                                                                                           ACCEPTED
                                                                                      03-14-00738-CV
                                                                                             4853036
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                 4/10/2015 5:50:17 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                              Oral Argument Requested

                                 No. 3-14-00738-CV                   FILED IN
                                                              3rd COURT OF APPEALS
                                                                  AUSTIN, TEXAS
                           In The Court of Appeals For The    4/10/2015 5:50:17 PM
                                Third District of Texas         JEFFREY D. KYLE
                                                                      Clerk
Elness, Swenson, Graham                  §      From the 200th District Court
Architects, Inc.                         §
Appellants and Cross-Appellees,          §
                                         §
v.                                       §
                                         §
RLJII-C Austin Air, LP,                  §
RLJ II-C Austin Air Lessee, LP           §
and RJL Lodging Fund II                  §
Acquisitions, LLC                        §
Appellees and Cross-Appellants.          §      Of Travis County, Texas


                           CROSS-APPELLANTS’ BRIEF


MUNSCH, HARDT, KOPF
& HARR, P.C.

Michael W. Huddleston                        Benton T. Wheatley
State Bar No. 10148415                       State Bar No. 24015171
J. Stephen Gibson                            Tracy McCreight
State Bar No. 07866000                       State Bar No. 24037064
3800 Ross Tower                              401 Congress Avenue
500 North Akard Street                       Suite 3050
Dallas, Texas 75201                          Austin, TX 78701
214-855-7500 telephone                       512-391-6100 telephone
214-855-7584 facsimile                       512-391-6149 facsimile
Email: mhuddleston@munsch.com                Email: bwheatley@munsch.com
Email: sgibson@munsch.com                    Email: tmccreight@munsch.com

ATTORNEYS FOR APPELLEES,
CROSS-APPELLANTS

MHDocs 6062453_7 12690.2
                           IDENTITY OF PARTIES AND COUNSEL


         The undersigned counsel of record, pursuant to Texas Rule of Appellate

Procedure 38.2, certifies that the following persons have an interest in the outcome

of this case:

Appellants, Cross-Appellees:        Elness, Swenson, Graham Architects, Inc.
Appellants, Cross-Appellees’        Weston M. Davis
Counsel on Appeal:                  Gregory N. Ziegler
                                    Matthew Mumm
                                    Macdonald Devin, P.C.
                                    1201 Elm Street
                                    3800 Renaissance Tower
                                    Dallas, TX 75270
Appellants, Cross-Appellees’        Weston M. Davis
Counsel at Trial:                   Gregory N. Ziegler
                                    Matthew Mumm
                                    Macdonald Devin, P.C.
                                    1201 Elm Street
                                    3800 Renaissance Tower
                                    Dallas, TX 75270
Appellees, Cross-Appellants:        RLJ II-C Austin Air, LP
                                    RLJ II-C Austin Air Lessee, LP
                                    RLJ Lodging Fund II Acquisitions, LLC
Appellees, Cross-Appellants         Michael W. Huddleston
Counsel on Appeal:                  J. Stephen Gibson
                                    Munsch Hardt Kopf & Harr, P.C.
                                    3800 Ross Tower
                                    500 North Akard Street
                                    Dallas, Texas 75201




                                           i
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Appellees, Cross-Appellants   Benton T. Wheatley
Counsel at Trial:             Tracy McCreight
                              Munsch Hardt Kopf & Harr, P.C.
                              401 Congress Avenue
                              Suite 3050
                              Austin, TX 78701

                                  By:     /s/ Michael W. Huddleston

                                          Attorney for Appellees, Cross-
                                          Appellants




                                     ii
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                  STATEMENT CONCERNING ORAL ARGUMENT
         Appellees and Cross-Appellants respectfully request oral argument in this

case. Appellees and Cross-Appellants respectfully submit that oral argument will

help the Court in evaluating the issues necessary to the resolution of this appeal.




                                          iii
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                                        TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i

STATEMENT CONCERNING ORAL ARGUMENT ........................................... iii
TABLE OF CONTENTS ..........................................................................................iv

INDEX OF AUTHORITIES...................................................................................ixx
I.       STATEMENT OF THE CASE ....................................................................... 1

II.      ISSUES PRESENTED ....................................................................................4

III.     STATEMENT OF FACTS .............................................................................. 6
         A.       Separate Contracts With Separate and Distinct Promised
                  Performances on the Project. ................................................................. 7

         B.       Separate and Distinct Acts and Omissions Breaching Separate and
                  Distinct Contractual Obligations. .......................................................... 9

         C.       Suit and Settlements By the Soils Engineer and the General
                  Contractor. ...........................................................................................11
         D.       The Trial Court Rules That the One Satisfaction Rule Applies.......... 12

         E.       Attorney’s Fees Allowed Only for Breach of Contract Claim Against
                  the Architect. .......................................................................................13

         F.       The Trial Court Renders Final Judgment. ...........................................13
IV.      SUMMARY OF ARGUMENT .....................................................................14

         A.       The One Satisfaction Rule Does Not Apply. ......................................14

         B.       RLJ Entitled To Attorney’s Fees For the Presentation of the Breach of
                  Contract Claims Against the Architect, General Contractor, and Soils
                  Engineer Either If These Parties Shared a Joint and Several
                  Contractual Duty Or If the Damages Were “Indivisible.” .................. 15

V.       ARGUMENT AND AUTHORITIES ...........................................................16

         A.       The One Satisfaction Rule Does Not Apply. ......................................17

                                                           iv
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                  1.       This Case Involves Contractual, Not Tort, Liability. ............... 18

                  2.       The One Satisfaction Rule Was Developed to Address
                           Settlements In Tort Cases With Less Than All Defendants After
                           the Legislature Authorized Joint and Several Liability. ........... 19

                           a.       Generally There Was No Joint & Several
                                    Tort Liability at Common Law. ......................................20

                           b.       There Was No General Right of
                                    Contribution at Common Law. .......................................20

                           c.       Statute Allowed Collection of All Damages
                                    From Any Defendant and Gave Defendant
                                    the Right to Contribution from the Other
                                    Tortfeasors, But Fails to Address Settlement
                                    With Less Than All Tortfeasors. ....................................21
                           d.       The One Satisfaction Rule Was Designed to
                                    Address Joint and Several Liability In Tort
                                    Cases Only. ....................................................................22

                  3.       The One Satisfaction Rule Only Applies In Cases Involving
                           Joint Liability. ...........................................................................23
                           a.       Unlike Tort Cases, Joint Liability in
                                    Contract Cases Requires More Than
                                    Common, Indivisible Damages. .....................................25

                           b.       Without a Joint Contractual Obligation,
                                    Settlement Credit Under the One
                                    Satisfaction Rule Allowed the Architect to
                                    Do Indirectly What It Could Not Do
                                    Directly.    ....................................................................31

                           c.       This Court Has Rejected Application of the
                                    One Satisfaction Rule to Contractual
                                    Liability Without a Joint Contractual
                                    Obligation. ....................................................................32




                                                           v
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                           d.    Applying the One Satisfaction Rule Without
                                 Joint Contractual Liability Obliterates the
                                 Collateral Source Exception. ..........................................33
                           e.    This Case Involved No Joint Contractual
                                 Liability of the Architect and the Settling
                                 Defendants. ....................................................................34

                                 1)       The Performance Could Not Be the
                                          Same by Operation of Law: General
                                          Contractors Legally Precluded From
                                          Preparing Plans & Specifications. ........................34

                                 2)       The Performance of the Architect and
                                          the Settling Defendants Was Not
                                          Alleged To Be the Same.......................................35
                                 3)       The Architect Argued That Its Duty
                                          Was Different From Those of the
                                          Settling Defendants. .............................................38
                  4.       The One Satisfaction Rule Does Not Apply Because the Jury’s
                           Verdict Did Not Award Damages for an “Indivisible” Injury.. 39
                           a.    The Charge Submitted Apportioned
                                 Damages. ....................................................................40
                                 1)       The Plain Language of the Question
                                          Asked Determines What the Jury
                                          Found.      .........................................................41

                                 2)       The Plain Language of the Question
                                          Limited Damages to Those Resulting
                                          from the Architect’s “[F]ailure to
                                          [C]omply [W]ith the Architectural
                                          Contract.” .........................................................42

                           b.    The Jury Was Asked To Apportion and in
                                 Fact Apportioned Damages. ...........................................45




                                                      vi
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                  5.       No Right to Application of One Satisfaction Rule or
                           Contribution Exists In Contract Cases In Light of Section
                           33.001. .......................................................................................48
                  6.       Applying the One Satisfaction Rule in Contractual Liability
                           Cases Impairs Contract Obligations In Violation of Texas
                           Constitution Article I, §16. .......................................................53

                           a.       Texas Public Policy Strongly Favors
                                    Freedom of Contract. ......................................................53

                           b.       The One Satisfaction Rule Impermissibly
                                    Impairs Contractual Obligations.....................................54

                           c.       Freedom of Contract Outweighs One
                                    Satisfaction’s Questionable Objectives. .........................55
                  7.       The Architect Is Procedurally Barred From Asserting the One
                           Satisfaction Rule. ......................................................................56
                           a.       Waived by Failure to Specially Except. .........................56
                           b.       Waived by Failure to Request Question or
                                    Instruction. ....................................................................56

                           c.       Waived By Failure to Plead as an
                                    Affirmative Defense. ......................................................57

                           d.       Barred By Laches. ..........................................................58

         B.       No Segregation of Attorney’s Fees Was Required. ............................59
                  1.       There Is No Need to Segregate Fees For Claims Requiring
                           Proof of the Same Facts. ...........................................................60

                  2.       If the One Satisfaction Rule Applies, It Requires Proof of
                           Breach of the Same Promised Performance and an Indivisible
                           Injury. ........................................................................................61
                  3.       Alternatively, If Proof of Indivisible Injury Alone is Enough for
                           the Application of the One Satisfaction Rule, Segregation of
                           Fees Was Still Not Required. ....................................................61


                                                           vii
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VI.      CONCLUSION AND PRAYER ...................................................................62

CERTIFICATE OF COMPLIANCE .......................................................................64
CERTIFICATE OF SERVICE ................................................................................65

APPENDIX IN SUPPORT OF CROSS-APPELLANTS’ BRIEF ..........................66




                                                  viii
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                                   INDEX OF AUTHORITIES

                                                                                                      Page(s)
CASES
Allan v. Nersesova,
   307 S.W.3d 564 (Tex. App.—Dallas 2010, no pet.) ..........................................44

Amco Trust, Inc. v. Naylor,
  159 Tex. 146, 317 S.W.2d 47 (1958) .................................................................32
AMX Enters., Inc. v. Bank One, N.A.,
  196 S.W.3d 202 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) ............... 49

Austin Road Co. v. Pope,
  147 Tex. 430, 216 S.W.2d 563 (1949) ...............................................................21
Bejjani v. TRC Servs., Inc.,
   No. 14-08-00750-CV, 2009 WL 3856924 (Tex. App.—Houston [14th
   Dist.] Nov. 19, 2009, no pet.) .............................................................................57
Bonniwell v. Beech Aircraft Corp.,
  663 S.W.2d 816 (Tex.1984)................................................................................48
Bradshaw v. Baylor University,
   126 Tex. 99, 84 S.W.2d 703 (1935) ...................................................................22

Brewer & Pritchard, P.C. v. AMKO Res. Int’l, LLC,
   No. 14-13-00113-CV, 2014 WL 3512836 (Tex. App.—Houston [14th
   Dist.] July 15, 2014, no pet.) (mem. op.) ............................................................57

Brewer v. Nationsbank of Texas, N.A.,
   28 S.W.3d 801 (Tex. App.—Corpus Christi 2000, no writ) ..............................58

Brown v. Am. Transfer and Storage Co.,
   601 S.W.2d 931 (Tex. 1980) ..............................................................................33
Buccaneer Homes of Alabama, Inc. v. Pelis,
  43 S.W.3d 586 (Tex. App.—Houston [1st Dist.] 2001, no pet.) ........................37

Buckner Orphans Home v. Berry,
  332 S.W.2d 771 (Tex. Civ. App.—Dallas 1960, writ ref’d n.r.e.) .....................26


                                                       ix
MHDocs 6062453_7 12690.2
Bullock v. Regular Veteran’s Ass’n of U.S.,
   806 S.W.2d 311 (Tex. App.—Austin 1991, no writ) .........................................56

Byer Custom Builders v. Franks,
   389 S.W.3d 880 (Tex. App.—Houston [14 Dist.] 2012, no pet. hist.) .........39, 43

C.H. v. Dep’t of Family & Protective Servs.,
   No. 01-11-00385-CV, 2012 WL 586972 (Tex. App.—Houston [1st.
   Dist.] Feb. 23, 2012, pet. denied) (mem. op.) .....................................................41
City of Fort Worth v. Johnson,
   388 S.W.2d 400 (Tex. 1964) ..............................................................................58
Coleman v. United Savings Ass’n of Texas,
  846 S.W.2d 128 (Tex. App.—Fort Worth 1993, no writ) ..................................51
Columbia Rio Grande Healthcare, L.P. v. Hawley,
  284 S.W.3d 851 (Tex. 2009) ..............................................................................42
Crown Life Ins. Co. v. Casteel,
  22 S.W.3d 378 (Tex. 2000).....................................................................24, 39, 49

CTTI Priesmeyer, Inc. v. K&O Limited Partnership,
  164 S.W.3d 675 (Tex. App.—Austin 2005, no pet.) ...................................passim

Dalworth Restoration, Inc. v. Rife-Marshall,
  433 S.W.3d 773 (Tex. App.—Fort Worth 2014. pet. dism’d w.o.j.) ................. 58
Deal v. Madison,
  576 S.W.2d.................................................................................................... 21-22

Dick’s Last Resort of West End, Inc. v. Market/Ross, Ltd.,
   273 S.W.3d 905 (Tex. App.—Dallas 2008, pet. denied)....................................56

Duncan v. Cessna Aircraft Co.,
  665 S.W.2d 414 (Tex. 1984) .......................................................................passim

El Paso Natural Gas Co. v. Berryman,
   858 S.W.2d 362 (Tex. 1993) ..............................................................................50
Energy Reserves Group v. Kansas Power & Light,
  459 U.S. 400 (1983) ............................................................................................54


                                                          x
MHDocs 6062453_7 12690.2
Export Worldwide, Ltd. v. Knight,
  No. SA 05 CA 647 XR, 2007 WL 628746 (W.D. Tex. Feb. 27, 2007) ............. 27

Fairfield Insurance Co. v. Stephens Martin Paving, LP,
   246 S.W.3d 653 (Tex. 2004) ..............................................................................53

First Title Co. of Waco v. Garrett,
   860 S.W.2d 74 (Tex. 1993).................................................................................24

Fortenberry v. Cavanaugh,
  No. 03-07-00310-CV, 2008 WL 4997568 (Tex. App.—Austin Nov. 26,
  2008, pet. denied) (mem. op.) .............................................................................61
Galle, Inc. v. Pool,
  262 S.W.3d 564 (Tex. App.—Austin 2008, pet. denied) ............................. 28-29
Gattegno v. The Parisian,
  53 S.W.2d 1005 (Tex. Comm’n App. 1932, holding approved) ..................20, 22
GE Capital Commercial Inc. v. Worthington Nat’l Bank,
  754 F.3d 297 (5th Cir. 2014) .......................................................................passim

Green v. Flournoy,
  No. 03-10-00299-CV, 2011 WL 3435735 (Tex. App.—Austin Aug. 5,
  2011, no pet.) (mem. op.)....................................................................................41

Gym-N-1 Playgrounds, Inc. v. Snider,
  220 S.W.3d 905 (Tex. 2007) ..............................................................................53

Haygood v. DeEscabedo,
  356 S.W.3d 390 (Tex. 2012) ..............................................................................33

Hoffmann v. Dandurand,
  180 S.W.3d 340 (Tex. App.—Dallas 2005, no pet.) ..........................................50
Hudspeth v. Enter. Life Ins. Co.,
  358 S.W.3d 373...................................................................................................49

Hunt v. Ellisor & Tanner,
  739 S.W.2d 933 (Tex. App.—Dallas 1987, writ denied) ....................... 36-37, 43

Hunter v. Fort Worth Capital Corp.,
  620 S.W.2d 547 (Tex. 1981) ..............................................................................51

                                                         xi
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In re Sewell,
   413 B.R. 562 (Bankr. E.D. Tex. 2009) ...............................................................26

InvestIn.com v. Europa Int’l , Ltd.,
   293 S.W.3d 819 (Tex. App.—Dallas 2009, pet. denied)....................................27

Jim Walters Homes v. Reed,
   711 S.W.2d 617 (Tex. 1986) ..............................................................................18

K-Bar Servs., Inc. v. English,
  No. 03-05-00076-CV, 2006 WL 903735 (Tex. App.—Austin Apr. 7,
  2006, no pet.) ......................................................................................................27
Landers v. East Texas Salt Water Disposal Co.,
  151 Tex. 251, 248 S.W.2d 731 (1952) ........................................................passim
Langever v. Miller,
  124 Tex. 80, 76 S.W.2d 1025 (1934) .................................................................54
LJ Charter, LLC v. Air America Jet Charter, Inc.,
   No. 14-08-00534-CV, 2009 WL 4794242 (Tex. App.—Houston [14th
   Dist.] Dec. 15, 2009, pet. denied) ..................................................... 24, 26, 30-31
Mancorp, Inc. v. Culpepper,
  802 S.W.2d 226 (Tex. 1990) ..............................................................................50

McCarty v. Wani Venture, A.S.,
  251 S.W.3d 573 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) ............... 57

McClellan v. Scardello Ford, Inc.,
  619 S.W.2d 593 (Tex. Civ. App.—Amarillo 1981, no writ)..............................26

Med. Specialist Group, P.A. v. Radiology Assocs., L.L.P.,
  171 S.W.3d 727 (Tex. App.—Corpus Christi 2005, pet. denied) ......................46
Medina v. Hart,
  240 S.W.3d 16 (Tex. App.—Corpus Christi 2007, pet. denied) ........................38

Merit Drilling Co. v. Honish,
  715 S.W.2d 87 (Tex. App.—Corpus Christi 1986, writ ref’d n.r.e.) ................. 48

Minn. Min. & Mfg. Co. v. Nishika,
  953 S.W.2d 733 (Tex. 1997) ..............................................................................41

                                                          xii
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OAIC Commercial Assets, L.L.C. v. Stonegate Village, L.P.,
  234 S.W.3d 726 (Tex. App.—Dallas 2007, pet. denied)....................................31

Osborne v. Jauregui,
  252 S.W.3d 70 (Tex. App.—Austin 2008, pet. denied) ............................... 29-30

Osterberg v. Peca,
   12 S.W.3d 31 (Tex. 2000)...................................................................................41

Oyster Creek Fin. Corp. v. Richwood Investments II, Inc.,
  176 S.W.3d 307 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) ......... 49-50

Pagosa Oil & Gas, L.L.C. v. Marrs & Smith P’ship,
  323 S.W.3d 203 (Tex. App.—El Paso 2010, pet. denied) ..................................57

Paschall v. Peevey,
  813 S.W.2d 710 (Tex. App.—Austin 1991, writ denied)...................................49
Pilgrim’s Pride Corp. v. Smoak,
   134 S.W.3d 880 (Tex. App.—Texarkana 2004, pet. denied) .............................46
Price Pfister, Inc. v. Moore & Kimmey, Inc.,
   48 S.W.3d 341 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) ............... 38
Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C.,
   336 S.W.3d 764 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ......................41
RenewData Corp. v. eMag Solutions, LLC,
  No. 03–05–00509–CV, 2009 WL 1255583 (Tex. App.—Austin May 6,
  2009, pet. denied)................................................................................................57

Robertson v. ADJ Partnership, Ltd.,
  204 S.W.3d 484 (Tex. App.—Beaumont 2006, pet. denied) ................. 39, 43-44

Shoemake v. Fogel,
   826 S.W.3d 933 (Tex. 1992) ..............................................................................24

Snyder v. Eanes Indep. Sch. Dist.,
   860 S.W.2d 692 (Tex. App.—Austin 1993, writ denied)...................................35
Stewart Title Guar. Co. v. Aiello,
   941 S.W.2d 68 (Tex. 1997)...........................................................................46, 60


                                                        xiii
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Stewart Title Guar. Co. v. Sterling,
   822 S.W.2d 1 (Tex. 1992).................................................................24, 39, 58, 60

Sugar Land Props., Inc. v. Becnel,
   26 S.W.3d 113 (Tex. App.—Houston [1st Dist.] 2000, no pet.) ........................57

Sun Oil Co. v. Robicheaux,
   23 S.W.2d 713 (Tex. Comm. App. 1930).....................................................20, 22

Szczepanik v. First S. Trust Co.,
   883 S.W.2d 648 (Tex. 1994) ..............................................................................41

Tesfa v. Stewart,
   135 S.W.3d 272 (Tex. App.—Fort Worth 2004, pet. denied) ............................42

Tex. & Pac. Ry. v. Levi & Bro.,
   59 Tex. 674 (1883)..............................................................................................33
THPD, Inc. v. Cont’l Imports, Inc.,
  260 S.W.3d 593 (Tex. App.—Austin 2008, no pet.) ..........................................41
Tony Gullo Motors I, L.P. v. Chapa,
  212 S.W.3d 299 (Tex. 2006) ........................................................................46, 60
Travelers Ins. Co. v. Joachim,
   315 S.W.3d 860 (Tex. 2010) ..............................................................................31
Western Technologies, Inc. v. All-American Golf Center, Inc.,
  139 P.3d 858 (Nev. 2006) ...................................................................................44
White Budd VanNess P’ship v. Major-Gladys Drive Joint Venture,
  798 S.W.2d 805 (Tex. App.—Beaumont 1990), writ dism’d, 811 S.W.2d
  541 (Tex. 1991), cert. denied, 502 U.S. 861 (1991).....................................23, 37

Wood Motor Co. v. Nebel,
  150 Tex. 86, 238 S.W.2d 181 (1951) .................................................................54

Zidell v. Bird,
   692 S.W.2d 550 (Tex. App.—Austin 1985, no writ) .........................................26




                                                        xiv
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STATUTES
TEX. OCCUP. CODE §1051.701 .................................................................................35
TEX. CIV. PRAC. & REM. CODE §§32.001.................................................................50

TEX. CIV. PRAC. & REM. CODE §33.0001 et seq. .....................................................48

TEX. CIV. PRAC. & REM. CODE §§33.002.................................................................29
TEX. CIV. PRAC. & REM. CODE §33.012.......................................................30, 50, 52
TEX. CIV. PRAC. & REM. CODE §33.013...................................................................30
Chapter 38 of the Texas Civil Practice and Remedies Code ...................................59

OTHER AUTHORITIES
Article 2212........................................................................................................ 21-23
Hodges, Contribution and Indemnity Among Tortfeasors, 26 Tex. L. Rev.
  150, 151 n.11 (1947) ...........................................................................................21

House Bill 4 .............................................................................................................52
Senate Bill 890 .........................................................................................................52
TEX. R. CIV. P. 90 .....................................................................................................56
TEX. R. CIV. P. 94 ............................................................................................... 57-58
TEX. R. CIV. P. 278 ...................................................................................................56
Article I, §16 of the Texas Constitution ..................................................5, 14, 53, 56

Wigmore, Joint Tortfeasors and Severance of Damages: Making the
  Innocent Party Suffer Without Redress, 17 Ill. L. Rev. 458, 459) (1922) .......... 21
Williston on Contracts, §§ 36:1 ...............................................................................26




                                                            xv
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                           I.   STATEMENT OF THE CASE
         This is a breach of contract case involving a local Courtyard by Marriott

Hotel (the “Project”), located on East Ben White Boulevard, near Bergstrom

International Airport. (CR187; App. A). 1 The foundation of the Project failed in

numerous respects and resulted in varied injuries to the property, resulting in

$7,536,624.00 of claimed past, present, and future damages. (7RR48; 9RR123-

124, 136; 7RR16-18, 26-39; 3RR133-136; PX-151, 16RR1-1145; 10RR29-31). As

the original owner’s successor in interest and assignee, RLJ II-C Austin Air, LP;

RLJ II-C Austin Air Lessee, LP; and RLJ Lodging Fund II Acquisitions, LLC

(“RLJ” collectively), 2 alleged that the general contractor, EBCO General

Contractor, Ltd. (the “General Contractor”), the geotechnical engineer, Terracon

Consultants, Inc. (the “Soils Engineer”), and the architect, Elness, Swenson,

Graham, Inc. (the “Architect”) failed to perform as specifically and individually

promised in three separate and independent contracts. (CR184-218; App. A).

         After the trial court entered rulings on various pre-trial motions, the only

claims being prosecuted were for breach of contract against the Architect, the

General Contractor, and the Soils Engineer. (CR1057-62; 1063-64; 1083-84;

CR1708-1710). The Soils Engineer settled its contractual liability with RLJ before

1
  The Clerk’s Record is cited as “CR”; First Supplemental Clerk’s Record as “1SCR”; Second
Supplemental Clerk’s Record as “2SCR”; Third Supplemental Clerk’s Record as “3SCR”.
2
  White Lodging Services Corporation, Inc. “assigned the contracts and causes of action in this
lawsuit to the RLJ Plaintiffs in this case.” (CR1124; App. B.)

                                              1
MHDocs 6062453_7 12690.2
trial. (CR1080-81; CR1710). The General Contractor settled during trial. (7RR105-

108; CR1710).3 Trial proceeded on RLJ’s breach of contract claim against the

Architect.

         The jury found that the Architect “fail[ed] to comply with the Architectural

Contract regarding the structural engineering services required by the contract” in

answer to Question 2 (the “Structural Engineering Question”) (CR1126; App. B).

The jury then determined the amount that would reasonably compensate for

damages “that resulted from [the Architect’s] failure to comply with the

Architectural Contract” as found in the Structural Engineering Question. (CR1125-

27; App. B). The total amount of damages found by the jury was $700,000 for the

difference in value from the hotel as constructed and the value had the Architect

complied with the Architectural Contract, $70,000 for the cost of barrier

remediation resulting from the Architect’s failure to comply, and $15,000 for the

reasonable and necessary cost of repairs to the hotel due to the Architect’s failure

to comply. (Id.)

         After trial, the Architect moved for credit under the “one satisfaction rule”

for sums the General Contractor and the Soils Engineer (“Settling Defendants”

collectively) paid in settlement of the contract claims against them. (CR1173-

1228). The trial court deemed the credit applicable because it concluded the

3
 The Reporter’s Record is cited by “[Volume Number]RR.” Exhibits are cited to page or pages
of the Reporter’s Record on which they or the pertinent parts thereof appear.

                                            2
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damages were indivisible, despite the fact the court submitted and the jury found

damages limited to those “that resulted from [the Architect’s] failure to comply

with the Architectural Contract . . . .” (CR1437-41; CR1127; App. B, C).

Moreover, the trial court concluded that the absence of contractual joint and

several liability did not render the one satisfaction rule inapplicable. (CR1437-41;

App. C).

         Applying the one satisfaction rule, the Court ordered that RLJ recover the

from the Architect $516,650.96, which was the sum of the jury’s award of

$785,000 as actual damages resulting from the Architect’s breach of contract and

the attorney’s fee award of $901,650.96, less $1,170,000, which was the amount of

the settlements of the Settling Defendants. (CR1711; App. D).

         The parties agreed to try the attorney’s fees to the court instead of the jury.

RLJ presented evidence of its reasonable and necessary attorney’s fees for

asserting the contractual claims against the Architect, the General Contractor, and

the Soils Engineer. (3SCR3-611; 2SCR1603-05). However, the trial court only

awarded fees for the contractual claim against the Architect and rendered judgment

according to its application of the one satisfaction rule and its segregation of

attorney’s fees. (CR1708-1712; App. D). The Architect timely filed its notice of

appeal (CR1907-13) and RLJ timely perfected its cross-appeal (1SCR3-4).




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                                II.   ISSUES PRESENTED
A.       Whether the trial court erred in applying the one satisfaction rule and thus

         reducing the damages found to have resulted from the specific breach of the

         Architectural Contract by the Architect by the amounts received in

         settlement for damages resulting from the breach of the different contractual

         duties owed by the Soils Engineer and the General Contractor (CR1173-79,

         1437-41; 2SCR1578-97, 1637-1745) including but not limited to the

         following sub-issues:

         1.       Whether, in addition to an indivisible injury, joint and several liability

                  is required for application of the one satisfaction rule, and, if so,

                  whether the liable and settling parties must have contracted for the

                  same performance to deem a contractual liability joint and several?

         2.       Whether the one satisfaction rule does not apply due to the absence of

                  an “indivisible injury” because: (a) the damages found by the jury

                  were specifically limited to those caused by the contractual breach of

                  the non-settling defendant; (b) the non-settling defendant in its closing

                  argument advised the jury that it should not include damages it

                  deemed attributable to the Settling Defendants; or (c) both?

         3.       Whether the one satisfaction rule does not apply unless the liability of

                  the non-settling defendant is based on a non-contractual theory?


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         4.       Whether application of the one satisfaction rule violates article I, §16

                  of the Texas Constitution guaranteeing freedom of contract by

                  depriving a party of the benefit of a contractual agreement with

                  another and applying those benefits to offset the liability of a third-

                  party?

         5.       Whether the Architect waived the right to seek application of the one

                  satisfaction rule by any one or more of the following: (a) failing to

                  specially except to a lack of settlement allocation; (b) failing to plead

                  the rule as an affirmative defense, (c) inviting the jury to exclude from

                  its damage finding damages caused by the Settling Defendants; or

                  (d)failing to object to a jury question that permitted the jury to only

                  find damages attributable to the Architect’s breach of contract?

B.       Either if there was a joint and several contractual liability between the

         Architect and the Settling Defendants or if the damages were awarded for an

         indivisible injury, whether the trial court erred in refusing to award RLJ

         reasonable and necessary attorney’s fees incurred in the presentation of the

         breach of contract claims against the Architect, the General Contractor and

         the Soils Engineer and in awarding those fees attributable only to the

         presentation of the claim against the Architect? (3SCR3-611; 2SCR1603-05,

         1600-01, 1711).


                                               5
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                           III.   STATEMENT OF FACTS
         The record in this case does not support the application of the one

satisfaction offset against the damages found caused by the Architect. First, the

evidence shows separate contractual duties, not common or overlapping duties.

Thus, there is no basis for joint and several liability, a sine qua non for application

of the one satisfaction rule. Second, the jury, in answer to Question 3, determined

the damages caused by the Architect. The jury did not find an indivisible amount

of damages caused by the settling defendants and the Architect. Third, the

Architect invited the jury to reduce the damages finding based on damages caused

by the settling defendants. Indeed, the Architect did not raise the issue of one

satisfaction until after the trial, failing to plead it, specially except regarding it, and

failing to object to either the omission of a segregated damages question or to

Question 3, which focused on damages caused by the Architect only. Finally,

Question 3 and the record show that the jury reduced the amount of damages it

awarded resulting from the Architect’s breach to remove amounts caused by the

non-settling parties. Thus, the record shows that recovery of the full amount

awarded in answer to Question 3 did not present even the possibility of a double

recovery or more than one satisfaction.

         Having suffered over $7 million in damages, receiving settlement funds of

$1,170,000 for the damages caused by the breaches by the General Contractor and


                                            6
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Soils Engineer, plus the jury award of $785,000 for the damages caused by the

Architect, certainly would not amount to more than one satisfaction. Indeed,

despite three contracts for millions of dollars and separate and distinct promised

performances, RLJ received a building with serious deficiencies that have caused

loss and will continue to do so. Yet, RLJ is forced to accept the Architect

benefiting from the other’s breaches of contract to which it was not a party by

receiving two damage reductions or offsets: one by the limited damage inquiry in

the jury charge and a second from the application of the one satisfaction rule.

A.       Separate Contracts With Separate and Distinct
         Promised Performances on the Project.
         The contracts with the Architect, the General Contractor, and the Soils

Engineer did not promise the same performance.

             • The Soils Engineer agreed to assess site conditions and recommend
               specific foundation design parameters based on the same. (PX-3;
               12RR6-11; 3RR161; App. E).

             • The General Contractor agreed to build the structure designed by the
               Architect with the assistance of its Structural Engineer, and comply
               with the plans and specifications of the Project. (PX-48; 12RR569-75;
               App. F).

             • The Architect, with the assistance of its Structural Engineer, agreed to
               prepare an appropriate foundation plan. (PX-15; 12RR30, 35, 47, 49;
               App. G).

         The Architectural Contract (PX-15; 12RR26-77; App. G) provided, among

other things, that the Architect’s design services “include normal structural,


                                            7
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mechanical and electrical engineering” (12RR39) along with “[s]tructural

[e]ngineering design, document preparation and coordination” through “[o]ur

Structural Engineering firm...Marlin Bridges Associates, Inc.” (12RR47). In

conjunction with its retained Structural Engineer (PX-15; 12RR28), the Architect

promised to provide a foundation design for the Project. (PX-15; 12RR30, 35, 47,

49; PX-13; 12RR17-25).

         The original owner White Lodging Services Corporation, Inc. contracted for

the services of the Soils Engineer to provide “geotechnical services” including

evaluating soil conditions and providing recommendations which would address

“[f]oundation design and construction.” (PX-3; 12RR6-11; App. E). This

information was to be supplied to the Architect and its Structural Engineer in

connection with the Project’s foundation design. (PX-15; 12RR48; App. G).

         The original owner also separately contracted with the General Contractor to

build the Project according to the Architect’s plans and specifications. (PX-48;

12RR569-75; App. F). The General Contractor agreed “that materials and

equipment furnished will be of good quality[,]…that the work will be free from

defect…and will conform to the requirements” (PX-48; 12RR616; App. F) of the

Architect’s plans and specifications. (PX-48; 12RR610-11).

         After the construction was completed, the Project was found to have cracks

in the slab and grade, shifting door frames, cracks in partition walls, cracks in the


                                           8
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swimming pool, and perimeter drainage problems. (3RR118; 4RR78-79; 7RR47).

Investigation revealed that the Project suffered from geotechnical engineering

deficiencies, foundation design defects, and construction defects (DX-147;

17RR514; 7RR49-62), in breach of the separate contractual duties undertaken by

the Architect, the General Contractor, and the Soils Engineer.

B.       Separate and Distinct Acts and Omissions Breaching
         Separate and Distinct Contractual Obligations.
         The Soils Engineer allegedly breached its contract by, among other things,

failing to account for the amount of necessary site excavation. This breach resulted

in soil expansion greater than the estimate in the Soils Engineer’s report. (CR192-

93, 197-98, 200-01, 209-12). The Soils Engineer miscalculated the potential

vertical rise (PVR) of the soil and failed to recommend that enough of the soil be

dug out and replaced with special engineered soil that did not have the expansive

properties of the native soil, called “select fill.” (DX-147; 17RR510).

         The Architect breached its contract by failing to provide a foundation design

that was adequate for the site. Specifically, the Architect’s Structural Engineer

improperly designed the foundation and other structures by, among other things,

failing to account for the limitations and recommendations in the Soils Engineer’s

report, including designing a foundation insufficiently robust for the conditions

reported by the Soils Engineer. (4RR122-124; 4RR150-151). The Architect’s

Structural Engineer further failed to follow the Soil Engineer’s recommendations

                                           9
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concerning the appropriate type of foundation design. (4RR122-124; 4RR150-

151).

         The General Contractor was alleged to have failed to build according to the

plans and specifications supplied and provide a building free from defects, contrary

to its promised contractual performance. (CR188-89). Richard Reeves, a

construction manager expert, testified concerning the General Contractor’s specific

construction omissions and defects, meaning that certain construction failed to

comply with the plans and specifications provided by the Architect. (7RR49-62).

These included:

              • A missing foundation grade beam (7RR53-54),

              • Reinforcement of the concrete slab with welded wire mesh
                lacking polypropylene fibers (7RR58),

              • Unconnected and improperly constructed drains (7RR49-51,
                55-58, 60-62),

              • Improperly constructed “clean-out” access points to drains,
                sewer lines and vents that were covered with flooring and
                drywall (7RR51-53, 56-57), and

              • Concrete overpours that improperly encased pipes in concrete.
                (7RR58-60).

Under Question 3 in the charge, the jury was asked to determine the amount of

damages caused by the Architect, and thus it was allowed and indeed encouraged




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to reduce its damages award based on breaches of contract by the Settling

Defendants. (CR1127; App. B).

C.       Suit and Settlements By the Soils Engineer and the General Contractor.
         As the original owner’s successor in interest and assignee, RLJ sued, among

others, the Architect, the Soils Engineer, and the General Contractor for damages

to the Project resulting from various breaches of contract that caused foundation

and drainage problems. (CR188-218; App. A). Through pre-trial summary

judgments and non-suits, the suit was confined as matter of law to RLJ’s contract

claims against the General Contractor, the Soils Engineer and the Architect.

(CR1708, 1710; 2SCR42; App. D). Before trial, and after the trial court restricted

the case to contract claims, the Soils Engineer settled the contract claim against it

for $70,000. (CR1080-81; CR1710; App. D). During trial, RLJ settled its contract

claims against the General Contractor for $1.1 million. (7RR105-08; CR1710,

1226; App. D). As noted, the evidence showed that the damages to the Project

from all contractual breaches of the Architect and Settling Defendants was at least

$7,536,224. (7RR48; 9RR123-124, 136; 7RR16-18, 26-39; 3RR133-136; PX-151,

16RR1-1145; 10RR29-31). During closing arguments, RLJ argued that only

$6,029,299 in damages was attributable to the Architect, the rest being attributable

to the Settling Defendants and other responsible parties. (10RR29-31). The

Architect similarly argued that the portion of RLJ’s damages attributable to the


                                          11
MHDocs 6062453_7 12690.2
Architect was “zero,” because the fault was attributable to other parties. (10RR54-

56).

         RLJ’s contract claims against the Architect were then submitted to the jury.

(CR1121-29; App. B). The jury found that the Architect breached its contract “by

failing to comply … regarding the structural engineering services required.”

(CR1126; App. B). Finding that the Architect breached the Architectural Contract

in response to the Structural Engineering Question, the jury awarded $785,000 in

damages that resulted from the Architect’s breach. (CR1125, 1127; App. B).

D.       The Trial Court Rules That the One Satisfaction Rule Applies.
         Four days later, the Architect claimed for the first time a credit for the

General Contractor’s and Soils Engineer’s settlements under the one satisfaction

rule. (CR1173-79). After entertaining RLJ’s response (2SCR1578-97), the trial

court ruled that the one satisfaction rule applied solely because it deemed the

claims against the Architect, the General Contractor, and the Soils Engineer all to

be for one “indivisible injury.” (CR1439). It presumed the General Contractor’s

and Soils Engineer’s settlements were payment for the same injury for which the

jury awarded damages against the Architect. (CR1438). The trial court further

reasoned “RLJ needed to identify that category of [divisible] damages [against the




                                          12
MHDocs 6062453_7 12690.2
General Contractor] and state the amount apportioned to it.” 4 (CR1438). RLJ

sought reconsideration of the trial court’s letter ruling via a Motion for Judgment

(2SCR1606-1636) and a Motion for Reconsideration (2SCR1637-1745). The trial

court denied both motions. (CR1905; 2SCR2102).

E.       Attorney’s Fees Allowed Only for Breach of Contract Claim
         Against the Architect.
         Per stipulation, RLJ submitted its attorney’s fees claim for resolution by the

court. The trial court’s letter ruling suggested that RLJ was entitled to recover fees

for presenting the contractual claims against the Architect, the General Contractor

and the Soils Engineer. (CR1400; App. C). RLJ filed an amended application for

those attorney’s fees in the amount of $1,388,019. (3SCR3-611; 2SCR1603-05).

The trial court, however, ultimately decided to award attorney’s fees only for the

breach of contract case against the Architect. (CR1711; App. D).

F.       The Trial Court Renders Final Judgment.
         The trial court rendered judgment for RLJ in the principal sum of

$551,650.96, being the difference between the sum of the damage and attorney’s

fees award against the Architect, less the sum of the settlements from the Settling

Defendants. (CR1711; App. D).



4
  The trial court was not clear whether this identification needed to be contained in the settlement
agreements themselves or be presented in the evidence to the jury. (CR1438). RLJ was not given
the opportunity to segregate or apportion damages to satisfy the trial court’s reasoning before the
case was submitted to the jury.

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                           IV.   SUMMARY OF ARGUMENT

A.       The One Satisfaction Rule Does Not Apply.
         The one satisfaction rule applies if, and only if, the liability of judgment

debtor and settling defendants is joint and several. Indivisible injury alone is only

sufficient to establish joint and several tort, not contractual, liability. If the one

satisfaction rule applies at all, it applies in this case only if there is joint and several

contractual liability. To have such liability, the Architect and the Settling

Defendants must each have breached a promise to provide the same performance.

Here, the promised performances were not the same, so the one satisfaction rule

does not apply. Even if “indivisible” damages alone somehow is assumed

arguendo to have created joint and several contractual liability, the jury’s damages

finding was limited to the damages resulting from the Architect’s failure to

comply. (CR1127; App. B).

         Further, RLJ would urge that the one satisfaction rule simply should not

apply in contract cases such as this. The one satisfaction rule was judicially created

to address a problem created by a statute that only applied to tort liability.

Applying it in contract cases deprives the injured party of the benefit of its

settlement agreement and transfers that benefit to the wrongdoer in violation of the

freedom of contract guaranteed by Texas Constitution article I, section 16.




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         In any event, the Architect waived application of the one satisfaction rule. It

failed to plead this affirmative defense, was guilty of laches in waiting until after

the verdict to assert it, failed to object to the failure of the damages question to

segregate damages as it contends should have been done, and argued for the

apportionment of damages in its closing argument.

         For all these reasons, as more fully articulated below, the trial court’s

decision to credit RLJ’s settlement with the General Contractor and Soils Engineer

to the damages the jury assessed against the Architect was erroneous. Accordingly,

the judgment must be modified to restore the damages awarded to RLJ by the jury

for the Architect’s breach of contract.

B.       RLJ Entitled To Attorney’s Fees For the Presentation of the Breach of
         Contract Claims Against the Architect, General Contractor, and Soils
         Engineer Either If These Parties Shared a Joint and Several
         Contractual Duty Or If the Damages Were “Indivisible.”
         If multiple defendants breached the same contractual duty, RLJ was entitled

to recover attorney’s fees for the presentation against all those defendants because

the preparation and proof would have been necessary for the case against any one

of them. RLJ maintains that the Architect and the Settling Defendants here did not

breach contractual undertakings to perform the same duties and, therefore, there

was no joint and several contractual liability among the Architect and the Settling

Defendants. However, if this Court holds otherwise, then it necessarily follows that

RLJ is entitled to recover its attorney’s fees for cases against the Architect, the

                                            15
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General Contractor and the Soils Engineer because the same preparation and proof

would have been necessary for the case against any one of them. If so, there was

no need to limit the recoverable attorney’s fees only to those attributable to the

breach of contract case against the Architect.

         The same is also true if the trial court correctly ruled that the damages for

the Architect’s breach were indivisible from those allegedly caused by the Settling

Defendants. Again, RLJ maintains that the damages here were necessarily

segregated by the nature of the damages question and under the arguments of the

parties to the jury and presents this contention only if this Court determines that the

one satisfaction rule applies.

                           V.   ARGUMENT AND AUTHORITIES
         The one satisfaction rule is intended under appropriate circumstances to

prevent a plaintiff from receiving a double recovery. It was never been intended to

be used to reduce damages found to have been caused by the remaining defendant

by the amount of settlements entered with settling defendants. As applied in this

case, the one satisfaction rule does not achieve the purpose of defeating a double

recovery absent joint and several liability and indivisible damages. In fact, as

applied, the rule violates Texas public policy encouraging settlement and the

freedom to contract. The application here provides a strong disincentive to partial

settlements, particularly in construction contract cases. In any event, the rule was


                                           16
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not timely and appropriately raised by the Architect through timely pleading,

exceptions, objections to the charge, and indeed the Architect invited the jury to do

its own reduction in answering the damages question prior to applying the one

satisfaction rule.

A.       The One Satisfaction Rule Does Not Apply.
         The decision to apply the one satisfaction rule was erroneous for many

reasons. First, the rule requires at a minimum joint and several liability of the

defendants. Here, the Architect was tried only on a breach of contract theory. Joint

and several liability is limited to tort law. There was no evidence here of a joint

and common contractual duty among the settling defendants and the Architect.

Second, the damages reduced by the trial court here were not so-called common or

indivisible damages. Instead, the jury found only “damages that resulted from [the

Architect’s] failure to comply with the Architectural Contract . . . .” Finally, the

record does not in any way support the notion that RLJ would be getting a double

recovery absent application of the one satisfaction rule. The damages sought and as

to which evidence was presented involved a claim of over $7 million. The jury was

permitted and invited by counsel for the Architect to reduce its damage finding as

to damages caused by others based on the fact the Court’s charge required that the

damages had to have resulted from the Architect’s breach of contract. The jury is

presumed to have read the charge and followed it. Thus, this is not a case of a


                                         17
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double recovery; instead, with application of the settlements relating to separate

contractual duties under the one satisfaction rule, it is the Architect who is unfairly

receiving a double reduction.

         1.       This Case Involves Contractual, Not Tort, Liability.
         Because of pre-trial rulings and non-suits, the only claims pending before

trial were RLJ’s contract claims against the General Contractor, the Soils Engineer

and the Architect. (CR1708,1710; 2SCR42; App. D). Before trial, RLJ settled with

the Soils Engineer for $70,000. (CR1080-81; CR1710; App. D). During trial, RLJ

settled with the General Contractor for $1.1 million. (7RR105-08l; CR1226, 1710;

App. D). Only RLJ’s contract claims against the Architect were submitted to the

jury.

         Not only was the Architect’s liability purely contractual, the damages sought

were only recoverable in contract. (CR1127; App. B). The alleged harm was

economic loss to the subject of the contract itself – i.e., the Project. “When the

injury is only the economic loss to the subject of a contract itself, the action sounds

in contract alone.” Jim Walters Homes v. Reed, 711 S.W.2d 617, 617-18 (Tex.

1986).

         After trial, the Architect asserted for the first time it was entitled to credit

under the one satisfaction rule for the Settling Defendants’ settlements. (CR1173-

1179). The trial court agreed (CR1710; 1437-41; App. C, D), conflating the tort


                                            18
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joint and several liability with contract. According to the trial court, “Each party is

liable for its own [contractual] breach which by itself results in indivisible

damages[, j]ust as with tortfeasors who breach different common law duties that

each proximately cause an indivisible damage.” (CR1439; App. C; emphasis

added).

         2.       The One Satisfaction Rule Was Developed to Address Settlements
                  In Tort Cases With Less Than All Defendants After the
                  Legislature Authorized Joint and Several Liability.
         More than sixty years ago, the Texas Supreme Court deemed the risk of a

double recovery no justification for depriving a plaintiff of a favorable settlement.

         [O]ur courts seem to have embraced the philosophy … that it is better
         that the injured party lose all of his damages than that any of several
         wrongdoers should pay more of the damages than he individually and
         separately caused. If such has been the law, from the standpoint of
         justice it should not have been ….

Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731,

734 (1952) (emphasis added). Fully understanding when the one satisfaction rule

should and should not apply requires an appreciation of its history and why it was

created in the first place.

         The one satisfaction rule was developed to correct a statutorily-created

anomaly. In the early Twentieth Century, the Legislature attempted to alleviate the

harshness of the common law prohibition of contribution claims by creating a

contribution cause of action against other tortfeasors when a defendant was held


                                           19
MHDocs 6062453_7 12690.2
liable for more than its per capita share of liability. But the statute did not address

what happened if the plaintiff settled with one of the other defendants. The courts

responded by creating the one satisfaction rule. If a defendant is subject to liability

through joint and several liability for more than the damages he or she caused, a

settlement by that defendant involves something that overlaps with a remaining

non-settling joint and several defendant, thus allowing consideration of double

recovery issues. Therefore, outside the context of joint and several tort liability,

there is no other recognized justification for imposing the one satisfaction rule.

                  a.       Generally There Was No Joint & Several
                           Tort Liability at Common Law.
         At common law, a tort suit could not be asserted against multiple defendants

for damages to which each defendant contributed unless the defendants acted

according to a common plan or scheme. Sun Oil Co. v. Robicheaux, 23 S.W.2d

713, 715 (Tex. Comm. App. 1930) (judgment adopted). Otherwise, there could be

no joint tort liability. Instead, the plaintiff had to sue each defendant separately and

establish that particular part of the injury that particular defendant caused. Id.

                  b.       There Was No General Right of Contribution
                           at Common Law.
         Also, defendants were not permitted a right of contribution generally under

Texas common law. Gattegno v. The Parisian, 53 S.W.2d 1005, 1007 (Tex.

Comm’n App. 1932, holding approved). It was “against the policy of the law to


                                             20
MHDocs 6062453_7 12690.2
adjust equities between wrongdoers, or to allow a [liable] person to found an action

on his own wrong.” Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, 564-

65 (1949).

                  c.       Statute Allowed Collection of All Damages From Any
                           Defendant and Gave Defendant the Right to
                           Contribution from the Other Tortfeasors, But Fails to
                           Address Settlement With Less Than All Tortfeasors.
         The Legislature passed article 2212 (now Texas Civil Practice & Remedies

Code chapter 32) to change these two perceived deficiencies. First, article 2212

allowed a tort defendant to be liable for all damages even if the common result of

multiple actors’ independent torts. A plaintiff no longer bore the “intolerable

burden” of proving particular damages attributable to a particular tort defendant in

common injury cases. Hodges, Contribution and Indemnity Among Tortfeasors, 26

Tex. L. Rev. 150, 151 n.11 (1947); Wigmore, Joint Tortfeasors and Severance of

Damages: Making the Innocent Party Suffer Without Redress, 17 Ill. L. Rev. 458,

459 (1922). Instead, the plaintiff could recover all tort damages from a single

defendant. Deal v. Madison, 576 S.W.2d at 414.

         Article 2212 also created a right of action so that the defendant who was

held liable for the total common damages and, thereby, paid more than its per

capita 5 share of the total tort liability could sue to collect the excess payment from

5
  At the time, liability was established by judgment and statutorily allocated equally among joint
tortfeasors so the amount of potential contribution liability was fixed. Accordingly, there was no
need to plead the one satisfaction rule. The rules concerning contribution are today vastly

                                               21
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the other jointly liable defendants. Id.; Hodges, 26 Tex. L. Rev. at 151 n.11. Article

2212, however, made no provision for cases in which fewer than all tortfeasors

settled. Deal, 576 S.W.2d at 414. (Tex. Civ. App.—Dallas 1978, writ ref’d n.r.e.).

         To address a situation unique to tort claims involving defendants jointly and

severally liable for common injuries from independent torts, the courts created the

one satisfaction rule. Under it, a plaintiff who settled with less than all tortfeasors

for more than the settlors’ share of damages could not recover from the non-

settling tortfeasors more than the difference between total damages and the sum of

all settlements. Hodges, 26 Texas L. Rev. at 171-72; see Gattegno, 53 S.W.2d at

1007; Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703, 705 (1935).

                  d.       The One Satisfaction Rule Was Designed to Address
                           Joint and Several Liability In Tort Cases Only.
         After the one satisfaction rule was adopted, the Texas Supreme Court

abolished the common-law rule in Robicheaux, 23 S.W.2d at 715, that prevented

joining multiple defendants in a single suit to impose joint and several liability for

independent torts. In Landers v. East Texas Salt Water Disposal Co., the court

ruled that when

         tortious acts of two or more wrongdoers join to produce an indivisible
         injury, that is, an injury which from its nature cannot be apportioned
         with reasonable certainty to the individual wrongdoers, all of the
         wrongdoers will be held jointly and severally liable for the entire


different, but cases continue, we would respectfully submit, to incorrectly recite that it is
unnecessary to plead the one satisfaction rule though the reason why no longer exists.

                                             22
MHDocs 6062453_7 12690.2
         damages and the injured party may proceed to judgment against any
         one separately or against all in one suit. If fewer than the whole
         number of wrongdoers are joined as defendants to plaintiff’s suit,
         those joined may by proper cross action under the governing rules
         bring in those omitted.

248 S.W.2d at 734 (emphasis added). Landers abolished Robicheaux’s concerted

action requirement for establishing joint and several tort liability. Under Landers,

indivisible injury alone was enough in tort cases to establish joint and several

liability. A party had to be jointly and severally liable for the entire damages, not

just its share. Thus, when that party settled, they theoretically could have settled

for more than just their individual liability for just the damages they caused.

Accordingly, in that setting, the plaintiff had the opportunity to ultimately settle

with multiple defendants for an amount greater than the plaintiff’s overall injury.

         3.       The One Satisfaction Rule Only Applies
                  In Cases Involving Joint Liability.
         The one satisfaction rule’s historical development demonstrates it was

intended to address a problem unique to settlements with less than all jointly and

severally liable defendants in tort cases – the only cases to which article 2212

applied. Even assuming for the sake of argument that the one satisfaction rule

applies in a contract case, which RLJ disputes, the one satisfaction rule does not

apply unless the liability of the liable defendant and the settling defendant is joint

and several. GE Capital Commercial Inc. v. Worthington Nat’l Bank, 754 F.3d

297, 306 (5th Cir. 2014); Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.

                                          23
MHDocs 6062453_7 12690.2
2000); First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 78 (Tex. 1993); Stewart

Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex. 1992); CTTI Priesmeyer, Inc. v.

K&O Limited Partnership, 164 S.W.3d 675, 684 (Tex. App.—Austin 2005, no

pet.); LJ Charter, LLC v. Air America Jet Charter, Inc., No. 14-08-00534-CV,

2009 WL 4794242 at *9 (Tex. App.—Houston [14th Dist.] Dec. 15, 2009, pet.

denied). Joint and several liability is essential, Garrett, 860 S.W.2d at 79; Sterling,

822 S.W.2d at 8, because the contribution right is derivative of the plaintiff’s right

to recover from the contribution defendant. Shoemake v. Fogel, 826 S.W.3d 933,

935 (Tex. 1992). A non-settling defendant may successfully urge the one

satisfaction rule only to reduce damages for which all the defendants are jointly

liable. Casteel, 22 S.W.3d at 391; Garrett, 860 S.W.2d at 78. In other words, if the

plaintiff could not impose joint and several liability, it would have no right to sue

for damages other than those caused by a particular defendant. Accordingly, a non-

settling defendant would have no right to seek an offset or credit from a settling

defendant since the plaintiff had no right to do so against the settling defendant or

the non-settling defendant.

         Just last summer, the Fifth Circuit was persuaded by Garrett, Sterling, and

this Court’s reasoning in CTTI that joint and several liability was essential to the

application of the one satisfaction rule. GE Capital, 754 F.3d at 306. The suit arose

when a predecessor’s employee fraudulently induced wire transfers to a bank that


                                          24
MHDocs 6062453_7 12690.2
accepted them in bad faith in violation of a Texas statute. GE Capital sued the

predecessor for contractual remedies under the purchase and sale agreement and

sued the bank for statutory tort. Id. at 300. GE Capital settled its contractual claims

with the predecessor, but successfully tried the statutory tort claim against the

bank. Id. at 301. The bank asserted the one satisfaction rule applied and GE Capital

should recover nothing because its contract damages were for the same loss settled

by the bank. Id. at 303.

         The Fifth Circuit held there was no legal duty shared by the settling and

liable defendants and, therefore, the one satisfaction rule did not apply. Id. at 306-

07, 309. A common factual origin for the damages claimed against the settling and

liable defendants was not enough.

         [The settling defendant’s] alleged contractual breach and the TUFTA
         action against [the liable defendant] may share common underlying
         facts – the three fraudulent transfers …. But such factual commonality
         does not suffice … to render [the settling defendant] a joint tortfeasor
         for one-satisfaction rule purposes.

Id. at 309 (emphasis added). The Fifth Circuit agreed with CTTI’s analysis that the
one satisfaction rule did not apply in any case where the duty allegedly breached
by the liable and settling defendants was not the same. Id. at 306-07.

                  a.       Unlike Tort Cases, Joint Liability in Contract Cases
                           Requires More Than Common, Indivisible Damages.
         Tort duties are universal; contractual duties are not. Landers implicitly

recognized the joint duty requirement would necessarily be satisfied in tort cases

so that joint and several tort liability need only focus on existence of a common,

                                              25
MHDocs 6062453_7 12690.2
indivisible injury. 248 S.W.2d at 734. For purposes of tort liability, “the law

imposes on all persons a duty to act as a reasonably prudent person would act

under same or similar circumstances, considering any reasonably foreseeable risks

or probability of injury to others.” Zidell v. Bird, 692 S.W.2d 550, 553 (Tex.

App.—Austin 1985, no writ).

         Undertakings in a contract, however, are binding only on the contracting

parties and their privies. McClellan v. Scardello Ford, Inc., 619 S.W.2d 593, 597

(Tex. Civ. App.—Amarillo 1981, no writ); Buckner Orphans Home v. Berry, 332

S.W.2d 771, 776 (Tex. Civ. App.—Dallas 1960, writ ref’d n.r.e.). Thus, joint and

several contractual liability requires more than indivisible injury. It also requires

that the parties separately promise the same performance,6 whether under the

same or separate contracts. 12 Richard A. Lord, Williston on Contracts, §§ 36:1; In

re Sewell, 413 B.R. 562, 568 n.5 (Bankr. E.D. Tex. 2009); CTTI, 164 S.W.3d at

679, 684 (joint and several contractual liability under separate contracts requires

promise of the same performance); LJ Charter, 2009 WL 4794242 at *9. But not

all undertakings for the same performance are necessarily joint.

         Under the common law doctrine of joint, joint and several, and several
         obligations in a contract, the question is whether multiple promisors
         of the same performance have promised as a unit (jointly), or have

6
  Whether the performance promised by the both parties must be exactly the same for the liability
to be joint is not an issue that need be resolved here. As will be discussed in greater detail below,
the Architect’s deficient performance concerned obligations that were not and could not lawfully
have been undertaken by others.

                                                 26
MHDocs 6062453_7 12690.2
         promised the same performance separately (severally), or both as a
         unit and separately (jointly and severally).… The problem does not
         arise, however, unless the promises relate to the same performance.

InvestIn.com v. Europa Int’l , Ltd., 293 S.W.3d 819, 828 (Tex. App.—Dallas 2009,

pet. denied); accord K-Bar Servs., Inc. v. English, No. 03-05-00076-CV, 2006 WL

903735 at *3 (Tex. App.—Austin Apr. 7, 2006, no pet.).

         In other words, to be jointly liable under contract, the parties must

effectively promise the same performance. Export Worldwide, Ltd. v. Knight, No.

SA 05 CA 647 XR, 2007 WL 628746 (W.D. Tex. Feb. 27, 2007) (joint promises);

InvestIN.com Corp., 293 S.W.3d at 829; English, 2006 WL 903735 at *3.

         The Texas Supreme Court has not yet decided whether joint and several

liability is necessary for application of the one satisfaction rule to a contractual

liability. GE Capital, 754 F.3d at 305. This and other courts, however, have

concluded that it does not apply unless both the liable and settling defendants’

alleged liability arises out of the breach of a common contractual duty.

         Like this case, CTTI involved a contract suit by an owner against the

architect and general contractor for a new building’s foundation defects. 164

S.W.3d at 679. The CTTI architect’s contract required design and “supervisory

services.” 164 S.W.3d at 685. A separate contract required CTTI, the general

contractor, to build according to the architect’s plans and specifications. 164




                                         27
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S.W.3d at 678. Before trial, the owner settled with several parties involved in the

building’s construction and settled with the architect during trial. Id.

         After the jury returned its verdict, the general contractor sought to have its

contractual liability reduced by the other defendants’ settlement payments. Id. at

680. After carefully reviewing Texas Supreme Court authorities, this Court held

the one satisfaction rule inapplicable unless the liable and settling defendants

breached the same contractual duty. Id. at 685. It concluded the architect’s and

general contractor’s promised performances differed so that the one satisfaction

rule did not apply. Id.

         Necessity of a joint liability is also illustrated by this Court’s decision in

Galle, Inc. v. Pool, 262 S.W.3d 564, 574 (Tex. App.—Austin 2008, pet. denied).

Galle involved a suit by an insured homeowner against his insurer and a mold

remediator, alleging contractual and tort liabilities against both. Id. at 568, 570.

The homeowner settled all claims against the insurer before trial. Id. at 569. Post-

verdict, the homeowner elected to recover in tort against the remediator. Id. at 570.

The remediator claimed a credit for the insurer’s settlement because the damages

allegedly caused by the insurer and the remediator were indivisible. Implicitly

recognizing indivisible injury alone is sufficient for the joint and several tort

liability under Landers, this Court held the one satisfaction rule applied. It further

ruled that the entire amount of the insurer’s settlement must be credited against the


                                           28
MHDocs 6062453_7 12690.2
tort damages because the plaintiff did not segregate the settlement between

“separate and joint damages” or between the tort and contractual liability theories.

Id. at 574.

         Osborne v. Jauregui, 252 S.W.3d 70, 74 (Tex. App.—Austin 2008, pet.

denied), presented the obverse situation to Galle. In Osborne, it was the liable

defendant, not the settling defendant, who allegedly had a contractual liability in

addition to joint tort and DTPA liability with the settling defendants. See also GE

Capital, 754 F.3d at 307 n.9. The Osborne jury found no liability for breach of

contract, only for negligence and breaches of implied warranties actionable under

the DTPA. 252 S.W.3d at 74. Because the case involved alleged DTPA claims,

unlike the verdict in Galle, the jury determined the percentage responsibility of the

liable and settling defendants. Id.; see TEX. CIV. PRAC. & REM. CODE §§33.002

(proportionate responsibility applicable to “any action brought under the DTPA”);

33.012 (under 2005 version, defendant had option of percentage reduction or dollar

credit for settlement). The jury also decided the total amount of the plaintiff’s

damages attributable to both the liable and settling defendant in an amount less

than the amount paid by the settling defendants. The liable defendant elected the

dollar-for-dollar credit which more than offset the total amount of damages

awarded by the jury. The plaintiff apparently elected to recover under the DTPA

because the issue before the court was whether attorney’s fees could be recovered


                                         29
MHDocs 6062453_7 12690.2
when the total amount of settlement exceeded the amount of the total damages

awarded by the jury for the injuries caused by both the liable and settling

defendants. Id. at 75-76.

         Thus, Osborne is a straightforward application of Civil Practice and

Remedies Code chapter 33 to a case to which it explicitly applies: a DTPA/tort

claim for which the liable and settling defendants were jointly liable involving an

injury this Court deemed indivisible. The joint and several liability in that case

was created by statute, not common law. TEX. CIV. PRAC. & REM. CODE §33.013,

and the amount of damages awarded in that case were for the amount of damages

caused by all responsible persons. TEX. CIV. PRAC. & REM. CODE §33.012.

         The distinctions between Osborne and this case are manifold. Here, there

was no joint and several tort liability. Indeed, there was no joint and several

liability of any description. See V.A.3.e., infra. Further, the damages awarded in

Osborne were those found to have been caused by both the liable and settling

defendants. Here, the damages awarded were explicitly limited to those caused by

the Architect. See V.A.4., infra. Nevertheless, this Court’s decision in Osborne

confirms that the application of either a common law or statutory credit for

settlement hinges on joint and several liability.

         Four years after CTTI, the Houston Fourteenth Court of Appeals also refused

to apply the one satisfaction rule absent a shared contractual duty. In LJ Charter,


                                          30
MHDocs 6062453_7 12690.2
No. 14-08-00534-CV, 2009 WL 4794242 at **8-9 (Tex. App.—Houston [14th

Dist.] Dec. 15, 2009, pet. denied), the plaintiff received a judgment against the

liable defendant for damages for breach of contract, breach of fiduciary duty and

fraud. Id. at *6 n.12. The plaintiff previously settled claims for the alleged breach

of two contracts by two other parties. The liable defendant was not a party to either

of the contracts that were the basis of the settled claims. Id. at 9. The court refused

the liable defendant’s request for credit under the one satisfaction rule because the

liable defendant was not a party to, and could not have been liable under, those

contracts. Id. When there was no joint liability, the one satisfaction rule did not

apply.

                  b.       Without a Joint Contractual Obligation, Settlement Credit
                           Under the One Satisfaction Rule Allowed the Architect to
                           Do Indirectly What It Could Not Do Directly.
         CTTI correctly observed if an indivisible injury alone created a joint and

several liability between contract and tort defendants, applying the one satisfaction

rule would permit “hold[ing] a person not a party to a contract liable for the breach

of that contract.” Id. at 685. Such result is legally impermissible because

contractual privity is necessary for standing to sue. OAIC Commercial Assets,

L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 738 (Tex. App.—Dallas 2007,

pet. denied). Standing to sue is essential to subject-matter jurisdiction. Travelers

Ins. Co. v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010). No privity of contract exists


                                              31
MHDocs 6062453_7 12690.2
between persons not parties to the same contract without promises of the same

performance. See Amco Trust, Inc. v. Naylor, 159 Tex. 146, 150, 317 S.W.2d 47,

50 (1958).

         Under these circumstances, a contractually liable defendant who shared no

contractual obligation would have no standing to recover from the settling

defendant. The liable defendant is a stranger to the contract between the plaintiff

and the settling defendant. If credit under the one satisfaction rule were permitted

absent a shared performance obligation, the liable defendant could achieve

indirectly what could not have been achieved directly; a stranger without privity

could in effect wrest a credit based on settlement of that contractual obligation.

Regardless of whether the injury was “indivisible,” the one satisfaction rule could

not apply without a common promise to perform the same contractual duty. Id. at

684.

                  c.       This Court Has Rejected Application of the
                           One Satisfaction Rule to Contractual Liability
                           Without a Joint Contractual Obligation.
         The trial court in this case applied the one satisfaction rule solely on the

basis of perceived “indivisible” damages. (CR1438-39). In CTTI, this Court:

         acknowledge[d] that there are cases in which the courts have applied
         the one satisfaction rule and granted settlement credits or required an
         election of remedies where there are co-existing tort and contract
         claims. . . .In those cases, the courts have focused on the indivisible
         nature of the injury to the plaintiffs, and have not discussed the
         requirement of joint liability. We find that focus to be misplaced and

                                               32
MHDocs 6062453_7 12690.2
         decline to follow those decisions.… If we were to hold that, due to the
         indivisible nature of the resulting injury, breach of contract defendants
         and tort defendants are jointly and severally liable for all damages, we
         would be forced to hold a person not a party to a contract liable for
         the breach of that contract.

(164 S.W.3d at 684-85; emphasis added). The same rationale applies when the

liable and settling defendants’ liability rests on distinct contractual obligations

under different contracts. Therefore, the trial court erred in applying the one

satisfaction credit based solely on perceived “indivisible” damages.

                  d.       Applying the One Satisfaction Rule Without
                           Joint Contractual Liability Obliterates the
                           Collateral Source Exception.
         The collateral source rule is an exception to the one satisfaction rule. Brown

v. Am. Transfer and Storage Co., 601 S.W.2d 931, 936 (Tex. 1980). If indivisible

injury alone were enough for applying the one satisfaction rule, this exception

would be meaningless. Under the collateral source rule, a wrongdoer cannot reduce

its liability because of benefits the plaintiff independently procures from another to

which the wrongdoer was not privy. Haygood v. DeEscabedo, 356 S.W.3d 390,

395 (Tex. 2012); Tex. & Pac. Ry. v. Levi & Bro., 59 Tex. 674 (1883). Typically,

the collateral source is an insurer’s contractual obligation to pay for all or part of

same damages sought from the defendant. Brown v. Am. Transfer & Storage Co.,

601 S.W.2d 931, 934 (Tex. 1980). If an indivisible injury or the “same damages”

alone triggered the one satisfaction rule, such insurance benefits would serve to


                                              33
MHDocs 6062453_7 12690.2
reduce the liable defendant’s liability and prevent a double recovery. Thus, the

existence of the collateral source exception belies the notion that indivisible injury

alone is sufficient for application of the one satisfaction rule. For this additional

reason, a joint and several liability is essential for application of the one

satisfaction rule to contractual liabilities.

                  e.       This Case Involved No Joint Contractual Liability
                           of the Architect and the Settling Defendants.
         Because joint and several contractual liability is essential, the question here

narrows to whether the Architect’s contractual liability was joint with that of the

Settling Defendants; i.e., was the liability imposed on the Architect for the same

contractual promise or promises also made by each Settling Defendant. As

acknowledged in CTTI, the contractual obligations of an architect are distinct from

those of a general contractor. 164 S.W.3d at 685. Only the Architect’s contractual

liability was submitted to the jury. (CR1125-26, 1708-10). There could be no

common promised performance between the Architect and the Settling Defendants.

                           1)   The Performance Could Not Be the Same by
                                Operation of Law: General Contractors Legally
                                Precluded From Preparing Plans & Specifications.
         Neither the Soils Engineer nor the General Contractor in this case were a

registered architect and were not retained to perform architectural duties. (PX-15;

12RR26-77; PX-48; 12RR569-75; App. F, G). As a matter of Texas law, the

obligations of an architect cannot be undertaken by one who is not a registered

                                              34
MHDocs 6062453_7 12690.2
architect. TEX. OCCUP. CODE §1051.701. This statute is part of the contracts as if

written in explicitly because the parties are conclusively presumed to know and

contract with reference to existing law. Snyder v. Eanes Indep. Sch. Dist., 860

S.W.2d 692, 697 (Tex. App.—Austin 1993, writ denied). By operation of law,

therefore, the Architect’s duties were not and could not be the same as those of the

Settling Defendants.

                           2)   The Performance of the Architect and the Settling
                                Defendants Was Not Alleged To Be the Same.
         According to the live portions of the petition on which the case was tried, the

General Contractor “agreed to construct the Project free from defects” (2SCR44;

App. A), but failed to do so. It was alleged the General Contractor did not comply

with the Project’s plans and specifications and contract documents, the promise to

build free from defects, and the duty perform in a good and workmanlike manner.

(2SCR43-44, 47; App. A).

         RLJ alleged that the Soils Engineer 7 was retained by the owner to “conduct a

geotechnical engineering study,” provide “geotechnical engineering services,” and

“materials testing and construction inspection services.” (2SCR45; App. A). RLJ

alleged that the Soils Engineer breached these undertakings by failing to properly

estimate the potential of the soil at the site for swelling and underestimating the


7
  Terracon, a settling defendant, was the successor-in-interest to HBC, a party to the
Geotechnical Study Contract. (CR186; App. A).

                                             35
MHDocs 6062453_7 12690.2
amount of soil that needed to be replaced to control soil expansion. (2SCR66-67;

App. A).

         The allegations against the Architect, on the other hand, were that it agreed

to “provide overall architectural, civil, and structural engineering design, document

preparation, and coordination for the Project.” (2SCR44; App. A). RLJ alleged the

Architect “breached the Architectural Contract by deviating from the applicable

standard of care, failing to produce design plans free from defects, and failing to

properly administer the construction of the Project.” (2SCR47; App. A).

         The legal injury sustained when an architect breaches its contractual

obligation to provide appropriate building plans and supervisory services is

separate from that sustained when a general contractor fails to build in accordance

with those plans and specifications. Hunt v. Ellisor & Tanner, 739 S.W.2d 933,

936, 938 (Tex. App.—Dallas 1987, writ denied). “The [architect’s] obligation was

non-construction; the general contractor’s obligation was construction.” Hunt, 739

S.W.2d at 938.

         Because of the lack of a joint or common contractual undertaking, the court

in Hunt ruled:

         [W]hen the situation is pure contract, the special issues should not
         include comparative causation [under the Uniform Comparative
         Fault Act]…[because] if the acts of others (whether wrongful or not)
         are contributing factors, those others are not thereby joined with the
         defendant as having committed the breach of the contract.


                                           36
MHDocs 6062453_7 12690.2
(Emphasis added; quoting 5 A. Corbin, Corbin on Contracts §§ 999 n.21 & 999 -

1,000 (1964)). The court in White Budd VanNess P’ship v. Major-Gladys Drive

Joint Venture, 798 S.W.2d 805, 819 (Tex. App.—Beaumont 1990), writ dism’d,

811 S.W.2d 541 (Tex. 1991), cert. denied, 502 U.S. 861 (1991), followed Hunt’s

reasoning to conclude that want of joint liability prevented submission of

comparative fault to reduce the architect’s contractual liability. Under Hunt and

White Budd, the architect’s liability arose from the architect’s unique contractual

obligations, not a promise to perform the same duty as the general contractor. Just

as there can be no comparative submission of a general contractor’s fault, the one

satisfaction rule cannot be invoked to reduce the Architect’s liability with the

General Contractor’s settlement.

         The same is true for the Architect’s particular failings concerning the

foundation design detailed in the certificate of merit. (2SCR60-61; App. A). The

duty breached is the same if the evidence supporting the various causes of action is

the same. Buccaneer Homes of Alabama, Inc. v. Pelis, 43 S.W.3d 586, 590 (Tex.

App.—Houston [1st Dist.] 2001, no pet.). It is not the same if different evidence

would be required to prove the breach. These included failing to follow the various

recommendations and reports of the Soils Engineer. (2SCR61; App. A). Here, the

promised performances of the Architect could not have been the same because the

evidence necessary to prove the Architect’s breach differed from that which would


                                        37
MHDocs 6062453_7 12690.2
have been necessary to prove the alleged breaches of the Soils Engineer and the

General Contractor. Thus, the claims settled were for breaches of differing and

separate contractual duties from those of the Architect, both as a matter of fact and

by operation of law.

                           3)   The Architect Argued That Its Duty Was
                                Different From Those of the Settling Defendants.
         The Architect emphasized to the jury in closing arguments that the duties of

the Architect and the other participants were different. The Architect urged the jury

that it should not be found liable because the breaches of duties undertaken by

others, not the Architect, caused the damage. The Architect argued it was not

serving as an engineer or a general contractor. (10RR33-34). It essentially denied

any common duty, arguing it could not second-guess the Soils Engineer’s

predictions about the potential vertical rise or provisions groundwater drainage at

the Project. (10RR34-37). According to the Architect, the foundation design was

“doomed from the start” due to the Soils Engineer’s faulty performance. (10RR39).

Such clear, deliberate and unequivocal assertions during closing arguments are

judicial admissions foreclosing application of the one satisfaction rule. See Price

Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 349 (Tex. App.—Houston

[14th Dist.] 2001, pet. denied); see also Medina v. Hart, 240 S.W.3d 16, 23 (Tex.

App.—Corpus Christi 2007, pet. denied).



                                             38
MHDocs 6062453_7 12690.2
         In summary, the Architect and Settling Defendants did not promise the same

performance. Therefore, the one satisfaction rule does not apply because the

contractual liability of the Architect and the Settling Defendants was not joint.

         4.       The One Satisfaction Rule Does Not Apply Because the Jury’s
                  Verdict Did Not Award Damages for an “Indivisible” Injury.
         The one satisfaction rule also requires an indivisible injury common to the

wrongdoing of the liable and settling defendants. Sterling, 822 S.W.2d at 7;

Landers, 248 S.W.2d at 734. The one satisfaction rule is inapplicable in this case

also because the damages were not for an “indivisible” injury as the trial court

supposed. (2SCR1599-1600; App. C). “Under the one satisfaction rule, the non-

settling defendant may only claim a credit based on the damages for which all

tortfeasors are jointly liable.” Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 391

(Tex. 2000). Where the jury charge limits its inquiry to damages caused by the

non-settling defendant, there is no basis for application of the one satisfaction rule.

Robertson v. ADJ Partnership, Ltd., 204 S.W.3d 484, 485 (Tex. App.—Beaumont

2006, pet. denied); accord Byer Custom Builders v. Franks, 389 S.W.3d 880, 881

(Tex. App.—Houston [14 Dist.] 2012, no pet. hist.) (holding that because the

finder of fact, an arbitrator, “did not award any damages against the non-settling

defendant for any of the alleged damage he plaintiffs claimed was caused by the

alleged settling defendant, there could be no violation of the one-satisfaction rule if



                                          39
MHDocs 6062453_7 12690.2
the [plaintiffs] received compensation on those claims from [the settling

defendant].”).

         The jury was not asked to and did not assess damages to the Project as a

whole. Rather it was asked to assess only those damages for the Architect’s

particular breach.

         What sum of money, if any, if paid now in cash, would fairly and
         reasonably compensate [RLJ] for its damages, if any, that resulted
         from [the Architect’s] failure to comply with the Architectural
         Contract that you found in answer to Question[] 2 [concerning the
         required structural engineering services]?

(CR1127; App. B; emphasis added). The trial court acknowledged the narrow

focus of this question in its letter ruling.

         The damage question in the Charge asked for damages “due to [the
         Architect’s] failure to comply.” The question had to ask specifically
         about damages resulting from [the Architect’s] failure to inquire about
         cause-in-fact.

(2SCR1599; App. B; emphasis in original). Nevertheless, the trial court concluded

specification of the particular party and contractual breach did “not mean, without

more, that the damages found were divisible and attributable only to [the

Architect].” (2SCR1599; App. B).

                  a.       The Charge Submitted Apportioned Damages.
         The trial court’s analysis is irreconcilable with the principle that, without a

sufficient charge objection to the question’s form, the effect of the answer is

measured by the question actually asked, not the question that ought to have been

                                               40
MHDocs 6062453_7 12690.2
asked. See THPD, Inc. v. Cont’l Imports, Inc., 260 S.W.3d 593, 608 (Tex. App.—

Austin 2008, no pet.); see also Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).

The Architect did not object to the damages question’s form, and never objected

that the question was improperly limited to those damages caused by the

Architect’s breach of its own contract. The Architect only complained there was no

legally and factually sufficient evidence to support a damage award. 8 (9RR140,

143-44, 153).

                           1)   The Plain Language of the Question Asked
                                Determines What the Jury Found.
         Absent objection, whether the damages were necessarily attributable to the

Architect alone is governed by the plain meaning of the language in the question.

See Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d

764, 788 (Tex. App.—Houston [1st Dist.] 2011, no pet.). This presumption applies

whenever the charge does not include a different definition. C.H. v. Dep’t of

Family & Protective Servs., No. 01-11-00385-CV, 2012 WL 586972, at *6 (Tex.

App.—Houston [1st. Dist.] Feb. 23, 2012, pet. denied) (mem. op.). When the


8
  This objection did not assert there was no evidence of allocation or segregation. (9RR153). If it
had, the objection was meritless. Unsegregated damages evidence is legally sufficient evidence
of segregated damages. Minn. Min. & Mfg. Co. v. Nishika, 953 S.W.2d 733, 739 (Tex. 1997).
The factual insufficiency objection preserved nothing. Green v. Flournoy, No. 03-10-00299-CV,
2011 WL 3435735, at *4 (Tex. App.—Austin Aug. 5, 2011, no pet.) (mem. op.). Such
complaints must be presented in a new trial motion. The court is required to submit charge
questions on any issue if legally sufficient evidence supported an affirmative answer, Szczepanik
v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994), even if the evidence was factually
insufficient. The Architect filed no new trial motion.

                                                41
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question limits the subject of the jury’s consideration, the court must presume

compliance unless the record shows otherwise. See Columbia Rio Grande

Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 861-62 (Tex. 2009).

         Under circumstances similar to those here, in Tesfa v. Stewart, 135 S.W.3d

272, 273 (Tex. App.—Fort Worth 2004, pet. denied), the court held that this

presumption applied to discharge a segregation requirement when the question

asked the amount of damages “for injuries prior to [plaintiff’s] death, if any, that

reasonably resulted from” the doctor’s negligence. The case was one for medical

malpractice case during treatment of auto accident injuries. The doctor did not

object to the form of the question but nonetheless asserted the charge did not

segregate damages caused in the auto collision from those caused by the alleged

malpractice. Id. at 274. Finding nothing to rebut the presumption of compliance,

the court held the jury’s damages finding was “limited in accordance with the trial

court’s express instruction” and determined damages “for injuries attributable to

Dr. Tesfa’s negligence alone.” Id. at 279.

                           2)   The Plain Language of the Question Limited Damages
                                to Those Resulting from the Architect’s “[F]ailure to
                                [C]omply [W]ith the Architectural Contract.”
         Concerning the effect of the damages finding, this case is indistinguishable

from Tesfa. The damages question here clearly limited its inquiry to the Architect’s

“failure to comply with the Architectural Contract ….” (CR1127; App. B).


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Similarly, in Hunt, 739 S.W.2d at 940, an owner sued an architect for design

deficiencies and various contractors for construction defects in a parking deck. All

but the Architect settled before trial. Id. at 935. The Architect claimed credit under

the one satisfaction rule. The damages question was:

         What sum of money, if any, if paid now in cash will fully compensate
         [the owner] for any permanent diminution in market value of [the
         shopping center and office complex] which was caused by the acts or
         omissions of the defendant(s), despite the completion of all reasonable
         repair procedures?

(Id.; emphasis in original). The Architect urged that the question permitted a

double recovery because it included damages for the settled claims. Id. at 940. The

court denied the credit because

         the jury compensated [the owner] only for the separate wrong … by
         [the Architect’s] breach of []its duties …. [T]he consideration received
         under the prior settlement compensated [the owner] for acts and
         omissions of others…. [The Architect] was not a party to the
         settlement agreement. Therefore, the present case presents the
         situation where each wrongdoer pays separately for its own acts or
         omissions.

(Id.; emphasis added).

         Similarly, in Robertson v. ADJ Partnership, Ltd., 204 S.W.3d at 485, the

court held that where the jury charge limits its inquiry to damages caused by the

non-settling defendant, there is no basis for application of the one satisfaction rule.

The same conclusion was reached in Byer Custom Builders v. Franks, 389 S.W.3d

at 881. In that case, the finder of fact, an arbitrator, “did not award any damages


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against the [non-settling defendant] for any of the alleged damage the [plaintiffs]

claimed was caused by [the alleged settling defendant], there could be no violation

of the one-satisfaction rule if the [plaintiffs] received compensation on those

claims from [the settling defendant].”

         Like the damages questions in Tesfa, Hunt and Robertson, the plain

language of the damage question here removed any possibility the damages

included those for breaches of a different contract or party. For this reason alone,

there could have been no finding of damages common to those caused by the

Settling Defendants.

         Contrast these decisions with Allan v. Nersesova, 307 S.W.3d 564, 574 (Tex.

App.—Dallas 2010, no pet.), penned by CTTI’s author. In Nersesova,

         the jury charge contained a single damages question for damages
         “resulting from the occurrences in question.” The jury did not make
         separate damages findings for the negligence and breach-of-contract
         claims. [Plaintiff]’s injuries, as found by the jury, included the
         damage to her unit and personal property and the additional living
         expenses she incurred. [Plaintiff] alleged these injuries were caused
         by both the settling defendants and appellees. Nothing in the
         settlement agreement shows the settlement amount was for anything
         other than the damages found by the jury. If appellees were not given
         credit for the settlement, [the Plaintiff] would receive a double
         recovery for her injuries.

Id. (emphasis added); accord Western Technologies, Inc. v. All-American Golf

Center, Inc., 139 P.3d 858, 862 (Nev. 2006) (charge did not limit damages to those

caused by a particular party’s breaches; presumed the jury awarded all damages


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sustained from all parties’ breaches). A verdict that allocates damages eliminates

any risk of double recovery. See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414,

431 (Tex. 1984). The damage question here itself allocated damages; a “double

recovery” was impossible.

                  b.       The Jury Was Asked To Apportion and
                           in Fact Apportioned Damages.
         The Architect, not RLJ, is getting the double dip here. The Architect invited

the jury in closing argument for, and in fact received, a damages reduction in the

jury verdict before obtaining another by raising the one satisfaction rule for the

first time post-verdict. 9 Counsel for both parties urged the jury in closing

arguments to adjust its damages award. RLJ suggested without objection that the

jury could and should make a 20% reduction for the damages attributable to the

Settling Defendants. (10RR29). In light of the evidence, the jury clearly limited the

damages to those caused by the Architect. The Architect went further, suggesting

the jury “in Question 3 … answer zero” if it believed “there’s no causal

connection” between the Architect’s breaches and RLJ’s damages. (10RR54). The

Architect devoted much of its argument faulting Terracon for the too-light


9
  RLJ’s evidence supported damages in excess of $7 million. (7RR48; 9RR123-124, 136;
7RR16-18, 26-39; 3RR133-136; PX-151, 16RR1-1145; 10RR29-31). Had the architect pleaded
the one satisfaction rule or asserted it before submission to the jury, RLJ could have elected to
submit damages based on the total amount of all damages and risk the application of one
satisfaction rule. It did not have this option, however, because the architect first asserted that it
was entitled to settlement credit under the one satisfaction rule long after the jury returned its
verdict.

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foundation design and urging the reasonableness of its blind reliance on Terracon’s

work. (10RR36-39, 44-48, 50-51). The jury clearly understood from both the

charge and closing arguments it should limit damages to those specifically caused

by the Architect’s breach.10

         The jury usually may decide causation when general experience and

common sense enable a layperson to fairly determine that relationship between

event and result. Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 894 (Tex.

App.—Texarkana 2004, pet. denied). The damages awarded were significantly

reduced from the total costs of repair and residual diminution in value. RLJ

provided evidence and sought over $7 million in total damages. (7RR48; 9RR123-

124, 136; 7RR16-18, 26-39; 3RR133-136; PX-151, 16RR1-1145; 10RR29-31).

The jury awarded much less.

         Indeed, the trial court commented on this reduction: “The source of RLJ’s

disappointment regarding damages is the jury verdict….” (2SCR1600; App. C).

The jury clearly used its skill and common sense to apportion damages. The jury

was asked to determine the amount that would fairly “compensate” RLJ for




10
   There can be no complaint that the jury’s apportionment was not sufficiently precise.
Segregation by “rough percentage” is sufficient. Chapa, 212 S.W.3d at 314 n. 83; see, e.g.,
Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 73 (Tex. 1997) (testimony based on percentage
of attorney and paralegal time); Med. Specialist Group, P.A. v. Radiology Assocs., L.L.P., 171
S.W.3d 727, 738 (Tex. App.—Corpus Christi 2005, pet. denied) (fee segregation based
percentage time attribution).

                                              46
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damages caused by the Architect. Applying a further reduction does not assure one

satisfaction; instead, it assures less than one satisfaction.

         For all these reasons, the damages question required apportionment and the

jury’s verdict reflects the apportionment the charge required.

         The jury was also asked to apportion damages by both parties. Based on the

evidence and the trial court’s own observation, the jury must have responded to the

instructions of the Court and the party’s requests to do so. “[T]he reasoning of the

one recovery rule no longer applies” if the jury is “allow[ed] allocation of liability

between the parties, even when the injury is indivisible.” Duncan, 665 S.W.2d at

431 (emphasis added). The one satisfaction rule is not an insuperable barrier to

plaintiff benefitting from a favorable settlement.

         [T]he one recovery rule does not prevent … adopting a system that
         reduces the plaintiff’s recovery and the non-settling defendants’
         liability by the percentage of causation assigned to any tortfeasor with
         whom plaintiff has settled. [Such reductions] leave defendants
         unaffected by settlements in which they do not participate.... Allowing
         plaintiffs to keep the excess from a good settlements may violate the
         one recovery rule, but no one is harmed [if the jury allocates the
         damages].

Id. at 432 (emphasis added). The same is no less true here. The charge permitted

and the parties invited and the jury’s answer provided the necessary damage

allocation. Therefore, “the reasoning of the one recovery rule no longer applies”

and its application here cannot be justified. See Duncan, 665 S.W.2d at 431.



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         5.       No Right to Application of One Satisfaction Rule
                  or Contribution Exists In Contract Cases In
                  Light of Section 33.001.
         RLJ acknowledges that there are some cases suggesting that tort liability

does not necessarily have to be present in order for the one satisfaction rule to

apply. As we have demonstrated above, even assuming the rule could be applied in

a breach of contract case, the rule is inapplicable in the present case because there

is no basis for joint and several contractual liability and because the damages found

were those resulting from the breach of contract by the Architect. RLJ would

further show that the cases suggesting tort liability is not necessarily required are

distinguishable in light of a complete analysis of the authority relied upon to make

that suggestion. Moreover, the history and subsequent adoption of TEX. CIV. PRAC.

& REM. CODE §33.0001 et seq., strongly suggests that the rule was applicable only

in tort and was in any event abolished by the statutory scheme adopted in section

33.001.

         The Texas Supreme Court refused to permit the one satisfaction rule to

prevent its adoption of a pure comparative causation scheme or requiring an

injured person to prove the precise damages caused by a particular defendant.

Landers, 248 S.W.2d at 734; Duncan, 665 S.W.2d at 431-32. By statute,

contribution is allowed only among joint tortfeasors. Bonniwell v. Beech Aircraft

Corp., 663 S.W.2d 816, 818 (Tex.1984); see also Merit Drilling Co. v. Honish,


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715 S.W.2d 87, 89 (Tex. App.—Corpus Christi 1986, writ ref’d n.r.e.) (suggesting

one satisfaction rule survived Duncan only to the extent necessary under former

article 2212a, now TEX. CIV. PRAC. & REM. CODE ch. 32).

         As explained, the one satisfaction rule was created to address a problem

unique to tort cases created by article 2212. GE Capital, 754 F.3d at 305; see V.

B., supra. Indeed, the Texas Supreme Court has only applied the one satisfaction

rule to joint tort liability. Id. at 306; Casteel, 22 S.W. 3d at 391-392 (“the non-

settling defendant may only claim a credit based on the damages for which all

tortfeasors are jointly liable.”). This Court has suggested on more than one

occasion that the credit is only available in tort cases. CTTI, 164 S.W.3d at 684;

Paschall v. Peevey, 813 S.W.2d 710, 712 (Tex. App.—Austin 1991, writ denied)

(“The non-settling tortfeasor may only claim a credit based on the damages for

which all tortfeasors are jointly liable.”).

         RLJ is aware there are cases stating “the absence of tort liability does not

preclude the application of the one satisfaction rule.” See, e.g., Hudspeth v. Enter.

Life Ins. Co., 358 S.W.3d 373, 383 (Tex. App.—Houston [1st Dist. 2011, no pet.);

AMX Enters., Inc. v. Bank One, N.A., 196 S.W.3d 202, 206 (Tex. App.—Houston

[1st Dist.] 2006, pet. denied). Insofar as research reveals, this proposition first

appeared in Oyster Creek Fin. Corp. v. Richwood Investments II, Inc., 176 S.W.3d

307, 327 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). The only support


                                               49
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Oyster Creek cited, however, was the per curiam opinion in El Paso Natural Gas

Co. v. Berryman, 858 S.W.2d 362, 364 (Tex. 1993). However, Berryman involved

whether an alleged alter ego could be liable for a judgment against a corporate

entity after the corporation’s settlement extinguished the judgment. Id. at 326. The

alter ego doctrine applies when there is such unity between two entities that they

are, in law, are one and the same. See Mancorp, Inc. v. Culpepper, 802 S.W.2d

226, 228 (Tex. 1990); Hoffmann v. Dandurand, 180 S.W.3d 340, 347 (Tex. App.—

Dallas 2005, no pet.). Berryman did not involve any question of joint liability

between two different parties, but rather whether there was any liability remaining

against what was, in legal effect, the same party. Thus, Berryman did not involve

an application of the one satisfaction rule at all and cannot support its application

in non-tort cases.

         This conclusion is further confirmed by the legislative history of section

33.012 of the Texas Civil Practice and Remedies Code. Chapters 32 and 33 codify

not only contribution rights, but also the common-law one satisfaction doctrine. In

doing so, the Legislature explicitly limited the application of the one satisfaction

rule generally to tort and DTPA cases. TEX. CIV. PRAC. & REM. CODE §§32.001

(“applies only to tort actions;” 33.002 applies to any cause of action based on tort

or any action under the DTPA).




                                         50
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         It follows from the plain language of the statute that when the Legislature

generally limited contribution and settlement credits to tort cases, it precluded

other common-law contribution and settlement credits in other cases. When the

Legislature expressly provides for an exclusive remedy, it pre-empts the common

law. Coleman v. United Savings Ass’n of Texas, 846 S.W.2d 128, 132 (Tex.

App.—Fort Worth 1993, no writ).

         For example, when the Legislature abolished the common law equitable trust

fund theory for pre-dissolution claims to protect corporate directors, officers and

shareholders, the Texas Supreme Court ruled that the statute preclude further

application of the previous common law doctrine. Hunter v. Fort Worth Capital

Corp., 620 S.W.2d 547, 551 (Tex. 1981). Part of the court’s reasoning was that

application of the doctrine outside the restrictions imposed by the statute would

render the statute meaningless and impermissibly presume the Legislature intended

to do something that was effectively useless. Id.

         The same is no less true here. Chapters 32 and 33 and their rules for

settlement credits are explicitly limited to tort and DTPA claims. If the Legislature

had intended to include other claims, it could have easily done so. By not including

breach of contract actions, it must be presumed that the Legislature intended to

limit application of the one satisfaction rule to the cases and methods specified in

the statute.


                                          51
MHDocs 6062453_7 12690.2
         Legislative history confirms this intent. In 2005, the Legislature enacted

Senate Bill 890 to amend section 33.0012 to restore the dollar-for-dollar credit.

This credit was eliminated in 2003 when the Legislature enacted “tort reform” by

adopting House Bill 4. Senate Bill 890 was accompanied by a statement of intent

from the author and sponsor stating,

         Since the 1930s, Texas has recognized that an injured party is entitled
         to recover only once for an injury. (Bradshaw v. Baylor, 126 Tex. 99,
         101; 84 S.W.2d 703, 704 (1935)). The “one-satisfaction” rule was
         codified by the Legislature in Chapter 33, Civil Practice and
         Remedies Code, in 1987…. The settlement credit scheme created by
         H.B. 4 eliminates the one-satisfaction rule that has been part of
         Texas law for more than 70 years, except in medical liability cases.

Senate Committee on State Affairs, Bill Analysis, Tex. S.B. 890, 79th Leg. R.S.

(2005) and Senate Committee on State Affairs, Bill Analysis, Tex. C.S.S.B. 890,

79th Leg. R.S.(2005) (emphasis added); available at Capitol Research Services.,

The Legislative History of Tex. S.B. 890, 79th Leg., R.S. (2005), Regarding

Settlement Credit 20, 82, 89 (App. I).

         The Legislature’s declaration that the 2003 tort reform bill “eliminate[d]”

the common-law one satisfaction rule confirms that, except as permitted by statute,

the common-law one satisfaction rule had otherwise been “eliminate[d]” when

House Bill 4 was passed. Its continued application by the courts outside the scope

of chapters 32 and 33 is legally erroneous. The error is understandable because the

courts were likely unaware of the not-readily-available declaration of Legislative


                                           52
MHDocs 6062453_7 12690.2
intent in the legislative history of the statute. Thus, they naturally continued to

resort to case law antedating H.B.4 without fully appreciating the historical reason

why the one satisfaction rule was developed or fully realizing that chapters 32 and

33 of the Civil Practice and Remedies Code supplanted the common-law one

satisfaction rule after September 1, 2003. It is, nonetheless, erroneous to apply the

one satisfaction rule outside the statutory parameters of chapters 32 and 33.

         6.       Applying the One Satisfaction Rule in Contractual
                  Liability Cases Impairs Contract Obligations In
                  Violation of Texas Constitution Article I, §16.
    Applying the one satisfaction rule outside tort cases where it is ostensibly still

necessary threatens to impair contractual obligations in violation of article I, §16 of

the Texas Constitution.

                  a.       Texas Public Policy Strongly Favors Freedom of Contract.
         The Texas Supreme Court has “long recognized Texas’ strong public policy

in favor of preserving the freedom of contract.” Fairfield Insurance Co. v.

Stephens Martin Paving, LP, 246 S.W.3d 653, 664 (Tex. 2004). This

constitutionally guaranteed contractual freedom strongly favors the parties’ right to

“bargain for mutually agreeable terms and [to] allocate risks as they see fit.” Gym-

N-1 Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007). It outweighs

court-created general policies, such as that prohibiting insuring punitive damages.

Fairfield Insurance Co., 246 S.W.3d at 664.


                                              53
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         [I]f there is one thing which more than another public policy requires
         it is that [persons] of full age and competent understanding shall have
         the utmost liberty of contracting, and that their contracts when entered
         into freely and voluntarily shall be held sacred and shall be enforced
         by Courts of justice. Therefore, you have this paramount public policy
         to consider – that you are not lightly to interfere with this freedom of
         contract.

Wood Motor Co. v. Nebel, 150 Tex. 86, 238 S.W.2d 181, 185 (1951) (quoting

Printing & Numerical Registering Co. v. Sampson, LR 19 Eq 462, 465, 1874 WL

16322 (1875)). This freedom outweighs application in contract cases of a judicial

doctrine to remedy a conundrum unique to tort actions.

                  b.       The One Satisfaction Rule Impermissibly Impairs
                           Contractual Obligations.
         Whether a law violates the freedom of contract depends on three-part test:

(1) it must not substantially impair a contractual relationship; (2) it “must have a

significant and legitimate purpose behind the regulation, such as the remedying of

a broad and general social or economic problem”; and (3) it must be reasonable

and appropriate for its intended purpose. Energy Reserves Group v. Kansas Power

& Light, 459 U.S. 400, 410, 411-13 (1983).

         The one satisfaction rule cannot satisfy the first test because it substantially

impairs a contractual relationship. It effectively takes from the injured party the

benefit of its settlement with another defendant to reduce the wrongdoer’s liability.

See, e.g., Langever v. Miller, 124 Tex. 80, 76 S.W.2d 1025, 1028 (1934) (law

reducing collectible amount of deficiency judgments to difference between actual

                                             54
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property value and foreclosure price void as a substantial contractual impairment).

In contract cases, the one satisfaction rule’s reduction of damages by credit for

another’s settlement substantially and unconstitutionally impairs contractual

freedom. It also creates, as applied here, a disincentive to settle, which is contrary

to the strong Texas public policy in favor of settlements.

                  c.       Freedom of Contract Outweighs One Satisfaction’s
                           Questionable Objectives.
    The Texas Supreme Court has refused to accept that preventing recovery of

more than the jury’s damage assessment is a more important than preventing a

wrongdoer from escaping its full liability. Landers, 248 S.W.2d at 734. It justified

overruling Bradshaw’s one satisfaction rule the extent it conflicted with its creation

of a purely comparative negligence system because the one satisfaction rule

unfairly allowed the non-settling defendant to unfairly “benefit from a generous

settlement in which they refused to participate” for this reason. Duncan, 665

S.W.2d at 431. It recognized that settlement consideration includes benefits other

than relief from paying damages. Id. “There is no conceptual inconsistency in

allowing a plaintiff to recover more from a settlement or partial settlement than he

could receive as damages.” Id. “Plaintiffs will benefit from good settlements and

bear the risk of bad ones, just as they do in single-tortfeasor cases. Allowing

plaintiffs to keep the excess from a good settlements may violate the one recovery



                                             55
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rule, but no one is harmed” when the jury apportions liability. Allowing plaintiffs

to keep the excess from a good settlement is not overpayment of damages.

         The one satisfaction rule has a questionable objective based on questionable

reasoning. It ought to be and is trumped by the freedom of contract guarantee in

Texas Constitution article I, §16.

         7.       The Architect Is Procedurally Barred From Asserting the
                  One Satisfaction Rule.

                  a.       Waived by Failure to Specially Except.
         The Architect’s post-verdict motion urging credit under the one satisfaction

rule for the first time asserted “Plaintiff’s damages resulted from ‘the breaches of

contract’ Plaintiffs alleged were committed by [all remaining defendants]” and that

RLJ failed to allocate those damages. (CR1174). Complaint about the damages

allegations was waived by failure to urge them in writing before charge

submission. TEX. R. CIV. P. 90; Bullock v. Regular Veteran’s Ass’n of U.S., 806

S.W.2d 311, 314 (Tex. App.—Austin 1991, no writ).

                  b.       Waived by Failure to Request Question or Instruction.
         Neither did the Architect object to the charge on this ground. Failure to

object to the charge’s failure to segregate failure to request an instruction requiring

allocation waives complaint about failure to segregate. TEX. R. CIV. P. 278 (failure

to request properly worded question); see Dick’s Last Resort of West End, Inc. v.

Market/Ross, Ltd., 273 S.W.3d 905, 919 (Tex. App.—Dallas 2008, pet. denied);


                                              56
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McCarty v. Wani Venture, A.S., 251 S.W.3d 573, 585 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied) (failure to request instruction).

                  c.       Waived By Failure to Plead as an Affirmative Defense.
         A party must affirmatively plead “accord and satisfaction, arbitration and

award, … discharge in bankruptcy, … payment, release … and any other matter

constituting an avoidance or affirmative defense.” TEX. R. CIV. P. 94. Each of these

involves prior payment or other discharge that is waived if not pleaded. Bejjani v.

TRC Servs., Inc., No. 14-08-00750-CV, 2009 WL 3856924, at *5 (Tex. App.—

Houston [14th Dist.] Nov. 19, 2009, no pet.) (right to offset); Sugar Land Props.,

Inc. v. Becnel, 26 S.W.3d 113, 121 (Tex. App.—Houston [1st Dist.] 2000, no pet.)

(payment of medical expenses). Settlement credit under the one satisfaction rule,

though not specifically named, is an “other matter constituting an avoidance or

affirmative defense” that must be pleaded. This Court specifically acknowledged

that the one satisfaction rule is in the nature of an affirmative defense. RenewData

Corp. v. eMag Solutions, LLC, No. 03–05–00509–CV, 2009 WL 1255583, at *1 n.

1 (Tex. App.—Austin May 6, 2009, pet. denied) (mem. op.; unasserted one

satisfaction rule could not be considered as alternative summary judgment ground);

accord Pagosa Oil & Gas, L.L.C. v. Marrs & Smith P’ship, 323 S.W.3d 203, 217

(Tex. App.—El Paso 2010, pet. denied); Brewer & Pritchard, P.C. v. AMKO Res.

Int’l, LLC, No. 14-13-00113-CV, 2014 WL 3512836, at *1 (Tex. App.—Houston


                                              57
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[14th Dist.] July 15, 2014, no pet.) (mem. op.). Cases holding otherwise are

irreconcilable with rule 94 because the opponent must be notified of the need to

prove damages allocation plus the elements of the asserted claims. See Dalworth

Restoration, Inc. v. Rife-Marshall, 433 S.W.3d 773, 783-84 (Tex. App.—Fort

Worth 2014. pet. dism’d w.o.j.). The Architect did not plead this affirmative

defense (CR46-79; App. H) and RLJ was given no notice or opportunity to present

evidence meeting any allocation requirement before the jury was discharged.

                  d.       Barred By Laches.
         The post-verdict assertion of the one settlement rule is also precluded by

laches. The one satisfaction rule developed as an equitable principle, Sterling, 822

S.W.2d at 6, subject to equitable defenses. See Brewer v. Nationsbank of Texas,

N.A., 28 S.W.3d 801 (Tex. App.—Corpus Christi 2000, no writ), and is subject to

equitable defense for unreasonable delay and another’s good faith detrimental

change in position. See City of Fort Worth v. Johnson, 388 S.W.2d 400, 403 (Tex.

1964). By the Architect’s failure to raise the one satisfaction rule prior to verdict,

RLJ had no reason whatsoever to anticipate any need to adduce any evidence

segregating damages. Similarly, the Architect waived any argument on the one

satisfaction rule by specifically asking the jury to apportion damages and award

only those damages caused by the Architect. (10RR54-56).




                                               58
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         For any one or all of the foregoing reasons, the one satisfaction rule did not

and could not apply to reduce the Architect’s liability to RLJ. The trial court erred

in concluding otherwise. Accordingly, the judgment must be reformed to restore

recovery for the damages awarded by the jury together with interest.

B.       No Segregation of Attorney’s Fees Was Required.
         RLJ sought its reasonable and necessary attorney’s fees under chapter 38 of

the Texas Civil Practice and Remedies Code. (CR201; App. A). The parties agreed

to submit the attorney’s fees claim to the court rather than the jury. After the jury’s

verdict, RLJ moved for its attorney’s fees and submitted its proof by affidavit and

supporting documents showing RLJ expended a total of $1,388,019 in reasonable

and necessary attorney’s fees to prosecute the breach of contract claims against the

Architect, Soils Engineer, and the General Contractor. (3SCR3-611; 2SCR1603-

05).

         However, the trial court determined for purposes of attorney’s fees it was

necessary to segregate those expended on RLJ’s claim against the Architect from

those on its claims against the Settling Defendants. (CR1711; App. D). The trial

court awarded attorney’s fees attributable to the prosecution of the breach of

contract claim against the Architect only, even though it considered the damages

“indivisible.” (CR1711; 2SCR1600; App. C, D). Accordingly, of the $1,388,019 in

attorney’s fees for presenting all its contract claims, the trial court allowed RLJ


                                           59
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only $901,650.96 as fees attributable to the contract claim against the Architect

only. (CR1711; App. D). RLJ timely moved conditionally to modify the judgment

so that, if the one satisfaction rule applied, it could recover its unsegregated

attorney’s fees for breach of contract claims against the Architect and the Settling

Defendants. (CR1747-48). The trial court denied this motion. (CR1905).

         RLJ continues to maintain that the one satisfaction rule does not apply. If

and only if this Court decides otherwise, RLJ was not obliged to segregate its

attorney’s fees for the breach of contract claims against the Architect from those

for the breach of contract claims against the Settling Defendants.

         1.       There Is No Need to Segregate Fees For
                  Claims Requiring Proof of the Same Facts.
         Generally, reasonable and necessary attorney’s fees requires proof of the

fees incurred for suit on a claim for which such fees are recoverable. Sterling, 822

S.W.2d at 10. If the causes of action depend upon the same facts or circumstances,

they may be “intertwined to the point of being inseparable.” Id. Attorney’s fees

should be allowed for inseparable claims even if some issues also relate to matters

for which attorney’s fees are not recoverable, Aiello, 941 S.W.2d at 73; Sterling,

822 S.W.2d at 11, provided the underlying services advance both. Chapa, 212

S.W.3d at 314.

         Whether fees can be segregated is a mixed question of law and fact. Tony

Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex. 2006). For example,

                                           60
MHDocs 6062453_7 12690.2
when an attorney testified that the issue common to all claims was the right of

control over a corporation, this Court deemed the recoverable and unrecoverable

claims so interrelated that it was unnecessary to segregate fees. Fortenberry v.

Cavanaugh, No. 03-07-00310-CV, 2008 WL 4997568, at *12 (Tex. App.—Austin

Nov. 26, 2008, pet. denied) (mem. op.).

         2.       If the One Satisfaction Rule Applies, It Requires
                  Proof of Breach of the Same Promised Performance
                  and an Indivisible Injury.
         The one satisfaction rule may apply in contract case only if there was a joint

and several contractual liability, which in turn requires a promise of the same

performance by the settling and liable defendants, see V.A.3., supra., and an

indivisible injury. See V.A.4., supra. If the Architect and Settling Defendants

breached a promise for the same performance causing an indivisible injury, then

the activities of RLJ’s attorneys to prove the Settling Defendants’ liability would

have necessarily also served as proof of the Architect’s liability. If the one

satisfaction rule applies at all, no segregation could have been required.

         3.       Alternatively, If Proof of Indivisible Injury Alone is
                  Enough for the Application of the One Satisfaction
                  Rule, Segregation of Fees Was Still Not Required.
         Regardless of whether the one satisfaction rule otherwise applies, if the trial

court correctly determined that there was an indivisible injury or damages in this

case for purposes of the one-satisfaction analysis, then segregation of fees was not


                                             61
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required. The Architect, General Contractor and Soils Engineer undertook different

duties. (CR192-93, 197-98, 200-01, 205-18). For these breaches to coalesce in an

“indivisible” injury would necessarily require RLJ to have proved each breach to

establish the full scope of its damages.

         “Where the tortious acts of two or more wrongdoers join to produce an

indivisible injury, … all of the wrongdoers will be held jointly and severally liable

for the entire damages ….”. Landers, 248 S.W.2d at 734 (1952). If the one

satisfaction rule applies at all and if only an indivisible injury is required, as the

trial court reasoned, the breaches of the Settling Defendants were sufficiently

conjoined with those of the Architect, then proof of the harm resulting from the

breaches of the Settling Defendants were also essential and no segregation was

required.

                           VI.   CONCLUSION AND PRAYER
         For the foregoing reasons, RLJ asks the Court to:

         1) reverse the trial court’s judgment applying the one satisfaction rule and

delete the credit for the amount of the Settling Defendants’ settlements;

         2) if and only if the one satisfaction rule applies, reverse the trial court’s

judgment concerning the award of attorney’s fees and either reform it to award

RLJ unsegregated fees or remand the case to the trial court solely for a




                                           62
MHDocs 6062453_7 12690.2
determination of reasonable and necessary attorney’s fees for the prosecution of all

contract claims against the Architect, and the Settling Defendants; and

         3) any one or more of 1) – 2) above subject to the conditions prescribed. RLJ

further requests such other relief to which they are justly entitled, provided such

relief requested does not include a retrial on the merits of its claims against the

Architect.

                                                Respectfully submitted,

                                                MUNSCH HARDT KOPF & HARR PC


                                                /s/ Michael W. Huddleston
                                                Michael W. Huddleston
                                                State Bar No. 10148415
                                                J. Stephen Gibson
                                                State Bar No. 07866000
                                                3800 Ross Tower
                                                500 North Akard Street
                                                Dallas, TX 75201
                                                (214) 855-7500 Main Tel.
                                                (214) 855-7584 Main Fax
                                                mhuddleston@munsch.com
                                                sgibson@munsch.com

                                                Attorneys For Appellees and Cross-
                                                Appellants




                                           63
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                           CERTIFICATE OF COMPLIANCE
         I hereby certify that this Brief of Cross-Appellants was prepared using

Microsoft Word 2010, which indicated that the total word count (exclusive of those

items listed in Tex. R. App. P. 9.4(i)(1)) is 13,844 words.

                                              /s/ Michael W. Huddleston




                                         64
MHDocs 6062453_7 12690.2
                           CERTIFICATE OF SERVICE
         I certify that I served a true and correct copy of the foregoing document

upon counsel listed below on this 10th day of April, 2015 by e-file:

Weston M. Davis
Gregory N. Ziegler
Matthew Mumm
Macdonald Devin, P.C.
1201 Elm Street
3800 Renaissance Tower
Dallas, TX 75270
                                              /s/ Michael W. Huddleston




                                         65
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           APPENDIX IN SUPPORT OF CROSS-APPELLANTS’ BRIEF

    TAB            DESCRIPTION OF DOCUMENT             CR/RR
       A           Plaintiffs’ Seventh Amended Original CR184-218
                   Petition                             2SCR39-73 (duplicate)

       B           Charge of the Court                 CR1121-29
                                                       2SCR1563-71 (duplicate)

       C           June 13, 2014 Letter from Hon. Judge CR1437-41
                   Yelenosky                            2SCR1598-1602 (duplicate)

       D           Final Judgment                      CR1708-12
                                                       CR1905-09 (duplicate)

       E           Contract with Soils Engineer        PX-3; 12RR6-11

       F           Contract with General Contractor    PX-48; 12RR567-651

      G            Contract with Architect             PX-15; 12RR26-128

      H            Architect’s Second Amended Answer CR46-79
                                                     2SCR5-38 (duplicate)

       I           Report of SB 890 (2005)             n/a




                                             66
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APPENDIX A
                                                                       2/18/2014 9:33:34 AM
                                                                             Amalia Rodriguez-Mendoza
                                                                                           District Clerk
                                                                                           Travis County
                                    CAUSE NO. D-1-GN-10-002325                          D-1-GN-1 0-002325


RLJ II-C AUSTIN AIR, LP; RLJ II-C AUSTIN          §        IN THE DISTRICT COURT OF
AIR LESSEE, LP; and RLJ LODGING FUND              §
II ACQUISITIONS, LLC,                             §
                                                  §
         Plaintiffs,                              §
                                                  §
vs.                                               §
                                                  §
EBCO GENERAL CONTRACTOR, LTD;                     §
EBCO/WARRIOR MANAGEMENT LLC;                      §
ELNESS, SWENSON, GRAHAM                           §          TRAVIS COUNTY, TEXAS
ARCHITECTS, INC.; MARK SWENSON,                   §
Individually; TERRACON CONSULTANTS,               §
INC.; TODD E. SWOBODA, P.E.,                      §
Individually; and ALCADIO CHAPA, JR.              §
formerly D/B/A JR'S CONCRETE                      §
CONSTRUCTION,                                     §
                                                  §
         Defendants and Third-Party Defendants.   §          200TH JUDICIAL DISTRICT


                 PLAINTIFFS' SEVENTH AMENDED ORIGINAL PETITION

TO THE HONORABLE JUDGE OF THIS COURT:

         Plaintiffs RLJ II-C Austin Air, LP; RLJ II-C Austin Air Lessee, LP; and RLJ Lodging

Fund II Acquisitions, LLC (collectively, "Plaintiffs" or "RLJ") file their Seventh Amended

Original Petition, and make allegations and complaints against EBCO General Contractor, Ltd.;

EBCO Advanced Building Systems, Ltd.; EBCO/Warrior Management LLC; Elness, Swenson,

Graham Architects, Inc.; Mark G. Swenson, individually; Terracon Consultants, Inc.; Todd E.

Swoboda, P.E., individually; MBA Structural Engineers, Inc.; DaVinci Pools, LLC; Bridgeview

Plumbing, Inc.; and Champion Site Prep, L.P. (collectively, "Defendants") as follows:

                                  I. DISCOVERY CONTROL PLAN

         1.       Discovery is intended to be conducted pursuant to Rule 190.4, Texas Rules of

Civil Procedure.


Plaintiffs' Seventh Amended Original Petition                                             Page 1
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                                                                                                   184
                                                II. PARTIES

         2.       Plaintiff RLJ II-C Austin Air, LP ("RLJ Austin") is a Delaware limited

partnership authorized to do business in Texas, and is the current fee owner of the "Project" as

defined in paragraph 14 of this Petition. Plaintiff RLJ II -C Austin Air Lessee, LP ("RLJ Austin

Lessee") is a Delaware limited partnership authorized to do business in Texas, and is the current

leasehold owner of the Project.           Plaintiff RLJ Lodging Fund II Acquisitions, LLC ("RLJ

Lodging") is a Delaware limited liability company which entered into a contract to purchase the

Project, and assigned the fee ownership rights and obligations of that purchase contract to RLJ

Austin, which now owns the Project and leases it to RLJ Austin Lessee.

         3.       Defendant EBCO General Contractor, Ltd. is a limited partnership authorized to

do business in Texas. Defendant EBCO Advanced Building Systems, Ltd. is a predecessor

limited partnership previously authorized to do business in Texas. Defendant EBCO/Warrior

Management, LLC is the general partner of EBCO General Contractor, Ltd. These defendants

will hereafter collectively be referred to as "EBCO." EBCO has been served with process and

answered herein.

         4.       Defendant Elness, Swenson, Graham Architects, Inc. ("ESG") is a foreign for-

profit corporation authorized to do business in Texas. This court has long-arm jurisdiction over

ESG because the actions brought against it in this suit arise from ESG's business in this state.

See Texas Civil Practice & Remedies Code Ann. § 17.042(1) and (2). ESG has been served with

process and answered herein.

         5.       Defendant Mark G. Swenson ("Swenson") is a nonresident individual. This court

has long-arm jurisdiction over Swenson because the actions brought against him in this suit arose

from or are connected with his purposeful acts committed in Texas. These purposeful acts are

described more fully below but mainly entail signing and sealing plans and specifications for the

Plaintiffs' Seventh Amended Original Petition                                              Page 2
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                                                                                                    185
construction of the Project m Austin, Texas.       Swenson has been served with process and

answered herein.

         6.       Defendant Terracon Consultants, Inc. ("Terracon") is a foreign for-profit

corporation authorized to do business in Texas. Terracon has been served with process and

answered herein. On information and belief, Plaintiffs allege that Terracon, Inc. purchased the

stock of HBC Engineers, Inc. ("HBC") in 1998 and merged HBC with Terracon, Inc. in 2001.

On further information and belief, Terracon, Inc. merged with Terracon in 2004.

         7.       Defendant Todd E. Swoboda, P.E. is a Texas resident and has been served with

process and answered herein.

         8.       Defendant MBA Structural Engineers, Inc. f/k/a Marlin, Bridges & Associates,

Inc. ("MBA") is a foreign for-profit corporation authorized to do business in Texas. This court

has long-arm jurisdiction over MBA because the actions brought against it in this suit arose from

or are connected with the purposeful acts MBA committed in Texas. These acts are described

more fully below but mainly entail contracting to provide structural plans and specifications for

the construction of the Project in Austin, Texas.     MBA has been served with process and

answered herein.

         9.       Defendant DaVinci Pools, LLC ("DaVinci") is a Texas limited liability company

which is a party to this action. DaVinci has been served with process and has answered herein.

         10.      Defendant Bridgeview Plumbing, Inc. ("Bridgeview") is a Texas corporation

which is a party to this action. DaVinci has been served with process and has answered herein.

         11.      Defendant Champion Site Prep, L.P ("Champion") is a Texas limited partnership

which is a party to this action. Champion has been served with process and has answered herein.




Plaintiffs' Seventh Amended Original Petition                                              Page 3
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                                                                                                    186
                                  III. VENUE AND JURISDICTION

         12.      Venue is proper in Travis County, Texas under Texas Civil Practice & Remedies

Code Ann. §§ 15.002(a)(1), 15.005, 15.011, 15.035 and 15.092 (a) & (b), which require that this

suit be brought in the county where the Project (as defined below) is located.

         13.      Defendants ESG, Swenson, EBCO, Terracon, Swoboda, MBA, DaVinci,

Bridgeview, and Champion are either residents of Texas or purposely availed themselves to the

jurisdiction of Texas by entering into contracts involving real property and improvements to real

property in Texas and/or by signing and sealing plans, specifications, or other reports for real

property or constructing improvements to real property in Texas that is the subject of this

lawsuit. Furthermore, assumption of jurisdiction by Texas would not offend traditional notions

of fair play and substantial justice. Finally, RLJ's damages are within the jurisdictional limits of

this court and do not exceed $10,000,000.00.

                                                IV. FACTS

         14.      This action arises from construction of the Courtyard Austin Airport Hotel located

at 7809 East Ben White Boulevard in Austin, Texas (the "Project").

         15.      As set forth below, Plaintiffs assert the following:

                  a.       Breach of contract against EBCO, ESG, Swenson, Terracon, and
                           Swoboda;

                  b.       Suit for declaratory relief against Terracon;

                  c.       Breach of warranty against EBCO;

                  d.       Equitable subrogation against EBCO, ESG, Swenson, MBA, Terracon,
                           Swoboda, DaVinci, Bridgeview, and Champion, including a direct
                           equitable subrogation claim, and equitable subrogation claims for breach
                           of contract, negligence, negligent undertaking, and negligent
                           misrepresentation that were directly assigned, or assigned as a matter of
                           law, to RLJ; and




Plaintiffs' Seventh Amended Original Petition                                                 Page 4
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                                                                                                       187
                  e.       A tort/negligence claim against EBCO for breach of a fiduciary duty
                           arising from EBCO's failure to construct the Project in a manner
                           consistent with the owner's interests and with the contract documents,
                           which are the source of the fiduciary duty.

         16.      Except for MBA, DaVinci, Bridgeview, and Champion, Defendants all entered

into valid and enforceable contracts with the Project's developer, White Lodging Services Corp.

("White"), to perform the services listed below.

         17.      White, as developer, delivered and assigned the Project, the contracts, fiduciary

duties, intangibles and all of the warranties, representations, and causes of action related thereto,

to a White affiliate, South Ausaircourt, L.P., as owner ("Ausaircourt").           Ausaircourt then

assigned the Project, the contracts, fiduciary duties, intangibles, and all of the warranties,

representations, and causes of action related thereto, to RLJ Lodging, which purchased the

Project, and then assigned its rights and obligations under the Project contracts to RLJ Austin.

         18.      EBCO was the general contractor and/or construction manager on the Project.

EBCO performed work on the Project, and also retained subcontractors who performed work on

the Project.     EBCO and its subcontractors failed to construct the Project free from defects,

including, but not limited to, the following:

         (a) Failed to construct the Project foundation free from defect or in compliance
         with the Project plans and specifications, including missing beams and improper
         placement of wire reinforcing mesh. Plaintiffs allege that the damage from this
         negligent work began to occur during construction and continues to this day.
         Plaintiffs also allege that not only was the foundation itself damaged, but this
         negligent work caused significant damage to other component parts of the
         Project;

         (b) Failed to provide "select fill" soils which complied with the Project
         specifications. Plaintiffs allege that the damage from this negligent work began
         to occur during construction and continues to this day. Plaintiffs also allege that
         this negligent work caused significant damage to other component parts of the
         Project;

         (c) Failed to construct the pool and its drains free from defect. Plaintiffs allege
         that the damage from this negligent work began to occur during construction and

Plaintiffs' Seventh Amended Original Petition                                                  Page 5
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                                                                                                        188
         continues to this day. Plaintiffs also allege that not only was the pool itself
         damaged but this negligent work caused significant damage to other component
         parts of the Project;

         (d) Failed to construct the under-slab plumbing free from defect. Plaintiffs
         allege that the damages from this negligent work began to occur during
         construction and continues to this day. Plaintiffs also allege that this negligent
         work caused damage to other component parts of the Project; and

         (e) Failed to construct the Project site work in a manner consistent with the
         Project plans and specifications. Plaintiffs allege that the damages from this
         negligent work began to occur during construction and continues to this day.
         Plaintiffs also allege that not only was the site work itself damaged but this
         negligent work caused significant damage to other component parts of the
         Project.

         19.      The terms of the contract between EBCO and White (the "General Contract")

created a "fiduciary relationship of trust and confidence." Pursuant to the General Contract,

EBCO agreed to construct the Project free from defects in a "manner consistent with the interests

of the Owner."        EBCO failed to construct the Project free from defects and in a manner

consistent with the interests of the owner, thereby breaching its fiduciary duty, which is a tort in

Texas. See Douglas v. Aztec Pet. Corp., 695 S.W.2d 312, 318 (Tex. App.-Tyler 1985, no writ).

         20.      ESG contracted for architectural services with White (the "Architectural

Contract"), and Swenson signed and sealed the architectural plans and drawings for the Project.

Under the Architectural Contract, ESG agreed to, among other things, provide overall

architectural, civil, and structural engineering design, document preparation, and coordination for

the Project. This work was to be performed expeditiously and consistent with professional skill

and care. Because Texas does not allow corporations to sign or seal architectural plans or

specifications, Swenson could not have been acting as an agent of ESG when he signed and

sealed the architectural plans and drawings, as an agent can only act to the extent of the




Plaintiffs' Seventh Amended Original Petition                                                 Page 6
MHDocs 4896391 1 12690.2

                                                                                                       189
principal's legal authority. Therefore, ESG constructively assigned portions of the Architectural

Contract to Swenson, without first obtaining written consent from White.

          21.     ESG consented to the assignment of the Architectural Contract between White

and Ausaircourt, in writing.        This assignment provided Ausaircourt with all of the interests

referenced above, but none of the obligations.

          22.     Pursuant to a written contract dated October 30, 2000 (the "Geotechnical Study

Contract"), HBC was retained to conduct a geotechnical engineering study (the "Geotechnical

Engineering Study").        Swoboda signed, sealed, and submitted the Geotechnical Engineering

Study to White on November 21, 2000. Because Texas does not allow corporations to sign or

seal architectural plans or specifications, Swoboda could not have been acting as an agent of

HBC when he signed and sealed the Geotechnical Engineering Study, as an agent can only act to

the extent of the principal's legal authority. Therefore, HBC constructively assigned portions of

the Geotechnical Engineering Study contract to Swoboda, without first obtaining written consent

from White.

          23.     The Geotechnical Study Contract was completed sometime in late 2000 or early

2001, when White made final payment to HBC for these services.

          24.     Pursuant to an oral agreement or undertaking, which was separate and distinct

from the Geotechnical Study Contract, Terracon provided geotechnical engineering services to

White and its affiliates during construction of the Project in 2005 and after the Project's

completion. No written contract for such services between Terracon and any White affiliate

exists.

          25.     Terracon entered into a written contract to provide materials testing and

construction inspection services for the Project in 2005 (the "Materials Testing Contract").



Plaintiffs' Seventh Amended Original Petition                                                  Page 7
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                                                                                                        190
         26.      MBA performed the structural engineering for the Project and Andrew Marlin

signed and sealed the structural plans MBA provided to ESG.

         27.      DaVinci constructed the Project pool pursuant to a subcontract between it and

EBCO.

         28.      Bridgeview constructed the Project plumbing system pursuant to a subcontract

between it and EBCO.

         29.      Champion provided site preparation services, labor, and materials pursuant to a

subcontract between it and EBCO.

         30.      On March 16, 2006, PlaintiffRLJ Lodging entered into the "New Hotels Purchase

and Sale Agreement" (the "New Hotels PSA") between Whiteco Industries, Inc., numerous

sellers identified on Exhibit A of the PSA, and White. This PSA was one of two PSA's executed

concerning the purchase of the Project and 99 other similar projects.       One PSA concerned

projects that were already constructed, and the New Hotels PSA concerned projects, like the

Project, that were in various stages of construction.

