E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT IN THE IOWA DISTRICT COURT IN AND FOR STORY COUNTY ARCHITECTS SMITH METZGER, P.C., Plaintiff, v. LAW No. SCOTT GRIFFEN and GSS BB, LLC, d/b/a HALL 2 PETITION AT LAW BANQUET EVENT CENTER Defendants. COME NOW, Plaintiff Architects Smith Metzger, P.C., (?Smith Metzger?) and for this Petition states: PARTIES, JURISDICTION, VENUE 1. At all times material to this Petition, Plaintiff Smith Metzger was a registered professional corporation in the State of Iowa with a registered address in Polk County, Iowa. 2. At all times material to this Petition, Defendant Scott Griffen (?Griffen?) was a resident of Story County, IA. 3. At all times material to this Petition, Defendant, GSS BB, LLC, was a registered limited liability corporation in the State of Iowa with a registered address in Story County, IA. 4. Venue is proper pursuant to Iowa Code 616.5 as the defendants are residents of Story County, Iowa. 10. 11. 12. 13. 14. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT 2 BREACH OF WRITTEN CONTRACT On January 22, 2015, Griffen signed a contract entitled ?Standard Form of Agreement Between Owner and Architect? (?Contract?). (Attachment A). The Contract was also signed by Rob Smith on behalf of Smith Metzger. Rob Smith is the Principal. Architect at Smith Metzger. Rob Smith signed the contract on behalf of Smith Metzger. The contract was for Smith Metzger?s professional architect services in planning and designing a ?brewery and event center? in Ames, Iowa. (Attachment A, p. 1). (Attachment B). The contract is a valid binding contract on both the Plaintiff and the Defendants. The Plaintiff performed the necessary services as required by the contract. This includes meetings with the defendants, City of Ames, and mechanical teams. It also includes design of brewery and event center, the hiring of a civil engineer, and other additional services. The Plaintiffs billed the Defendants for $25,003.55 on April 4, 2015 for the services they had performed under the Contract. (Attachment C). The Defendants have not paid the outstanding bill despite repeated requests from the Plaintiffs. Under section 11.102 of the Contract, payments to the architect are due and payable upon presentation of the Architects invoice. (Attachment A, p. 17). The Plaintiff has presented an invoice to the Defendants. The Defendants has failed to submit payment to the architect. This constitutes a breach of contract on behalf of the Defendants. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT 3 15. The Plaintiff has suffered damages in the amount of $25,003.55 plus interest as a result of the?Defendants breach of contract. WHEREFORE, Plaintiff demands judgment against Defendant for the full, fair and reasonable amount of Plaintiff?s damages together with interest as provided by law, attorney fees and expenses as provided by the contract, all past expenses due with interest and the costs of this action. HANSEN, MCCLINTOCK RILEY BY DAVID L. BROWN AT0001215 5th Floor US. Bank Building 520 Walnut Street Des Moines, Iowa 50309 Telephone: (515) 244-2141 Facsimile: (515) 244?2931 ATTORNEY FOR PLAINTIFFS, ROBERT SMITH and ARCHITECTS SMITH METZGER, P.C init. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT AGREEMENT made as of the Twenty-second day of January in the year Two Thousand Fifteen (In words, indicate day, month andyear.) BETWEEN the Architect?s client identi?ed as the Owner: Warns, legal status. address and other fnfonnarion) GSS, inc. PO Box 1928 Ames 1A 50010 and the Architect: (Name, legal status, address and other infomation) Architects Smith Meteger, Professional Corporation 21 i 1 Grand Avenue, Suite 2200 Des Moines IA 50312 Telephone Number: 515?244-21 i 1 Fax Number: 515?244?06i5 for the following Project: (Name, location and detailed descriplion) Brewery and Event Center 380 South 17th Street Ames IA 50010 Project consists of a brewery and 600 seat banquet hall with kitchen and support space. Total square footage is approximately 30,0005f with the brewery being approximately 1 1,000 square feet. The Ovmer and Architect agree as follows. Document 8101?? 2007 Standard Form of Agreement Between Owner and Architect MMIONS AND The author of this document has added information needed for its completion. The author may also have revised the text of the original AEA 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 taxi. This document has important legal consequencaa. Consultation with an altomey is encouraged with respect to its completion or modi?cation. NA Document 8101 2007 (formerly 8151 - 199?). Copyright 1974, 19m, 1987, 1997 and 2007 by The American institute of Architects. All rights reserved. WARNING: This Document is protected by 13.8. Copyright Law and international Treaties. Unauthorized reproduction or distributlan of this Document, or any portion of it. may result in severe civil and criminal penalties, and wiil be prosecuted to the maximum extent possibie under the law. This document was produced by software at 16:10:31 on 01122I2015 under Order which expires on 0312312015, and is not for resale. User Notes: A It (843728499) Inlt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT TABLE OF ARTICLES ?1 INITIAL INFORMATION 2 RESPONSIBILITIES 3 SCOPE or ARCHITECTS BASIC SERVICES 4 ADDITIONAL SERVICES 5 RESPONSIBILITIES 6 COST OF THE WORK 7 COPYRIGHTS AND LICENSES 8 CLAIMS AND DISPUTES 9 TERMINATION OR SUSPENSION MISCELLANEOUS PROVISIONS 11 COOPEHSATICN 12 SPECIAL TSRSIS AND CONDITIONS IS SCOPE OF TIIS AGREEMENT EXHIBIT A INITIAL INFORMATION ARTICLE ?1 INITIAL INFORMATION 1.1 This Agreement is based on the Initial Information set forth in this Article I and in optima} Exhibit A,Initia1 Information: (Complete Exhibfr A, Initial Infomtion, and incorporate it into the Agreement at Section 13.2, or state below Initial Injbmarion such as details of the Project ?3 Site and program, Owner '5 contractors and consultants, Architect ?5 consultants, Omer?s budget for the Cost ofthe Work, authorized representatives, anticipated procurement method, and other infomation relevant to the Project.) 1.2 The: Owner?s anticipated dates for commencement of construction and Substantiai Completion of the Work are set forth below: .1 Commencement of construction date: May 15, 2015 .2 Substantial Completion date: March 01 2016 1.3 The Owner and Architect may rely on the Initiai Infomation. Both parties, however, recognize that such infomation may materially change and, in that event, the Owner and the Architect Shall appropriately adjust the schedule, the Architect?s services and the Architect?s compensation. ARTICLE 2 RESPONSIBILITIES 2.1 The Architect shah provide the professional sen/ices as set forth in this Agreement. AIA Document 3181'? - 2607 (fonne?y 8151? ~1997). Copyright 1974, 191?s, 1987, 1997 and 2007 by The American Institute of Architects. NI :1ng W96. WARNING: This Document is protected by 1.1.8. Copyright Law and'lntemationaf Treaties. Unauthorized reproduction or distribution of 11113 Document, or any portion of it, may result in severe Civii and criminaI penaities, and witl be?prosecuted to the maximum extent possibie under the Iaw. This document was produced by MA software at 16:10:31 on 0112212015 under Order [40.5492019572?1 which expires on 03232015, and is not for resale. User Notes: (843728499) 2 lnlt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT 2.2 The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. 2.3 The Architect shall identify a representative authorized to act on behalf of the Architect with respect to the Project. 2.4 Except with the Owner?s knowledge and consent, the Architect shall not engage in any activity, or accept any employment, interest or contribution that would reasmably appear to compromise the Architect?s professional judgment with respect to this Project. 2.5 The Architect shall maintain the following insurance for the duration of this Agreement. If any of the requirements set forth below exceed the types and limits the Architect normally maintains, the Owner shall reimburse the Architect for any additional cost: (Identi?z types and limits of insurance coverage, and other insurance requirements applicable to the Agreement, if any.) General Liability $2,000,000 General Aggregate $1,000,000 Occurrence Limit $1,000,000 Personal Advertising Injury 200,000 Fire Damage 3 10,000 Medical Expense .2 Automobile Liability $1,000,000 Hired Non~0wned Auto Liability Limit .3 Workers? Compensation $500,000 Bl by Accidenthach Accident $500,000 131 by Disease/Each Employee $500,000 BI by Disease/Policy Limit .4 l?rofe-ssional Liability $4,000,000 Each Claim $2,000,000 Aggregate ARTICLE 3 SCOPE OF SERVICES 3.1 The Architect?s Basic Services consist of those described in Article 3 and include usual and customary structural, mechanical, and electrical engineering services. Services not set forth in this Article 3 are Additional Services. 3.1.1 The Architect shall manage the Architect?s services, consult with the Owner, research applicable design criteria, attend Project meetings, communicate with members of the Project team and report progress to the Owner. 