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CITY OF CARMEL-BY-THE-SEA

Council Report
January 5, 2015
To:

Honorable Mayor and Members of the City Council
Douglas J. Schmitz, City Administrator

From:

Sharon Friedrichsen

Subject:

A Resolution of the City Council of the City Of Carmel-By-TheSea Authorizing the City Administrator to Execute a
Professional Services Agreement with Cody Andersen Wasney
Architects for the Development of Construction Documents for
Phase 1 of the Forest Theater Renovation Project in an Amount
not to Exceed $154,394

RECOMMENDATION(S):
Adopt the resolution authorizing the City Administrator to execute a professional services
agreement with Cody Anderson Wasney Architects (CAW) for the development of
construction documents and ocnstrcution0rleated services for Phase 1 of the Forest
Theater Renovation Project in an amount not to exceed $154,398.
EXECUTIVE SUMMARY:
On August 5, 2014 Council approved an agreement with CAW in an amount not to
exceed $114,530 to provide: (1) schematic design phase plans, scope of work, and
estimates to remediate the Building Official’s “Red Tag” and (2) assistance in developing
a comprehensive master plan. On October 29, 2014, City Council authorized Phase 1 of
the project to move forward for preparation of construction documents, permits and
bidding. Based upon Council direction, CAW has submitted plans and specifications for
Phase 1 to the City for review and plan check. The work performed to date has been
completed utilizing the funding allocated to CAW under the original contract. However, it
is anticipated that the cost to have CAW finalize the construction documents as well as
provide assistance to City staff during the bidding process and construction will be
$154,394. The action before Council authorizes the contract with CAW for construction
documents and related bidding and construction oversight assistance. Approval of the
contract will also authorize the City Administrator to allocate additional funding from the
overall Forest Theater Renovation project budget to cover expenses incurred by CAW.
ANALYSIS/DISCUSSION: (including why Council is considering the item and justification for recommendation)
On October 29, 2014, Council authorized City staff and CAW to move forward with
construction documents for “Alternative D” of Phase 1. In addition, Council authorized
the City Administrator to enter into an agreement with CAW for the conceptual master
plan of the entry sequence to occur in tandem with the preparation of Phase 1
construction documents. The existing contract with CAW includes scope and associated
funding for conceptual master planning work. However, the costs for preparation of
construction documents and construction-related assistance will exceed $25,000 as well
City Council Meeting of January 5, 2015
Page 105

Agenda Item: 7.E
Page 1

as exceed the cost of the original agreement with CAW. It is therefore recommended
that Council authorize the City Administrator to enter into a new agreement with CAW for
Phase 1 construction services in an amount not to exceed $154,398. This action will
allocate funding specifically for construction services while also keeping funding of
$114,530 in tact to allow the continuation of the conceptual design of the master plan.

FISCAL IMPACT:
Council allocated $486,500 to this project as part of the 2014-15 Fiscal Year Budget.
The first contract with CAW, including schematic design for Phase 1 and conceptual
master plan, is $114,530. The proposed contract for Phase 1 construction-related
services is $154,398 (includes a fixed fee of $146,398 for services and up to $8,000 for
allowable reimbursable expenses). Once CAW and other consulting expenses are taken
into account, the remaining Forest Theater budget is $208,590. Options for additional
funding will be brought forward to Council in February.

Budgeted (yes/no) Yes

fund,

grant,

PREVIOUS COUNCIL ACTION/DECISION HISTORY:
Council held a workshop on the Forest Theater on May 5, 2014. Council allocated
$486,500 to this project during the adoption of the 2014-15 Fiscal Year Budget on June
10, 2014. On August 5, 2014 Council approved an agreement with CAW in the amount
not to exceed $114,530 for Triage Phase and conceptual master plan. On October 16
and 29, 2014, Council provided direction to CAW on the proposed design of the Triage
Phase, including authorizing CAW and staff to move forward to construction documents
based upon the "Alternative D" design (attached).
ATTACHMENTS:

1.
2.
3.

Resolution
Alternative D site plan
Professional Services Agreement with Exhibit A

/

Date:

inistrator

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,

Agenda Item: 7 .E
Page 2

City Council Meeting of January 5, 2015
Page 106

RESOLUTION 2015A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
AUTHORIZING THE CITY ADMINISTRATOR TO EXECUTE A PROFESSIONAL
SERVICES AGREEMENT WITH CODY ANDERSEN WASNEY ARCHITECTS FOR THE
DEVELOPMENT OF CONSTRUCTION DOCUMENTS FOR PHASE 1 OF THE FOREST
THEATER RENOVATION PROJECT IN AN AMOUNT NOT TO EXCEED $154,394
WHEREAS, the Forest Theater has been closed due to unsafe conditions and the City
Council has expressed a desire to correct the building code violations and reopen the
Theater; and
WHEREAS, Council has allocated funding as part of the Fiscal Year 2014-15 budget;
and
WHEREAS, the City Council entered into an agreement with Cody Andersen Wasney
Architects on August 5, 2014 for schematic design for Phase 1 life and safety and
accessibility improvements necessary to reopen the Theater; and
WHEREAS, on October 29, 2014, City Council authorized staff and Cody Andersen
Wasney Architects to move forward with the preparation of construction documents, permits
and bidding for Phase 1 of the Forest Theater Renovation Project.
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF
CARMEL-BY-THE-SEA DOES:
Authorize the City Administrator to execute a professional services agreement with
Cody Andersen Wasney Architects for the development of construction documents for
Phase 1 of the Forest Theater Renovation Project and other construction-related
services in an amount not-to-exceed $154,394
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BYTHE-SEA this 5th day of JANUARY 2015, by the following roll call vote:
AYES:
NOES:
ABSENT:

COUNCIL MEMBERS:
COUNCIL MEMBERS:
COUNCIL MEMBERS:

APPROVED:

ATTEST:

_____________________________
Jason Burnett, Mayor

________________________________
Lori Frontella, MMC
Interim City Clerk

City Council Meeting of January 5, 2015
Page 107

Agenda Item: 7.E
Page 3

LEGEND

KEYNOTES
REGRADING

1

(E) RESTROOM BUILDING TO REMAIN.

