Exhibit 10.5


 


	
   

  	
  RECEIVED

  
	
   

  	
  JUL 16
  2007

  
	
   

  	
  YWS
  ARCHITECTS

  



 


	
  

  	
  Document
  B151TM – 1997

  



 


Abbreviated Standard Form of Agreement Between Owner and
Architect


 


 


	
  AGREEMENT
  made as of the Twenty First (21st) 

  	
  day of May in the year Two
  

  
	
  Thousand
  Seven (2007)

  
	
  (In words, indicate day, month and year)

  



 


BETWEEN the Architect’s client identified as the Owner:

(Name, address and other information)


 


Diamond Jo Casino – Dubuque

400 East 3rd Street

Dubuque, lowa 52001


 


Telephone: 702-383-8000

Facsimile: 702-383-8180


 


and
the Architect:

(Name, address and other information)


 


Youngblood Wucherer Sparer Architects, Ltd.

(YWS Architects, LLC)

5005 West Patrick Lane

Las Vegas, Nevada 89118


 


Telephone: 702-243-5670

Facsimile: 702-255-3011


 


For the following
Project:

(Include detailed description of Project)


 


Design services for the
Diamond Jo Dubuque Casino located in the Port of Dubuque,

Dubuque, Iowa.

YWS Architects’ Project #65-002.06


 


The scope of this project
includes working with the Owner to provide Conceptual Design, Schematic Design,
Design Development, Construction Documents, Bidding or Negotiation and
Construction Observation Services for the development of the Project as
described below. Services will be performed as generally outlined in Article 2
below and Exhibit “A” attached. The design has addressed the following and is
more specifically outlined on the attached YWS Project Recapitulation dated May
21, 2007 and the Design Development Drawings dated May 7, 2007 (posted to the
Peninsula Gaming Buzzsaw site):


 


Level 1


 


A. Gaming Area
(Approximately 37,000 sf)


B. Non-Gaming Area
(Approximately 14,000 sf)


C. Dining (Approximately
10,000 sf)


D. Entertainment
(approximately 9,000 sf)


E. Back-of-House and
Support (Approximately 25,000 sf)


 


ADDITIONS AND DELETIONS: The author of this
document has added information needed
for its completion. The author may also have revised the text of the
original AIA standard form. An Additions and
Deletions  Report that notes added information as
well as revisions to the standard form text is available from the author and should be reviewed.
A vertical line in the left margin of this document indicates where the author
has added necessary information and where the author has added to or deleted from the original AIA text.


 


This document has important
legal consequences. Consultation with an attorney is encouraged with respect to
its completion or modification.


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997.  Copyright
  © 1974, 1978, 1987, and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected
  by U.S. Copyright Law and International Treaties. Unauthorized reproduction
  or distribution of this AIA® Document, or any portion to it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
  User
  Notes:

  	
  (17231848)

  



 


1

















 


 


Interstitial
Level


 


F. Front-of-House
(Approximately 3,700 sf)


G. Back-of-House
(Approximately 3,400 sf)


 


Level 2


 


H. Meeting/Convention
Area (Approximately 6,000 sf)


I. Entertainment
(Approximately 2,000 sf)


J.  Other Amenities (Approximately 38,000 sf)


K. Back-of-House
(Approximately 32,000 sf)


 


Level 3


 


L. Circulation
(Approximately 1,000 sf)


 


Other


 


M. Porte Cochere
(Approximately 4,000 sf)


N. Exterior Patios –
Level 1 (Approximately 1,300 sf)


O. Exterior Patios – Level
2 (Approximately 2,700 sf)


P. Smokers Lounge
(Approximately 200 sf)


 


The Owner and Architect
agree as follows:


 


ARTICLE
1 ARCHITECT’S RESPONSIBILITIES


 


§ 1.1 The
services performed by the Architect, Architect’s employees and Architect’s
consultants shall be as enumerated in Articles 2, 3 and 12.


 


§ 1.2 The
Architect’s services shall be performed as expeditiously as is consistent with
professional skill and care and the orderly progress of the Project. The
Architect shall submit for the Owner’s approval a schedule for the performance
of the Architect’s services which may be adjusted as the Project proceeds. This
schedule shall include allowances for periods of time required for the Owner’s
review and for approval of submissions by authorities having jurisdiction over
the Project. Time limits established by this schedule approved by the Owner
shall not, except for reasonable cause, be exceeded by the Architect or Owner.


 


§ 1.3
The Architect shall designate a representative authorized to act on behalf of
the Architect with respect to the Project.


 


§ 1.4
The services covered by this Agreement are subject to the time limitations
contained in Section 11.5.1.


 


§ 1.5
The Architect shall comply with applicable laws, codes and regulations in
effect as of the date of submission to building authorities including Title III
of the Americans with Disabilities Act per 1.6 below. Design changes made
necessary by newly enacted laws, codes and regulations after this date shall
entitle the Architect to a reasonable adjustment in the schedule and additional
compensation in accordance with the Additional Services provisions of this
Agreement. In addition, the Architect shall be entitled to rely reasonably on
interpretations and approvals given by government officials with responsibility
for enforcing Requirements and shall not be responsible for changes made by
such officials to interpretations or approvals previously given.


 


§ 1.6 The
Architect’s services with regard to accessibility requirements shall be limited
to the application and incorporation of the technical requirements of the
Americans with Disabilities Act (“ADA”) Accessibility Guidelines, current as of
the date of this agreement into the Project.


 


§ 1.7 The
architect will perform these services with reasonable diligence and expediency
consistent with sound professional practices.


 


§ 1.8
The Owner agrees that the Architect is not responsible for damages arising directly
or indirectly from any delays for causes beyond the Architect’s control. For
purposes of this Agreement, such causes include, but are not limited to,
strikes or other labor disputes; severe weather disruptions or other natural
disasters; fires, riots, war or other emergencies or acts of God; failure of
any government agency to act in a timely manner; failure of


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987, and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
  User
  Notes:

  	
  (17231848)

  



 


2

















 


performance by the Owner
or the Owner’s contractors or consultants; or discovery of any hazardous
substances or differing site conditions.


 


§ 1.9
In recognition of the inherent risks of fast tracking to the Architect, the
Owner recognizes that there may be design changes and modification of portions
of the Work already constructed due to the Owner’s decision to employ the fast
track process. The Owner agrees to compensate the Architect for all additional
Services required to modify, the Construction Documents and coordinate them in
order to meet the Owner’s program requirements because of the Owner’s decision
to construct the Project in a fast track manner. The Architect shall provide
the Owner with a written explanation of any required additional services
together with the cost thereof prior to the performance thereof by the
Architect. Owner shall have the right to approve such additional Services; such
approval shall not be unreasonably withheld.


 


§ 1.10 The
Architect shall provide complete copies to the Owner of all correspondence
regarding the Project sent to, or received from, all agencies having
jurisdiction over the Project in a timely manner.


 


ARTICLE
2 SCOPE OF ARCHITECT’S BASIC SERVICES


 


§ 2.1
DEFINITION


 


The Architect’s Basic
Services consist of those described in Sections 2.2 through 2.6 and any other
services identified in Article 12 as part of Basic Services, and include the
engineering and consulting services as designated in  Paragraph 12.1.


 


§ 2.2
SCHEMATIC DESIGN PHASE


 


§ 2.2.1 The
Architect shall review the program furnished by the Owner to ascertain the
requirements of the Project and shall arrive at a mutual understanding of such
requirements with the Owner. Deliverables for the Schematic Design Phase shall
be defined in Exhibit “A” (attached).


 


§ 2.2.2
The Architect shall provide a preliminary evaluation of the Owner’s program and
schedule requirements, each in terms of the other.


 


§ 2.2.3 The Architect shall review with the Owner
alternative approaches to design and construction of the Project.


 


§ 2.2.4 Based
on the mutually agreed-upon program and schedule requirements, the Architect
shall prepare, for approval by the Owner, Schematic Design Documents consisting
of drawings and other documents illustrating the scale and relationship of
Project components.


 


§ 2.2.5 The  Owner’s Contractor shall submit to the
Owner a preliminary estimate of Construction Cost based on current area, volume
or similar conceptual estimating techniques.


 


§ 2.3
DESIGN DEVELOPMENT PHASE


 


§ 2.3.1 Based
on the approved Schematic Design Documents and any adjustments authorized by
the Owner in the program and schedule, the Architect shall prepare, for
approval by the Owner, Design Development Documents consisting of  drawings
and other documents to fix and describe the size and character of the Project
as to architectural, structural, mechanical and electrical systems, materials
and such other elements as may be appropriate. Deliverables for the Design
Development Phase shall be defined in Exhibit “A” (attached).