3.3.2 The Architect shall coordinate its services with those services provided by the Owner and the Owner?s consultants. The Architect shall be entitled to rely on the accuracy and completeness of services and in formation ?tmished by the Owner and the Owner?s consultants. The Architect shall provide prompt written notice to the Owner if the Architect becomes aware of any error, omission or inconsistency in such services or information. NA Document 31.01 2007 (fonnerly 31517? - 1997). Copyright 197.5, 191's, 1967. 1997' and 2007 by The American institute of Architects. All rights renewed. WARNING: This Document is protected by 0.3. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this 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 16:10:31 on 011222015 under Order which ?claims on 03123I2015. and is not for resale. User Notes: (843728499) 3 lntt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT 3.1.3 As soon as practicable after the date of this Agreement, the Architect shall submit for the Dwner?s approval a schedule for the performance of the Architect?s services. The schedule initially shall include anticipated dates for the commencement of construction and for Substantial Completion of the Work as set forth in the initial Information. The schedule shall include allowances for periods of time required for the Grantor?s review, for the performance of the Owner?s consultants, and for approval of submissions by authorities having jurisdiction over the Project. Once approved by the Owner, time limits established by the schedule shall. not, except for reasonable cause, be exceeded by the Architect or Owner. With the Owner?s approval, the Architect shall adjust the schedule, if necessary, as the Project proceeds until the commencement of construction. 3.1.4 The Architect shall not be responsible for an Owner?s directive or substitution made without the Architect?s approval. 3.1.5 The Architect shall, at appropriate times, contact the governmental authorities required to approve the Construction Documents and the entities providing utility services to the Project. In designing the Project, the Architect shall respond to applicable design requirements imposed by such governmental authorities and by such entities providing utility services. 3.1.6 The Architect shall assist the Owner in connection with the Owner?s responsibility for ?ling documents required for the approval of governmental authorities having jurisdiction over the Project. 3.2 SERVICES 3.2.1 The Architect shall review the program and other information furnished by the Owner, and shall review laws, codes, and regulations applicable to the Architect?s services. 3.2.2 The Architect shall prepare a preliminary evaluation of the Owner?s program, schedule, budget for the Cost oftbe Work, Project site, and the proposed procurement or delivery method and other initial Information, each in terms of the other, to ascertain the requirements of the Project. The Architect shall notify the Owner of (1) any inconsistencies discovered in the informatics}, and (2) other information or consulting services that may be reasonably needed for the Project. 3.2.3 The Architect shall present its preliminary evaluation to the Owner and shall discuss with the Owner alternative approaches to design and construction of the Pro} set, including the feasibility of incorporating environmentally responsible design approaches. The Architect shall reach an understanding with the Owner regarding the requirements of the Project. 3.2.4 Based on the Project?s requirements agreed upon with the Owner, the Architect shall prepare and present for the Owner?s approval a preliminary design illustrating the scale and relationship of the Project components. 3.2.5 Based on the Owner?s approval of the preliminary design, the Architect shall prepare Schematic Design Documents for the Owner?s approval. The Schematic Design Documents shall consist of drawings and other documents including a site plan, if appropriate, and preliminary building plans, sections and elevations; and may include some combination of study models, perspective sketches, .or digital modeling. Preliminary selections of major building systems and construction materials shall be noted on the drawings or described in writing. 3.2.5.1 The Architect shall consider environmentally reSponsible design alternatives, such as material choices and building orientation, together with other considerations based on program and aesthetics, in developing a design that is consistent with the Owner?s program, schedule and budget for the Cost of the Work. The Owner may obtain other environmentally responsible design services under Article 4. 3.2.5.2 The Architect shall consider the value of alternative materials, building systems and equipment, together with other considerations based on program and aesthetics, in developing a design for the Project that is consistent with the Owner?s program, schedule and budget for the Cost of the Work. 3.2.6 The Architect shall submit to the Owner an estimate of the Cost of the Work prepared in accordance with Section 6.3. NA Document - 2&0? (formerly 8151?? 199?). Copyright 19%, 19'13, 1987, 1997 and by The Arnetican institute of Architects. All rights reserved. WARNING: This Document is protected by 1.1.8. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this ?ocument, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maxlmum extent possible under the law. This document was produced by MA software at 16:10:31 on 01:221?2015 under Order No.5492?019572?1 which expires on 0323/2015, and is not for resale. User News: (843728499) 4 In?. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT The Architect shall submit the Schematic Design Documents to the Owner, and request the Owner?s approval. 3.3 DESIGN DEVELOPMENT PHASE SERWCES 3.3.1 Based on the Owner?s approval of the Schematic Design Documents, and on the Owner?s authorization of any adjustments in the Project requirements and the budget for the Cost of the Work, the Architect shall prepare Design Development Documents for the Owner?s approval. The Design Development Documents shall illustrate and describe the development of the approved Schematic Design Documents and shall consist of drawings and euro documents including plans, sections, elevations, typical construction details, and diagrammatic layouts of building systems to fix and describe the size and character of the Project as to architecuiral, structural, mechanical and electrical systems, and such other elements as may be appropriate. The Design Development Documents shall also include outline speci?cations that identify major materials and systems and establish in general their quality levels. 3.3.2 The Architect shall update the estimate of the Cost of the Work. 3.3.3 The Architect shall submit the Design Development Documents to the Owner, advise the Owner of any adjustments to the estimate of the Cost of the Work, and request the Owner?s approval. 3.4 CONSTRUCTION DOCUMENTS PHASE SERVICES 3.4.1 Based on the Owner?s approval of the Design Development Documents, and on the Owner?s authorization of any adjustments in the Project requirements and the budget for the Cost of the Work, the Architect shall prepare Construction Documents for the Owner?s approval. The Construction Documents shall illustrate and describe the timber development of the approved Design Development Documents and shall consist of Drawings and Speci?cations setting forth in detail the quality levels of materials and systems and other requirements for the construction of the Work. The Owner and Architect aclmowledge that in order to construct the Work the Contractor will provide additional information, including Shop Drawings, Product Data, Samples and other similar submittals, which the Architect shall review in accordance with Section 3.6.4. 3.4.2 The Architect shall incorporate into the Construction Documents the design requirements of governmental authorities having jurisdiction over die Project. 3.4.3 During the development of the Construction Documents, the Architect shall assist the Owner in the development and preparation of (I) bidding and procurement information that describes the time, place and conditions of bidding, including bidding or proposal fonns; (2) the form of agreement between the Owner and Contractor; and (3) the Conditions of the Contract for Construction (General, Supplementary and other Conditions). The Architect shall also compile a project manual that includes the Conditions of the Contract for Construction and Speci?cations and may include bidding requirements and sample forms. - 3.4.4 The Architect shall update the estimate for the Cost of the Work. 3.4.5 The Architect shall submit the Construction Documents to the Owner, advise the Owner of any adjustments to the estimate of the Cost of the Work, take any action required under Section 6.5, and request the Owner?s approval. 