2-03 - Addendum -- AIA-B101-2017 Owner-Architect (1-7-22).pdf

McKinney PROJECT NAME Addendum to AIA B101 - 2017 Page 1 of 42

ADDENDUM to the Standard Form of Agreement Between Owner and Architect

AIA Document B101 - 2017

This Addendum to the Standard Form of Agreement Between Owner and Architect, AIA Document B101 - 2017 (“Addendum”), is entered into this ____ day of __________, 20___, by and between _______________________ (“Architect”) and the City of McKinney, Texas, (the “Owner”). This Addendum is entered into to delete from, amend, replace, modify, add to, and/or supplement the Standard Form of Agreement Between Owner and Architect, AIA Document B101 - 2017 (the “Agreement”), as set forth herein below.

W I T N E S S E T H:

WHEREAS, the Owner and Architect desire to enter into the Agreement for the design and construction of the PROJECT NAME in the City of McKinney, Texas;

and

WHEREAS, the Owner and Architect desire to clarify and revise certain of the terms and provisions contained in the Agreement; and

WHEREAS, the Owner and Architect would not enter into the Agreement save and except for the clarifications and revisions contained herein; NOW

THEREFORE,

FOR AND IN CONSIDERATION of the covenants, duties and obligations herein contained together with the covenants, duties and obligations contained in the Agreement, the parties do mutually agree that except as provided for below, all other terms and conditions of the Agreement shall remain unchanged and in full force and effect. In the event of any conflict or inconsistency between the provisions set forth in this Addendum and the Agreement, this Addendum shall govern and control. In consideration of the foregoing, and for other good and valuable consideration, the parties agree to modify the Agreement as follows:

I.

The following amendments, modifications, replacements, additions, and/or deletions are hereby made to those Sections and Articles of the Agreement identified herein below as follows:

1. Section 1.1 is hereby amended by deleting said provision in its entirety and replacing such provision with the following provision:

§ 1.1 This Agreement is based on the Initial Information set forth in this Section 1.1 together with any and all materials and information provided by Owner to Architect in Owner’s selection process with Architect.

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General Reference Note. Please note that where the term “Contractor” is used throughout the Agreement and this Addendum it shall be replaced with the phrase “Construction Manager at Risk (“CMAR”).”

2. Section 1.1.3 is hereby deleted in its entirety.

3. Section 1.1.5 is hereby amended by adding the following provision immediately after the parenthetical:

The primary procurement and delivery method that the Owner will use for the Project is the Construction Manager at Risk method in strict accordance with Section 2269.251, et seq. of the Texas Government Code through either a one-step or two-step process.

4. Sections 1.1.6 and 1.1.6.1 are hereby deleted in their entirety.

5. Section 1.2 is hereby amended by deleting said provision in its entirety and

§ 1.2 The Owner and Architect may rely on the Initial Information. Both parties, however, recognize that such information may materially change. In the event of a material change the Owner and the Architect may, if approved in advance and in writing by the Owner, adjust the schedule, the Architect’s services and the Architect’s compensation, which adjustments shall not be unreasonably withheld or delayed.

The Owner may also adjust the Owner’s budget for the Cost of the Work and the Owner’s anticipated design and construction milestones, as necessary, to accommodate material changes in the Initial Information. Owner shall also provide to Architect, prior to commencement of Construction Documents, a copy of Owner’s minimum standards for construction materials, equipment and component systems that must be met by the Project.

6. Section 1.3 is hereby amended by deleting the last sentence of that section in its entirety.

7. Section 1.3.1 is hereby amended by deleting the phrase “in AIA Document E203™- 2013 Building Information Modeling and Digital Data Exhibit, and the requisite AIA Document G202™ 2013, Project Building Information Modeling Protocol Form” and replacing said language with the phrase “in this Agreement.”

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8. Section 2.1 is hereby amended by adding the following sentences to the end of said Section:

Notwithstanding the foregoing, Architect is not authorized to hire other design professionals unless doing so was expressly included in the scope of this Agreement, or this Agreement is appropriately modified by Change Order executed in writing in advance by the Parties to this Agreement to include the hiring of other expressly identified design professionals. The Architect shall also satisfy the requirements for the lawful practice of architecture in the State of Texas.

9. Section 2.2 is hereby amended by deleting said provision in its entirety and

§ 2.2 The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects, both public and private, practicing in the same or similar locality under the same or similar circumstances including but not limited to the exercise of reasonable, informed judgments and prompt, timely action. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. If Architect is representing that it has special expertise in one or more areas to be utilized in this Contract, then Architect agrees to perform those special expertise services to the appropriate local, regional and national professional standards.

10. Section 2.3 is hereby amended by adding the following paragraph.

Architect hereby designates ________________________ as Architect’s representative(s) for all matters for the Architect under this Agreement and with respect to the Services to be performed by Architect for Owner. Architect’s Representative(s) shall be available to Owner at all reasonable times for consultation with Owner’s Representatives. Owner may conclusively rely on the decisions made by Architect’s Representative(s), including those which modify this Agreement. Architect’s Representative(s) and its principal architects working on the Project (collectively the “Project Team”), and any persons selected to replace them, must be reasonably satisfactory to Owner and the Owner may request the removal of any or all of them upon ten (10) days’ written notice to Architect. So long as the members of the Project Team remain employed by the Architect, the Architect may not

Addendum to AIA B101 - 2017 Page 4 of 42 remove or replace members of the Project Team without providing Owner at least forty-five (45) days’ advance written notice. New or replacement members of the Project Team must be qualified and have adequate experience with similar projects and be reasonably acceptable to Owner.