 


§ 2.3.2 The
Owner’s Contractor shall advise the Owner of any adjustments to the preliminary
estimate of Construction Cost.


 


§ 2.4
CONSTRUCTION DOCUMENTS PHASE


 


§ 2.4.1
Based on the approved Design Development Documents and any further adjustments
in the scope or quality of the Project authorized by the Owner, the Architect
shall prepare, for approval by the Owner, Construction Documents consisting of
Drawings and Specifications setting forth in detail the requirements for the
construction of the Project. Deliverables for the Construction Development
Phase shall be defined in Exhibit “A” (attached).


 


§ 2.4.2
The Owner’s Contractor shall assist the Owner in the preparation of the
necessary bidding information, bidding forms, the Conditions of the Contract,
and the form of Agreement between the Owner and Contractor.


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987, and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING:  This AIA®
  Document is protected by U.S. Copyright Law and International Treaties.
  Unauthorized reproduction or distribution of this AIA® Document,
  or any portion of it, may result in severe civil and criminal penalties, and
  will be prosecuted to the maximum extent possible under the law.
  This document was produced by AIA software at 15:18:01 on 07/03/2007 under
  Order No. 1000280837_1 which expires on 1/23/2008, and is not for resale.

  
	
   

  	
  User
  Notes:

  	
  (17231848)

  



 


3

















 


§ 2.4.3
The Owner’s Contractor shall advise the Owner of any adjustments to previous
preliminary estimates of Construction Cost indicated by changes in requirements
or general market conditions.


 


(Paragraphs deleted)


§ 2.5
BIDDING OR NEGOTIATION PHASE


 


The Architect, following
the Owner’s approval of the Construction Documents, shall assist the Owner in
obtaining bids or negotiated proposals and assist in awarding and preparing
contracts for construction. Deliverables for the Bidding and Negotiation Phase
shall be defined in Exhibit “A” (attached).


 


§ 2.6
CONSTRUCTION PHASE–ADMINISTRATION OF THE CONSTRUCTION CONTRACT


 


§ 2.6.1
The Architect’s responsibility to provide Basic Services for the Construction
Phase under this Agreement commences with the notice from Owner of the issuance
of Notice to Proceed to the Contractor and terminates at the earlier of the
issuance to the Owner of the final Certificate for Payment or 6 months after
the date of Substantial Completion of the Work.


 


§ 2.6.2 The Architect shall provide administration of the Contract for
Construction as set forth below and in the edition of AIA Document A201, General
Conditions of the Contract for Construction, current as of the date of this
Agreement, unless otherwise provided in this Agreement. Modifications made to
the General Conditions, when adopted as part of the Contract Documents, shall
be enforceable under this Agreement only to the extent that they are consistent with this Agreement or approved in
writing by the Architect.


 


§ 2.6.3  Duties, responsibilities and limitations of
authority of the Architect under this Section 2.6 shall not be restricted, modified
or extended without written agreement of the Owner and Architect.


 


§ 2.6.4 The Architect shall be a representative of and shall advise and consult
with the Owner during the administration of the Contract for Construction. The
Architect shall have authority to act on behalf of the Owner only to the extent
provided in this Agreement
unless otherwise modified by written amendment.


 


§ 2.6.5 The Architect, as a representative of the Owner, shall visit the site
at intervals appropriate to the stage of the Contractor’s operations, or as
otherwise agreed by the Owner and the Architect in Article 12, (1) to become
generally familiar with and to keep the Owner informed about the progress and
quality of the portion of the Work completed, (2) to endeavor to guard the
Owner against defects and deficiencies in the Work, and (3) to determine in
general if the Work 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 observations to check the quality or quantity of the Work. The
Architect shall neither have control over or charge of, nor be responsible for,
the construction means, methods, techniques, sequences or procedures, or for
safety precautions and programs in connection with the Work, since these are
solely the Contractor’s rights and responsibilities under the Contract
Documents.


 


§ 2.6.6 The Architect shall report to the Owner known deviations from the
Contract Documents and from the most recent construction schedule submitted by
the Contractor. However, the Architect shall not 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, Subcontractors, or their agents or employees, or
of any other persons or entities performing portions of the Work.


 


§ 2.6.7 The Architect shall at all times have access to the Work wherever it is
in preparation or progress.


 


§ 2.6.8.The Owner shall endeavor to communicate with the Contractor through the
Architect about matters arising out of or relating to the Contract Documents.
Substantive meetings and conversations between the Owner and the Contractor
shall be memorialized in writing with a copy to the Architect. Communications
by and with the Architect’s consultants shall be through the Architect.


 


§ 2.6.9 CERTIFICATES FOR PAYMENT


 


§
2.6.9.1 If requested by the Owner, the Architect shall review
and certify to the Owner amounts due the Contractor on the Application for
Payment (AIA Document G702) under the Architect’s Certificate for Payment
section of the document.


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987 and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
  User
  Notes:

  	
  (17231848)

  



 


4

















 


§
2.6.9.2 The Architect shall have authority to advise the
Owner to reject Work that does not conform to the Contract Documents. Whenever
the Architect considers it necessary or advisable, the Architect will have
authority to recommend that the Owner require additional inspection or the
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 recommendation made in
good faith either to exercise or not to exercise such authority shall give rise
to a duty or a responsibility of the Architect to the contractor,
Subcontractors, material and equipment suppliers, their agents or employees, or
other persons performing portions of the Work.


 


§
2.6.9.3 If requested by the Owner, the Architect’s
certification as to payment shall not be a representation that the Architect
has (l) made exhaustive or continuous on-site observations 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.


 


§ 2.6.10
The Architect’s review and comments and/or certification of payment requests
shall constitute a representation to the Owner, based on the Architect’s
observations at the site as provided in Section 2.6.5 and on the data
comprising the Contractor’s Application for Payment, to the best of the
Architect’s knowledge, information and belief that the Work has progressed to  the point indicated and that, to the
best of the Architect’s knowledge, information and belief, the quality of the
Work is in general accordance with the Contract Documents. The foregoing
representations are subject (1) to an evaluation of uncovered Work for
conformance with the Contract 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.


 


§ 2.6.11
The Owner shall require that the Contractor review and approve any submittal
prior to submitting the same to the Architect. The Architect shall review and
comment upon 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. The Architect’s action shall be
taken with such reasonable promptness as to cause no unreasonable delay in the
Work or in the activities of the Owner, Contractor or separate contractors,
while allowing sufficient time in the Architect’s professional judgment to
permit adequate review but shall not exceed a maximum review time of ten (10)
business days – including any required Consultant(s) review, except in the
event of exceptional circumstances. Review of such submittals is not conducted
for the purpose of determining the accuracy and completeness of other details
such as dimensions and quantities, or for substantiating instructions for
installation or performance of equipment or systems, all of which remain the
responsibility of the Contractor as required by the Contract Documents. The
Architect’s review shall not
constitute a review or approval of safety precautions or, unless
otherwise specifically stated by the Architect of any construction means,
methods, techniques, sequences or procedures. The Architect’s approval of or
comments upon a specific item shall not indicate approval of an assembly of
which the item is a component.


 


§
2.6.11.1 The Architect shall maintain for ninety (90) days
after substantial completion of the project a record of reviewed submittals and
deliver all such submittal records to the Owner upon expiration of such ninety
(90) day period.


 


§
2.6.11.2 The Architect shall evaluate substitutions proposed
by the Contractor, Owner or Owner’s Consultants as specified in the General
Requirements section of the Construction Documents and shall advise the Owner
as to the acceptability of such proposed substitutions. All substitutions shall
be approved by the Owner.


 


§ 2.6.12
If  professional
design services or certifications by a design professional related to systems,
materials or equipment are specifically required of the Contractor by the
Contract Documents, the Architect shall specify appropriate performance and
design criteria that such services must satisfy. Shop Drawings and other
submittals related to the Work designed or certified by the design professional
retained by the Contractor shall bear such professional’s written approval when
submitted to the Architect. The Architect shall be entitled to rely upon the
adequacy, accuracy and completeness of the services, certifications or
approvals performed by such design professionals.


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987 and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
  User
  Notes:

  	
  (17231848)

  



 


5

















 


§ 2.6.13
The Architect shall review Change Orders and Construction Change Directives,
with supporting documentation and data if deemed necessary by the Architect as
provided in Sections 3.1.1 and 3.3.3, for the Owner’s approval and execution in
accordance with the Contract Documents, and may authorize minor changes in the
Work not involving an adjustment in the Contract Sum or an extension of the
Contract Time which are consistent with the intent of the Contract Documents.


