ConsensusDoc 803 Sample Contract.pdf

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ConsensusDocs 803

STANDARD AGREEMENT BETWEEN OWNER AND DESIGN PROFESSIONAL

(Where a Construction Manager Acting as an Agent Has Been Retained by the Owner)

TABLE OF ARTICLES

1. AGREEMENT

2. GENERAL PROVISIONS

3. DESIGN PROFESSIONAL'S RESPONSIBILITIES

4. OWNER'S RESPONSIBILITIES

5. TIME

6. COMPENSATION AND PAYMENTS

7. INDEMNITY, INSURANCE AND WAIVERS

8. TERMINATION

9. DISPUTE MITIGATION AND RESOLUTION

10. MISCELLANEOUS PROVISIONS

11. SCHEDULE OF EXHIBITS

This Agreement has important legal and insurance consequences. Consultations with an attorney and with insurance and surety consultants are encouraged with respect to its completion or modification. Notes indicate where information is to be inserted to complete this Agreement.

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

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ARTICLE 1 AGREEMENT

This Agreement is made this 03/11/2015, by and between the

OWNER

State of Iowa - DAS, Department of Administrative Services ("DAS"). DAS's principal office is located: 109 SE

13th Street, Des Moines, Iowa, 50319-0120.

and the

ARCHITECT, DESIGN PROFESSIONAL or ENGINEER (hereinafter Design Professional)

Example Contractor for work in connection with the following

PROJECT

Practice Project

The CONSTRUCTION MANAGER is

Notice to the Parties shall be given at the above addresses.

ARTICLE 2 GENERAL PROVISIONS

2.1 The Design Professional shall furnish or provide the architectural and engineering Services necessary to design the Project in accordance with the Owner's requirements, as may be outlined in the Owner's Program and other relevant data defining the Project. The architectural and engineering Services shall include Basic

Services plus Additional Services as may be authorized by the Owner. If the Owner does not have an official written Program, the Design Professional will work with the Owner and the Construction Manager to Verify the Owner's objectives, including budget and time criteria, Space requirements and relationships, flexibility and expandability requirements, special equipment and systems, site requirements for phased occupancy.

2.2 RELATIONSHIP OF THE PARTIES The Design Professional accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Owner and the Construction Manager and exercise the Design Professional's skill and judgment in furthering the interests of the Owner to the extent that doing so is not in violation of Iowa law and the professional license obligations of the Design Professional. The Design Professional represents that it possesses the requisite skill, expertise, and licensing to perform the required Services. The Owner and Design Professional agree to work together on the basis of mutual trust, good faith and fair dealing, and shall take actions reasonably necessary to enable each other to perform this Agreement in a timely, efficient and economical manner. The

Owner and Design Professional shall endeavor to promote harmony and cooperation among all Project participants.

2.3 Neither the Design Professional nor any of its agents or employees shall act on behalf of or in the name

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties

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T of the Owner except as provided in this Agreement or unless authorized in writing by the Owner.

2.4 The Owner and the Design Professional shall perform their obligations with integrity, including but not limited to:

2.4.1 conflicts of interest shall be avoided or disclosed promptly to the other Party; and

2.4.2 The Design Professional and the Owner warrant that they have not and shall not pay nor receive any contingent fees or gratuities to or from the other Party, including their agents, officers and employees, subconsultants or others for whom they may be liable, to secure preferential treatment.

2.5 CONSTRUCTION MANAGER The Owner shall retain or employ a Construction Manager to be the

Owner's agent and to furnish construction administrative and management Services for the Project. The

Design Professional shall coordinate its scope of Services with that of the Construction Manager so as to avoid any duplication of Services. The Design Professional shall provide those Services reasonably requested by the Owner and the Construction Manager and included within the Design Professional's scope of Services under this Agreement. Such Services shall be provided promptly and in accordance with time schedules agreed upon by the Owner, Construction Manager and Design Professional. The Owner shall cause the Construction Manager to provide those Services reasonably requested by the Design Professional.