11. Section 2.4 is hereby amended by deleting the phrase “reasonably appear to” from the second line of said Section.

12. Section 2.5, including Subsections 2.5.1 through 2.5.8 are hereby amended by deleting said section and subsections in their entirety and replacing such section and subsections with the following provisions:

§ 2.5 Before commencing work, the Architect shall, at its own expense, procure, pay for and maintain the following insurance written by companies approved by the State of Texas and acceptable to the City of McKinney. The Architect shall maintain the following insurance for the duration of this Agreement. The Architect shall furnish to the City of McKinney Purchasing Manager certificates of insurance executed by the insurer or its authorized agent stating coverages, limits, expiration dates and compliance with all applicable required provisions. Certificates shall reference the project/contract number and be addressed as follows:

City of McKinney Attn: Tracey Epps PO Box 517 McKinney, Texas 75070 Or email to:

tepps@mckinneytexas.org

§ 2.5.1 Commercial General Liability insurance, including, but not limited to Premises/Operations, Personal & Advertising Injury, Products/Completed Operations, Independent Contractors and Contractual Liability, with minimum combined single limits of $1,000,000 per-occurrence, $1,000,000 Products/Completed Operations Aggregate and $1,000,000 general aggregate. Coverage must be written on an occurrence form. The General Aggregate shall apply on a per project basis.

§ 2.5.2 Business Automobile Liability insurance covering owned, hired and non-owned vehicles, with a minimum combined bodily injury and property damage limit of $1,000,000 per occurrence.

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§ 2.5.3 Workers’ Compensation insurance with statutory limits; and Employers’ Liability coverage with minimum limits for bodily injury: a) by accident, $100,000 each accident, b) by disease, $100,000 per employee with a per policy aggregate of $500,000.

§ 2.5.4 Professional Liability Insurance to provide coverage against any claim which the architect and all consultants engaged or employed by the architect become legally obligated to pay as damages arising out of the performance of professional services caused by negligent act, error or omission with minimum limits of $1,000,000 per claim, $2,000,000 annual aggregate.

NOTE: If the insurance is written on a claims-made form, coverage shall be continuous (by renewal or extended reporting period) for not less than thirty-six (36) months following completion of the contract and acceptance by the City of McKinney.

§ 2.5.5 With reference to the foregoing required insurance, the architect shall endorse applicable insurance policies as follows:

§ 2.5.5.1 A waiver of subrogation in favor of City of McKinney, its officials, employees, and officers shall be contained in the Workers’ Compensation insurance policy.

§ 2.5.5.2 The City of McKinney, its officials, employees and officers shall be named as additional insureds on the Commercial General Liability, Business Automobile Liability, and any excess liability or umbrella policy, by using endorsement CG2026 or broader; and, the City of McKinney shall be provided a defense to any and all claims and causes of action arising out of or related to this Agreement as may be provided pursuant to Architect’s general liability insurance policies. In this regard, Architect shall assist City to obtain any defense provided by the Architect’s general liability insurance policies.

Nothing contained in Section 8.1.3 of this Agreement shall be interpreted or applied as limiting, reducing, or eliminating any obligation or duty that Architect’s insurance carrier may owe to City as an additional insured, pursuant to endorsement CG2026 or broader under the

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Architect’s general liability insurance policies required by this Agreement, to provide the City with a defense and/or indemnify the City for any claim or cause of action, whether one or more, regardless of the proportionate responsibility or liability of the Architect or the City. Neither shall anything contained in this Section or Section 8.1.3 be interpreted or applied as providing or otherwise entitling either Architect, Architect’s insurance carrier or any other party any right or ability to recover over against City any amounts of money attributable to damages, costs, expenses and/or attorneys’ fees based on or arising out of a finding of comparative or proportionate responsibility or liability as against the City it being understood and agreed that City in no way intends by this Agreement to waive its sovereign immunity regarding any claim, suit or cause of action.”

§ 2.5.5.3 All insurance policies shall be endorsed to the effect that City of McKinney will receive at least thirty (30) days’ notice in advance of the cancellation effective date of any policy of insurance that is cancelled by the insurance company for any reason other than nonpayment of premium.

§ 2.5.5.4 All insurance policies shall be endorsed to the effect that City of McKinney will receive at least ten (10) days’ notice in advance of the cancellation effective date of any policy of insurance that is cancelled by the insurance company for nonpayment of premium or by Architect for any reason.

§ 2.5.6 All insurance shall be purchased from an insurance company that meets a financial rating of B+VI or better as assigned by A.M. Best Company or equivalent.