 


§ 2.6.14
The Architect shall conduct observations to determine the
date or dates of Substantial Completion and the date of final completion shall
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 shall issue a recommendation for
payment upon the Contractor’s compliance with requirements of the Contract
Documents.


 


§ 2.6.15
The Architect  shall  interpret and make recommendations
concerning performance of the Owner and Contractor 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.


 


§ 2.6.16
Interpretations and recommendations 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 making such
interpretations and recommendations, the Architect shall endeavor to secure
faithful performance by both Owner and Contractor, shall not show partiality to
either, and shall not be liable for results of interpretations or
recommendations so rendered in good faith.


 


§ 2.6.17
The Architect  shall
make recommendations on claims, disputes or other matters in question between the
Owner and Contractor as provided in the Contract Documents.


 


§ 2.6.18
The Architect shall make recommendations on claims, disputes
or other matters in question between the Owner and Contractor, except for those
relating to aesthetic effect as provided in Section 2.6.17, shall be subject to
mediation and arbitration as provided in this Agreement and in the Contract
Documents.


 


§ 2.6.19
The Contractor may, after exercising due diligence to locate
required information, request from the Architect clarification or
interpretation of the requirements of the Construction Documents. The Architect
shall, with reasonable promptness, respond to such Contractor’s requests for
clarification or interpretation. However, if the information requested by the
Contractor is apparent from field observations, is contained in the
Construction Documents, Contract Documents or is reasonably inferable from
them, the Contractor shall be responsible to the Owner for all reasonable costs
charged by the Architect to the Owner for the Additional Services required to
provide such information, pursuant, to Article 3, below.


 


§ 2.6.20
The Architect shall provide services required for the
coordination with the installation of interior artwork and decorations as
specified in the Construction Documents.


 


ARTICLE
3 ADDITIONAL SERVICES


 


§ 3.1
GENERAL


 


§ 3.1.1 The
services described in this Article 3 are not included in Basic Services unless
so identified in Article 12, and they shall be paid for by the Owner as
provided in this Agreement, in addition to the compensation for Basic Services.
The services described under Sections 3.2 and 3.4 shall only be provided if
authorized or confirmed in writing by the Owner. If services described under
Contingent Additional Services in Section 3.3 are required due to circumstances
beyond the Architect’s control, the Architect shall notify the Owner prior to
commencing such services. If the Owner deems that such services described under
Section 3.3 are not required, the Owner shall give prompt written notice to the
Architect. If the Owner indicates in writing that all or parts of such
Contingent Additional Services are not required, the Architect shall have no
obligation to provide those services.


 


§ 3.2  PROJECT REPRESENTATION BEYOND BASIC SERVICES


 


§ 3.2.1
If more extensive representation at the site than is described in Section 2.6.5
is required, the Architect shall provide one or more Project Representatives to
assist in carrying out such additional on-site responsibilities.


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987 and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
  User
  Notes:

  	
  (17231848)

  



 


6

















 


§ 3.2.2
Project Representatives shall be selected, employed and directed by the
Architect, and the Architect shall be compensated therefor as agreed by the
Owner and Architect. The duties, responsibilities and limitations of authority
of Project Representatives shall be as described in the edition of AIA Document
B352 current as of the date of this Agreement, unless otherwise agreed. The
Owner shall have approval rights over Project Representatives selected by the
Architect, with such approval not to be unreasonably withheld.


 


§ 3.2.3
Through the presence at the site of such Project Representatives, the Architect
shall endeavor to provide further protection for the Owner against defects and
deficiencies in the Work, but the furnishing of such project representation
shall not modify the rights, responsibilities or obligations of the Architect
as described elsewhere in this Agreement.


 


§ 3.3
CONTINGENT ADDITIONAL SERVICES


 


§ 3.3.1
Making revisions drawings, specifications or other documents when such
revisions are:


 


.1                        inconsistent
with approvals or instructions previously given by the Owner, including
revisions made necessary by adjustments in the Owner’s program or Project
budget;


.2                        required
by the enactment or revision of codes, laws or regulations subsequent to the
preparation of such documents, or


.3                        due to
changes required as a result of the Owner’s failure to render decisions in a
timely manner.


 


§ 3.3.2
Providing, services required because of significant changes in the Project
including, but not limited to, size quality, complexity, the Owner’s schedule,
or the method of bidding or negotiating and contracting for construction,
except for services required under Section 5.2.5.


 


§ 3.3.3
Preparing Drawings, Specifications and other documentation and supporting data,
evaluating Contractor’s proposals, and providing other services in connection
with Change Orders and Construction Change Directives.


 


§ 3.3.4 Revising
Drawings, Specifications and other documentation resulting from Owner approved
substitutions.


 


§ 3.3.5 Providing
consultation  concerning
replacement of Work damaged by fire or other cause during construction, and
furnishing services required in connection with the replacement of such Work.


 


§ 3.3.6 Providing
services made necessary by the default of the Contractor, by major defects or
deficiencies in the Work of the Contractor, or by failure of performance of
either the Owner or Contractor under the Contract for Construction.


 


§ 3.3.7
Providing services in evaluating an extensive number of claims submitted by the
Contractor or others in connection with the Work.


 


§ 3.3.8
Providing services in connection with a public hearing, a dispute resolution
proceeding or a legal proceeding except where the Architect is party thereto.


 


§ 3.3.9 Preparing
documents for alternate, separate or sequential bids.


 


§ 3.4
OPTIONAL ADDITIONAL SERVICES


 


§ 3.4.1 Providing
analyses of the Owner’s needs and programming the requirements of the Project.


 


§ 3.4.2 Providing
financial feasibility or other special studies.


 


§ 3.4.3
Providing planning surveys, site evaluations or comparative studies of
prospective sites.


 


§ 3.4.4 Providing
special surveys, environmental studies and submissions required for approvals
of governmental authorities or others having jurisdiction over the Project.


 


§ 3.4.5
Providing services relative to future facilities, systems and equipment.


 


§ 3.4.6 Providing
services to investigate existing conditions or facilities or to make measured
drawings thereof.


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987 and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
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§ 3.4.7 Providing
services to verify the accuracy of drawings and other information furnished by
the Owner.


 


§ 3.4.8
Providing coordination of construction performed by separate contractors or by
the Owner’s own forces and coordination of services required in connection with
construction performed and equipment supplied by the Owner.


 


§ 3.4.9
Providing services in connection with the work of a construction manager or
separate consultants retained by the Owner.


 


§ 3.4.10
Providing detailed estimates of Construction Cost.


 


§ 3.4.11
Providing detailed quantity surveys or inventories of material, equipment and
labor.


 


§ 3.4.12
Providing analyses of owning and operating costs.


 


§ 3.4.13
Providing services required for or in connection with the procurement or
installation of furniture, furnishings and related equipment, other than the
coordination with the installation of interior artwork and decorations as
described in paragraph § 2.6.20.


 


§ 3.4.14
Providing services for planning tenant or rental spaces.


 


§ 3.4.15
Making investigations, inventories of materials or equipment,
or valuations and detailed appraisals of existing facilities.


 


§ 3.4.16
Preparing a set of reproducible record drawings showing
significant changes in the Work made during construction based on marked-up
prints, drawings and other data furnished by the Contractor to the Architect.


 


§ 3.4.17
Providing assistance in the utilization of equipment or
systems such as testing, adjusting and balancing, preparation of operation and
maintenance manuals, training personnel for operation and maintenance, and
consultation during operation


 


§ 3.4.18
Providing services
after issuance to the Owner of the final Certificate for Payment, or in the
absence of a final Certificate for Payment, more than 60 days after the date of Substantial Completion of the Work.


 


§ 3.4.19 Providing services of engineers and
consultants other than those described in Paragraph 12.1 as a part of the Basic Services


 


§ 3.4.20
Providing any other services not otherwise included in this Agreement or not
customarily furnished in accordance with generally accepted architectural practice.


 


ARTICLE
4 OWNER’S RESPONSIBILITIES


 


§ 4.1 The
Owner shall provide full information in a timely manner regarding requirements
for and limitations on the Project, including a written program which shall set
forth the Owner’s objectives, schedule, constraints and criteria, including space requirement and relationships,
flexibility, expandability, special equipment, systems and site requirements,
specifically including a slot and gaming layout (including change
booths, carousels, coin banks, etc.).
The Owner shall furnish to the Architect, within 15 days after receipt of a
written request, information necessary and relevant for the Architect to
evaluate, give notice of or enforce lien rights.