REPAIR FOR NEW PAVING & GRADING

2

PEDESTRIAN BOARDWALK PATH. SEE DETAIL 1/A6.0.

WOOD DECK

3

DEMOLISH (E) AC ROAD.

`
DECOMPOSED GRANITE

4

(E) ACCESSIBLE PORTABLE RESTROOMS TO REMAIN. PROVIDE LEVEL
LANDING AND COMPLIANT THRESHOLD.

5

REMOVE (E) PHONE AND TICKET BOOTHS.

6

RELOCATE FENCE TO PROVIDE ALCOVE AT PUBLIC WAY.

7

(E) CONCESSIONS BUILDING TO REMAIN.

8

(N) NON-ACCESSIBLE EGRESS PATH AND EXIT TO PUBLIC WAY.
PROVIDE MIN. 1 F.C. UNIFORM LIGHTING OVER WALKING SURFACE.

ASPHALT PAVING
BOLLARD, 10' O.C.
RECESSED LUMINAIRE, 6' O.C., INSTALLED ON
UPHILL SIDE OF WALK
HANDRAIL WITH LED RAIL
8

9

(N) ACCESSIBLE EGRESS PATH AND EXIT TO PUBLIC WAY. PROVIDE
MIN. 1 F.C. UNIFORM LIGHTING OVER WALKING SURFACE. PROVIDE
LEVEL CONCRETE PAD.

10

(E) NON-ACCESSIBLE EGRESS PATH AND EXIT TO PUBLIC WAY TO
REMAIN.

11

(N) TREES PLANTED WHERE (E) ROAD IS REMOVED.

12

ACCESSIBLE VAN PARKING/LOADING SPACE.

13

(N) AC PATH OF TRAVEL WITH SANDLBLASTED CONCRETE SEAT
WALL AT SLOPE.

14

(E) PARKING LOT TO REMAIN.

15

(N) AC ROAD

16

(N) LEVEL PAD FOR TICKET/ CONCESSIONS TABLE.

17

REBUILD (E) WOOD DECK. SEE ENLARGED PLAN AND STRUCTURAL
DRAWINGS.

18

(N) CONCRETE PATH.

19

(N) CONCRETE RAMPS AND RETAINING WALLS, SANDBLASTED
FINISH

30'

A5.0
8

GUADALUPE

6

+267

STREET

29
0

1
30'

A2.1

C o d y A n d e r s o n W a s n e y A r c h i t e c t s, I n c.
455 L a m b e r t A v e n u e • P a l o A l t o, CA 94306
6 5 0 . 3 2 8 . 1 8 1 8 • Fax 3 2 8 . 1 8 8 8
Copyright © 2010 by CODY ANDERSON WASNEY ARCHITECTS, INC.

STAMP

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REVISION

DATE

PHASE 1
SCHEMATIC DESIGN

09/09/2014

SCHEMATIC DESIGN

10/14/2014

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INDOOR
THEATER
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PROJECT NAME

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( N O T USED FOR VEHICULAR ACCESS)

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FOREST THEATER

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PHASE 1 - RENOVATION OF

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CARMEL-BY-THE-SEA, CA 93923

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CON
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SHEET TITLE

SITE PLAN

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SCALE: 1/16" = 1'-0"

City Council Meeting of January 5, 2015
Page 108

10'

BLOCK 81

N

PROJECT NO.

14017

DRAWN BY

J. ACOSTA / J. CADOURI

CHECKED BY

C. WASNEY / M. WOOD

SHEET

A0.4
Agenda Item: 7.E
Page 4

Professional Services Agreement
THIS AGREEMENT is executed this ________ day of January 2015, by and between the CITY OF
CARMEL-BY-THE-SEA, hereinafter referred to as “CITY”, and Cody Anderson Wasney Architects
hereinafter called “CONSULTANT”.
IT IS HEREBY MUTUALLY AGREED AS FOLLOWS:
1.
Scope of Services. CONSULTANT shall perform the services described herein to
complete the Project and this shall include all work incidental to, or necessary to perform, such
services even though not specifically described in Exhibit A. The services of CONSULTANT shall
consist of four Parts as described below.
(a)
Part One. Design Development Phase. After review and acceptance of
the Schematic Design Phase (under separate contract) and issuance of a written Notice to
Proceed:
(1)
Technical specifications, and estimates:
Based upon the
accepted design documents and the Construction Budget identified in the Schematic
Design Phase (attached for reference), including authorized revisions thereto,
CONSULTANT shall prepare for review and a c ce pt an ce b y CIT Y c o ns ist i ng of
outline technical specifications and estimates of the work as to kinds of materials,
systems, and other such design elements as may be required. Such Design
Development specifications and estimates shall be subject to review and acceptance by
CITY. A formalized submittal for Design Development Phase plans is omitted.
(b)

Part Two. Construction Document Phase.

(1)
Plans; After review and acceptance of the Schematic Design
Phase (under separate contract) and issuance of a written Notice to Proceed:
CONSULTANT shall prepare detailed plans setting forth the complete work to be
done, and the materials, workmanship, finishes and equipment, fixtures, and site work
required. Such documents shall be subject to the review and acceptance by CITY.
CONSULTANT shall cooperate with, assist and be responsive to CITY’S Project
Manager in preparation of all documents including, without limitation, slip-sheeting final
documents for printing when requested. CITY’S Standard Drawings and Specifications
must be used by CONSULTANT where possible. Final drawings shall be drawn, printed
or reproduced by a process providing a permanent record in black on high quality
bond copy. Bid, general conditions, contract and bond document forms or formats
regularly used by CITY shall be used by CONSULTANT unless the Director determines
they would be impractical for this Project. CONSULTANT shall be responsible for
assuring that the special conditions, technical specifications and any other documents
prepared by CONSULTANT are consistent with any documents regularly used by CITY
that are used for this Project.
(2)
Specifications; After review and acceptance of the Development
Design Phase specifications with Part One, and issuance of a written Notice to Proceed:
CONSULTANT shall prepare technical specifications setting forth the complete work to
be done, and the materials, workmanship, finishes and equipment, fixtures, and site
work required. Such documents shall be subject to the review and acceptance by
CITY. CONSULTANT shall cooperate with, assist and be responsive to CITY’S Project
Manager in preparation of specifications. CITY’S Standard Specifications must be used
by CONSULTANT where possible. CONSULTANT shall be responsible for assuring
that the special conditions and any other documents prepared by CONSULTANT are
consistent with any documents regularly used by CITY that are used for this Project.
City Council Meeting of January 5, 2015
Page 109

