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GSB final contract (executed)
IMP Document B101"" e— 2007 Standard Form of Agreement Between Owner and Architect AGREEMENT made as orthe Second day of June in the year Two Thousand Seventeen (In lirxrds, indicate day, month and year.) BETWEEN the Architect's client identified as the Owner. AMMONS AND DELETIONS: (Name, legal status. address and other information) The author of lids document has added Inronnetton needed for Its Carmel RedevelopmeDt Commission The author may also have haw revised the teat of the arl@lnal Street, W. Mein Street. Suite Z20 30 W AIA standard form. An AdAffim OW Camel, IN poleftons Report that notes added Informellon m well as revlslo m to the standard form laid Is avalable main the author and should be and the Architect: reviewed. A vent el One In the NO (Name, legal status, address and other i►rfarmation) margin or Btls document Indle" where the author has added GSS, Inc.Ronald G. Smith, PresideatlCEO necessary Ifflamefion and where 3555 NW 581h Street. Suite 70OW the author has added to or deleted Oklahoma City, OK 73112 from the orloial AIA text. Telephone Number: 405.848.9549 This document has Irrtparlant legal Fax Number: 4t15.848.9783 corraequoilm. Cortsultation with an for the following Project: attorney b encouraged with respect to Ib comptet on or mod?lkatlon. (Name, location and detailed description) Marriott Autograph Hotel- Carmel, IN Carmel City Center GSS Project N 171528 The Owner and Architect agree as follows_ AIA Doaumest B1H - - 2007 (formerly Btsl --1097). Copyright O 1074. 1978.1967 1027 and 2007 by The American hratlWle d Axchllects. All rlghW InH. reserved. WARN NG. This AIAe Document le protected by US. Copyright Law and International Traatias_ Unsugwri=ad mpmduedon er dlaiributlon at this AIAa Doaumam. or any ponlan of It, may result in severe civil and crfetinel pe"ties, end will be prosecuted loth* maximum extant poss4ble t under the law. This document was produced by AlA sa4wsrs at 16 44 05 an 0610 V2017 rattler Order No 1975374535_ 1 which eq*m on 0403017, and is not for resale. tsar Nolew; (1781225828) TABLE OF ARTICLES 1 INITIAL INFORMATION 2 ARCI TECTS RESPONSIBILITIES 3 SCOPE OF ARCHITECTS BASIC SERVICES 4 ADDITiONAIL SERVICES 5 OWNER'S RESPONSIBILITIES 6 COST OF THE WORK I COPYRIGHTS AND LICENSES 8 CLAIMS AND DISPUTES 9 TERMINATION OR SUSPENSION 10 MISCELLANEOUS PROVISIONS 11 COMPENSATION 12 SPECIAL TERMS AND CONDITIONS 13 SCOPE OF THE AGREEMENT EXHIBITA INITIAL INFORMATION ARTICLE 1 INITIAL INFORMATION § 1.1 This Agreement is based on the Initial Information set forth in this Article and in GSB prgxnnl letter dated May 23, 2017, Exhibit "A". 1: (Complete Exhibit A, Initial Information, and incorporate it into the Agreement at Section 13. 2, or state below Initial Information such as details of the Project's site and program, Owners contractors and consultants. Architect's consultants, Owner's budget for the Cast of the Nark, authorized representatives, anticipated procurement method, and other brformadon relevant to the Project.) The general scope of work associated with this project includes the following: - Marriott Autograph Hotel - 123 Gucstrooms and Suites - 6 Story I leight including Walkout Basement Level - Full Service Restaurant and Lobby Bar 2,000 SF (mot) of Meeting Space - Feinstein Club (Live Music Venue) - Indoor Pool and Fitness Canter § 1.2 The Owner's anticipated dates for cammcncement of construction and Substantial Completion of the Work are set forth below: .1 Commencement of construction date* TBD .2 Substantial Completion date: ALA Da=mwnt 8101 m — 2W7 (formerly 8151-—1097). C01109111 O 1974, 1970,1947. 1 tt07 and 2007 by The Amedan Institute of Aretd6octs. NI rights Thin. referred, WARNING: This AIA" Document Is protected by U.S. copyright Law and International Troatlas unauthorized reproduction or dlshibutian 2 Of this AIM Cocumsnl, or any portion of It. may result in severe civil and criminal penalties, and will be prosecuted to the maslmurn •stont possibta f undor the law. This document was produced by A41 ltoltware at 15.44 05 on 069112017 under Order No.197u3374535 1 which expires an 0912312017, and Is Uw Notes.. (175122Mn) TBD § 1.3 The Owner and Architect may rely on the Initial information. Both parties, however, recognize that such information may materially change and, in that event, the Owner and the Architect shall appropriately adjust the schedule, the Architect's servims and the Architect's compensation. ARTICLE 2 ARCHITECTS RESPONSIBILITIES § M The Architect shall provide the professional services as set forth in this Agreement. § 2.2 The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality tinder the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. § 2.3 The Architect shall identify a representative authorized to act on behalf of the Architect with respect to the Project. § 2A Except with the Owner's lmowle:dge and consent, the Architect shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Architect's professional judgment with respect to this Project. § 25 The Architect shall maintain the following insurance for the duration of this Agreement. If any of the requirements set forth below exceed the types and limits the Architect normally maintains, the fawner shall reimburse the Architect for any additional cost: (lden ify opes and limits of insurance coverage, and other insurance requirements applicable to the Agreement, any.) .1 General Liability S2,000,000.00 .2 Automobile Liability S1,000,000.0o .3 Workers' Compensation S 1,000,000.00 A Professional Liability S5.000,000.00 per claim / S5,000,000.01D Aggregate ARTICLE 3 SCOPE OF AlamffmTs BASIC SERVICES § 3.1 The Architect's Basic Services consist of those described in Article 3 and does not include usual and customary structural, mechanical, and electrical engineering or any other specialty consultants at this time. After conceptual design is completed and apprrovcd, GSB will solicit competitive lump Burn fee proposals from the required consultants. After consultant scope and fees have been approved by the Owner, the consultants will be added to the GSB agreement by amendment. Services not set forth in this Article 3 arc Additional Services. § 3.1.1 The Architect shall manage the Architect's services, consult with the Owner, research applicable design criteria, attend Project meetings, communicate with members of the Project team and report progress to the Owner. § 3.1.2 The Architect shall coordinate its services with those services provided by the Owner and the Owner's consultants. The Architect shal I be en(illed to rely on the accuracy and completeness of services and information furnished by the Owner and the Owner's consultants, The Architect shall provide prompt written notice to the Owner if the Architect becomes aware of any error, omission or inconsistency in such services or information. NA Daeun+ant 9101 t` — i)a7 (formerly 8151"—1997). Capydpld O 1974, 1976, 1907, 1997 and 2007 by The American Inslibile of AnNtecls. All ripple t a mmod. WARNING: This AIA' Document is protected by U s Copy►lpht Lew and intemalional Tmatles ttnauthodurd reproduction or dladbulroa Of Ihrs AlA' Documartl, or any portion or IL may result In severe civil and criminal ponaltlae, and will be prosaculad to the nuxhnurn extent po"Ible r Itndar the hew. This document woe produced by ALA software at 1 E:44115 on 011MIM17 under Order No.1978374535 1 which awme an o9t2=17, and is not tar resalfa�e UewNa: (170122% 1 § 3.1.3 As soon as practicable offer the date orthis Agreement, the Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services. The schedule initially shall include anticipated dates for the commencement of construction and for Substantial Completion of the Work as set Earth in the initial information. The schedule shall include allowances for periods of time required for the Owner's review, for the performance of the Owner's consultants, and for approval of submissions by authorities having jurisdiction over the Project. Once approved by the Owner, time limits established by the schedule shall not, except for reasonable cause, be exceeded by the Architect or Owner. With the Owner's approval, the Architect shall adjust the schedule, if necessary, as the Project proceeds lentil the commencement of construction, § 3.1.4 The Architect shall not be responsible for an Owner's directive or substitution made without the Architect's approval- § 3.1.5 The Architect shall, at appropriate times, contact the governmental authorities required to approve the Construction Documents and the entities providing utility services to the Project. In designing the Project, the Architect shall respond to applicable design requirements imposed by such governmental authorities and by such entities providing utility services, § 3.1.0 The Architect shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval orgovernmental authorities having jurisdiction over the Project. 132 SCHEMATIC DESIGN PHASE SERVICES § 321 The Architect shall review the program and other information furnished by the Owner, and shall review laws, codes, and regulations applicable to the Architect's services. § 322 The Architect shall prepare a preliminary evaluation of the Owner's program. schedule, budget for the Cost of the Work, Project site, and the proposed procurement or delivery method and other Initial Information, each in terms of the other. to ascertain the requirements of the Project The Architect shall notify the Owner of ( 1) any inconsistencies discovered in the information, and (2) other information or consulting services that may be reasonably needed for the Project, § 323 The Architect shall present its preliminary evaluation to the Owner and shall discuss with the Owner alternative approaches to design and construction of the Project, including the feasibility of incorporating environmentally responsible design approaches. The Architect sball reach an understanding with the Owner regarding the requirements of the Project. § U.4 Based on the Project's requirements agreed upon with the Owner, the Architect shall prepare and present for the Owner's approval a preliminary design illustrating the scale and relationship of the Project components, § 3.2.5 Based on the Owner's approval of the preliminary design, the Architect shall prepare Schematic Design Documents for the Owner's approval. The Schesnalie Design Documents shall consist of drawings and other documents including a site plan, if appropriate, and preliminary building plans, sections and elevations; and may include some combination of study models, perspective sketches, or digital modeling. Preliminary selections of major building systems and construction materials shall be noted on the: drawings or described in writing, 1325.1 The Architect shall consider environmentally responsible design alternatives, such as material choices and building orientation, together with other considerations based on program and aesthetics, in developing a design that is consistent with the Owner's program, schedule and budget for the Cost of the Work The Owner may obtain other environmentally responsible design services under Article 4. § 3.L5.2 The Architect shall consider the value of alternative materials, building systems and equipment, together with other considerations based on program and aesthetics, in developing a design for the Project that is consistent with the Owner's program, schedule and budget for the Cost of the Work. (Paragraph dele7esd) § 3.2.7 The Architect shall submit the Schematic Design Documents to the Owner, and request the Owner's approval. AIA DoDoewpe l 0121 "' — "07 Ifwmrrly 6151-1947j. Copyright c 1974.19i5.1957.1997 and 2007 by The American kaatuta of A t harts, All rtahts — Intl' reserved. WARNING: This AtAa Document It pratetlad by U 5 Copyright Law and Intematienal Tnatles. Unaulhadzed reprodudlon or dislAbutlon of this AIA• Document, or any portion or K. may rasuh In seven chrll and criminal penalties, and will be prosecuted to the maArnum extent possible f candor the law. Tho doeunant was produced by AIA saawam pt 16 44 a5 an OMlra17 under Order No 1l176374535 1 which a*ma an t1ai23r2a17, and is not For ensile. User NON: 117817l5m) § 3.3 DESIGN DEVELOPMENT PHASE SERVICES § 3.3.1 Based an the Owner's approval of the Schematic Design Documents, and on the Owner's authorization of any adjustments in the Project requirements and the budget for the Cast of the Work, the Architect shall prepare Design Development Documents for the Owner's approval. The Design Development Documents shall illustrate and describe the development of the approved Schematic Design Documents and shall consist of drawings and other documents including plans, sections, elevations, typical construction details, and diagrammatic layouts of building systems to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, and such other elements as may be appropriate. The Design Development Documents shall also include outline specifications that identify major materials and systems and establish in general their quality levels. (Paragraph deleted) § 3.3.3 The Architect shall submit the Design Development Documents to the Owner and request the Owner's approval. § 3.4 CONSTRUCTION DOCUMENTS PHASE SERVICES § 3.4.1 Based on the Owner's approval of the Design Development Documents, and on the Owner's authorization of any adjustments in the Project requirements and the budget for the Cost of the Work, the Architect shall prepare Construction Documents for the Owner's approval. The Construction Documents shall illustrate and describe the further development of the approved Design Development Documents and shall consist of Drawings and Specifications setting forth in detail the quality levels of materials and systems and other requirements for the construction of the Work The Owner and Architect ac)mowledge that in order to construct the Work the Contractor will provide additional information, including Shop Drawings, Product Data, Samples and other similar submittals, which the Architect shall review in accordance with Section 3.6A. § 3A2 The Architect shall incorporate into the Construction Documents the design requirements of govemmaltal authorities having jurisdiction over the Project. § 3A.3 During the development of the Construction Documents, the Architect shall assist the Owner in the development and preparation of (1) bidding end procurement information that describes the time, place and conditions of bidding, including bidding or proposal forms; (2) the form of agreement between the Owner and Contractor. and (3) the Conditions of the Contract for Construction (General, Supplementary and other Conditions). The Architect shall also compile a project manual that includes the Conditions of the Contract for Construction and Specifications and may include bidding requirements and sample forms, (Paragrvph deleted) § 3A.5 The Architect shall submit the Construction Documents to the Owner, take any action required under Section 6.5, and request the Owner's approval. § 3.5 BIDDING OR NEGOTIATION PHASE SERVICES § 3.5.1 GENERAL The Architect shall assist the Owner in establishing a list of prospective contractors. Following the Owner's approval of the Construction Documents, the Architect shall assist the Owner in (1) obtaining either competitive bids or negotiated proposals; (2) confirming responsiveness of bids or proposals; (3) determining the successful bid or proposal, if any, and, (4) awarding and preparing contracts for construction, § 3.52 COMPETITIVE BIDDING 3.511 Bidding Documents shall consist of bidding requirements and proposed Contract Documents. § 3.522 'he Architect shall assist the Owner in bidding the Project by .1 procuring the reproduction of Bidding Documents far distribution to prospective bidders; .2 distributing the Bidding Documents to prospective bidders, requesting their return upon completion of the bidding process, and maintaining a log of distribution and retrieval and of the amounts of deposits, if any, received from and returned to prospective bidders; .3 organizing and conducting a pre -bid conference for prospective bidders; AfA DoCrrmartt B141 "' — 200T (famrrAy 81511e—14lIt. Copyright ©1974 1978,19a7.1997 and 2007 by The Amorlran kislNuk of An�tllecls. All trails Ind. naanad. WARNING: This AIM Document Is proleeted by U.5 copyright Law and Internalkxmi lmalles. Unaulhoritad nproducAm or dfatriburlon of this AIAa Documant, or any portion or i4 may noun In severe ctvit and calminsr penoWn, and wil be prosecuted to the maximum extent possible ! under the Ltw, Thn document wan paduced by AIA sollevm at 16:44,.05 on 0610112017 under Order No 1976374530_1 which spires an a9 M017, aid Is not IN resale Char Nonni (17a17258201 .4 preparing responses to questions from prospective bidders and providing clarifications and interpretations of the Bidding Documents to all prospective bidders in the form ofaddenda; and .5 organizing and conducting the opening of the bids, and subsequently documenting and distn"buling the bidding results, as directed by the Owner. § 3.5,23 The Architect shall consider requests for substitutions, if the Bidding Documents permit substitutions, and shall prepare and distribute addenda identifying approved substitutions to all prospective bidders. § 3.5,3 NEGOTIATED PROPOSALS § 3.5.3.1 Proposal Documents shall consist of proposal requirements and proposed Contract Documents. § 3.5.3.2 The Architect shall assist the Owner in obtaining proposals by .1 procuring the reproduction of Proposal Documents for distribution to prospective contractors, and requesting their return upon completion of the negotiation process; 2 organizing and participating in selection interviews with prospective contractors; and .3 participating in negotiations with prospective contractors, and subsequently preparing a sutnrnary report of the negotiation results, as directed by the Owner. § 3.5.3.3 The Architect shall consider requests for substitutions, if the Proposal Documents petrnit substitutions, and shall prepare and distribute addenda identifying approved substitutions to all prospective contractors. § 3.6 CONSTRUCTION PHASE SERVICES § 3A.1 GENERAL § 3.6.1.1 The Architect shall provide ndministrittion of the Contract between the Owner and the Contractor as set forth below and in AIA Document A20lTx--2007, General Conditions of the Contract for Construction. If the Owner and Contractor modify AIA Document A201 -2007. those modifications shall not affect the Architect's services under this Agreement unless the Owner and the Architect amend this Agreement. 13.6.1.2 The Architect shall advise and consult with the Owner during the Construction Phase Services. The Architect shall have authority to act on behalf of the Owner only to the extant provided in this Agreement The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the Architect be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect shall be responsible for the Architect's negligent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractor or of any other persons or entities performing portions of the Work. § 3.6.1.3 Subject to Section 4.3, the Architect's responsibility to provide Construction Phase Services commences with the award of the Contract for Construction and terminates on the date the Architect issues the final Certificate for Payment § 3.6 EVAWATIONS OF THE WORK § 3.8.2.1 Thc Architect shall visit the site at intervals appropriate to the stage of construction, or as otherwise required in Section 43.3, to become generally familiar with the progress and quality of the portion of the Work completed, and to determine, in general, if the Work observed is being performed in a manner indicating that the Work. when fully completed, will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of the Work. On the basis of the site visits, the Architect shall keep the Owner reasonably informed about the progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor, and (2) defects and deficiencies observed in the Work. 13.622 The Architect has the authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect shall have the authority to require inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to excrcise such authority shall give rise to a duty or responsibility of the Architect to the AU1 Dacrsemeeh 8101 "' — 2007 jlarrrroriy 8151 r'—19971. CapydpM O 1974 1976 19a7,1997 and 2007 by The American Yutituts of ArOdIad7. All;f 6 tnit moomd. WARNING. This AIA• Document is proleded try u 5 Copyrlpht Law and international Tmalles. Unauthorkod reproduction or dlslributlon err this AIA= Document, or any portion of It. may result In severe eivll and criminal pantiles, and will be prrosMied to the maslmurn aslant possible j under the taw This daasnenl wn produced by AK software al 10.44:05 an 0rrf0112017 under Order No 1976374535_ 1 which aspires an 09MV2017, and is Doh for resat*. Ua*r Nate$: {1781225a281 Contractor, Subcontractors, material and equipment Suppliers, their agents or employees or other persons or entities performing portions of the work. 13.623 The Architect shall interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the owner or Contractor. The Architect's response to such requests shall be made in writing within any time limits agreed upon or otherwise with reasonable promptness. 13.614 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When malting such interpretations and decisions, the Architect shall endeavor to secure 13ithful performance by both Owner and Contractor, shall not show partiality to either, and shall not be liable for results of interpretations or decisions rendered in good faith. The Architect's decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Documents. § 3.625 Unless the Owner and Contractor designate another person to serve as an Initial Decision Maker, as that term is defined in AIA Document A201 2007, the Architect shall render initial decisions on Claims between the Owner and Contractor as provided in the Contract Documents. § 3.6.3 CERTIFICATES FOR PAYMENT TO CONTRACTOR § 3,6.3.1 The Architect shall review and certify the amounts due the Contractor and shall issue certificates in such amounts. The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's evaluation of the Work as provided in Section 3.6.2 and on the data comprising the Contractor's Application for Payment, that, to the best of the Architect's knowledge, information and belie& the Work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject (1) to an evaluation of the Work for conformance with the Contmct Documents upon Substantial Completion, (2) to results of subsequent tests and inspections, (3) to correction of minor deviations from the Contract Documents prior to completion, and (4) to specific qualifications expressed by the Architect. § 3.612 The issuance of a Certificate for Payment shall not be a representation that the Architect has (1) tttade exhaustive or continuous on -site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. § 3AS-3 The Architect shall maintain a record of the Applications and Certificates for Payment. § 3.6.4 SUBMITTALS § 3.6A.1 Tbc Architect shall review the Contractor's submittal schedule and shall not unrmonably delay or withhold approval.'rhe Architecl's action in reviewing submittals shall be taken in accordance with the approved submittal schedule or, in the absence of an approved submittal schedule, with reasonable promptness while allowing sufficient time in the Architect's professional judgment to permit adequate review. § 3.6.42 In accordance with the Architect -approved submittal schedule, the Architect shall review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. Review of such submittals is not for the purpose of determining the accuracy and completeness of other information such as dimensions, quantities, and installation or performance of equipment or systems, which are the Contractor's responsibility. The Architect's review shall not constitute approval orsarety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods. techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval oran assembly of which the itcm is a component. § 3.6.4.3 If the Contract Documents specifically require the Contractor to provide professional design services or cortifiwtions by a design professional related to systems, materials or equipment, the Architect shall specify the appropriate performance and design criteria that such services must satisfy. The Architect shall review Shop AIA not umnt 6101 n — 70117 itatrowly 616110-1"71. Coprd9d 01974 1976 1667.1997 and 2007 by The American IrWKW@ of Arddtacts. Alldota M6' reserved, WARNING: Thin AIAe nocumant la prolected by U,S Copyrlpht Law and International Troalias. Unaulhodaad reproduction or distribulbn Of this NA• nocumeM, or any podlon of It, may ronift in severe civU and ulmtnal panattin, and will be prosecuted to the maximum extent possible J under the lawn. This document was produced by AIA solbrate at 16:44.05 on 0610112017 under Otder No 1474374535_1 which expires on 29123Q017, and Is net for resale unwMows. t176122567a1 Drawings and other submittals related to the Work designed or certified by the design professional retained by the Contractor that bear such professional's seal and signature when submitted to the Architect. The Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications and approvals perfamted or provided by such design professionals. § 3U.4 Subject to the provisions of Section 4.3, the Architect shall review and respond to requests for information about the Contract Documents The Architect shall set forth in the Contract Documents the requirements for requests for information. Requests for information shall include, at a minimum, a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of the clarification requested. The Architect's response to such requests shall be made in writing within any time limits agreed upon, or otherwise with reasonable promptness. irappropriale, the Architect shall prepare and issue supplemental Drawings and Specifications in response to requests for information. § 3AUS The Architect shall maintain a record of submittals and copies of submittals supplied by the Contractor in accordance with the requirements of the Contract Documents. § 3.6.5 CHANGES IN THE WORK § 3.6.