         31.      Pursuant to the New Hotels PSA, Plaintiff RLJ Lodging was legally obligated to

take possession of the Project on or about December 20, 2007, a few months after it was

completed.

         32.      Plaintiffs noticed property damage, including foundation movement, a cracked

swimming pool, cracks in the slab and grade, shifting door frames, cracks in partition walls, and

drainage issues on the perimeter of the building in the Project.

         33.      EBCO, ESG, Swenson, Terracon, Swoboda, MBA, DaVinci, Bridgeview, and

Champion provided services, labor, or materials that were defective, or deviated from the




Plaintiffs' Seventh Amended Original Petition                                              Page 8
MHDocs 4896391 1 12690.2

                                                                                                    191
applicable standards of care, and that either caused, or contributed to cause, damages to the

Project and RLJ.

         34.      These defective and damaging serv1ces, labor or materials all had certain

characteristics which prevented Plaintiffs from immediately discovering the damage, and it was

not until verifiable issues with the Project were physically made manifest that Plaintiffs knew of

or should have known of the damages to the Project. As such, the Discovery Rule applies to

effect accrual of all of Plaintiffs' causes of action.

                                        V. CAUSES OF ACTION

A.       Breach of Contract

         35.      Plaintiffs incorporate the foregoing paragraphs.

         36.      EBCO breached the General Contract by failing to perform said contract in a

good and workmanlike manner, failing to construct the Project according to the contract

documents, and failing to construct the Project in a manner consistent with the interests of the

owner.

         37.      ESG and Swenson breached the Architectural Contract by deviating from the

applicable standard of care, failing to produce design plans free from defects, and failing to

properly administer the construction of the Project. See Exhibit A, Certificate of Merit of John

Nyfeler, FAIA, describing ESG and Swenson's negligent acts, or acts in breach of the

Architectural Contract, pursuant to the Certificate of Merit requirements of applicable state law.

         38.      HBC and Swoboda breached the Geotechnical Study Contract as set forth in

Kirby Meyer's Certificate of Merit, attached as Exhibit B, pursuant to the Certificate of Merit

requirements of applicable state law.           Terracon is responsible for HBC's and Swoboda's

negligent acts, errors, or omissions as a result of its merger with HBC.

         39.      Terracon breached the Materials Testing Contract, as set forth in Exhibit B.

Plaintiffs' Seventh Amended Original Petition                                                    Page 9
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                                                                                                          192
         40.      Terracon breached its oral contract with White for geotechnical engmeenng

services, as set forth in Exhibit B.

         41.      Defendants ESG, Swenson, and EBCO assert that anti-assignment clauses

contained in the Architectural Contract and the General Contract prohibit RLJ from asserting

these contract claims.

         42.      The anti-assignment clause in the Architectural Contract and the General Contract

have no force or effect on the assignments between White and RLJ because these contracts were

no longer executory at the time of assignment.

         43.      To the extent that Terracon or Swoboda assert contractual anti-assignment

clauses, those clauses have no force or effect on the assignments between White and RLJ

because these contracts were no longer executory at the time of assignment.

         44.      In the alternative, the anti-assignment clauses do not render the Contract

assignments void. Instead, they merely potentially entitle ESG, EBCO, or Terracon to a breach

of contract claim.         However, because ESG, HBC, and Terracon materially breached their

contracts prior to the date of the assignments, as more fully described below, White and RLJ are

excused from performance.

         45.      Specifically, ESG committed the first material breach of the Architectural

Contract with White when it assigned the signing and sealing function of its contract to Swenson,

without White's express written consent, while those obligations were still executory. Because

corporations are not authorized to sign or seal construction documents in Texas, Swenson could

not have been acting as ESG's agent.            As a result of these actions, ESG is estopped from

enforcement of the referenced anti-assignment clause, and White and RLJ are thereby excused

from performance of its contract obligations concerning consent of assignment.              In the



Plaintiffs' Seventh Amended Original Petition                                               Page 10
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                                                                                                      193
alternative, ESG relinquished a known right and therefore waived enforcement of the anti-

assignment clause, by virtue of the referenced constructive assignment.

         46.       Specifically, HBC committed the first material breach of the Geotechnical Study

Contract with White when it assigned the signing and sealing function of its contract to

Swoboda, without White's express written consent, while those obligations were still executory.

Because corporations are not authorized to sign or seal construction documents in Texas,

Swoboda could not have been acting as HBC's agent. As a result of these actions, Terracon (on

behalf of HBC) is estopped from enforcement of the referenced anti-assignment clause, and

White and RLJ are thereby excused from performance of its contract obligations concerning

consent of assignment. In the alternative, HBC relinquished a known right and therefore waived

enforcement of the anti-assignment clause, by virtue of the referenced constructive assignment.

         47.      Specifically, Terracon committed the first material breach of the Materials

Testing Contract with White when it assigned the signing and sealing function of its contract to

others, without White's express written consent, while those obligations were still executory.

Because corporations are not authorized to sign or seal construction documents in Texas, the

individuals who signed and sealed testing reports could not have been acting as Terracon's agent.

As a result of these actions, Terracon is estopped from enforcement of the referenced anti-

assignment clause, and White and RLJ are thereby excused from performance of its contract

obligations concerning consent of assignment. In the alternative, Terracon relinquished a known

right and therefore waived enforcement of the anti-assignment clause, by virtue of the referenced

constructive assignment.

         48.      Plaintiffs also challenge the applicability of the purported "waiver of

consequential damages" clauses contained in the Architectural Contract, General Contract, the



Plaintiffs' Seventh Amended Original Petition                                              Page 11
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                                                                                                     194
Geotechnical Study Contract, and/or the Materials Testing Contract. Plaintiffs seek to recover

the difference between the value of the Project as constructed, and its value had it been designed

and constructed in accordance with the respective Contracts. This is not a consequential damage

as defined by the Contracts, but instead is the primary measure of damages in a breach of

contract action under Texas law.

         49.      As a direct, natural, probable, and foreseeable consequence associated with

breaches of contract by EBCO, ESG, Swenson, HBC, Swoboda, and Terracon, Plaintiffs have

sustained damages for which they sue herein.

B.      Declaratory Judgment and Suit for Declaratory Relief

         50.      Plaintiffs incorporate the foregoing paragraphs.

         51.      Pursuant to the Uniform Declaratory Judgment Act, Texas Civil Practice &

Remedies Code §37.001 et seq., Plaintiffs are interested parties whose rights are affected by a

contract or contracts with Terracon or HBC.

         52.      Issues and disagreements currently exist between Plaintiffs and Terracon

concemmg whether Terracon's geotechnical engmeenng serv1ces provided in 2005 and

thereafter are the subject of any contractual limitations of liability.       Terracon asserts that

limitations of liability contained in either the Geotechnical Study or Materials Testing Contract

apply to the geotechnical engineering services provided by Terracon in 2005 and thereafter.

         53.      By way of a declaratory action, Plaintiffs seek certainty regarding the respective

parties' rights and obligations under the Geotechnical Study Contract with HBC and the

Materials Testing Contract with Terracon at issue in this lawsuit. Specifically, RLJ seeks a

declaration that: (a) the scope of the Geotechnical Engineering Study contract with HBC was to

provide a Geotechnical Engineering Study, which was provided on November 21, 2000 and

which was completed shortly thereafter; (b) the Materials Testing Contract specifically excludes

Plaintiffs' Seventh Amended Original Petition                                                Page 12
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                                                                                                       195
geotechnical engineering services; and (c) the geotechnical engineering services provided by

Terracon in 2005 and thereafter were provided pursuant to an oral contract separate and distinct

from the Geotechnical Study or Materials Testing Contract, or in the alternative pursuant to a

negligent undertaking by Terracon, but in either event the 2005 and beyond geotechnical

engineering services provided by Terracon are not the subject of contractual limitations of

liability contained in either the Geotechnical Study or Materials Testing Contract.

         54.      Based on the foregoing, there is presently an actual, justiciable controversy

between and among the parties.

C       Breach of Warranty

         55.      Plaintiffs incorporate the foregoing paragraphs.

         56.      Plaintiffs assert that EBCO expressly represented and warranted that the Project,

and all of its incorporated elements and materials, would be of good quality, that the Project

would be free from defects, and that the Project would conform to the requirements of the

contract documents. Specifically, Plaintiffs would show that EBCO breached its warranty that

services be performed in a good and workmanlike manner, because the Project is not fit for its

intended use, was not constructed in accordance with the contract documents or industry

standards, and is not free from defects.

         57.      In the alternative, Plaintiffs assert that EBCO impliedly represented and

warranted that the Project, and all of its incorporated elements and materials, would be of good

quality, that the Project would be free from defects, and that the Project would conform to the

requirements of the contract documents.           Specifically, Plaintiffs would show that EBCO

breached its common law implied warranty that serv1ces be performed in a good and

workmanlike manner, because the Project is not fit for its intended use, was not constructed in

accordance with the contract documents or industry standards, and is not free from defects.

Plaintiffs' Seventh Amended Original Petition                                               Page 13
MHDocs 4896391 1 12690.2

                                                                                                      196
         58.      As a direct, natural, probable, and foreseeable consequence associated with

EBCO's breach of warranty, Plaintiffs have sustained damages for which they sue herein.

D.      Equitable Subrogation

         59.      Plaintiffs incorporate the foregoing paragraphs.

         60.      Plaintiffs will show that EBCO had a duty to construct the Project without

negligence, free from defects, in a manner consistent with construction industry standards for

similar projects in this location, and to refrain from negligent misrepresentation concerning the

Project. EBCO failed to meet its duties when performing its work on the Project, all of which

caused or contributed to cause damages to Plaintiffs.

         61.      Plaintiffs will also show that ESG had a duty to provide design plans and to

administer the Project's construction in accordance with the Architectural Contract, without

negligence, free from errors and omissions, and in a manner consistent with the applicable

standard of professional skill and care.        ESG also had a duty to refrain from negligent

misrepresentation concerning the Project.        ESG failed to meet its duties in performing the

services for the Project, all of which caused or contributed to cause damages to Plaintiffs. See

Exhibit A.

         62.      Plaintiffs will show that Swenson owed a duty to provide design plans without

negligence, free from errors and omissions, and in a manner consistent with the Architectural

Contract and all applicable standards of professional skill and care. Swenson also had a duty to

refrain from negligent misrepresentation concerning the Project. Swenson failed to meet his

duties in performing the services for the Project, which caused or contributed to cause damages

to Plaintiffs. See Exhibit A.

         63.      Plaintiffs will show that HBC and Swoboda owed a duty to provide a

geotechnical engineering study without negligence, free from errors and omissions, and in a

Plaintiffs' Seventh Amended Original Petition                                             Page 14
MHDocs 4896391 1 12690.2

                                                                                                    197
manner consistent with applicable standard of professional skill and care. Plaintiffs will also

show HBC and Swoboda owed a duty to refrain from negligent misrepresentation concerning the

Project. HBC and Swoboda failed to meet these duties in performing their services for the

Project, which caused or contributed to cause damages to Plaintiffs. See Exhibit B, Certificate of

Merit of Kirby Meyer, describing HBC or Swoboda's negligent acts, pursuant to the Certificate

of Merit requirements of applicable state law. Terracon is responsible for HBC's and Swoboda's

negligent acts, errors, or omissions as a result of its merger with HBC.

         64.      Plaintiffs will show that Terracon owed a duty to provide geotechnical

engineering without negligence, free from errors and omissions, and in a manner consistent with

applicable standard of professional skill and care. Plaintiffs will also show that Terracon owed a

duty to refrain from negligent misrepresentation concerning the Project. Terracon failed to meet

these duties in performing their services for the Project, which caused or contributed to cause

damages to Plaintiffs. See Exhibit B, Certificate of Merit of Kirby Meyer, describing Terracon's

negligent acts, pursuant to the Certificate of Merit requirements of applicable state law.

         65.      Plaintiffs will show that Terracon owed a duty to provide materials

testing/construction inspection services without negligence, free from errors and omissions, and

in a manner consistent with applicable standard of professional skill and care. Plaintiffs will also

show that Terracon owed a duty to refrain from negligent misrepresentation concerning the

Project. Terracon failed to meet these duties in performing their services for the Project, which

caused or contributed to cause damages to Plaintiffs. See Exhibit B, Certificate of Merit of Kirby

Meyer, describing Terracon's negligent acts, pursuant to the Certificate of Merit requirements of

applicable state law.




Plaintiffs' Seventh Amended Original Petition                                                Page 15
MHDocs 4896391 1 12690.2

                                                                                                       198
         66.      Plaintiffs will show that MBA owed a duty to provide structural engmeenng

services in accordance with its contract without negligence, free from errors and omissions, and

in a manner consistent with applicable standard of professional skill and care. Plaintiffs will also

show MBA owed a duty to refrain from negligent misrepresentation concerning the Project.

MBA failed to meet its duties in performing these services for the Project, which caused or

contributed to cause damages to Plaintiffs. See Exhibit C, Certificate of Merit of Dean Read,

describing MBA's negligent acts, pursuant to the Certificate of Merit requirements of applicable

state law.

         67.      Plaintiffs will show that DaVinci owed a duty to provide its labor, material, and

services in accordance with its contract, without negligence, free from errors and omissions, and

in a manner consistent with the applicable standards of care. Plaintiffs will show that DaVinci

also owed a duty to refrain from negligent misrepresentation concerning the Project. DaVinci

failed in these duties, which caused or contributed to cause damage to Plaintiffs.

         68.      Plaintiffs will show that Bridgeview owed a duty to provide its labor, material,

and services in accordance with its contract, without negligence, free from errors and omissions,

and in a manner consistent with the applicable standards of care.         Plaintiffs will show that

Bridgeview also owed a duty to refrain from negligent misrepresentation concerning the Project.

Bridgeview failed in these duties, which caused or contributed to cause damage to Plaintiffs.

         69.      Plaintiffs will show that Champion owed a duty to provide its labor, material, and

services in accordance with its contract, without negligence, free from errors and omissions, and

in a manner consistent with the applicable standards of care. Plaintiffs will show that Champion

also owed a duty to refrain from negligent misrepresentation concerning the Project. Champion

failed in these duties, which caused or contributed to cause damage to Plaintiffs.



Plaintiffs' Seventh Amended Original Petition                                                Page 16
MHDocs 4896391 1 12690.2

                                                                                                       199
         70.      EBCO, ESG, Swenson, MBA, Terracon (and HBC), Swoboda, DaVinci,

Bridgeview, and Champion all deviated from the applicable standards of care in the provisions of

their respective work or services. In addition, EBCO failed to perform its contract in a good and

workmanlike manner and to construct the project in accordance with its fiduciary duty or the

General Contract. As a direct result, Plaintiffs suffered damages from the costs to correct or

compensate for the Defendants' acts, errors, and omissions. Plaintiffs were contractually and

otherwise obligated to undertake costly repair to the Project, and to pay those costs, for which the

Defendants are responsible. Each of the Defendants benefited from these payments, for which

they are actually responsible, and any related claims they might have had regarding the Project

are assigned to Plaintiffs as a matter of law.         Thus, Plaintiffs are entitled to an equitable

subrogation recovery of those Project remediation costs actually paid as of the date of the trial in

this matter from Defendants.

E.      Negligence/Tort

         71.      Plaintiffs incorporate the foregoing paragraphs.

         72.      Breach of a Fiduciary Duty is a tort, grounded in negligence principles. EBCO

owed a fiduciary duty to construct the Project in a manner consistent with the owner's interests.

The rights to the cause of action for EBCO' s breach of this negligence/tort duty were assigned to

RLJ. EBCO breached this duty, causing damage to the Project and RLJ.

                                                VI. DAMAGES

         73.      As a result of the breaches of contract, breach of fiduciary duties, breach of

warranty, tort/negligence breaches, and negligent acts alleged above, Plaintiffs have sustained

damages in excess of the minimal jurisdictional requirements of this court. The appropriate

measure of damages for the breach of contract and breach of warranty claims is the difference in

value between the building as constructed, and the value of the building had it been designed and

Plaintiffs' Seventh Amended Original Petition                                                Page 17
MHDocs 4896391 1 12690.2

                                                                                                       200
constructed pursuant to the respective contracts. In the alternative, the measure of damages is

the cost to fully and completely repair the Project.

          74.     The measure of damages for the tort/negligence causes of action are all out-of-

pocket costs, plus all current and future lost revenue, profits, diminution in value, future repair

costs, along with all other direct, special or consequential damages. Plaintiffs also request that

EBCO be required to disgorge and forfeit all fees from the Project, as a result of the breach of its

fiduciary duty.

          75.     Plaintiffs further seek a declaration that the geotechnical engineering services

provided by Terracon during and after construction of the Project, in 2005 and thereafter are not

subject to a contractual limitation ofliability, thereby not limiting the damages sought herein.

                                  VII. CONDITIONS PRECEDENT

          76.     All conditions precedent to the Plaintiffs' rights to recover as herein alleged have

been performed, have occurred, or have been waived or excused.

                                       VIII. ATTORNEY'S FEES

          77.     Plaintiffs are entitled to recover their attorneys' fees pursuant to Chapters 37.009

and 38 of the Texas Civil Practice and Remedies Code.

          78.     Plaintiffs will further seek to recover their attorney's fees for declaratory relief

sought against Terracon pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code.

                                  IX. REQUEST FOR JURY TRIAL

          79.     Plaintiffs assert their right to a trial by jury, under Texas Constitution, article 1,

section 15, and make this demand for a jury trial at least thirty (30) days before the date this case

is set for trial, in accordance with Texas Rules of Civil Procedure 216. Plaintiffs have tendered

the fee of $30.00 to the clerk of this court, as required by Texas Government Code section

51.604.

Plaintiffs' Seventh Amended Original Petition                                                    Page 18
MHDocs 4896391 1 12690.2

                                                                                                           201
         WHEREFORE, PREMISES CONSIDERED, Plaintiff's request that upon final hearing,

they have judgment against the Defendants, jointly and severally, for their damages, interest,

attorneys' fees, costs, and any other relief to which they may be entitled.



                                                   Respectfully submitted,
                                                                 ,.«"~~---')
                                                              .,If     ;.<>'/
                                                            ,(/~:;;; ~
                                                   By: ---~~~,~~-~~\~~···~----~-+~--------­
                                                        Benton T. Wheatley ~,
                                                        Texas Bar No. 24015171
                                                        Tracy McCreight
                                                        Texas Bar No. 24037064
                                                        Jessica C. Neufeld
                                                        Texas Bar No. 24059270
                                                        Munsch Hardt Kopf & Harr, P.C.
                                                        401 Congress Avenue, Suite 3050
                                                        Austin, Texas 78701
                                                        Telephone: 512.391.6100
                                                        Facsimile: 512.391.6149
                                                        Email: bwheatley(f[lmunsch.com
                                                        Email: tmccreight(a}munsch.com
                                                        Email: jneufeld(a~munsch.com

                                                   ATTORNEYS FOR RLJ II-C AUSTIN AIR, LP,
                                                   RLJ II-C A US TIN AIR LESSEE, LP; RLJ
                                                   LODGING FUND II ACQUISITIONS, LLC




Plaintiffs' Seventh Amended Original Petition                                          Page 19
MHDocs 4896391 1 12690.2

                                                                                                 202
                                     CERTIFICATE OF SERVICE

       I hereby certifY that on this 18th day of February, 2014, a true and correct copy of the
foregoing was forwarded via facsimile, U.S. First Class mail, certified mail, return receipt
requested, and/or hand-delivery to the following:

David P. Benjamin                                       Gregory N. Ziegler
Brent A. Biggs                                          Matthew Mumm
Benjamin, Vana, Martinez & Biggs, LLP                   Macdonald Devin, P.C.
2161 N.W. Military Highway, Suite Ill                   3800 Renaissance Tower
San Antonio, Texas 78213                                1201 Elm Street
Fax: 210.881.0668                                       Dallas, Texas 75270-52130
db en j amin(a~ benlawsa.com                            Fax: 214.747.0942
bbiggs(a1benlawsa.com                                   gziegler((i;macdonalddevin.com
                                                        mmumm({l),macdonalddevin.com
Attorneys for EBCO General Contractor, Ltd. and
EBCO/Warrior Management, LLC                            Attorneys for Elness, Swenson, Graham
                                                        Architects, Inc. and Mark Swenson, Individually

Stephen K. Yungblut                                     WilliamS. Rhea
Pratt & Yungblut, P.C.                                  DuBois Bryant & Campbell, LLP
2221 East Lamar Blvd., Suite 150                        700 Lavaca Street, Suite 1300
Arlington, Texas 76006                                  Austin, TX 78701
Fax: 817.633.6188                                       Fax: 512.457.8008
steve(@,pratt-yungblut.com                              brhea@dbcllp.com

Co-Counsel for Terracon Consultants, Inc. and           Lead Counsel for Terracon Consultants, Inc.
Todd E. Swoboda, P.E., Individually                     and Todd E. Swoboda, P.E., Individually

Jeffrey G. House
Cumey, Farmer, House & Osuna, P.C.
411 Heimer Road
San Antonio, Texas 78232-4854
Fax: 210.377.1065
jhouse@.cgfph.com

Attorneys for Alcadio Chapa, Jr. formerly d/b/a JR 's
Concrete Construction




Plaintiffs' Seventh Amended Original Petition                                             Page 20
MHDocs 4896391 1 12690.2

                                                                                                      203
       2/18/2014 9:33:34 AM
             Amalia Rodriguez-Mendoza
                           District Clerk
                           Travis County
                        D-1-GN-1 0-002325




EXHIBIT A




                                   204
AFFIDAVIT OF JOHN V. NYFELER



STATE OF TEXAS

COUNTY OF TRAVIS

        BEFORE ME, the undersigned authority, on this day personally appeared John V.

        Nyfeler, who being duly sworn, deposed as follows:



                 1.    My name is John V. Nyfeler. I am of sound mind and capable of making this

                      . affidavit. I am personally acquainted with the facts herein stated and they

                      are true and correct.



                 2.    This matter relates to the building project: RU/Marriott Courtyard Hotel,

                      Austln Airport, located at 7809 .Ben White Boulevard, Austin, Texas 78744-

                      1774.


                 3.    I am President ofThe Nyfeler Organization, Inc. d/b/a/ John Nyfeler, FAIA

                       and have worked in that capacity since February 1, 2010. For the previous

                       ten years I worked for Aguirre Roden, Inc., a Texas based architect, engineer

                       firm, in the capacity of Senior Vice President. I have been a registered

                       architect in the State ofTexas since 1970.



                 4.    I have reviewed the construction documents for the referenced building

                       project, prepared by Etness Swenson Graham Architects, Inc. and its

                       Principal, Mark G. Swenson; Texas Architect Registration No. 13193,

                       (collectively "Architect") and its sub-consultants and have reviewed other

                       related documents provided to me. During the year 2009 and 2010, I have

                       visited the site of the building and have visually examined the building and

                       have made inspections of the construction at selected locations in the

                       building. The documents that I reviewed and my observations and
                       inspections of the site and of the building form the factual basls for the
                       professional opinion that the Architect's acts, errors and omissions deviated
                       from the appropriate standard of care for example:


                                                    1




                                                                                                       205
   a.   The Architect and its consultants in the design of the building foundation
        failed to follow the recommendations of the Geotechnical Engineering
        Study dated November 21, 2000 prepared by HBC Engineering, Inc.,
        which failure to follow the recommendations in the Geotechnical
          Engineering Study caused or contributed to the physical damage to the
          building including:


          1       The Architect failed to advise the geotechnical consultant of the
final finished floor elevations.
          2        The Architect failed to take into account that the geotechnical
borings were taken before the site excavation was done.
          3        The Architect did not take into account the admonition set out
in 6.3 of the Geotechnical Report, " ...zones of shallow groundwater seepage are
possible along pervious seams/fissures of the near surface soils (particularly
during or soon after periods of wet weather)."
          4        The Architect accepted the estimated potential vertical rise
(PVR) ofthree inches (j"} and designed the building to that unacceptable range.
           5       The Architect failed to advise the geotechnical consultant of the
design which would setfinished floor elevation more than two feet below the
existing grade even though the geotechnical report states: "lffinished grade Is
planned to be more than two feet above or below existing grade, HBC should be
contacted to revise our recommendations."
           6       The Architect failed to provide effective drainage around the
building even though the geotechnical report (p.8) states: ".,.moisture

variations in the sub-grade soils due to poor drainage, leakage of utilities, etc.
could induce volumetric changes resulting in movements which are in excess of
those estimated by the PVR procedure."
           7       The Architect failed to design a wall drain recommended by the
geotechnical report (p.l4). The report states: "A wall drain is recommended for
collection and removal of surface water percolation along the base of the
walls."



                                   2




                                                                                       206
                                 8      The Architect failed to specify backfill of cohesive (clay} soil
                    around the building to control surface water percolation which backfill will help
                    to prevent buildup of higher wall pressures even though the geotechnical report
                    (p.14) states: "The flnal12 inches of backfill should preferably consist of
                    cohesive soil to help reduce percolation of surface water into the backfilL
                                 9      The Architect failed to have HBC Engineering, Inc. to review the
                    final   cons~ruction   documents for concurrence that the documents conformed
                    with the geotechnical report even though the geotechnical report states (p.19,
                    Art.8.0} "HBC should be provided the opportunity to review the final plans and
                    specifications to check that these and subsequent recommendations are
                    properly interpreted." There is no record of this final review being done.
                                 10     The Architect failed to design the surface water drain age
                    around the building to prevent pending of water near the building even though
                    the geotechnical report states (p.15, Art.7.7) " ...we highly recommend that the
                    site drainage be developed so that ponding of surface water runoff near the
                    structure does not occur."


        b. The Architect and its consultants may have committed other acts, errors or omissions

in its professional servlces rendered in connection with the project which acts, errors or
omissions deviate from the applicable standard of carte.


                       These statements of fault made herein are true and correct of my own
                       personal knowledge.


                        Further Affiant Sayeth No~?
                                                 .•·




                                  SWORN AND SUBSCRIBED BEFORE ME, this la_day of June, 2010.

           T. DECKER
       Notary Public, Stale of Texas
          My C<lmml:l61oo Explrea
         MAY 21,2012

                                                         3




                                                                                                           207
EXHIBITB




           208
                   CERTIFICATE OF MERIT OF KIRBY T. MEYER, P.E.

STATE OF TEXAS                               §
COUNTY OF TRAVIS                             §


       BEFORE ME, the undersigned notary public, on this day personally appeared

Kirby T. Meyer, P .E. known to me to be the person whose name is subscribed to the

following instrument, and having been by me duly sworn, upon oath, deposes and

states as follows:

       1. My name is Kirby T. Meyer.       I am over 21 years of age and a resident of

       Austin, Texas.     I am fully competent and able to testify herein, and do hereby

       state under oath that I am fully aware and cognizant of all the facts set forth

       herein below.     I hereby do swear that all of said facts and statements made

       herein below are true and correct and of my own personal knowledge based on

       the available information.

       2. I am a Professional Engineer licensed to practice in Texas and actively

       engaged in the practice of geotechnical engineering, foundation design, analysis

       and investigation which is the same relevant area of practice as HBC

       Engineering,     Inc.   (HBC).   I have designed,    analyzed and investigated

       foundations throughout Texas. I am also licensed as a Professional Engineer in

       Colorado.

       3. In addition to being an owner and Chairman of MLAW Consultants &

       Engineers, I am also an owner and Chairman of MLA Labs, Inc., and
                                                                                  '   I



       Geostructural Tool Kit, Inc.

CERTIFICATE OF MERIT OF KIRBY T. MEYER, P.E.
Page 1 of4




                                                                                           209
                                i   ;




       4. Based on my education and experience in the field of geotechnical

       engineering, I am familiar with and competent to testify on the standard of care

       which an engineer of ordinary knowledge and skill should employ in geotechnical

       investigation, analysis and reporting relative to the foundation constructed for the

       Courtyard Austin. Airport located at 7809 East Ben White Blvd. My opinions are

       based on available documents and geotechnical investigations of this site.         I

       reserve the right to modify my opinions if additional information becomes

       available.

       5. HBC, the geotechnical engineer of record for the Courtyard Austin Airport,

       identified highly expansive soils which will change volume with changing

       moisture conditions at the site.   The highly expansive nature of the soil was

       independently confirmed during MLAW's investigation.

       6. In their geotechnical report, HBC recommended a stiffened slab-on-ground

       foundation supported on a select fill pad.          The stiffened slab-on-ground

       foundation was to be designed based on the Department of Housing and Urban

       Development (HUD) Building Research Advisory Board's Report #33 (BRAB

      #33) titled "Criteria for Selection and Design of Residential Slabs-on-Ground" and

       dated 1968.    HBC's geotechnical report was signed and sealed by Todd E.

       Swoboda, P.E. on November 21, 2000.

      7. At the time of the HBC geotechnical report, the City of Austin had adopted the

      1994 Uniform Building Code (UBC) for the design and construction of buildings

       such as this hotel.   Section 1806.5 of the 1994 UBC indicates that slab-on-

      ground foundations on expansive soils should be designed using the Wire
CERTIFICATE OF MERIT OF KIRBY T. MEYER, P.E.
Page 2 of4




                                                                                              210
                                                                                             :.   -.




       Reinforcing Institute's (WRI's) or the Post-Tensioning Institute's (PTI's) design

       procedures.   The BRAS #33 procedure recommended by HBC has not been

       widely used in Central Texas for many years.             In .addition, the BRAB #33

       procedure was developed for the design of small residential foundations, not

       commercial buildings such as this hotel.

       8. This site was excavated as much as 7 feet to provide a level construction pad.

       Had HBC accounted for the up to 7 feet of site cut, the predicted Potential

       Vertical Rise (PVR) for the site with no remove and replace modifications would

       have been as much as 7.6 inches, not the 3 inches stated in their report.

       9. HBC failed      to   take   into   account the site    cut in   the geotechnical

       recommendations.        Cutting the site reduces the overburden and exposes the

       deeper soils to higher levels of moisture change than would have been

       experienced prior to the cutting. Cutting results in a significant increase in the

       swell potential.   HBC failed to determine final site elevations or notice site

       excavation while on site during construction.

       10. HBC overestimation of the effect of 5 feet of remove and replace with select

       fill. Based on MLAW's PVR analysis, 5 feet of remove and replace would have

       only reduced the PVR to 2.7 inches, not less than 1 inch as reported in HBC's

       report. Had the site cut of up to 7 feet been considered, the value would be 4.8

       inches.

       11. HBC failed to recommend adequate measures to drain or prevent water from

       penetrating the underslab fill.         Since the underslab fill's permeability is

       significantly higher than the surrounding clay, any water that infiltrates the
CERTIFICATE OF MERIT OF KIRBY T. MEYER, P.E.
Page 3 of4




                                                                                                       211
        underslab fill would become trapped and slowly penetrate into the underlying

        clays that, due to their depth, would not have normally been exposed to

        significant levels of moisture changes. Free water was observed draining from

        the fill behind the exterior footing in one test pit and found in monitor wells. The .

        trapping of water below the building significantly contributed to the foundation

        distress suffered by the structure.

        12. Based on the above facts, HBC's geotechnical services and report signed

        and sealed by Todd E. Swoboda, P.E. proved to be inadequate for ·the soil

        conditions and did not met the standard of care for foundation recommendations

        for an expansive soil site.

        FURTHER AFFIANT SAITH NOT,



                                                          EYER, P.E.
                                                  MLAW Consultants & Engineers




CERTIFICATE OF MERIT OF KIRBY T. MEYER, P.E.
Page 4 of4




                                                                                                 212
EXHIBIT C




            213
                     CERTIFICATE OF MERIT OF DEAN R. READ, P.E.

STATE OF TEXAS                               §
COUNTY OF TRAVIS                             §


        BEFORE ME, the undersigned notary public, on this day personally appeared

Dean   R Read, P.E. known to me to be the person whose name is subscribed to the

following instrument, and having been by me duly sworn, upon oath, deposes and

states as follows:

        1. "My name is Dean R. Read, Jr. I am over 21 years of age and a resident of

        Austin, Texas.   I am fully competent and able to testify herein, and do hereby

        state under oath that I am fully aware and cognizant of all the facts set forth

        herein below.    I hereby do swear that all of said facts and statements made

        herein below are true and correct and of my own personal knowledge based on

        the available information.

        2. "I am a Professional Engineer licensed to practice in Texas and actively

        engaged in the practice of foundation design, analysis and investigation which is

        the same relevant area of practice as MBA Structural Engineers.           I have

        designed, analyzed and investigated foundations throughout Texas.      I am also

        licensed as a Professional Engineer in New Mexico, Louisiana, Mississippi,

        Oklahoma and the Commonwealth of the Northern Mariana Islands.

        3. "In addition to being an owner and Vice President of MLAW Consultants &

        Engineers, I am also an owner, President and Chief Software Programmer of

        Geostructural Tool Kit, Inc. Through GTK, I developed the engineering software


CERTIFICATE OF MERIT OF DEAN R. READ, P.E.
Page 1 of5




                                                                                            214
       titled PTISLab and VOLFLO that are used throughout the United States to

       analyze and design foundations on expansive soils.

       4. "Based on my education and experience in the design and analysis of

       foundations, I am familiar with and competent to testify on the standard of care

       which an engineer of ordinary knowledge and skill should employ in the design of

       a foundation such as the one designed by MBA Structural Engineers (MBA) for

       the Courtyard Austin Airport located at 7809 East Ben White Blvd. My opinions

       are based on available documents and I reserve the right to modify my opinions if

       additional information becomes available.

       5. 'The MBA foundation plans for the Courtyard Austin Airport are signed and

       sealed by Andrew T. Marlin, P.E. and dated August 3, 2005.        Several revised

       sheets were dated October 19, 2005.         The MBA foundation plan generally

       consisted of a 4 inch thick flat slab foundation with spot and strip footings under

       load bearing elements.

       6. "HBC Engineering, Inc. (HBC), the geotechnical engineer of record for the

       Courtyard Austin Airport, identified highly expansive soils which will change

      volume with changing moisture conditions at the site.        The highly expansive

       nature of the soil was independently confirmed during MLAW's investigation.

      7. "In their geotechnical report, HBC recommended a stiffened slab-on-ground

      foundation supported on a select fill pad.          The stiffened slab-on-ground ·

      foundation was to be designed based on the Department of Housing and Urban

       Development (HUD) Building Research Advisory Board's Report #33 (BRAB

      #33) titled "Criteria for Selection and Design of Residential Slabs-on-Ground" and
CERTIFICATE OF MERIT OF DEAN R. READ, P.E.
Page 2 of5




                                                                                             215
        dated 1968.

        8. "At the time of the MBA design, the City of Austin had adopted the 1994

        Uniform Building Code (UBC) for the design and construction of buildings such

        as this hotel.   Section 1806.5 of the 1994 UBC indicates that slab-on-ground

        foundations on expansive soils should be designed using the Wire Reinforcing

        Institute's (WRI's) or the Post-Tensioning Institute's (PTI's) design procedures.

        Future versions of the UBC and the International        B~ilding   Code reference the

        same procedures.

        9. "While the 1994 UBC does provide an exception to the WRI and PTI design

        procedures based on geotechnical recommendations as approved by the

        building official, the BRAB #33 procedure recommended by HBC has not been

        widely used in Central Texas for many years.            In addition, the BRAS #33

        procedure was developed for the design of small residential foundations not

        commercial buildings such as this hotel.

        10. "Both the HBC recommended BRAB #33 and the code required WRI

        procedures are empirical methods for designing stiffened slab-on-ground

        foundations on expansive soils. A stiffened slab-on-ground foundation consists

        of stiffening ribs (or beams) in a "waffle" type pattern that structurally resists slab

        deformation (bending) due to soil movement. A stiffened foundation with deep

        and closely spaced ribs will have more strength and stiffness than a foundation

        with shallow widely spaced ribs.       A thin uniform thickness lightly reinforced

        foundation with no stiffening ribs will have by comparison significantly less

        strength and stiffness and therefore will not be able to structurally resist
CERTIFICATE OF MERIT OF DEAN R. READ, P.E.
Page 3 of5




                                                                                                  216
        deformations due to soil movement.

        11. "Due to being non-continuous and not uniformly spaced, the strip footings on

        the MBA foundation plan will provide very little resistance to the bending forces

        presented by shrinking and swelling of the underlying clay soils.      The MBA

        foundation design is not in compliance with the recommendations of the HBC

        report or the applicable building code requirements.

        12. "The Floor Construction Notes on Sheet S2.1 indicate that the slab is to be

        reinforced with polypropylene fibers uniformly dispersed in the concrete mixture

        using the manufacturer's recommendations.         Polypropylene fibers are not

        commonly used as structural reinforcement in Central Texas. During MLAW's

        investigation, polypropylene fibers were not found in the concrete. Further, the

        Reinforcing Notes on Sheet S1.0 indicate that the WWF is to be 6x6-W1.4xW1.4

        unless otherwise rated (the 6x6 indicates a 6" by 6" grid while W1.4 indicates

        wire with a cross-sectional area of 0.014 square inches). The Typical Slab Bar

        Diagram detail on Sheet S2.0 indicates the WWF is to be 6x6 W2. 1xW2. 1 (W2.1

        has a cross-sectional area per wire of 0.021 square inches) placed 1 inch from

        the top of the slab. Either level of WWF reinforcement is extremely light and is

        commonly used in sidewalks and driveways in central Texas not commercial

        buildings.

        13. The American      Concrete   Institute's Building   Code   Requirements for

        Reinforced Concrete (ACI 318-92) indicates that the minimum steel area for

        shrinkage and temperature reinforcement (not minimum flexural reinforcement)

        of a slab shall be 0.0018 times the gross concrete area. For a 4 inch thick slab,
CERTIFICATE OF MERIT OF DEAN R. READ, P.E.
Page 4 of5




                                                                                            217
                                                      i   i,




the minimum steel area for shrinkage and temperature reinforcement is 0.086

square inches which is approximately 2 times what was provided for on the MBA

foundation plans. 6x6 W2.1xW2.1 WWF has a steel area of approximately 0.042

square inches per foot.

14. "The MBA Structural Engineers foundation design as signed and sealed by

Andrew T. Marlin, P.E. for the Courtyard Austin Airport located at 7809 East Ben

White Boulevard in Austin, Texas is inadequate for the soil conditions and does

not meet the standard of care of an engineered foundation on expansive soil.

The failure of the MBA foundation design to meet the standard of care for an

engineered foundation has contributed to the unacceptable performance of the

foundation as exhibited through excessive floor slopes and finishing material

distress."

FURTHER AFFIANT SAITH N O T " 0


                   6:2                  DEAN R. READ, P.E.
                                        MLAW Consultants & Engineers




                                                                                   218
APPENDIX B
    '                                                  DC              BK14139 PG262

I




                                             CAUSE NO. D-1-GN-10-002325

         RLJ 11-C AUSTIN AIR, LP; RLJ 11-C AUSTIN                         §            IN THE DISTRICT COURT OF
         AIR LESSEE, LP; and RLJ LODGING FUND                             §
         II ACQUISITIONS, LLC,                                            §
                                                                          §
                Plainti1f1fs,                                             §
                                                                          §
         VS.                                                              §
                                                                          §
         EBCO GENERAL CONTRACTOR, LTD;                                    §
         EBCO ADVANCED BUILDING SYSTEMS,                                  §
         LTD; EBCO/WARRIOR MANAGEMENT                                     §              TRAVIS COUNTY, TEXAS
         LLC; ELNESS, SWENSON, GRAHAM                                     §
         ARCHITECTS, INC.                                                 §
                                                                          §
                                                                          §
                                                                          §
                                                                          §
                                                                          §
                                                                          §
                De1fendants and Third-Party De1fendants.                  §              200m JUDICIAL DISTRICT


                                                CHARGE OF THE COURT

        Members o1fthe Jury:

               After the closing arguments, you will go to the jury room to decide the case, answer the
        questions that are attached, and reach a verdict. You may discuss the case with other jurors only
        when you are all together in the jury room.

                Remember my previous instructions: Do not discuss the case with anyone else, either in
        person or by any other means. Do not do any independent investigation about the case or conduct
        any research. Do not look up any words in dictionaries or on the Internet. Do not post in1formation
        about the case on the Internet. Do not share any special knowledge or experiences with the other
        jurors. Do not use your phone or any other electronic device during your deliberations 1for any
        reason. Rely on the Court Operations Officer to noti1fy you i1f she receives a call 1for you on the
        emergency number she gave you.

                Any notes you have taken are 1for your own personal use. You may take your notes back
        into the jury room and consult them during deliberations, but do not show or read your notes to
        your 1fellow jurors during your deliberations. Your notes are not evidence. Each o1f you should


                                                                   1
                                Filed in The District Court                                        Filed In The District Court
        May 14,2014              of Travis County, Texas                                            of Travis County, Texas

                                      MAY 15 2014 BH                                                      MAY 16 2014 JH
                                At          q~o~         A M.                                      At       .:Z,:o'f I M.
                                Amalia Rodriguez-Mendoza, Cieri(                                    Amalia Rodriguez-Mendoza, Clerk
                                                                                       1121
                                        DC           BK14139 PG263



                                                                                .·.




rely on your independent recollection of the evidence and not be influenced by the fact that another
juror has or has not taken notes.

       Here are the instructions for answering the questions.

       1. Do not let bias, prejudice, or sympathy play any part in your decision.

        2. Base your answers only on the evidence admitted in court and on the law that is in these
instructions and questions. Do not consider or discuss any evidence that was not admitted in the
courtroom.

        3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters of law, you
must follow all of my instructions.

       4. If my instructions use a word in a way that is different from its ordinary meaning, use
the meaning I give you, which will be a proper legal definition.

       5. All the questions and answers are important. No one should say that any question or
answer is not important.

        6. Unless the instruction for a particular question tells you otherwise, a "yes" answer must
be based on a preponderance of the evidence.          If you do not find that a preponderance of the
evidence supports a "yes" answer, then answer "no." When you answer a question that requires
an answer other than "yes" or "no," your answer must be based on a preponderance ofthe evidence,
unless the instruction for that particular question tells you otherwise.

       The term "preponderance of the evidence" means the greater weight of credible evidence
presented in this case. A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.

         7. A fact may be established by direct evidence or by circumstantial evidence or both. A
fact is established by direct evidence when proved by documentary evidence or by witnesses who
saw the act done or heard the words spoken. A fact is established by circumstantial evidence when
it may be fairly and reasonably inferred from other facts proved.

       8. Do not decide who you think should win before you answer the questions and then just
answer the questions to match your decision. Answer each question carefully without considering
who will win. Do not discuss or consider the effect your answers will have.

       9. Do not answer questions by drawing straws or by any method of chance.

       10. Some questions might ask you for a dollar amount. Do not agree in advance to decide
on a dollar amount by adding up each juror's amount and then figuring the average.
                                                 2

May 14,2014




                                                                     1122
I

~                                          DC           BK14139 PG264




            11. Do not trade your answers. For example, do not say, "I will answer this question your
    way if you answer another question my way."

            12. To return a verdict, the same group of at least 10 of you must agree on each and every
    answer. You may not have one group of 10 jurors agree on one answer and a different group of
    10 jurors agree on another answer.

           As I have said before, if you do not follow these instructions, you will be guilty of juror
    misconduct, and I might have to order a new trial and start this process over again. This would
    waste your time and the parties' money, and would require the taxpayers of this county to pay for
    another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
    immediately.




                                                    3

    May 14,2014




                                                                        1123
                                       DC        BK14139 PG265




                                  Instructions and Definitions

Assignment. White Lodging Services Corporation, Inc. (White Lodging) assigned the contracts
and causes of action in this lawsuit to the RLJ Plaintiffs in this case. Therefore RLJ "steps into
the shoes" of White Lodging and RLJ and White Lodging should be considered one and the same
for the purposes of answering the questions below.

 "Architectural Contract" means the AlA B141 - 1997 Standard Form of Agreement Between
Owner and Architect entered into between White Lodging Services Corporation, Inc. and Elness
Swenson Graham Architects, Inc. dated January 1, 2005, and all incorporated exhibits and
attachments.




                                                4

May 14,2014




                                                                 1124
                                              DC           BK14139 PG266




                                                   QUESTION 1

       Did ESG fail to comply with the Architectural Contract by failing to coordinate as
required by the contract?

       Answer "Yes" or "No."

       Answer:          NO
                 -----'"--=-----";....__ __




                                                       5

May 14,2014




                                                                           1125
,,
                                           DC           BK14139 PG267




                                                QUESTION2

            Did ESG fail to comply with the Architectural Contract regarding the structural
     engineering services required by the contract?

            Answer "Yes" or "No."

            Answer:   -----,Y~e"'"'S~--




                                                    6

     May 14,2014




                                                                        1126
                                       DC           BK14139 PG268




      If you answered "Yes" to Questions 1 and/or 2, then answer the following question.
Otherwise, do not answer the following question.

                                            QUESTION3

       What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
White Lodging for its damages, if any, that resulted from ESG's failure to comply with the
Architectural Contract that you found in answer to Questions 1 and/or 2?

       In answering questions about damages, answer each question separately. Do not increase
or reduce the amount in one answer because of your answer to any other question about damages.
Do not speculate about what any party's ultimate recovery may or may not be. Any recovery will
be determined by the court when it applies the law to your answers at the time of judgment.

       Consider only the following elements of damages, if any, and none other.          Answer
separately in dollars and cents for damages, if any:

       a)     The difference, if any, between the value ofthe hotel as constructed and the value
              of the hotel had ESG complied with the Architectural Contract. The difference in
              value, ifany, shall be determined as of August 31,2010.

              Answer~ 700./ 000 , 00
       b)     The reasonable and necessary cost, if any, for barrier remediation that you find is
              due to ESG's failure to comply.

              Answer:   .J 7~ ()(7), 00
       c)     The reasonable and necessary cost of repairs to the hotel, if any, made through
              August 31, 2010 that you find is due to ESG's failure to comply.

              Answer:   i j5    1   {)00, a:J




                                                7

May 14,2014




                                                                    1127
'   . .   -,;.
                                                        DC           BK14139 PG269




                        When you go into the jury room to answer the questions, the first thing you will need to do
                 is choose a presiding juror.

                        The presiding juror has these duties:

                        1) preside over your deliberations, meaning manage the discussions, and see that you
                           follow these instructions
                        2) write down the answers you agree on;
                        3) write down and give to the Court Operations Officer any questions you have for the
                             judge without revealing any answers you have agreed on and without revealing any
                             vote(s) taken in the jury room;
                        4) get the signatures for the verdict certificate; and
                        5) notify the Court Operations Officer that you have reached a verdict.


                        Do you understand the duties of the presiding juror? If you do not, please tell me now.

                    Instructions for Deliberating, Reaching a Verdict, & Signing the Verdict Certificate:

                        1) All jurors should participate in the jury's deliberation on every question.
                        2) To return a verdict, the same group of at least 10 ofyou must agree on each and every
                           answer. You may not have one group of 10 jurors agree on one answer and a different
                           group of 10 jurors agree on another answer.
                        3) Only those who agree on each and every answer should sign the verdict. A juror who
                           agrees with the answer to some questions, but not all, should not sign the verdict.


                        Do you understand these instructions? If you do not, please tell me now.




                                                                 8

                 May 14,2014




                                                                                     1128
•
    ' .,   .. -.                                        DC          BK14139 PG270




                                                       Verdict Certificate



                   Those of us who have signed below agree to each and every answer.




                                                                            y Buckley




                   Manlyn R ed-Bridges




                   $1L~
                   William Molloy



                   Cynthia Collier             <=

                                                                                           .-




                                                                9

                   May 14,2014



                                                                                    1129
APPENDIX C
                                                                                    Filed in The District Court
                                                                                     of Travis County, Texas




                                           345TH DISTRICT COURT
STEPHEN YELENOSKY                          TRAVIS COUNTY COURTHOUSE                                  ALBERT ALVAREZ
            Judge                                  P. 0. BOX 1748                                      Official Reporter
       (512) 854-9374                          AUSTIN, TEXAS 78767                                     (512) 854-9373
       (512) 854-4540
                                                                                                       BARIHENSON
       DANA LEWIS                                                                                        Court Clerk
        Staff Attorney                                                                                 (512) 854-5835
       (512) 854-9892

     ANGELA RILEY                                    June 13, 2014
   Court Operations Officer
      (512) 854-9712


        Mr. Benton T. Wheatley                               Mr. Gregory N. Ziegler
        Ms. Tracy McCreight                                  Mr. Matthew Mumm
        Munsch Hardt Kopf & Harr, PC                         Macdonald Devin, PC
        401Congress Avenue, Suite 3050                       3800 Renaissance Tower
        Austin, Texas 78701                                  1201 Elm Street
        VIA FAX: (512) 391-6149                              Dallas, Texas 75270
                                                             VIA FAX: (214) 747-0942


        Re: Cause No. D-1-GN-1 0-002325; RU II-C Austin Air, et al vs. EBCO General Contractor,
        Ltd., et al in the 200th Judicial District Court, Travis County Texas

        Dear Counsel:

               I have sent you more than one letter such as this explaining my reasoning and cautioning
        you concerning the limited import of these letters, so I will not repeat that admonition here.

        The one-satisfaction rule as applied to contracts

               The cases contradict one another, holding the one-satisfaction rule does not apply to
        contracts, it applies to contracts only if two parties 1 breached the same promise, and it applies to
        contract claims regardless of the promises if the breaching parties caused the same injury.

                In CTTI, the earlier of the two pertinent Third Court of Appeals decisions, the Court
        reasoned that because the Supreme Court, in Crown Life, spoke of "tortfeasors" and "joint and
        several liability," the one satisfaction rule does not apply to contracts. However, no contract was
        ultimately at issue in Crown Life; the plaintiffs "sued Casteel and Crown alleging DTP A, Article
        21.21, and common-law causes of action." The same is true of Ellender. In Galle, the Third
        Court revisited the question again citing Crown Life but without referencing CTTI In Galle, the

        1
          The same principles will apply to more than two parties but as shorthand I will use "two" throughout
        this letter, particularly because there are two breaching parties at issue here.




                                                                           1437
D-1-GN-1 0-002325
Page 2 of5

court held that "the rule is not limited to tort claims and applied settlement credits to preclude a
recovery in contract.

        The cases following CIT/, identified by RLJ, are inapposite. Invest/n. com, Moon Sun
Kang, and Karbach each construed but one contract, determined whether certain individuals
were or were not parties to that contract, and say nothing about settlement credits. In a
Memorandum Opinion, the court in LJ Charter recites the same law on one-satisfaction cited by
the Galle court. This includes the principle that the single injury, not the cause of action, is
determinative. However, with respect to the part of the LJ Charter opinion cited, the court does
not seem to apply it. Stating that individuals who are not parties to the contract "could not be
jointly liable for the breach of contract damages," focuses on the cause of action rather than the
injury. If there is one single, indivisible injury caused by two entities - one breaching a common
law duty and one breaching a contract, any award for that injury against one defendant should be
credited against the other. Perhaps the court meant that under the facts of the case the contract
damages were distinct, divisible damages.

        In Ellender, 2 the Texas Supreme Court instructed courts to look to the settlement
agreement exclusively to determine if settlement funds were apportioned between divisible or
indivisible damages and in what amounts. 3

        Here, the settlement agreement merely states what would be true even if unstated -
EBCO's settlement does not release any claims against ESG. To establish that all or some ofthe
settlement funds were apportioned to divisible claims against EBCO, RLJ needed to identify that
category of damages and state the amount apportioned to it. 4 Since RLJ did not do so, the court
is required to presume that the entire settlement amount is credited to ESG.

        The legal justification given for excluding contracts is that no party can be jointly liable
for a breach of a contract that it did not enter. This is true but misses the point by conflating the
breach from which liability arises with the damages arising from each breach. There are two
distinct breaches of two separate contracts by separate parties. Neither party is held liable for the


2
   Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 929 (Tex. 1998)
3
  In Galle, the court stated the expansiveness of the release demonstrated that the settlement funds were
not apportioned between types of damage. Since a paying party will always expect a full release, the
scope of the release, if the determining factor, would always preclude apportionment. In any event, this
part of the Galle opinion is dicta because the court found that the plaintiff had the burden to prove
apportionment and had not done so; the court's ruling was not dependent on what the release said but
what the settlement did not say. In Ellender, the Supreme Court looked for language of apportionment
between types of damage rather than the scope of the release.
4
  Whether RLJ could have, consistent with the pleadings and the evidence, identified divisible damages is
another question. There was evidence of repair costs due to EBCO's failure to build to specifications,
but RLJ may not have presented those as divisible damages in its pleading or evidence. The damage
question in the Charge asked for damages "due to ESG's failure to comply." The question had to ask
specifically about damages resulting from ESG 's failure to inquire about cause-in-fact. That
specification, however, does not mean, without more, that the damages found were divisible and
attributable only to ESG.




                                                                   1438
D-1-GN-1 0-002325
Page 3 of5



other's breach. Each party is liable for its own breach which by itself results in indivisible
damages. Just as with joint tortfeasors who breach different common law duties that each
proximately cause an indivisible damage. (As the Pattern Jury Charge states, there may be more
than one proximate cause of an occurrence.)

        Any perception that applying the one-satisfaction rule here would be unfair may arise
from the fact that RLJ sought more in damages than the jury awarded and received more in
settlement with EBCO alone than the jury awarded in damages. Had there been no settlement,
though, the jury's determination of diminished value would be the amount owed jointly by
EBCO and ESG, even less than what RLJ received in settlement from EBCO. The source of
RLJ's disappointment regarding damages is the jury verdict, not the application of settlement
credits to it.

The one satisfaction rule as applied to attorney's fees

       Regarding ESG' s objection to Plaintiffs Motion for Attorney's fees, the only aspect
before the court now is a pure question of law - when settlement credit equal or exceed the
damages awarded against the non-settling party does it extinguish any claim for attorney's fees?

        Historically, as RLJ has pointed out, the one-satisfaction rule has been discussed in both
cases and commentary almost exclusively in the context of torts, which of course do not involve
attorney's fee claims. The limitation to the full amount of damages, therefore, should be read in
that context and not taken as a deliberate decision to disregard attorney's fees claims. There are
but a few cases addressing the application of the one-satisfaction rule to an attorney's fees claim
associated with a contract claim. Just as with the application to contract damages, the application
to attorney's fees is new and developing. ESG is correct that the net-payment cases do not
address settlement credits for the same claim and damages. However, in the primary authority
relied upon by ESG, Osborne, there was a comparative fault question to which the jury answered
that Jauregi was less than 50% liable. Osborne also involved a procedural background very
different from the one here.

        In neither Osborne nor any other case cited was there a settlement half-way through a jury
trial after years of litigation. The Osborne opinion begins by noting, "[a]fter mold was
discovered in the house, State Farm paid $1,874,687 in mold-related claims. Despite receiving
those payments, the Osbornes sued Jauregi and numerous subcontractors, settling before trial for
more than $1 million." Later in the analysis, the court again observes that the settlement was
pre-trial. Obsborne and Hamra cite and rely upon Blizzard and quote this particular sentence,
"[h]owever, it is quite another to allow attorney's fees on a claim that, although successful, was
paid in full before trial [emphasis added]." By contrast, here, the settlement with EBCO came in
the midst of trial, when RLJ was just days away from a verdict after incurring, it claims,
hundreds of thousands in attorney's fees. ESG's position is effectively that RLJ, after settling
with EBCO, should have abandoned the trial and non-suited ESG, which had conceded nothing
and settled nothing. Or, RLJ should not have settled because they would have been much better




                                                               1439
D-1-GN-1 0-002325
Page 4 of5

off with the very same verdict against both defendants. By such a verdict they would have been
awarded the $700,000 against the defendants jointly, they would have prevailed and RLJ would
have had the potential of a significant award in attorney's fees. If ESG is correct, RLJ has not
prevailed, directly and only, because it reached a settlement with EBCO. This disincentive to
settle is explained more fully below.

       The procedural background aside, there is more than one reason a settlement credit
exceeding damages should not automatically extinguish a claim for attorney's fees.

         First, in contract, a plaintiff with an associated attorney's fees claim is not given one
satisfaction by damages alone. The plaintiff is not made whole or returned to its position before
the breach. Full satisfaction for RLJ would be the jury's verdict on damages, the fact-finder's              }_


Gury or judge by agreement as here) determination of fees shown to be incurred against the
defendants jointly or segregated as to those incurred against ESG alone, less the settlement
amount. The one-satisfaction rule is intended to limit a plaintiff to no more than full redress, not
to restrict the plaintiff to less than that.

        Second, the legislature has provided for the possibility of attorney's fees, even if not
provided in the contract itself, to hold individuals and entities to their agreements. There are of
course several factors to consider in awarding attorney's fees, but the law recognizes that fees
equal to or exceeding damages may be properly awarded. 5 Otherwise, no agreement worth less
than the attorney's fees required to enforce it would ever be enforced. That is the result if fees
can be extinguished, not just reduced, by a verdict that is less than another defendant's settlement
of indivisible damages. A plaintiff who settles with one defendant for the full amount it seeks in
indivisible damages and the full amount of the fees attributable to that defendant (indivisible and
segregated) would be foolish to continue to litigate against a remaining defendant with little or no
divisible damages even if the plaintiff knew liability could be established and had a high
expectation of proving significant fees. The remaining defendant does not receive a mere
windfall but rather a free pass at the expense of contract enforceability.

        Third, the possibility that attorney's fees wi.ll be extinguished by a settlement with one
defendant skews the parties' calculation of probabilities and risks so as to greatly discourage all
parties from settling. Litigants consciously or subconsciously conduct a calculation of the

5
  ESG's case law does not hold otherwise. The Smith v. Tam holding is that the appellate court erred in
reversing a verdict for zero attorney's fees and rendering judgment for attorney's fees (1) as a matter of
law (2) in an amount roughly equivalent to the total damages awarded and (3) equivalent to the full
amount fees sought by plaintiffs (4) even though the plaintiffs were awarded less than a third of the
damages sought, and (5) "in the absence of evidence that such fees were warranted due circumstances
unique to this case." Smith v. Patrick W. Y. Tam Trust, 296 S.W.3d 545, 548 (Tex. 2009). ESG's
description of the holding included none of those four crucial points. Barker is unremarkable; a remand
for redetermination of fees after the appellate court reduced the damages from $111,000 to $16,000. If
the law were, as ESG claims, that a court simply compares the amount awarded to the amount of fees and
make a determination the latter's reasonableness "on its face," surely there would be better authority for
that proposition.




                                                                   1440
D-1-GN-1 0-002325
Page 5 of5



probabilities of gain and loss. Because attorney's fees in a contract case may equal or even
exceed damages, the probability of significant fees cannot be disregarded based on the probable
amount of damages alone. Defendants' calculations of course also entail this understanding.
Because of the probability of an award of some attorney's fees that will not necessarily be
reduced in proportion to the award in damages, the opposing parties' valuations of the case come
closer to converging.

        If, however, the award of attorney's fees becomes a function of receiving damages above
a certain amount, it radically changes the equation all parties have employed to calculate the
probabilities of gain and loss and greatly discourages settlement between the plaintiff and each
defendant. A plaintiff with a large fee claim will hesitate to enter an otherwise reasonable
settlement with one defendant because the entitlement to any fees (not already compensated)
against the remaining, non-settling party, rides on a verdict for damages above the settlement. If
the plaintiff, as here, nonetheless does settle with one defendant, the plaintiff and remaining
defendant lose all incentive to settle. The plaintiff now compares the probability of a larger
verdict with attorney's fees versus the probability of receiving nothing in additional damages
and nothing in fees. The remaining defendant compares the probability of owing a larger verdict
and fees versus the probability of owing nothing. It becomes a crap-shoot in which it would be
only logical for both parties to roll the dice.

       Judgment cannot be entered without a determination of attorney's fees, if any.

                                             Sincerely,



                                    ~----S-tep        n Yelefosky
                                             Judge,   345t~istrict Court




SY/ar
Orig: Amalia Rodriguez Mendoza, District Clerk




                                                               1441
APPENDIX D
Notice sent:    ~ lnierlocutory None                     DC        BK14239 PG58

Oisp Parties:         ~
                                  J..l W1?J
                                   -'0tf
Dlsp code:GG>/ CLS

Redact pgs: _     ___,..-----:=----r-
Judge    s   5AJ          Clerk
                                                 CAUSE NO. D-1-GN-10-002325

                RLJ 11-C AUSTIN AIR, LP; RLJ 11-C AUSTIN            §
                AIR LESSEE, LP; and RLJ LODGING FUND                §
                II ACQUISITIONS, LLC,                               §
                                                                    §
                         Plaintiffs,                                §
                                                                    §
                vs.                                                 §
                                                                    §
                EBCO GENERAL CONTRACTOR, LTD;                       §
                EBCO/W ARRIOR MANAGEMENT LLC;                       §
                ELNESS, SWENSON, GRAHAM                             §             TRAVIS COUNTY, TEXAS
                ARCHITECTS, INC.; MARK SWENSON,                     §
                Individually; TERRACON CONSULTANTS,                 §
                INC.; TODD E. SWOBODA, P.E.,                        §
                Individually; and ALCADIO CHAPA, JR.                §
                formerly D/B/A JR'S CONCRETE                        §
                CONSTRUCTION,                                       §
                                                                    §
                         Defendants and Third-Party Defendants.     §             200TH JUDICIAL DISTRICT

                                                      FINAL JUDGMENT

                         On May 5, 2014, this case was called for trial. Plaintiffs RLJ II-C AUSTIN AIR, LP;

                RLJ II-C AUSTIN AIR LESSEE, LP; and RLJ LODGING FUND II ACQUISITIONS, LLC

                ("Plaintiffs") appeared through a representative and announced ready for trial.        Defendants

                ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. ("ESG") and EBCO GENERAL

                CONTRACTOR, LTD and EBCO/WARRIOR MANAGEMENT LLC (collectively, "EBCO")

                each appeared through a representative and announced ready for trial.
                         Before trial, Plaintiffs asserted claims pursuant to the doctrine of equitable subrogation

                against defendants EBCO, ESG, and Terracon Consultants, Inc. ("Terracon"), which were

                disposed of on partial summary judgment that Plaintiffs take nothing on these claims against

                EBCO, ESG, and Terracon.


                FINAL JUDGMENT                                                                               Page 1
                819658 402.122




                                                                                  1708
                                         DC         BK14239 PG59




         Plaintiffs also asserted claims against defendants MBA Structural Engineers, Inc.

("MBA"), Mark Swenson, and Todd Swoboda, which were disposed of before trial by partial

summary judgment that Plaintiffs take nothing against MBA, Swenson, and Swoboda.

         Before trial, Plaintiffs also non-suited all their claims against the following defendants:

Andrew Marlin, Davinci Pools, LLC ("Davinci"), Bridgeview Plumbing, Inc. ("Bridgeview"),

and Champion Site Prep, LP ("Champion").

         Plaintiffs also asserted claims against EBCO Advanced Building Systems, Ltd. ("EBCO

Systems") , which were disposed of before trial by partial summary judgment that Plaintiffs take

nothing against EBCO Systems.

         EBCO asserted third-party claims against third-party defendants Davinici, Bridgeview,

and Champion, which were disposed of before trial by partial summary judgment that EBCO

take nothing against Davinci, Bridgeview, and Champion.

        Before trial, EBCO also non-suited all its claims against third-party defendants, White
Lodging Services Corporation.

         Before trial, EBCO also non-suited all its claims against third-party defendant Alacadio

Chapa, Jr. formerly d/b/a JR's Concrete Construction.
        EBCO also asserted claims against Andrew Marlin and MBA, which were disposed of

before trial by summary judgment that EBCO take nothing against Marlin and MBA.

         Before trial, ESG non-suited all its claims against third-party defendants Griffin

Engineering and Gregory Griffin.

        ESG also asserted claims against Andrew Marlin and MBA, which were disposed of

before trial by summary judgment that ESG take nothing against Marlin and MBA.


FINAL JUDGMENT                                                                                Page2
819658 402.122




                                                                   1709
                                        DC         BK14239 PG60




         Before trial, the Court dismissed Plaintiffs' claim against Terracon for breach of the

Materials Testing Contract pursuant to Texas Civil Practice & Remedies Code section

150.002(e).

          Before trial, Plaintiffs non-suited all their claims against Terracon and all remaining

claims against Todd Swoboda.

         Before trial, the Court rendered partial summary judgment that Plaintiffs take nothing on

their tort claims against Defendants and thereby rendered moot all defendants' and third-party

defendants' cross-claims for contribution.

         During trial, Plaintiffs voluntarily dismissed all remaining claims that it had against

EBCO pursuant to the agreement of the parties.

         The remaining issues in the case proceeded to trial to the jury.            After a jury was

impaneled and sworn, it heard evidence and arguments of counsel.               In response to the jury

charge, the jury made findings that the Court received,           fil~,   and entered of record.    The
questions submitted to the jury and the jury's findings are   a~~8e8 ~tE~kih~A and incorporated
                                                                          ~
by reference.                                                             ~

         After a post-verdict hearing, the Court granted the motion of ESG for the application of
the one-satisfaction rule to apply the sum of the amount of the settlements between Plaintiffs and

EBCO and Plaintiffs and Terracon as credits ("the Settlement Credit") against the amount

awarded by the jury to Plaintiffs as damages for ESG's failure to comply with the Architectural

Contract. Accordingly, pursuant to the "one-satisfaction rule," the Court applies the Settlement

Credit of$1,170,000 against the sum of the jury award of damages and the attorney's fees award.

         By agreement of the parties, the matter of attorney's fees was submitted to the Court for

determination. After considering the Plaintiffs' Amended Motion for Attorney's Fees and ESG's


FINAL JUDGMENT                                                                                     Page3
819658 402.122




                                                                  1710
                                           DC        BK14239 PG61




Response to Plaintiffs' Amended Motion and the arguments of counsel, the Court overruled

ESG's objections to Plaintiffs' Amended Motion for Attorney's fees and finds that $901,650.96

was a reasonable and necessary attorney's fee for the presentation of Plaintiffs' claims for breach

of contract claim against ESG.

         The Court also considered by submission only the issue of Plaintiffs' entitlement to

attorney's fees despite the application of the Settlement Credit. The Court overruled ESG's

objection to Plaintiffs' entitlement to attorney's fees despite the application of the Settlement

Credit and found that Plaintiffs were entitled to attorney's fees and to present evidence of

attorney's fees.

         The Court hereby RENDERS judgment as follows:

         1.        The Court ORDERS that Plaintiffs collectively recover the following from ESG:

                   a. The amount of$516,650.96, being the sum ofthejury's award of$785,000 as

                      actual damages and the attorney's fee award of $901,650.96, less the
                      Settlements Credit of $1, 170,000;

                   b. Court costs; and

                 c. Post-judgment interest on all of the above at the rate of 5% compounded
                      annually from the date this judgment is signed until all amounts are paid in

                      full.

         2.      The Court further ORDERS that if this judgment is appealed to an intermediate

court of appeal and modified or reversed in favor of Plaintiffs, Plaintiffs will additionally recover

from ESG the amount of $125,000, representing the anticipated reasonably and necessary fees

and expenses that would be incurred by Plaintiffs.


FINAL JUDGMENT                                                                                 Page4
819658 402.122




                                                                    1711
                                         DC         BK14239 PG62




         3.      The Court further ORDERS that if this judgment is appealed to the Texas

Supreme Court and modified or reversed in favor of Plaintiffs, Plaintiffs will additionally recover

from ESG the amount of $50,000, representing the anticipated reasonable and necessary fees and

expenses that would be incurred by Plaintiffs.

        4.       This judgment is intended to be an appealable judgment that fully and finally

disposes of all claims between and among all parties to this proceeding and hereby finally

disposes of all claims and all parties to this proceeding.

         5.      All relief requested by any party to this proceeding not expressly granted in this

judgment is hereby denied. Such denial includes but is not limited to all declaratory relief sought

by ESG pursuant to chapter 37 of the Texas Civil Practice and Remedies Code against Plaintiffs.

         6.      The Court ORDERS execution to issue for this judgment.




FINAL JUDGMENT                                                                               PageS
819658 402.122




                                                                   1712
APPENDIX E
                                                                                                                                       Page 1

·.       ..

        October 30, 2000

        Mr. Scott Casanova                                                                               ENGINEERINO,INC.
        White Lodging Services Corporation·
        1000 East 80u. Place, Suite 500 North
                                                                                                         a(Ji•M"nof   lferracon
        MerriUville. Indiana 46410

        Telephone:                 (219) 769-3267
        Fax:                       (219} 756-5484

        Re:          Proposal for Geotechnical and Environmental Services
                     Marriott Courtyard Hotel
                     Highway 71 at Riverside Drive
                     Austin, Texas
                     HBC Proposal No. 62-6366.00


        Dear Mr. Casanova:

        HBC Engineering, Inc. (HBC) appreciates the opportunity to submit ·this proposal to perform a
        geotechnical engineering study and environmental site assessment (ESA) for the above referenced
        property. This proposal outlines our understanding ofthe scope ofservices to be perfOrmed by HBC
        for this project: and provides an estimate of the cost of our services.


                                                            PROJECf INFORMATION

        Plans are to construct a five-stozy hotel on a site located at the intersection of Highway 71 and •
     -· Riverside Drive in Austin. Texas. We understand that the proposed structure is planne.d to consist
        of metal frame construction with steel studs. Based on discussions with the structural engineer,
        anticipated wall loads for the proposed structure are on the order of 5 to 6 kips per linear foot.
        Adjacent swface parking areas are inso planned, along with a detention pond.


                                                               SCOPE OF SERVICES

        A brief summary of the services to be provided by HBC is presented in the following paragraphs.

        Geotechni~l                Services

       · The geOtechnical study will be performed to develop geotecbuical engineering recommendatiom for
         the project. The project will be performed by a registered professional engineer experienced in
         geotechnical engine_erlng in the Austin area. l
                                                                                                            HBC 00172

         H<>uslm                         o.au..                                    Au<lin                   Wichibs Falls
         II S.'i... Cl>y ltood           8901 Co'P<'OIIY Frwy. '                   391:\ Todd    Lane       3100 Seymour Hwy.
         SuikJCU                         Soit.IOO                                  Suit.;\12:               Sviti: lOS
         HCIU1Il<>n, TX 7704,,           Dalla._ TX 75247                          A...ti~>,TXW44           Wid>itlo Falls. TX 76310
         !Jll) 69(1.11989                (214)63ti>Ull0                            (!>12} 44:Z..ll:l2.      (!144) 766-60!12
         F.•x (71:11 ~<;o.J;7fl7         Fn C2l4!6.'!0-,7070                       ""· (~ll) 442-1 t8l      Pox (94()) 766-60'1.\




                                                                   PLAINTIFF'S
                                                                      EXHIBIT
                                                                        3
                                                                                                              Page 18




    Mr. Soott Casanova
    October 30, 2000
    Page2of6


    Field Program. As requested by the client, a total offour test borings to depths of25 feet are planned
    in the pfoposed building area. In addition; five borings are planned to depths of 5 feet in the
    proposed pavement areas. along with one boring to 10 feet in the proposed detention pond area.

    During drilling, ~ samples will generally be collected utilizing either thin-walled tube samplers
    {shelby tubes) or the Standard Penetmtion Test. Once the samples have been oollected and ofassified
    in the field, they will be properly prepared and placed in appropriate sample containers for transport
    to our laboratory.

     This proposal·assumes that the site can be acce.'lSed with standard truck-mounted drilling equipment
     and does no~ include services associated with site clearing, location ofunderground utilities, or site
     access fur unusually ooft or wet surlkce conditions. Ifsuch conditions are known to exist on the site,
     HBC should be notified so that we may adjust our scope of seiVices, ifnecessary.

    · Labomtotv Testing. The sample ciassifications will be reviewed by a geotecbnica1 engineer in the
•     laboratory, and a laboratory testing program will be assigned which will be specific to the project
      requirements and the subsut:fhee ~ons observed. The testing program could include, but may
      not be limited to, moisturo contents. unit <hy weigbts, Atterberg Limits. compressive strength tests.
      and grain-size analyses. The laboratory testing program will concur with the applicable ASTM
      standard procedures.

    fingigooring Re,port. The results of our field and laboratory programs will be evaluated by a
    registered professional geoteclmicat engineer. Based on the results ofour evamation, an'engineering
    report will be prepared which details the results of the testing perfonned and provides Logs of
    Borings and a project layout. The report will also provide geotecbnical engineering recommendations
    which wiJ1 address the fu1lowing:

            • Site and subgrade preparation;
            • Foundation design and construction;
            • ltetaioing wall design guidelines; and
            • Pavement design guidelines


    Sepamterepo.rts win be provided for the geotecbnical study and theESA. The scope of'theBSAis
    givpn in the fo\lowing section.




                                                                                         I   HBC00173
••
                                                                                                                  Page 17




         Mr. Scott Casanova
         October 30, 2000
         Page3of6


         Environmental Site Assessment {ESA)

         An Environmental Site Assessment (.ESA) will also be performed to gather data and render an opinion
         regarding the absence or presence ofpote.ntial environmental concems assocla:ted with past or current
         practices-on or near the site. The scope of services Is intended to meet American Society for Testing
         and Materials (AS1M) Standard Practices for ESA's (Designation: El527-93). The fuUowiug giveS
         a brief·explanation ofeach Jlll\ior element ofthe ESA.

         .Emtorical R.eyiew. A historical review of the site and BUll'Ounding properties will be conducted to
         evaluate past land use and to identify items of potential environmental concern. The following
         information. where applicable, wt11 be acquired and reviewed:

                •       Chalnoftitl.e;
                •       Readily available aerial photographs;
                ..      City directories;
                •       Sanbom fire insurance maps;
               .•       Interviews with prior landowners or site occupants; and,
                •       Interviews with current  owneror owner's representative.

         Envimnm.Mtal 8ettm.g. United States Geologi<:al Survey topographic quadrangle maps,. geologic
         atlas m.aps. United States Departm.e.nt of .Agrlrulture soil Slll'VeYS. and other avaiJabl.e published
         literature will be revfuwed to evaluate the geologic and hydrogeologic conditious of the site. In
         addition. available published literature will be reviewed to evaluate the potential for elevated radon
         ~nnnlatioo. on the site. The infonnation gathered will be cotre1ated with iield observations and an
         assessment ofthe environmentali sensitivity of1he sitowiD. be provided.

         Site Inspection. HBC peaonnel will conduct a visual site inspection. to dooument the current
         environmental condition of the site. In addition, adjacent properties will be observed from the
         boundaries ofthe site to evaluate potential off-site eDYiromnental concems. HBC's on-site inspection
     -   will include, but not be limited to. a review of the foHowing issues:

                •       Surficial staining and/or distressed vegetation;
                •       Undergroundlabow ground storage tanb (mcJuding sumps);
                •       Dielectric fluid..containing equipment (te.• transfonners);
                •       Solid and/or hazardous waste disposal areas;
                •       Storage ofhazardous substances; and,
                •       Potentialjudsdictional. wetland areas.




                                                                                            · HBC00174
                                                                                                                   ,.
..•
                                                                                                                                                              Page 16


      /'
           ·.

                Mr. Stott Casanova
                October 30, 2000
                Page4of6


                Photographs of these and other potential items of environmental concern will be included in the
                report.

                R.eguJatory Agency Review. Regulatory databases will be reviewed to identifY registered facifities
                on the site or in the site vlcinity which may present an enviromnental concern to the site. The
                following is a list of regulatory databases that will be reviewed:




                       Env.iromnental Protection Agency (EPA) Nati.oo.al Priorities List (NPL)                                                  1 mile
                       EPA Open Dump Inventory                                                                                                  1 mile
                       EPA Cotnprehensive Bnvironmental Response. Compensation, and
                       Liability Infbnnation System (CERCUS)                                                                                   ~ .ttlile
                       EPA Resource Conservation and Recovety Act (R.CRA)                                                                      %mile
                       EPA Bmelgency Response Notification System (ERNS)                                                                       oam{tl!j.
                        State~                                                                                                                 1 mile
                        State Sofid Waste Management
                        State~ Petroleum Storage Tank (LPST)
                                                                                                                                                *mlle
                                                                                                                                                ~mile
                        State Petroleum Storage Tank (PST)                                                                                     ~mile
                       State Reported Spills                                                                                                   ooiWadj.
                       Local Regulatoxy Agencies                                                                                               as
                       appJicable

                Preparation ofFmal ~rut. Upon completion of the site iuspection and collection ofhistotical and
                regulatory information, a. final report will be prepared which documents potential ateaS of
                 environmental conceni. ifpreseot. Conclusions ami recommendations with regard to HBC's findings
                will be provided. Ifaddi1ioDa1 fD.vestigation is recommended. appropriate justification will accompany
                the specitl.G recommendation, and BBC personnel w1ll oouta~ the dient r~a1ive prior to
                issuance ofthe final report.       .                               .




                The basis for bimng is as follows:

                       <Jeoteclmical Study ........_., ___ ,.......... ~ ............................................................... $3,350
                       Phase I BSA .................................. ~ .... - ...................................: .....:..................... $2,000
                                                                                                                                                •
                       Total. ...................................................................................................................... $5,350



                                                                                                                                   'HBC00175
                                                                                                                    Page 15

·.

     Mr. Scott Casanova
     October 30. 2000
     PageS of6


     The above costs are b!lOOd on the scope of services presented in this proposal We will not exceed
     the above costs without your prior approval
                                                               .
     The costs above include one historical title search. Jfmore than one search is necessaxy, additional
     :tees ma.y apply. In this case the cHent will be contacted prior to_initi.ati1.1g additional title searches.
                                                                                    '
     ~ as a result ofthese ~ unanticipated geotechnical conditions or env.ironmental concerns are
     identified, additional work may be necessary. Detailed workplans and cost estimates for additional
     work will be provided upon request, and client approval Win be obtained prior to commencement of
     any additional work outside tho scope ofthis proposal


                                                   SCHEDULE

     We can initiate our geoteclmical field operations within three to six working days following
     authomati.on to proceed. ifsite access and weather conditions will permit We anticipate completion.
     of our services and sabmittal ofour geotechnical report within three weeks of.initia.Uon of oudietd
     services. In situations where infurmation is needed prior to submittal of our report. we can provide
     verbal infom:tation or recommendations for specific J)roject requirements directly after we have
     completed our field and laboratocy programs.             ·

     The ESA report wlll be delivered 'Within two to three weeks of110ti:fication to proceed. assuming site
     access can be obtained within five days. Ifa more rapid 1Umaround is requit~ please contact me
     so that we Cllil discuss alternatives to perform the project on an acce1.emtOO basis.

     In order to COlllply witlt the proposed schedule, the foUowiog is required at tho time of~on
     to proceed:

             •       An. accurate legal description preferably including metes and bounds;
             •       Name ofthe current title holder;
             •                  or
                     Site plan drawlng illustrating the site boundaries and lm\ior features;
             •       A fully executed agreement (attaahed); and.
             •       A conta(;t name for site access (access available during D01'1Wil business hours).


                                                  AGREEMENT

     This proposal may be accepted by executing the attached .Agreement for Environmental Consulting
     Services and returning the executed copy to HBC. The Proposal for Services and accompanying
     1imita1ions shall oonstitute the exclusive services to b& performed for this project.

     ~


                                                                                             ; HBC 00176             i
                                                                                             '-------·1
                                                                                                        Page 14 ·



                                                                                        I-OC
Mr. scott casanova
October 30. 2000
Page6of6



We appreciate the opportunity to provide this proposal and look rorward to working with you on this
project. Ifyou should have at1!J questions or comments regarding this proposal. please give me a eal1

S'mcerety.
IIBC ENGJNEElUNG, lNC.


c=?~~s~
Todd B. Swoboda, P,E.                .
Project Manager .

Attacbinents:   ~ :fbr EnviJ:o.llnlental Consulting Service$




                                                                                    ; HBC 00177
APPENDIX F
                     ~?it
                              ·'!''!

                     ...•
     ~'\;~:~~:. ·' .~ ·~ ~~
                                                                                                      ECIEHIED
           Standard Form ofAgreement Between Owner·and General                       Co~ttractor
                                                                                                     JAN 2 3 2006
           AGREEMENT made as of the 17th day of August, 2005.

            BETWEEN the Owner:                         White Lodging Services
           And the General Contractor:                 EBCO GENERAL CONTRACTOR LTD

           The Project is:                             Austin Airport Courtyard by Man·iott
                                                                                                                         ::



           The Architect is:                        ... ellness,   swenson, graham architects, inc


           The Owner and the General Contractor agree as set forth below.




            TABlE OF CONTENTS:

            ARTICLE 1 GENERAL PROVISION
            1.1   Relationship of Parties
            1.2             General Conditions

            ARTICLE 2 CONSTRUCITON MANAGER'S RESPO]':JSIBU.ITIES
            2.1   Preconstruction Phase
            2;2   Guaranteed Maximum Price Proposal and Contract
             2.3            Construction Phase
            .2.4            Professional Services
            2.5             Unsaf~.: Materials


            ARTICLE 3 OWNER'S RESPONSID1L1TlES
            3.1               Information and Services
            3.2               Owner's Designated Representative
            3.3               Architect
            3.4               Legal Requirements

            ARTICLE 4 COMPENSATION AND PAYMENTS FORPRE-CONSillUCTION PRASE SERVICES
            4.1               Compensation


j
·I
 I
             4.2



             5.2
                              Payments

             ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES
             5.1              Compensation          .
                              Guaranteed Maximum Price
:~
             5.3              Changes in theW qrk
j
ll           ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE
             6.1          Costs To Be Reimbursed                              ·
1            6.2         ·Costs Not To Be Reimbursed
 \           6.3          Discounts, Rebates and Refunds
             6.4          Accounting Records
                                                                          PLAINTIFF'S
             ARTICLE 7 CONSTRUCTION PHASE
             7.1              Progress Payments


                                                                                                           EBCO 002801
                                                                             .::•,.,; ' ~ ,',,,:.: :':::' .:·.:~ •;; .~.' • <·~ .:··w.:.:.::.~.~:.:,·; -: •
                                                                                                                                                          ,f, :.::   r.t:.:.:·:':·~:=:.: -:'.: ,._,, ,' •:~·.~'/ ~.:.:.-~=-l~;,;.~'•,:; ....;.:;;.~; ·.-..~:   :·::·..:._:   -~~;
                                                                                                                                                                                                                                                                             :;:-:




             7.2        Final Payment

             ARTCILE .8 Redacted
             Redacted                                                                                                                                                                                                                                                        }:




             ARTICLE 9 MISCELLANEOUS PROVISIONS
             9.1   Dispute Resolution for the Preconstruction Phase                                                                                                                                                                                                           k..
             9.2   Dispute Resolution for the Construction Phase                                                                                                                                                                                                              ,.
             9.3   Other Provisions

             ARTICLE 10 TERMINATIONS OR SUSPENSION
             10.1       Termination Prior to Establishing Guaranteed Maximum Price
             10.2       .Termination Subsequent to Establishing Guaranteed Maximum Price
             10.3       Suspension

             ARTCILE 11 OTHER CONIDTIONS AND SERVICES

             Attachment Number 1:        Amendment to Standard Form of Agreement between Owner and Construction Manager which
                                         establishes a Guaranteed Maximum Price.
             Attachment Number 2:        Amendment to Standard Form of Agreement between Owner and Construction Manager which
                                         makes certain revisions to Articles 1 through Article 10.




[


I
I
\
    '
·.j
    ;
~!




    ·:.i
    :.j
        .,
         ;




                                                                                                                                                                                                              EBCO 002802
                                                                                                                                            ·... ··.-.:·.




         ARTICLEl
         GENERAL PROVISIONS

         1.1      RELATIONSIDP OF PARTIES

                  The Construction Manager accepts the fiduciary relationship of trust and confidence hereby established with the
                  Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager's best skill and
                  judgment and to cooperate with the Architect in furthering the interests of the Owner. The Construction Manager
                  shall furnish efficient construction manager best efforts to perform the Project in an expeditious and economical
                  manner consistent with the interests ofthe Owner.

         1.2      GENERAL AND SUPPLEMENTAL CONDTJONS

                  For the Construction Phase (a) the General Conditions of the Contract shall be the General Conditions, as modified,
                  General Conditions of the Contract for Construction, which is incorporated herein by reference, and (b) the
                  Supplemental Conditions shall be those attached hereto as Attachment A which is also incorporated herein by
                  reference. For the Preconstruction Phase, or in the event that the Preconstruction and Construction Phases proceed
                  concurrently, General Conditions, as modified, shall apply to the ·Precol}struction Phase only as specifically provided
                  in this Agreement. The term "Contractor" as used in the General Conditions, as modified, shall mean the
                  Construction Manager.


         ARTICLE 2
         CONSTRUCTION MANAGER'S RESPONSIBILITIES

         The Construction Manager shall perform the services and responsibilities described in this Agreement including those
         documents incorporated herein and/or made a part hereof. The services to be provided under Paragraphs 2.1 and 2.2 constitute
         the PreconstrUction Phase services. lf the Owner and the Construction Manager agree in writing after consultation with the
         Architect, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases


!I       shall pro~eed concurrently.

         2.1      PRECONSTRUCTION PHASE

r
.j
         2.1.1    PRELIMINARYEVALUATION

j'                The Construction Manager shall provide a preliminary evaluation of the Owner's program and Project budget
l.                requirements, each in terms of the other.
.:

         2.1.2    CONSULTATION
     '
.!                The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the Owner. The
                  Construction Manager shall consult with the Owner and the Architect regarding site use aild improvements and the
                  selection of materials, building systems and equipment. The Construction Manager shall provide recommendations
                  on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time
                  requirements for procurement, installation and construction cm:npletion; and factors related to construction cost
                  i.rtcluding estimates of alternative designs or· materials, preliminary budgets and possible economics. The
                  Construction Manager shall use its best efforts throughout the Preconstruction Phase and shall diligently attempt to
                  include in all bid packages detailed itemization of required items of work, thereby avoiding allowance items therein.

          2.1.3    PRELIMINARY PROJECT SCHEDULE

                   When Project requirements described in Subparagraph 3.1.1 pave been sufficiently identified, the Construction
                   Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the
                   Owner's approval. The Construction Manager shall obtain the Architect's review and ~he Owner's approval of the
                   portions of the preliminary Project schedule relating to the performance of the Architect's and the Owner's services
                   and activities respectively. The Construction Manager shall coordinate and integr&te the preliminary Project schedule
    .l
                   with the services and activities of the Owner, the Architect and the Con·structi.on Manager. As design proceeds, the
                   preliminary Project schedule shall be updated to in<licate proposed activity sequences and durations, milestone dates


                                                                                                                              EBCO 002803
                                                                                        ..... -..· ..   ~-~-- -~---   ~-~·--····-   ..... .   ~   .. :.... ~·..tS .. _. . .... ..:: .. :: ..•• !   .:   i.-:..·:-. ~ • ~_.:


                                                                                                                                                                                                                      i:·




          for receipt and approval of pertinent infonnation, submittal of a Guaranteed Maximum Price proposal, preparation and
          processing of'shop dramngs and samples, delivery of materials or equipment requiring long-lead time procurements,
          the Owner having occupancy priority, and proposed date of Substantial Completion. If preliminary Project schedule
          updates indicate that previously approved schedules may not be met, the Construction Manager shall make
          appropriate recommendations to the Owner and Architect to recover the lost time to the extent practicable.

2.1.4     RESERVED

2.1.5     PRELIMINARY COST ESTIMATES

2.1.5.1   When the Owner has sufficiently identified the Project requirements and the Architect has prepared other basic design
          criteria, the Construction Manager shall prepare, for the review of the Architect and approval of the OWr!er, a
          preliminary cost estimate for the Work utilizing area, volume or similar conceptual estimating techniques.

2.1.5.2 When Schematic Design Documents have been prepared by the Architect and approved by the Owner, the
        Construction Manager shall prepare for th.e review of the Architect and approval of the Owner, a more detailed
        estimate of costs with supporting data. During the predation of the Design Development Documents, the Construction
        Manager shall update and refine the cost estimates at appropriate intervals agreed to by the Owner, Architect and the
        Construction Manager.

2.1.5.3 When Design Development Documents have been prepared by the Architect and approved by the Owner, ·the
        Construction· Manager shall prepare a detailed cost estimate with supporting data for review by the Architect and
        approval by the OWner. During the preparation of the Construction Documents, the Construction Manager shall
        update and refme the cost estimates at appropriate intervals agreed to by the Owner, the Architect and the
        Construction Manager.

2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the
        Construction Manager shall make recommendations to the Owner and the Architect.            -r- ·
                                                                                                                                    ,-
2.1.6     SUBCONTRACTORS AND SUPPLIERS

          The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner
          and the Architect for their information a Jist of possible subcontractors, including suppliers who might furnish
          materials or equipment fabricated to a special design, from who proposals will be requested for any principal portion
          of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect knows or tlie
          Owner notifies the Architect of any objection to such subcontractor or supplier. The receipt of such list shall not
          requ~e the Owner or the Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it
          waive the right of the Owner or the Architect later to object to or reject any proposed subcontractor or supplier.

 2.1.7     LONG-LEAD TIME ITEMS

           The Construction Manager shall recommend to the Owner and the Architect a schedule for procurement oflong-lead
           time items which mil constitute part of the Work as required to meet the Project schedule. If such long-lead time
           items are procured by the Owner, they shall be procured on terms and conditions acceptable. to the Construction
           Manager. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all
           contracts and/or purchase orders for such items shall be assigned by the Owner to the Construction Manager, who
           shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager
           shall expedite the delivery of long-lead time items in a manner consistent with the Project schedule:

 2.1.8     EXTENT OF RESPONSIBILITY

           The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of
           the· Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design
           alternatives shall be subject to the review and approval of the Owner and the Owner's professional consultants. If the
           Construction Manager recognizes that portions of the Drawings and Specifications are at variance with applicable
           laws, statutes, ordinances, building codes, rules or regulations, construction best practices, the Construction Manager
           shall promptly notify the Architect and the Owner in writing.



                                                                                                                                                      EBCO 002804
                         .. :.·:-·     ........... ··-···· ..                                                         .   ~:.   .• :..   ~- -~··<'~~-·~ . ...:.;. ::••.•: ••.. ~.·-··.·-:.·.   ""<··-::




                   The Construction Manager shall, prior to commencing any related construction or ordering long-lead time
                   procurement items; study the related Construction Documents in detail for accuracy, completeness and coordination
                   with other requisite Construction Documents and shall promptly notify the Architect and the Owner in writing of nny
                   discrepancies contained therein. The Construction Manager shall not proceed to commence related construction or
                   ordering long-lead time procurement items until any such discrepancies are rectified except at its own sole risk. The
                   Owner shall have no liability to the Construction Manager for damage occurring to or sustained by the Construction
                   Manager as a result of the Construction Manager's earlier commencement or such ordering. In no event shall the
                   Owner be liable to the Construction Manager for breach of warranty, express or implied, or otherwise, for errors,
                   omissions, inadequacies or lack of coordination of the Construction Documents.

          2.1.9    EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION

                   The Conslruction Manager shall comply With applicable laws, regulations and any special requirements of the
                   Contract Documents regarding equal employment opportunity and affumative action programs.

          2.2      GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME

          2.2.1    When the .Drawings and Specifications are sufficiently complete, the Construction Manager shall: propose a
                   Guaranteed Maximum Price, which shall be the sum of the estimated Cost of the Work and the Construction
                   Manager's Fee.

          2.2.2    As the Drawings and Specifications may not be finished at the time the Guaranteed Maximum Price proposal is
                   prepared, the Construction Manager shaii provide in the Guaranteed Maximum Price proposal for further development
                   ofthe Drawing and Specifications by the Architect that is consistent with the Contract Documents and reasonably
                   inferable there from. Such further development does not include such things as changes in scope, systems, kinds and
                   quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order.

          2.2.3    The estimated Cost of the Work shall include a contingency for the Construction Manager's exclusive use to cover
                   costs arising under Subparagraph 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not
                   the basis for a Change Order. However, no expenditures in excess of the ten thousand dollars ($10,000) shall be made
                   out of the contingency without the Owner's written approval which written approval shall not be unreasonably
}                  withheld. The Construction Manager shall receive no Fee resulting from the use of the contingency without the
!                  Owner's written approvaL
1
'i        2.2.4    BASIS OF GUARANTEED MAXIMUM PRICE
    i
                   TI1e Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis,
    \.,            which shall include:
    j
                   .1     A Jist of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract,
                   which were used in preparation of the Guaranteed Maximum Price proposal.

                    .2               A Jist of allowances, if any, and a statement of their basis .

                    .3      A list of the clarifications and assumptions, if any, made by the.Construction Manager in the preparation of
                    the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications .

                    .4       The proposed Guaranteed Maximum Price, including a statement of the estimated costs organized by trade
                    categories, allowances, contingency, and other items and the fee which comprise the Guaranteed Maximum Price.

                    .5      The date of Substantial Completion upon which the proposed Guaranteed Maximum Price iJ; based, and a
                    schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based.

                    .6               The date upon which the proposal shall expire.

           2.2.5    The Construction Manager shall meet with the Owner and the Architect to review the Guaranteed Maximum Price
                    proposal and the written statement of its basis. In the event that the Owner or the Architect discovers any
                    inconsistencies or inaccuracies in the information presented, it shall promptly notify the Construction Manager, who



                                                                                                                                          EBCO 002805
                     ···------ . -- · - - - - -                                                           ---···                       .   .,,,   ________ _
                                                                                     ....:......-.. ;.. -·:.:   ·.·::;,=·~   ..;~:~. . ;, . . _.,_:.:. .. ~:-·.   ·------~--




         shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis or both.

2.2.6    'l)nless the Owner accepts the Guaranteed Maximum Price proposal in writing on or before the exp~ation date
         specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum
         Price proposal shall not be effective without written acceptance by the Construction Manager.

2.2.7    Prior to the Owner's acceptance of t.he Construction Manager's Guaranteed Maximum Price proposal and issuance of
         a Notice to Proceed, 1:he Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the
         Work, except as the Owner may specifically a1,1tbori.ze in writing.

2.2.8    Upon acceptance by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its
         basis shall be set for1:h in Amendment No. 1. The Guaranteed Maximum Price shall be subject to add,itions and
         deductions by a change in the Work as provided in the Contract Documents and the date of Substantial Completion
         shall be subject to· adjustment as provided in the Contract Documents. In the event and to the extent that the
         Guaranteed Maximum Price is agreed upon. prior to all subcontracts being executed, any reduction in the total amolUit
         payable to Subcontractors :(rom the amount set forth in the Construction Manager's written statement of the basis of
         the Guaranteed Maximum Price .for subcontractors shall cause the Guaranteed Maximum Price to be reduced by like
         amount.
                                                                                                                                                                               ,.'·
2.2.9    The Owner shall authorize and cause the AJchltect to revise the Drawings and Specifications to the extent necessary to
         reflect any agreed-upon assumptions and clarifications contained in Amendment No. 1. Such revised Drawings and
         Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner,
         the Architect and the Construction Manager. The Construction Manager shall promptly notify the Architect and the
         Owner if such revised Drawings and Specifications are inconsistent with the agreed-upon assumptions and
         clarifications.

2.2.10   The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes wlrich are enacted at the time
         the Guaranteed Maximum Price is established.

2.3      CONSTRUCTION PHASE

2.3.1    GENERAL

2.3.1.1 The Construction Phase shall commence oo the earlier of:
        (1)    The Owner's acceptance of the Construction Manager's Guaranteed
               Maximum Price proposal and issuance of a Notice to Proceed, or
        (2)    The Owner's frrst writteo authorization to the Construction Manager to:
                         (a)     Award a subcontract, or
                         {b)     Undertake construction Work with the Construction Manager's own forces, or
                         (c)     lssue a purchase order for materials or equipment required for the Work.

 2.3.2    ADMINISTRATION

 2.3.2.1 The Construction Manager shall not' self-perform any portion of the Work without the Owner's prior written consent.
         The Work shall be performed under subcontracts or by other appropriate agreements with the Construction Manager.
         The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment
         fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall
         deliver such bids to the .Owner and the Architect. The Owner shall then determine, with 'the advice of the
         Construction Manager, which bids will be accepted. The Owner may designate specific persons or entities from
         whom the Construction Manager shall obtain bids; however, if the Guaranteed Maximum Price has been established,
         the Owner may not prolu'bit the Construction Manager from obtaining bids from other qualified bidders. The
         Construction Manager. shall not be required to contract with anyone ·to whom the Construction· Manager has
         reasonable objection.

 2.3.2.2 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered by
         the Construction Manager to the Owner and the Archltect (l) is recommended in writing to the Owner by the
         Construction Manager; (2) is qualified to perform that portion of the Work; (3) bas submitted a bid which conforms
         to the requirements of. the Contract Documents without reservations or exceptions, but the Owner requires that another


                                                                                                                                                   EBCO 002806
        bid be accepted, then the Construction Manager may require fual a Change Order be issued to adjust fue Guaranteed
        Maximum Price by the difference between the bid of the person or entity recommended to the Owner by the
        Construction Manager and the amo\Ult of the subcontract or other agreement actually signed with the bidder
        designated by the Owner.

2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall
        conform to the applicable payment provisions of this Agreement, and shall not be awarded on fuc basis of cost plus a
        fee without the prior written consent of the Owner.

2.3.2.4 The Construction Manager shall schedule and conduct meetings at which the Owner, the Architect, the Construction
        Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepa;e
        and promptly distribute accurate meeting minutes to all attendees.

2.3.2.5 Promptly after the Owner's acceptance of fue Guaranteed Maximum Price proposal, the Construction Manager shall.
        prepare a schedule in.accordance with Paragraph 3.10 of General Conditions, as modified, and the Owner's qccupancy
        requirements.

2.3.2.6 As a condition precedent to the Owner's obligation t~ make progress payments, (1) the Construction Manager shall
        provide monthly written reports to the Owner and the Architect on the progress of the entire Work and shall include
        with each report not less than three (3) digital photographs depicting the progress of the Work, and (2) the
        Construction Manager shall prepare and submit updates to the Construction Schedule The Construction Manager
        shall maintain a daily log containing a record of weather at the site, Subcontractors working on the site, number of
        workers on fue site, the Work accomplished, problems encountered and other similar relevant data as the Owner may
        reasonably require or request. The log shall be available to the Owner and fue Architect at ali times.

2.3.2. 7 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual
         costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager
         shall identify variances between actual and estimated costs and report the variances to the Owner and the Architect at
         regular intervals, and no less frequently than monthly.

2.4      PROFESSIONAL SERVICES

         The Construction Manager shall not be required to· provide professional services which constitute the practice of
         architecture or engineering, unless: such services are· specifically required by the Contrac::t Documents for a portion of
         the Work or unless the Construction Manager bas specifically agreed in writing to provide such services. In .such
         event, the Construction Manager shall cause such services to be performed by appropria !ely licensed professionals.

2.5      UNSAFE MATERIALS

         If the Construction Manager reasonably believes, is notified of or encounters on or about the Site, the presence of
         asbestos, PCB or any other tox.ic or hazardous material, the Construction Manager shall:

         2.5.1     Immediately stop the Work in the affected area while proceeding with Work in all lmaffected areas and taking
         all available steps to avoid or minimize any adverse impact on fue Schedule, Budget and/or Program.

         2.5.2      Give the Owner and the Architect immediate verbal and written notice that the Work has been stopped,
         including a detailed description of the area or areas of the Site affected, and recommend appropriate action to remedy
         the situation.

         2.5.3    To the extent the Program, Budget and/or Schedule is affected, proceed in accordance with the provisions of
         this Agreement to take appropriate action, ·and if proper, request equitable adjustment thereto.

         2.5.4        Limitations on Construction Manager's Responsibilities. This Agreement does not require the
         Construction Manager to perform and the Construction Manager shall not perform services directly involved in the
         handling, abatement, replacement or removal of products or processes involving asbestos, PCB or any other toxic or
         hazardous material. If such products or materials are present and requite abatement, the Owner shall retain and pay for
         specialists who shall specify, supervise and perform the abatement, replacement or removal procedures.



                                                                                                                        EBCO 002807
                                                                                                                                             .•... __., .......   .




                                                                                                                                                                      r;.":
                                                                                                                                                                      :.:-
                   2.5.5     .Scheduling of Abatement Procedures and Other Work on the Project. The Construction Manager's sole
                   responsibility with respect to abatement activities sha11 be to make recommendations and schedule the work of the
                   abatement specialist(s) with respect to the Project and/or abatement activities and, unless otherwise prolubited by Jaw,
                   schedule and maintain progress of other Work on the Site where such Work is not prevented or hampered by the
                   abatement, replacement or removal procedures. The Construction Manager shall require all Subcontractors involved
                   with the Project to comply with all applicable laws relating to hazardous materials or known hazardous waste and all
                   restrictions applicable to the areas unaergoing abatement.

                   2.5.6 Indemnification. To the extent pennitted by law, the Owner agrees to defend, indemnify and hold harmless the
                   Construction Manager from all claims, lawsuits, expenses or damages arising from or related to the exposure,
                   handling, use, treatment, purchase, sale, storage, or disposal of asbestos, asbestos products or any toxic or hazardous
                   materials, in any of its various fom1S as defined by the EPA, unless the Construction Manager is responsible for or
                   knew of or suspected the existence of hazardous substances and failed to comply with paragraphs 2.5.1 and/or 2.5.2.
                   Unless claims or lawsuits are caused by the negligent acts of th·e Construction Manager and/or a Subcontractor, in
                   which event the Owner's indemnity shall not apply, the Owner's obligation· to defend, indemnify and hold harmless
                   the Construction Manager shall survive the completion of the Project

                   2.5. 7     Extension of Time. If the Construction Manager is delayed by the abatement or removal of any
                   hazardous waste or materials through no fault or negligence on the part of the Construction Manager or its
                   Subcontractors, the Owner agrees that the time for completion of the Work shall be extended for a period equid to
                   the reasonably estimated period of delay, as determined by agreement between the Construction Manager and the
                   Owner. The Construction Manager shall utilize best efforts to mitigate delays and make up time lost created by the
                   delay. Jf acceleration of construction activity or activities is the selected remedy to make up lost time created by
                   the delay, and is approved in writing by the Owner, the Owner will be responsible for fair and equitable
                   compensation for the acceleration of construction activity or activities.

         ARTICLE3
         OWNER'S RESPONSIBILITIES

         3.1       INFORMATlON AND SERVICES

         3.1.1     The Owner shall provide full information in a timely manner regarding the requirements of the Project, including a
                   program which sets forth the Owner's objectives, Constraints and criteria, i)lcluding space requirements and
                   relationships, flexibility and expandability requirements, special equipment and systems, and site requirements.

         3.1.2     The Owner, .upon written request from the Construction Manager, shall furnish evidence of Project fmancing prior to
                   the start of the Construction Phase. Furnishing of such requested evidence shall be a condition precedent to
                   cormnencement of the Work.

         3. 1.3     The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction
                    Manager and the Architect, which may include contingencies for change in the Work and other costs which are the
                    responsibility of the Owner,
 j
 ~       3.1.4      STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS
 l                  ln the Preconstruction Phase, the Owner shaH furnish the following with reasonable promptness and at the Owner's
i
i't
                    expense, and the Construction Manager shall be ent~tled to rely upon the accuracy of any such information, reports,
                    surveys, drawings and tests described in Clauses 3.1.4.1 through 3.1.4.4, except to the extent that the Construction
 1
:{                  Manager knows or has reason to know of any inaccuracy:

         3.1.4.1    Reports, surveys, drawings and tests concerning the conditions ofthe site which are required by law.
1
·I
     I
         3.1.4.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a
  1.
  .  ,           written legal description ofthe site. The surveys and legal information shall include, as applicable: graaes and lines of
  -!             streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way,· restrictions,
. j              easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and
                 necessary data pertaining to existing buildings, other improvements and trees; and information concerning available
                 utility services and lines, both public and private, above and below grade, including· inverts and depths. All


                                                                                                                                 EBCO 002808
~..:~~:.':   ... <·• __:.........              . ..   ,;:   ..   ·. ;, .:.'.:.:': ........ ·   .:..:.:.:.:...~. : : -   - :.··:_ .   . '·   ..   :~ •. ~   '   .




                                    information on the survey shall be referenced to a project benchmark.

                    3.1.4.3 The services of geotechnical engineers when such services are reasonably requested by the Construction Manager.
                            Such services may include but are not limited tb test borings, test pits, determinations of soil bearing values,
                            percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary
                            operations for anticipating subsoil conditions, with reports and appropriate professional recommendations.

                    3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and
                            environmental tests, inspections and reports which are required by law.

                    3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Project and are
                            requested by the Construction Manager.

                    3.2             OWNER'S DESIGNATED REPRESENTATIVE

                                    The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect
                                    to all matters requiring the Owner's approval or authorization. This representative shall have the authority to make
                                    decisions on behalf of the Owner concerning estimates and schedules, construction budgets, and changes in the Work,
                                    and shall render such decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in
                                    the ~ervices or Work of tbe Construction Manager.
I
i
I                   3.3             ARCHITECT
I                                   The Owner shall retain an Architect to provide the services, including normal structura~ mechanical and electrical
i
                                    engineering services, other than cost estimating services, described in the edition of AlA Document B41-1997, as
                                    modified. The Owner shall authorize and cause the Architect to provide other services reasonably requested by the
t                                   Construction Manager, in writing, necessary for the Preconstruction and Construction Phase of the Work. Such

!                                   services shall be provided in accordance ·with time schedules agreed to by the Owner, the Architect and the
                                    Construction Manager. Upon request of the ConstrUction Manager, the Owner shall furnish to the Construction
                                    Manager a copy of the Owner's Agreement with the Architect, from which compensation provisions may be deleted.


I
t
'j
                     3.4            LEGAL REQUIREMENTS

                                    The Owner shall determine and advise the Architect and the Construction Manager of any special legal requirements
l                                   relating specifically to the Project which differ from those generally applicable to construction in the jurisdiction of
1                                   the ·project. The Owner shall furnish such legal services as are reasonably necessary to provide the information and
                                    services required under Paragraph 3 .1.
    \
    1
    i                ARTICLE4
                     COMJ>ENSATION AND PAYMENTS FOR PRECONSTRUCTION
                     PHASE SERVICES

                      The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows:

                      4.1            COMPENSATION

                      4.1.1    For the services described in Paragraphs 2.1 and 2.2 the Construction Manager's compensation shall be calculated as
                      follows:

                      4 .1.2    Compensation for Preconstruction Phase services shall be equitably adjusted if the originally contemplated scope of
                      services is significantly increased.

                       4.1.3         RESERVED.

                       4.2           PAYMENTS

                       4 .2.1        Payments shall be made monthly within thirty days following presentation of the Construction Manager's appropriate
                                     invoice and, where applicable, shall be in proportion to services properly performed.


                                                                                                                                                                   EBCO 002809
    ---------        - ···--------------
                                                                     __ _________
                                                                           ..




    4.2.2    Amounts unpaid after the date on which payment is due shall bear interest at the i:ate of 6% per annum or if lower at
             the legal rate prevailing from time to time at the place where the Project is located.

    ARTICLE 5
    COMPENSATION FOR CONSTRUCTION PHASE SERVICES

    5.1      COMPENSATION

    5.1.1    For the Construction Manager's performance of the Work, the Owner shall pay the Construction Manager, subject to
             the Guaranteed Maximum Price as provided in Paragraph 5.2, the Contract Sum consisting of the Cost of the Work as
             de:fmed in Article 6 and the Construction Manager's Fee detennined as follows:



    5.2      GUARANTEED MAXlMUM PRICE

    5.2.1    The Sum of the Cost of the Work and the Construction Manager's Fee are guaranteed by the Construction Manager
             not to exceed the amount provided in Amendment No. 1, subject to additions and deductions by changes in the Work
             as provided in the Contract Documents. Such maximum sum is referred to in the Contract Documents as the
             "Guaranteed Maximum Price". Costs which would cause the Guaranteed Maximum Price to be exceeded shall be
             paid by the Construction Manager without reimbursement by the Owner. Any savings realized below the Guaranteed
             Maximum Price shall accrue to Owner. Notwithstanding the provisions of the paragraph, the Construction Manager
             shall not be eligible for any bonus if it has defaulted in its performance under or with respect to this Agreement and no
             bonus will be due until such time as the Construction Manager has fully and completed performed its obligations
             under or with respect to this Agreement and the Construction Documents.


    5.3      CHANGES IN THE WORK

    5.;3.1   The Construction Manager shall receive no fee for any Changes in the Work.

    5.3.2    In calculating adjustments to subcontracts (except those awarded with the Owner's prior written consent on the basis
             of cost plus a fee), the tenns "cost" and "fee" as used in Clause 7.3.3.3 of the General Conditions and the tenns
             "costs" and· "a reasonable allowance for overhead and profit" as used in Subparagraph 7.3.6 of the General
             Conditions shall have the. meanings assigned in that document and shall not be modified by this Article 5.
             Adjustments to subcontracts awarded with the Owner's prior written consent on the basis of cost pius a fee shall be
             calculated in accordance with the terms of those subcontracts.

     5.3.3    In calculating adjustments to the Guaranteed Maximum Price, the tenns "cost" and "costs" as used in the above-
              referenced provisions of the General Conditions shall mean the Cost of the Work as defmed in Article 6 of this
              Agreement and the terms "and a reasonable allowance for overhead and profit" shall mean the Construction
i
              Manager's Fee as defmed in Subparagraph 5.1.1 of this Agreement.
l
     5.3.4    If no specific provision is made in Subparagraph 5.1.1 of this Agreement or the General Conditions Guaranteed



I
              Maximum Cost, as defined in Article 6, in the case of changes in the Work, the General Conditions Guaranteed
              Maximum Cost shall be equitably adjusted and the Guaranteed Maximum Price shall be adjusted accordingly;
              provided, however, that Construction the General Conditions Guaranteed Maximum Cost shall not be increased unless
!             the total amount of payments made, or to be made, to Subcontractors in the aggregate ("Subcontract Costs"). is
!             increased by Change Orders and/or Construction Change Directives by more than ten percent (1 0~) in which event
l             such equitable adjustment shall be derived with reference only to that part of the increased Subcontract Costs which
              exceeds one hundred ten percent (11 0%) of the original Subcontract Costs.


     ARTICLE6
     COST OF THE WORK FOR CONSTRUCTION PHASE

     6.1      COSTS TO BE REIMBURSED


                                                                                                                           EBCO 002810
                                                                                                             ....
                                                                                                                :~:   ......... ,. . ... . .. .:.... ~,;___::: .~ ... -: ...... ·.. ~-: ·-·:




      6.1.1   Except as otherwise provided in this Agreement or the Contract Documents, the tenn "Cost of the Work" shall mean
              costs necessarily incurred by the Construction Manager in the proper performance ofthe Work. Such costs shall be at
              rates not higher than those customarily paid at the place of the Project except with prior written consent of the Owner.
              The Cost of the Work shall include only the items set forth in this Article 6. The Cost of the Work, excluding those
              costs described in Clause 6.1.2.1, Clause 6.1.4.1 and in Subparagraph 6.1.3, constitutes the Cost of the General
              Conditions. The Costs of the General Conditions is guaranteed by the Construction Manager not to exceed the
              amount provided in Amendment No. 1, subject to additions and deductions by changes in· the Work as provided in the
              Contract Documents. Such maximum Costs of the General Conditions is referred to in the Contract Documents as the
              "General Conditions Guaranteed Maximum Cost". Costs of the General Conditions which would cause the General
              Conditions Guaranteed Maximum Cost to be exceeded shalf be paid by the Construction Manager without
              reimbursement by the Owner. In the event that actual Costs of the General Conditions is less than the General
              Conditions Guaranteed Maximum Cost, Owner shall pay the Construction Manager forty percent ( 40%) of the savings

      6.1.2   LABOR COSTS

              .1 Wages of construction workers directly employed by the Construction Manager to perform the construction of the
              Work at the site or, with the Owner's agreement, nt off-site workshops .

              .2 Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the
              site with the Owner's written approval; provided that bonuses and the like paid to such personnel shall be excluded .

              .3 Wages·and salaries of tbe Construction Manager's supervisory or administrative personnel engaged at factories,
              workshops or on the road, in expediting the production or transportation of materials or equipment required for the
              Work, but only for that pm1ion of their time required for the Work; provided that bonuses and the like paid to such
              personnel shall be excluded .

              .4 Costs paid or incurred by the Construction Manager for payroll taxes;Redacted       contributions, assessments and
              benefits required by law or collective bargaining agreements, and; for personnel not covered by such agreements, sick
              leave, medical and health benefits, holidays, vacations and pensions, provided that such costs are based on wages and
              salaries included in the Cost of the Work under Clauses 6.1.2.1 through 6.1.2.3.                       ·
l
l     6.1.3   SUBCONTRACT COSTS

l             Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the
 !
:!
              subcontracts.

      6.1.4 COSTS OF MATERIALS AND EQUIPMENT TI-l CORPORA TED IN THE
      COMPLETED CONSTRUCTION

·'i           .1 Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed
              construction.

              .2 Costs of materials described in the preceding Clause 6.1.4.1 in excess of those actually installed but required to
              provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall become the Owner's
              property at the completion of the Work or, at the Owner's option, shall be sold by the Construction Manager; amounts
              realized, if any, .from such sales shall be credited to the Owner as a deduction from the ·cost of the Work.

       6.1.5  COSTS OF OTIIER MATERIALS AND EQUIPMENT, TEMPORARY
       FACILITIES AND RELATED ITEMS

               .1 Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies,
               temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which
               are provided by the Construction Manager at the site and fully consumed in the performance of the W ark; and cost
               Jess salvage value on such items if not fully consumed, whether sold to others or retained by the Construction
               Manager. Cost for items previously used by the Construction Manager shall mean fair market value at the time of
               such use.



                                                                                                                                                    EBCO 002811
           .2 RESERVED.
                                                                                                                                    ;·.
           .3 Costs of removal of debris from the site                                                                              ;: .

           .4 Reproduction costs, facsimile transmissions and long-distance telephone calls, postage and express delivery
           charges, telephone service at the site and necessary and reasonable petty cash expenses of the site office.

           .5 That portion of the necessary and reasonable travel and subsistence expenses of the Construction Manager's
           personnel incurred while traveling in discharge of duties directly connected with the Work.
                                                                                                                                    ,..
6.1.6      MISCELLANEOUS COSTS

           .1   Redacted
Redacted




           .2 Sales, use or similar taxes imposed by a governmental authority which are related to the Work and for which the
           Construction Manager is liable.
                                                                                                                                    :   .
           .3 Fees and assessments for ·the building permit and for other permits, licenses and inspections for which the
           Construction Manager is required by the Contract Documents to pay.

           .4 Fees of testing laboratories for tests required by the Contract Documents and paid by the Construction Manager,
           except those related to nonconforming Worl~, other than that for which payment is permitted by Clause 6.1.8.2. .

           .5 Royalties and license fees paid by Construction Manager for the use of a particular design, process or product
           required by the Contract Documents; the reasonable and necessary cost of defending suits or claims for infringement
           of patent or other intellectual property rights arising from such requirement by the Contract Documents; payments
           made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and
           payments of settlements made with the Owner's written consent; provided, however, that such costs of legal defenses,
           judgments and settlements shall not be included in the calculation of the Construction Manager's Fee or the
           Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of
           Subparagraph 3.17.1 of General Conditions, as modified, or other provisions of the Contract Documents .

           .6 Data processing costs directly related to the Work, provided that such costs shall not include any hardware,
           software, or CADD costs unless previously approved by the owTier in writing .

           .7 RESERVED .

            .8 RESERVED .

            .9 Expenses incurred in accordance with the ConstrUction Manager's standard personnel policy for relocation and
            temporary living allowances of personnel required for the Work, if approved in writing by the Owner.

 6.1.7      OTHER COSTS

            .1 Other costs properly incurred in the performance of the Work if and to the extent approved in advance why in
            advance here and not elsewhere in writing by the Owner.

 6.1.8      EMERGENCIES AND REPArRS TO DAMAGED OR NONCONFORMING WORK

            The cost of the Work shall also include costs described in Subparagraph 6.1.1 which are reasonably incurred by the
            Construction.Manager;

            .1 In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of
            persons and property, as provided in Paragraph 10.6 of General Conditions, as modified, and not resulting from !lie
            negligence of the Construction Manager, its subcontractors, or the Construction Manager's failure to properly perform
            its duties under this Agreement or the Construction Documents.


                                                                                                                     EBCO 002812
y
1

I                     .2 ln repairing or con:ecting damaged or nonconfomrlng Work executed by the Construction Manager or the
                      Construction Manager's Subcontractors or suppliers, provided that such damaged or nonconforming Work was not


I
                      caused. by the negligence or failure to fulfill a specific responsibility lo the O>Vncr set forth in this Agreement, of the
                      Construction Manager or the Construction Manager's foremen, engineers or superintendents, or other supc:rvisory,
                      administrative, or managerial personnel of the Construction Manager, or the failure of Lie Construction Manager's
l                     personnel to supervise adequately the Work of the Subcontractors or suppliers, and only to the extent that the cost of
                      repair or correction is not recoverable by the Construction Manager from Redacted       Subcontractors or suppliers.

I
I
             6.1.9    The costs described in Subparagraphs 6.1.1 through 6.1.8 shall, subject to the provisions hereof, be ·included in the
                      Cost of the Work no!vr1thstanding any provision of General Conditions, as modified, which may require the
                      Construction Manager to pay such costs, unless such costs are excluded by the provisions of Paragraph 6.2.

!            6.2      COSTS NOT TO BE REIMBURSED
i
f            6.2.1    The Cost of the Work shall not include;
    ~
    i
                      .1 Salaries and other compe'nsation of the Construction Manager's personnel stationed at the Construction Manager's
                      principal office or offices other than the site office, except ns specifically provided in Clauses 6.!.2.2 and 6.1.2.3.

I   ~
    i
                      •2 Expenses ofl)te Construction Manager's principal office and offices other than the site office except as specifically
                      provided in Paragraph 6.1.

    I                 .3 Overhead and general expenses, except as may be expressly included in Paragraph 6.1.
    '
    I   l
                      .4 The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed
                      for the Work.
        i
                      .5 Rental costs of machinery and equipment, except as, and if, specifically provided in Subparagraph 6.1.5.2 .

        I             .6 E-xcept as provided in Clause 6.1.8.2, costs due to (he negligence of the Construction Manager or to the foilure of
                      the Construction Manager !o fulfill a specific responsibility to the O>Vner as set forth in this Agreement.
        II                                                                '                .
        f             .7 Costs incurred in the performance ofPreconstruction Phase Services.

                      .8 Except as provided in Clause 6.1.7J, any costs not specifical!y and expressly descnlled in Paragraph 6.1.

                       .9 Costs which would cause the Guaranteed Maximum Price !o be exceeded.

                      . 10 Costs of the General Conditions which would cause the General Conditions Guaranteed Maximum Cost to be
                      exceeded.

             6.3       DISCOUNTS, REBATES AND REFUl'-.'DS

             6.3.1     Cash discounts available to the Construction Manager shall accrue to the Owner if(l) before mnking the payment, the
                       Construction Manager received payment therefore from the Owner during the cash discount period and in sufficient
                       time for the Construction Manager to obtain such discount, or (2) the Owner has deposited funds with the
                       Construction Manager with which to rnak~;: payments; otherwise, cash discounts shall accrue to the Construction
                       Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall
                       accrue to the Owner, and the Construction Manager shall make provisions so that they will be available to the owner,

              6.3.2    Amounts which accroe !o 1he Owner in accordance with the provisions of Subparagraph 6.3.1 shall be credited to the
                       Owner as a deduction from the Cost of!hc Work.

              6.4      ACCOUNT1NG RECORDS

              6.4.1    The Construction Man~ger shall keep full and detailed accounts and exercise such controls as may be necessa..ry for
                       proper finauci~l numagemt:nt under this Agreement; the accounting ;~nd control systems shall be sallsfactory to the


                                                                                                                                      EBCO 002813
     •   .~ •• :.·    ••   ,. <••• :.:-' ~I:·. ,•   ····-·.:,_:· .... ; .




                                        Owner. The Owner and the Owner's accountants and agents shall be ~fforded access to, and shall be pennitted to
                                        audit and copy, ilie Construction Manager's records, books, correspondence, :blstructions, drawings, receipts,
                                        subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and ilie Construction
                                        Manager shall preserve all such items for a period of no less than three years after fmal.payment under this
                                        Agreement, or for such longer period as may be required by law.

              ARTICLE 7
              CONSTRUCTION. PHASE

              7.1                        PROGRESS PAYMENTS

              7.1.1                      Based upon Applications for Payment properly submitted to ilie Architect and ·the Owner by ilie Construction
                                         Manager and Recommendations for Payment issued by the Architect to the Owner the Owner shall make progress
                                         payments· on account of the Contract Sum to the Construction Manager as provided below and elsewhere in tbe
                                         Contract Documents.

               7.1.2                     The period covered by each Application for Payment shall be one calendar month ending on the last day of the month.

               7.1.3                     Provided an Application for Payment is received by the Architect and Owner, not later than 1st, the Owner shall
                                         make payment to the Construction Manager not later tban the 30th. If an Application for Payment is received by the
                                         Architect or Owner, or both, after the application date fiXed above, payment shall be made by the Owner not later than
                                         35_ days after the Architect and Owner receive the Application for Payment.
              ·7.1.4                      With each Application for Payment, the Construction Manager shall submit certified payrolls for itself and all
                                          subcontractors of any tier with subcontract prices of $250,000 or more, petty cash accoWlts, receipted invoices or
                                          invoices with check vouchers attached, and any other evidence required by the Owner or the Architect to demonstrate
                                          that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or
                                          exceed ( 1) progress payments already received by the Construction Manager; le~s (2) that portion of those payments
                                          attnoutable to the Construction Manager's Fee; plus (3) payrolls for the period covered by the present Application for
                                          Payment.

                7.1 .5                    Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction
                                          Manager and approved in writing by the Architect aod the Owner in accordance with the Contract Documents. The
                                          schedule. of values shall allocate the entire Guaraoteed Maximum Price among the various portions of tbe Work,
                                          except that the Construction Manager's Fee shall be shown as a single separate item. The schedule of values shall be
                                          prepared in such form and supported by such data as to substantiate its accuracy as the Architect and the Owner may
                                          require. This schedule, when, and only when, approved in writing by the Architect and the Owner, shall be used as a
                                          basis for reviewing the Construction Manager's Applications for Payment.

                 7.1.6                     Applications for Payinent shall set forth the percentage of completion of each portion of the Work as of the end of the
                                           period covered by the Application for Payment. The percentage of completion shall be the lesser of: (1) the
!                                          percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing
I!                                         (a) the expense which has actually been incurred by the Construction Manager on account of that portion of the Work
                                           for which the Construction Manager has made or intends to make actual payments prior to the next Application for
                                           Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion oftbe Work in the schedule of



I                    7.1. 7
                                           values.

                                            Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as
                                            follows:



I                                           .1 Take that portion of tbe Guaranteed Maximum Price properly allocable to completed Work as determined by
                                            multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum Price
                                            allocated to that portion of the Work in the approved schedule of values less retainage of ten percent (10%). Pending
                                            fmal deterroination of cost to the Owner of changes in the Work, amoWlls not in dispute may be included as provided
\                                           in Subparagraphs 7.3.7 and 7 .3.8 of General Conditions, as modified, even though the Guaranteed Maximum Price
i                                           has not yet been adjusted by Change Order.

                                             .2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and


                                                                                                                                                       EBCO 002814
                                  ----------    ------




                      suitably stored at the site for subsequent incorporation in the Work or, if approved in writing in advance by the
                      Owner, suitably stored off the site at a location agreed upon in writing, less retainage often percent (10%) .

                      .3 Add an appropriate portion of the Construction Manager's Fee, Jess retainage often percent (1 0%). An appropriate
                      portion of the Construction Manager's fee shall be computed upon the Cost of the Work descn'bed in the two
                      preceding Clauses at the rate stated in Subparagraph 5.1.1 or, if the Construction Manager's Fee is stated as a fixed
                      sum in that Subparagraph, shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the
                      Work in the two preceding Clauses bears to the Architect's reasonable estimate of the probable Cost of the Work upon
                      its completion .

                      .4 Subtract the aggregate of previous payments made by the Owner.

                      .5 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by
                      Subparagraph 7.1.4 to substantiate prior Applic~tions for Payment, or resulting from errors subsequently discovered
                      by. the Owner's accountants in such documentation .

                      .6 Subtract amounts, if any, for which the Architect has withheld or nullified a Recommendation for Payment as
                      provided in Paragraph 9.5 of General Conditions, as modified .

                      .7 Subtract amounts, if any, being withheld by the Owner as provided in the Contract Documents.

             7.1.8    Except with the Owner's prior approval, payments to Subcontracts shall be subject to retention of not less than ten
                      perc:ent(lO%).    -                                     ·

             7.1.9    Except with the Owner's prior approval, the Construction Manager shall not make advance payments to suppliers for
                      materials or equipment which have not been delivered to and stored at the site.

             7.1.10   In taking action on the Construction Manager's Applications for Payment, the Architect and the Owner shall be
                      entitled to reiy on the accuracy and completeness of the information furnished by the Construction Manager. Such
                      examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants acting
                      in the sole interest of the Owner.

