CONTRACT BETWEEN CONCEPTS DIRECT, INC. AS OWNER AND INTERGROUP, INC.
AS ARCHITECT FOR THE PROVISION OF ARCHITECTURAL SERVICES
THIS CONTRACT AND AGREEMENT is made between CONCEPTS DIRECT, INC., a
Delaware corporation ("Owner") and INTERGROUP, INC., a Colorado
corporation ("Architect"). The Owner has acquired or is in the process
of acquiring land described as: 139.093 acres of land with frontage on
Colorado State Highway 119, commonly known as the Xxxxxxx X. Xxxxxx
Property in Weld County, Colorado. Said land to be annexed into the
City of Longmont, Colorado.
RECITALS
1. Owner desires to develop, on the land, the following project: An
approximately 115,000 square foot office production/light manufacturing
and distribution facility (hereinafter the "New Facility").
2. Architect is a registered and licensed architect in the State of
Colorado and Architect represents to Owner that Architect is skilled and
experienced in the architectural design of building facilities similar
to the New Facility that Owner desires to construct and Architect
desires to design the New Facility for Owner.
3. Owner agrees to provide Architect with basic programming
information, to inform Architect as to the use of the New Facility to be
designed and the amount of space needed to be devoted to various
purposes, and will supply Architect with as much detailed information as
reasonably possible as to the characteristics of the project desired by
Owner, including economic and aesthetic criteria. Owner, at no cost to
Architect, will supply Architect with all reasonably required
information and documents in Owner's possession as to zoning,
governmental restrictions, surveys, construction financing, recorded
covenants, conditions, restrictions, and all other information that is
known to Owner and would be relevant to the proper performance of
Architect's duties under this contract.
AGREEMENT
Owner employs Architect to perform, and Architect agrees to perform, the
following services:
1. New Facility Design.
A. Programming and Schematic Design. Architect, based on the
programming and other information provided by the Owner, will provide
for the consideration of Owner, a scheme of design as to the location,
size, structure, appearance, and function of the project and preliminary
schematic design drawings for the New Facility that will display the
general characteristics, appearance, and dimensions of the project.
Owner will, in turn, provide Architect with detailed reactions to the
Architect's scheme, and the Architect will supply a gross estimate as to
the cost of the project. Architect will take Owner's reactions and then
revise Architect's preliminary designs and develop a final schematic
preliminary site plan, schematic elevations and other standard schematic
design drawings that address Owner's preliminary reactions and which can
be used as a basis for construction documents.
B. Design Development/Preliminary Drawings. After Owner and Architect
have agreed as to the philosophy of design and after Owner has approved
the schematics, the Architect will proceed with preliminary drawings.
The purpose of the preliminary drawings is to describe the general
characteristics of the project as to the size and location of buildings,
size and location of rooms and other spaces within the buildings, the
general characteristics of the Architectural design, the general
characteristics of the structural and roof design, and the allocation of
interior and exterior functions and spaces. Architect will not proceed
with working drawings/construction documents until Owner has approved,
in writing, the preliminary drawings. Based on the preliminary
drawings, Architect will supply Owner with a written preliminary
estimate of the cost of constructing the project.
C. Working Drawings. Architect will produce all necessary working
drawings and specifications for the construction documents/working
drawings including final site plans, elevations, sections, details,
construction plans, and specifications to enable Owner and/or Owner's
contractor to obtain all necessary building permits and to construct the
New Facility in accordance with acceptable architectural, fire, safety
and building code requirements. Architect will submit drawings to
contractor for final bidding purposes, and review bids. Architect will
assist the Owner and/or Owner's contractor in submitting the drawings to
all applicable governmental agencies for approval, and will make any
corrections that are necessary to obtain all necessary governmental
approvals. Architect, at no additional cost, will perform revisions and
redesign necessary to meet governmental requirements. If Owner requires
Architect to change drawings that Owner has already approved or agreed
to, Architect's fee will be equitably adjusted.
D. Construction Administration.
(1) Contractor Selection. Architect will consult with Owner as to the
various systems available for the employment of a contractor or
contractors for the construction of the project, and will review and
advise Owner or Owner's attorney regarding the proposed contract with
the contractor. Architect will advise Owner as to the reputations (if
known) of contractors and subcontractors who are under consideration.
If competitive bidding is to be employed, it will be from a select bid
list approved by Owner and Architect, and bidding and bid opening will
be supervised by Architect.