3.5 BIDDING 0R PHASE SERVICES 3.5.1 GENERAL The Architect shall assist the Owner in establishing a list of prospective contractors. Following the Owner?s approval of the Construction Documents, the Architect shall assist the Owner in (1) obtaining either competitive bids or negotiated proposals; (2) continuing responsiveness of bids or proposals; (3) determining the successful bid or proposal, if any; and, (4) awarding and preparing contracts for construction. 3.5.2 COMPETITIVE {5 3.5.2.1 Bidding Documents shall consist of bidding requirements and proposed Contract Documents. 3.5.2.2 The Architect shall assist the Owner in bidding the Project by .1 procuring the reproduction of Bidding Documents for distribution to prospective bidders; Document 810?! - 260?? (fonnoriy B151 l" - 1997). Copyright 6} 1974. 1978, 1987, 1997 and 200? by The American institute of Architects. All rights reserved. WARNING: This Document is protected lay U.S. Copyright Law and International Treaties. Unauthorilad reproduction or distribution of this Document, or any portion of it, may result in severe civil and crimlnal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by MA software at 16:19:31 on 01/22/2015 under Order which expires on osizsram 5, and is not for resale. User Notes: (843728499) 5 inlt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT .2 distributing the Bidding Documents to prospective bidders, requesting their return upon compietion of the bidding process, and maintaining a log of distribution and retrieval and of the amounts of deposits, if any, received from and returned to prospective bidders; (Paragraph deleted) .4 preparing responses to questions from proSpective bidders and providing clari?cations and interpretations of the Bidding Documents to all prospective bidders in the form of addenda; and .5 organizing and conducting the opening of the bids, and subsequently documenting and distributing the bidding results, as directed by the Owner. 3.5.2.3 The Architect shall consider requests for substitutions, if the Bidding Documents permit substitutions, and shall prepare and distribute addenda identifying approved substitutions to all prospective bidders. (Paragraphs deleted) 3.6 CONSTRUCTION PHASE 3.6.1 GENERAL 1 3.6.1.1 The Architect shat! provide administration of the Contract between the Owner and the Contractor as set forth below and in AIA Document AZOEMEOOZ General Conditions of the Contract for Construction. If the Owner and Contractor modify AIA Document A201w2007, those modi?cations shall not affect the Architect?s services under this Agreement unless the Gwner and the Architect amend this Agreement. 3.6.1.2 The Architect shall advise and consult with the Owner during the Construction Phase Services. The Architect shall have authority to act on behalf of the aner only to the extent provided in this Agreement. The Architect shalt not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures,- or for safety precautions and programs in connection with the Work, nor shalt the Architect be responsible for the Contractor?s failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect shalt be responsible for the Architect?s negligent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractor or of any other persons or entities performing portions of the Work. 3.5.1.3 Subject to Section 4.3, the Architect?s responsibility to preside Construction Phase Services commences with the award of the Contract for Construction and terminates on the date the Architect issues the ?nal Certi?cate for Payment. 3.6.2 EVALUATIONS OF THE WORK 3.6.2.1 The Architect shall visit the site at intervals appropriate to the stage of construction, or as edict-wise required in Section 4.3.3, to become generally familiar with the progress and quality of the portion of the Work completed, and to determine, in general, if the Work observed is being performed in a manner indicating that the Work, when fuliy completed, will be in accordance with the Contract Documents. However, the Architect shail not be required to make exhaustive or continuous on-site inspections to check the quaiity or quantity of the Work. On the basis of the site visits, the Architect shall keep the Owner reasonably in formed about the progress and quality of the portion of the Work completed, and report to the Owner (1) known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor, and (2) defects and de?ciencies observed in the Work. 3.8.2.2 The Architect has the authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect shall have the authority to require inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or empioyees or other persons or entities performing portions oftbe Work. 3.6.2.3 The Architect shall interpret and decide matters concerning performance under, and requirements of, the Contract Documents on Mitten 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. NA Document B181 .- 2007 (formerly B151 - 19973. Copyright 1974. 1973. 1987, 1997 and 200? by The American institute ofArdtitects. rights reserved. WARNENG: This Document is protected by us. Copyright'Law and tntematlonal Treaties. Unauthorized reproduction or distribution of this Document. or any portion of it, may result to severe civil and criminal penalties, and will be prosecuted to the maximum extent possibie under the law. This document was produced by so?ware at 16:10:31 on 0112212015 under Order No.5492019572_1 which expires on 03231201 5, and is not for resale. User Notes: (843728499) E-FILED 2016 MAR 0910:15 AM STORY 7 CLERK OF DISTRICT COURT 3.6.2.4 Interpretations and decisions of the Architect shall be consistent with the intent of and reason ably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and decisions, the Architect shall endeavor to secure Faithful perfomance by both Owner and Contractor, shall not Show partiality to either, and shall not be liable for results of interpretations or decisions rendered in good faith. The Architect?s decisions on matters relating to aesthetic effect shall be ?nal it" consistent with the intent expressed in the Contract Documents. 3.6.2.5 Unless the Owner and Contractor designate another person to serve as an Initial Decision Maker, as that term is de?ned in AKA Document the Architect shall render initial decisions on Claims between the Owner and Contractor as provided in the Contract Documents. 5 3.6.3 CERTIFICATES FOR PAYMENT TO CONTRACTOR 3.6.3.1 The Architect shall review and certify the amounts due the Contractor and shall issue certi?cates in such amounts. The Architect?s certi?cation for payment shall constitute a representation to the Owner, based on the Architect?s evaluation of the Work as provided in Section 3.6.2 and on the data comprising the Contractor?s Application for Payment, that, to the best of the Architect?s loiowledge, information and belief, the Work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject (1) to an evaluation ofthc 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 speci?c quali?cations expressed by the Architect. 3.6.3.2 The issuance of a Certi?cate for Payment shall not be a representation that the Architect has (I) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor?s right to payment, or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 3.6.3.3 The Architect shall maintain a record of the Applications and Certi?cates for Payment. 3.6.4 3.6.4.1 The Architect shall review the Contractor?s submittal schedule and shall not unreasonably delay or withhold approval. The Architect?s action in reviewing submittals shall be taken in accordance with the approved submittal schedule or, in the absence of an approved submittal schedule, with reasonable promptness while allowing suf?cient time in the Architect?s professional judgment to permit adequate review. 3.5.4.2 In accordance with the Architect?approved submittal schedule, the Architect shall review and approve or take other appropriate action norm the Contractor?s submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. Review of such submittals is not for the purpose the accuracy and completeness of other information such as dimensions, quantities, and installation or pcrfonnance or systems, which are the Contractor?s responsibility. The Architect?s review shall not constitute approval of safety precautions or, unless otherwise Speci?cally stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect?s approval of a speci?c item shall not indicate approval of an assembly of which the item is a component. 3.6.4.3 if the Contract Documents speci?cally require the Contractor to provide professional design services or certi?cations by a design professional related to systems, materials or equipment, the Architect shall specify the appropriate performance and design criteria that such services must satisfy. The Architect shall review Shop Drawings and other submittals related to the Work designed or certi?ed by the design professional retained by the Contractor that hear such professional?s seal and signature when submitted to the Architect. The Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certi?cations and approvals performed or provided by such design professionals. 