!I

·1
             7.2      FINAL PAYMENT

             7.2.1    Final payment, constitutmg the entire unpaid balance of the Contract Sum, shall be made by the Owner to the
:!
                      Construction Manager when: (1) the Contract has been fully performed by the Construction Manager except for the
  \                   Construction Manager's responsibility to correct nonconfonning Work, as provided in Subparagraph 12.2.2 of
   ;
                      General Conditions, as modified, and to satisfy other requirements, if any, which necessarily survive final payment;
 ;t
     I                (2) a final Application for Payment and a final accounting for the Cost of the Work have been submitted by the
:i
 '!                   Construction Manager and reviewed by the Owner's accountants; and (3) a fmal Recommendation for Payment has
     !
                      then been issued by the Architect. Such final payment shall bt: made by the Owner not more than thirty (30) days
                      after the issuance of the Architect's final Recommendation for Payment.

             7.2.2     RESERVED.


  ~
 d'
   l         7.2.3.1 Upon the Owner's Direction, the Owner's accountants \vill review and report in writing on the Construction·
                     Manager's final accounting within thirty (30) days after delivery of the final accounting to the Architect and Owner by
 .''j                the Construction Manager. Based upon the Cost of Work as acknowledged by the Owner, or, if the Owner has
     l               directed its accountants to· report thereon, based upon such Cost of Work as the Owner's accountants report to be
    j                substantiated by the Construction Manager's final accounting, and provided the other conditions of Subparagraph
'i.:,.:;             7 .2.1 have been met, the Architect will, within thirty (30) days after receipt of the Construction Manager's final
                     accounting either issue to the Owner a fmal Recommendation for Payment with a copy to the Construction Manager,
  'l                 or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding the
  '!                 recommendation as provided in Subparagraph 9.5.1 of the General Conditions. The time periods slated in the
         '
                     Paragraph 7.2 supersede those stated in Subparagraph 9.4.1 of the General Conditions.
:'1
              7 .2.3.2 If the Owner disputes the Cost of Work as substantiated by the Construction Manager's final accounting, the
                       Construction Manager shall be entitled to assert a claim in accordance with Article 4 of the General Conditions. The


                                                                                                                              EBCO 002815
' .. :· . ...                   ·-~~~   ·-· •• -· ~ --- ·•-· ;.._. ~..;.::• .;._:._,.:;. . • w:-   .   :;:




                             Owner shall, pending resolution of any such dispute, pay the Construction Manager all sums otherwise payable and
                             not i;a dispute.

                  7.2.3.3 If, subsequent to final payment and at the Owner's request, the Construction Manager incurs costs described in
                          Paragraph 6.1 and not excluded by Paragraph 6.2 to correct nonconforming Work, the Owner shall reimburse the
                          Construction Manager such costs and Construction Manager's Fee, if any, related thereto on the same basis as if such
                          costs had been incurred ·prior to final payment, but not ·in excess of the Guaranteed Maximum Price. If the
                          Construction Manager has participated in savings, the amount of such savings shall be recalculated and appropriate
                          credit given to the Owner in dete:mining the net amount to be paid by the Owner to the Construction Manager.


                  ARTICLE 8
                  Redacted


          Redacted




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  1




   ~
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  ·:i       Redacted
   ~
   !
   .! ~

   1
   -;:
      ;
      \
        i



                                                                                                                                     EBCO 002816
                                                                         ..   ·--------- .. - - - - - -

~:·i.:~:.·. :, ..J.~;~·.   :- ..: .:~-::~:::-.:.:.;...;:_· ... -:-.·.:~.· .. ~: .. ;,· .. :-.-::. ·.: ·-~ ·..   ·. . ..   '•                                             __
                                                                                                                               .....:.:~ .;.:.... :... -· .. :. ;,_·_. •,.:. ..·..:;.;:,._..;, ..~:. _...:.~ :        ...
                                                                                                                                                                                                                 . ,:.;- __ . ,;   .:. _;_:.,; ___ .:..:.:. ___ ,;_;.::.-· ... :. - ·: ..·




         Redacted




                    ARTILCE9
                    MISCELLANEOUS PROVISIONS

                    9.1                    DISPUTE RESOLUTION FOR THE PRECONSTRUCT! ON PHASE

                    9.1.1.1                Claims, disputes or other matters in question between the par1ies to this Agreement which arise prior to the
                                           commencement of the Construction Phase or which relate solely to the Preconstruction phase services of the
                                           Construction Manager or the Owner's obligations to the Construction Manager during the Preconstruction Phase, shall
                                           be resolved by mediation or by litigation or, at the sole option of the Owner, by arbitration.

                    9.1.1.2 Any mediation conducted pursuant to this Paragraph 9.1 shall be held in accordance with the Construction Industry
                            Mediation Rules of the American Arbitration Association currently in effect, unless the parties mutually agree
                            otherwise. Demand for mediation shall be filed in writing with the other party to the Agreement and with the
                            American Arbitration Association. Any demand for mediation shall be made within a reasonable time after the claim,
                            dispute or other matter in question arises. 1n no event shall the demand for mediation be made after the date when
                            institution of legal or equitable proceedings based upon such claim, dispute or other matter in question would be
                            barred by the applicable statute oflimitations or repose.

                     9. I .1.3 Any claim, dispute or other matter in question not resolved by mediation shall be decided by litigation or, at the sole
                               option of the Owner, by arbitration in accordance with the Construction Industry Arbitration Ru1es of the American
                               Arbitration Association currently in effect unless the parties mutually agree otherwise.

                     9.1.1.4 At the sole option of the Owner, any claim, dispute or other matter in question arising out of or related to this
                             Agreement shall be subject to arbitration in accordance with the Construction Industry Arbitration Rules of the
                             American Arbitration Association currently in effect. Any such arbitration may include, at the sole option of the
                             Owner, by consolidation, joiner or otherwise, one or more persons or entities who, although not a party to this
                             Agreement, have consented to such inclusion. In the event Owner becomes a party in a separate arbitration
                             proceeding and 'chooses to add the Construction Manager as a party to such arbitration proceedings, the Construction
                             Manager consents to being so added.

                     9.1.2                  RESERVED

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

                      9.1.2.2 Waiver of Trial by Jury. The Owner and the Construction Manager, both of whom are represented by counsel, believe
                              that the complex commercial and professional aspects of the their dealing with one another make a trial by jury and
                              any disputes between them neither desirable nor appropriate. Accordingly, the Owner and the Construction Manager
                              each specifically waives any right to a trial by jury in any court with respect to any contractual, tortuous or statutory
                              claim, counterclaim or cross-claim against the other arising out of, or connected in any way to, the Project or this
                              Agreement or any of the Construction Documents.

                      9.2                    DISPUTE RESOLUTION FOR THE CONSTRUCTION PHASE

                      9 .2.1.1 Any other claim, dispute or other matter in question arising out of or related to thls Agreement or breach thereof shall
                               be settled in accordance with Paragraph 4.4 of the General Conditions.                       ·

    I
.   '                                                                                                                                                                                                                        EBCO 002817
                                                                        ·--·-··-··---·· ··-------· ...                                                  ----
                                                                  . .:. ~ ..:: .: ..... •' ~; ... >'~. .:. : ••   . •. ~ •••••. ~ • .: .... _ •• ·• -




            9.3       OTHERPROVISIONS

            9.3.1.1   Unless o1herwise noted, the tenns used    w this           Agreement shall have the same meaning as those in the General
                      Conditions of the Contract.

            9.3.2     EXTENT OF THE CONTRACT

                      This Agreement, which includes this Agreement and the other documents incorporated herein by reference, represents
                      the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior
                      negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written
                      instrument signed by both the Owner and the Construction Manager. If anything in any document incorporated into
                      this Agreement is inconsistent with Agreement, this Agreement shall govern.

            9.3.3     OWNERSHIP AND USE OF DOCUMENTS

                      The Drawings and Specifications prepared by 1he Architect for the Work shall be and remain the property of the Owner.
                      Upon the termination of this Agreement, the Construction Manager shall furnish the Owner with copies of all schedules,
                      budgets, Shop Drawings, samples, and other work papers and Contract Documents prepared by the Construction
                      Manager in connection with the Project, as property of the Owner.

            9.3.4     GOVERNING LAW

                      Thls Agreement shall be governed by the law ofthe place where the Project is located.

            9.3.5     ASSIGNMENT

                      In the event this Agreement is tenninated by the Owner for cause, the Owner shall be entitled upon demand, and at no
                      additional cost, to an assignment of the Construction Manager's rights in and to any or all of the Construction
                      Manager's contracts· with its Subcontractors and the Construction Manager shall promptly deliver such assigmnent. In
                      each of its contracts with its Subcontractors, the Construction Manager shall provide for such assignments and the
~                     consent thereto by each such Subcontractor.

I
I
I           ARTICLE 10
I           TERMINATION OR SUSPENSION
·I1          10.1     TERMINATION PRIOR TO ESTA.BLISHJNG GUARANTEED MAXIMUM PRICE

             I 0.1.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price, the Owner may
                       tenninate this Agreement at any time without cause, and the Construction Manager may terminate this Agreement for
                       any of the reasons described in Subparagraph 14. 1.1, 14.1.2 and 14.1.4 of the General Conditions.
    ;
    :
             10.1.1.2 If the Owner or the Construction Manager tenninates this Agreement pursuant to this Paragraph 10.1 prior to
 I
 i
                      commencement of the Construction Phase, the Construction Manager shall be _equitably compensated for
-1                    Preconstruction Phase services performed prior to receipt of notice of termination; provided, however, that the
l.,                   compensation for such services shall not exceed the compensation set forth in Subparagraph 4.1.1 .

 !           10.1.3    If the Owner or the Con.struclion Manager terminates th.is Agreement pursuant to th.is Paragraph 10.1 after
\l                     commencement ofthe Construction Phase, the Construction Manager shall, in addition to the compensation provided

·t                     in Subparagraph 10.1.2, be paid an amount calculated as follows:
    "l                 .1 Take the Cost of the Work incurred by the Construction Manager.
                       .2 Add the Construction Manager's Fee computed upon the Cost of Work to the date oftermination the rate stated in
        I              Paragraph 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in the Paragraph, an amount which bears
;i                     the same ratio to the fixed-sum Fee as the Cost of Work at the time of termination bears to the Architect's estimate of
    ·~
                       the probable Cost of the Work upon its completion.
                       .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase.



                                                                                                                                                               EBCO 002818
-----·'-------------~-       "·-    -----------------   ...   ·------
             ....
     ,.............   .                                                                                         ·.... ·




                                                                                                                                                          ·.::.·


                              The Owner shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of
                              the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not
                              otherwise included in the Cost of the· Work under Clause 10.1.3. L To the extent that the Owner elects to take legal
                              assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a
                              condition of receiving the payments referred to in this Article 10, execute and deliver all such papers and take all such
                              steps, including the legal assigmnent of such subcontracts and other contractual rights of the Construction Manager, as
                              the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction
                              Manager under such subcontracts or purchase orders.                                                                          ~-
                                                                                                                                                          ---

                              Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the Owner's
                              written approval prior to the execution of Amendment No. 1 shall contain provisions permitting assignment to the
                              Owner as described above. If the Owner accepts such assignment, the Owner shall reimblirse or indemnify the
                              Construction Manager with respect to all costs arising under the subcontract, purchase order or rental agreement
                              except those which would not have been reimbursable as Cost of the Work if this Agreement had not been terminated.
                              1f the Owner elects not to accept the assignment of any subcontract, purchase order or rental agreement which would
                              have constituted a Cost of the Work bad this Agreement not been terminated, the Construction Manager shall
                              terminate such subcontract, purchase order or rental agreement and the Owner shall pay the Construction Manager the
                              costs necessarily incurred by the Construction Manager by reason of such termination.

                  10.2        TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE

                              Subsequent to execution by both parties of Amendment No.1, this Agreement may be terminated as provided in
                              Article 14 of the General Conditions.

                    10.2.1.1 In the event of termination, any amount payable- to the Construction Manager shall not exceed the amount the
                             Construction Manager would have been entitled to receive pursuant to Subparagraphs 10.1.2 and 10.1.3 of this
                             Agreement, and in no event shall the Guaranteed Maximum Price be exceeded, nor shall any contrary provisions of
                             Subparagraph 14.2.4 of the General Conditions.

                    10.2.2     RESERVED

                    10.3       SUSPENSION

                    The Work may be suspended by the Owner as provided in Article 14 of the General Conditions; in such case, the Guaranteed
                    Maximum Price, if established, may be increased as provided in Subparagraph 6.3.1 of the Supplemental Conditions.


                    ARTICLEll
                      OTHER CONDITIONS AND SERVICES

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

                                                                             EBCO General Contractor, LTD.
                      OWNER                                                  CONSTRUCTION MANAGER

                                                                             BY: John R. Egger, President of the General Partner
                                                                                     C                a   met, L.C.




                      ATTEST:




                                                                                                                                            EBCO 002819
                            ------·--··--------·




                                                    Attachment Number 1 (One)

     Pursuant to Paragraph 2.2 of the Agreement, dated August 17,2005 between                                        ("Owner")
     and EBCO General Contractor, LTD. ("Construction Manager"), for construction of a Courtyard by Maniott hotel located at
     7_809 East Ben White Boulevard in Austin, Texas (the "Project"), the Owner and Construction Manager establish a Guaranteed
     Maximum Price and Contract Time for the Work as set forth below.

     ARTICLE I
     GUARANTEED MAXIMUM PRICE

     The Construction Manager's Guaranteed Maximum Price for the Work, including the Cost of the Work as defmed in Article 6
     and the Construction Manager's Fee as defined in Article 5, is Seven Million Two Hundred Twenty-Five Thousand Dollars
     ($7,225,000.00).

     This Price is for the performance of the Work in accordance with the Contract Documents listed and attached to this
     Amendment and marked Exhibits A through J, as follows:

     Exhibit A:        Drawings, Specifications, addenda and General, Supplementary and Other Conditions of the Contract on
                       which the Guaranteed Maximum Price is based;

     ExhibitB:         Document List;

     Exhibit C:        Assumptions and clarifications made in preparing the Guaranteed Maximum Price, dated August 8, 2005;

     ExhibitD:         Allowance Summary;

     ExhibitE:          Monthly Status Report- NOT APPLICABLE;
l
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J{
     ExhibitF:

     Exhibit G:
                        Owner Required Forms- NOT APPLICABLE;

                        Responsibility Matrix;

·I
 I
     Exhibit H:         Value Engineering Items;


~\
     Exhibit I:         Miscellaneous Reports -NOT APPLICABLE;

     Exhibit J:         Liquidated Damages.

     ARTICLE II
     CONTRACT TIME

     .Substantial Completion shall be achieved within three hundred thirty (330) calendar days after a "Notice to Proceed" is issued
      by the Owner and received by the Construction Manager. Substantial Completion shall be defined as issuance of a "Temporary
      Certificate of Occupancy" from the City of Austin, Texas. Owner may begin installation of Owner-provided furniture,
      fixtures, and equipment ("FF&E") prior to the issuance of a "Certificate of Occupancy." Final completion including
      completion of the punch list and the "Certificate of Occupancy" shall be achieved within three hundred sixty (360). calendar
      days from the date of commencement. In the event the Construction Manager, without excuse, fails to achieve Substantial
      Completion on or before the date for Substantial Completion described above, the Construction Manager shall pay to the
      Owner as liquidated damages, and not as a penalty, the applicable amount set forth in the matrix attached hereto as Exhibit J
      for each and every calendar day thereafter until fmal completion is achieved; provided that the Construction Manager shall not
      be liable for liquidated damages for a day, or days, of excusable delay occurring during such j)eriod.

      In the event the Construction Manager, without excuse, fails to achieve final completion within sixty ( 60) days of achieving
      Substantial Completion, Construction Manager shall pay to the Owner as liquidated damages and not as a penalty, ten percent
      (10%) of the applicable daily liquidated damage amount set forth in said Exhibit A for each and every calendar day thereafter
      l.lJllil fmal completion is achieved; provided that the Construction Manager shall not be liable for such liquidated damages for a
      day, or days, or excusable delay occurring during such period.



                                                                                                                          EBCO 002820
                                                                                       :.: .._.·
                                                                                                    .. - ··-·--:..
                                                                                                   ...               ~




:;·




                                                                                                                                       .!.

                                                                                                                                       ·.•

      ARTICLE III
      GENERAL CONDITIONS GUARANTEED MAXIMUM COST

      The General Conditions Guaranteed Maximum Cost is three hundred fifty thousand three hundred twenty-five dollars
      ($350,325.00).

                                                          EBCO General Contractor, LTD.
      OWNER                                               CONSTRUCTION MANAGER

                                                          BY: John R. Egger, President of the General Partner


                                                          ~·
                                                          DATE.

                                                                  rYf Sf Zws-
      ATTEST:




                                                                                                                         EBCO 002821
.;,   ..




                                   Attachment Number 2 (Two)
             to Standard Forrn of Agreement Between Owner and General Contractor


           Paragraph 1.2 shall be modified to delete the second (2nd) to last
           sentence: .''For the ?reconstruction Phase, or in the event that the
           ?reconstruction and Construction Phases proceed concurrently, General
           Conditions, as modified, shall apply to the ?reconstruction Phase only as
           specifically provided in this Agreement.

           Paragraph 2.1- PRECONSTUCTION PHASE:
           This section shall be deleted in its entirety, including sub-paragraphs 2.1.1,
           2.1.2, 2.1.3, 2.1.4, 2.I.5, 2.1.5.1, 2.1.5.2, 2.1.5.3, 2.1.5A 2.1.6, 2.1.7, 2.1.8,
           and 2.1.9.

           Paragraph 23.2.1:                                              .
           In the fourth (l~ line, place a 'period' after the work "Work" and delete the
           following wording: "from the list previously reviewed and, after analyzing
           such bids, shall deliver such bids to the Owner and Architect. T11e Owner
           shall then determine, with the advice of the Construction Manager, which
            bids will be accepted. {tole of the architect? Why is it getting the bids?]"

           Paragraph 2.3.2·.2:
           In the first (Is) line after the words "specific bidder", delete the following
           wording: "among those whose bids are delivered by the Construction
           Manager to the Owner and the Architect       }I.




           Paragraph 2.3.2.5:
           In the second (2 11 d) line after the words "prepare a schedule", place a
            'period' and delete the following wording: "in accordance with Paragraph
           3.10 of the General Conditions, as modified, and the Owner's occupancy
           requirements".

           Paragraph 3.L4:
           In -the first (F) sentence, replace the words "In the Preconstruction" with
            "Before the Construction".




            Exhibit K to Standard form of Agreement between Owner and General Contrac1or
            Page 1 of5                                                                          EBCO 002822
          ---···                      ··-·    -----                             ··--·--··-·----··                           ·-----··

           ''• • • •-: .::·,:·•. •·..;' :;•;,.:•:.. :<:·:~ . ·.:·.:::.:.::::: ;;',,•,;; ~· : •': ',   ';,,~·~,:? •;::·• :: .:~:   •,.·:•_,"1,   • • •'   1,~•.:-;':, •   ,•:-</•   •,,~,..,,' "•-•   • • • .:,_. •- _•_:..;, .. ~..:.. • .:..,   ;:.",,~, ,,:, r•   ' ;_,.,,;,•.,   • .".... '•••• :., -• ,•,,


                                                                                                                                                                                                                                                                                                           .•.·




Article 4- COl\1PENSATION AND PAYMENTS FOR
PRECONSTRUCTION PHASE SERVICES
Delete Article 4 in its entirety, including paragraphs 4.1, 4.1.1, 4.1.2, 4.1.3,
4.2, 4.2.1, and 4.2.2.

Paragraph 5.2.1:                                                                                                                   ·
                     1
The fourth (4 ' ) sentence shall be changed to read: "Any savings realized, up
to a maximum offive hundred thousand dollars ($500,000.00), below the
Guaranteed Maximum Price shall be shared sixty percent (60%) to the
Owner and forty (40%) to the Contractor. All savings above five hundred
thousand dollars ($500,000.00) below the Guaranteed Maximum Price shall
belong 100% to the Owner. " (The effect of this sentence is to place a limit of
two hundred thousand dollars ($200, 000) on the amount ofsavings to be
paid to the Contractor.) The rtwainder of this paragraph shall be deleted in
its entirety.

Paragraph 5.3.1:
Shall be changed to read as follows: "The Construction Manager shall
receive a ten percent (1 0%) fee for any Changes in the Work. "

Paragraph 6.1.1:
At the end of the paragraph, insert forty percent (40%) as the amount of
savings to be paid to the Construction Manager.

Paragraph 6.1.4.2:
In the third (3rd) line, add a 'period' at the end of the wordi.ng "completion
of the Work". Delete the remaining wording: "or, at the Owner's option,
shall be sold by the Construction Manager,· amounts realized, if any, from
such sales shall be credited to the Owner as a deduction from the Cost of the
 Work."

Paragraph 6.1.5.2- "RESERVED"
Delete the word 'Reserved-' and add the following wording: "Rental charges
for temporary facilities, machine1y, and hand tools not customarily owned
 by construction workers that are provided by the Contractor at the site,
whether rented from the Contractor or Others, and costs of transportation,
 installation, minor repairs and replacements, dismantling, and removal
 thereof"



 Exhibit K to Standard form of Agreement between Owner and General Contractor
 Page 2 of5
                                                                                                                                                                                                                                             EBCO 002823
           .. - . -· :· . -· .... : .·   ..   . ... ~ :· . .·.: ..... .. ·... .        .;...;   ,_. __   . :..::..       -• .:_.:.. ~~.:-. ·- .:'. ·-: ~~- ·-~·...   -. ·....
                                                                                                                                                                         v:
                                                                                                                                                                         ~    :




 Add Paragraph 6.1.5.6 as follows:
 "Costs of materials and equipment suitably stored off-site, provided such
 off-site storage facility meets requirements of the Owner's LenderRe<Jacted
Redacted                                                                          ,,                                 .




 Paragraph 6.1.6.7- RESERVED shall be changed as follows:
 Delete the word 'Reserved' and add thefollowingwording: "Deposits,
 previously approved by Owner, lost for causes other than the Co~tractor 's
 negligence or failure to fulfill a specific responsibility to the Owner as set
 forth in the Contract Documents. ·
                                                                                                                                                                         ;:.
                                                                                                                                                                             ..
  Paragraph 6.1.6.8- RESERVED shall be changed as follows:
 -Delete the word 'Reserved' and add the following wording: "Legal,
  mediation, and arbitration costs, including attorney's fees, other than those
  arising from disputes between the Owner and the Contractor, reasonably
  incurred by the Contractor in the performance of the Work and with the
· Owner's prior written approvali which approval shall not be unreasonably
  withheld. "

  Paragraph 6.1.8.2
  Change the wordi'ng of the entire paragraph to read as follows: "In
  repairing or correcting damaged or nonconforming Work executed by the
  Construction Manager or the Construction Manager's subcontractors or
  suppliers, provided that such damaged or nonconforming Work was not
  caused by the negligence of the Construction Manager or failure to fulfill a
  specific responsibility to the Owner set forth in the Agreement, and only to
  the extent that cost of repair or correction is not recoverable by the
  Construction Manager from Re<Jacted      , Subcontractors, Suppliers, and
 Re<Jacted




  Paragraph 6.2.1.7
  Delete this paragraph in its entirety.

  Paragraph 6.2.1.9
  Add the following wording at the end of the sentence: "; unless such
  additional costs are approved by Owner. "

   Paragraph 6.2.1.10
   Add the following wording at the end of the sentence: ";unless such
   additional costs are approved by Owner. "

   Exhibit K to Standard form of Agreement between Owner and General Contractor
   Page 3 of5                                                                                                            EBC0002824
Paragraph 7.1A
Add the following wording: "Certified payrolls will not be required from
the Construction Manager nor from any subcontractor of any tier. In
addition, Construction Manager shall not be required to attach to each
Application for Payment petty cash accounts, receipted invoices or invoices
with check vouchers attached. Construction Manager's Pay Application
shall attach subcontractor invoicing as back-up.    II




Paragraph 7.1.5
Delete the last two (2) sentences of this paragraph. Add the following
wording: "The Schedule of Values will be agreed upon .between the Owner
and the Construction Manager.     II




Paragraph 7.1.7.1
Add the following wording: "Retainage shall be as stated in paragraph
7.1.8."                  .

Paragraph 7.1.7 .2
Add the following wording: "Retainage shall be as stated in paragraph
7.1.8. "

Paragraph 7 .1.7 .3
Add the following wording: "Retainage shall be as stated in paragraph
7.1.8."

Paragraph 7.1.7.7
Delete this paragraph in its entirety.

Paragraph 7.1.8
Delete this paragraph in its entirety and add the following wording:
"Retainage shall be ten percent (1 0%) until the work is fifty percent (50%)
complete, after which the retainage shall become zero percent (0%). "
Furthermore, upon Owner's approval, early release ofretainage may be
granted for specific subcontractors. Also, upon Owner's approval, no
retainage will be withheld for certain "stored materials". "

Paragraph 7.2.1
In the fourth (41h) line after the words 'General Conditions', delete the
words: "as modified". In the fourth (4 1h) line, change the wording

Exhibit K to Standard form of Agreement between Owner and General Contractor
Page 4 ofS
                                                                               EBCO 002825
--····---··· .... ····-·-····-·-·                  · · · - - - - ·····--···-···-··-···--· ····--·-···

              .:~.--·.··   .....   ': ....   :..   ;·   .•· ..




           'necessarily survive' to "extend beyond". In the sixth (61h) line, delete the
           words: "and reviewed by Owner's accountants".

           Paragraph 7.2.2- RESERVED
           Delete the word 'Reserved' and add the following: "The Owner !s final
                                                                                                                      i:
           payment to the Contractor shall be made in full no later than thirty (30) days
           after issuance of the Architect's final Certificate ofPayment, or not later
           than thirty (30) days after completion of corrected punch list items as noted
           on the Architect's compete Punch List. "


               ,} S                   Redacted
           A rtJc e -
          Redacted



          Redacted




           Paragraph 9.1 -Dispute Resolution for the Preconstruction Phase
           Delete this paragraph in its entirety, including sub-paragraphs 9.1.1, 9.l'2,
           9.1.3, 9.1.4, 9.1.5, 9.1.6, and 9.1.7.

           Paragraph 9.2.1                                  .
           Delete the wording: "Paragraph 4.4" and replace with "Article 4 ".




             Exhibit K to Standard form of Agreement between Owner and General Contractor
             Page 5 of5                                                                                 EBCO 002826
                                        ;:,···.   .::··.·.::.....:   .,;_   _;·,\.        ., ·~ ,;,· .·:~ ..r;..:..: .:..::.:_:!:-
                                                                                                                              .\..
                                                                                                                               .·
.
· .:   ....




                            Exhibit A .. Construction Documents



              - Architectural Drawings ("Permit Set"), dated April 15, 2005 .
              - Structural Drawings ("Permit Set"), dated April 15, 2005
              - Civil Drawings, sealed by the Engineer on April 5, 2005
              - Landscape Drawings, sealed by the Landscape Architect on April 4, 2005
              -Plumbing Drawings, dated April14, 2005
              -Mechanical Drawings, dated April14, 2005
              -Electrical Drawings, dated April 14, 2005
              - Specification Book ("Permit Set"), dated April 15, 20005
              -Addenda - None Issued ..




                                                                                     EBCO 002827
           .· .·.·. ....
                  ~
                                                                                           ·:   ... :.:.......:: .. ::_·   :.:.··   ·- ..

      :t




                                                                   EXHIBITS


            .~:'!df~"5==S!
                                                            PLANS & SPECIFICATIONS
                                                              Courtyard by Marriott
                                                                 Austin, Texas

                 SHEET           OAT!=       DESCRIPTION                                                 SHEET NO REV. DATE /).#

                      A 0.0     4/15/2005    COVER SHEET                                                                                                  ~··
                      A 0.1     4/15/2005    CODE SUMMARY                                                                                                 '
                                                        CIVIL PLANS
                      1         4/15/2005    CIVIL COVER SHEET
                      2         4/15/2005    SITE PLAN
                      3         4/15/2005    SITE PLAN (CALCULATIONS and NOTES)
                      4         4/15/2005    LANDSCAPE PLAN
                      5         4/15/2005    LANDSCAPE DETAILS
                      6         4115/2005    SITE GRADING PLAN
                      7         4/15/2005    DRAINAGE CALCULATIONS & EXISTING AREA DRAINAGE
                       8        4/15/2005    SITE DRAINAGE PLAN
                       9        4/15/2005    EROSION & SEDIMENTATION CONTROL and TREE PROTECT
                      10        4115/2005    WATER & WASTEWATER PLAN
                      11        4/15/2005    WATER & WASTEWATER DETAILS
                      12        4/15/2005    ENVIROMENTAL DETAILS
                      13        4/15/2005    CONSTRUCTION DETAILS
                      14        4/15/2005    CONSTRUCTION DETAILS

                                                  ARCHITECTURAL PLANS
                      A 1.1     4/15/2005    FIRST LEVEL FLOOR PLAN
                      A 1.2     4/15/2005    SECOND LEVEL FLOOR PLAN
                      A 1.3     4/15/2005    THIRD LEVEL FLOOR PLAN
                      A 1.4     4/15/2005    FORTH LEVEL FLOOR PLAN
                      A 1.5     4/15/2005    FIFTH LEVEL FLOOR PLAN
                      A 1.6     4/15/2005    ROOF PLAN
                      A 2.1     4/15/2005    FIRST LEVEL CEILING PLAN
                      A 2.2     4/15/2005    TYPICAL LEVEL CEILING PLAN
                      A 3.1     4/15/2005    EXTERIOR ELEVATIONS
                      A 3.2     4115/2005    EXTERIOR ELEVATIONS
                      A 5.1     4/15/2005    WALL SECTIONS
                      A 5.2     4/15/2005    WALL SECTIONS
                      A 6.1     4/15/2005    EXTERIOR DETAILS
                      A 6.2     4/15/2005    EXTERIOR DETAILS
                      A 6.3     4/15/2005    EXTERIOR DETAILS
                      A 7.1     4115/2005    ELEVATOR AND STAIR DETAIL
                      A 8.1     4/15/2005    ENLARGED PLANS
                      A 8.2     4115/2005    UNIT PLANS
                      A 9.1     4115/2005    INTERIOR ELEVATIONS
l
.i                    A 9.2     4115/2005    GUESTROOM INTERIOR ELEVATIONS
l                     A 10.1
                      A 10.2
                                4/15/2005-
                                 411512005
                                             INTERIOR DETAILS
                                             INTERIOR DETAILS
J
~
                      A 10.3    4/1512005    INTERIOR DETAILS
                       A 1D.4    4/15/2005   INTERIOR DETAILS
I                      A 11.1    411512005   WINDOW, DOOR, FRAME, AND LOUVER TYPES ANP DETAILS
t
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                                                                                                                                            EBCO 002828
                                                                                                                  .2~'
                                                                                                                  :~:;
                                                                                                                  ·.·.·
                                                                 EXHIBITB


          ~-!3¥~"~9                                     PLANS & SPECIFICATIONS
                                                           Courtyard by Marriott
                                                              Austin, Texas
          SHEET             DATE         DESCRIPTION                               SHEET NO. REV. DATE A#

                                               STRUCTURAL PLANS
             s 1.0        4/15/2005      GENERAL NOTES AND TYPICAL DETAILS
             s 2.1        4/15/2005      FOUNDATION AND FIRST FLOOR PLAN
             s 2.2        4/15/2005      SECOND FLOOR FRAMING PLAN
             s ·2.3       4/15/2005      THIRD • FIFITH FRAMING PLAN
             s 2.4        4/15/2005      ROOF FRAMING PLAN
             s 2.5        4/1512005      ENLARGED STAIR AND ELEVATOR PLANS
             s 3.0        4/15/2005      SCHEDULES AND TYPICAL DETAILS
             s 4.1        4/15/2005      SECTIONS
             s 42         4!15/2005      SECTIONS
             s 4.3        4/15/2005      SECTIONS
             s 4.4        4115/2005      SECTIONS
             s 4.5        4/1512005      SECTIONS

                                        MECHANICAUELECTRICAUPLUMBING
           B.01           4/14/2005      FIRST FLOOR UNDERELOOR PLUMBING PLAN
           B.02           4/14/2005      FIRSTHOOR PLUMBNIG PLAN
           8.03           41W2005        SECOND FLOOR PLUMBING PLAN
           8,04           4114/2005      THIRD FLOOR PLUMBING PLAN
           8.05           4/14/2005      WASTEWATER RIS~R DIAGRAGMS
          8.063           4/14/2005      CW & HW RISER DIAGRAMS
           8.07           4/14/2005      FORTH AND FIFTH FLOOR PLUMBING PLAN
           8.08           4/14/2005      ROOF PLUMBING PLAN

           9.01           4/14/2005      FIRST FLOOR MECHANICAL PLAN
           9.02           411412005      SECOND FLOOR MECHANICAL PLAN
           9.03           4/1412005      THIRD FLOOR MECHANICAL PLAN
           9.04           4114/2005      FOURTH & FIFTH FLOOR MECHANICAL PLAN
           9.05           4/1412005      ROOF MECHANICAL PLAN

          10.01             4114/2005    FIRST FLOOR ELECTRICAL LIGHTING PLAN
          10.02             4/W2005      FIRST FLOOR ELECTRICAL POWER PLAN
          10.03           . 4/14/2005    SECOND FLOOR ELECTRICAL PLAN
.,i       10.04             4/1412005    THIRD FLOOR ELECTRICAL PLAN
.,
          10.05             4/1412005    FOURTH AND FIFTH FLOOR ELECTRICAL PLAN
          10.06             4/14/2005    ROOF ELECTRICAL PLAN
          10.07             4/14/2005    ELECTRICAL UNIT FLOOR PLAN
          10.08             4/14/2005    PANEL SCHEDULES AND ELECTRICAL RISERS
          10.09             4/14/2005    PANEL SCHEDULES

                                                SPECIFICATIONS
                  I   I    4/15/2005    IPROJECT MANUAL (PERMIT SEl)
                  I




      '
··I
      l
      i


                                                                                                    EBCO 002829
                                              ····--·-·-----.... ··----···-·····------

                             .   :~    .. ·. ·. ·-: .. ·.
                                      ;,                    . .          ... -: : .- .. ::....::. :_ ·___: __ . .. .. ·. ~ ... ·.:   .:.. ... . . ....... ··-·· .·.- :.~ ..:.- .·                         . ;.:
                                                                                                                                                                                                           ...


                                                         Exhibit C
                           Statement of Contractor's Qualifications, Exclusions and Substitutions
                                                                                                                                                                                                           :···
     Div.      Description ..                                                                                                                                                           Status.
                edacted · ·
     01                                                                                                                                                                             -   Excluded
               1Redacted
     01                                                           ----
                                                                                                                                                                                        Excluded
     01         Permits.                                                                                                                                                                Excluded
                Storm Water Pollution Prevention Plan. Contractor to install and maintain complete system, as
     01         required by City Approved Civil Drawings and City of Austin Environmental Kick-Off Meeting,                                                                             Excluded
     01         Sewer and Water Taps and Fees.                                                                                                                                          Excluded           .
     01         Utility Fees and Impact Fees.                                                                                                                                           Excluded           h.
     01         Temporary Utilities After Temp                           _go.                                                                                                           Excluded
     01          Construction Testing by OwnerJExcept HVAC Test & Balance).                                                                                                             Excluded
     02          Subsurface Dewatering.                                                                                                                                                 Excluded
                                                  -·
     02         Rock Excavation.                                                                                                                                                        Excluded
                1-1/2" Asphalt Paving over 9" of base material in parking areas and 2" of asphalt paving over 10" of
     02         base material in drive lanes in lieu of Concrete Paving.                                                                                                                Included
     02         Curb & Gutter @ perimeter of paving except @ sidewalk ~ turned down edge.                                                                                               Included
     07         Damp~?_roofing @ Shower Bases & Elevator Pit Only.                                                                                                                      Included
     08          Champagne Finish on Door Hardware                                                                                                                                      Excluded
     08         Window package to be All Seasons Model No. 3000HS                                                                                                                       Included
                 Stucco system will be a One Coat System (Magna-Wall of Equal) with Acrylic or Elastomeric finish
     09          in lieu of EIFS.                                ,.
                                                                                                                                                                                        Included
     09          Carpet & Pad Materials.                                                                                                                                                Excluded
     09          Vinyl Wall Covering Materials.                                                                                                                                         Excluded
     10          Interior and Exterior Signage.                                                                                                                                         Excluded
     10        . Deposit Boxes and Safe.                                                                                                                                                Excluded
     11           Commercial Laundry Equipment.                                                                                                                                         Excluded
     11           Food Service Equipment.                                                                                                                                               Excluded
     11-          Residential Equipment.                                                                                                                                                Excluded
     12           FF&E Installation.                                                                                                                                                    Excluded
     13           Lightning Protection.                                                                                                                                                 Excluded
     13           Security & Video Surveillance System by Others.                                                                                                                       Excluded
l                 Fire Protection System to meet NFPA 13 and Marriott's Module 14 .. PVC Piping to be used where
1    13                                                                                                                                                                                 Included
\                 allowed by NFPA.
l    13           Fire Water Pump & Fire Water Storage Tanks.                                                                                                                           Excluded
:i
:!
     15           Guest Room PTAC condensate drain system.
                  PTAC Perimeter Drain System.
                                                                                                                                                                                        Excluded
                                                                                                                                                                                        Excluded
     15
 \
     15           Gas Service to Meter.                                                                                                                                                 Excluded
     15           Water Softeners.                                                                                                                                                      Excluded
                  Hot and cold piping insulation on mains and branches only (Pipe insulation is to be "rubatex" type).
      15          No insulation on pipe in wall cavity or on condensate drain piping.                                                                                                   Excluded
      16          Communications, Data, Sound, Video, TV & Security Wiring by Others.                                                                                                   Excluded
      16          Conduit for Data, Sound, Video, TV, Security &Fire Alarm.                                                                                                             Excluded
      16          Owner Provided Light Fixtures.                                                                                                                                        Excluded
      16          Fire Alarm System to meet minimum requirements of City of Austin and Marriott's Module 14.                                                                            Included

      15 &16     Note: Mechanical (Div. 15) or Electrical (Div. 16) specification are printed on the MEP drawings.



      02         Note: Revision of landscape package (WLS VE #5) may require plan revisions for the
                 City of Austin. Plan revisions are excluded.

      01         Allowances included in the contract are as follows:
                  -Owner Contingency $192,205.00
                  -Millwork $150,000. (All public area and guest room millwork including staining & finishing)
                  -Electrical Fixtures $100,000. {All fixtures including exterior and site lighting)
                  - Dec.orative Fixture Allowance - Deleted at Owner's Request.                                                                                                         I
                  - Dimming System Allowance - Deleted at Owner's Request.
                                                                                                                                                                                            EBCO 002830
                - - - .... ··-··-·-----·-···-···   -----




                                                     Exhibit D- Allowance Summary


               Allowances included in the contract are as follows:
                -Owner Contingency $192,205.00
                - Millwork $150,000. (All public area and guest room millwork, including staining & finishing)
                -Electrical Fixtures $100,000. (All fixtures including exterior and site lighting)
                - Decorative Fixture Allowance - Deleted at Owner's Request.
                -Dimming System Allowance- Deleted at Owner's Request.




                                                                                                                           ,.
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                                                                                                                 EBCO 002831
       COURTYARD, AUSTIN TEXAS
       FURNITURE, FIXTURES AND EQUIPMENT SCHEDULE




                                                                              ;;.';




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       AACY# 1002                                   Page 1 of 1   312411005
                                                                              ...''·
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                                                                                                                                    ...   :..,~.:~·:.::   .:;::.: .. ···-·-~-·-··



                         ·.<::..



                                                                        Exhibit H
                                                               VALUE ENGINEERING SUMMARY
                                                                      August 8, 2005


                                                            AUSTIN COURTYARD VALUE ENGINEERING ITEMS

                WLS                                                EBCO GENERAL CONTRACTORS LTD.                                   AUG 8,2005
                 #                 DIY   TYPE                                    l)ESCRIPTION
                                                                                                                                    Not Accepted
                                                  Eru4hw~lnnw-S~ise-building-nppl'i00mntety-:2.L&                                      due to sitE
                 4                  2     SITE    revise sit~eooFdinglyj                                                             restrictions
                 5                  2     SITE    Revise landscape design to City minimums

                 7                  2     SITE    DELETE SCREEN WALL at courtyard area. Mechanical screen remains.
                                                  Use CMU block at stairs & elevator shaft in lieu of concrete walls (Finish of
!
l                 9                 3    CONC     stair walls to be painted CMU)
                 10                 3    CONC     Use fibermesh concrete in lieu of wire mesh reinforcing
               12 & 14              5    DECK     Replace galvanized Epicore deck with standard 3 11 type B metal deck
                                                  DELETE SOME DECK SHORING COST ASSOCIATED WlTH EPICORE
I                15                 5     DECK    DECK.MUST BE IN CON~NCTION WITH 3" DECK
                 18                 5    STRUCT   Use. either "panelized" walt(~hilng or <;on.ventional stud ~raming.
                 23                 7     ROOF    Revise EPDM coating from white to black
                                                  Provide Stucco in lieu of stone (stone as per elevations on permit drawings) -
                 24                 7     SKIN    stone is Austin white chopped limestone
                 26                 7     SKIN    DELETESTUCCO@SCREENWALL·PAINTONLY
                 27                 8    DOORS    Use flush wood doors at guest baths and closets
                                                  Provide "Timely" or "Redi-Frames" in manufacturer's standard colors in lieu
i~               28                 8    DOORS    of hollow metal frames
 ¥               29                 8    DOORS    Provide automatic door opener by Nabco In lieu of Stanley
                 30                 8    DOORS    GRADE 2 HARDWARE in lieu of GRADE 1
'I                                                DELETE ANODIZED BRONZE WINDOW FINISH AND PROVIDE
 lI              31                 8     WIND    P AlNTED WINDOW FINISH.
:l               35                 9      CT     CHANGE LOBBY FLOOR TILE- Owner to provide new specs.
     l                                             CHANGE BAHTROOM TILE~ Owner to provide new specs.
    ...i
    .)
      1
                 36
                 37
                                    9
                                    9
                                           CT
                                           CT     USE Ceramic Tile in lieu of TUB SURROUNDS~ Owner to provide specs.
    ·'·'                                          Delete "snow guard 11 from porte cochere roof Not Available if VE #33 is
       1
    ·J            44                12    MISC     accepted
    .:~

      i           45                 5    MISC     Radiused Glulam beams at Porte Cochere in lieu of radiused steel beams.
      l           50                14    ELEV     Elevator~ Use powder coat in lieu of stainless steel at hoistway entrances
      I1
                                                  FRO VIDE MOEN SINGLE HANDLE SINK FAUCETS OR SYMMONS TIS

     '~           62                15   PLUMB     FAUCETS
                                                   USE TOTOWA TER CLOSETS, LAVS AND BATHTUBS INCLUDING
                                                   STEEL TUBS
    :}            63                15   PLUMB
                                                   DELETE POWER FLUSH VALVES, except in Public Areas.
      ·.~         64                15   PLUMB
      ~                                            ABOVE GROUND SANITARY FROM CAST TO PVC (all sanitary and
           l
     j            66                15   PLUMB     waste/vent piping to be PVC above and below grade)
     ~1           67                16   ELECT     Electrical- Use MC cable where allow.ed by code
      :.\         69                16   ELECT     CHANGE LIGHT FIXTURE ALLOWANCE TO .$100,000
         )
      ;::



                                                                                                                                   EBCO 002833
                        Exhibit J- Liquidated Damages

The Owner and Construction Manager agree that the Owner shall be entitled
to retain two thousand five hundred dollars ($2,500) per calendar day, as
"Liquidated Damages" should the Construction Manager fails to complete the
Project within the time limitations as set forth in Article II of Exhibit 1 of the
Standard Form of Agreement between Owner and General Contractor.




                                                 )
                                                                                                                                   1997 Edition - Electronic Format

                                                                                                                                                                                   AlA Document A201 -1997

General Conditions of the Contract for Construction
TABLE OF ARTICLES

            1.         GENERAL PROVISIONS
                                                                                                                                                                                                                                                       THIS DOCUMENT HAS IMPORTANT
            2.         OWNER                                                                                                                                                                                                                           LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                       CONSULTATION WITH AN
                                                                                                                                                                                                                                                       ATTORNEY IS ENCOURAGED WITH
            3. CONTRACTOR                                                                                                                                                                                                                              RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                       MODIFICATION. AUTHENTICATION
            4. ADMINISTRATION OF THE CONTRACT                                                                                                                                                                                                          OF THIS ELECTRONICALLY
                                                                                                                                                                                                                                                       DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                       MADE BY USING AlA DOCUMENT
            5. SUBCONTRACTORS                                                                                                                                                                                                                          0401.

            6. CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS                                                                                                                                                                                        This document has been approved and
                                                                                                                                                                                                                                                       endorsed by The Associated General
                                                                                                                                                                                                                                                       Contractors of America
            7. CHANGES JN THE WORK

            8. TIME

            9. PAYMENTS AND COMPLETION

            i 0. PROTECTION OF PERSONS AND PROPERTY

            11.Redacted


            12. UNCOVERlNG AND CORRECTION OF WORK

            13. MISCELLANEOUS PROVISIONS

            14. TERMJNATION OR SUSPENSION OF THE CONTRACT



INDEX                                                                                                                             4.2.3, tO
Acceptance of Nonconforming Work                                                                                             Acts and Omissions
    9.6.6, 9.9.3, 12.3                                                                                                           3.2, 3.3.2, 3.12.8, 3.18, 4.2.3, 4.3.8, 4.4.1,
Acceptance of Work                                                                                                               8.3.1, 9.5.1, 10.2.5, 13.4.2, 13.7, 14.1
    9.6.6, 9.8.2, 9.9.3, 9. iO.l, 9.10.3, 12.3                                                                               Addenda
Access to Work                                                                                                                    1.1.1, 3.11
    3.16, 6.2.1, 12.1                                                                                                        Additional Costs, Claims for                                                                                                    ~...
Accident Prevention                                                                                                               4.3.4, 4.3.5, 4.3.6, 6.1.1, 10.3
                                                                                                                                                                                                                                                       (\;)1997 AlA®
-::;©;-;Co=p:-::ynT.:·g-.:::ht;-;1;-;:;9~11',~1-;:::91;-;;5""',:;-;19:;:;1-;::8,-:1;-;:;9-;::25;:-,~1-;::93;:::7;-,-:;-;19::-;:5: ;-1,-:1;-;;9:;::c58;:-,~1-;::96""1-,:;-;19""6::;:;-3,-:1;-;;9-;::66:::-,-,.1"'96""7:-,:;-;19""7::::0,-:1:-:::9c:::76:::-,-::-1-;::98:::7:-,-:-:19""9c:::7-;-b-y AlA DOCUMENT A201 • 1997
The American Institute of Architects. Fif!een!h Edition. Reproduction of the material herein or substantial                                                                                                                                            GENERAL CONDITIQNS OF T~E
quotation of its provisions without written permission of !he A!A violates the copyright laws of the United States                                                                                                                                     CONTRACT FOR CONSTRUe I ION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                     •       . ,          .
laws and will subject the violator to legal prosecullon. This document was electronically produced with                                                                                                                                                T~e Amencan fnsl!tu.e of Arctutects
permission of the AlA and can be reproduced in accordance with your license without violation untl! the date of                                                                                                                                        1 t35 ~ew York Avenue, N.W •
expiration as noted below.                                                                                                                                                                                                                             Washmgton, O.C. 20006·5292
Thls document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
Additional Inspections and Testing                            4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4,
    9.8.3, 12.2.1, 13.5                                       4.4.1, 4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8,
Additional Time, Claims for                                   8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1'
    4.3.4, 4.3.7, 8.3.2                                       13.5.2, 14.2.2, 14.2.4
ADMINISTRATION OF THE CONTRACT                          i\rchitect's Inspections
    3.1.3, 4, 9.4, 9.5                                        4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.8.3, 9.9.2,
Advertisement or Invitation to Bid                            9.10.1, 13.5
     1.1.1                                              Architect's Instructions
Aesthetic Effect                                               3.2.3, 3.3.1, 4.2.6, 4.2.7, 4.2.8, 7.4.1, 12.1,
    4.2.13,4.5.1                                              13.5.2
Allowances                                              Architect's Interpretations
       3.8                                                    4.2.11, 4.2.12, 4.3.6
Redacted                                                Architect's Project Representative                                                               THIS DOCUMENT HAS IMPORTANT
       ll.4J.l                                                 4.2.10                                                                                    LEGAL CONSEQUENCES.
Applications for Payment                                Architect's Relationship with Contractor                                                         CONSULTATION WITH AN
      4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1,       Ll.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1,                                              ATTORNEY IS ENCOURAGED WITH
                                                              3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16,                                               RESPECT TO ITS COMPLETION OR
      9.8.5, 9.10, 11.1.3, 14.2.4, 14.4.3                                                                                                                MODIFICATION. AUTHENTICATION
Approvals                                                     3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7,                                              OF THIS ELEECTRONICALL Y
       2.4, 3.1.3, 3.5, 3.10.2, 3.12, 4.2.7, 9.3.2,           5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7,                                             DRAFTED AlA DOCUMENT MAY BE
      13.4.2, 13.5                                            9.8, 9.9, 10.2.6, 10.3, 11.3, 1 1.4.7, 12,                                                 MADE BY USING AlA DOCUMENT
Arbitration                                                   13.4.2, 13.5                                                                               D401.
       4.3.3, 4.4, 4.5.1, 4.5.2, 4.6, 8.3.1, 9.7.1,     Architect's Relationship with Subcontractors                                                     This document has been approved and
      11.4.9, l 1.4.1 0                                        1.1.2, 4.2.3, 4.2.4, 4.2.6, 9.6.3, 9.6.4,                                                 endorsed by The Associated General
Architect                                                     11.4.7                                                                                     Contractors of America.
       4.1                                              Architect's Representations
Architect, Definition of                                       9.4.2, 9.5.1, 9.10.1
       4.1.1                                            Architect's Site Visits
Architect, Extent of Authority                                4.2.2, 4.2.5, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2,
       2.4, 3.12.7,4.2, 4.3.6,4.4, 5.2, 6.3, 7.1.2,           9.10.1, 13.5
      7.3.6, 7.4, 9.2, 9.3.1, 9.4, 9.5, 9.8.3, 9.10.1, Asbestos
      9.10.3, 12.1, 12.2.1, 13.5.1, 13.5.2, 14.2.2,            10.3.1
      14.2.4                                            Attorneys' Fees
Architect, Limitations of Authority and                        3.18.1, 9.10.2, 10.3.3
Responsibility                                          Award of Separate Contracts
       2.1.1, 3.3.3, 3.12.4, 3.12.8, 3.12.10, 4.1.2,           6.1.1, 6.1.2
      4.2.1' 4.2.2, 4.2.3, 4.2.6, 4.2. 7. 4.2.10,       Award of Subcontracts and Other Contracts for
     4.2.!2, 4.2.13, 4.4, 5.2.1, 7.4, 9.4.2, 9.6.4,     Portions of the Work
      9.6.6                                                    5.2
Architect's Additional Services and Expenses            Basic Definitions
      2.4, 1 L4.1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4            1.1
Architect's Administration of the Contract              Bidding Requirements
       3.1.3, 4.2, 4.3.4, 4.4, 9.4, 9.5                        1.1.1, 1.1.7, 5.2.1, I L5.1
Architect's Approvals                                   Redacted

      2.4, 3.1.3, 3.5.1, 3.10.2, 4.2.7                         11.4.2
Architect's Authority to Reject Work                    Redacted

       3.5.1, 4.2.6, 12.1.2, 12.2.1                            9.10.2
Architect's Copyright                                   Redacted

       1.6                                                     7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5
Architect's Decisions                                   Building Permit
                                                                                                                                                         (!l}J$97 AlA®
~©~C~o~p~y~ng~h~t7.19~1~1-,~19~1~5,~1~9~18~.~1~9~25~.~1~93~7~,7
                                                              19~5~1-,7
                                                                      19~5~8-,i~9~67
                                                                                   1,-1~9~63~.-.i~9~66~.-.1~96~7~,-.i9~7~0~.~19~7~6.-1~9~8=~~1~9~97~by   AIADOCUMEtiTA201·1997
The American Institute ol Architects. Fifteenth Edition. Reproduction of the matenal herein or substantial                                               GENERAL CONDITIONS OF THE
quotation ollts provisions without writ!en permission of the AlA \1ola!es the copyright laws of the United States                                        CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecu!ion. WARNING: Unlicensed photocopying violates U.S. copyright                                                        .       .          .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                  The Amencan lnsl•tule of Architects
permission of the AlA and can be reproduced in accordance with your ficense without violation until tho date of                                          1735 !'JeW York Avenue, N.W.
expiration as noted below.                                                                                                                               Wash1nglon, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                2
      3.7.1                                                11.1, l 1.4.1, 11.4.6, 11.5.1
 Capitalization                                        Commencement of the \York, Definition of
       1.3                                                  3.1.2
Certificate of Substantial Completion                  Communications Facilitating Contract
       9.8.3, 9.8.4, 9.8.5                             Administration
Certificates for Payment                                    3.9.1, 4.2.4
     4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6,      Completion, Conditions Relating to
      9.7.1, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4         1.6.1, 3.4.1, 3.11, 3.15, 4.2.2, 4.2.9, 8.2,
Certificates ofinspection, Testing or Approval            9.4.2, 9.8, 9.9.1, 9.10, 12.2, 13.7, !4.1.2
       13.5.4                                          COMPLETION, PAYMENT~ AND
Redacted                                                    9
      9.10.2, l 1.1.3                                  Completion, Substantial
Change Orders                                              4.2.9, 3.1.1, 8.1.3, 8.2.3, 9.4.2, 9.3, 9.9.1,                                                                                                                                                                        THIS DOCUMENT HAS IMPORTANT
      LLl, 2.4.1, 3.4.2, 3.8.2.3, 3.11.1, 3.12.8,         9.10.3, 9.10.4.2, 12.2, 13.7                                                                                                                                                                                           LEGAL CONSEQUENCE&
     4.2.8, 4.3.4, 4.3.9, 5.2.3, 7.1, 7.2, 7.3, 8.3.1, Compliance with Laws                                                                                                                                                                                                      CONSULTATION WITH AN
      9.3. Ll, 9.10.3, 11.4.1.2, 11.4.4, 1 1.4.9,          I.6J, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.Ll,                                                                                                                                                                           ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                 RESPECT TO ITS COMPLETION OR
      12.1.2                                               4.4.3, 4.6.4, 4.6.6, 9.6.4, 10.2.2, llJ, 11.4,                                                                                                                                                                        MODIFICATION. AUTHENTICATION
Change Orders, Definition of                               13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14.1.1,                                                                                                                                                                             OF THIS ELECTRONICALLY
      7.2.1                                                14.2.[.3                                                                                                                                                                                                              DRAFTED AlA DOCUMENT MAY BE
CHANGES IN THE WORK                                    Concealed or Unknown Conditions                                                                                                                                                                                           MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                 D401.
      3.11,4.2.8, 7, 8.3.1, 9.3.Ll, 11.4.9                 4.3.4, 8.3.1' 10.3
Claim, Definition of                                   Conditions of the Contract                                                                                                                                                                                                This document has been approved and
       4.3.1                                                1.1.1, 1.1.7, 6.1.1, 6.1.4                                                                                                                                                                                           endorsed by The Associated General
Claims and Disputes                                    Consent, Written                                                                                                                                                                                                          Contractors of America
      3.2.3, 4.3, 4.4, 4.5, 4.6, 6.1.1' 6.3, 7.3.8,        1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4,
     9.3.3, 9.10.4, 10.3.3                                 9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1,
Claims and Timely Assertion of Claims                      13.2, 13.4.2
       4.6.5                                           CONSTRUCTION BY OWNER OR BY
Claims for Additional Cost                             SEPARATE CONTRACTORS
       3.2.3, 4.3.4, 4.3.5, 4.3.6, 6.1.1, 7.3.8,            1.1.4, 6
      10.3.2                                           Construction Change Directive, Definition of
Claims for Additional Time                                  7.3.1
      3.2.3, 4.3.4, 4.3.7, 6.1.1, 8.3.2, 10.3.2        Construction Change Directives
Claims for Concealed or Unknown Conditions                  l.Ll, 3.12.8, 4.2.8, 4.3.9, 7.1, 7.3, 9.3.U
       4.3.4                                           Construction Schedules, Contractor's
Claims for Damages                                          1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3
      3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.],        Contingent Assignment of Subcontracts
      9.6.7, !0.3.3, ll.l.l, 11.4.5, 1!.4.7, 14.1.3,        5.4, 14.2.2.2
      14.2.4                                           Continuing Contract Performance
Claims Subject to Arbitration                               4.3.3
      4.4.1, 4.5.1, 4.6.1                              Contract, Definition of
Cleaning Up                                                 1.1.2
       3.15, 6.3                                       CONTRACT, TERMINATION OR
Commencement of Statutory Limitation Period SUSPENSION OF THE
        13.7                                               5.4.1.1, 11.4.9, 14
Commencement of the \Vork, Conditions                  Contract Administration
Relating to                                                3.1.3, 4, 9.4, 9.5
      2.2.1, 3.2.1, 3.4.1, 3.7.1, 3.10.1' 3. 12.6,     Contract Award and Execution, Conditions
     4.3.5, 5.2.1, 5.2.3, 6.2.2, 3.1.2, 8.2.2, 8.3.1, Relating to
                                                                                                                                                                                                                                                                                 01997 NNS
-:;©;:-::::Co_p_y-;-rig-.h7t -:-19:::-c1;-;1-,-:c19:-o1-:=5-,i::-::9:::18-;:-,--:1:-::9""25::-,-:1;-;:9""37,..,-.1""95""1"",-:1"'95""8::-,...,.196;:-;:-:-1-,""19:-::6:::-3,-1:-:S:-=6::-6,-,1"'9'='67:::-,-.i""'97:::-:0:-,..,.19""7::::6:-,:-:19:-.:8=7-,1-:-:9:-::9=7-:--by   AlA DOCUMENT A201,- 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction ol the mal erial herein or substantial                                                                                                                                                                    GENERAL CONDITIO~-OF THE
 quotation of its provisions without written permission of !he AlA violates the copyright !a•.vs of the United States                                                                                                                                                            CONTRACT FOR CON;:. ' RUCTION
 and will s;;bject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                             •       . .          .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                         The Arnencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without viola1ion until the dale ol                                                                                                                                                                 1735 ~~ew York Avenue, N.W ·
 expiration as noted below.                                                                                                                                                                                                                                                      Washington, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not lor other use or resale.
                                                                                                                                                                                                                                                                           3
     3.7.1, 3.10, 5.2, 6.1, 11.1.3, 11.4.6, 11.5.1  Performing the Work
Contract Documents, The                                  3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2,
     1.1, 1.2                                           6.3, 9.5.1, 10
Contract Documents, Copies Furnished and Use Contractor's Review of Contract Documents
of                                                       L5.2, 3.2, 3.7.3 ·
     L6, 2.2.5, 5.3                                 Contractor's Right to Stop the Work
Contract Documents, Definition of                        9.7
     l.Ll                                           Contractor's Right to Temlinate the Contract
Contract Sum                                             4.3.10, 14.1
    3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, Contractor's Submittals
   9.1, 9.4.2, 9.5.1.4, 9.6.7, 9.7, 10.3.2,             3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6,
    11.4.1' 14.2.4, 14.3.2                              9.2, 9.3, 9.8.2, 9.8.3, 9.9.1' 9.10.2, 9.10.3,
Contract Sum, Definition of                             11.1.3, 1L5.2                                                                                  THIS DOCUMENT HAS IMPORTANT
     9.1                                            Contractor's Superintendent                                                                        LEGAL CONSEQUENCES.
Contract Time                                            3.9, 10.2.6                                                                                   CONSUL TA TfON WITH AN
    4.3.4,4.3.7,4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4,    Contractor's Supervision and Construction                                                          ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                       RESPECT TO ITS COMPLETION OR
    8.1.1, 8.2, 8.3.1, 9.5.1, 9.7, 10.3.2, 12.1.1,  Procedures                                                                                         MODIFICATION. AUTHENTICATION
        14.3.2                                                                    1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3,                       OF THIS ELECTRON/CALLY
Contract Time, Definition of                                                      6.1.3, 6.2.4, 7.1.3, 7.3.4, 7.3.6, 8.2, 10, 12,                      DRAFTED AlA DOCUMENT MAY BE
    8.Ll                                                                          14                                                                   MADE BY USING AlA DOCUMENT
                                                                                                                                                       0401.
CONTRACTOR                                                                 Redacted

    3                                                                              11.1.1.8, l 1.2, 11.3                                               This document has been approved and
Contractor, Definition of                                                  Coordination and Correlation                                                endorsed by The Assocfated General
        3.1, 6.1.2                                                              1.2, 1.5.2, 3.3.1, 3.10, 3.12.6, 6.1.3, 6.2.1                          Contractors of America.
Contractor's Construction Schedules                                        Copies Furnished of Drawings and
     1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3                         Specifications
Contractor's Employees                                                             1.6, 2.2.5, 3.11
       3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6,                     Copyrights
       10.2, 10.3, ll.Ll, 11.4.7, 14.1,14.2.1.1,                                   1.6, 3.17
Redacted                                                                   Correction of Work
    11.1                                                                           2.3, 2.4, 3.7.4, 4.2.1, 9.4.2, 9.8.2, 9.8.3,
Contractor's Relationship with Separate                                           9.9.1, 12.1.2, 12.2, 13.7. L3
Contractors and Owner's Forces                                             Correlation and Intent of the Contract
       3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2,                           Documents
       12.2.4                                                                   1.2
Contractor's Relationship with Subcontractors                              Cost, Definition of
    1.2.2, 3.3.2, 3.18.1, 3.18.2, 5, 9.6.2, 9.6.7,                                 7.3.6
       9.10.2, 11.4.1.2, 11.4.7, 11.4.8                                    Costs
Contractor's Re"lationship with the Architect                                     2.4, 3.2.3, 3.7.4, 3.8.2, 3.15.2, 4.3, 5.4.2,
    1. L2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1,                                6.1.1, 6.2.3, 73.3.3, 7.3.6, 7.3.7, 7.3.8,
       3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16,                               9.10.2, 10.3.2, 10.5, 11.3, 11.4, 12.1,


                                                                                                                                                           -
       3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7,                              12.2.1, 12.2.4, 13.5, 14
       5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7,                      Cutting and Patching
       9.8, 9.9, 10.2.6, 10.3, J 1.3, 11.4.7, 12,                               6.2.5,3.14
       13.4.2, 13.5                                                        Damage to Construction of Owner or Separate
Contractor's Representations                                               Contractors
        1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1' 9.3.3,                            3.14.2, 6.2.4, 9.2.1.5, 10.2.1.2, 10.2.5, 10.6,
       9.8.2                                                                  11.1, 11.4, 12.2.4
Contractor's Responsibility for Those                                      Damage to the Work
                                                                                                                                                       C1997 f.JPRJ
~©~C~o-p-y~rig~h7
                t719~1~1-,~19~1~5,~1~9~1~8.~1~9~25~.~1~93~7~.~1~95~1-,~~9~5~8-,1~9~67
                                                                                    1,-1~9~63~,~1~9€~6~,~17
                                                                                                          96~7~,~19~7~0~,~19~7~6-,1~9~8=7,-1~9~97~by   AIADOCUMENTAW1-1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                            GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of iha United States                                     CONTRACT FOR CONSTRUCTION
and wllf subject lhe violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                    •        .           .
laws and will subject the violator to legal proseculion. This document was electronically produced with                                                The Amencan lnstttute of Architects
permission of the AlA and can be reproduced ln accordance with your license without violation until the date ol                                        1735 ~ewYorkAvenue, N.W.
expiration as noted below.                                                                                                                             Washtnglon, D.C. 20006·5292
"fhls document Is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                 4
       3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.6, 11.4,     Employees, Contractor's
      12.2.4                                                  3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6,
Damages, Claims for                                           10.2, 10.3, 11.1.1, 11.4.7, 14.1, 14.2.U
       3.2.3, 3.18, 4.3.10, 6J.1, 8.3.3, 9.5.1,         Equipment, Labor, Materials and
      9.6.7, 10.3.3, 11.1.1, 11.4.5, 11.4.7, 14.1.3,          1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12,
      14.2.4                                                  3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6,
Damages for Delay                                             9.3.2, 9.3.3, 9.5J .3, 9.10.2, 10.2. I, 10.2.4,
       6.1.1, 8.3.3, 9.5.L6, 9.7, 10.3.2                      14.2.1.2
Date of Commencement of the Work,                       Execution and Progress ofthe Work
Definition of                                                 1.1.3, 1.2.1' 1.2.2, 2.2.3, 2.2.5, 3.1, 3.3, 3.4,
       8.1.2                                                  3.5, 3.7, 3.10, 3.12, 3.14, 4.2.2, 4.2.3, 4.3.3,
Date of Substantial Completion, Definition of                 6.2.2, 7.1.3, 7.3.4, 8.2, 9.5, 9.9.1, 10.2,
       8.1.3                                                  10.3, 12.2, 14.2, j 4.3                                                                                                                                                                                                                 THIS DOCUMENT HAS IMPORTANT
Day, Definition of                                      Extensions ofTime                                                                                                                                                                                                                             LEGAL CONSEQUENCE&
       8.1.4                                                  3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1,                                                                                                                                                                                        CONSUL TAT/ON WITH AN
Decisions of the Architect                                    7.3, 7.4.1, 9.5.1, 9.7.1, 10.3.2, 10.6.1,                                                                                                                                                                                               A7TORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                                      RESPECT TO ITS COMPLETiON OR
      4.2.6, 4.2.7, 4.2.ll, 4.2.12, 4.2.13, 4.3.4,            14.3.2                                                                                                                                                                                                                                  MOD/FICA T/ON, AUTHENTICATION
      4.4.1,4.4.5,4.4.6, 4.5, 6.3, 7.3.6, 7.3.8,        Failure of Payment                                                                                                                                                                                                                            OF THIS ELECTRONICALLY
      8.1.3, 8.3.1, 9.2, 9.4, 9.5.1' 9.8.4, 9.9.1,             4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1. 1.3,                                                                                                                                                                                                DRAFTED AlA DOCUMENT MAY BE
      13.5.2, 14.2.2, 14.2.4                                  14.2.1.2, 13.6                                                                                                                                                                                                                          MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                                      D401.
Decisions to Withhold Certification                     Faulty Work
       9.4.1, 9.5, 9.7, 14.!.1.3                               (See Defective or Nonconforming Work)                                                                                                                                                                                                  This document has been approved and
Defective or Nonconfonning \Vork,                       Final Completion and Final Payment                                                                                                                                                                                                            endorsed by The Associated General
Acceptance, Rejection and Correction of                       4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2,                                                                                                                                                                                               Contractors of America.
      2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.5.2,            11.1.3, 11.4.1, 11.4.5, 12.3.1, 13.7, 14.2.4,
      9.6.6, 9.8,2, 9.9.3, 9.10.4, 12.2.1, 13.7.1.3           14.4.3
Defective Work, Definition of                           Financial Arrangements, Owner's
       3.5.1                                                   2.2.1, 13.2.2, 14.1.1.5
Definitions                                             Redacted

      l.l, 2.1.1, 3.1' 3.5.1, 3.12.1, 3.12.2, 3.12.3,          11.4
      4.l.J,4.3.1,5.1,6.1.2, 7.2.1, 7.3.1, 7.3.6,       GENERAL PROVISIONS
      8.1, 9.1, 9.8.1                                          1
Delays and Extensions of Time                           Governing Law
       3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1,        13.1
      7.3.1, 7.4.1, 7.5.1, 8.3, 9.5.1, 9.7.1, 10.3.2, Guarantees (See Warranty)
      10.6.1, 14.3.2                                    Hazardous Materials
Disputes                                                       10.2.4, 10.3, 10.5
       4.1.4, 4.3, 4.4, 4.5, 4.6, 6.3, 7.3.8            Identification of Contract Documents
Documents and Samples at the Site                              1.5.1
       3.11                                             Identification of Subcontractors and Suppliers
Drawings, Definition of                                        5.2.1
       1.1.5                                            Indemnification
Drawings and Specifications, Use and                          3.17, 3.18, 9.10.2, 10.3.3, 10.5, 11.4.1.2,
Ownership of                                                  11.4.7
        l.l.l, 1.3, 2.2.5, 3.11, 5.3                    Information and Services Required of the
Redacted                                                Owner
       8.2.2, 11.1.2                                          2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7,
Emergencies                                                  4.3.3, 6.1.3, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4,
       4.3.5, 10.6, 14.l.l.2                                  9.9.2, 9.10.3, 10.3.3, 11.2, 11.4, I 3.5.1,
                                                                                                                                                                                                                                                                                                      ©191l7M~
-:;©;:-C:;:;:o:-p:-:-y-::-rig:-::h-:-t7'!9:::-:1;:;1-,719:::1:-:::5-,1:::9::-:;1"'"8,"'"'1;-;9::::25;:-,--:1:-:::9-:::37:;-,-:1:::-95:;-1,-,719"'5""8:-,""'19::-: 6: :-1,-1:-:9:-::63:::-,-1:-::9:::::66""',-:1-:::-96""7""",-:1-::c97::::0:-,719::::7::-::6-,""19::-::8c:=7,-1:-::9::::9"'"7-:--by   AlA DOCUMENT A201 • 1997
  The American Institute of Architects. Fifteenth Edilion. Reproduction of the material herein or substantial                                                                                                                                                                                         GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright la\'\'S of the United States                                                                                                                                                                                CONTRACT FOR CONSTRUCTION
 and \viii subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                                  .       .            .
  laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                             T~e _Amencan Institute of Arch!lects
  permission ol the AlA and can be reproduced in accordance with your license without violalion until the date ol                                                                                                                                                                                     1 r3o ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                                                          Washmgton, D.C. 20006·5292
  This document !s not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                                 5
      13.5.2, 14.1.1.4, 14.1.4                               4.6.6
Injury or Damage to Person or Property                  Labor and .Materials, Equipment
      4.3.8, !0.2, 10.6                                      lJ .3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12,
Inspections                                                 3.13, 3.15.1, 42.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6,
      3.1.3, 3.3.3, 3.7.1, 4.2.2, 4.2.6, 4.2.9, 9.4.2,      9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4,
      9.8.2, 9.8.3, 9.9.2, 9.10.1, 12.2.1' l3.5             14.2.1.2
Instructions to Bidders                                 Labor Disputes
       Ll.l                                                  8.3.1
Instructions to the ContractOr                          Laws and Regulations
       3.2.3, 3.3.1, 3.8.1, 4.2.8, 5.2.1, 7, 12, 8.2.2,      1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1,
      13.5.2                                                4.4.8, 4.6, 9.6.4, 9.9.1, 10.2.2, 11.1, 11.4,
Redacted                                                    13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14
       3.18.1, 6.1.1, 7.3.6, 8.2.1, 9.3.2, 9.8.4,       Liens                                                                                                                                                                                                      THIS DOCUMENT HAS IMPORTANT
      9.9.1, 9.10.2, 9.10.5, 11                              2.1.2, 4.4.8, 8.2.2, 9.3.3, 9.10                                                                                                                                                                      LEGAL CONSEQUENCES.
Redacted                                                Limitation on Consolidation or Joinder                                                                                                                                                                     CONSULTATION WITH AN
       tl.4.2                                                4.6.4                                                                                                                                                                                                 A TTORN£Y IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                   RESPECT TO ITS COMPLETION OR
Redacted                                                Limitations, Statutes of                                                                                                                                                                                   MODIFICATION. AUTHENTICATION
       11.1                                                  4.6.3, 12.2.6, 13.7                                                                                                                                                                                   OF THIS ELECTRON/CALLY
Redacted                                                Limitations of Liability                                                                                                                                                                                   DRAFTED AlA DOCUMENT MAY BE
       8.2.2, 11. 1.2                                        2.3, 3.2.1, 3.5.1, 3.7.3, 3.12.8, 3.12.10,                                                                                                                                                            MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                   0401.                                 I
Redacted                                                    3.17, 3.18, 4.2.6, 4.2.7, 4.2.12, 6.2.2, 9.4.2,
       11.4.3                                               9.6.4, 9.6.7, 9.10.4.10.3.3, 10.2.5, 11.1.2,                                                                                                                                                           This document has been approved and
Redacted                                                    11.2.1, 11.4.7, 12.2.5, 13.4.2                                                                                                                                                                         endorsed by The Associated General
       11.2                                             Limitations of Time                                                                                                                                                                                        Contractors of Amerfce.
Redacted        Redacted                                    2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11,
Redacted                                                    3.12.5, 3.15.1, 4.2.7, 4.3, 4.4, 4.5, 4.6, 5.2,
       11.3                                                 5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1,
Redacted                                                    9.3.3, 9.4.1, 9.5, 9.6, 9.7. 9.8, 9.9, 9.10,
       10.2.5, 11.4                                         11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5,
Redacted                                                                                                                                      13.7,14
              9 .3.2, 11.4. 1.4                                                                                                   Redacted
Redacted                                                                                                                                        11.4.3
              11                                                                                                                  Material Suppliers
Redacted                                                                                                                                1.6, 3.12.1, 4.2.4, 4.2.6, 5.2.1, 9.3, 9.4.2,
Redacted                                                                                                                               9.6, 9.10.5
              9.9.1, 11.4. L5                                                                                                     Materials, Hazardous
Redacted                                                                                                                                !0.2.4, 10.3, 10.5
       11.4.10                                                                                                                    Materials, Labor, Equipment and
 Intent of the Contract Documents                                                                                                      1.1.3, 1.1.6, 1.6.1, 3.4, 3.5J, 3.8.2, 3.8.23,
       1.2.1,4.2.7,4.2.12,4.2.13, 7.4                                                                                                  3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1,
 Interest                                                                                                                              7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1,
              13.6                                                                                                                     10.2.4, 14.2.1.2
 Interpretation                                                                                                                   Means, Methods, Techniques, Sequences and
      1.2.3, 1.4, 4.1.1, 4.3.1, 5.1, 6.1.2, 8.1.4                                                                                 .Procedures of Construction
 Interpretations, Written                                                                                                               3.3.1, 3.12.10, 4.2.2, 4.2.7, 9.4.2
      4.2.11' 4.2.12, 4.3.6                                                                                                       Mechanic's Lien
 Joinder and Consolidation of Claims Required                                                                                           4.4.8
      4.6.4                                                                                                                       Mediation
 Judgment on Final Award                                                                                                                4.4.1, 4.4.5, 4.4.6, 4.4.8, 4.5, 4.6.1, 4.6.2,
                                                                                                                                                                                                                                                                   01997 AlA®
-:;©;::-;:-Co-p-y""rig-:-h7t .,.19::-1:-:1-,""19::-:1-:::5-,1""9""1-=-8,-1""9c::25=-,""'1""9""37=-,""t-=-95=-c1:-,-:-19""'5::-::8:-,. ,. 19::-:6""1-,1""9""6.,.3,-1""9""'66.,..,....,1~9""67=-,""1""97""0:-,...,.19""7:c:6-,-.-19'"'8""7,-1,...,9"'9=-7.,.....by   AI A DOCUMENT A201 • 1997
 The American Institute of Architects. Fiaeenth Edition. Reproduction of the materia! herein or substantial                                                                                                                                                        GENERAL CONDITIONS OF TtiE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                CONTRACT FOR CONSTRUe' ION
  and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                              .       .             .
  laws and will subject the violator to legal prosecution. This document was erectronical!y produced with                                                                                                                                                          The Amencan lnslllule of Arclutects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                   1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                            .                                                                                                                                                                           Washmgton, D.C. 20006-5292
 This document is not an orlglnal AlA® Contract Document, but a reproduction proouced by AlAQl:•
  Contract Documents software for administrative purposes only and ls not for other use or resale.
                                                                                                                                                                                                                                                            6
     8.3.1, 10.5                                                                                                                                        9.9.2, 9.10.3, 10.3.3, 11.2, 11.4, 13.5.1,
  Minor Changes in the Work                                                                                                                             13.5.2, l4.Ll.4, 14.1.4
      1.1.1, 3.12.8, 4.2.8, 4.3.6, 7.1, 7.4                                                                                                          Owner's Authority
  MISCELLANEOUS PROVISIONS                                                                                                                              !.6, 2.1.1, 2.3, 2.4, 3.4.2, 3.8.1' 3.12.1 0,
               13                                                                                                                                       3.14.2, 4.1.2, 4.1.3, 4.2.4, 4.2.9, 4.3.6,
  Modifications, Definition of                                                                                                                          4.4.7, 5.2.1, 5.2.4, 5.4.1, 6.1, 6.3, 7.2.1,
      I.Ll                                                                                                                                              7.3.1, 8.2.2, 8.3.1, 9.3.1, 9.3.2, 9.5.1, 9.9.1,
  Modifications to the Contract                                                                                                                         9.10.2, 10.3.2, 11.1.3, 11.3.1, 11.4.3,
     Ll.l, 1.1.2, 3.7.3, 3.11, 4.1.2, 4.2.1, 5.2.3,                                                                                                     11.4.10, 12.2.2, 12.3.1, 13.2.2, 14.3, 14.4
     7, 8.3.1, 9.7, l0.3.2, 11.4.1                                                                                                                   Owner's Financial Capability
  Mutual Responsibility                                                                                                                                  2.2.1, 13.2.2, 14.1.1.5
                 6.2                                                                                                                                Redacted

 Nonconforming Work, Acceptance of                                                                                                                                 11.2                                                                                                                             THIS DOCUMENT HAS IMPORTANT
      9.6.6, 9.9.3, 12.3                                                                                                                            Redacted
                                                                                                                                                                                                                                                                                                    LEGAL CONSEQUENCES.
 Nonconforming Work, Rejection and                                                                                                                      11.4.3                                                                                                                                      CONSULTATION WJTH AN
 Correction of                                                                                                                                      Owner's Relationship with Subcontractors                                                                                                        ATTORNEY 18 ENCOURAGED WITH
                                                                                                                                                                                                                                                                                                    RESPECT TO JTS COMPLETION OR
     2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.8.2,                                                                                                       1.1.2, 5.2, 5.3, 5.4, 9.6.4, 9.10.2, 14.2.2
                                                                                                                                                                                                                                                                                                    MODIFICATION. AUTHENTICA T/ON
     9.9.3, 9.10.4, 12.2.1, 13.7. L3                                                                                                                Owner's Right to Carry Out the Work                                                                                                             OF THIS ELECTRONJCALL Y
 Notice                                                                                                                                                2.4, 12.2.4. 14.2.2.2                                                                                                                        DRAFTED AlA DOCUMENT MAY BE
     2.2.1, 2.3, 2.4, 3.2.3, 3.3.1, 3.7.2, 3.7.4,                                                                                                   Owner's Right to Clean Up                                                                                                                       MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                                    D401.
     3.12.9, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7,                                                                                                                  6.3
     9.10, 10.2.2, 11.1.3, 11.4.6, 12.2.2, 12.2.4,                                                                                                  Owner's Right to Perform Construction and to                                                                                                    This document has been approved and
     13.3, 13.5.1, 13.5.2, 14.1, 14.2                                                                                                               A ward Separate Contracts                                                                                                                       endorsed by The Associated General
 Notice, Written                                                                                                                                                   6.1                                                                                                                              Contractors of Ametica.
     2.3, 2.4, 3.3.1' 3.9, 3.12.9, 3.12.1 0, 4.3,                                                                                                   Owner's Right to Stop the Work
     4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2,                                                                                                                2.3
     10.3, l Ll.3, 1 1.4.6, 12.2.2, 12.2.4, 13.3,                                                                                                   Owner's Right to Suspend the Work
     14                                                                                                                                                  14.3
 Notice of Testing and Inspections                                                                                                                  Owner's Right to Terminate the Contract
      13.5.1, 13.5.2                                                                                                                                     14.2
 Notice to Proceed                                                                                                                                  Ownership and Use of Drawings, Specifications
      8.2.2                                                                                                                                         and Other Instruments of Service
 Notices, Permits, Fees and                                                                                                                              1.1.1, 1.6, 2.25, 3.2.1, 3.11.1, 3.17.1,
      2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2                                                                                                                 4.2.12, 5.3
 Observations, Contractor's                                                                                                                         Panial Occupancy or Use
      1.5.2, 3.2, 3.7.3, 4.3.4                                                                                                                           9.6.6, 9.9, 1 1.4.1.5
 Occupancy                                                                                                                                          Patching, Cutting and
      2.2.2, 9.6.6, 9.8, 1 1.4.1.5                                                                                                                       3.14, 6.2.5
 Orders, Written                                                                                                                                    Patents
      1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1,                                                                                                              3.17
     12.2, 13.5.2, 14.3.1                                                                                                                           Payment, Applications for
 OWNER                                                                                                                                                 4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3,
                2                                                                                                                                      9.7.1, 9.8.5, 9.10.1, 9.10.3, 9.10.5, ll.U,
 Owner, Definition of                                                                                                                                   14.2.4, 14.4.3
      2.1                                                                                                                                           Payment, Certificates for
 Owner, Information and Services Required of                                                                                                           4.2.5, 4.2.9, 9.3.3, 9.4, 9.5. 9.6.1, 9.6.6,
 the                                                                                                                                                   9.7.1, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4
     2.L2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7,                                                                                                      Payment, Failure of
     4.3.3, 6.1.3, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4,                                                                                                   4.3.6, 9.5.1.3, 9.7, 9.10.2, l4.1.t .3,
                                                                                                                                                                                                                                                                                                    ~1$$7   AlA®
-;;©;::-C;:;:o=p:-:-y:::;-rig::-;h7t 719:::::1:-::1-,719::-::1:-:::5-,1:-::9:-::-1-:::-8,-:1:-:::9:-:::25:::-,-:1:-:::9~37:;-,-:1-;:-95::::1,-,-:-1""95::-::8:-,-.:19:::-::6:::-1-,1""9:-:::673,-i:-::9:-=66=-,'""1""9-:::67::-,-::1""97"'0:-,719"'7:::6-,-:-::19""8"'7,-1::-::9::::9-:::-7-:-b-y   AfA DOCUMENT A201, • 1997
 The American !nstilute o! Architects. Fifteenth Edition. Reproduction o! the material herein or substantial                                                                                                                                                                                        GENERAL CONDITIONS OF THE
  quotation of its provisions without written permission of the AlA violates the copyright laws of the United Slates                                                                                                                                                                                CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                                        .            .
  laws and wlll subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                           The American lns1l!Uie of Architects
  permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                                   1735 New York Avenue, N.W·
  expiration as noted below.                                                                                                                                                                                                                                                                        Washington, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                           7
      l4.2.L2, 13.6                                    Regulations and Laws
Payment, Final                                             1.6, 3.2.2, 3.6, 3.7, 3.12,i 1)., ~.11 ~. 4.Ll,
      4.2.1, 4.2.9, 4.3.2, 9.8.2, 9. 10, 11 '1.2,                                       ':1. ·'·~ .1; jJ 1,4.
                                                           4.4.8, 4.6, 9.6.4, 9.9.1, l{j,2.~.
                                                           13.1. 13.4, 13.5.1, 13.5J,-w • !. 11.4.
      ll.L3, 11.4.1, 11.4.5, 12.3.1, 13.7, 14.2.4,
      14.4.3                                           Rejection of Work
                                                                                                 1
                                                                                         · ·>. ' 4      1
Redacted                                                    3.5.1, 4.2.6, 12.2.1
      7.3.6.4,9.6.7,9.10.3, 11.4.9, 11.5               Releases and Waivers of Ll~fi§
Payments, Progress                                           9.10.2
   4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3        Representations
PAYMENTS AND COMPLETION                                     1.5.2, 3.5.1, 3.12.6, 6.2.~~ 8~+ ~·~·~·
      9                                                   9.4.2, 9.5.1, 9.8.2, 9.10.1                  •. .J.,),
Payment~     to Subcontractors                         Representatives
      5.4.2, 9.5.1.3, 9.6.2, 9.6.3, 9.6.4, 9.6.7,            2.1.1, 3.1.1, 3.9, 4.1.1, 4:iti·l~·to, 5.1.1,
      11.4.8, 14.2.1.2                                      ~ l ') 13 ') 1               •. • ·-·lO' 5 • 1.. t,
                                                            ..!-.
                                                                ·-,   .-..

PCB                                                    Resolution of Claims and Df spat~
      l 0.3.1                                               4.4, 4.5, 4.6
Redacted                                               Responsibility for Those Pel'fQfffiina    tJle Work
    7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5                     ..2, 3.1,
                                                            33        84.2.,3438     "'·:.l·V1 ~tl13\V""'
                                                                               . , J:J::5:!•&·f·;•"!::l4:
Permits, Fees and Notices                                  6.3, 9.5.1, 10                    , J. ··'; 6,2,
    2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2                  Retain age
PERSONS AND PROPERTY,                                       . 9.3.1, 9.6.2, 9.8.5, 9.9.l 1   !H83· g.w.~
PROTECTION OF                                          Rev1ew of Contract Documents. ~n,.r.,..,Fr'J<:J~ ..)
                                                                                         , ml le'<!  1
     10                                                Conditions by Contractor
Polychlorinated Biphenyl                                    1.5.2, 3.2, 3.7.3, 3J2.7, (t:i:j
      10.3.1                                                        o!
                                                       Review Contractor's Submiifllig Oy;n~r      81:
Product Data, Definition of                            and Archnect                             1 () •VEt;r
      3.12.2                                                3.10.1, 3.10.2, 3.1 1, 3.1;!h ~·:~· 5.~, 6.1.3.
Product Data and Samples, Shop Drawings                    9.2, 9.8.2                         'L., 6. L3,
     3.11, 3.12, 4.2.7                                 Review of Shop Drawings, Fr-frilBEt B~ta and
Progress and Completion                                Samples by Contractor                      'lta imd
     4.2.2, 4.3.3, 8.2, 9.8, 9.9.1, 14.1.4                  3.12
Progress Payments                                      Rights and Remedies
     4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3          1.1.2, 2.3, 2.4, 3..5.1' 3.15,~. ~.:?.6, 4.3.4,
Project, Definition of the                                 4~'.)<'.'?A'                3 g·.., ..,-.n.'""ta. . ~:n
                                                             5 4 6 5 3 s 4 6 1 6 ''""lt:3;t~~~~~                 ~'
      !.1.4                                                9.7, 10.2.5, 10.3, 12.2.~~ 1H-:f,,3>.4A'A,
Redacted                                               Royalties, Patents and Cop,yrigltff ' 3-4. 14
Redacted                                                    3.17
      11.3                                             Rules and Notices for Arbitratl8H
Project Manual, Definition of the                           4.6.2
     1.1.7                                             Safety of Persons and Propeey
Project Manuals                                             10.2, 10.6                  '
     2.2.5                                             Safety Precautions and Program~
Project Representatives                                     3.3.1, 4.2.2, 4.2.7, 5.3.1,
                                                       Samples, Definition of
                                                                                             'HJ+ t8·2·
                                                                                                 ' .2, l(J.6
                                                                                                             w.6
      4.2.10
Redacted                                                    3.12.3
   10.2.5, 11.4                                        Samples, Shop Drawings, PredH~f P,ata and
PROTECTION OF PERSONS AND                                  3.11,3.12,4.2.7             v   ~Jat:tand
PROPERTY                                               Samples at the Site, Documenl1! 11Ji(l
   10                                                         3.11                                ](

©Copyright 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970,
The American Institute of Architects. Filteenth Edition. Reproduction of the materia!
quotation of its prtwlsions without written permission of the AlA violates the copyright
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying
laws and will subject the violator to legal prosecution. This document was electr
permission oJ the AlA and can be reproduced in accordance wi!h your license without vr
expiration as noted below.
This document is not an original AlA® Contract Document, but a tepr
Contract Documents software for administrative purposes only and Is not for other
Schedule of Values                                                                                                 4.2.9, 8.1.1, 8.L3, 8.2.3, 9.4.2, 9.8, 9.9.1,
      9.2, 9.3.1                                                                                                   9.10.3, 9.10.4.2, 12.2, 13.7
Schedules, Construction                                                                                        Substantial Completion, Definition of
     1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3                                                                  9.8.1
Separate Contracts and Contractors                                                                             Substitution of Subcontractors
     LL4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6,                                                                   5.2.3, 5.2.4
     8.3.1, 11.4.7, 12.1.2, 12.2.5                                                                             Substitution of Architect
Shop Drawings, Definition of                                                                                        4.1.3
      3.12.1                                                                                                   Substitutions of Materials
Shop Drawings, Product Data and Samples                                                                             3.4.2, 3.5.1, 7.3.7
      3.11, 3.12, 4.2.7                                                                                        Sub-subcontractor, Definition of
Site, Use of                                                                                                        5.1.2
      3.13, 6.1.1, 6.2.1                                                                                       Subsurface Conditions                              THIS DOCUMENT HAS IMPORTANT
Site Inspections                                                                                                   4.3.4                                          LEGAL CONSEQUENCES.
      L2.2, 3.2.1, 3.3.3, 3.7.1, 4.2, 4.3.4, 9.4.2,                                                            Successors and Assigns                             CONSULTATION WITH AN
     9.10.1, 13.5                                                                                                   13.2                                          ATTORNEY IS ENCOURAGED WITH
Site Vjsits, Architect's                                                                                                                                          RESPECT TO ITS COMPLETION OR
                                                                                                               Superintendent                                     MODIFICATION. AUTHENTICA T/ON
      4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.5.!, 9.9.2,                                                                    3.9, !0.2.6                                    OF THIS ELECTRON/CALLY
     9.10.1, 13.5                                                                                              Supervision and Construction Procedures            DRAFTED AlA DOCUMENT MAY BE
Special Inspections and Testing                                                                                    1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, MADE BY USING AlA DOCUMENT
                                                                                                                                                                  0401.
      4.2.6, 12.2.1, 13.5                                                                                               6.1.3, 6.2.4, 7.1.3, 7.3.6, 8.2, 8.3.1, 9.4.2,
Specifications, Definition of the                                                                                       10, 12, !4                                                                                        11lis document has been approved and
             L1.6                                                                                             Redacte                                                                                                     endorsed by 11le Associated General
Specifications, The                                                                                                       4.4.7, 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2                                                   Contractors of America.
     l.Ll, 1.1.6, 1.1.7, 1.2.2, 1.6, 3.11,                                                                    Redacted

    3.12.10, 3.17                                                                                                  9.10.2, 9.10.3
Statute of Limitations                                                                                         Surveys
     4.6.3, 12.2.6, 13.7                                                                                           2.2.3
Stopping the Work                                                                                              Suspension by the Owner for Convenience
     2.3, 4.3.6, 9.7, 10.3, 14J.                                                                                  14.4
Stored Materials                                                                                              Suspension of the Work
     6.2.1, 9.3.2, 10.2.1.2, 10.2.4, 11.4.1.4                                                                     5.4.2, 14.3
Subcontractor, Definition of                                                                                  Suspension or Termination of the Contract
            5.1.1                                                                                                 4.3.6, 5.4.1.1, ll.4.9, 14
SUBCONTRACTORS                                                                                                Taxes
            5                                                                                                     3.6, 3.8.2.1, 7.3.6.4
Subcontractors, Work by                                                                                       Temunation by the Contractor
      1.2.2, 3.3.2, 3.12.1, 4.2.3, 5.2.3, 5.3, 5.4,                                                               4.3.10, 14.1
     9.3.1.2, 9.6.7                                                                                           Termination by the Owner for Cause
Subcontractual Relations                                                                                          4.3JO, 5.4.1.1, 14.2
     5.3, 5.4, 9.3.1.2, 9.6, 9.10 10.2.1, 11.4.7,                                                             Termination of the Architect
     11 A.S, 14.1, 14.2.1, !4.3.2                                                                                 4.L3
Sub rni ttals                                                                                                 Termination of the Contractor
     1.6. 3.10, 3.11, 3.12, 4.2.7, 5.2.!, 5.2.3,                                                                  14.2.2
     7.3.6, 9.2, 9.3, 9.8, 9.9.1, 9.10.2, 9.10.3,                                                             TERMINATION OR SUSPENSION OF
           H.l.3                                                                                              THE CONTRACT
Redacted                                                                                                                  14
            6.LJ, 11.4.5, 11.4.7                                                                              Tests and Inspections
Substantial Completion                                                                                            3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.3,
                                                                                                                                                                                                                          <\l1W7 AlA®
-;,©;::-::::C-op-y~rl,-gh:-:t-:1:-::9:-:-11.,.,""1"'9~15:::-,~1:-::9,-18::o-,-:1:-::9-::::25::::-,-1""9:::::3"'7,'""1;-;:9"'57
                                                                                                                             1,-1""9"'5-=8,-1,..,9"'6::-1,-1:-:9c::63-=,-1:-:9""s-=s,-i"'9""6-::7,-1'"'9""'7""0,-1"'9"'7""6,-1'"'9"'8-:;7,"'1'"'9"'9-:;77b-y AlA DOCUMENT A201 - 1997
The American lnsli!ule of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                               GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                        CONTRACT FOR CONSTRUCTION
and \'l'il! subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                    .        .           .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                   The Amencan lnstJtute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                           1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                Washington, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                 9
            9.9.2,9.10.1, 10.3.2, lL4.1.1, 12.2.1,13.5                                                                          Waiver of Claims by the Owner
TIME                                                                                                                                        4.3.10, 9.9.3, 9.10.3, 9.10.4, 11.4.3, 11.4.5,
             8                                                                                                                              11.4.7, 12.2.2.1, 13.4.2, 14.2.4
Time, Delays and Extensions of                                                                                                  Waiver of Consequential Damages
   3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1,                                                                                          4.3.10, 14.2.4
   7.3.1, 7.4.1, 7.5J, 8.3, 9.5.1, 9.7.1, l0.3.2,                                                                               Waiver of Liens
    10.6.1, 14.3.2                                                                                                                  9.10.2, 9.10.4
Time Limits                                                                                                                    Redacted

   2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3. lO, 3.11,                                                                                               6.1.1, ll.4.5, 11.4.7
   3.12.5, 3.1.5.1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.2,                                                                               Warranty
   5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1,                                                                                               3.5, 4.2.9, 4.3.5.3, 9.3.3, 9.8.4, 9.9.1,
   9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10,                                                                                    9.10.4, 12.2.2, 13.7.1.3
    1 U .3, 1 L4.1.5, 11.4.6, ll.4.10, 12.2,                                                                                    Weather Delays                                                                                                                THIS DOCUMENT HAS IMPORTANT
            13.5, 13.7, 14                                                                                                          4.3.7.2                                                                                                                   LEGAL CONSEQUENCES.
Time Limits on Claims                                                                                                           Work, Definition of                                                                                                           CONSULTATION WITH AN
      4.3.2, 4.3.4, 4.3.8, 4.4, 4.5, 4.6                                                                                            1. L3                                                                                                                     ATTORNEY IS ENCOURAGED WITH
                                                                                                                                        •                                                                                                                     RESPECT TO ITS COMPLETION OR
Title to Work                                                                                                                   Wntten Consent          ~                                                                                                     MODIFICATION. AUTHENTICATION
      9.3.2, 9.3.3                                                                                                                  1.6, 3.4.2, 3.12.8, .:>.14.2, 4.1.2, 4.3.4, 4.6.4,                                                                        OF THIS ELECTRONICALLY
 UNCOVERING AND CORRECTION OF                                                                                                       9.3.2, 9.8.5,.9.9.1, 9.10.2, 9.10.3, llA.l,                                                                               DRAFTED A/A DOCUMENT MAYBE
 WORK                                                                                                                               13.2, 13.4.2                                                                                                              MADEBYUS/NGAIADOCUMENT
     12                                                                                                                         Written Interpretations                                                                                                       D401.
 Uncovering of Work                                                                                                                  4.2.11, 4.2.12, 4.3.6                             This document has been approved and
              12.1                                                                                                              Written Notice                                         endorsed by The Associated General
 Unforeseen Conditions                                                                                                              2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3,        Contractors of America.
      4.3.4, 8.3.1, 10.3                                                                                                            4.4.8, 4.6.5, 5.2J, 8.2.2, 9.7, 9.10, 10.2.2,
 Unit Prices                                                                                                                        10.3, 11.1.3, 1 L4.6, 12.2.2, 12.2.4, 13.3,
      4.3.9, 7.3.3.2                                                                                                                14
 Use of Documents                                                                                                               Written Orders
      1.1.1, 1.6, 2.2.5, 3.12.6, 5.3                                                                                                l.L l, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1,
 Use of Site                                                                                                                                12.2, 13.5.2, 14.3.1
     3.13, 6.Ll, 6.2.1
 Values, Schedule of
     9.2, 9.3.1
 Waiver of Claims by the Architect
     13.4.2
 Waiver of Claims by the Contractor
     4.3.10, 9.10.5, 11.4.7, 13.4.2


 ARTICLE 1 GENERAL PROVISIONS
    1.1    BASIC DEFINITIONS
    1.1.1 THE CONTRACT DOCUMENTS
            The Contract Documents consist of the Agreement between Owner and Contractor
            (hereinafter the Agreement), Conditions of the Contract (General, Supplementary and other
            Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract,
            other documents listed in the Agreement and Modifications issued after execution of the
            Contract. A Modification is (I) a written amendment to the Contract signed by both parties,
            (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor
            change in theWork issued by the Architect. Unless specifically enumerated in the Agreement,
                                                                                                                                                                                                                                                              f&1997 AlP/!;
-:©::-=Co_p_y-=rig""'h-:-1-:19""1731-,..,.19""'1"'5-,1.,. .,9""1"'"8,-1-=9c:-25-=-,. .,1,. ,.9""'37"'",""'1-:-95""'1,. . ,-19""5""'3-,..,.19"'"'6,..,.1-,1-9-6-3,-1"""9""'66.,..,-1'""9-67,...,...,.1"'97""'0-,-19.,..,7""'6-,-19_8....,7-,1_9_9.,..7.,--by   AlA DOCUMENT A201 - 199~
  The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                 GENERAL CONDITIONS OF I HE
  quotation of its provisions without written permission of the A!A violates the copyright laws of tho United States                                                                                                                                          CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                         .       ,           .
  laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                     The Amencan lnsbtute of Architects
  permission of !he AlA and can be reproduced in accordance with your license vlithout violation until the date ol                                                                                                                                            1735 ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                  Washmgton, D.C. 20006-5292
  This document is not an original AlA® Contract Document, but a reproduction produced by AJA®
  Contract Documents software for administrative purposes only and ls not for other use or resale.
                                                                                                                                                                                                                                                     10
       the Contract Documents do not include other documents such as bidding requirement>
       (advertisement or invitation to bid, Instructions to Bidders, sample forms, the Contractor's bid
       or portions of Addenda relating to bidding requirements).

      1.1.2 THE CONTRACT
      The Contract Documents form the Contract for Construction. The Contract represents the
      entire and integrated agreement between the parties hereto and supersedes prior negotiations,
      representations or agreements, either written or oral. The Contract may be amended or
      modified only by a Modification. The Contract Documents shall not be construed to create a
      contractual relationship of any kind (1) between the Architect and Contractor, (2) between the
      Owner and a Subcontractor or Sub-subcontractor, {3) between the Owner and Architect or {4)
      between any persons or entities other than the Owner and Contractor. The Architect shall,
      however, be entitled to performance and enforcement of obligations under the Contract THJS DOCUMENT HAS IMPORTANT
      intended to facilitate performance of the Architect's duties.                                  LEGAL CONSEQUENCE£
                                                                                                                                          CONSULTATION WITH AN
      1.1.3 THE WORK                                                                                                                      AITORNEY IS ENCOURAGED WITH
      The term "Work" means the construction and services required by the Contract Documents                                              RESPECTTO!TSCOMPLET/ONOR
                                                    .                              •       •   '                                          MODIFJCATJON. AUTHENTICATION
      whether completed or partially completed, and mcludes all other .labor, matenals, eqmpment                                          OF THIS ELECTRONlCALL y
      and services provided or to be provided by the Contractor to fulfill the Contractor's                                               DRAFTED AlA DOCUMENT MAY BE
      obliaations. The Work may constitute the whole or a part of the Project.                                                            MADE BY USING AlA DOCUMENT
            D                                                                                                                             ~~


      1.1.4 THE PROJECT                                                                       Thisdocumenthasbeenapprovedand
      The Project is the total construction of which the Work performed under the Contract endorsed by The Associated General
      Documents may be the whole or a part and which may include construction by the Owner or Contra.clors of America.
      by separate contractors.

      1.1.5 THE DRAWINGS
      The Drawings are the graphic and pictorial portions of the Contract Documents showing the
      design, location and dimensions of the Work, generally including plans, elevations, sections,
      details, schedules and diagrams.

      1.1.6 THE SPECIFICATIONS
      The Specifications are that portion of the Contract Documents consisting of the written
      requirements for materials, equipment, systems, standa.....:ls and workmanship for the Work,
      and performance of related services.

      1.1.7 THE PROJECT MANUAL
      The Project Manual is a volume assembled for the Work which may include the bidding
      requirements, sample forms, Conditions of the Contract and Specifications.

      1.2      CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
      1.2.1 The intent of the Contract Documents is to include all items 11ecessary for the proper
      execution and completion of the \\1ork by the Contractor. The Contract Documents are
      complementary, and what is required by one shall be as binding as if required by all;
      performance by the Contractor shall be required only to the extent consistent with the
      Contract Documents and reasonably inferable from them as being 11ecessary to produce the
      indicated results.


                                                                                                                                         «:l1997 AIM'!
~©'Co~p~y~rig~h~t"1~9~11~.•1~9~15~,•1~9~18~,•1~9~25~,•1~9~37~,~1~9~517,~1~9~58~,~1~9~67
                                                                                      1,~1~9~63~,~1~9~6~6,~1~9~6-~t.~1~9~70~.~1~9~76~.~1~9~87~.~1~9~9~77
                                                                                                                                                       b~y AIAOOCUMENTA201-1997
The American Institute of Architects. Flfteenlh Edition. Reproduction of the material herein or substantial                               GENERAL CONDITIONS OF THE
quotation of its provisions without written pem1ission of lhe AlA violates the copyright laws of !he United Stales                        CONTRACT FOR CONSTRUCTION
and vAll subjacllhe violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright
laws and will subject the violator to legal prosecution. This document was electronically produced with                                   The American Institute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                           1735 New York Avenue, N.W.
expiration as noted below.                                                                                                                Washington, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduc!lon produced by AlA®
Contract Documents soft.vare for administrative purposes only and is not for other use or resale.
            1.2.2 Organization of the Specifications into divisions, sections and articles, and
            arrangement of Drawings shall not control the Contractor in dividing the Work among
            Subcontractors or in establishing the extent of Work to be perfonned by any trade.

             1.2.3 Unless otherwise stated in the Contract Documents, words which have well-known
             technical or construction industry meanings are used in the Contract Document~ in
             accordance with such recognized meanings.

             1.3      CAPITALIZATION
             1.3.1    Terms capitalized in these General Conditions include those which are (l)
             specifically defined, (2) the titles of numbered articles and identified references to Paragraphs,
             Subparagraphs and Clauses in the document or (3) the titles of other documents published by
             the American Institute of .Architects.                                                             THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                              LEGAL CONSEQUENCES.
             1.4       INTERPRETATION                                                                                                                                                                                                                                         CONSULTATION WJTH AN
             1.4.1 In the interest of brevity the Contract Documents frequently omit modifying words                                                                                                                                                                          ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                              RESPECT TO ITS COMPLETION OR
             such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an                                                                                                                                                                  MODIFICATiON. AUTHENTICATION
             article is absent from one statement and appears in another is not intended to affect the                                                                                                                                                                        OF THIS ELECTRON/GALL Y
             interpretation of either statement                                                                                                                                                                                                                               DRAFTED A!A DOCUMENT MAY BE
                                                                                                                                                                                                                                                                              MADE BY USiNG AlA DOCUMENT
                                                                                                                                                                                                                                                                              0401.
             1.5       EXECUTION OF CONTRACT DOCUMENTS
             1.5.1 The Contract Documents sha11 be signed by the Owner and Contractor. 1f either the                                                                                                                                                                          This document has been approved and
             Owner or Contractor or both do not sign all the Contract Documents, the Architect shall                                                                                                                                                                          endorsed by The Associated General
             identify such unsigned Documents upon request.                                                                                                                                                                                                                   Contractors of America.

             1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor
             has visited the site, become generally familiar with local conditions under which the Work is
             to be perfonned and correlated personal observations with requirements of the Contract
             Documents.

             1.6      OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER
                      INSTRUMENTS OF SERVICE
             1.6.1 The Drawings, Specifications and other documents, including those in electronic
             fonn, prepared by the Architect and the Architect's consultants are 1nstruments of Service
             through which the Work to be executed by the Contractor is described. The Contractor may
             retain one record set Neither the Contractor nor any Subcontractor, Sub-subcontractor or
             material or equipment supplier shall own or claim a copyright in the Drawings, Specifications
             and other documents prepared by the Architect or the Architect's consultants, and unless
             otherwise indicated the Architect and the Architect's consultants shaH be deemed the authors
             of them and will retain aU common law, statutory and other reserved rights, in addition to the
             copyrights. All copies of Instruments of Service, except the Contractor's record set, shaH be
             returned or suitably accounted for to the Architect, on request, upon completion of the Work
             The Drawings, Specifications and other documents prepared by the Architect and the
             Architect's consultants, and copies thereof furnished to the Contractor, are for use solely with
             respect to this Project. They are not to be used by the Contractor or any Subcontractor, Sub-
             subcontractor or material or equipment supplier on other projects or for additions to this
             Project outside the scope of the Work without the specific written consent of the Owner,
             Architect and the Architect's consultants. The Contractor, Subcontractors, Sub-subcontractors
             and material or equipment suppliers are authorized to use and reproduce applicable portions
                                                                                                                                                                                                                                                                              e1997 NNf;
""©'"'Co;::--p-yr.,..ig.,.hl:-i-:-::9:-.-1""1,-1'""9"'1s=-.--.,-=9-:-:18=-,-:-1""92:-::5:-,"'19::-:3"'7,...,""'19='=5""1-,1-:-:9"'5""'8,-1""9-::-61.,...,-:1-=96""3::-,""1""96""6,...,..,.19::-:6,-::7'"","'"'19""7""'0-,1"""9:-::7"'"6,-1:-:::9"'"87=-,-:1""9"'"'97=-b=--y   AlA DOCUMENT A201 ·1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                  GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                           CONTRACT FOR CONSTRUCTION
 and •Nill subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                          .       .        : .
 laws and will subject the violator lo legal prosecution. This document was elec!ronicaUy produced with                                                                                                                                                                       The Amencan Institute of Architects
 permission ot the AlA and can be reproduced in accordance with your license v.~thout violation until the date of                                                                                                                                                             1735 ~4ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                   Wash:ngton, D.C. 20006-5292
 This document is not an original AJA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                     12
              of the Drawings, Specifications and other documents prepared by the Architect and the
              Architect's consultants appropriate to and for use in !he execution of their Work under the
              Contract Documents. All copies made under this authorization shall bear the statutory
              copyright notice, if any, shown on the Drawings, Specifications and other documents prepared
              by the Architect and the Architect's consultants. Submittal or distribution to meet official
              regulatory requirements or for other purposes in connection with this Project is not to be
              construed as publication in derogation of the Architect's or Architect's consultants' copyrights
              or other reserved rights.

 ARTICLE 2 OWNER
    2.1      GENERAL
    2.1.1    The Owner is the person or entity identified as such in the Agreement and is referred
    to throughout the Contract Documents as if singular in number, The Owner shall designate in THIS DOCUMENT HAS IMPORTANT
              writing a representative who shall have express authority to bind the Owner with respect to all LEGAL CONSEQUENCES.
              matters requiring the Owner's approval or authorization. Except as otherwise provided in        CONSUL TAT/ON WITH AN
              Subparagraph 4.2.1, the Architect does not have such authority, The term "Owner" means the      ATTORNEY IS ENCOURAGED WITH
                                                                                                              RESPECT TO JTS COMPLETION OR
              Owner or the Owner's authorized representative.                                                 MODIFICATION. AUTHENTJCA TION
                                                                                                              OF THIS ELECTRON/CALLY
              2.1.2     The Owner shall furnish to the Contractor within fifteen days after receipt of a DRAFTED AlA DOCUMENT MAY BE
              written request, information necessary and relevant for the Contractor to evaluate, give notice MADE BY USING AlA DOCUMENT
                                                                                                              0401.
              of or enforce mechanic's lien rights. Such infonnation shall include a correct statement of the
              record legal title to the property on which the Project is located, usually referred to as the site, This document has been approved and
              and the Owner's interest therein.                                                                    endorsed by The Associated General
                                                                                                                                                                                                                                                                                                 Contractors of America.
              2.2                       INFORMATION AND SERVICES REQUIRED OF THE OWNER
              2.2. i   The Owner shall, at the written request of the Contractor, prior to commencement of
              the Work and thereafter, furnish to the Contractor rea.~onable evidence that financial
              arrangements have been made to fulfill the Owner's' obligations under the Contract
              Furnishing of such evidence shall be a condition precedent to commencement or continuation
              of the Work. After such evidence has been furnished, the Ovmer shall not materially vary
              such financial arrangements without prior notice to the Contractor.

              2.2.2 Except for pennits and fees, including those required under Subparagraph 3.7.1,
              which are the responsibility of the Contractor under the Contract Documents, the Owner shall
              secure and pay for necessary approvals, easements, assessments and charges required for
              construction, use or occupancy of permanent structures or for pern1anent changes in existing
              facilities.

              2.2.3 The Owner shall furnish surveys describing physical characteristics, legal !imitations
              and utility locations for the site of the Project, and a legal description of the site. The
              Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but
              shall exercise proper precautions relating to the safe performance of the Work.

              2.2.4 Infonnation or services required of the Owner by the Contract Documents shall be
              furnished by the Owner with reasonable promptness. Any other information or services
              relevant to the Contractor's performance of the Work under the Owner's control shall be
              furnished by the Owner after receipt from the Contractor of a '''ritten request for such
              information or services.

                                                                                                                                                                                                                                                                                                 ill1SS7 Alm;
"'©;;-;:::Co:-:p~y...,-rig:;:h7t 71 ~91;-:;1-,""'19""1;-:::5-,1'""9"'"1-:::-8,-:1:-::9::::25:::-,-:1;-:::9-::c37::-,-:1-::::-95;:::1:-.-::-1""'95=::8:-,719:::-:6::-:-1-,""'19:-:63:::,-1'"'9:-::676,-:1:-::9767"",...,1""'97:::-:0::-,..,.1"'97::-:6:-,""'19::::8::7-,1.,-,9:-=9-::::-7-:--by   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                                     GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                              CONTRACT FOR CONSTRUCTION
 and vAll subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                             •       .           •
 laws and will subject !he violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                         The Amencan lnshtute of Archltacts
 permission of the AlA and can be reproduced in accordance with your license ~t.ithout violation until the date of                                                                                                                                                                               1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                                      Washmgton, D.C. 20006-5292
 This document ls not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administralive purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                       13
            2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will be
            furnished, free of charge, such copies of Drawings and Project Manuals as are reasonably
            necessary for execution of the Work.

            2.3                  OWNER'S RIGHT TO STOP THE WORK
            2.3.1    If the Contractor fails to correct Work which is not in accordance with the
           requirement<; of the Contract Documents as required by Paragraph 12.2 or persistently fails to
           carry out Work in accordance with the Contract Documents, the Owner may issue a written
           order to the Contractor to stop the Work, or any portion thereof, until the cause for such order
           has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a
           duty on the part of the Owner to exercise this right for the benefit of the Contractor or any
           other person or entity, except to the extent required by Subparagraph 6.1.3.
                                                                                                                                                                                                                                           THIS DOCUMENT HAS IMPORTANT
           2.4                  OWNER'S RIGHT TO CARRY OUT THE WORK                                                                                                                                                                        LEGAL CONSEQUENCES.
           2.4.1    If the Contractor defaults or neglects to carry out the Work in accordance with the                                                                                                                                    CONSUL TAT/ON WITH AN
           Contract Documents and fails within a seven-day period after receipt of written notice from                                                                                                                                     ATTORNEY IS ENCOURAGED WITH
           the Owner to commence and continue correction of such default or neglect with diligence and                                                                                                                                     RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                           MODIFICATION, AUTHENTICATION
           promptness, the Owner may after such seven-day period give the Contractor a second written                                                                                                                                      OF THIS ELECTRONICALLY
           notice to correct such deficiencies within a three-day period. If the Contractor within such                                                                                                                                    DRAFTED AlA DOCUMENT MAY BE
           three-day period after receipt of such second notice fails to commence and continue to correct                                                                                                                                  MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                           D40f.
           any deficiencies, the Owner may, without prejudice to other remedies the Owner may have,
           correct such deficiencies. In such case an appropriate Change Order shall be issued deducting This document has been approved and
           from payments then or thereafter due the Contractor the reasonable cost of correcting such endorsed by The Associated General
           deficiencies, including Owner's expenses and compensation for the Architect's additional Contractors of America
           services made necessary by such default, neglect or failure. Such action by the Owner and
           amounts charged to the Contractor are both subject to prior approval of the Architect. If
           payments then or thereafter due the Contractor are not sufficient to cover such amounts, the
           Contractor shall pay the difference to the Owner.

 ARTICLE 3 CONTRACTOR
    3.1   GENERAL
    3.1.1 The Contractor is the person or entity identified as such in the Agreement and is
           referred to throughout the Contract Documents as if singular in number. The term
           "Contractor" means the Contractor or the Contractor's authorized representative.

           3.1.2                The Contractor shall perform the Work in accordance with the Contract Document~.

           3.1.3    The Contractor shall not be relieved of obligations to perfonn the Work in
           accordance with the Contract Documents either by activities or duties of the Architect in the
           Architect's administration of the Contract, or by tests, inspections or approvals required or
           perfonned by persons other than the Contractor.

           3.2                  REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY
                                CONTRACTOR
            3.2.1               Since the Contract Documents are complementary, before starting each portion of
           the Work, the Contractor shall carefully study and compare the various Drawings and other
           Contract Documents relative to that portion of the Work, as well as the information furnished
           by the Owner pursuant to Subparagraph 2.2.3, sha11 take field measurements of any existing
           conditions related to that portion of the Work and shall observe any conditions at the site ,~- . ·'"""'.,.,..."·
                                                                                                                                                                                                                                           (;1997 AINi'J
-:;©~C~op:::y::;ri::;ghc:t-::1~97
                                117,-::1~97
                                          15;:-,-::1~97
                                                      18;::-,-::1c:::9~25;:-,-::1c:::9~37::-,-::1c:::9.,.517,-::1:-:::9.,.58::-,-:1:-:::9~6:::-1,-::1:-:::9:-:::63;:-,-:1:-:::96-=6-=,-:1:-:::9~67::-,-:1:-:::9c::70:::-,-:1:-:::9c::76::-,-:1:-:::9-=$7::-,-:1:-:::9:-:::97,.,-b-y AlA DOCUMENT A201 ·1997
The American lnst1tule of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United Slates                                                                                                                         CONTRACT FOR CONSTRUCTION
and will subject !he violate to legal prosec~;1ion. WARNING: Unlicensed pho!occpying violates U.S. copyright                                                                                                                                       .       .            .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                    The Amencan lostl!ute of Architects
permission ofthe AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                             1735 ~ew York Avenue, N.W •
expiration as noted below.                                                                                                                                                                                                                 Washmgton, D.C. 20006·5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                   14
              affecting it. These obligations are for the purpose of facilitating construction by the
              Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in
              the Contract Documents; however, any errors, inconsistencies or omissions <iiscovered by the
              Contractor shall be reported promptly to the Architect as a request for information in such
              form as the Architect may require.

              3.2.2    Any design errors or omissions noted by the Contractor during this review shall be
              reported promptly to the Architect, but it is recognized that the Contractor's review is made in
              the Contractor's capacity as a contractor and not as a licensed design professional unless
              otherwise specifically provided in the Contract Documents. The Contractor is not required to
              ascertain that the Contract Documents are in accordance with applicable laws, statutes,
              ordinances, building codes, and rules ;;.nd regulations, but any nonconformity discovered by or
              made known to the Contrnctor shall be reported promptly to the Architect.
                                                                                                                                                                                                                                                                                                     THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                                                     LEGAL CONSEQUENCES.
              3.2.3     If the Contractor believes that additional cost or time is involved because of                                                                                                                                                                                               CONSUL TAT/ON WITH AN
              clarifications or instructions issued by the Archi teet in response to the Contractor's notices or                                                                                                                                                                                     ATTORNEY IS ENCOURAGED WITH
                     .      .        .                      .                  .,                             ,                                                                                                                                                                                      RESPECT TO ITS COMPLETION OR
              req~ests for mf?rmat:mn pursuant to Subparagraphs 3.2.1 and .J .2.2, the Con~ctor shall make                                                                                                                                                                                           MODIFICATION. AUTHENTICATION
              Cla~ms as prov1ded in Subparagraphs 4.3.6 and 4.3.7. If the Contractor fatls to petform the                                                                                                                                                                                            OF THIS ELECTRONICALLY
              obligations of Subparagraphs 3.2.1 and 3.2.2, the Contractor shall pay such costs and damages                                                                                                                                                                                          DRAFTED AlA DOCUMENT MAY BE
              to the Owner as would have been avoided if the Contractor had performed such obligations.                                                                                                                                                                                              MADE BY USING AlA DOCUMENT
              The Contractor shall not be liable to the Owner or Architect for damages resulting from                                                                                                                                                                                                D4iJt.
              errors, inconsistencies or omissions in the Contract Documents or for differences between This document has been approved and
              field measurements or conditions and the Contract Documents unless the Contractor endorsed by The Associated General
              recognized such error, inconsistency, omission or difference and knowingly failed to report it Contractors of America.
              to the Architect.

              3.3                        SUPERVISION AND CONSTRUCTION PROCEDURES
              3.3.1     The Contractor sha11 supervise and direct the Work, using the Contractor's best skill
              and attention. The Contractor shall be solely responsible for and have control over
              construction means, methods, techniques, sequences and procedures and for coordinating a11
              portions of the Work under the Contract, unless the Contract Documents give other specific
              instructions concerning these matters. If the Contract Documents give specific instructions
              concerning construction means, methods, techniques, sequences or procedures, the Contractor
              shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely
              responsible for the jobsite safety of such means, methods, techniques, sequences or
              procedures. If the Contractor determines that such means, methods, techniques, sequences or
              procedures may not be safe, the Contractor shall give timely written notice to the Owner and
              Architect and shall not proceed with that portion of the Work v.>ithout further written
              instructions from the Architect. If the Contractor is then instructed to proceed with the
              required means, methods, techniques, sequences or procedures without acceptance of changes
              proposed by the Contractor, the Owner shall be solely responsible for any resulting loss or
              damage.

              3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the
              Contractor's employees, Subcontractors and their agents and employees, and other persons or
              entities perforn1ing portkms of the Work for or on behalf of the Contractor or any of its
              Subcontractors.


                                                                                                                                                                                                                                                                                                     @1997 NA'ill
-;;;©;-;C"-o=p=yr::::ig:;:h-;-1<.19:;-;i::;-1-,1::::9;-:;i;::-5,-:1;;;9::;-1S;;-,-:;1-;;9"N25;:-,-;1-;:;:93;;:7;-,::;-19;;;5:::;1-,<.19:;;5:-;;8-,,1::::9;-;:571,-:1;-;;9-;:;:63;;-,-;1-;;96::::6::-,-;1;;-96""'7;-,-:;-19;;:7;;;0:-,.,19:;:7;:::6-,,1::::9:-.::8-::::7,-:1:-.::9::::97:;-;-:-:-by   AlA DOCUMENT A201 ·1997
 The American lnslitute of Architects. Fifteenth Edition. Reproduc!lon ol the material herein or substantial                                                                                                                                                                                         GENERAL CONDITIONS OF THE
 quotation of its provisions vi.thoul written permission of the AlA violates the copyright ta..vs of the United States                                                                                                                                                                               CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal proseci,.1ion. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                                  ,       .          •
 laws and wli! subject the violator to legal prosecution. This document was electronically produced lflilh                                                                                                                                                                                           T~e_Amencan lns!tlu!e of Arch1tects
 permission ot the AlA and can be reproduced ln accordance with your license without violation until the date of                                                                                                                                                                                     i t3::> ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                                          Washmgton, D.C. 20006·5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                          15
       3.3.3   The Contractor shall be responsible for inspection of portions of Work already
       perfonned to determine that such portions are in proper condition to receive subsequent
       Work

       3.4           LABOR AND MATERIALS
       3.4.1      Unless otherwise provided in the Contract Documents, the Contractor shall provide
       and pay for labor, materials, equipment, tools, construction equipment and machinery, water,
       heat, utilities, transportation, and other facilities and services necessary for proper execution
       and completion of the Work, whether temporary or pennanent and whether or not
       incorporated or to be incorporated in the Work.

       3.4.2    The Contractor may make substitutions only with the consent of the Owner, after
       evaluation by the Architect and in accordance with a Change Order.                       THIS DOCUMENT HAS IMPORTANT
                                                                                                    LEGAL CONSEQUENCES.
       3.4.3   The Contractor shall enforce strict discipline and good order among !he Contractor's CONSULTATION WITH AN
       employees and other persons carrying out the Contract The Contractor shall not pennit        ATTORNEY IS ENCOURAGED WITH
                                                                                                    RESPECT TO ITS COMPLETION OR
       employment of unfit persons or persons not sldfled in tasks assigned to them.                MODIFICATION. AUTHENTICATION
                                                                                                    OF THIS ELECTRON/CALLY
       3.5          WARRANTY                                                                        DRAFTED AlA DOCUMENT MAY BE
       3.5. i       The Contractor warrants to the Owner and Architect that materials and equipment MADE BY USING AlA DOCUMENT
                                                                                                                                                       D401.
       furnished under the Contract will be of good quality and new unless otherwise required or
       permitted by the Contract Documents, that the Work will be free from defects not inherent in                                                    This document has been approved and
       the quality required or pennitted, and that the Work will confonn to tl1e requirements of the                                                   endorsed by The Associated General
       Contract Documents. \York not conforming to these requirements, including substitutions not                                                     Contractors of America.
       properly approved and authorized, may be considered defective. The Contractor's warranty
       excludes remedy for damage or defect caused by abuse, modifications not executed by the
       Contractor, improper or insufficient maintenance, improper operation, or normal wear and
       tear and normal usage. If required by the Architect, the Contractor shall furnish satisfactory
       evidence as to the kind and quality of materials and equipment.

       3.6          TAXES
       3.6.1    The Contractor shall pay sales, consumer, use and similar taxes for the Work
       provided by the Contractor which are legally enacted when bids are received or negotiations
       concluded, whether or not yet effective or merely scheduled to go into effect.

       3.7           PERMITS, FEES AND NOTICES
       3.7.1    Unless otherwise provided in the Contract Documents, the Contractor shall secure
       and pay for the building permit and or.her permits and governmental fees, licenses and
       inspections necessary for proper execution and completion of the Work which are customarily
       secured after execution of the Contract and which are legally required when bids are received
       or negotiations concluded..

       3.7.2     The Contractor shall comply with and give notices required by laws, ordinances,
       rules, regulations and lawful orders of public authorities applicable to performance of the
       Work.
                                                                                                                                                           -
       3.7.3     1t is not the Contractor's responsibility to ascertain that the Contract Documents are
       in accordance with applicable laws, statutes, ordinances, building codes, and rules and ,....J~
       regulations. However, if the Contractor observes that portions of the Contract Documents are
                                                                                                                                                       <:l1897 Alfl®
~©~G~o-p-y~ng~h~t7.19~1~1-,1~9~1~~~1~9~18~.~1~92~5~,-.17
                                                       93~7~.~19~5~1-,~19~5~8-,i~9~6~1,-1~9~63~,~1~9~66~,~1~96~7~,~19~7~0-,~19~7~6,-1~9~8=~-1~97
                                                                                                                                               97~by   AlADOCUMENTA201·1997
The American !nsli!ute of Architects. Fifteenth Edition. Reproductfon oi the material herein or substantia!                                            GENERAL CONDITIONS OF THE
quotation of its provisions Vvithout wrilten permission oft he AlA violates the copyright laws of the Unl!ed States                                    CONTRACT FOR CONSTRUCTION
and will subjecllhe violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                     .        .          .
laws and w1ll subject the violator to legal prosecution. This document vtas electronically produced with                                               The Amencan lnshtute of Archttects
permission of the AlA and can be reproduced in accordance with your license without violation until the date ol                                        1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                             Washtngton, D.C. 20006·5292
This document Is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                16
            at variance therewith, the Contractor shall promptly notify the Architect and , Owner in
            writing, and necessary changes sllall be accomplished by appropriate Modification.,

           3.7.4     If the Contractor performs Work knowing it to be contrary to laws, statutes,
           ordinances, building codes, and rules and regulations without such notice to the Architect and
           Owner, the Contractor shall assume appropriate responsibility for such Work and shall bear
           the costs attributable to correction.