(2) Construction Observation. During the progress of the job, the
Architect will visit the job site at appropriate intervals, but as a
minimum, on a bi-weekly basis, and observe and review the progress of
the work and to insure conformance with contract documents and
conformance with Owner's reasonably desired construction schedule. The
Architect's observations will be as to those features of the project
that can be observed without intrusive or destructive techniques.
Intrusive, destructive, chemical, mechanical, and laboratory testing
will be performed by appropriate agencies employed by Owner upon the
recommendation of Architect. Architect will act as Owner's agent, and
will deal, as such, with the contractor in order to protect the
interests of Owner against deviation from the contract documents or
acceptable standards of construction. If Architect determines that work
performed by the contractor does not comply with the requirements of the
contract documents, Architect will notify Owner and contractor of such
deviation in writing, and Owner will take such measures as it deems
desirable to secure compliance. Construction inspection and observation
shall include review of shop drawings, review and approval of contractor
pay requests, in accordance with policies and procedures established by
Owner and/or Owner's Lender, answering field questions and providing a
detailed written final construction punchlist.
(3) Construction Progress Payments. Architect will recommend documents
and an appropriate system for processing progress payments to the
contractor, in accordance with policies and procedures established by
Owner and/or Owner's Lender, and will approve certificates for payment,
as appropriate under the contract documents, based on information
obtained by Architect by inspection of the progress of the work.
(4) Master Planning. In addition to the New Facility design, Architect
agrees to provide to the Owner a conceptual design for the 139 acre
parcel consisting of overall land use strategies, road alignments,
general landscaping, open space planning, and phasing. Major utility
locations will be shown on said plans if provided by Owner's civil
engineer. Architect will only revise said plans a total of three times
for the price specified herein: (1) revisions to address Owner's civil
engineers and Owner's broker's preliminary comments (2) revisions to
address governmental agencies' initial comments; and (3) revisions
necessary to obtain final governmental zoning approvals.
(5) Covenants. In addition to the New Facility design and master
planning, Architect agrees to provide to the Owner a detailed written
set of conditions, covenants, and restrictions (collectively
"Covenants") designed to establish a quality architectural design
baseline and unified architectural theme for the development of the
entire 139 acre project of Owner. Said Covenants shall include written
baseline standards for all future development, including standards to
protect and insure that the quality of development established by the
New Facility is not degraded by future development and shall include the
requirement that all future site plans, elevations and building
materials shall be approved in advance by an architectural review board
to be established by Owner.
(6) Completion of Work. The following conditions are necessary for
completion of the work in a timely and orderly manner and within the
rates set forth in Paragraph 11 of this Agreement. Because Architect
wishes to provide the service Owner needs in a prompt, efficient manner,
Architect has conditioned this Agreement on these requirements:
(a) Upon submission by Intergroup, Inc. to the Owner of any and all
documents or work products prepared by Architect, Owner shall review the
same and approve or specify changes required within a reasonable period
of time. Any delay in the response of the Owner to Architect's
submission will, at Architect's option, extend all subsequent deadlines
for Architect set forth in any work schedule or in this Agreement.
Owner's signature on any submissions by Architect's proof of Owner's
satisfaction with the product.
(b) No partial payment made hereunder shall be or construed to be final
acceptance or approval of that part of the services to which such
partial payment relates or relive Architect of any of its obligations
hereunder with respect thereto.
(c) Architect represents, covenants, and agrees that it shall, at its
own cost, make good any defects in its services as soon as Architect
becomes aware of such defects or is notified of such defects. This
commitment by Architect is in addition to, and not in substitution for,
any other remedy for defective services which Owner may have at law or
in equity.
(d) The final request for payment for any work required under this
agreement or any additional services requested by Owner shall not be
made until Architect delivers to Owner a complete release of all liens
arising out of this agreement and an affidavit that so far as Architect
has knowledge or information, the release includes and covers all
materials and services over which Architect has control for which a lien
could be filed.
2. Architects Duties and Representations.
A. Notwithstanding anything to the contrary contained in this
agreement, Owner and Architect agree and acknowledge-e that Owner is
entering into this agreement in reliance on Architect's special and
unique abilities with respect to performing the architectural services
provided for herein. Architect accepts the relationship of trust and
confidence established between it and Owner by this agreement.