&1 The Architect may authorize minor changes in the Work that are consistent with the intent of the Contract Documents and do not involve an adjustment in the Contract Sum or an extension of the Contract Time. Subject to the provisions of Section 4.3, the Architect shall prepare Change Orders and Construction Change Directives for the Owner's approval and execution in accordance with the Contract Documents. § 3.642 The Architect shall maintain records relative to changes in the Work. § 3.6.6 PROJECT COMPL.EnON § 3.6.6.1 The Architect shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion; receive from the Contractor and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract Documents and assembled by the Contractor; and issue a final Certificate for Payment based upon a final inspection indicating the Work complies with the requirements of the Contract Documents, 13.6.6.2 The Architect's inspections shall be conducted with the Owner to check conformance of the Work with the requirements of the Contract Documents and to verify the accuracy and completeness of the list submitted by the Contractor of Work to be completed or corrected, § 3. LU When the Work is found to be substantially complete, the Architect shall inform the Owner about the balance of the Contract Sum remaining to be paid the Contractor, including the amount to be retained from the Contract Sum, if any, for final completion or correction of the Work. 13.6.6.4 The Architect shall forward to the Owner the following information received from the Contractor. (1) consent ofsurety or sureties, if any, to reduction in or partial release of retainagc or the making of final payment; (2) affidavits, receipu, releases and waivers of liens or bonds indemnifying the Owner against liens; and (3) any other documentation required of the Contractor under the Contract Documents. 13.6.6.5 Upon request orthe Owner, and prior to the expiration of one year from the date of Substantial Completion, the Architect shall, without additional compensation, conduct a meeting with the Owner to review the facility operations and performance. ARTICLE 4 ADDITIONAL SERVICES § 4.1 Additional Services Iisted below art not included in Basic Services but may be required for the Project. The Architect shall provide the listed Additional Services only if specifically designated in the table below as the Architect's rtspolisibility, and the Owner shall compensate the Architect as provided in Section 11.2. (Designate the Additional Services the Architect shall provide in the second column of the table below. In the third column indicate ►idAether the service description is located in Section 4.2 or in an attached exhibit Ijin an erhibit, idento the exhibit,) AIA boaumanl t3101'r — 2907 (lormuy 81str'—19971. Copyright C 1974 1979 1217.1997 and 7Q07 by The American Institute o1 AmNlects. All right@ Init. nmemed, WARNING_ This AIAe Document Is protected try U 5 Copyright Law and international Trealles Unauthad:ed reproduction or dislritwtlon at this AAA* Document, at any portlon or it, may rasult In seven civil and cAmtnel panahth lea, and will be pmsseutad to e maximum extent possible ! under the law This rim — wd wee produced by AIA sallware at 16,44:05 an 05161=7 under Order No.1976374535. I which ox*ns an IISQ3=7, and is not !armada. Nserflofas: 117812258i8 ) Additlonal Services Responsibility (Architect, Owner or Not Provided) Locatlon of Service Descriplion (Section 4.2 bdow or in an exhibit attached to this document and idenA red below 4.1.1 Pro min B202TIA-2009 Not Provided 4.1.2 Multi le preliminary,designs Architect (1 with 1 Revision 4.1.3 Measured drawings Not Provided MA Existing facilities surveV Not Provided 4.15 Site Evaluation and Planning 203Tm-2007 Not Provided 4.1.6 Building Information Modeling 02TM2008 Not Provided 11 4.13 Civil engineering Not Provided 4.1.8 Landscape design Not Provided 4.1.9 Architectural Interior Design Architect 4.1.10 Value Analysis 204TN-2007) Not Provided 4.1.11 Detailed cost estimating Not Provided 4.1,12 On -site Project resentatian 207Tm--2003) Not Provided 4.1.13 Conformed construction documents Not Provided 4.1.14 As -Designed Record drawinM Architect 4.1.15 As -Constructed Retard drawings Not Provided 4.1.16 Poet occHMSX evaluation Not Provided 4.1.17 Facilit Su Services 13210Tx--2007 Not Provided 4.1.18 Tenant -related services Not Provided 4.1.19 Coordination of Owner's consultants Architect 4.1.2.0 Telecommunicationddata design Not Provided § 4.1.21 Security Evaluation and Plamaing (13206114-2007 Not Provided 4.1.22 Commissioning 1321 IT►t-2007 Not Provided 4.1.23 Extensive environmentally res onsible design Not Provided 4.11.24 LEED11 Certification (13214T" 2012) Not Provided 4.1.25 Fast -track desie services Not Provided 4.1.26 Historic Preservation (13203nC-2007) Not Provided § 4,1.27 Furniture, Furnishings, and Equipment Design B233Te-2007 Not Provided § 4.2 Insert a description of each Additional Service designated in Section 4.1 as the Architect's responsibility, if not Bier described in mn exhibit attached to this document. § 4.3 Additional Services may be provided after execution of this Agrecmcnl, without invalidating the Agreement. Except for services required due to the fault of the Architect, any Additional Services provided in accordance with this Section 4.3 shall entitle the Architect to compensation pursuant to Section 11.3 and an appropriate adjustment the Architect's schedule. § 4.3.1 [Upon recognizing the nc cd to perform the following Additional Services, the Architect shall notify the Owner with reasonable promptness and explain the facts and circumstances giving rise to the need. The Architect shall not proceed to provide the following services until the Architect receives the Owner's written authorization: .1 Services necessitated by a change in the Initial Information, previous instructions or approvals given by the Owner, or a material change in the Project including, but not limited to, size, quality, complexity, the Owner's schedule or budget for Cost of the Work, or procurement or delivery method; AM Dom ant B701" = 200111annerly s151To -119M. Copyright C 1974, 1916, 1917. 192f end 2067 by Thu Anw ken kablvfe of Atchdacta AP tights Init. rsserred. WARWIHn: This AIAa Document Is protactad by U.S. copyright Law and Indernational Tranties. Unauthorized reproduction or distritrutton of this AIAe Document, or any portion of It may result In severe civil and arninsl penattles, and will be proseculed to the maximum extant possible t undar the taw. This document was produced by AIA software e1 16:44 05 an USM112017 under Order No 1976374535 1 which expires an MIM17, and Is natforrasste User Notes: (176122sm) 2 Services necessitated by the Owner's request for extensive environmentally responsible design alternatives, such as unique system designs, in-depth material research. energy modeling. ar LEEDO certification; .3 Changing or editing previously prepared instruments of Service necessitated by the enactment or revision of codes, laws or regulations or official interpretations; .4 Services necessitated by decisions of the Owner not rendered in a timely mariner or any other failure of perfvrmaoce on the part of the Owner or the Owner's consultants or contractors; .5 Preparing digital data for transmission to the Owner's consultants and contractors, or to other Owner authorized recipients; no charge to distribute pdflcad files. Additional service only if additional work is requested. .6 Preparation of design and documentation for alternate bid or proposal requests proposed by the Owner; J Preparation for, and attendance at a public presentation, meeting or hearing; .8 Preparation for, and attendance at a dispute resolution proceeding or legal proceeding, except where the Architect is party thereto; 9 Evaluation of the qualifications of bidders or persons providing proposals; .10 Consultation concerning replacement of Work resulting from fire or other cause during construction; or .11 Assistance to the Initial Decision Maker, if ether than the Architect. § 4.31 To avoid delay in the Construction Phase, the Architect shall provide the following Additional Services, notify the Owner with reasonable promptness, and explain the facts and circmonstances giving rise to the need. If the Owner subsequently determines that all or parts of those services are not required, the Owner shall give prompt written notice to the Architect, and the Owner shall have no further obligation to compensate the Architect for those services: .1 Reviewing a Contractor's submittal out of sequence from the submittal schedule agreed to by the Architect; .2 Responding to the Contractor's requests for information that are not prepared in accordance with the Contract Documents or where such information is available to the Contractor frrom a careful study and comparison of the Contract Documents, field conditions, other Owner -provided information, Contractor -prepared coordination drawings, or prior Project correspondence or documentation; .3 Preparing Change Orders and Construction Change Directives that require evaluation of Contractor's proposals and supporting data, or the preparation or revision of Instruments of Service; .4 Evaluating an extensive number of Claims as the Initial Decision Maker; .5 Evaluating substitutions proposed by the Owner or Contractor and making subsequent revisions to Instruments of Service resulting therefrom; or .6 To the extent the Architect's Basic Services are affected, providing Construction Phase Services 60 days after (1) the date of Substantial Completion of the Work or (2) the anticipated date of Substantial Completion identified in Initial information, whichever is earlier. § 4.3.3 The Architect shall provide Construction Phase Services exceeding the limits set forth below as Additional Services. What the limits below arc reached, the Architect shall noti fy the Owner: .1 Two (2 ) reviews of each Shop Drawing, Product Data item, sample and similar submittal of the Contrractar .2 Twenty-two ( 22 ) visits to the site by the Architect over the duration of the Project during construction .3 One ( 1 ) inspections for any portion of the Work to determine whether such portion of the Work is substantially complete in accordance with the requirements of the Contract Documents .4 Two (2 ) inspections for any portion of the Work to determine final completion § 4.3.41f the services covered by this Agreement have not been completed within Twenty-four (24 ) months of the date of this Agreement, through no fault of the Architect, extension of the Architect's services beyond that time shall be compensated as Additional Services. ARTICLES OWNER'S RESPONSIBILITIES § 5.1 Unless otherwise provided for under this Agreement, the Owner shall provide information in a timely manner regarding requirements for and limitations on the Project, including a written program which shall set forth the AIA Documrkt Bto1 eV _ 24a7Ifwmmrly tstal"-199n. Copyright d tg74 1979. 1 ga7, 19P and 20a7 by The American I tsflt m of Archkecm. All slob h4L rtl weed. WARMING: This AtAe Document in protected by U.S Copyright Low and internal onal Treaties unauthorized reproduction or distribution 10 of this AIAO Document, or any portion of it, may result In severe chat and criminal penalties, and will bo prosecuted W the maximum extant possible under the law This document suss produced byAIA soaware at 16444:05 on MUNI? radar War No.10631035 i which arplrea on 0912=17, and is rind ktr resale. userMuter. (1181225626) Owner's objectives, schedule, constraints and criteria, including space requirements and relatiouships, flexibility, expandability, special equipment, systems and site requirements. Within 15 days after receipt of a written request from the Architect, the Owner shall furnish the requested information as necessary and relevant for the Architect to evaluate, give notice of or enforce lien rights. § 5.2 The Owner shall establish and periodically update the Owner's budget for the Project, including (1) the budget for the Cost ofthe Work as defined in Section 6.1; (2) the Owner's other costs; and, (3) reasonable contingencies related to all of these costs. If the Owner significantly increases or decreases the Owner's budget for the Cost of the Work, the Owner shall notify the Architect. The Owner and the Architect shall thereafter agree to a corresponding change in the Project's scope and quality. § 5.3 The Owner shall identify a representative authorized to act on the Owner's behalf with respect to the Project, The Owner shall render decisions and approve the Architect's submittals in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services. § 5.4 The Owner shall finish surveys to describe physical characteristics, legal limitations and utility locations for the site orthe Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining properly and structures; designated wetlands; adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, dead restrictions, boundaries and contours of the site; locations, dimensions and necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. § 5.5 The Owner shall furnish services of geotechnical engineers, which may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, seismic evaluation, including necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations. § 5.6 The Owner shall coordinate the services of its own consultants with those services provided by the Architect. Upon the Architect's request, the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner's consultants The Owner shall furnish the services of consultants other than those designated in this Agreement, or authorize the Architect to furnish than as an Additional Servim when the Architect requests such services and demonstrates that they are reasonably required by the scope of the Project. The Owner shall require that its consultants maintain professional liability insurance as appropriate to the services provided. § V The Owner shall fitmish tests, inspections and reports required by law or the Contract Documents, such as structural, meduutical, and chemical tests, tests for air and water pollution, and tests for hazardous materials. 15.6 The Owner shall fumtish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests. 15.9 The Owner shall provide prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project, including errors, omissions or inconsistencies in the Architect's instruments orService. 15.10 Except as otherwise provided in this Agreement, or when direct communications have been specially authorized, the Owner shall endeavor to communicate with the Contractor and the Architect's consultants through the Architect about masers arising out oror relating to the Contract Documents. The Owner shall promptly notify the Architect of any direct communications that may affect the Architect's services, § Mi Before executing the Contract for Construction, the Owner small coordinate the Architect's duties and responsibilities set forth in the Contract for Construction with the Architect's services set forth in this Agreement. The Owner shall provide the Architect a copy of the executed agreement between the Owner and Contractor, including the General Conditions of the Contract ror Construction. § 6.12 The Owner shall provide the Architect access to the Project site prier to commencement or the Worts and shall obligate the Contractor to provide the Architect access to the Work wherever it is in preparation or progress. NA DoW»mernt Blal "' — 20a7 t1wmerty 9lll "' —1 aa7j. a opyrhght O 1974,107a. 1987,1007 and 2007 by The Amadcan hallUa cl ArehtMets. All rghto R reserved. WARNING, This AIAs Document Is prataetad by U.S. Copyright Law and International Treaties_ Unauthorized reproduction or distribution 1 or thls ALA• Doeumenl, or soy pardon o1 It, may result In naves civil and criminal penalties, and w:n be prosecuted to the maximum patent possible r under the lase. This dseuman[was pmdumd by AM software at 16 44:05 on 0&0112017 caber Order Na19763714535 1 which sreplres on a9123f2a17. and Is nor for teenle user Neta: i17e1225esal ARTICLE 6 COST OF THE WORK § Ll For purposes of this Agreement, the Cost of the Work shall be the total cost to the Owner to construct all elements of the Project designed or specified by the Architect and shall include contractors' general conditions costs, overhead and profit. The Cost of the Work does not include the compensation of the Architect, the costs of the land, rights -of -way, financing, contingencies for changes in the Work or other costs that are the responsibility of the Owner. § 6.2 The Owner's budget for the Cost of the Work is provided in Initial Information, and may be adjusted throughout the Project as required under Sections 5.2, 6.4 and 6.5. It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, materiels or equipment; the Contractor's methods of determining bid prices; or competitive bidding, market or negotiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner's budget for the Cost of the Work or from any estimate of the Cost of the Work or evaluation prepared or agreed to by the Architect. (Paragraphs deleted) § 6.5 if the Owner's budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services is exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall .1 give written approval of an increase in the budget for the Cost of the Work; .2 authorize rebidding or renegotiating of the Project within a reasonable time; .3 terminate in accordance with Section 9.5; .4 in consultation with the Architect, revise the project program, scope, or quality as required to reduce the Cost of the Work; or .5 implement any other mutually acceptable altemative. § 5.7 If the Owner chooses to proceed under Section 6.6.4, the Architect, with additional compensation, shall modify the Construction Documents as necessary to comply with the Owner's budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services, or the budget as adjusted under Section 6.6.1. The Architect's modification of the Construction Documents shall be the limit of the Architect's responsibility under this Article 6. ARTICLE 7 COPYRIGHTS AND LICENSES § 7.1 The Architect and the Owner warrant that in transmitting Instruments of Service, or any other information, the transmitting party is The copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the Project. If the Owner and Architect intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions. § 7.2 The Architect and the Architect's consultants shall be deemed the authors and owners of their respective Instruments of Service, including the Drawings and Specifications, and shall retain all common law, statutory and other reserved rights, including copyrights. Submission or distribution of instruments of Service io meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the reserved rights of the Architect and the Architect's consultants. 17.3 Upon execution of this Agreement, the Architect grants to the Owner a nonexclusive license to use the Architect's Instrtlrnents of Service solely and exclusively for purposes of constructing, using, maintaining, allering and adding to the Project, provided that the Owricr substantially performs its obligations, including prompt payment of all sums when due, under this Agreement. The Architect shall obtain similar nonexclusive licenses born the Architect's consultants consistent with this Agreement. The license granted under this section permits the Owner to authorize the Contractor, Subcontractors, Sub -subcontractors, and material or equipment suppliers, as well as the Owner's consultants and separate contractors, to reproduce applicable portions of the Instruments of Service solely and exclusively for use in performing services or construction for the Project. if the Architect rightfully terminates this Agreement for cause as provided in Section 9.4, the license granted in this Section 7.3 shall terminate. § 7.3.1 In the event the Owner uses the Instruments DfScrvicc without retaining the author of the Instruments of Service, the Owner releases the Architect and Architect's consultant(s) from all claims and causes of action arising from such uses. The Owner, to the extent permitted by law, further agrees to indemnify and hold harmless the AIA Doeutnant Btaf - — 20a7 (formerly 61517e —1 pm. capy+Igm O i aii. 1975, 1987. 