 


§ 4.2 The
Owner shall establish and periodically update an overall budget for the
Project, including the Construction Cost, the Owner’s other costs and
reasonable contingencies related to all of these costs.


 


§ 4.3
The Owner shall designate a representative authorized to act on the Owner’s
behalf with respect to the Project. The Owner or such designated representative
shall render decisions in a timely manner pertaining to documents submitted by
the Architect in order to avoid unreasonable delay in the orderly and sequential
progress of the Architect’s services.


 


§ 4.4 The
Owner shall furnish all existing surveys to describe physical characteristics,
legal limitations and utility locations for the site of the Project, and a
written legal description of the site. The surveys and legal information


 


	
  Init.

  

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  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987, and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
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shall include, as
applicable, grades and lines of streets, alleys, payments and adjoining
property and structures; adjacent drainage; rights-of-way, flood plains,
restrictions, easements, encroachments, zoning, deed 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. The Civil Engineer (selected by the Owner
but retained through the Architect at the Owner’s specific request) shall, upon
the further written request of the Owner, provide additional surveys as are
reasonably required for the scope of the Project. All the information on the
survey shall be referenced to a Project benchmark.


 


§ 4.5
The Owner shall furnish the services of geotechnical engineers. Such services
may include but are not limited to test borings, test pits, determinations of
soil bearing values, percolation tests, evaluations of hazardous materials and
hazardous materials storage, ground corrosion tests and resistively tests,
including necessary operations for anticipating subsoil conditions, with
reports and appropriate recommendations.


 


§ 4.6 The
Owner shall furnish the services of consultants as described in Paragraph 12.2
and such consultants other than those specifically designated in this Agreement
when such services are request by the Architect and/or are reasonably required
by the scope of the project. The Owner agrees to require all consultants
engaged by the owner to coordinate their construction documents or reports with
those of the Architect and to promptly report any conflicts or inconsistencies
to the Architect and to cooperate fully with the Architect in the resolution of
those conflicts or inconsistencies. While the Architect shall be responsible
for coordinating its work with that of the professional services of all
consultants on the Project whether retained by the Owner or Architect, this
coordination shall not absolve or release contractors or other design professionals
from complying with their respective standards of care. The Architect is not
responsible for errors and omissions of consultants it does not retain.


 


§ 4.7
The Owner shall furnish structural, mechanical, and chemical tests; tests for
air and water pollution; tests for hazardous materials; and other laboratory
and environmental tests, inspections and reports required by law or the
Contract Documents.


 


§ 4.8 The
Owner shall furnish all legal, accounting and insurance services that may be
necessary at any time for the Project to meet the Owner’s needs and interests.
Such services shall include auditing services the Owner may require to verify
the Contractor’s Applications for Payment or to ascertain how or for what
purposes the Contractor has used the money paid by or on behalf of the Owner.


 


§ 4.9 The
services, information, surveys and reports required by Sections 4.4 through 4.8
shall be furnished at the Owner’s expense,
and the Architect shall be entitled to rely upon the accuracy and
completeness thereof.


 


§ 4.10 The Owner shall provide prompt written notice to the
Architect if the Owner becomes aware of any fault or defect in the Project,
including any errors, omissions or inconsistencies in the Architect’s
Instruments of Service.


 


ARTICLE
5 CONSTRUCTION COST


 


§ 5.1
DEFINITION


 


§ 5.1.1 The
Construction Cost shall be the total cost or, to the extent the Project is not
completed, the estimated cost to the Owner of all elements of the Project
designed or specified by the Architect.


 


§ 5.1.2
The Construction Cost shall include the cost at current market rates of labor
and materials furnished by the Owner and equipment designed, specified,
selected or specially provided for by the Architect, including the costs of
management or supervision of construction or installation provided by a
separate construction manager or contractor, plus a reasonable allowance for
their overhead and profit. In addition, a reasonable allowance for
contingencies shall be included for market conditions at the time of bidding and
for changes in the Work.


 


§ 5.1.3 Construction
Cost does not include the compensation of the Architect and the Architect’s
consultants, the costs of the land, rights-of-way and financing or other costs
that are the responsibility of the Owner as provided in Article 4.


 


	
  Init.

  

  /

  	
  AIA Document
  B151TM – 1997. Copyright © 1974, 1978, 1987 and 1997 by The
  American Institute of Architects. All rights reserved.
  WARNING:  This AIA®
  Document is protected by U.S. Copyright Law and International Treaties.
  Unauthorized reproduction or distribution of this AIA® Document,
  or any portion of it, may result in severe civil and criminal penalties, and
  will be prosecuted to the maximum extent possible under the law.
  This document was produced by AIA software at 15:18:01 on 07/03/2007 under
  Order No. 1000280837_1 which expires on 1/23/2008, and is not for resale.

  
	
   

  	
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§ 5.2 RESPONSIBILITY FOR
CONSTRUCTION COST


 


§ 5.2.1
The preparation of the Owner’s budget, preliminary estimate of Construction
Cost and detailed estimates of Construction Cost, if any, and/or evaluations of
the same shall be the responsibility of the Owner, and prepared by the Owner
and/or Owner’s cost estimator or contractor.


 


§ 5.2.2 No
fixed limit of Constructions Cost shall be established as a condition of this
Agreement by the furnishing, proposal or establishment of a Project budget. The
Architect has no responsibility for costs or budgets. Revisions to the design
and documentation for elements of the Project which had previously been
approved by the Owner, necessary to bring the Project into compliance with any
budget will be provided as additional services.


 


§
5.2.2.1 Value Engineering and/or Owner Directed Changes. If
the Owner retains the services of a Value Engineer (VE) (whether it be a cost
estimator, the contractor or otherwise) to review the Construction Documents
prepared by the Architect, it shall be at the Owner’s sole expense and shall be
performed in a timely manner so as not to delay the orderly process of the
Architect’s services. The Owner shall promptly notify the Architect of the
identity of the VE and shall define the VE’s scope of services and
responsibilities for the Architect. All recommendations of the VE and all Owner
Requested Changes shall be given to the Architect for review, and adequate time
will be provided for the Architect to  respond
to these recommendations. If the Architect objects to any recommendations made
by the VE and/or any Owner Requested Changes, it shall so state in writing to the
Owner, along with the reasons for objecting. In addition, the Architect shall
be compensated as Additional Service for services necessary to incorporate
recommended value engineering changes and Owner requested changes into the
Construction Documents provided such incorporation requires revisions to
previously approved and completed work. Exclusive of the preparation of
detailed engineering calculations, the Architect shall provide as part of the
Basic Services all services to prepare for, review, evaluate and respond to the
recommendations of the VE and Owner requested changes.


 


(Paragraphs
deleted)


ARTICLE
6 USE OF ARCHITECTS INSTRUMENTS OF SERVICE


 


§ 6.1 Drawings,
specifications and other documents, including those in electronic form,
prepared by the Architect and the Architect’s consultants are Instruments of
Service for use solely with respect to this Project. The Architect and the Architect’s
consultants shall be deemed the authors and owners of their respective
Instruments of Service and shall retain all common law, statutory and other
reserved rights, including copyrights.


 


§ 6.2 The
Owner acknowledges the Architect’s construction documents, including electronic
files, as instruments of professional service which shall remain the property
of Architect. Nevertheless, copies of the final construction documents or
electronic media and a complete set of AutoCad electronic files corresponding
in content to the final Construction Documents prepared under this Agreement
will be provided to the Owner upon completion of the services and payment in
full of all monies due to the Architect. The Owner shall not reuse or make any
modification to the construction documents without the prior written
authorization of the Architect. The parties further acknowledge that Buzz Saw
is being utilized for this Project and all electronic files posted through and
to the Buzz Saw site are likewise governed by the terms and conditions for
electronic files as set forth below. The Owner agrees, to the fullest extent
permitted by law, to indemnify and hold harmless the Architect, its officers,
directors, employees and subconsultants (collectively “Architect”) against any
damages, liabilities or costs, including reasonable attorneys fees mid defense
costs, arising from or allegedly arising from or in any way connected with the
unauthorized reuse or modification of the construction documents or electronic
media by the Owner or any person or entity that acquires or obtains the
construction documents or electronic media from or through the Owner without
authorization of the Architect.