Architect covenants with Owner to use its best efforts, skill, judgment,
and abilities to design the New Facility and to further the interests of
Owner in accordance with the best prevailing professional standards and
in compliance with all applicable national, federal, state, municipal
laws, regulations, codes, ordinances, orders and with those of any other
body having jurisdiction. Prior to the commencement of construction,
Architect shall certify to Owner and the lending institution or
institutions financing the construction of the project ("Lender") that
the drawings and specifications and all drawings and the improvements
when built in accordance therewith conform to all applicable
governmental regulations, statutes, and ordinances.
B. Architect represents, covenants, and agrees that its project
drawings and specifications will be accurate and free from any material
errors and the shop drawings that it must approve will be accurate and
free from any material errors.
C. Architect's duties as set forth herein shall at no time be in any
way diminished by reason of any approval by Owner of the drawings and
specifications nor shall Architect be released from any liability by
reason of such approval by Owner, it being understood that Owner at all
times is ultimately relying upon Architect's skill and knowledge in
preparing the drawings and specifications.
3. Property of Owner.
A. All drawings and specifications, computations, sketches, renderings,
and other materials peculiar to the services prepared by Architect or
Architect's consultants, are the services prepared by Architect or
Architect's consultants, and once paid for by Owner as provided for
herein are the property of the Owner and for its exclusive use and
re-use at any time without further compensation due Architect and
without any restrictions.
B. All documents including drawings and field notes prepared by
Architect, pursuant to this Agreement are not represented by Architect
to be suitable for re-use by Owner or others on extensions of this
project or any other project. Any re-use is hereby and shall be
permitted, but will be at Owner's sole risk and without liability to
Architect and Owner shall indemnify and hold harmless Architect from all
claims, damages, losses and expenses including attorney's fees arising
out of or resulting therefrom.
4. Confidentiality.
Architect shall treat all material and information provided by Owner and
all statements by Owner concerning the development of the 139 acres and
the development and construction of the New Facility in a confidential
manner, and Architect shall neither use any such material or information
or copies thereof on other work nor disclose such material or
information to any other party without Owner's prior written approval.
5. Owner's Lender.
A. Architect will reasonably cooperate with Owner's Lender in all
respects regarding the construction of the New Facility.
B. Architect agrees that notwithstanding a default by Owner under the
provisions of this agreement which would give Architect the right to
terminate this Agreement, Architect will continue to perform its
obligations hereunder (on the same terms and conditions as are set forth
herein) for and on account of Lender if Lender shall cure any such
default by Owner within fifteen (15) days after notice from Architect to
Lender and shall agree in writing to perform all obligations of the
Owner hereunder accruing from and after the date Lender succeeds to
Owner's rights and obligations hereunder. If requested by Under,
Architect will execute a separate letter or other reasonable agreement
with the Lender further evidencing its commitment to continue
performance pursuant to this article.
C. Whenever herein an approval, acceptance, direction, requirement,
permission, designation, prescription, or other action by Owner is
required or permitted under the contract documents, such action may, at
the option of Owner and/or Lender, be deemed to include and be
conditioned upon the authorization of or joinder in such action by
Lender or an appropriate representative of Lender; provided, however, no
such action by Lender shall abrogate any right granted to Architect
under the contract documents. Architect shall prepare and submit all
reports, certificates, and statements required by Lender and shall
perform such other actions as may be reasonably required of Architect by
Lender subject, however, to reasonable reimbursement for such additional
services as provided on Schedule A attached hereto and incorporated
herein by reference.
6. Change Orders.
Architect will recommend a procedure for processing change orders, will
check pricing of change orders, and will recommend appropriate change
orders for signature by Owner. Owner will avoid dealing directly with
the contractor and will process change orders through Architect.
7. Job Site Discipline and Safety.
Within the constraints of periodic observation, Architect will use its
best efforts, as the agent of Owner, to require the contractor to
maintain a disciplined, orderly, and safe job site. Architect is not,
however, responsible for activities that are beyond its control, or that
occur when Architect is not present on the site, or for activities or
conditions that are not reasonably observable by Architect when present
on the site. If Architect determines that the job is being conducted in
an unsafe manner, it will inform the contractor and Owner in writing,
and Owner will take such measures as are necessary to require the
contractor to proceed safely.