Page 1 of 12

Agenda Item: 7.E
Page 5

(3)
CONSULTANT shall provide the calculations used to determine
the general construction contract quantities; and structural calculations for the purpose
of obtaining any building permits.
(4)
CONSULTANT shall make as many submittals as may be
necessary or desirable to obtain the acceptance by CITY and shall assist CITY in
applying for and obtaining from applicable public agencies any approval, permit, report,
statement, or waiver required by law, which assistance shall include, but not be limited
to, making Project information available to CITY.
CONSULTANT shall provide CITY with four (4) hard copy sets of
(5)
completed plans for and two (2) hard copy sets of completed specifications. Three
sets are to be submitted to the Building and Planning Department for Plan Check /
permitting. One (1) set of plans and both sets of specifications shall be submitted to the
CITY’S Project Manager for review and comment.
(6)
All plans and specifications are for review and final acceptance by
CITY. Should the plans and specifications as submitted by CONSULTANT not be
accepted by CITY, CONSULTANT shall revise the plans and specifications as needed
to obtain final acceptance at no additional cost to CITY.
(7)
After acceptance of final corrections, CONSULTANT shall
provide CITY with one set of accepted high quality bond plans and all other bid
documents for the Project. In addition, CONSULTANT shall provide CITY with one
complete set of CAD/System disk files of drawings and complete disk files of
specifications in the following formats: Plans in both AutoCAD 2007 and pdf, and
specifications in MSWord.
(8)
CONSULTANT shall submit a final estimate of construction cost
for review and acceptance by CITY. Such estimate shall be calculated as of the date all
general construction contract documents are delivered to CITY in final form ready for
reproduction and advertising. Such estimate shall include, but shall separately state, the
cost of any add or deduct alternates, any work which may be let on a segregated basis,
and any equipment, or fixtures which may be incorporated in or excluded from the
general construction contract.
(9)
In the event that the final estimate of construction cost exceeds
the revised estimate of construction cost previously accepted by more than 10%,
excluding therefrom any add alternate, any work which may be let on a segregated bid
basis and any furnishings, equipment or fixtures which was identified in the final revised
estimate in Part One as that which may be excluded from the general construction
contract, CITY shall have the option of accepting or rejecting the final estimate. If
CITY elects to reject the final estimate, CONSULTANT shall at no additional cost to
CITY, make such design changes as may be necessary to reduce the final estimate so
that it shall not exceed the revised estimate of construction cost previously accepted by
CITY.
Part Three. Bidding Phase. After review and acceptance of the
(c)
Construction Document Phase and if CITY elects to proceed to bid, which shall constitute
a written Notice to Proceed with this Part Three:
(1)
CONSULTANT
shall assist CITY in obtaining bids.
CONSULTANT shall not communicate with potential bidders regarding this Project
without the express prior written authorization of CITY’S Project Manager.
City Council Meeting of January 5, 2015
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Page 2 of 12

Agenda Item: 7.E
Page 6

(2)
CONSULTANT shall, within 5 working days of any request by
CITY, expeditiously draft and promptly provide addendum as determined by CITY to be
reasonable or necessary for the bidding process.
(3)
If the lowest responsible bid received for the general construction
contract exceeds by 10% or more the final estimate of construction cost previously
accepted by CITY, excluding therefrom any add alternate, any work which may be let on
a segregated bid basis and any furnishings, equipment or fixtures which are excluded
from the general construction contract, CONSULTANT shall, within 10 working days of
any request by CITY, revise the plans and specifications as may be necessary to stay
within 10% of such final estimate of construction cost, at no additional cost to CITY
provided such bid is received within 180 calendar days after completion of services in
Section 1(c) of this AGREEMENT. CONSULTANT shall also submit such revised plans
and specifications, together with a new final estimate of construction cost, to CITY for
review and acceptance. This procedure, using the latest accepted final estimate of
construction cost, shall, upon written notice to CONSULTANT from the Director, be
repeated until an acceptable bid is received that does not exceed the accepted final
estimate of construction cost by more than 10%.
Part Four. Construction Phase and General Construction Contract
(d)
Administration. The construction phase will begin with the award of the general construction
contract, which shall constitute a written Notice to Proceed with this Part Four, and will terminate
when a Notice of Completion is filed. Upon award of a general construction contract for the
Project and under the direction of the Director through CITY’S designated Construction
Manager for the Project:
(1)
CONSULTANT shall attend the pre-construction conference and,
if called upon by CITY, act on CITY’S behalf in discussing the various aspects of the
construction phase.
(2)
CONSULTANT shall review and recommend in writing to CITY
acceptance or non-acceptance of shop drawings, equipment and material submittals of
the general construction contractor as required by the general construction contract and
applicable laws and regulations in a timely manner. The period for CONSULTANT
review shall be as specified in the general construction contract, except if such period is
not so specified, the period shall be as determined in the pre-construction conference as
mutually agreed upon by CITY, CONSULTANT and the general construction contractor.
(3)
CONSULTANT shall, at intervals appropriate to the state of
construction, familiarize itself with the progress and quality of the work and determine in
general if the work is proceeding in accordance with the general construction contract
documents, and keep CITY informed of the progress of the work. In the event that
CONSULTANT’S visit to the site results in the discovery of any defect or deficiencies in
the work of the general construction contractor, CONSULTANT shall immediately advise
CITY and document, in writing, the work CONSULTANT deems substandard, and make
recommendations where appropriate to reject any work not conforming to the intended
design or specifications. Based on CONSULTANT’S best knowledge, information and
belief, CONSULTANT shall provide CITY a general written assurance that the work
covered by a payment application meets the standards in the general construction
contract. As to technical aspects, CONSULTANT shall provide a written judgment of the
acceptability of the work for payment applications and final acceptance, subject to
CITY’S right to overrule CONSULTANT.

