HomeMy WebLinkAboutProfessional Service Agreement with LCA Architects for New City Hall architectural servicesPROFESSIONAL SERVICES
AGREEMENT
ARCHITECTURAL SERVICES
BETWEEN
CITY OF MERIDIAN
AN IDAHO MUNICIPAL CORPORATION
AND
LCA ARCHITECTS, P.A.
AN IDAHO PROFESSIONAL CORPORATION
FOR THE
NEW MERIDIAN CITY HALL
DATED
JULY 11, 2006
TABLE OF CONTENTS
Page
1. RELATIONSHIP OF THE PARTIES 1
1.1 RELATIONSHIP OF THE PARTIES. 1
1.2 AUTHORIZED REPRESENTATIVE. 2
1.3 ARCHITECT AS OWNER'S REPRESENTATIVE. 2
2. ARCHITECT 2
2.1 ARCHITECT' S REPRESENTATIONS. 2
2.2 COMMUNICATIONS. 3
2.3 MEETINGS WITH GOVERNMENTAL OFFICIALS. 3
2.4 PROJECT RECORDS. 3
2.5 VALUE ENGINEERING. 3
2.6 GOVERNMENTAL PERMITS. 4
2.7 COMPLIANCE WITH LAWS. 4
2.$ INDEPENDENT CONTRACTOR. 4
2.9 CONSULTANTS. 4
2.10 INDEMNIFICATION 5
2.11 OUTSIDE COMPENSATION PROHIBITED. 5
3. OWNER 5
3.1 OWNER'S OBJECTIVES. 5
3.2 OWNER'S DUTIES. 6
3.3 OWNER'S CONSTRUCTION MANAGER ~
3.4 CONTRACTOR ~
4. SCOPE OF SERVICES ~
4.1 IN GENERAL. ~
4.2 DEVELOPMENT STRATEGIES PHASE. 7
4.3 PRELIMINARY DESIGN PHASE. $
4.4 CONSTRUCTION DOCUMENTS PHASE. 9
4.5 BIDDING PHASE. 10
4.6 CONSTRUCTION PHASE. l O
5. SCHEDULE 12
S.1 SCHEDULE OF PERFORMANCE. 12
5.2 DELAYS. 12
6. COMPENSATION 13
6.1 ARCHITECT' S FEE. 13
fi.2 COMPENSATION FOR ADDITIONAL SERVICES. 13
6.3 REIMBURSABLE EXPENSES. 13
6.4 PAYMENTS. 13
TABLE OF CONTENTS - I
PROFESSIONAL SERVICES AGREEMENT
(Architectural Services)
THIS PROFESSIONAL SERVICES AGREEMENT (this "A~reement") is made
effective the 11th day of July, 2006, by and between CITY OF MERIDIAN, an Idaho municipal
corporation ("Owner"), and LCA ARCHITECTS, P.A., an Idaho professional corporation
("Architect").
RECITALS
A. Owner is under contract to purchase that certain parcel of land located at 27 E.
Broadway, Meridian, Idaho (the "Site").
B. Owner desires to develop a new city hall facility and related improvements on the
Site (the "Project").
C. Architect has represented to Owner that it is has the skills, qualifications, and
experience to provide professional architectural design and contract administration services for
the Project on behalf of Owner.
D. Owner desires to retain Architect, and Architect desires to be retained by Owner,
for professional architectural services for the Project on Owner's behalf.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
agreements stated herein, and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, Owner and Architect agree as follows:
1. RELATIONSHIP OF THE PARTIES
1.1 Relationship of the Parties.
Architect acknowledges and accepts the relationship of trust and confidence
established with Owner by this Agreement and that this relationship is a material consideration
for Owner in entering into this Agreement. Accordingly, Architect shall, at all times, act in a
manner consistent with this relationship. Architect further covenants that Architect will perform
its services under this Agreement, in the exercise of ordinary and reasonable care and with the
same degree of professional skill, diligence and judgment as is customary among architects of
similar reputation performing work for projects of a size, scope and complexity similar to the
Project. Architect shall, at all times, further the interest of Owner through efficient business
administration and management.
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1.2 Authorized Representative.
Owner and Architect shall designate a representative who shall be authorized to
act on that parties' behalf with respect to the Project. Each party's representative shall render
decisions in a timely manner in order to avoid unreasonable delay in the progress of the Project.
Each party may rely upon the directions and decisions of such representatives as the directions
and decisions of the other party. Neither Owner nor Architect shall change its authorized
representative without five (5) days prior written notice to the other party.
1.2.1 Owner's authorized representative shall be:
To be determined by Owner. Upon Owner's selection of its
authorized representative, Owner will provide Architect the name
and contact information for such representative.
1.2.2 Architect's authorized representative shall be:
Steve Simmons, President
LCA ARCHITECTS, P.A.
1221 Shoreline Lane
Boise, Idaho 83702
Telephone: 208-345 -6677
Facsimile: 208-344-9002
Mobile: 208-830-4122
Email: ssimmons 1 @lcarch.com
1.3 Architect as Owner's Representative.
Architect shall be a representative of Owner during the Project. Architect shall
have authority to act on behalf of Owner only to the extent provided in this Agreement, unless
otherwise set forth in writing.
2. ARCHITECT
2.1 Architect's Representations.
Architect makes the following express representations and warranties to Owner,
which shall survive the execution and delivery of this Agreement:
2.1.1 Architect is or will be professionally qualified to provide
architectural services for the Project and is properly licensed to practice architecture by all public
entities having jurisdiction over Architect and the Project;
2.1.2 Architect has, or will as part of its services under this
Agreement, become familiar with and examined the Site, including, but not limited to, the
existing terrain, structures, landscaping and the local conditions under which the Project is to be
designed, constructed, and operated, and correlated its observations with the Project's
requirements;
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2.1.3 Architect has the professional knowledge, skills, experience,
education and staffing to design the Project and prepare construction documents for the Project.