1997 and 2007 by The American instlWe of Mhilaels. All rigsto t. Dyad unit. WARNING; This AtAs Document is protected by U.S Copyrighl Law and Intemalkmml Treatles. Unauthorized roproductlon or dlsldbution 12 of this AIAs Document, or nay portion alit. may rasuft In severe civ0 and crimInat penattles. and will be prosecuted to Iha nwdmum extant possible under the law Thin dwwmant sraa produced by AIA soawam at 18 44"05 on MMI/2017 under Order Na.1976374535_1 which slplm tih 0230t7, anti le MA for resale User Rotas. (t7812Z5a2a) Architect and its consultants from all costs and expenses, including the cost of defense, related to claims and causes of action asserted by any third person or entity, to the extent such costs and expenses arise kom the Owner's use of Ike Instrumc is of Service under this Section 7.3.1. The terms of this Section 7.3.1 shall not apply if the Owner rightfully terminates this Agreement for cause under Section 9.4. § TA Except for the licenses granted in this Article 7, no other license or right shall be deemed granted or implied under this Agreement. The Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any license granted herein to another party without the prior written agreement of the Architect. Any unauthorized use of the Instruments of Service shall be at the Owner's sole risk and without liability to the Architect and the Architect's consultants. ARTICLE 8 CLAIMS AND DISPUTES § 8.1 GENERAL § B.1.1 The Owner and Architect shall commence all claims and causes of action, whether in contract, tort, or otherwise, against the other arising out of or related to this Agreement in accordance with the requirements of the method of binding dispute resolution selected in this Agreemcat within the period specified by applicable low, but in any cast not more than 10 years after the date of Substantial Completion of the Work. The Owner and Architect waive all claims and causes of action not commenced in accordance with this Section B.1.1. § 8.1.2 To the extent damages are covered by property insurance, the Owner and Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other far damages, except such rights as they may have to the proceeds of such insurance as set forth in AW Document A201 2007, General Conditions of the Contract for Construction. The Owner or the Archhect, as appropriate, shall require of the contractors, consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated herein. § &1.3 The Architect and Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination of this Agreement, except as specifically provided in Section 9.7. § 8.2 MEDIATION § 8.21 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to binding dispute resolution. If such matter relates to or is We subject of a lien arising out of the Architect's services, the Architect may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by binding dispute resolution. § 62.2 The Owner and Architect shall endeavor to resolve claims, disputes and other matters in question between them by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement. A request far mediation shall be made in writing, delivered to the other party to the Agreement, and filed with the person or entity administering the mediation. The request may be made concurrently with the filing of a complaint or other appropriate demand for binding dispute resolution but, in such event, mediation shall proceed in advance of binding dispute resolution 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. If an arbitration proceeding is stayed pursuant to this section, the parties may nonctlicless proceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings. § B.2.3 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 settle nest agmcments in any court having jurisdiction thereof. § & L4 If the parties do not resolve a dispute through mediation pursuant to this Section 8.2, the method of binding dispute resolution shall be the following: {Check the appropriate box. !f the Owner and Architect du not select a method of binding dispute resolution below, or do not subsequently agree in %riling to a binding dispute rwaludon method other than litigatlon, the dispute Wl be resolved in a court of competent jurisdiction.) AIADommwdB101^-2007(iamodyB181n-1197).Copyr4ht01974.1972 1987. IMF OM2007byThe AnpdeanYMiMoofAmNlacn_All rights. [nit. msem%dL WARNING: This AiA0 Document is proeedod by US. copyright Law and Inhemalionaf 7reatles_ unauthorized reproduction or distribution 13 of ehis AtA• Document, or any portion of ie. may result In seven mm civil and criminal penalties, and will be pmsaculed to the aximuextent possible l under the low TW dmaront was pnrdowd by AtA se tware hN 18 44.05 on 0 0f12017 under Ardor No 1978374535_1 which eigr-res an 0912312a17, and is rwt tar easels tear Nales, (1781-58Za) [ j Arbitration pursuant to Section 8.3 of dais Agreement IX ] Litigation in a court of competent jurisdiction ] Other (Specify) § 8.3 ARBMIAT10N § 8.3.1 If the parties have selected arbitration as the method for binding dispute resolution in this Agreement, any claim. dispute or other matter in question arising out of or related to this Agreement subject to, but not resolved by. mediation shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the Americalt Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of this Agreement. A demand for arbitration shall be made in writing, delivered to the other party to this Agreement, and filed with the person or entity administering the arbitration. § 8.3.1.1 A demand for arbitration shall be made no earlier than concurrently with the filing oFe request for mediation, but in no event shall it be made after the date when the institution of legal or equitable proceedings based on the claim, dispute or other matter in question would be barred by the applicable statute of limitations. For statute of limitations purposes, receipt of a written demand for arbitration by the person or entity administering the arbitration shall constitute the institution of legal or equitable proceedings based on the claim, dispute or other matter in question. § B.32 The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to this Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof. § 1.3.3 The award rendered by the arbitrator(s) shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. § VA CONSOLIDATION OR JOINDER § 1114.1 Either party, at its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to which it is a party provided that (1) the arbitration agreement governing the other arbitration permits consolidation; (2) the arbitrations to be consolidated substantially involve common questions of law or fact; and (3) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s), § 8.3.4.2 Either party, at its sole discretion, may include by joinder persons or entities substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded in arbitration, provided that the party sought to be joined consents in writing to such joinder. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question rrat described in the written consent. § 8.3.4.3 The Owner and Architect grant to any person or entity made a party to an arbitration conducted corder this Section 93, whether by joinder or consolidation, the same rights of joinder and consolidation as the Owner and Architect under this Agrccmcnt. ARTICLE 9 TERMINATION OR SUSPENSION § 9.1 If the Owner fails to make payments to the Architect in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at the Architect's option, cause for suspension of performance of services under this Agrecnuant. If the Architect elects to suspend services, the Architect shall give seven days' written notice to the Owner before suspending services. In the event oFa suspension of services, the Architect shall have no liability to the Owner for delay or damage caused the: Owner because of such suspension of services. Before resuming services, the Architect shall be paid all stuns due prier to suspension and any expenses incurred in the interruption and resumption of the Architect's services_ T be Architect's fees for the remaining services and the time schedules shall be equitably adjusted AIA Deaumerd B101'a — 2007 tlannady 6151 n—1ati7). Copyright L 1974. 197e, 1997, 1997 and 2007 byfhe Amwicst lmg do olAmhk cis. Nh d0b lnIL rosenteL WARNING: This Auks Document is protuctsd by U S. Copyright Law and international Treattas Unauthorized reproduction or distribution 14 of this AIAe Document, crony ponlan of It, may result in saver civil and criminal penalties, and will be prosecuted to the maximum extant possible r under tho raw THs doeuxonr was produced byAlA soltwara al 16.44.05 on OW112017 under Order No,1976374535 1 which appira on 0912312017. wed is not for resale Uar Nato: (170122Sa2a) § 9.21f the Owner suspends the Project, the Architect shall he compensated for services performed prior to notice of such suspension. When the Project is resumed, the Architect shall be compensated for expenses incurred in the interruption and resumption of the Architect's services. The Architect's fees for the remaining services and the time schedule shall be equitably adjusted. § 9.31f the Owner suspends the Project for more than 90 cumulative days for reasons other than the fault of the Arcdhitec4 the Architect may terminate this Agreement by giving not less than seven days' written nodm 19.4 Either party may terminate this Agreement upon not less than seven days' written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. § 9.5'Me Owner may terminate this Agreement upon not less than seven days' written notice to the Architect for the Owner's convenience and without cause. § 9.6 In the event of termination not the fault of the Architect, the Architect shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses as defined in Section 9.7. § 9.7 Termination Expenses are in addition to compensation for the Architect's services and include expenses directly attributable to termination for which the Architect is not otherwise compensated, plus an amount for the Architect's anticipated profit on the value of the services not perforated by the Architect. § 9.8 The Owner's rights to use the Architect's Instruments of Service in the event of a termination of this Agreement are set forth in Article 7 and Section 11.9. ARTICLE 10 I111SCELLANEOUS PROVISIONS § 10.1 This Agreement shall be governed by the law of the place where the Project is located, except that if the parties have selected arbitration as the method of binding dispute resolution, the Federal Arbitration Act shall govern Section 83. 110.2 Terms in this Agreement shall have the same meaning as those in AIA Document A2012007, General Conditions of the Contract for Construction. § 10.3 The Owner and Architect, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreement. Neither the Owner nor the Archited shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to a lender providing financing for the Project if the tender agrees to assume the Owner's rights and obligations under this Agreement. § 10.4 If the Owner requests the Architect to execute certificates, the proposed language of such certificates shall be submitted to the Architect for review at least 14 days prior to the requested dates of execution_ If the Owner requests the Architect to execute consents reasonably required to facilitate assignment to a lender, the Architect shall execute all such consents that are consistent with this Agreement, provided the proposed consent is submitted to the Architect for review at least 14 days prior to execution. The Architect shall not be required to execute certificates or consents that would require knowledge, services or responsibilities beyond the scope of this Agreement. § 10.5 Nothing contained in this Agreement shall create a ctmtractwl relationship with or a cause ofaction in Favor of a third party against either the Owner or Architect. § 10.6 Unless otherwise required in this Agreement, the Architect shall have no responsibility for the discovery, presence, handling, removal or disposal a& or exposure of persons to, hazardous materials or toxic substances in any form at the Project site. 110.7 The Architect shall have the right to include photographic or artistic representations of the design of the Project among the Architect's promotional and professional materials, The Architect shall be giver reasonable access to the completed Project to make such representations. However, the Architect's materials shall not include the Owner's confidcntial or proprietary information if the Owner has previously advised the Architect in writing of AIA Roermaont 81011'e — 200711mrserty 131311-1997). Copyright O 1974, 1978,1997.1997 and 2007 by The A4nodean kaMule ofArchihx ts. Ali righter MK' removed. WARNING- This AIAs Document Is protected by US. Copyright Law and Intermtlonar Treaties. Unauthodead reproduction or distribution Is this A1Aa nocumml, or any portion or 11, may result In savors civil and criminal penalties, and will be prosecuted to the maximum extant possible 7 under the law. This documard was produced by AIA software at *4415 an M10112017 under order Na.1971374SM 1 wl idr alpros ons9123n017, and is notfer resale. User Notes: (1731225926) the specific information considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Architect in the Owner's promotional materials for the ProjecL § 10.8 If the Architect or Owner receives information specifically designated by the other party as "confidential" or "business proprietary," the receiving party shall keep such information strictly confidential and shall not disclose it to any other person except to (1) its employees, (2) those who need to know the content of such information in order to perform services or construction solely end exclusively for the Project, or (3) its consultants and contractors whose contracts include similar restrictions on the use of confidential information. ARTICLE 11 COMPENSATION 111.1 For the Architect's Architectural Services only (excluding construction administration phase fee which will be added by amendment) under Article 3, the Owner shall compensate the Architect as follows: (Inrerr amount of or barisfor, compensation.) Total Architectural Only Fee (excluding CA Phase): $743,906.00 § 11.2 For Additional Services designated in Section 4.1, the Owner shall compensate the Architect as follows: (Insert amount of, or basis far. compensation. If necessary. list specific services to tt:lrlch particular methods of compensation apply.) Hourly according to the attached hourly rate schedule. 111.3 For Additional Services that may arise during the course of the Project, including these urider Section 4.3, the Owner shall compensate the Architect as follows: (Insert amount of, or basis far, compensation) Hourly according to the attached hourly rate schedule. § 11.4 Compensation for Additional Services of the Architect's consultants when not included in Section 11.2 or 11.3, shall be the amount invoiced to the Architect plus zero percent (0 %), or as otherwise stated below: 111.5 Where compensation for Basic Architectural Services only is based on a stiputated sum or percentage of the Cost of the Work, the compensation for each phase of services shall be as follows: Conceptual Phase Schematic Design Phase Design Development Phasc Construction Documents Phase Bidding Phase Renderings (4) Construction Administrative Phase Total Architectural Only Fee a155.888.00 S115,996.00 S 155,568.00 S374,500.00 S 18,254.00 $12,800.00 (to be added by amendment) S743,00&00 § 11.6 When compensation is based on a percentage of the Cost of the Work and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedulc set forth in Section 11.5 based on (1) the AIA Do= marl anal - 2111117 (formerly B1S1 m-1997). copyright 91974, 197e, 1987, t997 and 2007 by The American baUtuts e' Arcklecls. All rights It' rawnrad. NIARMNG Thls AIAa Document la pr*Iacted by U.S Copyright Law and International lreatles Unauthodzad mproductien cf dlstribution 15 0 this AIAO Document, or any Portion of It. may recall In severs civil and criminal penalties, end will he prosecuted to nro maximum extant possible i under era law This document was produced by Ala sollwars at 16 44 a5 on 060112017 under Order No 1976374535_1 which espiferl an 0101312017, and is not for resew 17BSZZS�B) Sher Notes: lowest bona fide bid or negotiated proposal, or (2) if no such bid or proposal is received, the most recent estimate of the Cost of the Work for such portions of the Project. The Architect shall be entitled to compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced. § 11.7 The hourly billing rates for services of the Architect and the Architect's consultants, if any, are set forth below. The rates shall be adjusted in accordance with the Architect's and Architect's consultants' normal review practices. (If appitcabla attach an exhibit of hourly billing rates or insert them below.) Refer to Exhibit "B" for GSB, Inc. hourly rate schedule Employee or Cah"ry Rate § 11.8 COMPENSATION FOR REIMBURSABLE EXPENSES § 11.8.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Architect and the Architect's consultants directly related to the Project, as follows: .1 Transportation and authorized out -of --town travel and subsistence; .2 Long distance services, dedicated data and communication services, teleconferences, Project Web sites, and extranets; .3 Fees paid for securing approval of authorities havingjurisdiction over the project; .4 Printing, reproductions, plots, standard form documents; .5 Postage, handling and delivery; .6 Expense of overtime work requiring higher than regular rates, if authorized in advance by the Owner; .7 Renderings, models, mock-ups, professional photography, and presentation materials requested by the Owner; .8 Architect's Consultant's expense of professional liability insurance dedicated exclusively to this Project, or the expense of additional insurance coverage or limits if the Owner requests such insurance in excess of that normally carried by the Architect's consultants; .9 All taxes levied on professional services and on reimbursable expenses; .10 Site office expenses; and .11 Other similar Project -related expenditures. § 11.8.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Architect and the Architect's consultants plus zero percent (0 o/a) of the expenses incurred. § 11.9 COMPENSATION FOR 115E OF ARCHffECTS INSTRUMENTS OF SERVICE If the Owner terminates the Architect for its convenience under Section 9.5. or the Architect terminates this Agreement under Section 9.3, the Owner shall pay a licensing fee as compensation for the Owner's continued use of the Architect's Instruments of Service solely for purposes of completing, using and maintaining the Project as follows: § 11.10 PAYMENTS TO THE ARCHITECT § 11.10.1 An initial payment of zero dollars and zero cents (S 0 ) shall be made upon execution of this Agreement and is the minimum payment under this Agreement. it shall be credited to the Owner's account in the final invoice. § 11.103 Unless otherwise agreed, payments for services shall be made monthly in proportion to services performed. Payments arc due and payable upon presentation of the Architect's invoice. Amounts unpaid thirty (30 ) days after the invoice date shall bear interest at the Talc entered below, or in the absence thereof at the legal rate prevailing from time to time at We principal place of business of the Architect_ (Insert rate of monthly or annual interest agreed upon.) The prime rate charged by BancFirst; Oklahoma City, Oklahoma ALA Gocumarrt e101- - 2007 [fortwly 815110 -1957J. Capfthl d 1974, 1976. 1907.1997 and 2007 by The American Insllluia of Amh1lects. All riliMs reserved WARNING: This AIA' Document is protected by U.S Copyright Law and hdemational TmaU" Unauthorized reprodudion or disl i uUan 17 of this MAIN Document, or any portion OIL may resutt in swam c1vY and criminal penalties, and will be pmeacuted to the maximum extant possible under the law. This document was produced by AAA eokware at 19 44 05 on o6r01=7 under order No.1976374535_1 which wq*n on tt+gl23017, and Is root for resale t Naar Notes: 761225826J § 11.10.3 The Owner shall not withhold amounts from the Architect's compensation to impose a penalty or liquidated damages on the Arcbitect, or to offset sums requested by or paid to contractors for the cost of changes in the Work unless the Architect agrees or has been found liable for the amounts in a binding dispute resolution proceeding. g '11.10.4 Records of Reimbursable Expenses, expenses pertaining to Additional Services, and services performed on the basis of hourly rates shall be available to the Owner at mutually convenient times. ARTICLE 12 SPECIAL TERMS AND CONDMONS Special terms and conditions that modify this Agreement are as follows: 12.1 The GSB, [nc. hourly rate schedule is attached to this agreement as Exhibit "B" 12.2 Consultant's willingness to enter into an agreement consistent with this agreement is a condition of the Architect's Obligation with respect to such Consultant's performance and services. ARTICLE 13 SCOPE OF THE AGREEMENT § 13.1 This Agreement represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations, represemations or agreements, either written or oral. This Agreement troy be amended only by written instrument signed by both Owner and Architect. § 13.2 This Agreement is comprised of the following documents listed below: .1 AIA Document B I OITIL-2007, Standard Form Agreement Between Owner and Architect .2 Exhibit "A"- GSB Proposal letter dated May 23, 2017. Exhibit "B"- GSB Hourly Rate Schedule dated October 1, 2016. Other documents: (List other documents, if any. including Exhibit A, Initial Information, and additional scopes of service. if any, jarmtng part ojrhe Agreement.) This Agreement entered into as of the day and year first written above. ARCH CT GSB, Ina (Si ature) ` Ronald G. Smith, President, CEO OWNER al develop n mission ignature) `ii `I'.L (Printed name and title) :..APPROVED (Printed name and title) Carmel Redevelopment Commission ,l M t ocumant B101 ^' - NCT (formerly BAl510—1997). CeWight C 1974 1978 1987 1997 and 2007 by Tho American Insthle of Archhecls. rights Inn' rese vo WARNING: This AIAs nocumont Is protaeted by U.S. Copyright Law and Inlentatlonal Treaties Unaulhorlied reproduction or dialrlbution 18 of lids AIAe Document, or any portion of ft. may result in severe civil and crinilnal penahias, and will he prosecutod to the nwilosam agent possible under iho taw. This documerd was produced by AIA Baftware al l6 44:05 on UA112o17 under Order No 1978374535.1 which eap<aa on t19r29017, and Is not for resale (1701225828) Item NOW; 405.848.9545 3555 H.W. 58th Street. Suite 700W Uklahcma City, 0K 73112 Cowie Meyer, AICP, PLA - Director Cannel Redevelopment Commission 30 W. Main Streel, Suite 220 Carmel. IN 46032 Exhibit "A" May 23, 2017 Re- Architectural Sences Proposal for Marriott Autograph Hotel —Carmel, Indiana Ms, Meyer. GSB is pleased to submit Ibis proposal to provide architectural services for the boutique hotel you intend to build in the Carmel City Center Our understanding of the project which is based upon the 30 Jan 2017 conceptual design drawings prepared by Pedcor, is summarized as follows • Marriott Autograph property 0 2000 SF of meeting space • 123 guestrooms and suites 9 Feinstein Ckvb (live music venue) • 6 story height including walkout basement level a Indoor poo: and filness center • Full -service restaurant and lobby bar Target budget $340.350K per key Based upon the size and scope of the project, we have pr*cted the manhours required to provide full architectural services and calculated the fee for that effort. The phases of work are listed below, along with the anticipated durations of each. We understand that Pedcor Design Group wit serve as the Ownefs design representative, providing review and offering input regarding the architectural character, detailing and materials of Ore hotel exterior. This proposal excludes fees for engineering and specialty consultants customary on a project of this type, which may include the following; • interior Designer • Civil Engineer • Structural Engineer • MEPlFP Engineer • Focd Service Equipment Consultant • Acoustician • Pool Consultant • Low-Voltage/Special Systems Consullant • Landscape Architect • Cost Estimalor Our standard practice, in an effort to procure the lowest fees from experienced consultants, is to wail to solicit Itme fees unfil the conceptual design process is complete. At that time, we can distribute the conceptual design package, which will include detailed information regarding program, area, configuration, systems, materials, height and other aspects of the protect as designed, lhat will enable the engineers and consultants to most accurafefy calculate their anticipated effort and fees. We calculated our proposed architectural fee using projected manhours and phase durations for the project. Our detiverabtes for the PncgramminglCnnceptual Design Phase are generally as follows; • Area Program Summary $ Room Mix • Archllectural Design Imagery • Site Plan • Floor Plans (each I:vel) • Typical Guesiroom Plans • Exterior Elevations • Diagrammatic Building Section(s) • Exterior Rendering The Intent of this phase is to define the program, fnctud'.ng sizing of public areas and amenities in order to allocate appropriate BOH area. The work in this phase is iterative, meaning that we will develop drawings far review and feedback and revise accordingly for additional review and revisions as needed. Once consensus is reached on basic floor plans and the general massing and character of the exterior skin, we will proceed into schematic design. Deliverables for subsequent phases are as customary in the industry Examples of our construction drawings and speci%cations are available in PDF formal for your evaluation. Our fee to provide full architectural serykes on this project is as fotlews: Phase Duration Notes Fee Basic Services PrpgramminWConceplual Design 6 weeks Includes exterior renderingS65,B88 Schematic Design 8 weeks 5115.996 Des n Development 6 weeks Includes model room drawinos 5155.568 Construction Documents 16 weeks $249.500 Bidding & Negotiation 4 weeks 516,254 Additional Services Intedor Des' n Construction Documenls Using Interior Design by Ownefs Consultant 5125,000 Professional Renderings Up to lour 4 addtiorW views 512.800 Arcliitrieffral Fee " Excludes reimbursabte'ez enses CA & consultants 5743.006 Future Services Construction Administration Eff=fedl 64 weeks Fee and sccE2 to be delemtined at a later dale $207.580 Exhibit "A" Exclusions & Limitations 1. Coordination with all engineering and specialty consultants, MLidhg those contracted to others, is included in the fees above. 