner has the ri t to acquire) The Work shall proceed notwithstanding the fact that Owner has not yet taken title to the property in that Owner has obtained a right of entry from the current owner) 12.24 Headings. The headings of the Contract Documents are used herein for reference purposes only and should not governlimit or be used in construing the Contract Documents or my provision hereof Where the context of the Contract Documents so requires the use of the neutral gender shall include the masculine and feminine genders the masculine gender shall include the feminine and neutral genders and the singular number shall include the plural and vice versa Each party hereto acknowledges that (i) each pat hereto is of equal bargaining strength' (ii) each such party has actively participated in the preparation and negotiation of the Contract Documents: (iii) each such party has had the opportunity to consult with such p 's attorneys and advisors relative to enteringinto tothe Contract Documents. and (iv) any rule of construction to the effect that ambiguities are to be resolved against the drafting shall not apply in the interpretation of the Contract Documents m portion hereof, any amendments hereto or any Exhibits attached hereto 12.25 Counterparts. The parties prefer that execution of this Agreement be on one original document However with the Owner's uriof wi kizn approval. the Contract Documents may be executed in one or more counterparts each of which snap be deemed an original, and all of which together shall constitute one and the same instrument 12.26 Severability. If any provision of the Contract Documents, or any application of any such provision to any 129M or circumstance& shall be determined by any court of competent jurisdiction to be invalid and unenforceable to any extent the remainder of the Contract Documents or the application of such provision to such person or circumstances other than the application as to which such provision is determined to be invalid or unenforceable, shall not be affected thereby, and each provision shall be valid and shall be enforced to the fullest extent permitted by law. 12.27 Standard of Care The Architect shall perform the Services with that degree of care skill ethics diligence and iudgment that is customarily exercised by professional architectural firms in the performance of services similar to those required in this Project ("Standard of Care"), The Architect represents and covenants that it (j) has the requisite skill ethics diligence training certification. licenses and expertise in performing services of the We expected to be ,performed pursuant to this Agreement. (ii) shall perform its Services in accordance with the Standard of Care. and (iii) has sufficient organization, personnel and management to carry out the Services in a safe compliant expeditious and efficient manner consistent with the best interests of the Owner The Architect acknowledges that the Owner places unique trust in the Architect to act to protect the Owner's interests with respect to the Project and that in performing the Services the Architect shall take all reasonable measures to ensure that it. as well as all firms and persons subject to its oversight. act in compliance with the Legal Requirements, as defined herein The Architect expressly represents that to the extent lk Architect uses subcontractors or consultants. such subcontractors �an5pltan or r..ts are, and will b!Z. xperts ir. their fie'3s and properly trained. certified and licensed to perform the portion of the Scope of Services delegated to them The Architect also expressly represents that both the Architect and its subcontractors or consultants if any, are now, and will be throughout their performance of the subject services. properly trained. certified and licensed to perform the Services required and contemplated by this Agreement 12.28 [Intentionally deletedl. VAIA A1997-THEAMERMANIRSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W , WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b151-gensler-hbv3.aia — 7/11/2003. AIA License Number 1012006, which expires on 10/31/2003. Electronic Format B l S I -1997 24 Note: For the 12=ose of this Agreement wherever the word "Architect" appears pertaining to the certifications of payments to the Contractor it shall mean "Owner's Agent" instead The Architect's Services do not include the supervision of the Owner actually making the payments to the Contractor. This Agreement entered into as of the day and year first written above. OWNER: CIM/Huntington, LLC, by: CIM California Urban Real Estate Fund, L. P., by: CIM Urban Fund GP, L , its general partner (signature) By: Avraham Shemesh, Treasurer (printed name and title) ARCHITECT: M. Arthur Gensler Jr. & Associates, Inc. (signature) Marty 43orko, Vice President (printed name and title) A 7 I - COPYRIGH1 1997 - OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below, expiration as noted below. expiration as noted below. expiration as noted below. expiration as noted below. User Document: b151-gensler-hbv3.aia -- 7/11/2003. AIA License Number 1012006, which expires on 10/31/2003. Electronic Format B151-1997 25- EXHIBIT "A" to AIA Document B151 Agreement Between CIM/Huntington, LLC ("Owner") and M. Arthur Gensler Jr. & Associates, Inc. ("Architect") PROJECT DESCRIPTION AND SCOPE OF SERVICES I. SCOPE OF SERVICES: A. PROJECT 1. PROJECT SIZE AND USE: Mixed use project consisting of retail and restaurants on two levels, office and a hotel (approximately 150 rooms). Total Gross Building Area: 226,500 sq. ft. Subterranean Parking (approximately 450 spaces): • First, Level 102,83 0 sq. ft. • Second Level 96,590 sq. ft. Note: Square footages are based on drawings as issued for City Council approval, dated August 5 and September 3, 2002 and with lease modifications, dated February 28, 2003. 2.. LOCATION: Blocks #104 and #105, exclusive of existing Abdelmuti and Worthy . Properties, inclusive of 51h Street, the Project is between Pacific Coast Highway, Walnut Avenue, Main Street and 6`h Street, in Huntington Beach, California. 3. SCOPE: Building shell including: • Building structure, foundations and enclosure for the Hotel, Retail, Restaurants and Office. (No interior finishes). • Core Spaces; finished public toilets, elevators, equipment and utility rooms, stairs,. permanent.corridors and tenant demising walls (per approved lease plans). • Hotel interior partitions — location only (no interior finishes). • Loading area(s), parking garage and trash. • Mechanical, plumbing electrical and fire and life safety systems. Central equipment and main distribution systems, risers, trunks, loops and controls (stub to tenant spaces). • Hotel distribution systems, risers, trunks and loops per approved hotel room layout. Service distribution within retail /restaurant /office spaces where required by the Legal Requirements including the code. Sprinkler system as required by the Legal Requirements including the code. 615176.03/LA C26 50-019/7-11-03 /j azt j az B. SERVICES INCLUDED 1. Services and Consultants Included: The Architect's Basic Services include the following Services for the building shell portion of the Project, except as otherwise indicated in the Agreement: • Architectural services; • Structural engineering services; • Mechanical, electrical and plumbing ("MEP") engineering services; • Lighting design services (building exterior); • Life safety consulting services; • Elevator design -build performance criteria, elevator cabs and entrances design; • Energy analysis, as required by the Legal Requirements including the code, for systems included in the Project; • Landscape design services (planting, irrigation, walks and paving); • Acoustics consulting services (building core and shell only) floor assemblies, shafts and building envelope as it relates to coordination between fire ratings and future acoustical concerns; • Waterproofing consulting services; • Code required project signage (including, but not limited to, emergency egress, stair identification); • Hotel will be designed to meet the Marriott Residence Inn Standards (the interior design will be completed by others);. • Retail spaces designed to demise lease lines — per the Owner's direction including, but not limited to, vertical shafts and exit corridors; • Lease outline drawings, area calculations and MEP engineering review of tenant plans per allowance (see the Stipulated Sum Matrix attached to the Agreement as Exilinit "K"); • Limited assistance in the development of a graphics and sign program, up to four hours; and • Production of a Tenant Handbook based on Owner's leasing criteria and Design Review Board ("DRB"), per allowance (see the Stipulated Sum Matrix attached to the Agreement as Exhibit "K"). C. BASIC SERVICES PHASES The Basic Services shall be performed in the following sequence. The Architect will present the required work products at the end of each phase for the Owner's and hotel operator's review and written approval, before proceeding to the next phase of the Project. The Project Phases will be as follows: 615176.031LA C2650-019/7-11-03/jaz6az -2- 1. Phase I - Design: a. Phase Ia, Schematic Design: Based on the approved Conceptual Design and the incorporated City Conditions (per the City of Huntington Beach 11/1/02 approval;,, Schematic Design documents will be prepared to illustrate the schematic design. Except to the extent provided for in the Agreement, design revisions due to programmatic changes are not included in the Basic Services. The architectural schematic design package will be submitted to the DRB, for approval, at the completion of this phase. The Schematic Design Phase Services shall include, but not be limited to, the following: • Schematic floor plans, including structural grid and schematic HVAC systems; ® Site plan; • Building elevations; • Typical building sections; • Written outline description of building systems and materials; • Explore alternate floor layouts and connections between building elements; • Assist with cost estimates; • Schematic structural drawings; • Schematic MEP drawings; and • Leasing plans per allowance. Note: At the completion of Schematic Design, and upon the Owner's written authorization to proceed, the Project will continue into Design Development under one of three separate scenarios. Scenario `A' (documented by this Scope of Services in the Agreement and Exhibit "A") maintains the core and shell team, as proposed herein, for the entire Project. Under Scenario `B', a separate architect, and structural and MEP engineers will complete the 3-story hotel `cap' (one-story retail base to be completed by core and shell team). Saiful/Bouquet will be the structural engineer of record. Scenario `C' also retains another architect for the hotel, but maintains SaifulBouquet (structural) and Heflman/Haloossim (MEP) as the project engineers. Tl.e A�caitcct vvill : ti retained as design architect only in Scenarios `B' and `C' and if those scenarios are chosen, the Architect will provide revised scope and fee documents for the services for the Owner's written approval. b. Phase lb, Design Development: Upon the Owner's written approval of Schematic Design, Design Development documents will be prepared to fix and describe the Project's design and building systems. Design revisions due to programmatic changes are not included in the Basic Services. Hotel design will include core and shell spaces (interior design is to be completed by others). The Design Development Phase Services shall include, but, not be limited to, the following: Selection of general exterior Project finishes, for submittal to the Owner, the City of Huntington Beach DRB and the hotel operator, including preparation of required exhibits; Floor plans of each typical and unique level; 615176.03/LA C2650-019/7-11-03/jaz/jjaz -3- 9vr— i8l, Site plan; Roof plans; Refine building elevations; Building sections; Preliminary building structural system design; • Preliminary building MEP systems designs; ® Key details; Outline specifications ° Assist the Owner's general contractor in design development pricing; Structural calculations for primary and lateral load resisting structural systems and computer modeling; e MEP calculations; Attend meetings with Building and Planning Departments as necessary, per the arlowance cur City Meetings and Prescntatio.