City Council Meeting of January 5, 2015
Page 111

Page 3 of 12

Agenda Item: 7.E
Page 7

(4)
Upon written request by CITY, CONSULTANT shall render
interpretations of the general construction contract documents necessary for the proper
execution or progress of the work.
(5)
Upon written request by CITY, CONSULTANT shall render written
recommendations on change orders, claims, disputes or other questions arising out of
the general construction contract, in a timely manner. Recommendations by
CONSULTANT in favor of a change order that is consequently accepted by CITY shall
constitute approval by CONSULTANT who shall then approve the change order in
writing. CONSULTANT shall not unreasonably withhold written approval in the event
CITY accepts a change order that CONSULTANT recommended to be rejected. In the
event of any technical disputes, CONSULTANT shall provide CITY with
CONSULTANT’S written interpretation of the contract documents. The period for
CONSULTANT review shall be as specified in the general construction contract, except
if such period is not so specified, the period shall be as determined in the preconstruction conference as mutually agreed upon by CITY, CONSULTANT and the
general construction contractor. If CITY, CONSULTANT and the respective general
construction contractor are unable to mutually agree on such period for CONSULTANT
review, then CITY will make the determination and that determination will be final.
(6)
Upon written request by CITY, CONSULTANT shall provide such
design and specification services as may be requested by CITY to implement change
orders necessary for clarification or interpretation of the general construction contract
documents or which may have resulted from errors or omissions by CONSULTANT.
(7)
Where change orders arise as a result of an increase in the scope
of work or are due to unforeseeable conditions, the parties may modify this
AGREEMENT, which modification shall include an agreed upon increase in
CONSULTANT’S compensation.
(8)
Upon written request of CITY, CONSULTANT shall assist CITY in
the preparation of Progress Payment Estimates and other related construction reports.
(9)
CONSULTANT shall provide CITY with two sets of original asgrade plans wet-stamped and signed by the CONSULTANT’S Engineer of Record for
the Project submitted for final approval by the CITY’s Building and Development
Department.
(10) CONSULTANT shall prepare Record Drawings by updating the
accepted general construction documents in Part Three to reflect all changes or
deviations that occurred during construction as reflected on or from each of the
following: (i) the general construction contractor provided red-lined plans, (ii) those
furnished by the CITY, (iii) CONSULTANT provided Request for Information
responses, and (iv) any CONSULTANT bulletins, amendments or clarifications.
CONSULTANT shall provide CITY with one set of vellum, and one set of high quality
bond Record Drawings for the Project within 30 working days from receipt of red-lined
field markups unless an extension of time is approved in writing by the Director. Resubmittals, as necessary to obtain the acceptance by CITY, shall be submitted to CITY
within 30 working days from receipt of CITY comments unless an extension of time is
approved in writing by the Director. In addition, CONSULTANT shall provide CITY with
one complete set of CAD/System disk files of Record Drawings in the following format:
Plans in both AutoCAD 2007 and pdf, and specifications in MSWord.

City Council Meeting of January 5, 2015
Page 112

Page 4 of 12

Agenda Item: 7.E
Page 8

2.

CITY’S responsibilities. CITY will:

(a)
Provide, upon request and cooperation of CONSULTANT, access to, and
make all provisions necessary to, enter upon public or private lands as required for
CONSULTANT to perform such services and inspections as are required in development of the
Project; provided, however, if CITY is unable to obtain access to enter upon public or private
lands, CONSULTANT shall not be relieved from performing its services as to those public and
private lands that are accessible. If CONSULTANT notifies CITY that a topographic survey is
required by CONSULTANT in connection with the consulting services, then CITY will be
responsible for conducting the topographic survey.
Manage and be responsible for all negotiations with owners in connection
(b)
with land or easement acquisition and provide all required title reports and appraisals.
(c)
With the exception of preparing correspondence required for design, hold
all required special meetings, serve all public and private notices, receive and act upon all
protests, and perform all services customarily performed by owners as are necessary for the
orderly progress of the work and the successful completion of the Project, and pay all costs
incidental thereto.
(d)
Select the testing laboratory and pay the cost of borings, samplings, and
other work involved in soils testing during construction.
(e)
Conduct onsite inspection during construction to check quality and
quantity of work as conditions warrant and be responsible for assuring that the general
construction contractor carries out all construction work in accordance with the plans and
specifications. However, this does not release CONSULTANT from its responsibility to make
periodic site visits under Section 1(e) for the purpose of observing the work to determine its
general conformity with the plans and specifications and reporting its findings to CITY.
(f)
CONSULTANT.

Prepare all change orders during construction in cooperation with

(g)
Prepare all Progress Payment Estimates in cooperation with
CONSULTANT following its general assurance that the work covered by a payment application
meets the standards in the general construction contract documents based upon
CONSULTANT’S best knowledge, information and belief.
(h)
Pay, or cause to be paid, plan check fees, conditional use permit fees and
site plan review fees.
(i)
Arrange for and pay, or cause to be paid, any fees associated with
Environmental Impact Reports or Statements.
Give reasonably prompt consideration to all matters submitted by
(j)
CONSULTANT for acceptance to the end that there will be no substantial delays in
CONSULTANT’S program of work. For an acceptance, approval, authorization, a request or
any direction to CONSULTANT to be binding upon CITY under the terms of this
AGREEMENT, such acceptance, approval, authorization, request or direction must be in
writing, duly authorized by CITY and signed on behalf of CITY by the Director.
(k)
Select the testing laboratory and pay the cost of hazardous materials
samplings and reports, and other work involved in testing during construction.