Such Services shall be provided promptly and in accordance with time schedules agreed upon by the Owner, Design Professional and Construction Manager. Upon request of the Design Professional, the Owner shall furnish to the Design Professional a copy of the Owner's Agreement with the Construction Manager. The

Agreement between the Owner and the Construction Manager shall not be modified without written notification to the Design Professional.

2.6 EXTENT OF AGREEMENT This Agreement represents the entire and integrated agreement between the

Owner and the Design Professional and supersedes all prior negotiations, representations and agreements, either written or oral. This Agreement and each and every provision is for the exclusive benefit of the Owner and Design Professional and not for the benefit of any third party except to the extent expressly provided in this Agreement.

2.7 DEFINITIONS

2.7.1 Agreement means this ConsensusDocs 803, Standard Agreement Between Owner and Design

Professional (Where a Construction Manager Acting as an Agent Has Been Retained by the Owner) as modified by the Parties, and Exhibits and Attachments made part of this Agreement upon its execution.

2.7.2 Design Professional means the person or entity identified in ARTICLE 1 and includes the Design

Professional's representative. The use of the term Design Professional in this Agreement is for convenience and is not intended to imply or infer that the individual or entity named in ARTICLE 1 will provide design professional Services in a discipline in which it is not licensed.

2.7.3 Construction Budget means the budget prepared by the Construction Manager for review by the Design

Professional and approval by the Owner. It is prepared when the Owner and the Construction Manager agree that the Construction Documents are sufficiently complete, and includes the sum of the estimated cost of the

Work, the clarifications and assumptions upon which it is based, allowances, reasonable contingencies and the Construction Manager's compensation.

2.7.4 Construction Manager means the person or entity identified in ARTICLE 1 responsible for furnishing construction administrative and management Services for the Project.

2.7.5 The Construction Schedule is the document initially prepared by and updated by the Construction

Manager and approved by the Owner that indicates proposed activity sequences, durations, or milestone

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties

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T dates for such activities as receipt and approval of pertinent information, issuance of the Construction

Documents, the preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, Owner's occupancy requirements and estimated date of

Substantial Completion of the Project. The Construction Schedule shall also include the date of Final

Completion of the Project.

2.7.6 The term Cost of Construction shall mean the Owner's total cost of Project components (excluding the services provided by the Construction manager and /or any other professional service). In the event the

Project is not completed, Cost of Construction shall mean the final approved estimated cost of construction of

Project components (excluding the services provided by the Construction Manager and/or any other professional service). The estimated Cost of Construction has the same meaning as the "estimated total cost of construction" set forth in Iowa Code Section 26.1 and thereby affects the appropriate competitive bidding procedure for the Project. Cost of Construction is synonymous with the Cost of the Work for the Project.

2.7.7 Others means other contractors, material suppliers and persons at the Worksite who are not employed by the Contractor or Subcontractors. The term Others does not include the Construction Manager or the

Design Professional.

2.7.8 Owner is the person or entity identified in ARTICLE 1 and includes the Owner's representative.

2.7.9 The Owner's Program is an initial description of the Owner's objectives that shall include budgetary and time criteria, space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. As stated above, the owner may not have an official written

Program.

2.7.10 The Project, as identified in ARTICLE 1, is the building, facility or other improvements for which the

Contractor is to perform Work under the agreement between the Owner and Trade Contractor(s). It may also include construction by the Owner or Others.

2.7.11 Services means the Services provided by the Design Professional or by consultants retained by the

Design Professional for the Project. Such Services may constitute the whole or a portion of the Project.

2.7.12 A Subcontractor is a party or entity retained by the Trade Contractor as an independent contractor to provide the labor, materials, equipment or Services necessary to complete a specific portion of the Work. The term Subcontractor does not include the Design Professional or Others.

2.7.13 A Sub-subcontractor is a person or entity who has an agreement with a Subcontractor to perform any portion of the Subcontractor's Work.

2.7.14 Trade Contractor means a party or entity retained by the Owner as an independent contractor to provide the labor, materials, equipment or services necessary to complete a specific portion of the Work. A

Trade Contractor is a principal contractor, as referenced in Iowa Code Chapter 573.