-�.s ...c UuYuiawu Sum Matrix attached to the Agreement as Exhibit "K"; Architectural Building sections as necessary; 9 For planned parking area, provide large scale perimeter wall sections; Provide large scale exterior wall sections; ® Preliminary door, window and finish schedules; ® Incorporate current lease plans; Structural • Structural framing and foundation plans for all buildings in the Project; Structural shear frame elevations; ® Preliminary structural detailing; Mechanical • Refine preliminary MEP scope and coordinate with the utility providers; © Plumbing plans for all buildings in the Project; s Preliminary plumbing isometrics; ® Preliminary plumbing fixture and equipment schedules; • Preliminary mechanical plans for all buildings in the Project; • Preliminary mechanical equipment schedules; Electrical ® Electrical plans; • Preliminary light fixture schedule; • Final service and single line diagrams; and • Reflected ceiling plans for common area lobbies. 615176.03/LA C2650-019/7-11-03/jaz/jaz -4- Note: Documents will be developed to a level that allows for the Owner's contractor to provide pricing. Lease changes that impact building systems such that the Services to be provided are outside the Scope of Services are Additional Services. 2. Phase 2 - Construction Documents: a. Construction Documents: Upon written approval of Design Development drawings by the Owner and the hotel operator, and the Owner's written authorization to proceed, Construction Documents will be prepared consisting of a complete set of drawings and specifications for the purpose of obtaining construction permits; assisting the Owner in obtaining bids, establishing a guaranteed maximum price for the construction work, purchasing of furniture (if any), and constructing the Project; as follows: • Floor plans of each typical and unique level; • Site plan and demolition piaiik's j; • Roof and penthouse plans, including location of all rooftop mechanical equipment; • Building elevations; • Building sections; • Enlarged plans and elevations of special areas where necessary; • Schedules (including door, hardware and window); • Door and window schedules accompanied by a detailed specification for all pieces of hardware, excluding hotel interior hardware; • Engineering drawings of building systems included in the Project; • Reflected ceiling plans, showing the location of the various types of ceilings and the location of standard and special light fixtures, HVAC registers and sprinkler heads influenced by the ceiling layout (common areas only); • Finish plans showing the location and type of paint, wall coverings, wood finishes, carpeting, floor coverings, fabrics, and other special finishes (common areas only — inLeY'ior design fot the Hotel will be provided by others); ® Details indicating the design intent of the Project; • Complete design of vertical circulation system coordinated with MEP; • Design of fire separations as required by the Legal Requirements including the code; • Design of expansion joint systems and interface between buildings; • Identification of door locations, window locations and types; • Design roofing system and waterproofing systems where necessary; Structural • Prepare structural specifications in CSI format; • Finalize lateral analyses and gravity framing calculations; • Prepare design calculations and drawings for atypical elements; • Prepare design calculations and drawings for non -building structures; 615176.03/LA C2650-019/7-11-03/jazJjaz -5- /'/yip 'AA& • Prepare detailed structural drawings; MEP • Provide mechanical, electrical and plumbing for core and shell building; O Elements including all utility company coordination; Mechanical • Title 24 calculation, compliance form and system sizing; • Fan coil location and condensate line location; Indicate location of HVAC equipment and roof curb detail; • Provision of the mechanical system for lower levels of retail spaces; • Exhaust fan system for all restrooms; • Provision for mechanical ventilation for future restaurant spaces where applicable; • Control system diagram and details for parking garage exhaust system; ® Coordinate sequence of operation of fans with fire alarm/fire department requirements; e Design carbon monoxide detection system and interconnect to building systems; • Mechanical equipment schedule notes and details; • Locate equipment and provide structural engineer with all load data necessary; • Provide design for fresh air, bathroom exhaust, restaurant grease exhaust and fire dampers; Plumbing • Complete design for waste, vent and roof drain system; • Plumbing demand calculations; • Large scale plans showing overall system layout; Complete design for the hot and cold water distribution; • Complete gas meter locating, sizing, distribution, vault design and coordination with the Gas Company; • Complete water meter locating, sizing, vault design and distribution with backflow preventer(s) as necessary; • Coordinate FDC location, check valves and risers; • Identify interface with mechanical units; • Coordinate rain water discharge, curb or catch basin and all sewer laterals; • Provide design and calculation for all roof and deck drainage; • Plumbing fixture schedule notes details and specifications, excluding tenant spaces; • Provision for future tenant improvements at the retail levels (includes stub outs for future restroom design); 615176.03/LA C2650-019/7-11-03/jaz/jaz -6- ® Design and indicate connection of roof drain to City storm drain where applicable; Electrical • Building power plan; • Identify location of main service equipment and distribution devices throughout the building, excluding tenant spaces; • Exterior building lighting and controls; • Utility coordination with UGD electrical, telephone, and cable TV utility companies including submittal of drawings as required for approval and detail for subsurface vaults; • Design panel board, light fixture schedules and symbol list; • Design main electrical switchgear spacing and provisions including single line diagram and load calculations; and • Building telephone and cable service to MPOE's, conduit only to utility closets. b. Specifications: Specifications covering the above construction work for the Project shall be prepared by the Architect in CSI Division format to establish the requirements and standards for the construction work. c. Backgrounds for Engineering and Other Consultants: The Architect shall forward reproducible copies (CADD files) of its drawings (backgrounds) to the Project - consultants, to show the locations of design elements that influence the layout and design of engineering systems. 3. Phase 3 - Bidding and Contractor Selection: The Architect's Basic Services for the Bidding and Contractor Selection Phase include, but are not limited to, the following: • Distribute drawings to contractors; • Respond to questions; and • Issue clarifications and addenda as necessary. 4. Phase 4 - Construction Phase Services: a. The Architect will provide Services during the Construction Phase of the Project as described in the Agreement and this Exhibit "A". A partial list of such services includes the following: • Inform the Owner of general progress and quality of the construction work; • Weekly site visits; • Review required submittals; 615176.03/LA C2650-019/7-11-03/jaz/jaz -7- • Final punch list review and walk-thru including MEP and consultants; • Shop drawing review; • Respond to requests for information in a timely fashion, but no later than may be specified in the Agreement or contractor's agreement with the Owner; • Issue written clarifications and supplemental drawings; • Review change orders; • Review applications for payment; • Assist in certification of the notice of completion; • For mechanical building elements, provide site visits as requested by the Owner and, report after the rough installation is complete; • Review mechanical shop drawings; and • For plumbing building elements, provide site visits as requested by the Owner and report after rough installation complete. EXCLUSIONS: Items below are specifically excluded from the Architect's Scope of Services: • Imaging, branding and marketing; • Civil engineering, including for excavation, grading, on -site and off -site utilities, exterior pavement and curbs for parking, drives and street connections five feet beyond the site property line; • Soils engineering; • Consulting registered arborist (approved by City Landscape Architect); • Historic preservation consultant; • Indoor air quality consultant; • Services for off -site work; • Window washing systems design/build services; • Traffic consultant; and • Parking consultant. Approved: Owner: Approved: Architect: By' hiALlz�r B}' T ea f' des S 5- Q 3 Marty Borko , Z 13- D 3 roject Manager. Vice President By: 6 Keven Doherty Vice President, Development 615176.03/LA C2650-019/7-11-03/jazlaz '8- EXHIBIT "B" to AIA Document B151 Agreement Between CIM/Huntington, LLC ("Owner") and M. Arthur Gensler Jr. & Associates, Inc. ("Architect") INSURANCE, INDEMNITY AND NOTICE REQUIREMENTS 1. The Architect shall insure specifically the indemnity contained in Paragraph 6, of this Exhibit "B". The Architect shall include the Indemnitees defined in Paragraph 6 as additional insureds by causing amendatory riders or endorsements to be attached to the insurance policies described below in Subparagraph 2, except for 2(a) and 2(b) with respect to the Architect's Professional Liability and Workers' Compensation Insuraucc. i I -A. ilisuiarllca coverage afforded under these policies shall be primary to any insurance carried independently by the Indemnitees. Such amendatory riders or endorsements shall indicate, concerning the Indemnitees, that there shall be severability of interests under such insurance policies for all coverages provided under such insurance policies. 