8. Shop Drawings, Submittals, Selections.
Architect will process shop drawings and other submittals and will make
color and material selections, and will promptly respond to reasonable
requests for information from contractor.
9. Completion and Occupancy .
When the project is substantially complete, Architect win make a
detailed inspection, and will prepare a punch list. Architect will
determine when the project is substantially complete, and when it is
ready for occupancy.
10. Repairs and Warranties.
Architect will assist the Owner in processing warranty claims, repairs,
and corrections, and will use its best efforts, as the agent of the
Owner, to require contractors, subcontractors, and suppliers to correct
improper work and to make good their warranties. If legal action is
required to secure corrective or warranty work, Owner will employ a
lawyer for that purpose.
11. Payment.
For the Architect's services, Owner shall make payments as follows:
A. Programming and Schematic Design Drawings. For the creation of the
design concept and philosophy, including preliminary schematic drawings,
Owner will pay Architect a fixed design fee not to exceed $11,400.00.
B. Design Development/Preliminary Drawings. For the preparation of
preliminary elevation, design and interior layout drawings, the Owner
will pay architect a fixed fee not to exceed $25,500.00.
C. Working Drawings and Specifications. For the preparation of working
drawings and specifications, Owner will pay Architect, against monthly
xxxxxxxx, according to Schedule A which is attached hereto and
incorporated herein, a fixed fee for complete working drawings and
specifications not to exceed $69,625.00. Notwithstanding anything to the
contrary contained herein, the final payment of $10,000 of said
$69,625.00 shall not be made by Owner (and shall not be accrue any
interest or late fees) until all said drawings and specifications have
been approved by all government officials and building permits issued
for the construction of the New Facility.
D. Construction Administration. For all construction administration
services rendered by Architect, including services in connection with
contractor selection, bidding, construction supervision, inspection,
warranty, and corrective work, Owner will pay Architect a fixed fee not
to exceed $20,675.00. Notwithstanding anything to the contrary contained
herein, the final payment of $5,000 of said $20,675.00 shall not be made
by Owner (and shall not accrue any interest or late fees) until (a) the
appropriate governmental agency has made and approved a final inspection
and issued an occupancy permit; and (b) Architect has issued a written
letter of completion to Owner certifying that the New Facility has been
completed by the contractor in accordance with the Architect's drawings
and specification.
E. Master Planning. For all master planning and land use design for
the Owner's entire 139 acre parcel of land, the Owner will pay Architect
a fixed fee not to exceed $7,500.00.
F. Covenants. For the development and preparation of a complete and
detailed written set of conditions, covenants and restrictions designed
to establish a quality architectural design baseline and unified
architectural theme for the development of the entire 139 acre project
of Owner, the Owner will pay Architect a fixed, not to exceed fee of
$5,000.00.
G. Extra Services. If Architect provides extra services not included
within the scope of this agreement and at the written request of Owner,
Architect will xxxx monthly for such services, which will be compensated
by Owner in accordance with the rates established by Schedule A attached
hereto and incorporated herein by reference.
12. Errors and Omissions/Insurance.
Architect will use its best efforts to guard against errors or omissions
in the performance of its services under this agreement and will
carefully prepare the drawings, contract documents and instruments of
service. Architect, during all periods this agreement remains in full
force and effect, shall maintain a comprehensive general liability
insurance policy in a commercially reasonable amount to protect
Architect from any claims that may be made by Owner due to negligence.
errors, omissions, mistakes, and breaches of warranty that may be
committed by Architect in the performance of Architect's services and
duties as provided for herein. Architect agrees to. provide a
certificate from its insurance carrier evidencing the existence of said
insurance upon request of Owner or Owner's Lender.
13. Disputes.
If a dispute should arise between Owner and the contractor, Architect
shall determine the dispute by a written decision. Architect's written
decision shall be subject to review by appropriate arbitration or court
proceedings. Architect shall give each party an opportunity to produce
evidence and argument supporting its side of the dispute.
14. Attorneys' Fees.
If Architect or Owner should become involved in litigation or
arbitration proceedings as a result of this agreement, or the
construction of the project, the court or arbitration tribunal shall
award reasonable attorneys fees to the prevailing party.
15. Arbitration.
If a dispute should arise between Architect and Owner relating to this
agreement or its performance, it shall be subject to arbitration under
the rules of the American Arbitration Association. The contractor and
any other party with a direct interest in the dispute may become a party
to the arbitration with the permission of the arbitrator. By submitting
the dispute to arbitration, the parties do not waive the right to seek
provisional remedies from a court. The parties authorize the
arbitration tribunal to grant equitable, as well as monetary, relief.