3.6.4.4 Subject to the provisions of Section 4.3, the Architect shall review and respond to requests for information about the Contract Documents. The Architect shall set forth in the Contract nocuments the requirements for requests . AM Document 31 :31 - 200? (fonnorly [3151'm - 1997'). Copyright 1974, 1978, 198?, 199? and 200? by The American institute of Architects. All rights reserved. WARNING: This Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution 7 of this Document. or any portion of it, may result In severe civil and criminal penaltles, and will be prosecuted to the maximum extent possible under the law. This document was produced by ALA so?ware at 16:10:31 on 01122i2015 under Order which emires on 031232015, and is not for resale. User Notes: (843728499) inlt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT for information. Requests for information shall include, at a minimum, a detailed written statement that indicates the speci?c Drawings or Speci?cations in need of clari?cation and the nature of the clari?cation requested. The Architect?s response to such requests shall be made in writing within any time limits agreed upon, or otherwise with reasonable promptness. If appropriate, the Architect shall prepare and issue supplemental Drawings and Speci?cations in response to requests for information. 3.6.4.5 The Architect shall maintain a record of submittals and copies of submittals supplied by the Contractor in accordance with the requirements of the Contract Documents. 3.6.5 CHANGES 1N THE WGRK 3.6.5.1 The Architect may authorize minor changes in the Work that are consistent with the intent of the Contract Documents and do not involve an adjustment in the Contract Sum or an extension of the Contract Time. Subject to the provisions of Section 4.3, the Architect shall prepare Change Orders and Construction Change Directives for the Owner?s approval and execution in accordance with the Contract Documents. 3.6.5.2 The Architect shall maintain records relative to changes in the Work. 3.6.6 PROJECT CWPLETION 3.6.6.1 The Architect shall conduct inspections to determine the date or dates of Substantial Completion and the date of ?nal completion; issue Certi?cates of Substantial Completion; receive from the Contractor and forward to the Owner, for the Owner?s review and records, written warranties and related documents required by the Contract Documents and assembled by the Contractor; and issue a ?nal Certi?cate for Payment based upon a ?nal inspection indicating the Work complies with the requirements of the Contract Documents. 3.6.6.2 The Architect?s inspections shall be conducted with the Owner to check conformance of the Work with the requirements of the Contract Documents and to verify the accuracy and completeness of the list submitted by the Contractor of Work to he completed or corrected. 3.6.6.3 When the Work is found to be substantially complete, the Ardiitect shall inform the Owner about the balance ofthe Cmtr?ect Sum remaining to be paid the Contractor, including the amount to be retained from the Contract Sum, if any, for final completion or correction of the Work. 3.6.6.4 The Architect shall forward to the Owner the following information received from the Contractor: consent of surety or sureties, if any, to reduction in or partial release ofretainage or the making of ?nal payment; (2) af?davits, receipts, releases and waivers of liens or bonds indemniiying the Owner against liens; and (3) any other documentation required of the Contractor under the Contact Documents. 3.6.6.5 Upon request of the Owner, and prior to the expiration of one year from the date of Substantial Completion, the Architect shall, without additional compensation, conduct a meeting with the Owner to review the facility operations and performance. 4 SERVICES 4.1 Additional Services listed below are not included in Basic Services but may be required for the Project. The Architect shall provide the listed Additional Services only if speci?cally designated in the table below as the Architect?s responsibility, and the Owner shall compensate the Architect as provided in Section 11.2. (Designate the Additional Services the Architect shall provide in the second column of the table below. In the third column indicate whether the service description is located in Section 4.2 or in an attached exhibit. [fin an exhibit, Monti}? the exhibit.) Additional Services Responsibility Location of Service Description (Architect, Owner (Section 4.2 below or in an exhibit or attached to this document and Not Provided) identi?ed below) 4.1.1 Programming (3202m2009) Architect 4.1.2 Multiple preliminary designs Not provided 4.1.3 Measured drawings Not provided 4.1.4 Existing facilities surveys Not provided Document 3161?? 2907 (fonnerly 3151?? -?1987). Copyright 1974, 19m, 1987. 1997 and 2007 by The American institute of Architects. All rights reserved. WARNENG: This All? Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this Document. or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible mo?er the law. This document was produced by MA software at 16:10:31 on 0112212015 under Order [10.54.9201 9572,} which expires no 0323312015. and is not for resale. User Notes: 8 lnlt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT 4.1.5 Site Evaluation and Planning Architect 4.1.6 Building Information Modeling Architect (moans?2008) Civil engineering Architect 4.1.8 Landscape design Architect 4.1.9 Architectural Interior Design Architect 4.1.10 Value Analysis Not provided 5 4.1.11 Detailed cost estimating Architect 4.1.12 Onnsitc Project Representation (8207mm2008) Not provided 5 31.1.13 Conformed construction documents Not provided 4.1.14 As~Designed Record drawings Architect 4.1.15 As~Constructed Record drawings Not provided 4.1.16 Post occupancy evaluation Not provided 4.1.17 Facility Support Services (330751?2007) Not provided 4.1.18 Tenantwrelatcd services Not provided 4.1.19 Coordination of Owner?s consultants Not provided 5 4.1.20 Telecommunications/data design Not provided 4.1.21 Security Evaluation and Planning Not provided (8206mm2007) 4.1.22 Commissioning (B21 int?4007) Not provided 4.1.23 Extensive environmentally responsible design "Not provided 4.1.24 Certi?cation Not provided 4.1.25 Fast-track design services Net provided {3 4.1.26 Historic Preservation (82051144007) Not provided 4.1.27 Furniture, Furnishings, and Equipment Design Not provided 4.2 Insert a description of each Additional Service designated in Section 4.1 as the Architect?s responsibility, if not ?lrther described in an exhibit attached to this document. 4.3 Additional Services may be provided after execution of this Agreement, without invalidating the Agreement. Except for services required due to the fault ofthe Architect, any Additional Services provided in accordance with this Section 4.3 shall entitle the Architect to compensation pursuant to Section 11.3 and an appropriate adjustment in the Architect?s schedule. 4.3.1 Upon recognizing the need to perform the following Additional Services, the Architect shall notify the Owner with reasonable prompmess and explain the facts and circumstances giving rise to the need. The Architect shall not proceed to provide the followin services until the Architect receives the Owner?s written authorization: .1 Services necessitated by a change in the initial information, previous instructions or approvals given by the Owner, or a material change in the Project including, but not limited to, size, quality, complexity, the Owner?s schedule or budget for Cost of the Work, or procurement or delivery method; .2 Services necessitated by the Owner?s request for extensive environmentally responsible design alternatives, such as unique system designs, inadepth material research, energy modeling, or certi?cation; .3 Changing or editing previously prepared Instruments of Service necessitated by the enactment or revision of codes, laws or regulations or of?cial interpretations; .4 Services necessitated by decisions of the Owner not rendered in a timely manner or any other failure of performance on the part of the Owner or the Owner?s consultants or contractors; .5 Preparing digital data for transmission to the Owner?s consultants and contractors, or to other Owner authorized recipients; .8 Preparation of design and documentation for alternate bid or proposal requests proposed by the Owner; Ala Document 3101 zoo? (formerly 3151*- - 1991). Copyright 1974, 1973, 1937, 199? and son? by The American Institute of Architects. All rights reserved. This Document is protected by 1.1.8. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this 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 16:10:31 on 011?22f2015 under Order No.5492019572_1 which expires on O3l231201 5, and is not for resale. User Notes: (843728499) 9 Inlt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT Preparation for, and attendance at, a public presentation, meeting or hearing; .8 Preparation for, and attendance at a dispute resolution proceeding or legal proceeding, except where the Architect is party thereto; .9 Evaluation of the quali?cations of bidders or persons providing proposals; .10 Consultation concerning replacement of Work resulting from ?re or other cause during construction; or .11 Assistance to the Initial. Decision Maker, if other than the Architect. 