2. Special inspections, as required by the building code and the local authority having jurisdiction, are not included. 3. Addltional services, beyond those specifically included abavo, are excluded. Additional services can be provided at the finds then prevailing hourly race schedule, unless a fixed fee is negaflated. 4. Conceplual and sndiematic design work may be prepared using hand drawings, SkelchUp and AulDCAD. Draw€ngs prepared during later phases with be done using RevN (BIM), which can be exported to CAD formal as needed. 5. Estimates of constriction cast are excluded. We make no representation as to the cost to construct the project as designed and will rely solely upon cost estimates provided by the others. We Include gradual and reasonable adjustments to the design as the process proceeds. However, we exclude major value engineering exercises (affecting project size, configuration, layout, program. major systems or major materials) once the project reaches the 50% design development progress milestone. 6. Renderings are included as described above. Additional presentation drawings. renderings, animations, models or any other wilslic Vows of the project are excluded. We can provide additional renderings or other visuatization toots upon request for an additional fee 7. We have estimated the arcl» textural construction administration fee based upon performance of activities customary to the practice, such as processing of submittals, answering contractor questions (RFI), reviewing shop drawings, processing general contractor pay appVca5ws, making periodic site observations and allencEng OAC (owner•ardRed-contractor) meetings at the project site generally on a monthly basis. We specifically exclude participation in an excessive number of on -site meetings, weekly OAC meetings, exhaustive site visits or a continuous presence on -site. Such enhanced construction phase acWties can be provided in accordance with our then prevailing hourly rate schedule, B. AM printing, reproduction, travel expenses, web meeting fees, shipping or other associated costs are reimbursable expenses and are excluded from this fee. They will be billed on a monthly basis as direct costs (no markup) and substantiated by receipts of invoices Printing of milestone submission drawings for use by the Dwner and for review and ooardination purposes by the design team is considered a reimbursable expense. All other printing for the sole use of the design team are not reimbursable. 9. This fee proposal specifically excludes any design of a parking struclure or elevated parking deck. If this element is determined to be a pars of the project, It can be added to the scope of work and fees. 10. We do not include the provision of geoiechnical testing, site surveying, environmental testing or other site investigations A ci+r1 engineer can provide or arrange to prWde surveying services upon request. The structural engineer will require the Owner to provide a geoterhnical testing report for the property in order to design the buil&ng foundation system. 11. We have Included above the creation of construction documents (drawings and spedr:cations) related to the interior design of the project using design information and material selections provided by an interior designer selected and provided by the Owner. 12. We include cocrdinating the design of the project with published and applicable Marriott Autograph Collection design standards provided to us at the beginning of the project. Via exclude incorporation of significant design changes resulting from changes to those design standards by Marriott during the course of the project. 13. We include a reasonable number of meetings during the various design phases in order to review and coordinate the design and advance the project. A significant increase in the number or frequency of meetings requested may incur additional fees. 14. Our proposal is based upon working continuously an the project from beginning to end. Placing the project an hold, pausing work or otherwise delaying I€mely progress may cause us to reassign project staff and could incur an additional fee to remobilize a project team at the time work is authorized to resume. It the project. is cancelled, we are to be paid for all work up to the point we are notified of the project cancellation and told to cease working. 15. We propose to Use an AIA Form of Agreement for this project. The services of engineers and consultants, if unknown at the lime the contract Is executed or If added later, can be added by amendment to that agreement i appreciate the opportunity to submit this proposal and welcome any questions about the proposal. We are excited about the opportunity to assist your design learn an this project and help bring a quality boutique hotel to the Carmel City Center, Thank you. Sincerely, -?,.M ea... Ryan Eshelman, AEA, LED AP, NCARS Prixipaf �� ������m HOURLY RATE GSB, inc. Exhibit "B" Prevailing Hourly Rates Architectural Services Senior Pfinc.-9aiAfchi t&CI.... '...... ........................ --................... ........... Pdocpal Design Archiwd............... ____ ........................... ~...... -.--,-----147.OD PrincipalAmchtncL----.................................. ..... ... -.......... ....................................................... 47.00 Co*rad AdmMiisWor.-........ ...... ......................... ........................ .................... -...... .................... 142,OO ProjectDhdor,-.,,-..--...... -....................................................... ........................... 123l0 ProducUm0irectpc............. ............................................. --.................. ...... ...... ........................... -105.0U DhedordRed.......... ,..'....... ........................................... .................. ..... -'-... ........ 105,C0 Sr. Proec . ..... ..... ................... _-..-............. 102JO0 C�inStn4onCmondimmbur-...... -................................................ ............................ -.,..-......... ....... 990 kchilect..-..-............................ --...... -..................................................... g2.OG OAmUer---...................... ....... .......................... ',.---'-....................... --'''`^^''~j90.00 Ach:tect ... .................................................. ---....... .................. -......... .............................................. 84.08 Professional Staff Lm|1............................ ,-----,....... ...................... ......... ........ Profe�sional Staff Level 2__.................... ........ -.............................................................. PrnienoiVna.1 Staff Level .--------...,...,..,~.,..,,. Professional Staff Level 4 -.......... ...,........................... ......................... ..................... ................. 60.0W Professional Staff Level 5 ..................................... ............... ............ .......... ----.............. .............. 55.0} Gonstnur.dpnPhase AdKnistraior_._...... .................................. .................. ......................... ,----'§7I0 Adminishrativo........... ...... ......... -... ....................... ................................................. 64]00 Szcretary-... ...... ...................................................... ... .......................... ................ ......... ~.....~,4JJ� FffadiveOctobDr 1'2016 ��O��E40PMEryT � [`p A Puf�Lc: Pr Nate ';' �W"' Patttershfp �� v , i CARMEL REDEVELOPMENT COMMISSION CONTRACT AMENDMENTS ATTACHMENT July 19, 2017 These CRC Contract Amendments between the Carmel Redevelopment Commission ("CRC" or ``Owner") and Architect, GSB, Inc. ("Architect") are made a part of and incorporated into the Standard Form of Agreement Between Owner and Architect, being the AIA Document B101-2007 Edition, being executed contemporaneously herewith ("Contract"). The terms and conditions set forth herein amend modify, delete from and add to the terms and conditions of the Contract. Where an Article, Paragraph, Subparagraph or Clause of the Contract is modified, deleted or added by these Contract Amendments, the unaltered provisions of that Article, Paragraph, Subparagraph or Clause will remain in effect. If a conflict exists between the other Contract Documents and these Contract Amendments, then these Contract Amendments shall prevail. ARTICLE 1 INITIAL INFORMMTON Page 1 The date the Contract shall be considered made and entered into is July 19, 2017. Add the following additional terms: § 1.4 Architect shall perform and complete the Design Services in accordance with the interim and final performance milestones and completion deadlines set forth in Exhibit "A", Architect Proposal Letter dated May 23, 2017 ("GSB Proposal"). Architect shall furnish and perform its Architect Services, including its construction administration services, consistent with professional skill and care and Architect's contractual duties and obligations so as to not impede the Project construction work being done by contractors ("Work") from meeting the commencement and Substantial Completion deadlines set forth in § 1.1.2 above. § 1.5 The term "day" as used in the Agreement and in the Contract Documents shall mean calendar day and not business or work day. If business day or work day is intended to be used herein in lieu of calendar day, it shall be specifically designated as such. Any reference to "business day" or "work day" shall mean Monday through Friday of a given week, and be exclusive of Owner observed holidays. § 1.6 Architect represents that it is financially solvent, able to perform the services being undertaken under this Agreement, able to pay its debts as they become due, and possesses sufficient working capital to complete the professional services and perform its obligations under this Agreement. Architect further represents that it possesses the professional experience, skill and ability in construction and contract administration of projects of similar or like type, nature, complexity and size as the Project. Architect will assign to the Project similarly qualified individual professional architects and manage them as needed to meet this quality of performance. § 1.7 Architect represents that the Fee for the Design Services provided for in this Agreement is adequate Approved by GSB compensation for the timely and complete performance of the Design Services provided hereunder, whether those services are performed by Architect or by consultants engaged by Architect. § 1.8 Owner may at its sole option assign one or more full or part time project managers, inspectors or other representatives to observe the performance of the Work. The duties, responsibilities and limitations of authority of any such representatives will be as provided in the Contract Documents or as otherwise stated to Architect in writing by Owner. § 1.9 Architect shall designate a representative authorized to act on behalf of Architect with respect to the Project. This representative shall be subject to Owner's prior approval, and once so approved, the designated representative shall not be changed by Architect without Owner's consent. § 1.10 To the extent permitted under Indiana law, all Project specific information, including Owner's Project Criteria and Initial Information furnished by Owner to Architect hereunder, including but not limited to area and cost information, operational or business information and other specific information, shall be considered to be confidential and proprietary information of Owner and subject to the confidentiality provisions of this Subparagraph as well as those provisions set forth in § 10.8 and its subparts. All studies, reports, designs, drawings, specifications, models, computer models and other products prepared, provided or procured by Architect or any of its consultants during the course of furnishing services to Owner under this Agreement shall be deemed to be Owner confidential or proprietary information. § 1.11 FTP Site. Architect, in coordination with Owner, shall establish and maintain an electronic internet or FTP site for the Project to promote electronic communications and cost savings for all parties involved. The internet program and site that already is Architect's standard information technology platforms, if acceptable to Owner, may be utilized for this purpose. Whenever studies, reports, surveys, design and construction drawings and documents prepared by or for Architect during each of the design and construction phases as described hereinafter are to be submitted to Owner by Architect, they shall be submitted or posted in both electronic format to the electronic internet or FTP site for the Project as well as delivered to Owner in electronic CAD disk format (or hard copy if requested by Owner). Architect shall ensure that all such studies, reports, surveys, design and construction drawings and documents prepared by or for Architect shall be compatible and inter -operative with each other in a 3D electronic format or media and accessible to Owner and any separate contractor of Owner with access to such information. § 1.11.1 Upon achieving Final Completion of the Project, Owner shall take ownership and control over the electronic documents and Instruments of Service on the FTP Site, and shall maintain thereafter the Project FTP site and its contents. § 1.12 BIM. Architect shall also utilize Building Information Modeling ("BIM") for the Project, or portions of the Project, as mutually agreed upon by the Parties. Owner and Architect shall agree hereinafter on the appropriate protocols, and terms and conditions applicable to the use of BIM on the Project. Such conditions shall include Owner's issuance of all existing data; building survey of the existing building in order for the Architect to integrate the existing spaces in the BIM model. § 1.12.1 Upon achieving Final Completion of the Project, Owner shall take ownership and control over the electronic documents and Instruments of Service that are part of the BIM Model for the Project, including any Model Archives created and maintained by Architect, and shall maintain thereafter the Project BIM Model and Model Archives and their contents. § 1.13 Drawings Format. Any and all drawings, renderings and plans shall be prepared in 3D electronic format or media as well as in 2D CAD format, and shall be compatible and inter -operative with each other, and accessible to Owner and any contractor or Representative of Owner with access to such information, 2 Approved by GSB regardless of whether Architect furnishes such services. § 1.14 As a public, municipal entity, Owner is exempt from sales and compensating use taxes on all tangible personal property (materials, equipment and components) pursuant to the law of the State of Indiana. Architect shall not include any charges representing such taxes on any invoices hereunder. ARTICLE 2 ARCHITECT'S RESPONSIBILITIES Add the following additional terms: § 2.1.1 The Services to be provided by Architect under this Agreement are professional services and shall be performed by licensed architects or registered professional engineers or under the control and direction of a licensed architect or registered professional engineer. § 2.1.2 Architect acknowledges Owner's reliance upon Architect's special and unique abilities and skills to perform the services provided by this Agreement, and accepts the professional relationship established between it and Owner by this Agreement. Architect agrees to use its professional efforts, skill, judgment and abilities to perform the services hereunder and to further the interest of Owner in accordance with Owner's requirements, program, budget, time schedule and procedures. § 2.1.3 Architect agrees that it possesses the skills that will enable it to supply studies, reports, drawings, specifications and other design and engineering documents in conformance with the Standard of Care and that the Design Services, including but not limited to those services specified in Exhibit "A" provided hereunder, and the Instruments of Service thereof, will, if complied with by competent, experienced and diligent contractors and its or their equally qualified subcontractors, enable them to produce a functional, efficient and cost effective Project for the Owner's occupancy and activities within the Owner's program for the Project. § 2.2.1 All of the services to be furnished by Architect will be furnished in accordance with current design techniques, technological practices, skill and learning for projects of the type, nature, complexity and size as this Project as of the time that Architect performs its services hereunder and delivers its services and design to Owner. § 2.2.2 Neither Owner's approval nor its acquiescence in any submission, design, certification or action by Architect shall in any manner relieve the Architect of any obligation, duty or responsibility under this Agreement. § 2.2-3 If Architect observes or otherwise acquires actual knowledge of any fault or defect in the design of the Project or non-conformance with the construction documents (the "Construction Documents"), including but not limited to errors, omissions or inconsistencies in the deliverables as defined in § 3.1.7 below and in Exhibit "A" as well as in §7.3 (the "Deliverables") of Architect and its Consultants, prompt verbal or telephonic notice shall be provided to Owner and written notice thereof shall be given by Architect to Owner within three (3) days thereafter. Delete §2.5 and replace it with the following §2.5 through §2.5.11: § 2.5 Upon entering into the Agreement, and prior to Architect commencing performance of the Design Services under the Agreement, Architect shall secure and maintain at its own cost and covering all times herein, such insurance as will protect it from claims which may arise out of or result from Architect's furnishing of services under the Agreement and for which Architect may be Iegally liable, whether such services be by Architect or by Architect's consultants or by anyone directly or indirectly employed by any Approved by GSH �2?/ of them, or by anyone for whose acts any of them may be liable. § 2.5.1 Architect shall purchase and maintain such insurance as shall protect Architect from claims, losses and damages which may arise out of and during the operation of this Agreement, whether such claims, losses and damages arise out of or result from the acts or omissions of Architect or his consultants, or agents or anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable, and whether such claims, losses and damages are arising out of statutory liability, bodily injury, occupational sickness or disease, or death, insured personal injury IiabiIity, property damage, other than to the Work itself, contractual liability, products and completed operations, fire damage, advertising injury, medical expenses and comprehensive automobile liability. Such insurance shall specifically include, but not be limited to, insurance coverage under the workers compensation, disability benefit and other similar employee benefit laws of the state in which the Architect's Services are being performed. Such liability and property damage insurance shall be obtained in such amounts and with such coverage to fulfill Architect's obligations under the Agreement as well as Architect's contractual obligations with regard to any claim, damage, loss or expense described in this Agreement. § 2.5.2 Such insurance coverage shall be placed with companies that have insurer ratings no lower than "A+ VIII" in the AM Best's Insurance Guide, latest edition as of the date of the Agreement, or at time of renewal, and to which Owner has no objection. § 2.5.3 Prior to Architect commencing performance of the Work under the Agreement, Architect shall provide to Owner a Certificate of Insurance showing liability coverage for Architect and any employees, agents or consultants of Architect for the Workers Compensation, Employer's Liability and Automobile Liability coverage required by law and as set forth in § 2.5.1 hereof. Coverage shall be for no Iess than the statutory amounts required for Workers Compensation, and Employer's Liability Insurance shall be for coverage of no less than One Million Dollars ($1,000,000.00) for bodily injury caused by accident (for each accident), One Million Dollars ($1,000,000.00) for bodily injury by disease (policy limit), and One Million Dollars ($1,000,000.00) for bodily injury caused by disease (for each employee). Owner may withhold payment to Architect pending receipt of such Certificate in satisfactory form. § 2.5.4 Architect's Commercial General Liability Insurance coverage, where applicable, shall be per occurrence and in the general aggregate (subject to a per project general aggregate provision applicable to the Project). Commercial General Liability Insurance coverage shall be for no less than Two Million Dollars ($2,000,000.00) for bodily injury and property damage with a combined single limit, Two Million Dollars ($2,000,000.00) for personal and advertising, Two Million Dollars ($2,000,000.00) for products and completed operations, and Four Million Dollars ($4,000,000.00) for general aggregate. Provider's Commercial General Liability Insurance also shall cover liability arising from premises, operations, independent contractors, products -completed operations, personal and advertising injury, employee dishonesty, pollution liability and liability assumed under an insured contract, including any tort liability of another assumed by contract. Coverage shall be afforded to the Additional Insured whether or not a claim is in litigation. Comprehensive Automobile Liability shall include coverage for liability arising out of owned, non -owned and hired automobiles and for bodily and property damage. For each motor vehicle used by Provider in connection with the services provided under the Agreement, public liability insurance shall be written for not less than One Million Dollars ($1,000,000.00) for bodily injury and property damage - with a combined single limit, as to such vehicle or vehicles. § 2.5.5 Architect's Commercial General Liability Insurance shall be written on an occurrence basis. Owner shall be named as Additional Insured on all insurance coverage required under the Agreement except on the worker's compensation policy, employers liability policy and professional liability policy. Additional Insured coverage shall apply as primary insurance with respect to any other insurance afforded to Owner, and the Architect's policy will not seek contribution from any and all insurance afforded to Owner, whether 4 Approved by GSB "0&. as Additional Insured or otherwise. § 2.5.6 Architect shall, throughout the term of this Agreement, maintain professional liability insurance in the aggregate amount of coverage of not less than Five Million Dollars ($5,000,000.00) per claim and in the aggregate. In addition to its own professional liability insurance, Architect shall require of any consultant utilized by Architect in connection with this Project that each maintain, throughout the term of this Agreement, its own professional liability insurance satisfactory to Owner, in the aggregate amount of coverage for each of not less than One Million Dollars ($1,000,000.00) per claim and in the aggregate, which insurance shall be separate and distinct from Architect's insurance provided hereunder. Architect shall provide evidence of such insurance coverage of