§ 2.5.7 The Architect shall notify City in writing at least thirty

(30) days prior to Architect cancelling or making any material change to any coverage(s) provided in, or through, the insurance policies required under this Section 2.5. Failure by Architect to provide City the notice required hereunder may, in the sole discretion of City, be deemed a material breach of this Agreement.

§ 2.5.8 Upon the Owner’s request, the Architect will deliver to Owner copies of any policies (together with all endorsements, Addendum to AIA B101 - 2017 Page 7 of 42 schedules, and other attachments) or a certified abstract of the policy for any coverage provided under this Agreement.

§ 2.5.9 If the Architect has any self-insured retention or deductibles for any of the required coverages, the Architect shall identify on the certificate of insurance the nature and amount of the self-insured retention or deductibles and provide satisfactory evidence of financial responsibility for those obligations. The Architect is solely responsible for satisfying all self-insured retentions or deductibles. No self-insured retention or deductible is a reimbursable expense.

§ 2.5.10 The Architect shall cause all of its consultants to carry and maintain workers’ compensation coverage required by law and general and professional liability insurance coverage with limits mutually agreed upon by the Owner and the Architect. In the absence of any such agreement, the limits for each required coverage shall be the same as those limits required of the Architect.

§ 2.5.11 The Architect shall maintain the same or better insurance coverage required by this Agreement throughout the Project plus the applicable tail coverage, which tail coverage shall extend for at least three (3) years from the date of substantial completion for the Project for the professional liability coverage and at least two (2) years from the date of substantial completion for the Project for all other insurance coverage required by this Agreement.

§ 2.5.12 The Architect’s maintenance of its and its consultants’ insurance coverage in full force and effect for the duration of the Project plus the required tail coverage is a condition precedent to the Architect’s right to exercise or enforce any right or remedy for money damages against the Owner. Failure by the Architect to procure and maintain the insurance policies required herein-above throughout the duration of the Project plus the applicable tail coverage shall constitute a breach of this Agreement, in which case the Owner shall have the right, in addition to and without prejudice to any other rights, to purchase such insurance coverage on behalf of the Architect, and the Architect shall reimburse the Owner upon demand and shall furnish such information needed by the Owner to obtain such insurance or, alternatively, the Owner may, in Owner’s sole discretion, immediately terminate this Agreement for cause pursuant to Section 9.5 of this Agreement.

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§ 2.5.13 By requiring insurance coverage identified in this Agreement, Owner does not represent that the coverages and limits required hereby will necessarily be adequate or sufficient to protect the Architect. Further, insurance in effect or procured by Architect will not reduce or limit Architect’s contractual obligations to indemnify the Owner for claims or suits that result from or are connected with the services provided under this Agreement.

13. Section 3.1 is hereby amended by deleting said section in its entirety and replacing such section with the following provision:

§ 3.1 The Architect’s Basic Services consist of those described in Article 3 and further detailed in Section 11.1, as modified by this Addenda, and shall include usual and customary structural, mechanical, electrical, civil engineering, telecommunications engineering, and security design services. Services not set forth in this Article 3 and Section 11.1, as modified by this Addenda, are Additional Services.

14. Section 3.1.2 is hereby amended by deleting the third sentence of said Section and replacing it with a new sentence to read as follows:

§ 3.1.2 The Architect shall thoroughly review the services and information provided by Owner and the Owner’s consultants for completeness and sufficiency and provide prompt written notice to the Owner if the Architect becomes aware of any error, omission, or inconsistency in such services or information.

15. Section 3.1.3 is hereby amended by deleting said section in its entirety and replacing such section with the following provision:

§ 3.1.3 As soon as practicable after the date of this Agreement, the Architect shall submit for the Owner’s approval a schedule for the performance of the Architect’s services. The schedule initially shall include anticipated dates for the commencement of construction and for Substantial Completion of the Work as set forth in the Initial Information.

The schedule shall include allowances for periods of time required for the Owner’s review, for the performance of the Owner’s consultants, and for approval of submissions by authorities having jurisdiction over the Project. Once approved by the Owner, time limits established by the schedule shall not be exceeded by the Architect or Owner.

With the Owner’s approval, the Architect may adjust the

Addendum to AIA B101 - 2017 Page 9 of 42 schedule, if necessary, as the Project proceeds until the commencement of construction. It is specifically understood and agreed by Architect that time is of the essence in this Agreement.

16. Section 3.1.4 is hereby amended by deleting said section in its entirety and

§ 3.1.4 The Architect shall not be responsible for an Owner’s directive or substitution, or the Owner’s acceptance of nonconforming Work, made without the Architect’s written approval, which approval shall not be unreasonably withheld.

17. Section 3.1.5 is hereby amended by deleting said section in its entirety and

§ 3.1.5 The Architect shall contact certification agencies and governmental authorities required to approve the Construction Documents and entities providing utility services to the Project. The Architect shall comply with applicable design requirements imposed by those agencies, authorities and entities.

18. Section 3.1.6 is hereby amended by deleting said section in its entirety and

§ 3.1.6 The Architect shall be responsible for preparing and filing documents required for the approval of certification agencies and governmental authorities having jurisdiction over the Project, subject to review and approval of the Owner.