 


§ 6.3 Owner
and Architect each binds itself, its successors, assigns and legal
representatives to the other party hereto and to the successors, assignees and
legal representatives of such party in respect to all covenants, agreements and
obligations contained in the Agreement. The Owner may transfer, sell or assign
these rights to any third party. The Owner’s right to transfer, sell, or assign
these rights to any third party, including any future owner of the Project,
shall be conditioned upon acceptance of the terms and conditions herein by the
new owner unless the new owner is an entity which is related to the Owner.
Furthermore, if the Architect objects to any such proposed assignment to a
future owner of the Project (“Purchaser”), and/or the Agreement terminates, the
Purchaser (other than a new owner entity which is related to Owner) shall agree
that; (i) the Architect’s name and contact information shall be removed from
the Construction Documents; (ii) all invoices properly due Architect shall be
paid; (iii) Purchaser waives all claims relating to the use of the instruments
of service and agrees to defend, indemnify and hold harmless Architect for any
claims, liabilities or damages arising out of or relating to the use of the
instruments


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM  – 1997. Copyright
  © 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is
  protected by U.S. Copyright Law and International Treaties. Unauthorized
  reproduction or distribution of this AIA® Document, or any portion
  of it, may result in severe civil and criminal penalties, and will be
  prosecuted or the maximum extent possible under the law. This
  document was produced by AIA software at 15:18:01 on 07/03/2007 under Order
  No. 1000280837_1 which expires on 1/23/2008, and is not for resale.

  
	
   

  	
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of service or in any way
connected with the Project; and (iv) Architect shall be allowed to resign as
the Architect of Record for the Project.


 


§ 6.4 Prior
to the Architect providing to the Owner any Instruments of Service in
electronic form or the Owner providing to the Architect any electronic data for
incorporation into the Instruments of Service, the Owner and the Architect
shall by separate written agreement set forth the specific conditions governing
the format of such Instruments of Service or electronic data.


 


§ 6.4.1 The
Architect’s instruments of service hereunder are the printed hardcopy drawings
and specifications issued for the Project, whereas, the electronic media,
including CAD files, are tools for preparation. In the event of a conflict,
however, the/printed copies will take precedence over the electronic media.


 


§ 6.4.2 The
Architect shall retain ownership of the electronic media. The Owner is granted
a license for its use, but only in the operation, maintenance, modification,
extension, or expansion of the Project. Use of the materials for any other
Project by any entity other than the Architect shall not be allowed.


 


§ 6.5 If
the Architect is terminated or is not allowed to complete all the services
called for by this Agreement through no fault of its own, and if Owner decides
to complete the project through the use of another design professional and uses
the instruments of services, the Architect shall not be held responsible for
the accuracy, completeness or constructability of the construction documents
prepared by the Architect if used, changed or completed by the Owner or by
another party. Furthermore, if the Owner decides to complete the project
through the use of another design professional and uses the instruments of
services, Owner agrees to the following conditions:


 


a.                         Architect
will remove his name from the Construction Documents;


b.                        Owner waives
all claims against Architect related to the use of the instruments of service
or in any way connected with the Project;


c.                         Owner
will defend, indemnify and hold harmless the Architect for any claims,
liabilities or damages arising out of or related to the use of the instruments
of service or in any way connected with the Project except where such claims
are caused by sole negligence or willful misconduct of Architect;


d.                        All
invoices due the Architect must be paid in full.


 


ARTICLE 7 DISPUTE
RESOLUTION


 


§7.1
MEDIATION


 


§ 7.1.1 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 arbitration
or the institution of legal or equitable proceedings by either party. If such
matter relates to or is the subject of a lien arising out of the Architect’s
services, the Architect may proceed in accordance with applicab1e law to comply
with the lien notice or filing deadlines prior to resolution of the matter by
mediation or by arbitration.


 


§ 7.1.2 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 in
accordance with the Construction Industry Mediation Rules of the American
Arbitration Association currently in effect. Request for mediation shall be
filed in writing with the other party to this Agreement and with the American
Arbitration Association. The request may be made concurrently with the filing
of a demand for arbitration but, in such event, mediation shall proceed in
advance of arbitration or legal or equitable proceedings, which shall be stayed
pending mediation for a period of 60 days from the date of filing, unless
stayed for a longer period by agreement of the parties or court order.


 


§ 7.1.3 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 settlement agreements in any court having jurisdiction
thereof.


 


§ 7.2 ARBITRATION


 


§
7.2.1 Any claim, dispute or other
matter in question arising out of or related to this Agreement shall be subject
to arbitration. Prior to arbitration, the parties shall endeavor to resolve
disputes by mediation in accordance with Section 7.1.


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987 and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
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§ 7.2.2
Claims, disputes and other matters in question between the parties that are not
resolved by mediation may be decided by arbitration which, unless the parties
mutually agree otherwise, shall be in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Association currently in effect.
The demand for arbitration shall be filed in writing with the other party to
this Agreement and with the American Arbitration Association.


 


§ 7.2.3 A
demand for arbitration shall be made within a reasonable time after the claim,
dispute or other matter in question has arisen. In no event shall the demand
for arbitration be made after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations.


 


§ 7.2.4 No
arbitration arising out of or relating to this Agreement shall include, by
consolidation or joinder or in any other manner, an additional person or entity
not a party to this Agreement, except by written consent containing a specific
reference to this Agreement and signed by the Owner, Architect, and any other
person or entity sought to be joined. Consent to arbitration involving an
additional person or entity shall not constitute consent to arbitration of any
claim, dispute or other matter in question not described in the written consent
or with a person or entity not named or described therein. 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.


 


§ 7.2.5 The
award rendered by the arbitrator or arbitrators shall be final, and judgment
may be entered upon it in accordance with applicable law in any court having
jurisdiction thereof.


 


§ 7.3
CIAIMS FOR CONSEQUENTIAL DAMAGES


 


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 in accordance with Article 8. Consequential damages include, but
are not limited to, loss of use and loss of profit, loss of business, loss of
income, loss of reputation or any other consequential damages that either party
may have incurred from any cause of action including negligence, strict
liability, breach of contract and breach of strict or implied warranty.


 


§ 7.3.1 The
Architect and its consultants shall perform, without expense to the Owner, such
professional services as may be required to correct or remedy any negligent
act, error or omission of the Architect or its consultants; however, the
Architect will not be responsible beyond such corrective professional services
for any damages resulting from the Architect’s or its consultant’s services.


 


§ 7.4 LIMIT OF LIABILITY


 


§ 7.4.1 To
the fullest extent permitted by law, and notwithstanding any other provision of
this Agreement, the total liability, in the aggregate, of Architect and
Architect’s officers, directors, partners, employees, agents, and Architect’s
consultants, and any of them, to Owner and anyone claiming by through, or under
Owner for any and all claims, losses, costs, or damages whatsoever arising out
of, resulting from or in any way related to the Project or the Agreement from
any cause or causes, including but not limited to the negligence, professional
errors or omissions, strict liability or breach of contract, or warranty,
express or implied, of Architect or Architect’s officers, directors, partners,
employees, agents, or Architect’s consultants, or any of them, shall not exceed
the total amount of the available amount of Architect’s professional liability
insurance, at the time of settlement or judgment.


 


§ 7.4.2
Consultant/Subconsultant Limitation in Addition to Architect’s Limitation.
Owner understands and recognizes that Architect intends to employ consultants/sub-consultants
on this Project. The limitation of liability set forth in Paragraph 7.4.1,
above, shall exclude and shall not apply to any amounts paid or payable by any
Consultant/Subconsultant or by any insurer on behalf of any Consultant/Subconsultant.
The Limitation of each Consultant/Subconsultant shall likewise be no greater
than each Consultant’s/Subconsultant’s available insurance policy limits at the
time of judgment or settlement. However, the limitation of liability of each
Consultant/Subconsultant shall be in addition to that of the Architect, as set
forth in § 7.4.1. (By way of example only, if Architect has $1 million in
available coverage, and the structural engineer has $1 million in available
coverage, there is potentially $2 million available for a claim that involved
the negligence of both the architect and structural engineer. However, the
limitation of liability of the architect and engineer shall be applied
separately and


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987 and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
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distinctly from the
other.).


 


ARTICLE
8 TERMINATION OR SUSPENSION


 


§ 8.1 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 Agreement. If the Architect elects to
suspend services, prior to suspension of services, the Architect shall give
seven days’ written notice to the Owner. In the event of a 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 sums due prior to suspension and any
expenses incurred in the interruption and resumption of the Architect’s
services. The Architect’s fees for the remaining services and the time
schedules shall be equitably adjusted.