2.7.15 Work means the construction and services provided by the Trade Contractors necessary or incidental to fulfill the Trade Contractor's obligations for the Project in accordance with and reasonably inferable from the Construction Documents. The Work may refer to the whole Project or only a part of the Project.

2.7.16 Worksite means the location of the Project as identified in ARTICLE 1 where the Work is to be performed.

ARTICLE 3 DESIGN PROFESSIONAL'S RESPONSIBILITIES

3.1 GENERAL RESPONSIBILITIES

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties

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3.1.1 PROJECT REQUIREMENTS The Design Professional, in order to determine the requirements of the

Services, shall conduct a preliminary evaluation of the information set forth in the Owner's Program. The

Design Professional shall confirm its understanding of such requirements with the Owner and the

Construction Manager and shall assist the Owner to refine or make clarifications to the Owner's Program for the Project. The Owner, however, may not have an official written program for this Project. Inasmuch case, the Design Professional shall work with the Owner and the Construction Manager to determine the Owner's objectives, including budget and time criteria, space requirements and relationships, flexibility and expandability requirements, special equipment and systems, site requirements and any requirements for phased occupancy. Further, the Design Professional shall ascertain the information needed to provide its design services and shall request from the Owner in writing any information that the Design Professional needs to provide its design services that it is unable to ascertain. If the Design Professional did not separately agree to provide program management services but is requested to prepare an official written Program then the preparation of the Program shall be considered an additional service.

3.1.2 The Design Professional shall not proceed with the development of successive design documents until receiving written approval from the Owner. The Design Professional shall promptly revise without additional compensation:

3.1.2.1 those documents which have not been previously approved by the Owner and to which the

Owner has reasonable objections, and

3.1.2.2 those documents identified by the Construction Manager as presenting constructability problems,

3.1.2.3 Deleted.

To the extent that any design documents approved by the Owner deviate from the requirements of the

Owner's Program, the approved design documents shall govern.

3.1.3 The Design Professional shall have reasonable access to the Worksite at all times.

3.1.4 Except as provided in this Agreement or unless otherwise directed by the Owner, the Design

Professional shall communicate with the Trade Contractor and Subcontractors only through the Construction

Manager unless otherwise agreed to by the Owner in writing.

3.1.5 The Design Professional shall assist the Owner and the Construction Manager with filing required documents with governmental authorities having jurisdiction over the Project, including permits necessary for construction of the Project.

3.1.6 The Design Professional shall not be responsible for the acts or omissions of the Owner, the

Construction Manager, the Trade Contractor and Subcontractors, and their respective agents or employees, or any other persons or entities performing work on the Project who are not under the direct control or authority of the Design Professional.

3.1.7 Services to be provided by the Design Professional shall be rendered promptly so as not to delay the

Owner, Construction Manager, Trade Contractor, Subcontractors or Others.

3.1.8 The Design professional shall preform the Services required by this Agreement in a workmanlike manner and in accord with the degree of skill, care, and learning ordinarily possessed and exercised by competent and knowledgeable members of its profession currently practicing under similar circumstances at the same time and in a same similar location.

3.2 BASIC SERVICES The Design Professional's Basic Services consist of any Services provided pursuant to Sections 3.1 and 3.2. The Design Professional shall identify here or in a separate attached exhibit: (a)

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties

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T other Services included in Basic Services, (b) the specific design disciplines included in Basic Services, and

(c) those portions of the Project design to be furnished by the Owner, Trade Contractor or Others: If professional design Services are to be furnished by the Owner, Trade Contractor or Others, the Design

Professional shall indicate all performance and design criteria to be satisfied in accordance with the Owner's

Program, and the Owner, Trade Contractor or Others shall not be responsible for the adequacy of such performance and design criteria. Design Services furnished by parties other than the Design Professional shall be obtained from licensed design professionals, who shall in the manner required by law affix their signature and seal on all drawings, specifications, calculations and technical submittals prepared by them, and the Design Professional shall be entitled to rely upon the adequacy, accuracy and completeness of such design Services.

3.2.1 BUDGETS The Design Professional promptly shall review and make recommendations to the Owner about the budgets prepared by the Construction Manager for the Project. The Design Professional shall provide its Services in conformance with the budgets approved by the Owner.