Any changes required by certification agencies and governmental authorities, if approved by the Owner, shall be made by the Architect at no additional cost to the Owner to the extent such changes result from or arise out of the requirements of local ordinances, applicable design and construction codes promulgated by the International Code Council or its component bodies plus the National Electric Code (collectively “Codes”) together with any local amendments to the Codes, and any other federal, state and/or local statutes, rules and regulations that were in effect as of the effective date of the Agreement.

19. Section 3.1 is hereby amended by adding a new Section 3.1.7 to read as follows:

§ 3.1.7 The Architect shall be responsible to the Owner for all legally recoverable costs and damages proximately caused

Addendum to AIA B101 - 2017 Page 10 of 42 by and resulting from (1) material defects in design, (2) non-workability of design details, (3) failure of the Architect to comply with the terms of this Agreement, and (4) errors and omissions of the Architect subject to the provisions of Section 3.1.9.

20. Section 3.1 is hereby amended by adding a new Section 3.1.8 to read as follows:

§ 3.1.8 The Architect represents to Owner that all Design Documents, Contract Documents and other documents prepared and issued by Architect pursuant to this Agreement will be of good quality, complete, unambiguous, free from substantial defects, and in conformance with and satisfying all applicable federal, state, municipal and local ordinances, codes, and other governmental requirements and shall be fit for the particular purpose intended thereby. If a conflict arises between any of these requirements, the Architect will so notify the Owner and will review and recommend proposals to resolve the conflict, and assist the Owner in obtaining approval for any such resolution as necessary.

21. Section 3.1 is hereby amended by adding a new Section 3.1.9 to read as follows:

§ 3.1.9 Change Orders. The Owner agrees to consider reasonable standard of care when evaluating adjustments to the project necessitated by omissions or design errors as set forth herein-below.

A. Omissions: If the Architect fails to include or omits an item from the Contract Documents, which was fully anticipated to be included in the Project, thereby necessitating the need for a Change Order, the Architect will not receive a fee for work associated with the Change Order.

B. Design Error: If the Architect incorrectly designs or specifies an item which the owner specifically requested to be part of the scope of work and fails to correct the error prior to installation in the Project, thereby requiring its removal or change, the Architect shall be responsible for the cost to replace said item with the proper item.

22. Section 3.1 is hereby amended by adding a new Section 3.1.10 to read as follows:

§ 3.1.10 The Americans with Disabilities Act (“ADA”) provides that it is a violation of the ADA to design and construct a facility

Addendum to AIA B101 - 2017 Page 11 of 42 for first occupancy later that January 26, 1993 that does not meet the accessibility and usability requirements of the ADA except where an entity can demonstrate that it is structurally impractical to do so. The Texas Department of Licensing and Regulation (“TDLR”) has received equivalency certification from the U.S. Department of Justice (“DOJ”) that the Texas Accessibility Standards meet or exceed the requirements of the ADA. The Architect will therefore comply with the applicable requirements of the 2012 Texas Accessibility Standards having an effective date of March 15, 2012, (“TAS”) and any other federal, state, and local laws, rules, codes, ordinances and regulations as they apply to the Project. The Architect will timely submit the Plans and Specifications to the TDLR or a registered accessibility specialist (“RAS”) licensed by the TDLR and approved by the Owner with respect to compliance with the TAS for review and comment prior to the scheduled commencement of construction.

23. Section 3.1 is hereby amended by adding a new Section 3.1.11 to read as follows:

§ 3.1.11 The Architect shall furnish surveys to describe physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site;

locations, dimensions and necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a Project benchmark. The Architect shall be reimbursed by the Owner for the Architect’s cost for such services.

24. Section 3.2.2 is here by amended by adding the phrase “shall review such information to ascertain that it is consistent with the requirements of the Project and” after the word “Architect” in the second sentence of said Section.

25. Section 3.2.5 is here by amended by adding the word “written” after the word “Owner’s” on the second line of said Section.

26. Section 3.2.7 is here by amended by adding the words “in writing” after the word “approval” at the end of said Section.

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27. Section 3.3.1 is here by amended by adding the word “written” after the word “Owner’s” at both occurrences of such word in the first line of said Section and in the third line of said Section.

28. Section 3.3.3 is here by amended by adding the words “in writing” after the word “approval” at the end of said Section.

29. Section 3.4.1 is here by amended by adding the word “written” after the word “Owner’s” at both occurrences of such word in the first line of said Section and in the third line of said Section.

30. Section 3.4.2 is here by amended by adding the phrase “certification agencies and” before the word “governmental” in the first line of said Section.

31. Section 3.4.3 is hereby amended by deleting said section in its entirety and

§ 3.4.3 During the development of the Construction Documents, the Architect shall, subject to review and approval of the Owner, assist the CMAR in the development and preparation of: (1) construction services procurement information which describes the time, place and conditions of bidding or proposals; and bidding or proposal forms; and (2) the Conditions of the Contract for Construction (General, Supplementary and other Conditions). The Architect shall also assist the CMAR with the compilation of that portion of the Project Manual for the Project that includes the Conditions of the Contract for Construction and Specifications and may include procurement requirements for certain types of the work.