 


§ 8.2 If
the Project is suspended by the Owner for more than 30 consecutive days, the
Architect shall be compensated for services performed prior to notice of such
suspension. When the Project is resumed, the Architect shall be compensated for
expanses incurred in the interruption and resumption of the Architect’s
services. The Architect’s fees for the remaining services and the time
schedules shall be equitably adjusted.


 


§ 8.3
If the project is suspended or the Architect’s services are suspended for
more than 90 consecutive days, the Architect may terminate this Agreement by
giving not less than seven days’ written notice.


 


§ 8.4 This
Agreement may be terminated by either party 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.


 


§ 8.5
This Agreement may be terminated by the Owner upon not less than seven days’
written notice to the Architect for the Owner’s convenience and without cause.


 


§ 8.6 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 8.7.


 


§ 8.7 Termination
Expenses are in addition to compensation for the services of the Agreement and
include expenses directly attributable to termination for which the Architect
is not otherwise compensated.


 


ARTICLE
9 MISCELLANEOUS PROVISIONS


 


§ 9.1 This
Agreement shall be governed by the law of the principal place of business of
the Architect, unless otherwise provided in Article 12.


 


§ 9.2
Terms in this Agreement shall have the same meaning as those in the edition of
AIA Document A201, General Conditions of the Contract for Construction, current
as of the date of this Agreement.


 


§ 9.3 –
Intentionally deleted -


 


§ 9.4
To the extent damages are covered by property insurance during construction,
the Owner and Architect waive all rights against each other and against the
consultants, agents and employees of the other for damages, except such rights
as they may have to the proceeds of such insurance as set forth in the edition
of AIA Document A201, General Conditions of the Contract for Construction,
current as of the date of this Agreement. The Owner or the Architect, 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.


 


§ 9.5
The Owner and Architect, respectively, bind themselves, their partners,
successors, assigns and legal representatives to the other party to this
Agreement and to the partners, successors, assigns and legal representatives of
such other party with respect to all covenants of this Agreement. Neither the
Owner nor the Architect shall assign this Agreement without the written consent
of the other, except that the Owner may assign this Agreement to an institutional
lender providing financing for the Project. In such event, the lender shall
assume the Owner’s rights and obligations under this Agreement. The Architect
shall execute all consents reasonably required to facilitate such assignment.
However, the Architect shall not be required to execute any documents
subsequent to the signing of


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987 and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
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  (17231848)

  



 


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this Agreement that in
any way might increase the Architect’s contractual or legal obligations or
risks, or adversely affect the availability or cost of its professional or
general liability insurance.


 


§ 9.6 This
Agreement represents the entire and integrated agreement between the Owner and
the Architect and supersedes all prior negotiations, representations or
agreements, either written or oral. This Agreement may be amended only by
written instrument signed by both Owner and Architect.


 


§ 9.7
Nothing contained in this Agreement shall create a contractual relationship
with or a cause of action in favor of a third party against either the Owner or
Architect. The Architect’s services under this Agreement are being performed
solely for the Owner’s benefit, and no other party or entity shall have any
claim against the Architect  because
of this Agreement or the performance or nonperformance of services hereunder.


 


§ 9.8
The Architect and Architect’s consultants shall have no responsibility for the
discovery, presence, handling, removal or disposal of or exposure of persons to
hazardous materials or toxic substances in any form at the Project site.


 


§ 9.9
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 given reasonable access to
the completed Project to make such representations. However, the Architect’s
materials shall not include the Owner’s confidential or proprietary information
if the Owner has previously advised the Architect in writing of 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 Project.


 


§ 9.10
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. The Architect shall
not be required to execute certificates that would require knowledge, services
or responsibilities beyond the scope of this Agreement. As used herein, the
word certify shall mean an expression of the Architect’s professional opinion
to the best of its information, knowledge and belief, and does not constitute a
warranty or guarantee by the Architect.


 


§ 9.11 Any
conflicts between the Professional Services Fee Proposal (annexed to this
Agreement as Exhibit “A”) and the other provisions of this Agreement shall be
resolved in favor of such other provisions.


 


ARTICLE
10 PAYMENTS TO THE ARCHITECT


 


§ 10.1
DIRECT PERSONNEL EXPENSE


 


Direct Personnel Expense
is defined as the direct salaries of the Architect’s personnel engaged on the
Project and the portion of the cost of their mandatory and customary
contributions and benefits related thereto, such as employment taxes  and
other statutory employee benefits, insurance, sick leave, holidays, vacations,
employee retirement plans and similar contributions.


 


§ 10.2
REIMBURSABLE EXPENSES


 


§ 10.2.1
Reimbursable Expenses are in addition to compensation for
Basic and Additional Services and include expenses incurred by the Architect
and Architect’s employees and consultants directly related to the Project, as
identified in the following Clauses:


 


.1                        transportation
in connection with the Project outside of Las Vegas, authorized out-of-town
travel (air travel to be limited to coach fares when available) and
subsistence, and electronic communications;


.2                        fees paid
for securing approval of authorities having jurisdiction over the Project;


.3                        reproductions,
plots, standard form documents, postage, handling and delivery of Instruments
of Service;


.4                        expense of
overtime work requiring higher than regular rates if authorized in advance by
the Owner;


.5                        renderings,
models and mock-ups requested by the Owner;


.6                        expense of
professional liability insurance dedicated exclusively to this Project or the
expense of additional insurance coverage or limits requested by the Owner in
excess of that normally carried by the Architect and the Architect’s
consultants subject to the prior written approval of the Owner;


.7                        reimbursable
expenses as designated in Article 12;


.8                        other
similar direct Project-related expenditures.


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM  – 1997. Copyright
  © 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is
  protected by U.S. Copyright Law and International Treaties. Unauthorized
  reproduction or distribution of this AIA® Document, or any portion
  of it, may result in severe civil and criminal penalties, and will be
  prosecuted to the maximum extent possible under the law. This
  document was produced by AIA software at 15:18:01 on 07/03/2007 under Order
  No. 1000280837_1 which expires on 1/23/2008, and is not for resale.

  
	
   

  	
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  Notes:

  	
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14

















 


§ 10.3
PAYMENTS ON ACCOUNT OF BASIC SERVICES


 


§ 10.3.1
An initial payment as set forth in Section 11.1 is the minimum payment under
this Agreement.


 


§ 10.3.2
Subsequent payments for Basic Services shall be made monthly and, where
applicable, shall be in proportion to services performed within each phase of
service, on the basis set forth in Section 11.2.2.


 


§ 10.3.3
If and to the extent that the time initially established in Section 11.5.1 of
this Agreement is exceeded or extended through no fault of the Architect,
compensation for any services rendered during the additional period of time
shall be computed as a lump sum change to the Basic Services generally
consistent with the methods established in Section 11.2.2 as applied to the
added durations, in so far as the added duration is limited to a timely and
prudent extensions the schedule.


 


(Paragraphs
deleted)


§ 10.4
PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES


 


Payments on account of
the Architect’s Additional Services and for Reimbursable Expenses shall be made
monthly upon presentation of the Architect’s statement of services rendered or
expenses incurred.


 


§ 10.5
PAYMENTS WITHHELD


 


No deductions shall be
made from the Architect’s compensation on account of penalty, liquidated
damages or other sums withheld from payments to contractors, or on account of
the cost of changes in the Work other than those for which the Architect has
been adjudged to be liable.


 


§ 10.6
ARCHITECT’S ACCOUNTING RECORDS


 


Records of Reimbursable
Expenses and expenses pertaining to Additional Services and services performed
on the basis of hourly rates or a mu1tiple of Direct Personnel Expense shall be
available to the Owner or the Owner’s authorized representative at mutually
convenient times.


 


ARTICLE
11 BASIS OF COMPENSATION


 


The Owner shall
compensate the Architect as follows:


 


§ 11.1 An
Initial Payment of Zero ($0) shall be made upon execution of this Agreement and
credited to the Owner’s account at final payment.


 


§ 11.2
BASIC COMPENSATION


 


§ 11.2.1
For Basic Services, as described in Article 2, and any other
services included in Article 12 as part of Basic Services, Basic Compensation
shall be computed as follows:


 


(Insert
basis of compensation, including stipulated sums, multiples or percentages, and
identify phases to which particular methods of compensation apply, if
necessary.)


 


The proposed Professional
Services Fee for the Project Scope of Work Described above shall be based on a Fixed Fee amount of Two Million, Eight Hundred
Ninety-Two Thousand Nine Hundred Dollars ($2,892,900.00).


 


§ 11.2.2
Progress payments for Basic Services in each phase shall
total the following percentages of the total Basic Compensation payable:


 


(Insert
additional phases as appropriate.)