4.3.2 To avoid delay in the Construction Phase, the Architect shall provide the following Additional Services, notify the Owner with reasonable promptness, and explain the facts and circumstances giving rise to the need. if the Owner subsequently determines that all or parts of those services are not required, the Owner shall give prompt written notice to the Architect, and the Owner shall have no ?uther obligation to compensate the Architect for those semces: .1 Reviewing a Contractor?s sub-mitts! out of sequence from the submittal schedule agreed to by the Architect; .2 Responding to the Conunctor?s requests for in formation that are not prepared in accordance with the Contract Documents or where such information is available to the Contractor from a careful study and comparison of the Conn-act Documents, ?eld conditions, other Owner-provided information, Connector-prepared coordination drawings, or prior Project correspondence or documentation; .3 I?rcparing Change Orders and Construction Change Directives that require evaluation of Contractor?s proposals and supporting data, or the preparation or revision of Instruments of Service; .4 Evaluating an extensive number of Claims as the Initial Decision Maker; .5 Evaluating substitutions proposed by the Owner or Contractor and making subsequent revisions to of Service resulting therefrom; or .6 To the extent the Architect?s Basic Services are affected, providing Phase Services 60 days after (1) the date of Substantial Completion of the Work or (2) the anticipated date of Substantial Completion identi?ed in initial Information, whichever is earlier. 4.3.3 The Architect shall provide Construction Phase Services exceeding the limits set forth below as Additional Services. When the limits below are reached, the Architect shall notify the Owner: .1 Three 3 )reviews of each Shop Drawing, Product Data item, sample and similar submittal ofthe Centractor .2 Twelve 12 visits to the site by the Architect over the duration of the Project during construction .3 One inspections for any portion of the Work to determine whether such portion of the Work is substantially complete in accordance with the requirements of the Contract Documents .4 One inspections for any portion of the Work to determine ?nal completion 4.3.4 if the services covered by this Agreement have not been completed within Eighteen 18 months of the date of this Agreement, through no fault of the Architect, extension ofthe Architect?s services beyond that time shall be compensated as Additional Services. ARTICLE 5 5.1 Unless otherwise provided for under this Agreement, the Owner shall provide information in a timely manner regarding requirements for and limitations on the Project, including a written program which shall. set forth the Owner?s objectives, schedule, constraints and criteria, including Space requirements and relationships, flexibility, expandability, special equipment, systems and site requirements. Within 15 days after receipt of a written request from the Architect, the Owner shall furnish the requested information as necessary and relevant for the Architect to evaluate, give notice of or en force lien rights. 5.2 The Owner shall establish and periodically update the Owner?s budget for the Project, including (1) the budget for the Cost of the Work as de?ned in Section 6.1; (2) the Owner?s other costs; and, (3) reasonable contingencies related to all of these costs. If the Owner signi?cantly increases or decreases the Owner?s budget for the Cost of the Work, the Owner shall notify the Architect. The Owner and the Architect shall thereafter agree to a corresponding change in the l?roject?s scope and quality. NA Document 8101?" - 2811!? Kennedy 8151'? - 1997}. Copyright 1974, 1978, 1987, 1997 and 2007 by The American in?nite of Architects. NI rights reserved. WARNING: This AIM Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution 10 of this 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 16:10:31 on 0112212015 under Order which expires on 0312312015, and is not for resale. User Notes: - (843198499) lnit. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT 5.3 The Owner shall identify a representative authorized to act on the Owner?s behalf with respect to the Project. The Owner shall render decisions and approve the Architect?s submittals in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Architect?s services. 5.4 The Owner shall furnish 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 shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; designated wetlands; adjacent drainage; rights-of?way, 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 servicesand lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. 5.5 The Owner shall furnish services of geotechnical engineers, which may include but are not limited to test horings, test pits, detenninations of soil hearin values, percolation tests, evaluations of hazardous materials, seismic evaluation, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations. {5 5.6 The Owner shall coordinate the services of its own consultants with those services provided by the Architect. Upon the Architect's request, the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner's consultants. The Owner shall furnish the services of consultants other than those designated in this Agreement, or authorize the Architect to furnish them as an Additional Service, when the Architect requests such services and demonstrates that they are reasonably required by the scope of the Project. The Owner shall require that its consultants maintain professional liability insurance as appropriate to the services provided. 5.7 The Owner shall furnish tests, inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials. 5.8 The Owner shall ?nnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner?s needs and interests. 5.9 The Owner shall provide prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project, including errors, omissions or inconsistencies in the Architect?s Instruments of Service. 5.10 Except as otherwise provided in this Agreement, or when direct communications have been specially authorized, the Owner shall endeavor to communicate with the Contractor and the Architect?s consultants through the Architect about matters arising out of or relating to the Contract Documents. The Owner shall notify the Architect of any direct communications that may affect the Architect?s services. 5.11 Before executing the Contract for Construction, the Owner shall coordinate the Architect?s duties and responsibilities set forth in the Contract for Construction with the Architect?s services set forth in this Agreement. The Owner shall provide the Architect a copy of the executed agreement between the Owner and Contractor, including the General Conditions of the Contract for Construction. 5.12 The Owner shall provide the Architect access to the Project site prior to commencement of the Work and shall obligate the Connector to provide the Architect access to the Work wherever it is in preparation or progress. ARTICLE 6 COST OF THE WORK 6.1 For purposes of this Agreement, the Cost of the Work shall be the total cost to the Owner to construct all elements of the Project designed or speci?ed by the Architect and shall include contractors? general conditions costs, overhead and pro?t. The Cost of the Work does not include the compensation of the Architect, the costs of the land, rights-of-way, ?nancing, contingencies for changes in the Work or other costs that are the responsibility of the Owner. 6.2 The Owner?s budget for the Cost of the Work is provided in Initial Information, and may be adjusted throughout the Project as required under Sections 5.2, 6.4 and 6.5. Evaluations of the Owen?s budget for the Cost of the Work, the preliminary estimate of the Cost of the Work and updated estimates of the Cost of the Work prepared by the Architect, represent the Architect?s judgment as a design professional. lt is recognized, however, that neither ALA Document 8101 l? 2007 (tenderly B151 ?l 1997). Copyright 191%, 1978, 987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This Document is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of this 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 MA software at 18:10:31 on 9112212015 under Order No.5492019572_1 which expires on 03112312015, and is not for resale. User Notes: (843728499) 11 tnlt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT the Architect nor the Owner has control over the cost of labor, materials or equipment; the Contractor 5 methods of determining bid prices; or competitive bidding, market or negotiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary ?'om the Owner? 