The individual employees of Architect that will render services pursuant to this Agreement are
knowledgeable and experienced in the technical disciplines required for this Project;
2.1.4 Architect shall prepare all documents and provide all services
required under this Agreement in such a manner that increases in Project costs resulting from
Architect's errors or omissions do not exceed one percent (1%) of the total construction price of
the Project; and
2.1.5 Architect assumes full responsibility to Owner for its own
improper acts and/or omissions and those employed or retained by Architect in connection with
the Project (excluding intentional acts), but not for acts and omissions expressly directed by
Owner.
2.2 Communications.
Architect shall endeavor to keep Owner fully informed regarding the progress of
the Project so Owner can have meaningful review and involvement in the Project. Without
limiting the generality of the foregoing sentence, Architect shall, as a matter of course, promptly
provide Owner with copies of all designs, documents, meeting notes and memorandum and any
other information related to the Project for Owner's review and input. Architect shall notify
Owner of any decisions that are required to be made by Owner, and any deadlines pertaining
thereto. Architect shall consult with and advise Owner with respect to any such decisions.
2.3 Meetings with Governmental Officials.
Architect agrees to provide Owner with reasonable notice of all formal public and
non-public meetings with government officials regarding the Project. Owner shall be entitled to
attend any formal public or non-public meeting with governmental officials regarding the
Project. Architect shall document all meetings with governmental officials related to the Project
and any verbal or written interpretations related to the Project provided by any governmental
officials.
2.4 Project Records.
All records relating to the Project in Architect's possession (the "Project
Records") shall be made available to Owner for inspection and copying at a reasonable time and
place upon the written request of Owner. The Project Records shall include, but not be limited
to, all plans, specifications, submittals, correspondence, minutes, memoranda, receipts,
timesheets, electronic recordings and other writings or things that document any aspect of the
design and construction of the Project. Architect shall maintain the Project Records for six (6)
years after substantial completion of Project or for any longer period required by law.
2.5 Value Engineering.
Architect will participate with Construction Manager to informally value engineer
the Project to maximize costs savings to Owner through discounts, informal value engineering
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and other actions consistent with good design and building practices for a project of the type
contemplated by Owner.
2.6 Governmental Permits.
Architect shall assist Owner and Construction Manager in preparing and filing all
documents necessary to obtain the approvals of governmental authorities having jurisdiction over
the Project, including, but not limited to, building and occupancy permits.
2.7 Compliance with Laws.
Architect shall perform all of Architect's services in compliance with all
applicable laws, ordinances, rules, regulations or orders of any public authority having
jurisdiction over the Project, any applicable permits and any recorded covenants, conditions and
restrictions affecting the Site.
2.8 Independent Contractor.
Architect acknowledges that it is an independent contractor and not an employee
or agent of Owner. As an independent contractor, Architect shall be and remain responsible to
Owner for all its negligent acts or omissions in connection with its duties and services under this
Agreement that result in damage or injury to persons or property. Architect shall indemnify and
hold harmless Owner against all claims or liabilities that are asserted, incurred or recovered
against Owner related to employer liabilities that arise from Architect's employment or retention
of any person or entity. Owner shall have no control over the manner or method by which
Architect meets Architect's obligations under this Agreement; provided that Architect's services
shall be performed in a competent and efficient manner this is in compliance with this
Agreement. Nothing in this Agreement shall be construed to mean that Owner employs or is
responsible for compensating any consultant of Architect.
2.9 Consultants.
Architect has engaged the following consultants to provide the indicated services
pursuant to this Agreement:
Landscape Architecture Hatchmueller PC
611 Sherman Avenue
Coeur d' Alene, ID 83814
Telephone: (208) 676-8444
Facsimile: (208) 676-8555
Structural Engineering Stapley Engineering, Inc.
8701 West Hackamore Drive
Boise, Idaho 83709
Telephone: (208) 375-8240
Facsimile: (208) 375-8257
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Mechanical Engineering
Electrical Engineering
Engineering Incorporated
2222 Broadway Avenue
Boise, Idaho 83706
Telephone: (208) 343-3663
Facsimile: (208) 343-9625
Eidam and Associates
815 Park Boulevard, Suite 230
Boise, Idaho 83712-7739.
Telephone: (208) 345-7127
Facsimile: (208) 345-7173
Prior to retaining or engaging any additional consultants to provide services
pursuant to this Agreement, Architect shall submit for Owner's approval a written statement
listing (1) a description of the services to be provided by said consultant (2) a brief description of
said consultant's qualifications to render the identified services, and (3) a disclosure of any
ownership, controlling interest or affiliation between Architect and said consultant. Owner shall
bear no responsibility for reimbursing Architect for services of any consultant retained or
engaged by Architect unless Architect first complies with this Section.
2.10 Indemnification
To the fullest extent permitted by law, Architect shall indemnify and hold
harmless Owner and its officers, directors, agents and employees from and against claims,
damages, losses and expenses, including but not limited to attorney's fees, arising out of or
resulting from performance of Architect's duties and responsibilities under this Agreement, but
only to the extent caused by the negligent acts or omissions of Architect, its employees, agents or
anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss
or expense is caused in part by a party indemnified hereunder.
2.11 Outside Compensation Prohibited.
Except with Owner's knowledge and consent, Architect shall not engage in any
activity or accept any employment, interest or contribution that would reasonably appear to
compromise Architect's professional judgment with respect to the Project or the relationship of
trust between Owner and Architect established herein; provided, however, nothing in this Section
shall be deemed to limit Architect's ability to provide services for an competitor of Owner.
3. OWNER
3.1 Owner's Objectives.
Owner's objective for the Project is to develop a new city hall facility and public
plaza on the Site.
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3.2 Owner's Duties.
3.2.1 Owner shall, at its expense, furnish Architect with documents in
its possession concerning the Site, which documents shall include a legal description,
environmental risk assessment, site survey, and preliminary title report.
3.2.2 Owner shall provide Architect with Owner's preliminary
planning and programming information regarding Owner's requirements for the Project,
including, but, not limited to, Owner's purposes, concepts, desires and any design, construction,
scheduling, budgetary or operational needs, restrictions or requirements, as the same may be
amended from time to time ("Owner's Criteria"). Architect shall be entitled to rely upon such
information only to the extent that a reasonably prudent Architect would so rely on such
information.