Architect and of its consultants by a certificate or certificates of insurance provided to Owner, which certifications shall contain a provision that coverage afforded under the policies will not be cancelled by the Insurer or the limits of liability reduced by endorsement materially modified until at least thirty (30) days (ten days if premium is not paid) prior written notice has been given to Owner by the insurance carrier or its agent. Architect shall maintain its professional liability coverage in effect for at least four (4) years after final completion and acceptance of the Project by Owner, and shall require the same duration for the professional liability coverage from its consultants. This insurance shall be maintained at no additional cost to Owner. § 2.5.7 Architect shall famish Excess (Umbrella) Liability coverage with limits of liability of not less than Three Million Dollars ($3,000,000.00) applying in excess of the primary coverages provided for above in § 2.5.1 through § 2.5.5, and such Umbrella policy shall provide coverage at least equal to that provided for in the primary coverage. § 2.5.8 Architect shall provide evidence of all insurance coverage of Architect and of its consultants as required in this §2.5 and its subparts, including professional liability or errors and omissions policies of insurance and Excess Liability Umbrella coverage, by a certificate or certificates of insurance provided to Owner, which certifications shall contain a provision that coverage afforded under the policies will not be cancelled by the Insurer until at least thirty (30) days prior written notice has been given to Owner by the insurance carrier or its agent with the exception that coverage may be terminated upon ten (10) days written notice provided to Owner for non-payment of the premium by Insurer. If Provider receives notice of a threatened cancellation of coverage for non-payment of premium it shall immediately advise Owner in writing prior to any such cancellation deadline so as to provide Owner the opportunity to advance such payment on behalf of Provider out of monies to be paid to Provider under this Agreement for the coverage required hereunder. § 2.5.9 Should Architect fail or neglect to provide the required insurance, or allow any required coverage to lapse, Owner shall have the right, but not the duty, to provide such insurance and deduct the cost thereof from any money due to Architect any and all premiums paid by Owner for and on account of said insurance. The policy or policies, and each certificate of insurance, shall further provide that the insurance will not be cancelled by the Insurer or the limits of liability reduced by endorsement prior to at least thirty (30) days after written notice by certified mail of such cancellation or change has been provided by the respective insurer to Owner. No less than fourteen (14) days prior to the expiration, cancellation or termination of any such policy, Architect shall supply Owner with a new and replacement Certificate of Insurance and Additional Insured endorsement as proof of renewal of the original policy and coverage, with such new or replacement policy and endorsements in the same manner and for the same coverage and amounts in favor of Owner as set forth in this Article. § 2.5.10 The insurance carriers for Architect, except professional liability insurance, shall have no right of subrogation against Owner and its officers, directors, consultants, agents and employees, and Architect shall obtain from each of its insurers a waiver of subrogation on all insurance coverage required in this Article, including, but not limited to, Commercial General Liability, Workers Compensation, Employer's Liability 5 Approved by GSB _�& and Business Auto Liability, in favor of the parties identified herein with respect to losses arising out of or in connection with the Work on the Project under the Agreement. Architect shall require waivers of subrogation in favor of Owner from its consultants, if any, in their agreements with those entities. The professional liability insurance policies shall waive subrogation only in favor of the Owner. § 2.5.11 Notwithstanding any other provision of this Agreement to the contrary, should any policy required by this Agreement be canceled or otherwise terminated before the completion of the services hereunder, Architect shall exert all reasonable efforts to procure and maintain in force similar insurance from insurers satisfactory to Owner and provide certificates of such insurance to Owner upon Owner's written request. Add the following additional terns: § 2.5 Architect shall by application of the Standard of Care and performance of its obligations and duties hereunder comply with all applicable Federal, State and Local Laws, rules, codes, ordinances, regulations and orders in effect as of the date of execution of this Agreement governing its Services, the Project and the Work, and which are applicable to the plans, specifications and other design documents provided for this Project and will not knowingly violate any law, rule, code, ordinance, regulation or order applicable to the Services which it renders pursuant to this Agreement. Architect shall notify Owner of any changes or pending changes in applicable laws, rules, codes, ordinances, regulations and orders of which Architect is aware, the impact of such changes on the Design and Contract Documents and recommendations for modifications to the Design and Contract Documents which minimize these impacts. Design changes made necessary by newly enacted laws, codes and regulations after this date shall entitle Architect to a reasonable adjustment in the Architect's design and construction phase schedule and additional compensation in accordance with the Additional Services provisions of this Agreement. § 2.7 By signing studies, reports, plans, surveys or drawings or preparing the Deliverables and Construction Documents to submit for purposes of obtaining requisite governmental approvals or permits, it shall be deemed that Architect has taken by application of the Standard of Care reasonable measure to ascertain what laws, rules, codes, ordinances, regulations and orders apply to its Services, the Project and the Work and Architect has applied them accordingly. If Architect performs its services contrary to the Standard of Care resulting in a variance from applicable laws, rules, codes, ordinances, regulations and orders then in effect as of the date of this Agreement, then Architect shall assume responsibility for such services so provided and shall bear the costs attributable to correction of the studies, reports, plans, surveys, drawings or specifications, or any other Deliverables and the damages recoverable at law, provided, however, Architect shall not be responsible for any costs or expense that provide betterment or upgrades or enhancements to the value of the Project. § 2.8 Architect shall perform Basic and Additional Services with reasonable diligence and expediency in accordance with sound professional practices and its commitments, obligations and duties hereunder in order to promote the commencement and completion of such services, and construction of the Project, consistent with the schedule for performance of services set forth in Exhibit "A", provided that Architect shall have no liability for delays caused by conditions beyond Architect's legal responsibility to act or control or caused by the operations, acts and omissions to act by persons for whom Architect is not legally responsible. Such schedule shall be adjusted as required as the Project proceeds. Claims, if any, arising from delays in performance of Architect's services in accordance with such approved schedule shall be resolved in the same manner as other liability claims. Owner and Architect acknowledge that there are factors causing delay that are beyond the Architect's responsibilities and duties, are caused by the operations, acts and omissions or persons for whom Architect is not legally responsibility, and for which the Architect does not otherwise have legal liability that may affect Architect's ability to complete the services to be provided under this Agreement. Approved by Gss _ & § 2.8.1 If the commencement, prosecution or completion of the Architect Services, or of the construction of the Project by others, is delayed, hindered, disrupted or interfered with by Architect, Architect shall have liability for Owner's damage, loss, cost, expense, assessment or a fine recoverable at law but only to the extent caused by a negligent act, error, omission, unjustified delay, or default of Architect, or anyone for whom Architect is responsible. Architect shall have no liability for delays, hindrances, disruptions or interferences caused by or contributed to by conditions beyond Architect's legal responsibility to act or control or caused by the operations, acts and omissions to act by persons for whom Architect is not legally responsible. This provision shall not create a cause of action in favor of any person not a party to this Agreement. No third -party beneficiaries are intended. § 2.8.2 If Architect is, without justification, responsible for or the cause of any delays or hindrances in the Owner's overall Project Schedule and milestones, then upon the request of Owner, and at no cost to Owner, Architect shall correct and expedite the performance of its services hereunder that may be causing or contributing to such delays or hindrances. ARTICLE 3 SCOPE OF ARCHITECT'S BASIC SERVICES Add the following additional terms: Add the following to the end of §3.1.4: ... unless Architect first shall object in writing to Owner and provide the reasons for such objection, and Owner affums in writing its directive or substitution notwithstanding Architect's objection. § 3.1.5 Architect shall review all reports prepared by other consultants to the Project, including but not limited to any geotechnical reports, site or land survey reports and environmental site assessment reports, and incorporate any related requirements or recommendations into any architectural or engineering design work performed as part of the Services under this Agreement. § 3.1.6 With respect to subsurface conditions that may affect the design of the Project, Architect shall review the geotechnical reports so as to determine, as disclosed in the reports, the existence and extent of subsurface conditions, it being recognized by the Owner that geotechnical testing and studies only sample subsurface conditions at specific locations and are limited in the information they provide. Architect shall incorporate and utilize that subsurface information in the design of the Project and any foundational elements, subsurface structures or components to be designed by Architect. Where the design of the Project requires knowing where subsurface conditions, elevations, or obstructions may exist, in lieu of solely relying on public records or published reports for their disclosure and accuracy with respect to the existence, type or location of such subsurface conditions, elevations or obstructions, or requiring Contractor to verify existing conditions before commencing work, Architect shall undertake such field surveys, testing or excavations as are necessary, or identify for Owner their need to be undertaken by Owner or others, so as to determine and verify the actual conditions and information underground that may negatively impact the design and construction of the Project. Add the following additional terns: §3.1.6.1 Architect shall coordinate and meet with Owner to identify approvals to be obtained for the Project and documents required to obtain such approvals. Architect shall assist Owner with securing necessary governmental permits for the Project, and Architect shall assist Owner with securing any utility services approvals for the Project, and contacting the utility Architects and securing such requisite approvals with the entities providing utility services to the Project. 7 Approved by GSBOr § 3.1.6.2 Architect, in coordination with Owner, shall prepare and submit all required applications, plans, specifications, and other documents, including but not limited to the Deliverables and Construction Documents, to governmental and/or regulatory agencies having jurisdictional review of the Deliverables and Construction Documents covered within this Agreement for their approval. § 3.1.6.3 Architect shall, at appropriate times, and in coordination with Owner, contact the governmental authorities required to approve the Deliverables or Construction Documents and the entities providing utility services to the Project, including environmental permitting, non -environmental permitting and utility services approvals. Architect shall provide advance notice to Owner of any contacts or meetings with governmental authorities so that Owner may participate therein should it desire to do so. In engineering and designing the Project, the Architect shall prepare designs and documents in accordance with applicable design requirements imposed by such governmental authorities and by such entities providing utility services. Architect shall consult with the applicable governmental agencies prior to finalizing Architect's Deliverables and Construction Documents to obtain their probable opinion regarding conformance with standards and ordinances and existing utility locations. § 3.1.7 Unless specifically excluded as part of the list of deliverables that is part of Exhibit "A" attached hereto, all studies, reports, plans, investigations, design and engineering analyses, calculations and assumptions serving as the basis of the design, drawings, including drawings prepared utilizing computer aided design ("CAD"), CAD disks, electronic or digital data or stored information ("Es ), specifications, operating instructions, notes, other drawings, images, computations, sketches, test data, survey results, surveys, photographs, renderings, models, Building Information Modeling ("BIM"), written works of authorship, and any other materials created, conceived, or first reduced to practice by Engineer related to the Engineer Services and prepared by Engineer and/or its consultants, alone or in combination with others, on any and all media, in whole or in part, and all copies thereof, whether created before or during the term of this Agreement, together with those documents identified in §7.3, shall constitute the Deliverables ("Deliverables"). § 3.1.9 In the event that any action is taken against Owner, including but not limited to assessments of fines or penalties, whether by any local, state or federal regulatory or administrative agencies or otherwise, due to an actual negligent act or omission of the duties, responsibilities and obligations set out herein by Architect or any other party for whom Architect is responsible relating to the Architect Services, Architect shall indemnify and hold Owner harmless therefrom, including, but not limited to, any assessment of fines or penalties and incurrence of reasonable attorney fees incurred in the defense of or appeal from any such action to the extent recoverable under applicable law on account of Architect's negligence, and any proceeding or hearing which may occur or be related thereto; provided, however, Architect shall not be responsible for any field rework or reconstruction arising from such government claim unless and only to the extent it is caused by an actual negligent act, error or omission by Architect as described herein. Architect shall have no responsibility or liability for the decisions, conduct, operations, acts or omissions of any person for whom Architect is not legally liable, including, without limitation, the Owner, the Contractor, their consultants, contractors, vendors, or suppliers. § 3.1.9 Architect shall perform any and all tests required of Architect as part of the Architect Services in accordance with recognized ASTM standards. Architect shall have no control over or responsibility for tests performed by others, including without limitation the Contractor or Owner. § 3.1.10 Architect shall, as part of Final Deliverables or as requested by Owner or by any governmental agency or authority, provide to Owner certifications with respect to the documents and services provided by Architect (a) that, to the best of its knowledge, information and belief, and within the scope of Architect's services, the documents or services to which such certifications relate (i) are consistent with the Project Criteria and the Contract Documents, except to the extent specifically identified in such certificate, (ii) Approved by GSB -12Z. comply with the Standard of Care for services of the kind performed, and (iii) comply by application of the Standard of Care with applicable laws, ordinances, codes, rules and regulations governing the design and construction of the Project; and (b) that Owner and its consultants, but no other person, shall be entitled to rely upon the accuracy of the representations and statements contained in such certifications. § 3.1.11 INTENTIONALLY OMITTED § 3.1.12 Owner shall require adequate time to secure any requisite Owner internal approvals, which time shall be taken into consideration by Architect in establishing its schedule of services. Architect shall establish submission deadlines with Owner that will facilitate Owner's securing of any requisite approvals. The failure of Architect to meet those submission deadlines may result in the delay or prevention of the requested approvals. Add the following to the end of §3.4.2: Architect shall prepare and assemble the necessary Construction Documents, and any other documents (except those documents that separately may be furnished by others as identified by Architect) required for plan review and approval by governmental authorities and/or regulatory agencies having jurisdiction over the Project. Add the following additional terms: § 3.4.6 Architect shall put forth the requisite professional efforts so that by application of the Standard of Care the Project's design is in compliance with applicable federal, state and local laws and building codes, including, but not limited to, the Architect's reasonable interpretation of the Americans with Disabilities Act, Public Law 101-336 and the Americans with Disabilities Act Regulations and Accessibility Guidelines adopted by the U.S. Department of Justice and codified as 36 CFR Part 1191 and Appendix A thereto (the "Act"), in effect, and as interpreted, as of the date of the execution of this Agreement. Consistent with the above, Architect shall notify Owner of any changes or pending changes in such laws and building codes of which Architect is aware, the impact of such changes on the Construction Documents, and recommendations for modifications to the Construction Documents which minimize these impacts. § 3.5.2 Architect shall revise the Construction Documents in accordance with any value engineering and other changes as may be recommended to Owner and approved in writing by Owner. § 3.5.2.4 In connection with such assistance to Owner in bidding the Project, Architect shall respond promptly to such inquiries or clarification requests and shall keep Owner fully informed of any and all such inquiries, clarifications or revisions to the plans and specifications, the reason for them and the nature of the clarifications or revisions made. Modify § 3.6.1.2 as follows: § 3.6.1.2 The Architect shall advise and consult with the Owner during the Construction Phase Services. The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the Architect be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect shall be responsible to the extent damages are caused by the Architect's negligent acts or omissions or failure to perform its services as provided in this Agreement, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractor or of any other persons or entities performing portions of the Work. 9 Approved by GSB 1?6K Delete § 3.6.I.3 and replace it with the following: § 3.6.1.3 Architect shall be a representative of Owner during the Construction Phase for all construction and shall advise and consult with Owner during the Construction Phase, as requested by Owner or as required by Architect's obligations and duties in this Agreement, applicable law or as set forth and contained elsewhere in the Contract Documents for the Project. § 3.6.1.4 The Construction Phase shall commence with the award of the Contract for Construction on the Project to Contractor (or more than one contracts if multiple prime contractors are utilized) and, together with the Architect's obligation to provide Basic Services under this Agreement, will terminate ninety (90) days following the date when final payment to the Contractor (or multiple prime contractors) is received. Provided, however, that if the Construction Phase is exceeded or extended through the fault, in whole or in part, of Architect, then upon written request from Architect to Owner famished within twenty-one (21) days from the commencement of such delay or cause for extension of the Construction Phase, Architect's Basic Services for the Construction Phase also may be extended for an equivalent period of time and at no cost increase to Owner. Modify §3.6.2.1 by adding the following to the end thereof. Should the Architect have knowledge of any defects or deficiencies in the Work, Architect shall inform Owner and Contractor promptly in writing of such defects or deficiencies observed or reported in writing to Architect, known deviations from the Contract Documents and known deviations from the most recent construction schedule submitted by Contractor. Architect shall not be responsible for any acts or omissions of Contractor, subcontractor, or any entity performing any portions of the Work, or any agents or employees of any of them. Section 3.6.1.4 is solely for the benefit of Owner and shall create no duty in favor of Contractor, subcontractor, or any entity performing any portions of the Work, or any agents or employees of any of them, nor shall §3.6.1.4 create a cause of action in favor of any person not a party to this Agreement. Delete §3.6.2.2 through §3.6.2.4 and replace them with the following: § 3.6.2.2 Architect, in coordination with Owner, shall at all times have access to the Work wherever it is in preparation or progress. § 3.6.2.3 Architect shall identify and recommend to Owner rejection of work which does not conform to the Contract Documents. Architect further shall obtain from Contractor the time and cost to bring the non- conforming Work into compliance with the Contract Documents. Architect further shall recommend to Owner that additional inspection or testing of the Work by others be conducted in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed, but Architect shall not have authority to bind Owner, expressly or impliedly, for the payment of such additional inspection or testing, unless Owner shall first consent thereto. Owner's consent thereto must be in writing. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons or entities performing portions of the Work. § 3.6.2.4 Architect shall be the interpreter of the requirements of the plans and specifications within the Contract Documents that were prepared and/or furnished by Architect or any of its consultants. Architect shall render interpretations necessary for the proper execution and progress of the Work with reasonable promptness. However, Owner is not bound or obligated by any decisions by Architect with respect to such interpretations. Owner expressly retains the right to accept or reject such interpretations. Should the Owner decide to disregard any of the decisions, interpretations or recommendations of Architect with regard to the la Approved by GSB Z001 requirements of the plans and specifications or the Contract Documents prepared by Architect, then in that event in favor of Architect only, Owner assumes the risks of proceeding in this fashion and any costs or damages in connection with Owner's decision in that regard. § 3.6.2.5 Interpretations and decisions of the Architect shall be consistent with the requirements indicated in or reasonably inferable from the Contract Documents and shall be in written or in the form of drawings. § 3.6.2.6 Architect's decisions in matters relating to artistic and/or aesthetic effect shall be final if consistent with the intent of the Construction Documents and Owner's desires. Renumber § 3.6.2.4 as § 3.6.2.7. Add the following to the end of § 3.6.3.1: Such Certificates shall serve as recommendations to Owner concerning payment, and shall not, of themselves, be binding upon Owner. Delete § 3.6.4.1 and replace it with the following: § 3.6.4.1 Architect shall review Contractor's submittal schedule and shall not unreasonably delay or withhold approval. Architect's initial action in reviewing submittals shall be taken promptly, and in no event, more than seven (7) days after Architect's receipt of the submittal, and if such review requires a longer period in accordance with the standard of care set forth in § 2.2 and its subparts, Architect shall so indicate in its initial response and shall provide the time period by which it shall further respond. Architect shall review and take appropriate action upon the Contractor's and Subcontractor's submittals such as Shop Drawings, Product Data and Samples but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. Such action shall be taken with reasonable promptness so as to cause no unreasonable delay in the Project. Such review is not for the purpose of determining the accuracy and completeness of other information such as dimensions, quantities, and installation or performance of equipment or systems and shall not excuse Contractor's responsibility for the accuracy and completeness of the information on such submittals such as dimensions, quantities, and installation or performance of equipment or systems. Architect shall not be required to review partial submissions or those for which submissions of correlated items have not been received unless Architect has contributed to or caused the need for such submissions. Delete the first two sentences of § 3.6.4.2. INTENTIONALLY DELETED Delete § 3.6.4.4 and replace it with the following: § 3.6.4.4 The Architect shall review and respond to requests for information about the Contract Documents. The Architect shall set forth in the Contract Documents the requirements for requests for information. Requests for information shall include, at a minimum, a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of the clarification requested. Architect shall acknowledge the receipt of each Contractor generated Request for Information within three (3) days of its receipt by Architect. Architect's response to such requests shall be made in writing within any time limits agreed upon, or otherwise within seven (7) days. If appropriate, the Architect shall prepare and issue supplemental Drawings and Specifications in response to requests for infonmation. Add the following additional term: 11 Approved by GSB § 3.6.4.6 Architect shall maintain a record of requests for information and copies of such requests and Architect's responses with respect thereto. Add the following sentence to the end of § 3.6.5.1: Architect shall not have authority to execute change orders or to authorize or direct to be performed any extra work, or to obligate Owner, expressly or impliedly, to pay additional compensation to contractors for any additional, change or extra work performed. Add the following additional terms: § 3.6.5.3 Architect's authority to order minor changes in the Work as set out in § 3.6.5.1 is subject to the prior approval of Owner. Such minor changes in the Work must be consistent with the intent of the Contract Documents and do not involve an adjustment in the Contract Sum or an extension of the Contract Time. Such authorizations by Architect shall be in writing, or confirmed by Architect in writing, within 24 hours of authorization of the change by Owner, and shall confirm that the change will not affect the Contract Time or Contract Sum. If Contractor believes that a minor change in the Work directed by Architect involves additional cost or time, it is to advise Architect in writing within 24 hours of receipt of the change authorization so that Architect may consult with Owner and determine whether to proceed with the change authorization. § 3.6.5.4 It is anticipated that some Change Orders and Construction Change Directives will be required, and Architect's services in connection therewith are included in Architect's Basic Services; provided, however, such Change Orders and Construction Change Directives, if Owner initiated, are not excessive in number or substantial in scope or dollar amount. Add the following two sentences to the end of § 3.6.6.2: Architect shall attend the final inspection of Contractor's Work and prepare a list of any deficiencies in Contractor's Work observed during the final inspection (the "Punchlist"). Prior to issuance of the Punchlist to Contractor, Architect shall review it with Owner and Owner's Representative and make any modifications thereto as necessary. Add the following additional terms: § 3.6.6.6 Architect shall assist Owner in securing all Project closeout requirements and documentation for the Project from Contractor and Subcontractors, shall review and submit to the Owner, for the Owner's review and records, all written warranties, O&M Manuals and related closeout documentation required by the Contract Documents that have been secured from Contractor and Subcontractors and assembled by Contractor, and shall issue, if requested by Owner and upon Owner's approval, a final Certificate of Payment upon compliance with the requirements of the Contract Documents. § 3.6.6.7 If requested by Owner, and in coordination with Owner, Architect shall, as an Additional Service for a mutually agreed fee adjustment under Article 4, provide architectural services necessary to assist Owner in taking action because of the default of any Contractor, Subcontractor, supplier, their agents or employees, or any other persons performing the Work, because of major defects or deficiencies in their work, or by their failure of performance. Architect's recommendations on claims, disputes or other matters, including those in question between Owner and Contractor or Subcontractors, except for those relating to aesthetic effect, shall be advisory in nature and not binding upon the Owner. 12 Approved by GSB § 3.6.6.8 Within sixty (60) days of Substantial Completion, Architect shall be provided the "as -built" drawings, in the form of marked -up drawings maintained by Contractor and Subcontractors, showing significant or material changes or deviations from the Contract Documents made during construction. Architect shall compile a set of Record Drawings, incorporating the "as -built" information from the "as - built" drawings provided to it. Architect shall review the "as -built" drawings and shall notify Owner, in writing, should it observe any code compliance issues in the "as -built" drawings as compared to the Contract Documents or Architect's observation of the Work. The "as -built" drawings contain information provided by other parties not independently verified by Architect. Architect shall be entitled to assume said information to be reliable and to accurately reflect the actual, as built conditions of the Work so depicted and shall not warrant the accuracy and/or completeness of such unverified information. Architect's review of the "as -built" drawings shall not relieve Contractor and Subcontractors from their obligations to perform the work in accordance with the Contract Documents. § 3.6.6.9 Architect shall provide Owner with three (3) complete printed sets of Record Drawings, based on marked -up drawings submitted by the Contractor, and a CAD disk of such Record Drawings of the Project, and, if requested by Owner, an electronic set of such Record Drawings of the Project, which shall include instructions, technical bulletins and any other printed matter, such as diagrams, prints or drawings, containing full information required for the proper operation, maintenance and repair of the equipment installed and the ordering of spare parts, except for equipment that may be furnished by Owner. § 3.6.6.10 Architect shall furnish to Owner on Architect's letterhead, a signed and dated statement that Architect, to the best of its knowledge and belief, stating that (a) no asbestos -containing material ("ACM") was specified as a building material in quantities greater than that allowed by applicable law and regulations in any Construction or Contract Document for the Project, and (b) no product containing mineral fibers in quantities greater than that allowed by applicable law and regulations was specified as a building material in any Construction or Contract Document for the Project. In addition to this statement, Architect shall submit to Owner any manufacturer's certification requested or on file with Architect that states that manufacturer's furnished materials or products are not ACM. Compliance with this provision shall be a condition precedent to release of retainage by Owner to Architect. ARTICLE 4 ADDITIONAL SERVICES Modify § 4.1.15 to show "Architect". Delete § 4.3.2 and replace it with the following: § 4.3.2 Upon recognizing the need to perform Additional Services, Architect shall notify Owner with reasonable promptness and explain the facts and circumstances giving rise to the need. Architect shall not proceed to provide Additional Services, including the following services, unless and until Architect receives Owner's written authorization: .1 Providing services relative to future facilities, systems and equipment which are not intended to be constructed during the Construction Phase. .2 Providing services to investigate existing conditions or facilities or to make measured drawings thereof, or to verify the accuracy of drawings or other information furnished by Owner. .3 Providing services necessitated by Owner's request for extensive environmentally responsive design alternatives, such as unique system designs, in-depth material research, energy modeling, or LEEDO certification, unless specified as part of Basic Services. 13 Approved by GSB .4 Making revisions in plans, specifications or other documents, subject to § 15.11.1, when such revisions are inconsistent with written approvals or instructions previously given, or required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or are due to other causes not within the control of Architect. .5 Providing consultation concerning replacement of any Work damaged by fire or other cause during construction and furnishing services as may be required in connection with the replacement of such Work. .6 Providing extensive assistance in the utilization of any equipment or system such as initial start-up or testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance, and consultation during operation. Initial start-up is the responsibility of Contractor; however, Architect shall advise and consult with Owner in accordance with the Contract Documents. .7 Providing special surveys, traffic studies, environmental studies and submissions to those having jurisdiction over the Project in order to obtain historical preservation certifications and certificates of appropriateness. .S Providing assistance to the Initial Decision Maker, if other than the Architect. .4 Preparing to serve or serving as an expert witness in connection with any public hearing, arbitration proceeding or legal proceeding. .10 Providing services of consultants other than those normal to providing the architectural, structural engineering, mechanical, electrical and plumbing, civil and geotechnical, interiors and food service design services for the Project. .11 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. Delete § 4.3.4 and replace it with the following: § 4.3.4 While the Architect shall provide for 22 site visits under §4.3.3 as part of the Architect's Construction Administration Phase Fee, the Architect shall furnish as many site visits as are required to perform its Basic Services. If more than 22 site visits are required, they shall be considered as Additional Services under §4.3.3.2 and compensated accordingly. If Owner requires additional site visits over the 22 site visits already included in Architect's Construction Administration Phase Fee, and Architect considers these to be unreasonable or unnecessary, then Architect shall advise Owner in writing before undertaking such additional site visits and propose to Owner an adjustment in the amount of compensation to be paid to Architect for such increased costs. If after receiving such information from Architect, Owner determines to still require the site visits, then Owner shall so advise Architect, and Owner and Architect shall mutually agree upon such adjustment in compensation. Add a new § 4.3.5 as follows: § 4.3.5 If the Basic Services covered by this Agreement have not been completed within four (4) months of the date of anticipated Substantial Completion of the Project as set forth in § 1.2 and in § 3.1.3, through no fault of Architect, and Architect continues to incur time and costs in performing its Basic Services beyond what it reasonably had agreed originally for the remaining services, then extension of Architect's 14 Approved by GSB Basic Services beyond that time shall be compensated as Additional Services; provided, however, that Architect shall notify Owner in writing with reasonable promptness and explain the facts and circumstances giving rise to the need. In no event shall Architect be obligated to maintain a field office, field representatives or office personnel assigned to the project beyond the agreed time period for which compensation was paid unless compensated as Additional Services. ARTICLE 5 OWNER'S RESPONSIBILITIES Add to the end of §5.2 the following: ..., as necessary, and shall determine whether an adjustment in the fee to be paid to Architect is fair and reasonable. Add the following to the end of § 5.3: Owner shall designate its representative authorized to act on Owner's behalf with respect to the Project ("Designated Representative"). Owner's Designated Representative shall examine the documents submitted by Architect and shall render decisions and approvals in a timely manner on which Architect may rely. Owner Designated Representative may be changed and Owner may modify the scope of authority of the Owner Designated Representative. Written notice to Architect shall be furnished in the event of such change or modification. Add the following to the end of § 5.9: However, nothing in this Agreement shall be construed so as to require Owner to determine the adequacy, accuracy or sufficiency of the Design, the Construction Documents or Architect's Services. Add the following additional terms: § 5.13 Owner shall endeavor to furnish its required information and services and shall render approvals and decisions to facilitate in a timely manner so as to help maintain and to avoid unreasonable delay in the progress of the Architect's services. If unexcused delay in the progress of Architect's services occurs, and Architect incurs costs and expenses caused by such delay, Architect shall be entitled to an equitable fee and expense increase for its actual cost and expense increases caused because of the delay and an extension of time should Owner endeavor but fail to provide services, information and approvals in a timely manner. § 5.14 Owner shall provide or arrange for the following: a. Accept delivery and arrange storage, protection and security for all Owner purchased materials, systems and equipment which are a part of the Work until such items are turned over to Contractor or Subcontractors. b. Maintenance at the Project site, on a current basis, records of all contracts, shop drawings, samples, materials, equipment, applicable handbooks, and other related documents and revisions which arise out of the Contract for Construction. However, this obligation shall not relieve Architect of its obligations with respect to record and document maintenance with respect to the Project as otherwise provided herein. c. Coordination with Architect as to necessary or desirable changes. 15 Approved by GSB ARTICLE 6 COST OF THE WORK Delete the second sentence of § 6.7 Add the following additional terms: § 6.8 No fixed limit of Construction Cost shall be established as a condition of this Agreement. § 6.9 If negligent errors or omissions in the Project are detected in the drawings, specifications or other documents prepared by Architect before the Work is in place, the cost of Architect's redesign required to correct such errors or omissions shall be borne by Architect at no cost to Owner; provided, however, such redesign services and costs are not intended and shall not be construed, to limit, restrict, or waive in any way any other rights, duties, or remedies which either Owner or Architect may have in connection with such errors or omissions and any claims, costs, or damages arising there from. § 6.10 In the event a negligent error or omission by Architect occurs while Contractor's Work is in progress, as soon as Architect becomes aware of such error or omission or is notified of such error or omission, Architect shall immediately notify Owner of any such error or omission, and any resulting increase in the Construction Cost. If there is an increase in the Construction Cost to Owner, then such cost shall be broken down by Architect into two categories: (a) value received by Owner (i.e., the cost for performing the same Work entailed by the error or omission had that Work been required originally by the Contract Documents and no error or omission had occurred); and (b) the cost directly attributable to correcting the error or omission at the point in time in the construction of the Project at which it occurs, including any delay or impact costs (i.e., the balance of the Construction Cost increase over and above the value received by Owner). Such notification is not intended and shall not be construed, to limit, restrict or waive any rights, duties or remedies which either Owner or Architect may have in connection with such errors or omissions and any claims, costs, or damages arising there from, provided, however, that Owner and Architect still shall have an obligation to mitigate their damages. ARTICLE 7 COPYRIGHTS AND LICENSES Delete § 7.2 through § 7.4 and replace them with the following: § 7.2 Instruments of Service are representations, in any medium of expression now known or later developed, of the tangible and intangible creative work performed by the Architect and consultants under their respective agreements. Instruments of Service may include, without limitation, studies, surveys, models, sketches, drawings, specifications, digital models and other similar materials. All studies, reports, plans, investigations, design, system and engineering analyses, calculations and assumptions serving as the basis of the work product, data, information and other documents, including those in electronic form, prepared, provided or procured by Architect, consultants and any other person or entity providing services for any of them during the course of performing the Services under this Agreement are Instruments of Service. § 7.3 All Instruments of Service, including the Deliverables, shall be and become the property of Owner upon the time of delivery of the applicable work or services but not prior to payment for the applicable services, whether the Project is completed or not; accordingly, such materials may be used by Owner for information and reference and in connection with Owner's use of the end product or Instruments of Service for the Owner's operational activities and occupancy of the Project; provided, however, Owner's reliance upon and use of any incomplete data, information and other documents shall be the sole risk of Owner, provided that Architect identifies and discloses to Owner in writing such incomplete data, information and other documents or if such documents, normally to be stamped and sealed if complete, are not stamped and sealed by Architect. Architect shall have no liability to Owner arising from Owner's use of such incomplete data, information and 16 Approved by GSB _1121 other documents identified and disclosed by Architect to Owner. It is understood that Architect, consultants and any other person or entity providing services or work for any of them, shall retain all of their pre-existing know-how and pre-existing intellectual property not related to or created for the Services under this Agreement as well as their Retained Rights in the Instruments of Service and the Deliverables. Architect and Architect's consultants shall have, as Retained Rights, a worldwide, perpetual, paid up, and royalty free license to utilize the Intellectual Property embodied in the Deliverables and Instruments of Service, including without limitation, (i) the right to make derivative works, (ii) perform services for others, and (iii) employ accretions to Architect's and Architect's consultants' experience, skill, and expertise as a consequence of the Intellectual Property. § 7.4 If this Contract is terminated under the provisions of Article 9 of this Contract, Owner shall upon payment of sums owed Architect have the right to use the Instruments of Service to complete the Project upon termination of this Contract by Owner and notification thereof to Architect as provided in § 10.21. § 7.5 Drawings, specifications and other Instruments of Service, including those in electronic form, related to the Project, shall not be used by Owner on any unrelated project, or sold or conveyed to a third party for use on another project, except by the prior written consent of Architect, which consent shall not be unreasonably withheld. Architect and Architect, Consultants, Contractors, and any other person or entity providing services or work for any of them, shall have no liability to Owner arising from Owner's use or alteration of the instruments of Service on any unrelated project. § 7.6 Architect shall not utilize, publish or advertise the name, images or descriptions of the Project, including the Owner name or likeness, photographic or artistic representations of the design of the Project, as well as any unique or distinctive engineering or architectural components of the Design, Drawings or Specifications for the Project, or any other Owner confidential or proprietary information, in any promotional and marketing materials, without first obtaining the written consent of Owner, which consent shall not be unreasonably withheld. Prior to publishing and/or releasing any promotional or professional material, Architect shall submit for Owner's review and approval such material, Architect's materials shall not include the cost of construction, cost of design, or any other information Owner has previously advised Architect in writing not to be disclosed. Owner shall provide professional credit for Architect in Owner's promotional materials for the Project, where Owner deems it appropriate. Any public information about the Project can be used without Owner's written approval. § 7.7 Patents, Copyrights and Infringement Claims. § 7.7.1 All inventions, ideas, designs and methods, subject to Architect's Retained Rights, contained in the Deliverables and Construction Documents in which Owner has, or acquires patent, copyright or other intellectual property rights ("Intellectual Property") shall remain reserved for the exclusive use of Owner and may not be utilized, reproduced or distributed by or on behalf of Architect, or any employee, consultant or agent of Architect without the prior written consent of Owner except to the extent necessarily required in connection with performance of the Architect Services. Architect shall have, as Retained Rights, a worldwide, perpetual, paid up, and royalty free license to utilize the Intellectual Property, including without limitation, (i) the right to make derivative works, (ii) perform services for others, and (iii) employ accretions to Architect's experience, skill, and expertise as a consequence of the Intellectual Property. § 7.7.2 If, pursuant to performance of the Architect Services, Architect or any of its agents, officers, employees or consultants shall produce any patentable or copyrightable subject matter as to which Owner does not gain ownership rights, Owner shall thereupon have, without cost or expense, an irrevocable, non- exclusive, royalty -free license to make, have made or use, either itself or by another contractor or other party on its behalf, such subject matter in connection with any work or any activity now or hereafter undertaken by or on behalf of Owner. The license herein granted shall not be transferable and shall not extend to contractors or other parties except to the extent of their work or activity on behalf of Owner. 