32. Section 3.4.4 is hereby amended by adding the following provision to the end of the existing section:

Prior to the conclusion of the Construction Documents Phase, the Architect shall submit the Construction Documents to the Owner and the CMAR for review and comment, and thereafter update and resubmit the Construction Documents to the Owner and the CMAR in response to such prior comments.

33. Section 3.4.5 is here by amended by adding the words “in writing” after the word “approval” at the end of said Section.

34. Section 3.4 is hereby amended by the adoption of a new Section 3.4.6 to read as

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§ 3.4.6 After Owner’s approval of the Construction Documents, the Architect shall not make or approve any change in the Work, except for minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time, without the prior written consent of the Owner. The Architect shall be liable to the Owner for any legally recoverable damages arising from or caused by any material change to the Work made or approved by the Architect without the Owner’s prior written consent.

35. Section 3.5.2 COMPETITIVE BIDDING, including Subsections 3.5.2.1 through 3.5.2.3, is here by amended by deleting said section and subsections in their entirety.

36. Section 3.5.3 NEGOTIATED PROPOSALS, including Subsections 3.5.3.1 through 3.5.3.3, is here by amended by deleting said section and subsections in their entirety.

37. Section 3.6.1.1 is hereby amended by deleting said section in its entirety and

§ 3.6.1.1 The Architect shall provide administration of the Contract between the Owner and the CMAR as set forth below and in AIA Document A201-2017, General Conditions of the Contract for Construction, 2017 edition, as amended by the Owner for the Project and which amendments Owner shall provide to Architect.

38. Section 3.6.1.2 is hereby amended by deleting the first sentence of that section and replacing said sentence with the following sentence and retaining the remainder of said section as further amended herein-below:

§ 3.6.1.2 The Architect shall be a representative of and shall advise and consult with the Owner during construction and until final payment to the CMAR is made.

39. Section 3.6.1.2 is hereby further amended by deleting the last sentence of that section and replacing said sentence with the following sentence:

The Architect shall be responsible for the Architect’s negligent and wrongful intentional acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the CMAR or of any other persons or entities performing portions of the Work.

However, the Architect shall report to the Owner all observed deviations from the Contract Documents and from

Addendum to AIA B101 - 2017 Page 14 of 42 the most recent construction schedule submitted by the

CMAR.

40. Section 3.6.1.3 is hereby amended by deleting said section in its entirety and

§ 3.6.1.3 The Architect’s responsibility to provide Contract Administration Services under this Agreement commences with the award of the initial Contract for Construction and terminates upon final completion of the Construction Phase after the CMAR has completed all work required by the Contract Documents including all punchlist work.

Notwithstanding the foregoing, the Architect shall perform the services herein consistent with the standard of care of its profession.

41. Section 3.6.1 is hereby amended by adding a new Section 3.6.1.4 to read as

§ 3.6.1.4 The Architect shall be responsible for conducting progress meetings as needed and for the preparation, distribution and accuracy of minutes pertaining thereto to all parties as directed by the Owner.

42. Section 3.6.2.1 is hereby amended by deleting the word “reasonably” from the sixth line of said section.

43. Section 3.6.2.1 is further amended by replacing the first sentence of said Section with the following sentence:

The Architect shall visit the site at intervals appropriate to the stage of construction, or as otherwise required in Section 4.2.3, to remain aware and knowledgeable of issues or problems that have developed, or could reasonably be foreseen, during construction as part of the Architect’s design and construction administration services, and to become generally familiar with the progress and quality of the portion of the Work completed, and to determine, in general, if the Work observed is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents.

44. Section 3.6.2.1 is further by amended by adding the following provision to the end of the current paragraph:

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The Architect shall, however, be responsible for providing, at no additional cost to the Owner, architectural services made necessary by major defects or deficiencies in the CMAR’s work which the Architect should have discovered through the exercise of reasonable care.

45. Section 3.6.2.2 is hereby amended by deleting said section in its entirety and

§ 3.6.2.2 The Architect shall notify the Owner of any Work that does not substantially conform to the Contract Documents and shall reject such work unless the Owner objects to the rejection within 24 hours of such notification.

Whenever the Architect considers it necessary or advisable, the Architect will have authority to require inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. The Architect shall notify and receive approval from the Owner prior to ordering any such inspection or testing which will result in additional cost to the Owner. However, neither the Architect’s authority to reject work or order inspection or testing nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the CMAR, Subcontractors, material and equipment suppliers, their agents or employees or other persons or entities performing portions of the Work.

46. Section 3.6.2.4 is hereby amended by deleting the second and third sentences from said section in their entirety.

47. Section 3.6.4.2 is hereby amended by deleting said section in its entirety and

§ 3.6.4.2 In accordance with the Architect-approved submittal schedule, the Architect shall review and approve or take other appropriate action upon the CMAR’s submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with the information given and the design concept expressed in the Contract Documents. The Architect’s actions shall be taken within seven (7) calendar days of receipt of such information from the CMAR unless reasonable cause requires additional time in which event the Architect shall take action no longer than 15 calendar days from receipt of such information. Review of such submittals

Addendum to AIA B101 - 2017 Page 16 of 42 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 CMAR as required by the Contract Documents. 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.