3.2.2 CONSTRUCTION SCHEDULE The Design Professional promptly shall review and make recommendations to the Construction Manager and Owner about the preliminary and updated Construction

Schedule prepared by the Construction Manager. To facilitate the preparation of the Construction Schedule by the Construction Manager, the Design Professional shall submit for the Construction Manager's review and the Owner's approval a schedule of the Design Professional's Services. The Design Professional shall provide its Services within the times given for such Services in the Construction Schedule approved by the

Owner.

3.2.3 SCHEMATIC DESIGN DOCUMENTS Based upon the Owner's Program, including any approved refinements or clarifications, the Design Professional shall prepare, for the Construction Manager's review and the Owner's approval, Schematic Design Documents consisting of drawings, outline specifications and other documents illustrating the Project's basic elements, scale, and their relationship to the Worksite.

Schematic Design Documents shall include, as applicable, conceptual plans of the site and structures;

preliminary sections and elevations; approximate areas, volumes and dimensions; and preliminary selections of materials and systems. Two printed sets and one reproducible set of Schematic Design Documents shall be provided to the Owner for its review and for distribution to the Construction Manager. When the Design

Professional submits the Schematic Design Documents, the Design Professional shall identify in writing for the Construction Manager's review and the Owner's approval all material / important changes and deviations that have taken place from the Design Professional's approved preliminary estimate of the Cost of

Construction and Project Schedule.

3.2.4 DESIGN DEVELOPMENT DOCUMENTS Based on the approved Schematic Design Documents and the updated estimate of the Cost of Construction and Project Schedule, the Design Professional shall prepare, for the Construction Manager's review and the Owner's approval, Design Development Documents.

The Design Development Documents shall further define the Project, including drawings and outline specifications fixing and describing the Project size, character and site relationships, and other appropriate elements describing the structural, architectural, mechanical and electrical systems. Design Development

Documents shall include, as applicable, plans, sections and elevations; criteria and sizing of major components; equipment sizes and capacities and approximate layouts, including required spaces and clearances; typical details; materials selections and general quality levels. When the Design Professional submits the Design Development Documents, the Design Professional shall identify in writing all material / important changes and deviations for the Owner's approval that have taken place from the Schematic Design

Documents and the previously approved estimate of the Cost of Construction and Project Schedule. Two printed sets and one reproducible set of Design Development Documents shall be provided to the Owner for its review and for distribution to the Construction Manager.

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties

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3.2.5 CONSTRUCTION DOCUMENTS Based on the approved Design Development Documents and updated estimate of the Cost of Construction and Project Schedule, the Design Professional shall prepare, for the Construction Manager's review and the Owner's approval and the approval of governmental authorities, including any revisions necessary to secure such approvals, Construction Documents setting forth in detail the quality levels of and the requirements for construction of the Project, and consisting of drawings and specifications that comply with applicable codes, laws and regulations enacted at the time of their preparation at the location of the Project. When the Design Professional submits the Construction Documents, the Design

Professional shall identify in writing all material / important changes and deviations for the Owner's approval that have taken place from the Design Development Documents and the previously approved estimate of the

Cost of Construction and Project Schedule. The Construction Documents shall completely describe all work necessary to bid and construct the Project. Two printed sets and one reproducible set of the Construction

Documents shall be provided to the Owner for its review and for distribution to the Construction Manager.

3.2.5A In accordance with Iowa Code Chapter 26, the Design Professional shall calculate the estimated total

Cost of Construction which shall be used to determine the applicable competitive bidding procedure. The

Construction Manager shall aid the Design professional in performing this calculation.

3.2.6 DESIGN COORDINATION The Design Professional shall coordinate the Services of all its design consultants for the Project who are or will be (List here or in a separate attached exhibit the names or disciplines of design consultants ) As an additional service to the Owner, the Design Professional shall coordinate the Service of the following design consultants of the Owner (list here or in a separate attached exhibit the names of the design consultants of the owner who have separate contracts with the owner:

3.2.7 LONG-LEAD ITEMS The Design Professional shall assist the Owner to evaluate a schedule prepared by the Construction Manager for procurement of long-lead-time items which shall constitute part of the Work as required to meet the Construction Schedule.