           3.8                   ALLOWANCES
           3.8.1    The Contractor shall include in the Contract Sum all allowances stated in the
           Contract Documents. Items covered by allowances shall be supplied for such amounts and by
           such persons or entities as the Owner may direct, but the Contractor shall not be required to
           employ persons or entities to whom the Contractor has reasonable objection.                   THIS DOCUMENT HAS IMPORTANT
                                                                                                                                  LEGAL CONSEQUENCES.
           3.8.2                   Unless otherwise provided in the Contract Documents:                                           CONSUL TAT/ON WITH AN
                                                                                                                                  ATTORNEY IS ENCOURAGED WITH
                                                                                                                                  RESPECT TO ITS COMPLETION OR
                                 .1         allowances shall cover the cost to the Contractor of materials and equipment MODIFICATION. AUTHENTICATION
                                            delivered at the site and aU required taxes, less applicable trade discounts;         OF THIS ELECTRON/CALLY
                                 .2         Contractor's costs for unloading and handling at the site, labor, installation costs, DRAFTED AlA DOCUMENT !i,1A Y BE
                                            overhead, profit and other expenses contemplated for stated allowance amounts A.fADE BY USING AlA DOCUMENT
                                                                                                                                  D401.
                                            shall be included in the Contract Sum but not in the allowances;
                                 .3         whenever costs are more than or less than allowances, the Contract Sum shall be This document has been approved and
                                            adjusted accordingly by Change Order. The amount of the Change Order shall endorsed by The Associated General
                                            reflect (1) the difference between actual costs and the allowances under Clause Contractors of America.
                                            3.8.2.1 and {2) changes in Contractor's costs under Clause 3.8.2.2.

           3.8.3 .Materials and equipment under an allowance shall be selected by the Owner in
           sufficient time to avoid delay in the Work.

           3.9                   SUPERINTENDENT
           3.9.1                 The Contractor shall employ a competent superintendent and necessary assistants
           who shall be in attendance at the Project site during performance of the Work. The
           superintendent shall represent the Contractor, and communications given to the
           superintendent shall be as binding as if given to the Contractor. Important communications
           shall be confirmed in writing. Other communications shall be similarly confirmed on written
           request in each case.

           3.10                   CONTRACTOR'S CONSTRUCTION SCHEDULES
           3.1 0.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit
           for the Owner's and Architect's information a Contractor's construction schedule for the Work
           The schedule shall not exceed time limits current under the Contract Documents, shall be
           revised at appropriate intervals as required by the conditions of the Work and Project, shall be
           related to the entire Project to the extent required by the Contract Documents, and shall
           provide for expeditious and practicable execution of the Work.

           3.10.2 The Contractor shall prepare and keep current, for the Architect's approval, a
           schedule of submittals which is coordinated with the Contractor's construction schedule and
           allows the Architect reasonable time to review submittals.

                                                                                                                                                                                                                                                  el1997   ~11'/f)
-::©::-Co=---p-y..,.rig"""h-:-1""'19::-1:-:1-,""19'"'1-=5-,1""'9""1.,.8,-1""'9""25"'",,..,1""'9""'37"","'"'1""'95=-1,...,_,19""58=-o--,.,.19:-:6-1-,1-9=6-3,-1""'9""66.,.,.,..,1-9""67,_,...,1""9-"'tO,...,_,19=7'"'6-,-19-8=7,-1=9-9.-7-,---by   AlA DOCUMENT A201 ·199~
 The American Institute of Architects. Fifteenth Edition. Reproduction ol the material herein or substantial                                                                                                                                      GENERAL CONDITIONS OF l HE
 quotation of its provisions without written permission of the AlA violates the copyright Jaws of the United Slates                                                                                                                               CONTRACT FOR CONSTRUCTION
  and wifl subject the violate to legal prosecution. WARNING: Unlicensed photocopying \~elates U.S. copyright                                                                                                                                             .       .            .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                          The Amencan Institute of Arch1tects
 permission of the AlA and can be reproduced in accordance with your license without violation un!i! the date of                                                                                                                                  1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                       Washmgton, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                         17
             3.10.3 The Contractor shall perform the Work in general accordance with the most recent
             schedules submitted to the Owner and Architect.

             3.11                    DOCUMENTS AND SAMPLES AT THE SITE
             3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the
             Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order
             and marked currently to record field changes and selections made during construction, and
             one record copy of approved Shop Drawings, Product Data, Samples and similar required
             submittals. These shall be available to the Architect and shall be delivered to the Architect for
             submittal to the Owner upon completion of the Work.

             3.12   SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
             3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared THIS DOCUMENT HAS IMPORTANT
            for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier LEGAL CONSEQUENCES.
            or distributor to illustrate some portion of the Work.                                       CONSULTATION WITH AN
                                                                                                                                                                                                                                                                      ATTORNEY IS ENCOURAGED WITH
             3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, RESPECT TO ITS COMPLETION OR
                                                                                                          MODIFICATION. AUTHENTICATION
             brochures, diagrams and other infonnation furnished by the Contractor to illustrate materials OF THJS ELECTRON/CALLY
             or equipment for some ponlon of the Work.                                                     DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                                      MADE BY USING AlA DOCUMENT
             3.12.3 Samples are physical examples which illustrate materials, equipment or D4ot.
             workmanship and establish standards by which the Work ·will be judged.        This document has been appro'led and
                                                                                                                                                                                                                                                                      endorsed by The Associated General
             3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Contractors of America.
             Documents. The purpose of their submittal is to demonstrate for those portions of the Work
             for which submittals are required by the Contract Documents the way by which the
             Contractor proposes to conform to the information given and the design concept expressed in
             the Contract Documents. Review by the Architect is subject to the limitations of
             Subparagraph 4.2.7. Informational submittals upon which the Architect is not expected to take
             responsive action may be so identified in the Contract Documents, Submittals which are not
             required by the Contract Documents may be returned by the Architect without action.

             3.12.5 The Contractor shall review for compliance with the Contract Documents, approve
             and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals
             required by the Contract Documents with reasonable promptness and in such sequence as to
             cause no delay in the Work or in the activities of the Owner or of separate contractors.
             Submittals which are not marked as reviewed for compliance with the Contract Documents
             and approved by the Contractor may be returned by the Architect without action.

            3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar
            submittals, the Contractor represents that the Contractor has determined and verified
            materials, field measurements and field construction criteria related thereto, or will do so, and
            has checked and coordinated the infonnation contained within such submittals with the
            requirements of the Work and of the Contract Documents.

             3.12.7 The Contractor shall perform no portion of the Work for which the Contra.ct
             Documents require submittal and review of Shop Drawings, Product Data, Samples or similar
             submittals until the respective submittal has been approved by the Architect.

                                                                                                                                                                                                                                                                      lOl$$7 AIN/!';
""©""'C"'"o-p-yr""'ig-,..h7l ""19""'1--::1-,1""'9'""1-=5,-1:-::9'"'"1s=-,-=1-=92""5=-,-.1::-93:-::7:-,""'19::-:5::-:1-,""'19""5"'"8,-1""9""6"'"1,-1'""9""'63"'",""'1""96""6::-,..,.1.,..96:-::7:-,719:::7:-:0-,-:-:19::-::7:-::6,-:1'"'9"'"8=7,-:1:-::9""'97:-:--by   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                          GEN~RAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright lavvs of the United States                                                                                                                                                  CON I RACT FOR CONSTRUCTION
 and will subject 1he violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S, copyright                                                                                                                                                                   .       •            .
 laws and will subject the violator to legal prosecution. This document was· electronically produced with                                                                                                                                                             T~e Arnencan Institute of Arch:tects
 permission of the AlA and can be reproduced in accordance vlith your license without violation unlll the date of                                                                                                                                                     1t35 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                           Washmgton, D.C. 20006·5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software tor administrative purposes only and Is not for other use or resale.
                                                                                                                                                                                                                                                            18
             3.12.8 The Work shall be in accordance with approved submittals except that the
             Contractor shall not be relieved of responsibility for deviations from requirements of the
             Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or
             similar submittals unless the Contractor has specifically informed the Architect in writing of
             such deviation at the time of submittal and {1) the Architect has given written approval to the
             specific deviation as a minor change in the Work, or (2) a Change Order or Construction
             Change Directive has been issued authorizing the deviation. The Contractor shall not be
             relieved of responsibility for ;m·ors or omissions in Shop Drawings, Product Data, Samples or
             similar submittals by the Architect's approval thereof.

             3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop
             Drawings, Product Data, Samples or similar submittals, to revisions other than those
             requested by the Architect on previous submittals. In the absence of such written notice the THIS DOCUMENT HAS IMPORTANT
             }\.rchitect's approval of a resubmission shall not apply to such revisions.                  LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                                                    CONSUL TAT/ON WiTH AN
             3.12.1 0 The Contractor shall not be required to provide professional services which                                                                                                                                                                                   ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                    RESPECT TO ITS COMPLETION OR
             constitute the practice of architecture or engineering unless such services are specifically                                                                                                                                                                           MOD!FICATJON. AUTHENTICA TJON
             required by the Contract Documents for a portion of the Work or unless the Contractor needs                                                                                                                                                                            OF THIS ELECTRONICALLY
             to provide such services in order to carry out the Contractor's responsibilities for construction                                                                                                                                                                      DRAFTED AlA DOCUMENT MAY BE
             means, methods, techniques, sequences and procedures. The Contractor shall not be required                                                                                                                                                                             MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                    D401.
             to provide professional services in violation of applicable Jaw. If professional design services
             or certifications by a design professional related to systems, materials or equipment are                                                                                                                                                                              This document has been approved and
             specifically required of the Contractor by the Contract Documents, the Owner and the                                                                                                                                                                                   endorsed by The Associated General
             Architect will specify all performance and design criteria that such services must satisfy. The                                                                                                                                                                        Contractors of America.
             Contractor shall cause such services or certifications to be provided by a properly licensed
             design professional, whose signature and seal shall appear on a11 drawings, calculations,
             specifications, certifications, Shop Drawings and other submittals prepared by such
             professionaL Shop Drawings and other submittals related to the Work designed or certified by
             such professional, if prepared by others, shall bear such professional's written approval when
             submitted to the Architect. The Owner and the Architect shall be entitled to rely upon the
             adequacy, accuracy and completeness of the services, certifications or approvals performed by
             such design professionals, provided the Owner and Architect have specified to the Contractor
             all performance and design criteria that such services must satisfy. Pursuant to this
             Subparagmph 3.12.10, the Architect will review, approve or take other appropriate action on
             subminals only for the limited purpose of checking for conformance with information given
             and the design concept expressed in the Contract Documents. The Contractor shall not be
             responsible for the adequacy of the performance or design criteria required by the Contract
             Documents.

             3.13     USE OF SITE
             3.13.1 The Contractor shall confine operations at the site to areas permitted by law,
             ordinances, permits and the Contract Documents and shall not unreasonably encumber the site
             with materials or equipment.

             3.14 CUTTING AND PATCHING
             3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to
             complete the Work or to make its parts fit together properly.


                                                                                                                                                                                                                                                                                    @1997 AI~
""©""Co:::--p-yr..,.ig7h.,..t""19""'1-,.1-,1-:-:9:-:1-=-5,-1'""9..,.18=-,"""'1"'=92:::5::-,""'1-:-93==7=-,-,.19:::-:5::-.1-,"'"'19::-:5""8-,-:-: 19:-: 6-.-1,-1:-::9-=-63""",...,1""'9"'66:-,-:-1-:::-96""7:-,""'"19~7=::0:--,"'"'19::-:7""6,-1-:-:9:-::8=7,-1:-::9-::-97:::-:-by   AlA DOCUMENT ~01 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                        GENERAL90NDl! IONS OF THE
 quota:ion of its provisions wilhout written permission ol lhe AlA violates the copyright laws of the United States                                                                                                                                                                 COI'-lTRAC I FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                        _        .       .            .
 laws and will subject the viola!or to legal prosecution. This document was eleclronica!!y produced with                                                                                                                                                                            l he_Amencan lnslltule ol Archrlects
 permission ol the AlA and can be reproduced in accordance with your license without violation until the date ol                                                                                                                                                                    173o ~ew York Avenue:. N.W.
 expiration as noted below.                                                                                                                                                                                                                                                         Washu1g!on, D.C. 2000o·5292
 Thls document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
             3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or
             partially completed cunstruction of the Owner or separate comractors by cutting, patching or
             otherwise altering such construction, or by excavation. The Contractor shall not cut or
             otherwise alter such construction by the Owner or a separate contractor except with written
             consent of the Owner and of such separate contractor; such consent shall not be unreasonably
             withheld. The Contractor shall not unreasonably withhold from the Owner or a separate
             contractor the Contractor's consent to cutting or otherwise altering the Work.

             3.15     ClEANING UP
             3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation
             of waste materials or rubbish caused by operations under the Contract. At completion of the
             Work, the Contractor shall remove from and about the Project waste materials, rubbish, the
             Contractor's tools, construction equipment, machinery and surplus materials.               THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                                                   LEGAL CONSEQUENCES.
             3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner CONSULTATION WITH AN
              may do so and the cost thereof shall be charged to the Contractor,               ATTORNEY IS ENCOURAGED WITH
                                                                                               RESPECT TO ITS COMPLETION OR
                                                                                               MODIFICATION. AUTHENTICATION
             3.16     ACCESS TO WORK                                                           OF THIS ELECTRONICALLY
             3.16.1 The Contractor shall provide the Owner and Architect access to the Work in DRAFTED AlA DOCUMENT MAY BE
             preparation and progress wherever located.                                        MADE BY USING AlA DOCUMENT
                                                                                               0401.
             3.17      ROYAlTIES, PATENTS AND COPYRIGHTS                                                   Tllis document has been approved and
             3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend endorsed by Tne Associated General
             suits or claims for infringement of copyrights and patent rights and shall hold the Owner and Contractors of America.
             Architect harmless from loss on account thereof, but shall not be responsible for such defense
             or loss when a particular design, process or product of a particular manufacturer or
             manufacturers is required by the Contract Documents or where the copyright violations are
             contained in Drawings, Specifications or other documents prepared by the Owner or
             Architect. However, if the Contractor has reason to believe that the required design, process
             or product is an infringement of a copyright or a patent, the Contractor shall be responsible for
             such loss unless such information is promptly furnished to the Architect.

              3.18   INDEMNIFICATION
              3.18.1 To the fullest extent permitted by law and to the extent claims, damages, losses or
              expenses are Redacted
             Redacted                                       ,       , the Contractor shall indemnify and hold
              harmless the Owner, Architect, Architect's consultants, and agents and employees of any of
              them from and against claims, damages, losses and expenses, including but not limited to
              attorneys' fees, arising out of or resulting from performance of the Work, provided that such
              claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to
              injury to or destruction of tangible property (other than the Work itself), but only to the extent
              caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly
              or indirectly employed by them or anyone for whose acts they may be liable, regardless of
              whether or not such claim, damage, loss or expense is caused in part by a party indemnified
              hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or
              obligations of indemnity which would otherwise exist as to a party or person described in this
              Paragraph 3.18.


                                                                                                                                                                                                                                                                                                   ¥:;1997 AIMP
-;;©;:-C;:;-o:-:p::-:yn7·g::;:h-;-t-=:19~1-::-1-,7;19:::;1"'5,-:1;-;;9::-18;:;-,-:1-:;::9~25:-,-:;1~93;:::7;-,719;:;-;5:-::1-,~19;;;5:-;:;8-,::-;19::;:6::-1,-:1;-;;9:;:-63;:;-,-:1-:;::96::::6:-,-:-1:;::;96;;-::7;-,719;:::7;;:0:-,::-;19;;-::7;;::6,-:1;-;9:;:-8:;-7,-:1:-;:;9~97:;-;:-:-:-by   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                                       GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                                CONTRACT FOR CONSTRUCTION
 and 'Nill subject the violate lo legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                               .       .           •
 laws and will subject the violator lo legal prosecution. This document was electronically produced with                                                                                                                                                                                           The Amencan lnstilute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                                   1735 ~ew York Avenue:. N.W.
 expiration as noted below.                                                                                                                                                                                                                                                                        Wash~ngton, D.C. 2000o-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                         20
           3.18.2 In claims against any person or entity indemnified under this Paragraph 3.18 by an
           employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them
           or anyone for whose acts they may be liable, the indemnification obligation under
           Subparagraph 3.18.1 shall not be limited by a limitation on amount or type of damages,
           compensation or benefits payable by or for the Contractor or a Subcontractor under workers'
           compensation acts, disability benefit acts or ot.'ler employee benefit acts.

ARTICLE 4 ADMINISTRATJON OF THE CONTRACT
   4.1   ARCHITECT
           4.1.1      The Architect is the person lawfully licensed to practice architecture or an entity
           lawfully practicing architecture identified as such in t11e Agreement and is referred to
           tllroughout the Contract Documents as if singular in number. The term "Architect" means the
           i~.rchitect or the Architect's autllorized representative.
                                                                                                          THIS DOCUMENT HAS IMPORTANT
                                                                                                    LEGAL CONSEQUENCE&
           4.1.2    Duties, responsibilities and limitations of authority of the Architect as set fortll in the
                                                                                                    CONSULTATION WITH AN
           Contract Documents shall not be restricted modified or extended without written consent of
                                                                                                    A ITORNEY IS ENCOURAGED WITH
                                  •         •           '      .            •    •      ·.          RESPECT TO ITS COMPLETION OR
           tlle Owner, Contractor and Architect. Consent shall not be unreasonably wtthheld.        MOD/FICA TION. AUTHENTICATION
                                                                                                    OF THIS ELECTRON/CALLY
           4.1 .3   If the employment of the Architect is terminated, the Owner shall employ a new DRAFTED AlA DOCUMENT MAY BE
           Architect against whom the Contractor has no reasonable objection and whose status under MADE BY USING AlA DOCUMENT
                                                                                                    0401.
           the Contract Documents shall be that of the former Architect.
                                                                                                              This document has been approved and
           4.2                  ARCHITECT'S ADMINISTRATION OF THE CONTRACT                                    endorsed by Tlie Associated General
           4.2.1                The Architect will provide administration of the Contract as described in the Contractors of America
           Contract Documents, and will be an Owner's representative (1) during construction, (2) until
           final payment is due and (3) with the Owner's concurrence, from time to time during the one-
           year period for correction of Work described in Paragraph 12.2. The Architect will have
           authority to act on behalf of the Owner only to the extent provided in tlle Contract
           Documents, unless otherwise modified in v.-Titing in accordance with other provisions of tlle
           Contract.

           4.2.2    The Architect, as a representative of the Owner, will visit the site at intervals
           appropriate to the stage of the Contractor's operations (I) 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 tlle Owner against defects and deficiencies in the Work,
           and (3) to determine in general if tlle Work is being performed in a manner indicating that the
           Work, when fu1ly completed, will be in accordance with tlle Contract Documents. However,
           the Architect will not be required to make exhaustive or continuous on-site inspections to
           check the quality or quantity of the Work. The Architect v:ill neither have control over or
           charge of, nor be responsible for, the construction means, methods, techniques, sequences or
           procedures, or for the safety precautions and programs in connection with tlle Work, since
           these are solely the Contractor's rights and responsibilities under the Contract Documents,
           except as provided in Subparagraph 3.3.1.

           4.2.3               The Architect will not be responsible for the Contractor's failure to perforrn the Work
           in accordance \Vitll the requirements of the Contract Documents. The Architect will not have
           control over or charge of and will not be responsible for acts or omissions of the Contractor,
           Subcontractors, or their agents or employees, or any other persons or entities performing
           portions of the Work.
                                                                                                                                                                                                                                        ©1997 AlA$
-.:©:-C""o_p_y~rig""'h-:-t-,-1,-91::-:1-,-,-19"""1'""5-,1-,9,_1..,..8,-1,...,9"'2-=-5,-1,..,9"'"37"",_,1...,.95.,-1.,-,-,1.,..95"""'8,_,..,.19_,6,_1-,-19,_,6...,.3-,1-,9-6.,...6,-1,_,9..,67"",_,1...,.9-="'Jo=-,_,.1..,.,97"""'6,..,...,.19.,..,8""'7-,"""'19'""9""'7..,-by- AlA DOCUMENT A201 - 1997   r

The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                             GENERAL CONDITIONS OF THe
quotation of its provisions without written permission of the AlA violates the copyright lav..s of the United Slates                                                                                                                    CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecu-tion. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                             .        .       . .         .
laws and 'Nill subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                T~e Arnencan lnslitute oi Architects
permission oi the AlA and can be reproduced in accordance with you; ltcense without violation until the date of                                                                                                                         1t35 !'Jew York Avenue, ~W.
expiration as noted below.                                                                                                                                                                                                              Washmgton, D.G. 20006-:::.292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is no! for other use or resale.
                                                                                                                                                                                                                                21
       4.2.4    Communications Facilitating Contract Administration.                    Except as
       othenvise provided in the Contract Documents or when direct communications I1ave been
       specially authorized, the Owner and Contractor shall endeavor to communicate with each
       other through the Architect about matters arising out of or relating to the Contract.
       Communications by and with the Architect's consultants shall be through the Architect.
       Communications by and with Subcontractors and material suppliers shall be through the
       Contractor. Communications by and with separate contractors shall be through the Owner.

       4.2.5     Based on the Architect's evaluations of the Contractor's Applications for Payment,
       the Architect will review and certify the amounts due the Contractor and will issue
       Certificates for Payment in such amounts.
                                                                                                                                                        THIS DOCUMENT HAS IMPORTANT
       4.2.6     The Architect will have authority to reject Work that does not conform to the                                                          LEGALCONSEQUENCES.
       Contract Documents. Whenever the Architect considers it necessary or advisable, the                                                              CONSULTATIONWITHAN
       Architect will have authority to require inspection or testing of the Work in accordance with                                                    ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                        RESPECT TO ITS COMPLETION OR
       Subparagraphs 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or                                                            MODIFICATION.AUTHENTfCATION
       completed. However, neither this authority of the Architect nor a decision made in good faith                                                    OF THIS ELECTRON/CALL y
       either to exercise or not to exercise such authority shall give rise to a duty or responsibility of                                              DRAFTED AlA DOCUMENT MAY BE
       the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents                                                  MADE BY USING AlA DOCUMENT
                                                                                                                                                        0401
       or employees, or other persons or entities performing portions of the Work                                                                               ·
                                                                                                 This document has been approved and
       4.2.7 The Architect w1ll review and approve or take other appropriate action upon the endorsed by The Associated General
       Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the Contractors of America.
       limited purpose of checking for conformance with information given and the design concept
       expressed in the Contract Documents, The Architect's action will be taken with such
       reasonable promptness as to cause no delay in the \Vork 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. 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 of the Contractor's submittals shall not
       relieve the Contractor of the obligations under Paragraphs 3.3, 3.5 and 3.12. The Architect's
       review shall not constitute approval of safety precautions or, unless otherwise specifically
       stated by the Architect, of any construction means, methods, te-ehniques, sequences or
       procedures. The Architect's approval of a speCific item shall not indicate approval of an
       assembly of which the item is a component.

       4.2.8   The Architect will prepare Change Orders and Construction Change Directives, and
       may authorize minor changes in the Work as provided in Paragraph 7A.

       4.2.9    The Architect will conduct inspections to determine the dare or dates of Substantial
       Completion and the date of final completion, will receive and forward to the Owner, for the
       Owner's review and records, written warranties and related documents required by the
       Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon
       compliance with the .requirements of the Contract Documents.


                                                                                                                                                        1[;\1997 AfNJ!;
~©~C~~~p-y~rig~h7
                !719~1~1-.~19~1~5-,1~.9~1~8.-1~9~25~,~1~93~7~,~19~5~1-,7                              7
                                                                       19~5~8~,~19~6~1,-1~9~63~,~1~9~66 ,~1~9~67~,~1~97~0~,~19~7=6-,~100~7,-1~9~97~by   AJADOCUMENTA201-1997
The American Institute oi Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                             GENERAL CONDITIONS OF TtJE
quotation of its provisions without writlen permission of the AlA violates the copyright laws of the United States                                      CONTRACT FOR CONSTRUe !ION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                        ,       .          .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                 The fmencan lnsl•tute of Architects
permission of !he AlA and can be reproduced in accordance with your license without violation until the date of                                         173o !-.lew York Avenue, N.W.
expiration as noted below.                                                                                                                              Washmgton, D.C. 20006·5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for adminls!rative purposes only and is not tor other use or resale.
                                                                                                                                                 22
             4.2.1 0 If the Owner and Architect agree, the Architect will provide one or more project
             representatives to assist in carrying out the Architect's responsibilities at the site. The duties,
             responsibiJities and limitations of authority of such project representatives shall be as set forth
             in an exhibit to be incorporated in the Contract Documents.

             4.2.11 The Architect will interpret and decide matters concerning performance under and
             requirements of, the Contract Documents on written request of either the Owner or
             Contractor. The Architect's response to such requests will be made in writing within any time
             limits agreed upon or otherwise with reasonable promptness. If no agreement is made
             ccncerning the time within which interpretations .required of the Architect shall be furnished
             in compliance with this Paragraph 4.2, then delay shall not be recognized on account of
             failure by the Architect to furnish such interpretations until 15 days after written request is
             made for them.                                                                                  THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                          LEGAL CONSEQUENCES.
             4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and CONSUL TAT/ON WITH AN
             reasonably inferable from the Contract Documents and will be in writing or in the form of A ITORNEY IS ENCOURAGED WITH
                  ·
             drawmgs.  W'-       1·'
                         Hen ma.ung  sue h mterpretatJOns
                                           ·          ·   and ·mttla
                                                                · · 1 declsiOns,
                                                                         · ·      h A h.        ·11 d        RESPECT TO ITS COMPLETION OR
                                                                                 t e rc Itect w: en eavor MODJFICATIOIV. AUTHENTICATION
             to secure faithful performance by both Owner and Contractor, will not show partiaJity to OF THIS ELECTRONICALLY .
             either and will not be liable for results of interpretations or decisions so rendered in good DRAFTED AlA DOCUMENT MAY BE
             faitll.                                                                                       MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                          0401.

             4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if This document has been approved and
             consistent with the intent expressed in the Contract Documents.                           endorsed by The Associated Generci
                                                                                                                                                                                                                                                                          Contmctors of America.
             4.3       CLAIMS AND DISPUTES
             4.3.1     Definition. A Claim is a demand or assertion by one of the parties seeking, as a
             matter of right, adjustment or interpretation of Contract terms, payment of money, extension
             of time or other relief with respect to the terms of the Contract The term "Claim" also
             includes other disputes and matters in question between the Owner and Contractor arising out
             of or relating to the Contract Claims must be initiated by written notice. The responsibility to
             substantiate Claims shall rest with the party making the Claim.

             4.3.2 Time Limits on Claims. Claims by either party must be initiated within 21 days
             after occurrence of the event giving rise to such Claim or withln 21 days after the claimant
             first recognizes the condition giving rise to the Claim, whichever is later. Claims must be
             initiated by written notice to the Architect and the other party.

             4.3.3 Continulng Contract Performance. Pending final resolution of a Claim except
             as otherwise agreed in v:riting or as provided in Subparagraph 9.7.1 and Article 14, the
             Contractor shall proceed diligently with perforn1ance of the Contract and the Owner shall
             continue to make payments in accordance with the Contract Documents.

             4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered
             at the site which are {1) subsurface or otherwise concealed physical conditions which differ
             materially from those indicated in the Contract Documents or (2) unknown physical
             conditions of an unusual nature, which differ materially from those ordinarily found to exist
             and generally recognized as inherent in construction activities of the character provided for in
             the Contract Documents, then notice by the obsen~ing party shall be given to the other party
             promptly before conditions are disturbed and in no event later than 21 days after first
                                                                                                                                                                                                                                                                          ·ww·--"'
                                                                                                                                                                                                                                                                          e1S97 AlA'!!>
   C""o-p-y""'rig-:h-:-1-:-19""1:-:1-,-:-19:-:1-::5-,1:-:9'"'1"'"8,-c1c::9""'2s=-,-=1-:::9::-:37=-,""1"'95""'1:-,-:-19""5::-::8:-,""19:.--::6'"'"1-.i""9'""63-.-,-1::-::9-:-667 ,'""1..,.9"'"'67"",...,1"'"97:=:0:-,..,.19""7""6-,""'19::-:8-=7,-1.,.,9"'9"="7.,.....by
""©"'"·                                                                                                                                                                                                                                                                   AlA DOCUMENT A201 -1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                              GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright ta\\'S of the United States                                                                                                                                                     CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                              _        .        .            .
 laws and viii! subject the violator to legal prosecution. This document was electronically produced >'lith                                                                                                                                                               I he Amencan ,lnst1tute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation unlil the date of                                                                                                                                                          1735 ~ew Yon~ Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                               Wash1ngton, D.C. 20006·5292
 This document Js not an orlginal AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                23
            observance of the conditions. The Architect will promptly investigate such conditions and, if
            they differ materially and cause an increase or decrease in the Contractor's cost of, or time
            required for, performance of any part of the Work, will recommend an equitable adjustment in
            the Contract Sum or Contract Time, or both. If the Architect determines that the conditions at
            the site are not materially different from those indicated in the Contract Documents and that
            no change in the terms of the Contract is justified, the Architect s1mll so notify the Owner and
            Contractor in writing, stating the reasons. Claims by either party in opposition to such
            determination must be made within 21 days after the Architect has given notice of the
            decision. If the conditions encountered are materially different, the Contract Sum and
            Contract Time shall be equitably adjusted, but if the Owner and Contractor cannot agree on an
            adjustment in the Contract Sum or Contract Time, the adjustment shall be referred to the
            Architect for initial determination, subject to further proceedings pursuant to Paragraph 4.4.
                                                                                                                                                                                                                                                                             THIS DOCUMENT HAS IMPORTANT
             4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an                                                                                                                                                                                 LEGAL CONSEQUENCES.
             increase in the Contract Sum, written notice as provided herein shall be given before                                                                                                                                                                           CONSULTATION WITH AN
             proceeding to execute the Work. Prior notice is not required for Claims relating to an                                                                                                                                                                          A ITORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                             RESPECT TO ITS COMPLETION OR
             emergency endangering life Qf property arising under Paragraph 10.6.                                                                                                                                                                                            MOD/FICA TION. AUTHENTICATION
                                                                                                                                                                                                                                                                             OF THIS ELECTRON/CALLY
             4.3.6 If the Contractor believes additional cost is involved for reasons including but not                                                                                                                                                                      DRAFTED AlA DOCUMENT MAY BE
             limited to ( 1) a written interpretation from the Architect, (2) an order by the Owner to stop the                                                                                                                                                              MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                             0401
             Work where the Contractor was not at fault, (3) a written order for a minor change in the                                                                                                                                                                            •
             Work issued by the Architect, (4) failure (lf payment by the Owner, (5) termination of the                                                                                                                                                                      This document has been approved and
             Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim shall                                                                                                                                                                      endorsed by The AS$OCiated General
             be filed in accordance with this Paragraph 4.3.                                                                                                                                                                                                                 Contractors of America.

             4.3.7    Claims for Additional Time
             4.3.7.1 lf the Contractor wishes to make Claim for an increase in the Contract Time, written
             notice as provided herein shall be given. The Contractor's Claim shall include an estimate of
             cost and of probable effect of delay on progress of the Work. In the case of a continuing delay
             only one Claim is necessary.

             4.3.7 .2 If adverse weather conditions are the basis for a Claim for additional time, such
             Claim shall be documented by data substantiating that weather conditions were abnormal for
             the period of time, could not have been reasonably anticipated and had an adverse effect on
             the scheduled construction.

             4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers
             injury or damage to person or property because of an act or omission of the other party, or of
             others for whose acts such party is legally responsible, written notice of such injury or
             damage, whether or not insured, shall be given to the other party within a reasonable time not
             exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the
             other party to investigate the matter.

             4.3.9                   If unit prices are stated in the Contract Documents or subsequently agreed upon, and
             if quantities originally contemplated are materially changed in a proposed Change Order or
             Construction Change Directive so that application of such unit prices to quantities of Work
             proposed will cause substantial inequity to the Owner or Contractor, the applicable unit prices
             shall be equitably adjusted.

                                                                                                                                                                                                                                                                             <!:<1997   I'JJ'Itj
   Co:::;--p-y..,.rig..,.h-:-1719::::1:-::1-,-.-:19::-::1-:5-,1:-::9""1s-=-,-:1"'9'='2s=-,-:1""93""7::-,-.1-:c95""'i,..-,-:-19""'5:-::8-,-:-:19""'6'"'"1,-1'"'9"'63"'","""1'""96-:-6:.-,-:-1-:::-96=7=-,..,.19""'7::-:0:-,-:-19::-:7:-::6-,1-:-:9'""8=7,-1""9-::-97=-=--by
""©::-·                                                                                                                                                                                                                                                                      AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                 GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the cupyright laws oi the United States                                                                                                                                                          CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                 _        .       .            .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                     l he Amencan Institute of Architects
 permission of the AlA and can be reproduced In accordance vtith your license without violation until the date oi                                                                                                                                                            1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                  Washmg!on, D.C. 20006·5292
 This document ls not an original AJA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and ls not for other use or resale.
                                                                                                                                                                                                                                                                  24
             4.3.10 Claims for Consequential Damages. The Contractor and Owner waive Claims
             against each other for consequential damages arising out of or relating to this Contract. This
             mutual waiver includes:
                      .1 damages incurred by the Owner for rental expenses, for losses of use, income,
                          profit, financing, business and reputation, and for loss of management or
                          employee productivity or of the services of such persons; and
                      .2 damages incurred by the Contractor for principal office expenses including the
                          compensation of personnel stationed there, for losses of financing, business and
                          reputation, and for loss of profit except anticipated profit arising directly from
                          the Work.

            This mutual waiver is applicable, without limitation, to all consequential damages due to
            either party's termination in accordance with Article 14. Nothing contained. in this TH·s DOCUMENT HAS IMPORTANT
            Subpnragraph 4.3.1 0 shall be deemed to preclude an award of liquidated direct damages, LE~AL CONSEQUENCES.
            when applicable, in accordance with the requirements of the Contract Documents.           CONSUL TAT/ON WJTH AN
                                                                                                            A ITORNEY IS ENCOURAGED WITH
                                                                                                            RESPECT TO ITS COMPLETION OR
             4.4     RESOLUTION OF CLAIMS AND DlSPUTES                                                      MOD/FICA T!ON. AUTHENTICATION
             4.4.1 Decision of Architect. Claims, including those alleging an error or omission by OF THIS ELECTRONICALLY
             the Architect but excluding those arising under Paragraphs 10.3 through 10.5, shall be DRAFTED AlA DOCUMENT MAY BE
             refened initially to the Architect for decision. An initial decision by the Architect shall be MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                             D401.
             required as a condition precedent to mediation, arbitration or litigation of all Claims between
             the Contractor and Owner arising prior to the date final payment is due, unless 30 days have This document has been approved and
             passed after the Claim has been refened to the Architect with no decision having been endorsed by The Associated General
             rendered by the Architect The Architect will not decide disputes between the Contractor and Contractors of America.
             persons or entities other than the Owner.

             4.4.2      The Architect will revie\V Claims and \vi thin ten days of the receipt of the Claim take
             one or more of the following actions: (1) request additional supporting data from the claimant
             or a response with supporting data from the other party, (2) reject the Claim in whole or in
             part, (3) approve the Claim, (4) suggest a compromise, or (5) advise the parties tlJat the
             ,-'\rchitect is unable to resolve the Claim .if the Architect Jacks sufficient infonnation to
             evaluate the merits of the Claim or if the Architect concludes that, in the Architect's sole
             discretion, it would be inappropriate for the Architect to resolve the Claim.

             4.4.3                  In evaluating Claims, the Architect may, but shall not be obligated to, consult with or
             seek information from either party or from persons witll special knowledge or expertise who
             may assist the Architect in rendering a decision. The Architect may request the Owner to
             authorize retention of such persons at the Owner's expense.

             4.4.4 If the Architect requests a party to provide a response to a Claim or to furnish
             additional supporting data, such pany shaU respond, within ten days after .receipt of such
             request, and shall either provide a response on the requested supporting data, advise the
             Architect when the response or supporting data will be furnished or advise the Architect that
             no supporting data will be furnished. Upon receipt of the response or supporting data, if any,
             the Architect will either reject or approve the Claim in whole or in part.

             4.4.5 The Architect \Vill approve or reject Claims by written decision, which sha1l state the
             reasons therefor and which shall notify the parties of any change in the Contract Sum or

                                                                                                                                                                                                                                                                             ©1997 AIM!l
""©'""'C:::-o-p-yn-..g-:-h-:-1719::-:1:-::1-,"'"'19'"'1-=5.-1:-::9,.,.18"",-:1-:::9~25::-,-:1"""93:::-:7::-,-.1::-:95::-.1-,""'19""'5'""8-,-:-:19::-::6-,-i,-i:-:9c:-63"",-:i"=g""ss=-,-o1-::-96""'7=-,..,.19""'7::-::0c-,"'"'19::-:7""6-,1-:-:9:-::8=7,-1:-:9"'"9=7.,.-by   AlA DOCUMENT A201 • 1997 ,
 Tho American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                 GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of toe United States                                                                                                                                                          CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright
 laws and will subject the violator to legal prosecution. This document vtas electronically produced vvi!h                                                                                                                                                                   The American Institute of Architects
 permission ol the AlA and can be reproduced in accordance with your llcense without violation U!itl! the date of                                                                                                                                                            1735 New York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                  Washington, D.C. 200013·5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                  25
              Contract Time or both. The approval or rejection of a Claim by the Architect shall be final
              and binding on the parties but subject to mediation and arbitration.

              4.4.6 When a written decision of the Architect states that (1) the decision is final but
              subject to mediation and arbitration and (2) a demand for arbitration of a Claim covered by
              such decision must be made within 30 days after the date on which the party making the
              demand receives the final written decision, then failure to demand arbitration within said 30
              days' period shall result in the Architect's decision becoming final and binding upon the
              Owner and Contractor. Jf the Architect renders a decision after arbitration proceedings have
              been initiated, such decision may be entered as evidence, but shall not supersede arbitration
              proceedings unless the decision is acceptable to all parties concerned.

              4.4.7    Upon receipt of a Claim against the Contractor or at any time thereafter, the THIS DOCUMENT HAS IMPORTANT
              Architect or the Owner may, but is not obligated to, notify Redacted , if any, of the nature and LEGAL CONSEQUENCES.
              amount of the Claim. If the Claim relates to a possibility of a Contractor's default, the CONSULTATIONWITHAN
              Architect or the Owner may but is not obligated to notiffedacted        and request Redacted     ATTORNEY IS ENCOURAGED WITH
                   . ·                        •                        •                          '        RESPECTTOIT$COMPLETIONOR                                    '                                                 •                                                                  .
              asststance m resolvmg the controversy.                                                       MODIFICATION. AUTHENTICATION
                                                                                                           OF THIS ELECTRONICALLY
              4.4.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such DRAFTED AfA DOCUMENT MAY BE
              Claim may proceed in accordance with applicable law to comply with the lien notice or filing MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                                        0401.
              deadlines prior to resolution of the Claim by the Architect, by mediation or by arbitration.
                                                                                                                This document has been approved and
              4.5                        MEDIATION                                                              endorsed by The Associated General
              4.5.1     Any Claim arising out of or related to the Contract, except Claims relating to Contractors of America.
              aesthetic effect and except those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and
              9.10.5 shall, after initial decision by the Architect or 30 days after submission of the Claim to
              the Architect, be subject to mediation as a condition precedent to arbitration or the institution
              of legal or equitable proceedings by either party.

              4.5.2 The parties shall endeavor to resolve their Claims 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 the Contract 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.

              4.5.3 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.

              4.6                        ARBITRATION
              4.6.1    Any Claim atising out of or related to the Contract, except Claims relating ro
              aesthetic effect and except those waived as provided for in Subparagraphs 43.10, 9.10.4 and
              9.10.5, shall, after decision by the Architect or 30 days after submission of the CJajm to the
              Architect, he subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve
              disputes by mediation in accordance with the provisions of Paragraph 4.5.
                                                                                                                                                                                                                                                                                                        01997 A!MI
r.;©:-;Co::;:::p:-:yr:;:ig:;:-h~ti:;-;9;-;171,-1;-::9;-;-1";:'5,-:1;-;:9"7;18;:;-,-::1-::::92;;-;5::-,-;1::::93::-:7;-,719::-:5:-:;1-,1:;;9::::5c::-8,-:1:-::9c::-6:-1,....,1""'9::::63;:;-,-::1c::-96::-:6:-,719:::::6::::7:-,""'19::-:7:::0-,1~9:-:::7c::-6,-:1:-::9~87:::-,-:1-::::99::::7::-b:--y   AlA DOCUMENT A201 • 1997
The American lnslfiute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                                             GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United Slates                                                                                                                                                                                      CONTRACT FOR CONSTRUCTION
and wifl subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                                     .       .            •
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                                 The Amencan lnstrtute of Archt!ects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                                         i735 ~ew York Avenue, N.W.
expiration as noted below.                                  ·                                                                                                                                                                                                                                           Washmgton, D.C. 20006-5292
This document is not an original AJA® Contract Document, but a reproduction produced by AJA®
Contract Documents software for adminlstrative purposes only and is not for other use or resale.
                                                                                                                26
              4.6.2 Claims not resolved by mediation shall 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 parry to the Contract and with the American
              Arbitration Association, and a copy shall be filed with the Architect.

              4.6.3    A demand for arbitration shall be made within the time limits specified in
              Subparagraphs 4.4.6 and 4.6.1 as applicable, and in other cases within a reasonable time after
              the Claim has arisen, and in no event shall it be made after the date when institution of legal
              or equitable proceedings based on such Claim would be barred by the applicable statute of
              limitations as determined pursuant to Paragraph 13.7.
                                                                                                                                                                                                                                                                                              THIS DOCUMENT HAS IMPORTANT
              4.6.4                    Limitation on Consolidation or Joinder. No arbitration arising out of or LEGAL CONSEQUENCES.
             relating to the Contract shall include, by consolidation or joinder or in any otl1er manner, the                                                                                                                                                                                 CONSULTATION WITH AN
             Architect, the Architect's employees or consultants, except by written consent containing                                                                                                                                                                                        A TTORNE'f IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                              RESPECT TO ITS COMPLETION OR
             specific reference to the Agreement and signed by the Architect, Owner, Contractor and any                                                                                                                                                                                       MODIFICATION. AUTHENTICATION
             other person or entity sought to be joined. No arbitnttion shall include, by consolidation or                                                                                                                                                                                    OF THIS ELECTRONICALLY
             joinder or in any other manner, parties other than the Owner, Contractor, a separate contractor                                                                                                                                                                                  DRAFTED AlA DOCUMENT MAY BE
             as described in Article 6 and other persons substantially involved in a common question of                                                                                                                                                                                       MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                              0401.
             fact or law whose presence is required if complete relief is to be accorded in arbitration. No
             person or entity other than the Owner, Contractor or a separate contractor as described in                                                                                                                                                                                       This document has been approl'ed and
             Article 6 shall be included as an original third party or additional third party to an arbitration                                                                                                                                                                               endorsed by The Associated General
             whose interest or responsibility is insubstantial. Consent to arbitration involving an additional                                                                                                                                                                                Contractors of America
             person or entity shall not constitute consent to arbitration of a Claim not descri.bed therein or
             with a person or entity not named or described therein. The foregoing agreement to arbitr-ate
             and other agreements to arbitrate with an additional person or entity duly consented to by
             parties to the Agreement shall be specifically enforceable under applicable law in any court
             having jurisdiction thereof.

             4.6.5      Claims and Timely Assertion of Claims. The party filing a notice of demand
              for arbitration must assert in the demand aU Claims then known to that party on which
              arbitration is permitted to be demanded.

             4.6.6     Judgment on Final Award. 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.

 ARTICLE 5 SUBCONTRACTORS
    5.1    DEFINITIONS
    5.1.1  A Subcontractor is a person or entity who has a direct contract with the Contractor to
              perform a portion of the Work at the site. The term "Subcontractor" is referred w lhroughout
              the Contract Documents as if singular in number and means a Subcontractor or an authorized
              representative of the Subcontractor. The term "Subcontractor" does not include a separate
              contractor or subcontractors of a separate contractor.

             5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a
             Subcontractor to perform a portion of the Work at the site. The term ''Sub-subcontractor" is

                                                                                                                                                                                                                                                                                              @1997 N.M!I
-;;©;-:C;;-o:-:p:-:yr-;:ig:;:h-;-1: -:19:: :171-,1::-:9::::1-::-5,-:1:-:::9::-18;;:-,"1"'9""'25:::-,-:;1-:::-93"'7'"",719::-:5::::1-,::-:19::-::5::::8-,1::-:9::::671,-:1::::9::::63::-,-:1:-:::9-=66::-,-:1""96"'7;-,719:::-:7""0:-,::-:19::::7""6,-1:-::9""87:::-,-:1::::9:::::97::-b;--y   AlA DOCUMENT A201 - 1997
 The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                                   GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission o! the AlA violates the copyright laws of the United States                                                                                                                                                                           CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal proseculion. WARNING: Unlicensed photocopying violates U.S. copyright
 laws and wm subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                        The American lnstltute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation unlil !he date ol                                                                                                                                                                              1735 New York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                                   Washington, D.C. 20006·5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                   27
       referred to throughout the Contract Documents as if singular in number and means a Sub-
       subcontractor or an authorized representative of the Sub-subcontractor.

       5.2           AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR
                     PORTIONS OF THE WORK
       5.2.1    Unless otherwise stated in the Contract Documents or the bidding requirements, the
       Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the
       Owner through the Architect the names of persons or entities (including those who are to
       furnish materials or equipment fabricated to a special design) proposed for each principal
       portion of the Work. The Architect will promptly reply to the Contractor in wTiting stating
       whether or not the Owner or the Architect, after due investigation, has reasonable objection to
       any such proposed person or entity. failure of the Owner or Architect to reply promptly shall
       constitute notice of no r.easonable objection.                                                  THJS DOCUMENT HAS IMPORTANT
                                                                                                       LEGAL CONSEQUENCES.
       5.2.2 The Contractor shall not contract with a proposed person or entity to whom the CONSULTATIONWITHAN
       Owner or Architect has made reasonable and timely objection. The Contractor shall not be ATTORNEYISENCOURAGEDWJTH
            •                 .     .                                                    • ,•          RESPECT TOfTS COMPLETION OR
       reqmred to contract wnh anyone to whom the Contractor has made reasonable objectlOn.            MODIFICATION. AUTHENTICATION
                                                                                                       OF THIS ELECTRON/CALLY
       5.2.3     If the Owner or Architect has reasonable objection to a person or entity proposed by DRAFTED AlA DOCUMENT MAY BE
       the Contractor, the Contractor shall propose another to whom the Owner or Architect has no MADE BY USING AlA DOCUMENT
       reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of D4Cit.
       performing the Work, the Contract Sum and Contract Time shall be increased or decreased by This document has been approved and
       the difference, if any, occasioned by such change, and an appropriate Change Order shall be endorsed by T11e Associated General
       issued before commencement of the substitute Subcontractor's Work. However, no increase in Contractors ofAmerica.
       the Contract Sum or Contract Time shall. be allowed for such change unless the Contractor has
       acted promptly and responsively in submitting names as required.

       5.2.4    The Contractor shall not change a Subcontractor, person or entity previously selected
       if the Owner or Architect makes reasonable objection to such substitute.

       5.3           SUBCONTAACTUAL RELATIONS
       5.3.1    By appropriate agreement, written where legally required for validity, the Contractor
       shal1 require each Subcontractor, to the extent of the Work to be perfonned by the
       Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to
       assume toward the Contractor all the obligations and responsibilities, including the
       responsibility for safety of the Subcontractor's Work, which the Contractor, by these
       Documents, assumes toward the Owner and Architect. Each subcontract agreement shall
       preserve and protect the rights of the Owner and Architect under the Contract Documents
       with respect to the Work to be performed by the Subcontractor so that subcontracting thereof
       will not prejudice such rights, and shall allow to the Subcontractor, unless specifically
       provided otherwise in the subcontract agreement, the benefit of all rights, remedies and
       redress against the Contractor that the Contractor, by the Contract Documents, has against the
       Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into
       similar agreements with Sub-subcontractors. The Contractor shall make available to each
       proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the
       Contract Documents to which the Subcontractor will be bound, and, upon written request of
       the Subcontractor, identify to the Subcontractor terms and conditions of the proposed
       subcontract agreement which may be at variance with the Contract Documents.

                                                                                                                                                            <!):j$97   AWI!i
~©~C~'o-p-yr~ig~h~t7.i9~1~1-,~19~1~5.-1~9~18~,~1~92~5~,~1~93~7~,~19~5~1-,~19~5~8,-1~9~6~1,~1~9~~~.~1~00~6~,-.1~96=7~,~19=7=o-,~19~7~6,-1~9~87~,~1~9~97~by   AlADOCUMEHTA201·1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                 GENERAL CONDITIONS OF THE
quotation o! Jts provisions without writlen permission of the AlA violates the copyright laws of the United States                                          CONTRACT FOR CONSTRUCTION
and wilt subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                         .       .            .
laws and will subject the violator !o legal prosecution. This document was electronically produced with                                                     The Amencan Institute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                             1735 ~ew York Avenue~ N.W.
expiration as noted below.                                                                                                                                  Washmg!on, D.C. 200Go-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                28
           Subcontractors will similarly make copies of applicable portions of such documents available
           to their respective proposed Sub-subcontractors.

           5.4                  CONTINGENT ASSIGNMENT OF SUBCONTRACTS
           5.4.1    Each subcontract agreement for a portion of the Work is assigned by the Contractor
            to the Owner provided that:
                     .1 assignment is effective only after termination of the Contract by the Owner for
                         cause pursuant to Paragraph 14.2 and only for those subcontmct agreements
                         which the Owner accepts by notifying the Subcontractor and Contractor in
                         writing; and
                     .2 assignment is subject co the prior rights of th<fedacted if any, obligated under
                        ~~dac relating to the Contract

                                                                                                                                                                                                                                   THIS DOCUMENT HAS IMPORTANT
           5.4.2    Upon such assignment, if the Work has been suspended for more than 30 days, the LEGAL CONSEQUENCES.
           Subcontractor's compensation shall be equitably adjusted for increases in cost resulting from CONSULTATION WITH AN
           the suspension.                                                                               ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                  RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                  MOD/FICA TION. AUTHENTICA TJON
 ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS                                                                                                                                                                       OF THIS ELECTRONICALLY
    6.1    OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD                                                                                                                                                                     DRAFTED AlA DOCUMENT MAY BE
           SEPARATE CONTRACTS                                                                                                                                                                                                     MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                  0401.
    6.1.1 The Owner reserves the right to perfom1 construction or operations related to the
          Project with the Owner's own forces, and to award separate comracts in connection with Olher This document has been approved and
          portions of the Project or other construction or operations on the site under Conditions of the endorsed by The Associated General
          Contract identical or substantially similar to these Redacted              ~                     Contractors of America.
          Redacted                             . If the Contractor claims that delay or additional cost is
          involved because of such action by the Owner, the Contractor shall make such Claim as
          provided in Paragraph 4.3.

           6.1.2 When separate contracts are awarded for different portions of the Project or other
           construction or operations on the site, the term ''Contractor" in the Contract Documents in
           each case shall mean the Contractor who executes each separate Owner-Contractor
           Agreement.

           6.1.3    The Owner shall provide for coordination of the activities of the 0\\'!ler's own forces
           and of each separate contractor with the Work of the Contractor, who shall cooperate with
           them. The Contractor shall participate with other separate contractors and the Owner in
           reviewing their construction schedules when directed to do so. The Contractor shall make any
           revisions to the construction schedule deemed necessary after a joint review and mutual
           agreement The construction schedules shall then constitute the schedules to be used by the
           Contractor, separate contractors and the Other until subsequently revised.

           6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs
           construction or operations related to the Project with the Owner's own forces, the Owner shall
           be deemed to be subject to the same obligations and to have the same rights which apply to
           the Contractor under the Conditions of the Contract, including, without excluding others,
           those stated in Article 3, this Article 6 and Articles IO, 11 and 12.

           6.2                 MUTUAL RESPONSIBILITY

                                                                                                                                                                                                                                 @1997 AIM!!
-:;tlil'C-::::-op-y""'ri'"'gh:-:l--c1"'9c:-171,-i:-:9c:-1""5,...,1'""9,..,.18"",...,1:-.::9""25-::-,-1:-::9c::3=7,-1:-::9c::571,-1:-:9c::5""8,-1'""9c::6-:-1,-1:-::9c::c63:::-,-1""9""66"",-1"'9-::-67=-,-1"'9-=7-=-o,-1"'9-=7-::-6,-1'""'9'""8=::7,-1"'9'""9=-7-:-b-y AlA DOCUMENT A201 • 1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                       GENERAL CONDITIONS OF THE
quotation of l!s provisions without written permission of the A!A vlola!es the copyright laws of the United States                                                                                                                CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                .        .           .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                           The _Amencan Institute of Archtlects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                   173o ~ewYork Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                        Washl!lgton, D.C. 20006·5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for admlnistrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                          29
            6.2.1     The Contractor shall afford the Owner and separate contractors reasonable
            opportunity for introduction and storage of their materials and equipment and performance of
            their activities, and shall connect and coordinate the Contractor's construction and operations
            with theirs as required by the Contract Documents.

            6.2.2 If part of the Contractor's Work depends for proper execution or results upon
            construction or operations by the Owner or a separate contractor, the Contractor shall, prior to
            proceeding with that portion of the Work, promptly report to the Architect apparent
            discrepancies or defects in such other construction that would render it unsuitable for such
            proper execution and results. Failure of the Contractor so to report shall constitute an
            acknowledgment that the Owner's or separate contractor's completed or partially completed
            construction is fit and proper to receive the Contractor's Work, except as to defects not then
            reasonably discoverable.                                                                         THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                    LEGAL CONSEQUENCE£
            6.2,3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner                                                                                                                                                                   CONSULTATION WITH AN
            which are payable to a separate contractor because of delays improperly timed activities or                                                                                                                                                             ATTORNEYJSENCOURAGEDWITH
                   .,          .                 •           ,            '     . ,                                                                                                                                                                                 RESPECT TO ITS COMPLETION OR
            defective constructwn of the Contractor. The 0\\ner shall be responsible to the Contractor for                                                                                                                                                          MODIFICATION AUTHENTICATION
            costs incurred by the Contractor because of delays, improperly timed activities, damage to the                                                                                                                                                          OF THIS ELECTRONICALLY
            Work or defective construction of a separate contractor.                                                                                                                                                                                                DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                                    MADE BY USING AlA DOCUMENT
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            6.2,4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor
            to completed or partially completed construction or to property of the Owner or separate This document has been approved and
            contractors as provided in Subparagraph l 0.2.5.                                         endorsed by The Associated General
                                                                                                                                                                                                                                                                    Contractors of America.
            6.2.5    The Owner and each separate contractor shall have the same responsibilities for
            cutting and patching as are described for the Contractor in Subparagraph 3.14.

            6.3                    OWNER'S RIGHT TO CLEAN UP
            6.3.1    If a dispute arises among the Contractor, separate contractors and the Owner as to the
            responsibility under their respective contracts for maintaining the premises and surrounding
            area free from waste materials and rubbish, the Owner may clean up and the Architect will
            allocate the cost among those responsible.

 ARTICLE 7 CHANGES IN THE WORK
    7.1    GENERAL
    7.1.1 Changes in the Work may be accomplished after execution of the Contract, and
            without invalidating the Contract, by Change Order, Construction Change Directive or order
            for a minor change in the Work, subject to the limitations stated in this Article 7 and
            elsewhere in the Contract Documents.

            7.1.2   A Change Order shall be based upon agreement among the Owner, Contractor and
            Architect; a Construction Change Directive requires agreement by the Owner and Architect
            and may or may not be agreed to by the Contractor; an order for a minor change in the Work
            may be issued by the Architect alone.

            7.1.3   Changes in the Work shall be performed under applicable provisions of the Contract
            Documents, and the Contractor shall proceed promptly, unless otherwise provided in the
            Change Order, Construction Change Directive or order for a minor change in the Work.

                                                                                                                                                                                                                                                                    ~1997   NN?J
-::©::-C"'o_p_y..,.rig-:-h-:-1-:-:19""'1:-:-1-,1""9'"'1-=5,-1c-::9-.,.18,..,'""'1..,.9""25=-,-,1-:c93::-:7:-,-:-19"""5""'i-,-:-19,...,5'""8-,1...,9"'6-1,-1....,9_,.63,_,-1...,.9-66-,...,.1..,.96=7::-,..,.19""7,_,0-,.,.19=7'"'"6,-1""9...,.8""7,-1""9...,97~by   AlA DOCUMENT A201-1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                        GENERAL CONDITIONS OF THE
  quotation of its pro•Asions without \'llitien permission of the AlA violates the copyright laws of the United Stales                                                                                                                                              CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecuiion. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                               . .      .           .
  laws and will subject the violator lo legal prosecution. This document was electronically produced with                                                                                                                                                           The Amencan lnst1tule of Architects
  permission of the AlA and can be reproduced in accordance with your license wilhout violation until the date of                                                                                                                                                   1735 New York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                        Washington, D.C. 20006·5292
  This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                                                                                                                                                          30
             7.2                      CHANGE ORDERS
             7.2.1   A Change Order is a written instrument prepared by the Architect and signed by the
             Owner, Contractor and Architect, stating their agreement upon all of the following:

                                      .1 change in the Work;
                                      .2 the amount of the adjustment, if any, in the Contract Sum; and
                                      .3 the extent of the adjustment, if any, in the Contract Time.

             7.2.2      Methods used in determining adjustments to the Contract Sum may include those
             listed in Subparagraph 7.3.3.

             7.3                     CONSTRUCTION CHANGE DIRECTIVES
             7.3.1                   A Construction Change Directive is a written order prepared by the Architect and THIS DOCUMENT HAS IMPORTANT
             signed by the Owner and Architect, directing a change in the Work prior to agreement on                      LEGAL CONSEQUENCES.
             adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by                          CONSULTATION WITH AN
             Construction Change Directive, without invalidating the Contract, order changes in the Work                  AITORNEY IS ENCOURAGED WITH
                                                                                                                          RESPECT TO ITS COMPLETION OR
             within the general scope of the Contract consisting of additions, deletions or other revisions,              MODIFICATION. AUTHENTICATION
             the Contract Sum and Contract Time being adjusted accordingly.                                               OF THIS ELECTRONICALLY
                                                                                                                          DRAFTED AlA DOCUMENT MAY BE
             7.3.2                     A Construction Change Directive shall be used in the absence of total agreement on MADE BY USING AlA DOCUMENT
                                                                                                                          0401.
             the terms of a Change Order.
                                                                                                                                                                                                                                                                                This document has been approved and
             7.3.3   If the Construction Change Directive provides for an adjustment to the Contract endorsed by T.fu:t Associated General
             Sum, the adjustment shall be based on one of the following methods:                      Contractors of America.
                     .1 mutual acceptance of a lump sum properly itemized and supported by sufficient
                          substantiating data to perm.it evaluation;
                     .2 unit prices stated in the Contract Documents or subsequently agreed upon;
                     .3 cost to be determined in a manner agreed upon by the parties and a mutually
                          acceptable fixed or percentage fee; or
                     .4 as provided in Subparagraph 7.3.6.

             7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly
             proceed with the change in the Work involved and advise the Architect of the Contractor's
             agreement or disagreement with the method, if any, provided in the Construction Change
             Directive for determining the proposed adjustment in the Contract Sum or Contract Time.

             7.3.5 A Construction Change Directive signed by the Contractor indicates the agreement
             of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the
             method for determining them. Such agreement shall be effective immediately and shall be
             recorded as a Change Order.

             7.3.6     If the Contractor does not respond promptly or disagrees with the method for
             adjustment in the Contract Sum, the method and the adjustment shall be determined by the
             Architect on the basis of reasonable expenditures and savings of those performing the Work
             attributable to the change, including, in case of an increase in the Contract Sum, a reasonable
             allowance for overhead and profit. In such case, and also under Clause 7.3.3.3, the Contractor
             shall keep and present, in such form as the Architect may prescribe, an itemized accounting
             together with appropriate supporting data. Unless otherwise provided in the Contract

                                                                                                                                                                                                                                                                                :::>!9$7 Alt.fi!l
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 The American Institute of Architects. Rfteenlh Edition. Reproduction of the material herein or substantial                                                                                                                                                                     GENERAL COND!TlONS OF THE
 quotation of ils provisions without writ!en permission of the AlA violates the copyright laws of ihe United States                                                                                                                                                             CONTRACT FOR CONSTRUCTION
 and will subject lhe violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                    •        .       .            .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                         fhe Amencan lnstttute of Arch!tects
 permission of !he AlA and can be reproduced in accordance with your license •Nithout violation until the date of                                                                                                                                                               1735 ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                                    Washmgton, D.C. 20006·5292
 This document is not an original AJA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                      31
       Documents, costs for the purposes of this Subparagraph 7.3.6 shall be limited to the
       following:
                .1 costs of labor, including social se<:urity, old age and Redacted
                   fringe benefits required by agreement or custom, and Redacted
                           Redacted

                    .2 costs of materials, supplies and equipment, including cost of transportation,
                       whether incorporated or consumed;
                    .3 rental costs of machinery and equipment, exclusive of hand tools, whether
                       rented from the Contractor or others;
                    A Redacted                                           , permit fees, and sales, use or
                       similar taxes related to the Work; and
                    .5 additional costs of supervision and field office personnel directly attributable to
                       the change.                                                                         THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                       LEGAL CONSEQUENCE&
       7.3.7     The amount of credit to be allowed by the Contractor to the 0\vner for a deletion or                                                  CONSULTATION WITH AN
       change which results in a net decrease in the Contract Sum shall be actual net cost as                                                          ATTORNEY JS ENCOURAGED WITH
            -                .   .          .            ..               •  , .      .          •                                                     RESPECT TO ITS COMPLETION OR
       confirmed by the Architect When both addJtrons and cred1ts covenng related Work or                                                              MODIFICATION.AUTHENTICATJON
       substitutions are involved in a change, the allowance for overhead and profit shall be figured                                                  OF THIS ELECTRON/CALL y
       on the basis of net increase, if any, with respect to that change.                                                                              DRAFTED A/A DOCUMENT MAY BE
                                                                                                                                                       MADE BY USING AlA DOCUMENT
                                                                                                                                                       0401.
       7.3.8 Pending final determination of the total cost of a Construction Change Directive to
       the Owner, amounts not in dispute for such changes in the Work shall be included in This document has been approved and
       Applications for Payment accompanied by a Change Order indicating the parties' agreement endorsed by Tne As~ociated General
       with part or all of such costs. For any portion of such cost that remains in dispute, the Contractors of Amenca
       Architect will make an interim determination for purposes of monthly certification for
       payment for those costs. That detennination of cost shall adjust the Contract Sum on the same
       basis as a Change Order, subject to the right of either party to disagree and assert a claim in
       accordance with Article 4.                                                ·

       7.3.9 When the Owner and Contractor agree with the determination made by the Architect
       concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach
       agreement upon the adjustments, such agreement shall be effective immediately and shall be
       recorded by preparation and execution of an appropriate Change Order.

       7.4           MINOR CHANGES IN THE WORK
       7.4.1     The Architect will have authority to order minor chattges in t11e \Vork not involving
       adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with
       the intent of the Contract Documents. Such changes shall be effected by written order and
       sl1all be binding on the Owner and Contractor. The Contractor shall carry out such written
       orders promptly.

ARTiCLE 8 TIME
   8.1    DEFINITIONS
       8.1.1   Unless othenvise provided, Contract Time is the period of time, including authorized
       adjustments, allotted in the Contract Documents for Substantial Completion of the Work.

       8.1.2         The date of commencement of the Work is the date established in the Agreement.


                                                                                                                                                       ~1997   Al/<3
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                                                                                    1,~1~9~63~,~1~9~66~,"1~96~7~,7
                                                                                                                 19~7~0~,~19~7~6,~1~9~S~7.~1~9~97~by   AIADOCUMENTA201·1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                            GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                     CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                    .       .            .
laws and wilt subject the violator to legal prosecution. This document was electronically produced with                                                The Amencan lnslltute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                        1735 ~ew York Avenue, N.W.
expiration as noted be!ow.                                                                                                                             Washmgton, D.C. 20006·5292
Thls document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and ls not for other use or resale.
                                                                                                                32
           8.1.3 The date of Substantial Completion is the date certified by the Architect in
           accordance with Paragraph 9.8.

           8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless
           otherwise specifically defined.

           8.2                  PROGRESS AND COMPLETION
           8.2.1                Time limits stated in the Contract Documents are of the essence of the Contract. By
           executing the Agreement the Contractor confirms that the Contract Time is a reasonable
           period for performing the \Vork.

           8.2.2              Redacted
Redaded
                                                                                                                                                                                                                                       THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                       LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                       CONSUL TAT/ON WITH AN
                                                                                                                                                                                                                                       ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                       RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                       MODIFJCAT!ON. AUTHENTICATION
                                                                                                                                                                                                                                       OF THIS ELECTRON/CALLY
                                                                                                                                                                                                                                       DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                       MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                       0401
           8.2.3   The Contractor sha11 proceed expeditiously with adequate forces and shall achieve.      ·
           Substantial Completion within the Contract Time.                                           This document has been approved and
                                                                                                      enporsed by The Associated General
           8.3                  DELAYS AND EXTENSIONS OF TIME                                                                                                                                                                          Contractors of America.
           8.3.1   Jf the Contractor is delayed at any time in the commencement or progress of the
          Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a
          separate contractor employed by the Owner, or by changes ordered in the Work, or by labor
          disputes, fire, tmusual delay in deliveries, unavoidable casualties or other causes beyond the
          Contractor's control, or by delay authodzed by the Owner pending mediation and arbitration,
          or by other causes which the Architect detennines may justify delay, then the Contract Time
          shall be extended by Change Order for such reasonable time as the Architect may detennine.

           8.3.2   Claims relating to time shall be made in accordance with applicable provisions of
           Paragraph 4.3.

           8.3.3 This Paragraph 8.3 does not preclude recovery of damages for delay by either party
           under other provisions of the Contract Documents.

ARTICLE 9 PAYMENTS AND COMPLETION
   9.1    CONTRACT SUM
   9.1. i The Contract Sum is stated in the Agreement and, including authorized adjustments,
           is the total amount payable by the Owner to the Contractor for performance of the Work
           under the Contract Document<;.

           9.2                 SCHEDULE OF VALUES
           9.2.1               Before the first Application for Payment, the Contractor shall submit to the Architect
           a schedule of values allocated to various portions of the Work, prepared in such form and
           supp01ted by such data to substantiate its accuracy as the Architect may require. This

                                                                                                                                                                                                                                       1:1#1997 AlP$
_,(f;).,..c-=-o-p_y..,.rig-:-hc:-17197 1""1-,-.19'"'1-=5,-1'"'9""'18..,..,-1'""9.,..25=-,-1..,.93=7,_,-1.,...95""1-,-19'"'5'""8-,.,...19,....6-1,-i,_9_63_,_i_,.9..,..66-,-1-96_7.,...,...,.19""7=0-,...-i9=7=6-,1-9-8=7,-1-9-97=-by   AlA DOCUMENT A201 • 1997
 The American Institute of Archllects. fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                           GENERAL CONDITIONS OF THE
 quotation oi its provisions illithout written permission of the AlA violates the copyright laws of the United States                                                                                                                  CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                   ,       .             .
 laws and will subject the \~o!ator to legal prosecution. This document was electionical!y produced with                                                                                                                               T~e Amencan lnstlllrte ol Architects
 permission of the AlA and can be reproduced in accordance with your license illithout violation until the date of
 expiration as noted below.
                                                                                                                                                                                                                                       1r35 ~ew York Avenue,     r::.w.
                                                                                                                                                                                                                                       Washmg!on, D.C. 20006-::.292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                 33
           schedule, unless objected to by the Architect, shall be used as a basis for re\·iewing the
           Contractor's Applications for Payment

           9.3      APPLICATIONS FOR PAYMENT
           9.3.1    At least ten days before the date established for each progress payment, the
           Contractor shall submit to the Architect an itemized Application for Payment for operations
           completed in accordance with the schedule of values. Such application shall be notarized, if
           required, and supported by such data substantiating the Contractor's right to payment as the
           Owner or Architect may require, such as copies of requisitions from Subcontractors and
           material suppliers, and reflecting retainage if provided fodn the Contract Documents.

           9.3.1.1 As provided in Subparagraph 7.3.8, such applications may include requests for
           payment on account of changes in the Work which have been properly authorized by THIS DOCUMENT HAS IMPORTANT
           Construction Change Directives, or by interim determinations of the Architect, but not yet LEGAL CONSEQUENCE&
           included in Change Orders.                                                                 CONSULTATION WITH AN
                                                                                                         A ITORNEY JS ENCOURAGED WITH
                                                        •        •                                •      RESPECT TO ITS COMPLETION OR                                                      •                             1        •
           9.3.1.2 Such applications may not mclude requests for payment for portJOns of the 'VI ork for MODIFICATION. AUTHENTICATION
           which the Contractor does not intend to pay to a Subcontractor or material supplier, unless OF THIS ELECTRONICALLY
           such Work has been performed by others whom the Contractor intends to pay.                    DRAFTED AlA DOCUMENT MAY BE
                                                                                                         MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                               0401.
           9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on
           account of materials and equipment delivered and suitably stored at the site for subsequent                                                                                                                                         This document has been approved and
           incorpomtion in the Work. If approved in advance by the Owner, payment may similarly be                                                                                                                                             endorsed by Tne Associated General
           made for materials and equipment suitably stored off the site at a location agreed. upon in                                                                                                                                         Contractors of America.
           writing. Payment for materials and equipment stored on or off the site shall be conditioned
           upon eompliance by the Contractor with procedures satisfactory to the Owner to establish the                                                                                                                                                                                                            '-
           Owner's title to such.materials and equipment or otherwise protect the Owner's interest, and
           shall include the costs of applicabkfedacted , storage and transportation to the site for such
           materials and equipment stored off the site.

           9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment
           will pass to the Owner no later than the time of payment. The Contractor further warrants that
           upon submittal of an Applicati011 for Payment all Work for which Certificates for Payment
           have been previously issued and payments received from the Owner shall, to the best of the
           Contractor's knowledge, Information and belief, be free and clear of liens, claims, security
           interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or
           other persons or entities making a claim by reason of having provided labor, materials and
           equipment relating to the Work.

           9.4     CERTIFICATES FOR PAYMENT
           9.4.1    The Architect will, within seven days after receipt of the Contractor's Application
           for Payment, either issue to the Owner a Certificate for Payment, with a copy to the
           Contractor, for such amount as the Architect determines is properly due, or notify the
           Contractor and Owner in writing of the Architect's reasons for withholding certification in
           whole or in part as provided in Subparagraph 9.5. 1.

           9.4.2    The issuance of a Certificate for Payment will constitute a representation by the
           Architect to the Owner, based on the Architect's evaluation of the Work and the data
           comprising the Application for Payment, that the Work has progressed to the point indicated
                                                                                                                                                                                                                                               ©19971\JN!!J
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                                                                                                                                                  1,-:1:-:::9-:::63:::-,-::1-:::96:;:-;6:;-,-o-1:::::96::::7:-,-::19;;::7;;:;0-,7.19""7:;::6,-:1:;;9::;:8::-7,-:1:-:::9:::::97:;-;::-:-by AlA DOCUMENT A201·1997
The American Institute of Arclli!ects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                   GENERAL CONDITIONS OF THE
quotation of its provisions wllhout wri!!en permission of the AlA violates the copyright Jaws of the United States                                                                                                                             CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                            .       .            .
laws and will subject the violator to legal prosecution. This document was electronically produced vJith                                                                                                                                       The Amencan Institute of Architects
permission of the AlA and can be·reproduced in accordance with your license without violation until the date of                                                                                                                                1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                                     Washmgton, D.C. 20006·5292
This document ls not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                      34
             and that, to the best of the Architect's kno\vledge, information and belief, the quality of the
             Work is in accordance with the Contract Documents. The foregoing representations are
             subject to an evaluarion of the Work for conformance with the Contract Documents upon
             Substantial Completion, to results of subsequent tests and inspections, to correction of minor
             deviations from the Contract Documents prior to completion and to specific qualifications
             expressed by the Architect. The issuance of a Certificate for Payment will further constitute a
             representation that the Contractor is entitled to payment in the amount certified. However, the
             issuance of a Certificate for Payment will not be a representation that the Architect has (1)
             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) made
             examination to ascertain how or for what purpose the Contractor has used money previously THIS DOCUMENT HAS IMPORTANT
             paid on account of the Contract Sum.                                                            LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                                   CONSULTATION WITH AN
             9.5      DECISIONS TO WITHHOLD CERTIFICATION                                                                                                                                                                                                          ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                   RESPECT TO ITS COMPLETION OR
             9.5.1    The Architect may withhold a Certificate for Payment in whole or in part, to the                                                                                                                                                             MODIF!CATJON. AUTHENTICATION
             extent reasonably necessary to protect the Owner, if in the Architect's opinion the                                                                                                                                                                   OF THIS ELECTRON/CALL y
             representations to the Owner required by Subparagraph 9.4.2 cannot be made. If the Architect                                                                                                                                                          DRAFTED AlA DOCUMENT MAY BE
             is unable to certify payment in the amount of the Application, the Architect will notify the                                                                                                                                                          MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                   0401
             Contractor and Owner as provided in Subparagraph 9.4.1. If the Contractor and Architect                                                                                                                                                                    •
             cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment                                                                                                                                                         This document has been approved and
             for the amount for which the Architect is able to make such representations to the Owner. The                                                                                                                                                         endorsed by The Associated General
             Architect may also withhold a Certificate for Payment or, because of subsequently discovered                                                                                                                                                          Contractors of America.
             evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to
             such extent as may be necessary in the Architect's opinion to protect the Owner from loss for
             which the Contractor is responsible, including loss resulting from acts and omissions
             described in Subparagraph 3.3.2, because of:
                      .1 defective Work not remedied;
                      .2 third party claims filed or reasonable evidence indicating probable filing of such
                           claims unless security acceptable to the Owner is provided by the Contractor;
                      .3 failure of the Contractor to make payments properly to Subcontractors or for
                           labor, materials or equipment;
                      .4 reasonable evidence that the Work cannot be completed for the unpaid balance
                           of the Contract Sum;
                      .5 damage to the Owner or another contractor;
                      .6 reasonable evidence that the Work will not be completed within the Contract
                          Time, and that the unpaid balance would not be adequate to cover actual or
                           liquidated damages for the anticipated delay; or
                      .7 persistent failure to carry out the Work in accordance with the Contract
                          Documents.             ·

             9.5.2    When the above reasons for withholding certification are removed, ce11:ification will
             be made for amounts previously withheld.

            9.6      PROGRESS PAYMENTS
                                                                                                                                                                                                                                                                        -
            9.6.1     After the Architect has issued a Certificate for Payment, the Owner shall make
            payment in the manner and within the time provided in the Contract Documents, and shall so .. ~
            notify the Architect.
                                                                                                                                                                                                                                                                   i!:l19$7 AINI'>
-;:©,-C""o-p-y'"'rig-:h-:-l-::1-:::S:-:11::-,""'1""'9i""5:-,-1-=-91""'8::-,-.1-:::9c:c25:-.""'1""9""37:o-,-:ic:::9-=51:-,'""1""9-::58::-,-1""9""'51.,..,..,1'""9.,.63""',""'1""9""'66::-,-.1-=9""'67=-,-:1-=9-=7o::-,-:1-=9-=76::-,-:1-=9"'87=-,-1""9""97:-:-by-   AlA DOCUMENT A201 ·1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                       ~ENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the Unlled States                                                                                                                                                vONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                •       •            ,
 laws and wlll subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                           The_Amencan lnst.1tute of Architects
 permission of !he AlA and can be reproduced in accordance 'hith your license without violation until the date of                                                                                                                                                  173:> ~ew York AventJe, N.W•
 expiration as noted below.                                                                                                                                                                                                                                        Washmgton, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                         35
           9.6.2    The Contractor shall promptly pay each Subcontractor, upon receipt of payment
           from the Owner, out of the amount paid to the Contractor on account of such Subcontractor's
           portion of "the Work, the amount to which said Subcontractor is entitled, reflecting
           percentages actually retained from payments to the Contractor on account of such
           Subcontractor's porti~n of the Work. The Contractor shaH, by appropriate agreement with
           each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in a
           similar manner.

            9.6.3    The Architect will, on request, furnish to a Subcontractor, if practicable, information
            regarding percentages of completion or amounts applied for by the Contractor and action
            taken thereon by the Architect and Owner 011 account of portions of the Work done by such
            Subcontractor.                                                                                   THIS DOCUMENT HAS iMPORTANT
                                                                                                                                                                                                                                                     LEGAL CONSEQUENCES.
            9.6.4   Neither the Owner nor Architect shall have an obligation to pay or to see to the CONSULTATION WITH AN
            payment of money to a Subcontractor except as may otherwise be required by law.          ATTORNEY JS ENCOURAGED WITH
                                                                                                           RESPECT TO ITS COMPLETION OR
                                                                                                           MODIFICATION. AUTHENTJCA TJON
            9.6.5   Payment to material suppliers shall be treated in a manner similar to that provided in OF THIS ELECTRON/CALLY
            Subparagraphs 9.6.2, 9.6.3 and 9.6.4.                                                          DRAFTED AlA DOCUMENT MAY BE
                                                                                                           MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                     D4(}1.
            9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy
            of the Project by the Owner shall not constitute acceptance of Work not in accordance with This document has been approved and
            the Contract Documents.                                                                    endorsed by The Associated General
                                                                                                                                                                                                                                                     Contractors of America.
            9.6.7   Unless the Contractor provides the Owner with Redacted                 in the full penal sum
            of the Contract Sum, payments received by the Contractor for Work properly performed by
            Subcontractors and suppliers shall be held by the Contractor for those Subcontractors or
            suppliers who performed Work or furnished materials, or both, under contract with the
            Contractor for which payment was made by the Owner. Nothing contained herein shall
            require money to be placed in a separate account ru1d not conuningled with money of the
            Contractor, shall create imy fiduciary liability or tort liability on the part of the Contractor for
            breach of trust or shall entitle any person or entity to an award of punitive damages against the
            Contractor for breach of the requirements of this provision.

            9.7                   FAILURE OF PAYMENT
            9.7.1    If the Architect does not issue a Certificate for Payment, through no fault of the
            Contructor, within seven days after receipt of the Contractor's Application for Payment, or if
            the Owner does not pay the Contractor within seven days after the date established in the
            Contract Documents the amount certified by the Architect or awarded by arbitration, then the
            Contractor may, upon seven additional days' written notice to the Owner and Architect, stop
            the Work until payment of the amount owing has been received. The Contract Time shall be
            extended appropriately and the Contract Sum shall be increased by the amoum of the
            Contractor's reasonable costs of shut-down, delay and start-up, plus interest as provided for in
            the Contract Documents.

            9.8                   SUBSTANTIAL COMPLETION
            9.8.1   Substantial Completion is the stage in the progress of the Work when the Work or
            designated portion t..l-Jereof is sufficiently complete in accordance with the Contract
            Documents so that the Owner can occupy or utilize the Work for its intended use.
                                                                                                                                                                                                                                                                                                 e>i997 AlA®
'©;:-;::C~op:-:y~ri~gh:::t--:;1-::::97
                                     11::-,-::1::::97
                                                    15:::-,-::1::::97
                                                                    18;:-,-::1-::::9~25;:-,-::1::::9-;::37::-,-::1-::::9-.=-51::-,-::1-::::9-.=-58;:-,-::1-::::9~61::-,-::1::::9~63;:-,-:i:-:::9~66:::-,-:1::::9~67::-,-:1r:::9:::;7:::-0,-:1r:::9:::;76:::-,-:1r:::9~87::-,-:i~9~97::;-;:-by":' AlA DOCUMENT A201 ·1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                          GENERAL CONDITIONS OF THE
quotation of its provislons w~hout written permission of the AlA violates the copyright laws of the United States                                                                                                                                    CONTRAC'f FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                              The American lns!ltule of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date o1                                                                                                                                      1735 New York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                                           Washington, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by A!MJ)
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                               36
             9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner
             agrees to accept separately, is substantially complete, the Contractor shall prepare and submit
             to the Architect a comprehensive list of items to he completed or corrected prior to final
             payment. Failure to include an item on such list does not alter the responsibility of the
             Contractor to complete all Work in accordance with the Contract Documents.

             9.8.3     Upon receipt of the Contractor's list, the Architect will make an inspection to
             determine whether the Work or designated portion thereof is substantially complete. If the
             Architect's inspection discloses any item, whether or not included on the Contractor's list,
             which is not sufficiently complete in accordance with the Contract Documents so that the
             Owner can occupy or utilize the Work or designated portion thereof for its intended use, the
             Contractor shall, before issuance of the Certificate of Substantial Completion, complete or THIS DOCUMENT HAS IMPORTANT
             correct such item upon notification by the Architect In such case, the Contractor shall then LEGAL CONSEQUENCES.
             submit a request for another inspection by the Architect to determine Substantial Completion. CONSULTATiON WITH AN
                                                                                                                                                                                                                                                                     ATTORNEY IS ENCOURAGED WITH
                                                                          .                    .                               •                            .                          •                                                              .              RESPECT TO JTS COMPLETION OR
             9.8.4 When the Work or desJgnated portton thereof IS substantially complete, the Arch1tect                                                                                                                                                              MODIFICATION AUTHENTICATION
             will prepare a Certificate of Substantial Completion which shall establish the date of                                                                                                                                                                  OF THIS ELECTRON/CALL y    ·
             Substantial Completion, shall establish responsibilities of the Owner and Contractor for                                                                                                                                                                DRAFTED AlA DOCUMENT MAY BE
             security, maintenance, heat, utilities, damage to the Work and Redacted , and shall fix the time                                                                                                                                                        MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                     0401
             within which the Contractor shall finish all items on the list accompanying the Certificate.                                                                                                                                                                      ·
             Warranties required by the Contract Documents shall commence on the date of Substantial                                                                                                                                                                 This document has been approved and
             Completion of the Work or designated portion thereof unless otherwise provided in the                                                                                                                                                                   endorsedbyTheAssociatedGeneral
             Certificate of Substantial Completion.                                                                                                                                                                                                                  Contractors of America.

             9.8.5    The Certificate of Substantial Completion shall be submitted to the Owner and
             Contractor for their \vritten acceptance of responsibilities assigned to them in such Certificate.
             Upon such acceptance and consent of ~edacte, if any, the Owner shall make payment of
             retainage applying to such Work or designated portion thereof. Such payment shall be
             adjusted for Work that is incomplete or not in accordance with the requirements of the
             Contract Documents.

            9.9       PARTIAL OCCUPANCY OR USE
            9.9.1     The Owner may occupy or use any completed or partially completed portion of the
            Work at any stage when such portion is designated by separate agreement with the Contractor,
            provided such occupancy or use is consented to by tht:f'edacted as required under Clause
            11.4.1.5 and authorized by public authorities having jurisdiction over the Work. Such partial
            occupancy or use may commence whether or not the portion is substantially comp1ete,
            provided the Owner and Contractor have accepted in writing the responsibilities assigned to
            each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to
            the Work and Redacted ,, and have agreed in writing concerning the period for correcrion of
            the Work and conm1encement of warranties required by the Contract Documents. When the
            Contractor considers a portion subsrantialiy complete, the Contractor shall prepare and submit
            a list to the Architect as provided under Subparagraph 9.8.2. Consent of the Contractor to
            partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the
            Work shall be determined by written agreement between the Owner and Contractor or, if no
            agreement is reached, by decision of the Architect.


                                                                                                                                                                                                                                                                     !ill997   Al~
""'©"'C:::-o-p-yr-,-ig-:-h.,-t-:-:19::-::1-..,.1-,1'"'9:-:-1-=5,...,1'""9"'"18"",'""'1-=9""25=-,""'1""93""7=-,""19""5'"'i-,""'19:-:5""8-,-.-:19:-:6-:-1,-1:-::9-::-63"",'""1""9""66"",'"'1"""96=7'"",-:-19""7""0-,""19""7':'::6,-1.....,9""8""7,-1'""9""97::-:--by   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                         GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright taws of the United States                                                                                                                                                  CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                 .       .            .
  laws and will subject the violator to legal prosecution. This document was electronically produced v.'ith                                                                                                                                                          T~e Amencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without dolalion until the date of                                                                                                                                                      1t35 New York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                          Washmgton, D.C. 20006·5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                          37
            9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and
            Architect shall jointly inspect the area to be occupied or portion of the Work to be used in
            order to determine and record the condition of the Work.

            9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of
            the Work shaH not constitute acceptance of Work not complying with the requirements of the
            Contract Documents.

            9.10      FINAL COMPLETION AND FINAL PAYMENT
            9.1 0.1 Upon receipt of written notice that the Work is ready for final inspection and
            acceptance and upon receipt of a final Application for Payment, the Architect will promptly
            make such inspection and, when the Architect finds the Work acceptable under the Contract
            Documents and the Contract fully performed, the Architect will promptly issue a final                                                                                                                                                               THIS DOCUMENT HAS IMPORTANT
            Certificate for Payment stating that to the best of the Architect's knowledge, information and                                                                                                                                                      LEGAL CONSEOUENCES.
            belief, and on the basis of the Architect's on-site visits and inspections, the Work .has been                                                                                                                                                      CONSULTATION WITH AN
            completed in accordance with temlS and conditions of the Coutract Documents and that the                                                                                                                                                            AITORNEY IS ENCOURAGED WITH
               ·                      b                       .          ·       .. 1     ·      ·                                                                                                                                                              RESPECT TO ITS COMPLETION OR
            enure balance found to e due the Contractor and noted m the fina Cerllficate ts due and                                                                                                                                                             MOD!FlCATION. AUTHENTICATION
            payable. The Architect's final Certificate for Payment will constitute a further representation                                                                                                                                                     OF THIS £L£CTRONJCALL y
            that conditions listed in Subparagraph 9.10.2 as precedent to the Contra.ctor's being entitled to                                                                                                                                                   DRAFTED AlA DOCUMENT MAY BE
            final payment have been fulfilled.                                                                                                                                                                                                                  MAD£ BY USING AlA DOCUMENT
                                                                                            '                                                                                                                                                                   D401.

           9.1 0.2 Neither final payment nor any remaining retained percentage shall become due until This document has been approved and
           the Contntctor submits to the Architect (1) an affidavit that payrolls, bills for materials and endorsed by The Associated General
           equipment, and other indebtedness connected with the Work for which the Owner or the Contractors of America.
           Owner's properly might be responsible or encumbered (less amounts wit.ihcld by Owner)
           have been paid or otherwise satisfied, (2)'edacted
           Redacted

           Redacted                               (3) Redacted

            (4) consent of ~edacte, if any, to final payment and (5), if required by the Owner, other data
            establishing payment or satisfaction of obligations, such as receipts, releases and waivers of
            liens, claims, security interests or encumbrances arising out of the Contract, to the extent and
            in such form as may be designated by the Owner. If a Subcontractor refuses to furnish a
            release or waiver required by the Owner, the Contractor may furnish a~!dact satisfactory to the
            Owner to indemnify the Owner agrtinst such lien. If such lien remains unsatisfied after
            payments are made, the Contractor shall refund to the Owner all money that the Owner may
            be compelled to pay in discharging such lien, including all costs and reasonable attorneys'
            fees.

            9.10.3 If, after Substantial Completion of the Work, final completion thereof is materiaiJy
            delayed through no fault of the Contractor or by issuance of Change Orders affecting final
            completion, and the Architect so contirms, the Owner shall, upon application by the
            Contractor and certification by the Architect, and without terminating the Contract, make
            payment of the balance due for that portion of the Work fully completed and accepted. If the
            remaining balance for Work not fully completed or corrected is less than retainage stipulated
            in the Contract Documents, and if~edacte have been furnished, the written consent o~edacte to
            payment of the balance due for that portion of the \Vork fully completed and accepted shall be
            submitted by the Contractor to the Architect prior to cemfication of such payment Such
                                                                                                                                                                                                                                                                <:lHl97 AlA®
""©,..C"'"o_p_y..,.rig-:-h-:-1-.-19""1,-:1-,.,.,19'"'1""'5-,1'"'9,-:1""'8,-1""9"""25"",-:1""93"'7=-,-:-19'="5""1-,"'"19""'5""8-,1""'9""6"'"1,-1'""9""'63"'","""1""9'="66,...,-:1""96:::7::--,-:-19'="7::-:0c-,""19""7"'6,-1'"'9:-:::8=7,-i:-:::9""97:::-:--by   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantia!                                                                                                                                                    GENERAL CONDITIONS OF THE
 Cfi,JOlalion of its provisions v.ithout written permission of the AlA violates the copyright laws of the United Slates                                                                                                                                         CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                            .       . .          .
 laws and \viii subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                       The Amencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation umil the date of                                                                                                                                                 1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                     Washmglon, D.C. 20006-5292
 This document is not an origlnal AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                      38
         '


         payment shall be made under terms and conditions governing final payment, except that it
         shall not constitute a waiver of claims.

         9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner
         except those arising from:
                  .i liens, Claims, security interests or encumbrances arising out of the Contract and
                      unsettled;
                  .2 failure of the Work to comply with the requirements of the Contract Documents;
                      or
                  .3 terms of special warranties required by the Contract Documents.

         9.1 0.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier
         shall constitute a waiver of claims by that payee except those previously made in writing and THIS DOCUMENT HAS iMPORTANT
         identified by that payee as unsettled at the time of final Application for Payment.           LEGAL CONSEQUENCES.
                                                                                                                                                                                                 CONSULTATION WITH AN
ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY                                                 ATTORNEY IS ENCOURAGED WITH
                                                                                              RESPECT TO ITS COMPLETION OR
   10.1      SAFETY PRECAUTIONS AND PROGRAMS                                                  MODIFICATION. AUTHENTICATION
   10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all OF THIS ELECTRON/CALLY
   safety precautions and programs in connection with the performance of the Contract         DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                 MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                 D401.
         10.2    SAFETY OF PERSONS AND PROPERTY
         10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide This document has been approved End
         reasonable protection to prevent damage, )njury or loss to:                                      endorsed by The Associated General
                 .1 employees on the Work and other persons who may be affected thereby;                  Contractors of AmeriCE.
                 .2 the Work and materials and equipment to be incorporated therein, whether in
                      storage on or off the site, under care, custody or control of the Contractor or the
                      Contractor's Subcontractors or Sub-subcontractors; and
                 .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks,
                      pavements, roadways, structures and utilities not designated for removal,
                      relocation or replacement in the course of construction.

         10.2.2 The Contractor shall give notices and comply with applicable Jaws, ordinances, rules,
         regulations and lawful orders of public authorities bearing on safety of persons or property or
         their protection from damage, injury or loss.

         10.2.3 The Contractor shall erect and maintain, as required by existing conditions and
         perfom1ance of the Contract, reasonable safeguards for safety and protection, including
         posting danger signs and other warnings against hazards, promulgating safety regulations and
         notifying owners and users of adjacent sites and utilities.

         10.2.4 When usc or storage of explosives or other hazardous materials or equipment or
         unusual methods are necessary for execution of the Work, the Contractor shall exercise
         utmost care and carry on such activities under supervision of properly qualified personnel.

         10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss
        Redacted                           required by the Contract Documents) to property referred to
         in Clauses 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor,
         a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone
         for whose acts they may be liable and for which the Contractor is responsible under Clauses
                                                                                                                                                                                                 @1997 AlA'S!
"'©=-=Co-p_y....,rl,..gh""'t--1'"'9""1-:-1,-1""9'""1.,.5,-1'""9..,.1""8,-1""9725"',-1'""9""3""'7,-1,..,9""'5.,..1,-1-,9""5""8,-1~9..,.6.,..1,-1-9-6~3-,1__9_6_6-,1-9-6=7,-1-9""'7,_0-,1-9=7=6,-1-9_8_7_,1-9,....9.,_7..,.b-y AlA DOCUMENT A201 - 19~7
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                      GENERAL COI>lD!TJONS Or THE
quotation of l!s provisions without written permission of the AlA violates the copyright laws of the United States                                                                               CONTRACT FOR CONSTRUCTION
and wi!l subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                              .       .             •
!aws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                          The Amencan lnstilule of Arch!te~ts
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                  1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                                                                       Washmgton, D.C. 20006·5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                          39
          10.2.1.2 and 10.2.1.3, except damage or loss attributable to acts or omissions of the Owner or
          Architect or anyone directly or indirectly employed by either of them, or by anyone for whose
          acts either of them may be liable, and not attributable to the fau1t or negligence of the
          Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's
          obligations under Paragraph 3 .18.

           10.2.6 The Contr-actor shall designate a responsible member of the Contractor's organization
           at the site whose duty shall be the prevention of accidents. This person shall be the
           Contractor's superintendent unless otherwise designated by the Contractor in \Vtiting to the
           Owner and Architect.

           1 0.2. 7 The Contractor shall not load or penn it any parr of the construction or site to be
           loaded so as to endanger its safety.                                                         THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                 LEGAL CONSEQUENCES.
           10.3     HAZARDOUS MATERIALS                                                                                                                                                                                                                          CONSULTATION WITH AN
           1 0.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or                                                                                                                                                          ATTORNEY IS ENCOURAGED WITH
                                  ·        ·       ·         .     ·    · b .        · · d      ·b
           death to persons resultmg from a rnatenal or substance, mcludmg ut not lmute to as estos
                                                                                                                                                                                                                                                                 RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                                 MODIFICATION AUTHENTICATION
           or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor                                                                                                                                                          oF THIS ELECTRONICALLY
           shall, upon recognizing the condition, immediately stop Work in the affected area and report                                                                                                                                                          DRAFTED AlA DOCUMENT MAY BE
           the condition to the Owner and Architect in writing.
                                                                                                                                           -                                                                                                                     MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                 ~~

           10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or This document has been approved and
           absence of the material or substance reported by the Contractor and, in the event such material endorsed by Tile Associated General
           or substance is found to be present, to verify that it has been rendered hannless. Unless contractors of America.
           otherwise required by the Contract Documents, t11e Owner shall furnish in writing to the
           Contractor and Architect the names and qualifications of persons or entities who are to
           perform tests verifying the presence or absence of such material or substance or who are to
           pe1forrn the task of removal or safe containment of such material or substance, The Contractor
           and the Architect will promptly reply to the Owner in writing stating whether or not either has
           reasonable objection to the persons or entities proposed by the Owner. If either the Contractor
           or .Architect has an objection to a person or entity proposed by the Owner, the Owner shall
           propose another to whom the Contractor and the Architect have no reasonable objection.
           When the material or ~ubstance has been rendered hannless, Work in the affected area shall
           resume upon written agreement of the Owner and Contractor. The Contract Time shall be
           extended appropriate1y and the Contract Sum shall be increased in the amount of the
           Contractor's reasonable additional costs of shut-down, delay and starr-up, which adjustments
           shall be accomplished as provided in Article 7.

           10.3.3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless
           the Contractor, Subcontractors, Architect, Architect's consultants and agents and employees
           of any of them from and against claims, damages, losses and expenses, including but not
           limited to attorneys' fees, arising out of or resulting from performance of the Work in the
           affected area if in fact the material or substance presents the risk of bodily injury or death as
           described in Subparagraph 10.3.1 and has not been rendered harmless, provided that such
           claim, damage, loss or expense is atrributable to bodily injury, sickness, disease or death, or to
           injury to or destruction of tangible property (other than the Work itself) and provided that
           such damage, loss or expense is not due to the sole negligence of a party seeking indemnity.


                                                                                                                                                                                                                                                                 01997   AlA~
  """co_p_yr-:ig-:h-:-t..,.19'="1'""1-,.,..19'""1-=5-,1....,9,_,1.,.8,-1,...,9"""'2::>-=--,-1'""9"'37"",-:1-:-95="1,...,..,.19""'5'""8-,-19,_6_,.1.-1"""9-63"'"'".-1-9-66-,-1..,.96'""'7""",-1'""97'"'"0,...,...,.19..,7""6-,.,.19,....8=7,-1,...,9-9""7.,.-by
"'©""·                                                                                                                                                                                                                                                           AlA DOCUME~ A201 -1997
The American Institute of Architects. Fifteenth Edition. Reproduclion of the material herein or substantial                                                                                                                                                      GENERAL CO. mlTIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                               CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                              .        •           .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                          The Amencan lnst1tute of Architects
permission ol the AlA and can be reproduced in accordance vvith your license without violation untillhe date of                                                                                                                                                  1735 ~ew YorK Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                                                       Washington, D.O. 20006-5292
This document is not an original t>JA® Contract Document, but a reproduction produced by I>JA®
Contract Documents software for administrative purposes only and ls not for other use or resale.
                                                                                                                                                                                                                                                       40
              10.4     The Ovvner shall not be responsible under Paragraph 10.3 for materials and
              substances brought to the site by the Contractor unless such materials or substances were
              required by the Contract Documents.

              10.5      If, \Vithout negligence on the part of the Contractor, the Contractor is held liable for
              the cost of remediation of a hazardous material or substance solely by reason of performing
              Work as required by the Contract Documents, the Owner shall indemnify the Contractor for
              all cost and expense thereby incurred.

              10.6                   EMERGENCIES
              10.6.1    In an emergency affecting safety of persons or property, the Contractor shall act. at
              the Contractor's discretion, to prevent t.fJreatened damage, injury or loss. Additional
              compensation or extension of time claimed by the Contractor on account of an emergency THIS DOCUMENT HAS IMPORTANT
              shall be determined as provided in Paragraph 4.3 and Article 7.                                 LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                  CONSULTATION WITH AN
    ARTICLE 11 Redacted                                                                                                                                                                                                                           ATTORNEY IS ENCOURAGED WITH
~edacted                                                                                                                                                                                                                                          "1ESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                  lAODIF!CA TION. AUTHENTICA TJON
                                                                                                                                                                                                                                                  JF THIS ELECTRON/CALLY
                                                                                                                                                                                                                                                  JRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                  lAADE BY USiNG AlA DOCUMENT
                                                                                                                                                                                                                                                   )401.

                                                                                                                                                                                                                                                   This document has been approved and
                                                                                                                                                                                                                                                   mdorsed by The Associated General
                                                                                                                                                                                                                                                   -:Jontractors of America.




                                                                                                                                                                                                                                                  1:>11?97 Ali'IU
   '"'©:-C-=o-p-y...,.rig...,.h..,..t...,.19"""1,-,1-,..,..19""'1""5-,1""'9'"'"1"'"8,-1'"""9..,..25,_,-,1~9""37=-,~1..,..95,_1.,-,-19,..5=8-,-19.,..,6_,1-,1-9-63-,-1-9-66-,...,1-9~67-,....,1-97,....0-,-19_,7,_6-,-19_8..,..7,-1-9_9.,..7-by-   AlA DOCUMENT A201 - 1997
     TI1e American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                 GENERAL CONDITIONS OF THE
     quotation of its provisions wilhout written permission of the AlA violates the copyright laws of !he United States                                                                                                                           CONTRACT FOR CONSTRUCTION
     and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                            .       ..         .
     laws and will subject !he violator to legal prosecution. This document was electronically produced vlith                                                                                                                                     Th~ Amencan Institute of Archtlects
     permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                              17.:>5 New York Avenue, N.W.
     expiration as noted below.                                                                                                                                                                                                                   Washtngton, D.C. 20006·5292
     This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
     Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                        41
Redacted




                                                                                                                                           THIS DOCUMENT HAS IMPORTANT
                                                                                                                                           LEGAL CONSEQUENCES.
                                                                                                                                           CONSULTATION WITH AN
                                                                                                                                           ATTORNEY IS ENCOURAGED WITH
                                                                                                                                           RESPECT TO ITS COMPLETION OR
                                                                                                                                           MODIFICATION. AUTHENTICATION
                                                                                                                                           OF THIS ELECTRON/CALLY
                                                                                                                                           DRAFTED AfA DOCUMENT MAY BE
                                                                                                                                           MADE BY USING AlA DOCUMENT
                                                                                                                                           0401.

                                                                                                                                           This document has been approved and
                                                                                                                                           endorsed by The Associated General
                                                                                                                                           Contractors of America.




                                                                                                                                                            ~1997 AIM!>
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                                                                                                                                                      97~by AIADOCUMENTA201·1~7
     The Amencan Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                            GENERAL CONDITIONS OF THE
     quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                    CONTRACT FOR CONSTRUCTION
     and will subj:ct th~ violate to. legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                   .       .           .
     laws and 11r.ll subJeCt the VJolator to JegaJ prosf:\."'Ution. This document was electronically produced with                         The Amencan lnslitute of Archt!ects
     permission of the AlA and can be reproduced in accordance with your license without violation until the date of                       1735 New York Avenue, N.W.
     expiration as noted below.                                                                                                            Washington, D.C. 20006-5292
     This document is not an orlglnal AlA® Contract Document, but a reproduction produced by AlA®
     Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                      42
Redacted




                                                                                                                                                                                                                                                                               THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                               LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                                               CONSULTATION WITH AN
                                                                                                                                                                                                                                                                               ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                               RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                                               MODIFICATION. AUTHENTICATION
                                                                                                                                                                                                                                                                               OF THIS ELECTRON/CALLY
                                                                                                                                                                                                                                                                               DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                                               MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                               D401.

                                                                                                                                                                                                                                                                               This document has been approved end
                                                                                                                                                                                                                                                                               endorsed by The Associated General
                                                                                                                                                                                                                                                                               Contractors of America.




                                                                                                                                                                                                                                                                               @1997 AJMJ
-;:;;@;:-;C;:;;o::::p:::yr::Cig:r;h;-t1:;-;9:;<1<1,~1;r9;-.1;:;5,-:1;-;;9::;-18",'1"92;:;;5;-,-:;i;:;;93:;=7;-,"19:;;;5::;1-,1;-;9;:;:5:;:;8,~1-;;9;::6-:;-1,-:1;-;:9:-z63;;;-,-::1-;;9;:;;66::-,-:;1""96""7',719:;=7;:::0-,-:-.19"'7"'"6,-:1""9"'87:::-,-::1::::9~97::-:-by   AlA DOCUMENT A201·1997_
 The American Institute oi Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                   GENERAL CONDITIONS OF I HE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                            CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright
 laws and will subject the violator to legal proseculion. This document was electronically produced with                                                                                                                                                                       The American Institute of Architects
 permission of the AlA and can be reproduced in accordance vlith your license without violation unlil the date of                                                                                                                                                              1735 New York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                    Washington, D.C. 20006-5292
 Thls document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                    43
Redacted




                                                                                                                                                                                                                                                                  THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                  LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                                  CONSULTATION WITH AN
                                                                                                                                                                                                                                                                  ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                  RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                                  MODIFICATION. AUTHENT/CA TION
                                                                                                                                                                                                                                                                  OF THIS ELECTRON/CALLY
                                                                                                                                                                                                                                                                  DRAFTED AlA DOCUMENT A1A Y BE
                                                                                                                                                                                                                                                                  MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                  D401.

                                                                                                                                                                                                                                                                  This document has been approved and
                                                                                                                                                                                                                                                                  endorsed by The Associated General
                                                                                                                                                                                                                                                                  Contractors of Amerioa.




                                                                                                                                                                                                                                                                  Q1997 AIM!
 -;;;©"'C"-o::p::yr::::ig:;:h:-t:;;19:;-::1-::-1-,1::;-;9:-:;1-;:5,-:1;-;::9~18~.-::1,-;::9~25:::-,-::1~93;::7;-,719;::5=-;1-,""'19::-::5:-:::8-,1'"'9"'67
                                                                                                                                                         1,-:1""9""63::-.-.1~96"'6:-,...,.19""6::-:7:-,.,..19::-::7""0-,1""9"'7""6,-1""9"=a7=,-1'""9""97=-:--by   AlA DOCUMENT A201 ~ 1997
  The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                     GENERAL CONDITIONS OF THE
  quotation of its provisions without wri!len permission ol the AlA violates the copyright laws of the United Slates                                                                                                                                              CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecu!ion. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                             •        .           .
  laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                         The Amencan lnst1tute of Arch1tects
  permission of the. AlA and can be reproduced in accordance with your license withoulllio!ation until the date of                                                                                                                                                1735 NewYorkAvenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                      Washington, D.C. 20006-5292
  This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                        44
Redacted




                                                                                                      THIS DOCUMENT HAS iMPORTANT
                                                                                                      LEGAL CONSEQUENCES.
                                                                                                      CONSUL TAT/ON WITH AN
                                                                                                      ATTORNEY IS ENCOURAGED WITH
                                                                                                      RESPECT TO ITS COMPLETION OR
  ARTICLE 12 UNCOVERING AND CORRECTION OF WORK                                                        MODIFICATION. AUTHENTICATION
     12.1    UNCOVERING OF WORK                                                                       OF THIS ELECTRON/CALLY
     12.1.1 If a portion of the Work is covered contrary to the Architect's request or to DRAFTED AlA DOCUMENT MAY BE
     requirements specifically expressed in the Contract Documents, it must, if required in \\-Titing MADE BY USING AlA DOCUMENT
            by the Architect, be uncovered for the Architect's examination and be replaced at the D401.
            Contractor's expense without change in the Contract Time.                             This document has been approved and
                                                                                                                                                                                                                                            endorsed by The Associated General
            12.1.2 If a portion of the Work has been covered which the Architect has not specifically Contractors of America.
            requested to examine prior to its being covered, the Architect may request to see such Work
            and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract
            Docun1ents, costs of uncovering and replacement shall, by appropriate Change Order, be at
            the Owner's expense. If such Work is not in accordance with the Contract Documents,
            correction shall be at the Contractor's expense unless the condition was caused by the Owner
            or a separate contractor in which event the Owner shall be responsible for payment of such
            costs.

            12.2     CORRECTION OF WORK
            12.2.1 BEFORE OR AFTER SUBSTANTIA!.. COMPLETION
            12.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to
            conform to the requirements of the Contract Documents, whether discovered before or after
            Substantial Completion and whether or not fabricated, installed or completed. Costs of
            correcting such rejected Work, including additional testing and inspections and compensation
            for the Architect's services and expenses made necessary thereby, shall be at the Contractor's
            expense.

            12.2.2     AFTER SUBSTANTIAL COMPLETION
            12.2.2.1    In addition to the Contractor's obligations under Paragraph 3.5, if, within one year
            after the date of Substantial Completion of the Work or designated portion thereof or after the
            date for commencement of warranties established under Subparagraph 9.9.1, or by terms of an
            applicable special warranty required by the Contract Documents, any of the Work is found to
            be not in accordance with the requirements of the Contract Documents, the Contractor shall                                                                                                                                      :1.
            correct it promptly after receipt of written notice from the Owner to do so unless the Owner                                                                                                                                          _JI!I!IIii!!I!IE
            has previously given the Contractor a written acceptance of such condition. The Owner shall
                                                                                                                                                                                                                                                                                    1:11997 AIM!>
 ~©""'C""o-p-yr..,.ig-:h-,-t-:-19""'1:-:-i-,"'"'19'""1.,.5,-i:-:9:-:-18"'",""'1""'9""25=-,-:1-:-93""'7=-,...,.1"'"'95::-:1-,..,..19:-::5'""8-,1.,.,9"'5..,.1,-1'""9""63=-,""'1""'9.,..56,_,..,.1""'"95:-::7:-,--:-19::-:7::-:0-,..,..19::-::7=-=6-,io-:9:-::8=7,-1'""9-:-:97=-=--by AlA DOCUMENT A201 • 1997
 The American Institute ol Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                GENERAL C<?NDlTIONS OF THE
 quotation of its prO\~sions without written permission of the AlA violates the copyright laws ol the United States                                                                                                                         CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                          ,       .          .
 laws and vJi!l subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                   T~e ~encan !nslltute of Archtteots
 permission of the AlA and can be reproduced ln accordance with your license without violation until the date ol                                                                                                                            '1 t3o ~ew York Avenue, N.W.
 expiration as noted below.                                                   ·                                                                                                                                                             Washmgton, D.C. 20006·5292
 This document is not an original AlA® Contract Oocument, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                    45
..

             give such notice promptly after discovery of the condition. During the one-year period for
             correction of Work, if the Owner fails to notify the Contractor and give the Contractor an
             opportunity to make the correction, the Owner waives the rights to require correction by the
             Contractor and to make a claim for breach of warranty. If the Contractor fails to correct
             nonconforming Work within a reasonable time during that period after receipt of notice from
             the Owner or Architect, the Owner may com!ct it in accordance with Paragraph 2.4.

             12.2.2.2 The one-year period for correction of Work shall be extended with respect to
             portions of Work first petfonned after Substantial Completion by the period of time between
             Substantial Completion and the actual performance of the Work.

             12.2.2.3 The one-year period for correction of Work shall not be extended by corrective
             \Vork perfonned by the Contractor pursuant to this Paragraph 12.2.                      THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                                              LEGAL CONSEQUENCES.
              12.2.3 The Contractor shall remove from the site portions of the Work which are not in CONSULTATION WITH AN
              accordance with the requirements of the Contract Documents and are neither corrected by the ATTORNEY IS ENCOURAGED WiTH
                                                                                                          RESPECT TO ITS COMPLETION OR
              Contractor nor accepted by the Owner.                                                       MOD/FICA TION. AUTHENTICATION
                                                                                                                                                                                                                                                                                              OF THIS ELECTRONICALLY
              12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, DRAFTED AlA DOCUMENT MAY BE
              whether completed or partially completed, of the Owner or separate contractors caused by the MADE BY USING AlA DOCUMENT
              Contractor's correction or removal of Work which is not in accordance with the requirements D401.
              of the Contract Documents.                                                                    This document has been approved and
                                                                                                            endorsed by Tne Associated General
              12.2.5 Nothing contained in this Paragraph 12.2 shall be construed to establish a period of Contractors of America.
              limitation with respect to other obligations which the Contractor might have under the
              Contract Documents. Establishment of the one-year period for correction of Work as
              described in Subparagraph 12.2.2 relates only to the specific obligation of the Contractor to
              correct the Work, and has no relationship to the time within which the obligation to comply
              with the Contract Documents may be sought to be enforced, nor to the time within which
              proceedings may be commenced to establish the Contractor's liability with respect to the
              Contractor's obligations other than specifically to correct the Work.

              12.3    ACCEPTANCE OF NONCONFORMING WORK
              12.3.1 lf the Owner prefers to accept Work which is not in accordance with the
              requirements of the Contract Documents, the Owner may do so instead of requiring its
              removal and correction, in which case the Contract Sum will be reduced as appropriate and
              equitable. Such adjustment shall be effected whether or not final payment has been made.

 ARTICLE 13 MISCELLANEOUS PROVISIONS
    13.1   GOVERNING LAW
    13.1.1 The Contract shall be governed by the law of the place where the Project is located.

              13.2 SUCCESSORS AND ASSIGNS
              13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors,
              assigns and legal representatives to the other party hereto and to partners, successors, assigns
              and legal representatives of such other party in respect to covenants, agreements and
              obligations contained in the Contract Documents. Except as provided in Subparagraph 13.2.2,
              neither party to the Contract shall assign the Contract as a whole without written consent of
                                                                                                                                                                                                                                                                                              .•.   ·.....,.,~~-·



                                                                                                                                                                                                                                                                                              ;!;>1997 NA'!l
-;;©;;-C;::;o::-:p::-:y:::-rig::;:h7t 719;:::1;:;1-,:;-;19~1"5,-:1:-::9:::-18;;-,-::1c:::92:;:;5::-,-:;i-;::93~7::-,"'19;:-;5"'1-,:;-;19;:-;:5"'8-,1::-;9:;:::671 ,-:1:-::9c::63;;-,-::1:-::9:;:;66::-,"""1"'96;;-::7::-,719"'7:::::0:-,-::-:19~7""6,-:1:;-;9"'8"'"7,-:1:-::9-:::c97:;-;-by   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction ol the material herein or substantial                                                                                                                                                                                  GENEP.AL CONDITIONS OF THE
 quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                                                                                                                                                                           CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution, WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                          .        .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                      The Amencan lnst1tute of Architects
 permission of the AlA and can be reproduced in accordance with your license v.tilhout violation until the date of                                                                                                                                                                            1735 ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                               •                                                                                  Washington, D.C. 20006·5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                   46
,,




             the other. If either party attempts to make such an assignment without such consent, that party
             shall nevertheless remain legally responsible for all obligations under the Contract.

             13.2.2 The Owner may, without consent of the Contractor, assign the Contract to an
             institutional lender providing construction financing for the Project. In such event, the lender
             shall assume the Owner's rights and obligations under the Contract Documents. The
             Contractor shall execute all consent~ reasonably required to facilitate such assignment.

              13.3                     WRITTEN NOTICE
             13.3.1 Written notice shall be deemed to have been duly served if delivered in person to the
             individual or a member of the firm or entity or to an officer of the corporation for which it
             was intended, or if delivered at or sent by registered or certified mail to the last business
             address known to the party giving notice.                                                     THIS DOCUMENT HAS IMPORTANT
                                                                                                              LEGAL CONSEQUENCES.
             13.4                      RIGHTS AND REMEDIES                                                    CONSULTATION WITH AN
             13.4.1    Duties and obligations imposed by the Contract Documents and rights and remedies A ITORNEY IS ENCOURAGED WITH
                                                                                                              RESPECT TO ITS COMPLETION OR
             available thereunder shall be in addition to and not a limitation of duties, obligations, rights MODIFICATION. AUTHENTICATION
             and remedies otherwise imposed or avuilable by Jaw.                                              OF THIS ELECTRONICALLY
                                                                                                              DRAFTED AlA DOCUMENT MAY BE
             13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a MADE BY USING AlA DOCUMENT
                                                                                                              0401.
             waiver of a right or duty afforded them under the Contract, nor shall such action or failure to
             act constitute approval of or acquiescence in a breach thereunder, except as may be This document has been approved and
             specifically agreed in writing.                                                                 endorsed by The Associated General
                                                                                                                                                                                                                                                                                      Contractors of America.
             13.5                     TESTS AND INSPECTIONS
             13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract
             Documents or by laws, ordinances, rules, regulations or orders of public authorities having
             jurisdiction shall be made at an appropriate time. Unless othenvise provided, the Contractor
             shall make arrangements for such tests, inspections and approvals with an independent testing
             laboratory or entity acceptable to the Owner, or with the appropriate public authority, and
             shall bear all related costs of tests, inspections and approvals. The Contractor shall give the
             Architect timely notice of when and where tests and inspections are to be made so that the
             Architect may be present for such procedures. The Owner shall bear costs of tests, inspections
             or approvals which do not become requirements until after bids are received or negotiations
             concluded.

             13.5.2 If the Architect, Owner or public authorities having jurisdiction determine that
             portions of the Work require additional testing, inspection or approval not included under
             Subparagraph 13.5.1, the Architect will, upon written authorization from the Owner, instruct
             the Contractor to make arrangements for such additional testing, inspection or approval by an
             entity acceptable to the Ov.ner, and the Contractor shall give timely notice to the Architect of
             when and where tests and inspections are to be made so that the Architect may be present for
             such procedures. Such costs, except as provided in Subparagraph 13.5.3, shall be at the
             Owner's expense.

             13.5.3 If such procedures for testing, inspection or approval under Subparagraphs 13.5.1
             and 13.5.2 reveal failure of the portions of the Work to comply with requirements established
             by the Contract Documents, all costs made necessary by such failure including those of

                                                                                                                                                                                                                                                                                      ~1997   Al/lt!i
-.::©'"'C:::-o-p-yn-=-·g-:-h-:-t1""'9:-:1-.-1,-1:-::9:-.-1-:::-5,-.1"'9"'"'18~,-.17
                                                                                  92::-:5=-,-.1-:c93::-::7:-,-.-19::-:5::-:1-,.,.,19::-::5:::-8-,1"'96:-:::-.-1,-1:-::9-:::63=-,-:1-::-966"'=-,
                                                                                                                                                                                             - -:1::-96::-::7:-,-.-19"'7:::::0-,1-:-:9::-::7:::-6,-1:-::9""'S=7,-.1c::9""'97,..,-by   AlA DOCUMENT A201 - 1997
 The American lnslitute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                          GENERAL CONDITIONS OF T~E
 quotation of ils provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                   CONTRACT FOR CONSTRUCt ION
 and will subjeclthe violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                   .       •            ,
 la\\'S and will subject the violator to legal prosecution. This document was electronically produced wlth                                                                                                                                                                            The Amencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                      1735 ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                                          Washmg!on, D.C. 20006·5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents soft'.vare for admlnlstralive purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                           47
..

          repeated procedures and compensation for the Architect's services and expenses shall be at the
          Contractor's expense.

          13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise
          required by the Contract Documents, be secured by the Contractor and promptly delivered to
          the Architect.

          13.5.5 If the Architect is to observe tests, inspections or approvals required by the Contract
          Documents, the Architect will do so promptly and, where practicable, at the normal place of
          testing.

          13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made
          promptly to avoid unreasonable delay in the Work.                                      THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                         LEGAL CONSEQUENCES.
          13.6      INTEREST                                                                                                                                                                                             CONSULTATION WITH AN
          13.6.1 Payments due and unpaid under the Contract Documents shall bear interest from the                                                                                                                       A ITORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                         RESPECT TO ITS COMPLETiON OR
          date payment is due at such rate as the parties may agree upon in writing or, in the absence                                                                                                                   MODIFICATION. AUTHENTICATION
          thereof, at the legal rate prevailing from time to time at the place where the Project is located.                                                                                                             OF THIS ELECTRON/CALLY
                                                                                                                                                                                                                         DRAFTED AlA DOCUMENT MAY BE
          13.7                COMMENCEMENT OF STATUTORY LIMITATION PERIOD                                                                                                                                                MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                         D401.
          13.7.1              As between the Owner and Contractor:
                              .1       Before Substantial Completion. As to acts or failures to act occurring prior This document has bean approved and
                                       to the relevant date of Substantial Completion, any applicable statute of endorsed by The Associated General
                                       limitations shall commence to nm and any alleged cause of action shall be Contractors of America.
                                       deemed to have accrued in any and all events not later than such date of
                                       Substantial Completion;
                              .2 Between Substantial Completion and Final Certificate for Payment.
                                 As to acts or failures to act occurring subsequent to the relevant date· of
                                 Substantial Completion and prior to issuance of the final Certificate for
                                 Payment, any applicable statute of limitations shall commence to run and any
                                 alleged cause of action shall be deemed to have accrued in any and all events not
                                 later than the date of issuunce of the final Certificate for Payment; and
                              .3 After Final Certificate for Payment As to acts or failures to act occurring
                                 after the relevant date of issuance of the final Certificate for Paymen~ any
                                 applicable statute of limitations shall commence to run and any alleged cause of
                                 action shall be deemed to have accrued in any and all events not later than the
                                 date of any act or failure to act by the Contractor pursuant to any Warranty
                                 provided under Paragraph 3.5, the date of any correction of the Work or failure
                                 to correct the Work by the Contractor under Paragraph 12.2, or the date of actual
                                 commission of any other act or failure to perform any duty or obligation by the
                                 Contractor or Owner, whichever occurs last

 ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
    14.1  TERMINATION BY THE CONTRACTOR
          14.i. i The Contractor may terminate the Contract if the Work is stopped for a period of 30
          consecutive days through no act or fault of the Contractor or a Subcontractor, Sub· ,.
          subcontractor or their agents or employees or any other persons or entities performing
          ponions of the Work under direct or indirect contract with the Contractor, for any of the ,JIIIIII!I!I!.Ii .
          following reasons:
                                                                                                                                                                                                                         01997 AIM!>
"'©'""C:::-o-p_y..,.rig..,.h"'"t-.-19""1,_,1-,1""'9'"'1'='5,-i"'9..,.18:::-,'""1c::9'="25""',"'""i""93""7"",'""19"'5:-:1-,-:-19::-::5~8-,1""'9"'6.,.1,-1_,9..,.63.,..,...,1""9.,.66=-,-:1:::-96:-:7:-,.,.19""7::-::0-,""19""7""'6-,1,..,9"'8.,.7,-1'""9""97=-=--'by AI A DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States CONTRACT FOR CONSTRUCTION
 and will subject lhe violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright '                                                                                                                                                              .       .          .
 laws and will subject the violator to legal prosecution. This document was electranicalfy produced with The Amencan lnsl!tute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of 1735 ~ewYor'i\ Avenue, N.W.
 expiration as noted below.                                                                                                                                                        ·                                                                                Washmgton, D.C. 20006·5292
 This document ls not an origlnal AlA® Contract Document, but a reproduction produced by AlAf{P
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                             48
                                     .1 issuance of an order of a court or other public authority having jurisdiction
                                        which requires all Work to be stopped;
                                     .2 an act of government, such as a declaration of national emergency which
                                        requires all Work to be stopped;
                                     .3 because the Architect has not issued a Certificate for Payment and has not
                                        notified the Contractor of the reason for withholding certification as provided in
                                        Subparagraph 9.4.], or because the Owner has not made payment on a
                                        Certificate for Payment within the time stated in the Contract Documents; or
                                     .4 the Owner has failed to furnish to the Contractor promptly, upon the
                                        Contractor's request, reasonable evidence as required by Subparagraph 2.2.1.

             14.1.2 The Contractor may tenninate the Contract if, through no act or fault of the
             Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other THIS DOCUMENT HAS IMPORTANT
             persons or entities performing portions of the Work under direct or indirect contract with the                                                                                                                     LEGAL CONSEQUENCES.
             Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as                                                                                                                       CONSUL TAT/ON WiTH AN
             described in .Paragraph 14.3 constitute in the aggregate more than 100 percent of the total                                                                                                                        ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                RESPECT TO ITS COMPLETION OR
             number of days scheduled for completion, or 120 days in any 365-day period, whichever is                                                                                                                           MOD/FICA TfON. AUTHENTICATION
             less.                                                                                                                                                                                                              OF THIS ELECTRON/CALLY
                                                                                                                                                                                                                                DRAFTED AlA DOCUMENT MAY BE
             14.1.3 If one of the reasons described in Subparagraph 14J.l                                                                                                                                  or I4J,2 exists, the MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                D401.
             Contractor may, upon seven days' written notice to the Owner and Architect, temrinate the
             Contract and recover from the Owner payment for Work executed and for proven loss with This document has bean approved and
             respect to materials, equipment, tools, and construction equipment and machinery, including endorsed by The Associated General
             reasonable overhead, profit and damages.                                                    Conlraclors of America,

             14. i .4 lf the Work is stopped for a period of 60 consecutive days through no act or fault of
             the Contractor or a Subcontractor or their agents or employees or any other persons
             performing portions of the Work under contract with the Contractor because the Owner has
             persistently failed to fulfill the Owner's obligations under the Contract Documents with
             respect to matters important to the progress of the Work, the Contractor may, upon seven
             additional days' written notice to the 01i1'!1er and tl1e Architect, tenninate the Contract and
             recover from the Owner as provided in Subparagraph 14.1 .3.

             14.2   TERMINATION BY THE OWNER FOR CAUSE
             14.2.1 The Owner may terminate the Contract if the Contractor:
                    .1 persistently or repeatedly refuses or fails to supply enough properly skilled
                                        workers or proper materials;
                                     .2 fails to make payment to Subcontractors for materials or labor in accordance
                                        with the respective agreements between the Contractor and the Subcontractors;
                                     .3 persistently disregards laws, ordinances, or rules, regulations or orders of a
                                        public authority having jurisdiction; or
                                     .4 otherwise is guilty of substantial breach of a provision of the Contract
                                        Documents.

            14.2.2 \\Then any of the above reasons exist, the Owner, upon certification by the Architect
            that sufficient cause exists to justify such action, may without prejudice to any other rights or
            remedies of the Owner and after giving the Contractor and the Contmctor'!f'edacted if any,
            seven days' written notice, terminate employment of the Contractor and may, subject to any
            prior rights ofRedacted
                                                                                                                                                                                                                                                                          ~1997   NM!>
""©""'C:::-o-p-yn..,.·g""h..,..t""19""'1:-:-1-,1c-:9""'1""'5,-1""9,..,.1"'"8,-1'""9-::-25=-,-ci""93""7"'",""'1~95""1-,-:-19""'5'"'"8-,""19:-.:6..,.i,-1""9-:-S3-=-,""'i""9.,..66""',""'1...,.96.,..,7,..,""'i""97::-:0:-,..,.19"'7""6-,1""'9:-::8=7,-1'"'9"0'97:::-:-by   AlA DOCUMENT A201 ·1997
 The American Institute of Architects, Fifteenth Edition. Reoroduction of the material herein or substantial                                                                                                                                                              GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of !he AiA violates the copyright laws of ihe United States                                                                                                                                                       CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying viola!es U.S, copyright                                                                                                                                                                       .       .          .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                  The Amencan lnslttule of Architects
 permission ol the AlA and can be reproduced Jn accordance with your license without violation unlillhe date of                                                                                                                                                           173~ !'Jew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                               Wasnmgton, D.C. 20006·5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                               49
                              .1 take possession of the site and of all materials, equipment, tools, and
                                 construction equipment and machinery thereon owned by the Contractor;
                              .2 accept assignment of subcontracts pursuant to Paragraph 5.4; and
                              .3 finish the Work by whatever reasonable merhod the Owner may deem
                                 expedient. Upon request of the Contractor, the Owner shall furnish to rhe
                                 Contractor a detalled accounting of the costs incurred by the Owner in finishing
                                 the Work.