17 Approved by GSB Za V § 7.7.3 Except to the extent that rights are held by Architect or others under existing valid patents or copyrights and are not given to Owner, Owner shall have the right to use or permit the use of all such Deliverables and Construction Documents, and also any oral information of any nature whatsoever received by Owner, and any ideas or methods represented by such Intellectual Property, for any purposes and at any time without other compensation than that specifically provided herein, and no such Intellectual Property shall be deemed to have been given in confidence and any statement or legend to the contrary on any of said Deliverables and Construction Documents shall be void and of no effect. § 7.7.4 The Architect and the Owner warrant in transmitting Instruments of Service, or any other information, that the transmitting party has performed due diligence to verify that it is the copyright owner of such infonmation or has permission from the copyright owner to transmit such information for its use on the Project. § 7.7.4 INTENTIONALLY DELETED § 7.7.5 INTENTIONALLY DELETED § 7.7.6 INTENTIONALLY DELETED § 7.8 Document Preparation and Transmission. All Instruments of Service, Deliverables and Construction Documents shall be prepared, assembled, and transmitted to Owner in strict accordance with Owner's drawing file standards, if any, as identified by Owner. If drawing file standards are not provided by Owner, then Architect shall provide them in accordance with Architect's drawing file standards. The Architect agrees that no other form of preparation or transmission of Instruments of Service, Deliverables and Construction Documents is acceptable, except that Architect also shall provide to Owner five (5) sets of printed plans and specifications prior to the commencement of the Construction Phase of the Project. § 7.8.1 Architect shall provide Owner with the number of required complete printed sets of the Construction Document Records, a CAD disk of such Construction Document Records and, if required by Owner, an electronic set of such Record Drawings of the Project. § 7.8.2 Consistent with the provisions and terms above, and except as may be provided otherwise therein, Owner agrees not to reuse these electronic files, in whole or in part, for any purpose other than for the Project. Owner further agrees to waive all claims against Architect resulting in any way from any unauthorized changes to or reuse of the electronic files for any other project by anyone other than Architect. Owner is also aware that differences may exist between the electronic files delivered and the printed hard - copy Construction Documents. In the event of a conflict between the printed hard -copy signed Instruments of Service, Deliverables and Construction Documents prepared by Architect and electronic files, the signed or sealed hard -copy Instruments of Service, Deliverables and Construction Documents shall govern. ARTICLE 8 CLAIMS AND DISPUTES Delete § 8.1 through § 8.1.3 and replace them with the following terms: § 8.1 GENERAL § 8.1.1 Owner and Architect are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, Owner and Architect each commit to resolving such disputes or disagreements in an amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work. 18 Approved by GSB § 8.1.2 Owner and Architect will first attempt to resolve disputes or disagreements through discussions between their Authorized Representatives as designated herein. If a dispute or disagreement cannot be resolved through discussions between the Owner's and Architect's Authorized Representatives, upon the request of either party, principals of Owner and Architect shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to resolve such dispute or disagreement. Prior to any meetings between the principals of Owner and Architect, the parties will exchange relevant information that will assist the parties in resolving their dispute or disagreement. If after meeting the parties' principals determine that the dispute or disagreement cannot be resolved on terms satisfactory to both parties, the parties shall submit the dispute or disagreement to non binding mediation as set forth hereinafter in § 8.2. § 8.1.3 Owner and Architect shall commence all claims and causes of action, whether in contract, tort, or otherwise, against the other arising out of or related to this Agreement within the period specified by applicable law, but if not otherwise specified by applicable law, within not more than ten (10) years after the date of Substantial Completion of the Work. Modify § 8.2.2 by adding the following: § 8.2.2.1 The Parries, in good faith, shall attempt to agree upon a mediator. If the Parties cannot so agree within ten (10) business days of the other Parry's receipt of the request for mediation, the Parries shall jointly petition the Circuit Court of the County in which the Project is located to provide a list of five (5) mediators from which the parties shall strike. The Parties shall strike within five (5) business days of receipt of the list of mediators with the Party that requested mediation striking first. The individual remaining at the conclusion of the striking process shall serve as mediator, unless the Parries agree otherwise on a mediator. The parties shall share the mediator's fee and any filing fees equally. Delete § 8.3 in its entirety insofar as Arbitration is intentionally omitted. Delete § 8.3.4 in its entirety and replace it with the following terms: § 8.3A CONSOLIDATION OR JOINDER § 8.3.4.1 Any claims, disputes or controversies between the parties arising out of or relating to this Agreement which are to be resolved through litigation under § 8.4, shall be decided by an Indiana court of law, and by trial to the bench. Trial by jury is expressly waived by Owner and Architect. § 8.3.4.2 Any litigation arising out of or relating to this Agreement may include, by consolidation, joinder or in any other manner, an additional person or entity not a party to this Agreement as a party to the Iitigation provided that the claims and issues being litigated relate to or involve such additional person or party. The foregoing agreement to litigate and other agreements to litigate with an additional person or entity shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof. Add the following additional terms: § 8.4 LITIGATION OF CLAIMS § 8.4.1 All Claims not resolved by mediation shall be subject to litigation in any court having jurisdiction. § 8.4.2 For any litigation undertaken pursuant to this § 8.4, the forum and venue for such proceedings shall be either in the state courts of Hamilton County where the Project is located or in the United States District Court for the Southern District of Indiana, and any hearing or conference shall take place in that locale. 19 Approved by GSB § 8.4.3 The litigation proceedings, and all claims, disputes and other matters in controversy arising out of or related to the Agreement, or the performance or breach thereof, shall be governed by the laws of the State of Indiana. § 8.4.4 The parties hereto consent to the choice of law, the choice of dispute resolution, venue as provided herein, and to personal jurisdiction over them as provided herein, and waive any right to object to the exercise of personal jurisdiction by the designated tribunals and to exclusive venue in these locales. The parties waive the right to a jury trial and agree to trial before the bench. § 8.4.5 No dispute under this Article 8 shall interfere with the progress of the Architect's Services, and Architect shall proceed with furnishing its Services, including disputed performance, despite the existence of, and without awaiting the resolution of, any such dispute. The failure or refusal of Architect to continue performing under such circumstances shall constitute a default under the Contract as provided in Article 9 hereof. § 8.4.6 INTENTIONALLY DELETED ARTICLE 9 TERMINATION OR SUSPENSION Delete § 9.1 through § 9.8 in their entirety and replace them with the following: § 9.1 Termination for Cause. This Agreement may be terminated for cause by either party should the other party fail substantially to perform in accordance with its terms through no fault of the party initiating the termination. Such termination for cause shall be upon fifteen (15) days prior written notice by Owner if it is Owner terminating the Agreement and upon thirty (30) days prior written notice by Architect if it is Architect terminating the Agreement. If Architect seeks to terminate for cause hereunder, it shall provide to Owner in its written notice Architect's specific reasons or grounds for its intended termination, with supporting factual details and with specific reference to the express terms and conditions of this Agreement which Architect contends Owner has failed to perform, and shall state with specificity the means by which Owner may cure the alleged grounds for default. This right to termination shall be in addition to, and not in lieu of, all other rights and remedies which the non -defaulting party may have by law or as otherwise provided in this Agreement, such rights and remedies being cumulative and none being exclusive of any other, and the defaulting party's liability shall survive such termination. No delay or forbearance by the non -defaulting party in exercising such termination or in enforcing any other rights and remedies hereunder shall constitute a waiver thereof in any instance. § 9.2 Termination Due to Project Abandonment or Suspension. This Agreement may be terminated by Owner upon at least ten (10) days written notice to the Architect in the event that the Project is temporarily or permanently abandoned, suspended or discontinued, whether by decision or action of governmental authority or unilateral decision by Owner. If the Project is resumed, Architect shall be compensated for expenses incurred in the interruption and the reasonable cost and expenses for resumption of Architect's services. § 9.3 Termination for Convenience. This Agreement may be terminated by Owner in whole or in part without cause and for its convenience upon fifteen (15) days prior written notice by Owner to Architect. In the event of such termination for convenience, Architect shall be compensated for all services performed to the date of such termination, together with Reimbursable Expenses for which Architect is not otherwise compensated, and any termination expense that is directly attributable to termination for which Architect is not otherwise compensated, subject to the Iimitations upon compensation and expenses as provided herein. Such entitlement of Architect shall constitute Architect's sole and exclusive remedy and recovery and in no 20 Approved by GSB event shall Architect be entitled to recover anticipated profits on unperformed services, overhead, or other additional sums or consequential damages by reason of such termination for convenience. § 9.4 Termination Conversion. If termination of this Agreement is effectuated by Owner under § 9.1 and it is subsequently found or determined in legal proceedings that Architect was not in substantial breach of this Agreement by failure to perform in accordance with its terms, or that such failure was caused through the fault of Owner, or that such termination was not otherwise proper, then such termination shall be deemed to be a termination for convenience pursuant to § 9.3 and Architect's remedy and recovery as against Owner shall, in such case, be limited to the payments provided by such in § 9.3; provided, however, Architect also shall be entitled to 25% of its provable anticipated profits and overhead on the unperformed services up to an amount not to exceed $25,000.00. § 9.5 In the event of termination of this Agreement or upon request by Owner, and provided Architect is paid for services performed to date to which it is entitled, Architect shall deliver to Owner within ten (10) days thereof all of the Instruments of Services, Deliverables and Construction Documents, including in electronic format, not previously delivered to Owner during the course of the performance of the Design Services. Upon receipt of notice of a termination for default or for Owner's convenience, Architect shall: (1) promptly discontinue all the Services affected, unless the termination notice expressly directs otherwise; (2) deliver or otherwise make available to Owner the Instruments of Services, Deliverables and Construction Documents and such other information, materials or documents as may have been accumulated by Architect in performing this Agreement, whether completed or in process; and (3) assign upon the request by Owner those requested consultant agreements between Architect and its consultants performing any of the Services, in accordance with the provisions of § I0.3.1 hereof. § 9.6 For any written notice required under this Article, such notice shall be sent by certified mail, by hand delivery or by overnight courier service (Federal Express or equivalent) to the other party hereto in accordance with the provisions of § 10.21 hereof. § 9.7 Attorney Fees. The prevailing party in any litigation, or any other final, binding dispute proceeding upon which the parties may agree, shall be entitled to recover from the other party reasonable attorneys' fees and expenses incurred by the prevailing party, including fees and expenses incurred in any appeal. § 9.8 The Owner's rights to use the Architect's Instruments of Service in the event of a termination of this Agreement are set forth in Article 7. ARTICLE 10 MISCELLANEOUS PROVISIONS Delete § 10.5, § 10.7 and § 10.8 in their entirety. Add the following additional terms: § 10.3.1 Pursuant to Article 9, should this Agreement be terminated by Owner for any reason, Owner shall have the right to have Architect's Consultant Agreements assigned to it, and upon Owner's request to Architect, Architect shall assign such Consultant Agreements to Owner. Copies of Architect's Consultant Agreements shall be furnished to Owner within thirty (30) days from the date of execution of this Agreement. The assignment of Architect's Consultant Agreements to Owner shall not obligate Owner to pay for any services provided under any of the Consultant Agreements to Architect prior to the date of such assignments and their acceptance by Owner, Owner's payment obligations to any Consultant being limited to payment for services that may be provided to Owner thereafter by that Consultant. 21 Approved by GSB § 10.5 No Third Party Beneficiary Rights. Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either Owner or Architect. There are no intended present or future third party beneficiaries under this Agreement, any and all rights and remedies hereunder being exclusively for the benefit of the parties hereto. Architect's services under this Agreement are being performed solely for Owner's benefit, and no other entity shall have any claim against Owner or Architect because of this Agreement or the performance or non-performance of Architect's services hereunder. Owner shall endeavor to make all parties doing work, performing services, or supplying materials for the Project aware of the foregoing provision by including it in the Project General Conditions. § 10.6.1 Hazardous Wastes. If Architect observes or otherwise acquires actual knowledge of any hazardous materials or toxic substances on the Project site, prompt written notice thereof shall be given by Architect to Owner. It is expressly agreed that Architect's scope of services and duties under this Agreement shall not include duties of inquiry, discovery, identification, remediation, handling, transportation, storage or removal of hazardous materials or toxic substances on or around the Project or the control of or supervision over the operations of others, whether such materials were pre-existing on the project site or introduced by the operations of others on the Project. § 10.8 Confidential Information. During the course of performing the Services hereunder, Architect may be given access to information that relates to Owner's past, present and future research, development, business activities, products, work and technical knowledge that is considered by Owner as confidential ("Confidential Information"). Confidential Information also includes derivatives and enhancements to preexisting Confidential Information. For these reasons, Architect agrees that all Confidential Information disclosed to or discovered by Architect in the course of the performance of the Agreement shall be considered confidential and protected information, and that Architect shall not disclose such information to a third party unless: (1) such disclosure is necessary in the performance of the Services, (2) Architect obtains Owner's prior written consent to such disclosure, or (3) as may be required by laws and/or regulations; provided, however, Confidential Information shall not include information (a) independently developed by Architect without use of Confidential Information; (b) separately acquired by Architect from a third party that is not under an obligation of confidence with respect to such information; or (c) that is or becomes publicly known through no breach of the Agreement. § 10.8.1 Architect acknowledges the economic value of Owner's Confidential Information. Architect shall (a) use the Confidential Information only in connection with this Agreement and the Architect Services and for no other purpose; (b) restrict disclosure of the Confidential Information to only those employees and contractors of Architect and its affiliates with a "need -to -know" and not disclose it to any other person or entity, including any regulatory agencies, without the prior written consent of Owner; (c) advise those employees, Consultants or contractors who access the Confidential Information of their obligations with respect thereto and, prior to disclosure to Consultants and contractors, have entered into non -disclosure agreements with such Consultants and contractors having obligations of confidentiality as strict as those contained in this Agreement; and (d) copy the Confidential Information only as necessary for those employees, Consultants or contractors who are entitled to receive it. A "need -to -know" means that the employee, Consultant or contractor requires the Confidential Information to perform their responsibilities in connection with this Agreement and the Architect Services. Architect shall be responsible for any disclosure of Confidential Information by its employees or contractors. § 10.8.2 Architect agrees that an impending or existing violation of § 10.8 and § 10.8.1 of this Agreement may cause Owner irreparable injury for which it would have no adequate remedy at law, and agree that Owner shall be entitled to obtain immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it. 2? Approved by GSB § 10.9 Statute of Limitations. As between the parties of this Agreement, as to all acts or failures to act by either party to this Agreement, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have occurred in any and all events no later than the Date of Substantial Completion of the Work or as provided by current law unless and except as provided otherwise by applicable statute. § 10.10 Precedence. In the event of a conflict among the Contract Documents or within the language of this Agreement, typed language, terms and conditions shall take precedence over printed language, terms and conditions. § 10.11 Severability. Every provision of the Agreement is intended to be severable such that, if any term or provision hereof is illegal or invalid for any reason whatsoever, such provision shall be severed from the Agreement and shall not affect the validity of the remainder of the Agreement. § 10.12 Indemnity. To the fullest extent permitted by law, Architect shall indemnify, hold harmless and defend Owner, and all of its officers, directors, and employees ("Indemnitees"), from and against all third party claims, suits, demands, causes of action, damages, losses, costs and expenses, including reasonable attorney's and consultant's fees and expenses recoverable under applicable law, but only to the extent caused by Architect's negligent performance of professional services under this Agreement, or caused by any breach or nonperformance of its terms, provided that any such claim, suit, demand, cause of action, damage, loss, cost, fees or expense ("Claims"): (a) is attributable to bodily injury, sickness, disease or death, or injury to or destruction of tangible or real property (other than to the Work itself), including the loss of use thereof and consequential damages resulting therefrom, or is attributable to damages from economic harm or loss; and (b) is caused by any negligent act or omission in the preparation of design, plans, drawings and/or specifications or performance of other professional services, unlawful act, or other breach of duty of Architect or anyone directly or indirectly employed by it or anyone for whose acts it may be liable. The Architect shall not have an upfront duty to defend with respect to Claims that arise out of Architect's professional services but shall reimburse reasonably incurred defense fees and costs to the extent Claims are determined to have been caused by the negligence of Architect or as the Owner and Architect otherwise agree in settlement. Furthermore, nothing in § 10.12 or otherwise in this Agreement shall cause Architect to indemnify or have liability for the acts, error;, omissions or operations of any Indemnitee or any person for whom Architect is not legally liable. § 10.12.1 Without limiting the generality of the foregoing and in addition thereto, but in no case or event to an extent greater than Architect's legal liability for Architect's negligent acts, errors and omissions or other breach of duty of Architect and those for whom Architect is liable, the indemnification, hold harmless duties and obligations of Architect under § 10.12 shall apply to any claims, suits, demands, causes of action brought by Architect's employees, consultants or a person claiming through Architect for damages, losses, costs and expenses, including attorney's and consultant's fees and court costs of whatsoever kind, nature and type recoverable under applicable law, and to the claims of whatsoever kind, nature and type of any other consultant, contractor, subcontractor, material supplier or third party, or its employees, against Owner or any other party indemnified hereunder. § 10.12.2 In any and all claims against Owner or any of its officers, directors, agents or employees, by any employee of Architect or anyone directly or indirectly employed by Architect, or anyone for whose acts Architect may be liable, the indemnification obligations under § 10.12 and § 10.12.1 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Architect under worker's compensation acts, disability benefit acts or other employee benefit acts. 23 Approved by GSB § 10.13 Mutual Right to Attorney Fees. INTENTIONALLY DELETED. § 10.14 Owner Authorization. No services to be provided by Architect under any phase of Basic Services as defined herein shall be undertaken by Architect unless and until Owner issues written authorization for Architect to proceed with the services in that phase. § 10.15 Independent Contractor Status. Architect agrees that it is, or prior to the start of the performance of the Architect Services hereunder will become, an independent contractor and an employing unit subject as an employer to all applicable unemployment compensation statutes so as to relieve Owner of any responsibility or liability for treating Architect's