3.2.8 BIDDING ASSISTANCE The Design Professional shall assist the Owner in evaluating the Construction

Manager's recommendations regarding the division of the Work into Trade Contractor Bid packages or proposals. The Design Professional shall assist the Construction Manager and the Owner in obtaining bids from contractors by providing up to six (6) sets of drawings, specifications and any addenda, attending pre-bid or pre-award meetings, clarifying the scope and intent of the Construction Documents and, if appropriate, evaluating proposed subcontractors and material suppliers for portions of the Work. The Design

Professional shall issue any addenda or clarifications promptly in writing.

3.2.8.1 If the lowest bona fide bid exceeds the Design Professional's final approved estimate of the Cost of Construction by Twenty (20.00)% or more, and the Owner, in its sole discretion, elects not to accept such bid or proposal or to rebid or renegotiate the Project, the Design Professional, without additional compensation, shall work with the Construction Manager and the Owner to make the necessary modifications to the Construction Documents to reduce the Cost of Construction to an amount less than or equal to the sum of the final approved estimate of the Cost of Construction plus the percentage stated above. This Clause shall not apply if estimates are prepared by or are the responsibility of the

Trade Contractor or Others.

3.2.9 CONSTRUCTION PHASE SERVICES The Construction Phase will commence upon the earlier of (a) the first award of a Trade Contract or (b) such other date as the Parties agree. Such award or authorizations by Owner shall be issued with contemporaneous notification to the Design Professional. If requested by the

Owner, the Design Professional shall assist the Construction Manager to review the schedule of values submitted by the Trade Contractors for the Work. The Design Professional shall furnish upon request to the

Owner and to the Construction Manager interpretations and clarifications of the drawings and specifications, by means of additional drawings, addenda or otherwise, as are necessary for the proper execution and

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties

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T progress of the Work. All such interpretations and clarifications shall be consistent with the intent of the

Construction Documents and reasonably inferable from them.

3.2.9.1 SUBMITTALS The Design Professional shall collaborate with the Construction Manager to establish and implement procedures for expediting the processing and approval of shop drawings and samples. The Design Professional shall review the Trade Contractors' submittals and make approvals of or recommendations about such submittals to the Construction Manager and the Owner within Ten

(10) Days of receiving the submittals from the Construction Manager, unless otherwise agreed to by the

Owner in writing. The Design Professional shall check the Trade Contractors' submittals for conformance with the design and scope of the Project and for compliance with the Construction

Documents. The Design Professional shall be entitled to rely on the accuracy and completeness of any professional certifications required by the Construction Documents of Trade Contractors concerning the performance criteria of systems, equipment or materials, including all calculations relating thereto and any governing performance requirements. The Design Professional's review of submittals shall not extend to the Trade Contractors' means, methods, techniques, sequences or procedures, unless such means, methods, techniques, sequences or procedures have been specified by the Design

Professional.

3.2.9.2 The Design Professional shall assist the Construction Manager and the Owner in the evaluation and processing of requests for changes in the Work.

3.2.9.3 WORKSITE VISITS The Design Professional shall visit the Worksite at appropriate intervals, but not less than (As needed, but a minimum of 3) times, or pursuant to such schedule as the Parties may establish by attachment of Exhibit F to this Agreement, to become generally familiar with the quality of the Work and to determine in general if the Work is proceeding in accordance with the Construction

Document. After each Worksite visit, the Design Professional shall promptly provide the Owner with a written report. If the Design Professional becomes aware of any defects or deficiencies in the Work, the

Design Professional shall provide prompt notice, followed by written confirmation, to the Owner. If, in the Design Professional's opinion, special testing or inspection of the Work is needed, the Design

Professional shall recommend such testing or inspection procedures and appropriate consultants to the

Construction Manager. The Design Professional shall not be responsible for construction means, methods, techniques, sequences and procedures, unless they are specified by the Design Professional, or for ensuring that the Work is in accordance with the Construction Documents.