3.2.3 When reasonably requested by Architect, Owner shall furnish,
at Owner's expense, the services of professional consultants such as land surveyors, geotechnical
engineers, and hazardous materials consultants. Owner shall furnish structural, mechanical,
chemical, geotechnical and other laboratory or on-site tests, inspections and reports as set forth in
the Construction Documents and as required by law.
3.2.4 Owner shall timely review documents provided by or through
Architect;
3.2.5 Owner shall timely render its direction, decision, consent or
approval on matters identified by Architect for Owner's direction, decision, consent or approval;
3.2.6 Owner shall provide for all required testing or inspections of the
Work as may be mandated by law, the Construction Documents or the Construction Contracts;
3.2.7 If Owner learns of any failure to comply with the Construction
Contract by Contractor, or of any errors, omissions, or inconsistencies in the services of
Architect, and in the further event that Architect does not have notice of the same, Owner shall
inform Architect;
3.2.8 Owner shall afford Architect access to the Site and to the Work
as may be reasonably necessary for Architect to properly perform its services under this
Agreement;
3.2.9 Owner's review, direction, decision, approval or consent of any
document provided or matter identified by or through Architect shall be solely for the purpose of
determining whether such document or matter is generally consistent with Owner's Criteria. No
review of such documents shall relieve Architect of its responsibility for the accuracy, adequacy,
fitness, suitability, or coordination of its services or work product.
3.2.10 Architect shall be entitled to rely upon services and information
provided by or through Owner only to the extent that a reasonably prudent Architect would so
rely on such services and information. Architect shall promptly notify Owner in writing if
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Architect becomes aware of any errors, omissions or inconsistencies in such services or
information.
3.3 Owner's Construction Manager.
Owner plans to retain a construction manager ("Construction Manager") to
provide construction management services for the Project. Upon Owner's selection of
Construction Manager, Owner will provide Architect the name and contact information for
Construction Manager's authorized representative. Architect hereby acknowledges that it has
received, reviewed, and studied the agreement form that Owner intends to use with Construction
Manager (the "CM Agreement"), and the same is herein incorporated by reference. Architect
shall consult and coordinate with Construction Manager as needed to fulfill its duties hereunder,
and shall assist Construction Manager as need for Construction Manager to fulfill its duties to
Owner under the CM Agreement.
3.4 Contractor.
Architect understands that Owner plans to retain multiple prime contractors (the
"Contractors") to provide construction labor, services, materials and equipment for the Project
(the "Work"). The term "Contractor" means all prime contractors retained by Owner to perform
Work, but not the prime contractor's subcontractors, laborers and material suppliers.
4. SCOPE OF SERVICES
4.1 In General.
Owner has retained Architect to help it achieve the objectives set forth in Section
3.1 above by providing design and construction administration services for the Project on behalf
of Owner. Therefore, the general scope of Architect's responsibilities is to do all things, or,
when appropriate, require Construction Manager and each Contractor to do all things necessary,
appropriate or convenient to achieve the end result desired by Owner, including, but not limited
to, those tasks set forth in this Article 4. Architect's services shall include all (i) architectural
design services, (ii) civil, structural, mechanical, electrical and other engineering services not
identified as the responsibility of Owner herein, (iii) landscape design services (including plaza
and water feature design), (iv) interior and furnishings design, and (v) phone and data consulting
services that are normally and customarily provided to complete a project of the scope, quality
and nature of the Project and required to obtain the approval of governmental authorities having
jurisdiction over the Project. The tasks set forth in this Article 4 are not intended to be an
exhaustive list of the tasks required to achieve the result desired by Owner. The general scope of
Architect's responsibilities and shall include all other tasks indicated or implied in this
Agreement and the implementing plans contemplated herein.
4.2 Development Strategies Phase.
Architect shall carefully examine Owner's Criteria and consult with Owner and
Construction Manager in detail about the same in detail. Based on its review and consultations,
and with the assistance of Construction Manager, Architect shall prepare and submit to Owner a
written report detailing its understanding of Owner's Criteria and identifying any design,
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construction, scheduling, budgetary, operational or other problems or recommendations that may
result from Owner's Criteria. The written report shall also include proposed solutions addressing
each problem identified, alternative strategies for the cost effective design and construction of
the Project, and alternative strategies for the cost effective future expansion of the Project.
Architect shall assist Construction Manager in developing the preliminary project schedule
required pursuant to Section 4.2 of the CM Agreement.
4.3 Preliminary Design Phase.
4.3.1 After reviewing Architect's written report and Construction
Manager's written report with Owner and Construction Manager, and reaching agreement upon
proposed alternatives and solutions, Architect shall, within the time frames set forth in the
preliminary project schedule developed pursuant to Section 4.2 of the CM Agreement and in
cooperation with Construction Manager's efforts, prepare and submit to Owner a preliminary
design for the Project (the "Preliminary Design"), which shall be consistent with Owner's
Criteria and shall include:
(a) A site plan that depicts each of the basic aspects of the site
development for the Project including, but not necessarily limited to, the size,
location, and dimensions of each structure;
(b) Elevations that depict each exterior view of each structure;
(c) Floor plans that depict each room within the Project and the
dimensions thereof;
(d) Preliminary specifications, together with preliminary plans of
architectural, electrical, mechanical, structural, engineering, and, if relevant, other
systems to be incorporated in the Project;
(e) A written description of the equipment and materials to be
specified for the Project and the location of same; and
(f) Any other documents or things necessary or appropriate to
describe and depict the Project and illustrate the conformity of the same with
Owner's Criteria.
4.3.2 Owner shall timely review and approve or disapprove the
Preliminary Design. If Owner disapproves the Preliminary Design, Owner shall set forth the
reasons therefor in writing. Architect shall then revise the Preliminary Design as required by the
reasons for disapproval and resubmit the revised Preliminary Design to Owner for approval,
which approval shall not be unreasonably withheld or delayed. This process shall repeat until
Owner approves the Preliminary Design.
4.3.3 Architect shall assist Construction Manager in the preparation
of the documents required under Section 4.4.1 of CM Agreement.