          14.2.3 When the Owner terminates the Contract for one of the reasons stated in
          Subparagraph 14.2.1, the Contractor shall not be entitled to receive further payment until the
          Work is finished.

          14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work,                                                                                                                           THIS DOCUMENT HAS IMPORTANT
          including compensation for the Architect's services and expenses made necessary thereby, and                                                                                                                    LEGAL CONSEQUENCES.
          other damages incurred by the Owner and not expressly waived, such excess sha11 be paid to                                                                                                                      CONSULTATION WITH AN
          the Contractor. If such costs and damaoes exceed the unpaid balance the Contractor shall pay                                                                                                                    ATTORNEY IS ENCOURAGED WITH
                .                         .      "'          •                 '                                                                                                                                          RESPECT TO ITS COMPLETION OR
          the dtfference to the Owner. The amount to be pa1d to the Contractor or Owner, as the case                                                                                                                      MODIFICATION. AUTHENTICATION
          may be, shall be certified by the Architect, upon application, and this obligation for payment                                                                                                                  OF THIS ELECTRON/CALL y
          shall survive termination of the Contract.                                                                                                                                                                      DRAFTED AfA DOCUMENT MAY BE
                                                                                                                                                                                                                          MADE BY USING AlA DOCUMENT
          14.3      SUSPENSION BY THE OWNER FOR CONVENIENCE                                            D40t
          14.3.1    The Owner may, without cause, order the Contractor in writing to suspend, delay or This document has been approved and
          interrupt the Work in whole or in part for such period of til!le as the Owner may determine. endorsed by The Associated General
                                                                                                                                                                                                                           Contractors of America
          14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and
          time caused by suspension, delay or interruption as described in Subparagraph 14.3.L
          Adjustment of the Contract Sum shall include profit. No adjustment shall be made to the
          extent:
                  .1 that performance is, was or would have been so suspended, delayed or
                      interrupted by another cause for which the Contractor is responsible; or
                  .2 that an equitable adjustment is made or denied under another provision of the
                      Contract.

          14.4                TERMINATION BY THE OWNER FOR CONVENIENCE
           14.4.1 The Owner may, at any time, terminate the Contract for tlte Owner's convenience
          and without cause.

           14.4.2 Upon receipt of written notice from the Owner of such termination for the 0\vner's
           convenience, the Contractor shall:
                   .1 cease operations as directed by the Owner in the notice;
                   .2 take actions necessary, or that the Owner may direct, !nr the protection and
                        preservation of the \Vork; and
                   .3 except for Work directed to be performed prior to the effective date of
                        termination stated in the notice, terminate all existing subcontract~ and purchase
                        orders and enter into no further subcontracts and purchase orders.

          14.4.3 Jn case of such termination for the Owner's convenience, the Contractor shall be
          entitled to receive payment for Work executed, and costs incurred by reason of such
          termination, along with reasonable overhead and profit on the Work not executed.
                                                                                                                                                                                                                          !;)j 997 1'JNl)
""©~Co-=-p-y'""rig~h..,.t"""19-::-1:-:1-,.,.19""'1c::5-,""'19'""1~8,-1:-.9""25=-,""'1""93""7"",...,1-=-95""'1:-,..,.19""5:-:8-,""'19:-:6'""1-,1.,..,9'""6.,..3,-1'""96'"'"6"",....,1..,.96""'7""",...,1"'97""o'"",..,.19"'7""6-,""'19:-:8=7-,1""'9""'9""7-:-b-y AlA OOCUME~ A201 ·1997
The American lnstitule of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                               GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the Un1!ed States                                                                                                        CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                        •       .           . ·
laws and will subject the violator to legal prosecution. This document vros electronically produced with                                                                                                                  T~e Amencan Institute of Architects
permission of the AlA and can be reproduced in accordance with your license without Violation un!il the date of                                                                                                           i !35 ~ew York Avenue, N.W.
expiration as noted below,                                                                                                                                                                                                Washmgton, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software tor administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                   50
                                                                                                                                                                                                                    THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                    LEGAL CONSEQUENCES.
                                                                                                                                                                                                                    CONSUL TAT/ON WITH AN
                                                                                                                                                                                                                    ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                    RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                    MODIFICA T!ON. AUTHENTICATION
                                                                                                                                                                                                                    OF THIS ELECTRONICALLY
                                                                                                                                                                                                                    DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                    MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                    0401.

                                                                                                                                                                                                                    This document has been approved and
                                                                                                                                                                                                                    endorsed by The Associated General
                                                                                                                                                                                                                    Contractors of America.




                                                                                                                                                                                                                    @1997 NNJj
-,;©~c=op::y::ri'=gh;::;t~1;;:9:-;1-;-1.~1;;:9:-;15:=-,~1;;:9:-;18;::,~1;;:9:;;2:=-5,-1:-.:9:;;3-:;7,-1""9"'571 ,-1:-.:.9:-::5'=8,-1'"'9""671,-1""9,:,6""3,-1""'9=-=6-=6,-1'""9'""6=7,-1.,.,9""7'""0,-1""'9'""7"'"6,-1.,.,9~8=7-,1....,9""'9=7-:-b-y AlA ~OCUMENT ~01 • i 997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material hereln or substantial                                                                                                         GENt:::RAL CONDlilONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United Stales                                                                                                  CONTRACT FOR CONSTRUCTION
and will subj:ct lh~ violate to. !ega! prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                 .       .           .
laws •a~d Will subject the Violator to legal prosecution. This document was electronical!y produced with                                                                                                            The Amencan Jnstltu!e of Arch1tects
permiSSIOn of the AlA and can be reproduced 1n accordance with your license without violation until !he date of                                                                                                     1735 New York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                          Washington, D.C. 20006·5292
This document is not an original AlA® Contract Document, but a reproduction produced by AJA®
Contract Documents software for administretive purposes on! y and is not for other use or resale.
                                                                                                                                                                                                            51
APPENDIX G
                                                                                                                                                       (S./




                             AlA Document B14f·--1997 Part 1
               . >,\}Sif;hiJard Foim of Agreement Between Owner and Architect
                ':,_::;:-Mf/lstandard Form ofArchitect's Services



                                                                                                                    ADDITIOHS AND DElE1'10HS:
                                                                                                                    The aulhor ollhls document has
                                                                                                                    added lnfonnalion needed for its
                                                                                                                    complefian. The author may also
                                                                                                                    haw nrvlsed the lex! olDie
                                                                                                                    original AlA slanclard loon. An
                                                                                                                    Additions and lJelelionl> Repott
                                                                                                                    lbatiiO!eS added fnfoonalioo as
                                                                                                                    weiss revisions 1o the slandard
                                                                                                                    ronn text Is available from !he
                                                                                                                    author and shoulcl be reviewed.
                    • BEJwi:EH fue ~·~-~t-idealified as the Owner:                                                  A vertlcaJ 1ne in the left margin ol

                ,   ·{,N~~ess~,~~n)
                ,;o,.Wbite'Lodgm·'·SerYice$CiHwration,Jnc.
                                                                             *    l"\c..''"P 6/z.tf.~s ~~and~~?~
                                                                                          ,'f              wuc"''""""'"~
                                                                                                                    • ....,..,......,,
                 ; -.-IOOO&st~PliiCc.·sUi~500North                            f   p      .I     -=-/'>- F~"""       ~addedtoordeleledfromlhe
                      Metril.vme.:iN 464-io::s666: ·                              ,_ e.d !... "'                    oliglnal AlA text.            .
                    · ·.:-·. ·· :· · : ·- ::<.... ·                               O'F=-lCt     CoAT. 2 /dos TtisooclJtner« has irrtp:;ml't.
                                                                                                            legal consequences.
                                                                             • ]?:6-'{ I!:./ o A~ fls. rz_  Consullalon wilb an atlomey
                                                                                                            Is encouraged witlt respecllo
'oi.··

                                                                                  ~AIL.~            bi-).T6 .l:.    ils complefon or modification.


                                                                                  Z/'1.. "?-/ o <::
                                                . :·.... -~   ..
                                                                                  :?.loti<::>'-"
                                                                                  :l/z..r/os

                                                          "ted contract administration for the coostrUCtion of a
                                             ·n Austin. Texas.
... ·.: . ..    ·:: 'Thi: ownJiJ;~~t~ agree as follows:




                                                                                                                                         SF.P 2 2 Z007


                                                                                                        PLAINTIFF'S                          ESG001454
                                                                                                          EXHIBIT
                           ARTICLE 1.1 INITIAL INFORMATION
                  .... _.$ M·1. This Agreemoot is based on tbe following information and assumptions.
                  . · :.'<iifi#)Mfdisposidonfor the following ire= by inserting the ~ infonnation or a stJJtement such as "not
                  •"' /dpjl#~ • "unknown at time qft:reelltion" or "to Jx determined later by mutual agreement.")
                  :·:· ...··:::~).: ~~.~/r;
                      .. 7;.§J,1~~0JECT PARAYETERS
                       . ·§'~:.1~1 The objective or use is:
                ·. · f·:(ItrdliliJy or describe, if appropriate, proposed liSe or goals.]
                     l '.A:~ hy ~;::..a limited-service, prototypical hoteL
                                                                           .~ i   'l:. . '
                       ..§ 1,1.2.2 'l1ic physical~ arc:
                          (ltknli!J or describe,. ifappropriate, size. location. dimensions, or other pertinent infonnalion. such as geqtechnical
                         _refOIU alioJJ!,    ~J. ,\           iii£                                       .

                                                                                       ~~;   ..
                       . §1.,:;af'bC~·~~is:                                                                   .
                       · (ldiintif/tlocuriiilftittir/ft.or&Uiu the manner in which the program wi/1 be developed)

                          .l'he ~ ~cans,(o/·~ fi:'!~·stocybuildi.Jlg. The project will containl48 guestrooms and tbe olher
·.:.··.                   ·-prototypic:ar~ IID!cl.(mlctions- alobbyRounge, diniog.ldtchen,                                                    a reception desk with sundries display area
                          aii4'0fficc,s. ~ ~ s~g pool and whirlpool, exercise room, baclc~f-bouse storage, Iaundxy,
                         -_inei:banii:iii and eteCt:riclifspilceS and a guest laundry floor. Purtbec ddiuition of tbe Project Program is contained in
                            Eli.ess Swenson Graballl~' Proposallettenlated Noveuilet 12, 2004, revised January 2l, 2004 attached as
                      ' ·"F.xbibit A• with furlbtii: Clarifitation conlainc:d in Elncss Swenson Graham Alchitects' 3Chematic design documents
                        .....datedJ~28;-20(i5;
                                 . . . : .
                                                ~-~ attacbed by refenmceas "Exhibit B."
                                               . . t'•                                            ~..:·.



                            §1;1~41be~-~:~:
                        : 'iltlOiiJ.ty peNment Jiii;ilinfonnatiM. including, ifappropriate, la1ld sun>eys and legal tkscriptions and restrictions
                         ·qJ~.siii)                         ...                              - .-,


          :.:              ~~~t:=-MSIO~;~LOTS                                                                         4AND 5, BLOCK C, METRO CENTRESECllON 5, a
                        ·· subdlvisiOil:m.AuSfui: ~is Q;Jfufj; Texas, according to the map or plat thereof recoo:lcd as Document 199900265
                      1·.' _..:
                         - in the Plats Records. \)('TmViS County, Texu.
                                     .: ,;.: ':. ·. .· -~-' -~·:_:~""-".~.:·::::·
                               . · .. ·:·                         -.-.:·~;;; .·::·

                        _ §1.1-is.'The·~~areasroUows.
                            ~,~~~~~;~·s oVerall budget for tbe Project, including tbe Architec:t's compensation, is: $48,000                                                                d   fi;
                             .2                   A:inilontof~,~fbodget ~ortheC~ of the Wodc, excluding the Architec:t's compensation, is:                                                      \\...~
                                                      unknown-aurme:Ofexecutton
                                                                o•";:.M,'
                                                                  0
                                                                                of this Agreement
                                                                                   0
                                                                                                                                                                                            -i\ "\
                          . § 1.1.2..6The $De-~ an::
 ·.····.                 : (l~tify,                 if '!P.';:..'!.~ milestone dates, thuations orfast track scheduling.}

                       I~    following•                           ~~~Dates
                                                   are tbe same as those listed in Elness Swenson Graham Alcbitec:ts' Proposal letter
                     · .•.d~·l'!"?~;l2, 2004, revised January 21, 2004 attached as "Exhibit A,• and herein reproduced:
                      .. :·. •'i; . '·. ~1.\_,:;f~:-::_;:.:.::·.:·.!:;:·



                  ··.-·.}=~~~:_                                                                            30% Design Docnments Otecl:: Set
                                                                                             75% Design Documents aleCk Set
                     Mil zs; :z.<>ns:·                                                              99% Contract Documents; F01mdation Building Permit

                             § 1.1:L7The proposed procw:ernent or delivery metiJo9 for the Project is:
                             (ltknlify method su.ch as compt!titive bid, neg01iated contract, or ccnstruction tn~U~agement.)




                                                                                                                                                           SEP 22 2007



                                                                                                                                                                                        ESG001455
                                  1 Negotiated eontract.
                                        §ftiii Omec parameters are:
:'~:~   ?: . ·.;: -::_ -·(~diptiJY;.special clumJ.cteristics or needs oftlu! Project such as ent!Tgy, environmenlal or historicpreservation
:"::·.:· ..,,~ • ··.•:y· · • .',rei;uiiiiiiients.J



                                        § 1.1.3 PROJECT TEAf4
                                      . §·1.1.3.1 TbeOwnec'sDeSignaled Repzeseut.ative is:
                                        (List natne, address
                                                        .
                                                             mid otfter infomu;ztion.)
                                                             . ·:.···
.:·                                                               ..




                                  1
                                        :::~~ i:
                                 . ·~'wasbington,"D.c. ~8 _..,

                                       § 1.1.3.3 Tbe OwJI«!~-other Ci:msUitants and conlrae!Ors arc:
,:_'·                                 •'(list arsciplw .and; 'ifJ:nown.;jdentify them by IUlltle and address.)
                                      ·'"    .. ··:·"··:      . . : .... :·;··
                                        crviL ENGiNEER:
                                      .·.i:Jriffin En . _,.. .Grou . ·• Iilc.
                                      . friHN~BJlilf~d
                                      \ruis~ TX78?~. ·
                                                   ··                                 ·:;:,:<,
                                        §1:~~A   The Architect's         Desj~~··~tativc is:
                                    · ·.(ll#lUiltle, iJM.resi'anil ~r ilifornraiWn.)
          .·..                  :;;. .         .             ..          ·<·-=1~'.:·.':· .
           .· ..   .. ,_               MarlcSwenron, AlA
                                       Paul Mittcndarff;·AlA        ·.}.

:~   .. .. ·: . ~ .                   i8mcs Ttmin, AlA . '
                                   · ~ Einess Swenson GraiW:ii·

                           .•,/:>':~~5
                           ·.   ''\~~,... ]~~......,                                ...     ..,.,..,._._
                                            (List discipliru: m;£ifknown, identify thembylUlltl.e and address.)




                                            AI4Doc:U1oeni8141"'-1997Part1.Cop)'right 01917,1926,1948,1951,1953,1958.1961,1963,1966,1967,1970, 1974,1977, f987and1997byThe
                                            American lns:tUu!a of Ardlltec:!s. All rights l'8lleMid. WARMNG: This NA0 D<>cwmalls prt>kl<:tc<l by U.S. Copyright law ami lntemallonal Trea1les.       3
                                            Unaud1ort<ed reproduction or dlslrlbutlon ol tlllsNA• Do<:<lment. or any po<tlofl alit, taay result In """""' dvllamf crimiRol penalliels, and will be
                                            proseculedlo lbe nwdmum a:r.t..nt possible  ..-..lllo      tow. This dcCUmenl was produced by AlA-., at 14:32:19 on 0312512005 undo< Order           ·
                                            ~~563l3_2whid""'ll"=on21f5'l!006.andisnotb'resale.                                           SCANNED                                   (3008B94002l




                                                                                                                                                  SEP 22 2007


                                                                                                                                                                                        ESG001456
                                     :MECHANICAL, ELECI'RICAL ENGINEERING:
                                     Lany Undsey, P.E.
                                   . Lii)dSey Engineers. Inc.
                                     :noo  Brodie Lane
     :·:.:.:··        .. _ .• ·:-, i:AUstm;>TX 7&745

                      __   ;:_{:,,;,!;~~bther important initial information is:

                                     § _1.1.5 Wbe~ the~ under this Agreement iaclude COtUract administration services, the General Conditions of
                                     ~ ColllractfotConslniction sball be the edition of AlA Document A201 cum:otns of the dale of this Agreement,
                                    :-- Qi-$ folloWs:               : ..:_,         -
                                                        .. ·
                                                                '·.··              ·:· . ~---

                                    - §1.U 'Jk -~~in this Article Ll may be reasonably relied upon by the Owner and Architect in
                                      deterniming the ~~-s c:Oihpensation. Both parties, however, recognize that such information may change and.
                                      .:ift tbai::evenr.llie ·awner. and {lie Architect shall negotiate appropriate adjustments in schedule, compensation and
                                    :_: ~-,Iii s,erriecs in-accordance with Section 1.3.3.
                                      ARliCU:U:R~~OFTHEPARTIES
·.; ..                             __-:~ 1:.2.1 ~-~wn~.~ ~:~shall cooperate with onc another to fulfil1 theic n:spective obligations under this
                                  . 'Agreeiiient,- Both pai1ics sh311 endeavor to maintain good working relationships among all membm; of the Project
                                  ·.:-~               .          :-_.:.                   ·..-
                                                                              ·..-t·;•

                                    . §u.f<>WNER .                                ,_ ,_ .
                              . :-:· § 1ll1'Unl~ ~ ptoyided tmdec this Agreement, the Owner sball provide full information in a timely
                               -;: mamier regarifuig ·. · · · · · ts for and limitations on the Project The Owner shall furnish ID the Architect, within
                                    .15;dii}'i  altcl'reeei~          request, information necessacy and .tclevant for the Architect to evaluate, give
                                    ·,: rioti~'oro~ cDroi.W liCnJ;igliiS.
                                        .... ,;.:-. ;- ..      ·~·:t·.-_.·         ··-";.+
           ·.·.• ·.                 ; §1m ThWwne.r..shaii P:n~r~are the budget for the Project. including that portion allocated for the cost
                                  . :-of the Wor:l:.·nC ~ sball_~sjgn.ipCantly inaease 01: deaease the ovcxaU budget, the portion of the budget
                                    .:aDOca~- foi: tlie;:qMit"Of~,)VOit;:on:oolingencies included in the oveaill bodget or a portion of the budget,
                         .          ,_.-~tlie'~~ of £~H.>' Architect IDa corresponding cbaugc in the Project scope and quality.
                              .·.       .··• . .    •·.:.:, .":'.                            ··:>:;;)).{~ . . ·
                             ·:       §1~_,TheO~~-Des_igoaiCd_~taliveidenlifiedinSectionl.l.3sball be authorized                          to acton the
                                      OM!er'sJidtalf:with respect,to tlie Project. The Owner or the Owner's Desigoared Representative shall render
i:

·~··
                                  :' ·iJecisiofiS· iii a ni:neJY'manner j?eiwning ID docu1Deuts submitted by the Architect in order ID avoid uareasonable
                                  ·~ d&<layin the.Of!leilyaliiJ!lt."lliential progn:ss of the Architect's scrvi~.
                                         ...       ..     ,)    '              .-":";::   ... : ·.
                                                                        sha.:Jf~~~theseivices of consul12nts other than thosedesigllated in Section 1.1.3 or authorize
                                                                                  a Change in Services when such services are requested by the Architect aud are
                                                                              scope of the Project.

                                                               provided in this Agreement, the Owner shall fwnish tests, inspections and reports required
                                      by law or the Contract Documenls, such as structw:al, mechanical, and cbemicai tests, tests foc air and water



 ;;~,;;, ,,'¥~~-;:.:~~M~7'0:::~=~7"·--da->
                                      § 1.2.i7 ~ Owna shall provide prompt written notice ID the hcbitect if the Owner becomes aware of any fault or
                                      defect mlhe Project, including any e.rrors, omissions or ioconsistencies mthe Architect's Instrnments of Service.



                                      AIAilocumenltB141"'-1997Part1.~ 01917,1925.1948,1951.1953.1958,1961,1963,1966,1967,1970, 1974,1977,1987and1997byThe
                                      Am<ri:M lnslilul<t olluct1ilocts. All rfghls re--. WARNING; This AlA• ~ Is .,._.,.,by U.S. Copyllgllt law and lnlematlonal TreaUos.
                                      llnautl>orized reproduolion or diW!butlon ol thb AlA• ~~ or any portion of II, may result In.........., civil and criminal penallles, and wUI be   4
                                      pro$GCU(td to lhe rmuclmua>- pos.a.le uncle< lhe Jaw. This document was procb:ed by A!Ason-e at 14:32:19 oo 0312512005 underOnlor
                                      ~~o:;.,62m_2wlkh..,.on21151200G.:.ndisnotfnrreoale.                            .            SCANNED~


                                                                                                                                          SEP 22 2007


                                                                                                                                                                            ESG001457
                            § 1.2.3 ARCHITECT
                          . § 1+3,1 The services performed by the Arehitect. Architect's employees and Architect's consultants shall be as
                      ' . _:::-Cii:~~(.j in Article 1.4.
                  -.- - - :.:~:iii~~                       Architect's services shall be performed as expeditiously as is consistent with protessiooal skill and care
                  _ _, .,,-..l!n4 !P;.9rderly progress of the Project. The Architect shall submit for the Owner's ;pproval a schedule for the
                  ::_. 'd·:~:~ of the Architect's services which initially shall be consistent with the time periods eslablishcd in
               ; ::--, ·-· · ,:.si:ctioo 1.1.2.6 and which sball be adjusted. ifoecessacy, as tbePrQiectprnceeds. This schedale sball include
                            allowances fur pcriods'Oflime required fur tbe Owner's review, for tbe performance of the Owner's COIISllltants, and
                      . . : for approval of sob~ by aulhorities having jurisdiction ovec the Project. TIUIC limits established by this
                         · -schedule approved bjliie.pwnersball not, except for reasonable cause. be exceeded by the Architect or Owner.
                            ·. ··.              .. ---::·::
                                . § 1.2.3.3 nie Arcmrect'~:Pet;jgnared Representative identified in Sectiou 1.1.3 shall be authorized to acton the
                                      Architect's behalf w.ifh-~ to the Project.                                                      .

                                      § fi3.4     Architeci ~- uia'inwn the confidenlialily ofinfonnatioa specifically designated as confidential by the
                                                    :The
                                      oWner; Unless wilhbi)lruug such information wou1d vinlare the law, create the risk of significant harm to tbe public
                                  or prevent the ~~-~in establishing a claim or dcfeuse in an adjudicatocy proceeding. The .Architect shall
                                  a:quii:e of the ~teet'f.\:xiiiSiillants similar agreements to maintain the confidentiality of information specifically
                                  --~as colifidcill_!~ ·bylb? Owner.

                                •.·   §.~.2.3.5 EXcept wiiK~-~~s knowledge and coose.ut. the An:hitect shall not engage in any activity, or accept
                                      any employment, in.~«:contribotion that would reasonably appear to compromise the Architect's professional
                                      "ud           t with res · t tO' iilis:J'Jo_ject.
                          .           j.~-                          ~-::-:'-        __ ..

                          ' : § ·1.2:3:6 The Archi~.sJi!ill ieview laws, codes, and regulalioos applicable to the Architect's secvices. The Architect
                           . shall reSpond in ~ i!esi!n of~ Project to requirements imposed by governmental authorities baYing jurisdiction
                              -::·:ov~·t¥ Project.                         · - · · · ...-          ·
                                               .....
                              . . •_§ 1.2.3.7.'I'hi, Archi~mall be entitled to rely on the accw-acy and completeness of services and infoiiillltion
                                    furnished by the Qwncr.. The_ Architect sball provide prompt written ootice to the Owner if tbe Architect becomes
                                      aware of.'any c:rrO!S;oniiiSiOns or incousist,encies in such secvii:es or information.
  :·;·.                        :~:    :=    ·. ·           ·· .· ._ .. ,    ·: .·           · "'·?fr-:.:-.··~
,! ~; •
                                     ARTIClE U -IERI.ISAND CONDITIONS -•
                                     -§1.3.1COSToF1'1£:Wo~ ~.:,;,_., ·..::'
                              ::'§:1.3.1.1 Tbe.Cost:of,tbe ·won: shall be the total cost or, to the exlent the Project is not completed, the estimated cost
                                 to tbe            Ownei
                                                   of. all elelliCIII;l·-Qf~P.i:oject designed or specified by the .Architect.
                                                                  :·:;,.: ,; . .:=·· ·.. :-' ... ~;.~~.:-.
                           :, :,§:1.3.1.2 Thci Qlst of the Wed ~jnclude the cost at Cl1lrent market nttes of labor and materials furnished by the
                          · · Owner and eqliipmetit d~ned. ~ selected or specially provided for by the Arcbitect, including tbe costs of
                               -·mao.igement or su~ Of-r,:onstruclion or installation provided by a separate construction manager or
                  _              contr.ii.:tor, plliS a ~le allOwance for their oved!ead and profit. In addition, a ccasonable allowance for
                 ··   .... cotitili            · sball ~:Uielilaiia~coodil:ioM at the lime of bidding and for chan in the Work.

                      r;n~ . . ··:;;..=::..:..•:;::::-.:!"="'.:~-~
                                    § 1.3.21NSTRUMEHTS Of SERVICE
                         : ~,;,§.;t-__:_                specifications and other documents, including those in electronic fonn, prepared by the Architect
                   ··_ .. '''\ 1~-; ·_               .s consultants are Instruments of Service for use solely with respect to this Pro_jcct. The Architect
                            _--_-_ ~1iili;J:t4e~lliet1s consultants shall be deemed the authors and owuers oftheirrespeclivc Instruments ofSernce
          .. -· - :.• ; _·-.     ··w~~i~~l common law, statutory and olber reses:ved rights, including copyrights.
                                      § 1.3.2.2 Upon exealtiou of this Agreement, the Architect grants to the Owner a nonexclusive liCCIISC to reproduce
                                      the Architect's Instruments of Service solely for purposes of coostrucling, using and maintaining the Project,
                                      provided that tbe Owner shall comply with all obligations, including prompt payment of all sums when due, under
                                      this Agreement The Architect shall obtain similat nonexclusive liceuses from the Architect's consultants consistent




                                                                                                                                      SEP 22 2007


                                                                                                                                                                   ESG001458
                                 with this Agreement. Any termiJialion of this .Agreement prior to completion of the Project sballtecmioate this
                                 ~- !Jpon such termioatioo, the Owlic7 shall refrain from making furlher reproductions of Instruments of Service
                                  · ·· ·- · .kturn to the Arcbitect within seven cbys of lemlioation all orlginals and reproductions in the Owner's
                                                   ·g!. or control. Hand upon the date the Architect is adjudged in default of Ibis Agreement, the foregoing
                      :-.·.co,;.,.,.;.;;.::...;;;·:Siii!ll be deemed tenninated and zi=pJaced by a second, oonexclusive license pecmilting the Owner to
        .. , . . ... . •... ~ othec similarly aedeatialed design pmfessianals to reproduce and, where peanitted by law, to make
~2!~~~·:= :~\/·:_~ ;{/~:;i:;:';:;.additions to the Iostrumcnts of Servke solely for purposes of completing, using and

                               · §·U.2.3 Except for the licenses granted in Section 1.3.2.2, oo other license or right shall be deemed grnnted or
                              ... iinplied under this Agie(:n.ent. The Owaer shall not assign, delegate, sublicense, pledge oc otbawise lransfer any
                             ': JiceiJse grmitcd herein to aDothec party without the prioc written agreement of the J\rofJitect- However, the Owner
                                  Sban be petJllitied to~ the Contractor, SubconltactOC$, Sub-subeollll:liCton and material or equipment
                                .·;Aippliers io reprOduce apjiucab1e portions of the lnslrumenls of Service appropriate to and for use in their ClCecution
         ..        ...          . of the Woik by li~ ~in Section 1.3.2.2. Submission or distribution of Instruments of Service 10 meet
                               .'·officialrcgu~reqUiremeiiiS oi: for similarpmposes in coonectioo with the Project is not 10 beeooslrued as

                             ~:.'use thc'::ffisiroments of ~for future addiliom or alterations to this                   Project
                                 .w.hlication in dCrogap.oo.ofthe. reserved rights of the Arebitect and the Arcbitect's eoosul~an~s. The Owner shall not
                                                                                                                     or for other projects, unless the
                                  O~ObtainS-~ p®t,.~ agr=mem of the Architect and the An:hitect's consultants. Any unauthorized use of
                              . llici Instruments' ofSei:vicli•sball be at the Owner's role risk and withont liability to the Architect and the Architect's
                               . cOnsuitanti . .                          . - . '"'·

                              :_i1~;:~ Prl~;to ~-Arc~~t~~                  to         any            the~   JJ;'~ts
                                                                                                         of Service                 inel~c
                                                                                                                                 form oc the Owner
                           , . :-~ 10 the Architect·~y.electromc data for mcorporati.On mto the Instromeors of Service. the Owner and the
                           .; · :Architect sh!ill. by"~te'wliiten a~ set fOI:tb the specific conditions governing the format of such
?.:
                           · :Ins!xumeots ofService .oi electro.nic data, iocluding any special limitatinn& or licenses not otherwise provided in this
                            1   .AgniemeM;
                                  , ... , :,_.
                                               attached as "Exl;ttbir c.~.
                                                             .:: .. ···

                                ' 1.:3.2.~:~ .The ~W:~ ~~ake drawings or specifications in eledrooic form available 10 the Contractor,
                                                ~:UJd material .suppliers for a charge to compeusate for their preparation. The electronic
                                               :~ arc.spccifi<;ally for use in prqming shop drawings or olber required subpUttals and for no other
                                           · .• ·~,The~ for each:relcase of electronic documents fur this use shall be $500: Each recipient
                                                shall siiii:!h!:: An:bitect~s.~ E1ectronic Met1a Release form · to release of the documents. Each
                                                recipi~. is prohibited :fiooi'Sbaring lbese documents.
                                                             . . ....•.... '     .: ~.   ·.?~   '·
                                                                                                               pnor

                             11:3_.2.4.2 Th~ ~i~ ~~ gov~~ the use of electronic Instruments of Service by those otber than the
                               '· ·.... :...~WD&IS~~;0~~D.
                                 .§ 1.3..3 CHANGE IN SERVICES .. :. ''''"'
          ·· ...                  § 13;3..1~ inServij:es orthe'·An:rut.ect, including =vices required of the Architect's consnltants, maybe
                               ..-;tscOmlilishel:l afteq~~ecu~ o.fthis Agreement. without invalidating the Agreement, if mutually agreed in writing,
                                  ifrequired by,~'~ the Architect's control, or if the Architect's services are affected as d=ibed i.n
                                  SectiQill.33.2. In the ~P.f'fuutu:il agreement in writing, the Architect shall notify llic Ownec prior 10
.,
      . :,;                  ···:proiiiding sfu:h                services:
                                                             Iftbe.Ownec deems that all or a part of such Olaoge in Services is not required, the Owner
                           ·: :. sball give proriq)tiW!'ilteo notice to the Architect, aod tbe Arcbita:t shall have no obligation 10 provide those
                             ~;~it=. ~~l?f.il!~ge due 10 the mull of the Architect, Omnge in Services of the Architect shall entitle the
                           · "'·cruautect to''an·~~j~~nt in compensation pursuant 10 Section 1.5.2, and to any Reimbursable Expenses described
                                  in Section 1.3.9.2 aDd Section 1..5.5.


:; : ~;:/: :)i;,J:~:jj~!~;=~==:=;'!~~~=::Project.
  ::: -~. ··.:.~. ;                     ·.:.·.           ···· . :::}(.¥
                                                                                                                                               the An:hitectshallbe

.... · .-~. : ··• ·:.,·:.'· ,."..   · ,.. ::··;i:c: ~f··,.    :..Cilange in the instructions or approvals given by the Owner that necessitate revisions in Instruments
                                                                 of Service;
                                                    .2           enaclmellt or revision of codes, laws or regulations or official interpretations which necessitate
                                                                 changes to previously prepared Inslruments of Service;
                                                    .3           decisions of the Owner not rendered in a timely manner,


                                                                                                                                                                              6




                                                                                                                                       SEP 22 2007


                                                                                                                                                                         ESG001459
                                                A         significant cbaDgc in lhe Project including. but oot limited to, si2e, quality, complexity,lhe Owner's
                                                          scbedule or budget, or procurement melbod;
                                                          failure ofperfunnance on lhe part of the Owner or the Owner's consulrants orcontractoo:;
                                                          pn:paration for IIIJd attmdance at a public bearing. a dispute resolution procc:eding or a legal
                                                          proceeding except where the An:hitect is party thereto;
                       .. · ;··,~?~/):';~~/·· .7          change in the information COilbined in Article 1.1.
                           · ··· .... _. § 1:3.;4 MEDIATION
                                      §.1.3A.1 AJ.yclaim.disl>!\teocothermatter in question arising out of or related to this Agreement sbaii be subject to
                                      'liiediation as a condition precedent to aroitration or the institution of legal or equitable proceedings by either party.
, ·::, ·                              If sUch matterielates to.O!.:is the subject of a lien arising out of the An:bitect's =vices, the Architect may proceed
                  .,               ' ·in accorda!lce With app1ical)le law to ~ly with the lien notice or filing deadlines prior to resolution of the matter
                                  ·: by mediati<iti_oi.J>y arlriti'ation.
                                                        . '                      -=.·

                                   · §'1.3..4.2 The Owncritud.Arcliitect sball eodeavoc to resolve claims, disputes and other nmtters in queslioo between
•..
......                               them by med.iafion ~- Wiil:Ss the parties mntnally agree oibe=i.se, sball be in accocdaocc with the Construction
                                   . ~ ~ ~:0( tJMi American Albitration Association currently in effect. Request for mediation shall be
                                  · · file•:fio writing:wit!(the'oihti!: party to tbis Agreement and with the American Arbitration Association. The request
                                    _inaybe m:uJe ~y 'wj~ the filing of a demand for atbi.tration but, in such event, mediation shall proceed in
                                  ._··advance pf !l,lb~on:iirle~I or equitlble proceedings, which shall be stayed pending mediation for a period of 60
                                      days_ from lbe·._date Of:filiDg; unleSs stayed for a longcc period by' agreement of the parties or court ot:dec.
                                   :§ 1.3.4.3 Thi: ~es. ~bltll~                               ihe
                                                                          mediator's fee and any filing fees equally. The mediation shall be held in the
                                  · place wbere the Pro_je(;t~ locati:d, unless anolh« location is mntnally agreed upon. Agreements reached in
                                    medi,ation shan.be enforce;lbleas seul.emeot agreements in any coort having jurisdiction thereof.
                                            .       .          . ··•          . ..j.~

                                        § 1:35 ARBlrRATlON,, · . ·
                                       '§ 1;3~~1 AJ.y claiin; ~~:Of: other matter in question arising oot of or related to this Agreement shall be subject to
.. -·
·                                ·.:.· athilrillioo..PrioJ:-to arlHttmon. the parties shall endeavor to resolve cfisputes by oiediation in accordance with
·~.                                 Secti9111.3.4. .:· ;.                 . ..
                                                                                        ,,.
:··'.··
                                    :§:~~:5.2 Claims, disputes mid other~ in question between the parties that are Dot resolved by mediation shall
                                   · be decided by :ubltration ·irJmch,.dDJe$5'die -es mutnall  otherwise, sball be in accordance with the
::·· . ···;:.;
                                    ~a Industiy Arbitrati?~ :Rbi~r::UAmerican kuag:tioa Association cum:ntly in effect. The demand for
                                   ·ai:bilratign Shall be filed in 'l'{rifuig'Wilb the other party to this ~ment and with the American Arbitration
                                    ASSociation;_ ..                 . . .:
                                                          ::,_: .·
                                       § 1.3_.5.3 A. dtimand for :ubil¢1ian sbiill'-be made within a reasonable lime aftec the claim, dispute or oth« matter in
                               ·A:~;;qll~~Jii.no e¥~:~~i}idie demand foe atbi.tration be made after the date when institution of legal or
                                \':';'; . .
                                  ·;·.;-''
                                                le'j:io&ediniS based
                                                . flimilati    ....
                                                                                         onSOCb
                                                                               claim, dispute or other matter in question would be barred by the applicable


         . ~:· }       . , ,, -§ 1;3:'5..4      N~~~trati'J                                   .:-·l~f
                                                                         or relating to this Agreement shall include, by coJUOiidation or joinder or in
                         . . . .~YOthe-r-~ an additiO!iiiJ person or entity not a party to this Agreement, except by written consent containing
' '·'-' ""···--.-.•:.:· '{'-/i?,~,;s                  ... this Agreement and signed by the Owner, Architect, and any oth« person oceotity sought to
                                 ').~p·                      · ·on involving an additional person or entity shall not constitute coment to arbitration of
                           --~    ,-.·:any:claim,             .
                                                    \«X}fitber matter in question not described in lhe written consent or with a person or entity not
                                   named or described therein.. The foregoing agreement to :ubitrate and otha- agreeruents to arbitrate with an
            .··:·.·            ·: ,•,~d.!t:i~:~-or entity duly eoarented to by parties to this Agreement shall be specifically enforceable in
                              :O\ ~~-'\#J!I:~ilpplicable law in any court having jurisdiction thereof.
                                    §ii~.~~~~         rendered by the :ubitrator or atbi.ttators shall be final, and judgment may be entered upon it in
             -'' ._,_·:. . .    ·" :·aero.~·~'f!!~lipplicable law in any court having jurisdiction thereof.




                                    AlA-B141 110 -1997Par11.COpyrlght 01917,1926,1948,1951,1953,1958.1961,1963,1966,1967,1970. 1974,11177,1987and1997byTha
                                    American- o l - All rfilhls reserved. WARMNG: This AlA• Document Is p.-cled by U.S. COpyrlgbtlaw an<llnlomaiiOnal neafi&s.                             7
                                    IJnaull.orized reproducllon or dlwlbullon of lhls AJA• Documea~ or lillY portion of 11. may result In sewce cMJ and cr1nt1na1 penallles, and will be
                                    prosocuted lo the maximum exlefttposslb!o uncle< the taw. lhlsdocumentwas produced by AIAsoltware a! 14:32:19on031251200S under Order
                                    ~~:-l!-explreson2/1512006,andlsnotfon-se.                                                   SCANNED                                   (31368894002)




                                                                                                                                        SEP 22 2007


                                                                                                                                                                              ESG001460
                                     § 1.3.6 CLAIMS FOR CONSEQUENllAL IWIAGES
              .· .. .        . . . ~-~and the Owner waive consequeDlial damages for claims, disputes or Olhei: matrer:s in question arising
       ··;-     ,,:._ . ,_:,''I:':•-•i(' ··· · --.:·~to this Agmcmeot. This mutual waiver is applicable, without limitalion, to .all consequential
                           ·· ·· · · ··         ---~to either pmty's termination in accordance with Section 13.8.


                                                   ._."-'-'..,.EOUS PROVISIONS .
                                                  ···This Agn:emeot shall be governed by the Jaw of the principal place of business of the Architect, unle$S
                               ,,.,.,,',-ntlifO.rw··ise provided in Section 1.4.2.

                                   , §.1.3.7.2 Terms in this .t\greement shall have the same meaning as those in tbe edition of AJA Document A201,
                                     GC:oent   Conditions of the :Contract for Construction, current as of the date of this Agn:cment

   :    -~                        · § 1.3.7.3 Causes of aCtion between lhe patties to this Agreement pertaining to acts or failures to act sball be deemed
                                     to have~ and the applicable statntes oflimitalions sball commence to run not later than either the date of
    ··· ..                       · .Sub$1antial CompletiO!! for agjs oc failures to act occurring prior to Substantial Completion or the date of issuance of
                                 •·. the .tinai cCrtificate· for:PaYJnilht for acts or failures to act occuning after Substantial Completion. In no event sball
                :.··.               .sUi:b. statutes oflimil:i!ii.Oos'cOirimence to run my lata than the date wbenthcArchi«ect's services are subslmtially
                                  :-~-                                 .,..
                        ··.Redacted




        .. ·.
    . '·:_..;
                                 .,,:_.§ 1.3.T.S N~thiog ~- ~':fu.is Agreement shall create a conttactual relationship wilh or a canse of action in
                                ·::;: fa.Vorof~_thirdpartf.~CithcrtheOwn«or Architect.
........
                                .~. §{i!:S·unless ~-~vided in this Agreement, the Architect and An:bitcct's consu]tan11; sball have no
                                ·:~ility forthedisawery, presence, handling, removal or disposal oforexposureofpersons to hazanlous
                          · :·, ::~:octoxiciubstaiJCt:sinany.~a.ttbeProjectsire.

                          ·,        :_;~1.TThc ~ ~ hav(i,~~~-to include photographic or artistic representalions of the design of the
                                     ~jeCt,~g~_,,~.r~R.~fs ~and professional materials. The Architect sball be given reasonable
                                    .iiceess.~ tbe co~leted·PIDjCct: to make such representations. Howevec, the Architect's materials shall not include
                                      ~.OWI~eC~s cOOfide'Dtial oc prop~iacy)nformation if the Owner has previously advised the Architect in writing of
                          ,,,      :· tiie'~informalion oonsi&:red·~y_The OwDec to be COilfidential or proprietuy. TheOwDec shall provide
                                     _ptofessi.onaf~t f<1i: the~~ in'ihe Owner's promotional materials for the Project.
                                  . ·~    .•

                         .:, .:,.. § 1:3.7.8 lf~Pwnet:~UeSis1be Architect to executeces:tilicates, tbe proposed language of such certi.ficates shall
                                   be ~uccnri the ArCbitcct f~:~view at least 14 days prior to the requested dates of execution. The An:bitect
                                         ~4h.~ be required ~;~~~-teftificates that would require knowledge, services or responsibilities beyond the
                                               peo<;              , nL ..

                                                            ·. Architect, respectively, bind themselves. their partners, successors, assigns and legal
                                                                 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 au
,.                                 . .· · ·.lliJ!ll.!~ providing financing for the Project. In such event, the lender shall assume the Owner's rights and
: , :·. :. · ·-~ 3:· '· · .                 ;~;lllider this Agreement The An:bitect shall execute all cooseots reasonably required to facilitate such
              ;:::~8~~_:;;~~:.::2:
                                         § 1.3.8 TERMINATION OR SUSPENSION
                                         § 1.3.8.11f the Owner fails to ma1:e payments to tbe An:bitect in accordance with this Agreement, such failure shaU
                                         be conskbed substantial nonperformance and cause for termination or, at the Architect's option, cause for
                                         suspension of performance of services uuderthis Agreement. If the An:bitectelects to suspend services, prior to
                                         Nl. ~~ 8141"'- 1997 Part 1. Copyright 01917. 1926, 1948, 1951. 1953, 1958. 1961. 1963. 1966, 1967, 1970. 1974, 1977, 1967 and1997 by The
                                         Americantns1iluteo1Atchilects. Allrlgl!ls.....,-. WAIINNG:Thls/IJtt• llo<:umetltlsprolededbyU.S.CopyrigkllawandlnlematlonoiT""'IIes.
                                         IJnauthorized reproduction oc dlslrlbullon of this Nl.• Docurnenl, or any portion ot i t , - raultln-.. civil and criminal penali!M, and w111 be   8
                                         ~wtbe IMJdmum extent po:oolblo -lho lonr. ThG doaunentwas pnxlucedby NA-... al14:32:19 on 03125'2005 under Order
                                         ~c:o:-2-G>pireson211512006,lllldl&ootfor.-...ale.                                       .   SCANNED                                (J868894002)



                                                                                                                                             SEP 22 2007



                                                                                                                                                                               ESG001461
                                         suspeiiSioo of se.rvices, the An:hitect shall give seven days' wriltetl notice Co the Ownec.In the event of a suspension
                                                ·    the Architect shall have no liability to the Owner foe delay or damage caused the Owner because of such
                                                     of services. Before resuming services, the Architect shall be paid all sulllS due prior lo suspension and
                                                  ,    incurred in the intemlption and resumptioo oflhe Architect's services. The Arcbitect's fees for the
                                                              g
                                                    services and the time schedules shall be equitably adjusted.

                                                ·If the Project is suspended by the Owner for more than 30 consecutive day.s.lhe A.rcbitect shall be
                                                   ed for services ped'onned prior to notice of such suspension. When. the Project is resumed, lhe Arcbili:ct
                                    - shall be compensated l,Ur CltpCllSCS incuned in the intarupliou and reswnption of lhe Architect's services. The
  .:.                                 ..,:rchitect's fees for meiemaining services and the lime schedules shall be equitllbly !Uijusted.
                                                                            .   .. ,.,_
                                    .·. ·§ f~.8.3 If the i'.roje(;t is stispeuded or the Architect's services are SllSpellded foe more than 90 coiiSOCUtive days. the
                                    . Architect may ~te:tbis Agreement by giving not less than seven days" wriltlln notice.

                                    ... § 1.3.8.4 This-~ ~y.'be terminated by either party upon not less than sevcu days' written notice should the
                                    ·. othec party f:ill'st~~y IO'perfonn inaccocdance with the terms oftbis Agreement through no fanlt of the party
.. ·                :.:·                 ~li!C.~:::: ·:\
                                        · .§ 1:!:S,s This isreemeni·jiiiiy be terminated by the Owner upon not less than seven days' written notice to the
                                        .: Architect for the
                                        .
                                                               Owner's·.convcuience
                                                          . :.;#    . • .
                                                                                    and .without cause.

                                        .§1ft-6              Inthe.eveJ.:r~n not the fault of the Architect, tbe Architect shall be compensated for services
                                        ·.pClronncd j,dOr to-~ together with Reimbursable Expenses then due and all Termination Expenses as
         ......                          defined in Secti0n:t:J.8:7..                      ·
                                               ..             -~:-·t'··..

                                        '§1n7T~on-~·l!IC in addition to compensation for the services oftbe Aga:cmentand include
                                        ·, expenses directly;~bu!abie·~.termination for wbich the Architect is not otherwise compensated. pius an amount
                                       for the Arcb.itcct' s•anlic~ .Profit on the value of the services not performed by tbe Architect
                                     . ._: . '·   .     . -- ~- . .... ::·...','
                             •::     ::-§:1.3.9 PAYMEIJTS TO THE-ARCHrTECT
                                     '.:§ 1.3.9.1 Pa~tS oo account of services rendered and foe Reimbursable Expenses incuaed shall be made monthly
                                     : IJP.Oilfxesentaiion oftheAjchitect~s state~nentofservices. No deductions shall be made from the Architect's
                                     · coinpcnsation.on accciuntof peoaity;)iqoidated da1113ges or other StlDlS withheld from payments to contractors, or on
                                     .-_~of the cost of changes iri:'t!lliWi:ilk other than those for which lhe Arcbitect bas been !Uijudged to be liable•
                                   . ,;· .: ·:·   . .                                     ·. . :· ·-: ~:·.
                  . ·~-:·.          :: § 1~ Rcimbni'sab!e Expenses arc in addition to compensation for the Arc:b.itect's services and include expenses
                                        ·~·by~ Amiliect and~,$ employees and consultants directly related to the Project, as identified in
                                   : .: :the-following pauses: "'~>:.:<.-:
                                        ..      ·.   .       ...  .··~
                                                                           · ·· .-
                                                         · :1 . ~on·li~ection with the Project, authorized out-of-town travel and subsistence, and
                                                                  . ,electroniii dmimunications;
                                                              .2 ..·,'~~ fii~ ~g approval of authorities having jurisdiction over tbe Project;
                                                              .3    ~ns, plotS;· standard form documents, postage. handling and delivecy oflnsiiUments of
:· ·~.

                                                              ~~a~~~ ;·o~ertime work requiring bigber than regular rates if authorized in adVliDCC by tbe Owner;
                                                              .5';/i~n..
                                                                 ·'-=~·
                                                                         models and mocl::-u
                                                                                            psreq
                                                                                                  nested b the Owner:
                                                                                                          y         •



                                                             . :/_ ...~.inbursable expenses as designated in Section L5.5;
                               _;.,iL        ~;!,       ·.     ~-~- ,_. Othecsi.mil direc Proj    lated pendi
                                   : ~(\'::', :;:: /·t''i·.                        ar          t         ect-re        ex      tures.
                               ,; ;:::.';~~:§:1~~.~\JfReimbursable Expenses, of expenses pertaining to a Otange in Services, and of services
                                      performed on tbe basis of hourly rntes or a multiple of Direct Pcnonnel Expense shall be available to tbe Owner or
                                      the Owner's authorized representative at mulllally coovenient times.



                                         AIA~B141"'-f997Pm:t1.Ccpyrlghl                                      01917,1926,1948.1951.1953,1958,1961,1963,1966,1967,19711, 1914,1977, 1987and1997byThe
                                         American lnstilule ol Archllocts. AU right$ reseM>d. WARNING: This AlA• Document is pwtec~ed by ILS. Copyright law and ln-ionol T~
                                         IJnauthotized ~or dtr.1ri>ullon ollhls IdA• Docwnen~ or any po<tfon oil!,- re.-ullln ..,..,.., cMl and criminal peaaltles, and will be                      9
                                         prO<G<tJied to lha maximum exlentpo9slblo undot lha law. This document..,. procluc<od by AlA .altware at 14:32:190110312512005 under Order
                                         ::!o::'~-2wticll"""""'o"21151200G, and Is nd:forresale.                                                      SCAN N E ~
                                                                                                                                                             SEP 22 2007


                                                                                                                                                                                         ESG001462
                          § 1.3.9.4 Dim:t Ptcsonsel Expense is defined as the direct salaries of the Architect's pecsonnel engaged on the
. . ... . .. .       _ .. Pr.oie~:.t.~ the portion of the cost of !heir mandatory and customary contributiom and benefits related thereto, such
~:':~fG.~l~;.;·,zJ~~~,~;~=s~~~~employcebenefi~ ~edacted ~ckleavt; bruiday~ ~ e~~yee
                                           U SCOPE OF SERVICES AND OTHER SPECIAl TERMS AND CONDITIONS
                                     Enumeration of Parts of the Agreement. This AgJ:eement represents the entire and inlegr.lled agreement
                                       the Ownec and the Architect and supem::dcs all prior negotiations. represcnlal:ions or agrecmcots. either
                            · writren or oral This~~ may be amended only by written inslrumeut signed by both Owner and Architect.
                             This Agreement OOmPrlSes the documents listed below.
                             .. ..                  . '·
                            §:1.4.1.1
                                .     Standard Form'~{~.greement
                                                    .-;-;,
                                                                 Between Owner and Archilect. AIA Document Bl41-1997.

                             §1A1.2Srandai<l FiimiofArchitect's Services: Design and ConlractAdministration. AIA DocumentB141-1997, or
                            ·a's fOllows:          ·· ·
                            '(Ii# uther.do.ci~m~_}flJlT.J• tfelineating Archiuct's scope ofservices.)
                           ~-~bi~~ ~~tects· Proposal1etter dated November 12,2004, revised J3Illllll)' 21,2004 atbehed as
                                                  ..                  . ·.. . . ..                                                        .
                                                                        . ..
                                                       ~

                                                                           ·~



                            .§ 1.4.1.3 Otbei .doi<Jl!naii{i!S.foUi>ws:
                            (list ather~ i.(imy;jomzing partqfthe Agreement.)

                            -~ sweosoii Grabani~tec~s· schemalic design documents dated January 28,2005, wbich are allacbed by
                            re(ereoce
                                :
                                      as ~Exhibit
                                            .
                                                      B.".
                                                       . ·. :-·:'..
                                                           ~··
                                              ·::::·-.·::                            ··;.



                            ;§ 1,•1.2 Special T~ ariif'~Jitioos. Special terms and conditions that modify this Agreement are as follows:
                               . . .       .. .    ......·· .    ..    ~




                                                  .:   :·.·· .-.

                            ;AiilJct.E 1.5' 'c~J>EN~f.ION                                   ..:.• .•..
                            :§ 1;5.1 For the:~~~&~ as~ under Article 1.4, compensation shall be computed as follows:

                       I·~~-~~,;~~:~and                                                                            Electrical Engineering= $112,500. See schedule for Phases


                                                                                •M.]>JS:ri..             D.O.             CD.                 c.o.          To!alFees

                                                                                10,800                   18,000           28,800              14,400        72,000      ~
                                                                       ' .. ; a;:/50                      4,SSQ.           ~                       0        J:5;S6& /
                                                                   ·.~ ... -.: -~2.5~                     3,750           15,000               3,750        25,000
                                                                  ····:_. ...11·050                      2.6,300          51000               18 150      .... ., cnn
                                                                       .:. . '                                               .                  .         ~o.JJ./l
                                                     the Arcb.itect are changed as described in Section 1.3.3.1, the Architect's                 sball    ~mpensation
                                                          shall be calculated as descdbed below oc, if no method of adjnstment is indicated in
                                s                      citable manner.
                             (Insert basis ofc:ompauation, including rates and mullipks qf Direct Persormel Expense for Principals and
                             employees. and identify Principals and classify employees, if rl!quired. Identify SIH'cific services to which particular
                             methods qfc;ompi=ation apply.)

                     . I .See $Cb(:d.u,lj: of~ly rates attached as "Exhibit E."
                 •:M·-.:      .;       .

                 '·"·:::.'1: '§15~·~;; ~in Services of the Architect's oonsultan~ compensation shall be computed as a multiple of
                             One ( 1.00 ) times the amounts billed to the Architect for such services.



                             AIAIJoculami6141,.-1997Part1.Copyrtglll 01917,1926. IS48,19S1.1953, 1958.1961,1963,1966,1967,1970, 1974,1977,1987and1997bJTho
                             Jlmo<lcan m- of An:lllleds. All rlghbn....--1.. WARNING: This !UA• Documontb ~by U.S. Copyright law andtmemallonal Treotleo.
                             llnaulhorizedreptoduclionordlslriblltionofthbAtA•IlocutMnt,<riWlYportlonofll,may,_ln_clvltandalmtnelpen;ollies,aadwlllbe                            10
                             prc>3eCtdedlo tbe ll'lllXImum exb:nt possible- tbe law. This~ was produced by A!Asolwaro 1!1.14:32:19 on 03/2SI2005 und<JrOrdor
                             No.1000156203_2 wllidt          ""'*""
                                                             oo2/151200G, md is not for rosolo.
                             User Noles:
                                                                                                                                      SCANNED
                                                                                                                                               SEP 22 2007


                                                                                                                                                                            ESG001463
                               I
                                  § 1.5.4 For Reimbursable Expenses as described in Section 1.3.9.2, and any otl!er ilems included In Section 1.5.5 as
                                 .Reimbursable Expenses, the compensation shall be computed as a mnltiple of One ( 1.00 ) times the expcases
                              . . ~by the Architect, and the Archilee(s employees and consultants.

                                   . § 1.5.5 Other Reimbursable Expenses, if any, are as follows:



                               . .§ 1.5.6 The rates and multiples for services of the Arcbitect and the Arcbitect's consultants as set forth in Ibis
                                     Agreement shall be adjusled in aoc:ordance with their normal salaiy xeview ptaeticcs.

                               ts        1.5.7 An   inijj;;i:pa~~ ~ Zero Dollars and Zero Cents ($ 0.00) shall be made upon execution of this
                                      Agreement and is the. rilinimum payment ulllia" this Agreement. It shall be credited to the Owner's acrount at final
                                   :.,payment.  Subseq~ payments for services shall be made monthly, and where applicable, shall be in proportion to
                                   ' ·services p:rformed ·<H,I. ~ IJ3sis set forth in this Agreement.




                               1
    .....
                   ···:·;:·    ·'·§1.5.8Pa~~ts,~due
                                                 . ,_._ ~-~bleimmediarely zero                      ( 0.00 )daysfu>mthedareoftheArcbitect'sinvoicc.
;                                    Amounts unpaid ·sixty ;·: ( · 60 · ) days after the invoice date sball bear inr=t. at the rate enten:d below, or in the
                                  .. absence thereo(at tbCJ~~rnte prevailing from time to time at the principal place of business of the Archilect.
                                •· (insert role ofinle1U( ~C~ UjJOn.)

                               I:.   U.S. Federat~·.Prime _ii.atc: plus 2%.
                                     .                 :   .        ·-:.   ·.~·:.. ':




            ·:-:..::.
                              .·.l {Usury laws and:~uirements:!l'llier the Federal Truth in Lending~ similar state and local            COIZSIUtU!r credit laws
                                   '·and other reJW]aifun& qrffie.:Owllt!r's and Architect•s principal places ofbusiness, the locaticn ofthe Project and ·
      ·.. '·   ..·
                                     dstwhere nu:ij ·affect tM 'Validity of this provision. Specific legal advice should be obtained with. respect to deletlans
                                     or nuNI:ifications, Ondlilso:r(:garding requlrt:ments such as written disclosures or waiw:rs.)

                              ',,. §1.5.9 Ifthe ~-~;z:y this Agreement bave not been completed within Three ( 3) months of the date
                                 ..hereof,lhronghll!J~Ofthe Architect, exlensioo of the Architect's services beyond that time shall be
                              · · compensate(fas providec:l.in:~ 1.5.2.

L:
. . ._.:..




                                                                                                                     Paul Mittendorff, AIA
                                                                                                                     Principal and VICe President
                                                                                                                     (Printed name arrd title)




                                     ~~.;:;ou10!llch e:<plms on2/15/2006, and is not lor resale.          •
                                                                                                                             -InSCAN NED
                                     AIAilocument8141"'-1997Part1.COpyrighl 01917,19:16,1948,1951,1953,1958,1961,1963,1966,1967,1970, 1974,1977,1987and1997byTho
                                     Amoricon-ot An:!*octs. All rights reserved. WARNING: This tuA• llocumentlsprolectedby U.S. Copytlghl'- andln-UonaiTceatlelo.
                                     UnatJthodze<l repnK!ucllon ot clislr1bufiorl of Uris AlA• Doculnent. «any p<l<tioll ol it, may    severe civil and almlnol penaftles, and wiH 1M!
                                     PfV$OCUied to tile maxlmulol exbontposslble - t i l e law. This doclmelttwas produced by PJA sollwaro ~ 14:32:19 oo 0312512005under0n:ler
                                                                                                                                                                        (3868894002}
                                                                                                                                                                                         11




                                                                                                                                       SEP 22 2007


                                                                                                                                                                            ESG001464
                                                                                                 '2o5302.00




 Standard Fonn of Architecrs SeiVices:
 Design and Contract Administration


 TABlE OF ARTICLES

 2.1      PROJECT ADMINISTRATION SERVICES

 2.2      SUPPORTING SERVICES                                                                      This doaJmod ha& iJr4x>rtant
                                                                                                   legal coosequences.
 2.3      EVALUATION AND PlANNING SERVICES                                                         Consullalion with an attorney
                                                                                                   is oocouraged wilh respect to
 2.4      DESIGN SERVICES                                                                          its complelion or modification.

 2.5      CONSTRUCTION I'ROCUREMENT SERVICES

 2.6      CONTRACT ADMINISTRATION SERVICES

 2.7      FACILITY OPERATION SERVICES

 2.8      SCHEDULE OF SERVICES

 2.9      tiiODIFICATIONS

 ARTICLE 2.1 PROJECT ADMINISTRATION SERVICES
 § 2.1.1 The Architect shall manage the Archirect's services and administer the Project. The
 Architect shall consuk with the Ownec, research applicable design criteria, attend Project
 meetiDgs, communicate with membcn of tbe Project team and issue progress reports. The
 Arcbilect shall coortlinate the servi<:es provided by the Archicect and tbe Arcbirect' s
 collSil!tanU with those service$ pl!;)~ided by tbe Owner and the Owner's consultants.

 § 2.1.2 WlJe.n ~ject reqUiieiilen~ flave been sufficiently identified, the Archilect shall
 prepare, and periodically update, a· Project schedule that shall identify milestone dates for
 decisions required pft!te Owner, design services furnished by the Architect, completion of
 documentation prov~JiY:Iilc'Architect. commencement of COtlSIIUC!ion and Substantial
 Completion of tbe ~orki.5ahject to tbe limitations indicated in E1ness Swenson
 QrahamArchitects' Proposal letter <fated November 12, 20()4. revised Januacy2l. 2004            <:) l,l \~
 attached as "Exhibit A"                                                                           \    ~ .,-

· § 2.1..3 The J..rohitest sltllll soosider the •.<alue efa!temati¥e ~ystems-llnd                          \\.Ji...
  elltiipmeat; tegelher with ether eensidemaoos based en j3f9gmm, budget and aestbe!ies in        C5 k__\\ •
 develepil!g.lhe desiga for the Pmjeet.



 § 2.1;4 \Jtlea relltiest af the Owner, tbe 1\rehitest shall make a presentaaan te explain-the
 design ·ef !he Prejeet te fCJ!!resenltii"es ef !he OWHeF.



 § 2.15 The Architect shall submit design documents 10 tbe Owner at intervals appropriate
 to the design process for purposes of evaluation and apProval by the Owner. The Archileet




                                                                                          SEP 22 2007



                                                                                                                          ESG001465
                      shall be entitled ID rely on approvals received from the Owner in the futther development of the design.



                      §i1:6The.A.rchitectshall assist the Owner in COitiiCCtion with the Owner'src:sponsibiity for filing documents
                      ~foe the approval ofgovemmentalltlllborilies                   having jurisdiction over the~
                ,J folioVriog limitations:

                      ·2.1.6.1 Site layout, submittals and approvals will be by others. The Aiclrill:ct will perform one set of
                       revisions ID the scope building drawings included by :reference as "Exhibit B" and one set of:revisions to
                       tbc documents submitted for pennit from input received from the OWner pmsuaot to requirements of the .              IL
                       municipal author:ifu:s having jurisdiction over the Project. Beyond those revisions, the .Aii:hirect will DOt    (j [\
                       create any special drawings or exhibits. Docum::nts or other worlc effiJrts required for pla.nnittg subutittals 1\ R.
                       0c govenunemal agency review after the initial submission will be identified immediately by the~ --1f\
                       and ma.y result in a revision to our schedule and compensation.
 ·;·::   .•

                 :_~~~·,: .::::~!_<~<· .; . §J;t~~~~ ::_:~!~tl!~{
                 ;~.§ 2ri;J'1i\'AW!,.~"OF1BUOOEfANO ~HMEWORK
                                                                    .
                 ·;·   c••.• ;·· •• • •••,••, •..•: :· •••~ ,, -~:·Iili'.-~lltlrh;we-bo:leiH!Iffiei<~idea!Hietf;,.the-.1\rehilteGH;lBali-ptepafe-a-p~'elimilaafy




              • · :~: pris~3i£:~.~~ve. ~jeafe~,;~ llf aegeliaW!t; eeaditioos. Aeeefdisgly, die f...n:himst sanaet and aees
                  .:·f.l~(~t::iM.:'~~ilt ~(bids !'£ aegaliated priees wiU net \ &FY foam die Owaer'~ budget fur the Pffijeet er ffilm
                · ei\y ~ afiile'Cest ef~.:W!f~.~,.ellilluatiaa pFepared B£ ag£Bed te by the .~teet.
. ·. .            :·_ ..... .:. . -~. >:~· ;:.. :: ::··~ '". . . . . ~ '. )~\:.~r-·.;:-.:.s·
                   ·:·H+1.):m ~~:~wnlmi_s;~'@;i& COst ef the WOO., the .~Gt shall be pemHtted te iaelude eellliageooies fe£
                   ~ biddiitg and fia~- essalatiilu; te det&miBe what mateM!s, e'¥'ipmem; eempeaeat S)'fltems and !ytles ef
                  '::ee~ea~ge ~ ~~~d;in the Celllmet Daeamellb; ~ ~ rease....ele adjiistmea~ iu the se~e ef the


                  · eJ<~ealie~J, ~-~e'(f.~~'tilitweea the Owae£ 1111d the Ce~r eeuses the budget fur the Cast ef the \\~lk te be
                · · :e~~eeeded; ~~.:tili}h:~ shell be inerea!led aooeiliiBgly.

                ; ·   §·~1.1.4 If·~i~~,:~~alialiea        has net oomme11eed wi!l!iu 9Q days after the t.rehiteet submits the Cei1Stmetia&
                       Daeuments te the O..vaer, lhe budget fur the Cest ef the Walk sWt be adjusl!ld te rel:leet <.ibanges iu the geaefill
                      . le?~el.ef p!i~.,lhe eBIIStflleliea iadest£y.

                ·, :·§~1~1~,:lf$a .h.~et fur the Cast ef!l!e Wade is emeeelerJ by the le\WSI: beaa fide bid eruegeliated prepesal.lhe
                      Qw&ef.ss;lill;                              .
                             ·.1'. · · :give •Nffitee IIJI!ml'lal ef 1111 illerease ill the budget feF the Cest ef !he Wml:;
                                 ..!     atitBeft.ze robiddiag e£ renegeliatiug ef the Pl'9jest wi!l!ia a reaseoollle lime;
                                 .3      temlisatB ill aeeeAleee w.ilh Seetien 1.3-8.5; er
                                 ,4      eaeperote ill fflisiug the Praje<lt seepe and quality as requif<!d te redtiee the Cest ef!he Werle



                                                                                                                                                                            2


                                                                                                                     SCANNED                                   (12094700)



                                                                                                                              SEP 22 2007



                                                                                                                                                                   ESG001466
§2,1.:1,4; If !he 0'>'mer ellaases IB pmseed uooerSestiaB 2,1.75.4,1he ...rnl!i1B6t; witl!oot a!ldiliooal e<llflilen5aliee,
slmll modify the deeumeua fer wrue!t the l\rel!iteet ie respeft5i!lle under !hie 1\gleemeat es 11eeessacy IB eemply with
lhe budget fer !he Cast eflhe Welle The meflifieetien efSIIell doouments shall be lhe limit eflhe ."4ee!iteet's
respensib~ ede£ Ibis Seetien 2.1.7. The ,'\rehiteet shall be entitled ta oolflilMSalien ie aooerdao.ee wilh !his
Agreement fer all serviees petfem1ed wh&thef er nat eanstmeti~

ARTICLE 2.2 SUPPORTING SERVICES
§ 2.2.1 Unless spccificaUy designated in Section 2.&.3, the services in this Article 2.2 shall be provided by the Owner
or lbe Owner's consu1Jants and contractors.

§ 2.2.1.1 The Owner shall furnish a program setting forth the Owner's objectives, schedule, COIISC:r.aints and criteria,
including space requirements and relationships, special equipment, systems and site requirements.

§ 2.2.1.2 The Owner sball furnish surveys to describe physical c:haracteristic legallinlilalions and utility localions
for the site of the PrQiect. and a written legal descriptioo of the site. The surveys and legal infonnation shall include,
as: applicable, grades and lines of streets, alleys, pavemenlll and adjoining property and strnc:tun:s; adjacent dminagc;
rights-of-way, restrictions, easements, enc:roachments, zoning, deed restrictions, boondaries and contours ofthe site;
locations. dimensions and necessary data with respect to existing buildings. o!hec improvements and trees; and
information concemiag available utility services and 1iBes, both public and private, above and below grade.
including inverts and deplhs. All the infonnation on the survey sball be referenced to a Project benchmad:.

§ 2.2.1.3 The Owner sball furnish services of gMtecbnical engineers which may include but are not limited to test
borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground
corrosioo tests and resistivity tests, including necessary opentions for anticipating subsoil conditions, with reports
and appropriabo recommendations.


MllClE 2.3 MWAllON AND PU.NNIHG SERVICES
§ 2.3,1 'The llrel!iteet shall pre•tide a preliminaty evaluatiea ef lite infem~aaaa famished by lite 0 .w.er und& tllis
Agmament, infkidiag the Owner's pmgmm aed se!tedule fequirements aafl budget fer !he Cast aflhe WerlE; eaeh in
leflllS ef !he allier. 'The .~et shaD ra•Aew sueh infemla1iea ta assemin that il is eensisreat wilh !he requirements
eflhe Prejeet aafl sllall netify !he Owt!e£ ef &:WJ ether inferma!ien er ee~ seF.-iees lhatmay be reasanallly
needed fer lhe Projeet,


lntem!atienpra•lided by !IN! Owner afsite saodilieas, 1111d tile Ovmer's pragaua, ssheEiule an6 b~
eflheWGfk.

§ 2.3.3 'The Amhitest shall Wliewlhe Owner's propesed me tiled ef eenllooling fer oonslruetian servises an6 sbaU
netify lite Owner ef astieipa!ed iftlpaets tl!at snell methed may !ta' e en tile Owner's pregRIHI; fimmeiallln\klme
reEJUire!JieniS; aad lhe ooepe ef tile Projeet.

AR11CLE 2.4 DESIGN SE!MCES
§ 2.-4.1 The An:hitect's dcsign·services sball include normal structural, mechanical and electrical engineering
services.

§ 2.4.2 SCHEMATIC DESIGN DOCUMENTS
§ 2.4.2.1 The Architect shall provide Schematic Design Documents based on the mutually agreed-upon program,
schedule, and budget for the Cost of the Wori. The documents shall establish the conceptual design of the Project
illusttating the scale and relationship of the Project components. 1be Schematic Design Documents shall include a
conceptual site plan, if appropriate, and preliminary building plans, sections and elevations. At the Architect's
option, the Schematic Design Documents may include study models. perspective sketches, electronic modeling or
combinations of these media. Preliminary seleclioos of major building systems and construction materials shall be
noted on the drawings or described in writing.




AlA Doeunlenl 8141• -1997 Part 2. Copyrlgbt         c 1917, 11126, 1948, 1951, 1953, 1958, 1!161, 1963. 1966, 1!167, 1970, 1974, 1977, 1987 and 1557 by Tho
Ame<lcan  ..._of_                Allrlglda"""'"""- WARNIHG:Thls AlA• Doc:umeatlspolecled by llS.Copyr!gll! Law and..,_tlonal Tre"'l=.
U1131J1horl:red l1!pOductiaft or dislrlbullon of this NA• Documen~ or any porUan of it, may .-..ullin......., ciri and crimfcal J>Ct1"ffies, an<! will be     3
prosecul8d to tile maxlm!un extent possible under the laW. Thlsd>cumtlnt was produced by AlA.-., al10:43:17 on 0312312005 undor O<dot
No.1000156203_1 whi:hexpll<oson2/IS/2006, and Is not lor resale.
u--
                                                                                                      SCANNED                                 {l2004]00}



                                                                                                              SEP 22 2007


                                                                                                                                               ESG001467
§ 2.4.3 DESIGN DE.VEl.OPMEHT OOCI.IMENTS
§ 2.4.3.1 The Arcllirect sball provide Design Development Documents based on the approved Schematic Design
Documcuts and updak:d budget for the Cost of the Work. The Design Development Documents shall illustrnle and
describe the refinement of the design of the Project, establishing the scope, relatiollships.. forms. size and appearance
of the Project by means of plans, sections and elevations, typical consuuction detti1s, and equipment layonts. The
Design Development Documents sball inclUde specifications that identify l11l\ior materials and syslems and establish
in general their quality levels.

§ 2.4.4 COKSTRUCTION DOCUMENTS
§ 2.4.4.1 The Architect shall provide Constructioll Docwnents based on the approved Design Development
Documents and updated budget for the Cost of the Work. The ConstructiOn Documents shall set forth in detail the
tequirements for~ of the Project. The Construction Documents shall include Dxawings and
SpecificatiOns lhat establish .in detail !he quality levels of materials and systems required for the Project.

§ 2.4 4.2l'>Bfiag ll!e develepmest of ll!e Cooslroetien DaGUmlmts, the Arehiteet shaY W~sist tile Owner in the
Ele\•elepmeat IIBft fJ<tep&Rl!ieB ee (l) hl!Jdiag OBft pmearemellt i&faEmaaen MHefl Efeseaaes ll!e lime, plaee and
eendiliens ef bidding; lliddiag er Pfepesal fum!s; aild the furm of agieeme&t between the Owner ad the Cemeeter;
and (2) the Ceedltioos of the Olatmet far CaBSiroetion (Geeeml, Supplementary and 9IBer Cenditie115). 'The
t'..oohiteet alse shall OOr&flikl the Prejeet Mannal that ineludes the Ce!lEOOens efthe Cenmuat fer CellSlniGtian and
SpeeiHGations aad may·inelllde bidding refllliremees 111111 sample fefftl5.

ARl!ClE 2.4 GONS1=RIJCOOH PROCUR811EH:r SERvx:ES
§ 2..~ 'The Are!Weet sbal! assist the OviBBr in-oblainiBg eill!e!o 60rBf!etith·e 1»115 er negatiated proposals aed sball
assist !he O•,•me£ in a?Slf<iiPg and prepering eeatraGts fer ooest.'lletiO!Ir

§ 2.5.2 The ,'\Nhiteet shall asnist the Owner iB eslablishieg a list of pr&SJleeti'le bidders or eeetmeters.




§ Ui.3 'The ,'\Nhiteet sbaiii1S5ist the Owner iB bid 'lalidalieft er prep a sal e\<al~~a!ien and determination ef the
sueeessful bid er f1F0119sal, ifany. Ifre'¥!esled by the Owner, the Arol!itest shall neli!'y aJI.prespeeti'l'e biddBF5 er
~BP-I ef the hill or prepesal res!iliS.

 § 2,5,4 COIIPElli'Mi BIOOIMG
·§-2.5.41 Bidding ~ eensist ef hid<liug FeqtJi<emeats, l"'<>f'OS"ee eaR!fiiElt forms, Ganem! CenEli!ioos-and
 SapplemellllH"y Cendltiens, S(leeiaeatieas aad D£a>.~<ifl8S •.

§ 2.5.4.2 If roitlleSted by !he OwaeF, the Arehireet shallllffill!ge fer preeucing the repmduetiea ofBiddieg DeeumeetS
fer dislribu!iee le prespeeti¥e biddem. The 0'll'lleF shall p~· direGtly fer the oost ef repreduetiea er shell reimburse
the !Jehiteet fur sueh ~-

§21i A_,3 If fBt¥Je5tOO by the Own&, !he-Areh..'teet shall distril!l!te the Bidding DocumeJliHo.p~
Fe quest their retum llj_!en OOftltlleliea ef the lliddieg preeesso 'The Amhileet sball mainteiB a leg of distriblitian and
.retrie•.ti; aall the ameeets af deposits, if any, reeeived from and rek!medle prespeetiz.oe bidders.

§ 2.5.4.4 The Arehiteet shall eensiEier reque6S fer substitH!iens, if permitted by Ike Biddieg DeGumeets, and shall
prepare and dislribute addenda identifying apprevea sabstiletieas le all prespeeti 1e bidders.

§ 2,5,4,5 The Arei!Heet shell partieqlate iu er, at the Owne.r's aireeaea, shall organize end eeeaust a pre bill
eenfereeee fer pmspeetiz;e mdelers.

§ 2.5 4.& The f..reltiteet shell prepare R!SIJBRSes 1e ques!iens !Fempmspeetive biddea: and pm>Ade elwifiea!ieas and
ielel.'pAltatiens ef the Bidding IloGumeets le all prospedi>Je bidders-in the fa<m ef addenda

§ 2.5.4.7 The ll.rehlteet shall (lftflieijlate in er, at the Owner's direelion, shall organize aaol eendust the (Jfleeing of the
bids. The ,'I£Ghllest shall sabSOfll!enlly deeumeat and distribute the bidding results; as EllreGted by the Owner.
AlA oa.:-t 8141"' -1997 Part2. CopJrlgltt 0 1917, 1926, 1948. 1951, 1953. 1958, 1961. 1963. 1966, 1967, 1970, 1974, 1977, 1987 and 1997 by The
Amelican h:tilutG of .Atch!1ects. All rights-"""- WAFINING: Thls AJA.0 llocumeatls proleCted by U.S. Copyrfght Law and lnfomatlonol T""'tles.
Unaulh<lrizecl rep<O<IucUon ... dlolrlhu1lon ollblsAJA0 Document, or ""Y portiQn ollt. may -In severe clYtl and criminal penalties, and will bu   4
pro96CUied to tho noaxlm<D oxlBnt pooofblc under tho law. This doctmet1twas produced by AlA- at 1lt.43:17 on 0312312005 undef Orde<
                 IOf1ictl""""""
No.100015621!3....1               on 211512006, and k; not for resale.

                                                                                           SCANNED
User Noles:                                                                                                                          (12094700)




                                                                                                   SEP 22 2007


                                                                                                                                    ESG001468
 § :U.i ~OllATED PROPOSAl.$
 § .M.5.:\ !'Npesal DaeomelllS shall eaasist ef prepasal reqairemell15, prep ese~ sentmEt femls, General Cendiliens
 .i!i!.li ~upp)eHlt>111m) Cell!H!ie!IS; SpeeifieetiellS ood I>Jv:,·.iegs.

 § ~u.:z If ~d l!y me OwfteF, the fuehiteel shall llf£8Rge fer preElllrillg the rep£9duetien efPrepesal
 :Q~-~~~ fer dislrillalien te preSIJeeli¥e ooaliaelef& The Owner shall pay llireelly fet !he e9SI efrepreEiaelien er
 shaY reimbuP.Je !be f.rehiteet fer sueh el<jleases.

. § M~ If requested by., OwBef, the ,...rehitoot shall erganil!e end pw:tieipale in seleotien inlef' <ieW& with
 . pR!6peOO.soe ~~re~:':: ...
               .      .                         .
  § 2.5.5.41'he l.rem~:~ eensi.4e£ ~ fer sahstiluliens, if permitted by the Pfepesal Deeuments; and shall
, fl.~ ~- .tJiJ;Irib11te.iiiJ,E!enda itJealifying app.-e'lel! substitutions te all jlfeSfJesB\'8 eelltnlGte£S.

 § :Z;S-5,5 "If ~1!3!1 by.I!J!! .~er. the .•.reruteet sball assistll!e Owner during negetiatiens with p.-espeeti>-o
 OOBtraetem. 'The· t.,relliteel; !;!;if# suhseqeenlly prepare a s~mmary report ef the negeliatiea resul15, as dirested lly the
 Owner,.                  .


 ARTICLE 2.6 CONTRACT ADMINISTRATION SS{VICES
 § 2.6.1 GENERAL ADMINISTRATION
 § 2.6.1.'1 The Alcbi~~ provide administration of the Contract between the Owner and tbe Contractor as set
  furth below-and in the eoition of AIA Document A201, General Conditions of the Contract for Constnu:tion, cnrrent
 ·as of the date of this Agri:e.'nini. M.od.i.licalioos made to the General Conditions, when adopccd as part of the
  Contract Documents, shall be enfon:eable under this Agreement only to the extent thai: !bey are consistent with this
  Agreement or appro\fed in writing by the An::bi.lect. Site visits by the Arcbit.ect will be limited to the Dumber Or
  meetings indicated in Elncss Swet!son Gt;mam Architects' Proposal letter dated November 12, 2004. reyised
 January 21. 20()4. attacheil as "Exhibit A."

 § 2.6.1.2 The Architect's responsibility to provide the Contract Administration Secvices under Ibis Agreement
 COIDillCilCCS with the awaro of the initial Contract for Construction and terminates at tbe issrumce to the Owner of the
 linnl Certificate for Payment. However, the Architect shall be entitled tn a Change in Services in accordance with
 Section 2.8.2 wl!en. Contract AdministratiOn Services extend 60 days after the date of Substantial Completion of the
 Work.

 § 2.6.1.3 The Architect shall be a represenaalive of and shall advise and consult with the Owner during the provision
 of the Contract Administration Services. The Architect shall have authority tn act on behalf of the Owner only to the
 extent provided in Ibis Agreement unless otherwise modified by written amendment

 § 2.6.1.4 Duties, responsibilities and limitations of authority of the Acchitect under Ibis Article 2.6 shall not be
 restricted, modified or extended without wriaen agreement of the Ownec and Architect with consent of the
 Contractor, which consent will not be unreasonably withheld.

 § 2.6.1.5 The Architect shall review properly prepared, timely requests by the O:mtractor for additional information
 about the Contract Documents. A properly prepared request for additional information about the Contract
 Documents shall be in a fonn prepared or approved by the An::l!itect and shall include a detailed written statement
 that indicates the specific Drnwings or Specifications in need of clarification and the nalUre of the clarification
 requested.

 § 2.6.1.6 If deemed appropriate by the Architect, the Architect shall on the Owner's behalf prepare, reproduce and
 distribute supplemental Drnv.ings and SpecifiCations in response to requests for information by the Contractor.

 § 2.6.1.7 The Architect shall interpret and decide matters concerning performance of the Ownec and Contractor
 under, and requirements of, the Contract Docnments on written request of eilhec the Ownec or Contractor. The
 Acchilect's response to such requests shall be made in writing within any lime li.mits agreed npon or otherwise with
  reasonable promptness..


  AIA-8141"'-1!197Port2.Copyrlghl C1917,1926.1948, 1951,1953,1958,1961,1963,1966,1967,1970. 1974,19n,t997and1997byThe
  American lnstilulu of An:ldteds. AD r f g l l l s - - . WARNIHG: This AlA• Doeumentls:Jli'OII!ded by U.S. Copyright l.ut and lnlamatlonal Treaties.
  Unaut!-.1 reproducdoft or dl$lributlon ot tbho AlA• llccument. or any portiOn alit, may result In ,.,.,.,.... c:t<ril and criminal penallios, :lnd will be   5
  pr<l5<!CU1ed iotbo ruxlnun &XIent possible vmlerlhe taw. Thls OOc:ument wu produced by AlA_.., 3110:43:17 on~ under Order
  No.1000156203_1
  llaerNotes:     -           ""Pi'eo ... 2/15/2006, and .. not fori"C!$3e.                            SCAN NE D                               {12094700)



                                                                                                               SEP 22 2007


                                                                                                                                                ESG001469
§ 2.6.1.8 Intcrpretatioos and decisions of the Archi.rect shall be consistent with the intent of and reasonably inferable
from the Conln!ct Documents and shall be in writing or in the form of dcawings. When making such intelprelations
and initial decisions, the Archib:ct sba1l endeavor to scciue faithful perfunnance by both Owner and ColllraCtDr,
shall not  show partiality to eitba-. and shall not be liable for the results ofintcxpretatioos or decisions so reoden:d in
goodfidth.

§ 2.6.1.91be Architect sball render initial decisions on claims. disputes or otba- matters in question between the
Owner and Conlnetor as providOO in the Conln!ct Documents. However, the Architect's decisions on matters
relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract DocumcniS.

§ 2.6.2 EVALUATIONS OF THE WORK
§ Z.&.2.11be Architect. ns a rcpresentstive of the Owner, shall visit the site at intc.rvals appropriate to the stage of the
Contractor's operations, o.r as otherwise agreed by the Owner and the Archib:ct in Article 2.8, (1) to become
gene.raily familiar with and to keep the Owner informed about the progress and quality of the portion of the Work
completed, (2) to eodeavor to guard the Owner against defects and deficiencies in the Wod:. and (3) to detecmioe in
general if theWod:: is being performed in a Ill3XlDeC indicating that the W od:, wben fully completed. will be in
acco.rdance with the Contract Documcn1S. However, the Archib:ct shall not be required to make exhaustive or
continnous on-site iuspectioos to check the quality or qnaillity of the Work. The Architect shall neither have control
over oc charge of; nor be responsible for, the construction means, methods, techniques, sequences o.r procedures. or
for safety precautions and programs in connection with the Worlc. since these are solely tbe Conl1:actor's rights and
responsibilities under the Cont.ract Documents.

§.2.6.2.21be Archib:ct shall report to the Owne.r known deviations from the Cootract Documents and from the most
rttent constrnction schedule submitted by the Contractor. However, the Architect shall not be responsible for the
Contractor's failure~ perfunn the Work in accordance with the requirements of the Contract Documenis. The
Architect shall be respoosible foe the Architect's negligent acts or omissions, but shall not have control over or
charge of aod shall not be responsible for acts or omissions of the Contractor, Subconl:ractors, or their agents or
employees, or of any other persoos or entities performing portions of the Work.

§ 2.6.2.3 The Architect sball at all limes have access to the Worlc wherever it is in preparation or progress.

§ 2.6.2.4 Except as otberwise provided in lhls Agreement or wben direct communications have been specislly
authori:z:ed, the Owner shall endeav.or to communicate with the Contractor tbroagb tbe Architect about matters
arising out of or relating to the Contract Documents. Communications by and with the Architect's consultants shall
be lhrough the Architect.

§ 2.6.2.5 The Architect shall have authority to reject Work that does not conform to the Cootract Docwncnts.
Wbeoever the Architect considers it necessary or advisable, tbe Arcbitcct will have authority to require inspection or
testing of the Wod:: in accordance with the provisions of the CooInlet Documents, whether o~ not such Work is
fabricated, installed or completed. However, neither this authority of tbe Architect nor a decision made in good faith
eitber to exelcise or not to exercise such authority shall give rise to a duty or responsibility of the Architect ro die
Contractor. Snbconl1:actors, material and equipment suppliers, their agents or employees or other persons or entities
perlormingpo.rtionsoftheWodc.

§ 2.6.3 CliRltt;tCATION Of PA¥M9«S TO CQNJRACTQR                         cK~
§ 2.U.1 The.t.Gllli~.~lltll w.'iew au.4 ewfy llle amaunts ~ue llle GlRIIUGI9r and shall issue Cerulieetes fur
Paymeat in saeh flfBOOfiB. The ,\fehiteet' s eemlieatiea foc payment slulll eoostimte a Eef!Fesentatiea to tile Owaer,
~reet's e·flllwltiea efthe V.lerk IM!flre·liEIOO in Seetien 2.6.2end ae the data ee!B{*ising llle
Cen!Faeter's f\wlieatlee OOF Pa}<mellt; !hat the Wark has pre~d to !he paint indiaateil and that, to !he best afthe
."-m~i!t' s la:ie·,\~edge. isfe£'ffiatien aad h elief, the quality ef the Vllerk is ie. aeeeR!asee ·Nilh !he Qllilalet
Doeumeets.. The feregeing Eef!resenlt!!ieBS are ~eet (1) te &R eva!Wllien ef !he Werk fer eeafefmaooe with the
Centmet 'f)~ oomeDIS upon Substanlial GlDlflle!len, (2) te A!SI!!ts ef sahsequent tests and iiqleetiens. (3) to
ee~en efminEJ£ de•.-ieliens lfem !he Gla!met I>eeumeDIS fll'ier to OODlflletiae, MEl (4) to speeilie qualliieatieas
Gllpressell by the .\fehiteet.

§_


AlA DoWIRent 8141"'-1!197 Part2. Copyrlglll c 1917. 1926, 1948, 1951. 1953, 1958. 1961. 1963, 1968. 1967, 1970, 1974, 1977. 19117 and 1997 by The
Ametlcan Nltuleol Ard1llects. All rlgltls"""""""- WARNING: This AlA'" t>ocomontts protected by U.S..Copyrlgllll.awand lnlamatlonaiTreatlec.
llpaulhorized reproduclioo or dislrlbullon oftbb PdA" Document, orany portlonofit,mayresullln aevemciv8 andc:riminal penallles,andwlllbe            6
~lolhe""'x!Mumext..ntpo•sibleunderlhelaw. TnisciocumentwasprodocedbyAIA-.,ott0:43:17ono:il:23r.l.oosun:lerOrder
No.1000156203_1 'IVhlc:h OlqlO:es on 2115/2006, and Is rot lor resale.
Us« Noles:
                                                                                         SCANNED                                     (12094700)



                                                                                                 SEP 22 2007


                                                                                                                                      ESG001470
§ 2.&.3.2 The issuaBee efe Certifieate far Payment shall DOl be a representlliea that !he ,'\Jehiteet has (I) mede
l!llhauslive er ooalieuees 011 sile ia!;peeliees 1e eheek !be fiUality et 'f''E:tity ef lhe Wea, ~ w;ie\1<ed seestFIIeliea
- , me!heds, melmiquee; sequaaees erpreeedures; (3) re•Jie•;.'ed. 6El1'ies ef£CqUisitiens reeetved fmm
Subeentreetars aad malelial suppliers and e!her data Rlqllesled by !he 0Wfle£1u 6Bbstaatialu the Centree!er' s right te
Jl&~ eF (4) asee.mliued hew ar fer 'lloflat flllfiJ958 !he Ceatmetar lias used meney pre•;ieusly paid enaooelmt ef
!he Ceo!raet Sum.



§2.6.4SUBMITTALS
§ 2.6.4.1 The An:hittx:t :shall review and approve or take otbcr appropriate actioa upon the Conlractoc' s submittals
such as Sbop Drawings, Product Data and Samples, but only for the limited purpose of cbccking for conformance
 wilh informatioo given and lhe design concept expressed in the Coliii3Ct Documents. The Archl!ect' s action shall be
.taken wilh such =nable promptness as to cause no delay in lhe Wort or in lhe activities of the Owner, Cootrnctor
 or sepaxate conlr:lcllml, while allowing sufficient time in the Architect's professional judgment to pennit adequatc
 review. Review of such submittals is not conducted for the purpose of dc:tcnnining the accuracy and completeness of
 other details such as dimensions and quanlili.es, or for substantiating instructions fur installation or performance of
 equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract
 Documents. 1be Arclnltx:t's review shall not constitnte approval of safety precantions or, unless otherwise
 specifically stated by the Architect, of any comtruction means, methods, teclmique&, sequences or procedures. 1be
 Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a componenL

§ 2.6.4.21be Au:hitect shall maintain a record of submittals and copies of submittals supplied by the Contractor in
accordance wilh the requirements of !he Contract Documents.

§ 2.6.U If professional design services or certifications by a design professional related to systems, materials or
equipment an: specilically required of the Contractor by the Contract Documents, the Architect shall specify
appropriate performance and design crite.ria that such services must satisfy. Shop Drawings and other subrniUals
related to the Wode designed or certified by the design professional retained by the Contractor shall bear such
professional's written approval when submitted to the ArchileeL The Architect shall be entitled to rely upon the
adequacy, accuracy and completeness of the services, certifications or approval$ performed by such design
professionals.

§ 2.6.5 CHANGES IN nlE WORK
§ 2.1t5.1 The .•..reiJiteet shall prepam CllaBge Ordee I!Bd CeaS!mstion Chaage DiA!Giives fer !he Owner's appro'ial
aad -melt ia aeeardaBOe v.oi!h !he Ceemlet DeGUmeltl5. The ~h.'teet may eutl!emse miller el!aages iH !he WeEk
Bflt imoelving llB adjustmeat ia Centroot Sum er  an ell'teusiea ef the Ce!EaGt Tuae v.'hieh are eeiiSisleBt with !he
iateet af !he CeaiE!st Ilaeumeats.lffteeessacy, !he ,'\rohitsGt shall prepare; repmdooe and disaiil!ute Dfawiugs llltd
Speeifieatieft!lte deseabe ·weEk ie be ariOOd, deleted er medilied; as pro·lided ~



§ 2.6.5.2 The Au:hitect shall review properly prepared. timely requests by the OWDCI: or Contractor for changes in the
Worlc, including adjustmeots to the Contract Sum or Contract Time. A properly prepared request for a change in !he
Work: shall be accompanied by sufficieut supporting data and information to permit the Architect to make a
reasonable determination without Cll:rensive investigation or preparntion of additional drawings or specifications. If
the Architect det.ennines that n:qucsted changes in the Wod an: not materially difli:rent from the requirements of
!he Contract Documents, the Alcl!itect may issue an order for a mioor change in the Wade or recommend to the
Owner that lhe requested change be denied.

§ 2.6.5.3 If the Architect determines that implementation of the requested cba.nges would result in a material change
to the Cootr-dct !hat may cause an adjustment in the Contract Tnne or Contract Sum, the Archittx:t shall make a
recommendation to the Owner, who may authorize further investigation of such change. Upon such authorization,
and based upon infunnalion furnished by the Contractor, if any, the Archlttx:t shall estimate the additional cost and
time !hat might result from such change, including any additional costs attributable 10 a Change in Services of the
ArchitecL With the Owner's approval, the Archittx:t shall incorporate !hose estimates into a Change Order or other
appropriate documentation for the Owner's execution or negotiation with the Contractor.
AIADocumen!B141"'-19t7Part2.Copyrl;hl 01917,1926.1948,1951,1953,1958,1961,1953,1966,1967,1970, 197•• 1977,1987and1997byThe
American lnstllute of hcttieas. AI rlgltts ruorved.. WAIVBNG: This HA• eoeun-tt Is proleded by U.S. Copyright law and lnll!mallonal Treaties.   7
Unauthcrlmd roproduclion or distribution of this AlA• -~ or any po<11on of II, may""""' In se-e civil and criminal ponallles, and will be
prosocuted to lhe maximum- posol>le under !he law. This document woo produced by A!Asoftwareatl0:43:17on03'2:112005under0rdor
~~:::oo-1\0dichexpir... on211512006.andlsnotlor.-.                                    SCANNED                                    (12094700}



                                                                                              SEP 22 2007


                                                                                                                                  ESG001471
 § 2.6..5.4 .The Arcbiteet shall maintain recocds relative to changes in tbe Wort.



  .§ U.& PR.OJEa COMPle:IQN
   § Ui,U The A a::rureGt sball Gondl:lilt iaspeecieos to deteanis.e !he date ar dates of Sllbstantial CempiGCiea and !he
   liale ef fiBal OO!Bflleliell; shall reeehe frem !he Ceatrnster mul fefWllRI te !he Owner, fee ~ Owue£'s re.-iew and
   ~written waffeeties ftfld re1ateEI deeuments ~by !he Ceetmet 9eell!Jiell!5 aad essemhled by !he
. (::eBk'lllltOF, aad shall i-95.iiil a ·filial. Cemfieaie fer~ymeml!ased upea a fiaal iml{lesliea iadiGa!ing !he WeEk
   eemplies with llle reqHirements of !he C e - D e s - .

 § 2~&.2 The ··~st,.s jiispesliea shall be seadueled wit!llhe Ovmer' s 9esigoated Repfeselllali'le te Ghesk
 eeefenaande aflheW.erk with !he requiremeal5 eflhe Cemraet 9eeumelll5 and 1e ·!eflf,y !he llE!E!tffli£Y aad
 t<emplete~ess ef~jiilj:~bmilted by !he CeiiiHietOF efWerk 1e be eampletOO o£ ooFreeteel.
                               ·::·.·   ·..
 § Ui.U Wh~ ~- ~ ~- fe.l#id 1e he seeslelltially eemplete; !he Areiliteet sllall iftfean !he O·waer a&eutlhe
 balau~ .of !he ~~- ~um·f!imaioiag 1e be paid !he Ceii!FOO!er1 iaalulliag llllj' ameUills aeededle pay tar fiaal
 ee<Bfltea~Ml ~£ ee~~\',~~~~ll_!e V.rark.
 § :i.&.GA·~ ;~ ~tWJ-:rese.,,.e frem lhe C e - and ferwarllle !he Owaen (I) eeaseat-.                           . Redact &r
 if auy, te Rldeeeea if! e£paitial release ef retainage B£ !he ma!W!g ef IH!a! payillellt aad (2) affida•tils, reeeitil5.
 releases and wai'.<e£5 eflieas B£Redac. iademaifyiag !he Owne£ against liens.

 !IR+IC!1; 2.7 FACiutYOPfAATION Si!MCI!S
 § 2.7.1 The .•d'G!Hteet sl1aii meet witb tbe Oweer 9F tbe Owaer's Desigaatell Represea~ptly-afteF
 &leStaaaal Cemptelien te £B¥iew lhe aeed fu£ faeility 9J'oomea sef'Vises.
 § 2.7:1 Upea re<{l!es£ ef tbe OWDer, an<! pHS£ te !he ellpirnliea ef ene year fulm tbe Elate ef Sullstantial Cempleli911;
.tile •\£eiliteet sl!alh~'!Biluet a meeling witb !he O·:JUeF ond !he Owner's Desigaeted Reflresentati\•e le f!Wie'v tbe
       · · ..     ·                                      ppropriate reeammel!da!iens 1e !he Owner.

 ARTIClE2.8 SCH~ OF SERVICES
 § 2.8.1 Design and Contr.act Administration Services beyond the following limits shall be provided by the Architect
 as a Change in Services in accordance with Section 1.3.3:
         .1               to
               up Qm ( 1 ) reviews of each Shop Drawing. Product Data item. sample and similar submittal of

             .2      ::   t~l )S{j';-to*           site by the Architect over the duration of the Project during
                     construction. · C)~~
             .3      up to Zero ( Q ) inspectionsfor any poltion of the Wort to detennine whether such portion of the_ A:- \\ ~
                     Wort is substantially complete in accordance with the requirements of the Conlraet Documents.   0'' ~
             .4      up to ~ ( Q ) inspections for any portion of the Wort to determine final completion. 0            ~              k,\
 § 2.8.2 The followiJJg Design and Conb:act Administration Services shall be provided by the Architect as a Change
 in.Service;s.in accordance with Section 1.3.3:
          .1 · rev_iew·of a Contractor"s submittal oot of sequence from tbe submittal schedule agreed to by tbe
                      Arcliitect;
             .2       responses to the ContractOr's requests for information whece soch information is available the
                      Contractor from a carclul swdy and comparison of the Conb:act Documents, field conditions, other
                                                                                                                                to
                      Owna-provided informatiou, Contractor-prepared coordination drawings. or prior Project
                    . correspondence or documentation;
             .3       Change Orders and Constroction Change Directives requiring evaluation of proposals, including the
                      pn:paratioo or IX\'isioo of Instruments of Service;
             .4       providing consultation conceming replacement of Wort resulting from fue or other cause during
                      construction;
             .5      evalnatioo of an extensive nllinber of claims submitted by the Owner's consultants, tbe Conlraetor or
                     others in connection with the Wort;

 AlA l:loculnent 8141"' -1997 Part2. Ccpyright 0 1917, 1926, 1948. 1951, 1953, 195l!, 1961, 1963, 1966, 1967, 1970, 1974, 1977, 19!Jl' and 1997 by The
 American lns1ltute of Arc!ICieds. AI lights reseM!d. WARNING: This IUA• Document is pn>leCCed by U.S. Copyrlgllt Law and lntematlonal Treaties.
 Unaulh<rizednoproducllonordlslributlonottblsiUA9 Doalmen~ or aoy portion ot II. may r.-ln _,civil and criminal penallies,andwlllbe                      8
 prosecutediolhemaximunlexient~le under tho law. This document IIIIlS p!'C)C>Jced by AIAooltwanl at 10:-43:17 on0312312005urde< Order
 No.100015S2ll3_1 o.l1ictl ell:(llres on 21151:1006, and io not lot rnoale.
 OserN01eS:
                                                                                             SCANNED                                      (12094700)




                                                                                                     SEP 22 2007


                                                                                                                                          ESG001472
                  .6        evaluation of subslitutions proposed by tbc Owner's ronsultants or contractors and making
                            subsequent revisions to Instruments of Service resulting tbcrefrom;
              ·..r          preparation of design and documentation for alternate bid or proposal reqDe$ts proposed by the
                            Owner; or
                  .8        Contract Admini.stration Services provided 60 days after the date of Substantial Completion of the
                            Worlt.

    § 2.8.3 The Aichitcct shall funUsb or provide tbc following services ouly if specifically designated:

             Servic:es                                                    Respon&ibility              location of Servio& Description
                                                                          (Architect, Owner or
                                                                          Not Provided)
                                   ..
             .1· ·····
                                         --
                                        ...•

I            .2
             .3
                             land Survey SeMces
                             Geolechnical Se!vices
                                                                          --Q
                                                                          ---Q
                                                                          ---Q


I            .4
             .5
                       ..    Space SchematicsiFiow Diagrams
                             Exising Fa::ililies Surveys
                                                                          -NP
                                                                          --l:re

I            .&
             .7
             .8
                             Ec:onomC Feasllilily stulies
                             Sill AnaMis and Seledioo
                             EnWa1memal Studies and~
                                                                          I~
                                                                          --NP
                                                                          ---Q
             .9              0\!ner-Supplied Data Coordlnatioo            ---Q
             .10             Sd!edule              and Monitoring         ---Q
             .11             CiviOesign                                   ---Q



I            .12             l.........,._n.,..;,                         ---Q
            .13              lmeOOr Design                                ---0
            .14              Special BWn!l (X'                            ---Q
I           .15              v~ Analy:sjs                                 ---Q
            .1&               Detailed Cost Es1inafina                    ---Q
             .17            . OlrSile l'l'oject                           ---Q
          .. .18            . .construclion                          ..   ---Q
                                                           ..
                             StaikJp.Asslstane&•:·;· ·:·. ...
             .19                                                          ---Q
             .28 .·.. Reoonl Orawirl!r.\'           -- -··. -. ·          --NP
             .21             Post-Contract Evaklalion                     --NP
             .22'            Tenat-Rela!ed Services                       --NP
             .23                                                .,
             :24                          -··       ..
             .25' .

    Description of Secvi~;: . . .
    (~rt descriptions of the seniil:.es·duigno.ted.)




    ARTIClE 2.9 MODIFICATIONS
    §2.9.1 Modifications to this Standard Fonn of Architect's Services: ~ign and Contract Administration. if any, are
    as follows:




     .AlA Docmnent 8141,.-19!17 Part 2. Copyright c 1917, 1926, 1948. 1951, 1953, 1958, 1961, 1963, 1966, 1967, 1970, 11174, 11177, 11187 and 1997 by Too
    AmerlcanlnstituleoiAn:hltecls. Allllghts-. WARNlNG:ThlsAIA•Doeumentts~byU.S.C<>pyrigbtlawandrntomatlonoiT-.
     Unauthorized repn>duetion or diStribution of lhisAIA• Documenl.,or any p<><tlon oflt, may JeSUit in ..,_.,cMI and criminal,..-,., and will be          9
     proseeuled II> the maximum •xtent --under the law. This documeot"""' prodlK:Udby AJAsoltwam at 10:43:17 on 0312312005 unde<Ortlet
     No.10001562ll3_1 whlctt ""'*""on 2/15/2006, and is no11or .,..._
    ·U....-
                                                                                              SCAr\iNFD                                       (12094700)




                                                                                                       SEP 22 2007


                                                                                                                                             ESG001473
By its execution, Ibis Standard Form of Architect•s Services: Design and Contract Administration and nxxlif!C31:ions
hereto arc iococpocated ioto the Standard Form of Agreement Between the Owner and An:hitect, AIA Document




                                                                               (Printed name and title)




AlA 0t>cu1nent 8141"' -1991 Port2. Copyrlg!>t 0 1917, 1926, 1948, 1951, 1953, 1958, 1961, 1963, 1960, 1957, 1970, 1974, 1977, 1987 ond 1997 by Tho
Amecieon mtl1ule of Altllitticto. All rights~ WARNING! This-· Doeutru!nt Is proll>dod by U.S. COpyright Law OJ\4 I~ T . - _
Unaulhortted ~c!lon cuistrlbulloo <>ttllls A!A• Document...- any portion ot it, may result In """ern civil and crirtrin:ll penal~
pro3eCU!edtotbe.-lmum """"''r>OS5lble unde<tbe taw. Tiisdocuman!IOaSproduced by AIAzollwa:e al10:43:17ono:.Y2312005undera.det
                                                                                                                                     :>nd-    be
                                                                                                                                                     10

No.1000156203_1 wtlich expires"" 2115'2006. and is not for resale.

-~                                                                                            SCANNEDP~
                                                                                                     SEP 22 2007


                                                                                                                                       ESG001474
                                                         - EXHIBIT "A" -                                      IIJI
                                                                         elness swenson graham archi[ects i n c . -




                    November 12, 2004
                    Revisedjanuary 21, 2005

                    Mr. Trent Sarber
                    White lodging Services Corporation
                    1000 East 80th Place
                    Suite SOO North
                    Merrillville, IN 46410

                    RE:      Courtyard by Marriott
                             Austin, Texas


                    Dear Trent,.
                    Thank you for the opportunity to present this proposal for professional
                    Archil:ectural services for the Courtyard Hotel by Marriott in Austin,. Texas. Jim
                    Timm has created a sketch of the current approved site plan showing the
                    Courtyard Hotel superimposed so we can see that the only real change required to
                    the Site Piau is the patio in the courtyard. The entrances, port cochere canopy,
                    service bay, parking and driveway areas all stay the same.

                                                         • Scope of Work •
                     Einess Swenson Graham Architects, Inc. (ESG) will provide overall Architecture,
                     Civil and Structural Engineering design, document preparation and coordination
                    .for the Courtyard Hotel building for White Lodging Services (WIS). Our Stiuctural
                     Engineering firm is Marlin Bridges Associates, Inc. MechanicaL Electrical and
                     Plumbing Engineering will be provided by Lindsey Engineers, Inc. who are located
                     in Austin, Texas.
                     Our proposal is based on utilizing the prototypical Courtyard Hotel as built in
                                                  ESG anticipates the following schedule for delivery of
                                   d chi   .    th     tructi       .t.

                         HlorkPhases~-~- · · ·%Set
                                              tr.Set
                          Length of                                                                    eekS
                             Time                                                                     days)
                          Cumulative           1 weeks         4weeks            7weeks            10Weeks
                           Probable ·           Jan24           Jan31             Feb21             Marl4
                            Dates              -Jan28          -Feb 18           -Marll             -Aprl


                                                                                                SCANNED
                     1
                     Based on S worlcing days per weel:.                                              NOV   07   2007
jsoowashington avenue south· suite 1080 ·minneapolis, mn 55415 · p: 612.339.5508 · f: 612.339.5382 · www.esgarchitects.com   I


                                                                                                             ESG001703
Trent Barber
White lodging Services Corp.
january 21, 2005
Page 2 of4



This sdtedule offers the opportunity of meeting WIS s goal of receiving the building
permit April 15th with start of construction as soon after that as possible.
This schedule does not offer the opportunity to fast-track the documents and
submittals - there is simply not enough time for ESG to complete the change over of
the documents from the              p~ject to work at the Austin ~ite any faster than
this indicates.
                                 • Assumptions •
We based our fee proposal on the following assumptions about the site conditions,
the constitution and roles for the Design Team. the Owner, the General Contractor
and other Consultants.
1. CiviL Landscape Architecture and Interior Design services are not a part of this
   proposal E.SG can provide any of these design services as needed. ESG will
   coordinate the work of these or any of your other consultants.
2. PSG will make adjustments to the            Courtyard fit wiihin the existing
   site plan thC;\t will accommodate a re-application for Planning and Zoning
   approvaL
                                                                         •
3. The existing report by your Geotechnical Engineer is adequate and current
   enough for this new project and their recommendations for foundation design
   still hold true. WLS will initiate an update to this report - which will be
   prepared and submitted in a timely manner for the design process.
4. ESG will use the current prototypical CAD drawing files for the Courtyard
   Hotel just completed in
5. ·The structural system will NOT match the prototypical design as documented in
    the drawings provided from Marriott Corporation. You are contemplating a
    light gage steel framing system as documented in the          project.
 6. Identifying and satisfying the requirements of the local planning department as
    to site layout and approvals will be by others. "ESG will provide one set of
    building plan and elevation exhibits depicting extent and appearance of the
    project for planning submittals. ESG will incorporate the requirements for
    building massing, exterior materials and amenities as communicated by you or
    your consultants.
 7. Any changes to the documents after completion of the Schematic Design may
    result in a revision to our schedule and compensation.
 8. Other than planning subri:tittal documents, ESG will not create any special
    drawings or exl:ubits. Additional documents or other work efforts required after
    planning submittals or for further governmental agency review will be



 R."\205302\Do<::s\Whlt•Austin 050121 Pr.doc
                                                                      SCANNED
                                                                           NOV 07 2007



                                                                                  ESG001704
Trent Barber
White lodging Services Corp.
january 21,2005
Page 3 of4



    identified immediately upon acceptance of this proposal and may result in a
    revision to our schedule and compensation.
9. · WI.S will select a highly qualified General Contractor who will provide and be
     responsible for all cost estimating and construction coordination services during
    bidding and construction.
10. The cost of reproduction of construction drawings and specifications will be
    borne by WLS or the Contractor. ESG will provide periodic check sets for WLS'
    review, at the 30%, 60% and 90"/o incremental Marriott Corporation reviews and
    for the consultant's use. Additional print sets will be supplied at cost as a
    reimbursable expense.
11. Site visits by the design team will be provided on an hourly basis as requested
    by WL5 or Regulator] Agencies having jurisdiction on the project See attached
    schedule of hourly rates.
12. Upon your acceptance of this proposal,. ESG will put together an experienced
    team of Architects and support staff to execute this project and will keep the
    team together as long as there are no delays in the progress of the work for the
    design and document preparation phases.


                                             • Compensation •
The following breakdown indicates the extent of the design fees for this project



Architecture                     10,800         18,000    28,800    14_400     72,000
MEPEng.                            3,750         4,550     7,200        0      15,500
Struct. Eng..                      b:?.QQ.       3,750    15,000     ~         25,000
Total Fees                       17,050         26,300    51,000    18,150   $112,500

                                        • Reimbursable Expenses •
 We will bill reimbursable expenses at direct cost. We don't anticipate any visits for
 ihe Design Team will be required for this project The following is an estimate of our
 reimbursable expeil!>CS:
     • Reproduction of documents (G.C. does bid set printing)                    $6,500
     • Express maiL mail, deliveries                                             $3,000
     • Photography, miscellaneous                                             +$2,000
        Total Estimated Reimbursables                                          $11,500
 We anticipate that each trip to the job site by ESG' s design team members would cost
 about $1,200. Any changes in the project schedule or our scope of services will be
 performed with your authorization_ either verbally or in writing. We will perform

 lt:\205302\0ocs\Whtte Au"ln 050121 Pr.doc                                   SCANNED
                                                                              NOV 07 2007



                                                                                    ESG001705
Trent Barber
White Lodging Services Corp.
January 21, 2005
Page4 of4



sud:t services on an hourly basis at our current compensation rates or revise our
schedule and contract fee.
If you have any questions, concerns, or comments please caii PauL If this proposal
meets with your approval, we will execute an AlA B141 -Owner Ardritect agreement
and get starf:ed immediately.

Sincerely,
Elnes Swenson Graham Architects Inc.




Enc.
cc:      Mark Swenson
         Pam Stenzel
         JimTimm
         File: 205302.00 -15.1




                                                                      SCANNED
 R:\20S302\Docs\'MllteAustin 050121 Pr.doc
                                                                           NOV 07 2UU7




                                                                               ESG001706
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                                                                                                                                                             ESG001732
E~r­

~-=-




       ESG001733
                          .'----


                                                                             elness swenson graham architects Inc.




                                                         EXHIBIT"C'

                                        Elness Swenson Graham Architects Inc.
                                         ElECTRONIC MEDIA RELEASE - CLIENT
             This release for electronic media is dated as of the 1st day of January, 2005, between White
             Lodging Services, Inc. ("Client") and Elness Swenson Graham Architects, Inc. (ESG).
             It is understood that the Client has requested ESG to supply the Client with electronic media
             (disks, tapes, optical disk, etc.) containing information on the Courtyard Hotel by Marriott in
             Austin. Texas ("Project") for use by the Client or the Client's agents, representatives of
             consultants as the Client deems appropriate. ESG desires to accommodate Oienl's request,.
             therefore, in consideration of the release of the materials, and according to the terms of the
             Agreement between ESG and the Client, Client and ESG agree as follows:
             1. The electronic files provided to Client by ESG for the Project are limited to floor plans
                and reflected ceiling plans only.
             2   The electronic .files may be used by Client solely for use on the Project or for the
                 maintenance of the Project If the Client chooses to use or alter in any way, in whole or
                 in part,. the electronic files provided for the Project, the Client agrees to indemnify FSG
                 and hold ESG harmless from all claims, injuries, losses, damages, costs and expenses
                 (including without limitation, attorneys' fees) arising out of such alteration or use.
             3. Because information and data provided electronically may be altered, whether
                inadvertently or otherwise, ESG reserves the right to retain copies of the electronic file(s)
                and to remove from the electronic files provided to Client,. all identification (such as
                logo, surveyor's seal, engineer's certifications, etc.) reflecting the involvement of ESG in
                the preparation of the electronic ffies.
             4. The electronic files are provided solely as a convenience to Client by ESG and shall NOT
                 be considered "Drawings of Record," "Contract Documents" or "Construction
                 Documents" as defined in the Agreement.. All documents considered "Drawings of
                 Record," "Contract Documents" or "Construction Documents" shall be hard copies and
                 shall be accompanied by the Design Professionafs stamp and signature. The hard copy
                 shall be referred to as the "Contract Documents" and shall govern in the event of any
                 inconsistency between the hard copy and the electronic files.
             5. The Client is advised to check all electronic media for computer viruses befc>re loading
                the ffies. The Client is fully responsible for intercepting and disabling viruses, if any,
                that may be inadvertently transmitted with the electronic files. The Client hereby agrees
                to indemnify and hold ESG, and its Consultants, harmless from and against all claims of
                any type or nature asserted by Oient or any lhird party as a result of viruses
                inadvertently transmitted with the electronic media.
                                                                                               SCANNED
                                                                                                     SEP 22 2007
I500 washington avenue south· suite 1080 ·minneapolis, mn 55415 • p: 612.339.5508 · f: 612.339.5382 • www.esgarchitects.com I


                                                                                                              ESG001475
        Electronic ~ia Release - Client
I   •
        Page 2 of2




        6. Files distributed electronically are subject to data erosion,. erasure and)or alteration, and
           computer systems and software become obsolete in time. By accepting these electronic
           files, Client acknowledges these risks and agrees to waive all claims against ESG should
           data erosion, erasure and)or alteration of these electronic files occur.
        7. Issuance of this information in no way relieves lhe Client of any contractual
            requirements of independent shop drawing preparation and submittal
        8. 1bis release in no way construes an agreement to allow distribution of this data to any




        mn.
           other individual,. agency or entity, either for this project or at any future date. The Client
           is expressly forbidden to distribute this data without lhe express written consent of ESG.

                 ,sw~---                                           Client    ~~
        Stgned:     ~                                              Stgned:.._-+t+="·-r--~-~..- - - . - - - - -
        Printed Name: Paul Mittendorff. AIA                        Printed Name:            f i?i:Oqu.
        Title:         Vice President              Date:l!l/2005   Title:   ~"5; MA ~        Date:   ft ~[:?o/o.:s-




                                                                                         SCANNED
        R:\ZOS30Z\Docs\Ekctronk Aelease fomJ Oient.doc
                                                                                               SEP 22 2007



                                                                                                        ESG001476
                                                          EXHIBIT.D"

                                        Elness Swenson Graham Architects Inc.
                                     ELECTRONIC MEDIA RELEASE - CONTRACTOR
             This release for electronic media is dated as of the __ day of between
             _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _("Contractor") and Elness Swenson Graham
             Architects, Inc. (ESG).
             It is understood that the Contractor has requested FSG to supply the Contractor with
             electronic media (disks, tapes, optical disk, etc.) containing information on the Courtyard
             Hotel by Marriott in Austin, Texas ("Project") for use by the Contractor as the Contractor
             deems appropriate. FSG desires to accommodate Contractor's request, therefore, in
             consideration of the release of the materials, Contractor and ESG agree as follows:
             1. FSG will release the electronic files to the Contractor upon payment of $,200 to FSG.
             2. The electronic files provided to Contractor by EiSG for the Project are limited to floor
                plans and reflected ceiling plans only.
             3. The electronic files may be used by Contractor solely for use on the Project.
             4. If the Contractor chooses to use or alter in any way, in whole or in part, the electronic
                files provided for the Project, the Contractor agrees to indemnify ESG and hold ESG
                harml~ from all claims, injuries, Losses, damages, costs and .expenses (including
                without limitation, attorneys' fees) arising out of such alteration or use.
             5. Because information and data provided electronically may be altered, whether
                 inadvertently or otherwise, ESG reserves the right to retain copies of the electronic file(s)
                ·and to remove from the electronic files provided to Contractor, all identification (such as
                ·togo, surveyor's seal, engineer's certifications, etc.) reflecting the involvement of FSG in
                 the preparation of the electronic files.
              6. The electronic files are provided solely as a convenience to Contractor by ESG and shall
                 NOT be considered uDrawings of Record," "Contract Documents" or "Construction
                 Documents" as defined in the Agreement. All documents considered "Drawings of
                 Record," "Contract Documents" or "Construction Documents" shall be hard copies and
                 shall be accompanied by the Design Professional's stamp and signature. The hard copy
                 shall be referred to as the "Contract Documents" and shall govern in the event of any
                 inConsistency between the hard copy and the electronic files.
              7. The Contractor is advised to check all electronic media for computer viruses before
                 loading the files. The Contractor is fuUy responsible for intercepting and disabling
                 viruses, if any, that may be inadvertently transmitted with the electronic files. The
                 Contractor hereby agrees to indemnify and hold FSG, and its Consultants, harmless
                  from and against all claims of any type or nature asserted by Con~l:!'A1\J~1::                      D
1500 washington avenue south • suite 1080 • minneapolis, mn 55415 • p: 612.339.5508 • f: 612.339.5382 •   ~.RJak~Rlcts.com I



                                                                                                               ESG001709
Electronic Media Release - Contractor
Page 2 of 2




    party as a result of viruses inadvertently transmitted with the electronic media.
8. Files distributed electronically are subject to data erosion, erasure and/or alteration, and
   computer systems and software become obsolete in time. By accepting these electronic
   files, Contractor acknowledges these risks and agrees to waive all claims against ESG
   should data erosion, erasure and/or alteration of these electronic files occur.
9. Issuance of this information in no way relieves the Contractor of any contractual
   requirements of independent shop drawing preparation and submittal
10. This release and associated fee payment in no way construes an agreement to allow
    distribution of this data to any other individual, agency or entity, either for this project
    or at any future date. The Contractor is expressly forbidden to distribute this data

m=.~:fK<G.                                                 eonua-
Segned:       ~                                            Signed:_ _ _ _ _ _ _ _ _ __
Printed Name: Paul Mittendorf£, AlA                        Printed Name: _ _ _ _ _ _ _ __
Title:         Vice President              Date:l/1/2005   Title: _ _ _ _ _ _ _Date: _ _ __




                                                                               SCANNED
R:\205302\Dots\a.ctronlc Rel..se Form Contnctor.doc
                                                                                     NOV 07 2007



                                                                                          ESG001710
                             "EXHIBITE"


     ELNESS SWENSON GRAHAM ARCffiTECTS, INC.

                        Schedule of Hourly Rates



       CLASSIFICATION                       HOURLY RATE

       Principal                                   $165.00

       Vice President                              $125.00

       Senior Associate                            $110.00

       Associate                                   $ 95.00

       Senior Consultant                           $80.00

       Consultant II                               $ 75.00

       Consultant I                                $ 65.00

       StaffLevel V                                $ 75.00

       Staff Level IV                              $ 60.00

       Staff Level III                             $ 55.00

       Staff Level II                              $ 50.00

       Staff Level I                               $ 40.00



"
,:
                                                             10/2004




                                                              SCANNED
                                                                       NOV 07 2007




                                                                            ESG001711
~·




                                                                                                                                               1997 Edition - Electronic Format

                                                                                                                                                                                                 AlA Document A201 - 1997

      General Conditions of the Contract for Construction
      TABLE OF ARTICLES

                 1. GENERAL PROVISIONS
                                                                                                                                                                                                                                                                          THIS DOCUMENT HAS IMPORTANT
                 2.          OWNER                                                                                                                                                                                                                                        LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                                          CONSULTATION WITH AN
                                                                                                                                                                                                                                                                          ATTORNEY IS ENCOURAGED WITH
                 3.          CONTRACTOR                                                                                                                                                                                                                                   RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                                          MODIFICATION. AUTHENTICATION
                 4. ADMINISTRATION OF THE CONTRACT                                                                                                                                                                                                                        OF THIS ELECTRON/CALLY
                                                                                                                                                                                                                                                                          DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                                          MADE BY USING AlA DOCUMENT
                 5. SUBCONTRACTORS                                                                                                                                                                                                                                        D401.