Any changes to Contract Documents by the Architect shall not be made by marking up existing shop drawings or submittals, but shall require new shop drawings or submittals showing the appropriate changes.

48. Section 3.6.4.3 is hereby amended by adding the following sentence to the end of the current paragraph:

If, however, Architect becomes aware of any error, omission, or inconsistency in submittals prepared by the CMAR’s design professionals the Architect shall provide prompt written notice to the Owner of same.

49. Section 3.6.4.4 is hereby amended by deleting the last sentence of that section and replacing said sentence with the following provision:

If deemed appropriate by the Architect, the Architect shall on the Owner’s behalf prepare, reproduce and distribute supplemental Drawings and Specifications in response to requests for information by the CMAR at no additional cost, charges or expense to the Owner.

50. Section 3.6.5 is hereby amended by adding a new Section 3.6.5.3 and a new Section 3.6.5.4 to read as follows:

§ 3.6.5.3 The Architect shall review requests by the Owner or CMAR for changes in the Work, including adjustments to the Contract Sum or Contract Time. A request for a change in the Work shall be accompanied by sufficient supporting information to permit the Architect and Owner to make a reasonable determination without extensive investigation. If the Architect determines that the requested changes in the Work are not materially different from the requirements of the Contract Documents, the Architect may issue an Order for a

Addendum to AIA B101 - 2017 Page 17 of 42 minor change in the Work or recommend to the Owner that the requested change be denied.

§ 3.6.5.4 If the Architect determines that implementation of the requested changes would result in an adjustment to the Contract Time or Contract Sum, the Architect shall make a recommendation to the Owner, who may authorize further investigation of such change. With the Owner’s approval, the Architect shall incorporate those costs or estimates into a Change Oder or other appropriate documentation for the Owner’s execution or negotiation with the CMAR.

51. Section 3.6.6.5 is hereby amended by adding the following provision to the end of the current paragraph:

Said meeting shall occur at the facility during the eleventh (11th) month after the date of Substantial Completion.

52. Section 4.1, Item 4.1.1.30 is deleted and the following Items 4.1.1.30 – 4.1.1.41 are hereby added to the Supplemental Services table:

Supplemental Services Responsibility (Architect, Owner or Not

Provided)

Location of Service Description (Section 4.2 below or in an exhibit attached to this document and identified below)

§ 4.1.30 Signage and Environmental Design Included In base scope of service § 4.1.31Acoustical and AV Design Included In base scope of service § 4.1.32 Kitchen Architect Proposal upon request § 4.1.33 Building Envelope Architect Proposal upon request § 4.1.34 Central Utility Not Provided N/A § 4.1.35 Emergency Generator Included In base scope of service § 4.1.36 Fire Protection Included In base scope of service § 4.1.37 Multiple Bid Included In base scope of service § 4.1.38 Music & Voice Included In base scope of service § 4.1.39 Lightning Protection Included In base scope of service § 4.1.40 Alternative Energy Architect Proposal upon request § 4.1.41 Traffic Architect Proposal upon request § 4.1.42 Operations Analysis Included In base scope of service

53. Section 4.1.3 is hereby deleted in its entirety.

54. Section 4.2 is hereby amended by deleting said section in its entirety and replacing

§ 4.2 Additional Services may be provided after execution of this Agreement, without invalidating the Agreement. Owner reserves the right to revise or expand the scope of services as Owner may deem necessary, but in such event Owner shall pay Architect equitable compensation for such services. In any

Addendum to AIA B101 - 2017 Page 18 of 42 event, when Architect is directed to revise or expand the scope of services under this Section of the Contract, Architect shall provide Owner a written proposal for the entire costs involved in performing such Additional Services. Prior to Architect undertaking any revised or expanded services as directed by Owner under this Contract, Owner must authorize in writing the nature and scope of the Additional Services and accept the method and amount of compensation and the time involved in all phases of the Project.

The scope of services under this Agreement shall be strictly limited. Owner shall not be required to pay for any Additional Service unless Owner shall have approved in writing in advance (prior to the performance of additional work) the payment of additional amounts. In the event of a conflict between the provisions of this Section 4.2 and any other section, subsection, paragraph or provision of this Addendum and/or the Standard Form of Agreement Between Owner and Architect, AIA Document B101 – 2017, the provisions of this Section 4.2 shall control.

55. Section 4.2.1.1 is hereby amended by inserting the phrase “material or unanticipated” in front of the word “change” on the first line of said section.

56. Section 4.2.1.6 is hereby amended by deleting the words ‘bid or”.

57. Section 4.2.1.9 is hereby amended by deleting the words “bids or”.

58. Section 4.2.1.10 is hereby amended by replacing the word “cause” with the word “casualty” in said section.

59. Section 4.2.2 is hereby amended by deleting said section in its entirety and

§ 4.2.2 Notwithstanding any provision of this Agreement to the contrary, services made necessary as a result of the Architect’s failure to timely provide accurate or complete information, approvals or clarifications, or to timely render a decision, shall be considered Basic Services.