City Council Meeting of January 5, 2015
Page 113

Page 5 of 12

Agenda Item: 7.E
Page 9

3.
Professional Skill. It is further mutually understood and agreed by and between
the parties hereto that inasmuch as CONSULTANT represents to CITY that CONSULTANT and
its subcontractors, if any, are skilled in the profession and shall perform in accordance with the
standards of said profession necessary to perform the services agreed to be done by it under
this AGREEMENT, CITY relies upon the skill of CONSULTANT and any subcontractors to do
and perform such services in a skillful manner and CONSULTANT agrees to thus perform
the services and require the same of any subcontractors. Therefore, any acceptance of
such services by CITY shall not operate as a release of CONSULTANT or any subcontractors
from said professional standards.
(a)
CONSULTANT’S services pursuant to this AGREEMENT shall be
provided under the supervision of Monique Wood, and he/she shall not assign another to
supervise CONSULTANT’S performance of this AGREEMENT without the prior written
approval of the Director.
4.
Precedence of Documents. In the event of any conflict between the body of this
AGREEMENT and any Exhibit or Attachment hereto, the terms and conditions of the body of this
AGREEMENT shall control and take precedence over the terms and conditions expressed within the
Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment
hereto which purport to modify the allocation of risk between the parties, provided for within the body of
this AGREEMENT, and shall be null and void.
5.
Timely Work. CONSULTANT shall perform all duties incidental or necessary within 730
days (two years) of the CITY’S issuance of the Notice to Proceed; and shall be performed diligently,
competently and in accordance with professional standards of performance. Failure to so perform is
hereby deemed a material breach of this AGREEMENT, and CITY may terminate this AGREEMENT with
no further liability hereunder. CITY may agree in writing with CONSULTANT to an extension of time. It is
expressly agreed and understood that CONSULTANT shall not be held responsible for delays
occasioned by factors beyond their reasonable control, nor by factors that could not reasonably have
been foreseen at the time of execution of this AGREEMENT.
6.
Term. The work under this AGREEMENT shall commence upon the date of the
AGREEMENT being filed with the CITY of Carmel-by-the-Sea CITY Clerk, and shall terminate 730 days
afterwards.
7.

Compensation.

(a)
CONSULTANT’S sole compensation for satisfactory performance of all
services required or rendered pursuant to this AGREEMENT shall be a total fixed fee of $146,398.00,
plus an $8,000.00 allowance for reimbursable expenses; for a grand total not-to-exceed $154,398.00.
Such fee includes all expenses incurred by CONSULTANT in performance of the services, except as
otherwise noted within this AGREEMENT, including those defined within the CONSULTANT’S
proposal.
(b)
Detailed statements shall be rendered monthly and will be payable in the normal
course of CITY business. Such statements shall be for an amount no greater than that attributable to
the Part upon which CONSULTANT is then engaged as provided in Section 1. Written invoices shall
clearly itemize each charge. The payment of any compensation to CONSULTANT hereunder shall be
contingent upon performance of the terms and conditions of this AGREEMENT to the satisfaction of the
CITY Administrator. If the CITY Administrator determines that the work set forth in the written invoice
has not been performed in accordance with the terms of this AGREEMENT CITY shall not be
responsible for payment until such time as the work has been satisfactorily performed.
(c)
For purposes of determining the division of the total compensation to
CONSULTANT as provided in Section 1 , or should performance of any succeeding Part not be
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Agenda Item: 7.E
Page 10

authorized by CITY as provided in Section 1 of this AGREEMENT, it is agreed that the total
compensation shall be allocated to the four Parts of CONSULTANT’S performance as follows: Part
One – $31,810.00, Part Two – $47,714.00, Part Three – $9,009.00, and Part Four - $57,870.00. Prior
to the award of a general construction contract for the Project, or should such contract not be awarded,
the approved Parts as provided above shall be utilized for purposes of determining the fee due to
CONSULTANT.
(d)
The parties may modify this AGREEMENT to increase or decrease the scope of
services or provide for the rendition of services not required by this AGREEMENT, which modification
shall include an adjustment to CONSULTANT’S compensation. Any change in the scope of services
must be made by written amendment to the AGREEMENT signed by an authorized representative for
each party. CONSULTANT shall not be entitled to any additional compensation if services are
performed prior to a signed written amendment. Subsequent to the date of completion of Part 3,
changes due to Code revisions or enactments adopted after such date shall constitute additional work
are subject to Section 5 of this AGREEMENT.
Additional Services. In the event that CITY should request additional services not covered
8.
by the terms of this AGREEMENT, said services will be provided by CONSULTANT and paid for by CITY
only after a fee for said services has been agreed upon between CONSULTANT and CITY Administrator
and the CITY Administrator provides written authorization for the additional work.
9.
Meet and Confer. CONSULTANT agrees to meet and confer with CITY or its agents or
employees with regard to services as set forth herein as may be required by CITY Administrator to insure
timely and adequate performance of this AGREEMENT.
10.
Indemnification. CONSULTANT hereby agrees to the following indemnification clause:
To the extent permitted by law (including, without limitation, California Civil Code Sections 2782 and
2782.6), CONSULTANT shall indemnify, including the cost to defend, CITY and its officers, departments,
officials, and employees (collectively “Indemnitees”) from and against any and all claims, demands, costs
or liability that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of
CONSULTANT, any SUB-CONSULTANT, anyone directly or indirectly employed by them, or anyone that
they control (collectively “Liabilities”). Such obligations to indemnify any Indemnitee shall not apply to the
extent that such Liabilities are caused in part by the sole negligence, active negligence or willful
misconduct of any Indemnitee or by any Third Party.
CONSULTANT further agrees to indemnify CITY for damage to or loss of CITY OF
CARMEL-BY-THE-SEA property to the proportionate extent they arise out of CONSULTANT’S negligent
performance of the work associated with this Contract or to the proportionate extent they arise out of any
negligent act or omission of CONSULTANT or any of CONSULTANT’S employees, agents, contractors,
representatives, patrons, guests or invitees; excepting such damage or loss arising out of the negligence
of CITY or any Third Party.
11.
Insurance. CONSULTANT shall submit and maintain in full force all insurance as
described herein. Without altering or limiting CONSULTANT’S duty to indemnify, CONSULTANT shall
maintain in effect throughout the term of this AGREEMENT a policy or policies of insurance with the
following minimum limits of liability:
Commercial general liability insurance including but not limited to premises, personal
injuries, bodily injuries, products, and completed operations, with a combined single limit of not less than
$1,000,000 per occurrence and $2,000,000 in the aggregate.