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4.3.4 If the Preliminary Price Estimate developed pursuant to Section
4.4.1(f) of the CM Agreement exceeds the Project Budget developed pursuant to Section 4.4.1(c)
of the CM Agreement, Owner may require Architect, at no cost to Owner, to (i) consult with
Owner and Construction Manager to identify cost saving measures and (ii) revise the Preliminary
Design to reflect approved cost savings measures, as necessary to bring the Final Cost Estimate
below the Maximum Price. Absent clear and convincing evidence of gross negligence, and
provided Architect completes its obligations under this Section, Architect shall not be financially
responsible to Owner for the failure of the Preliminary Cost Estimate to be within the Project
Budget.
4.3.5 Prior to directing Architect to proceed with Construction
Documents, Owner may establish and communicate the maximum price Owner desires to pay for
the construction of the Project (the "Maximum Price").
4.4 Construction Documents Phase.
4.4.1 Upon Owner's approval of the Preliminary Design and
authorization to proceed with Construction Documents, Architect shall, within the time frames
set forth in the Project Schedule, prepare and submit to Owner construction documents for the
Project (the "Construction Documents"). The Construction Documents shall be consistent with
the Preliminary Design (as modified) and the Maximum Price. The Construction Documents
shall include, but not necessarily be limited to, plans and specifications that describe with
specificity all systems, elements, details, components, materials, equipment, and other
information necessary for construction. The Construction Documents shall be accurate,
complete, coordinated and in all respects adequate for the bidding and construction of the Project
on affixed-price, multi-prime contractor basis. The Construction Documents shall also comply
with all applicable law, codes, regulations and orders of governmental authorities having
jurisdiction over the Project. All products, equipment and materials specified shall be readily
available in the area unless otherwise directed by Owner in writing.
4.4.2 To the extent deemed necessary or appropriate by Architect,
Owner shall retain an experienced, qualified geotechnical engineer at Owner's expense to
evaluate the geotechnical considerations relating to the Site and Project. Architect shall design
and engineer the Project in accordance with the analyses and recommendations of the
geotechnical engineer.
4.4.3 Owner shall review and approve or disapprove the Construction
Documents. If Owner disapproves the Construction Documents, Owner shall set forth the
reasons therefor in writing. Architect shall then revise the Construction Documents as required
by the reasons for disapproval and resubmit the revised Construction Documents to Owner for
approval, which approval shall not be unreasonably withheld or delayed. This process shall
repeat until Owner approves the Construction Documents.
4.4.4 If the Final Cost Estimate exceeds the Maximum Price, Owner
may require Architect, at no cost to Owner, to (i) consult with Owner and Construction Manager
to identify cost saving measures and (ii) revise the Construction Documents to reflect approved
cost savings measures, as necessary to bring the Final Cost Estimate below the Maximum Price.
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Absent clear and convincing evidence of gross negligence, and provided Architect completes its
obligations under this Section, Architect shall not be financially responsible to Owner for the
failure of the Final Cost Estimate to be within the Maximum Price.
4.5 Bidding Phase.
4.5.1 Architect, following Owner's approval of the Construction
Documents, shall assist Owner and Construction Manager in preparing bid packages and
reviewing bids for construction.
4.5.2 If the combined lowest bids from qualified bidders exceeds the
Maximum Price, Owner may require Architect, at no cost to Owner and as necessary to bring
bids for the Project below the Maximum Price (i) to consult with Owner and Construction
Manager to identify cost saving measures, (ii) to revise the Construction Documents to reflect
approved cost savings measures, and (iii) to assist Owner and Construction Manager in rebidding
the Work. Absent clear and convincing evidence of gross negligence, and provided Architect
completes its obligations under this Section, Architect shall not be financially responsible for the
failure of the Project to bid within the Maximum Price.
4.6 Construction Phase.
During construction of the Project, from commencement of construction activities
until final payment to all Contractors, Architect shall have and perform the following duties,
obligations, and responsibilities:
4.6.1 Architect shall have and perform those duties, obligations and
responsibilities set forth in the construction agreements between Owner and each Contractor (the
"Construction Contracts"). Architect hereby acknowledges that it has received, reviewed, and
studied a form that Owner intends to use for the Construction Contracts, and the same is herein
incorporated by reference. Architect acknowledges that Owner may modify the Construction
Contracts, and that such modified Construction Contracts shall be applicable to this Agreement;
provided, however, to the extent such modified Construction Contracts are materially are
inconsistent with the terms of this Agreement, this Agreement shall control as between Owner
and Architect.
4.6.2 Architect shall, as contemplated herein and in the Construction
Contract, but not otherwise, act on behalf, and be the agent, of Owner throughout construction of
the Project. Any instructions, directions or other communications from Architect to any
Contractor shall be given to Contractor through Construction Manager. Architect shall copy
Construction Manager on any communications to Owner.
4.6.3 Upon receipt, Architect shall carefully review and examine the
each Contractor's schedule of values ("Schedule of Values"), together with any supporting
documentation or data that Owner, Architect or Construction Manager may require. The purpose
of such review and examination shall be to protect Owner from an unbalanced Schedule of
Values that allocates greater value to certain elements of the Work than is indicated by such
supporting documentation or data, or than is reasonable under the circumstances. If the Schedule
of Values is not found to be appropriate, or if the supporting documentation or data is deemed to
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be inadequate, and unless Owner directs Architect to the contrary in writing, the Schedule of
Values shall be returned to Contractor for revision or supporting documentation or data. After
making such examination, if the Schedule of Values is found to be appropriate as submitted, or if
necessary, as revised, Architect shall sign the Schedule of Values thereby indicating its informed
belief that the Schedule of Values constitutes a reasonable, balanced basis for payment of the
Contract Price to Contractor. Architect shall not sign such Schedule of Values in the absence of
such belief unless directed to do so, in writing, by Owner.
4.6.4 Architect shall promptly examine, study, approve or otherwise
respond to each Contractor's shop drawings and other submittals. Architect's approval of such
submittal shall constitute Architect's representation to Owner that such submittal is in general
conformance with the Construction Documents.