3.2.9.4 SAFETY The Design Professional shall not be responsible for the Trade Contractor's safety precautions and programs. However, if the Design Professional has actual knowledge of safety violations, the Design Professional shall give prompt written notice to the Owner. While at the Worksite, the Design Professional shall comply with the safety programs of the Construction Manager and the

Trade Contractors.

3.2.9.5 The Design Professional shall review and approve or reject the Trade Contractors' applications for payment. Application for payment should be collected and reviewed by the Construction Manager before the Design Professional shall consider the Construction Manager's recommendation. The

Payment process must comply with Iowa law (and in particular Iowa Code chapter 573).

3.2.9.6 The Design Professional shall participate in regular meetings with the Owner and the

Construction Manager upon reasonable request of the Owner or the Construction Manager.

3.2.9.7 The Design Professional shall assist the Owner and Construction Manager in conducting up to

(1 per trade) inspections to determine the date or dates of Trade Contractor's Substantial Completion of the Work. Such assistance shall include compiling a list of items to be completed or corrected so that the Owner may occupy or utilize the Work or a designated portion for its intended use.

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3.2.9.8 The Design Professional shall assist the Owner and Construction Manager in conducting up to

(1 per trade) inspections to determine Trade Contractor's Final Completion of the Work.

3.2.9.9 The Design Professional shall make One (1) visits to the Worksite during the Trade Contractors' one-year correction periods to assist the Owner in evaluating the need for any corrective measures.

3.2.10 HAZARDOUS MATERIAL A Hazardous Material is any substance or material identified as hazardous under any federal, state or local law or regulation, or any other substance or material which may be considered hazardous or otherwise subject to statutory or regulatory requirement governing handling, disposal or clean-up. To the extent not identified in this Agreement, if a Hazardous Material is discovered at the Worksite, the Design Professional shall not be required to perform Services relating to or in the area of the Hazardous Material without written mutual agreement.

3.2.10.1 INDEMNIFICATION To the fullest extent permitted by law, the Owner shall defend, indemnify and hold harmless the Design Professional, Construction Manager, Trade Contractors and their subcontractors and suppliers, and the agents, officers, directors and employees of each of them, from and against any and all claims, damages, losses, fines, penalties, costs and expenses, whether direct, indirect or consequential, including but not limited to attorneys' fees, costs and expenses incurred in connection with litigation or arbitration arising out of or relating to the performance of Services in any area affected by Hazardous Material. To the fullest extent permitted by law, such indemnification shall apply regardless of the fault, negligence, breach of warranty or contract, or strict liability of the indemnitee. To the extent portions of this paragraph are in conflict with SF 396 (codified at Iowa Code

Section 573A.5) said portions are void and unenforceable.

3.3 ADDITIONAL SERVICES The following Services shall be provided by the Design Professional and paid for as Additional Services, if they are authorized in advance by the Owner in writing and are not included in

Basic Services as set forth in Sections 3.1 and 3.2:

3.3.1 Investigation of sources of financing, general business planning and other information and documentation as may be required to establish the feasibility of the Project.

3.3.2 Consultations, negotiations, and documentation supporting the procurement of Project financing.

3.3.3 Surveys, site evaluations, legal descriptions and aerial photographs.

3.3.4 Appraisals of existing equipment, existing facilities, new equipment and developed properties.

3.3.5 Soils, subsurface and environmental studies, reports and investigations required for submission to governmental authorities or others having jurisdiction over the Project.

3.3.6 Document reproduction exceeding the limits provided for under Sections 3.2.

3.3.7 Investigating or making measured drawings of existing conditions or the verification of Ownerprovided drawings and information.

3.3.8 Artistic renderings, models and mockups of the Project or any part of the Project.

3.3.9 Inventories of existing furniture, fixtures, furnishings and equipment which might be under consideration for incorporation into the Project.

3.3.10 Interior design and related Services, including procurement and placement of furniture, furnishings, artwork and decorations.

3.3.11 Making revisions to the Schematic Design, Design Development, or Construction Documents after

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties

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T they have been approved by the Owner, and which are due to causes beyond the control of the Design

Professional (including unreasonable acts by a building code official).