60. Section 4.2.5 is hereby amended by deleting said section in its entirety and

§ 4.2.5 If the services covered by this Agreement have not been completed within ___________________ (____) months of the date hereof, through no fault of the Architect, Addendum to AIA B101 - 2017 Page 19 of 42 extension of the Architect’s services beyond that time may be compensated in an equitable manner agreed upon by the Owner and Architect.

61. Section 5.3 is hereby amended by deleting the paragraph in its entirety and replacing it with the following provision:

The Owner shall identify a representative authorized to act on the Owner’s behalf (“Owner’s Representative”) with respect to the Project and with respect to the Services to be performed by Architect for Owner. Owner’s Representative(s) shall be available to Architect at all reasonable times for consultation with Architect. The Owner designates Ms. Patricia L. Jackson, City of McKinney Facilities Construction Manager, as the Owner’s Representative. Owner shall render decisions and approve the Architect’s submittals in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Architect’s services.

62. Sections 5.6 and 5.7 are hereby deleted in their entirety.

63. Section 5.8 is hereby amended by deleting the last sentence of that section and replacing said sentence with the following sentence:

The Owner shall require that its consultants maintain professional liability insurance, as appropriate to the services performed.

64. Section 5.10 is hereby amended by adding the following provision to the end of the current paragraph:

This provision is not intended to nor shall it be deemed or interpreted as relieving the Architect or CMAR or any sub-consultants or sub-contractors from providing any insurance coverage required by the Owner to protect the Owner’s needs and interests.

65. Section 5.11 is hereby amended by adding the following provision to the beginning of the current paragraph:

The Owner shall be entitled to rely on the accuracy and completeness of the services and information provided by the Architect under this Agreement.

Addendum to AIA B101 - 2017 Page 20 of 42

66. Section 5.12 is hereby amended by inserting the phrase “endeavor to” between the words “shall’ and “include” in the first sentence and between the words “shall” and “promptly” in the second sentence of said Section.

67. Section 5.15 is hereby deleted in its entirety.

68. Section 6.1 is hereby amended by deleting the second sentence from that section in its entirety.

69. Section 6.2 is here by amended by deleting said section in its entirety and replacing it with the following provision:

§ 6.2 The Owner's budget for the Cost of the Work is provided in Initial Information, and may be adjusted throughout the Project as required under Sections 5.2, 6.4 and 6.5. Evaluations of the Owner's budget for the Cost of the Work, the preliminary estimate of the Cost of the Work and updated estimates of the Cost of the Work prepared by the Architect with which to validate the CMAR’s estimated costs, represent the Architect's judgment as a design professional. It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, materials or equipment; the CMAR's methods of determining bid prices; or competitive bidding, market or negotiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner's budget for the Cost of the Work or from any estimate of the Cost of the Work or evaluation prepared or agreed to by the Architect.

70. Section 6.4 is here by amended by deleting said section in its entirety and replacing

§ 6.4 If the Procurement Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner and CMAR, through no fault of the Architect, the Owner's budget for the Cost of the Work shall be adjusted to reflect changes in the general level of prices in the applicable construction market.

71. Section 6.5 is here by amended by deleting said section in its entirety and replacing

§ 6.5 lf at any time the CMAR's estimate of the Cost of the Work exceeds the Owner's budget for the Cost of the Work, the Architect shall make appropriate recommendations to the Owner to adjust the Project's size, quality or budget for the Cost

Addendum to AIA B101 - 2017 Page 21 of 42 of the Work, and the Owner shall cooperate with the Architect in making such adjustments.

72. Section 6.6 is here by amended by deleting said section in its entirety and replacing

§ 6.6 lf the Owner's budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services is exceeded by the CMAR's estimate of the Cost of the Work, the Owner shall

73. Section 6.6.2 is hereby amended by deleting the phrase “rebidding or” from the beginning of the first line.

74. Section 6.6.4 is hereby amended by deleting said section in its entirety and replacing it with the following provision:

§ 6.6.4 ln consultation with the CMAR, revise the Project program, scope, or quality as required to reduce the Cost of the Work; or

75. Section 6.7 is here by amended by deleting said section in its entirety and replacing

§ 6.7 lf the Owner chooses to proceed under Section 6.6.2, the Architect shall, assist the Owner in renegotiating the Project within a reasonable time. lf the Owner chooses to proceed under Section 6.6.4, the Architect shall, without additional compensation, modify the Construction Documents as necessary to comply with the Owner’s budget as adjusted under Section 6.6.1. The renegotiation of the Project and the modification of the Contract Documents shall be the limit of the Architect’s responsibility under this Article 6.

76. Sections 7.1, 7.2, 7.3, 7.3.1, 7.4, and 7.5 are hereby deleted in their entirety and replaced with the following provision to be designated as Section 7.1:

§ 7.1 All materials, documents and “Instruments of Service” prepared or assembled by the Architect under this Agreement shall become the sole property of the Owner and shall be delivered to the Owner without restriction on future use. The Architect may retain copies of all drawings, specifications and other pertinent information for the work in its files. The Architect shall have no liability for changes made to any materials or other documents by others subsequent to the completion of this Agreement.