4.6.5 Architect shall carefully observe the work of Contractor
whenever, wherever, and as often as necessary, and shall, at a minimum, observe work at the
Project site no less frequently than every two weeks. The purpose of such observations shall be
to determine the quality and quantity of the work in comparison with the requirements of the
Construction Contract. In making such observations, Architect shall help Owner identify, and
attempt to protect Owner from, continuing deficient or defective work, from continuing
unexcused delays in the schedule and from overpayment to Contractor. Following each
observation, Architect shall submit a written report of such observation to Owner and
Construction Manager together with any appropriate comments or recommendations.
4.6.6 Architect shall promptly notify Owner and Construction
Manager of Work that is not in compliance with the Construction Documents, and timely
recommend, in writing, the rejection of any Work that is not in compliance with the Construction
Documents, unless otherwise directed by Owner in writing.
4.6.7 Architect shall require inspections and testing (and, if
necessary, reinspections and retesting) of the Work where required by law or the Construction
Documents.
4.6.8 Architect shall review periodic and final payment requests from
Contractors predicated upon observations of the Work, as required in Section 4.6.5 above, and
evaluations of Contractor's rate of progress in light of the Project Schedule. Architect shall
issue payment approvals to Owner only if, and to the extent, Architect has observed the Work as
pursuant to Section 4.6.5 above and that the Work for which payment is approved (i) reaches the
quantities or percentages of completion shown, (ii) meets or exceeds the requirements of the
Construction Documents, and (iii) Owner is obligated to pay the amount approved to such
Contractor under the terms and conditions of the Construction Contract.
4.6.9 Architect shall promptly respond to requests for information
and issues clarifications for any errors, omissions, conflicts or inconsistencies in the Contract
Documents.
4.6.10 Architect shall promptly examine requests for change orders
and advise Owner and Construction Manager regarding such requests. Upon Owner's request,
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Architect shall draft Change Orders and supporting specifications, drawings, and other
documentation in accordance with the Construction Contracts.
4.6.11 Based upon inspections of the Project, Architect shall certify in
writing to Owner the fact that, and the date upon which, each Contractor achieves Substantial
Completion of the Project and the date upon which Contractor has achieves Final Completion of
the Project.
4.6.12 Architect shall review any as-built drawings furnished by
Contractor and shall certify to Owner that such drawings are adequate and complete.
4.6.13 Architect shall assist Construction Manager in creating
organized binders with all manuals, operating instructions, warranties, guarantees and other
similar items required by the Construction Documents. Architect shall retain a set of such
binders in its Project file.
4.6.14 Architect shall promptly correct any errors, omissions,
inconsistencies or deficiencies in Architect's services or work product.
4.6.15 Architect shall promptly notify Owner of any claim filed by any
Contractor and shall provide Owner with a timely written response to such claim.
4.6.16 Architect shall testify in any judicial proceeding concerning the
design and construction of the Project, when requested in writing by Owner, and Architect shall
make available to Owner any personnel or consultants employed or retained by Architect for the
Project when necessary to review, study, analyze or investigate any claims, contentions,
allegations, or legal actions relating to, or arising out of, the design or construction of the Project.
5. SCHEDULE
5.1 Schedule of Performance.
Architect shall commence the performance of its obligations under this
Agreement upon Owner's notice to proceed and shall diligently and expeditiously continue its
performance in accordance with the Project Schedule until all services hereunder have been fully
completed. The time limits established by the Project Schedule are of the essence and shall not
be exceeded by Architect without Owner's prior written consent or as permitted in Section 5.2
below.
5.2 Delays.
If Architect is delayed at any time in progress of its services under this Agreement
by an act or neglect of Owner, or an employee of Owner, or of a separate contractor employed by
Owner, or by changes in its scope of work, unavoidable casualties, or other causes beyond
Architect's reasonable control or by other causes which Owner determines may justify the delay,
then the Project Schedule equitably adjusted for such reasonable time as Owner may determine
to be appropriate for the extent of the delay. Architect's sole right and remedy against Owner
shall be an extension of time unless such delay is caused by acts of Owner constituting active
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interference with Architect's performance, and only to the extent such acts continue after
Architect furnishes Owner with written notice of such interference. In the event of delay from
active interference by Owner, Architect's sole right and remedy shall an equitable adjustment in
its compensation pursuant to Article 7 below.
6. COMPENSATION
6.1 Architect's Fee.
As full compensation for Architect's performance under this Agreement, Owner
agrees to pay Architect a fee of Eight Hundred Fifty-four Thousand and No/100ths Dollars
($854,000.00) (the "Architect's Fee"). For purposes of progress payments, Architect's
compensation shall be divided into the following phases:
Development Strategies Phase Ten Percent (10%)
Preliminary Design Phase Twenty Percent (20%)
Construction Documents Phase Forty Percent (40%)
Bidding Phase Five Percent (5%)
Construction Phase Twenty-five Percent (25%)
6.2 Compensation for Additional Services.
If the services of Architect are changed as described in Article 7 below,
Architect's Fee shall be adjusted as Owner and Architect may agree, or in the absence of
agreement, on an hourly basis in accordance with the hourly rates approved by Owner in
advance.
6.3 Reimbursable Expenses.
Reimbursable Expenses are in addition to Architect's Fee and shall include only
the following expenditures incurred by Architect in the interest of the Project:
6.3.1 Expenses of reproductions, postage and handling of drawings,
specifications and other documents, excluding reproductions for the office use of Architect and
Architect's consultants;
6.3.2 Expenses of photographic reproduction techniques used in
connection with providing Architect's services hereunder;
Owner in advance.
6.3.3 Other similar direct Project related expenditures approved by
6.4 Payments.
6.4.1 As a condition precedent for any payment due under this
Article 6, Architect shall submit to Owner a monthly application for payment no later than the
tenth day of the calendar month for services properly rendered and expenses properly incurred
during the preceding month. The services rendered during the previous month shall be
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calculated as a percentage of each phase completed, with any services performed on an hourly
basis separately itemized. Hourly services shall be described with reasonable particularity each
service rendered, the date thereof, the time expended, and the persons rendering such service.