                 6. CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS                                                                                                                                                                                                      This document has been approved and
                                                                                                                                                                                                                                                                          endorsed by The Associated General
                                                                                                                                                                                                                                                                          Contractors of America
                 7.          CHANGES IN THE WORK

                 8. TIME

                 9.          PAYMENTS AND COMPLETION

                 10. PROTECTION OF PERSONS AND PROPERTY

                 11 ,Redacted

                 12. UNCOVERING AND CORRECTION OF WORK

                 13. MISCELLANEOUS PROVISIONS

                 14. TERMINATION OR SUSPENSION OF THE CONTRACT



     INDEX                                                                                                                                    4.2.3, 10
     Acceptance of Nonconforming Work                                                                                                    Acts and Omissions
         9.6.6, 9.9.3, 12.3                                                                                                                  3.2, 3.3.2, 3.12.8, 3.18, 4.2.3, 4.3.8, 4.4.1,
     Acceptance of Work                                                                                                                      8.3.1, 9.5.1, 10.2.5, 13.4.2, 13.7, 14.1
         9.6.6, 9.8.2, 9.9.3, 9.10.1, 9.10.3, 12.3                                                                                       Addenda
     Access to Work                                                                                                                           1.1.1, 3.11
         3.16, 6.2.1, 12.1                                                                                                               Additional Costs, Oaims for
     Accident Prevention                                                                                                                      4.3.4, 4.3.5, 4.3.6, 6.1.1, 10.3
                                                                                                                                                                                                                                                                          01997 AlA®
     -:;;©:-:C::-o-py-n:-.g;-:ht-::1-:::9""11:-,-:19""1:-::5:-,~19:-:1""8,-1""9'='25::-,....,1""93""7:-,""19::-::5:-:-1,-1""9'='ss=-,""'1'='96""'1-,""'19=-=63-=-,-1:-.:9""66=-,""'1..,..96""7,...,""'19""7""0,""1'""9=76,....,..,.19""'8"'7,...,1.,..,9,..,.9=7.,..by-   AlA DOCUMENT A201 • 1997
      The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                         GENERAL CONDITIONS OF THE
      quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                  CONTRACT FOR CONSTRUCTION
      and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                 .       .            .
      laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                             The Amencan lnstttute of Archttects
      permission of the AlA and can. be reproduced in accordance with your license without violation until the date of                                                                                                                                                    1735 ~ew York Avenue, N.W.
      expiration as noted below.                                         ·                                                                                                                                                                                                Washmgton, D.C. 20006-5292
      This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
       Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                   1
 Additional Inspections and Testing                           4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4,
      9.8.3, 12.2.1, 13.5                                     4.4.1, 4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8,
 Additional Time, Claims for                                  8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1,
     4.3.4, 4.3.7, 8.3.2                                      13.5.2, 14.2.2, 14.2.4
 ADMINISTRATION OF THE CONTRACT                         Architect's Inspections
      3.1.3, 4, 9.4, 9.5                                       4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.8.3, 9.9.2,
 Advertisement or Invitation to Bid                           9.10.1, 13.5
      1.1.1                                             Architect's Instructions
 Aesthetic Effect                                              3.2.3, 3.3.1, 4.2.6, 4.2.7, 4.2.8, 7.4.1, 12.1,
     4.2.13, 4.5.1                                            13.5.2
 Allowances                                             Architect's Interpretations
       3.8                                                     4.2.11, 4.2.12, 4.3.6
Redacted                                                Architect's Project Representative
                                                                                                                                                                                                                                                                                                        THIS DOCUMENT HAS IMPORTANT
       11.4.1.1                                                4.2.10                                                                                                                                                                                                                                   LEGAL CONSEQUENCES.
Applications for Payment                                Architect's Relationship with Contractor                                                                                                                                                                                                        CONSULTATION WITH AN
      4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1,       1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1,                                                                                                                                                                                            ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                                        RESPECT TO ITS COMPLETION OR
      9.8.5, 9.10, 11.1.3, 14.2.4, 14.4.3                     3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16,
                                                                                                                                                                                                                                                                                                        MOD/FICA TION. AUTHENTICATION
Approvals                                                     3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7,                                                                                                                                                                                             OF THIS ELECTRONICALLY
       2.4, 3.1.3, 3.5, 3.10.2, 3.12, 4.2.7, 9.3.2,           5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7,                                                                                                                                                                                            DRAFTED AlA DOCUMENT MAY BE
      13.4.2, 13.5                                            9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12,                                                                                                                                                                                                 MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                                        0401.
Arbitration                                                   13.4.2, 13.5
       4.3.3, 4.4, 4.5.1, 4.5.2, 4.6, 8.3.1, 9.7.1,     Architect's Relationship with Subcontractors                                                                                                                                                                                                    This document has been approved and
      11.4.9, 11.4.10                                          1.1.2, 4.2.3, 4.2.4, 4.2.6, 9.6.3, 9.6.4,                                                                                                                                                                                                endorsed by The Associated General
Architect                                                     11.4.7                                                                                                                                                                                                                                    Contractors of America.
       4.1                                              Architect's Representations
Architect, Definition of                                       9.4.2, 9.5.1, 9.10.1
       4.1.1                                            Architect's Site Visits
Architect, Extent of Authority                                 4.2.2, 4.2.5, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2,
       2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2,         9.10.1, 13.5
      7.3.6, 7.4, 9.2, 9.3.1, 9.4, 9.5, 9.8.3, 9.10.1, Asbestos
      9.10.3, 12.1, 12.2.1, 13.5.1, 13.5.2, 14.2.2,            10.3.1
      14.2.4                                            Attorneys' Fees
Architect, Limitations of Authority and                        3.18.1, 9.10.2, 10.3.3
Responsibility                                          A ward of Separate Contracts
       2.1.1, 3.3.3, 3.12.4, 3.12.8, 3.12.10, 4.1.2,           6.1.1, 6.1.2
      4.2.1, 4.2.2, 4.2.3, 4.2.6, 4.2.7, 4.2.10,        A ward of Subcontracts and Other Contracts for
     4.2.12, 4.2.13, 4.4, 5.2.1, 7.4, 9.4.2, 9.6.4,     Portions of the Work
      9.6.6                                                    5.2
Architect's Additional Services and Expenses            Basic Definitions
       2.4, 11.4.1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4           1.1
Architect's Administration of the Contract              Bidding Requirements
      3.1.3, 4.2, 4.3.4, 4.4, 9.4, 9.5                         1.1.1, 1.1.7, 5.2.1, 11.5.1
Architect's Approvals                                   Redacted

      2.4, 3.1.3, 3.5.1, 3.10.2, 4.2.7                         11.4.2
Architect's Authority to Reject Work                    Redacted

      3.5.1, 4.2.6, 12.1.2, 12.2.1                             9.10.2
Architect's Copyright                                   Redacted

       1.6                                                     7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5
Architect's Decisions                                   Building Permit
                                                                                                                                                                                                                                                                                                        @1997 AlA®
-;;©'"C;::;-o::p::-:y:rrig::;:h7t ~19;;::1;:;1-,-:;-:19::-::1~5-,1:;;9:-;1-:::-8,-:1;-:;9::::-25::-,-::1-::::93~7:;-,-::-1""95::-::1-,-:;-:19::-;:5::::8-,:-::19:-::6c::-1,-1:-::9::::63"",-:1;-:;9-:::-66:::-,-::1-::::96~7:;-,-::-1~97::::0:-,'""19:::::7::::6-,1:-::9::-::8""7,-1'""9"'"97:::-:-by   AlA DOCUMENT A201 -1997
 The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                                             GENERAL CONDITIONS OF THE
  quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                                    CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                                   .       .          .
  laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                               The Amencan lnsttMe of Archttects
  permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                                       1735 ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                                                            Washmgton, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                               2
      3.7.1                                                 11.1, ll.4.1, 11.4.6, 11.5.1
 Capitalization                                         Commencement of the Work, Definition of
      1.3                                                    8.1.2
 Certificate of Substantial Completion                  Communications Facilitating Contract
      9.8.3, 9.8.4, 9.8.5                               Administration
 Certificates for Payment                                    3.9.1, 4.2.4
     4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6,       Completion, Conditions Relating to
     9.7.1, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4           1.6.1, 3.4.1, 3.11, 3.15, 4.2.2, 4.2.9, 8.2,
 Certificates oflnspection, Testing or Approval             9.4.2, 9.8, 9.9.1, 9.10, 12.2, 13.7, 14.1.2
      13.5.4                                            COMPLETION, PAYMENT~ AND
Redacted                                                     9
       9.10.2, 11.1.3                                   Completion, Substantial
Change Orders                                               4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1,
                                                                                                                                                      THIS DOCUMENT HAS IMPORTANT
      1.1.1, 2.4.1, 3.4.2, 3.8.2.3, 3.11.1, 3.12.8,         9.10.3, 9.10.4.2, 12.2, 13.7                                                              LEGAL CONSEQUENCES.
      4.2.8, 4.3.4, 4.3.9, 5.2.3, 7.1, 7.2, 7.3, 8.3.1, Compliance with Laws                                                                          CONSUL TAT/ON WITH AN
      9.3.1.1, 9.10.3, 11.4.1.2, 11.4.4, 11.4.9,            1.6.1, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1,                                             ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                      RESPECT TO ITS COMPLETION OR
      12.1.2                                                4.4.8, 4.6.4, 4.6.6, 9.6.4, 10.2.2, 11.1, 11.4,
                                                                                                                                                      MODIFICATION. AUTHENTICATION
Change Orders, Definition of                                13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14.1.1,                                                 OF THIS ELECTRON/CALLY
       7.2.1                                                14.2.1.3                                                                                  DRAFTED AlA DOCUMENT MAY BE
CHANGES IN THE WORK                                     Concealed or Unknown Conditions                                                               MADE BY USING AlA DOCUMENT
                                                                                                                                                      0401.
       3.11, 4.2.8, 7, 8.3.1, 9.3.1.1, 11.4.9                4.3.4, 8.3.1, 10.3
Claim, Definition of                                    Conditions of the Contract                                                                    This document has been approved and
       4.3.1                                                 1.1.1, 1.1.7, 6.1.1, 6.1.4                                                               endorsed by The Associated General
Claims and Disputes                                     Consent, Written                                                                              Contractors of America
     3.2.3, 4.3, 4.4, 4.5, 4.6, 6.1.1, 6.3, 7.3.8,          1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4,
     9.3.3, 9.10.4, 10.3.3                                  9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1,
Claims and Timely Assertion of Claims                       13.2, 13.4.2
      4.6.5                                             CONSTRUCTION BY OWNER OR BY
Claims for Additional Cost                              SEPARATE CONTRACTORS
      3.2.3, 4.3.4, 4.3.5, 4.3.6, 6.1.1, 7.3.8,              1.1.4, 6
      10.3.2                                            Construction Change Directive, Definition of
Claims for Additional Time                                   7.3.1
      3.2.3, 4.3.4, 4.3.7, 6.1.1, 8.3.2, 10.3.2         Construction Change Directives
Claims for Concealed or Unknown Conditions                   1.1.1, 3.12.8, 4.2.8, 4.3.9, 7.1, 7.3, 9.3.1.1
      4.3.4                                             Construction Schedules, Contractor's
Claims for Damages                                           1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3
      3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1,         Contingent Assignment of Subcontracts
     9.6.7, 10.3.3; 11.1.1, 11.4.5, 11.4.7, 14.1.3,          5.4, 14.2.2.2
      14.2.4                                            Continuing Contract Performance
Claims Subject to Arbitration                                4.3.3
      4.4.1, 4.5.1, 4.6.1                               Contract, Definition of
Cleaning Up                                                  1.1.2
      3.15, 6.3                                         CONTRACT, TERMINATION OR
Commencement of Statutory Limitation Period SUSPENSION OF THE
       13.7                                                 5.4.1.1, 11.4.9, 14
Commencement of the Work, Conditions                    Contract Administration
Re1atingto                                                  3.1.3, 4, 9.4, 9.5
     2.2.1, 3.2.1, 3.4.1, 3.7.1, 3.10.1, 3.12.6,        Contract Award and Execution, Conditions
     4.3.5, 5.2.1, 5.2.3, 6.2.2, 8.1.2, 8.2.2, 8.3.1, Relating to
                                                                                                                                                      ©1997 />JM)
r-©~C~o~p~yn~·g~h~t'-19~1~1-,1~9~1~5.~1~97
                                         18~,•1~92~5~.~1~93~7~,7
                                                               19~5~1-,"19~5~8-,1~00~1,~1~9~~~.•1~96~6~,7
                                                                                                        1~96~7~,7
                                                                                                                19~7~0-,~19~7~6.~1~9~8~7.~1~9~97~by   AIADOCUMENTA201-1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                           GENERAL CONDITIONS OF THE
quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                                    CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                   .        .           .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                               The Amencan Institute of Architects
pennission of the AlA and can be reproduced in accordance with'your license without violation until the date of                                       1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                            Washington, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                 3
    3.7.1, 3.10, 5.2, 6.1, 11.1.3, 11.4.6, 11.5.1                                    Performing the Work
Contract Documents, The                                                                   3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2,
    1.1, 1.2                                                                             6.3, 9.5.1, 10
Contract Documents, Copies Furnished and Use                                         Contractor's Review of Contract Documents
of                                                                                        1.5.2, 3.2, 3.7.3 .
     1.6, 2.2.5, 5.3                                                                 Contractor's Right to Stop the Work
Contract Documents, Definition of                                                         9.7
     1.1.1                                                                           Contractor's Right to Terminate the Contract
Contract Sum                                                                              4.3.10, 14.1
    3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4,                                  Contractor's Submittals
    9.1, 9.4.2, 9.5.1.4, 9.6.7, 9.7, 10.3.2,                                             3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6,
    11.4.1, 14.2.4, 14.3.2                                                               9.2, 9.3, 9.8.2, 9.8.3, 9.9.1, 9.10.2, 9.10.3,
Contract Sum, Definition of                                                              11.1.3, 11.5.2                                                                   THIS DOCUMENT HAS IMPORTANT
    9.1                                                                              Contractor's Superintendent                                                          LEGAL CONSEQUENCES.
Contract Time                                                                             3.9, 10.2.6                                                                     CONSULTATION WITH AN
    4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4,                                   Contractor's Supervision and Construction                                            ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                          RESPECT TO ITS COMPLETION OR
    8.1.1, 8.2, 8.3.1, 9.5.1, 9.7, 10.3.2, 12.1.1,                                   Procedures                                                                           MODIFICATION. AUTHENTICATION
    14.3.2                                                                               1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3,                                   OF THIS ELECTRON/CALLY
Contract Time, Definition of                                                             6.1.3, 6.2.4, 7.1.3, 7.3.4, 7.3.6, 8.2, 10, 12,                                  DRAFTED AlA DOCUMENT MAY BE
     8.1.1                                                                               14                                                                               MADE BY USING AlA DOCUMENT
                                                                                                                                                                          D401.
CONTRACTOR                                                                          Redacted

         3                                                                                11.1.1.8, 11.2, 11.3                                                            This document has been approved and
Contractor, Definition of                                                            Coordination and Correlation                                                         endorsed by The Associated General
    3.1, 6.1.2                                                                            1.2, 1.5.2, 3.3.1, 3.10, 3.12.6, 6.1.3, 6.2.1                                   Contractors of America.
Contractor's Construction Schedules                                                  Copies Furnished of Drawings and
     1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3                                   Specifications
Contractor's Employees                                                                    1.6, 2.2.5, 3.11
    3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6,                                  Copyrights
    10.2, 10.3, 11.1.1, 11.4.7, 14.1, 14.2.1.1,                                           1.6, 3.17
Redacted                                                                             Correction of Work
     11.1                                                                                 2.3, 2.4, 3.7.4, 4.2.1; 9.4.2, 9.8.2, 9.8.3,
Contractor's Relationship with Separate                                                  9.9.1, 12.1.2, 12.2, 13.7.1.3
Contractors and Owner's Forces                                                       Correlation and Intent of the Contract
    3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2,                                        Documents
    12.2.4                                                                                    1.2
Contractor's Relationship with Subcontractors                                        Cost, Definition of
    1.2.2, 3.3.2, 3.18.1, 3.18.2, 5, 9.6.2, 9.6.7,                                        7.3.6
    9.10.2, 11.4.1.2, 11.4.7, 11.4.8                                                 Costs
Contractor's Relationship with the Architect                                             2.4, 3.2.3, 3.7.4, 3.8.2, 3.15.2, 4.3, 5.4.2,
    1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1,                                       6.1.1, 6.2.3, 7.3.3.3, 7.3.6, 7.3.7, 7.3.8,
    3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16,                                         9.10.2, 10.3.2, 10.5, 11.3, 11.4, 12.1,
    3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7,                                         12.2.1, 12.2.4, 13.5, 14
    5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7,                                   Cutting and Patching
    9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12,                                             6.2.5, 3.14
    13.4.2, 13.5                                                                     Damage to Construction of Owner or Separate
Contractor's Representations                                                         Contractors
     1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3,                                          3.14.2, 6.2.4, 9.2.1.5, 10.2.1.2, 10.2.5, 10.6,
    9.8.2                                                                                11.1, 11.4, 12.2.4
Contractor's Responsibility for Those                                                Damage to the Work
-,::-.,---,....,..,.-=":-:-~c::-""""""""""""',...-,=="""'="',.....,.'='=,.....,..,.,..,.-..,.,,...,..,.-,..----,-.,.,.,-...,.,..,,..,-..,.,..,,..,.-.,.,.-=-.,...,..,.~   @1997 AIM;
©Copyright 1911, 1915,1918,1925,1937, 1951,1958, 1961,1963, 1966,1967,1970, 1976, 1987,1997 by                                                                            AlA DOCUMENT A201·1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                               GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                        CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                       .       .            .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                   The Amencan Institute of Archttects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                           1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                                                Washmgton, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                 4
      3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.6, 11.4,                                                                                                   Employees, Contractor's
     12.2.4                                                                                                                                               3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6,
 Damages, Claims for                                                                                                                                      10.2, 10.3, 11.1.1, 11.4.7, 14.1, 14.2.1.1
      3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1,                                                                                                      Equipment, Labor, Materials and
     9.6.7, 10.3.3, 11.1.1, 11.4.5, 11.4.7, 14.1.3,                                                                                                       1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12,
     14.2.4                                                                                                                                               3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6,
 Damages for Delay                                                                                                                                        9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4,
      6.1.1, 8.3.3, 9.5.1.6, 9.7, 10.3.2                                                                                                                  14.2.1.2
 Date of Commencement of the Work,                                                                                                                   Execution and Progress of the Work
 Definition of                                                                                                                                            1.1.3, 1.2.1, 1.2.2, 2.2.3, 2.2.5, 3.1, 3.3, 3.4,
      8.1.2                                                                                                                                               3.5, 3.7, 3.10, 3.12, 3.14, 4.2.2, 4.2.3, 4.3.3,
 Date of Substantial Completion, Definition of                                                                                                            6.2.2, 7.1.3, 7.3.4, 8.2, 9.5, 9.9.1, 10.2,
      8.1.3                                                                                                                                               10.3, 12.2, 14.2, 14.3
                                                                                                                                                                                                                                                                                                      THIS DOCUMENT HAS IMPORTANT
 Day, Defmition of                                                                                                                                   Extensions of Time                                                                                                                               LEGAL CONSEQUENCES.
      8.1.4                                                                                                                                              3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1,                                                                                             CONSULTATION WITH AN
 Decisions of the Architect                                                                                                                              7.3, 7.4.1, 9.5.1, 9.7.1, 10.3.2, 10.6.1,                                                                                                    ATTORNEY IS ENCOURAGED WITH
     4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4,                                                                                                                                                                                                                                                     RESPECT TO ITS COMPLETION OR
                                                                                                                                                          14.3.2
                                                                                                                                                                                                                                                                                                      MOD/FICA TION. AUTHENTICATION
     4.4.1, 4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8,                                                                                                    Failure of Payment                                                                                                                               OF THIS ELECTRONICALLY
     8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1,                                                                                                         4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3,                                                                                                      DRAFTED AlA DOCUMENT MAY BE
     13.5.2, 14.2.2, 14.2.4                                                                                                                               14.2.1.2, 13.6                                                                                                                              MADE BY USING AlA DOCUMENT
 Decisions to Withhold Certification                                                                                                                                                                                                                                                                  D401.
                                                                                                                                                     Faulty Work
      9.4.1, 9.5, 9.7, 14.1.1.3                                                                                                                           (See Defective or Nonconforming Work)                                                                                                       This document has been approved and
 Defective or Nonconforming Work,                                                                                                                    Final Completion and Final Payment                                                                                                               endorsed by The Associated General
 Acceptance, Rejection and Correction of                                                                                                                 4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2,                                                                                                    Contractors of America.
     2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.5.2,                                                                                                         11.1.3, 11.4.1, 11.4.5, 12.3.1, 13.7, 14.2.4,
     9.6.6, 9.8.2, 9.9.3, 9.10.4, 12.2.1, 13.7.1.3                                                                                                        14.4.3
 Defective Work, Definition of                                                                                                                       Financial Arrangements, Owner's
      3.5.1                                                                                                                                               2.2.1, 13.2.2, 14.1.1.5
 Definitions                                                                                                                                        Redacted

     1.1, 2.1.1, 3.1, 3.5.1, 3.12.1, 3.12.2, 3.12.3,                                                                                                    11.4
     4.1.1, 4.3.1, 5.1, 6.1.2, 7.2.1, 7.3.1, 7.3.6,                                                                                                  GENERAL PROVISIONS
     8.1, 9.1, 9.8.1                                                                                                                                                1
 Delays and Extensions of Time                                                                                                                       Governing Law
      3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1,                                                                                                     13.1
     7.3.1, 7.4.1, 7.5.1, 8.3, 9.5.1, 9.7.1, 10.3.2,                                                                                                 Guarantees (See Warranty)
     10.6.1, 14.3.2                                                                                                                                  Hazardous Materials
 Disputes                                                                                                                                                  10.2.4, 10.3, 10.5
      4.1.4, 4.3, 4.4, 4.5, 4.6, 6.3, 7.3.8                                                                                                          Identification of Contract Documents
 Documents and Samples at the Site                                                                                                                         1.5.1
      3.11                                                                                                                                           Identification of Subcontractors and Suppliers
 Drawings, Definition of                                                                                                                                  5.2.1
      1.1.5                                                                                                                                          Indemnification
 Drawings and Specifications, Use and                                                                                                                     3.17, 3.18, 9.10.2, 10.3.3, 10.5, 11.4.1.2,
 Ownership of                                                                                                                                             11.4.7
       1.1.1, 1.3, 2.2.5, 3.11, 5.3                                                                                                                  Information and Services Required of the
Redacted                                                                                                                                             Owner
     8.2.2, 11.1.2                                                                                                                                       2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7,
 Emergencies                                                                                                                                             4.3.3, 6.1.3, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4,
     4.3.5, 10.6, 14.1.1.2                                                                                                                               9.9.2, 9.10.3, 10.3.3, 11.2, 11.4, 13.5.1,
                                                                                                                                                                                                                                                                                                      @1997 AIMJJ
-;;;©;-;C;:-.o::p::-:yr::;:ig:;:h7t "'19;;-;1;:;-1-,1:;-;9;-:;1""5,-:1;;;9~18;;-,-:;1;;:;9;::;;25;:-,-:;1-;;:93;;:7;-,'1;::;;95=:;1-,"'19;;-;5:;::8-,"'19~6::;-1,-:1;-;:9;;::63;;-,-::1;;:;96;::;;6::-,-..1;::;;96;;:7;-,719:::::7;:::0:-,:;-;19::::7::::6,:-1;-;:9;;::8-::;7,-:1;;;99-;;:7::;-;-by   AJA DOCUMENT A201 " 1997
 The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                                           GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                                   CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                                  .       .            .
  laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                             The Amencan Institute of Architects
  permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                                     1735 ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                                                          Washmgton, D.C. 20006·5292
 This document is not an original AJA® Contract Document, but a reproduction produced by AJA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                              5
      13.5.2, 14.1.1.4, 14.1.4                                4.6.6
Injury or Damage to Person or Property                  Labor and Materials, Equipment
       4.3.8, 10.2, 10.6                                      1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12,
Inspections                                                  3.13, 3.15.1, 42.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6,
      3.1.3, 3.3.3, 3.7.1, 4.2.2, 4.2.6, 4.2.9, 9.4.2,       9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4,
      9.8.2, 9.8.3, 9.9.2, 9.10.1, 12.2.1, 13.5              14.2.1.2
Instructions to Bidders                                 Labor Disputes
       1.1.1                                                  8.3.1
Instructions to the Contractor                          Laws and Regulations
       3.2.3, 3.3.1, 3.8.1, 4.2.8, 5.2.1, 7, 12, 8.2.2,       1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1,
      13.5.2                                                 4.4.8, 4.6, 9.6.4, 9.9.1, 10.2.2, 11.1, 11.4,
Redacted                                                     13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14
       3.18.1, 6.1.1, 7.3.6, 8.2.1, 9.3.2, 9.8.4,       liens                                                                       THIS DOCUMENT HAS IMPORTANT
      9.9.1, 9.10.2, 9.10.5, 11                               2.1.2, 4.4.8: 8.2.2, 9.3.3, 9.10                                      LEGAL CONSEQUENCES.
Redacted                                                limitation on Consolidation or Joinder                                      CONSULTATION WITH AN
       11.4.2                                                 4.6.4                                                                 ATTORNEY IS ENCOURAGED WITH
                                                                                                                                    RESPECT TO ITS COMPLETION OR
Redacted                                                Limitations, Statutes of                                                    MODIFICATION. AUTHENTICATION
       11.1                                                   4.6.3, 12.2.6, 13.7                                                   OF THIS ELECTRON/CALLY
Redacted                                                limitations of liability                                                    DRAFTED AlA DOCUMENT MAY BE
       8 .2.2, 11.1.2                                         2.3, 3.2.1, 3.5.1, 3.7.3, 3.12.8, 3.12.10,                            MADE BY USING AlA DOCUMENT
                                                                                                                                    D401.                                   I
Redacted                                                     3.17, 3.18, 4.2.6, 4.2.7, 4.2.12, 6.2.2, 9.4.2,
       11.4.3                                                9.6.4, 9.6.7, 9.10.4, 10.3.3, 10.2.5, 11.1.2,                           This document has been approved and
Redacted                                                      11.2.1, 11.4.7, 12.2.5, 13.4.2                                         endorsed by The Associated General
       11.2                                             Limitations of Time                                                          Contractors of America
Redacted        Redacted                                     2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11,
Redacted                                                     3.12.5, 3.15.1, 4.2.7, 4.3, 4.4, 4.5, 4.6, 5.2,
       11.3                                                  5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1,
Redacted                                                     9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10,
       10.2.5, 11.4                                           11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5,
Redacted                                                      13.7, 14
       9.3.2, 11.4.1.4                                  Redacted
Redacted                                                                  11.4.3
       11                                                          Material Suppliers
Redacted                                                                1.6, 3.12.1, 4.2.4, 4.2.6, 5.2.1, 9.3, 9.4.2,
Redacted                                                               9.6, 9.10.5
       9.9.1, 11.4.1.5                                             Materials, Hazardous
Redacted                                                                10.2.4, 10.3, 10.5
      11.4.10                                                      Materials, Labor, Equipment and
Intent of the Contract Documents                                       1.1.3, 1.1.6, 1.6.1, 3.4, 3.5.1, 3.8.2, 3.8.23,
      1.2.1, 4.2.7, 4.2.12, 4.2.13, 7.4                                3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1,
Interest                                                               7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1,
       13.6                                                            10.2.4, 14.2.1.2
Interpretation                                                     Means, Methods, Techrriques, Sequences and
      1.2.3, 1.4, 4.1.1, 4.3.1, 5.1, 6.1.2, 8.1.4                  Procedures of Construction
Interpretations, Written                                                3.3.1, 3.12.10, 4.2.2, 4.2.7, 9.4.2
     4.2.11, 4.2.12, 4.3.6                                         Mechanic's Lien
Joinder and Consolidation of Claims Required                            4.4.8
     4.6.4                                                         Mediation
Judgment on Final Award                                                 4.4.1, 4.4.5, 4.4.6, 4.4.8, 4.5, 4.6.1, 4.6.2,
                                                                                                                                    C1997 AINJ&
r.©~Co~p~y~rig~hTt"-19~1~1-,~19~1~5.~1~9~18~.~1~9~25~,~1~93~7~.~19~5~1-,..
                                                                        19~5~8~,1~9~67
                                                                                     1,-1~9~63~,~1~9~66~,~1~96~7~,7
                                                                                                                  19~7~0~,~19~7~6-,1~9~8=7,-1~9~97~by ~ADOCUMENTA201·1997
The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                           GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                   CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                  .       .            .
laws and will subject the violator io legal prosecution. This document was electronically produced with                              The Amencan lnst1tute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                      1735 ~ew York Avenue, N.W.
expiration as noted below.               .                                                                                           Washmgton, D.C. 20006-5292
This document is not an original ~A® Contract Document, but a reproduction produced by ~A®
Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                 6
   8.3.1, 10.5                                                        9.9.2, 9.10.3, 10.3.3, 11.2, 11.4, 13.5.1,
Minor Changes in the Work                                             13.5.2, 14.1.1.4, 14.1.4
    l.l.l, 3.12.8, 4.2.8, 4.3.6, 7.1, 7.4                          Owner's Authority
MISCELLANEOUS PROVISIONS                                              1.6, 2.1.1, 2.3, 2.4, 3.4.2, 3.8.1, 3.12.10,
      13                                                              3.14.2, 4.1.2, 4.1.3, 4.2.4, 4.2.9, 4.3.6,
Modifications, Definition of                                          4.4.7, 5.2.1, 5.2.4, 5.4.1, 6.1, 6.3, 7.2.1,
     l.l.l                                                            7.3.1, 8.2.2, 8.3.1, 9.3.1, 9.3.2, 9.5.1, 9.9.1,
Modifications to the Contract                                         9.10.2, 10.3.2, 11.1.3, 11.;3.1, 11.4.3,
    1.1.1, 1.1.2, 3.7.3, 3.ll, 4.1.2, 4.2.1, 5.2.3,                   11.4.10, 12.2.2, 12.3.1, 13.2.2, 14.3, 14.4
    7, 8.3.1, 9.7, 10.3.2, 11.4.1                                  Owner's Financial Capability
Mutual Responsibility                                                 2.2.1, 13.2.2, 14.1.1.5
     6.2                                                          Redacted

Nonconforming Work, Acceptance of                                        11.2                                                       THIS DOCUMENT HAS IMPORTANT
     9.6.6, 9.9.3, 12.3                                           Redacted
                                                                                                                                    LEGAL CONSEQUENCES.
Nonconforming Work, Rejection and                                     11.4.3                                                        CONSULTATION WITH AN
Correction of                                                      Owner's Relationship with Subcontractors                         ATTORNEY IS ENCOURAGED WITH
                                                                                                                                    RESPECT TO ITS COMPLETION OR
    2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.8.2,                       1.1.2, 5.2, 5.3, 5.4, 9.6.4, 9.10.2, 14.2.2
                                                                                                                                    MODIFICATION. AUTHENTICATION
    9.9.3, 9.10.4, 12.2.1, 13.7.1.3                                Owner's Right to Carry Out the Work                              OF THIS ELECTRONICALLY
Notice                                                                2.4, 12.2.4. 14.2.2.2                                         DRAFTED AlA DOCUMENT MAY BE
    2.2.1, 2.3, 2.4, 3.2.3, 3.3.1, 3.7.2, 3.7.4,                   Owner's Right to Clean Up                                        MADE BY USING AlA DOCUMENT
                                                                                                                                    0401.
    3.12.9, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7,                        6.3
    9.10, 10.2.2, 11.1.3, 11.4.6, 12.2.2, 12.2.4,                  Owner's Right to Perform Construction and to                     This document has been approved and
    13.3, 13.5.1, 13.5.2, 14.1, 14.2                               Award Separate Contracts                                         endorsed by The Associated General
Notice, Written                                                          6.1                                                        Contractors of America.
    2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3,                    Owner's Right to Stop the Work
    4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2,                       2.3
    10.3, 11.1.3, 11.4.6, 12.2.2, 12.2.4, 13.3,                   Owner's Right to Suspend the Work
    14                                                                  14.3
Notice of Testing and Inspections                                 Owner's Right to Terminate the Contract
     13.5.1, 13.5.2                                                     14.2
Notice to Proceed                                                 Ownership and Use of Drawings, Specifications
     8.2.2                                                        and Other Instruments of Service
Notices, Permits, Fees and                                              1.1.1, 1.6, 2.2.5, 3.2.1, 3.11.1, 3.17.1,
     2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2                                 4.2.12, 5.3
Observations, Contractor's                                        Partial Occupancy or Use
     1.5.2, 3.2, 3.7.3, 4.3.4                                           9.6.6, 9.9, 11.4.1.5
Occupancy                                                         Patching, Cutting and
     2.2.2, 9.6.6, 9.8, 11.4.1.5                                        3.14, 6.2.5
Orders, Written                                                   Patents
     1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1,                    3.17
    12.2, 13.5.2, 14.3.1                                          Payment, Applications for
OWNER                                                                  4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3,
       2                                                               9.7.1, 9.8.5, 9.10.1, 9.10.3, 9.10.5, 11.1.3,
                                                                                                                                       -
                                                                                                                                    ,~.
Owner, Definition of                                                   14.2.4, 14.4.3
     2.1                                                          Payment, Certificates for

                                                                                                                                    ~J&
Owner, Information and Services Required of                            4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6,
the
    2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7,
                                                                       9.7.1, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4
                                                                  Payment, Failure of
                                                                                                                                    ..... ·- .....
                                                                                                                                     •oiiiiiP ...
                                                                                                                                      111111111111111
    4.3.3, 6.1.3, 6.1.4, 62.5, 9.3.2, 9.6.1, 9.6.4,                     4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3,
                                                                                                                                    ©1997 AlA®
~©~C~o=p=y7
          rig~h~t7       19~1~5.~1u9~1~8.~1~9~25~.~1~93n-77,'1~95~1~,7
                 19~1~1-,..                                                  19~6~1.~1u9~~~.~1~9~66~,~1~96~77,'1n-97~0~,7
                                                                     19~5~8~,..                                         19~7~6-,1~9~8~7.~1~9~97~by AIADOCUMENTA201·1997
The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                          GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                  CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                 .       . :          .
laws and will subject the violator to legal prosecution. This document was electronically produced with                             The Amencan lnst1tute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                     1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                          Washmgton, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                                7
    14.2.1.2, 13.6                                  Regulations and Laws
Payment, Final                                          1.6, 3.2.2, 3.6, 3.7, 3.12,Jq, l~· 4.1.1,
                                                        4.4.8, 4.6, 9.6.4, 9.9.1, HM:.~· .1)11,4,
    4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2,
    11.1.3, 11.4.1, 11.4.5, 12.3.1, 13.7, 14.2.4,
    14.4.3
                                                        13.1, 13.4, 13.5.1, 13.5~1
                                                    Rejection of Work
                                                                                     u: ,f!·   ' 4
                                                                                                      11.4,

Redacted                                                 3.5.1, 4.2.6, 12.2.1
    7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5            Releases and Waivers of Li~fl§
Payments, Progress                                       9.10.2
    4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3    Representations
PAYMENTS AND COMPLETION                                 1.5.2, 3.5.1, 3.12.6, 6.2.~18&+         3.3.3,
      9                                                 9.4.2, 9.5.1, 9.8.2, 9.10.1            • .3.3,
Payments to Subcontractors                          Representatives
    5.4.2, 9.5.1.3, 9.6.2, 9.6.3, 9.6.4, 9.6.7,                                  tf..:H·
                                                         2.1.1, 3.1.1, 3.9, 4.1.1,             s.u,
                                                                                             *·~·w·             THIS DOCUMENT HAS IMPORTANT
    11.4.8, 14.2.1.2                                    5.1.2, 13.2.1                     , ·--10, 5.1.1,             CONSEQUENCES.
PCB                                                 Resolution of Claims and ~§Pll:t~                                        WITH AN
     10.3.1                                              4.4, 4.5, 4.6
Redacted                                            Responsibility for Those PerffifmiR!W,e Work
     7.3.6.4, 9.6.7, 9.10.3,11.4.9, 11.5                 3.3.2, 3.18, 4.2.3, 4.3.8. ~.~}. 9 . .~:g!SI)c
Permits, Fees and Notices                               6.3, 9.5.1, 10
                                                                                   ' .::s.t,. 0 ...3.' 6 :2,
     2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2              Retainage
PERSONS AND PROPERTY,                                    9.3.1, 9.6.2, 9.8.5, 9.9.t 1 ~:tB·~:_g.w.3
PROTECTION OF                                       Review of Contract Docunumt~ ~WcrJ;'f~M>.3
                                                                                          11
     10                                             Conditions by Contractor                     Ie[q
Polychlorinated Biphenyl                                 t.5.2, a.2, 3.7.3, 3.12.11 tH:~
     10.3.1                                         Review of Contractor's Subrmtffil~ RY Owner
Product Data, Definition of                         and Architect                               Y Ovvn~r
     3.12.2                                              3.10.1, 3.10.2, 3.11, 3.1~, ~:!· ~q. 6.1.3,
Product Data and Samples, Shop Drawings                 9.2, 9.8.2                            '~L., 6.1.3,
     3.11, 3.12, 4.2.7                              Review of Shop Drawings, Fffl!ffig{ B!!-ta and
Progress and Completion                             Samples by Contractor                        <tta aDd
     4.2.2, 4.3.3, 8.2, 9.8, 9.9.1, 14.1.4               3.12
Progress Payments                                   Rights and Remedies
     4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3       1.1.2, 2.3, 2.4, 3.5.1, 3.1§,~. :1-1·~ 4.3.4,
                                                                                       -· •.J. ~ -:>1- a
Project, Definition of the                                                          7:3,J'
                                                        4.5, 4.6, 5.3, 5.4, 6.1, 6.~,             ;..,,.,,:$,1,
     1.1.4                                              9.7, 10.2.5, 10.3, 12.2.~ IB·~· &.4;~4.
Redacted                                            Royalties, Patents and Copyri§Rff ' 3.4, 14
Redacted                                                 3.17
      11.3                                          Ru1es and Notices for Arbitr{ifJBR
Project Manual, Detmition of the                         4.6.2
     1.1.7                                          Safety of Persons and Propeftf
Project Manuals                                          10.2, 10.6
     2.2.5                                          Safety Precautions and Pro~~
Project Representatives                                  3.3.1, 4.2.2, 4.2.7, 5.3.1,18:~· f8·2· 10.6
     4.2.10                                         Samples, Definition of               ' .2, 1Cl.6
Redacted                                                 3.12.3
   10.2.5, 11.4                                     Samples, Shop Drawings, Pr§t!Hef B~t~ and
PROTECTION OF PERSONS AND                                3.11, 3.12, 4.2.7                at.i and
PROPERTY                                            Samples at the Site, Document~ lm-H
   10                                                    3.11                          .
Schedule of Values                                                                                                                               4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1,
      9.2, 9.3.1                                                                                                                                 9.10.3, 9.10.4.2, 12.2, 13.7
Schedules, Construction                                                                                                                      Substantial Completion, Definition of
     1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3                                                                                                9.8.1
Separate Contracts and Contractors                                                                                                           Substitution of Subcontractors
     1.1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6,                                                                                               5.2.3, 5.2.4
     8.3.1, 11.4.7, 12.1.2, 12.2.5                                                                                                           Substitution of Architect
Shop Drawings, Definition of                                                                                                                     4.1.3
      3.12.1                                                                                                                                 Substitutions of Materials
Shop Drawings, Product Data and Samples                                                                                                           3.4.2, 3.5.1, 7.3.7
      3.11, 3.12, 4.2.7                                                                                                                      Sub-subcontractor, Definition of
Site, Use of                                                                                                                                      5.1.2
      3.13, 6.1.1, 6.2.1                                                                                                                     Subsurface Conditions                                                                                                                    THIS DOCUMENT HAS IMPORTANT
Site Inspections                                                                                                                                 4.3.4                                                                                                                                LEGAL CONSEQUENCES.
      1.2.2, 3.2.1, 3.3.3, 3.7.1, 4.2, 4.3.4, 9.4.2,                                                                                         Successors and Assigns                                                                                                                   CONSULTATION WITH AN
     9.10.1, 13.5                                                                                                                                 13.2                                                                                                                                ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                      RESPECT TO ITS COMPLETION OR
Site Visits, Architect's                                                                                                                     Superintendent                                                                                                                           MODIFICATION. AUTHENTICATION
      4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2,                                                                                                   3.9, 10.2.6                                                                                                                         OF THIS ELECTRON/CALLY
     9.10.1, 13.5                                                                                                                            Supervision and Construction Procedures                                                                                                  DRAFTED AlA DOCUMENT MAY BE
Special Inspections and Testing                                                                                                                   1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3,                                                                                      MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                      D401.
      4.2.6, 12.2.1, 13.5                                                                                                                        6.1.3, 6.2.4, 7.1.3, 7.3.6, 8.2, 8.3.1, 9.4.2,
Specifications, Definition of the                                                                                                                10, 12, 14                                                                                                                           This document has been approved and
      1.1.6                                                                                                                                 Redacte                                                                                                                                   endorsed by The Associated General
Specifications, The                                                                                                                         "              4.4.7, 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2                                                                              Contractors of America.
      1.1.1, 1.1.6, 1.1.7, 1.2.2, 1.6, 3.ll,                                                                                                Redacted

     3.12.10, 3.17                                                                                                                               9.10.2, 9.10.3
Statute of Limitations                                                                                                                      Surveys
      4.6.3, 12.2.6, 13.7                                                                                                                        2.2.3
Stopping the Work                                                                                                                           Suspension by the Owner for Convenience
      2.3, 4.3.6, 9.7, 10.3, 14.1                                                                                                                14.4
Stored Materials                                                                                                                            Suspension of the Work
      6.2.1, 9.3.2, 10.2.1.2, 10.2.4, 11.4.1.4                                                                                                   5.4.2, 14.3
Subcontractor, Definition of                                                                                                                Suspension or Termination of the Contract
      5.1.1                                                                                                                                      4.3.6, 5.4.1.1, 11.4.9; 14
SUBCONTRACTORS                                                                                                                              Taxes
               5                                                                                                                                 3.6, 3.8.2.1, 7.3.6.4
Subcontractors, Work by                                                                                                                     Termination by the Contractor
     1.2.2, 3.3.2, 3.12.1, 4.2.3, 5.2.3, 5.3, 5.4,                                                                                               4.3.10, 14.1
    9.3.1.2, 9.6.7                                                                                                                          Termination by the Owner for Cause
Subcontractual Relations                                                                                                                         4.3.10, 5.4.1.1, 14.2
    5.3, 5.4, 9.3.1.2, 9.6, 9.10 10.2.1, 11.4.7,                                                                                            Termination of the Architect
    11.4.8, 14.1, 14.2.1, 14.3.2                                                                                                                 4.1.3
Submittals                                                                                                                                  Termination of the Contractor
    1.6, 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3,                                                                                                  14.2.2
    7.3.6, 9.2, 9.3, 9.8, 9.9.1, 9.10.2, 9.10.3,                                                                                            TERMINATION OR SUSPENSION OF
    11.1.3                                                                                                                                  THE CONTRACT
Redacted                                                                                                                                         14
    6.1.1, 11.4.5, 11.4.7                                                                                                                   Tests and Inspections
Substantial Completion                                                                                                                          3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.3,
                                                                                                                                                                                                                                                                                      @1997 AlA®
'-©~Co=:p:-:-y::;rig=<h:7t•1~91;-..1~.7
                                      19;::1;-;:5~,:;;19::::1-:::8,-:1;-::9:-:::25::-,-:1;::;9-;::37:;-,-::1-:::95;:::-:1;-,-:;1-::c95;:-;:8:-,719;o-;6;-:;1-,.,.,19:-.:63::::-,-1:-::96::=-6,-::1::::9""'67:;-,-.1"='97"'0'"",-:-19""7::::6c-,""'19""8::7,..-,1"'"'9'""9-::7-:-b-y   AlA DOCUMENT A201 ·1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                           GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                    CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                   .       .            .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                               The Amencan Institute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                       1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                                                                            Washmgton, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                 9
   9.9.2, 9.10.1, 10.3.2, 11.4.1.1, 12.2.1,13.5                     Waiver of Claims by the Owner
TIME                                                                   4.3.10, 9.9.3, 9.10.3, 9.10.4, 11.4.3, 11.4.5,
       8                                                               11.4.7, 12.2.2.1, 13.4.2, 14.2.4
Time, Delays and Extensions of                                      Waiver of Consequential Damages
     3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1,                   4.3.10, 14.2.4 .
     7.3.1, 7.4.1, 7.5.1, 8.3, 9.5.1, 9.7.1, 10.3.2,                Waiver of Liens
     10.6.1, 14.3.2                                                     9.10.2, 9.10.4
Time Limits                                                        Redacted

     2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11,                          6.1.1, 11.4.5, 11.4.7
     3.12.5, 3.15.1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.2,                  Warranty
     5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1,                         3.5, 4.2.9, 4.3.5.3, 9.3.3, 9.8.4, 9.9.1,
     9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10,                       9.10.4, 12.2.2, 13.7.1.3
     11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2,                       Weather Delays
                                                                                                                                      THIS DOCUMENT HAS IMPORTANT
     13.5, 13.7, 14                                                      4.3.7.2                                                      LEGAL CONSEQUENCES.
Time Limits on Claims                                               Work, Definition of                                               CONSUL TAT/ON WITH AN
      4.3.2, 4.3.4, 4.3.8, 4.4, 4.5, 4.6                                 1.1.3                                                        ATTORNEY IS ENCOURAGED WITH
                                                                                                                                      RESPECT TO ITS COMPLETION OR
Title to Work                                                       Written Consent                                                   MODIFICATION. AUTHENTICATION
      9.3.2, 9.3.3                                                      1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4,              OF THIS ELECTRON/CALLY
UNCOVERING AND CORRECTION OF                                            9.3.2, 9.8.5,.9.9.1, 9.10.2, 9.10.3, ll.4.1,                  DRAFTED AlA DOCUMENT MAY BE
WORK                                                                    13.2, 13.4.2                                                  MADE BY USING AlA DOCUMENT
                                                                                                                                      D401.
      12                                                            Written Interpretations
Uncovering of Work                                                       4.2.11, 4.2.12, 4.3.6                                        This document has been approved and
      12.1                                                          Written Notice                                                    endorsed by The Associated General
Unforeseen Conditions                                                   2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3,                   Contractors of America.
     4.3.4, 8.3.1, 10.3                                                 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2,
Unit Prices                                                             10.3, 11.1.3, 11.4.6, 12.2.2, 12.2.4, 13.3,
      4.3.9, 7.3.3.2                                                    14
Use of Documents                                                    Written Orders
      1.1.1, 1.6, 2.2.5, 3.12.6, 5.3                                    1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1,
Use of Site                                                             12.2, 13.5.2, 14.3.1
      3.13, 6.1.1, 6.2.1
Values, Schedule of
      9.2, 9.3.1
Waiver of Claims by the Architect
      13.4.2
Waiver of Claims by the Contractor
     4.3.10, 9.10.5, 11.4.7, 13.4.2


ARTICLE 1 GENERAL PROVISIONS
   1.1      BASIC DEFINITIONS
   1.1.1    THE CONTRACT DOCUMENTS
   The Contract Documents consist of the Agreement between Owner and Contractor
   (hereinafter the Agreement), Conditions of the Contract (General, Supplementary and oi:her
   Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract,
   other documents listed in the Agreement and Modifications issued after execution of the
   Contract. A Modification is (I) a written amendment to the Contract signed by both parties,
   (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor
   change in the Work issued by the Architect. Unless specifically enumerated in the Agreement,                                       --"=""""-
                                                                                                                                      @1997 All¥&
a©~C~o=p~yr~ig~h~t~19y17
                       1,~1~9~1~5.~1~9"18~,~1h92~5~,~1~93~7~,7.19~5~1-,1~9~5~8,~1~9~6~1.~1~9~63~.~1h96~6~,7
                                                                                                          19~6~7~."19~7~0-,1~9~7~6.~1~00~7~,~1~9~97~b~y ~ADOCUMENTA201-1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                           GENERAL CONDITIONS OF THE
quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                    CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                   .       .            .
laws and will subject the violator to legal prosecution. This document was electronically produced with                               The Amencan lnst1tute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                       1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                            Washmgton, D.C. 20006-5292
This document Is not an original ~A® Contract Document, but a reproduction produced by ~A®
Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                10
             the Contract Documents do not include other documents such as bidding requirements
             (advertisement or invitation to bid, Instructions to Bidders, sample forms, the Contractor's bid
             or portions of Addenda relating: to bidding requirements).

            1.1.2 THE CONTRACT
            The Contract Documents form the Contract for Construction. The Contract represents the
            entire and integrated agreement between the parties hereto and supersedes prior negotiations,
            representations or agreements, either written or oral. The Contract may be amended or
            modified only by a Modification. The Contract Documents shall not be construed to create a
            contractual relationship of any kind (1) between the Architect and Contractor, (2) between the
            Owner and a Subcontractor or Sub-subcontractor, (3) between the Owner and Architect or (4)
            between any persons or entities other than the Owner and Contractor. The Architect shall,
            however, be entitled to performance and enforcement of obligations under the Contract
                                                                                                           THIS DOCUMENT HAS IMPORTANT
            intended to facilitate performance of the Architect's duties.                                  LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                  CONSULTATION WITH AN
            1.1.3 THE WORK                                                                                                                                                                                                                        ATTORNEY IS ENCOURAGED WITH
            The term "Work" means the construction and services required by the Contract Documents,                                                                                                                                               RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                  MODIFICATION. AUTHENTICATION
            whether completed or partially completed, and includes all other labor, materials, equipment                                                                                                                                          OF THIS ELECTRONICALLY
            and services provided or to be provided by the Contractor to fulfill the Contractor's                                                                                                                                                 DRAFTED AlA DOCUMENT MAY BE
            obligations. The Work may constitute the whole or a part of the Project.                                                                                                                                                              MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                  D401.
            1.1.4    THE PROJECT                                                                    This document has been approved and
            The Project is the total construction of which the Work performed under the Contract endorsed by The Associated General
            Documents may be the whole or a part and which may include construction by the Owner or Contractors of America
            by separate contractors.

            1.1.5 THE DRAWINGS
            The Drawings are the graphic and pictorial portions of the Contract Documents showing the
            design, location and dimensions of the Work, generally including plans, elevations, sections,
            details, schedules and diagrams.

           1.1.6 THE SPECIFICATIONS
           The Specifications are that portion of the Contract Documents consisting of the written
           requirements for materials, equipment, systems, standards and workmanship for the Work,
           and performance of related services.

           1.1.7 THE PROJECT MANUAL
           The Project Manual is a volume assembled for the Work which may include the bidding
           requirements, sample forms, Conditions of the Contract and Specifications.

           1.2      CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
           1.2.1    The intent of the Contract Documents is to include all items necessary for the proper
           execution and completion of the Work by the Contractor. The Contract Documents are
           complementary, and what is required by one shall be as binding as if required by all;
           performance by the Contractor shall be required only to the extent consistent with the
           Contract Documents and reasonably inferable from them as being necessary to produce the
           indicated results.


                                                                                                                                                                                                                                                @1997 AIM}
-;;;©~eo=p::-:yn7"g:;:h7't':;;19:;:;17
                                     1 ~.1:;-;:9:::-1::::-5,-:1;-;:9:::-18:::-,-:1;-;:9::::-25;:-,-:1::::-93::::7::-,. . ,.1"'95::-::1-,"'19""'5;-;:8-,:;-;19""6""1,-1:-::9:-::63=-,-:1:-::9::::-66;::-,-:1-::-96"'7::-,-;-1-::-:97::::0:-,'"""19""7"'"6,-1'""'9""8=7,-1'""9""'97::-:--by AlA DOCUMENT A201 • 1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                     GENERAL CONDITIONS OF THE
quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                                                                                                                              CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                              .       .           .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                         The Amencan Institute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                 1735 New York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                                      Washington, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AJA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                11
             1.2.2 Organization of the Specifications into divisions, sections and articles, and
             arrangement of Drawings shall not control the Contractor in dividing the Work among
             Subcontractors or in establishing the extent of Work to be performed by any trade.

             1.2.3 Unless otherwise stated in the Contract Documents, words which have well-known
             technical or construction industry meanings are used in the Contract Documents in
             accordance with such recognized meanings.

             1.3      CAPITALIZATION
             1.3.1 Terms capitalized in these General Conditions include those which are (1)
             specifically defined, (2) the titles of numbered articles and identified references to Paragraphs,
             Subparagraphs and Clauses in the document or (3) the titles of other documents published by
             the American Institute of Architects.                                                              THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                                  LEGAL CONSEQUENCES.
             1.4       INTERPRETATION                                                                                                                                                                                                                                             CONSUL TAT/ON WITH AN
             1.4.1 In the interest of brevity the Contract Documents frequently omit modifying words                                                                                                                                                                              ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                  RESPECT TO ITS COMPLETION OR
             such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an                                                                                                                                                                      MODIFICATION. AUTHENTICATION
             article is absent from one statement and appears in another is not intended to affect the                                                                                                                                                                            OF THIS ELECTRON/CALLY
             interpretation of either statement.                                                                                                                                                                                                                                  DRAFTED AlA DOCUMENT M4 Y BE
                                                                                                                                                                                                                                                                                  MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                  D401.
             1.5       EXECUTION OF CONTRACT DOCUMENTS
             1.5.1 The Contract Documents shall be signed by the Owner and Contractor. If either the This document has been approved and
             Owner or Contractor or both do not sign all the Contract Documents, the Architect shall endorsed by The Associated General
             identify such unsigned Documents upon request                                           Contractors of America.

             1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor
             has visited the site, become generally familiar with local conditions under which the Work is
             to be performed and correlated personal observations with requirements of the Contract
             Documents.

             1.6      OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER
                      INSTRUMENTS OF SERVICE
             1.6.1    The Drawings, Specifications and other documents, including those in electronic
             form, prepared by the Architect and the Architect's consultants are Instruments of Service
             through which the Work to be executed by the Contractor is described. The Contractor may
             retain one record set. Neither the Contractor nor any Subcontractor, Sub-subcontractor or
             material or equipment supplier shall own or claim a copyright in the Drawings, Specifications
             and other documents prepared by the Architect or the Architect's consultants, and unless
             otherwise indicated the Architect and the Architect's consultants shall be deemed the authors
             of them and will retain all common law, statutory and other reserved rights, in addition to the
             copyrights. All copies of Instruments o.f Service, except the Contractor's record set, shall be
             returned or suitably accounted for to the Architect, on request, upon completion of the Work.
             The Drawings, Specifications and other documents prepared by the Architect and the




                                                                                                                                                                                                                                                                                  ~···
             Architect's consultants, and copies thereof furnished to the Contractor, are for use solely with
             respect to this Project. They are not to be used by the Contractpr or any Subcontractor, Sub-

                                                                                                                                                                                                                                                                                  ~YJ:.f:.
             subcontractor or material or equipment supplier on other projects or for additions to this
             Project outside the scope of the Work without the specific written consent of the Owner,
             Architect and the Architect's consultants. The Contractor, Subcontractors, Sub-subcontractors
             and material or equipment suppliers are authorized to use and reproduce applicable portions

-::;;©:-:Co=p-:-::yn::;:·g::Lh::-11:;-;9: :;171,-:1;;:9::;-1;::-5,-.:1:-::;9:;-;18"",-::-1""92::::5:-,719::::3:;::;7:-,.,19""5""1-,1"'9"'5=8,-:1;;:9:::-61;:-,-::1-:::-9"'63"",-::-1::-96"'6""',719""6:::::7:-,.,19::::7:::0-,1"'9:-::7""6,-:1""9""87:::-.-:1-:::-9"'97::-b:--y
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial
                                                                                                                                                                                                                                                                                  ---
                                                                                                                                                                                                                                                                                  ..........;.....
                                                                                                                                                                                                                                                                                  @1997 AIMJ
                                                                                                                                                                                                                                                                                  AlA DOCUMENT A201 - 1997
                                                                                                                                                                                                                                                                                  GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                               CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                              .       .         ' .
 laws and will subject the violator to legal prosecution. This document was electrcnically produced with                                                                                                                                                                          The Amencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                  1735 ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                                      Washmgton, D.C. 20006-5292
 This document is not an original AJA® Contract Document, but a reproduction produced by AJA®
 Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                                                                                                                                                                         12
            of the Drawings, Specifications and other documents prepared by the Architect and the
            Architect's consultants appropriate to and for use in the execution of their Work under the
            Contract Documents. All copies made under this authorization shall bear the statutory
            copyright notice, if any, shown on the Drawings, Specifications and other documents prepared
            by the Architect and the Architect's consultants. Submittal or distribution to meet official
            regulatory requirements or for other purposes in connection with this Project is not to be
            construed as publication in derogation of the Architect's or Architect's consultants' copyrights
            or other reserved rights.

 ARTICLE 2 OWNER
    2.1      GENERAL
    2.1.1     The Owner is the person or entity identified as such in the Agreement and is referred
    to throughout the Contract Documents as if singular in number. The Owner shall designate in             THIS DOCUMENT HAS IMPORTANT
    writing a representative who shall have express authority to bind the Owner with respect to all         LEGAL CONSEQUENCES.
    matters requiring the Owner's approval or authorization. Except as otherwise provided in                CONSULTATION WITH AN
    Subparagraph 4.2.1 the Architect does not have such authority. The term "Owner" means the               ATTORNEY IS ENCOURAGED WITH
                        ',       ·               ·                                                          RESPECT TO ITS COMPLETION OR
    Owner or the Owners authonzed representative.                                                           MOD/FICA TION. AUTHENTICATION
                                                                                                            OF THIS ELECTRON/CALLY
            2.1.2     The Owner shall furnish to the Contractor within fifteen days after receipt of a DRAFTED AlA DOCUMENT MAY BE
            written request, infonnation necessary and relevant for the Contractor to evaluate, give notice MADE BY USING AlA DOCUMENT
            of or enforce mechanic's lien rights. Such information. shall include a correct statement of the D401.
            record legal title to the property on which the Project is located, usually referred to as the site, This document has been approved and
            and the Owner's interest therein.                                                                    endorsed by The Associated General
                                                                                                                                                                                                                                                Contractors of America.
            2.2      INFORMATION AND SERVICES REQUIRED OF THE OWNER
            2.2.1    The Owner shall, at the written request of the Contractor, prior to commencement of
            the Work and thereafter, furnish to the Contractor reasonable evidence that financial
            arrangements have been made to fulfill the Owner's, obligations under the Contract
            Furnishing of such evidence shall be a condition precedent to commencement or continuation
            of the Work. After such evidence has been furnished, the Owner shall not materially· vary
            such fmancial arrangements without prior notice to the Contractor.

            2.2.2 Except for pennits and fees, including those required under Subparagraph 3.7.1,
            which are the responsibility of the Contractor under the Contract Documents, the Owner shall
            secure and pay for necessary approvals, easements, assessments and charges required for
            construction, use or occupancy of permanent structures or for permanent changes in existing
            facilities.

           2.2.3 The Owner shall furnish surveys describing physical characteristics, legal ],imitations
           and utility locations for the site of the Project, and a legal description of the site. The
           Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but
           shall exercise proper precautions relating to the safe performance of the Work.

           2.2.4 Information or services required of the Owner by the Contract Documents shall be
           furnished by the Owner with reasonable promptness. Any other infonnation or services
           relevant to the Contractor's performance of the Work under the Owner's control shall be
           furnished by the Owner after receipt from the Contractor of a written request for such
           information or services.

                                                                                                                                                                                                                                                ©1997   A~
-;:;©'"'C;::-o-p-yn7'g7h-:-t""'19""'1-:1-,1""'9:-:-1-=5,-1""9718=-,-=1-=92"'5::-,-.1.,93==7::-,""'19""'5""'1-,-:-:19:-::5:-=8-,1""'9""671,-1""9..,.63=-,-=1-=9::-:66:-,-:-19.,6""7:-,719==7==0-,"'"'19::::7:::-6,-1""9"'8=7,""'1""9""97=-=-by   AlA DOCUMENT A201-1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                    GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                             CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                            .        .           .
 laws and will subject the violator to legal prosecution. This document 'was electronically produced with                                                                                                                                       The Amencan lns!ltute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                     Wash1ngton, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                        13
          2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will be
          furnished, free of charge, such copies of Drawings and Project Manuals as are reasonably
          necessary for execution of the Work.

          2.3       OWNER'S RIGHT TO STOP THE WORK
          2.3.1 If the Contractor fails to correct Work which is not in accordance with the
          requirements of the Contract Documents as required by Paragraph 12.2 or persistently fails to
          carry out Work in accordance with the Contract Documents, the Owner may issue a written
          order to the Contractor to stop the Work, or any portion thereof, until the cause for such order
          has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a
          duty on the part of the Owner to exercise this right for the benefit of the Contractor or any
          other person or entity, except to the extent required by Subparagraph 6.1.3.
                                                                                                                                                                                                                           · THIS DOCUMENT HAS IMPORTANT
          2.4      OWNER'S RIGHT TO CARRY OUT THE WORK                                                                                                                                                                       LEGAL CONSEQUENCES.
          2.4.1    If the Contractor defaults or neglects to carry out the Work in accordance with the                                                                                                                       CONSULTATION WITH AN
          Contract Documents and fails within a seven-day period after receipt of written notice from                                                                                                                       ATTORNEY IS ENCOURAGED WITH
                                             .          .                              .    .·                                                                                                                               RESPECT TO ITS COMPLETION OR
          the Owner to commence and continue correction of such default or neglect With diligence and                                                                                                                        MODIFICATION. AUTHENTICATION
          promptness, the Owner may after such seven-day period give the Contractor a second written                                                                                                                         OF THIS ELECTRONICALLY
          notice to correct such deficiencies within a three-day period. If the Contractor within such                                                                                                                       DRAFTED AlA DOCUMENT MAY BE
          three-day period after receipt of such second notice fails to commence and continue to correct                                                                                                                     MADE BY USING AlA DOCUMENT
          any deficiencies, the Owner may, without prejudice to other remedies the Owner may have,                                                                                                                           D40t.
          correct such deficiencies. In such case an appropriate Change Order shall be issued deducting                                                                                                                      This document has been approved and
          from payments then or thereafter due the Contractor the reasonable cost of correcting such                                                                                                                         endorsed by The Associated General
          deficiencies, including Owner's expenses and compensation for the Architect's additional                                                                                                                           Contractors of America
          services made necessary by such default, neglect or failure. Such action by the Owner and
          amounts charged to the Contractor are both subject to prior approval of the Architect. If
          payments then or thereafter due the Contractor are not sufficient to cover such amounts, the
          Contractor shall pay the difference to the Owner.

 ARTICLE 3 CONTRACTOR
    3.1      GENERAL
    3.1.1    The Contractor is the person or entity identified as such in the Agreement and is
    referred to throughout the Contract Documents as if singular in number. The term
    "Contractor" means the Contractor or the Contractor's authorized representative.

          3.1.2               The Contractor shall perform the Work in accordance with the Contract Documents.

          3.1.3 The Contractor shall not be relieved of obligations to perform the Work in
          accordance with the Contract Documents either by activities or duties of the Architect in the
          Architect's administration of the Contract, or by tests, inspections or approvals required or
          performed by persons other than the Contractor.

          3.2      REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY
                   CONTRACTOR
          3.2.1 Since the Contract Documents are complementary, before starting each portion of
          the Work, the Contractor shall carefully study and compare the various Drawings and other
          Contract Documents relative to that portion of the Work, as well as the information furnished
          by the Owner pursuant to Subparagraph 2.2.3, shall take field measurements of any existing
          conditions related to that portion of the Work and shall observe any conditions at the site
                                                                                                                                                                                                                                                                  <1:>1997 AlA®
-::;©~C;::;o:-p:-y-.-rig-.-h-:-t~19""1-::-1-,17':9-:-::1-::-5,:-1:-:::9::;-18:::-,-.1"'9""25=-,-::1~93;o:7;-,-::-19::-:5""1-,~19::-:5:-::8-,17-::9:-: 671,=-1:-:::9"'"63::-,-.1-=96""6~,...,.19""6:::7:-,719;o:7:-::0-,""19==7""6,:-1:-::9~87=-,-:1""9""97::-:-by AlA DOCUMENT A201 ·1997
The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                  GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                          CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                         .        .           .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                     The Amencan Institute of Archrtects
permission of: the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                            1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                  Washrngton, D.C. 20006·5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                14
              affecting it. These obligations are for the purpose of facilitating construction by the
              Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in
              the Contract Documents; however, any errors, inconsistencies or omissions discovered by the
              Contractor shall be reported promptly to the Architect as a request for information in such
              form as the Architect may require.

             3.2.2    Any design errors or omissions noted by the Contractor during this review shall be
             reported promptly to the Architect, but it is recognized that the Contractor's review is made in
             the Contractor's capacity as a contractor and not as a licensed design professional unless
             otherwise specifically provided in the Contract Documents. The Contractor is not required to
             ascertain that the Contract Documents are in accordance with applicable laws, statutes,
             ordinances, building codes, and rules and regulations, but any nonconformity discovered by or
             made known to the Contractor shall be reported promptly to the Architect.                        THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                                      LEGAL CONSEQUENCES.
             3.2.3 If the Contractor believes that additional cost or time is involved because of                                                                                                                                                                                     CONSUL TAT/ON WITH AN
             clarifications or instructions issued by the Architect in response to the Contractor's notices or                                                                                                                                                                        ATTORNEY IS ENCOURAGED WITH
                           •        .                                                                                                                                                                                                                                                 RESPECT TO ITS COMPLETION OR
             requests for mformation pursuant to Subparagraphs 3.2.1 and 3.2.2, the Contractor shall make                                                                                                                                                                             MODIFICATION. AUTHENTICATION
             Claims as provided iil Subparagraphs 4.3.6 and 4.3.7. If the Contractor fails to perform the                                                                                                                                                                             OF THIS ELECTRONICALLY
             obligations of Subparagraphs 3.2.1 and 3.2.2, the Contractor shall pay such costs and damages                                                                                                                                                                            DRAFTED AlA DOCUMENT MAY BE
             to the Owner as would have been avoided if the Contractor had performed such obligations.                                                                                                                                                                                MADE BY USING AlA DOCUMENT
             The Contractor shall not be liable to the Owner or Architect for damages resulting from                                                                                                                                                                                  D40t.
             errors, inconsistencies or omissions in the Contract Documents or for differences between                                                                                                                                                                                This document has been approved and
             field measurements or conditions and the Contract Documents unless the Contractor                                                                                                                                                                                        endorsed by The Associated General
             recognized such error, inconsistency, omission or difference and knowingly failed to report it                                                                                                                                                                           Contractors of America.
             to the Architect.

             3.3       SUPERVISION AND CONSTRUCTION PROCEDURES
             3.3.1     The Contractor shall supervise and direct the Work, using the Contractor's best skill
             and attention. The Contractor shall be solely responsible for and have control over
             construction means, methods, techniques, sequences and procedures and for coordinating all
             portions of the Work under the Contract, unless the Contract Documents give other specific
             instructions concerning these matters. If the Contract Documents give specific instructions
             concerning construction means, methods, techniques, sequences or procedures, the Contractor
             shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely
             responsible for the jobsite safety of such means, methods, techniques, sequences or
             procedures. If the Contractor determines that such means, methods, techniques, sequences or
             procedures may not be safe, the Contractor shall give timely written notice to the Owner and
             Architect and shall not proceed with that portion of the Work without further written
             instructions from the Architect. If the Contractor is then instructed to proceed with the
             required means, methods, techniques, sequences or procedures without acceptance of changes
             proposed by the Contractor, the Owner shall be solely responsible for any resulting Joss or
             damage.

             3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the
             Contractor's employees, Subcontractors and their agents and employees, and other persons or
             entities performing portions of the Work for or on behalf of the Contractor or any of its
             Subcontractors.


                                                                                                                                                                                                                                                                                      @1997 All>$
-;;©"C"o:-:p-y-.-rig::;:h-;-t719::::1;-::;1-,~19~1~5-,1:;-;9:-:;1';::"8,-:1;-;:9:;:;:25;::-,-:1~9~37::-,-::1';::"95;:-:1;-,71~95::::8:-,~19::-::6:::-1-:,1:;-;9"'6';::"3,-:1:-::9:;:;:66::-,-:1""9~67::-,71~97:;::0:-,719::::7;-;:6-:,:;-;19:;;;8:-:;7,-:1:;-;9:-:::9:::;-7-;:-by-:   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                           GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                   CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                  .       .            .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                              The Amencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                      1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                     .     Washmgton, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                            15
      3.3.3   The Contractor shall be responsible for inspection of portions of Work already
      performed to determine that such portions are in proper condition to receive subsequent
      Work.

      3.4       LABOR AND MATERIALS
      3.4.1     Unless otherwise provided in the Contract Documents, the Contractor shall provide
      and pay for labor, materials, equipment, tools, construction equipment and machinery, water,
      heat, utilities, transportation, and other facilities and services necessary for proper execution
      and completion of the Work, whether temporary or permanent and whether or not
      incorporated or to be incorporated in the Work.

      3.4.2    The Contractor may make substitutions only with the consent of the Owner, after
      evaluation by the Architect and in accordance with a Change Order.                       THIS DOCUMENT HAS IMPORTANT
                                                                                                  LEGAL CONSEQUENCES.
      3.4.3   The Contractor shall enforce strict discipline and good order among the Contractor'sCONSULTATION WITH AN
      employees and other persons carrying out the Contract The Contractor shall not permit       ATTORNEY IS ENCOURAGED WITH
                                                                                                  RESPECT TO ITS COMPLETION OR
      employment of unfit persons or persons not skilled in tasks assigned to them.               MODIACATION. AUTHENTICATION
                                                                                                  OF THIS ELECTRON/CALLY
      3.5         WARRANTY                                                                        DRAFTED AlA DOCUMENT MAY BE
      3.5.1       The Contractor warrants to the Owner and Architect that materials and equipment MADE BY USING AlA DOCUMENT
                                                                                                  D401.
      furnished under the Contract will be of good quality and new unless otherwise required or
      permitted by the Contract Documents, that the Work will be free from defects not inherent in This document has been approved and
      the quality required or permitted, and that the Work will conform to the requirements of the endorsed by The Associated General
      Contract Documents. Work not conforming to these requirements, including substitutions not Contractors of America
      properly approved and authorized, may be considered defective. The Contractor's warranty
      excludes remedy for damage or defect caused by abuse, modifications not executed by the
      Contractor, improper or insufficient maintenance, improper operation, or normal wear and
      tear and normal usage. If required by the Architect, the Contractor shall furnish satisfactory
      evidence as to the kind and quality of materials and equipment.

      3.6     TAXES
      3.6.1   The Contractor shall pay sales, consumer, use and similar taxes for the Work
      provided by the Contractor which are legally enacted when bids are received or negotiations
      concluded, whether or not yet effective or merely scheduled to go into effect.

      3.7      PERMITS, FEES AND NOTICES
      3.7.1    Unless otherwise provided in the Contract Documents, the Contractor shall secure
      and pay for the building permit and other permits and governmental fees, licenses and
      inspections necessary for proper execution and completion of the Work which are customarily
      secured after execution of the Contract and which are legally required when bids are received
      or negotiations concluded.

      3.7.2     The Contractor shall comply with and give notices required by laws, ordinances,
      rules, regulations and lawful orders of public authorities applicable to performance of the
      Work.

      3.7.3     It is not the Contractor's responsibility to ascertain that the Contract Documents are
      in accordance with applicable laws, statutes, ordinances, building codes, and rules and
      regulations. However, if the Contractor observes that portions of the Contract Documents are
                                                                                                                                     c-1997 AINI!J
~©~C~o-p-y~ng~h7
               t~19~1~1-.~19~1~5-,1~9~1~8,-1~9~25~.~1~93=7~.~19=5~1-,7.19~5~8-,1~9~6~1.-1~9~63~.~1~00~6~.~1~96=7~.~19=7~0~.~19~7~6-,1~9~8=7.-1~9~97~by ~ADOCUMENTA201-1997
The American Institute of Architects. Rtteenth Edition. Reproduction of the material herein or substantial                           GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                   CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                  .       .            .
laws and will subject the violator to legal prosecution. This document was electronically produced with                              The Amencan Institute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                      1735 ~ew York Avenue, N.W.
expiration as noted below.                       •                                                                                   Washmgton, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by ~A®
Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                16
               at variance therewith, the Contractor shall promptly notify the Architect and . Owner in
               writing, and necessary changes shall be accomplished by appropriate Modification. I

              3.7.4     If the Contractor performs Work knowing it to be contrary to laws, statutes,
              ordinances, building codes, and rules and regulations without such notice to the Architect and
              Owner, the Contractor shall assume appropriate responsibility for such Work and shall bear
              the costs attributable to correction.

              3.8      ALLOWANCES
              3.8.1    The Contractor shall include in the Contract Sum all allowances stated in the
              Contract Documents. Items covered by allowances shall be supplied for such amounts and by
              such persons or entities as the Owner may direct, but the Contractor shall not be required to
              employ persons or entities to whom the Contractor has reasonable objection.
                                                                                                                                THIS DOCUMENT HAS IMPORTANT
                                                                                                                                LEGAL CONSEQUENCES.
              3.8.2                     Unless otherwise provided in the Contract Documents:                                    CONSULTATION WITH AN
                                                                                                                                ATTORNEY IS ENCOURAGED WITH
                                                                                                                                RESPECT TO ITS COMPLETION OR
                                       .1 allowances shall cover the cost to the Contractor of materials and equipment MODIFICATION. AUTHENTICATION
                                           delivered at the site and all required taxes, less applicable trade discounts;       OF THIS ELECTRON/CALLY
                                       .2 Contractor's costs for unloading and handling at the site, labor, installation costs, DRAFTED AlA DOCUMENT MAY BE
                                           overhead, profit and other expenses contemplated for stated allowance amounts MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                       D401.
                                                   shall be included in the Contract Sum but not in the allowances;
                                       .3          whenever costs are more than or less than allowances, the Contract Sum shall be                                                                                                                                                     This document has been approved and
                                                   adjusted accordingly by Change Order. The amount of the Change Order shall                                                                                                                                                          endorsed by The Associated General
                                                   reflect (1) the difference between actual costs and the allowances under Clause                                                                                                                                                     Contractors of America
                                                   3.8.2.1 and (2) changes in Contractor's costs under Clause 3.8.2.2.

              3.8.3 Materials and equipment under an allowance shall be selected by the Owner in
              sufficient time to avoid delay in the Work.

             3.9      SUPERINTENDENT
             3.9.1     The Contractor shall employ a competent superintendent and necessary assistants
             who shall be in attendance at the Project site during performance of the Work. The
             superintendent shall represent the Contractor, and communications given to the
             superintendent shall be as binding as if given to the Contractor. Important communications
             shall be confirmed in writing. Other communications shall be similarly confirmed on written
             request in each case.                                                ·

             3.10      CONTRACTOR'S CONSTRUCTION SCHEDULES
             3.1 0.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit
             for the Owner's and Architect's information a Contractor's construction schedule for the Work.
             The schedule shall not exceed time limits current under the Contract Documents, shall be
             revised at appropriate intervals as required by the conditions of the Work and Project, shall be
             related to the entire Project to the extent required by the Contract Documents, and shall
             provide for expeditious and practicable execution of the Work.

             3.1 0.2 The Contractor shall prepare and keep current, for the Architect's approval, a
             schedule of submittals which is coordinated with the Contractor's construction schedule and
             allows the Architect reasonable time to review submittals.

                                                                                                                                                                                                                                                                                       ®1997 AIM
'-'©;-:eo=p:::yr::;:ig:;:h:;-t"-19:;:;171~.1:;;:9;:;1-;:5,-:1;-;;97
                                                                  18;;-,-:;1-;::92~5=-,-:;1-;;:93;;:7;-,719;;-;5:::;1-,"'19::-::58::::--,1:;;:96;;::;-1,-:1;-;;9-;;:63;;-,-:;1-;::96::::6::-,-:;1::::96;;:7:-,719;;:7;:::0:-,:;:19;;:7::::-6,~1;-;:98;;::7::;-,-:1;-;::99~7::;-;--by   AlA DOCUMENT A201 ·1997
  The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                          GENERAL CONDITIONS OF THE
  quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                   CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                  .        .           .
  laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                              The Amencan Institute of Architects
  permission of tihe AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                     1735 ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                                           Washtngton, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                                                                                                                                                                             17
             3.1 0.3 The Contractor shall perform the Work in general accordance with the most recent
             schedules submitted to the Owner and Architect.

              3.11                      DOCUMENTS AND SAMPLES AT THE SITE
              3.11.1  The Contractor shall maintain at the site for the Owner one record copy of the
             Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order
             and marked currently to record field changes and selections made during construction, and
             one record copy of approved Shop Drawings, Product Data, Samples and similar required
             submittals. These shall be available to the Architect and shall be delivered to the Architect for
             submittal to the Owner upon completion of the Work

              3.12   SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
              3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared THIS DOCUMENT HAS IMPORTANT
              for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier LEGAL CONSEQUENCES.
              or distributor to illustrate some portion of the Work.                                       CONSUL TAT/ON WITH AN
                                                                                                                                                                                                                                                                                              ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                              RESPECT TO ITS COMPLETION OR
              3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, MODIFICATION. AUTHENTICATION
              brochures, diagrams and other information furnished by the Contractor to illustrate materials OF THIS ELECTRON/CALLY
              or equipment for some portion of the Work                                                     DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                                                              MADE BY USING AlA DOCUMENT
              3.12.3 Samples are physical examples which illustrate materials, equipment or D401.
              workmanship and establish standards by which the Work will be judged.         This document has been approved and
                                                                                                                                                                                                                                                                                              endorsed by The Associated General
              3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Contractors of America.
             Documents. The purpose of their submittal is to demonstrate for those portions of the Work
             for which submittals are required by the Contract Documents the way by which the
             Contractor proposes to conform to the information given and the design concept expressed in
             the Contract Documents. Review by the Architect is subject to the limitations of
             Subparagraph 4.2.7. Informational submittals upon which the Architect is not expected to take
             responsive action may be so identified in the Contract Documents. Submittals which are not
             required by the Contract Documents may be returned by the Architect without action.

              3.12.5 The Contractor shall review for compliance with the Contract Documents, approve
              and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals
              required by the Contract Documents with reasonable promptness and in such sequence as to
              cause no delay in the Work or in the activities of the Owner or of separate contractors.
              Submittals which are not marked as reviewed for compliance with the Contract Documents
              and approved by the Contractor may be returned by the Architect without action.

              3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar
              submittals, the Contractor represents that the Contractor has determined and verified
              materials, field measurements and field construction criteria related thereto, or will do so, and
              has checked and coordinated the information contained within such submittals with the
              requirements of the Work and of the Contract Documents.

              3.12.7 The Contractor shall perform no portion of the Work for which the Contract
              Documents require submittal and review of Shop Drawings, Product Data, Samples or similar                                                                                                                                                                                       ':;.~r,-~~f:
              submittals until the respective submittal has been approved by the Architect.

                                                                                                                                                                                                                                                                                              ®1997 AIM
-:;;;©:-:C;::-o-p-yr"'"ig-;-h-:-t""'19::-::1-::-1-,1~9:c:-1-;:;5,-:1:-::97
                                                                         18=-,-:1-::::92""5=-,-:1"'93::::7:-,""19"'5'"'"1-,-:-:19::-::5:::-8,-:1:-::9:::-6.,-1,-:1:-::9::::63::-,-:1-:::-96""6'""",719=-:6:::7:-,""'19::::7::::0-,_1-:-:9:::7:::-6,-:1:-::9::::87:::-,-:1:-::9""'97::;-;-by   AlA DOCUMENT A201 ·1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                                  GENERAL CONDITIONS OF THE
  quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                                                                                                                                                                          CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                                  .            .
  laws and will subject the violator to legal prosecution. This document was' electronically produced with                                                                                                                                                                                    The American Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                              1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                                   Washington, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                    18
             3.12.8 The Work shall be in accordance with approved submittals except that the
             Contractor shall not be relieved of responsibility for deviations from requirements of the
             Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or
             similar submittals unless the Contractor has specifically informed the Architect in writing of
             such deviation at the time of submittal and (1) the Architect has given written approval to the
             specific deviation as a minor change in the Work, or (2) a Change Order or Construction
             Change Directive has been issued authorizing the deviation. The Contractor shall not be
             relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or
             similar submittals by the Architect's approval thereof.

            3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop
            Drawings, Product Data, Samples or similar submittals, to revisions other than those
            requested by the Architect on previous submittals. In the. absence of such written notice the THIS DOCUMENT HAS IMPORTANT
            Architect's approval of a resubmission shall not apply to such revisions.                     LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                                CONSUL TAT/ON WITH AN
            3.12.1 0 The Contractor shall not be required to provide professional services which                                                                                                                                                                ATTORNEY IS ENCOURAGED WITH
            constitute the practice of architecture or enaineering unless such services are specifically                                                                                                                                                        RESPECT TO ITS COMPLETION OR
                                                           ,.                                                                                                                                                                                                   MODIFICATION. AUTHENT/CA TION
            required by the Contract Documents for a portion of the Work or unless the Contractor needs                                                                                                                                                         OF THIS ELECTRON/CALL y
            to provide such services in order to carry out the Contractor's responsibilities for construction                                                                                                                                                   DRAFTED AlA DOCUMENT MAY BE
            means, methods, techniques, sequences and procedures. The Contractor shall not be required                                                                                                                                                          MADE BY USING AlA DOCUMENT
            to provide professional services in violation of applicable law. If professional design services                                                                                                                                                    D40t.
            or certifications by a design professional related to systems, materials or equipment are                                                                                                                                                           This document has been approved and
            specifically required of the Contractor by the Contract Documents, the Owner and the                                                                                                                                                                endorsed by The Associated General
            Architect will specify all performance and design criteria that such services must satisfy. The                                                                                                                                                     Contractors of America
            Contractor shall cause such services or certifications to be provided by a properly licensed
            design professional, whose signature and seal shall appear on all drawings, calculations,
            specifications, certifications, Shop Drawings and other submittals prepared by such
            professional. Shop Drawings and other submittals related to the Work designed or certified by
            such professional, if prepared by others, shall bear such professional's written approval when
            submitted to the Architect. The Owner and the Architect shall be entitled to rely upon the
            adequacy, accuracy and completeness of the services, certifications or approvals performed by
            such design professionals, provided the Owner and Architect have specified to the Contractor
            all performance and design criteria that such services must satisfy. Pursuant to this
            Subparagraph 3.12.10, the Architect will review, approve or take other appropriate action on
            submittals only for the limited purpose of checking for conformance with information given
            and the design concept expressed in the Contract Documents. The Contractor shall not be
            responsible for the adequacy of the performance or design criteria required by the Contract
            Documents.

            3.13     USE OF SITE
            3.13.1 The Contractor shall confine operations at the site to areas permitted by law,
            ordinances, permits and the Contract Documents and shall not unreasonably encumber the site
            with materials or equipment.

            3.14 CUTTING AND PATCHING
            3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to
            complete the Work or to make its parts fit together properly.


                                                                                                                                                                                                                                                                &>1997 AlA®
-:;;©:-cC:::-o-p-yr..,.ig7h-:-t""'19""'1'"'"1-,1:-:9:-:1-:::-5,-1"'9718=-,-:1-:::9::-:25=-,...,1""'93==7=-,..,.19=:5:-:1-,-:c19::-:5:::8-,-:-:19'""671,-1:-::9c:-63=-,-:1-=96"'6'"",-:-1"'96::-::7:-,719=:7::::0-,-:c19:::7:::6,-1"'9:::8=7,-1"'9"""97::-:-by   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                    GENERAL CONDITIONS OF THE
  quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                            CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                            .       .            .
 laws and will subject the violator to legal prosecution. This document was electronically produced with·                                                                                                                                                       The Amencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                     Washmgton, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                       19
           3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or
           partially completed construction of the Owner or separate contractors by cutting, patching or
           otherwise altering such construction, or by excavation. The Contractor shall not cut or
           otherwise alter such construction by the Owner or a separate contractor except with written
           consent of the Owner and of such separate contractor; such consent shall not be unreasonably
           withheld. The Contractor shall not unreasonably withhold from the Owner or a separate
           contractor the Contractor's consent to cutting or otherwise altering the Work.

           3.15     CLEANING UP
           3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation
           of waste materials or rubbish caused by operations under the Contract. At completion of the
           Work, the Contractor shall remove from and about the Project waste materials, rubbish, the
           Contractor's tools, construction equipment, machinery and surplus materials.                THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                 LEGAL CONSEQUENCES.
           3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner CONSULTATION WITH AN
           may do so and the cost thereof shall be charged to the Contractor.                          ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                 RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                 MODIFICATION. AUTHENTICATION
           3.16     ACCESS TO WORK                                                           OF THIS ELECTRONICALLY
           3.16.1 The Contractor shall provide the Owner and Architect access to the Work in DRAFTED AlA DOCUMENT MAY BE
           preparation and progress wherever located.                                        MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                 D401.

           3.17      ROYALTIES, PATENTS AND COPYRIGHTS                                                       Thisdocumenthasbeenapprovedand
           3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend endorsed by The Associated General
           suits or claims for infringement of copyrights and patent rights and shall hold the Owner and · Contractors of America
           Architect harmless from loss on account thereof, but shall not be responsible for such defense
           or loss when a particular design, process or product of a particular manufacturer or
           manufacturers is required by the Contract Documents or where the copyright violations are
           contained in Drawings, Specifications or other . documents prepared by the Owner or
           Architect. However, if the Contractor has reason to believe that the required design, process
           or product is an infringement of a copyright or a patent, the Contractor shall be responsible for
           such loss unless such information is promptly furnished to the Architect.

          3.18      INDEMNIFICATION
          3.18.1 To the fullest extent permitted by law and to the extent claims, damages, losses or
          expenses are Redacted
          Redacted                                              , the Contractor shall indemnify and hold
          harmless the Owner, Architect, Architect's consultants, and agents and employees of any of
          them from and against claims, damages, losses and expenses, including but not limited to
          attorneys' fees, arising out of or resulting from performance of the Work, provided that such
          claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to
          injury to or destruction of tangible property (other than the Work itself), but only to the extent
          caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly
          or indirectly employed by them or anyone for whose acts they may be liable, regardless of
          whether or not such claim, damage, loss or expense is caused in part by a party indemnified
          hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or
          obligations of indemnity which would otherwise exist as to a party or person described in this
          Paragraph 3 .18.


                                                                                                                                                                                                                                €:>1997 AIM!J
-;;;©:-:C~o-:p-yn-::·g"Lh;-t1~9::::17
                                    1 ,-1:-::9:71:::-5,"""1"'9""'18::-,'""1~92;:-;5:-,719;:-;3:::::7:-,""'19::-::5"'"1-,1:-::9""5"'"8,-:1:-::9"'"6-:-1,""'1"'9""'63::-,'""1~96""6'""",719"'6:::::7:-,""'19:::::7:::0-,1""'9""7:::-6,-:1"'9""'87=-,-:1"""99"'7:-,b:--y AlA DOCUMENT A201 " 1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                     GENERAL CONDITIONS OF THE
quotation of its provisions without written petmission of the AlA violates the copyright laws of the United States                                                                                                              CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                             ,        .           .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                         The Amencan lnst1tute of Architects
petmission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                 1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                      Washtngton, D.C. 20006-5292
This document Is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                        20
      3.18.2 In claims against any person or entity indemnified under this Paragraph 3.18 by an
      employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them
      or anyone for whose acts they may be liable, the indemnification obligation under
      Subparagraph 3.18.1 shall not be limited by a limitation on amount or type of damages,
      compensation or benefits payable by or for the Contractor or a Subcontractor under workers'
      compensation acts, disability benefit acts or other employee benefit acts.

ARTICLE 4 ADMINISTRATION OF THE CONTRACT
   4.1      ARCHITECT
   4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity
   lawfully practicing architecture identified as such in the Agreement and is referred to
   throughout the Contract Documents as if singular in number. The term "Architect" means the
   Architect or the Architect's authorized representative.                                    THIS DOCUMENT HAS IMPORTANT
                                                                                               LEGAL CONSEQUENCES.
      4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the
                                                                                               CONSUL TAT/ON WITH AN
      Contract Documents shall not be restricted, modified or extended without written consent of
                                                                                               ATTORNEY IS ENCOURAGED WITH
                                    .                                           .              RESPECT TO ITS COMPLETION OR
      the Owner, Contractor and Architect. Consent shall not be unreasonably Withheld.         MOD/FICA TION. AUTHENTICATION
                                                                                               OF THIS ELECTRONICALLY
      4.1.3 If the employment of the Architect is terminated, the Owner shall employ a new DRAFTED AlA DOCUMENT MAY BE
      Architect against whom the Contractor has no reasonable objection and whose status under MADE BY USING AlA DOCUMENT
                                                                                                                                    D401.
      the Contract Documents shall be that of the former Architect.
                                                                                                                                    This document has been approved and
      4.2      ARCHITECT'S ADMINISTRATION OF THE CONTRACT                                          endorsed by The Associated General
      4.2.1 The Architect will provide administration of the Contract as described in the Contractors of America
      Contract Documents, and will be an Owner's representative (1) during construction, (2) until
      final payment is due and (3) with the Owner's concurrence, from time to time during the one-
      year period for correction of Work described in Paragraph 12.2. The Architect will have
      authority to act on behalf of the Owner only to the extent provided in the Contract
      Documents, unless otherwise modified in writing in accordance with other provisions of the
      Contract.

      4.2.2 The Architect, as a representative of the Owner, will visit the site at intervals
      appropriate to the stage of the Contractor's operations (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 will not be required to make exhaustive or continuous on-site inspections to
      check the quality or quantity of the Work. The Architect will neither have control over or
      charge of, nor be responsible for, the construction means, methods, techniques, sequences or
      procedures, or for the safety precautions and programs in connection with the Work, since
      these are solely the Contractor's rights and responsibilities under the Contract Documents,
      except as provided in Subparagraph 3.3.1.

      4.2.3 The Architect will not be responsible for the Contractor's failure to perform the Work
      in accordance with the requirements of the Contract Documents. The Architect will not have
      control over or charge of and will not be responsible for acts or omissions of the Contractor,
      Subcontractors, or their agents or employees, or any other persons or entities performing
      portions of the Work.                                                                          --'"""'"""'"-
                                                                                                                                    @1997 AINil>
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                      1,-1~9~15~,~1~9~18~,~1~92~5~.-.1~93~7~,7
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                                                                                                                19~7~0-,~19~7~6.~1~9~87~.-.1~9~97~b~y ~ADOCUMENTA201·1~7
The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                          GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                  CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                 .       .            .
laws and will subject the violator to legal prosecution. This document was electronically produced with                             The Amencan Institute of Architects
permission of the AlA and can be reproduced in accOrdance with your license without violation until the date of                     1735 ~ew York Avenue, N.W.
expiration as noted below.                             '                                                                            Washmgton, D.C. 20006-5292
This document is not an original ~A® Contract Document, but a reproduction produced by ~A®
Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                21
             4.2.4 Communications Facilitating Contract Administration.                       Except as
             otherwise provided in the Contract Documents or when direct communications have been
             specially authorized, the Owner and Contractor shall endeavor to communicate with each
             other through the Architect about matters arising out of or relating to · the Contract
             Communications by and with the Architect's consultants shall be through the Architect.
             Communications by and with Subcontractors and material suppliers shall be through the
             Contractor. Communications by and with separate contractors shall be through the Owner.

             4.2.5    Based on the Architect's evaluations of the Contractor's Applications for Payment,
             the Architect will review and certify the amounts due the Contractor and will issue
             Certificates for Payment in such amounts.
                                                                                                                                                                                                                                                                         THIS DOCUMENT HAS IMPORTANT
             4.2.6     The Architect will have authority to reject Work that does not conform to the                                                                                                                                                                     LEGAL CONSEQUENCES.
             Contract Documents. Whenever the Architect considers it necessary or advisable, the                                                                                                                                                                         CONSULTATION WITH AN
             Architect will have authority to require inspection or testing of the Work in accordance with                                                                                                                                                               ATTORNEY IS ENCOURAGED WITH
                                                                                    .      .       .                                                                                                                                                                     RESPECT TO ITS COMPLETION OR
             Subparagraphs 13.5.2 and 13.5.3, whether or not such Work ts fabncated, mstalled or                                                                                                                                                                         MODIFICATION. AUTHENTICATION
             completed. However, neither this authority of the Architect nor a decision made in good faith                                                                                                                                                               OF THIS ELECTRON/CALL y
             either to exercise or not to exercise such authority shall give rise to a duty or responsibility of                                                                                                                                                         DRAFTED AlA DOCUMENT MAY BE
             the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents                                                                                                                                                             MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                         0401
             or employees, or other persons or entities perfonning portions of the Work.                                                                                                                                                                                      ·
                                                                                                              This document has been approved and
             4.2.7    The Architect will review and approve or take other appropriate action upon the endorsed by The Associated General
             Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the Contractors of America.
             limited purpose of checking for confonnance with information given and the design concept
             expressed in the Contract Documents. The Architect's action will be taken with such
             reasonable promptness as to cause no 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 pennit adequate review. Review of such submittals is not conducted
             for the purpose of detennining the accuracy and completeness of other details such as
             dimensions and quantities, or for substantiating instructions for installation or perfonnance of
             equipment or systems, all of which remain the .responsibility of the Contractor as required by
             the Contract Documents. The Architect's review of the Contractor's submittals shall not
             relieve the Contractor of the obligations under Paragraphs 3.3, 3.5 and 3.12. The Architect's
             review shall not constitute 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 a specific item shall not indicate approval of an
             assembly of which the item is a component.

             4.2.8   The Architect will prepare Change Orders and Construction Change Directives, and
             may authorize minor changes in the Work as provided in Paragraph 7.4.

             4.2.9    The Architect will conduct inspections to determine the date or dates of Substantial
                                                                                                                                                                                                                                                                              -
                                                                                                                                                                                                                                                                         -~·
             Completion and the date of final completion, will receive and forward to the Owner, for the
             Owner's review and records, written warranties and related documents required by the

                                                                                                                                                                                                                                                                         ~J&
             Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon
             compliance v.ith the requirements of the Contract Documents.                                                                                                                                                                                                .........,...........


""'©"""C"'"o-p-yn-:-·g"'"h-:-t-:-:19""'1-:-1-,1'"'9:-:-1-=-5,-1'""9..,..18=-,-=1-::-92""5"","""1"'93::-:7:-,-:-19:-:5""'1-,1""'9:-::5'"""8,-1'""9""6.,. .1,-:1'""9"'63=-,-:1-=-96""6:-,-:-19""6:-::7:-,""'19::-:7=-=o-,1""'9='=7"'"6,-1""98""7=','""'1"'=9""97::-b:--y
                                                                                                                                                                                                                                                                         ----·-
                                                                                                                                                                                                                                                                         1!)1997   AJ~
                                                                                                                                                                                                                                                                         AlA DOCUMENT A201 - 1997
 The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                              GENERAL CONDITIONS OF THE
 quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                                                                                                                                                      CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                     .        .          .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                 The Amencan lnstiMe of Architects
 pennission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                         1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                              Washington, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                               22
             4.2.1 0 If the Owner and Architect agree, the Architect will provide one or more project
             representatives to assist in carrying out the Architect's responsibilities at the site. The duties,
             responsibilities and limitations of authority of such project representatives shall be as set forth
             in an exhibit to be incorporated in the Contract Documents.

             4.2.11 The Architect will interpret and decide matters concerning performance under and
             requirements of, the Contract Documents on written request of either the Owner or
             Contractor. The Architect's response to such requests will be made in writing within any time
             limits agreed upon or otherwise with reasonable promptness. If no agreement is made
             concerning the time within which interpretations required of the Architect shall be furnished
             in compliance with this Paragraph 4.2, then delay shall not be recognized on account of
             failure by the Architect to furnish such interpretations until 15 days after written request is
             made for them.                                                                                  THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                      LEGAL CONSEQUENCES.
             4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and CONSUL TAT/ON WITH AN
             reasonably inferable from the Contract Documents and will be in writing or in the form of                                                                                                                                                                ATTORNEY IS ENCOURAGED WITH
                    ·
             drawmgs.  When rnaking sueh mterpretat:Ions
                                           ·          ·         · · 'al d eciSions,
                                                           and mltl         · ·     the Arch'!teet WI·11 en deavor                                                                                                                                                    RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                                      MODIFICATION AUTHENTICATION
             to secure faithful performance by both Owner and Contractor, will not show partiality to                                                                                                                                                                 OF THIS ELECTRONICALLY
             either and will not be liable for results of interpretations or decisions so rendered in good                                                                                                                                                            DRAFTED AlA DOCUMENT MAY BE
             faith.                                                                                                                                                                                                                                                   MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                      D401.

             4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if This document has been approved and
             consistent with the intent expressed in the Contract Documents.                           endorsed by The Associated General
                                                                                                                                                                                                                                                                      Contractors of America.
             4.3                   CLAIMS AND DISPUTES
             4.3.1                 Definition. A Claim is a demand or assertion by one of the parties seeking, as a
             matter of right, adjustment or interpretation of Contract terms, payment of money, extension
             of time or other relief with respect to the terms of the Contract. The term "Claim" also
             includes other disputes and matters in question between the Owner and Contractor arising out
             of or relating to the Contract. Claims must be iuitiated by written notice. The responsibility to
             substantiate Claims shall rest with the party making the Claim.

             4.3.2 Time Limits on Claims. Claims by either party must be initiated within 21 days
             after occurrence of the event giving rise to such Claim or within 21 days after the claimant
             first recognizes the condition giving rise to the Claim, whichever is later. Claims must be
             initiated by written notice to the Architect and the other party.

            4.3.3 Continuing Contract Performance. Pending final resolution of a Claim except
            as otherwise agreed in writing or as provided in Subparagraph 9.7.1 and Article 14, the
            Contractor shall proceed diligently with performance of the Contract and the Owner shall
            continue to make payments in accordance with the Contract Documents.

            4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered
            at the site which are (1) subsurface or otherwise concealed physical conditions which differ
            materially from those indicated in the Contract Documents or (2) unknown physical
            conditions of an unusual natnre, which differ materially from those ordinarily found to exist
            and generally recognized as inherent in construction activities of the character provided for in
            the Contract Documents, then notice by the observing party shall be given to the other party
            promptly before conditions are disturbed and in no event later than 21 days after first --'"""'"""'"'-·
                                                                                                                                                                                                                                                                      01997 NA®
"'©'"""C"'"o_p_y.. ,.rig-:-h-:-t-.-19""1""1-,-:-::19'"'1-:::5,-1:-::9o-:1""s,""'1"'9""25::-,-:1-::-93=-=7=-,-:-1"'95::-:1-,"'"19""'58=-,-.:19::-:6:-:-1.-1-:-::9"'63"",-1"'9-=66::-,-:1-=-96-=-=7=-,-:19""7::-:0c-,"'"19""7""6-,1-:-:9:-::8=7,-1:-::9""9:::-7.,--by   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                          GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                   CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                  .        .           .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                              The Amencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license withoufviolation until the date of                                                                                                                                                       1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                           Washington, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                            23
              observance of the conditions. The Architect will promptly investigate such conditions and, if
              they differ materially and cause an increase or decrease in the Contractor's cost of, or time
              required for, performance of any part of the Work, will recommend an equitable adjustment in
              the Contract Sum or Contract Time, or both. If the Architect determines that the conditions at
              the site are not materially different from those indicated in the Contract Documents and that
              no change in the terms of the Contract is justified, the Architect shall so notify the Owner and
              Contractor in writing, stating the reasons. Claims by either party in opposition to such
              determination must be made within 21 days after the Architect has given notice of the
              decision. If the conditions encountered are materially different, the Contract Sum and
              Contract Time shall be equitably adjusted, but if the Owner and Contractor cannot agree on an
              adjustment in the Contract Sum or Contract Time, the adjustment shall be referred to the
              Architect for initial determination, subject to further proceedings pursuant to Paragraph 4.4.
                                                                                                                                                                                                                                                                                                   THIS DOCUMENT HAS IMPORTANT
              4.3.5                     Claims for Additional Cost. If the Contractor wishes to make Claim for an LEGAL CONSEQUENCES.
              increase in the Contract Sum, written notice as provided herein shall be given before CONSUL TAT/ON WITH AN
              proceeding to execute the Work. Prior notice is not required for Claims relating to an ATTORNEY IS ENCOURAGED WITH
                                                                                                     RESPECT TO ITS COMPLETION OR
              emergency endangering life or property arising under Paragraph 10.6.
                                                                                                                MODIFICATION. AUTHENTICATION
                                                                                                                OF THIS ELECTRON/CALLY
              4.3.6 If the Contractor believes additional cost is involved for reasons including but not DRAFTED AlA DOCUMENT MAY BE
              limited to (1) a written interpretation from the Architect, (2) an order by the Owner to stop the MADE BY USING AlA DOCUMENT
                                                                                                                D401.
              Work where the Contractor was not at fault, (3) a written order for a minor change in the
              Work issued by the Architect, (4) failure of payment by the Owner, (5) termination of the This document has been approved and
              Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim shall endorsed by The Associated General
              be filed in accordance with this Paragraph 4.3.                                            Contractors of America


              4.3.7 Claims for Additional Time
              4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written
              notice as provided herein shall be given. The Contractor's Claim shall include an estimate of
              cost and of probable effect of delay on progress of the Work. In the case of a continuing delay
              only one Claim is necessary.

              4.3.7.2 If adverse weather conditions are the basis for a Claim for additional time, such
              Claim shall be documented by data substantiating that weather conditions were abnormal for
              the period of time, could not have been reasonably anticipated and had an adverse effect on
              the scheduled construction.

              4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers
              injury or damage to person or property because of an act or omission of the other party, or of
              others for whose acts such party is legally responsible, written notice of such injury or
              damage, whether or not insured, shall be given to the other party within a reasonable time not
              exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the
              other party to investigate the matter.

              4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon, and ~~
              if quantities originally contemplated are materially changed in a proposed Change Order or
              Construction Change Directive so that application of such unit prices to quantities of Work
                                                                                                                                                                                                                                                                                                      -
              proposed will cause substantial inequity to the Owner or Contractor, the applicable unit prices ~ •.. _ .• ~
              shall be equitably adjusted.                                                                    _.•"•·,. __

                                                                                                                                                                                                                                                                                                   @1997 AlA®
""©'"""Co=-p-yr""'"ig""'"h.,-t""19""'1c-:-1-,1.,. ,9'""'1-=5,-1"'9""'"18.,. .,. . ,1'""9"'25=-,. . ,1"""93::c::7:-,""'"19""'5""'1-,""'"'19'""5'"'"8-,1"'"'9_,.6..,..1,-1,_9...,.63=-,_,1..,.96-6-,""'"1..,. 96'""7.,. ,""'"19.,..,7"'0-,""'"'19'""7,.,.6,-1'"'9-87,....,-1...,.9"'"'97,.,...._by   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                                        GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                                CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                               .       .            .
 laws and will subject ·the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                          The Amencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                                   1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                                        Washmgton, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                        24
       4.3.10 Claims for Consequential Damages. The Contractor and Owner waive Claims
       against each other for consequential damages arising out of or relating to this Contract. This
       mutual waiver includes:
                .1 damages incurred by the Owner for rental expenses, for losses of use, income,
                    profit, financing, business and reputation, and for loss of management or
                    employee productivity or of the services of such persons; and
                .2 damages incurred by the Contractor for principal office expenses including the
                    compensation of personnel stationed there, for losses of financing, business and
                    reputation, and for loss of profit except anticipated profit arising directly from
                    the Work.

      This mutual waiver is applicable, without limitation, to all consequential damages due to
      either party's termination in accordance with Article 14. Nothing contained in this THIS DOCUMENT HAS IMPORTANT
      Subparagraph 4.3.10 shall be deemed to preclude an award of liquidated direct damages, LEGAL CONSEQUENCES.
      when applicable, in accordance with the requirements of the Contract Documents.           CONSUL TAT/ON WITH AN
                                                                                                                                   ATTORNEY IS ENCOURAGED WITH
                                                                                                                                   RESPECT TO ITS COMPLETION OR
      4.4      RESOLUTION OF CLAIMS AND DISPUTES
                                                                                                                                   MODIFICATION. AUTHENTICATION
      4.4.1 Decision of Architect. Claims, including those alleging an error or omission by                                        OF THIS ELECTRON/CALLY
      the Architect but excluding those arising under Paragraphs 10.3 through 10.5, shall be                                       DRAFTED AlA DOCUMENT MAY BE
      referred initially to the Architect for decision. An initial decision by the Architect shall be                              MADE BY USING AlA DOCUMENT
                                                                                                                                   D401.
      required as a condition precedent to mediation, arbitration or litigation of all Claims between
      the Contractor and Owner arising prior to the date final payment is due, unless 30 days have                                 This docUment has been approved and
      passed after the Claim has been referred to the Architect with no decision having been                                       endorsed by The Associated General
      rendered by the Architect. The Architect will not decide disputes between the Contractor and                                 Contractors of America.
      persons or entities other than the Owner.

      4.4.2 The Architect will review Claims and within ten days of the receipt of the Claim take
      one or more of the following actions: (1) request additional supporting data from the claimant
      or a response with supporting data from the other party, (2) reject the Claim in whole or in
      part, (3) approve the Claim, (4) suggest a compromise, or (5) advise the parties that the
      Architect is unable to resolve the Claim if the Architect lacks sufficient information to
      evaluate the merits of the Claim or if the Architect concludes that, in the Architect's sole
      discretion, it would be inappropriate for the Architect to resolve the Claim.

      4.4.3 In evaluating Claims, the Architect may, but shall not be obligated to, consult with or
      seek information from either party or from persons with special knowledge or expertise who
      may assist the Architect in rendering a decision. The Architect may request the Owner to
      authorize retention of such persons at the Owner's expense.

      4.4.4 If the Architect requests a party to provide a response to a Claim or to furnish
      additional supporting data, such party shall respond, within ten days after receipt of such
      request, and shall either provide a response on the requested supporting data, advise the
      Architect when the response or supporting data will be furnished or advise the Architect that
      no supporting data will be furnished. Upon receipt of the response or supporting data, if any,
      the Architect will either reject or approve the Claim in whole or in part.

      4.4.5 The Architect will approve or reject Claims by written decision, which shall state the
      reasons therefor and which shall notify the parties of any change in the Contract Sum or
                                                                                                                                   --'"""'"""'"-·--
                                                                                                                                  ©1997 AIN!j
~©~Co~p~y7.rig~h7
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                                                                                                                 19~7~0~.~19~7~6,~1~9~87~.~1~9~97~cy AIADOCUMENT~1-1M7
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                       GENERAL CONDITIONS OF THE
quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                             r .        .           .
laws and will subject the violator to legal prosecution. This document was electronically produced with                           The Amencan Institute of Archrtects
pennission of the AlA and can be reproduced in accordance with your license without violation until the date of                   1735 ~~w York Avenue, N.W.
expiration as noted below.                                                                                                        Washrngton, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software tor administrative purposes only and is not tor other use or resale.
                                                                                                                25
            Contract Time or both. The approval or rejection of a Oaim by the Architect shall be final
            and binding on the parties but subject to mediation and arbitration.

            4.4.6     When a written decision of the Architect states that (1) the decision is final but
            subject to mediation and arbitration and (2) a demand for arbitration of a Claim covered by
            such decision must be made within 30 days after the date on which the party making the
            demand receives the final written decision, then failure to demand arbitration within said 30 ·
            days' period shall result in the Architect's decision becoming final and binding upon the
            Owner and Contractor. If the Architect renders a decision after arbitration proceedings have
            been initiated, such decision may be entered as evidence, but shall not supersede arbitration
            proceedings unless the decision is acceptable to all parties concerned.

            4.4. 7   Upon receipt of a Claim against the Contractor or at any time thereafter, the          THIS DOCUMENT HAS IMPORTANT
            Architect or the Owner may, but is not obligated to, notify Redacted , if any, of the nature andLEGAL CONSEQUENCES.
            amount of the Claim. If the Claim relates to a possibility of a Contractor's default, the       CONSULTATION WITH AN
            Architect or the Owner may but is not obligated to notii)Redacted       and request Redacted    ATTORNEY IS ENCOURAGED WITH
                .       .       .        '                     '               -                         -  RESPECT TO ITS COMPLETION OR
             assistance m resolvmg the controversy.                                                         MODIFICATION. AUTHENTICATION
                                                                                                            OF THIS ELECTRON/CALLY
             4.4.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such DRAFTED AlA DOCUMENT MAY BE
             Claim may proceed in accordance with applicable law to CO!flply with the lien notice or filing MADE BY USING AlA DOCUMENT
                                                                                                            D401.
             deadlines prior to resolution of the Oaim by the Architect, by mediation or by arbitration.
                                                                                                                  This document has been approved and
             4.5                    MEDIATION                                                                     endorsed by The Associated General
             4.5.1                 Any Claim arising out of or related to the Contract, except Claims relating to Contractors of America.
             aesthetic effect and except those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and
             9.1 0.5 shall, after initial decision by the Architect or 30 days after submission of the Claim to
             the Architect, be subject to mediation as a.condition precedent to arbitration or the institution
             of legal or equitable proceedings by either party.

            4.5.2 The parties shall endeavor to resolve their Claims 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 the Contract 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.

            4.5.3    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.

             4.6                    ARBITRATION
             4.6.1   Any Claim arising out of or related to the Contract, except Claims relating to
            aesthetic effect and except those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and
            9.10.5, shall, after decision by the Architect or 30 days after submission of the Claim to the
            Architect, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve                                                                                                                                                       _,..,...,.,.____
            disputes by mediation in accordance with the provisions of Paragraph 4.5.
                                                                                                                                                                                                                                                                    @1997 All¥&
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                                                                                                                   AlA DOCUMENT A201 ·1997
The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial GENERAL CONDITIONS OF THE
quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photo<;opying violates U.S. copyright               .        .          .
laws and will subject the violator to legal prosecution. This document was electronically produced with The Amencan Institute of Archttects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of· 1735 ~ew York Avenue, N.W.
expiration as noted below.                                  ·                                                      Washtngton, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                26
              4.6.2 Claims not resolved by mediation shall 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 the Contract and with the American
              Arbitration Association, and a copy shall be filed with the Architect.

              4.6.3 A demand for arbitration shall be made within the time limits specified in
              Subparagraphs 4.4.6 and 4.6.1 as applicable, and in other cases within a reasonable time after
              the Claim has arisen, and in no event shall it be made after the date when institution of legal
              or equitable proceedings based on such Claim would be barred by the applicable statute of
              limitations as determined pursuant to Paragraph 13.7.
                                                                                                                                                                                                                                                                                            THIS DOCUMENT HAS IMPORTANT
             4.6.4 Limitation on Consolidation or Joinder. No arbitration arising out of or                                                                                                                                                                                                 LEGAL CONSEQUENCES.
             relating to the Contract shall include, by consolidation or joinder or in any other manner, the                                                                                                                                                                                CONSULTATION WITH AN
             Architect, the Architect's employees or consultants, except by written consent containing                                                                                                                                                                                      ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                            RESPECT TO ITS COMPLETION OR
             specific reference to the Agreement and signed by the Architect, Owner, Contractor and any                                                                                                                                                                                     MOD/FICA TION. AUTHENTICATION
             other person or entity sought to be joined. No arbitration shall include, by consolidation or                                                                                                                                                                                  OF THIS ELECTRON/CALLY
             joinder or in any other manner, parties other than the Owner, Contractor, a separate contractor                                                                                                                                                                                DRAFTED AlA DOCUMENT MAY BE
             as described in Article 6 and other persons substantially involved in a common question of                                                                                                                                                                                     MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                            D401.
             fact or law whose presence is required if complete relief is to be accorded in arbitration. No
             person or entity other than the Owner, Contractor or a separate contractor as described in                                                                                                                                                                                     This document has been approved and
             Article 6 shall be included as an original third party or additional third party to an arbitration                                                                                                                                                                             endorsed by The Associated General
             whose interest or responsibility is insubstantial. Consent to arbitration involving an additional                                                                                                                                                                              Contractors of America.
             person or entity shall not constitute consent to arbitration of a Claim not described therein 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 the Agreement shall be specifically enforceable under applicable law in any court
             having jurisdiction thereof.

              4.6.5 Claims and Timely Assertion of Claims. The party filing a notice of demand
              for arbitration must assert in the demand all Claims then known to that party on which
              arbitration is permitted to be demanded.

             4.6.6 Judgment on Final Award. 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.

 ARTICLE 5 SUBCONTRACTORS
    5.1      DEFINITIONS
    5.1.1    A Subcontractor is a person or entity who has a direct contract with the Contractor to
    perform a portion of the Work at the site. The term "Subcontractor" is referred to throughout
    the Contract Documents as if singular in number and means a Subcontractor or an authorized
    representative of the Subcontractor. The term "Subcontractor" does not include a separate
    contractor or subcontractors of a separate contractor.

             5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a
             Subcontractor to perform a portion of the Work at the site. The term "Sub-subcontractor" is

                                                                                                                                                                                                                                                                                            C1997~
'-'©~C~o=-=p::-:yr7
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                                                                                                                                                                                                                           19;::::7:::0~,:;-;19::::7::::6,-:1:-::98=7,-:1;-;:9~97:;-;--by   AlA DOCUMENT A201 • 1997
The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial.                                                                                                                                                                                 GENERAL CONDITIONS OF THE
quotation of its provisions without written pem1ission of the AlA violates the copyright laws of the United States                                                                                                                                                                          CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                     The American Institute of Architects
pem1ission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                             1735 New York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                                                                                  Washing1on, D.C. 20006·5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                27
            referred to throughout the Contract Documents as if singular in number and means a Sub-
            subcontractor or an authorized representative of the Sub-subcontractor.

             5.2                     AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR
                                     PORTIONS OF THE WORK
            5.2.1    Unless otherwise stated in the Contract Documents or the bidding requirements, the
            Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the
            Owner through the Architect the names of persons or entities (including those who are to
            furnish materials or equipment fabricated to a special design) proposed for each principal
            portion of the Work. The Architect will promptly reply to the Contractor in writing stating
            whether or not the Owner or the Architect, after due investigation, has reasonable objection to
            any such proposed person or entity. Failure of the Owner or Architect to reply promptly shall
            constitute notice of no reasonable objection.                                                   THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                                  LEGAL CONSEQUENCES.
             5.2.2    The Contractor shall not contract with a proposed person or entity to whom the                                                                                                                                                                              CONSULTATION WITH AN
             Owner or Architect has made reasonable and timely objection. The Contractor shall not be                                                                                                                                                                             ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                  RESPECT TO ITS COMPLETION OR
             required to contract with anyone to whom the Contractor has made reasonable objection.                                                                                                                                                                               MODIFICATION. AUTHENTICA TTON
                                                                                                                                                                                                                                                                                  OF THIS ELECTRON/CALLY
             5.2.3     If the Owner or Architect has reasonable objection to a person or entity proposed by                                                                                                                                                                       DRAFTED AlA DOCUMENT MAY BE
             the Contractor, the Contractor shall propose another to whom the Owner or Architect has no                                                                                                                                                                           MADE BY USING AlA DOCUMENT
             reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of                                                                                                                                                                           D40t.
             performing the Work, the Contract Sum and Contract Time shall be increased or decreased by                                                                                                                                                                           This document has been approved and
             the difference, if any, occasioned by such change, and an appropriate Change Order shall be                                                                                                                                                                          endorsed by The Associated General
             issued before commencement of the substitute Subcontractor's Work. However, no increase in                                                                                                                                                                           Contractors of America
             the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has
             acted promptly and responsively in submitting names as required.

             5.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected
             if the Owner or Architect makes reasonable objection to such substitute.

             5.3                      SUBCONTRACTUAL RELATIONS
             5.3.1    By appropriate agreement, written where legally required for validity, the Contractor
             shall require each Subcontractor, to the extent of the Work to be performed by the
             Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to
             assume to.ward the Contractor all the obligations and responsibilities, including the
             responsibility for safety of the Subcontractor's Work, which the Contractor, by these
             Documents, assumes toward the Owner and Architect. Each subcontract agreement shall
             preserve and protect the rights of the Owner and Architect under the Contract Documents
             with respect to the Work to be performed by the Subcontractor so that subcontracting thereof
             will not prejudice such rights, and shall allow to the Subcontractor, unless specifically
             provided otherwise in the subcontract agreement, the benefit of all rights, remedies and
             redress against the Contractor that the Contractor, by the Contract Documents, has against the
             Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into
             similar agreements with Sub-subcontractors. The Contractor shall make available to each
             proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the
             Contract Documents to which the Subcontractor will be bound, and, upon written request of
             the Subcontractor, identify to the Subcontractor terms and conditions of the proposed
             subcontract agreement which may be at variance with the Contract Documents.                                                                                                                                                                                          ___!!!!!!!!!!!!!!!!!.. __


                                                                                                                                                                                                                                                                                  C1997 All>$
""©"'"Co-:::-p-y..,.rig..,.h7t -.-19=-1:-.1-,"'"'19""1,-;:5-,1"'"'9""'1"'"8,-1:-::9c:-25"'",. . ,1'""93"'7=-,...,1""95""'1,...,-:-19""'58=-,.,.,19'"'6...,.1,-1'""'9,..,63,..,-1""9..,.66.,...,....,1-=-96'"'7=-,...,.19'"'7""'0-,..,.19,..,7"'6-,1"'"'9-8=7,-1,_9-97,..,...-by   AlA DOCUMENT A201 • 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                      GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                               CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                              .        .           .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                          The Amencan lnst1tute of Architects
 permission of th~ AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                  1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                       Washington, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                         28
      Subcontractors will similarly make copies of applicable portions of such documents available
      to their respective proposed Sub-subcontractors.

      5.4      CONTINGENT ASSIGNMENT OF SUBCONTRACTS
      5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor
      to the Owner provided that:
               .1 assignment is effective only after termination of the Contract by the Owner for
                   cause pursu3,11t to Paragraph 14.2 and only for those subcontract agreements
                   which the Owner accepts by notifying the Subcontractor and Contractor in
                   writing; and
              .2 assignment is subject to the prior rights of th~edacted if any, obligated under
                  ~~ac relating to the Contract.

                                                                                                                                   THIS DOCUMENT HAS IMPORTANT
      5.4.2    Upon such assignment, if the Work bas been suspended for more than 30 days, the LEGAL CONSEQUENCES.
      Subcontractor's compensation shall be equitably adjusted for increases in cost resulting from CONSUL TAT/ON WITH AN
      the suspension.                                                                               ATTORNEY IS ENCOURAGED WITH
                                                                                                                                   RESPECT TO ITS COMPLETION OR
                                                                                                                                   MOD/FICA T/ON. AUTHENTICATION
ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS                                                                         OF THIS ELECTRON/CALLY
   6.1      OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD                                                                     DRAFTED AlA DOCUMENT MAY BE
            SEPARATE CONTRACTS                                                                                                     MADE BY USING AlA DOCUMENT
                                                                                                                                   D401.
   6.1.1 The Owner reserves the right to perform construction or operations related to the
   Project with the Owner's own forces, and to award separate contracts in connection with other This document has been approved and
   portions of the Project or other construction or operations on the site under Conditions of the endorsed by The Associated General
   Contract identical or substantially similar to these Redacted _            _                     Contractors of America
  Redacted                              . If the Contractor claims that delay or additional cost is
   involved because of such action by the Owner, the Contractor shall make such Claim as
   provided in Paragraph 4.3.

      6.1.2    When separate contracts are awarded for different portions of the Project or other
      construction or operations on the site, the term "Contractor" in the Contract Documents in
      each case shall mean the Contractor who executes each separate Owner-Contractor
      Agreement.

      6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces
      and of each separate contractor with the Work of the Contractor, who shall cooperate with
      them. The Contractor shall participate with other separate contractors and the Owner in
      reviewing their construction schedules when directed to do so. The Contractor shall make any
      revisions to the construction schedule deemed necessary after a joint review and mutual
      agreement The construction schedules shall then constitute the schedules to be used by the
      Contractor, separate contractors and the Other until subsequently revised.

      6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs
      construction or operations related to the Project with the Owner's own forces, the Owner shall
      be deemed to be subject to the same obligations and to have the same rights which apply to
      the Contractor under the Conditions of the Contract, including, without excluding others,
      those stated in Article 3, this Article 6 and Articles 10, 11 and 12.

      6.2         MUTUAL RESPONSIBILITY

                                                                                                                                  ©1997 N/>0
~©~C~o~p~yn
          7
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                                                                                     1,~1~9~~~.~1~96~6~.~1~96~7~,7
                                                                                                                 19~7~0~,7.19~7~6-,1~00~7,~1~9~97~by ~ADOCUMENT~01·1~7
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                       GENERAL CONDITIONS OF THE
quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                               .       .            .
laws and will subject the violator to legal prosecution. This document was electronically produced with                           The Amencan Institute of Architects
pennission of the AlA and can be reproduced in accordance with your license without violation until the date of                   1735 ~ewYorkAvenue, N.W.
expiration as noted below.                                                                                                        Washmgton, D.C. 20006-5292
This document is not an original ~A® Contract Document, but a reproduction produced by AJA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                29
            6.2.1     The Contractor shall afford the Owner and separate contractors reasonable
            opportunity for introduction and storage of their materials and equipment and performance of
            their activities, and shall connect and coordinate the Contractor's construction and operations
            with theirs as required by the Contract Documents.

            6.2.2 If part of the Contractor's Work depends for proper execution or results upon
            construction or operations by the Owner or a separate contractor, the Contractor shall, prior to
            proceeding with that portion of the Work, promptly report to the Architect apparent
            discrepancies or defects in such other construction that would render it unsuitable for such
            proper execution and results. Failure of the Contractor so to report shall constitute an
            acknowledgment that the Owner's or separate contractor's completed or partially completed
            construction is fit and proper to receive the Contractor's Work, except as to defects not then
            reasonably discoverable.                                                                         THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                               LEGAL CONSEQUENCES.
            6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner                                                                                                                                                              CONSULTATIONWITHAN
            which are payable to a separate contractor because of delays improperly timed activities or                                                                                                                                                        ATTORNEY IS ENCOURAGED WITH
                   .            .                                         '     .                                                                                                                                                                              RESPECT TO ITS COMPLETION OR
            defective constructiOn of the Contractor. The Owner shall be responsible to the Contractor for                                                                                                                                                     MOD/FICA TION AUTHENTICATION
            costs incurred by the Contractor because of delays, improperly timed activities, damage to the                                                                                                                                                     OF THIS ELECTRON/CALL y
            Work or defective construction of a separate contractor.                                                                                                                                                                                           DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                               MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                               0401.
            6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor
            to completed or partially completed construction or to property of the Owner or separate This document has been approved and
            contractors as provided in Subparagraph 10.2.5.                                          endorsed by The Associated General
                                                                                                                                                                                                                                                               Contractors of America
            6.2.5 The Owner and each separate contractor shall have the same responsibilities for
            cutting and patching as are described for the Contractor in Subparagraph 3.14.

            6.3       OWNER'S RIGHT TO CLEAN UP
            6.3.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the
            responsibility under their respective contracts for maintaining the premises and surrounding
            area free from waste materials and rubbish, the Owner may clean up and the Architect will
            allocate the cost among those responsible.

 ARTICLE 7 CHANGES IN THE WORK
    7.1      GENERAL
    7.1.1    Changes in the Work may be accomplished after execution of the Contract, and
    without invalidating the Contract, by Change Order, Construction Change Directive or order
    for a minor change in the Work, subject to the limitations stated in this Article 7 and
    elsewhere in the Contract Documents.

            7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and
            Architect; a Construction Change Directive requires agreement by the Owner and Architect
            and may or may not be agreed to by the Contractor; an order for a minor change in the Work
            may be issued by the Architect alone.

            7.1.3   Changes in the Work shall be performed under applicable provisions of the Contract
            Documents, and the Contractor shall proceed promptly, unless otherwise provided in the
            Change Order, Construction Change Directive or order for a minor change in the Work.

                                                                                                                                                                                                                                                               C1997   PJ~
""©,..-C""o_p_y..,.rig..,.h-:-t""19""1'""1-,""'19'"'1-=5,-1=-=9..,.18"'",....,1-=-92'="5=-,...,1""93=-=7=-,...,.19""5'"'1-,.,..19'"'5""8-,...,19'"'6...,.1,-1,_9-63-,-1-9-66-,...,.1.,..96""'7,...,..,..19=7=0-,.,..19=7--6,-1""98-=7,-1,...9-97......,.--by   AlA DOCUMENT A201.·1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                   GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                            CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                           . '      .           .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                       The Amencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                               1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                    Washington, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                      30
..

                   7.2                      CHANGE ORDERS
                   7.2.1                    A Change Order is a written instrument prepared by the Architect and signed by the
                   Owner, Contractor and Architect, stating their agreement upon all of the following:

                                            .1 change in the Work;
                                            .2 the amount of the adjustment, if any, in the Contract Sum; and
                                            .3 the extent of the adjustment, if any, in the Contract Time.

                   7.2.2      Methods used in determining adjustments to the Contract Sum may include those
                   listed in Subparagraph 7.3.3.

                   7.3                     CONSTRUCTION CHANGE DIRECTIVES
                   7 .3.1                  A Construction Change Directive is a written order prepared by the Architect and THIS DOCUMENT HAS IMPORTANT
                   signed by the Owner and Architect, directing a change in the Work prior to agreement on      LEGAL CONSEQUENCES.
                   adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by          CONSULTATION WITH AN
                   Construction Change Directive, without invalidating the Contract, order changes in the Work  ATTORNEY IS ENCOURAGED WITH
                   Wl
                     'thin the general scope o f th e C ontract conststmg
                                                                    · · o f a dditions,
                                                                                  ·     de1etions
                                                                                             ·    oroth er revlSlons,
                                                                                                              · ·
                                                                                                                RESPECT TO ITS COMPLETION OR
                                                                                                                MODIFICATION. AUTHENTICATION
                   the Contract Sum and Contract Time being adjusted accordingly.                               OF THIS ELECTRON/CALL y
                                                                                                                DRAFTED AlA DOCUMENT MAY BE
                   7.3.2     A Construction Change Directive shall be used in the absence of total agreement on MADE BY USING AlA DOCUMENT
                   the terms of a Change Order.                                                                 D401.
                                                                                                             This document has been approved and
                   7.3.3   If the Construction Change Directive provides for an adjustment to the Contract endorsed by The Associated General
                   Sum, the adjustment shall be based on one of the following methods:                       Contractors of America.
                           .1 mutual acceptance of a lump sum properly iteinized and supported by sufficient
                                substantiating data to permit evaluation;
                           .2 unit prices stated in the Contract Documents or subsequently agreed upon;
                           .3 cost to be determined in a manner agreed upon by the parties and a mutually
                                acceptable fixed or percentage fee; or
                           .4 as provided in Subparagraph 7.3.6.

                  7.3.4    Upon receipt of a Construction Change Directive, the Contractor shall promptly
                  proceed with the change in the Work involved and advise the Architect of the Contractor's
                  agreement or disagreement with the method, if any, provided in the Construction Change
                  Directive for determining the proposed adjustment in the Contract Sum or Contract Time.

                  7.3.5   A Construction Change Directive signed by the Contractor indicates the agreement
                  of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the
                  method for determining them. Such agreement shall be effective immediately and shall be
                  recorded as a Change Order.

                  7.3.6     If the Contractor does not respond promptly or disagrees with the method for
                  adjustment in the Contract Sum, the method and the adjustment shall be determined by the
                  Architect on the basis of reasonable expenditures and savings of those performing the Work
                  attributable to the change, including, in case of an increase in the Contract Sum, a reasonable
                  allowance for overhead and profit. In such case, and also under Clause 7.3.3.3, the Contractor
                  shall keep and present, in such form as the Architect may prescribe, an itemized accounting
                  together with appropriate supporting data. Unless otherwise provided in the Contract
                                                                                                                                                                                                                                                                                             ---'"""""""""----

                                                                                                                                                                                                                                                                                             @1997 AIM')
     -;;©~C;:;-o:-::p:-::yr-:-::ig-;:h-:-t::-:19~1'71....,,1:-: 9: ;-1;::-5,-::1:-:::9:;-;18;:-,-::1-::-92~5=-,-::1::c93;:;:7::-,'719~5::-:1-,"'19::-::5=::8-,1::-:9"'671,-:1:-::9:=63:::-,-.1""9""66::-,-:1""96::=7::-,719;:;:7:::::0c-,""19==7"'"6,....,1'""9"'8=7,--:1:::9:::97:;-,--by   AlA DOCUMENT A201 - 1997
      The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                            GENERAL CONDITIONS OF THE
      quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                                                                                                                                                                     CONTRACT FOR CONSTRUCTION
      and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                    .        .           .
      laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                The Amencan lnstttute of Archttects
      pennission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                        1735 ~ew York Avenue, N.W.
      expiration as noted below.                                                                                                                                                                                                                                                             Washtngton, D.C. 20006-5292
      This document is not an original AJA® Contract Document, but a reproduction produced by AJA®
      Contract Documents software for administrative purposes only and is not tor other use or resale.
                                                                                                                      31
             Documents, costs for the purposes of this Subparagraph 7.3.6 shall be limited to the
             following:
                      .1 costs of labor, including social security, old age and Redacted
                         fringe benefits required by agreement or custom, and Redacted
                                                Redacted

                                     .2 costs of materials, supplies and equipment, including cost of transportation,
                                        whether incorporated or consumed;
                                     .3 rental costs of machinery and equipment, exclusive of hand tools, whether
                                        rented from the Contractor or others;
                                     .4 Redacted                                         ., permit fees, and sales, use or
                                        similar taxes related to the Work; and
                                     .5 additional costs of supervision and field office personnel directly attributable to
                                        the change.                                                                         THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                           LEGAL CONSEQUENCES.
             7.3.7     The amount of credit to be allowed by the Contractor to the Owner for a deletion or                                                                                                                                                                 CONSULTATION WITH AN
             change which results in a net decrease in the Contract Sum shall be actual net cost as                                                                                                                                                                        ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                           RESPECT TO ITS COMPLETION OR
             confirmed by the Architect. When both additions and credits covering related Work or                                                                                                                                                                          MODIFICATION. AUTHENTICATION
             substitutions are involved in a change, the allowance for overhead and profit shall be figured                                                                                                                                                                OF THIS ELECTRON/CALLY
             on the basis of net increase, if any, with respect to that change.                                                                                                                                                                                            DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                                           MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                           D401.
             7.3.8    Pending fmal determination of the total cost of a Construction Change Directive to
             the Owner, amounts not in dispute for such changes in the Work shall be included in This document has been approved and
             Applications for Payment accompanied by a Change Order indicating the parties' agreement endorsed by The Associated General
             with part or all of such costs. For any portion of such cost that remains in dispute, the Contractors of America.
             Architect will make an interim determination for purposes of monthly certification for
             payment for those costs. That determination of cost shall adjnst the Contract Sum on the same
             basis as a Change Order, subject to the right of either party to disagree and assert a claim in
             accordance with Article 4.                                                ·

             7.3.9   When the Owner and Contractor agree with the determination made by the Architect
             concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach
             agreement upon the adjustments, such agreement shall be effective immediately and shall be
             recorded by preparation and execution of an appropriate Change Order.