The arbitration tribunal is authorized to award compensation for the
time and trouble of arbitration, including arbitration fees, expert
witness fees, and attorneys fees, to the party or parties justly
entitled thereto. If a party, after due notice, fails to participate in
an arbitration hearing, the tribunal shall decide the dispute in
accordance with evidence introduced by the party or parties who do
participate.
16. Termination.
If Owner or the agents or contractors of Owner substantially and
materially interfere with the work or services to be performed by
Architect, Architect may give notice of such interference to Owner. In
the event of such notice, if the interference has not been corrected
within ten (10) days of Owner's receipt of notice or if the parties have
not satisfactorily resolved the problem within ten (10) days after
Owner's receipt of notice, then Architect may give Owner notice of
termination. Architect shall be paid for all work performed and
expenses incurred up to and including the date of termination. Owner
reserves the right to terminate this Agreement if Architect fails to
perform under the terms of this Agreement, or for any other reason upon
five (5) days written notice. In the event of any such termination by
Owner, Owner shall pay Architect for all fees earned and all work
performed up to the date of termination.
All notices and other communications herein required shall be in writing
and be deemed duly given if personally delivered or mailed by certified
mail, return receipt requested, postage prepaid; to:
(1) Owner, at:
Xxxxxxx X. Xxxxxx, Chairman Concepts Direct, Inc. 0000 Xxxxx Xxxxxx
Xxxxxx Xxxxxxxx, XX 00000
and
(2) Architect, at:
Xxx X. Xxxxx, AIA, Chairman Intergroup, Inc. 0000 Xxxxx Xxxxxxxx Xxxx.,
Xxx. 000 Xxxxxx, XX 00000
17. Successors and Assigns.
Neither party shall assign or transfer any right, duty, obligation or
interest under this agreement without the prior written consent of the
other party. Absent a written agreement to the contrary, no assignment
or transfer shall release the assignor/transferor from any duty or
obligation hereunder.
18. Entire Agreement.
This represents the entire agreement between Architect and Owner and
supersedes any and all oral discussions or other draft agreements
between Owner and Architect. No modifications to this agreement shall
be deemed to have been made unless in writing and signed by both Owner
and Architect.
Date: September 4, 1996
OWNER: CONCEPTS DIRECT, INC.
By: /s/ Philllp X. Xxxxxx, Chairman
Xxxxxxx X. Xxxxxx, Chairman
Date: September 4, 1996
ARCHITECT: INTERGROUP, INC.
By: /s/ Xxx X. Xxxxx, AIA, Chairman
Xxx X. Xxxxx, AIA, Chairman
SCHEDULE A
Billing Procedures and Schedule of Rates for Additional Services
A. BILLING
Owner will be billed on or about the 5th day of each month for all work
performed during the preceding month. Payment will be expected within
thirty (30) days after billing. On past due amounts, a 1.5% late fee
will be charged monthly. On any past due charges requiring the services
of an attorney for collection, you will also be required to pay
reasonable attorney's fees. This is general policy and not a reflection
upon Owner as a valued client; it is necessary to insure adequate cash
flow for Architect and thus, reasonable prices for Architect's services
in the future.
B. SCHEDULE OF RATES FOR ADDITIONAL SERVICES
Principal Architect $100.00/hour
Project Architect $55.00-70.00/hour
Draftsman $ 40.00-55.00/hour
Expenses:
Mileage $0.30/mile
Reproduction $0.12/copy (8-1/2x11)
Blueprinting $1.00/page (24"x36")
Other At direct cost +10%
C. DURATION
Fees contained in this Agreement are based upon the information
Architect has been able to obtain from Owner at this time. If any
changes are made at a later date, a mutual written agreement between the
parties in advance will be required as to the extra work involved.
Because Architect cannot rely on the stability of pricing factors,
Architect cannot and does not guarantee that the fees submitted in this
Agreement will not vary if the work is not begun within thirty (30) days
of the date thereof. The fees assume a six (6) month construction
period from the issuance of building department drawings by Architect.
If the project goes beyond that time, through no fault of Architect, the
fees for administration may have to be increased to cover actual
increased costs and expenses.