The invoices shall be itemized and supported by data substantiating Architect's right to payment
as Owner may require. Each invoice shall be signed by Architect, which signature shall
constitute Architect's representation to Owner that (i) the services indicated in the invoice have
reached the level stated and have been properly and timely performed, (ii) the expenses included
in the invoice have been reasonably incurred in accordance with this Agreement or otherwise
approved by Owner in writing, (iii) all obligations of Architect covered by prior invoices have
been paid in full, and (iv) the amount requested is currently due and owing, there being no reason
known to Architect that payment or any portion thereof should be withheld. Submission of
Architect's invoice for final payment shall further constitute Architect's representation to Owner
that, upon receipt by Owner of the amount invoiced, all obligations of Architect to others,
including its consultants, incurred in connection with the Project, will be paid in full. During the
construction phase, Architect shall present its statement of services to Owner concurrently with
the approved Certificates for Payment, when possible.
6.4.2 Owner shall pay Architect sums properly invoiced within 30
days of Owner's receipt of such invoice. If payment is not made within thirty (30) days, the
outstanding balance shall bear interest at the rate of .75% per month until paid.
7. CHANGES
Changes in Architect's services (not involving a cardinal change to the scope of
the services) may be accomplished after the execution of this Agreement upon Owner's request
or if Architect's services are affected by any of the following:
(a) A change in the instructions or approvals given by Owner that
necessitate revisions to previous approvals;
(b) Significant change to the Project, including, but not limited to size,
quality, complexity, Owner's schedule, budget or procurement method;
(c) Architect performs additional services because of active Owner
interference pursuant to Section 5.2 above, or
(d) Preparation for and attendance at a dispute resolution proceeding
or a legal proceeding except where Architect is a party thereto.
If any of the circumstances affect Architect's services, Architect shall be entitled to an equitable
adjustment in the Schedule of Performance and/or Architect's Fee, as mutually agreed by Owner
and Architect. Prior to providing any additional services, Architect shall notify Owner of the
proposed change in services and receive Owner's approval for the change. Except for a change
due to the fault of Architect, a change shall entitle Architect to an equitable adjustment in the
Schedule of Performance and Architect's Fee as mutually agreed by Owner and Architect. In the
event Owner and Architect are unable to agree upon the equitable adjustment to Architect's Fee,
the services shall be performed on a "time and materials" basis in accordance with Architect's
standard hourly rate schedule and standard reimbursable expenses, approved by Owner.
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8. CLAIMS.
8.1 Claims.
In the event that any claim, dispute or other matter in question between Owner
and Architect arising out of or related to this Agreement or the breach hereof (a "Claim"), Owner
and Architect shall first endeavor to resolve the Claim through direct discussions. Claims must
be initiated by written notice. The responsibility to substantiate Claims rests with the party
making the Claim. Except as otherwise agreed in writing, Architect shall continue to diligently
perform its obligations under this Agreement and Owner shall continue to make payments in
accordance with this Agreement pending the final resolution of any Claim. Architect
acknowledges that Owner's ability to evaluate a Claim depends in large part on Owner being
able to timely review the circumstances of the Claim. Therefore, Architect agrees that it shall
submit a Claim to Owner by written notice no later than twenty-one (21) calendar days after the
event or the first appearance of the circumstances giving rise to the Claim, and that such written
notice shall set forth in detail all facts and circumstances supporting the Claim.
8.2 Mediation.
All Claims shall be subject to mediation as a condition precedent to the institution
of legal or equitable proceedings by either party. Request for mediation shall be filed in writing
with the other party to this Agreement. The request may be made concurrently with the filing of
a legal or equitable proceeding but, in such event, mediation shall proceed in advance of legal or
equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the
date of filing, unless stayed for a longer period by agreement of the parties or court order. The
parties shall endeavor to mutually agree on an independent, professional mediator within 15 days
of the request for mediation. The parties shall endeavor to have the mediation completed within
60 days of the request for mediation. The parties shall share the mediator's fee and any filing
fees equally. The mediation shall be held in the place where the Project is located, unless
another location is mutually agreed upon. Agreements reached in mediation shall be enforceable
as settlement agreements in any court having jurisdiction thereof. Owner and Architect agree
that all parties with an interest in a Claim being mediated may be included in the mediation,
including, but not limited to, Construction Manager and Contractors.
9. SUSPENSION AND TERMINATION
9.1 Suspension by Owner For Convenience.
Owner may order Architect in writing to suspend, delay, or interrupt the
performance of this Agreement, or any part thereof, for such period of time as Owner may
determine to be appropriate for its convenience and not due to any act or omission of Architect.
In that event, Architect shall immediately suspend, delay or interrupt the performance of this
Agreement, or that portion of this Agreement, as ordered by Owner. On the resumption of
Architect's services, Architect's Fee and Project Schedule shall be equitably adjusted for
reasonable costs and delay resulting from any such suspension.
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9.2 Termination by Owner for Convenience.
Upon written notice to Architect, Owner may, without cause, terminate this
Agreement. Architect shall follow Owner's instructions regarding shutdown and termination
procedures, strive to mitigate all costs and stop the performance of its services. Upon such
termination, Architect shall invoice Owner for all services actually performed and any
reasonable costs or expenses incurred by Architect in connection with the termination (such as
services necessary to shutdown performance), but not lost profits, unabsorbed overhead or lost
opportunity).
9.3 Termination by Owner for Cause.
If Architect fails to fully and faithfully perform its duties and responsibilities
under this Agreement, Owner may give Architect written notice of such failure and Owner's
intent to terminate Architect's services if Architect fails to commence and diligently continue
satisfactory correction of such failure within ten (10) days. If Architect fails to commence and
diligently continue satisfactory correction of the failure within such 10-day period, Owner may
terminate Architect's services by written notice. Upon such termination, Architect shall not be
entitled to receive further payment until the Project is finished. If the unpaid balance of
Architect's Fee exceeds costs of finishing Architect's services and other damages incurred by
Owner, such excess shall be paid to Architect. If such costs and damages exceed the unpaid
balance, Architect shall pay the difference to Owner.