2. The Architect shall maintain, at its own expense throughout the life of this Agreement and until all statutes of limitation (including those for construction defects) have expired, the minimum types and amounts of insurance set forth below, insuring the Architect, its employees, agents and designees and the Indemnitees as required herein, which insurance shall be placed with insurance companies rated at least "A" by Best's Key Rating Guide or as otherwise approved in writing by the Owner. Each policy, of insurance shall incorporate a provision requiring the giving of written notice to the Owner at least thirty (30) days prior to the cancellation, non -renewal, or material modification by reduction in the scope of coverage or limits of any such policies as evidenced by return receipt of United States certified mail. The minimum types and amounts of insurance are as follows: (a) Architect's Professional Liability Insurance in the amount of One Million Dollars ($1,000,000.00) per claim and Two Million Dollars ($2,000,000.00) per annual/aggregate (including contractual liability coverage with all coverage retroactive to the earlier of the date of this Agreement or the commencement of Architect's services in relation to the Project), with a One Hundred Twenty-five Thousand Dollar ($125,000.00) maximum deductible, covering personal injury, bodily injury, and property damages, said coverage to be maintained from the date of final payment until" the expiration of all statutes of limitation including statutes of limitation for construction defects. The Architect may be directed by the Owner to purchase additional amounts of Professional Liability Insurance. The Owner shall reimburse the Architect for the costs of such additional insurance at the Architect's cost without any mark-up. Except for a separate project -specific. aggregate which the Owner may require for this Project, the parties recognize that the amount of the Architect's Professional Liability Insurance is subject to "depletion" or "erosion" by claims brought on the Architect's other covered projects. Accordingly, the Architect agrees to respond to inquiries from the Owner regarding 615176.1 ULA C2650-019/9-19.03/j azljaz depletion, erosion or the status of any claims brought against the Architect during any applicable policy year that effect the limits stated above in this Subparagraph 2(a) until the warranty period has expired; (b) Workers' Compensation Insurance in the amount of the statutory maximum with an employer's liability coverage of at least One Million Dollars ($1,000,000.00); (c) Comprehensive or Commercial General Liability Insurance (including limited -form contractual liability and completed operations, in the amount of One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the aggregate covering personal injury, bodily injury, and property damage. In no event shall the deductible on any such policy of insurance exceed Ten Thousand Dollars ($10,000.00) without the prior written approval of the Owner; (d) Comprehensive Automobile Liability Insurance, including hired and non - owned vehicles, if any, in the amount of One Million Dollars ($1,000,000.00) covering personal injury, bodily injury and property damage; (e) Umbrella Liability in the amount of One Million Dollars ($1,000,000.00). This Umbrella Liability coverage shall include the same types and forms of coverage provided for by the Architect's Comprehensive General Liability Insurance as set forth in (b), (c) and (d) above; and (f) Valuable Papers in the amount of Ten Thousand Dollars ($10,000.00). 3. The Architect shall submit valid certificates in form and substance satisfactory to the Owner evidencing the effectiveness of the foregoing insurance policies along with copies of all policies with any amendatory riders, except for the Architect's professional liability insurance policy, to the Owner within thirty (30) days of the actual execution of this Agreement by the parties and at any other reasonable time during business hours upon ten (10) days notice. The Architect agrees to (i) maintain a copy of the Architect's professional liability policy in the Architect's records for this Project until all statutes of limitation (including those for construction defects) have expired and (ii) make available to the Owner a copy of the Architect's professional liability policy when a claim arises that may trigger such policy coverage. The Owner agrees not to share the Architect's policies with the Architect's competitors or other architects. 4. The Architect shall supply the Owner with certificates evidencing the fact that all of the above coverages are currently in force throughout the life of this Agreement and that the Owner will receive at least thirty (30) days advance notice of any cancellation, non -renewal, or material modification by reduction in scope of coverage or limits of any coverage. Such notice shall be by certified, return receipt mail. 5. If the Architect fails to furnish and maintain the insurance required by this Exhibit "B", the Owner may purchase such insurance on behalf of the Architect, and the 615176.11/LA C2650-019/9-19-03/jazlaz -2- Architect shall pay the cost thereof to the Owner upon demand and shall furnish to the Owner any information needed to obtain such insurance. 6. Indemnity. (a) General Liability. With respect to. liability of the Architect other than professional liability, except for the sole negligence or sole wrongful acts of the Owner and any subsidiary, parent or affiliates successors in interest of the Owner, and their directors, officers and employees (collectively, "Indemnitees"), the Architect undertakes and agrees to defend, indemnify and hold harmless Indemnitees, from and against all suits and causes of action, claims, osses, injuries, damages, demands and expenses, =hS including, but not limed to, reasonable attorneys' fees and costs of litigation, and damage(s) or liability of any nature whatsoever, including, but not limited to, death or injury to any person, or for damage to, or destruction of, any property of either party herein, Indemnitees or of third persons, iri any rnarzier arisi^g cut of or related to e�.- negligent or wrongful performance of this Agreement on the part of the Architect or any of the Architect's consultants, employees, or anyone for whom the Architect may be liable (collectively "Consultants"), or the negligent or wrongful acts or omissions of Architect or its Consultants -1ertees- it (b) Professional Liability. With respect to the Architect's professional liability, the Architect undertakes and agrees to indemnify and hold harmless the Indemnitees from and against all suits and causes of action, claims, losses, injuries, damages, demands and expenses, including, but not limited to, reasonable attorneys' fees and costs of litigation, and damage(s) or liability of any nature whatsoever, including, but not limited to, death or injury to any person, or for damage to, or destruction of, any property of either party hereto, Indemnitees or of third persons, in any manner including those arising out of the Indemnitees' review or approval, or lack thereof, of the Architect's or its Consultants' Services or selection of an alternative presented by the Architect or its Consultants to the extent arising out of or related to the negligent.or,wrongful performance of this Agreement on the part of the Architect or any of the Architect's Consultants or the negligent or wrongful acts or omissions.of Architect or its Consultants The . Indemnitees' review or approval, or lack thereof, of the Archit s or its Consultants' Services shall in no way relieve the Architect o responsibility for the accuracy or adequacy of the Services. Except to the extent otherwise pro ided in the Architect's Professional Liability Insurance, the parties waive all subrogation rights against each other and any of their contractors, consultants, sub -contractors, sub -consultants, agents and employees (collectively, "Subrogation Entities"). The parties shall require all Subrogation Entities to enter into similar waivers of subrogation in favor of all other Subrogation Entities. Such waivers of subrogation shall be effective as to all Subrogation Entities even though such Subrogation Entities would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premiums directly or indirectly, and whether or not the Subrogation Entities had an insurable interest in the 6151 76.11 /1-A C2650-019/9-19-03/jazIaz -3- applicable liability. All policies of the Subrogation Entities, except for the Architect's Professional Liability Insurance, shall provide this waiver of subrogation by endorsement or otherwise, except the Architect shall have the option of not seeking a waiver of subrogation by endorsement from its own consultants. 8. All notices or other communications hereunder to either party shall be in accordance with Paragraph 12.18 of the Agreement. 615176.1 I/LA C2650-019/9-19-03 /jazljaz [END OF EXHIBIT "B"] -4- r \M Approved: Owner: By: elfS e e Project Manager 6B Keven Doherty Vice President, Development 615176.03/L.A C265D-019na 1-03/jzI Approved: Architect: By: { Mart)iBorko Vice President -4- I9 EXHIBIT "C" to AIA Document B151 Agreement Between CIM/Huntington, LLC ("Owner") and M. Arthur Gensler Jr. & Associates, Inc. ("Architect") PROJECT SCHEDULE Appre-red: Owner: By: x5, in es Project Manager By: Keven Doherty Vice President, Development [Attached] Approved: Architect: Marty orko Vice President 615176.03/LA C2650-019n-11-03 /j Wjjaz bil if.— ch, CA 2005 AUO -0- - . ............ vat ........ peb . .............. .......... Day Jon ....... . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . .. . . . . . ----------- I ------- P,p ploved ...... Arcblte BY May .50 g Vice Presiders ................ ........ F ra " "IN !> 'vt Ila L 1. 