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DESIGN-BUILD PRECONSTRUCTION SERVICES AGREEMENT
CONTRACTORS NAME:
ADDRESS:
PHONE:
FAX:
E-MAIL:
LIC #:
DATE:
OWNERS NAME:
ADDRESS:
PROJECT ADDRESS:
I. PARTIES
This contract (hereinafter referred to as Agreement) is made and
entered into on this _______ day of _________ , 20 ___ , by and
between __________________________ , (hereinafter referred to as
Owner); and ___________________________, (hereinafter referred
to as Contractor). In consideration of the mutual promises contained
herein, Contractor agrees to perform the following work, subject to the
terms and conditions below:
II. GENERAL BACKGROUND INFORMATION AND ANTICIPATED
SCOPE OF WORK
Owner and Contractor have been discussing Owners project referred to
above. Owner does not yet have a fully detailed set of plans for this
project which are generally suitable for bidding or construction by a
Contractor.
Owner agrees to meet with Contractor from time to time in order to
provide information to Contractor regarding design, cost, function, and
aesthetics of the project.
Owner would like Contractor to develop plans and certain specifications
that are generally suitable for construction by Contractor.
Data Information Gathering: Requirements can vary depending on
jurisdiction and requirements of each jurisdiction. Depending upon the
nature of the project, Owner may be requested to provide one or more
of the following to Contractor:
_________
Contractor

________
Owner

________
Owner

a. Property survey by licensed surveyor or civil engineer, documentation


showing location of all existing improvements, land features, all belowgrade utilities, pipes, and topography. Owner to hire and pay above
consultants.
b. Geotechnical report by licensed soils engineer. Owner to hire and pay
above consultants.
c. For properties with existing or proposed septic systems, Pumpers
report and/or septic engineers drawings and design. Owner to obtain
septic information on property from County Environmental Health or
other governing office.
d. Well tests and reports, if pertinent. Owner to hire and pay consultant.
e. Copy of County tax assessors property file. This file may provide
permit history and simple drawings of recorded improvements which
may reduce cost of preparing required as-built drawings.
f. Assessors parcel map.
g. Vicinity road map.
h. Legal description of property.
i. CC&Rs (covenants, codes, and restrictions) if recorded against or
binding upon property.
j. Information on any unrecorded agreements Owner may have made
with other property owners regarding Owners property.
k. On an hourly basis, Contractor may also obtain some of the
information above in items a-j, if authorized by Owner, as additional
work to this Agreement.
A. ANTICIPATED SCOPE OF WORK
The scope of the plans and specifications to be provided by Contractor is
strictly limited to the following (both parties initial the appropriate
items):
_______
_______
_______
_______
_______
_______
_______
_______
_______
_______

Conceptual/Schematic Design Sketches


Floor Plan
Site Plan
Foundation Plan
Framing Plan
Sections
Exterior Elevations
Miscellaneous Interior Elevations
Interior Finish Schedule For Doors, Hardware and Trim
Other Drawings Required by County or City Jurisdiction and
Scope of Project
_______ Other:____________________________________
_______ Other:____________________________________
_________
Contractor

________
Owner

________
Owner

_______ Engineering Details and Outside Consultants (structural


engineer, civil drainage engineer, geotechnical engineer, Title 24 energy
consultant, landscape, fire sprinkler, mechanical layout drawings, and
other consultants as required or deemed necessary by Contractor).
Owner will directly pay for and enter into separate agreements with
these outside consultants and services:
1. _______________________________________________
2. _______________________________________________
3. _______________________________________________
Owner expressly authorizes Contractor to rely on the accuracy of any
existing reports (e.g., surveys, engineering reports, and documents
listed in Section II.A., above, etc.) which are furnished to Contractor by
Owner or Owners consultants.
1. TARGET BUDGET RANGE: The target budget range for the
construction phase of the project is: $_______ to $_______, exclusive
of the following: plans, permits, outside consultant fees, Change Orders,
upgrades, and Additional Work requested after the initial plans have
been prepared, land costs, finance fees, public and private utility
company hook-up fees, landscaping and site work beyond that required
for construction, hardscape, softscape, and any work inconsistent with
the design criteria set forth below.
2. DESIGN CRITERIA FOR ESTABLISHING TARGET BUDGET
RANGE: Due to the fact that the plans and specifications are not fully
developed at the time this Agreement is entered into, the target budget
price for construction is based on the following design criteria:

3. NO COST GUARANTEE BY CONTRACTOR: Contractor does not


provide a construction cost guarantee. Owner shall obtain preliminary
construction costs periodically during the design process from other
contractors, hire a professional estimating consultant, or hire the
Contractor named in this Agreement to perform this estimating work as
Additional Work to this Agreement.
III. GENERAL CONDITIONS
A. DATE OF WORK COMMENCEMENT AND SUBSTANTIAL
COMPLETION OF DESIGN WORK
Commence work: ___________. Time through substantial completion:
approximately ______ to ______ weeks/months, not including delays
_________
Contractor

________
Owner

________
Owner

and adjustments for delays caused by additional time required for


Change Order and Additional Work, delays caused by Owner in furnishing
information, delays caused by Owners separate consultants, and other
delays unavoidable or beyond the control of the Contractor.
B. CONTRACTORS COMPENSATION AND BILLING
Owner agrees to pay Contractor in one of the methods set forth below:
1. LUMP SUM AMOUNT: Owner agrees to pay the Lump Sum Amount
of $_______ (exclusive of the cost of outside consultants, engineers,
permit fees, and any work not specifically included above). However, if
the scope of the design work is increased by Owner, then Contractor will
increase the Lump Sum Amount of this Agreement in an amount to be
agreed upon with Owner.
2. HOURLY RATE: Owner agrees to pay Contractor at the hourly rate of
$_____ per hour to perform the Preconstruction Design Services noted
above.
Approximate scope of work is between _____ and _____ hours,
depending on the extent of detail Owner and Owners consultants require
for building, actual site conditions, and extent of Owner-provided
documentation. This estimate is subject to change as a result of
Additional Work required or factors unknown to Contractor at the time
this Agreement was entered into by the parties.
Contractor will bill for his time on a periodic basis. Payment is due within
seven (7) days of receipt of Contractors invoice. Contractor shall have
no obligation to deliver design documents to Owner if Owner is in default
on payments to Contractor.
3. REIMBURSABLE EXPENSES: Owner to reimburse Contractor for all
blueprinting and copies at the cost of these expenses, plus 15%.
Payment for reimbursable expenses is due upon submittal of invoice by
Contractor.
4. NON-REFUNDABLE RETAINER FOR DESIGN SERVICES: A nonrefundable retainer of $__________, upon signing of this agreement, is
due and payable and will be credited to the last billing cycle of the design
phase of the work as long as the Owner has not terminated Contractors
work on the design phase of the contract prior to the time the design
work is fully completed by Contractor. The parties agree that should the
Owner choose to terminate this Agreement during the design phase for
any reason whatsoever (other than Contractors failure to perform the
_________
Contractor

________
Owner

________
Owner

design services) then the Contractor will be entitled to keep the full
amount of the retainer, not as a penalty, but rather as a liquidated
damage due to the fact that it is extremely difficult to calculate the
Contractors damages in the event that the Owner terminates the design
portion of this Agreement prior to the time that the Contractor has
completed the design work.
5. LATE PAYMENTS & INTEREST: Owner agrees to pay monthly
interest at the rate of 1% on all of Contractors invoices that are not paid
within 10 days of receipt by Owner.
6. ADDITIONAL SERVICES: Upon request by Owner, additional design
services may be provided by Contractor and will be paid for by the
Owner in accordance with the terms of this Agreement. Redline revisions
from County/City plan check comments are to be expected and shall be
compensated for on an hourly basis per the terms of this Agreement.
C. FUTURE CONSTRUCTION WORK AND CREDIT FOR DESIGN
WORK
Owner has indicated a willingness to work with Contractor in the
construction phase of the project, if the project can be built for a cost
that is within Owners budget. However, Owner is under absolutely no
obligation to have the Contractor build the project. Owner and
Contractor will enter into a new and separate agreement covering the
construction phase of the project if Contractor is selected to perform the
construction work for Owner on this project.
If Owner selects Contractor to perform the construction phase of the
work, Contractor agrees to credit back to Owner ___% of the total fees
paid to Contractor for his time spent performing work under this
preconstruction services agreement.
D. PERMITS
Owner to secure all required permits through the County or City
Jurisdiction.
E. CONSULTANTS
Any and all consultants shall be hired directly by Owner, and are not
included in this Proposal/Agreement. Contractor shall have no
responsibility for the components of the Project designed by any
consultant. Owner agrees to promptly pay all consultants in accordance
with the terms of the various Owner/Consultant agreements. Failure to
do so will delay progress of Contractors work.
_________
Contractor