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Agenda Item: 7.E
Page 11

Professional Liability Insurance. CONSULTANT shall maintain in effect throughout the
term of this AGREEMENT professional liability insurance with limits of not less than $1,000,000 per claim
and $2,000,000 in the aggregate. CONSULTANT will either maintain or cause to be maintained
professional liability coverage in full force or obtain extended reporting (tail) coverage (with the same
liability limits) for at least three (3) years following CITY’S acceptance of work.
Commercial automobile liability insurance covering all automobiles, including owned,
leased, non-owned, and hired automobiles, used in providing services under this AGREEMENT, with a
combined single limit of not less than $1,000,000 per occurrence.
Workers’ Compensation Insurance. If CONSULTANT employs others in the performance
of this AGREEMENT, CONSULTANT shall maintain workers’ compensation insurance in accordance with
California Labor Code section 3700 and with a minimum of $100,000 per occurrence for employer’s
liability.
Other Insurance Requirements
A.
All insurance required under this AGREEMENT must be written by an insurance
company either:
1)
admitted to do business in California with a current A.M. Best rating of no
less than A:VI; or
2)

an insurance company with a current A.M. Best rating of no less than A:VII

Exception may be made for the State Compensation Insurance Fund when not
specifically rated.
B.

Each insurance policy required by this AGREEMENT shall be endorsed to state that
CITY shall be given notice in writing at least thirty (30) days in advance of any
cancellation thereof, except CITY shall be given TEN (10) days notice for
nonpayment of the premium.

C.

The general liability and auto policies shall:
1)
Provide an endorsement naming CITY, its officers, officials, and employees
as additional insureds under an ISO CG 20 10 07 04 and ISO 20 37 07 04 or their
equivalent.
2)
Provide that such insurance is primary and non-contributing insurance to
any insurance or self-insurance maintained by CITY.
3)
Contain a “Separation of Insureds” provision substantially equivalent to that
used in the ISO form CG 00 01 10 01 or their equivalent.
4)
Provide for a waiver of any subrogation rights against CITY via an ISO CG
24 01 10 93 or its equivalent.

D.

Prior to the start of work under this AGREEMENT CONSULTANT shall file
certificates of insurance and endorsements evidencing the coverage required by
this AGREEMENT with the CITY Administrator. CONSULTANT shall file a new or
amended certificate of insurance promptly after any change is made in any
insurance policy which would alter the information on the certificate then on file.

E.

Neither the insurance requirements hereunder, nor acceptance or approval of
CONSULTANT’S insurance, nor whether any claims are covered under any

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Agenda Item: 7.E
Page 12

insurance, shall in any way modify or change CONSULTANT’S obligations under
the indemnification clause in this AGREEMENT, which shall continue in full force
and effect.
Notwithstanding the insurance requirements contained herein,
CONSULTANT is financially liable for its indemnity obligations under this
AGREEMENT.
F.

12.

Any deductibles or self-insured retentions must be declared to and approved by
CITY. At the option of CITY either: the insured shall reduce or eliminate such
deductibles or self-insured retentions as respects CITY, its officers, officials,
employees and volunteers; or CONSULTANT shall provide a financial guarantee
satisfactory to CITY guaranteeing payment of losses and related investigations,
claim administration, and defense expenses.

Confidential Information, Ownership of Documents and Copyright License.

(a)
Any reports, information, or other data prepared or assembled by
CONSULTANT pursuant to this AGREEMENT shall not be made available to any individual or
organization by CONSULTANT without the prior written approval of CITY. During the term of this
AGREEMENT, and thereafter, CONSULTANT shall not, without the prior written consent of CITY,
disclose to anyone any Confidential Information. The term Confidential Information for the purposes
of this AGREEMENT shall include all proprietary and confidential information of CITY, including but not
limited to business plans, marketing plans, financial information, designs, drawings, specifications,
materials, compilations, documents, instruments, models, source or object codes and other
information disclosed or submitted, orally, in writing, or by any other medium or media. All
Confidential Information shall be and remain confidential and proprietary in CITY.
(b)
Any and all original sketches, pencil tracings of working drawings, plans,
computations, specifications, computer disk files, writings and other documents prepared or
provided by CONSULTANT pursuant to this AGREEMENT are the property of CITY at the time of
preparation and shall be turned over to CITY upon expiration or termination of the AGREEMENT or
default by CONSULTANT. CONSULTANT grants CITY a copyright license to use such drawings and
writings. CONSULTANT shall not permit the reproduction or use thereof by any other person except
as otherwise expressly provided herein. CITY may modify the design including any drawings or
writings. Any use by CITY of the aforesaid sketches, tracings, plans, computations, specifications,
computer disk files, writings and other documents in completed form as to other projects or
extensions of this Project, or in uncompleted form, without specific written verification by
CONSULTANT will be at CITY’S sole risk and without liability or legal exposure to CONSULTANT.
CONSULTANT may keep a copy of all drawings and specifications for its sole and exclusive use.
(c)
If CONSULTANT should subcontract all or any portion of the services to be
performed under this AGREEMENT, CONSULTANT shall cause each subcontractor to also comply
with the requirements of this Section 12.
(d)
Upon completion of any work and final payment under this Contract, ownership
and title to all materials and deliverables produced as part of this Contract will automatically be vested
in CITY and no further contract will be necessary to transfer ownership to CITY.
(e)

This Section 12 shall survive expiration or termination of this AGREEMENT.