1. I'm 12 6- lain Is iz 14 lo 137-#IgF. �vs I EXHIBIT "D" to AIA Document B151 Agreement Between CIMIHuntington, LLC ("Owner"). and M. Arthur Gensler Jr. & Associates, Inc. ("Architect") ARCHITECT'S KEY PERSONNEL AND EMPLOYEES INCLUIDING TITLES Title Name Project Principal Marty Borko Project Manager Eric Goldberg Project Architect Jim Lefever Senior Architectural Designer Jack Fong [END OF EXHIBIT "D"] Approved: Owner: By: >c' Project Manager B Keven Doherty Vice President, Development Approved: Architect: By Marty torko Vice President N 615176.03/LA C2650-019/7-11-03/jazljaz k aeas._ EXHIBIT "Ell to AIA Document B151 Agreement Between CIM/Huntington, LLC ("Owner") and M. Arthur Gensler Jr. & Associates, Inc. ("Architect") LIEN RELEASE FORMS Approved: Owner: By: Jeff Mindes Project Manager Keven Doherty Vice President, Development Approved: Architect: Many Borko Vice President 615176.03/LA C2650-019n-11-03 /j az/jaz EXHIBIT "F" to AIA Document B151 Agreement Between CIM/Huntington, I. LC ("Owner") and M. Arthur Gensler Jr. & Associates, Inc. ("Architect") PROJECT BUDGET See Subparagraph 2.2.5 of this Agreement. [END OF EXHIBIT "F"] Approved: Owner: By: e 5-0,3 r j ect Manager By. even Doherty Vice President, Development Approved: Architect: By: '�&4w Marty Elorko Vice President 615176.03/LA ' COMMA 1-03/ja7/jaz I AA EXHIBIT "G" to AIA Document B151 Agreement Between CIM/Huntington, LLC ("Owner") and M. Arthur Gensler Jr. & Associates, Inc. ("Architect") ALTERNATIVE DISPUTE RESOLUTION 1. D esign and Construction Phase a. Proiect Neutral The Owner, Architect and Contractor may agree to select a Project Neutral for the Project. The Project Neutral shall be experienced both in the design and construction of major real estate developments as well as the mediation of design and construction disputes. The parties shall select the Project Neutral from among the members of the construction panel of the Americ&I Arbitration rksso�,�acror- Or iron o hrur par'iels as mutually agrcc%d to vy the parties. The Project Neutral, in close consultation with all involved parties, shall assist in resolving any disputes, claims, or other controversies that might arise from the commencement of design through issuance of the final certificate of occupancy and acceptance of the Project by the Owner. The Project Neutral shall have no adjudicatory authority and, therefore, _shall act solely as a mediator in working with the parties. If requested in writing by the parties, the Project Neutral shall attend the regular job meetings at the site of the Project. Also, the Project Neutral shall attempt to be available to attend any specific job -related meeting if so requested by the Owner, Architect and Contractor in writing. The Project Neutral also shall be available to confer or meet with any party or parties if so requested by the Owner, Architect and Contractor. If the services of the Project Neutral are retained, they shall be provided on an hourly basis and the cost will be borne in equal parts by the Owner, Architect, Contractor, and any other necessary parties, including, but not limited to, consultants, subcontractors, siab- subcontractors, and suppliers (collectively, "Subcontractors") except as agreed to in writing between any Subcontractor and the parties. The confidentiality of any discussion involving the Project Neutral shall be protected by all applicable statutes and case law with respect to mediation. The term of service by the Project Neutral shall end on the same date as the Architect's services for the Construction Phase as detailed in Subparagraph 2.6.1 of the Agreement. The Project Neutral may be involved in subsequent dispute resolution negotiations or proceedings under the terms and conditions set forth herein. b. Executive Negotiations If there is any unresolved dispute(s), such dispute(s) may be resolved at any time by designated executives of the involved parties through direct negotiations before, in lieu of, or after engaging the Project Neutral. These direct negotiations shall be between or among executives with authority to resolve the dispute(s). To this effect, the executives shall 615176.03/LA C2650-019/7-11-03/jazIaz �Y _ MA A91ft consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable resolution satisfactory to the involved parties. These discussions are intended to be informal and must be conducted face-to-face. The executives taking the lead in such negotiations may involve any other individuals or entities in the discussions that the lead executives deem appropriate. Unless required by statute, no arbitration, court or other legal proceeding (except mechanic's lien rights) shall be initiated prior to sixty (60) days after issuance of the temporary certificate of occupancy and acceptance of the Project by the Owner. The confidentiality of the executive negotiations shall be protected by all applicable statutes and case law with respect to settlement negotiations. If, at the, end of the sixty (60) day period following issuance of the temporary certificate of occupancy and acceptance of the Project by the Owner there are any dispute(s) remaining unresolved, such dispute(s) shall then be the subject of facilitated negotiarion (i.e:—,With a professional construction mediator) (herein "mediation") between ur among the involved parties. C. Mediation If, at the end of the sixty (60) day period following issuance of the temporary certificate of occupancy and acceptance of the Project by the Owner there are any disputes remaining unresolved, such remaining dispute(s) may next be attempted to be resolved by mediation. Such mediation shall be conducted under the. Construction Industry Mediation Rules of the American Arbitration Association. The cost of the mediation proceeding and the mediator shall be allocated under the rules and policies of the American Arbitration Association. During mediation, the involved parties shall endeavor in good faith to resolve any and all remaining disputes which they have on the Project. Unless required by statute, no arbitration or other proceeding shall be initiated prior to thirty days after any party serves a written demand for mediation with the American Arbitration Association.. The confidentiality of the mediation shall be protected by all applicable statutes and case law with respect to mediated settlement negotiations. If, after the passage of thirty (30) days from service of any written demand for mediation on the American Arbitration Association the mediation does not result in settlement of all disputes, then any unresolved claim or controversy arising from or relating to this contract shall be settled by arbitration or judicial reference to an arbitrator as described in the following Subsections. The parties may agree to extend this thirty (30) day period. 2. Post -Completion Dispute Resolution a. Disputes with Less than ($10,000.001 in Controversy — Arbitration Within thirty (30) days from when a mediator declares the parties are at an impasse on one or more of their claims and/or controversies, or if no mediation occurs within the sixty (60) day period for Executive negotiations, the parties shall exchange letters which shall 615176.03/LA C2650-019/7-11-03/jaz/jaz -2- state in summary form those claims and/or controversies which each party contends are unresolved and the party's asserted value of those claims and/or controversies. If after exchange the parties agree the total amount in controversy i.e., taking into account both claims and counter -claims) is less than $10,000.00, then such remaining disputes shall be settled by arbitration administered by American Arbitration Association in accordance with its Construction Industry Arbitration Rules, using a single arbitrator, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. b. Disputes with f$10,000.001 or More in Dispute — Judicial Reference If after exchange of the letters the parties (1) cannot agree whether or not there is more or less than $10,000.00 in dispute regarding Architect's claims or the threshold amount asserted by the Contractor, as specified in the Contractor's Agreement ("Contractor's Threshold"), or (2) agree that more than $10,000.00 (or the Contractor's Threshold amount) is in dispute, the parties stipulate that trial by jury and judge is waived as to all unresolved claims or controversies. The party or parties seeking affirmative relief then wili the a court aciiuri (or cross -complaint in an existing court action). The parties, however, expressly stipulate that all such court -filed claims or controversies shall be referred by the court to a referee who is agreed to by all parties pursuant to the LCCP Rules, as defined below, who will hear and determine all issues with respect to such claims and controversies, both as to the facts and the law, in a proceeding before the American Arbitration Association in accordance with its Construction Industry Arbitration Rules, the Rules of its Large, Complex Case Dispute Resolution Program (i.e., the "LCCP Rules"), and its Judicial Reference Procedures, as applicable. The arbitrator selected shall be named in an order of the court as the referee, in accordance with the applicable law as to judicial references. Within thirty (30) days of when the hearings in the case are closed under the LCCP Rules, the referee shall report its statement of decision to the court. Such statement of decision by the referee shall include a detailed, written opinion explaining the decision, including the referee's findings of fact and conclusions of laws. Judgment on the referee's decision may be entered by the court as if the action had been tried in court. The cost of the referee and/or the American Arbitration Association proceedings shall be borne by the participating parties as determined by the arbitrator or the court after the referee's decision'is provided to the court. An order so providing can be entered by the court without further notice. The intent of this Section is that the parties settle remaining claims valued together at $10,000.00 (or the Contractor's Threshold amount) byway of judicial- reference. The parties agree to take such actions as to enable a judicial reference whereby (1) the dispute is heard and determined under the LCCP Rules, (2) the statement of decision by the referee is provided to the court which then may enter the statement of decision as a judgment as if the case had been tried by the court, and (3) the normal rules with respect to appeals would apply as to the judgment thereby entered by the court. 615176.03/LA C2650-019/7-11-03/juJiaz -3- 3. Incorporation by Reference The Architect agrees to incorporate these dispute resolution provision into any contracts, subcontracts and any other agreements with Subcontractors which it may enter into with respect to the Project. The expectation of the parties is that any entity or individual working on the Project for the Architect will be bound to resolve their disputes which involve the Owner, Architect, Contractor and/or any of their Subcontractors in one proceeding in which all parties will participate and be bound. Approved: Owner: By: /a s e e g-S-03 Project Manager By: even Dohe y Vice President, Development [END OF EXHIBIT "G"] Approved: Architect: By. 6) Marty Borko Vice President 615176.03/LA C2650-019n-11-03/jaztjaz -4- EXHIBIT "H" to AIA Document B151 Agreement Between CIM/Huntington, LLC ("Owner") and M. Arthur Gensler Jr. & Associates, Inc. ("Architect") HOURLY RATE SCHEDULE ARCHITECTURAL SERVICES: Principal: ...................................................... Project Manager .......................................... Senior Staff :........... ...................................... Intermediate Staff: ....................... .................... HOURLY RATE: ............................................................... $175.00 :1 tq o. W ................................................ ............................. :..... $130.00 -- I ! 4o•oc ....................................... ........ .................................... $115.00-- ot 1 VD.00 ...............................................-.................................. $90.00 *11V.