Addendum to AIA B101 - 2017 Page 22 of 42

77. Section 8.1.2 is hereby deleted in its entirety.

78. Section 8.1.3 is hereby amended by deleting said section in its entirety and replacing such section with the following provision:

§ 8.1.3 INDEMNIFICATION

§ 8.1.3.1 ARCHITECT DOES HEREBY COVENANT

AND CONTRACT TO WAIVE ANY AND ALL CLAIMS,

RELEASE, INDEMNIFY, AND HOLD HARMLESS THE

OWNER, OWNER’S CITY COUNCIL, OFFICERS, AND

EMPLOYEES, IN BOTH THEIR PUBLIC AND PRIVATE

CAPACITIES, FROM AND AGAINST ALL LIABILITY,

CAUSES OF ACTION, CITATIONS, CLAIMS, COSTS,

DAMAGES, DEMANDS, EXPENSES, FINES,

JUDGMENTS, LOSSES, PENALTIES OR SUITS, WHICH

IN ANY WAY ARISE OUT OF, RELATE TO, OR RESULT

FROM ARCHITECT’S PERFORMANCE UNDER THIS

CONTRACT AND WHICH ARE CAUSED BY THE

INTENTIONAL WRONGFUL ACTS OR NEGLIGENT

ACTS OR OMISSIONS OF ARCHITECT OR

ARCHITECT’S SUBCONTRACTORS AND THE

OFFICERS, AGENTS OR EMPLOYEES OF EITHER

ARCHITECT OR ARCHITECT’S SUBCONTRACTORS

(THE “INDEMNIFIED ITEMS”) SUBJECT TO THE

LIMITATIONS IN TEXAS LOCAL GOVERNMENT CODE §

271.904 AND TEXAS CIVIL PRACTICE AND REMEDIES

CODE § 130.002(B).

§ 8.1.3.2 BY WAY OF EXAMPLE, THE INDEMNIFIED

ITEMS MAY INCLUDE PERSONAL INJURY AND DEATH

CLAIMS AND PROPERTY DAMAGE CLAIMS,

INCLUDING THOSE FOR LOSS OF USE OF PROPERTY,

AS WELL AS INTELLECTUAL PROPERTY

INFRINGEMENT OR FAILURE TO PAY A

SUBCONTRACTOR OR SUPPLIER.

§ 8.1.3.3 INDEMNIFIED ITEMS SHALL INCLUDE

REASONABLE ATTORNEYS’ FEES IN PROPORTION TO

THE ARCHITECT’S LIABILITY AND COSTS, COURT

COSTS, AND ANY SETTLEMENT COSTS.

§ 8.1.3.4 INDEMNIFIED ITEMS SHALL ALSO

INCLUDE ANY EXPENSES, INCLUDING REASONABLE

ATTORNEYS’ FEES AND EXPENSES, INCURRED BY

Addendum to AIA B101 - 2017 Page 23 of 42

AN INDEMNIFIED INDIVIDUAL OR ENTITY IN

ATTEMPTING TO ENFORCE THIS INDEMNITY.

79. Section 8.2.1 is hereby amended by deleting the second sentence from said section in its entirety.

80. Section 8.2.2 is hereby amended by deleting said section in its entirety and

§ 8.2.2 The Owner and the Architect shall, as a condition precedent to filing any lawsuit arising from performance of this Agreement, endeavor to resolve all claims, disputes, and other matters in question between them first, informally and, second, by mediation.

.1 Request for mediation shall be in writing, and shall request that the mediation commence not less than 30 or more than 90 days following the date of the request, except upon agreement of both parties.

.2 The parties shall have fifteen (15) days after receipt of a request for mediation to agree on a mediator. If the parties are unable to agree on a mediator within fifteen

(15) days, each party shall have an additional five (5) days to designate a mediator. The two mediators so designated shall then designate a third unbiased mediator who shall be the mediator to conduct the mediation. The decision of the mediator shall be non-binding.

.3 In the event the Owner and the Architect are unable to agree to a date for the mediation within 30 days following the date of the request for mediation, all conditions precedent in this article shall be deemed to have occurred.

.4 At all times during the course of any dispute resolution process, the Architect shall continue diligently and without delay to perform the services and obligations of the Agreement subject to Owner’s continuing payment for undisputed services.

81. Section 8.2.4 is hereby amended by deleting said section in its entirety and

§ 8.2.4 If the parties do not resolve a dispute through mediation pursuant to this Section 8.2, the dispute will be resolved through litigation in a court of competent jurisdiction.

Addendum to AIA B101 - 2017 Page 24 of 42

82. Sections 8.3, 8.3.1, 8.3.1.1, 8.3.2, 8.3.3, 8.3.4, 8.3.4.1, 8.3.4.2, and 8.3.4.3 are hereby deleted in their entirety. In addition, all references to “Arbitration” shall be deleted from the Agreement.

83. Article 8, “Claims and Disputes,” is hereby amended by adding a new Section 8.3 to read as follows:

§ 8.3 The Texas Board of Architectural Examiners (“Board”) has jurisdiction over complaints regarding the professional practices of persons registered…