3 budget for the Cost of the Work or item any estimate of the Cost of the Work or evaluation prepared or agreed to by the Architect 6. 3 In preparing estimates of the Cost of Work, the Architect shall be pennitted to include contingencies for design, bidding and price escalation; to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents; to make reasonable adjustments' in the program and scope of the Project; and to include in the Contract Docmnents alternate bids as may be necessary to adjust the estimated Cost of the Work to meet the Owner?s budget for the Cost of the Work. The Architect?s estimate of the Cost of the Work shall be based on current area, volume or similar conceptual estimating techniques. If the Owner requests detailed cost estimating services, the Architect shall provide such services as an Additional Service under Article 4. 6.4 if the Bidding or Negotiation Phase has not commenced within 90 days alter the Architect submits the Construction Documents to the Owner, through no fault of the Architect, the Owner?s budget for the Cost of the Work shall be adjusted to reflect changes in the general level of prices in the applicable construction market. 6.5 If at any time the Architect?s estimate of the Cost of the Work exceeds the Owner?s budget for the Cost of the Work, the Architect shall make appropriate recommendations to the Owner to adjust the Project?s size, quality or budget for the Cost of the Work, and the Owner shall cooperate with the Architect in making such adjustments. 6 6 If the Owner? 5 budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services 18 exceeded by the lowest bone. tide bid or negotiated proposal, the Owner shall give written approval of an increase in the budget for the Cost of the Work; .2 audiorize rebidding or renegotiating of the Project within a reasonable time; .3 terminate in accordance with Section 9 5; 4 in consultation with the Architect, revise the Project program, scope, or quality as required to reduce the Cost of the Work; or .5 implement any other mutually acceptable alternative. (Paragraph deleted) COPYRIGHTS Alli) LICENSES 1.1 The Architect and the Owner warrant that in transmitting instruments of Service, or any other information, the transmitting party is the copyright owner of such information or has permission ??om the copyright owner to transmit such information for its use on the Project. If the Owner and Architect intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions. 7.2 The Architect and the Architect?s consultants shall be deemed the authors and owners of their respective instruments of Service, including the Drawings and Speci?cations, and shall retain all common law, statutory and other reserved rights, including copyrights. Submission or distribution of instruments of Service to meet of?cial regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the reserved rights of the Architect and the Architect?s consultants. 7.3 Upon execution of this Agreement, the Architect grants to the Owner 3 nonexclusive license to use the Architect?s instruments of Service solely and exclusively for purposes of constructing, using, maintaining, altering and adding to the Project, provided that the Owner substantially performs its obligations, including prompt payment of all sums when due, under this Agreement. The Architect shall obtain similar nonexclusive licenses from the Architect?s consultants consistent with this Agreement. The license granted under this section permits the Owner to authorize the Contractor, Subcontractors, Sub-subcontractors, and matedal or equipment suppliers, as well as the Owner?s consultants and separate contractors, to reproduce applicable portions of the instruments of Service solely and exclusively for use in performing services or construction for the Project. If the Architect rightfully terminates this Agreement for cause as provided in Section 9.4, the license granted in this Section 7.3 shall terminate. AIA Document 816?: l? - 2007 (fonnerly 199?). Copyright 1974, 1978, 1987, 1997 and 2007 by The American instituted Architects. All rights reserved. WARNING: This NAG Oocument is protected by 1.1.8. Copyright Law and International Treaties. Unauthorized reproduction or distribution 12 of this 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 MA software at 16: to: 31 on 0112212915 under Order No. 5492019512 1 which expires on 0319312015 and Is not forr resale. User Notes: (843728499) lnlt. i E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT 7.3.1 in the event the Owner uses the Instruments of Service without retaining the author of the Instruments of Service, the Owner releases the Architect and Architect?s consultant(s) from all claims and causes of action arising from such uses. The Owner, to the extent permitted by law, further agrees to indemnify and hold harmless the Architect and its consultants from all costs and eXpenses, including the cost of defense, related to claims and causes of action asserted by any third person or entity to the extent such costs and expenses arise from the Owner?s use of the instruments of Service under this Section 7.3.1. The terms of this Section 7.3.1 shall not apply if the Owner right?illy terminates this Agreement for cause under Section 9.4. 7.4 Except for the licenses granted in this Article 7, no other license or right shall be deemed granted or implied under this Agreement The Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any license granted herein to another party without the prior written agreement of the Architect. Any unauthorized use of the Instruments of Service shall be at the Owner?s sole risk and without liability to the Architect and the Architect?s censultants. ARTICLE 8 CLAIMS AND. 8.1 GENERAL 8.1.1 The Owner and Architect shall commence all claims and causes of action, whether in contract, tort, or otherwise, against the otherarising out of or related to this Agreement in accordance with the requirements of the method of binding dispute resolution selected in this Agreement within the period speci?ed by applicable law, but in any case not more than 10 years after the date of Substantial Completion of the Work. The Owner and Architect waive all claims and causes of action not commenced in accordance with this Section 8. l.l. 85.2 To the extent damages are covered by property insurance, the Owner and Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in AIA Document A201w2007, General Conditions of the Contract for Construction. The Owner or the Architect, as appropriate, shall require of the contractors, consultants, agents and employees of any similar waivers in favor of the other parties enumerated herein. 8.1.3 The Architect and Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party?s termination of this Agreement, except as speci?cally provided in Section 9.7. 8.2 8.2.1 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 binding dispute resolution. If such matter relates to or is the subject of a lien arising outof the Architect?s services, the Architect may proceed in accordance with applicable law to comply with the lien notice or ?lin deadlines prior to resolution of the matter by mediation or by binding dispute resolution. 5 8.2.2 The Owner and Architect shall endeavor to resolve claims, disputes and other matters in question beaveen them by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement. A request, for mediation shall be made in writing, delivered to the other party to the Agreement, and ?led with the person or entity administering the mediation. The request may be made concurrently with the ?ling of a complaint or other appropriate demand for hindin dispute resolution hut, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall-be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. If an arbitration proceeding is stayed pursuant to this section, the parties may nonetheless proceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings. 8.2.3 The parties shall share the mediator?s fee and any filing fees equally. The mediation shall be held in the place wherethe 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. 8.2.4 If the parties do not resolve a dispute through mediation pursuant to this Section 8.2, the method of binding dispute resolution shall be the following: MA Document 813?! .. 2007 (fonnorly 81517? -- 199?). Copyright 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduotlon or distribution of this Uocument. 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 MA so?wate at 16:10:31 on 0i12222015 under Order which expires on 031231201 5, and Is not {or resale. User Notes: (843728499) 13 lnit. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT (Check the appropriate box. Ifthe Owner and Architect do not select a method of binding dispute resolution below, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, the dispute be resolved in a court of competent jurisdiction.) Arbitration pursuant to Section 8.3 of this Agreement Litigation in a court of competent? jurisdiction 1 Other (Specify) 8.3 ARBITRATION 8.3.1 If the parties have selected arbitration as the method for binding dispute resolution in this Agreement, any claim, dispute or other matter in question arising out of or related to this Agreement subject to, but not resolved by, mediation shall be subj ed; to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration?AsSociation in accordance with its Construction Industry Arbitration Rules in effect on the date of this Agreement. A demand for arbitration shall be made in writing, delivered to the other party to this Agreement, and ?led with the person or entity administering the arbitration. 8.3.1.1 A demand for arbitration shall be made no earlier than concurrently with the ?ling of a request for mediation, but in no event shall it be made after the date when the institution of legal or equitable proceedings based on the claim, dispute or o?aer'matter in question would be barred by the applicable statute of limitations. or statute of limitations purposes, receipt of a written demand for arbitration by the person or entity administering the arbitration shall cons?mte the institution of legal or equitable proceedings based on the claim, dispute or other matter in question. 8.3.2 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 speci?cally enforceable in accordance with applicable law in any court having jurisdiction thereof. 8.3.3 The award'rendcred by the arbitrato?s) shall be ?nal, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. 3.3.4 CORSOUDATION 0R JOINDER 8.3.4.1 Either party,?at its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to which it isa party provided that (1)the arbitration agreement governing the other arbitration permits consolidation; (2) the arbitrations to be consolidated substantially involve common questions of law or fact; and (3) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s). 8.3.4.2 Either party, at its sole discretion, may include byjoinder persons or entities substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded in arbitration, provided that the party sought to be joined consents in writing to such joindcr. 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. 8.3.4.3 The Owner and Architect gant to any person or entity made a party to an arbitration conducted under this Section 8.3, whether by joinder or consolidation, the same rights of?joindcr and consolidation as the Owner and Architect under this Agreement. 9 0R SUSPENSION 9.1 If the Owner fails to make payments to the Architect in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at the Architect?s option, cause for suspension of performance of services under this Agreement. If the Architect elects to suspend services, the Architect shall give seven days? written notice to the Owner before suspending services. 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 NA Document 3101'? - 2007 (fonne?y B151 1? .. 1997). Copyright 1974, 1978, 1987, 1997 and 200? by The American institute of Architects. All rights reserved. This Document is protected by us. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 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 MA software at 16:10:31 on 01222015 under {Jitter 14054920195723 which emlres on 03n312015. and is not for resale. User Notes: (843728499) 14 hilt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT 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. 9.2 if the Owner suspends the Project, 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 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. 9.3 Ifthe Owner suspends the Project for more than 90 cumulative days for reasons other than the fault of the Architect, the Architect may terminate this Agreement by giving not less than seven days? written notice. 9.4 Either party may terminate this Agreement upon not less than seven days? writtoi 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 tennination. 9.5 The Owner may terminate this Agreement upon not less than seven days? written notice to the Architect for the Owner?s convenience and without cause. 9.6 In the event of termination not the fault of the Architect, the Architect shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses as de?ned in Section 9.7. 9.7 Termination Expenses are in addition to compensation for the Architect?s services and include expenses directly attributable to termination for which the Architect is not otherwise compensated, plus an amount for the Arch itect?s anticipated pro?t on the value of the services not performed by the Architect. 9.8 The Owner?s rights to use the Architect?s instruments of Service in the event of a termination of this Agreement are set forth in Article 7 and Section ll.9. 18 MISCELLANEOUS PROVISIONS 10.1 This Agreement shall be governed by the law of the place where the Project is located, except that if the parties have selected arbitration as the method of binding dispute resolution, the Federal Arbitration Act shall govern Section 8.3. 10.2 Terms in this Agreement shall have the same meaning as those in AIA Document General Conditions of the Contract for Construction. 10.3 The Owner and Architect, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreemmt. 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 a lender providing ?nancing for the Project if the lender agrees to assume the Owner?s rights and obligations under this Agreement. 18.4 If the Owner requests the Architect to execute certi?cates, the proposed language of such certi?cates shall be submitted to the Architect for review at least 14 days prior to the requested dates of execution. If the Owner requests the Architect to execute consents reasonably required to facilitate assignment to a lender, the Architect shall execute all such consents that are consistent with this Agreement, provided the proposed consent is submitted to the Architect for review at least l4 days prior to execution. The Architect shall not be required to execute certi?cates or consents that would require knowledge, services or responsibilities beyond the scope of this Agreement. 10.5 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect. 10.6 Unless odierwisc required in this Agreement, the Architect 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. NA Dowment 8101 1" 2007 (fonneriy -- 199?). Copyright It! 1974, 1978, 1987. 1997 and 2007 by The American institute of Architects. All rights reserved. WARNING: This A1965 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution 15 of this 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 MA sofhvare at 16:10:31 on 01I22I2015 under Order No.5492019572?1 which amines on 03.934291 5. and is not for resale. - User Notes: (843?28499) lnlt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT 18.7 The Architect shall have the tight 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 con?dential or proprietary information if the Owner has previously advised the Architect in writing of the speci?c information considered by the Owner to be con?dential or proprietary. The Owner shall provide professional credit for the Architect in the Owner?s promotional materials for the Project. 15 10.8 if the Architect or Owner receives information speci?cally designated by the other party as "con?dential? or "business proprietary," the receiving party shall keep such information strictly con?dential and shall not disclose it to any other person except to (1) its employees, (2) those who need to know the content of such information in order to perform services or construction solely and exclusively for the Project, or (3) its consultants and contractors whose contracts include similar restrictions on the use of con?dential information. 11 11.1 For the Architect?s Basic Services described under Article 3, the Owner shall compensate the Architect as follows: - (Insert amount of: or borisfor, compensation.) Compensation for architectural and structural engineering services to be of the construction cost estimate completed during the schematic design phase. . Brewery equipment and process piping not included in the construction cost. a Services include construction bids ?om multiple connectors Pro-engineered building Engineering fees are in addition to the architectural and structural fee. a Mechanical and electrical engineering services by MODUS at the cost of $83,320. 0 Civil engineering services by Cooper Crawford at the cost of $8,000 including a site survey. The schematic design fee will be billed hourly to a maximum of $41,090. 