> o JuniorStaff: ......................................................................................................................................... $65.00 6s'0,0 The above -stated hourly rates shall remain in effect throughout the duration of the Project. All hourly rates shall be multiplied by a factor of one point five (1.5) for all hours other than the standard work -day hours of 7:00 a.m. to 6:00 p.m., Monday through Friday, and for times in excess of eight hours per day unless such overtime hours are made necessary due *to the Architect's own negligence, errors, wrongful acts or omissions. Any Additional Services shall be authorized by written Change Order signed by the Owner prior to the commencement of such Additional Services. Approved: Owner: [END OF EXHIBIT "H"] Approved: Architect: By: By: n4�,fi J ff in es 8'-S- 03 Marty $orko Project Manager Vice President r By: ven Doherty Vice President, Development 615176.03/LA C2650-019/7-11-03/jaz/jaz EXHIBIT "J" to AIA Document B151 Agreement Between CIM/Huntington, LLC ("Owner") and M. Arthur Gensler Jr. & Associates, Inc. ("Architect") ENVIRONMENTAL REPORT(S) The following environmental reports are available, through the Owner during normal business hours at Owner's principal place of business, for reviewing and copying by the Architect: • Phase I Environmental Site Assessment, prepared by Earth Tech, August 4,1999; • Limited Phase II Site Assessment, prepared by Gradient Engineers, June 1, 2000; and • Final Subsequent Environmental Impact Report ("FEIR"), .prepared by EIP Associates, September 2002. Appendix D of the FEIR includes the following: Preliminary Geotechnical Investigation, prepared by Leighton and Associates, May 22, 2000; and • Preliminary Hydrology and Hydraulics and Water Quality Report, prepared by Penco Engineering, March 20, 2002. Approved: Owner: (END OF EXHIBIT "Jill Approved: Architect: By: ems, By. e indes $-$- 0,3 Marty Borko Project Manager Vice President Keven Doherty Vice President, 615176.03/LA C2650-019/7-11-03/jaz/jaz BASIC SERVICES schedule of performance ARCHITECTURE/ ENGINEERING EXHIBIT "I{" to AIA Document B151 Agreement Between CIM/Huntington, LLC ("Owner") , and M. Arthur Gensler Jr. & Associates, Inc. ("Architect") STIPULATED SUM MATRIX Revised: June 4, 2003 Gensler Project No. Lump Sum Lump Sum Lump Sum Lump Sum Hourly Fee Hourly Fee 05.9022.000 SD PHASE : DD PHASE CD=PHASE PER1VIiT , s;.OTHER - :. CA,PAASE s VISITS . ; FEE . REMARKS;'. 5 weeks 7 weeks 14 weeks Architecture 37,100 188,400 314,500 40,000 160,000 80 $740,000 Gensler note 1), note 6 Structural Saiful Bouquet Consulting Engineering 37,000 61,800 111,500 4,400 32,200 12 . $246,900 Engineers Mechanical, I Electrical & Helfman \ Haloossim & Plumbing 18,900 25,700 89,600 8,500 8,600 6 $151,300 Associates Borthwick Guy Landscape Design 25,800 21,500 33,800 8,400 1 $89,500 Bettenhausen Lighting Design 4,945 5,065 4,500 2,990 3 $17,500 Decker Studio Vertical Transportation elevator 2,800 5,200 1,000 8,000 $17,000 Lerch, Bates & Associates Waterproofing Consulting 1,500 3,500 8,000 5,000 $19,000 D-7 Consulting note 2 Acoustical Martin Newson & Associates Engineering 10,000 6 $10,000 core & shell Gensler Allowance - Tenant HandbooN 12,0001 $12,0001depending on scope 615176.08/LA C26�0-019/8-22-03/ja./jaz M Lump Sum Lump Sum Lump Sum Lum Sum BASIC SERVICES SD PHASE_ DD.PHASE `,CD;P,HASE P' i ' Ig Hourly Fee Hourly Fee '# .CA OTHER CA PHASE ;'. � VISITS " , FEE Gensler Project No. 05.9022.000 12'F.MARKC.. Leasing Plans / Gensler X11owance - Leasing Aids 10,000 $10,000 depending on scope City Meetings & Gensler Allowance - Presentations 15,000 $15,000 depending on scope General Additional Gensler Allowance - misc. Services 10,000 $10,000 wk outside scope 11 STIPULATED SUM (note CONTRACT TOTAL 125,2451 318,765 567,1001 53,9001 47,000 226,190 $1,338,200 8) 1. Architect's construction contract administration ("CA") phase is based on 20 hrs/wk x 80 weeks = 1,600 brs @ $100/hr = $160,000. 2. Waterproofing CA phase is based on $400 per day for full -tune monitoring or time and material if not full-time. .-3....Signage-and-Graphies-earl--be-completed-nrmbsequerrt-ghasm-tneludmgi)estgn Development-and-GonstructionDocuments--(at-approximately-SI.8,OD0-.each).and, Construction Administration (at $12;00 ff W/ 4. Custom Tenant Storefronts scope and fee to be dete:.mined on a per storefront basis. 5. Current Project renderings, colored exterior elevations and existing 3-D model do not reflect the final Cit.✓ of Huntington Beach conditions. 6. Excludes interior finishes for hotel. 7. All Services indicated as being provided on an hourly basis or under an allowance are to be billed on a time and materials basis per the Owner -approved rate schedule attached to the Agreement as Exhibit "H" or, if rates ar:- not specified in Exhibit "H", at Owner -approved, industry standard rates. 8. The Stipulated Sum represents the maximum total payment to be received by the Architect for all lump s-tim, hourly cost categories, and allowance cost categories. In the event the actual expenditures for the hourly or allowance cost categories are less than those provided for in this Stipulated Sum Matrix, the total payment to the Architect will be less than the stated Stipulated Sum. With prior written authorization from the Owner, the hourly and allowance cost categories may be increased which has the potential to increase the Stipulated Sum. 615176.08/LA C26�0-019/8-22-03/jaz/jaz -2- [Signatures appear on the following page] Exhibit "K" Approved: Exhibit "K" Approved: ("Owner") ("Architect") /mo/.,rs -,,by:�'.Z Z G.3 byAMartyylklhiko, J #�k, r ject Manager Project Principal - .95, by. - ZZ Keven Doherty, Vice Preside t of Development [END OF EXHIBIT 11K"] 615176.081LA C2650-019/8-22-03/jaz/jaz -3- RCA ROUTING SHEET INITIATING DEPARTMENT: Economic Development SUBJECT: RECEIVE & FILE "EXHIBIT A" TO FOURTH IMPLEMENTATION AGREEMENT WITH CIM/HUNTINGTON LLC COUNCIL MEETING DATE: December 15, 2003 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney) Attached Subleases, Third Party Agreements, etc. Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (if applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FOR AP,,DED Administrative Staff Assistant City Administrator (Initial) ( ) Administrator Initial -City City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: RCA Author: D. Biggs, ext. 5909 : ,1 91 €P o Council/Agency Meeting Held: Deferred/Continued to: pproved ❑ Conditionally Approved ❑ Denied City Clerk's Signature Council Meeting Date: September 15, 2003 Department ID Number: ED 03-11 -- REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION SUBMITTED TO: HONORABLE MAYOR/CHAIRMAN AND CITY COUNCIL MEMBERS/REDEVELOPMENT AGENCY MEMBERS c Z SUBMITTED BY: RAY SILVER, City Administrator/Executive Directoro?� ,'I-, PREPARED BY: DAVID C. BIGGS, Director of Economic Development/Depuo K: Executive Director HOWARD ZELEFSKY, Director of Planning <-) SUBJECT: APPROVE FOURTH IMPLEMENTATION AGREEMENT WITH CIM/HUNTINGTON, LLC Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The City Council provided direction for staff to pursue the development of additional parking in the subterranean garage to be constructed as part of the Strand project. The proposed Fourth Implementation Agreement provides the means by which this would be accomplished. Funding Source: Parking In -lieu Fee Fund for $500,000 of the cost (see attached Fiscal Impact Statement). The balance of the estimated $1 million to $1.25 million in cost to be financed through the Community Facilities District financing proposed for the Strand project with the Agency obligated to reimburse the Developer for the extra debt service resulting from the additional parking. Recommended Action: Redevelopment Agency — Approve a Fourth Implementation Agreement with CIM/Huntington, LLC, and authorize the Chairperson and Agency Clerk to execute the Fourth Implementation Agreement. City Council — Appropriate $500,000 from the Parking In -lieu Fee Fund for_the Commitment Payment and the Commencement of Construction Payment. Alternative Action(s): 1) Approve a modified version of the Fourth Implementation Agreement; or 2) Disapprove the Fourth Implementation Agreement and direct staff to no longer pursue the development of additional parking to meet parking in -lieu obligations on this site.. REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION MEETING. DATE: September 15, 2003 DEPARTMENT ID NUMBER: ED 03-11 Analysis: On November 18, 2002, the City Council provided direction to use a portion of the accumulated parking in -lieu fees to create additional spaces in the subterranean garage to be developed as part of the Strand project. The Strand project is approved for a site on both sides of Fifth Street between Pacific Coast Highway and Walnut Avenue. The project, as approved, will include a two level subterranean parking structure under the entire site, with 405 spaces. The developer of the Strand, CIM/Huntington, LLC, has been working to better refine its project plans to determine the number of additional spaces which could be developed without incurring extraordinary costs. The current schematic plans indicate that up to an additional 100 spaces could be provided without having to go to a third level below grade. Staff and the developer have been negotiating the terms under which CIM/Huntington would construct these additional spaces for the Redevelopment Agency. These terms are set forth in the proposed Fourth Implementation Agreement to the Disposition and Development Agreement. In order to facilitate the design and construction of these additional spaces, it is timely to approve the Fourth Implementation Agreement since construction of the project is expected to commence in the fourth quarter of this year. The financial terms are summarized as follows: • The Developer agrees to construct up to 100 additional spaces (up to 50% of the spaces can be tandem stalls as permitted by the CUP with an approved valet plan) with the final number subject to approval by the Agency; • The Agency agrees to pay the cost of these additional spaces with $500,000 paid upfront in two payments — a Commitment Payment of $250,000 and a Commencement of Construction Payment of $250,000, with the remainder financed over 25 years through the Community Facilities District Financing proposed for the project or alternatively by the Developer; • The cost of the additional spaces shall be the lesser of the Project Costs attributable solely to the additional spaces, or $25,000 per space; • The Agency will pay its annual debt service on the additional spaces from the proportionate net parking revenue generated by the additional spaces, and the Agency's tax increment revenues and other Merged Project Area revenues not already committed to other debt repayment, • The unexpended portion of any upfront payments will be refunded if the project does not proceed or will be an offset against any amounts owed by the Agency to the Developer. • The Developer will also assign to the Agency its rights to all architectural agreements, plans and specifications in the event the project does not proceed. The following is provided to illustrate the financial terms. It is anticipated that the Additional Spaces will cost no more than $1,750,000. With the upfront payment of $500,000, the $1,250,000 balance will be repaid over a 25-year term. The annual debt service payment would not exceed approximately $130,000, of which at least $30,000 per year would come from the share of the net operating income generated by the Additional Spaces. As such, the G:\David\PROJECTS\104105\RCAFOURTHIMP.doc -2- 9/2/2003 1:47 PM REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION MEETING DATE: September 15, 2003 DEPARTMENT ID NUMBER: ED 03-11 Redevelopment Agency's annual net expense exposure is conservatively estimated to be $100,000 per year. This amount is likely to be less given the current interest rate environment and the conservative parking revenue estimates utilized. Environmental Status: Environmental Impact Report No. 01-02 for the Strand Project was certified by the City Council and Redevelopment Agency on October 21, 2002. Attachment(s): 1 1 Fourth Implementation Agreement with CIM/Huntington, LLC 2 Fiscal Impact Statement 3 1 Powerpoint Presentation RCA Author: D. Biggs, ext. 5909 G:\David\PROJECTS\104105\RCAFOURTHIMP.doc -3- 9/2/2003 2:53 PM th Implementation Agreement FOURTH IMPLEMENTATION AGREEMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT by and between REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, Agency and CIM/HUNTINGTON, LLC Developer FOURTH IMPLEMENTATION AGREEMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT This Fourth Implementation Agreement to Disposition and Development Agreement, dated as of September 15 , 2003 ("Fourth Implementation Agreement") is entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic ("Agency"), and CIM/HUNTINGTON, LLC, a California limited liability company ("Developer"). RECITALS A. The Agency and CIM Group, LLC, predecessor in interest to Developer, entered into that certain Disposition and Development Agreement dated June 17, 1999, which Disposition and Development Agreement was supplemented by that certain [First] Implementation Agreement entered into between the Agency and CIM Group, LLC dated April 6, 2000; that certain Second Implementation Agreement entered into between the Agency and CIM Group, LLC dated March 5, 2001, and that certain Third Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated October 30, 2002 (collectively, the "DDA"). The DDA is hereby incorporated by reference. Reference herein to the DDA shall include any and all Attachments thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the DDA. B. Agency and Developer intend through this Fourth Implementation Agreement to provide for Developer to develop and construct additional parking spaces in accordance with the procedures of this Fourth Implementation Agreement (collectively, the "Additional Spaces") in the two -level subterranean public parking facility to be developed and constructed on the Site pursuant to the DDA ("Parking Facility"). The exact amount of the Additional Spaces shall be determined by the Agency Executive Director (or designee) as more particularly described in Section Lc of this Fourth Implementation Agreement (collectively, the "Fixed Additional Spaces"). Agency and Developer further intend through this Fourth Implementation Agreement to provide for the Agency's payment to Developer of certain costs related to the development and construction of the Fixed Additional Spaces, as more particularly described in this Fourth Implementation Agreement. C. The parties are entering into this Fourth Implementation Agreement for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. cg:\HB\CIM\Imp Agmt\4th.Imp (Final).clean September 2, 2003 Page 1 AGREEMENT 1. Additional Spaces. a. Within thirty (30) days following the Effective Date of this Agreement, Developer shall prepare and submit to the Agency Executive Director or designee (for the Agency Executive Director's or designee's reasonable review and approval) the Project Cost Budget pursuant to Section 216 of the DDA. The Project Cost Budget submitted to the Agency shall contain a separate amount for Project Costs which are attributable to at minimum sixty (60) Additional Spaces. Also within thirty (30) days following the Effective Date of this Agreement, Developer shall prepare and submit to the Agency Executive Director or designee (for the Agency Executive Director's or designee's reasonable review and approval) the "Second Project Cost Budget" which shall be a Project Cost Budget pursuant to Section 216 of the DDA based on the Parking Facility without any Additional Spaces. b. Within thirty (30) days following receipt of the Project Cost Budget and the Second Project Cost Budget, the Agency Executive Director or designee shall approve or disapprove the Project Cost Budget. If the Agency Executive Director or designee disapproves the Project Cost Budget, the Agency Executive Director or designee shall do so by providing written notice to the Developer within said 30-day period with specific items disapproved and the Developer shall prepare and submit a revised Project Cost Budget within thirty (30) days following the date of the notice to the Developer of the disapproval. The Agency Executive Director or designee shall review the revised Project Cost Budget in the same manner as provided for the original Project Cost Budget. C. At such time as the Agency Executive Director or designee may approve the Project Cost Budget, the Agency Executive Director or designee shall provide the Developer written notice of such approval. Following notice of approval of the Project Cost Budget, the Agency Executive Director or designee shall reasonably determine the number of Fixed Additional Spaces based on the Executive Director's or designee's consultation with Developer; provided, however, Developer agrees that in no event shall the minimum number of Fixed Additional Spaces be less than sixty (60). Developer acknowledges that the Agency's intent and goal in entering into this Fourth Implementation Agreement is to obtain the maximum number of Fixed Additional Spaces as possible up the Agency's not to exceed amount of One Million Five Hundred Thousand Dollars ($1,500,000). Therefore, Developer agrees that Developer shall use its best efforts to ensure that the number of Fixed Additional Spaces is the highest number possible. d. So long as the Agency has approved the Project Cost Budget in the manner described in Section 216 of the DDA and this Fourth Implementation Agreement, cgAHB\CIM\Imp Agmt\4th.Imp (Final).clean September 2, 2003 Page 2 Developer agrees that it shall develop and construct the Fixed Additional Spaces in the Parking Facility and that it shall develop and construct the Fixed Additional Spaces in the Parking Facility so that at least fifty percent (50%) of the total Fixed Additional Spaces are not tandem spaces. Developer agrees that it shall develop and construct the Fixed Additional Spaces within the time established in the Revised Schedule of Performance for commencement and completion of construction of all work and improvements required for development on the Site by the DDA. Developer agrees that it will design, develop, construct, use, operate, repair and maintain the Fixed Additional Spaces in accordance with and pursuant to, and that Developer shall be bound by, all obligations of Developer under the DDA relating to the design, development, construction, use, operation, repair and maintenance of the improvements required for development on the Site by the DDA. 2. Agency Payment of Additional Spaces Costs. a. In consideration for the Developer developing and constructing the Fixed Additional Spaces pursuant to the terms and conditions of this Fourth Implementation Agreement, the Agency agrees that the Agency shall pay to the Developer the "Additional Spaces Costs." b. The "Additional Spaces Costs" shall be an amount equal to the lesser of clause (1) or clause (2) below; provided, however, the parties agree that in no event shall the Additional Spaces Costs exceed One Million Five Hundred Thousand Dollars ($1,500,000): (1) The separate amount for Project Costs which are attributable solely or by specified allocation to the Fixed Additional Spaces as set forth in the Project Cost Budget approved in writing by the Agency pursuant to Section 216 of the DDA and this Fourth Implementation Agreement; or (2) The product of (a) $25,000, and (b) multiplied by the actual total number of Fixed Additional Spaces. C. The Additional Spaces Costs shall be paid by a combination of the "Commitment Payment" which shall be advanced to the Developer as described in subsection d, below, the "Commencement of Construction Payment' which shall be advanced to the Developer as described in subsection e., below, and the "Agency Parking Payment' described in subsection f. below. d. (1) As an advance of a portion of the Additional Spaces Costs, the Agency agrees that it will advance to the Developer Two Hundred Fifty Thousand Dollars ($250,000.00) ("Commitment Payment') within thirty (30) days following the Effective Date. The parties agree that the Commitment Payment shall be applied towards the "Additional Spaces Costs." cg:\HB\CIM\Imp Agmt\4th.Imp (Final).clean September 2, 2003 Page 3 (2) (a) As a condition precedent to the Agency's advance of any portion of the Commitment Payment, the Developer shall execute [DEVELOPER TO PROVIDE COPY OF ALL AGREEMENTS WITH ITS ARCHITECTS TO CONFIRM WHICH DEVELOPER ENTITY ENTERED INTO AGREEMENT(S) WITH THE ARCHITECT(S). IF NOT CIM/HUNTINGTON, LLC, THEN THIS PROVISION WILL BE REVISED ACCORDINGLY], and the Developer shall cause the Architect (as defined therein) to execute, an Assignment of Architectural Agreements and Plans and Specifications (the "Assignment of Plan Documents") in substantially the form incorporated herein and attached hereto as Exhibit A. (b) In the event the DDA is terminated for any reason, or in the event Developer fails to commence construction within the time provided in the Revised Schedule of Performance for commencing the work and improvements required for development of the Site, or upon the Agency obtaining title or possession to the Site, then in addition to any other rights or remedies the Agency may have at law or in equity, the Agency (and any nominee(s) of the Agency designated by the Agency) shall have the rights provided for in the Assignment of Plan Documents. (3) The parties agree the Developer may only use the Commitment Payment to fund development costs associated with planning, designing, bidding and constructing the Parking Facility. (4) If the Developer fails to commence construction of the Fixed Additional Spaces within the time provided in the Revised Schedule of Performance for commencement of construction or if the DDA has been terminated for any reason, the parties agrees that, at the option of the Agency Executive Director, either: (a) within ten (10) days following the written request of the Agency, the Developer shall repay to the Agency such portion of the Commitment Payment as identified in subsection (5)(a), (5)(b), (5)(c), or (5)(d), below ("Repayment Amount"); or (b) the Agency may off -set an amount equal to the Repayment Amount from any amounts owed to Developer from future sales proceeds of the Site. (5) (a) If no schematic drawings have been completed for the Parking Facility by the Architect, then the Repayment Amount shall be Two Hundred Fifty Thousand Dollars ($250,000.00) plus ten percent (10%) interest per annum accrued from the date of the Agency's advance of the Commitment Payment