employees as employees of Owner for the purpose of keeping records, making reports and payment of unemployment compensation taxes or contributions. § 10.16 Architect's Consultants. Owner shall enjoy the same benefits and rights as to Architect's Consultants as Architect enjoys with respect to its Consultants. Such Consultants shall owe the same duties and obligations to Owner as they do to Architect. Architect's Consultants shall have the same benefits and rights as to Owner as Owner enjoys with respect to Architect. § 10.17 No Agency Relationship. Nothing set forth and contained in this Agreement creates an agency relationship by and between Owner and Architect whereby Architect has actual, implied or apparent authority, rights, duties or powers to act for or on behalf of Owner, or otherwise to bind or commit Owner to any third party, without the express, prior written approval and notice from Owner to such third party. § 10.18 Waiver of Consequential Damages. INTENTIONALLY DELETED § 10.19 Waiver. No action or failure to act by Owner shall constitute a waiver of any right or duty afforded Owner under the Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach hereunder, except as may be specifically agreed in writing. Owner's right to require strict performance of the Agreement shall not be affected by any previous waiver or course of dealings. Permitting Architect to continue after the date of scheduled completion shall not be construed as a waiver of any such claim or damages or increased costs due to delays. § 10.20 Publicity. All publicity, press releases and other announcements relating to the Agreement or the Design Services being provided hereunder will be reviewed in advance by and subject to the approval of Owner. Without the prior written consent of Owner, Architect shall not, and shall cause its employees and consultants not to, make any statements that are based on knowledge gained as a result of performing the Design Services. § 10.21 Written Notice. Whenever written notice is required to be sent under the Contract, such notice shall be deemed to have been duly served if (a) delivered in person to the designated representative or corporate officer of the party, (b) delivered at or sent to such designated representative or corporate officer by registered or certified mail, or (c) delivered by a reputable delivery service, to the address set forth below or such other address as Owner or Architect may designate for itself in accordance with this Paragraph: Owner: Cannel Redevelopment Commission 30 West Main Street, Suite 220 Carmel, Indiana 46032 Attention: Come Meyer, Director 24 Approved by GSB 21 Copies to: Michael F. Drewry and Douglas C. Haney Drewry Simmons Vornehm, LLP Carmel City Attorney 736 Hanover Place, Suite 200 One Civic Square Carmel, Indiana 46032 Carmel, Indiana 46032 Architect: GSB, Inc. 3555 NW 58'b Street, Suite 70OW Oklahoma City, OK 73112 Attention: Ronald G. Smith, President/CEO § 10.22 Non -Discrimination. Architect shall comply with all federal, state, and municipal and local rules, ordinances, rules, regulations, orders, notices and requirements relating to non-discrimination in employment, fair employment practices, and equal employment opportunity, whether or not provided elsewhere in the Agreement without additional charge or expense to Owner, and shall be responsible for and correct, at its own cost and expense, any violations thereof resulting from or in connection with the performance of the Architecting Services hereunder. § 10.22.1 Architect and its consultants shall, in all solicitations or advertisements for employees placed by them or on their behalf, state all qualified applicants will receive consideration for employment without regard to race, religion, color, sex, pregnancy, national origin, ancestry, age, disability, genetic information, veteran status, or any other characteristic or status protected by law. In the hiring of employees for the performance of work under the Agreement or any consultant agreement hereunder, neither Architect, its consultants, nor any person acting on behalf of Architect or its consultants, shall by reason of race, religion, color, sex, pregnancy, national origin, ancestry, age, disability, genetic information, veteran status, or any other characteristic or status protected by law discriminate against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates. § 10.23 E-Verify Compliance. As required by Indiana Code § 22-5-1.7, Architect agrees that it shall enroll in and verify the work eligibility status of all newly hired employees of Architect through the E-Verify Program ("Program") as defined in Indiana Code § 22-5-1.7-3, unless the Program no longer exists. Additionally, et seq. § 10.24 Drug Free Work Site. Architect and its employees shall comply with all provisions of the Drug Free Workplace Act of 1988 as amended. The unlawful manufacture, distribution, dispensation, possession or use of a controlled substance in the workplace is prohibited. Architect is responsible for the development implementation, administration and enforcement of a formal substance abuse policy ("Substance Abuse Policy") and drug testing plan, which, as, a minimum, meets the standards set forth by the Owner and Indiana Code § 5-16-13 et seq. § 10.25 Compliance with Indiana Public Procurement Laws. This Project and Agreement is subject to the requirements of Indiana Code § 5-16-13 et seq., which are incorporated by reference as if fully restated herein, and Architect shall comply with all applicable requirements set forth therein. 25 Approved by GSB _ ;& § 10.26 Conflict of Interest. Prior to entering into this Agreement Architect has conducted all requisite due diligence to investigate and confirm that neither Architect nor its intended consultants have an existing conflict of interest with Owner and that by entering into this Agreement or any consultant agreements no conflict of interest with Owner shall be created. Architect shall exercise all requisite care and due diligence to prevent any actions or conditions that may result in a conflict with Owner's best interest. A conflict of interest shall mean any interest, relationship, transaction or other matter that conflicts, or could conflict, with the best interests of Owner. A conflict of interest shall include, but is in no way limited to, where Architect recommends, suggests or in any way encourages Owner to enter into an agreement or any type of business arrangement with a firm or company in which Architect, or its employee or agent, or a family member of its employee or agent, has a pecuniary interest. In the event Architect discovers or becomes aware of a conflict of interest, Architect shall immediately disclose to Owner in writing the conflict of interest including, but in no way limited to, prior to Architect making any recommendation, suggestion or otherwise encouraging Owner to enter into an agreement or any type of business arrangement with a firm or company in which Architect, or its employee or agent, or a family member of its employee or agent, has a pecuniary interest. Architect's efforts shall include, but is in no way limited to, continually making itself aware of the firms or companies that Architect's employees or agents, or family members of its employee or agents, have a pecuniary interest in as well as establishing precautions to prevent its employees or agents, or family members of its employee or agents, from making, receiving, providing or offering substantial gifts, extravagant entertainment, payments, loans or other considerations for the purpose of influencing individuals to act contrary to Owner's best interests. § 10.27 No Investment in Iran. As required by Indiana Code § 5-22-16.5, and as a material term of the Agreement, Architect shall certify that, in executing the Agreement, Architect is not engaged in investment activities in Iran. Providing false certification may result in the consequences listed in Indiana Code § 5- 22-16.5-14, including termination of this Agreement, denial of future contracts, as well as an imposition of a civil penalty. § 10.28 Indiana Buy American Steel. Architect agrees to comply with Indiana Code § 5-I6-8 et seq., relating to steel procurement on public works projects in Indiana, which requires that only steel or foundry products made in the United States shall be used or supplied in the performance of the Agreement or any contracts unless the head of the public agency determines, in writing, that the cost of steel or foundry products is considered to be unreasonable or that the steel or foundry products are not produced in sufficient quantities in the United States. Architect shall undertake reasonable efforts and investigation to ensure that it specifies only products and materials in its design so as to be in compliance with this provision. Owner may rely upon the listing or specifying of any products or materials as satisfying such Buy American Steel requirements. § 10.29 Joint Venture. If Architect intends to contract with Owner as a member of a Joint Venture ("W ), a copy of the JV Contract must be submitted for Owner's review and approval prior to being selected by Owner. Owner shall have the right to review the JN Contract terms and conditions, and to require modifications thereto as a condition of Owner approval of the JN and acceptance of the J/V as the Project Architect. The JN Contract thereafter cannot be materially altered or modified during the performance of this Agreement and Architect's duties and obligations thereunder without the prior written consent of Owner. § 10.30 Competing Laws. As between inconsistent provisions among Federal, State and local laws, Architect should generally comply with the more stringent requirement, unless a Federal law, rule or regulation requires that the affected Federal provision be observed, notwithstanding the existence of a more stringent applicable State or local requirement. 26 Approved by GSB § 10.31 Contract Amendments. This Agreement may be amended only by written instrument approved and executed by both Owner and Architect. No verbal modifications or amendments or course of dealings shall be effective or to act as a waiver of this written amendment requirement. § 10.32 Differing Dates of Execution. Notwithstanding differing dates of execution hereof, this Agreement shall be deemed to have been made and entered into on the year and date hereinabove described, and except as otherwise provided for herein with respect to effective dates for specific obligations, shall become binding and effective upon that date. § 10.33 Execution in Counterparts. This Agreement may be executed in counterparts by each party signing a separate signature page which then shall be furnished to the other party hereto. Counterparts executed and distributed by email copy are acceptable and shall be considered as binding and effective as an original signature, and all of which together shall constitute one and the same instrument. ARTICLE 11 COMPENSATION Modify § 11.1 as follows: §11.1 For the Architect's Architectural Services only, including Construction Administration ("CA") Phase fee, under Article 3, the Owner shall compensate the Architect as follows: GSB Architectural Only Fee (excluding CA Phase): $743,006.00 GSB Architectural Only Fee for CA Phase: $207,580.00 Total GSB Architectural Only Fee: $950,586.00 Add the following additional terms: §11.1.1 Architect shall engage the following consultants, approved by Owner, to perform part of the Architect's Basic Services under Article 3: Mechanical, Electrical and Plumbing Systems, Coordination and Design Criteria for Fire Protection System Lighting Design and Construction Administration Services Civil Engineering Services, including the design of the General Site Construction Items Structural Engineering Services Acoustical Consulting Services Culinary Design Services Total Architectural Only Fees for Consultants: Enverity Engineering $174,075.00 Indianapolis, IN Enverity Engineering $ 24,200.00 Indianapolis, IN Enverity Engineering $ 80,000.00 Indianapolis, IN Structurepoint, Inc. Indianapolis, IN $139,920.00 Longman Lindsey $ 39,000.00 New York, NY Ricca Design Studios $ 35,296.00 Greenwood Village, CO $492,491.00 27 Approved by GSB — ;�/ §11.1.2 For the total Architect's Architectural Services only under Article 3, including the CA Phase and the fees of consultants engaged by Architect and approved by Owner, as set forth in § 11.1.1, the Owner shall compensate the Architect as follows: Total Architectural Only Fee, including CA Phase, and Consultant Fees: $1,443,077.00 Modify § 11.5 as follows: Construction Administrative Phase $207,580.00 Total Architectural Only Fee $950,586.00 Add the following additional terns: §11.2.1 The hourly rates of compensation set forth in Exhibit "B", GSB, Inc. Hourly Rate Schedule, include payroll expenses, taxes, insurance, overhead and profit. Overhead costs included in the hourly rates include CAD computer use and plotting for in-house use and review; photocopying for in-house use and review; local telephone charges; and administration of consultant contracts. Overhead costs also include High Resolution Scanner equipment, Legal Services, Engineer Samples, Architect Samples and Insurance Premiums. § 11.2.2 Calculation of the profit markup rate for Architect under this Agreement for any Architect Services that are performed on an hourly basis shall be ten percent (10%) on those portions of the Architect Services performed by Architect with its own workforces and professionals. Portions of the Architect Services performed by Consultants or subcontractors of Architect shall be paid by Owner at the costs paid by Architect with no markup or additional charge for Architect overhead or profit on Consultant and subcontractor services performed. § 11.4.1 Compensation for the consultant's Additional Services shall be mutually agreed upon by Architect and Owner at the time that such services are engaged. Written approval from Owner must be obtained by Architect prior to the performance of the consultant's services.Delete § 11.9 and replace it with the following: § 11.9 If the Owner terminates the Architect for its convenience under § 9.3, or the Architect terminates this Agreement under § 9.2, the amounts to be paid to Architect as compensation are set forth therein, which includes the Owner's continued use of the Instruments of Service. Delete § 11.10.2 and § 11.10.3 and replace them with the following: § 11.10.2 Invoices or statements for services for the monthly Architect's progress payments are to be submitted to Owner by the I" day of the month for services rendered through the end of the preceding month. Owner shall thereafter approve the amount as due, less any adjustments for amounts to be withheld or set-off by Owner pursuant to the terms and conditions of the Agreement, including Owner's right to withhold payment under § l 1.11.1 below, and otherwise shall make payment to Architect within sixty (60) days of the receipt of such invoice and approval for payment by Owner. Owner may only withhold amounts in good faith and shall pay all undisputed amounts within thirty (30) days following the date that such invoice is received by Owner. § 11.10.2.1 Owner shall not pay any interest unless or until payment is due and owing and unpaid in accordance with the terms hereof, in which event, provided Architect is not otherwise in breach or default 28 Approved by GSB of the terms of the Agreement, payments shall bear 'interest at the rate of five percent (5%) per annum from the date payment is otherwise due and owing. In the event Owner is entitled to withhold payments under the Agreement pursuant to § IL 11. 1 below or in the event of a good faith dispute between Owner and Architect, no interest or finance charge shall accrue. § 11.10.2.2 Payments on account of Architect's Additional Services as defined in Article 4 and for Reimbursable Expenses as defined in § 11.8 shall be made monthly upon presentation of Architect's statement of services rendered and expenses incurred, in accordance with the payment provisions set out herein. § 11.10.2.3 Architect's Additional Services and Reimbursable Expenses are to be submitted monthly as part of Architect's statement of services submitted to Owner and paid in accordance with the provisions of § 11.10.2 above. § 11.10.2.4 All invoices are to be addressed to Owner as follows: Carmel Redevelopment Commission 30 West Main Street, Suite 220 Carmel, Indiana 46032 Attention: Corrie Meyer, Director Add the following additional terms after § 11.10.4: § 11.11 Payments Withheld § 1111.1 Owner shall have the right to withhold payment to Architect of such amounts as may be necessary to protect Owner from loss because of the failure or default on the part of Architect to perform in accordance with the terms of this Agreement, including (1) errors or omissions in the Deliverables prepared by Architect caused by the non-conformance with the standard of care set forth in § 2.2 or the failure to perform any duty expressly assumed under this Agreement that are not remedied; (2) third -party claims filed arising from Architect's negligence, provided that Owner is not in breach of its contractual obligations to make payment of undisputed sums to Architect for the Services provided hereunder; (3) failure of Architect to make payments properly to consultants or vendors for the Services provided in this Agreement unless there is a legal or contractual basis or justification for Architect not making such payments or unless such failure is due to Owner's failure to make payments of undisputed sums to Architect; (4) damage to Owner or any contractor engaged by Owner caused by Architect's negligence or the failure to perform any duty expressly assumed under this Agreement; or (5) persistent failure to carry out the Services under this Agreement in accordance with the terms and conditions hereof. § 11.11.21f Owner determines that Architect is not entitled to all or part of an invoice or request for payment as set forth in this Article 11, Owner shall notify Architect in writing of its decision to withhold payment within ten (10) days of receipt of the invoice or request for payment. The notice shall indicate the specific amounts Owner intends to withhold, the reasons and contractual basis for the withholding, and the specific measures Architect must take to rectify the Owner's concerns. If the parties cannot resolve such concerns, Architect may pursue its rights and remedies under this Agreement, including those set forth under Article 8 hereof. This right to withhold shall continue until such time as any claim for such loss has been finally decided or resolved in accordance with the provisions of Article 8 and will be paid within thirty (30) days thereafter. No interest shall accrue on any withheld payment amounts. § 11.11.3 When the reasons for withholding payment, as provided in § 1 l .1.1, are removed, payment will be made for amounts previously withheld. No interest shall accrue on amounts withheld from payment. 29 Approved by GSH -7;;V § 11.12 Final Payment § 11.12.1 No payment to Architect shall operate as an approval of the Architect Services, or any part thereof, or as a release of Architect from any of its obligations under this Agreement. § 11.12.2 Acceptance by Architect of any sum tendered by Owner as final payment shall constitute a waiver of all claims existing and known at the time of final payment, including claims for payment for services performed, by Architect with respect to this Agreement or the Architect Services performed hereunder, except those claims authorized by this Agreement, previously made in writing and submitted in a timely manner, and specifically identified and reserved by Architect as unresolved in the application for final payment. § 11.12.3 Final payment, constituting the entire unpaid balance of the Contract Price, including retainage, shall be paid by Owner to Architect within ninety-one (91) days after it has become due and payable. Final payment to Architect shall not become due and payable until and unless all Services and Work for the Project is fully completed and performed in accordance with the Construction Documents and is satisfactory to and approved by Owner. § 11.13 Compensation Adjustment § 11.13.1 If the scope of the Project or Architect's Services are materially changed, through no fault of Architect, then Architect's compensation for Basic Services shall be equitably adjusted as mutually agreed by Owner and Architect. However, it is anticipated and understood that the scope of the Project and Architect's Services shall require normal and customary updates and revisions to the Deliverables and Construction Documents prior to their issuance in final form and completion of the Work. Such updates and revisions shall not be considered to be material changes and shall be furnished as part of Basic Services by Architect and included in its compensation for Basic Services. § 11.13.2 If the Architect's Services by this Agreement have not been completed within four (4) months of the date of anticipated Final Completion of the Work on the Project as set forth in§ 3.6.1.4, through no fault of Architect, Architect shall notify Owner in writing with reasonable promptness and explain the facts and circumstances giving rise to a claim for Additional Services. If such claim is justified, and it is timely and properly submitted, then the amount of compensation to be paid to Architect shall be equitably adjusted. In no event shall Architect be entitled to stop work or cease providing the Architect Services, provided the Owner reimburses Architect for the continued Services performed. However, the time period provided herein for performance of the Architect's services under this Agreement is not intended, and shall not be construed, to extend or modify the dates of deadlines by which Architect's Services are to be performed as provided elsewhere herein. I� t1[ Y La1 � ����xyJlAltL��Y��LIKs�►111LIf[�1� Add the following additional terms: § 12.3 Architect's Accounting and Project Records § 12.3.1 Records of all Architect accounting records and Project expenses (the "Accounting Records"), including those pertaining to Reimbursable Expenses and Additional Services, shall be kept on the basis of generally accepted accounting principles and shall be available, upon request, at reasonable times and in Architect's regular place of business or a reasonable alternate site selected by Architect, for review and verification by Owner or Owner Designated Representative within seven (7) days, unless mutually agreed otherwise. § 12.3.2 Owner shall have a right to audit Architect's Accounting Records throughout the performance time of this Agreement and for a period of four (4) years following completion of Architect's Basic and 30 Approved by GSB Additional Design Services hereunder. § 12.3.3 Architect's Project records (the "Project Records") and Accounting Records, including any and all electronically stored or saved information, shall be maintained and retained, and be made available, upon request, for review and verification by Owner or Owner Designated Representative, for a period of at least ten (10) years following completion of Architect's Basic and Additional Design Services hereunder. If any claim or litigation has been initiated during this period and not concluded by that ten (10) year date, then such records shall be maintained and retained until such claim or litigation is concluded. § 12.3.4 Any additional or longer retention requirements of any controlling Federal, State or Local governmental or regulatory authority with jurisdiction over the Project or funding source for the Project, shall be met and complied with by Architect and its consultants. ARTICLE 13 SCOPE OF THE AGREEMENT Add the following under § 13.2.3 Other documents: CRC-GSB Contract Amendments Attachment, dated July 19, 2017 Add the following additional tern: § 13.3 Owner and Architect agree to the terms above and as set forth in the Exhibits and Contract Amendment attached hereto, all of which are a material part of this Agreement. This Agreement is not valid unless signed by Owner. END OF DOCUMENT 31 PY Approved by GSB