________
Owner

________
Owner

F. INVESTIGATION OF HAZARDOUS MATERIALS


Contractors scope of work does not include any investigation for
pollution of the water, air, soils, mold, mildew, organic pathogens, or any
other hazardous material at the project or in the vicinity of the project.
Contractor makes no representation as to the value of a completed
project.
G. CONSTRUCTION INSPECTIONS
Construction inspections shall be performed by Owners consultants,
construction manager, and building officials to determine conformance
with: technical specifications; structural, drainage, and waterproofing
aspects of the plan; and compliance with codes adopted by government
agencies.
H. INDEMNIFICATION AND RELEASE OF LIABILITY
If the Contractor who is a party to this Agreement does not build this
project, then he is fully released, held harmless, and indemnified by
Owner from liability and claims of every kind (including attorneys fees
and defense costs) brought against Contractor by any party, person, or
entity related to the use of these drawings and specifications by any and
all persons subsequently engaged by Owner or a future Owner of this
property to further design and/or build the project. In addition,
Contractor is hereby released, held harmless, and indemnified by Owner
for all defects, errors, and omissions by all consultants performing work
on the Project. Owner agrees to limit the Contractors liability for design
work under this Agreement to the actual amount of damages suffered,
or the amount of compensation paid under this Agreement to the
Contractor for design work, whichever is less.
I. OWNERSHIP OF DOCUMENTS
The Documents comprising the work are the property of the Contractor,
are covered by federal copyright laws, and are not to be reused without
written authorization from the Contractor. If the Contractor named in this
agreement is not awarded the construction agreement, Owner is strictly
prohibited from using these plans and specifications for construction.
However, Owner may furnish these plans and specifications to an
architect or other competent design professional to be used strictly for
conceptual design ideas, not for construction. Owners new architect or
design professional will then take complete responsibility for the
accuracy and suitability of all plans.
J. OWNER RESPONSIBILITIES
Owner agrees to provide the Contractor with full information as set forth
in this Agreement including, but not limited to: objectives, schedule,
_________
Contractor

________
Owner

________
Owner

constraints, budget, site boundaries and survey, hazardous materials


data, and criteria for the Project. The Contractor is not responsible for
the condition of the existing building or for the accuracy of Ownerprovided information.
K. DELAYS/TERMINATION FOR CONVENIENCE
Either Owner or Contractor may terminate this Agreement at any time,
with or without cause, upon giving the other party ten (10) calendar
days prior written notice. Owner shall within ten (10) calendar days of
termination pay the Contractor for all services rendered and all costs
incurred up to the date of termination in accordance with the provisions
of this Agreement. Contractor shall be entitled to keep the entire initial
retainer deposit paid by Owner for design services without applying this
deposit towards any outstanding charges owing to Contractor. No
construction documents (complete or incomplete) will be released to
Owner until Contractor has been paid in full for all work completed
through the date of termination.
L. DISPUTE RESOLUTION AND ATTORNEYS FEES
Any controversy or claim arising out of or related to this Agreement
involving an amount less than $5,000 (or the maximum limit of the
Small Claims court) must be heard in the Small Claims Division of the
Municipal Court in the county where the Contractors office is located.
Any dispute over the dollar limit of the Small Claims Court arising out of
this Agreement shall be submitted to an experienced private
construction arbitrator that shall be mutually selected by the parties to
conduct a binding arbitration in accordance with the arbitration laws of
the state where the project is located. The arbitrator shall be either a
licensed attorney or retired judge who is familiar with construction law.
If the parties can not mutually agree on an arbitrator within 30 days of
written demand for arbitration, then either of the parties shall submit the
dispute to binding arbitration before the American Arbitration Association
in accordance with the Construction Industry Rules of the American
Arbitration Association then in effect. Judgment upon the award may be
entered in any Court having jurisdiction thereof.
The prevailing party in any legal proceeding related to this Agreement
shall be entitled to payment of reasonable attorneys fees, costs, and
post-judgment interest at the legal rate.
M. ENTIRE AGREEMENT, SEVERABILITY, AND MODIFICATION
This Agreement represents and contains the entire agreement and
understanding between the parties. Prior discussions or verbal
representations by Contractor or Owner that are not contained in this
_________
Contractor

________
Owner

________
Owner

Agreement are not a part of this Agreement. In the event that any
provision of this Agreement is at any time held by a Court to be invalid
or unenforceable, the parties agree that all other provisions of this
Agreement will remain in full force and effect. Any future modification of
this Agreement should be made in writing and executed by Owner and
Contractor.
N. ADDITIONAL LEGAL NOTICES REQUIRED BY STATE OR
FEDERAL LAW
See page(s) attached: ____Yes ____No
O. ADDITIONAL TERMS AND CONDITIONS
See page(s) attached: ____Yes ____No
I have read and understood, and I agree to, all the terms and conditions
contained in the Agreement above.
_________ ______________________
DATE CONTRACTORS SIGNATURE
_________ ______________________
DATE OWNERS SIGNATURE

_________
Contractor

________
Owner

________
Owner