until the Repayment Amount is repaid in full to the Agency; (b) If schematic drawings have been completed for the Parking Facility by the Architect and the Agency receives all of the rights provided for in the Assignment of Plan Documents in connection with such schematic drawings, then the Repayment Amount shall be Two Hundred Twenty -Five Thousand Dollars ($225,000.00) cgA\HB\CIM\Imp AgmtWtUmp (Final).clean September 2, 2003 Page 4 plus ten percent (10%) interest per annum accrued from the date of the Agency's advance of the Commitment Payment until the Repayment Amount is repaid in full to the Agency; (c) If 50% complete construction drawings have been completed for the Parking Facility by the Architect and the Agency receives all of the rights provided for in the Assignment of Plan Documents in connection with such construction drawings, then the Repayment Amount shall be Two Hundred Thousand Dollars ($200,000.00) plus ten percent (10%) interest per annum accrued from the date of the Agency's advance of the Commitment Payment until the Repayment Amount is repaid in full to the Agency; or (d) If 100% complete construction drawings have been completed for the Parking Facility by the Architect and the Agency receives all of the rights provided for in the Assignment of Plan Documents in connection with such construction drawings, then the Repayment Amount shall be One Hundred Fifty Thousand Dollars ($150,000.00) plus ten percent (10%) interest per annum accrued from the date of the Agency's advance of the Commitment Payment until the Repayment Amount is repaid in full to the Agency. e. (1) As an additional advance of a portion of the Additional Spaces Costs, the Agency agrees that it will advance to the Developer Two Hundred Fifty Thousand Dollars ($250,000.00) ("Commencement of Construction Payment") within thirty (30) days following commencement of construction of the Parking Facility. The parties agree that the Commencement of Construction Payment shall be applied towards the "Additional Spaces Costs." (2) The parties agree the Developer may only use the Commencement of Construction Payment to fund development costs associated with planning, designing, bidding and constructing the Parking Facility. (3) If the DDA has been terminated for any reason, or upon the Agency obtaining title or possession to the Site, the parties agrees that, at the option of the Agency Executive Director, either: (a) within ten (10) days following the written request of the Agency, the Developer shall repay to the Agency such portion of the Commencement of Construction Payment as identified in subsection (4)(a), (4)(b), (4)(c), or (4)(d), below ("Repayment Amount #2"); or (b) the Agency may off -set an amount equal to the Repayment Amount #2 from any amounts owed to Developer from future sales proceeds of the Site. (4) (a) If less than twenty-five percent (25%) of the Parking Facility has been completed, then the Repayment Amount #2 shall be Two Hundred Fifty Thousand Dollars ($250,000.00) plus ten percent (10%) interest per annum accrued from the date of the Agency's advance of the Commitment Payment until the Repayment Amount #2 is repaid in full to the Agency; cg:\HB\CIM\lmp Agmt\4th.1mp (Final).clean September 2, 2003 Page 5 (b) If more than twenty-five percent (25%) of the Parking Facility has been completed, then the Repayment Amount #2 shall be Two Hundred Twenty -Five Thousand Dollars ($225,000.00) plus ten percent (10%) interest per annum accrued from the date of the Agency's advance of the Commitment Payment until the Repayment Amount #2 is repaid in full to the Agency; (c) If more than fifty percent (50%) of the Parking Facility has been completed, then the Repayment Amount #2 shall be Two Hundred Thousand Dollars ($200,000.00) plus ten percent (10%) interest per annum accrued from the date of the Agency's advance of the Commitment Payment until the Repayment Amount #2 is repaid in full to the Agency; or (d) If more than seventy-five percent (75%) of the Parking Facility has been completed, then the Repayment Amount #2 shall be One Hundred Fifty Thousand Dollars ($150,000.00) plus ten percent (10%) interest per annum accrued from the date of the Agency's advance of the Commitment Payment until the Repayment Amount 42 is repaid in full to the Agency. f. The parties agree that the Agency's payment of the Agency Parking Payment shall be made to Developer solely from the sources of funds expressly identified in this Section 2.£ The Agency shall have no obligation to pay any amounts to Developer pursuant to this Section 21 except as follows: (1) The following conditions precedent to each payment hereunder shall be satisfied: (a) The Completion Date shall have occurred and the Agency shall have issued the Release of Construction Covenants as set forth in Section 318 of the DDA; and (b) Developer shall have theretofore cured any default as to any of its obligations under the DDA or the Agreement Containing Covenants Affecting Real Property or the Grant Deed; and (c) If Community Facilities District bonds or similar instruments have been issued pursuant to paragraph (e) of the Revised Schedule of Feasibility Gap Payments, Developer shall have paid all special taxes (and any related penalties, costs, fees or other charges) due in connection with such bonds or similar instruments and shall be in full compliance with all of its other obligations in connection with such bonds or similar instruments. (2) Agency Parking Payment shall be defined to mean that amount which is equal to the Additional Spaces Costs, less the Commitment Payment, less the cgAHB\CIM1Imp AgmMth.Imp (Final).clean September 2, 2003 Page 6 Commencement of Construction Payment. So long as all conditions precedent set forth in subsection (1) above have been satisfied and the DDA has not been terminated for any reason, subject to all of terms and conditions of this Section 2.f, the Agency agrees that it will pay to the Developer the Agency Parking Payment on an annual basis as follows: (i) to the extent Community Facilities District Bonds proceeds are utilized for the construction of the Fixed Additional Spaces, the proportionate share of the special tax levy necessary to pay the annual debt service for that portion of the Community Facilities District Bonds attributable to the Agency Parking Payment; or (ii) to the extent Community Facilities District Bonds proceeds are not utilized for the construction of the Fixed Additional Spaces, an imputed annual debt service equal to the annual payment required for a loan in the amount of the Agency Parking Payment amortized over twenty- five (25) years (which 25-year term shall commence on the Completion Date), accruing simple interest at a rate equal to 10% per annum from the Completion Date. (3) The parties agree that the Agency's obligation to pay the Agency Parking Payment shall be subordinate to the Agency's existing bonded indebtedness and bond issuance(s) and the refunding or refinancing thereof and any future bonds the Agency may issue and the bonded indebtedness incurred in connection therewith, provided that as to future bonds the Agency's financial consultant determines and certifies at the time of issuance of any such future bonds, based upon a report prepared by the financial consultant, that "Net Annual Agency Income" will provide a 2:1 coverage of the Agency Parking Payment. For purposes of the preceding sentence, Net Annual Agency Income shall mean the sum of (a) all Net Tax Increment from the Merged Redevelopment Project; (b) all transient occupancy taxes actually received by the Agency from property within the Merged Redevelopment Project which the Agency has not already pledged or which the Agency has not already agreed to otherwise expend; (c) all lease revenues actually received by the Agency from property within the Merged Redevelopment Project which the Agency has not already pledged or which the Agency has not already agreed to otherwise expend; and (d) the Agency Parking Payment Percentage (defined in Section 4.c., below) of all annual net operating income revenues from the operation of the Parking Facility as described in Section 4 below, minus (y) all existing debt service or ERAF payments for the Merged Redevelopment Project; and (z) all known future debt service or ERAF payments for the Merged Redevelopment Project. Bonded indebtedness includes any indebtedness incurred by the Agency for bonds, notes, interim certificates, debentures, certificates of participation or other obligations issued by the Agency. (4) The parties agree that Agency's obligation hereunder to pay the Agency Parking Payment is not and shall not be construed as a "pledge" of property tax revenues for purposes of Section 33671.5 of the Community Redevelopment Law. (5) (a) The Agency's sources of funds for the Agency Parking Payment shall be all of the following: (i) the Agency Parking Payment Percentage (defined in Section 4.c., below) of all annual net operating income revenues from the cgAHB\CIM\Imp Agmt\4th.Imp (Final).clean September 2, 2003 Page 7 operation of the Parking Facility as described in Section 4 below; (ii) "Net Tax Increment" from the Merged Redevelopment Project; (iii) transient occupancy taxes actually received by the Agency from property within the Merged Redevelopment Project which the Agency has not already pledged or which the Agency has not already agreed to otherwise expend; and (iv) lease revenues actually received by the Agency from property within the Merged Redevelopment Project which the Agency has not already pledged or which the Agency has not already agreed to otherwise expend. Any annual net operating income revenues from the operation of the Parking Facility, to the extent paid to Developer, shall each year first be applied as a credit against the Agency's obligation hereunder to pay the Agency Parking Payment, prior to the payment of Net Tax Increment, transient occupancy taxes, or lease revenues. Net Tax Increment shall not be applied directly or indirectly to the payment of bonds of any community facilities district. (b) "Net Tax Increment" as used herein shall mean the total ad valorem property tax increment revenue allocated to and received by Agency pursuant to Section 33670(b) of the California Health and Safety Code, as said statute may be amended from time to time, by application of the one percent (1%) tax levied against real property as permitted by Article XIIIA of the California Constitution, in an amount attributable by the Orange County Assessor solely to the Merged Redevelopment Project, but specifically excluding therefrom all of the following: (a) the percentage of tax increment revenues from the Merged Redevelopment Project that is set aside pursuant to Sections 33334.2 et seq. of the California Health and Safety Code or any successor law for low- and moderate -income housing purposes; and (b) the percentage of tax increment revenues from the Merged Redevelopment Project that the Agency is required to pay to any and all governmental entities pursuant to any provision of law, as amended from time to time, or pursuant to tax sharing/pass-through agreements (including any and