 


	
  Schematic Design Phase:

  	
   

  	
  Twenty

  	
   

  	
  percent

  	
   

  	
  (20

  	
  )%

  	
  $

  	
  578,580.00

  	
   

  
	
  Design Development Phase:

  	
   

  	
  Twenty

  	
   

  	
  percent

  	
   

  	
  (20

  	
  )%

  	
  $

  	
  578,580.00

  	
   

  
	
  Construction Documents Phase:

  	
   

  	
  Fifty

  	
   

  	
  percent

  	
   

  	
  (50

  	
  )%

  	
  $

  	
  1,446,450.00

  	
   

  
	
  Bidding or Negotiation Phase:

  	
   

  	
  Zero

  	
   

  	
  percent

  	
   

  	
  (0

  	
  )%

  	
  -0-

  	
   

  
	
  Construction Phase:

  	
   

  	
  Ten

  	
   

  	
  percent

  	
   

  	
  (10

  	
  )%

  	
  $

  	
  289,290.00

  	
   

  
	
  Total Basic Compensation

  	
   

  	
  one hundred

  	
   

  	
  percent

  	
   

  	
  (100.00

  	
  )%

  	
  $

  	
  2,892,900.00

  	
   

  



 


§ 11.3
COMPENSATION FOR ADDITIONAL SERVICES


 


§ 11.3.1
For Project Representation Beyond Basic Services, as described in Section 3.2,
compensation shall be computed as follows:


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987 and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which
  expires on 1/23/2008, and is not for resale.

  
	
   

  	
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  Notes:

  	
  (17231848)

  



 


15

















 


§ 11.3.2
For Additional Services of the Architect, as described in
Articles 3 and 12, other than (1) Additional Project Representation, as
described in Section 3.2, and (2) services included in Article 12 as part of
Basic Services, but excluding services of consultants, compensation shall be
computed using a multiplier of two and one-half (2.5) times the Architect’s direct
payroll cost.


 


(Insert
basis of compensation, including rates and multiples of Direct Personnel
Expense for Principals and  employees,
and identify Principals and classify employees, if required. Identify specific
services to which particular methods of compensation apply, if necessary.)


 


Following are YWS
Architects billable hourly rates for time and material services beyond those
described herein:


 


	
  Principal:

  	
   

  	
  $

  	
  280.00

  	
   

  
	
  Project Architect:

  	
   

  	
  $

  	
  185.00

  	
   

  
	
  Job Captain:

  	
   

  	
  $

  	
  125.00

  	
   

  
	
  Draftsman:

  	
   

  	
  $

  	
  100.00

  	
   

  
	
  Administrative:

  	
   

  	
  $

  	
  65.00

  	
   

  



 


Design changes greater
than plus or minus 10% of gross building area to the established Scope of Work
are subject to a modification to the fee as outlined above. Such modifications
will be submitted as a request for Additional Services.


 


§ 11.3.3
For Additional Services of Consultants, including additional structural,
mechanical and electrical engineering services and those provided under Section
3.4.19 or identified in Article 12 as part of Additional Services, a multiple
of one and one-quarter (1.25) times the amounts billed to the Architect for
such services.


 


(Identify
specific types of consultants in Article 12, if required.)


 


§ 11.4 REIMBURSABLE EXPENSES


 


For Reimbursable Expenses, as described in
Section 10.2, and any other items included in Article 12 as Reimbursable
Expenses, a multiple of one and one-tenth (1.10) times the expenses incurred by
the Architect, the Architect employees and consultants directly related to the
Project.


 


§ 11.5
ADDITIONAL PROVISIONS


 


§ 11.5.1
If  the Basic
Services covered by this Agreement have not been completed within eighteen (18)
months of the date hereof, through no fault of the Architect, extension of the
Architect’s services beyond that time shall be compensated as provided in
Sections 10.3.3 and 11.3.2.


 


§ 11.5.2
Payments are due and payable thirty (30) days from the date of the Architect’s
invoice. Amounts unpaid sixty (60) days after the invoice date shall bear
interest at the rate entered below.


(Insert
rate of interest agreed upon.)


 


10.00% per annum


 


(Usury
laws and requirements under the Federal Truth in Lending Act, similar state and
local consumer credit laws  and
other regulations at the Owner’s and Architect’s principal places of business,
the location of the Project and elsewhere may affect the validity of this
provision. Specific legal advice should be obtained with respect to deletions
or modifications, and also regarding requirements such as written disclosures
or waivers.)


 


§ 11.5.3
The rates and multiples set forth for Additional Services
shall be adjusted in accordance with the normal salary review practices of the
Architect.


 


ARTICLE
12 OTHER CONDITIONS OR SERVICES


 


(Insert
descriptions of other services, identify Additional Services included within
Basic Compensation and modifications to the payment and compensation terms
included in this Agreement.)


 


§ 12.1
ARCHITECT’S ENGINEERS and CONSULTANTS


 


§ 12.1.1
The following Consultants will be provided to the Project on
an as-needed basis as part of the Architect’s Design Team and the fees
therefore are included in the Architect’s Compensation for Basic Services:


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997. Copyright © 1974, 1978, 1987 and
  1997 by The American Institute of Architects. All rights
  reserved. WARNING: This AIA® Document is protected by U.S.
  Copyright Law and International Treaties. Unauthorized reproduction or
  distribution of this AIA® Document, or any portion of it, may
  result in severe civil and criminal penalties, and will be prosecuted to the
  maximum extent possible under the law. This document was produced
  by AIA software at 15:18:01 on 07/03/2007 under Order No. 1000280837_1 which expires
  on 1/23/2008, and is not for resale.

  
	
   

  	
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  (17231848)

  



 


16

















 


	
  Site Survey

  	
   

  	
  IIW Engineering

  
	
   

  	
   

  	
   

  
	
  Civil Engineering and Landscape Architecture

  	
   

  	
  Yaggy Colby and Associates

  
	
   

  	
   

  	
   

  
	
  Structural Engineering

  	
   

  	
  Barker Drottar Associates

  
	
   

  	
   

  	
   

  
	
  Interior Design & FFE Specifications

  	
   

  	
  Studio Forma

  
	
   

  	
   

  	
   

  
	
  Food Service Design

  	
   

  	
  Clevenger & Associates

  
	
  M/P/E, Audio/Visual, Low-Voltage,
  Telecommunications, Data, Security & Surveillance Engineering, Acoustics
  Review, Fire Alarm Specification/Performance Design and Review, Fire
  Sprinkler Systems Design, Layout and Review, including Head End Equipment
  Specifications for same.

  	
   

  	
  JBA Consulting Engineers

  
	
   

  	
   

  	
   

  
	
  Architectural Lighting, Theatrical Lighting &
  Rigging Design, Exterior Façade/Building Lighting, Site Lighting

  	
   

  	
  CD+M Lighting Design Group

  
	
   

  	
   

  	
   

  
	
  Exterior Closure, Roofing & Waterproofing

  	
   

  	
  IBA Consultants, Inc.

  
	
   

  	
   

  	
   

  
	
  Vertical Transportation Systems

  	
   

  	
  HKA Elevator Consulting

  
	
   

  	
   

  	
   

  
	
  Interior Signage & Way Finding

  	
   

  	
  Egads!

  
	
   

  	
   

  	
   

  
	
  Project Manual: and Specifications

  	
   

  	
  The Spectra Group

  



 


§12.2
OWNER’S CONSULTANTS


 


§ 12.2.1
The following Consultants
may be required for the Project and are to be provided for and paid by others
as required:


 


Consulting Services not
specifically referenced above, including (but not limited to):


 


•                             Traffic Impact Analysis
and Report


•                             Technical Drainage Study


•                             Off-site Improvement
Design (Roadway, Signal, Etc.)


•                             Fire Alarm System
Engineering


•                             Fire Sprinkler Engineering


•                             Plan Check and/or Peer
Review Services


 


All Environmental
Assessment Investigations and Reports


 


•                             Geotechnical Engineering
Services


 


All Franchise utility
design to the project including by not limited to:


 


•                             Power


•                             Natural Gas


•                             Domestic Water Supply
& Waste Water Treatment Systems


•                             Telecommunications and/or
Data Communications


 


Material Handling Systems
including, but not limited to:


 


•                             Coin & Cash Counting
Equipment


•                             Baggage Handling Systems


•                             Uniform Issue
Racking/Storage Systems


•                             Food Service Pulping
Systems


•                             Commercial Laundry Systems


 


All design renderings and
models as requested by the Owner (see Section 11.4 Reimbursable Expenses)


Branding


All Permit Fees


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997.  Copyright
  © 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA®
  Document is protected by U.S. Copyright Law and International Treaties.
  Unauthorized reproduction or distribution of this AIA® Document,
  or any portion of it, may result in severe civil and criminal penalties, and
  will be prosecuted to the maximum extent possible under the law.
  This document was produced by AIA software at 15:18:01 on 07/03/2007 under
  Order No. 1000280837_1 which expires on 1/23/2008, and is not for resale.