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Agenda Item: 7.E
Page 13

13.
Licensing. CONSULTANT represents that it is properly licensed to perform the work
specified under this AGREEMENT, including but not limited to, possession of a current CITY business
license.
14.
Termination. This AGREEMENT may be terminated by either party upon thirty (30)
calendar days written notice to the other party. In the event of such termination, CITY shall pay
CONSULTANT for all services performed to the satisfaction of CITY to the date of receipt of notice of
termination. An itemized statement of the work performed to the date of termination shall be submitted to
CITY. In ascertaining the services actually rendered hereunder up to the date of termination of this
AGREEMENT consideration shall be given to both completed work and work in process of completion,
and to complete and incomplete drawings and other documents whether delivered to CITY or in the
possession of the CONSULTANT.
15.
Agency. In performing the services specified under this AGREEMENT CONSULTANT is
hereby deemed to be an independent CONSULTANT and not an agent or employee of CITY.
16.
Authority of the CITY Administrator. CONSULTANT shall perform all necessary services
provided under this AGREEMENT and outlined in the proposal and shall do, perform, and carry out said
work in a satisfactory and proper manner as determined by and to the reasonable satisfaction of the CITY
Administrator. The CITY Administrator reserves the right to make reasonable changes, additions or
deletions, to the scope of work as deemed necessary or advisable to implement and carry out the
purposes of this AGREEMENT. The CITY Administrator is authorized to execute change orders.
17.
Responsibility of Consultant. By executing this CONSULTANT represents and states to
CITY that he/she possesses, or will arrange to secure from others, all necessary professional capabilities,
experience, resources and facilities necessary to provide to CITY the services contemplated under this
AGREEMENT. CONSULTANT further represents that he/she will follow the current generally accepted
practices of the profession to make findings, render opinions, prepare factual presentations, and provide
professional advice and recommendations regarding the project for which services are rendered under
this AGREEMENT.
18.
Materials and Equipment. CONSULTANT shall furnish at his/her own expense all materials
and equipment necessary to carry out the terms of this AGREEMENT, unless otherwise noted.
19. Audit Authority. CONSULTANT shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this AGREEMENT; the accounting
and control systems shall be satisfactory to CITY. CITY and CITY’S auditor shall be afforded access to
CONSULTANT’S records, books, correspondence and other data relating to this AGREEMENT.
CONSULTANT shall preserve these records, books, correspondence and other data relating to this
AGREEMENT for a period of four (4) years after final payment, or for such longer period as may be
required by law. In addition, CONSULTANT agrees to make said records, books correspondence and
other data relating to this AGREEMENT available to CITY at CITY’S principle place of business upon
seventy-two (72) hours advance written notice. The CITY Administrator, or his or her designee, shall at all
times have the right to inspect the work, services, or materials. CONSULTANT shall furnish all
reasonable aid and assistance required by CITY for the proper examination of the work or services and all
parts thereof. Such inspection shall not relieve CONSULTANT form any obligation to perform said work or
services strictly in accordance with the specifications or any modifications thereof and in compliance with
the law.
20.
Notices. All notices herein provided to be given, or which may be given by either party to
the other, shall be considered fully received when made in writing and deposited in the United States mail,
certified and postage prepaid, and addressed to the respective parties as follows:

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Agenda Item: 7.E
Page 14

CITY:

Carmel-by-the-Sea, Public Services Department, P.O. Box CC, Carmel-bythe-Sea, California 93921

CONSULTANT: Cody Anderson Wasney Architects, 455 Lambert Avenue, Palo Alto, CA
94306
21.
Entire Agreement. This AGREEMENT constitutes the entire AGREEMENT between the
parties hereto and supersedes any and all prior agreements, whether oral or written, relating to the subject
matter thereof. Any modification of this AGREEMENT will be effective only if it is in writing signed by both
parties hereto.
22.
Validity. If any provision in this AGREEMENT is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remaining provisions will continue in full force without being impaired
or invalidated in any way.
23.
Assignment of Interest. The duties under this AGREEMENT shall not be assignable,
delegable, or transferable without the prior written consent of CITY. Any such purported assignment,
delegation, or transfer shall constitute a material breach of this AGREEMENT upon which CITY may
terminate this AGREEMENT and be entitled to damages.
24.
Conflict of Interest. Conflict of Interest. CONTRACTOR covenants that neither it nor any
person working for it or with it to provide the services called for by this AGREEMENT has any interest, nor
shall any person acquire any interest, directly or indirectly, which would conflict in any manner or degree
with the performance of the services hereunder.
CONTRACTOR further covenants that in the performance of this AGREEMENT, no person having
such interest shall be employed by CONTRACTOR. CONTRACTOR shall at all time avoid conflicts of
interest, or the appearance of conflicts of interest, in the performance of this AGREEMENT.
CONTRACTOR shall file statements of financial interest, on forms provided by CITY, to the extent and at
the times required by CITY'S Conflict of Interest Code and applicable law.
25.
Non-discrimination/Affirmative Action. CONSULTANT will not discriminate against any
employee or applicant for employment because of race, creed, color, sex, age, national origin, marital
status, physical or other motor handicap, unless based upon bonafide occupational disqualification.
CONSULTANT will take affirmative action to ensure that applicants are employed and that
employees are treated during employment without regard to their race, creed, color, sex, age, national
origin, marital status, physical or other motor handicap.
26.
Counterparts. This AGREEMENT may be executed in multiple originals, each of which is
deemed to be an original, and may be signed in counterparts.
27.
Laws. CONSULTANT agrees that in the performance of this AGREEMENT it will
reasonably comply with all applicable state, federal and local laws and regulations. This AGREEMENT
shall be governed by and construed in accordance with the laws of the State of California and the CITY of
Carmel-by-the-Sea.
28.
Attorneys Fees and Court Venue. Should either party to this AGREEMENT bring legal
action against the other, (formal judicial proceeding, mediation or arbitration), the case shall be handled in
Monterey County, California, and the party prevailing in such action shall be entitled to a reasonable

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Agenda Item: 7.E
Page 15

attorney’s fee which shall be fixed by the judge, mediator or arbitrator hearing the case and such fee shall
be included in the judgment, together with all costs.
29.
Severability. If any term of this AGREEMENT is held invalid by a court of competent
jurisdiction the remainder of this AGREEMENT shall remain in effect.
IN WITNESS WHEREOF, this AGREEMENT is entered into by the parties hereto in Carmel,
California, on the day and year first above written.