9.4 Termination by Architect.
Upon fourteen (14) days' prior written notice to Owner, Architect may terminate
this Agreement if (i) the progress of the Project has been suspended by Owner for convenience
for a period of ninety (90) days through no fault of Architect; (ii) Owner fails to pay Architect in
accordance with this Agreement and Architect has not defaulted; or (iii) Owner otherwise
breaches this Agreement or fails to perform its duties and responsibilities under this Agreement
and Owner has failed to cure the breach or failure to perform within thirty (30) days after
Architect provides written of the breach or failure to perform to Owner. Upon such termination,
Architect shall invoice Owner for all services actually performed and any reasonable costs or
expenses incurred by Architect in connection with the termination (such as services necessary to
shutdown performance), but not lost profits, unabsorbed overhead or lost opportunity).
10. GENERAL PROVISIONS
10.1 Ownership of Design and Work Product.
10.1.1 Architectural Design. Owner and Architect agree that Owner is
developing, with the assistance of Architect, an architectural design theme for the Project (the
"Architectural Design"). Architect acknowledges and agrees that Architectural Design is being
developed for Owner and Owner shall be deemed to be Owner of all common law, statutory and
other reserved rights thereto, subject to the provisions of Sections 10.1.3 and 10.1.4 below.
10.1.2 Work Product. Architect will document and implement
Architectural Design into drawings, sketches, renderings, calculations, specifications and other
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documents, including those in electronic form, prepared by Architect and Architect's consultants
(the "Work Product"). Architect acknowledges and agrees that the Work Product is being
developed for Owner and Owner shall be deemed Owner of all common law, statutory and other
reserved rights thereto, subject to the provisions of Sections 10.1.3 and 10.1.4 below. Architect
may reproduce and distribute the Work Product as necessary to perform its services on the
Project.
10.1.3 Modification and Reuse by Owner. Owner understands that the
Work Product is an expression of Architectural Design and instruments of Architect's services
for the Project, not products. Owner understands and agrees that the Work Product has been
prepared for this Project only and are not suitable for reuse on other projects without first being
reviewed and/or modified by an appropriately credentialed design professional, who shall then
take responsibility for the accuracy and completeness thereof. Owner shall have the right to
transfer and reuse the Work Product; provided, however, in such event Owner agrees to
indemnify Architect against claims arising from any reuse of, or alterations made to, the Work
Product not authorized by Architect.
10.1.4 Modification and Reuse by Architect. Architect shall have the
right to retain and make copies of the Work Product and to reuse any of the constituent parts of
Architectural Design or Work Product on any other project, except for any unique or distinctive
architectural components or effects, which taken independently or in combination, would
produce a project with substantially similar or distinct features.
10.1.5 Architect's Consultants. Architect agrees that all consultants
retained by Architect to provide any services on the Project shall expressly agree in writing to be
bound by the terms of this Section 10.1 to the same extent as Architect.
10.2 Insurance.
10.2.1 Errors and Omissions Liability. Architect shall provide errors
and omissions liability insurance on an aggregate limits "claims made" basis in an amount not
less than Two Million Dollars ($2,000,000). Architect shall either (i) maintain the specified
levels of aggregate limits "claims made" insurance for no less than three years after completion
or termination of Architect's services under this Agreement, or (ii) provide tail coverage for
claims, demands or actions reported within six (6) years after completion or termination of
Architect's services under this Agreement for acts or omissions during the term of this
Agreement.
10.2.2 General Commercial Liability. Architect shall maintain at all
times commercial general liability insurance and excess liability coverage on occurrence form
basis (standard, unmodified) with products and completed operations coverage in an amount not
less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars
($2,000,000) annual aggregate.
10.2.3 Worker's Compensation. Architect will maintain at all times
such worker's compensation and employer's liability coverage insurance as required by the laws
of the State in which the Project is located and any other state in which Architect or its
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employees perform services for Owner. The policy must be endorsed to include a waiver of
subrogation.
10.2.4 Additional Insureds. Upon Owner's request, Architect shall
have Owner and Owner's lender, if any, named as additional insureds under all of Architect's
liability insurance policies (not including errors and omissions and workers' compensation
insurance).
10.2.5 Certificates of Insurance. Architect shall provide certificates of
insurance issued by the insurer to Owner for each policy required under this Section 10.1 and, if
requested by Owner, copies of each insurance policy. Each certificate issued to Owner shall
contain the following covenant of the issuer: "Should any of the above described policies be
cancelled before the expiration date thereof, the issuing company will mail 30 days written
notice to the certificate holder."
10.2.6 Architect's Consultants. Architect shall require its consultants
to maintain at all times insurance coverages consistent with the consultant's role on the Project
and reasonably acceptable to Owner.
10.3 Recitals and Exhibits.
The recitals above and the exhibits referred to in this Agreement and attached
hereto are incorporated into the agreement as if set out in full in the body of the Agreement. In
the event of a conflict between any exhibit and the body of this Agreement, the Agreement shall
control.
10.4 Counterparts; Facsimile Transmission.
This agreement may be executed in counterparts, each of which shall be deemed
to be an original, but all of which, taken together, shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this agreement via
facsimile transmission shall be as effective as delivery of an original signed copy, provided that
an original signed copy shall be delivered to the party entitled thereto within five (5) business
days after such facsimile transmission.
10.5 Attorneys' Fees.
In the event of any controversy, claim or action being filed or instituted between
the parties to this agreement to enforce the terms and conditions of this agreement or arising
from the breach of any provision hereof, the prevailing party will be entitled to receive from the
other party all costs, damages, and expenses, including reasonable attorneys' fees, incurred by
the prevailing party, whether or not such controversy or claim is litigated or prosecuted to
judgment. The prevailing party will be that party who was awarded judgment as a result of trial
and determined by a judge as the prevailing party.
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10.6 Governing Law.
This agreement shall be governed by the laws, including conflicts of laws, in the
State of Idaho as an agreement between residents of the State of Idaho and to be performed
within the State of Idaho.
10.7 Venue.
As a material part of the consideration for this agreement, each of the parties
hereto agrees that in the event any legal proceeding shall be instituted between them, such legal
proceeding shall be instituted in the courts of Ada County, State of Idaho, and each of the parties
hereto agrees to submit to the jurisdiction of such courts.