11.2 For Additional Services designated in Section 4. l, the Owner shall compensate the Architect as follows: (Insert amount o? or basis for, compensation. If necessary, his! specific services to which particular methods of compensation apply.) Hourly as negotiated prior to start of work. 11.3 For Additional Services that may arise during the cowse of the Ptojcct, including those under Section 4.3, the Owner shall compensate the Architect as follows: (Insert amount of; or basis for, compensation. Hourly as negotiated prior to start of work. 11.4 Compensation for Additional Services of the Architect?s consultants when not included in Section 11.2 or 1 1.3, shall be the amount invoiced to the Architect plus Zero percent 0.60 or as otherwise stated below: 11.5 Where compensation for Basic Services is based on a stipulated sum or percentage of the Cost of the Work, the compensation for each phase of services shall be as follows: Schematic Design Phase percent Design Development Phase percent Construction Documents percent Phase Bidding or Negotiation Phase percent Construction Phase percent MA Document 8101 2687 (fonnerly -1897). Copyright 1974, 1978, 1987, 1997 and 2807 by The American Institute of Ardiitects. All rights reserved. WARNING: This Document is protected by 11.3. Copyright Law and international Treaties. Unauthorized reproduction or distribution 16 of this NAP 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 MA software at 16:10:31 on 0112212015 trader Order No.5492019572_1 which emlres on 0319312015, and is not for resale. User Notes: (843728499) lnlt. E-FILED 2016 MAR 0910:15 AM STORY - CLERK OF DISTRICT COURT Total Basic Compensation one hundred percent 100 11.6 When compensation is based on a percentage of the Cost of the Work and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section l.5 based on the lowest bona ?de bid or negotiated preposai, or (2) if no such bid or proposal is received, the most recent estimate of the Cost of the Work for such portions of the Project. The Architect shall be entitled to compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced. 11.7 The hourly billing rates for services of the Architect and the Architect?s consultants, if any, are set forth below. The rates shall be adjusted in accordance with the Architect?s and Architect?s consultants? normal review practices. (If applicable, attach an exhibit of hourl?y billing rates or insert them below.) Architects Smith Metzger 2015 Hourly Rates - Exhibit A. Employee or Category Rate 11.8 COMPENSATION FOR EXPENSES 11.8.1. Reimbursable Expenses-are in addition to compensation for Basic and Additional Services and include expenses incurred by the Architect and the Architect?s consultants directly related to the Project, as follows: .1 Transportation and authorized out~of~town travel and subsistence; .2 Long distance services, dedicated data and communication services, teleconferences, Project Web sites, and extranets; Fees paid for-securing approval of authorities having jurisdiction over the Project; Printing, reproductions, plots, standard form documents; Postage, handling and delivery; Expense of overtime work requiring higher than regular rates, if authorized in advance by the Owner; Renderings, models, mock-ups, professional photography, and presentation materials requested by the Owner; .8 Architect?s onsultant?s expense of professional liability insurance dedicated exclusively to this Project, or the expense of additional insurance coverage or limits if the Owner requests such insurance in excess of that normally carried by the Architect?s consultants; .9 All taxes levied on professional services and on reimbursable expenses; .11) Site of?ce expenses; and .11 Other similar Projecprelated expenditures. Robbin-La 11.8.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Architect and the Architect?s consultants plus Zero percent 13.00 of the expenses incurred. 11.9 COMPENSATION FOR USE OF ARCHITECTS OF SERVICE if the Owner terminates the Architect for its convenience under Section 9.5, or the Architect terminates this Agreement under Section 9.3, the Owner shall pay a licensing fee as compensation for the Owner?s continued use of the Architect's insomnents of Service solely for purposes of completing, using and maintaining the Project as follows: 11.10 PAYMENTS TO THE ARCHITECT 11.101 An initial payment of Ten Thousand Dollars and Zero Cents (S 10,000.00 shall be made upon execution of this Agreement and is the minimum payment under this Agreement. it shall be credited to the 0wner?s account in the ?nal invoice. 11.102 Unless otherwise agreed, payments for services shall be made in proportion to services performed. Payments are due and payable upon presentation of the Architect?s invoice. Amounts unpaid NA Document B131 2807 {fomoriy 3151?? 199?). Copyright 1974, 1978, 1987, 1997 and 2007 by The American institute of Architects. All rights reserved. WARNING: his NAG Document is protected by US. Copyright Law and International Treaties. Unauthorized reproductlon or distribution of this 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 MA software at 16:10:31 on 0112213015 under Order No.5492019572_1 which expires on 031232015, and is not for resale. User Notes: (843728499) 17 inlt. E-FILED 2016 MAR 0910:15 AM STORY CLERK OF DISTRICT COURT days after the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Architect. (Insert rate of or annual interest agreed upon.) ?34: 11.1.0.3 The Owner shall not withhold amounts from the Architect?s compensation to impose a penalty or liquidated damages on the Architect, or to offset sums requested by or paid to contractors for the cost of changes in the Work unless the Architect agrees or has been found liable for the amounts in a binding dispute resolution proceeding. 11:10.4 Records of Reimbursable Expenses, expenses pmaining to Additional Services, and services performed on the basis of hourly rates shall be available to the OWTIBF at mutually convenient times. ARTICLE 12 SPECIAL TERES AND 801%fo IONS Special terms and conditions that modify this Agreement are as follows: 13 SCOPE OF THE AGREEMENT 13.1 This Agreement represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect. 13.2 This Agreement is comprised of the following documents listed below: .1 AIA Document BlOlm2007, Standard Form. Agreement Between Owner and Architect .2 AIA Document Digital Data Protocol Exhibit, if completed, or the following: .3 Other documents: (List other documents ifany, including Exhibit A, Initial Information, and additional scopes of service Jetty. fanning part of the Agreement Architects Smith Monger 2015 Hourly Rates - Exhibit A. This Agreement entered into as of the day and year ?rst written above. WW (Signature) Scott Griffm Robert A. Smith, AIA, Principal (Printed name and title) (Printed name and title) NA Document 3181 2007 (tenderly 3151?? - 1997). Copyright 1974. 1978, 1987. 199? and 2007 by The Marleen Institute of Architects. All rights reserved. WARNING: This Document is protected by 1.1.3. Copyright Law and international Treaties. Unauthorized reproduetion or distribution 18 ct this NM) Document, or any portion of it, may result In severe and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by MA software at 16:10:33 on under Order No.5492019572_1 which emires on 03.!23l2015, and is not for resale. User Notes: (843728499) 2111 6 Mel-3&1 0:15 AM COURT des moines, iowa 50312 PROJECT NAME p. 515 244 2m {515244 0615 PROJECT NUMBER Milwsmithmetzgercom DATE TIME Thursday, January 15, 2015 1. Meetings a. Design interaction with Olde Main Brewery team (4) b. City of Ames about site plan requirements and design (2) c. Mechanical/electrical team to review system choices (2) 2. Architects Smith Metzger Review detail space requirements Site plan concept Floor plan Ceiling and lighting concept Exterior digital model Finishes of exterior and interior spaces Review pre-engineered vs conventional enclosure options Cost estimate 3. Cooper Crawford (civil engineer) a. Survey b. Site plan c. Grading plan d. Utility plan e. Cost estimate a. Modus (mechanical and electrical engineer) HVAC system Exhaust system Electrical system including transformer Lighting Plumbing Sprinkler Cost estimate Generative 5. Fee a. Schematic fee is approximately 15% of total fee and will be deducted from total final tee. b. Architects Smith Metzger $30,000 c. Cooper Crawford 33 3,000 d. Modes 8000 $41,000 page i of 1 ATTACHMENT smiih meizger (385 BB, LLC David Sinnwell PO Box 1928 Ames, 1A 50010 Professional services for the period: 1/1/15 through 410115 . . invoice number Date ey?ut ??y?giz?e {cg a" .fxgie?wma.wvas 515.20.21.11.? 131x 04.0515; 1 5973 041?031'201 5 mfmga 'fI ?b?s?v . a-Vsy?wwi?oi-i-f' we 03505393? Project 2015-04 Eirewery and EventCenker invoice Summary Prior 25,093.55 First, we ATTACHMENT ., Total Current Description Contract Billed Bitled Basic Services SD 5 Schematic Design 30,000.00 0.00 29,378.75 29,378.75 Consuiia'?i Services 11,500.00 0.00 5,580.00 5,580.00 Subtotal 41,500.00 0.00 34,058.75 34,958.75 Expenses 0.00 0.00 44.00 44.80 - Total 41,500.00 0.00 35,003.55 35,003.55 ..-. Basic: Services - SD A Schema?c Design Billed Hours Rate Amount Principal 20.50 1 60.00 3,920.00 Senior Project Manager $5.530 125.00 9,562.50 Project Architect 1574.00 90.00 15,660.00 Designer 2.50 07.50 168.?5 Administration 1 .00 67.50 67.50 Consultant Services Billed Amount Cooper Crawford ii Associates, LLC 3,500.00 Modus 2.08000 Expenses Biiled Amount Mileage 44.80 invoice total Prepayment applied 40,000.00 Amouni due this invoice 25,003.55 iiging, Summary invoice Number invoice Date Outstanding Current,? Over 30 Over 60 Over 90 Over 120 15973 04/03/2015 25,003.55 25,003.55 Tote! 25,003.55 0-00 0.00 0.00 0.00