CITY OF CARMEL-BY-THE-SEA

CONSULTANT

By: ________________________
Doug Schmitz,
CITY Administrator

By: ________________________
Chris Wasney
Principal

Date: _______________________

Date: _______________________

By: _________________________
Andy Vanderford
Project Manager,
Public Services Dept.
Date: _______________________

Attest:
By: _________________________
Name: ______________________
City Clerk
Date: _______________________

−12−

City Council Meeting of January 5, 2015
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Agenda Item: 7.E
Page 16

EXHIBIT A
PROPOSED SCOPE OF ARCHITECTURAL SERVICES FOR PHASE 1 (‘TRIAGE’ PHASE)
DESIGN DEVELOPMENT
• Prepare design development drawings elaborating on the approved schematic design.
• Present our design development solutions to the client for review and comment.
• Revise documents to respond to client comments.
CONSTRUCTION DOCUMENTS
• Prepare construction document drawing and written specifications suitable for local authority having jurisdiction approval / permit and contractor bid.
• Prepare a cost estimate at 100% completion of the construction documents phase for review and approval prior to bidding.
• Make corrections as necessary during permitting review period to obtain approval.
BIDDING
• Provide assistance during the bidding phase by responding to contractor questions.
• Attend one bidding job walk, and one bid opening, both meetings led by others.
CONSTRUCTION ADMINISTRATION
• Attend Owner Architect Contractor site meetings every two weeks throughout the 20-week construction duration (for a total of 10 on-site meetings). Meeting
facilitation and meeting reports will be provided by others. Additional site meeting participation may be provided as an additional service.
• Two of the on-site meetings will be reserved for one punch list walk after substantial completion and one punch list back check after final completion.
• Respond and process contractor RFI’s and submittals, review change orders, and provide interpretations as needed during the approved construction schedule
phase of the work.
PROJECT CLOSEOUT
• Obtain and assemble closeout documentation required by authorities having jurisdiction, client and client facilities.
• Prepare electronic record drawings incorporating RFI responses, bulletins, and project clarifications.
• Record Drawings will be given to client in PDF format, CAD format and one (1) paper hard copy set of drawings.

PROJECT TEAM
We have assembled the consultant team below to deliver the scope of the project described.
Theater Consultant:

Landry & Bogan Theatre Consultants

Structural Engineering:

Rinne & Peterson Structural Engineers

Landscape Architecture:

Stephen Wheeler Landscape Architect

Civil Engineering:

BKF Engineers

Cost Consulting:

TBD Consultants

Mechanical/Plumbing/Electrical:

Interface Engineering

City Council Meeting of January 5, 2015
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Agenda Item: 7.E
Page 17

PROJECT ASSUMPTIONS
The following project assumptions form the basis of our proposal:

We assume the Topographic survey, Seismic Survey, Soils report, Soils boring log and any and all reports done directly by the Client to be an
accurate reflection of the site conditions, and will provided design services based on these documents.

We have assumed project durations per the draft schedule below.

Division 0 specifications (Procurement and Contracting Requirements) will be provided by the City.

PROJECT TERMS AND CONDITIONS
The following terms and conditions apply to this fee proposal:

CAW fees are based on the draft schedule attached. CAW fees are per the included fee breakdown.

The Client and CAW agree to enter into the standard Owner/Architect form of agreement provided by the City. The CAW team reimbursable
expenses include 1) printing (at cost plus 10%) and 2) travel expenses which are not otherwise covered in scope of services listed elsewhere.

CAW will not provide any surveys such as topographic, soils reports, hazardous materials or similar surveys unless included in scope of work.

Project documentation will be developed separately for Phase 2 scope. No allowance has been made for other separate documentation
packages or phasing of the project.

Models and or Graphic renderings (beyond working design sketches/models) to be used for marketing purposes are additional services.

All authority having jurisdiction permit fees will be paid for by the Client.

If any phase of the project is put on hold for reasons beyond CAW control CAW reserves the right to review and revise this fee proposal as
necessary to compensate for out of sequence work and loss of productivity.

CAW cannot be held responsible for delays caused by the Local Authority having jurisdiction over the project. Each jurisdiction operates
differently and review times vary. CAW will contact the Local Authorities on a regular basis to keep track of the approval process and advise
the client of the progress.

PROJECT SCHEDULE
The schedule shown below is a draft, and will be confirmed with you prior to beginning our work.
DOCUMENT DEVELOPMENT SCHEDULE

Duration

Start Date

Stakeholder Approval of Schematic Design

End Date
Monday, 12/8/14

Construction Documents Development:
Construction Documents and Final Cost Estimate Development

7 days

Tuesday, 12/9/14

Submit for Permitting
Permitting and Bidding Support
Construction Administration (Including CA and Closeout)

Wednesday, 12/17/14
Thursday, 12/18/14

40 days

Thursday, 12/18/14

Thursday, 2/26/15

20 weeks

Friday, 3/6/15

Friday, 7/24/15

PROJECT COMPLETE

City Council Meeting of January 5, 2015
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Agenda Item: 7.E
Page 18

SUMMARY OF FEES
Based on the project description, assumptions and terms and conditions, we propose to perform the scope of work outlined above for a total
fixed fee of $ 146,398. A breakdown of our fees are as follows:

PHASE 1: DESIGN DOCUMENTATION AND CONSTRUCTION ADMINISTRATION
Architectural Services

$55,010

Structural Engineering

$26,000

Landscape Architecture

$22,000

Civil Engineering

$7,300

Cost Estimating

$4,500

Mechanical / Plumbing / Electrical Engineering

$13,280

Theatre Consultant

$9,000

Code Consultant

$1,000

Consultant Markup (10%)

$8,308

TOTAL Scope:

Reimbursable Expense Allowance

$146,398

$8,000

BREAKDOWN BY PROJECT PHASE
Design Documentation Phase

$31,810

Construction Documentation Phase

$47,714

Permitting / Bidding Phase
Construction Administration Phase
TOTAL Scope:

City Council Meeting of January 5, 2015
Page 123

$9,004
$57,870

$146,398

Agenda Item: 7.E
Page 19

Should you be in agreement, we ask that our proposal be formalized with an approval to proceed with formalizing the Owner/Architect agreement
and to proceed with the work outlined above.
We greatly appreciate this opportunity to work with the City of Carmel-by-the-Sea on the Forest Theater Renovation project.
Should you have any questions related to this proposal, please contact me at your convenience. We look forward to working with you on this
important project.
Sincerely,

Chris Wasney, AIA

website | www.cawarchitects.com

Principal

email | cwasney@cawarchitects.com

Cody Anderson Wasney Architects, Inc.

City Council Meeting of January 5, 2015
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Agenda Item: 7.E
Page 20