all agreements entered into prior to the DDA by and Agency and such governmental entities implementing the tax sharing/pass-through agreements); and (c) the percentage of tax increment revenues in the Merged Redevelopment Project which the Agency may be required by the State of California to pay from time to time, including, for example, and without limiting the generality of the foregoing, any payments which the Agency may be required to pay to the Education Revenue Augmentation Fund pursuant to Section 33681 et seq. of the Community Redevelopment Law, as amended from time to time; and (d) the amount of any revenues received by the Agency which are attributable to any special taxes or assessments or voter -approved indebtedness; and (e) charges for County administrative charges, fees or costs for the Merged Redevelopment Project. The Agency hereby covenants to refrain from taking any action which would diminish or impair in any way its receipt of Net Tax Increment. g. The Developer acknowledges and agrees that notwithstanding anything to the contrary herein, the parties agree that in no event shall the Agency be obligated to pay to the Developer an aggregate amount in excess of the Additional Spaces Costs for the Fixed Additional Spaces regardless of the actual development and construction costs for the Fixed Additional Spaces. cgAHB\CIM\lmp Agmt\4th.Imp (Final).clean September 2, 2003 Page 8 3. No Change to Agency Participation Payments; Not Extra Number of Parking Space Costs; No Change in Certified Project Cost Statement. a. The parties acknowledge and agree that nothing in this Fourth Implementation Agreement is intended to change nor does change in any way the Developer's obligation to pay to the Agency "Agency Participation Payments" or the calculation of the "Agency Participation Payment" as set forth in Section 701 of the DDA. The parties acknowledge and agree that this includes, without limitation, the fact that the Additional Spaces Costs shall not be included in the Project Costs used to calculate the "Adjusted Project Costs" or the "Developer's Annual Return" pursuant to Section 701 of the DDA. b. The parties acknowledge and agree that the Additional Spaces Costs are not the "Extra Number of Parking Space Costs" as currently defined in the DDA in Section 0) of the Revised Schedule of Feasibility Gap Payments as the Fixed Additional Spaces are being developed and constructed pursuant to this Fourth Implementation Agreement at the request of the Agency and the agreement of the Developer and not due to the City or other governmental agency having jurisdiction over the development of the Site requiring a number of parking spaces in excess of 403 spaces in the Parking Facility. C. The parties acknowledge and agree that the Additional Spaces Costs shall not be included in the Certified Project Cost Statement referred to in Section (a)(3) of the Revised Schedule of Feasibility Gap Payments for the purpose of calculating the Agency Obligation pursuant to Section (a) of the Revised Schedule of Feasibility Gap Payments. 4. Annual Net Operating Income Revenues. a. The parties agree that until the Additional Parking Costs have been paid in full by the Agency, rather than one hundred percent (100%) of all annual net operating income revenues from the operation of the Parking Facility being available and used as a source of available funds to pay the Agency Obligation pursuant to Section (d)(iv) of the Revised Schedule of Feasibility Gap Payments, only the "Agency Obligation Percentage" (defined in subsection d., below) of all annual net operating income revenues from the operation of the Parking Facility shall be available and used as a source of available funds to pay the Agency Obligation pursuant to Section (d)(iv) of the Revised Schedule of Feasibility Gap Payments. The parties agree that the "Agency Parking Payment Percentage" (defined in subsection c., below) of all annual net operating income revenues from the operation of the Parking Facility may be used by the Agency to pay the Agency Parking Payment hereunder. b. The parties agree the reduction set forth in this Section 4 of the annual net operating income revenues from the operation of the Parking Facility represents the proportionate allocation of the annual net operating income revenues from the operation cg:\HB\CIM\Imp AgrriMth.Imp (Final).clean September 2, 2003 Page 9 of the Parking Facility based upon what share the number of Fixed Additional Spaces is of the total number of parking spaces in the Parking Facility. C. The "Agency Parking Payment Percentage" shall mean a percentage (rounded to two decimal places) equal to the (a) the actual total number of Fixed Additional Spaces, divided by (b) the total number of parking spaces in the Parking Facility. For illustrative purposes only, if the total number of parking spaces in the Parking Facility is 491 and the actual total number of Fixed Additional Spaces is 83, the Agency Parking Payment Percentage would be 16.90%. d. The "Agency Obligation Percentage" shall mean a percentage equal to the difference between (a) one hundred percent (100%), minus (b) the Agency Parking Payment Percentage. For illustrative purposes only, if the Agency Parking Payment Percentage is 16.90%, the Agency Obligation Percentage would be 83.1%. 5. DDA in Full Force and Effect. Except as expressly provided otherwise in this Fourth Implementation Agreement, the DDA remains in full force and effect, enforceable in accordance with its terms. 6. Further Assurances. The parties agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Fourth Implementation Agreement. 7. Authority of Executive Director. The Executive Director of the Agency is authorized under this Fourth Implementation Agreement to make any approvals on the part of the Agency described in this Fourth Implementation Agreement and to negotiate and execute on behalf of the Agency documents relating to the implementation of this Fourth Implementation Agreement. 8. Date of this Fourth Implementation Agreement. The "Effective Date" of this Fourth Implementation Agreement shall be the date the Fourth Implementation Agreement is executed by both the Developer and the Agency. [signatures on following pages] cg:\HB\CIM\Imp AgmMth.Imp (Final).clean September 2, 2003 Page 10 Date: Septebmer 15, 2003 ATTEST: REVIEWED AND APPROVED AS TO FORM: Agency General Counsel APPROVED AS TO FORM: Kane, Ballmer & Berkman 1 cgAHB\CIM\Imp Agmt\4tb.Imp (Final).clean September 2, 2003 Agency REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH AV a Chairman PIW500a� •:*Taff Executive Director INITIATED AND APPROVED: Deputy Executive Director Page 11 Developer CIM/HUNTINGTON, LLC, a California limited liability company By: CIM CALIFORNIA URBAN REAL ESTATE FUND, L.P. (the "Fund"), a Delaware limited partnership, its manager By: CIM URBAN FUND GP, LLC, a California limited liability company, its general partner By: CIM GROUP, LLC, a California limited liability company, its manager By: ORCHARD CAPITAL CORPORATION, a California corporation, its manager Date: By: Richard S. Ressler, its President cgAHB\CIM\Imp Agm64th.Imp (Final).clean September 2, 2003 Page 12 , ATTACH��M"EN,T CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICA TION To: Ray Silver, City Administrator From: Clay Martin, Director Of Administrative Services Subject: FIS 2003-34 Approve Fourth Implementation Agreement with CIM/Huntington, LLC Date: September 3, 2003 As required by Resolution 4832, this Fiscal Impact Statement, has been prepared for "Approve Fourth Implementation Agreement with CIM/Huntington, LLC." If the City Council approves this request (total current year appropriation $500,000), the estimated unappropriated, undesignated Parking In -Lieu Fund will be reduced to $30,000. Clay Martin Director of Administrative Services Power Point Presentation ATTACHMENT #3 • Council provided direction to acquire additional parking in The Strand project. • Needed to meet part of City's In -Lieu Parking obligations. 1 1 tolu . 370 • The Strand is to include 405 parking spaces in a two -level subterranean garage. • Proposed 4th Implementation Agreement sets forth terms and conditions for the development of up to 100 additional spaces. Implementation Agreement Terms • Developer to design and construct up to 100 additional spaces. • Up to 50% of spaces can be tandem. • Agency agrees to pay the lessor of actual cost or $25,000/space. 2 Implementation Agreement Terms • $500,000 paid up front from accumulated parking in -lieu fees. • Balance of cost of additional spaces to be funded through Community Facilities District financing with Agency making proportionate share of annual debt service payment. Implementation Agreement Terms • Proportionate operating revenue' from the additional parking spaces to be applied to Agency debt service payment. • Balance of debt service funded from Agency tax increment and other revenues. 3 Illustrative Financing • Cost of additional spaces $ L75000 • Less commitment/ construction payment 500,000 • Amount financed — CFD $ L250,000 Illustrative Financing • Annual debt service payment $ .1305000 • Less net annual parking revenue 30,000 • Estimated net annual Agency $ 100M00 payment .......... M Recommended Actions • Agency: Approve 41h Implementation Agreement with CINVHuntington, LLC, and authorize the Chairperson and Agency Clerk to execute the Agreement. • city council: Appropriate $500,000 from the Parking In -Lieu Fund. 5 RCA ROUTING SHEET INITIATING DEPARTMENT: Economic Development SUBJECT: APPROVE FOURTH IMPLEMENTATION AGREEMENT. WITH CIM/HUNTINGTON, LLC- COUNCIL MEETING DATE: September 15, 2003 RCA ATTACHMENTS c STATUS Ordinance (w/exhibits & legislative draft if applicable) t Nd't,Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney) Attached Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Attached Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (if applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff Assistant City Administrator (Initial) ( ) City Administrator (Initial) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: l RCA Author: D. Biggs, ext. 5909 CITY OF HI. NTINGTON BEACH 2000 MAIN STREET OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK CALIFORNIA 92648 LETTER OF TRANSMITTAL OF ITEM APPROVED BY THE CITY COUNCIL/ REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH DATE: September 29, 2003 TO: CIM/Huntington, Inc. ATTENTION: Name 6922 Hollywood Blvd., Suite 900 DEPARTMENT: Street Hollywood, CA 90028 REGARDING: 4th implementation Agreement City, State, Zip to Disposition & Development Agreement See Attached Action Agenda Item F-2 Date of Approval September 15, 2003 Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: 4� ow041'7- Connie Brockway City Clerk Attachments: Action Agenda Page CC: David Biggs Name Howard Zelefsky Name Name Name Name Agreement Bonds Insurance RCA Deed Other ED X Department Planning RCA X Agreement Insurance Ofp-r Department RCA Agreement Insurance .ether Department RCA Agreement Insurance Other Department RCA Agreement Insurance Other Department RCA Insurance g:/followup/letters/coveritr.doc (Telephone: 714-536-5227 )