             7.4                     MINOR CHANGES IN THE WORK
             7.4.1    The Architect will have authority to order minor changes in the Work not involving
             adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with
             the intent of the Contract Documents. Such changes shall be effected by written order and
             shall be binding on the Owner and Contractor. The Contractor shall carry out such written
             orders promptly.

 ARTICLE 8 TIME
    8.1    DEFINITIONS
             8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized
             adjustments, allotted in the Contract Documents for Substantial Completion of the Work.

             8.1.2                    The date of commencement of the Work is the date established in the Agreement.


                                                                                                                                                                                                                                                                           ©1997 1\JMP
-;;;©:-:Co;:;--p-yr-.-ig7h-:-t::-:19::-::1-::-1-,1::-;9:-::1-:::-5,-:1:-::9718::-,"""1""'9""25=-,-.1~93::::7:-,719::-:5"""1-,""'19"'5""8,-:1:-::96"'"'"1,-:1"'9""63::-,-.1-=-96::-:6::-,"""19""6::::7::-,719""7:-::0-,"'"'19:::::7"'"6,-:1:-::9""87::-,-:1"'9""97::-;-by   AlA DOCUMENT A201 • 1997
  The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                              GENERAL CONDITIONS OF THE
  quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                       CONTRACT FOR CONSTRUCTION
.and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                       .        .           .
.laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                   The Amencan lnslttute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                           1735 ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                               Washtngton, D.C. 20006·5292
 ,This document is not an original AJP$ Contract Document, but a reproduction produced by AJA®
  Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                                                                                                                                                                 32
      8.1.3 The date of Substantial Completion is the date certified by the Architect in
      accordance with Paragraph 9.8.

      8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless
      otherwise specifically defined.

      8.2      PROGRESS AND COMPLETION
      8.2.1    Time limits stated in the Contract Documents are of the essence of the Contract. By
      executing the Agreement the Contractor confirms that the Contract Time is a reasonable
      period for performing the Work.

      8.2.2       Redacted
Redacted
                                                                                                                                      THIS DOCUMENT HAS IMPORTANT
                                                                                                                                      LEGAL CONSEQUENCES.
                                                                                                                                      CONSUL TAT/ON WITH AN
                                                                                                                                      ATTORNEY IS ENCOURAGED WITH
                                                                                                                                      RESPECT TO ITS COMPLETION OR
                                                                                                                                      MODIRCATION. AUTHENTICATION
                                                                                                                                      OF THIS ELECTRON/CALLY
                                                                                                                                      DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                      MADE BY USING AlA DOCUMENT
      8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve. D40t.
      Substantial Completion within the Contract Time.                                         This document has been approved and
                                                                                                                                      enporsed by The Associated General
      8.3       DELAYS AND EXTENSIONS OF TIME                                                        Contractors of America.
      8.3.1 If the Contractor is delayed at any time in the commencement or progress of the
      Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a
      separate contractor employed by the Owner, or by changes ordered in the Work, or by labor
      disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the
      Contractor's control, or by delay authorized by the Owner pending mediation and arbitration,
      or by other causes which the Architect determines may justify delay, then the Contract Time
      shall be extended by Change Order for such reasonable time as the Architect may determine.

      8.3.2 Claims relating to time shall be made in accordance with applicable provisions of
      Paragraph 4.3.

      8.3.3 This Paragraph 8.3 does not preclude recovery of damages for delay by either party
      under other provisions of the Contract Documents.

ARTICLE 9 PAYMENTS AND COMPLETION
   9.1       CONTRACT SUM
   9.1.1     The Contract Sum is stated in the Agreement and, inc1uding authorized adjustments,
   is the total amount payable by the Owner to the Contractor for performance of the Work
   under the Contract Documents.

      9.2     SCHEDULE OF VALUES
      9.2.1 Before the first Application for Payment, the Contractor shall submit to the Architect
      a schedule of values allocated to various portions of the Work, prepared in such form and
      supported by such data to substantiate its accuracy as the Architect may require. This

                                                                                                                                      ©1997   A~
~©~C~o-p-yn~·g~h~t~19~1~1-,1~9~1~5.~1~9~18~.~1~9~25~.~1~93~7~,-.19~5~1-,~19~5~8-,1~00~1.~1~9~63~,~1~9~66~,-.17
                                                                                                             96=7~,~19=7=o~.~19~7~6,~1~9~8~7.~1~9~97~by AIADOCUMENTMW1·1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                           GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                    CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                    .       .          .
laws and will subject the violator to legal prosecution. This document was electronically produced with                               The Amencan lnstrMe of Archrtects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                       1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                            Washrngton, D.C. 20006·5292
This document is not an original Al~ Contract Document, but a reproduction produced by Al~
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                33
      schedule, unless objected to by the Architect, shall be used as a basis for reviewing the
      Contractor's Applications for Payment.

      9.3         APPLICATIONS FOR PAYMENT
      9.3.1    At least ten days before the date established for each progress payment, the
      Contractor shall submit to the Architect an itemized Application for Payment for operations
      completed in accordance with the schedule of values. Such application shall be notarized, if
      required, and supported by such data substantiating the Contractor's right to payment as the
      Owner or Architect may require, such as copies of requisitions from Subcontractors and
      material suppliers, and reflecting tetainage if provided for in the Contract Documents.

      9.3.1.1 As provided in Subparagraph 7.3.8, such applications may include requests for
      payment on account of changes in the Work which have been properly authorized by THIS DOCUMENT HAS IMPORTANT
      Construction Change Directives, or by interim determinations of the Architect, but not yet LEGAL CONSEQUENCES.
      included in Change Orders.                                                                 CONSULTATION WITH AN
                                                                                                                                     ATTORNEY IS ENCOURAGED WITH
                                                                                                  RESPECT TO ITS COMPLETION OR
      9.3.1.2 Such applications may not include requests for payment for portions of the Work for MODIFICATION. AUTHENTICATION
      which the Contractor does not intend to pay to a Subcontractor or material supplier, unless OF THIS ELECTRON/CALLY
      such Work has been performed by others whom the Contractor intends to pay.                  DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                     MADE BY USING AlA DOCUMENT
                                                                                                                                     D401.
      9.3.2    Unless otherwise provided in the Contract Documents, payments shall be made on
      account of materials and equipment delivered and suitably stored at the site for subsequent                                    This document has been approved and
      incorporation in the W orlc. If approved in advance by the Owner, payment may similarly be                                     endorsed by The Associated General
      made for materials and equipment suitably stored off the site at a location agreed upon in                                     Contractors of America
      writing. Payment for materials and equipment stored on or off the site shall be conditioned
      upon compliance by the Contractor with procedures satisfactory to the Owner to establish the
      Owner's title to such.materials and equipment or otherwise protect the Owner's interest, and
      shall include the costs of applicabltfedacted  , storage and transportation to the site for such
      materials and equipment stored off the site.

      9.3.3     The Contractor warrants that title to all Work covered by an Application for Payment
      will pass to the Owner no later than the time of payment. The Contractor further warrants that
      upon submittal of an Application for Payment all Work for which Certificates for Payment
      have been previously issued and payments received from the Owner shall, to the best of the
      Contractor's knowledge, information and belief, be free and clear of liens, claims, security
      interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or
      other persons or entities making a claim by reason of having provided labor, materials and
      equipment relating to the Work.

      9.4     CERTIFICATES FOR PAYMENT
      9.4.1    The Architect will, within seven days after receipt of the Contractor's Application
      for Payment, either issue to the Owner a Certificate for Payment, with a copy to the
      Contractor, for such amount as the Architect determines is properly due, or notify the
      Contractor and Owner in writing of the Architect's reasons for withholding certification in
      whole or in part as provided in Subparagraph 9.5.1.

      9.4.2    The issuance of a Certificate for Payment will constitute a representation by the
      Architect to the Owner, based on the Architect's evaluation of the Work and the data
      comprising the Application for Payment, that the Work has progressed to the point indicated ---'"""""""""--
                                                                                                                                     @1997 AlA®
~©~C~o-p-y~rig~h~t7
                  19~1~1-.~19~1~5.-1~9~18~,~1~9~25~.~1~93~7~.~19~5~1-.~19~5~8-,1~9~67
                                                                                    1,-1~9~63~,~1~9~66~.~1~96~7~,~19~7~0-.~19~7~6.-1~9~87~.~1~9~97~by ruADOCUMENTA201-1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                          GENERAL CONDITIONS OF THE
quotation of its provisions without written pennission of the AlA violates the copyright laws of the Un'rted Stales                  CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                  .        ,           .
laws and will subject the violator to legal prosecution. This document was electronically produced with                              The Amencan lnst1tute of Architects
permission of the AlA and can be!reproduced in accordance with your license without violation until the date of                      1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                           Washtng1on, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                 34
             and that, to the best of the Architect's knowledge, information and belief, the quality of the
             Work is in accordance with the Contract Documents. The foregoing representations are
             subject to an evaluation of the Work for conformance with the Contract Documents upon
             Substantial Completion, to results of subsequent tests and inspections, to correction of minor
             deviations from the Contract Documents prior to completion and to specific qualifications
             expressed by the Architect. The issuance of a Certificate for Payment will further constitute a
             representation that the Contractor is entitled to payment in the amount certified. However, the
             issuance of a Certificate for Payment will not be a representation that the Architect has (1)
             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) made
             examination to ascertain how or for what purpose the Contractor has used money previously THIS DOCUMENT HAS IMPORTANT
             paid on account of the Contract Sum.                                                            LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                                        CONSULTATION WITH AN
             9.5      DECISIONS TO WITHHOLD CERTIFICATION                                                                                                                                                                                                               ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                        RESPECT TO ITS COMPLETION OR
             9.5.1    The Architect may withhold a Certificate for Payment in whole or in part, to the                                                                                                                                                                  MODIFICATION. AUTHENTICATION
             extent reasonably necessary to protect the Owner, if in the Architect's opinion the                                                                                                                                                                        OF THIS ELECTRON/CALLY
             representations to the Owner required by Subparagraph 9.4.2 cannot be made. If the Architect                                                                                                                                                               DRAFTED AlA DOCUMENT MAY BE
             is unable to certify payment in the amount of the Application, the Architect will notify the                                                                                                                                                               MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                        0401.
             Contractor and Owner as provided in Subparagraph 9.4.1. If the Contractor and Architect
             caunot agree on a revised amount, the Architect will promptly issue a Certificate for Payment                                                                                                                                                              This document has been approved and
             for the amount for which the Architect is able to make such representations to the Owner. The                                                                                                                                                              endorsed by The Associated General
             Architect may also withhold a Certificate for Payment or, because of subsequently discovered                                                                                                                                                               Contractors of America
             evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to
             such extent a~ may be necessary in the Architect's opinion to protect the Owner from loss for
             which the Contractor is responsible, including loss resulting from acts and omissions
             described in Subparagraph 3.3.2, because of:
                      .1 defective Work not remedied;
                      .2 third party claims filed or reasonable evidence indicating probable filing of such
                          claims unless security acceptable to the Owner is provided by the Contractor;
                      .3 failure of the Contractor to make payments properly to Subcontractors or for
                          labor, materials or equipment;
                      .4 reasonable evidence that the Work caunot be completed for the unpaid balance
                          of the Contract Sum;
                      .5 damage to the Owner or another contractor;
                      .6 reasonable evidence that the Work will not be completed within the Contract
                          Time, and that the unpaid balance would not be adequate to cover actual or
                           liquidated damages for the anticipated delay; or
                      .7 persistent failure to carry out the Work in accordance with the Contract
                          Documents.               ·

             9.5.2    When the above reasons for withholding certification are removed, certification will
             be made for amounts previously withheld.

            9.6       PROGRESS PAYMENTS
            9.6.1     After the Architect has issued a Certificate for Payment, the Owner shall make
            payment in the manner and within the time provided in the Contract Documents, and shall so
            notify the Architect                                                                       __,....,.....                                                                                                                                                                 L.._.


                                                                                                                                                                                                                                                                        C"l997 All'fl}
-;:;©;;-Co~p-y-.rig:-;-h7
                        t 719:::-:1'""1-,::-:19::-::1-;::5-,1::-::9~1"'"8,-:1:-::9:-:::25=-,...,1""'9""37:::-.,-.1""95::-:1:-,-:-19::-:5::::8:-,7
                                                                                                                                                19"'6~1-,1-:-:9:-::6-=-3,-:1;-;;96-::-6:-,""'1"="96""7=-,-:1"'97=:0:-,...,.19:-::7::-=6-,1-:-:9:-::8=7,-1""'9"=97=-by   AlA DOCUMENT A201 " 1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                             GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                      CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                     .       .            .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                 The Amencan lns~1tute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                         1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                                                                              Washmgton, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                35
            9.6.2    The Contractor shall promptly pay each Subcontractor, upon receipt of payment
            from the Owner, out of the amount paid to the Contractor on account of such Subcontractor's
            portion of •the Work, the amount to which said Subcontractor is entitled, reflecting
            percentages actually retained from payments to the Contractor on account of such
            Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with
            each Subcontractor, iequire each Subcontractor to make payments to Sub-subcontractors in a
            similar manner.

            9.6.3 The Architect will, on request, furnish to a Subcontractor, if practicable, information
            regarding percentages of completion or amounts applied for by the Contractor and action
            taken thereon by the Architect and Owner on account of portions of the Work done by such
            Subcontractor.
                                                                                                           THIS DOCUMENT HAS IMPORTANT
                                                                                                           LEGAL CONSEQUENCES.
            9.6.4 Neither the Owner nor Architect shall have an obligation to pay or to see to the CONSULTATION WITH AN
            payment of money to a Subcontractor except as may otherwise be required by law.                ATTORNEY IS ENCOURAGED WITH
                                                                                                           RESPECT TO ITS COMPLETION OR
                                                                                                           MOD/FICA TION. AUTHENTICATION
            9.6.5   Payment to material suppliers shall be treated in a manner similar to that provided in OF THIS ELECTRON/CALLY
            Subparagraphs 9.6.2, 9.6.3 and 9.6.4.                                                          DRAFTED AlA DOCUMENT MAY BE
                                                                                                           MADE BY USING AlA DOCUMENT
                                                                                                           D401.
            9.6.6    A Certificate for Payment, a progress payment, or partial or entire use or occupancy
            of the Project by the Owner shall not constitute acceptance of Work not in accordance with This document has been approved and
            the Contract Documents.                                                                       endorsed by The Associated General
                                                                                                                                                                                                                                                            Contractors of America
            9.6.7   Unless the Contractor provides the Owner with Redacted                 in the full penal sum
            of the Contract Sum, payments received by the Contractor for Work properly performed by
            Subcontractors and suppliers shall be held by the Contractor for those Subcontractors or
            suppliers who performed Work or furnished materials, or both, under contract with the
            Contractor for which payment was made by the Owner. Nothing contained herein shall
            require money to be placed in a separate account and not commingled with money of the
            Contractor, shall create any fiduciary liability or tort liability on the part of the Contractor for
            breach of trust or shall entitle any person or entity to an award of punitive damages against the
            Contractor for breach of the requirements of this provision.

            9.7                    FAILURE OF PAYMENT
            9.7.1    If the Architect does not issue a Certificate for Payment, through no fault of the
            Contractor, within seven days after receipt of the Contractor's Application for Payment, or if
            the Owner does not pay the Contractor within seven days after the date established in the
            Contract Documents the amount certified by the Architect or awarded by arbitration, then the
            Contractor may, upon seven additional days' written notice to the Owner and Architect, stop
            the Work until payment of the amount owing has been received. The Contract Time shall be
            extended appropriately and the Contract Sum shall be increased by the amount of the
            Contractor's reasonable costs of shut-down, delay and start-up, plus interest as provided for in
            the Contract Documents.

            9.8                    SUBSTANTIAL COMPLETION
            9.8.1   Substantial Completion is the stage in the progress of the Work when the Work or
            designated portion thereof is sufficiently complete in accordance with the Contract
            Documents so that the Owner can occupy or utilize the Work for its intended use.         ·--'""""'"""''--
                                                                                                                                                                                                                                                            @1997 AIM)
-;;;©;-:eo=p.,.-yr-::-ig-.-h:-11:;;9:;:;171,-1"'9~1=5,-:1"'97
                                                            18~,-=1-:::-92""5::-,-:19""3::::7::-,719::::5:-::-1-,1:;;9"'5"'"8,-:1"'9"'"61.,..,"'""1-=9::::63::-,-:1""96"'6:-,719:-:6"'7:-,::-:19::::7::::-0c-,1"'9"'7"'"6,-:1""9""87=-,-.1-=9-=-=97~b:--y   AlA DOCUMENT A201 -1997
 The American Institute of Architects. Rlteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                 GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                         CONTRAC'f FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                        .       .            .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                    The Amencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                            1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                 Washmgton, D.C. 20006-5292
 This document is not an original AJA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                  36
              9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner
              agrees to accept separately, is substantially complete, the Contractor shall prepare and submit
              to the Architect a comprehensive list of items to be completed @r corrected prior to final
              payment. Failure to include an item on such list does not alter the responsibility of the
              Contractor to complete all Work in accordance with the Contract Documents.

              9.8.3    Upon receipt of the Contractor's list, the Architect will make an inspection to
              determine whether the Work or designated portion thereof is substantially complete. If the
              Architect's inspection discloses any item, whether or not included on the Contractor's list,
              which is not sufficiently complete in accordance with the Contract Documents so that the
              Owner can occupy or utilize the Work or designated portion thereof for its intended use, the
              Contractor shall, before issuance of the Certificate of Substantial Completion, complete or
                                                                                                            THIS DOCUMENT HAS IMPORTANT
              correct such item upon notification by the Architect. In such case, the Contractor shall then LEGAL CONSEQUENCES.
              submit a request for another inspection by the Architect to determine Substantial Completion. CONSULTATION WITH AN
                                                                                                                                                                                                                                                                                        ATTORNEY IS ENCOURAGED WITH
                                               .
              9.8 •4 When the Work or destgnated            .           .          .                       ·                                                                                                                                                                            RESPECT TO ITS COMPLETION OR
                                                        portion thereof IS substantially complete, the Architect                                                                                                                                                                        MODIFICATION AUTHENTICATION
              will prepare a Certificate of Substantial Completion which shall establish the date of                                                                                                                                                                                    OF THIS ELECTRON/CALL y          ·
              Substantial Completion, shall establish responsibilities of the Owner and Contractor for                                                                                                                                                                                  DRAFTED AlA DOCUMENT M4 Y BE
              security, maintenance, heat, utilities, damage to the Work and Redacted , and shall fix the time                                                                                                                                                                          MADE BY USING A/A DOCUMENT
              within which the Contractor shall finish all items on the list accompanying the Certificate.                                                                                                                                                                              0401 ·
              Warranties required by the Contract Documents shall commence on the date of Substantial                                                                                                                                                                                   This document has been approved and
              Completion of, the Work or designated portion thereof unless otherwise provided in the                                                                                                                                                                                    endorsed by The Associated General
              Certificate of Substantial Completion.                                                                                                                                                                                                                                    Contractors of America.

              9.8.5    The Certificate of Substantial Completion shall be submitted to the Owner and
              Contractor for their written acceptance of responsibilities assigned to them in such Certificate.
              Upon such acceptance and consent of ~edact~·, if any, the Owner shall make payment of
              retainage applying to such Work or designated portion thereof. Such payment shall be
              adjusted for Work that is incomplete or not in accordance with the requirements of the
              Contract Documents.

              9.9                      PARTIAL OCCUPANCY OR USE
              9.9.1    The Owner may occupy or use any completed or partially completed portion of the
             Work at any stage when such portion is designated by separate agreement with the Contractor,
             provided such occupancy or use is consented to by th~edacted as required under Clause
             11.4.1.5 and authorized by public authorities having jurisdiction over the Work. Such partial
             occupancy or use may commence whether or not the portion is substantially complete,
             provided the Owner and Contractor have accepted in writing the responsibilities assigned to
             each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to
             the Work and Redacted :, and have agreed in writing concerning the period for correction of
             the Work and commencement of warranties required by the Contract Documents. When the
             Contractor considers a portion substantially complete, the Contractor shall prepare and submit
             a list to the Architect as provided under Subparagraph 9.8.2. Consent of the Contractor to
             partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the
             Work shall be determined by written agreement between the Owner and Contractor or, if no
             agreement is reached, by decision of the Architect.


                                                                                                                                                                                                                                                                                        @1997 AtM!J
-;;©~eo=p::-:yn::;:.g::;:h::-t"19'-'1:-:;1-,1::-::9;:;1-;::-5,-:1;-;:;9::;-18;:;-,-:1-;::9~25;:-,-:1-::::93;:::7:;-,~19:::-;5::::1-,:::-:19~5""8-:,1::-::96::::-::-1,. .,1"'9""63::-,-:1:-::96c::c6::-,-::-1c::c96""7:;-,719::::7:::0:-,""'19""7""6,-1'"'9""8=7,-:1:::9-:::97:::-:-by   AlA DOCUMENT A201 ·1997
 The American lnstiMe of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                              GENERAL CONDITIONS OF THE
 quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                                                                                                                                                                     CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                    .       .          .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                The Amencan lnstiMe of Arch1tects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                        1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                             Washmgton, D.C. 20006·5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                37
          9.9.2 ~ediately prior to such partial occupancy or use, the Owner, Contractor and
          Architect shall jointly inspect the area to be occupied or portion of the Work to be used in
          order to detennine and record the condition of the Work.

          9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of
          the Work shall not constitute acceptance of Work not complying with the requirements of the
          Contract Documents.

         9.10      FINAL COMPLETION AND FINAL PAYMENT
         9.10.1 Upon receipt of written notice that the Work is ready for final inspection and
         acceptance and upon receipt of a final Application for Payment, the Architect will promptly
         make such inspection and, when the Architect finds the Work acceptable under the Contract
         Documents and the Contract fully performed, the Architect will promptly issue a final                                                                                                                 THIS DOCUMENT HAS IMPORTANT
         Certificate for Payment stating that to the best of the Architect's knowledge, information and                                                                                                        LEGAL CONSEQUENCES.
         belief, and on the basis of the Architect's on-site visits and inspections, the Work has been                                                                                                         CONSULTATION WITH AN
         completed in accordance with terms and conditions of the Contract Documents and that the                                                                                                              ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                               RESPECT TO ITS COMPLETION OR
         entire balance found to be due the Contractor and noted in the final Certificate is due and                                                                                                           MODIFICATION. AUTHENTICA T/ON
         payable. The Architect's final Certificate for Payment will constitute a further representation                                                                                                       OF THIS ELECTRON/CALLY
       · that conditions listed in Subparagraph 9.10.2 as precedent to the Contractor's being entitled to                                                                                                      DRAFTED AlA DOCUMENT MAY BE
         final payment have been fulfilled.                                                                                                                                                                    MADE BY USING AlA DOCUMENT
                                                                           I                                                                                                                                   0401.
         9.1 0.2 Neither final payment nor any remaining retained percentage shall become due until This document has been approved and
         the Contractor submits to the Architect (1) an affidavit that payrolls, bills for materials and endorsed by The Associated General
         equipment, and other indebtedness connected with the Work for which the Owner or the Contractors of America
         Owner's property might be responsible or encumbered (less amounts withheld by Owner)
         have been paid or otherwise satisfied, (2redacted
         Redacted

         Redacted                        (3) Redacted

          (4) consent of ~edacte, if any, to final payment and (5), if required by the Owner, other data
          establishing payment or satisfaction of obligations, such as receipts, releases and waivers of
          liens, claims, security interests or encumbrances arising out of the Contract, to the extent and
          in such form as may be designated by the Owner. If a Subcontractor refuses to furnish a
          release or waiver required by the Owner, the Contractor may furnish a Redact satisfactory to the
          Owner to indemnify the Owner against such lien. If such lien reiliains unsatisfied after
          payments are made, the Contractor shall refund to the Owner all money that the Owner may
          be compelled to pay in discharging such lien, including all costs and reasonable ·attorneys'
          fees.

          9.10.3 If, after Substantial Completion of the Work, final completion thereof is materially
          delayed through no fault of the Contractor or by issuance of Change Orders affecting final
          completion, and the Architect so confirms, the Owner shall, upon application by the
          Contractor and certification by the Architect, and without terminating the Contract, make
          payment of the balance due for that portion of the Work fully completed and accepted. If the
          remaining balance for Work not fully completed or corrected is less than retainage stipulated
          in the Contract Documents, and if~edacte have been furnished, the written consent oif:edacte to
          payment of the balance due for that portion of the Work fully completed and accepted shall be
          submitted by the Contractor to the Architect prior to certification of such payment. Such
                                                                                                                                                                                                               C1997 AINI}
-;;;©~eo=p-yn-;:.g:;:h:::-t:;-;19:;-:;1~1-.1.-:9:::;1-;:5,-,1"'907
                                                                 18:::-,-:1-;:9~25::-,-:1~93~7=-,~19:::;5::;1-,:;-;19::::5:;:8,-,1"'9"'67
                                                                                                                                        1,-:1:-::9""63::-,-:1-;:96~6=-.~1""96::::7:-,7
                                                                                                                                                                                     19~7:::0-,1.-:9:::;7~6,-:1:-::98::::7=-,-::1"'9.,97::-:--by AlA DOCUMENT A201-1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                    GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                             CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                            .        .          .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                        The Amencan lnsutute of Architects
permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                1735 ~ew York Avenue, N.W.
expiration as noted below.                                                                                                                                                                                     Washtngton, D.C. 20006-5292
This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                38
              payment shall be made under terms and conditions governing final payment, except that it
              shall not constitute a waiver of claims.

              9.1 0.4 The making of final payment shall constitute a waiver of Claims by the Owner
              except those arising from:
                       .1 liens, Claims, security interests or encumbrances arising out of the Contract and
                           unsettled;
                       .2 failure of the Work to comply with the requirements of the Contract Documents;
                           or
                       .3 terms of special warranties required by the Contract Documents.

              9.1 0.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier
              shall constitute a waiver of claims by that payee except those previously made in writing and THIS DOCUMENT HAS IMPORTANT
              identified by that payee as unsettled at the time of final Application for Payment.           LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                                                        CONSUL TAT/ON WITH AN
 ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY                                                  ATTORNEY IS ENCOURAGED WITH
                                                                                                RESPECT TO ITS COMPLETION OR
    10.1      SAFETY PRECAUTIONS AND PROGRAMS                                                   MODIFICATION. AUTHENnCATION
    1 0.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all OF THIS ELECTRON/CALLY
    safety precautions and programs in connection with the performance of the Contract.         DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                                                        MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                        0401.
             10.2    SAFETY OF PERSONS AND PROPERTY
             1 0.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide This document has been approved and
             reasonable protection to prevent damage, injury or loss to:                                      endorsed by The Associated General
                     .1 employees on the Work and other persons who may be affected thereby;                  Contractors of America
                     .2 the Work and materials and equipment to be incorporated therein, whether in
                          storage on or off the site, under care, custody or control of the Contractor or the
                          Contractor's Subcontractors or Sub-subcontractors; and
                     .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks,
                          pavements, roadways, structures and utilities not designated for removal,
                          relocation or replacement in.the course of construction.

             10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules,
             regulations and lawful orders of public authorities bearing on safety of persons or property or
             their protection from damage, injury or loss.

             1 0.2.3 The Contractor shall erect and maintain, as required by existing conditions and
             performance of the Contract, reasonable safeguards for safety and protection, including
             posting danger signs and other warnings against hazards, promulgating safety regulations and
             notifying owners and users of adjacent sites and utilities.

             10.2.4 When use or storage of explosives or other hazardous materials or equipment or
             unusual methods are necessary for execution of the Work, the Contractor shall exercise
             utmost care and carry on such activities under supervision of properly qualified personnel.

             10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss
            Redacted                           required by the Contract Documents) to property referred to
             in Clauses 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor,
             a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone
             for whose acts they may be liable and for which the Contractor is responsible under Clauses
                                                                                                                                                                                                                                                                                        <1:>1997 />JM!;
""©,...Co::::-p-y"""rig-:-h-:-t...,.19="1'""'1-,..,.,19""'1'""5-,1..,..,9'""'1"""8,-1:-::9-::-25=-,...,1"'9~37=-,-:1-=-95=-1,...,-:-19""'5""8,...,"""19::-:6:-:-1-,1..,..,9'""63"",-1:-::9""'66,..,--:1""'96-=-=7=-,. .,.1-=-=97=-=o,. . ,..,..19""7""6-,"'"'198=7,-1'"'9""9=7.,..by-   AJA DOCUMENT A201 - 1997
 The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                             GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                     CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                    .        .           .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                The Amencan Institute of Archttects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                        1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                             Washtngton, D.C. 20006-5292
 This document Is not an original AJA® Contract Document, but a reproduction produced by AJA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                               39
             10.2.1.2 and 10.2.1.3, except damage or loss attributable to acts or omissions of the Owner or
             Architect or anyone directly or indirectly employed by either of them, or by anyone for whose
             acts either of them may be liable, and not attributable to the fault or negligence of the
             Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's
             obligations under Paragraph 3.18.

             10.2.6 The Contractor shall designate a responsible member of the Contractor's organization
             at the site whose duty shall be the prevention of accidents. This person shall be the
             Contractor's superintendent unless otherwise designated by the Contractor in writing to the
             Owner and Architect.

             10.2. 7 The Contractor shall not load or permit any part of the construction or site to be
             loaded so as to endanger its safety.                                                       THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                                            LEGAL CONSEQUENCES.
             10.3   HAZARDOUS MATERIALS                                                                  CONSULTATION WITH AN
             10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or ATTORNEY IS ENCOURAGED WITH
                                     · from a matena
             d eath to persons resuItmg              · 1 or substance, me
                                                                       · 1ud"mg b ut not li rrut
                                                                                              · ed to asbestos                                                                                                                                                                              RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                                                            MODIFICATION. AUTHENTICATION
             or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor                                                                                                                                                                                   OF THIS ELECTRON/CALL y
             shall, upon recognizing the condition, immediately stop Work in the affected area and report                                                                                                                                                                                   DRAFTED AlA DOCUMENT MAY BE
             the condition to the Owner and Architect in writing.                                                                                                                                                                                                                           MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                            0401.
             1 0.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or This document has been approved and
             absence of the material or substance reported by the Contractor and, in the event such material endorsed by The Associated General
             or substance is found to be present, to verify that it has been rendered harmless. Unless Contractors of America
             otherwise required by the Contract Documents, the Owner shall furnish in writing to the
             Contractor and Architect the names and qualifications of persons or entities who are to
             perform tests verifying the presence or absence of such material or substance or who are to
             perform the task of removal or safe containment of such material or substance. The Contractor
             and the Architect will promptly reply to the Owner in writing stating whether or not either has
             reasonable objection to the persons or entities proposed by the Owner. If either the Contractor
             or Architect bas an objection to a person or entity proposed by the Owner, the Owner shall
             propose another to whom the Contractor and the Architect have no reasonable objection.
             When the material or ~ubstance bas been rendered harmless, Work in the affected area shall
             resume upon written agreement of the Owner and Contractor. The Contract Time shall be
             extended appropriately and the Contract Sum shall be increased in the amount of the
             Contractor's reasonable additional costs of shut-down, delay and start-up, which adjustments
             shall be accomplished as provided in Article 7.

             1 0.3.3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless
             the Contractor, Subcontractors, Architect, Architect's consultants and agents and employees
             of any of them from and against claims, damages, losses and expenses, including but not
             limited to attorneys' fees, arising out of or resulting from performance of the Work in the
             affected area if in fact the material or substance presents the risk of bodily injury or death as
             described in Subparagraph 10.3.1 and has not been rendered harmless, provided that such
             claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to
             injury to or destruction of tangible property (other than the Work itself) and provided that
             such damage, loss or expense is not due to the sole negligence of a party seeking indemnity.


                                                                                                                                                                                                                                                                                            ®1997 I>Jfl$
""©,....C"""o-p-yr7ig7h-:-l-.-:19::-:1-:-1,-1-:-:9:-:-1=-5,....,1'""9..,..18=-,-=1"""92=-=5=-,...,.19""'3==7=-,-.-:19:-:5:-:-1-,-.-:19:-:58"'",-1.,.,9'""'6-:-1,""""'1'""9"='63=-,-=1"""96""'6:-,...,.19""6:-::7:-,-.-:19:-:7:-::0-,-.-:19::-::7"'"6,-1:-:9""87=-,"""'1"'9-::-:97::-:--by   AlA DOCUMENT A201 -1997
 The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                                 GI::NERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                         CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                         .       .            .
 laws and will subject the violator to legal prosecution. This. document was electronically produced with                                                                                                                                                                                   The Arnencan Institute of Architects
 permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                            1735 ~ew York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                                 Washington, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                 40
                10.4 .The Owner shall not be responsible under Paragraph 10.3 for materials and
                substances brought to the site by the Contractor unless such materials or substances were
                required by the Contract Documents.

                10.5 If, without negligence on the part of the Contractor, the Contractor is held liable for
                the cost :of remediation of a hazardous material or substance solely by reason of performing
                Work as required by the Contract Documents, the Owner shall indemnify the Contractor for
                all cost and expense thereby incurred.

                10.6      EMERGENCIES
                10.6.1 In an emergency affecting safety of persons or property, the Contractor shall act, at
                the Contractor's discretion, to prevent threatened damage, injury or loss. Additional
                compensation or extension of time claimed by the Contractor on account of an emergency THIS DOCUMENT HAS IMPORTANT
                shall be determined as provided in Paragraph 4.3 and Article 7.                              LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                            CONSULTATION WITH AN
     ARTICLE 11 Redacted                                                                                                                                                                                                                                    ATTORNEY IS ENCOURAGED WITH
f,<edacted                                                                                                                                                                                                                                                  "lESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                            'vfODIFICA T!ON. AUTHENTICATION
                                                                                                                                                                                                                                                            JF THIS ELECTRON/CALLY
                                                                                                                                                                                                                                                            JRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                            'vfADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                            )401.

                                                                                                                                                                                                                                                            T1!is document has been approved and
                                                                                                                                                                                                                                                            mdorsed by The Associated General
                                                                                                                                                                                                                                                            'Jontractors of America.




                                                                                                                                                                                                                                                            C1997 AIM
    ""©::-:=:Co-p-yr...,ig...,h7t -.-19:::-1:-:1-,""19:-:1:-::5-,1""'9~1-=-8,-1=-=9-=-25=-,""'1:-::9""37=-,-,1""""95=-1:-,...,1"'95""8:-,...,.19""'6,_,1-,.,..19'"'63..,..,-1-9-6-6,...,1..,.9..,67::-,-1-97.....0-,-19_7__6-,.,..19,...8""'7-,1-9-9=7~by   AlA DOCUMENT A201 • 1997
     The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                            GENERAL CONDITIONS OF THE
     quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                     CONTRACT FOR CONSTRUCTION
     and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                    .        .           .
     laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                The Amencan lnstttute of Arch~ects
     permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                        1735 ~ew York Avenue, N.W.
     expiration as noted below.                                                                                                                                                                                                                             Washtngton, D.C. 20006-5292
     This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
     Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                                                                                                                                                      41
Redacted




                                                                                                                                                                                                                                            THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                            LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                            CONSUL TAT/ON WITH AN
                                                                                                                                                                                                                                            ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                            RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                            MOD/FICA TJON. AUTHENTICATION
                                                                                                                                                                                                                                            OF THIS ELECTRON/CALLY
                                                                                                                                                                                                                                            DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                            MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                            D401.

                                                                                                                                                                                                                                            This document has been approved and
                                                                                                                                                                                                                                            endorsed by The Associated General
                                                                                                                                                                                                                                            Contractors of America.




                                                                                                                                                                                                                                            ©1997 AlA®
    ;;©;;-C;:;o::p::-:yri::;:g::;:h~t719;;:1;-:;1-,-:;-;19:::;1-;:5~,1;;9;:;1;:;-8,-:1;-;::9::::-25;::-,-::1-::::93~7:;-,-:1"'95""1-,719""'58=::-,1-:-:9'""6""1,-1:-::9""63=-,-:1:-::96-::c6::-,""'1""96::-::7:-,""'"19""'7:-:::0c-,-:-19""'7'""6-,1"'"'9'""8=7,-1'""9""'97::-:--by AlA DOCUMENT A201 - 1997
     The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                            GENERAL CONDITIONS OF THE
     quotation.of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                     CONTRACT FOR CONSTRUCTION
     and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright
     laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                The American Institute of Architects
     permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                        1735 New York Avenue, N.W.
     expiration as noted below.                                                                                                                                                                                                             Washington, D.C. 20006-5292
     This doeument is not an original AlA® Contract Document, but a reproduction produced by AlA®
     Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                     42
Redacted




                                                                                                                                                                                                                                                                                       THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                                       LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                                                       CONSULTATION WITH AN
                                                                                                                                                                                                                                                                                       ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                                       RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                                                       MODIFICATION. AUTHENTICATION
                                                                                                                                                                                                                                                                                       OF THIS ELECTRON/CALLY
                                                                                                                                                                                                                                                                                       DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                                                       MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                       D401.

                                                                                                                                                                                                                                                                                       This document has been approved and
                                                                                                                                                                                                                                                                                       endorsed by The Associated General
                                                                                                                                                                                                                                                                                       Contractors of America




                                                                                                                                                                                                                                                                                       @1997 AIN!!l
"'©"C"-o::p:::yn::::·g:i:h't1:;-;9:;:;1.-1,~1:;;:9;:;1~5.-::1;;;9~18;:;-,-::1-;:;9;;;25::-,-:;1;;;93;;::7',.-19;:;;5=:;1-,:;-;19::;:5:;:;:8,~1;-;:9~6-:1,-::1;;;9-:::63::-,-::1""'96::-:6:-,-::1::-:96::::7:-,719::::7:-::0-,-::19::-::7:-::-6.~1:-::9"'"87=-,-:1::::9::-:97::-:--by   AlA DOCUMENT A201 - 1997
 The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                           GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                    CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                               The American Institute of Architects
 permission of the AlA and can be reproduced In accordance with your license without violation until the date of                                                                                                                                                                       1735 New York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                            Washington, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                            43
Redacted




                                                                                                                                                                                                                                                                               THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                                                               LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                                                               CONSUL TAT/ON WITH AN
                                                                                                                                                                                                                                                                               ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                                                               RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                                                               MODIFICATION. AUTHENTICA TJON
                                                                                                                                                                                                                                                                               OF THIS ELECmONICALL Y
                                                                                                                                                                                                                                                                               DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                                               MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                               0401.

                                                                                                                                                                                                                                                                               This document has been approved and
                                                                                                                                                                                                                                                                               endorsed by The Associated General
                                                                                                                                                                                                                                                                               Contractors of America.




                                                                                                                                                                                                                                                                               C1997   AI~
-;;;©;-;C"-o:::p:::yn:;;.g:;:h;-t1:t;9;:;17
                                          1,-:1;;:9;:;15",'1;;:;9:;-;18:;-,<1~92;;-;5::-,<1;::;93:;::7;-,<.19;;;5:-:;1-,1:;-;9:;::5:;;-8,-:1:-;:9;;;-67
                                                                                                                                                      1,'1~9::::63::-,<1:::;96;;;6;-,719;;;6::::7;-,-:-:19::::7::::0-,1::-:9:=7c::-6,--:1;-;:9::::87=-,-:1-::-99""'7""'b:--y   AlA DOCUMENT A201 -1997
 The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                    GENERAL CONDITIONS OF THE
 quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                            CONTRACT FOR CONSTRUCTION
 and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                           .        .           .
 laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                       The Amencan lnstttute of Architects
 permission of the. AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                              1735 New York Avenue, N.W.
 expiration as noted below.                                                                                                                                                                                                                                                    Washington, D.C. 20006-5292
 This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
 Contract Documents software for administrative purposes only and Is not for other use or resale.
                                                                                                                                                                                                                                                                    44
Redacted




                                                                                                    THIS DOCUMENT HAS IMPORTANT
                                                                                                    LEGAL CONSEQUENCES.
                                                                                                    CONSULTATION WITH AN
                                                                                                    ATTORNEY IS ENCOURAGED WITH
                                                                                                    RESPECT TO ITS COMPLETION OR
  ARTICLE 12 UNCOVERING AND CORRECTION OF WORK                                                      MODIFICATION. AUTHENTICATION
     12.1     UNCOVERING OF WORK                                                                    OF THIS ELECTRONICALLY
     12.1.1 If a portion of the Work is covered contrary to the Architect's request or to DRAFTED AlA DOCUMENT MAY BE
     requirements specifically expressed in the Contract Documents, it must, if required in writing MADE BY USING AlA DOCUMENT
                                                                                                    D401.
              by the Architect, be uncovered for the Architect's examination and be replaced at the
              Contractor's expense without change in the Contract Time.                             This document has been approved and
                                                                                                                                                                                                                                                                                      endorsed by The Associated General
              12.1.2 If a portion of the Work has been covered which the Architect has not specifically Contractors of America
              requested to examine prior to its being covered, the Architect may request to see such Work
              and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract
              Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at
              the Owner's expense. If such Work is not in accordance with the Contract Documents,
              correction shall be at the Contractor's expense unless the condition was caused by the Owner
              or a separate contractor in which event the Owner shall be responsible for payment of such
              costs.

              12.2     CORRECTION OF WORK
              12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
              12.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to
              conform to the requirements of the Contract Documents, whether discovered before or after
              Substantial Completion and whether or not fabricated, installed or completed. Costs of
              correcting such rejected Work, including additional testing and inspections and compensation
              for the Architect's services and expenses made necessary thereby, shall be at the Contractor's
              expense.

              12.2.2 AFTER SUBSTANTIAL COMPLETION
              12.2.2.1 In addition to the Contractor's obligations under Paragraph 3.5, if, within one year
              after the date of Substantial Completion of the Work or designated portion thereof or after the
              date for commencement of warranties established under Subparagraph 9.9 .1, or by terms of an
              applicable special warranty required by the Contract Documents, any of the Work is found to
              be not in accordance with the requirements of the Contract Documents, the Contractor shall
              correct it promptly after receipt of written notice from the Owner to do so unless the Owner
              has previously given the Contractor a written acceptance of such condition. The Owner shall
                                                                                                                                                                                                                                                                                      C1997 AtA®
 -::;©:-:C~o~p-yn7'g7h-:-t""19""1-::-1,-1::-::9~1";:'5,-:1:-;;9-;-18~,-:1::::9::::25::-,-:1-:::-93::::7:;-,-::-19::::5::-:1-,""'19::-::5::::8-,::-;19""6c::-1,--,1""9"'63"",-:1::::9-::-66=-,-:1796::::7=-,719:::7::::0'"",""'19:::7:::-6,-1::-::980::..:::-7,....,1"'9""97::-:--by   AlA DOCUMENT A201 -1997
  The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                          GENERAL CONDITIONS OF THE
  quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                  CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                 .       .        : .
  laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                             The Amencan lnsttMe of Architects
  permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                     1735 ~ew York Avenue, N.V'{.
  expiration as noted below.                                                                                                                                                            ·                                                                                             Washmgton, D.C. 20006-5292
  This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                           45
.

          give such notice promptly after discovery of the condition. During the one-year period for
          correction of Work, if the Owner fails to notify the Contractor and give the Contractor an
          opportunity to make the correction, the Owner waives the rights to require correction by the
          Contractor and to make a claim for breach of warranty. If the Contractor fails to correct
          nonconforming Work within a reasonable time during that period after receipt of notice from
          the Owner or Architect, the Owner may correct it in accordance with Paragraph 2.4.

          12.2.2.2 The one-year period for correction of Work shall be extended with respect to
          portions of Work first performed after Substantial Completion by the period of time between
          Substantial Completion and the actual performance of the W orlc.

          12.2.2.3 The one-year period for correction of Work shall not be extended by corrective
          Work performed by the Contractor pursuant to this Paragraph 12.2.                       THIS DOCUMENT HAS IMPORTANT
                                                                                                       LEGAL CONSEQUENCES.
          12.2.3 The Contractor shall remove from the site portions of the Work which are not in       CONSULTATION WITH AN
          accordance with the requirements of the Contract Documents and are neither corrected by the  ATTORNEY 18 ENCOURAGED WITH
                                                                                                       RESPECT TO ITS COMPLETION OR
          Contractor nor accepted by the Owner.                                                        MODIFICATION. AUTHENTICATION
                                                                                                       OF THIS ELECTRONICALLY
          12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, DRAFTED AlA DOCUMENT MAY BE
          whether completed or partially completed, of the Owner or separate contractors caused by the MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                         D401.
          Contractor's correction or removal of Work which is not in accordance with the requirements
          of the Contract Documents.                                                                  This document has been approved and
                                                                                                                                                                                                                          endorsed by The Associated General
          12.2.5 Nothing contained in this Paragraph 12.2 shall be construed to establish a period of Contractors of America.
          limitation with respect to other obligations which the Contractor might have under the
          Contract Documents. Establishment of the one-year period for correction of Work as
          described in Subparagraph 12.2.2 relates only to the specific obligation of the Contractor to
          correct the Work, and has no relatiouship to the time within which the obligation to comply
          with the Contract Documents may be sought to be enforced, nor to the time within which
          proceedings may be commenced to establish the Contractor's liability with respect to the
          Contractor's obligations other than specifically to correct the Work.

          12.3     ACCEPTANCE OF NONCONFORMING WORK
          12.3.1 If the Owner prefers to accept Work which is not in accordance with the
          requirements of the Contract Documents, the Owner may do so instead of requiring its
          removal and correction, in which case the Contract Sum will be reduced as appropriate and
          equitable. Such adjustment shall be effected whether or not final payment has been made.

 ARTICLE 13 MISCELLANEOUS PROVISIONS
    13.1   GOVERNING LAW
    13.1.1 The Contract shall be governed by the law of the place where the Project is located.

          13.2 SUCCESSORS AND ASSIGNS
          13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors,
          assigns and legal representatives to the other party hereto and to partners, successors, assigns
          and legal representatives of such other party in respect to covenants, agreements and
          obligations contained in the Contract Documents. Except as provided in Subparagraph 13.2.2,
          neither party to the Contract shall assign the Contract as a whole without written consent of
                                                                                                                                                                                                                          --'""""""""""--

                                                                                                                                                                                                                         Ql997 /'J/¥3
-;;©~C;:;-o-p-y-.-rig-.-h-=-t-:;:19~1~1-,.,..,19""'1-::-5,-1""9""1=-8,-:1:-.:9""25::-,-:1""93""7:-,-.-19:::5:-:1-,-:;:19::::5:-.:8-,1"'9"'6""1,"'"1:-.:9""'63::-.~1-=-96""6:-.-:1-::-:96::::7:-,""19::::7::::0-,""19::::7=-=6,-1o-::9:-.:8=7,-1""9""97::-:-by AlA DOCUMENT A201 ·1997
The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                              GENERAL CONDITIONS OF THE
quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                       CONTRACT FOR CONSTRUCTION
and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                      .       .           .
laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                  The Amencan lnstiMe of Architects
permission of the AlA and can be reproduced in accordance with your license Without violation until the date of                                                                                                          1735 ~ew York Avenue, N.W.
expiration as noted below.                                                       !                                                                                                                                       Washmg1on, D.C. 20006·5292
This document is not an original AlA® Contract Document, but a reproduction produced by AI~
Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                  46
.,




              the other. If either party attempts to make such an assignment without such consent, that party
              shall nevertheless remain legally responsible for all obligations under the Contract.
                                                                                                                                                                                      I
              13.2.2 The Owner may, without consent of the Contractor, assign the Contract to an
              institutional lender providing construction financing for the Project. In such event, the lender
              shall assume the Owner's rights and obligations under the Contract Documents. The
              Contractor shall execute all consents reasonably required to facilitate such assignment.

              13.3   WR.ITTEN NOTICE
              13.3.1 Written notice shall be deemed to have been duly served if delivered in person to the
              individual or a member of the firm or entity or to an officer of the corporation for which it
              was intended, or if delivered at or sent by registered or certified mail to the last business
              address known to the party giving notice.                                                     THIS DOCUMENT HAS IMPORTANT
                                                                                                               LEGAL CONSEQUENCES.
              13.4   RIGHTS AND REMEDIES                                                                       CONSUL TAT/ON WITH AN
              13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies          ATTORNEY IS ENCOURAGED WITH
                                                                                                               RESPECT TO ITS COMPLETION OR
              available thereunder shall be in addition to and not a limitation of duties, obligations, rights MODIFICATION. AUTHENT/CA TION
              and remedies otherwise imposed or available by law.                                              OF THIS ELECTRON/CALLY
                                                                                                               DRAFTED AlA DOCUMENT MAY BE
              13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a MADE BY USING AlA DOCUMENT
              waiver of a right or duty afforded them under the Contract, nor shall such action or failure to D401.
              act constitute approval of or acquiescence in a breach thereunder, except as may be This document has been approved and
              specifically agreed in writing.                                                                 endorsed by The Associated General
                                                                                                                                                                                                                                                                                           Contractors of America
              13.5   TESTS AND INSPECTIONS
              13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract
             Documents or by laws, ordinances, rules, regulations or orders of public authorities having
             jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Contractor
             shall make arrangements for such tests, inspections and approvals with an independent testing
             laboratory or entity acceptable to the Owner, or with the appropriate public authority, and
             shall bear all related costs of tests, inspections and approvals. ·The Contractor shall give the
             Architect timely notice of when and where tests and inspections are to be made so that the
             Architect may be present for such procedures. The Owner shall bear costs of tests, inspections
             or approvals which do not become requirements until after bids are received or negotiations
             concluded.

             13.5.2 If the Architect, Owner or public authorities having jurisdiction determine that
             portions of the Work require additional testing, inspection or approval not included under
             Subparagraph 13.5.1, the Architect will, upon written authorization from the Owner, instruct
             the Contractor to make arrangements for such additional testing, inspection or approval by an
             entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect of
             when and where tests and inspections are to be made so that the Architect may be present for
             such procedures. Such costs, except as provided in Subparagraph 13.5.3, shall be at the
             Owner's expense.

             13.5.3 If such procedures for testing, inspection or approval under Subparagraphs 13.5.1
             and 13.5.2 reveal failure of the portions of the Work to comply with requirements established
             by the Contract Documents, all costs made necessary by such failure including those of
                                                                                                                                                                                                                                                                                           --'=="'·-
                                                                                                                                                                                                                                                                                           @1997 />J/>0
'-©::-Co=p::-:y:;-rig:;:h7t 719:::-:1:-:::1-,-:;-:19::-:;1-;::5~.1;-;:9:::-1:::-8,-::1;-;;9:;:,25;:-,-::1~9;:;:37",~1:::-95;::-::1:--,719;::-;5:-:::8:-,"196=1.~1;-;:9:-::63:::-,-:1;-;;96:;:,6;:-,-:1':::'96:::7:;-,~1;:;:97:;-;0:-,719""'7:::6-,"19::;:8:::;7,~1;-;:9:-:::9:::-7.,.-by   AlA DOCUMENT A201 • 1997
  The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                              GENERAL CONDITIONS OF THE
  quotation of its. provisions without written permission of the AlA violates the copyright laws of the United States                                                                                                                                                                      CONTRACT FOR CONSTRUCTION
  and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                      .        .           .
  laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                                  The Amencan Institute of Architects
  permission of the AlA and can be reproduced in accordance with your license without violation until the date .of                                                                                                                                                                         1735 ~ew York Avenue, N.W.
  expiration as noted below.                                                                                                                                                                                                                                                               Washington, D.C. 20006-5292
  This document Is not an original PJA® Contract Document, but a reproduction produced by PJA®
  Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                   47
... ,    ,..




         repeated procedures and compensation for the Architect's services and expenses shall be at the
         Contractor's expense.

         13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise
         required by the Contract Documents, be secured by the Contractor and promptly delivered to
         the Architect.

         13.5.5 If the Architect is to observe tests, inspections or approvals required by the Contract
         Documents, the Architect will do so promptly and, where practicable, at the normal place of
         testing.

         13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made
         promptly to avoid unreasonable delay in the Work.                                      THIS DOCUMENT HAS IMPORTANT
                                                                                                                                        LEGAL CONSEQUENCES.
         13.6      INTEREST                                                                                                             CONSULTATION WITH AN
         13.6.1 Payments due and unpaid under the Contract Documents shall bear interest from the                                       ATTORNEY IS ENCOURAGED WITH
                                                                                                                                        RESPECT TO ITS COMPLETION OR
         date payment is due at such rate as the parties may agree upon in writing or, in the absence                                   MODIFICATION. AUTHENTICATION
         thereof, at the legal rate prevailing from time to time at the place where the Project is located.                             OF THIS ELECTRONICALLY
                                                                                                                                        DRAFTED AlA DOCUMENT MAY BE
         13.7   COMMENCEMENT OF STATUTORY LIMITATION PERIOD                                                                             MADE BY USING AlA DOCUMENT
                                                                                                                                        0401.
         13.7.1 As between the Owner and Contractor:
                .1 Before Substantial Completion. As to acts or failures to act occurring prior                                         This document has been approved and
                    to the relevant date of Substantial Completion, any applicable statute of                                           endorsed by The Associated General
                    limitations shall commence to run and any alleged cause of action shall be                                          Contractors of America.
                    deemed to have accrued in any and all events not later than such date of
                    Substantial Completion;
                .2 Between Substantial Completion and Final Certificate for Payment.
                    As to acts or failures to act occurring subsequent to the relevant date: of
                    Substantial Completion and prior to issuance of the fina1 Certificate for
                    Payment, any applicable statute of limitations shall commence to run and any
                    alleged cause of action shall be deemed to have accrued in any and all events not
                    later than the date of issuance of the fmal Certificate for Payment; and
                .3 Arter Final Certificate for Payment. As to acts or failures to act occurring
                    after the relevant date of issuance of the final Certificate for Payment, any
                    applicable statute of limitations shall commence to run and any alleged cause of
                    action shall be deemed to have accrued in any and all events not later than the
                    date of any act or failure to act by the Contractor pursuant to any Warranty
                    provided under Paragraph 3.5, the date of any correction of the Work or failure
                    to correct the Work by the Contractor under Paragraph 12.2, or the date of actual
                    commission of any other act or failure to perform any duty or obligation by the
                    Contractor or Owner, whichever occurs last.

   ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
      14.1     TERMINATION BY THE CONTRACTOR
      14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30
      consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-
      subcontractor or their agents or employees or any other persons or entities performing                                            ~r-1~r:
      portions of the Work under direct or indirect contract with the Contractor, for any of the
      following reasons:
                                                                                                                                        ©1997 All>®
   ~©~Co~p-~~·g~h7
                 t7.19~1~1-,1~9~1~5.~1~9~18~,~1~9~~~.~1~93~7~,~19~5~1-,7.19~5~8-,1~00~1,~1~9~~~.~1~96~6~,~19~6~7~,7.19~7~0-,7.19~7~6,~1~9~8~7,~1~9~97~by AIADOCUMENTA201-1~7
   The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial GENERAL CONDITIONS OF THE
   quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States CONTRACT FOR CONSTRUCTION
   and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright:               .        .          .
   laws and will subject the violator to legal prosecution. This document was electronically produced with The Amencan Institute of Architects
   pennission of the AlA and can be reproduced in accordance with your license without violation until the date of .1735 ~ew York Avenue, N.W.
   expiration as noted below.                                                                                         .Washmgton, D.C. 20006-5292
   This document is not an original AlA® Contract Document, but a reproduction produced by AlA'!» '
   Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                   48
'I   0 I




                       .1    issuance of an order of a court or other public authority having jurisdiction
                             which requires all Work to be stopped;
                       .2    an act of government, such as a declaration of national emergency which
                             requires all Work to be stopped;
                       .3    because the Architect has not issued a Certificate for Payment and has not
                             notified the Contractor of the reason for withholding certification as provided in
                             Subparagraph 9.4.1, or because the Owner has not made payment on a
                             Certificate for Payment within the time stated in the Contract Documents; or
                       .4    the Owner has failed · to furnish to the Contractor promptly, upon the
                             Contractor's request, reasonable evidence as required by Subparagraph 2.2.1.

           14.1.2 The Contractor may terminate the Contract if, through no act or fault of the
           Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other
                                                                                                    THIS DOCUMENT HAS IMPORTANT
           persons or entities performing portions of the Work under direct or indirect contract with the
                                                                                                    LEGAL CONSEQUENCES.
           Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as
                                                                                                    CONSULTATION WITH AN
                                                                                                    ATTORNEY IS ENCOURAGED WITH
           described in Paragraph 14.3 constitute in the aggregate more than 100 percent of the total
                                                                                                    RESPECT TO ITS COMPLETION OR
           number of days scheduled for completion, or 120 days in any 365-day period, whichever is MODIFICATION. AUTHENTICATION
           less.                                                                                    OF THIS ELECTRON/CALLY
                                                                                                    DRAFTED AlA DOCUMENT MAY BE
           14.1.3      If one of the reasons described in Subparagraph 14.1.1 or 14.1.2 exists, the MADE BY USING AlA DOCUMENT
                                                                                                    D4()1.
           Contractor may, upon. seven days' written notice to the Owner and Architect, terminate the
           Contract and recover from the Owner payment for Work executed and for proven loss with This document has been approved and
           respect to materials, equipment, tools, and construction equipment and machinery, including endorsed by The Associated General
           reasonable overhead, profit and damages.                                                    Contractors of America.


           14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of
           the Contractor or a Subcontractor or their agents or employees or any other persons
           performing portions of the Work under contract with the Contractor because the Owner has
           persistently failed to fulfill the Owner's obligations under the Contract Documents with
           respect to matters important to the progress of the Work, the Contractor may, upon seven
           additional days' written notice to the Owner and the Architect, terminate the Contract and
           recover from the Owner as provided in Subparagraph 14.1.3.

           14.2         TERMINATION BY THE OWNER FOR CAUSE
           14.2.1       The Owner may terminate the Contract if the Contractor:
                       .1 persistently or repeatedly refuses or fails to supply enough properly skilled
                           workers or proper materials;
                       .2 fails to make payment to Subcontractors for materials or labor in accordance
                           with the respective agreements between the Contractor and the Subcontractors;
                       .3 persistently disregards laws, ordinances, or rules, regulations or orders of a
                           public authority having jurisdiction; or
                       .4 otherwise is guilty of substantial breach of a provision of the Contract
                           Documents.

           14.2.2 When any of the above reasons exist, the Owner, upon certification by the Architect
           that sufficient cause exists to justify such action, may without prejudice to any other rights or
           remedies of the Owner and after giving the Contractor and the Contractor'g'<edacted if any,
           seven days' written notice, terminate employment of the Contractor and may, subject to any
           prior rights ofRedacted
                                                                                                                                          ©1997 AIN!J
     ~©~C~o~p-~~·g~h~t~19~1~1~,1~9~1~5.~1~9~18~.~1~9~25~,~1~93~7~.~19~5~1-.~19~5~8-,1~9~6~1.~1~9~63~.~1~9~66~.~1~96~7~.~19~7~0-.~19~7~6.~1~9~8~7.~1~9~97~by ~ADOCUMENTA201·1~7
     The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                          GENERAL CONDITIONS OF THE
     quotation of its provisions without written permission of the AlA violates the copyright laws of the United States                   CONTRACT FOR CONSTRUCTION
     and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                  .        .           .
     laws and will subject the violator to legal prosecution. This document was electronically produced with                              The Amencan Institute of Archttects
     pennission of the AlA and can be reproduced in accordance with your license without violation until the date of                      1735 ~ew York Avenue, N.W.
     expiration as noted below.                         ·                                                                                 Washtngton, D.C. 20006-5292
     This document is not an original ~A® Contract Document, but a reproduction produced by ~A®
     Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                                     49
,4   a   l       t.




                                          .1 take possession of the site and of all materials, equipment, tools, and
                                             construction equipment and machinery thereon owned by the Contractor;
                                          .2 accept assignment of subcontracts pursuant to Paragraph 5.4; and
                                          .3 finish the Work by whatever reasonable method the Owner may deem
                                             expedient. Upon request of the Contractor, the Owner shall furnish to the
                                             Contractor a detailed accounting of the costs incurred by the Owner in finishing
                                             the Work.

                 14.2.3 When the Owner terminates the Contract for one of the reasons stated in
                 Subparagraph 14.2.1, the Contractor shall not be entitled to receive further payment until the
                 Work is finished.

                  14.2.4 If. the unpaid balance of the Contract Sum exceeds costs of finishing the Work,                                                                                                                                                                                    THIS DOCUMENT HAS IMPORTANT
                  including compensation for the Architect's services and expenses made necessary thereby, and                                                                                                                                                                              LEGAL CONSEQUENCES.
                  other damages incurred by the Owner and not expressly waived, such excess shall be paid to                                                                                                                                                                                CONSULTATION WITH AN
                  the Contractor. If such costs and damages exceed the unpaid balance the Contractor shall pay                                                                                                                                                                              ATTORNEY IS ENCOURAGED WITH
                        ·                                            .                  '                                                                                                                                                                                                   RESPECT TO ITS COMPLETION OR
                  the difference to the Owner. The amount to be prud to the Contractor or Owner, as the case                                                                                                                                                                                MODIFICATION. AUTHENTICATION
                  may be, shall be certified by the Architect, upon application, and this obligation for payment                                                                                                                                                                            OF THIS ELECTRON/CALL y
                  shall survive termination of the Contract.                                                                                                                                                                                                                                DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                                                                            MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                                                                            D401.
                  14.3      SUSPENSION BY THE OWNER FOR CONVENIENCE
                  14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or This document has been approved and
                  interrupt the Work in whole or in part for such period of ti~e as the Owner may determine. endorsed by The Associated General
                                                                                                                                                                                                                                                                                            Contractors of America ·
                  14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and
                  time caused by suspension, delay or interruption as described in Subparagraph 14.3.1.
                  Adjustment of the Contract Sum shall include profit. No adjustment shall be made to the
                  extent:
                          .1 that performance is, was or would have been so suspended, delayed or
                              interrupted by another cause for which the Contractor is responsible; or
                          .2 that an equitable adjustment is made or denied under another provision of the
                              Contract.

                  14.4    TERMINATION BY THE OWNER FOR CONVENIENCE
                  14.4.1 The Owner may, at any time, terminate the Contract for the Owner's convenience
                  and without cause.

                  14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's
                  convenience, the Contractor shall:
                          .1 cease operations as directed by the Owner in the notice;
                          .2 take actions necessary, or that the Owner may direct, for the protection and
                               preservation of the Work; and
                          .3 except for Work directed to be performed prior to the effective date of
                               termination stated in the notice, terminate all existing subcontracts and purchase
                               orders and enter into no further subcontracts and purchase orders.

                  14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be ~~!FA!I.:;;P::.;;
                  entitled to receive payment for Work executed, and costs incurred by reason of such __!O!!!!!!!!!!!!!!L-
                  termination, along with reasonable overhead and profit on the Work not executed.
                                                                                                                                                                                                                                                                                            C1997 AII>IS
     ""©<-C:::-o-p-yn..,..·g-:-h-:-t-:-19::-.1,-:-1-,1-:-:9:-:1-=5,-1'""9...,.18"'",...,1"'9"""25=-,-:1"""93""7=-,...,.19""'5::-:1-,-:-19""5""8-,1"'"'9'"'5..,..1,-1'""9_,.63.,...,....,1,..,.96""6=-,....,1""96=7=-,...,.19""7=-=o-,..,..19""7"'6-,1'""9...,.8=7,-1'"'"9...,97,....,--by   AlA DOCUMENT A201 • 1997
      The American Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial                                                                                                                                                                           GENERAL CONDITIONS OF THE
      quotation of its provisions without written permission of the AlA violates the copyright laws of the United Stales                                                                                                                                                                    CONTRACT FOR CONSTRUCTION
      and will subject the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                                                                                   .       .            . ·
      laws and will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                                                                               The Amencan Institute of Architects
      permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                                                                       1735 ~ew York Avenue, N.W.
      expiration as noted below.                                                                                                                                                                                                                                                            Washmgton, D.C. 20006-5292
      This document is not an original AlA® Contract Document, but a reproduction produced by AJA®
      Contract Documents software tor administrative purposes only and is not for other use or resale.
                                                                                                                                                                                                                                                                                  50
.,   :A .).    l-.




                                                                                                                                                                                                                                       THIS DOCUMENT HAS IMPORTANT
                                                                                                                                                                                                                                       LEGAL CONSEQUENCES.
                                                                                                                                                                                                                                       CONSUL TAT/ON WITH AN
                                                                                                                                                                                                                                       ATTORNEY IS ENCOURAGED WITH
                                                                                                                                                                                                                                       RESPECT TO ITS COMPLETION OR
                                                                                                                                                                                                                                       MODIFICATION. AUTHENTICATION
                                                                                                                                                                                                                                       OF THIS ELECTRON/CALLY
                                                                                                                                                                                                                                       DRAFTED AlA DOCUMENT MAY BE
                                                                                                                                                                                                                                       MADE BY USING AlA DOCUMENT
                                                                                                                                                                                                                                       D401.

                                                                                                                                                                                                                                       This document has been approved and
                                                                                                                                                                                                                                       endorsed by The Associated General
                                                                                                                                                                                                                                       Contractors of America




                                                                                                                                                                                                                                      1:>1997 Alii®
     -;;©~Co=p::-:y:;-rig::;:h-::-1719;:;:1~1-,7.19:;-::1~5-,1:;;9:-::-1~8,-:1;-;:9::::25;::-,-:1;-;:9-::::37::-,-::1~95=:1',-::19""5::::8:-,""19"'6'""'1-,"'"'19;,6:::-3,-1:-::9c::-66::-,-:1-=9-==67=-,...,1""'97::-:0:-,-:-1""97""6,...,"'"198==7,..,1.,..,9'""9=7-:-b-y AlA DOCUMENT A201 • 1997
      The American Institute of Architects. Rfteenth Edition. Reproduction of the material herein or substantial                                                                                                                       GENERAL CONDITIONS OF THE
      quotation of its provisions without written pennission of the AlA violates the copyright laws of the United States                                                                                                               CONTRACT FOR CONSTRUCTION
      and will subj_ect the violate to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright                                                                                                                             .        .           .
      laws and Will subject the violator to legal prosecution. This document was electronically produced with                                                                                                                          The Amencan Institute of Architects
      permission of the AlA and can be reproduced in accordance with your license without violation until the date of                                                                                                                  1735 New York Avenue, N.W.
      expiration as noted below.                                                                                                                                                                                                       Washington, D.C. 20006-5292
      This document is not an original AlA® Contract Document, but a reproduction produced by AlA®
      Contract Documents software for administrative purposes only and is not for other use or resale.
                                                                                                                      51
APPENDIX H
                                                                                      Filed
                                                                                      12 October 1 P4:20
                                                                                      Amalia Rodriguez-Mendoza
                                                                                      District Clerk
                                                                                      Travis District
                                                                                      D-1-GN-1 0-002325
                               CAUSE NO. D-1-GN-10-002325

RLJ 11-C AUSTIN AIR, LP; RLJ 11-C               §              IN THE DISTRICT COURT OF
AUSTIN AIR LESSEE, LP; AND RLJ                  §
LODGING FUND II ACQUISITIONS,                   §
LLC,                                            §
                                                §
        Plaintiffs/Counter-Defendants,          §
                                                §
~                                               §                  TRAVIS COUNTY, TEXAS
                                                §
EBCO GENERAL CONTRACTOR,                        §
LTD; EBCO ADVANCED BUILDING                     §
SYSTEM, LTD; EBCO/WARRIOR                       §
MANAGEMENT LLC; ELNESS,                         §
SWENSON, GRAHAM ARCHITECTS,                     §
INC.; MARK G. SWENSON,                          §
INDIVIDUALLY, TERRACON                          §
CONSULTANTS, INC.; TODD E.                      §
SWOBODA, P.E., INDIVIDUALLY;                    §
MBA STRUCTURAL ENGINEERS AND                    §
ANDREW T. MARLIN, P.E.                          §
INDIVIDUALLY,                                   §
                                                §
        Defendants/Counter-Claimants.           §               200 TH JUDICIAL DISTRICT


  ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S
       SECOND AMENDED ANSWER AND ORIGINAL COUNTERCLAIM
                    FOR DECLARATORY JUDGMENT


TO THE HONORABLE COURT:

        CoME   NOW,   Defendants and Counter-Claimants Elness, Swenson, Graham Architects,

Inc. ("ESG") and Mark G. Swenson ("Swenson" and, together with ESG, collectively,

"Defendants" or "Counter-Claimants") and file and serve this Second Amended Answer and

Original Counterclaim for Declaratory Judgment in response to Plaintiffs' Sixth Amended

Original Petition and, in support thereof, would respectfully show the Court as follows:



ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 1
599603.1 4021122

                                                                                                     46
                                                 I.

                                 SECOND AMENDED ANSWER

A.      GENERAL DENIAL

        Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendants generally deny

each and every, all and singular, the assertions alleged in Plaintiffs' Sixth Amended Original

Petition and any amendments thereto and request that Plaintiffs be required to prove the charges

and allegations against these Defendants by a preponderance of the evidence and/or by clear and

convincing evidence, as required by the Constitution and the Laws of the State of Texas.

B.      SPECIFIC DENIAL

        Pursuant to Rule 54 of the Texas Rules of Civil Procedure, Defendants specifically deny

that all conditions precedent to the Plaintiffs' right to recover have been performed, have

occurred, or have been waived or excused.        In particular, Defendants specifically deny that

Plaintiffs have presented their claims for payment to Defendants or Defendants' duly authorized

agents as required by Section 38.002(2) of the Texas Civil Practice & Remedies Code.

C.      VERIFIED DENIALS

        Pursuant to Rule 93 of the Texas Rules of Civil Procedure, Defendants make the

following verified denials:

        1.         Defendants deny the assignment of the contract upon which Plaintiffs' claims

against Defendants are founded. Specifically, Defendants deny that Defendants or Defendants'

authorized representative(s) provided consent to assign the contract at issue to Plaintiffs.

Therefore, any alleged assignment violates the anti-assignment clause of the contract and is null

and void.




ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 2
599603.1 4021122

                                                                                                    47
        2.         Defendants deny that Plaintiffs are entitled to recover in the capacity in which

they sue.    Defendants did not provide consent to assign the contract upon which Plaintiffs'

claims are founded, and any such assignment is, therefore, made in violation of the anti-

assignment. As such, Plaintiffs are not parties to the contract and lack standing to bring contract

claims against Defendants.

        3.         Defendants deny that Swenson is liable in the capacity in which he has been sued.

In particular, Swenson is not a signatory or a party to the contract upon which Plaintiffs' claims

against Defendants are founded.

        4.         Defendants incorporate by reference herein the sworn verification of Paul

Mittendorf£, a Principal and Vice President of Elness, Swenson, Graham Architects, Inc., which

is attached to Defendants' First Amended Answer and Original Counterclaim for Declaratory

Judgment filed with the Court on or about December 30, 2011.

D.      AFFIRMATIVE DEFENSES

        Pleading in the affirmative, if such       IS   necessary, Defendants would further show as

follows:

        1.         Plaintiffs' alleged injuries and damages, if any, resulted, if at all, from conditions

unrelated to any act, omission or conduct of Defendants.

        2.         Plaintiffs' alleged injuries and damages, if any, were caused, if at all, in whole or

m part by the acts or omissions of others for whose conduct Defendants are not legally

responsible.

        3.         At all times material to Plaintiffs' allegations, Defendants' conduct conformed to

the applicable standard of care.

        4.         Plaintiffs' tort claims are barred in whole or in part, by the economic loss rule.

ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 3
599603.1 4021122

                                                                                                            48
        5.         Alternatively, if the economic loss rule does not completely bar all of Plaintiffs'

tort claims, then, pursuant to Chapter 33 of the Texas Civil Practice and Remedies Code,

Defendants are entitled to a credit for any settlement Plaintiffs receive from any other person or

entity. If Plaintiffs settle with any other person or entity, then Defendants reserve the right to

make a written election of credit for settlement under §33.014 of the Texas Civil Practice and

Remedies Code.

        6.         Alternatively, if the economic loss rule does not completely bar all of Plaintiffs'

tort claims, then, Plaintiffs' alleged injuries and damages, if any, were caused, if at all, in whole

or in part, by Plaintiffs' own negligence. Plaintiffs are wholly barred from recovery to the extent

the finder-of-fact determines Plaintiffs' comparative responsibility is 50% or greater, and, if

Plaintiffs' comparative responsibility is less than 50%, any recovery must be reduced by

Plaintiffs' percentage of responsibility determined by the finder-of-fact, in accordance with

Chapter 33 of the Texas Civil Practice & Remedies Code.

        7.         Plaintiffs cannot recover for any amount that could have been avoided by their

exercise of reasonable care.

        8.         Plaintiffs' claims are barred, in whole or in part, by Plaintiffs' failure to mitigate

any alleged damages.

        9.         Plaintiffs' alleged injuries and damages, if any, resulted, if at all, from

independent, unforeseeable, intervening and/or superseding causes.              Any alleged action or

omission on the part of Defendants was not the proximate cause, producing cause, or cause-in-

fact ofPlaintiffs' alleged injuries or damages, if any.




ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 4
599603.1 4021122

                                                                                                            49
        10.        Defendants assert any and all defenses and seek any and all relief to which

Defendants may be entitled in accordance with and pursuant to Chapter 150 of the Texas Civil

Practice and Remedies Code.

        11.        Plaintiffs lack standing to sue on and are not parties to the contract on which

Plaintiffs' claims against Defendants are founded. Assignment of the contract to Plaintiffs was

made without consent ofDefendants, in violation of the anti-assignment clause of the contract.

        12.        Plaintiffs' non-contract claims are barred by the appropriate statute oflimitations.

        13.        Plaintiffs' non-contract claims, including claims for equitable subrogation, are

barred by the economic loss doctrine.

        14.        Plaintiffs' recovery, if any, is limited to direct contract damages, if any, pursuant

to the waiver of consequential damages clause in the contract upon which Plaintiffs' claims

against Defendants are founded. More specifically, Plaintiffs' claims for current and future lost

revenue, profits and diminution in value are barred by the consequential damages clause of the

contract.

        15.        Plaintiffs' claims are barred against Defendants because Plaintiffs purchased the

building in question "as is."

        16.        Defendants reserve the right to amend or supplement with any additional

affirmative defenses or pleas of avoidance to which Defendants may be entitled.

                                                     II.

                     COUNTERCLAIM FOR DECLARATORY JUDGMENT

A.      INTRODUCTION

        1.         Now as Counter-Claimants, ESG and Swenson bring this action pursuant to TEX.

Crv. PRAc. & REM. CoDE§ 37.001, et. seq., the Uniform Declaratory Judgments Act, and seek a


ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 5
599603.1 4021122

                                                                                                           50
declaration from the Court that RLJ 11-C Austin Air, LP; RLJ 11-C Austin Air Lessee, LP; and

RLJ Lodging Fund II Acquisitions, LLC (collectively, "Counter-Defendants") may not recover

contract damages under the contract at issue in this case.

        2.         As provided for by Chapter 37 of the Texas Civil Practice and Remedies Code,

Counter-Claimants seek the following declarations from the Court:

        a.         That the "Anti-Assignment" clause of the contract       IS   valid, enforceable and

                   applies to Counter-Plaintiffs, making any ostensible assignment of the contract, in

                   violation of the Anti-Assignment clause, null and void and of no effect;

        b.         That the "Statute of Limitations Accrual" clause of the contract is valid and

                   enforceable and, to the effect that a party could enforce the contract against

                   Counter-Claimants, such Statute of Limitations Accrual clause establishes the

                   date upon which any cause of action against Counter-Claimants accrues, i.e., the

                   date that Counter-Claimants' services were substantially completed, which such

                   date time-bars all of Counter-Defendants' causes of action with a two-year

                   limitations period;

        c.         That the "Waiver of Consequential Damages" clause of the Contract is valid and

                   enforceable and, to the effect that a party could enforce the contract against

                   Counter-Claimants, such Waiver of Consequential Damages clause bars Counter-

                   Defendants from recovering any consequential damages from Counter-Claimants;

                   and

        d.         That Swenson was not a signatory or a party to the contract at issue here and, as

                   such, cannot be liable to the Counter-Defendants under the contract.



ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 6
599603.1 4021122

                                                                                                         51
B.      DISCOVERY CONTROL PLAN

        Discovery in this action is intended to be conducted under a Level 3 Discovery Control

Order pursuant to Texas Rule of Civil Procedure 190.3.

C.      PARTIES

        1.         ESG is a Minnesota corporation that is authorized to do business in Texas. ESG

has made an appearance in this matter.

        2.         Swenson is an individual who is a citizen of Minnesota and who has already

appeared in this lawsuit.

        3.         RLJ 11-C Austin Air, LP ("RLJ 11-C Austin Air") is a Delaware Limited Liability

Company that is authorized to do business in Texas. RLJ 11-C Austin Air has already appeared

in this matter.

        4.         RLJ 11-C Austin Air Lessee, LP ("RLJ 11-C Austin Air Lessee") is a Delaware

Limited Partnership that is authorized to do business in Texas. RLJ 11-C Austin Air Lessee has

already made an appearance in this matter.

        5.         RLJ Lodging Fund II Acquisitions, LLC ("RLJ Lodging") is a Delaware Limited

Liability Company that is, upon information and belief, authorized to do business in Texas. RLJ

Lodging has already appeared in this matter.

D.      JURISDICTION AND VENUE

        1.         The subject matter of this declaratory judgment action is within the jurisdiction of

this Court and is authorized pursuant to TEX. Crv. PRAc. & REM. CoDE§ 37.003.

        2.         Pursuant to section 15.062(a) of the Texas Civil Practice and Remedies Code,

venue is proper in Travis County, Texas.




ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 7
599603.1 4021122

                                                                                                          52
E.      FACTUALBACKGROUND


        1.         On or about January 1, 2005, White Lodging Services Corporation, Inc. ("White

Lodging") and ESG entered into an agreement for architect services, as set forth in the following

contracts: (i) AlA Document B141- 1997 Part 1: Standard Form of Agreement Between Owner

and Architect with Standard Form of Architect's Services (the "Contract - 1997 Part 1"),

attached hereto as Exhibit "1;" and (ii) AlA Document B141 - 1997 Part 2: Standard Form of

Architect's Services: Design and Contract Administration (the "Contract - 1997 Part 2"),

attached hereto as Exhibit "2."

        2.         The Contract - 1997 Part 1 and the Contract - 1997 Part 2 (collectively, the

"Contract") were both executed on March 30, 2005. The Contract was not signed by Swenson in

either his individual or representative capacity.

        3.         Section 1.3.7.9 of the Contract contains an Anti-Assignment clause, wherein

"[n]either [White Lodging] nor [ESG] shall assign this Agreement without the written consent of

the other, except that [White Lodging] may assign this Agreement to an institutional lender

providing financing on the Project."

        4.         Section 1.3.6 of the Contract contains a Waiver of Consequential Damages clause,

under which both ESG and White Lodging "waive consequential damages for claims, disputes,

or other matters in question arising out of or relating to this [Contract]."

        5.         Section 1.3.7.3 of the Contract contains a clause commonly known as a "Statute

of Limitations Accrual" clause, which provides the method to determine when a cause of action

accrues for the purpose of starting the statute of limitations. Specifically, section 1.3.7.3 reads as

follows:




ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 8
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                                                                                                         53
                   Causes of action between the parties to this Agreement pertaining
                   to acts or failures to act shall be deemed to have accrued and the
                   applicable statute of limitations shall commence to run not later
                   than either the date of Substantial Completion for acts or failures to
                   act occurring prior to Substantial Completion or the date of
                   issuance of the final Certificate for Payment for acts or failures to
                   act occurring after Substantial Completion. In no event shall such
                   statute of limitations commence to run any later than the date
                   when the Architect's services are substantially completed.

(Emphasis added).

        6.         On or about March 16, 2006 White Lodging, et al. and Counter-Defendants

entered into an agreement entitled New Hotels Purchase and Sale Agreement by and between

Whiteco Industries, Inc. and RLJ Lodging Fund II Acquisitions, LLC, (the "New Hotels Purchase

and Sale Agreement"), through which Counter-Defendants claim that the Contract was assigned

to them.

        7.         ESG did not consent to an assignment of the Contract from White Lodging to

Counter-Defendants, allegedly effectuated through the New Hotels Purchase and Sale

Agreement.

        8.         ESG's services were substantially complete before the date the Certificate of

Occupancy was issued for the Project, which was on October 12, 2006. Therefore, any causes of

action against Counter-Claimants accrued, if at all, no later than October 12, 2006.

        9.         Counter-Defendants initiated this lawsuit and filed Plaintiffs' Original Petition

and Request for Disclosure on July 7, 2010.                   Therefore, the negligence, negligent

misrepresentation and equitable subrogation causes of action asserted by Counter-Defendants,

each of which are governed by a two-year limitations period, are time-barred by the statute of

limitations.




ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 9
599603.1 4021122

                                                                                                       54
        10.        Counter-Defendants seek recovery from Counter-Claimants for, among other

things, diminution in the Project's value, lost revenue and other consequential damages, which

such recovery is barred by the Waiver of Consequential Damages clause in the Contract.

F.      CAUSE OF ACTION: APPLICATION FOR DECLARATORY RELIEF.

        1.         Counter-Claimants incorporate by reference paragraphs II.A.1 through and

including II.E.1 0 above as if fully set forth verbatim herein.

        2.         There exists an actual and justiciable controversy between Counter-Claimants and

Counter-Defendants herein, within the jurisdiction of this Court, and involving rights, duties,

legal obligations and relations of the parties under the Contract at issue.

        3.         Counter-Claimants petition this Court, pursuant to Chapter 37 of the Texas Civil

Practice and Remedies Code, to declare that:

        a.         the Anti-Assignment clause of the Contract is valid, enforceable and applies to

                   Counter-Plaintiffs, making the assignment of the Contract, which was in violation

                   of the Anti-Assignment clause, null and void and of no effect;

        b.         the Statute of Limitations Accrual clause of the Contract is valid and enforceable

                   and establishes the date upon which any cause of action against ESG accrued was

                   on or before October 12, 2006, which is the latest date by which ESGs' services

                   were substantially completed;

        c.         that all of Counter-Defendants' causes of action against ESG with a two-year

                   limitations period are time-barred;




ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 10
599603.1 4021122

                                                                                                        55
        d.         the Waiver of Consequential Damages clause of the Contract is valid and

                   enforceable and bars Counter-Defendants from recovering any consequential

                   damages from Counter-Claimants; and

        e.         Swenson was not a signatory or a party to the Contract and cannot be liable to the

                   Counter-Defendants under such Contract.

G.      COSTS AND ATTORNEYS' FEES

        Counter-Claimants have retained the undersigned law firm to represent them in this

action and have agreed to pay the firm all costs and reasonable and necessary attorneys' fees

incurred in this matter. An award of costs and reasonable and necessary attorney's fees to

Counter-Claimants is equitable and just and, therefore, authorized by Chapter 37 of the Texas

Civil Practice and Remedies Code.

                                                  III.

                                               PRAYER

        WHEREFORE, PREMISES CONSIDERED, Defendants and Counter-Claimants Elness,

Swenson, Graham Architects, Inc. and Mark G. Swenson respectfully request that Plaintiffs and

Counter-Defendants RLJ 11-C Austin Air, LP; RLJ 11-C Austin Air Lessee, LP; and RLJ Lodging

Fund II Acquisitions, LLC be cited to appear and answer herein and that, on final hearing, the

Court enter an Order as follows:

        a.         That Plaintiffs and Counter-Defendants take nothing by their claims;

        b.         A declaration that the assignment of the Contract to Plaintiffs and Counter-

                   Defendants was made in violation of the Anti-Assignment clause, is null and void




ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 11
599603.1 4021122

                                                                                                        56
                   and of no effect, and Defendants and Counter-Claimants are not liable to

                   Plaintiffs and Counter-Defendants under such Contract;

        c.         A declaration that Plaintiffs and Counter-Defendants' claims against ESG are

                   time-barred, pursuant to the Statute of Limitations Accrual clause of the Contract;

        d.         A declaration that Swenson was not a signatory or party to the Contract and

                   cannot be liable to Plaintiffs and Counter-Defendants under the Contract;

        e.         That Counter-Claimants be awarded their costs and all reasonable and necessary

                   attorneys' fees; and

        f.         All such other and further relief, both general and special, at law or in equity, to

                   which Defendants and Counter-Claimants have shown themselves to be justly

                   entitled.




ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 12
599603.1 4021122

                                                                                                          57
                                            Respectfully submitted,

                                            MACDONALD DEVIN, P.C.




                                            By:
                                                    Gregory N. Ziegler
                                                    State BarNo. 00791985
                                                    gziegler@macdonalddevin.com
                                                    Russell E. Clinage
                                                    State Bar No. 00790473
                                                    rclinage@macdonal ddevin. com

                                            3800 Renaissance Tower
                                            1201 Elm Street
                                            Dallas, Texas 75270-2130
                                            (214) 744-3300 Telephone
                                            (214) 747-0942 Facsimile

                                            ATTORNEYSFORDEFENDANTSAND
                                            COUNTER-CLAIMANTS ELNESS,
                                            SWENSON, GRAHAM ARCHITECTS, INC.
                                            AND MARK G. SWENSON



                                CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing document has been served

upon all counsel of record in accordance with the Texas Rules of Civil Procedure, on this 1st day

of October 2012.




                                            Gregory N. Ziegler




ELNESS, SWENSON, GRAHAM ARCHITECTS, INC. AND MARK G. SWENSON'S SECOND AMENDED
ANSWER AND ORIGINAL COUNTERCLAIM FOR DECLARATORY JUDGMENT- Page 13
599603.1 4021122

                                                                                                    58
                                                                                                                                      (S.;




    I .AlA Document B141m -1997 Part 1
    $11ndard Form of Agreement Between Owner and Architect
    wilh·Standarrl Form ofArohitect's Services

    TABLE OF ARTICLES

    1~        INmnALINF~~llON
              RE$PQNSIBJ!#.li=S OF THE PARTIES                                                  ADDmOHS AND DELETIONS;
                                                                                                lba IIUihor at thll document hu
              ~ !.fio:CONDlJIONS
                .. .. . .                                                                       addDd !nlcnnatlen noeclod ferIa
                                                                                                ccmplllllon. Thtt aulllelt may also
              SCOPE(),fiS!ftvtCeSAND OTHER SPECIAL TERMS AND CONDmONS                           have nMaad 1M !lilt ollhe
                       .               r .;·"                                                   Q'fg!nal AlA atandallllonn. An
   1.5.       c'O~ENSAT~df.i-.                                                                   Alltllon~IU!d o.letloM R.ptJtt
                   .       .   -~~·                                                             lhal nctas adcted lnlcnnatlon a
  Aoiet.mNT ~do u·~(tftc Pliat doy or Jaouary ia tim year Two Thousaod Five.                    waD DIIRMiions ID lhe alll1dan:t
  (In JNrdJ, lndlctJtll dar...monrll lllld ye11r)                                               lcrm Ialit II avallablit fl1lm 1M
                                                                                                aulhcr lll1d ai1CIIIId bo lll'lfewm.
  BETWEEN the Architecc'r.cllel)t idcatifled 1111 the Owner:                                    A VltlllcaJ In& In lhe l&lllllllrflt of
  (NiiiM, tJddrrtn Dlld ot#itsr.}liformlllion)            1?                   "'? /:~ {.       IIIIo docl.mont lndlcatn Mloro
                                                       '       f\ (!_'I j::.   0 c;... 't 0 S   tile av111ot has adclcd noconiiY
  Whlta Lodglug Setvicei qHponulon, r.c.                                                        lnfOI'IIIA!Ian llld wllere lhe llllhor

I 1000 But 80tb Place. Spl.~ SOO North
  Merril9ille, IN 46410.S666
                                                           , 'P .1 !>... 0,... ~
                                                             't- c:;, 1
                                                                      1
                                                                                   F~ """       has addad to Of delaCtd from 118
                                                                                                origlml AlA llxt.
                                                              0-,z:.lcc Co~r. 2../,/o.rrno«xvner~tva~
                                                                                                legal consequences.
  llld the Arcbire.ct:                                 •     ~'{ 1!.../o ,.[ .\. ~IL            Comuaalon Mlh lUI at=rnoy
  (Nunw, tZddnu lllld Olh.~r hrfonntiflon)                                                      II OI\CIDUiaOIId wftiiiOtJIOCI Ill
                                                             ~Alt..~           bA-T6.Ja         lb ~ 01 madlfcatlon.
  Blaeu SweJUOQ Osabam ~ltects, lilc.
  500 WuhlllgLOn Awooe SQUib
  MiDncopoUs.MN S54l5
                                                              Z/'2.~/o~
                                                              :Slot lo-s:
                                                             .3/z,r / os
  For the followJag Ptojecc· ·
  (Include dd41led dqcrll!f!,.'f§}'[.r,_'('jt!cr)
          .                    ~   ~   ........ r ..
  Dcsiln; 4o«:u~on a!il~ conllaCt admlilhtradoa for 1he COIIStnlclion of a
l Court)'d.llyltfardott iu Auscia. Tex83.
  Tho Owner IU!d Arehltcc:t agree as followa:




                                                                                                                                          1



                                                                                                         SCA'f\ff\JED
                                                                                                                  SFP 2 2 2007


                                                                                            EXHIBIT                        ESG001454
                                                                                    I                                                         59
  ARTICLE 1.1 INITIAL INFORMATION
 .§ 1.1~1 Thi.1 Agreemeat 11 based on the foltowillg mronnadon lllld a.sawnplfona.
 (Nor. ih#dLrposldonjor lila following /~1111 b)' ln#rtllls the nquutd bifonnatfon or a stotemSII such as •not
 -apPJlctll!lir," "un.b!own til time of exc~:utlrm" or "ro bet.t.rmlnr4 ~tar by mutual agrei!IJIDIL ")
 § 1.1.2 PROJECT PARAMETERS
 § 1.1.2.1 The objecdve or usc is:
 (ltrlftti/'J or ducribfl, if approprillle, proposed 1114 or goals.)

 A COIDiyard by Mmfou • a limited-service, ptototyplcal hotel

 § 1.1.2.2 The physical p~ten are:
 (ltknlih o;. ducrlbe. Ifqp1't1prilzle. ~~ location, dllllfiiiSlons, or otbr pt~rllnent ltifomr.allDn, .ruch as gfiDtuhnl&tll
 rtporU about 1htt site:)



§ 1.1.2.3 The Owaet'a Program Is:
(ldlntt.fy docummtmion or &tllltl ths 1NJ11Mr in whit:h the progi'U1fl wiU btl diVtlloped.)

The hotel program calls .for a five-stoty building. The project will conlaia 148 guestrooms and die olher
prototypical Courtyard Hci~l ~oas - a lobby/lounge, cliDiug..ldtcllea, a recepdon desk witb saadriea display uea
and ofliul. meeting space. s'llrimmins pool and whirlpool, exeltise room, bsct-of-bo~~~e storap,lauucky,
mecbaulcill and electrical spaces IIDd a guestlauadry &or. Futthcc dcfiDitiou or the ProiCGt Program is COI:IIaincd In
Elaess Sweascm ~An:blrects' PmposalleaerdaredNovember 12.2004, nMaedJauuy 21,2004 altiiCbed u
"Bxhibit A" with further clarifitatioD colllaiacd In BIDess Sweosoa Graham An:hilectl' schematic dedp documears
dalecl111111111'Y 28, 200S. wbicb ire attached by refen~oce as -sxbiblt B.•

§ 1.1.2.4 The legal piiJ!IlDlCiei'S are:
(ld6111ifJ pert/Milt lt!Bal information, incbulins. ifoppropriQu, lluul SU¥WyS and lt~gal duaiptiotu and rutrlctlotu
ofthe sile.)
L:pJ Dc:lcripdon ofPEopeny:
Lot 5-D, Block C. RBSUBDIVJ8JON OFLOl'S 4 AND S, BLOCK C. METRO CBNTRB SEC110N S,11
subdivision Jn Austin, Travis Coouty, Texas, accordiDg to the map or plat ~~=n:or n:c:cmkd as Docummt t999002GS
in lhe Plats Rc:c:ords of'l'111vfs County, Tens.


§ 1.1.2.5 Tbc'liDancial paliiJDI:(I:tll ~n u roUows .
•1        .AmoUnt of ~.Owner's ovetaU budget for the Project, includiai the Mhifcc:t'a compeiiSatiou. b: $48,000                oil'
per room or S/,000,000,                                                                                           r'1
.2        Amcunt of the pwiicrs budget for !he Cou or lhe Wod:, acludillg de Archftect's compeosalion, b:        \~
                 unbowil-at time-of execuliqn or Ibis Agrccmcut                                                  ~ "\

§ 1.1.2.6 The lime panur=tcn ~=
(Irlmlib. if appropriaie, milestone datu, duralions orfan rmclc scheduling.}
                         ,,
The following MjJestoac Dares ~ lhe same as !hose listed illl!htess Swt:~~son GraMm Aldllrects' Proposalleucr
daled November 12. 2004, revised January 21, 2004 attached as "Bxbbbit A. • and herein rcpiOduccd:

Jamwy 28, 200S                        3K Design Documents Chcclc Set
March 11, 2~ •                7596 Design Documents Check Set
Aprii2S, 20QS                         9~ Contract Docu1111111ts; FoWtdalioa Buildillg Permit


§1.1.2.7Tbe proposed procureme~~tordelivay melhod for the Project is:
(ldmlif:y mnlwrl such tU ct)mpedtive bltl. negozlatlll COIIlTrZCt. or ct)IUinU:tlcln IIIIIMB611111111.)


                                                                                                                                       2



                                                                                                SEP 22 2007


                                                                                                                            ESGDD1455

                                                                                                                                           60
 Negotlaled Connct.

 §1.1.2.8 Otbu parameters are:
 (IJlen.tifyqet:ial dulnu:tulslic8 or ntw ofthe PttJj«t sud! tU Drl1'fiY, Dl'llronnutnt41 or lrmorir: p~ei'WIIitm
·nipzinm&Ml.r.J


 § 1.1.3 PROJECT TEAM
 S1.1.3..1 The Owner's Dcaigaalcd Rep.reaealallvc is:
 (lbl1111nw, mldren t11rd oilier illfomwum.)

Trezat Bubcr
Whi1D Lodglas Scrvk:cG CorpomioD, IDe.
1000 But 80th Plaee, Suite .500 Nonh
Menilrillc. IN 46410..56~


§ j.U.2 The pecsoJIS or cntllies, in addltioAIO tho Owacr's Dclianalcd ~ who are required 10 nwicw
theAtchlrect'ssubiniuals.lcl the Owner ue:
(lilt-. a&Jrus and oilier ill/rlmuJtitm.J

Marriou International
MarriCIU Dme
WasblllfOn, D.C. 20058
§ 1.1.3.31bc Owner's olhcr consultanla and conlniCIOn an::
(lbr discipline and, ({known, ldrnrify thmt by nam• and addnu.)

CMLENGINEBR:
Griffin Engineering Group, IDe.
11711 North Lamar Boulevard
Aasdn, TX781.53

§ 1.1.3.4 The Archllcct'a Dcaignatcd Ri:p.lesentativc is:
(Un nan", addnu arid othtn" itifomtJJtlon.)

Mark Swensan, AlA
Paul M!Ueudorff, AlA
JlllllCI Timm, AlA
J!.hless Swenson Grabam.Archlrecu, Inc,
500 Washiog!o'n Avenue ~9Uih
Milinompolls, MN SS41S'


i 1.1.3.5 Tba CODIU~.~Ia retained at the An:hitecl's OXpCDIO 11n1:
(Ust dl.Jclpllne Gnd.   if known, ldmtifl th4m by name and addrer~.)
STRUcrtJRAL BNOINEERlNG:
Kollh Owcm, P.B.
l4irli~ .Brilfgea !f. Assoc:ialel, Inc.
'31520'Bigbtll AVeliuc South, Suire 1J0
Blnnfngham, AL 3!1222




                                                                                    SEP 22 2007


                                                                                                                    ESG001456

                                                                                                                                61
  MECHANICAL, ELECTRICAL ENOINEEIUNO:
  Laaylllldsoy, P.B.
  Lill<b~ Eugiuccn,      Inc.
  7703 Brodie Lane
  Austin; TX 78745

  § 1.1.4 Other irnponaot iDilial infomwioa is:



 § 1.1.5 Wbea tbe senices wulu lhls Ageemcat illclwle conii'ICC lldmlllistndoa ICrVIcct, the Oaleral Condidcms of
 the ColllnCt for Cona11uctfoa siWJ be the eclltloo or AlA Doc:umeDt A20l cum:at Ill of the dale or Chis Asrecmcat.
 orufoDows:



 §1.1.S1'hoiiiC~ ~laincd In this A11icle 1.1 may be I'CI1SOJiably n:llcd upoa by tbe <>-aud AzdWccc ID
 cleCermiDiDglhe Arcllltect's ~n. Both partie~, howclw, ncogalr.e lhat such lafonnatioa nay cba.agc aud,
 ia 1batC\'all, the Owa!=z:aadibe An:h!tcc:t shall u.egotlale 1ppropriaro lldjustmca1a iD ac:hcdala, compeualioa and
 Cha.atoiD Services in iicoonbace withSeclioa 1.3.3.

 ARTICLE 1.2 RESPONSmiunEs.OF THE PARTIES
 § 1~1 'lbe Owaer and :tbe...-Ardlltect llbalJ c:ooperatc with oae IIIIOChcr ro Cu1fi1l their respedive obliaalfons wufer Ibis
 ~ Bodl par1les sbiill emleavor ro malnlain sood wotldDg relatiauhipa amoq all membcn of tbe Project
 leam.

 §1.2.20WNER
 § 1.2.2.1Ulllcas olhcnvisc provided WJdcr this A&rccmcnt, lbc OWJU:r sball provide Cull faformatloa 1a a dmcly
 l!llllllerregariliag ~~~ for IJid fi~ODS OD tbo Project. 'Jbe Owner Shall fllnllsb to lbc Archlll:d, wlthJa
 15 days afta" reCeipt ~a wriUCD rcqucac, lnfonnadoa acceaary and rclevaut for the A.rdlirect ro evaiDale, pvc:
 notice of or eafon:c Ucn rights.

 § 1.2.U The OWDCI" shall periodically updale the budset for the Project, IDc:ludlDJihat pcrtlou aUocaed Cor tho Cost
 of tho Wort.·1be Owiacr &baD nOc-dgnlficaatly bcralc orclccrwc lho ovaaU bud&do the portioD ofllle budget
 allocated fW ibc ~of the Woik, or coatlageades lacluded 1a tbo ovenll budaet or a potdoa or tbo budget,
 Without tho apcemazt of the Architect to a comspoftdlns chaap lathe Project scopo and qaallty.

 § 1.2.2.3 The Qwua-'a DeaJpated R.epaellladve ldcadfied Ia Seclloa 1.1.3 &haJl be IUiborized ta act Oil the
 Owau'a behaJf with respect tp the Project. Tbc Owner or lhe Ow11cr'a Dcalpaled RcpreaentDIJve shall render
 decbloiiS iD a dmely"JJWU!eL" prrtalnlng ro clocumcata lllbmltted by the Architect iD order to avoid aareasoaahlo
 delay in the orderly and l!CqUCIItial progms of the Architect's aervlc:es.

 § 1~ Tbe OWDU sbal~ ~~~ !he services of couullallfl ollw" thaD those dellpa1ed In Secdoa 1.1.3 or aulhclriu
· lhe ·~tO futlli5h tbmi as a Chqe ia Services when such IClYiCZS are requested by the Aldlltcc:r llld &Je
  reuonablY.t#;luiRd. ~ tho scopo or the Project.
 §1.2.2.5 Unlt:ssiltbenrise provided In Ibis Aareement. the Owner shall fllraiah teats,laapcctlons and repona e.qu1red
 by law or the Conlract Doc:umenu. such as strucllual, mechanical, ud chemical teats. tests for air aud water
 pollutl011, end ce.ts for buardous marerlals.

 §1.7,2.6 Tho Owner shall t"umlsb aU legal,lnsutllllcc IUld aCCOUDiiogsetViCCI, includlag auditing services, that may
 ~ reuohably..necessary at any time Cor the Projecr to mccr the Owner' a I!Ceds and interests.

 § 1.2.2.7 Tho Owaer aball provide prompt wriUCII oodcc to the Architect If the Owner becomes aware of aay fault or
 deled In the Project, including any mora, omissions or lncoadsiOIIC!cs 1a thc Architect's Insttumcols of Service.



N4Doclllnenl8141"'-11197 Plllt t.C.pyrlgl!l 01817, 18211,1848. 18SJ,1M,IIISII,IEH11,11Ml3,1008, 111117, 11170, 1tr14,1tr17,18871111111811711y,.._
Amcllcan lnollUt ~ An:hlloella. All rlstllta nsaomtd. W~HIH011bla AJfli Docllmmt 18 pn~t.cllld lly u.a. CDprfllllll Llw ancllnlllrnatlllnlll TMaltes.
lln&utlladDd raprociiiOilon or cllllrlblltlan oltl\lo AI_. Documon~ onnr parelan olll, may mullin M\IDIO cfvtiiiiiCI almlllll ponallln, and Will Ill    4

No.tOOOIS«llS.):
uur  MaiM:                                                                                     s CAN NED
JHOtCcutld to the maximum alent s-llble under lho In'. 'IIIIa doculnont wu ~by NA 10ftw1111t aa 14:32:11011 01112&'200S under Onler
                 Mic:h aplrN an llftll/li*I08, and Ill nat lot rOMit.                                                                   (38&MS4002)



                                                                                                        SEP 22 2007


                                                                                                                                           ESG001457

                                                                                                                                                            62
 § 1.2.3 ARCHITECT
 5 t2,3.11bo savfcea pedotmed by the AR:hilect, Alchitcct's employecs aad Arcbj~ec:t's ~~~ abal1 be u
 e!Nmcmtcd iD Aatielo 1.4.
§·1.2.3.21bo Atchltect's services shall be performed 11 cxpcdilloDIIy as II coasisteat with profCISioaal sJdU and care
• ' " orderly proBRSS of lhc Project. Tho Architect ablll submit ror die Owner"a approval a schedule for lhe
~ of the An:bitcct's services wbicb iDirillly sball be ccmsbtc11t with lhe time periods established iD
Scclion 1.1.2.6 and wh1cb shall be adjusted, it necawy, as lbc Project pzoceeda. This schedule aball iacludo
aDOWllllCCS for pcriodl of time rcquin:d tor the Owacr's review, for lhc pc:donDaqco oldie Ovmcr's c:oiiS\1llaJita, ud
filr appto'lll or submilalalls by aulhcrltlcs havhlg jurisdlceion over lhc Project. 1'imo limita Cltablisbed by Ibis
sclu:dule approved by c= Owner shall aot, except ror JUSallablc eausc. be eKeedcd by lho Ard!icoct or OWJW.

su.u ne Archilcct'l Dcalguted Ropreac.utalive ida!tificd iD Section 1.1.3 shaD be authorized to act OD lhc
Arch!II:Cl's bchall with respect ID die ProjCCL

au.u     Tho Arehlcect shall mabitailllho eollfideudality of lolinm:dioo specificully dcaiJruucd ss coofidcnlial by the
Owuu; ua.lc:ss wilbholditJ& sucllillfonnalion would vlolaU: the law, create tbc risk of slpiftcalu harm to lhe public
ot provoot tho Atcbl~ from oatablbhiDg a c:laim or dctimac iD 1111 adjudicatory pmc:eecliDg. Tho ArdUtect sball
require of tho ArChlteot'i ~llltaots sltnllar agreeme~~ts to maiolain tile c:ollfidenliality or illfonnatioo speclficslly
dcs.lgosltd aa confidait#al by die Owner.

§ 1.2.U Bxccpt with tlic.Owner's bowledgo lllld C011Sent, tile An:hltect shall not cugaso in any ac:tivity, or accept
1111y employment, lo~:or· c:ontribulioo that would reasonably appear to compromise the Archlrect'll professional
judgment wilb rupoct,~tbis Project.

§ 1.2.3.6 Tho Arehltoct.ablill rmow l11ws, c:odcs,lllld regulstloas applicable to the ~t's services. 11m Archilect
shall respond In die design of tho Project to requirements imposed by govemmontal autbodtlos havbagjurisdlctlOll
over the Project.

§ 1.2.3.7 The Aldllrcc:t·lbsll be eotided to rely oo lho acewaey and complc:ta~oss of scMc:os and informalioo
fumishcd by the Owno,r;.Jbo Archltec:l shaD provide prompt wrlttc11 notice to the Owner if lbe Archllcct becomes
aware of~ erron, o~slona or iacOIIIIiltcnclos in such services or lofol'UIIItion.

ARilCLE 1.3 TERMS AND CONDmONs
§ 1.3.1 COST OF THE WORK
§ 1.3.1.1 'nlo Celli at tht Work shall be the toaaJ coat or, to the oxteatlbc Project is not compldcd, the osdmated cost
to lbo Owner of all olomcol5 ~f~-~Jcet designed or specified by tho .AtchitccL
                             ••   •       0




51.3.1.2 Tbc Celli of tho Wait siii"llii!Ciodo tho coat at current market ndcs of labor aDd maiCI'Ials fumlshcd by lho
0\Wet IIIII equiplllODt dcdped, spoeified. selected or specially provided far by the Aadd1ect, iJicludina the costs of
liiiDIIgeiiiCOt OC supetvisloo cit"C011Slr11Ction ot lastalladoo provided by a sepanilO c:oiiiUUCtloo maDaF Gr
contractor, plus a rusooablc aDowa.acc for lbe.lt ovahead and profit. Jn additi011, a reasoublc allowance ror
contiJI&ellcles lball bo ~~lcet coodld0111atlho time ofblddiog and for changes lo tbe Wort.
§1.3.1J Tbo QoiC o~the Wort docs DOt illcludc tho compomatiOD of the An:hica:t and tho An:bicoct's CODSUIIanu,
diocosts of the ~ ~bts-of·way and fioandns or oilier coats tbat 1110 tbe rospousibility of tho Owoer.
§ 1.3.21HSTRUMENTS OF SERVICE
§ i.!+1-.J)ra~ spedtlcadoos and other documcats, locludiag Chose in dec110Dic form, )lleplml by lho Arcbiloct
llld the'~s c:olllllltuta an: Insuuments or Service fot usc solely with respect to dlls Project. The Archihlct
IUid tbe An:hi~Kt's c:onsultaots shall bo dccmccl 1M authors and owucn of their I'Cipcc:li\'0 IDstruDICIIIS of Servlco
IIIII aball itfaln aU common law, statutory and other reserved rights, ii!C!uding copyripta.
§ 1.3.2.2 Upon oxccutlon of Chis Agreement, the Archll£ct paulS to lhc Owner a noooxcluslvc liccnac to reproduce
lho Arc:bitcct's Instruments of Service solely for purposes of conslnlcting, using and maiotaloiog the Projoet,
provided that the Owner shall eomply with all obUgstloos, Including prompt paymeot of aD sums wbon due. under
this Apmeat. Tho Architect shall obtalo similar IIOilOXCiuslvo llcensoa from tho Arc:bicect•s c:onsultuta consislenl

                                                                                                                              6



                                                                                         SEP 22 2007


                                                                                                                         ESG001458

                                                                                                                                     63
wilh this Agreemeul Any taminacioo of lhia Aarccmaat prior to completion of the Projecc sballlemllDIIIC thla
 ~         O_pou aucll rermloatlou, tbe Owacr sbaU I'D&aln li'om ma1:lng fWtbc:l' repnlductlou oflnltluiiiMII of Service
lllld eballfttlml to the Alcbllect within seVI:I1 days of flmllnadoa all odaloalaud reprodac:d0111 In the Owacr's
pci;~~ or conlrol. H ud upon the dste tho Amdtzcl illdJIIdaed la default oflhls Apemcnl, the fCII'IIJOing
Ucense aball be dcelned letmluat.ed ud Rplaced by a ICICODd. oonexclusive lll:eme petmln.lag the OWDCr to
~other simllarly credentialed design prorcsdr:mala to repmduce 111d, wbete penDIUCd by law, to IIIIWI
cilili!ge8, comclioos OJ' addllioDs ro the IAslrumcnls of Scnlco solely for purposes or completing. uiDs IDd
D'WDD~lolag the Project.

§ 1.3.2.3 Except for the licenses gnmtcd in Sec:Uoa 1.3.2.2, 110 olha Uccme or riabt aball be deemed sranled or
iJDpUcd IIJider lhls AgreeuleDL 1be Owner shaD not ual&a. dclqate, 111bllcecse, pledge or olherwlse lr'IIISfcr any
llccUc graDfCd here~ to DAOlhcr party wirbout the prior wriUcn qrecmeat of the A,n:hllect. However, the Owner
lbaJl be petmllted to .authorize the Coatraetor, SubcaalnlcCon, Sub-subcollllaCCDR IIDd material or cqalpiDCllt
supplicrlto mpi'nduc:e applicable ponlona of die Iuaumeats of Service approprillto to IUid for usc In lhdr cxccutlon
of the Work by lfceDse gnm~ ill Scc:doa 1.3.2.2. Submission or dlscributlcm of JDI1niJIIellts of Savlco to meet
otlidal rqula.aory rcqulre111C11ts or for almllar purposes in COIIIIOCtloa with the Project b aot to be c:CIIIICrlll:d a
pUblication in dc:ropliooofdu: reiCI'Ted ripts ofthc An:hlrec&lllld the Archllect's coasallalltl. Tho Owaarsball not
use the Jiistiumalss of Service fOJ flltarc additioos or altcrali0111 to lhia Project or for odv:r projectl, uaJeas lho
OwDcrobtaiDII'IIII: pdor wriUCilqRC~~~C~~t of lite An:hlii!Ctalld die ArdiJiecr'a c:onaulranta. Any uaalllhorlxd USD or
rho IDalrumcnts of Servkc shall be at the Owner's sole rht and wllbaut llablllry to die Archlted sad the ArchfJecr'a
c0uultm15.

§ 1.3.2.4 Prior to tbe Architect providing ro rhc Owacr any lllllnliiiCIIts of Service ID elecavnlc fotm or rha Owuer
providing to lho An:hl~ee& any electronic dala for lucotporatlonhlto tha Jostrumcots of Scnice. the Owner IUid t1u:
Architect aball by separate written agn:cmentiCI fol1h die speclftc condld0111 gDYer1liJJa lila format or such
lllst:n1111eaU of Service or t~lccbcnic d&ta, iocludlag uy speclalllm.itadons or liceascs noa olhetwise provided iD this
Agn:ement, anacl1ed u "'Bxhlblt C.".

l.J.lA.I 1bc Arcbitect will make drawiap or spec:ificalioDs ill e!cctnmlc fonn availllble 10 the Contractor,
         sullcolllniCUil'S, alld ma1Cdal suppllen for a charlo 10 compeusate IQc tboir pceparaliou. "l''z clcc:uo.W:
         files 18 specifically for usc ID pn:pariug sbop dtawiaga or Oilier reqalred 111bloitllb md Cor no Oilier
         n:ason. The cha.rp for cacb. ~ of electiOolc documcata for da1s 1110 5biU be SSOO. Bacb nclpicor
         aball sip dae Aft:birect>a nonilll Elecrroulc Media Rdeuo fllt'lll prior to release of the docomcuta. Bada
         recipieal is prohibited ·aom·sbariag lhcsc docuiiiCills.

1.3.2.4.2     ~ KparaYo ·~ governinglhc                uso of elcccronlc I'AslniiiiCIIIS of Service by tbose oilier 111111 die
              Owaer Is altlu:bed as "'Exhibit D."

I 1.U CHANOE.IN &EIMCES .
§ 1.3..3.1 Quae in SerW1cs or the Architect. illdudias scrviccs required of the Arc:bitcct's CODSUitanta. may be
(ICICOI1lp1isbc aftu~don of_tbls Agxeemcut, wldlout iDYD.lida!iag the Agreemelll, ifmutualJy agreed In wrhinJ,
if required by circulllllallccs bCyoDd lite An:hltect's coatrol, or it the An::hltccl's IIUYic:a are atrectcd as descn'bcd ill
Section 1.3.3.2. Ia the ableacc 9f mutual ~in writing, the An:hllel:t aballllotify lila Owacr prior ro
providlag such scnices. Htbe OWIICI' deems IJiat all or a pan of aucb Cbaagc iD Services is uot requiftd, lhe Owner
sball give prompt writtal JIOiicc to the Ardlitect, and tbe Archltcc:l shaD have uo oblfpdora to provide those
sqylces. Blc~t ft)r:a c:baage due co die fault of the Arclllkct, Olaagc In Scrvic:cs of the An:hlta:t shall eotlde the
Architect to ail adjusUDCnt io compensadoo pursuant to SectlDD 1.5.2, ud toADY Reimbuaablo Bxpcucs clcacribcd
in Section 1.3.9.2 and Section l.S.S.

51~.3,2Jfagy'of lhe following cin:umstanccs         affect the Arddtect's services lor the Project, tbo Arcbitl:ctabaU be
eat!ded tO'mi ~priate adjustment ia rho .Architect's scltedule IUid competllllion:
         .1      cban1e in die instnJCl.lolll or approvals given by llle Owner lhat DeCOS&ilate mvlsiona in IMinlmeuts
                 of Service;
         .2      enac:uneot or revlsioo or codes, Jaws OJ repiAtloos or offidal iaterprefadoos wblcb nc:cessii.Bie
                 cbangc.s co previously prepared lnstrumelltl of Service;
         .3      dec:lsioas of tho Owoer not rendered in a dlllcly rtUUIIICr,




                                                                                              SEP 22 2007


                                                                                                                                 ESG001459

                                                                                                                                             64
           .4     sipi6caut c:Jumge in the Project includllls. but DOt limited to. shie, quaDay, compledty, the Owaer's
                  schedule or budget, or procurement method;
          .5      failure or pertomuuu:e on lho pan orehc OWDel' or lhe Owuer'a cousulWIIS ur conuaaon;
          .6      preparation for and ~nduec at a public heari!lg, a dlspntc reaolution pnx:ccdlug or Illegal
                  proceeding exa:pt where tho Architect is party ~hereto:
          .7      change In the iDfonnation coutained in Anicle 1.1.

 § UA MEDIATION
 §. t.3.4.1 Auy claim. dispute or olher matter in question arising out of ar lela!ed to this Agreement sball be subject to
 mccllation u a condition precedent to arbilradon or tho iu&titutiou orlegal or equllablc proccediDgs by eidler pany.
 If such manenelates to. or ia the sobjoct of a lleuriaillg out of lbe Aldlitect's services, the Arcbitect may proceed
 ill accordauec with app!icable law to comply wllh the lien nodce or filing deadlines prier to resolutiou of the matter
 by mediadon. or. by ub~tratiou.

 § f.3.A.2 'l1le Owner 8lll1 ~n:ct shall eudeaVDI' to resol'ie claims, disputes and other matters in question '*ween
 lhem by mediDdon w~ iui1i:a the panlea mutually agree od1awise, allaJl be in accordiiiiCO witb die: Coastruction
 l¢usuy Meilladoa RUlesof the Amctlcan ArlJJJradon Association CWRIIIdy lu e.fl'ect. Request for mediadoo sball be
 filed In wridng wltb the bdicr plllt:y to this AgeeDtCDt IUid with the A.nlcric:a Albitntloa Alsociatloo. The nqucst
 may be made COUCW1'811dy with the fiUng of a demaud for adlitrallou bur. In l1lcb ovent, mediatio11 shall proceed ia
 advauce of urbitration or lep'l or equitable proceedings. which shall be stayed peadlug mediation for a period of 60
 days from tho ·date of filiDg. unless stayed for a longer period by agreement of tho parties or court order.

 § 1.3.4.3 The patlfes sball share lhe mec.liatur's lee lllld uy f'ding rea equally. The mcdialiun shall he held In the
 place wbcre tbe Projecfl&.IOCIIICd, unless another location is mutually agJeCd upon. Agreements reached ia
 mediadon shall be ealorceable· as settlement agreemeots in auy court having jllrisdiclioa thaeof.

§ 1.3.5ARBITRAnoN
§ 1.3.5.1 Any claiin. cf.lspute.oi ocher :awtet In quesdoa arising out of or ~elated to tbis A~IMDt sball be subject to
amtmtion. Prior to arbiliafion. the parties sball cadcavor to resolve disputes by mediation 1D aa:ordauce wilh
Section I .3.4.

§ 1.3.5.2 Claims. disputes and other matters iD queslioa betwCCII the parties that are not n:solvcd by mediation sban
be decided by arbitration which, liDless tbe parties mutually ape olllerwise, shaJl be iD accoJdance with tbe
Construction Iadustl)' Arbitraticm Rules' of the American AJbitralioa Association currently 1D effect. The demand ror
amlration shall be filed in writiug with the other party to this Agreeme11t IUid witb lhe American Arbilmlion
Assocladoo.

§ 1.3.5.3 A demand for a.rbltralion shall be made wilbla a reaso.aable tUDe aflu tbe claim. dispute or othea- lllllltCf in
qucstion·has lqiac:u.lll no evertt·s~IJ 1he demaud for arbitration be made after the date when ins1itutJon of legal or
eqWto.ble proceedings bas!'~~ on sucb claim, dispute or otber matter in question would be banecl by the applicable
~.Qfllmitadons•.

§ U.U No arbitration arisiligout·or or relating to this Agrumeat shall include. by coasoUdatioa or joincla- « ia
1\DY otht:f ~· .I!Jl. addltluJial penon or ellliay not a party to 1his Agreement. except by written collllelll containing
ll apecifi~Jireii=i¢e;l0. this A~meotand signed by tbe Owner, Archi!cct. and any other penon or eality sought to
 ile:joiDed/~ i~~itratlon involvia8 an additional person or entity shall uot coaslitutc consent to arbitration of
 any ·claim, di~pui&·Qi.oiher matter in question not dcscribecl in the wdn= coDSCGt or willl a penon or elllity uot
 IWDCd or described therein. Tho foregoing agreement to arllltrato and other ~IS to arbitrate with an
 addkiol)al~911 or entity duly cousented to by parties to Ibis AgreemeDI shan be specifically enforceable in
·aa:Ora.nce:wfl,li!,Jpplicabie Jaw in any court baYing jurisdiction thereof.

§ 1.3.5.5 11le~ telldered by the arbitrator or ari!itrators shall be final, and judgment may be entered upon h In
accordance witli applicable law ln any court bavlugjurisdiclion thereof.




                                                                                        SEP 22 2007


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                                                                                                                                      65
 § 1.3.8 ClAIMS FOR CONSEQUENTIAL DAMAGES
 Tbc.~~=t &lid the OW1ler waive colllcqucudal daJMp for c1alms, disputes or other matters in question arising
.'opt Qfor teladng to this Ag~CC~~~a~L Tbb mutual waivcr ia applicable, without limitation, to aD coDSequentiaJ
 ~1¢e.dac to either party's termlnaliou in accordance with Sectioa 1.3.8.

 §.1.3,71'11SCB.LANEOUS PROVISIONS
.§'tlh':1 This Agtecmeut shall be govemed by the law of the priDclpal pl&ec of buabws of the An:hilect, uuless
 oiherwise provided iD Sec:dou 1A.2.

 § 1.3.7.2 Terms in this Ag!cement shall have the same meaning as those In die edition of AJA Documeat A201,
 Geuetal Conditions of tile Conlnld for Construction, cutreJJt IS oflhe date of this A~L

§ 1.3.1.3 Causes of action between the parties to this Agsecmeut penaluiug to acts or failures lO act sball be deemed
10 bave accn~ed and tbe appUcab1e statutes of limllltlcms shan commeucc to runaot later thaD either the elate of
Substautlal Completion for acJs or failures to act oc:cuniDg prior to Substantial Complelioa or the date of issuance of
dlo fiual Certificat& for Pay.ment for acts or failures to act occurrlag a1iel' Substai11Ja1 Compledou. In 110 eveot sail
such llatutes of limitations COIJUilCIICC to run any later thm the date when the Architect's &ervices an: subdantlally
completed.
§ 1.3.7.4 To the cxteut d~es arc co~ by property l.asuranco darillg construction, lhe OWDer' llld the Architect
waive ali rights agaioat each othP;r and agalust the contl'lc!Ors, COllll!ltants, ageullmd employees of the other for
daillap. except Sllch Ji8hts as;f!H:y DUlY baVc to thc proc:eeds ofsucb luswana:: 111 set fortll in the ediliou of AIA
Document A201. GC11Cn!~f9.11~6oas of the Contmct for Construceion, CUft'alt u of tho dale of lhi1 AgrameuL The
Owaer or tile Arc:hitect, ¥ ..DJIP.Opdate, shall requim of the contracron, coiiSUlta11ts, apars and employees of auy of
lhem.shnilar waivers in favor. of Ule otlu:r pries enumerated l=eln.

§ 1.3.7.5 Nothing c:o~..~i~S Agreement shall create a coalmCIUal relatfonsblp wllh or a cause of action in
favor of a third patty aaai.l¥t'cithcr the Owner or An:bitcc;t.
                          ; . ~·

§ 1.3.7.6 Unless olhetwi.S& provided lu this Agreement. the ArcblleCI and Arcbilcel's couu!WIIs slutll have no
ieapansibility for the discovery, presence, baudling, removal or disposal of or exposw-e ot persons to buardous
matariala or toxlo subs~ in lll!fJOlJ!lllt lhe Project Site.

§ 1.3.7.7 'lba ~hitcet sbaU havo:~~t to include pborograpbic or ll1tillic ~ollltiou of the design of tbe
Project ainong the~;s prt;Diitibw and profeaslonal matedal.s. The Arcbltect shall be given EeUOMble
ai:i:eQ to tho coinplcted Pmject to mala: such RptciClltatious. Ho\Wvcr, the Archiccct's materials sballnot laclucle
~ Oym&!!'s coufideatial or.J!ro~~orma.tioa if the Owner baa previously advbecl tb8 Arcbirect in writiug of
d)C:ijleCifiC~~rmatlon CClJ!;SldeRd~y;'dle Owner co be coaftdOIIIlal or proprlewy. The Owner sball provide
piofesaiOJIIl.i=dit fq.r the~~ iil'ihc Owner's ptomotiollll matcdals for the ProjccL

§ U.7.8 If-~ requeS'tl~e Architect to execute c:ellilic:ata~, the proposed language of such cer1lficallls shall
be ~ttccftD the Afc:blCCCt W,i~ew It lcut 14 days prior to the n:questcd dlliCI of oxccutiOD. The ArchilcCl
!thlill...nt be required'tq~~J~Iiillficates that would requlro knowledge, semces or responsibUlllcs beyond the
~;f-~~L'""'
~  . ::i;. ... :':*:-:
~p.9 ThO;~~~ Archileel, respeclivety, bind themselves, their parlllen, succcsson. asslgas and legal
~ti"vea;~other party to this Agreement and to the panners. IIUCCtSSOB,ISSlgns and legal &qlrC5Cntatim
of such olhor party with Rlllpcct to aU covcnanta of this Agiee~~~CDL Neither the Owner a.or the ArchiUICt shall assign
tJds Agreement without the writteo consent of the orher, except that the Owner may asslgulbis Agreement to an
l~iJ.u!w~~ 1c11dcr providing fiuanclns for the Project. In such event. the Ieder shallusume the Owner's rishta and
ali~ti_p]i;~er this Apement. The Architect shall execute all coiiSetlb rea.sollllbly required to facilitate such
~~
§{i.& ~~~TloN OR SUSPENSION
§ 1.3.8.1 If the Owner falls to malc:e paymeots to the Architect iD accorda.uce with this A&reenu:nt, sucb failure shall
be coasidcled subslllntial nonpertbnnaoc:e aad cauae for te.rmination or, at the AJchitect's option. cause lor
suspeusion of pcrfotDWlCC of services under this Agr=IJIOIIL If the Arcbilect elects to suspe~~d services, prior to




                                                                                         SEP 22 2007


                                                                                                                       ESG001461

                                                                                                                                   66
  suspemioa of servlcca. the Ardiltcct •ball givc aevcn ~· wriUI:a nodco liD the Owls«. Ill tho~ of a swpeas!on
  or lC(Yices. the Arcllitect Sball bave 110 llabiUiy to the Owner far delay or damap c:auiOCI lho Owner boc:auso of 1111Cb
 ·5UiPcuUoa of aervlca. Before R:lllmlag ICI'V!a:a.lbe An:bllllel BIDII be paid uD 1111111 due prior to 8Uipa1lloD and
 ~Y~ Incurred In the lnturupdoa1111d resumpdouftbo Architect's services. The Ardlilcct'sfea Cor tho
  nmialitlris ICIVices aad the time schedules shall be equ!14bly adjusted.