  
	
   

  	
  User
  Notes:

  	
  (17231848)

  



 


17

















 


Construction Staking
Services

Life Safety System Commissioning & Testing Scenarios


 


§ 12.3
Insurance: The Architect shall affect and maintain insurance
to protect itself from claims personal injury, sickness or disease, or death of
any of his employees, and for claims of damages because of injury to or
destruction of  tangible property
including loss of use resulting therefrom; and from claims arising out of the
performance of professional services caused by any errors, omissions or
negligent acts of the Architect. The policies and policy limits for Architect
and its Consultants are set forth in  Exhibit
B – Insurance for Architect and its Consultants (attached). The Architect
require its Consultants to obtain and maintain insurance similar to that
required of the Architect by the Owner, except as otherwise noted in Exhibit B –
Insurance for Architect and its Consultants (attached). Architect shalls secure
Professional Liability Insurance in the amount of One Million Dollars
$1,000,000,00) and shall remain in full force and effect during the entire
course of the Architect’s services on the Project and shall maintain that dollar
amount of insurance for a period of seven (7) years after completion of the
Project provided such coverage is reasonably available at commercially
affordable premiums.


 


§ 12.4
Other Services: The Architect shall assist the Owner in
applying for those permits and approvals normally required by law for projects
similar to the one for which the Architect’s services are being engaged. This
assistance shall consist of completing and submitting forms to the appropriate
regulatory agencies having jurisdiction over the construction documents, and
other services normally provided by the Architect and included in the scope of
Basic Services of this Agreement. The Architect shall visit the Project for one
full day approximately once per three (3) weeks during the term of this
Agreement with a total of twenty one (21) site visits. Each such visit is
included in the Basic Services and actual times and dates of travel will be
adjusted per the progress of the construction.


 


§ 12.4.1
The Architect shall visit the Project site throughout the
course of construction on twenty one (21) separate occasions as part of the
Architect’s Basic Services. If additional site visits are requested by the
Owner after completion of the initial twenty one (21) visits, the Architect
shall be compensated for such visits on an Additional services basis per § 11.3.2. The durations of each site visit
shall be a minimum of one full day on-site but may be substantially 1onger as
necessary to meet Project requirements or schedule, but shall not constitute
full-time representation by the Architect.


 


The Architect’s
Consultants shall visit the Project site at the direction of the Architect and
at intervals appropriate to the stage of the Contractor’s operations.
Additionally, the Architect’s Consultants shall visit the Project site as
necessary to meet Project requirements when requested to do so by the Owner or
Contractor. All requests for Architect’s Consultants’ site visits shall be
directed to the Architect. The duration of each site visit shall be a minimum
of one full day on-site but may substantially longer as necessary to meet
Project requirements or schedule. Each such visit is included in the Basic
Services.


 


§ 12.5
Savings Clause: Should any
provision in this Agreement be found to be unenforceable, then only that
provision will be stricken and the balance of the Agreement will remain in full
force and effect.


 


§ 12.6 Indemnification:
Architect agrees, to the fullest extent permitted by law, to indemnify and hold
the Owner harmless from any damage, liability or cost (including reasonable
attorneys’ fees and costs of defense) to the proportionate extent caused by
Architect’s willful misconduct or negligent acts, errors or omissions in the
performance of professional services with respect to this Agreement or the
Project.


 


Owner agrees, to the
fullest extent permitted by law, to indemnify and hold the Architect harmless
from any damage, liability or cost (including reasonable attorneys’ fees and
costs of defense) to the proportionate extent caused by Owner’s willful
misconduct or negligent acts, errors or omissions of Owner with respect to this
Agreement or the Project.


 


Neither Owner nor
Architect shall be obligated to indemnify the other party in any manner
whatsoever for the other party’s own negligence or willful misconduct. The
indemnity obligations provided under this section shall only apply to the
extent such Claims is/are determined by a court of competent jurisdiction to
have been caused by the negligence or willful misconduct of Architect or Owner.


 


§ 12.6.1
Subconsultant/Contractor Indemnity Agreements. The Architect
agrees to obtain or cause to be obtained executed indemnity obligations within
its consultant agreements from its consultants similar to those set


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997.  Copyright
  © 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA®
  Document is protected by U.S. Copyright Law and International Treaties.
  Unauthorized reproduction or distribution of this AIA® Document,
  or any portion of it, may result in severe civil and criminal penalties, and
  will be prosecuted to the maximum extent possible under the law.
  This document was produced by AIA software at 15:18:01 on 07/03/2007 under
  Order No. 1000280837_1 which expires on 1/23/2008, and is not for resale.

  
	
   

  	
  User
  Notes:

  	
  (17231848)

  



 


18

















 


forth in this Section
12.6 above requiring the consultants to indemnify the Owner as well as the
Architect. Likewise, the Owner agrees to obtain or cause to be obtained
executed indemnity obligations within its other consultant agreements and
contractor agreement(s) similar to those set forth in this Section 12.6 above
requiring such consultants and contractor(s) to indemnify the Architect as well
as the Owner.


 


§ 12.7
Corporate Liability: It is intended by the parties to this
Agreement that the Architect’s Services in connection with the Project shall
not subject the Architect’s individual employees, shareholders, officers or
directors to any personal legal exposure for the risks associated with this
Project. Therefore, and notwithstanding anything to the contrary contained
herein, the Owner agrees that as the Owner’s sole and exclusive remedy, any
claim, demand or suit shall be directed and/or asserted only against the
Architect entity, and not against any of the Architect’s individual employees,
officers, members, shareholders, managers, or directors.


 


It is intended by the
parties to this Agreement that the Owner’s activities in connection with the
Project shall not subject the Owner’s employees, officers, members,
shareholders, managers or directors to any personal legal exposure for the
risks associated with this Project. Therefore, and not withstanding anything to
the contrary contained herein, the Architect agrees that as the Architect’s
sole and exclusive remedy, any claim, demand or suit shall be directed and/or
asserted only against the Owner entity, and not against any of the Owner’s
individual employees, officers, members, shareholders, managers, or directors.


 


§ 12.8
Existing Condition:The Architect acknowledges that the Owner
does not possess and cannot provide documentation to the Architect that fully
describes all existing conditions relevant to the Project. Therefore, the
Architect and its consultants shall exercise due diligence and shall conduct as
part of the basic services under this Agreement reasonable on-site observations
as necessary to discover any existing conditions relevant to the Project that
may not be documented or that may be contrary to previous assumptions. The
Owner shall provide the Architect and its consultants with reasonable access to
the site for all necessary observations requested by the Architect or its
consultants, as the case may be. Any such observations shall be conducted in a
manner that will minimize any inconvenience to the Owner and other persons at
the Project.


 


This Agreement entered
into as of the day and year first written above.


 


	
  OWNER

  	
  ARCHITECT

  	
   

  
	
   

  	
   

  	
   

  
	
  Diamond Jo Casino –
  Dubuque

  	
  Youngblood Wucherer
  Sparer Architects, Ltd.

  	
   

  
	
   

  	
   

  	
   

  
	
   /s/ Kevin Fontenot

  	
   

  	
  /s/ Thomas A. Wucherer

  	
   

  	
   

  
	
  (Signature)

  	
  (Signature)

  	
   

  
	
  Kevin Fontenot,
  Executive Director – Construction &

  Development

  	
   

  	
  Thomas A. Wucherer,
  AIA, Principal

  	
   

  	
   

  
	
   (Printed
  name and title)

  	
   (Printed
  name and title)

  	
   

  



 


 


	
  Init.

  

  /

  	
  AIA
  Document B151TM – 1997.  Copyright
  © 1974, 1978, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA®
  Document is protected by U.S. Copyright Law and International Treaties.
  Unauthorized reproduction or distribution of this AIA® Document,
  or any portion of it, may result in severe civil and criminal penalties, and
  will be prosecuted to the maximum extent possible under the law.
  This document was produced by AIA software at 15:18:01 on 07/03/2007 under
  Order No. 1000280837_1 which expires on 1/23/2008, and is not for resale.

  
	
   

  	
  User
  Notes:

  	
  (17231848)

  



 


19