10.8 Grammatical Usage.
In construing this agreement, feminine or neuter pronouns shall be substituted for
those masculine in form and vice versa, plural terms shall be substituted for singular and singular
for plural in any place in which the context so requires, and the word "including" shall be
construed as if the words "but not limited to" appear immediately thereafter.
10.9 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, legal representatives, successors and assigns. Architect shall
not assign its rights hereunder, nor shall it delegate any of its duties hereunder, without the
written consent of Owner. Owner may assign this Agreement to any affiliated entity or to any
lender providing construction financing without Architect's prior written consent. Architect
agrees to execute all consents reasonably required to facilitate such an assignment. If either
party makes such an assignment, that party shall nevertheless remain legally responsible for all
obligations under this Agreement, unless otherwise agreed by the other party.
10.10 Headings.
The headings contained in this agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation hereof.
10.11 Additional Acts.
Except as otherwise provided herein, in addition to the acts and deeds recited
herein and contemplated to be performed, executed and/or delivered by the parties, the parties
hereby agree to perform, execute and/or deliver or cause to be performed, executed and/or
delivered any and all such further acts, deeds and assurances as any party hereto may reasonably
require to consummate the transaction contemplated hereunder.
10.12 Time of Essence.
All times provided for in this agreement, or in any other document executed
hereunder, for the performance of any act will be strictly construed, time being of the essence.
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10.13 Notice.
All notice between the parties shall be deemed received when personally
delivered or when deposited in the United States mail postage prepaid, registered or certified,
with return receipt requested, or sent by telegram or mail-o-gram or by recognized courier
delivery (e.g. Federal Express, Airborne, Burlington, etc.) addressed to the parties, as the case
may be, at the address set forth below or at such other addresses as the parties may subsequently
designate by written notice given in the manner provided in this Section:
Owner: To be determined by Owner. Upon Owner's selection of
its authorized representative, Owner will provide Architect
the name and contact information for such representative.
With a copy to: Office of the City Clerk
City of Meridian
33 East Idaho Avenue
Meridian, Idaho 83642-2300
Telephone: 208-888-4433
Facsimile: 208-884-8119
Email: bergw@meridiancity.org
City Attorney's Office
City of Meridian
33 East Idaho Avenue
Meridian, Idaho 83642-2300
Telephone: 208-898-5506
Facsimile: 208-884-8723
Email: bairdt@meridiancity.org
Architect: Steve Simmons
LCA Architects, P.A.
1221 Shoreline Lane
Boise, Idaho 83702
Telephone: 208-345-6677
Facsimile: 208-344-9002
Mobile: 208-830-4122
Email: ssimmons 1 @lcarch.com
With a copy to: Russell Moorhead
LCA Architects, P.A.
1221 Shoreline Lane
Boise, Idaho 83702
Telephone: 208-345-6677
Facsimile: 208-344-9002
Mobile: 208-830-4166
Email: roorhead@lcarch.com
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10.14 Rights and Remedies Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies of
the parties are cumulative, and the exercise by any party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same time or different times, of any other
rights or remedies for the same default or any other default by the other party. In the event of a
default, the parties have all of the rights and remedies afforded in law or in equity, except as
provided herein to the contrary.
10.15 Third-Party Beneficiaries.
Nothing contained herein shall create any relationship (contractual or otherwise)
with, or any rights in favor of, any third party. Architect's duties and responsibilities shall not
relieve any other party, including Construction Manger and Contractors, from their duty to fully
and faithfully perform their contractual and other obligations to Owner.
10.16 Integration; Waivers.
This is the entire agreement between the parties with respect to the matters
covered herein and supersedes all prior agreements between them, written or oral. This
Agreement may be modified only in writing signed by both parties. Any waivers hereunder must
be in writing. No waiver of any right or remedy in the event of default hereunder shall constitute
a waiver of such right or remedy in the event of any subsequent default.
10.17 Severability.
If any term or provision of this agreement shall, to any extent be determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this agreement
shall not be affected thereby, and each term and provision of this agreement shall be valid and be
enforceable to the fullest extent permitted by law; and it is the intention of the parties hereto that
if any provision of this agreement is capable of two constructions, one of which would render the
provision void and the other of which would render the provision valid, the provision shall have
the meaning which renders it valid.
[end of text]
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The parties have executed this Agreement effective as of the date first set forth above.
"Owner" CITY OF MERIDIAN,
an Idaho municipal corporation
By:
Tammy d eerd
Mayor
Date: ~-// ~06
ATTEST: ,~,~,-,o v~e d ~vJ C~ ~ ~ 7~`/~a~
illiam G. Berg, Jr.
City Clerk
Date: 7-`l~d~
"Architect" A AR ITECTS, P.A.,
an Idah professional corpc
By:
Ste e Simmq s, President
Date: ~ / !/ ~
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STATE OF IDAHO )
ss
County of Ada )
On this ~ day of July, 2006, before me, a Notary Public, personally
appeared TAMMY DE WEERD and WILLIAM G. BERG, JR., known or identified to me to be
the MAYOR and CITY CLERK, respectively, of the CITY OF MERIDIAN, who executed the
instrument or the person that executed the instrument of behalf of said City, and acknowledged
to me that such City executed the same.
(SEAL)
STATE OF IDAHO )
ss
County of Ada )
Notary Public for Idaho
Residing at: L'~l'(,~,.~~>~~ ~~oP
Commission expires: ~ 0 ~- IS- ( ~
On this ~~ day of July, 2006, before me, a Notary Public, personally
appeared STEVE SIMMONS, known or identified to me to be the PRESIDENT of LCA
ARCHITECTS, P.A., an Idaho professional corporation, who executed the instrument or the
person that executed the instrument of behalf of such corporation, and acknowledged to me that
such corporation executed the same.
(SEAL) ~•• ~ ~~~..• .~ y,
• Q; ~TARy
.a; ~ ~
~.~
:~: ~G
i s pUBL o
~'•.9 TE Og 1
_~
Notary Public fo Idaho
Residing at:
Commission expires ~ ~
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