 S t~.U If the Project ls suspended by the Owner for moro llwl30 COIIIOCUtlvc days, tbc Ardllteet ahal1 be
 ~CIIIIted for scrvfccs performed prior to aotlc:e of IUCh auspaldoa. WileD the Project II resumed, the Architect
 lha1l be co~ for gpcmea incurred ill the iotempdcna IIIII n:IUIIlpliun vr thc An:tdiii:C:l's ICIYices. The
 Architect's feel for tho remaiDillg GCrYices aDd tbo tlme IChedulcs shall be equllably adjusted.

 51.3.U Ir the Plojcc:t is suspcudcd or dJo An:hltcct's servlcca co suspcadcd Cor more ChiD 90 coma:udve da:JS, lbc
 Architecl may tcrminatc this AgrumeDI by ghlllg aotlas lhan IIIIYCn days' wriueu aotlco.

 51.3.8.4 This Agrccmcut ms.y be wminatc:d by cilha' pvty upon notlclllhlll seven daya' wriuml DOtic:c should the
 Olhcr pany filii sabstaalilllly to perform ill accordiUice wilh the terms of thlJ Aaroemcut lhnluJh DO fault of tbc party
 iniliatina tbc tmni~Jioa.
§ 1.3,U This ~~i be tennlDafed I!Y the Owner apon not las IIIIIIICYCD days' writteal notice ID tbc
~for the OvtDCr.-.~nvc:nlesu:e aad without cause.
                      . ··..  :......
§ 1.3.8.8 In !lie eYeDl of~ uClllho fault of IIIII Arcllkecr. cbc Archtrccc shill be c:ompemaiCd for scrviccl
pedomcd pdar to teniliuil!ltl, togedlcr with Reimbunabfa Bxpcuca lheo dae aDd aJ1 Tennillation Bxpeases u
defined Ill Secllonl.3.8;7,.          ·
                          :~:-· :. ·.
§ 1.3.8.7 Termination ~·11R ill addltion to compeuation for the senic:ea oftbc Apccmeut m1 iDctude
c:lCpCIISCS dllectly Adribuyabl'c!w. lamination ror which the Architect Ia aot od!elwiso compcD.Ialccl, pills .aamouat
for the An:blccet's antlc;l~jirOfit on the value of the services DOl pcri'01111Cd by the ArchlcceL

§1.3.9 PAYMENTS TO Tt!E·ARCHITECT
§ 1.3.9.1 Payments oa IU:COunt· of service~ n:ndcml and far Relmbunabfa Bxpemcs lncumd shall be made moll1hly
upon JII'OfCIIIIdiOn or tbe J),tcbilcct'~ ,~,of ICIMCCS. No cleclucdons sball be mado flomlho All:bitec:t's
c:ompcnsallon on accoui1J' of peaaf,lY;.J!'ll!}datzd diiiDIIpa or otbu lllD1I wllhhold hm paymeats to coa~n~C~DCS. or on
account of tho cost or changes J,;'~ ~!file other chaD those far wblch the Architccc bu bcca acijudpl to bo Bab!tl.
S1.3.9.2 Relmbursablt;~sea are in addllfoa to compaasalioa for the Archllect's services and Include cxpcuca
incumd by the An:liitut 1111d AkQlliOI)t!.a employees ODd consullants directly rcl&ted Co the Project, as idCIIIificd iD
rile followillg Clauses:  ·

          .1     tranapCirtation in COillloctlon with the Project, autborlzed out-<~f-town ~ravel and subsbtc:ncc. ud
                 clecttolllc c:imimualcatlam;
          .2      fees paid for secUring appzowl or authorltlea havloa jurisdiction ovec the Project:
          .3     reproductions, plots, slaadud form documents, poalllge, bandllag and deUvery of IDStruiDCIIts of
                 Service:
          A      ·~~ of overtime work requiring higher tbu regular nates if authorized in advance by the Owuer,
          ,5     ~ilgs, modela aad mock-ups roquatcd by tho Owner;
          .6     ~tilai>:or professional liability lnaurnca deditlfed exclusively 10 this Project or the expease or
                 additional insurance covoraae or limits requested by the Owner ia excess of that normally cmlccl by
                 the .Architect aad the Arcbitect's coasullanta;
          ,7     reimbursable expenses as deslgnqted In Section l.S.S;
          .8     other similar dltect Projcct-rolatcd expCI!dltwes.

§U.UR.ecoidtofRelmbursable Expenses, of expenses pertaining co a Cllanp in Services, and of!IOI'Yices
pedonnad on tho basis of hourly ratea or 11 awlliplc of Direct Pcraouncl Bxpaasc abllll be available CD the Owner or
the Owner' I authorized representative at mutually CODYenlelll dmcs.


NA Doc1rn1n1 8141111•19t1hrt1.Coprrtghl 01817, 182t.1114&. 18S1,1Be3, 1&1111, 11161,11183,1960,18117,1870. 1974, U77,188111111111197bJ'IIIe
Alnalcall lnati:Uio o1 Ardllodl. All rl!ita re.o~Wd. WARMHO: 11111 NA• Documanlll piOIHiad br U.S. CoPVfllllal LIW and llllllnlllanaiTreallal.         g
llnauiJI...ad ropnodiK:IIon ot clllltl!lullon of tllb N.A• Do...-1, or MJ pG111on otiC, liMY ruullln ...,... dwU lind criminal penalaN, and Will 1ae
piOMCIIitiCI to tbll mulmum aunt poullllo under the law. 11ia dacumant -IIIIIIU:ied by NA IOIIwln u 14:82:1EI an 03126'200511111a Onllr
~:m-htlclleoph&GIItli16120C&.amt11Mtrotrnalo.                                                   sCAN NE~
                                                                                                        SEP 22 2607


                                                                                                                                          ESG001462

                                                                                                                                                           67
           § 1.U.4 DiRcl Pcracmnd SxtJ- is defiJicd u the dlia:t llllriA CJIIho Architect's penouuel eagapd 011 die
           ~~ the ponlon otdte cost otlheir IIWidatory &lid cusiDmlry COI1ttibmfoas aDd beudlcs related then:ut, such
           ~llliiiXQ IUid other 1111Utory employee bc:ucfics,lnsuraDce, sick leave, holidays, vacatioaa, employee
           ~~ plllls Clad similar contrlbutioos.

           ~ 1.4 SCOPE Of SERVICES AND OTHER SPECIAL TmMS AND COHDfi'JONS
           J;f.~11;!!nametadoa of Parts of lho Agmsment. This Agnemeat npn:sencs the enlin: and intepl!IM ~~
           lieiweca tbe OWIIU aad die Architect and supellledes all prior RSOiiallcms. repmcalatlou or aareem=t~. either
           wrillal or oral This ~111 may be arncuded oa1y by wriUcD insbamcDt sipcd by both Owuer aad ArchilecL
           1)l4 AgreemeDI coqrises tbe dOCWI!alb listed below.

           1·1.-C.U Slandard Porm ofApement Between Owner lll!d Archilect. AlA DOCUD1eDtB141-1997.
           ttA.1.2 Srandaid Fonn of Archfrect's SemCQ: Desipllld Co1!mct AdmiDlslraflon, AlA Documcal Bl41-1997,or
           It f~llows:
           (Ust otlru dDCIIIfUin/3, .#/G1f1· deliMating Arr:hlua':r #tlpe of :rnvlcc:r.J


        I P.iu.e.u   S'Nei!Son Onhaa,l.A'rchitecb' Proposal lellerdaled November 12,2004, revised January 21,2004 al!lle:W as
          ·"Bxlllbll A."

           t 1.4.1.3 Other documeab as follows:
           (Un oriMr documau,       Iftilly, fonning pan of lhe AgneiMnt)
           Ellleu Sweoson OrahiiDl Architecb' schematic design documenll daled January 28, 2005, whicb are attac:hcd by
           reference as qBxltibll B. •


          §1.4.2 Spccill Tenus aud Coaditi0113, Special terms aud coaditiona that modify this Agtceroeut IR as follows:


          ARTICLE 1.5 COMPfNSATION
          § 1.5.1 For the Architect~ a servica as .described under Article 1.4. compensation shall be computed as follows:

                                                                                             =
          Fixed fee tor Arcb1letture. StnlcnuaJ, MechaDJca1 aod Eleclrical EnglaeedDg $112.SOO. See schedule for Pbases
          ofwodc:

        I ·QII<:Ipli"e                 M.P./S.D.           D.D.               C.D.               c.o.               Toiiii.Pc.es

  '(1·Archileetllre
'g.                                    10,800              18,000             28,800             14,400             72,000

owA       ~En~;
          Tota!Peea
                               .    .   ~~
                                   · ·11,050
                                                            ~
                                                          26,300
                                                                              .~
                                                                              51,000
                                                                                                  3,7sg
                                                                                                 18,1SO          ~
                                                                                                                    ~:=~
                                                                                                                        11
                       ·                                                                                         q, OOo"«ll
       :;:1,.t]..5.21f~~~·'Ofthc An:hllec:tDJe chDDged as described iD Section 1.3.3.1, the Architect's compeASalion aball
      .' ·;.:·~~usteiti::Sbl:ll;j\ltiM~,~~~a~t shall be calculated as described below or, If no medlod of adjusbnellt ls badlcared Ill
            iidS Scctioo<i~~~uilablo nmnacr.
            (I~~Un baiU ofcompMSQiitm, lnt:bulinl rata tJIIII muldplu ofDirc P~mel ~for Pl'lnd/Hib tJIIII
            emptoyus, t111d ldmlfh Prlllclpab t111d clanlfy urployu:r. If ntpllmt ldDuify qedjlc servlcu ro which parrlcuhu
          metlrodl ofconrpbualion apply.}

          Sec ach~ll.~ of~ly rates anacbed as •&hibll a •

        .,. § 1.5J For a Cuut&e in Services of tho Architect's consuliUIIS, compensation sball be computrd as a multiple of
            Oae ( 1.00 ) limes tbc amounts bDled to the An:hitect tor such servicel.




                                                                                                  SEP 2 2 2007


                                                                                                                                    ESG001463

                                                                                                                                                68
    11.5.4 Par Rc:imbursable '&pcllsc:$ as dCICribed iD Scctioo 1.3.9.2, mlay olher Items locludcd lD ScclloD l.S.S as
    Rchnbarsablo Bxpcnscs, the compcnsation shall be compoced u a mukfplc of One ( 1.00 ) limes the cxpenaes
1   lllcurred by tho Archllect. IIJid lhe Archl~• employees IUld coosullliiiiS.

    § 1.5.5 Olher Reimbursable ExpcDSCS, if any, urc as follows:



    §1.5.6 Tho rares ad JDilltlples for services of the An:blcec:t IIJid lho Archlrecc's CODIIlltalltl as :set forth fn lhis
    Ap:e111C11t abalJ be adjusted iD accotdllllU wilh chclr nonual Alary review pmcdc:es.
I
'· 1u.r An Initial payment of Zero Dollar~ ud Zero Ccnls ($ o.oo) shall be macle upon executlou of this
    Ap:emcnt md Is the miulmum paymc:at under tbls A.glccmcul. It ahall be credited to lbe O'MICI''s accouut at final
    payment. Subseqaoul paymcuts for services shall bo umdc moulhly, IIIII whonl applicable, sbalJ be ill p:oportiou 10
    services pcrf'ormed on die basis set forth In this Agn:cma~t.

    § U.8 PayiJICilts - dllC and payable immcdialely zero ( 0.00 ) daya from tbo dato of lho An:hitoct'1 illvaiee.
    Amounts unpaid sixty . ( 60 ) days aCier lbe invoice dale sball bear IDtaat at lhc rate cntrnd below, or In the
    abtcnce lheroof at tho logal ia1o pmvailing &om limo 10 lime at the priuclpal place ofblllincss of the Ard!itcet.
    (lnMtf   m" of   lnt~rDIDgrud upon..)

    U.S. Federal Rese:tve Pdmc Rate plus 2'1..

    {f/nu:JIGW$ and r~lmrrents rou/u 1M Fe«ral7ivlh In undlng Aa, slmll4r #Gic Gild ~call co1UIIIIIU credilltnvs
    tuul otlrttr rwguiDtiou QJ the Own1r's tllld An:hilm's prlndpGI pllu:u ofbllSinu#, lire I«Dttlm ofthe Projed tllld
    el#wMn: 111111 11/fo&t 1M valld1ty ofrhU pi'DIIlsimL Sp1djic legal Dlhl« Wndd be obltJ/Md witA ~ tD ddetimu
    ormodijicodou, and ab11 n:~g ,.,~such 111 writun dlst:~Muruor -Mr6.)

    § U.9 Jfthe KI'Viees covered by this AgRCmCJ~t haw: aot been complclt:d within Three ( 3) months of the date
    hereof, throogb 110 tilalt of cbo Arcbitec:t, cxtcDSioD of tbe Arcbitec:t's sccvlc:ea boyoud tbDt ti1111: shall be
    co~nalcd as provided in Section I.S.2.


    This Agreemenl eotered iAto as of the day and year first writtu above.




                                                                               ~
                                                                               (S tlllllm)
                                                                               Paul Mittcndorff, AlA
                                                                               PrinciJI!land Vice PresideD!
                                                                               (PrlnmlnomeiUtd tltl~)




                                                                                               SEP 22 2007


                                                                                                                               ESG001464

                                                                                                                                           69
                                                                                                'Zo53o2.oo



 eAIA Document 8141,.-1997 Part 2
 Standard Fonn of Architect's Services:
 Design and Contract Administration


 TABLE OF ARTICLES

 2.1       PROJECT ADMINISTRATION SERVICES

 2.2       SUPPORTING SERVICES                                                                   T111s docurnolt IUIIIImportunt
                                                                                                 legal~
2.3        EVAWAnON AND PLANNING SERVICES                                                        COnscAIGVon with an allomly
                                                                                                 Is 811CX11111lpd with respect to
2A         DESIGN SERVICES                                                                       ~' complotilln or moclillcalcn.

2.5        COHSTRUcnON PROCUReMENT SERVICES

2.6        CONTRACT ADMINISTRATION SERVICES

2.7        FACILITY OPERATION SERVICES

2.8        SCHEOULEOFS~CES

2.9        MODIFICATIONS

ARTICLE 2.1 PROJECT ADMINISTRATION SERVICES
§ 2.1.11bo An:hlrcec shall Jllll1ap the Architect's serv.k:es IUid adminl&t« the Projec:L Tho
Archircec shall consult with the Owacr, rcacan:h applicable dafan aiteria. attau1 Project
meetings., COI1IJI1UDicate wflb members or the Project team &lid Issue JIIO&\UI JqJOrtS. Tho
An:bltecl shall coordinate the scrv!ces provided by die Archirect lllld die An:hltec:t's
COIISUitaDts with 1hasc IC&'Vac:c:,.~dcd by the Owncrllld the Owner's consultaDts.

§ 2.1.2 When Project requirements have been aufflcleDily ldeodfted, the Architect shoJI
prepare, and periodically update. 11 Project acbcdulc that lhall identify miiCICOnc date.• for
dec:isions required of the Owner, design servlta fwuisbed by the Architect, completion or
documentation pnmded by tbe An;bitec:t. commeDCOIIIeZ!t of c:onstnlction lllld Subscantial
Compledon or the w.J&Work. spbjeet !9 !he !lmjralions jndjq!gl in m!!!l!l1 Ssgmg
gpabam Arcbl!ec!S' Prooos!\l letter dated November 12.1004, revised January 21. 2004 ~ ll              \\Jb
attached as "Rxhjbit A::.                                                                      1      "1\ .,.-




§.~1.4   '1:/tJ&R RllfllBSief lbe OWRer. t~Je...Afohkeekballlllake a p-tali~e
eesiga    er die Pft,;eet te RIJIMBRtaftr,.et ef lbB 9WIIBt'o

§ 2.1.5 The ArchiteCt sball submit dc.~lgn documents to the Owner at inlen'ab appropriatr:
to lhe design process far purpose~ or evaluation and approval by lho Owner. The Architect

                                                                                                                                    1




                                                                                       SEP 22 2007


                                                                                         EXHIBIT
                                                                                                                        ESG001465

                                                                                                                                        70
 §2.1.81be Arcllitect shall usistlho OWII&It iD canucctlon with the Own=' arespoosibWty tor filing documents

IrcquiRd f'or die approval or gvycnuncaaal authodlka baYing jllriscliclion 0\'a' cbo Ftejeet.fmlccl. lllbjcq fD the
 fpJlowigg llmjrations;


 2.1.6.1 Si18layout, submittals and appiovals will bo by othm. Tbe Alchitm will pcdOIID cmc set of
 revisions to tbe scope buildiDg drawings :iacluded by referalco as "Exhibit B" and 0110 set ofrcviai.om to
 tbo dOCUDiaiiB submitted forpormit from input recoivcd from the O"Mier pursuant to~ of the . IL
 l1lllllicipal authorities having jurisdiction over lho Project. Beyoud those revisions, the ArChitect wiD !lOt C 1\
 aeate my special drawmp or exhibits. DocumculB or otber work eftbrts reqnired tor p)amWig mbmiUals I\ R.
 or govCIDDICDial~~ge~~Cyreview aft« the iuitial submisliou will bo ideutified immodjately by lhe Owaer -1f\
 8ll.d may result in a revision to our schedule IIDII compeusatiOD.
  .        .             ·: . .     ~·




\.! 3,_1,;~~~~·~~WQisfAND CQI;i'OHN&WORK                                   .
:·§~!14~~~,a~mullflllla•Je 11- eaftle!e&dyiderllifiiiii,IIID /MhitoM..U P"PMI arr'imln'f)•

.·~~~==-,.::::::::..~~==ea
:~~n~~t~eof.!b.~P.IJdale
         1111d refiRHb&pNIImilllll)' eatimaleofthe Gesl ef lheWerka Tbo ;\rebiteel
. ~lllli~'l!\8'~~ 91 ...-~t1Jll6tmea~S te ~RYiaaa estilMiee efehe Gea afll\e "'A'elk-iodiealed lJy 1111aDgee ill

.-~=::=======::ll
:~ ~!IDJ)'•Ot ~~ aad lbe Q'Miel' liheJJ ODIIfletale widlllle t-..Uteat ia maHBI &UGh lllljiiBIOIIIIItlo
·li: :}.::;::':: . \ ". i.
:=~=~;;;~~==~==:=:=.
::==~~=====-~·
 ~~~ iiie~(ii"r-~f;il "-' llide er aesaliatedpd815 wiD 11111 TJtPf h• die Qwue.'a llllldaet faF !he PtejeGI er fRIIR
 .,..llllliiB".te iifh Qe&t ellbe ~fl1 a, e·oaluaden prep-d or ISM'ed le lly tho 14ehiteatr

 t,~.iJ.Jt!i~Rft pimatB~·~.a COS~ arthe WelkJ !he l'ahi!llllUIIalllle peRBilted 1e iaelllde eeBdaseaBies l'er
 ~ IJid~ IBd ~~•.e0GGJ~Ii8ai 18 detenuiae 'l4JII BIIIIBi!Ws, equipmllllt 1181Rp8nea& .,&kiiiiiHIIId.c,pea.of



 ~-
 e!l'l8eded~.&hallllle iaeNa9ed aeelll"i'IRaly.
    .
            0


                ... .·· ... :-
                ••        ..   ••




 PeBIIIIIIRIS 1e lila
                        •
                         g_..,                  lllftleDOed willlia 99 da:Yt Dftef die ,\rekltelt HllmiiS d!e Cealltrlletlaa
                            dt11 budget Cer llle Cesl oldie WerJIIMJllleiHijUSied te tellaot ol!silgBI iD die tii!Mflll
 )f!IJ.I.af pfi~ p tile OBIIUNedea iiMJtl&lfJa

 § ~!I;,J,'-III!I:e ,wqel fer !he Cesa af lite Weds Is e-Ddsd lty Ilia le~IB&f llle•a fide bid e• oegefieled p~epeea1 1 11!a
 ~
      . . ·.,,~ . giw "Nfltt8B lljJJIRI'JGI af BR IB11f81198 iB lhlll!UdJDI urlho Cell afllte Wlfkt
            .3 autlleme ,Uiddiag ar RIRII&&delilll eflhe PRijeet wtdlia I Ra~Baallle limo!
            ,3       ll!m1inare in aaeetdt~Me  mill Seeliua UJI.It ur
          ,4         eaapeate Ia Wliaiagllle Pfejeet seape IIJld quality as te1JIIife4 te tedueollle Gasl efllte W.fk,


                                                                                                                                     2




                                                                                               SEP 22 2007


                                                                                                                               ESG001466

                                                                                                                                           71
 § ;U,7Al U' rile QwR81' eheeaes IB preeeed under S~~edon :u:t.J,4, ae /..rohllear, 'lloidleUI addidanal ee~~~peaaaalee,
 ellell modify lito doeulllelliS fer whieh the I'..Jellillilllf ls105J10milllll uedor thlo t\iiiJCimeel at neeUIRI)' le o8111pl)' willl
 dMI budpt fer diB caas afd!a 'tVarlh 'Ale madllieatiea efli\leh deeumenl~ ehalllla lila 1111111 efdlo .Velllteol'll
 napellfilllif,y Hilder tlth Seelie11 ;u ,;t, The t.Nkitesf lh.U lie ealided 18 oemplftiWBR iR 11118onlaBeo will! !Ills
 l.peeiMIIt ferllll aeMan peftenned 'rhelbeHJLBei..COBSIRialiaa i5 semmeaOCMI.

 ARTICLE 2.2 SUPPORTING SERVICES
 § 2.2.1 Unloa spcclflcaDy deslgaated In Section 2.8.3, the ICtYices in Ibis Article 2.2 shill be provided by die Owucr
 or lhc Owaer's couulrauts and collttKIOrs.

 § 2.2.1.1111e Owac:r sbaiJ tumish a prosram &Oaiag ford! tbe Owner's objccdvcs, scbedlllc. c:onauaims and crileria,
 iDdudiDg space n:quirameniS and ~latlonships, speelal equiptnenl, systemS aad site requllenu:nu.

§ 2.2.1.2 Tho Owner shall fbnlJsh aurveys ID dacribe physical characterilllca, legal Umitatioaa and utility locallons
for du: site of tho Project, 1111d a written lepl dcsc:riplion or the site. The swveys and lqlll lnformalion shAll include,
as appUeable, grad= IIDd liDes of ltreets, 11lleys, pavemcntllllld adjoining property ud uractUJCS; adjiiCCIIt dralnaae;
npcs~r-way, restricdoDS, easemeats, encroachmcuts, zoning. deed raule1loaa, boundaries and c:on1ours or the site;
J.oealioas. dimensions and accessaJY data wilb respect to exbtiu& buildings, olher Improvements and treea; and
infom~alion coaceming avaD11ble utility ICtvices ud llllea, bolb public ad private, above 11111 below grade,
lnclucllng Inverts and depths. All the ln!ormadon on tbe survey aball be rct'maced 10 a Project benchmark.

5 2.2.1.31be OWuer shall £urnisb services of geo18cludcal engineers whlcb mny include but ace aot limited to test
boriags, rat pits, deaenninadons of aoU bearif18 values, percolali011 rats, evallwloaa of ha2.ardow materiala, JrCIU11d
COJJ'OSlon tests and resbtivlty liSts, fDCludJDg necessary opetllions for IDIIclpathlg subloil c:onditioaa, with reports
aad approptlale rec:otiUllfllldtions.


AlmC:bli 2.a 6\f.t.IJM':RON ~D PbtJUIING SER'nC:IiS
S2.1.1 The ,\telllreetlhlll pta•tidaa preliuli-, walualloa ef the ielelftlGtlee Nmislled tty l.ha g lftii!F 1111d• lhi5
o\gl8umoaf, illeludiag the Qwellr'a pNiftUB lllld sahedtlle RNiuirellleatHIIIIHlu4gll fer 1118 Gesl effko 'Wedt, IJCielt ift
leftM ar the ether. 'Ale AJieldleel shall ~a Ae'll' &eelllolaARadooiB iiSIM!Ifaiu d!lt il is eeasisi!JRI wilb die RNIUIR!meftiS
ef the PN,jeot 111111 allllll aadfy lhe-OwMr ef My alltoril!lfeftftlllien ar eeBSullallt sof'¥iea dlaiiiD)' llo naslltllllll)'
needed fer the PNje&to

§ 2.3.2 'Die t'.mbiteol shall pRI'Jide a prellmiaary e•JalllltieR ef the Qweer's till far the JIA)jeet IJ115ed QR the
laren..dea p~&·.~d•d by tile Owtlar ehile eoadici0111,8Bikho Gvli\Gf'a JIAISIBIR, sehadlll..aa4-budget fer lito Gesl
el'the W.Orl&

§ :LU 'Ria ,\R!Wteel shaiiNViaw lbe Qwner'a prep and mlllhed ar oaallaedas far aea&tNedea &llf'olillll& aetkllall
aelify lite Qo.wer ef aatlelpalld impee~ t.hetaueh melhed lllll)' havo en tho Q~s p18lf&IRI AnaneiaiiHld IIIRII


ARTIClE 2.4 DESIGN SERVICES
§2.4.1 The Architect's design service~ sbllll include notmal siJUctUJal. mecblllical and electrical enpccring
suvlc:es.
12.4.2 SCHEMATIC DESIGN DOCUMENJ'S
§ 2.4.2.11be Architect shall provide Schematic Deslp Documents based OD lhe mutulllly ap!CCklpon program,
schedule, and budget for the Cost of lbc Wort. 1bc documents slmll C$tablish lbc coDCep(Ual cleslga of 1bc Project
Ullll1nliDs the scale IUid ~latioashlp of lhe Project componeiiiS. 'Ilia Schematic Design Documcmts shalliBCiudc a
conceptual site plan, if appropriate, aud ~limlnary bulldlq plans, sectlons and elevations. At rhe Arcblcect's
option, rho Sehemutlc Desip DocumeniS may include study models, pcrspec:tlw s.lcctchea, elccuonic modeUng or
comblnatlou of these media. Preliminary selections of major building systems lllld construction materials shall be
noted onlbc dnlwfngs or described In wrlring.




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52.4.3 DESIGN DEVELOPMENT DOCUMENI'S
12.0.f Tbe An:hl~ dla1l provide Dellp Developllll!llt Documenll based 011 the approved Sc:bemalic Dcsisn
Documr.nts and updaled budget l'or the Colt of the Work. The Dealp Oevelopme~~t Documcatlshall ilhuaate and
describe the rdlnemeat of the de5ip of lhe ProJect. cstlblisbiJia the scope, motioabips, f'onns. size and lppWUICC
oC lho Pxoject by means oC plalls, scctioiiS and olevatioDS, typical conslrUdioa delaiJs, a.ad equipment layouts. The
Deslp Dovelopmcat Documents ahall include specifications that ldclltify ml!,jor materials and aystcms and es~abllsh
ID scaera.J their quaUty levels.

§ 2.4.4 CDNSTRUcnoN DOCUMEHI'S
§2.4.4.1 'l'lla Arcbitect lllall provide Coustrucdoa Documents hued oa tbe ipproVed Desip Development
Documeats arid updated budget for tbc Cost of tbe Work. The Coulnldl011 Documents shaD set forth In detail the
requirements for conalnlction of tho Project. The CoDSirucdon Documents sllall b11:!ude Drawlnp and
Speclflcadoas that cstabllsh JD delail tllt: quality levels ot materials and sysaems ~ ror lhe Project.

53.4.4.3 gMsJ dlo de'HiefiBIIII er tile~ tile lallileel allall . . . . , Qweer iB lho
!Je"elepR!IIBIHd fR!pURdiea efl (I) blddiBJ aad p18GUR!aaalafGimadea wWoiHieserillee lho dmev piiiGO and
eotldidaas efbiddiar;t lllddillr; Grfrepaslll l'eHII5tlllld die f'eftH eflllfiOMBe&t lloiMeR die 0MIIIf and lila Ganll'llelaFi
lllld E3) the Qladldeat afdle Ge~ &r Co116t111Gtiae (Qe~lementuy and allier CleRdld• • 11\e
Arelliteat lise shciU aempUn the P.Rijeet NaBIIIIIIMa ineludelllle Geadllieas ef the Ge!IINGI fer Ge115U11edea ud
SpeeililllltiGBllllld may iBelude biddiag tellllileiDI!DIS lllld sample CeHM.

MRQ.U 3.5 CONSJRuaiON PROCUREM&Nf SER'AC&S
1a.U 1!M t.,1811lall shallllsisl the 0111'11H ia obtaleiag either eempetitio;·e hide or negotiated prep esals and shell
wist lhe Owaer In awenling ud prepaflag eealluela f8J' aeii&IJUali&fto.



L

5a.I.J 'Jhe t"..teltiteel c;lr" assist dlo 9WBer Ia hid , alideliea erptepesal e ICI!ualiea BBd dele--Ins~ en ef lite
&U&&e51SM ~ld er pmpesal, Jfu,c. lrRifllested by die Owaer, tlle .~alliteel shall aoti(y.GJ!.proepeu&h·o bidders er
eealrleleN ef llle llid er prep asal restdl6s

~
S2.1.4A :Bidding »oeumei!IS ahe1l 88119iet ef IIWdifts te'IUiAIIBIIRiec pfBJJ&I!I!!d uOHIRIIIlfoRMc Gaaeml Seadlii08!H111l
Sllf!pleme_,. Seailld0111o S,llllifienoae lllld Dfllwiugs,

52.5 t.a If fa4:11051ed by lhe Owner, lllo Mhiteet ahallll'fiiii&Cil'eP f!8GuRal dlo repradu&tiaa er Bidding Deeameall
l'et dlsllillelli811 Ia prespesdWIIIiddlll!la 'Ale 0'JJRer shall I'll)' direaiJy l'eF die GB&t of reproduadea er allaU roiiRIIIIfllo
tbe AIVIIileet fer sueh IIJIIII!ft9e&a

§ 2.1.4.1 v RWIIIIIMBd lly die Qwall; tilt .'1dCI!iteel sllaD dislfilllllO lho Bi~IO!~
se1111Ml their l'lllllm vpea eemplelian ef tho blddq pl'll ellSIIa 1!he hehiteeuhall Jllalftlaia a las er dlslrilludea and
181riewlw BBdiM emauaf6 sf dspaailllwlf llftYt maei'.'O!d hm IIJld reiUIRN 10 fii'II8JII!Mi\~ bilidcft,

§ 2.5.4.4 ~~~ Al&hiteat sWl eelllider eqllll51e fer wbslilllliaRSc ir peRIIiaed lly the Biddiag DoaumentG, 1111d sllall
prnp11R11111d dl511i~lll8 addenda ldaeli(yier; appRI•Ied sallstillllillllll te ell pre5peai'H lliddereo

§ 2.5.4.5 'J!IIe.~hlteaa sMII p8fdeipa18 ia &f¥ at lite Ownw's dlnaien, sllull ergank.e allll eendueta pre bid
GGaleHueo fer preepeeliNe lllddeAJ,

§ 2.5A.S'I'Ile .~bi~eet &hall pRpllM rnspeasas ta ~~~ter.1ieM rre"' pteipeelive lliddeB BBil p~e•r<lde e1Mifiea1ieu illd
ialelpAIIAiieal af the Biddiflt »eGumelllllle all JIIMPootP'II lliddam ia dte faoa e( add Mila.

§-2.5.4.7 The/.d'llhileal skell pal'tieipN itt er, at lhe 0\'Jner's dlreedeR, sllall afllllllte Blld eeaduatlke epenina efthe
bid$, 'l11e lwhilee& &llaiiNIIIiOilueady dealliiiBIIt ud dJsllibule lite llitldiar; •uks, 11 dileaaod by the 0'.Nft8Ft

                                                                                                                                         4




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 S3.1,1 NSGcmATED PROPOSALS
 §2.15.111 PAip8511 »e8111MHY llball 08MIIlBfp19(18BIIl'll'l'fiR!IIIenY, Pl'9fl85ed 88RIIIIIII raRR!l, GURII'II C:ettdllietll
 llld Supple _ _,. GullllideRS, Speeifioaue111 1111d Dtewiate.

 I ~·.u Ir feiJ'II!GIOd lty die Gwnet,lhe J.\RIIIileel 51laU - · rer pRMUI'..1g diU RIJIRidiJ&dea ar PHpOIAI
 Deettme~~ts fer lllsllib~tliee 111 ptespeali•.. a eelllRiaiSH• 'Rie 0\·111er sltall pay difeelly ferllla east er mpredueliea or
 &bill RIIIRin&se the .~l!iUel fer &IIIII 811p8H5e&o

 § a.&.&.a If NqUe&led ~ the Q%'il-, tho Atehiteet &hallllt'pllile ead paftietpate Ill aeleellen latefvtowe 'IVittl
 Pfii!IIIOed"O 88flllllel8111•

§ 2.1.1.4 The o''..rehilell.~ afMII aeasidef.requeets fer lllblli1UiieB5, if permUted lly tho PtepeeiiiDBauiiiORI8 1 lllld sllall
pdjJIIN • .Jislfiburo add811da 1.4eslif¥btJIPJIIGYIId 5UIIstllliliaas IHII p118spee11Ye alliiiRK!teAI.

 5211111 Rllf'lllsted by die QWJterrtlte..Aie~ llle Ow- duriag nogelllldoa5 wi!h pEMpeelh•
 eealfeelelllo 'nte AHIIIteel sball wli&IIIJIJORily pR1p1M a AIIRII!OfY R!Jied eU11 DII8BdatleR Rl91llre, 11 dlrea111d by lhe
Owiterr
ARTIClE 2.6 CONTRACT ADMINISTRATION SERVICES
§ 2.6.1 GENERAL ADMINISlRATION
§ 2.8.1.11be Ardli~sbaq provide adminlstrDJioa of die Ccouact betweaa die Owner aad the Conttactor u set
Col1b below aud In tho edlti9n.Qf AlA Document A201, Oeaelal Coudltiom oflhc Colllrad forCoiiSinldloo, c:um:ol
as of lhe dam of lhls ~ Modlftcatiom made to the Geaeral Coadiliom, when &dopfcd u put of lhc
Contract Documents, shall be enfon:cable Wlder lhll Asreemeut oaly to die extem dlat !bey are consistent with tbia
Agreemlll!t or apptOVed ID wdlillg by the Alchitcc:l. Site yisits by !he An;bitect w!U bo Umjted to !he num!Jer or
mcedpgs ipdis;al!!d in Blpps Swensog Qraham Arshltm:ts' Pmi!OI!J! le!fer dated Nmmbq 12. 2004. revised
Janwyy 21, 2004. lll!ncbed a.s "Bxff!bit A,.,

§ 2.6.1.2 The Architect's responsibility to provide dtc Contract AclmlnlsuadCD SCC'Yicolllllder this ~t
commcnc:cs with lhc award of the iDillal Contract Cor Construction aad lcrmlnatea at lho Issuance t0 the Owner of the
final Certificate for PDym011L However, tho An:hitcct sbllll be enlilled to a Clwlge in Services iD ac:conlance with
Sccdon 2.8.2 wben Contract Adra!alstratlon Services extend 60 days Dfter tbe dale or Sub&tlultia! Completion of the
Work.

§ 2.8.1.3 The Alchllcc:t shaD be a n:pmentalive of and shall advise ud consult with tho Owner during the provision
of the ConctiCt Adtnlnistratlon Services. The Architect ehall have authority tO act on behalf of tlu:: Owner oaly to the
ex lent provided In tills Agreement unless otbcrwlse modified by written amendment.

§ 2.6.1A Duties, n:sponslbilities aDd limllalions of authority of !he AR:bitcct aDder this Article 2.6 shall not be
rescrided, modified orexlaldcd without written ~toflhe Owner aad Architect with c:oaseatoflho
Contractor, wbicb CODIICCit will not be unreasonably withheld.

§ 2.8. U Tbe Architect shall review properly prepared, timely requests by the Contractor for addillonal Information
about the CoJUract Documents. A properly pn:parc:d request for addldonallnformatlon about the Coatraet
Doeumcllts aban bo in a form prepared or approvocl by the Architect 111111 ahall include a detai1ed written stateme~~t
that indicates tbe spedfie Drawings or Specifications In need or clariftc:atloa lllld the nature or the ellrificalioa
requested.

f 2.8.1.8 If deemed appropriate by the Architect, the An:hlrect shall on the Owner's behalf prepare, reproduce and
distribute ~upplemcntal Drawings and Spcc;ificatlons In .:e.sponsc to requests for inrormatlon by the Contractor.

§ 2.8.1.7 The Arcbitect sbaU Interpret and decide maJtm concemlng performance of tile Owner and Contractor
under, and requirements of, rhc Contmct Documents oa writlen request or cidler tbe Owuer or Con~metor. Tile
Architect's responso to auch request~ shall be made In writing within any rime Umiu asreed upon or otherwise with
re.uon11blc: promptness.




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 § 2.6.f.l Intupmatioas md deciliona of the Arcldtcc:t shall be consistcllt with the lntem of md r=sonably iaferablo
 from t1111 Contract Doc:wnalta and lball be ia wriliDs or in Chc f'otm of drawinp. When makiaa sucb intcrpzelatioas
 aac1 ialdal decisions. the Arcbilecl shall endeavor ro secure (allhJbl pctfimuaDce bJ both Owaer IIICI Coarraccor,
 shall aot show partiality m either, and ahall not be llahlc far tile ICSIIlll of iiiiCqln:tatiolllll or declalons so tcoden:d ill
 &oodfaith.
 § 2.6.1.9 Tho Architect sballrondcr Initial doclsiona 011 claims, disputes or other matcem in question between the
 Owner and Contractor as provided In the Colllract Documcoa. However, the An:bllcct's dcclslo111 on matters
 tdatillg to acsthcdc cfl'ect shall be final if consistent wilh the intent cxpn:ssed In the Contract DocuiiiCIIfS.

§ 2.6.1 EVALUATIONS OF TilE WORK
§ 2.&.2.1 'The Architect. as a represeatalive of the OWIICI', sball vbit tho site atlatcnals appropriaJc ro the stage of the
Contrsc:tor's operatioos, or u otherwise agreed by the Owner and the Architect in Article 2.8, (1) 10 become
generally familiar with and 10 keep the Owner IDfonned about the progreaa 8IICI quality of the portion of the Work
ccmplcted. (2) to eudeavor 10 guard the Owner agllillst defcets IUid deficfCIICies in the Work, and (3) lo dctcrllliDC in
geaeralltlbe Worlc Is bc.iD& performed in a mllDJiel' il1clic:alina that the Work. when fulJy completed, will be in
~ with tho Coatract Docwnwts. Ho-ver. tho Arcblllll:t shaD not be rr.quln:d to mae exhaustive or
conliuuous oa-sita lnspectioas ro check the quality or qwlllity ofthc Work. 'The Archirec:t shallaeilhet bave coaarol
over or charge of. aor be respousib1e fur, lhe comuucdon mau, medsods, tec:baiques, sequeuces or proc:edurea, or
for safety prccautiou lllld prograJD~la cOIIIICCtioD with the Work. aiuce these aro solely lhe Co~~~~'~~~:!«'a rights IIICI
responslbWdes under the Contmct Documents.

§ 2.6.2.21be Arcbita:t aba1l .report 10 the OWIICI' lcaovm deviations from tho Contmct 'Doc;umcuts and from the most
reecnt construction schedule submitted by lhco Coalllll:tor. Howcwr, the An:blta:t shall aot be rcapo.asiblc for the
Collfr1lctor's milum to pedorm the Work Ia aa:onfaDc:e with the ~a~airemenll of the Colllr8CI Documaus. The
ArcfUlect shall bo rcapoaslblo for the Architact's aegllgcat acts or omlssiou, but shall not h&ve CODirOI over or
charge or ud shaD not be responsible for aciS or omlsslona of 'die ConlnCIW, SaltCOOiraelon, or their agents or
employees, or of any other persODS or entities performins portlon.s of Che Work.

§ 2.6.2.311lc Architect shall at all times have u.cc:ea to lhe Worit wherever Itis in preparatioa or progress.

§ 2.6.2.4 Ell"flt as otherwise provided in this Agreement or wllendircct commUDicalions bave been ISpccially
~authorized. the Owner abalJ eadcav9r to communicate with lhe Contnu:torthrougb !be Alcbltect about mauen
asising out of or rolatiog ro tho Contruct Documcnu. CoiMIIIJiic:alions by llld with the Architca's coasultaDU shall
be through the Architect.

§ 2.6.2.5 The Architect 511all have authority to reject Work that does aot confonu to the Contract Documcou.
Wheneva- the Architect considers It nec:euary or advisable, the Archltact wtn bave authority 10 reqaiJe inspection or
testing of tho Worlc in accordaace with the provisions oftbe Contract Doc:wm:uiS. whether or notiiDI!b Work Is
f'abricaled. inslaUecl or completed. However, neither litis authority of the Ardairec:t aor a decision ~ in good faith
either 10 excrcbe or not to exen:ise such authority shall atw rise ro a duty or responsibility ol tho An:hitect to the
Colllnetor, Subcomractors. material aad equipmtnt suppUcrs, lhdr ageaJs or employees or olher persons or Clllilies
pedormlng portions of the Work.

~lmFICATION OF PJ.YM&NJS TO C:ONJRA~OR 0 ~
I U.U 'lbe J..mhlteeululll wliM"l aad Gelti[y !be ameual& due the GaaiAiotoHOd 51!1111 i&ml11 Qdfiaalfll fer
Pe,o!Beat ill NGJIIlmiiiM• 'At J.oftlltiteel'li elll4ilililliAH fer payiRBHI Mall OOnsdbMI I NpR150BCIIiOI te fha Owner-,
bilGed aa the hNhlleel's &'llllualioa aFihe Wadi at JIIV'Iided ia EediSR 3.G.31111d 981he date aempr¥1~tg die
CeftiMSier's .~Gillan fw Pa)•mellla dun die 'A..fk bu plll&fBG&Dd le die paiat illdi11ated &5tltaf; 18 the beet er die
 {'lotehi~eat' e lale·Niadge, illfeHBBiiea aarl belief, 1M qualil) ar the Wedi li Ia aeueRIBBaa with die QaftiMGl
'&IGIMIIIIIilftlllo 'lbe reNgaing NpRIIIellWIODG are &ubjeet U) le 1111 e•o'iillllllioa af dJe WerlE rer eeat"etmaaDe '•\lith IIU
CeatRall)eGIImeRIB upea Sull!ltllnllsl Campleden1 ~ Ia ASuiiB af &\lll&el}\ll&tletltHad illspeetlaoe1 ~) le
eeeeedee ef Jftiaor deYllllieM £ram lhe Ceallllet Qalltlfllllnll pl'tar ta eempledoa, Blld (4) te llflllllUle 1111llifi881iaaa
ellpRIS&a d a.y lila !.oftlbiteet.




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 § 3.1*2 the issiiiBMle ef a Gettiiea fof Pa,BIOIIllhoB aet be a.-prlllieftflldea 1hasllte a\falllteet lias EJ) mille
 eMclusllve or eondiNDIIHD silo IRSpeodoas 18 eheek die ~t~~llily oF quaatily of lha 'Aferk. Ea) IIWI&Wod loRSifUollaD
 ntelllti1HIOI!Iedl, leehelljlles,&efiiiBIIooa er prauell-. fl) N'Jie'o\ ed eeplas ar ftlllllisitiell roeei'JINIIieiR
 811bee0118ete18 8lld-ma!eriAJ suppU1111 11811 oilier Elata NfJUIItllll"' dla g.,...., 18 lillb&l8DCieto-tbe-Ge~
 pa)'llleR\ Of~) asaadaiRed •a·.u BP far whal purpa•lhe GaaiRIGiar has Hed IRBII8]' prevlausl,, paid ea aeeatHM of
 tile Gelltnlel Slllft:



 §2.6ASUBMnTALS
 §2.8.4.1 The Archltcc:t 1hall review and approve or Ab olhct appropriaro acdoa upon tbc Contract.or'aiUbmlaab
 siiCb u Shop Dr.wlDp, Product Datil and S~les, but oaly Cor the IJmltcd purpose of cbcc:lclns for conformance
 wldllllf'ormadoll glvea aad tbe dc&lp coucept expressed iD the COIIIIII:t Documenll. Tbe Arcbltect's acdoa shall be
.&Uco with aucb re:uonabla promptlless u to c:avre oodday lAthe Wort or lA U.ICC.IWlca of the Owner, Coatnctar
 or sepuate ccmlndon, while aDowlug sufticleDt time ill lbe Alch11ecl's ptO(asfollll judgmeol to permit adeqllll8
 review. Review Of Such submittals is DOt coaducred for the purpose of ddamllllq lhe ueuracy IJid eomplcteftesa Of
 other decaila such as dimensloas and quantities. or for substaDiialiq inatructiOIIS for iDstallatioa or perfctmance of
 equipment or systems, all of which n~ma!Ja the mponslbiUty of t11e Conlrletor as requbed by the Coatract
 DoCUIIICDts. The An:bltect'a review shall nol constilute approval of safety pn:awtiou or, unless otherwise
 specifically Slated by the An:hltect, of auy coastrucdoo rneam, methods, k:Cimiquca, sequeoccs or procedures. The
 Architect's approval of 11 specific item shall not lodJcate approval of au assembly of which Ute item is a compoaenL

§ 2.6.4.21be Architect shall mailltllin ll record of submittals IUid coplea of submittals supplied by the: Contraceor in
aceordance with the rcqulremaus of the Contract Doc:umenu.
§ 2.&..0 If professioaal design services or certifications by a design profcsaioaal related 10 syatems, maleriab or
equipment are specifically mtuhed of the Cootractor by lhe Coaaact Documems, the: Arehlrect shall specify
appmprialc perfoiDiaucc 1111d design criteria !hat such services mUJt sltisfy, Shop Dnlwlap 1111d other subminals
relmd 10 the Wotlc dellped or certified by the dealp professional reta1ncd by the Cootractor lba1J bear such
(rOf'cssioml' s written approwl when submlllcd to lhe Arcblrcct. Tho An:hJtect sllall be entitled 10 rely upoa the
adr:quacy. IIIX:IIIliC)' aad complemJess of the rervic:ea, cettificatioas or 01ppi'0Vals pcrfonncd by such design
pEOfessioaals.

§ 2.6.5 CHANGES IN THE WORK
§.a.& S1 'Ae Alehitee& lllall pref18R1 Gluulge ORiea aod CellllfUadea GJiaaae Dmtsdves fGi' lila OwaoF's appNVal
IIAd 8KIG1Jii8R ill IIBe&rdQBIIO YoiiJs lho Qelllrael 981JIIIBIIBISo 'the ArohJIIet-may &lldteftllll IBieer ehuges in Ilia Welt!
nel ia·J&l'liug lllllldjUSimiiRl ill CeRIRet Sum or an e~~taMiaR af Ilia Celllfatl.+ima v.'hjeiiiiAI aansl&leBI wilh lite
                                                                                                                                   c ll
                                                                                                                                   ~
ialeRl af the Gei\lfaet QeiiUHIOBl&. IlRI!U115SIIfYo lila t\reldl'eel &Mil pNplll\\ NpFOd&ea ad dJslfibil09fawiRg!lllftd           "l\ _.
Speeifieadaas ta deaelibe ~!!1118 lie added, dellllad er111edified, as pm··ided ill Seeliaa :!.8,;3,

§.

§2.6.5.2 Tbc Archltect shall review properly pnpmd, dmdy requests by tile 0\Wa' or Coalractor for chiJDges Ia lhe
Work, includioa adjustments to the Contnct Sum or Contract Time. A property prc:pamt n:quest for a chanae lo the
Work shaD be accompllllcd by sufficient supporting dllta 110d infonnadoo to permit the Archltcct to mab a
reasonable derermioadon withow extA:nSJve laveatiplioo or pmparat!on of addftioaal drawinss or specificatioas. If
tbc Architect deletmlaes that requested chaages In lhe Wort are IIOtmaterially cfifl'clal1 from the requircmcals or
die Conttact Documents, tho Ardlitect may l:l$ue an order for ll mioor c:llaop Ia lhe Wort or ruommend to the
Owner that die requested change be denied.

§ 2.6.5.31f lhe An:hitect detenniaes that implemealation of the requested c:haagea would rcault In a mataial cbli18C
to the Conlnict that may cause an adjustment in the Conlnct Tune or Conrmct Sum, the Architect shall malce a
recommendatioo to the Owaer, who may authorize rurtber iavestigation or auch challge. Upon uuch authorizaiJon,
and based upon infonnatioo furalshcd by the Contractor, if 11ny, tho Architect shall estimAte the addltionll cost and
dme that might result from such change, lncludloi IIDY additional colla aaributable 10 a Cbaage in Services or the
~ With tho Owaer•s approval. the ArchlltQ shall iacospomtc thoao cstimalea into a Change Order or other
approprlate documeatadoo Cor the Owner's execution ot negotiation with lhe CoatnlctDt.




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   § ~A.6 PROJ&ef COMP&.IiRON                                                            .
   §2.1.1A 'J:IIe .~llireet allalleoedUIII iaspeslieRG 111 delflfllliiM lhe datu or dale& of SubBIPDiiAl Qnapllliea ud 1M
   da!a"Bf liiiiJI eomplel:i8Bt sMIJ teeei ue fteiB lhe G8BCNUI8f aed ~ liJ lhe 99111Brt fartha 9wae(a Nvhl·,u llld
   NOIIM• r:<'rillea w1111!8111ie' ed Nleted deeulllllftts ~eqlliled ltly !he Geall'llet Deeii!Mftll and usemllled lly die
   Cea~AS&er 1 ad sball ~eu;, a final c:.dieal8 rerPeymeal based upaa a fiaaliiiiJIBidoa lalliAiiRg llle Wed&
   eutBPiies willl the Nqtlittlme1115 er !he CeaiRlsl 9eGUmeal9•

  §2.8.1.2 'Jkl.~~aeiiiiD shall be eeadueled U'llh die O•IJMI''a D111Jpallld Repreceallilh• le ellaelli
  oeeCeffaaoee er llle    "taRe
                            '1'141h lite Nqll:ireiMBII af the Geftlr&GI Dueumeats llftllle ·•r, lbe aeeuraey 111d
  eempleleaaes sf lhJ Dse &lllmtiHed by lila GaiiiRlater efWIHit te bil aampletad Ul' 881HDieda

  § :Y.U 'Whee lho '\\terli 18 feuad le be 5Ull51endally aampleiB& die a\rehiteel llhaB inlel'lll lhe Ow.-r ab&lll !he
  tlaiBBDD sf tile QeQifaeC Sllfl'l f8RIIllniag 18 IJe pllld the CeBIRIGier, laolllding llll)' ameual& aeedad 111 pay rer final
  ~r                IIEI-Yilft aflhe~'eFII

  § 2.1.6,4 'Ala ,.,...blfeel sflaU ..-ve ffemlha CGRIJMIOF &Bd fafWRie 11!1 9Wiltff (I) IIEIBSIIBI ef511185y er IIIRIIietr
  if_,., re Rlduedaa 1ft eFpadial eleGSe of JC4alMco er lho -wa, of &all Jilt) IIIC'Hl llft4 Ea) alfi4s, itt, ,_lpll&
  teJo1lseHad wai\'819 eFlienlrer-beads iademalfyiog-tke O'MIC'f GpiNllieas.

  MIJIC:I.& 2.7 FAGILA'Y OPEM110N SSRVIC:ES
  § 2.7.1 'Ilia ..-...Jiiteel sllaiJ moot wilh lfle..Gwl1~waer-'a Deeignllted Ropr.&IMiataiJ•e prempdy-ofter
  SIIIISfQBIJal Gempledaatu te¥1ew the aeed fer t.alUty apaRld&a &eflli885,

  5~ Yp sa R't'leal       af lila Q-rv 1114 pROF lD lbe eapilaliaa af .... year hm dla diN sf SU.IaHal Ge~~~ploli811J
  die a"altileGl &IIBU aaaduaf a meeling vtilh die 911'1!0f IIRd di• Goil'ller'l Deslpaled RepR~&enlathB Ill w;lew die
  fat~~iftllke apprepfiafe Rl88111111eMHens te lho 9v.'lilll't

  ARTICLE 2.8 SCHEDULE OF SERVICES
  § 2.8.1 Doalgn and Conlr.lcl Admlaislralion Scnlcea beyond the following llmil& shall be provided by the Architect
  as a Change In Setvices in accordance with Section 1.3.3:
           .1    up to ~ ( 1 ) reviews of each Shop Dtawill& Product Data ilan, sample and aimiJar aubnlitcal or

            .2
                   the ConlnctOr.
                   up to b!! ( 2
                                        oK ~1lte by the Architecc over the duratloo of the Projecc during
                                        ) visits to
                   construction.      0~
            .3     up to 2'&m (      n)
                                      biSpec:tio for any portion of the Work to detcnniae whether such portion of                     tllcoK     l\ ,\
                   Work is substantially complecc in acc:ordaJtCe with lhc requirements of tho CoDtract Docull1ellts.                           ~
            A      upto Zm! ( 2 )illspccdonsforanyportionoftheWortctocfelcmliDeflaalcomplclloo. ~k.~-.

l § 2.8.2 ~ foll~ l>eaip and Collll3Ct Admlnbtndfcm Services shall be provided by lbc An:llllecl a a Cuutae
· in.Setviccdn accorilallce with Scctioo 1.3.3:
           r   1   ·tev.!~ of a Contractor's submiaal out of sequence liom tho submittal schedule agreed to by tbe
                   Architect:
           .2      respoDSOS to tho Contractor' a rcqucau for information whcR svch infomwloo is available to the
                   Contractor ft'om a cam'ul study aod co~ of tho Contract Documcrlls, field conditions, other
                   Owner-ptovidcd lnfonnatioa, Coutnctor-preparecl coordination drawings. or prlo:r Projcc:l
                   correspoadcnco or documcnl.lldon;
           .3      Change Orders and Conslnletlon Change Directives rcquirlog evaluation of proposals, iucludlng the
                   preparalioo or revilion orlnstnunenu or Service;
           .A      pRividiDJ consultation concemlDg replacement of Wort resulting from tlrc or otber cause dudns
                   consrructlon;
           .5      evalUAtion of an extcDSive number or c:Jalms submitted by the Owner' a consultants, tbe Contractor or
                   otbets i.a connrctioa with the Went:
 AlA Do.__,. 8141"' -1117 p.,t 2. CapJitghl 01117, 11120, 1941, IMJ. liN, IDA. 11101, I &a. 1116&. 1567, 1tml, 1874,1977, IU'TIACI 1Wl'bf Tile
 Amttlcln lndlllll ol ArcllllaciL All il;lda MCmld. WtJ!I!ll«<r Tl\la ~,. ' * - I l l Ia polecled br u.a. Com!Gbt Law .nd lmaliiiiiOIIII 'nelllls.       8
                                                                                    n.
 Uni.Uiklllbd rtprodllollon ot lllllrlllutlon ot this~,. DocUiunl, or any po&1lon of m., reault In _ , . aiYif1111d cl'lmtnalpe111IU.., end IIIU be
 Ho.tll0011562031WIII:fl~oaon211&12008,Mdll1'101forfllllle.
 u.. ,._ -
                                                                                           SCA NNE D
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                                                                                                                                         (t2094700)



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                                                                                                                                                             77
               .8    evaluadon cf subsdtulions proposed by the Owner'a c:oaaultaDta or conlmctonl and making
                     subaequcnt revialons 10 lDslrUmcllts of SeMco RltlullliJa thetebm;
               .7    preparal.lon of deslp IUld documeauatlou tor lllemBie bid or proposal requens proposed by the
                     Owac:r. or
               .B    Colllnlet Admillisttatlon Services f10vided 60 da)'lllftu lhe dale of Substantial Compledon of the
                     Work.

 § 2.8.3 Tbc AJchitec:t shall furnilb or ptOVide lbe foUowilla semccs only if specifically desipated:

          s.Mces                                                            Rapollllbllty                   Location of SafVIce Dnc:rlptlon
                                                                            (Anlhltect, OWner or
                                                                            HotProvldadl

          .1          Progl'MIIIIila                                       -l
          .2          Land SUrvey SBMces                                  !--!
          .3
          .4
          .5
                      Geotechnical S8111!ces
                      SDBCB Sdlamul!as/Fiow Cla!!IBITIS
                      Elds&Jg Fdlles Surveys
                                                                           ---        p
          .6
          .7
                      Ecancmlc :..-n.mlv stumea
                      SIIB AnaMfs and Se!edion
                                                                           -
                                                                           -J p
                                                                                      I»

          .8          E'n\Wmnantal Sludl88 and Repods                      ~)
          .9         OY«llt.SUI!Jlled Data CoordlnaUUl                     -l~
          .10        ScheduleD              and                            -l
          .11        CiviDesll!n                                           -l
          .12         1
                          """"""'""Deskln                                  ~
         .13         Interior Dea11111                                     -J•
         .14         SpedaJ Bidding or Neg11tlallon                        --:
         .15
         .16
                     Valua~~-
                     DetaUIId Coat Estimating
                                                                           --.
                                                                           --:
         .17         On-6ite Ptoloct Recmienlation                         ---!
         .18         Construdlon Manaaemant                                -0
         .19         S1alliiP Assistance-                        I
                                                                           -
         .20
         .21
                     Realrd Dravdn!JS
                     Post.COn1racl Evahlation
                                                                           -- II're
                                                                           --
         .22         Tenant·Relatad Services                               --Hr
         .23
         .24
         .25

Description of Scrvlcc:a.
(ln.Sflt th.scrlptioru of tht: .services dnianoted.)



ARTICLE 2.9 MODIFICATIONS
§ 2.9.1 Modifications 10 thls Standard Form of Architect's Services: Design and Cootrac:C Adminis1ratioo. If any, ~~n:
as follows:




NA Dclclllnanl B141tM •11117 Pin 2. Copyrlghl 0 11117, 111211, 11148, 111151, 11163, 11118, 111111, 111113, 1968, 11187, 111711, 11174, 11177, 1111711111 11117~Tho
Amcrlcln ~al ARIIIlecll. All rlgllta Nl&fftd. WtRMNO: lbla AlA• DcWIIMnlll protlcled llf U.S. CepyriQIII LIIW llrld lnlmtalloal Tre&.la.                              g

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u..r Noln:      -
                                                                                                   s CAN N. ED
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llnaulhortmd r.produc:tiOn ot dlllri!JUIIDII Df IIIIa PJA• Document, or lftJ pcrtlan of II. m-v mullin _ , . chill and criminal penaJU.a,llld will Ill   10
pr0$0CIItad lo IIIII IIWIImum odont ponllllo undft'Uio law. Tills dDaumerlt- plllllwed by AlA scftlnro a1 10:43:17 Dll 03I2$'2GD5 vndDr o.t
No. fDDD1562103_1 'WIUI:h Gl~Pos on 2/Uill!OD&.IIId is nd lot ttMIL
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                                                                                                  SCANNED                                   (11!0N700)




                                                                                                          SEP 22 2007


                                                                                                                                             ESG001474

                                                                                                                                                              79
APPENDIX I
   +Capitol Research Services
                               Legislative Histories &
                          Intent Research Consulting
                            1108 Lavaca St., No. 110-409
                                    Austin, Texas 78701
                                          (512)371-1440
                                www.CapitolResearch.US
                          www.CapitolResearch-Texas.com




     THE LEGISLATIVE HISTORY OF
TEX. S.B. 890, 79TH LEG., R.S. (2005)
   REGARDING SETTLEMENT CREDIT
          Copyright  2005

      Capitol Research Services

         All Rights Reserved




Published by: Capitol Research Services

     1108 Lavaca St., No. 110–409

         Austin, Texas 78701

            (512) 371-1440

lesbreed@CapitolResearch-Texas.com
                                                                                                                         Table of Contents




                           THE LEGISLATIVE HISTORY OF
          TEX. S.B. 890, 79TH LEG., R.S. (2005)
                      REGARDING SETTLEMENT CREDIT




                                        TABLE OF CONTENTS
    ABSTRACT ................................................................................................................................. I

    BACKGROUND.......................................................................................................................... 1

    PRIOR HISTORY: 1973 – 2003....................................................................................................... 1

    1973 — H.B. 88 ............................................................................................................................. 1

    1985 – CODIFICATION OF THE CIVIL PRACTICE AND REMEDIES CODE ................................. 2

    1987 — S.B. 5................................................................................................................................ 3

    1995 — S.B. 28.............................................................................................................................. 3

    2003 – H.B. 4 ................................................................................................................................ 4

    2004 – INTERIM REPORT ............................................................................................................. 6

    2005— S.B. 890............................................................................................................................. 6
       S.B. 890 FILED .......................................................................................................................... 6
       SENATE COMMITTEE HEARINGS ON S.B. 890 ............................................................................ 8
         Public Hearing: March 31....................................................................................................... 8
         Public Hearing: April 4........................................................................................................ 13
         Bill Analysis ...................................................................................................................... 15
       SENATE FLOOR DEBATE ON S.B. 890....................................................................................... 17
         Second Reading: April 13 ..................................................................................................... 17
         Third Reading: April 13 ...................................................................................................... 17
       HOUSE COMMITTEE HEARINGS ON S.B. 890 ........................................................................... 17
         Formal Meeting: May 13 ...................................................................................................... 17
         House Committee Report ..................................................................................................... 18
         Bill Analysis ...................................................................................................................... 19
         House Research Organization Report ................................................................................... 20

Legislative History of                                                                                           Capitol Research Services
Tex. S.B. 890                                                                                                                Austin, Texas
79th Leg., R.S. (2005)                                                                                                      (512)371-1440
                                                                                                                      Table of Contents


       HOUSE FLOOR DEBATE ON S.B. 890 ........................................................................................ 21
         Second Reading: May 24....................................................................................................... 21
         Third Reading: May 25 ........................................................................................................ 22
       SENATE CONCURRENCE ON S.B. 890: MAY 27 .......................................................................... 22
       S.B. 890 SIGNED BY THE GOVERNOR........................................................................................ 22
       S.B. 890: SESSION LAW............................................................................................................ 23
       S.B. 890: ENROLLED BILL ANALYSIS ....................................................................................... 23
       S.B. 890: ENROLLED SUMMARY .............................................................................................. 25
    2005 — H.B. 2018........................................................................................................................ 25

    CURRENT LAW (2007) .............................................................................................................. 26

    LOCATION OF DOCUMENTS................................................................................................... 27

    EXHIBITS ................................................................................................................................. 28




Legislative History of                                                                                        Capitol Research Services
Tex. S.B. 890                                                                                                             Austin, Texas
79th Leg., R.S. (2005)                                                                                                   (512)371-1440
                                                                                      Issues & Abstract




                     THE LEGISLATIVE HISTORY OF
        TEX. S.B. 890, 79TH LEG., R.S. (2005)
                 REGARDING SETTLEMENT CREDIT


                                         ABSTRACT
    In 2005, the 79th Texas Legislature passed S.B. 890 which amended the settlement credit provision of
§ 33.012, Civil Practice and Remedies Code.

    Sec. 33.012, CPRC, originated in Section 2(b) of the former Art. 6686, Vernon’s Revised Civil
Statutes, which was first passed in 1973. This article was transferred into the Civil Practice and
Remedies Code in 1985 and numbered as § 33.012. Major tort reform measures amended the provision in
1987, 1995, and 2003.

     The 1987 amendment codified the “one-satisfaction” rule (the Bradshaw Rule). Subsequent
amendments allowed a non-settling defendant to elect either a dollar-for-dollar credit for all
settlements with the plaintiff, a credit based on the percentage of liability assigned to the parties by
the trier of fact, or a statutory sliding scale. However, in 2003, H.B. 4 eliminated the election of the
dollar-for-dollar or sliding scale credit, except for those sued for health care liability.

    S.B. 890 restored the election of the dollar-for-dollar settlement credit.




Legislative History of                            Page i                         Capitol Research Services
Tex. S.B. 890                                                                                Austin, Texas
79th Leg., R.S. (2005)                                                                      (512)371-1440
                                                                              Prior History: 1973 - 2003




                       THE LEGISLATIVE HISTORY OF
          TEX. S.B. 890, 79TH LEG., R.S. (2005)
                   REGARDING SETTLEMENT CREDIT



                                      BACKGROUND

Prior History: 1973 – 2003
1973 — H.B. 88
     What is now § 33.012 was originally enacted in 1973 with the passage of H.B. 88, “An Act relating
to reform of civil suits based on negligence; establishing a system of comparative negligence and
modifying existing rules as to the effect of contributory negligence; providing for contribution among
certain joint tort-feasors…” Act of March 27, 1973, 63rd Leg., R.S., ch. 28, 1973 Tex. Gen. Laws, 41.
[Exhibit 1.]

      Subsection (b) of § 2 stated:

                  (b) In a case in which there is more than one defendant, and the claimant’s
          negligence does not exceed the total negligence of all defendants, contribution to the
          damages awarded to the claimant shall be in proportion to the percentage of negligence
          attributable to each defendant.

Id.

      H.B. 88 was compiled as Art. 2212a, Vernon’s Ann. Rev. Civ. Stat. Id.

[NOTE: For the complete legislative history, see CAPITOL R ESEARCH, The Legislative History of
H.B. 88, 63rd Leg., R.S. (1973).]




Legislative History of                            Page 1                         Capitol Research Services
Tex. S.B. 890                                                                                Austin, Texas
79th Leg., R.S. (2005)                                                                      (512)371-1440
                                                                                Prior History: 1973 - 2003



1985 – Codification of the Civil Practice and Remedies
Code
    During its Regular Session, the 69th Texas Legislature enacted S.B. 797, “An Act relating to the
adoption of a nonsubstantive revision of the statutes relating to civil procedure and civil remedies and
liabilities; making conforming amendments and repeals; providing penalties.” Civil Practice and
Remedies Code, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws, 3242. [Exhibit 2.]

    This bill was passed as a part of the Texas Statutory Revision Program which was created by a
constitutional amendment passed in 1963.

          Sec. 43. REVISION OF LAWS. The first session of the Legislature under this
          Constitution shall provide for revising, digesting and publishing the laws, civil and
          criminal; and a like revision, digest and publication may be made every ten years
          thereafter; provided, that in the adoption of and giving effect to any such digest or
          revision, the legislature shall not be limited by section 35 and 36 of this Article.

TEXAS CONSTITUTION, Art. III, § 43.

      The enabling legislation for the statutory revision program is § 323.007, Government Code. Id.

      The bill contained a statement of legislative intent:

          SECTION 10. LEGISLATIVE INTENT. This Act is enacted pursuant to Article III,
          Section 43, of the Texas Constitution. This Act is intended as a recodification only, and
          no substantive change in the law is intended by this Act.

Civil Practice and Remedies Code, 69th Leg., R.S., ch. 959, 1995 Tex. Gen. Laws, 3242, 3322.
[Exhibit 2.]

    Article 2212a, V.A.C.S., was repealed, redrafted, and transferred to Chapter 33, Civil Practice and
Remedies Code, during this revision. Civil Practice and Remedies Code, 69th Leg., R.S., ch. 959, 1995
Tex. Gen. Laws, 3242, 3270-3271. [Exhibit 2.]

   Subsection (b) of Art. 2212a was revised and numbered as § 33.012, Civil Practice and Remedies
Code.

          Sec. 33.012. DAMAGES IN PROPORTION. If there is more than one defendant and the
          claimant’s negligence does not exceed the total negligence of all defendants,
          contribution must be in proportion to the percentage of negligence attributable to each
          defendant.

Id.

[NOTE: During the public hearings and floor debates for bills such as this that are nonsubstantive
revisions drafted by Texas Legislative Council, the sponsors and expert witnesses only discuss the
measures taken to ensure that only non-substantive changes were made. There is no discussion regarding
the substance of the provisions of the bill.]




Legislative History of                             Page 2                          Capitol Research Services
Tex. S.B. 890                                                                                  Austin, Texas
79th Leg., R.S. (2005)                                                                        (512)371-1440
                                                                                Prior History: 1973 - 2003



1987 — S.B. 5
     Sec. 33.012, Civil Practice and Remedies Code, was amended in 1987 during the First Called Session
by S.B. 5, “An Act relating to revising the Civil Practice and Remedies Code to reform procedures and
remedies in civil actions for personal injury, property damage, or death and civil actions based on
tortious conduct, including revisions and additions to laws governing the determination of and
limitations on liability and damages.” Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, 1987 Tex. Gen. Laws,
37. [Exhibit 3.]

    Section 2.08 of S.B. 5 deleted § 33.012 and substituted the following:

        Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is not barred from recovery
        under Section 33.001, the court shall reduce the amount of damages to be recovered by
        the claimant with respect to a cause of action by a percentage equal to the claimant's
        percentage of responsibility.

                (b) If the claimant has settled with one or more persons, the court shall further
        reduce the amount of damages to be recovered by the claimant with respect to a cause of
        action by a credit equal to one of the following, as elected in accordance with Section
        33.014:

                         (1) the sum of the dollar amounts of all settlements; or

                      (2) a dollar amount equal to the sum of the following percentages of
        damages found by the trier of fact:

                                 (A) 5 percent of those damages up to $200,000;

                                 (B) 10 percent of those damages from $200,001 to $400,000;

                                 (C) 15 percent of those damages from $400,001 to $500,000; and

                                 (D) 20 percent of those damages greater than $500,000.

                (c) The amount of damages recoverable by the claimant may only be reduced
        once by the credit provided for in Subsection (b).

Id. [Underlining indicates added text.]




1995 — S.B. 28
     The 74th Legislature amended § 33.012 with the passage of S.B. 28, “An Act relating to
responsibility for, and recover of, damages in certain civil actions.” Act of May 8, 1995, 74th Leg., R.S.,
ch. 136, 1995 Tex. Gen. Laws, 971. [Exhibit 4.]

    S.B. 28 amended Sec. 33.012 by adding a new subsection (d).


Legislative History of                             Page 3                           Capitol Research Services
Tex. S.B. 890                                                                                   Austin, Texas
79th Leg., R.S. (2005)                                                                         (512)371-1440
                                                                                 Prior History: 1973 - 2003


        Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is not barred from recovery
        under Section 33.001, the court shall reduce the amount of damages to be recovered by
        the claimant with respect to a cause of action by a percentage equal to the claimant's
        percentage of responsibility.

                (b) If the claimant has settled with one or more persons, the court shall further
        reduce the amount of damages to be recovered by the claimant with respect to a cause of
        action by a credit equal to one of the following, as elected in accordance with Section
        33.014:

                         (1) the sum of the dollar amounts of all settlements; or

                      (2) a dollar amount equal to the sum of the following percentages of
        damages found by the trier of fact:

                                  (A) 5 percent of those damages up to $200,000;

                                  (B) 10 percent of those damages from $200,001 to $400,000;

                                  (C) 15 percent of those damages from $400,001 to $500,000; and

                                  (D) 20 percent of those damages greater than $500,000.

                (c) The amount of damages recoverable by the claimant may only be reduced
        once by the credit provided for in Subsection (b).

                (d) This section shall not apply to benefits paid by or on behalf of an employer
        to an employee pursuant to workers’ compensation insurance coverage, as defined in
        Section 401.011(44), Labor Code, in effect at the time of the act, event, or occurrence
        made the basis of claimant's suit.

Id. [Underlining indicates added text.]

[NOTE: For the complete legislative history, see CAPITOL R ESEARCH, The Legislative History of
S.B. 28, 74th Leg., R.S. (1995).]




2003 – H.B. 4
    The 78th Legislature amended § 33.012 with the passage of H.B. 4, “An Act relating to reform of
certain procedures and remedies in civil actions.” Act of June 2, 2003, 78th Leg., R.S., ch. 204, 2003 Tex.
Gen. Laws, 847. [Exhibit 5.]

     Section 4.06 of H.B. 4 amended § 33.012, Civil Practice and Remedies Code by amending Subsection
(b) and adding Subsections (c) and (d).

                (b) If the claimant has settled with one or more persons, the court shall further
        reduce the amount of damages to be recovered by the claimant with respect to a cause of


Legislative History of                              Page 4                           Capitol Research Services
Tex. S.B. 890                                                                                    Austin, Texas
79th Leg., R.S. (2005)                                                                          (512)371-1440
                                                                               Prior History: 1973 - 2003


        action by a percentage equal to each settling person's percentage of responsibility
        [credit equal to one of the following, as elected in accordance with Section 33.014:

                         [(1) the sum of the dollar amounts of all settlements; or

                      [(2) a dollar amount equal to the sum of the following percentages of
        damages found by the trier of fact:

                                 [(A) 5 percent of those damages up to $200,000;

                                 [(B) 10 percent of those damages from $200,001 to $400,000;

                                 [(C) 15 percent of those damages from $400,001 to $500,000; and

                                 [(D) 20 percent of those damages greater than $500,000].

                 (c) Notwithstanding Subsection (b), if the claimant in a health care liability
        claim filed under Chapter 74 has settled with one or more persons, the court shall
        further reduce the amount of damages to be recovered by the claimant with respect to a
        cause of action by an amount equal to one of the following, as elected by the defendant:

                         (1) the sum of the dollar amounts of all settlements; or

                         (2) a percentage equal to each settling person's percentage of
        responsibility as found by the trier of fact.

                 (d) An election made under Subsection (c) shall be made by any defendant filing
        a written election before the issues of the action are submitted to the trier of fact and
        when made, shall be binding on all defendants. If no defendant makes this election or if
        conflicting elections are made, all defendants are considered to have elected Subsection
        (c)(1).

Id.

    See also TEXAS CIVIL PRACTICE & REMEDIES CODE, § 33.012 (Vernon 1997 & Supp. 2004-2005).
[Exhibit 21.]

[The subsection (d) that was added by the 1995 act was not amended by the 2003 act, therefore § 33.012
had two subsection (d)’s from 2003 to 2005. This was rectified by the passage of H.B. 2018 in 2005 which
corrected the lettering (see below).]

[NOTE: For the complete legislative history, see CAPITOL R ESEARCH, The Legislative History of
H.B. 4, 78th Leg., R.S. (2003).]




Legislative History of                            Page 5                             Capitol Research Services
Tex. S.B. 890                                                                                    Austin, Texas
79th Leg., R.S. (2005)                                                                          (512)371-1440
                                                                                      2004: Interim Report




2004 – Interim Report
    During the interim between the Regular Sessions of the 78th and 79th Texas Legislatures, the House
Civil Practices Committee completed an interim study and published its recommendations. HOUSE
COMMITTEE ON CIVIL PRACTICES, “Report to the 79th Texas Legislature” (November, 2004). [Exhibit 6.]

   The Civil Practices Committee was charged by the Speaker of the House with monitoring the
implementation of H.B. 4 (2003).

        Charge Two

        Monitor the legislation passed by the 78th Legislature, with a particular emphasis on
        the implementation of and rulemaking for H.B. 4.

    Id. 7.

    The Interim Report recommended

        Settlement Credit

        The settlement credit change in H.B. 4 has created a major problem in multi-defendant
        lawsuits that do not involved medical liability. H.B. 4 rightly abolished the old
        sliding scale settlement credit, but it also eliminated the dollar-for-dollar credit that
        has been an integral part of Texas law for many, many years. H.B. 4 retained the
        dollar-for-dollar credit in medical liability cases, but not for other tort actions. This
        change in the law has put non-settling defendants at a serious disadvantage and in
        many cases will allow claimants to recover more than 100 percent of their damages. It
        also creates substantial conflicts between defendants, encourages collusive settlements,
        and makes it much more difficult to coordinate the defense of mass actions, especially
        in the toxic tort arena.

        The Committee recommends restoring the optional dollar-for-dollar credit and
        allowing the non-settling defendant to elect the appropriate credit after verdict. This
        solution would both preserve the claimant’s recovery and allow defendants the full
        benefit of a settlement before trial.

    Id. 7.




2005— S.B. 890
S.B. 890 Filed
    During the Regular Session of the 79th Texas Legislature, Sen. Williams filed S.B. 890, “An Act
relating to the amount of recovery in a civil action.” Tex. S.B. 890, As Introduced, 79th Leg., R.S. (2005).
[Exhibit 8.]

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Tex. S.B. 890                                                                                  Austin, Texas
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      Section 1 of S.B. 890, As Introduced, amended § 33.012, Texas Civil Practice and Remedies Code.

          Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is not barred from recovery
          under Section 33.001, the court shall reduce the amount of damages to be recovered by
          the claimant with respect to a cause of action by a percentage equal to the claimant’s
          percentage of responsibility.

                  (b) If the claimant has settled with one or more persons, the court shall further
          reduce the amount of damages to be recovered by the claimant with respect to a cause of
          action by [a percentage equal to each settling person’s percentage of responsibility.

                   [(c) Notwithstanding Subsection (b), if the claimant in a health care liability
          claim filed under Chapter 74 has settled with one or more persons, the court shall
          further reduce the amount of damages to be recovered by the claimant with respect to a
          cause of action by] an amount equal to one of the following, as elected by the defendant:

                          (1) the sum of the dollar amounts of all settlements; or

                           (2) a percentage equal to each settling person’s percentage of
          responsibility as found by the trier of fact.

                    (c) [(d)] An election made under Subsection (b) [(c)] shall be made by any
          defendant filing a written election before the issues of the action are submitted to the
          trier of fact and when made, shall be binding on all defendants. If no defendant makes
          this election or if conflicting elections are made, all defendants are considered to have
          elected Subsection (b) [(c)](1).

                  (d) This section shall not apply to benefits paid by or on behalf of an employer
          to an employee pursuant to workers’ compensation insurance coverage, as defined in
          Section 401.011(44), Labor Code, in effect at the time of the act, event, or occurrence
          made the basis of claimant’s suit.

Id. [Underlining indicates added text. Strikeouts indicate deleted text.]

[NOTE: § 33.012, Civil Practice and Remedies Code, contains two Subsection (d)’s due to a drafting
error. One was passed in 1995 (S.B. 28) and the other in 2003 (H.B. 4).

      Section 2 provided for the application of S.B. 890.

          SECTION 2. (a) This Act applies to all actions:

                          (1) commenced on or after the effective date of this Act; or

                          (2) pending on the effective date of this Act and in which the trial, or
          any new trial or retrial following motion, appeal, or otherwise, begins on or after that
          effective date.

                    (b) For an action commenced before the effective date of this Act, a trial, new
          trial, or retrial that is in progress on the effective date is governed by the law
          applicable to the trial, new trial, or retrial immediately before that date, and that
          law is continued in effect for that purpose.

Id.

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      Section 3 provided for the effective date of S.B. 890.

          SECTION 3. This Act takes effect September 1, 2005.

Id.




Senate Committee Hearings on S.B. 890

Public Hearing: March 31

    S.B. 890 was referred to the Senate Committee on State Affairs, which held a public hearing for
the bill on March 31. CAPITOL RESEARCH SERVICES, Hearings on S.B. 890 Before the Senate Committee
on State Affairs, 79th Leg. R.S. (March 31, 2005). [Exhibit 13.]

   Sen. Williams offered a committee substitute for S.B. 890. Id. [NOTE: A substitute is an amendment
which replaces the text of the whole bill.]

      Sen. Williams explained S.B. 890 to the committee.

                  SEN. TOMMY WILLIAMS : The Committee Substitute to Senate Bill 890 – since
          the 1930’s, Texas has recognized that an injured party’s entitled to recover only once for
          an injury. Subsequent to 1987, Chapter 33 allowed the non-settling defendant to elect
          either a dollar-for-dollar credit for all settlements with the plaintiff, or a credit
          based on the percentage of liability assigned to parties by a trier of fact, or statutory
          sliding scale. House Bill 4, the Tort Reform Act of 2003, radically changed this scheme,
          and it eliminated the dollar-for-dollar sliding scale of credit, except for those sued for
          health care liability. Instead non-settling defendants now receive credit only for that
          percentage of fault that a trier of fact assigns to the settling person. Thus, if the jury
          finds no liability for a settling person, the court may not credit any prior settlements
          against the non-settling defendant’s liability.

                                              House Bill 4 created an anomaly in Texas law by
          retaining the dollar-for-dollar credit in medical liability cases, but eliminating it for
          all others. There’s not a policy rationale for this distinction, and the law as it stands
          now creates a privileged class of defendants.

                                             Senate Bill 890 solves the problem by restoring the
          election of the dollar-for-dollar credit, just as in medical liability cases.

                                            The committee substitute language is – has being
          agreed to by the Texas Association of Defense Council and the Texas Civil Justice
          League, and the Texas Trial Lawyer Association, and it removes the election provision
          and allows the percentage equal to each settling person’s percentage responsibility as
          found by the trier of fact that was in the original bill as filed.

                                           Mr. Chairman, I think there are witnesses here that
          would probably be very valuable in trying to answer any questions that you or any of
          the other committee members might have.

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Id.

      Chairman Duncan congratulated Sen. Williams for the agreement embodied in S.B. 890.

                  CHAIR                   : I want to congratulate you on pulling together the
         coalition – in what I think what seems to be a kind of a monumental agreement on
         something that’s always been an issue in civil jurisprudence.

Id.

    David Chamberlain, representing the Texas Association of Defense Counsel, testified in favor of
S.B. 890.

                 DAVID E. CHAMBERLAIN : I’m David Chamberlain, and I’m president of the
         Texas Association of Defense Council, which has over 2100 civil defense lawyers
         practicing in the state every day handling cases of the nature that this bill will affect.
         We’re the largest state association of defense lawyers in the country.

                                              I am here to testify in favor of this bill. As Sen.
         Williams pointed out, we have an anomaly in the system right now. We have
         basically two different systems, one for healthcare liability cases, one for general
         liability cases, or a different one for general liability cases. In the general liability
         cases, currently you can only take a percentage reduction for the negligence in the
         comparative fault of a settling co-defendant. On the other hand, in a medical
         malpractice lawsuit, you get a choice, and that choice is either that percentage
         reduction or a dollar credit. Our experience has been, since September of 2003, from the
         defense perspective, that it creates and encourages the discord and litigation among co-
         defendants, who were faced with the tasks of actually having to prove the negligence
         of what was a friendly – former friendly co-defendant, who has now settled out. And if
         you want to take – you can’t take advantage of whatever they paid the plaintiff to
         reduce the overall judgment. You actually – actually have to prove the only negligent,
         you know, what was once your friend. That creates all sorts of situations and
         opportunities for malpractice, for conflicts of interest, particularly in toxic tort cases
         and multiple party cases. And I can – if the committee is interested, I could certainly
         give examples of that later on.

                                               We feel like that Senator – that Senate Bill 890, the
         substitute, will solve all of these problems. It’ll switch everything over to a very
         simple dollar credit only reduction. It’ll bring uniformity and symmetry to all the cases
         – civil cases. It’ll quiet the discord and litigation among co-defendants. It’ll reduce
         litigation expense considerably. It will take out the gamesmanship, the guessing about
         what’s going to happen when you have to make an election in the health care liability
         field. Everybody’ll know what the deal is going in. We think it’ll greatly facilitate
         settlements. It’ll reduce the opportunity for – for malpractice, which, again, reduces
         subsequent or satellite litigation. And we think quite clearly, that this comes as close
         as humanly possible to achieving the Bradshaw Rule, which we’ve been trying so hard
         to achieve over the past few decades, and that is only one satisfaction for one injury.
         And I want to thank the committee for that opportunity to speak today.

                 CHAIR                 : Does that mean if we pass this bill, that we won’t
         have to endure any more seminar lectures on settlement credit?



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                  CHAMBERLAIN            : Yes, sir. Kirk Watson will be out of business. No more
          lawyers trying to do math, which is – sounds funny, Senator, but lawyers trying to do
          math is a very ugly thing.

                  CHAIR                    : It’s usually lawyers are lawyers because they can’t do
          math, as opposed to doctors, or engineers.

Id.

      Guy Choate, representing the Texas Association of Trial Lawyers, testified in favor of S.B. 890.

                 GUY CHOATE               : I’m Guy Choate, with Texas Trial Lawyers
          Association, and I don’t believe I can say it any better than David said it.

                                               This – this change will provide certainty in the law.
          It’s fairness. Certainly there is the opportunity under the laws that exist today for
          plaintiffs to make essentially a double recovery, if they choose right. It encourages the
          plaintiff a lot of times to settle with the principal defendant, and sometimes just roll
          the dice on one that really don’t have that much exposure, because they don’t have
          that downside risk. This is a fair way to handle this problem. It enhances the
          opportunity and ability of plaintiffs and defendants to settle their litigation without
          the potential for either the plaintiff or the defendant being second-guessed or creating
          malpractice themselves by their conduct. We think this is a good law. We think that
          certainly momentum ought to develop around it, given the fact that the people who
          actually have to do this on a day-by-day basis all feel that this is the best way to
          handle it, and we appreciate the opportunity that the Senator has given us to work
          with him on this bill, because we think that this is a good response to this problem.

                  CHAIR                      : I note in your card that you filed the position in
          opposition to the bill as filed, but I think what you’ve told me now is that you would
          need to change that.

                  CHOATE                   : Yes, on the committee substitute, we’re absolutely in
          favor, and I’m sorry. I wasn’t clear how to do that.

Id.

      Mike Slack, representing the Texas Association of Trial Lawyers, testified in favor of S.B. 890.

                   MIKE SLACK                : Mr. Chairman, Sen. Williams. I’m Mike Slack. I’m a
          past president of TTLA, and regrettably, over the last 20 years, have had far too much
          time invested in dealing with Chapter 33 settlement credit issues, where Texas has
          migrated through some awfully unfortunate waters, resulting in a lot of gamesmanship,
          and resulting in a lot of what I call judicial experimentation gone bad. I think I can
          think of few moments where we have altered our laws that have been more positive
          than the bill, the substitute bill you have in front of you today. This is a very
          significant thing.

                  CHAIR                   : Feel the love. [Laughter.]

                  SLACK                  : Let me tell you, there’s practicing lawyers out there,
          Senator, that have cases they would like to settle that have not been settled, because
          of the existing Chapter 33 impediments. And in talking to David, lawyers have been in

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        a real quandary since House Bill 4 particularly, and litigants have suffered the
        consequences, because settlements have not been occurring. And cases – people are taking
        cases into trial, that ordinarily, those litigants should be free to leave the litigation.
        And as we were talking early in our discussions, it’s not a long bill, and there’s very few
        words you’re actually changing in Chapter 33, but it will be a tremendous benefit for
        predictability, uniformity, and efficient resolution of disputes. And I really – I want to
        commend the committee for taking this, and also, Mr. Chamberlain, in his group for
        their work and insight into historical problems we’ve had with settlement credits.

Id.

   Mike Hull, representing the Texas Alliance for Patient Access, testified against the Committee
Substitute for S.B. 890. Chairman Duncan and Mr. Hull discussed settlement credit examples.

                 MIKE HULL              : My name is Mike Hull. I’m an attorney in private
        practice here in Austin, appearing on behalf of the Texas Alliance for Patient Access. I
        filed a card supporting Senate Bill 890 as filed. We, however, strongly oppose the
        committee substitute.

                                             There’s two reasons for this. One, the election, the
        ability to elect is something that’s very, very important to our clients. It’s really a
        dollar issue for us in healthcare liability claims. We – we are not opposed to the notion
        that everyone should get the election. We are only supportive of the notion that at
        least that we should. In the context of House Bill 4, there were – there are several
        provisions in House Bill 4 relating to, that have an impact on settlement credits that
        we were not entirely comfortable with during the process. And, in fact, the provision
        that this bill addresses was not in the engrossed version on the House side of the House
        Bill 4 at all. We in particular, would not have supported the third party practice, and
        the questions that raises about limitations. And we only ultimately supported of that
        part of the bill when the exception for healthcare and liability claims was inserted
        into House Bill 4 very late in the process in Chairman Nixon’s office when a whole
        bunch of us were there. So, we don’t oppose everyone having the election, we only want
        to attempt to make sure that we keep it.

               CHAIR                   : Why, anecdotally, explain why the election is
        important in a healthcare claim?

                 HULL                    : Any case where we estimate that the sum of the
        settling defendant’s percentage of responsibility, times the jury verdict, will be greater
        than the dollar-for-dollar credit paid by the settling defendant, it is to our advantage
        to take that percent. In any case, conversely, where the dollar-for-dollar credit we
        think will work to our advantage, then we would want to take that. And, so it becomes
        very much a dollar issue for us.

               HULL                      : Under – under proportionate responsibility, as enacted
        in House Bill 4 –

                 HULL                    : Yes.

                 CHAIR                    : Don’t you still get to reduce the liability by the sum of
        the total of the responsible individuals until you get the – unless you’re, well, I mean
        you get – you still get to reduce the reliability under those percentages of responsibility,
        don’t you? Even if they settle?

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                 HULL                       : We would get the – we would get the – under the
        House Bill 4 scenario, we would get the percent, if that’s what we elected, or the
        dollar-for-dollar credit. The two examples I’ve sketched out where it makes a
        difference for us, is that if you assume the two defendants case, where the to-the-jury
        defendant got 40%, the settling defendant got 60%, and the verdict was $700,000 and
        there’s a $500,000 settlement. Then it works to the advantage of the defendant that’s
        tried to elect the dollar – to – to elect the percent credit. But, if on the other hand you
        think that the dollar-for-dollar credit is going to be less than the percent. And in
        particular, it’s a problem for us because there is so many low limit positions. So still, if
        you have a $200,000 defendant, who settles out, who is going to get a much greater
        share, then we end up potentially picking that up depending on where our percent of
        the responsibility falls.

                CHAIR                   : You may have just answered it. But, why would the
        healthcare claims be different than any other multiple defendant case?

                 HULL                     : I don’t know that it is, and that’s why I say, we were
        not really in favor of making it one way or the other exclusively, ever, because we
        think, I mean, I have other than health care clients, myself, and it can be a problem in
        those cases too. So –

                CHAIR                     : Do you agree that, from time to time that the
        possibility of the option or the election causes an impediment to settlement of parties to
        the case?

                 HULL                     : It probably does. I can’t tell you that it never does. I
        really think any way you go. I mean we went – There was testimony about this last
        time. We all have our experience of it. There is an advantage to one party or the other
        depending on the case, under any of these circumstances. If you’re a dollar-for-dollar
        person, and you’re on the plaintiff’s side, you might think it works to your advantage to
        hold out because you can’t get enough. So – there are advantages to one party or the
        other under any scenario that we have been thus far, able to come up with. We would
        just, and if we’re going to re-visit this issue then, there is revisiting the issue of joining
        responsible third parties, which is a looming terrible problem for us. Once you can name
        a defendant against whom limitations has already expired, it raises substantial
        problems. So, unless there is further questions, I’m done.

Id.

   George Scott Christian, representing the Texas Civil justice League, testified in favor of the
Committee Substitute for S.B. 890.

                 GEORGE CHRISTIAN : Thank you, Mr. Chairman. My name is George
        Christian, and I’m an attorney representing the Texas Civil Justice League. We are in
        support of the Committee Substitute for Senate Bill 890 for many of the reasons that
        you’ve already heard. We think that it’s the best overall solution to this problem that
        we’ve really been dealing with since 1987. As you know, Sen. Duncan, we’ve had these
        settlement credits issues repeatedly in the last almost 20 years. And we believe that
        the committee substitute is fair to everyone. I think the dollar-for-dollar credit in the
        vast majority of cases, if not all cases, always squares up the parties, and the plaintiff
        will get as close to one satisfaction rule as possible to do. Everybody gets full credit for
        the dollars that have already been settled. There’s really no gamesmanship involved.
        I agree with a lot of what Mike Hull said, about you know the benefits of an election.

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          Clearly, there is some benefits in certain cases where you do have a low limits
          situation. That is probably true. And – but, nevertheless, we believe that the law ought
          to be the same for all defendants, and for all plaintiffs. We think that this treats
          everybody equally. We think it squares the parties in the end of the day, which is
          what you want to do. And we do think the current system of bifurcated settlement credit
          is not justifiable from a policy standpoint and deters settlements. And that is a serious
          problem. And we would like to see if we can’t get that addressed. And we appreciate
          you and Sen. Williams dealing with this.

Id.

      Chairman Duncan read the names of persons in support of S.B. 890 who did not wish to testify. Id.

      S.B. 890 was left pending. Id.




Public Hearing: April 4

    The Senate Committee on State Affairs held another public hearing for S.B. 890 on April 4.
CAPITOL RESEARCH SERVICES, Hearings on S.B. 890 Before the Senate Committee on State Affairs,
79th Leg. R.S. (April 4, 2005). [Exhibit 14.]

    Chairman Duncan reminded the committee of S.B. 890 and Sen. Williams briefly explained the
bill.

                   CHAIR                   : Members, the Chair pulls up Senate Bill 890, which is
          the settlement credits bill that we heard last week. This is the bill that has an
          agreement between Texas Civil Justice League and the Texas Trial Lawyers Association,
          which moves it to a dollar-for-dollar credit. Sen. Williams, you’re recognized to
          explain the bill.

                   SEN. TOMMY WILLIAMS : Thank you, Mr. Chairman. As you’ve already
          stated, this committee substitute would remove the election provision that allows for
          percentage credit equal to each settling person’s percentage of responsibility as found by
          the trier of fact. The substitute language has been agreed to – to the Texas Association
          of Defense Counsel, the Texas Civil Justice League, and the Texas Trial Lawyers
          Association. And Mr. Chairman, I would move adoption – I move passage of the
          Committee Substitute to Senate Bill 890.

Id.

   The committee favorably reported the Committee Substitute for S.B. 890 on a vote of 6 ayes and no
nays. Id.




Senate Committee Report for S.B. 890

    The committee produced a report for S.B. 890 which contained the text of the bill, the public
hearing witness list, and the fiscal note prepared by the Legislative Budget Board. Tex. S.B. 890,
Senate Committee Report, 79th Tex. Leg., R.S. (2005). [Exhibit 9.]

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79th Leg., R.S. (2005)                                                                        (512)371-1440
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   Section 1 of the Senate Committee Substitute for S.B. 890, As Introduced, further amended § 33.012,
Texas Civil Practice and Remedies Code.

          Sec. 33.012. AMOUNT OF RECOVERY. (a) If the claimant is not barred from recovery
          under Section 33.001, the court shall reduce the amount of damages to be recovered by
          the claimant with respect to a cause of action by a percentage equal to the claimant’s
          percentage of responsibility.

                  (b) If the claimant has settled with one or more persons, the court shall further
          reduce the amount of damages to be recovered by the claimant with respect to a cause of
          action by [a percentage equal to each settling person’s percentage of responsibility.

                   [(c) Notwithstanding Subsection (b), if the claimant in a health care liability
          claim filed under Chapter 74 has settled with one or more persons, the court shall
          further reduce the amount of damages to be recovered by the claimant with respect to a
          cause of action by] an amount equal to [one of the following, as elected by the defendant:

                          [(1)] the sum of the dollar amounts of all settlements[; or

                           [(2) a percentage equal to each settling person’s percentage of
          responsibility as found by the trier of fact].

                   (c) [(d) An election made under Subsection (c) shall be made by any defendant
          filing a written election before the issues of the action are submitted to the trier of fact
          and when made, shall be binding on all defendants. If no defendant makes this election
          or if conflicting elections are made, all defendants are considered to have elected
          Subsection (c)(1).

                  [(d)] This section shall not apply to benefits paid by or on behalf of an employer
          to an employee pursuant to workers’ compensation insurance coverage, as defined in
          Section 401.011(44), Labor Code, in effect at the time of the act, event, or occurrence
          made the basis of claimant’s suit.

Id.

      Section 2 provided for the application of S.B. 890.

          SECTION 2. (a) This Act applies to all actions:

                          (1) commenced on or after the effective date of this Act; or

                          (2) pending on the effective date of this Act and in which the trial, or
          any new trial or retrial following motion, appeal, or otherwise, begins on or after that
          effective date.

                    (b) For an action commenced before the effective date of this Act, a trial, new
          trial, or retrial that is in progress on the effective date is governed by the law
          applicable to the trial, new trial, or retrial immediately before that date, and that
          law is continued in effect for that purpose.

Id.

      Section 3 provided for conflict of laws.

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          SECTION 3. To the extent of any conflict, this Act prevails over another Act of the 79th
          Legislature, Regular Session, 2005, relating to nonsubstantive additions to and
          corrections in enacted codes.

Id.

      Section 4 provided for the effective date. It was modified to allow immediate effect of the bill.

          SECTION 4. This Act takes effect immediately if it receives a vote of two-thirds of all
          the members elected to each house, as provided by Section 39, Article III, Texas
          Constitution. If this Act does not receive the vote necessary for immediate effect, this
          Act takes effect September 1, 2005.

Id.




Bill Analysis

     The Senate Committee Report contained a bill analysis prepared by the Senate Research Center.
Id. [SENATE RESEARCH CENTER, Bill Analysis for S.B. 890 – Committee Report (Substituted) (April 5,
2005)]

      The bill analysis reviewed the background and purpose of the bill.

          AUTHOR’S/SPONSOR’S STATEMENT OF INTENT

          Since the 1930s, Texas has recognized that an injured party is entitled to recover only
          once for an injury. (Bradshaw v. Baylor, 126 Tex. 99, 101; 84 S.W.2d 703, 704 (1935)). The
          “one-satisfaction” rule was codified by the Legislature in Chapter 33, Civil Practice
          and Remedies Code, in 1987. Subsequent to the 1987 amendments, Chapter 33 allowed a
          non-settling defendant to elect either a dollar-for-dollar credit for all settlements with
          the plaintiff, a credit based on the percentage of liability assigned to the parties by
          the trier of fact, or a statutory sliding scale. H.B. 4, the tort reform measure enacted by
          the 78th Legislature, Regular Session, 2003, radically changed this scheme. It
          eliminated the election of the dollar-for-dollar or sliding scale credit, except for those
          sued for health care liability. Instead, non-settling defendants now receive credit only
          for that percentage of fault that a trier of fact assigns to a settling person. Thus, if a jury
          finds no liability for a settling person, the court may not credit any prior settlements
          against the non-settling defendant’s liability.

          The settlement credit scheme created by H.B. 4 eliminates the one-satisfaction rule
          that has been part of Texas law for more than 70 years, except in medical liability
          cases. This creates the potential for unjust windfalls for plaintiffs, who can now recover
          far in excess of their total damages. This problem is acute in lawsuits involving
          multiple defendants. For example, if a plaintiff sues ten defendants for $1 million in
          damages, and nine defendants settle for $100,000 each, the plaintiff collects $900,000 in
          settlements. If a jury then finds little or no liability for the settling defendants, the
          tenth defendant is liable for the full $1 million. The plaintiff thus recovers $1.9
          million, despite being awarded only $1 million in damages. This unjustly enriches the
          plaintiff and penalizes the defendant who went to trial.



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         Eliminating the dollar-for-dollar credit also creates the potential for collusive
         settlements. For example, a defendant could agree to settle a claim at trial for less by
         agreeing with the plaintiff to wait to settle until after all sides have rested their
         cases. It would then be far too late for non-settling defendants to introduce evidence of
         the settling defendant’s proportionate responsibility. Such collusion not only
         undermines the purpose of Texas’ proportionate responsibility law, which is designed
         to ensure that parties only pay for their proportionate share of the plaintiff’s harm,
         but it discourages defendants who believe they have little or no liability from trying
         the lawsuit to a jury. Current law thus undermines the jury system and will vastly
         increase the cost of litigation, especially in the mass tort arena.

         Finally, H.B. 4 created an anomaly in Texas law by retaining the dollar-for-dollar
         credit in medical liability cases but eliminating it in all others. There is no policy
         rationale for this distinction. The law as it now stands creates a privileged class of
         defendants.

         C.S.S.B. 890 restores the election of the dollar-for-dollar credit, just as in medical
         liability cases.

Id.

      The analysis reviewed the rulemaking authority delegated by the bill. Id.

      The analysis also summarized each section of the bill.

         SECTION BY SECTION ANALYSIS

         SECTION 1. Amends Section 33.012, Civil Practice and Remedies Code, as amended by
         Chapter 136, Acts of the 74th Legislature, Regular Session, 1995, and Chapter 204, Acts
         of the 78th Legislature, Regular Session, 2003, to delete existing text requiring the court
         to further reduce the amount of damages to be recovered by a claimant who has settled
         with one or more persons. Deletes text of existing Subsection (d) relating to a binding
         election made under Subsection (c). Makes conforming changes.

         SECTION 2. Makes application of this Act prospective.

         SECTION 3. Provides that, to the extent of any conflict, this Act prevails over another
         Act of the 79th Legislature, Regular Session, 2005, relating to nonsubstantive additions
         to and corrections in enacted codes.

         SECTION 4. Effective date: upon passage or September 1, 2005.

Id.




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Tex. S.B. 890                                                                                   Austin, Texas
79th Leg., R.S. (2005)                                                                         (512)371-1440
                                                                    205: Senate Floor Debates on S.B. 890




Senate Floor Debate on S.B. 890

Second Reading: April 13

    On April 13, S.B. 890 was considered on the Senate floor. CAPITOL RESEARCH SERVICES, Debate on
S.B. 890 On the Floor of the Senate (Second and Third Readings), 79th Leg. R.S. (April 13, 2005).
[Exhibit 15.]

      Sen. Williams briefly explained the bill to the Senate.

                  SEN. TOMMY WILLIAMS : Thank you, Mr. President. I move to suspend the
          Senate’s regular order of business and take up and consider the Committee Substitute to
          Senate Bill 890. At this time, Members, this is the settlement credits bill that I have
          been discussing with Members on the floor today. Mr. President, I – I move to suspend
          the regular order of business.

Id.

    The normal procedure for bringing up a bill on the Senate floor on second reading is for the sponsor to
briefly explain the bill and then move to suspend the regular order of business. Sen. Williams moved to
suspend . The motion to suspend prevailed. Id.

      S.B. 890 passed on second reading without further discussion. Id.




Third Reading: April 13

     Normally the Senate hears bills on second and third readings on the same day. Since Art. III, § 32
of the Texas Constitution requires readings of bills on three separate days, the Constitution must be
suspended. Sen. Williams moved that the constitutional three-day rule be suspended. The motion
prevailed on a record vote. CAPITOL RESEARCH SERVICES, Debate on S.B. 890 On the Floor of the
Senate (Second and Third Readings), 79th Leg. R.S. (April 13, 2005). [Exhibit 15.]

      S.B. 890 passed on third reading. Id. See also S.J. of Tex., 79th Leg., R.S. 972-973 (2005). [Exhibit 19.]




House Committee Hearings on S.B. 890

Formal Meeting: May 13

    S.B. 890 crossed over to the House where it was referred to the House Civil Practices Committee.
The committee did not hold a public hearing for S.B. 890. A formal meeting was held instead. Tex.
S.B. 890, 79th Leg., R.S., Master Bill History Report (2005). [Exhibit 7.]

[NOTE: No testimony is taken at formal meetings and they are not tape recorded.]

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Tex. S.B. 890                                                                                     Austin, Texas
79th Leg., R.S. (2005)                                                                           (512)371-1440
                                                              205: House Committee Hearings on S.B. 890


      The committee favorably reported a committee substitute for S.B. 890. Id.

[NOTE: A substitute is an amendment which replaces the entire bill.]




House Committee Report

    The committee prepared a report which included the text of the committee substitute, the
committee’s bill analysis, and the fiscal notes. Tex. S.B. 890, House Committee Report, 79th Leg., R.S.
(2005). [Exhibit 10.]

   Section 1 of the House Committee Substitute made further changes to § 33.012, Civil Practice and
Remedies Code. Only Subsection (b) was amended.

          SECTION 1. Subsection (b), Section 33.012, Civil Practice and Remedies Code, is
          amended to read as follows:

                   (b) If the claimant has settled with one or more persons, the court shall further
          reduce the amount of damages to be recovered by the claimant with respect to a cause of
          action by the sum of the dollar amounts of all settlements [a percentage equal to each
          settling person’s percentage of responsibility.

Id.

      Section 2 provided for the application of S.B. 890.

          SECTION 2. (a) This Act applies to all actions:

                          (1) commenced on or after the effective date of this Act; or

                          (2) pending on the effective date of this Act and in which the trial, or
          any new trial or retrial following motion, appeal, or otherwise, begins on or after that
          effective date.

                    (b) For an action commenced before the effective date of this Act, a trial, new
          trial, or retrial that is in progress on the effective date is governed by the law
          applicable to the trial, new trial, or retrial immediately before that date, and that
          law is continued in effect for that purpose.

Id.

      There was no section providing for conflict of laws. Id.

      Section 3 provided for the effective date. It allowed immediate effect of the bill.

          SECTION 4. This Act takes effect immediately if it receives a vote of two-thirds of all
          the members elected to each house, as provided by Section 39, Article III, Texas
          Constitution. If this Act does not receive the vote necessary for immediate effect, this
          Act takes effect September 1, 2005.

Id.

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79th Leg., R.S. (2005)                                                                          (512)371-1440
                                                               205: House Committee Hearings on S.B. 890


Bill Analysis

    The House committee prepared a bill analysis which reviewed the background and purpose of the
bill.

          BACKGROUND AND PURPOSE

          H.B. 4, the tort reform measure enacted by the 78th Legislature, Regular Session,
          changed the settlement credit scheme used for decades in the state. It eliminated the
          election of the dollar-for-dollar or sliding scale credit, except for those sued for health
          care liability. Instead, non-settling defendants now receive credit only for that
          percentage of fault that a trier of fact assigns to a settling person. Thus, if a jury finds no
          liability for a settling person, the court may not credit any prior settlements against the
          non-settling defendant's liability.

          CSSB 890 restores the dollar-for-dollar settlement credit in civil actions, while
          maintaining current law for health care liability claims.

Id. Bill Analysis.

      The analysis reviewed the rulemaking authority granted by S.B. 890. Id.

      The analysis summarized each section of the bill and noted the effective date.

          ANALYSIS

          CSSB 890 amends Section 33.012(b), Civil Practice and Remedies Code, by adding "the
          sum of the dollar amounts of all settlements" and striking "a percentage equal to each
          settling person's percentage of responsibility".

          EFFECTIVE DATE

          Upon passage, or, if it the Act does not receive the necessary vote, the Act takes effect
          September 1, 2005.

Id.

      The analysis also compared the “original” (S.B. 890 as filed) to the committee substitute.

          COMPARISON OF ORIGINAL TO SUBSTITUTE

          C.S.S.B. 890 differs from the original by restoring the current election of credit in
          health care liability cases. The substitute continues current law for health care
          liability claims, while restoring the dollar-for-dollar settlement credit in other civil
          actions.

Id.

      Lastly, the analysis explained the actions of the committee. Id.




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79th Leg., R.S. (2005)                                                                            (512)371-1440
                                                            205: House Committee Hearings on S.B. 890


House Research Organization Report

    The House Research Organization (HRO) also reviewed the bill. HRO is an agency of the Texas
House which analyzes bills that come to the House floor for debate. HOUSE RESEARCH
O RGANIZATION, S.B. 890 Bill Analysis (May 23, 2005). [Exhibit 20.]

      The HRO analysis noted the subject of S.B. 890.

         SUBJECT:

         Dollar-for-dollar credit against amount of recovery in most civil actions

Id.

      The HRO analysis reviewed the background of S.B. 890 and summarized its provisions.

         BACKGROUND:

         Civil Practice and Remedies Code, sec. 33.012, states that if a plaintiff settles with one
         or more defendants and goes to trial against any other defendant, then any amount the
         plaintiff is awarded against the defendant at trial must be reduced by a percentage
         equal to each settling party’s percentage of responsibility. Defendants in health care
         liability claims may choose to have the amount t hey owe to the plaintiff reduced by
         either a percentage equal to each settling party’s percentage of responsibility or by the
         total dollar sum of all settlements.

         DIGEST:

         SB 890 would amend sec. 33.012 to change the amount that an award against a
         defendant could be reduced from a percentage credit based on a party's responsibility to
         a dollar-for-dollar credit based on the sum of all settlements. Defendants in health
         care liability cases still could choose their reduction method.

         The bill would take immediate effect if finally passed by a two –thirds record vote of
         the membership of each house. Otherwise, it would take effect September 1, 2005. The
         bill would apply to all actions commenced on or after the effective date, or pending on
         the effective date and in which the trial or any new trial or retrial begins on or after
         the effective date. For actions commenced before the effective date, the former law
         would continue in effect for any trial, new trial, or retrial in progress on the effective
         date.

Id.

      The HRO analysis reviewed the arguments of the supporters and opponents of the bill.

         SUPPORTERS SAY:

         Requiring a dollar-for-dollar reduction of damage awards would be more fair.
         Plaintiffs are limited by law to only one full recovery, but under sec. 33.012 they are
         sometimes able to recover more than the amount authorized by the judge or jury. This
         could happen in a case where the plaintiff settled with defendant A and went to trial
         with defendant B, but the court found that defendant A was not responsible. The
         plaintiff would have collected from defendant A and would be entitled to a full
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Tex. S.B. 890                                                                                  Austin, Texas
79th Leg., R.S. (2005)                                                                        (512)371-1440
                                                               205: House Committee Hearings on S.B. 890


           recovery against defendant B because defendant A’s responsibility was zero percent, so
           defendant B could not take a reduction. Requiring a dollar-for-dollar reduction would
           decrease the amount defendant B had to pay the plaintiff by the amount that
           defendant A already had paid. This could ensure that the plaintiff received only one
           recovery and no more.

           Requiring dollar-for-dollar credits also would reduce litigation between co-defendants
           seeking to avoid having to pay part of the recovery to the plaintiff because the dollar-
           for-dollar system is straightforward and not capable of being abused or manipulated by
           any co-defendant.

           OPPONENTS SAY:

           There is no reasonable basis for defendants in health care liability cases to have a
           choice between a dollar-for-dollar credit and a percentage credit. For the sake of
           fairness and consistency, all defendants should be subject to the dollar-for-dollar credit,
           with no type of defendant receiving special treatment.

Id.

       The HRO analysis also contained a notes section.

           NOTES:

           The Senate-passed version would have applied the dollar-for-dollar credit to all
           defendants, including defendants in health care liability cases.

Id.




House Floor Debate on S.B. 890

Second Reading: May 24

    S.B. 890 came before the House on May 24. CAPITOL RESEARCH SERVICES, Debate on S.B. 890 On
the Floor of the House (Second Reading), 79th Leg. R.S. (May 24, 2005). [Exhibit 16.]

       Rep. Nixon briefly explained the bill.

                    REP. JOE NIXON         : Mr. Speaker, Members, this alters the settlement
           credits from a percentage of a defendant’s liability to a sum of the dollar amount of all
           settlements. Move passage.

Id.

       S.B. 890 was passed on second reading. Id. See also H.J. of Tex., 79th Leg., R.S. 4213 (2005). [Exhibit
21.]




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Tex. S.B. 890                                                                                     Austin, Texas
79th Leg., R.S. (2005)                                                                           (512)371-1440
                                                                   205: House Floor Debate on S.B. 890


Third Reading: May 25

     The next day S.B. 890 was laid out on third reading. CAPITOL RESEARCH SERVICES, Debate on
S.B. 890 On the Floor of the House (Third Reading), 79th Leg. R.S. (May 25, 2005). [Exhibit 17.]

      Rep. Nixon reminded the members of the bill.

                 REP. JOE NIXON           : This is – this settlement credit bill we passed
         yesterday. Move passage.

Id.

    S.B. 890 passed on third reading on a record vote of 142 ayes and no nays. Id. See also H.J. of Tex.,
79th Leg., R.S. 4476-4477 (2005). [Exhibit 21.]




Senate Concurrence on S.B. 890: May 27
     S.B. 890 returned to the Senate for approval of the amendments added by the House. On May 27,
S.B. 890 with the House amendments came before the Senate. CAPITOL RESEARCH SERVICES, Debate on
S.B. 890 On the Floor of the Senate (House Amendments), 79th Leg. R.S. (May 27, 2005). [Exhibit 18.]

      Sen. Williams explained the House amendments.

                  SEN. TOMMY WILLIAMS : Thank you, Mr. President. I move that we concur in
         the House Amendments to Senate Bill 890. Members, the House made one small change
         to Senate Bill 890. It satisfied the concerns of the health care industry which were
         raised when the Senate Bill removed a provision they currently enjoy in medical
         liability cases. All this bill does is switch from a percentage equal to each settling
         person’s responsibility to a dollar-for-dollar settlement credit. I move that we concur on
         Senate Bill 890.

Id.

    The motion to concurred prevailed by a vote of 29 ayes to no nays. Id. S.J. of Tex., 79th Leg., R.S.
4119-4120 (2005). [Exhibit 19.]

S.B. 890 Signed by the Governor
    The bill was sent to Gov. James Richard (Rick) Perry, who signed the bill on June 9. Since the bill
had been passed by both chambers by a two-thirds majority, the bill was effective immediately. Tex.
S.B. 890, 79th Leg., R.S., Master Bill History (2005). [Exhibit 7.]

[NOTE: Sec. 39 of Article 3 of the Texas Constitution governs the effective date of legislation.

         Section 39. Time of taking Effect of Laws; Emergencies; Entry on Journal.

         No law passed by the Legislature, except the general appropriations act, shall take
         effect or go into force until ninety days after the adjournment of the session at which it
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79th Leg., R.S. (2005)                                                                          (512)371-1440
                                                                  205: S.B. 890 Signed by the Governor


        was enacted, unless the Legislature shall, by a vote of two-thirds of all the members
        elected to each House, otherwise direct; said vote to be taken by yeas and nays, and
        entered upon the journals.

Texas Constitution, § 39, Art. 3.




S.B. 890: Session Law
    The final version of S.B. 890 was published in the session laws.

        SECTION 1. Subsection (b), Section 33.012, Civil Practice and Remedies Code, is
        amended to read as follows:

                 (b) If the claimant has settled with one or more persons, the court shall further
        reduce the amount of damages to be recovered by the claimant with respect to a cause of
        action by the sum of the dollar amounts of all settlements [a percentage equal to each
        settling person’s percentage of responsibility].

        SECTION 2. (a) This Act applies to all actions:

                         (1) commenced on or after the effective date of this Act; or

                        (2) pending on the effective date of this Act and in which the trial, or
        any new trial or retrial following motion, appeal, or otherwise, begins on or after that
        effective date.

                  (b) For an action commenced before the effective date of this Act, a trial, new
        trial, or retrial that is in progress on the effective date is governed by the law
        applicable to the trial, new trial, or retrial immediately before that date, and that
        law is continued in effect for that purpose.

        SECTION 3. This Act takes effect immediately if it receives a vote of two-thirds of all
        the members elected to each house, as provided by Section 39, Article III, Texas
        Constitution. If this Act does not receive the vote necessary for immediate effect, this
        Act takes effect September 1, 2005.

Act of May 27, 2005, 79th Leg., R.S., ch. 277, 2005 Tex. Gen. Laws, 770. [Exhibit 22.]




S.B. 890: Enrolled Bill Analysis
   The Senate Research Center prepared a bill analysis for the final version of S.B. 890. SENATE
RESEARCH CENTER, Bill Analysis for S.B. 890 – Enrolled (June 2, 2005). [Exhibit 12.]

    The bill analysis reviewed the background and purpose of the bill.

        AUTHOR’S/SPONSOR’S STATEMENT OF INTENT



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                                                                    205: H.B. 890 Signed by the Governor


         Since the 1930s, Texas has recognized that an injured party is entitled to recover only
         once for an injury. (Bradshaw v. Baylor, 126 Tex. 99, 101; 84 S.W.2d 703, 704 (1935)). The
         “one-satisfaction” rule was codified by the Legislature in Chapter 33, Civil Practice
         and Remedies Code, in 1987. Subsequent to the 1987 amendments, Chapter 33 allowed a
         non-settling defendant to elect either a dollar-for-dollar credit for all settlements with
         the plaintiff, a credit based on the percentage of liability assigned to the parties by
         the trier of fact, or a statutory sliding scale. H.B. 4, the tort reform measure enacted by
         the 78th Legislature, Regular Session, 2003, radically changed this scheme. It
         eliminated the election of the dollar-for-dollar or sliding scale credit, except for those
         sued for health care liability. Instead, non-settling defendants now receive credit only
         for that percentage of fault that a trier of fact assigns to a settling person. Thus, if a jury
         finds no liability for a settling person, the court may not credit any prior settlements
         against the non-settling defendant’s liability.

         The settlement credit scheme created by H.B. 4 eliminates the one-satisfaction rule
         that has been part of Texas law for more than 70 years, except in medical liability
         cases. This creates the potential for unjust windfalls for plaintiffs, who can now recover
         far in excess of their total damages. This problem is acute in lawsuits involving
         multiple defendants. For example, if a plaintiff sues ten defendants for $1 million in
         damages, and nine defendants settle for $100,000 each, the plaintiff collects $900,000 in
         settlements. If a jury then finds little or no liability for the settling defendants, the
         tenth defendant is liable for the full $1 million. The plaintiff thus recovers $1.9
         million, despite being awarded only $1 million in damages. This unjustly enriches the
         plaintiff and penalizes the defendant who went to trial.

         Eliminating the dollar-for-dollar credit also creates the potential for collusive
         settlements. For example, a defendant could agree to settle a claim at trial for less by
         agreeing with the plaintiff to wait to settle until after all sides have rested their
         cases. It would then be far too late for non-settling defendants to introduce evidence of
         the settling defendant’s proportionate responsibility. Such collusion not only
         undermines the purpose of Texas’ proportionate responsibility law, which is designed
         to ensure that parties only pay for their proportionate share of the plaintiff’s harm,
         but it discourages defendants who believe they have little or no liability from trying
         the lawsuit to a jury. Current law thus undermines the jury system and will vastly
         increase the cost of litigation, especially in the mass tort arena.

         Finally, H.B. 4 created an anomaly in Texas law by retaining the dollar-for-dollar
         credit in medical liability cases but eliminating it in all others. There is no policy
         rationale for this distinction. The law as it now stands creates a privileged class of
         defendants.

         S.B. 890 restores the election of the dollar-for-dollar credit, just as in medical liability
         cases.

Id.

      The analysis reviewed the rulemaking authority delegated by the bill. Id.

      The analysis also summarized each section of the bill.

         SECTION BY SECTION ANALYSIS



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79th Leg., R.S. (2005)                                                                           (512)371-1440
                                                                 205: H.B. 890 Signed by the Governor


         SECTION 1. Amends Section 33.012(b), Civil Practice and Remedies Code, to reduce the
         amount of damages to be recovered by a claimant who has settled with one or more
         persons.

         SECTION 2. Makes application of this Act prospective.

         SECTION 3. Effective date: upon passage or September 1, 2005.

Id.




S.B. 890: Enrolled Summary
      Texas Legislature On-Line published a summary of the final version of S.B. 890.

         Legislative Session: 79(R)

         SENATE BILL 890                                         SENATE AUTHOR: Williams

         EFFECTIVE: 6-9-05                                       HOUSE SPONSOR: Nixon

         Senate Bill 890 amends the Civil Practice and Remedies Code to provide that if the
         claimant in a personal injury case has settled with one or more persons, the court shall
         further reduce the amount of damages to be recovered by the claimant by the sum of the
         dollar amounts of all settlements. The bill also eliminates the option to reduce the
         amount of damages by a percentage equal to each settling person's percentage of
         responsibility.

TEXAS LEGISLATURE ON-LINE, Tex. S.B. 890, Enrolled Summary, 79th Leg., R.S. (205)
(Available at: http://www.capitol.state.tx.us/BillLookup/BillSummary.aspx?LegSess
=79R&Bill=SB890). [Exhibit 23.]




2005 — H.B. 2018
    Also in 205, the 79th Legislature enacted H.B. 2018, “An Act relating to relating to nonsubstantive
additions to and corrections in enacted codes, to the nonsubstantive codification or disposition of various
laws omitted from enacted codes, and to conforming codifications enacted by the 78th Legislature to
other Acts of that legislature.” Act of May 24, 2005, 79th Leg., R.S., ch. 728, 2005 Tex. Gen. Laws, 2188.
[Exhibit 24.]

   Section 23.001 of H.B. 2018 renumbered sections and subsections that had been incorrectly numbered
and corrected the two Subsection (d)’s in § 33.012, Civil Practice and Remedies Code.

         SECTION 23.001. The following provisions of enacted codes are renumbered or
         relettered and appropriate cross-references are changed to eliminate duplicate
         citations or to relocate misplaced provisions:

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Tex. S.B. 890                                                                                 Austin, Texas
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                                                                                           2005: H.B. 2018


        ….

        (6) Subsection (d), Section 33.012, Civil Practice and Remedies Code, as added by
        Chapter 136, Acts of the 74th Legislature, Regular Session, 1995, is relettered as
        Subsection (e), Section 33.012, Civil Practice and Remedies Code.

Id. § 23.001.




Current Law (2007)
    Sec. 33.012, Civil Practice and Remedies Code currently states:

        § 33.012. Amount of Recovery

                 (a) If the claimant is not barred from recovery under Section 33.001, the court
        shall reduce the amount of damages to be recovered by the claimant with respect to a
        cause of action by a percentage equal to the claimant's percentage of responsibility.

                (b) If the claimant has settled with one or more persons, the court shall further
        reduce the amount of damages to be recovered by the claimant with respect to a cause of
        action by the sum of the dollar amounts of all settlements.

                 (c) Notwithstanding Subsection (b), if the claimant in a health care liability
        claim filed under Chapter 74 has settled with one or more persons, the court shall
        further reduce the amount of damages to be recovered by the claimant with respect to a
        cause of action by an amount equal to one of the following, as elected by the defendant:

                         (1) the sum of the dollar amounts of all settlements; or

                         (2) a percentage equal to each settling person's percentage of
        responsibility as found by the trier of fact.

                 (d) An election made under Subsection (c) shall be made by any defendant filing
        a written election before the issues of the action are submitted to the trier of fact and
        when made, shall be binding on all defendants. If no defendant makes this election or if
        conflicting elections are made, all defendants are considered to have elected Subsection
        (c)(1).

                (e) This section shall not apply to benefits paid by or on behalf of an employer
        to an employee pursuant to workers' compensation insurance coverage, as defined in
        Section 401.011(44), Labor Code, in effect at the time of the act, event, or occurrence
        made the basis of claimant's suit.

Texas Civil Practice and Remedies Code, § 33.012 (Vernon 1997 & Supp. 2007). [Exhibit 25.]




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Tex. S.B. 890                                                                                   Austin, Texas
79th Leg., R.S. (2005)                                                                         (512)371-1440
                                                                                 Location of Documents



                         LOCATION OF DOCUMENTS
   The original documents compiled in this report can be found in several locations at the Texas
Capitol Complex.

Legislative Reference Library (LRL)
  Texas Capitol Building, 2nd Floor, Austin, Texas 78701
  (512) 462-1252

    The LRL is the repository for the official file for bills that have been considered by the Legislature
since 1973. (Bills from 1836 to 1972 are stored at the State Archives.) These files include the various
versions of the bill, floor amendments, and bill analyses. In addition, the LRL maintains copies of
House and Senate committee interim reports and other documents produced by the Texas Legislature and
Texas state agencies.

Texas House of Representatives Video/Audio Services Department
 John H. Reagan Bldg., Room 330
 105 West 15th St., Austin, Texas 78701
 (512) 463-0920

   This office maintains the original copies of tape recordings of the proceedings of the Texas House
and its committees from 1973 to the present. It also maintains copies of committee minutes.

Texas Senate Staff Services
 Sam Houston Bldg., Room 175
 201 East 14th St., Austin, Texas 78701
 (512) 463-0430

    This office maintains the original copies of tape recordings of the proceedings of the Texas Senate
and its committees for the last three sessions. (The remaining Senate tapes are at the State Library.) It
also maintains copies of committee minutes that are extant from 1973 to the present. This office
maintains copies of transcripts for Senate proceedings which have been transcribed from 1973 to the
present.

Texas State Library and Archives
 Lorenzo De Zavala Library & Archives Bldg.
 1201 Brazos St., Austin, Texas 78701
 Reference Room: (512) 463-5455
 Archives: (512) 463-5480

     The State Archives (1st floor) is the repository for the official files for bills that have been
considered by the Legislature from the First Congress in 1836 until the 62nd Legislature in 1971–72.
(Bills enacted since 1973 are stored at the Legislative Reference Library.)

    The Reference Room (Room 300, 3rd floor) is the repository for original copies of tape recordings of
proceedings of the Texas Senate and its committees since 1973, except the last three sessions (which are
at the Senate Staff Services).




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