3.3.12 Design, coordination, management, expediting and other Services supporting the procurement of materials to be obtained or work to be performed by the Owner, including but not limited to telephone systems, computer wiring networks, sound systems, alarms, security systems and other specialty systems which are not a part of this Agreement.

3.3.13 Estimates, proposals, appraisals, consultations, negotiations and Services in connection with the repair or replacement of an insured loss.

3.3.14 The premium portion of overtime work ordered by the Owner, including productivity impact costs, other than that required by the Design Professional to maintain the Construction Schedule for causes that are the responsibility of the Design Professional.

3.3.15 Obtaining service contractors and training maintenance personnel; assisting and consulting in the use of systems and equipment after the initial startup.

3.3.16 Services for tenant or rental spaces not a part of this Agreement.

3.3.17 Serving or preparing to serve as an expert witness on behalf of the Owner in connection with any proceeding, legal or otherwise, regarding the Project in which the Design Professional is not a party.

3.3.18 Preparing reproducible record drawings from marked-up prints, drawings or other documents that incorporate significant changes made during the Construction Phase.

3.3.19 Worksite visits in excess of the number of visits provided for in Clauses 3.2.9.3, 3.2.9.8, and 3.2.9.9 or the number of visits in a schedule established by attachment to this Agreement.

3.3.20 Attending meetings in excess of the number provided for in Clause 3.2.9.6 3.2.9.7.

3.3.21 Providing Services relating to Hazardous Material discovered at the Worksite.

3.3.22 Consultations and representations before governmental authorities or others having jurisdiction over the Project other than normal assistance in securing building permits.

3.3.23 Out-of-town travel by the Design Professional in connection with the Work, except between the Design

Professional's office, the Owner's office and the Worksite.

3.3.24 Services requested by the Owner or required by the Work which are not specified in the Contract

Documents and which are not normally part of generally accepted design and construction practice.

3.3.25 Other Services as agreed to by the Parties and identified in an attached exhibit.

3.4 QUALIFICATIONS The Design Professional warrants and represents that the Design Professional and its consultants are duly qualified, licensed, registered and authorized by law to perform the Services under this

Agreement.

3.5 CONSULTANTS The Design Professional shall not engage the Services of any consultant without first obtaining the Owner's written approval, which approval shall not be unreasonably withheld. Such approval by the Owner shall not be deemed to create any contractual relationship between the Owner and any such consultant, except that the Owner shall be considered the intended beneficiary of the performance of their

Services. Except for the waivers required under Section 5.4 and Subsection 7.3.2, the Design Professional shall not include any limits of liability in its agreements with any consultants without the prior written approval of the Owner. The Design Professional shall bind its consultants in the same manner as the Design

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties

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Professional is bound to the Owner under this Agreement.

3.6 DESIGN PROFESSIONAL'S REPRESENTATIVE The Design Professional's representative is , who shall possess full authority to receive and act on instructions from the Owner. Unless agreed to by the Parties in an exhibit attached hereto, the Design Professional's representative is also authorized to bind the Design

Professional in all matters relating to this Agreement including, without limitations, all matters requiring the

Construction Manager's approval, authorization, or written notice. The Design Professional's representative is also authorized to resolve disputes in accordance with Section 9.2 of this Agreement.

3.7 KEY PROJECT PERSONNEL The key Project personnel whom the Design Professional shall assign are as set forth in an exhibit attached hereto, including the estimated percentage of time to be devoted by each to the Design Professional's Services. Such personnel shall not be changed without the written approval of the Owner, which approval shall not be unreasonably withheld.

3.8 FINANCIAL INFORMATION Prior to commencement of Services, and thereafter, the Design Professional shall have the right, upon written request, to receive from the Owner evidence of the Owner's financial ability to pay for the Design Professional's Services. Evidence of the Owner's financial ability to pay for Services shall be a condition precedent to the Design Professional commencing or continuing Services. The Design

Professional shall be notified prior to any material change in the Owner's ability to pay for Services.

3.9 ROYALTIES, PENALTIES AND COPYRIGHTS The Design Professional shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods or systems selected by the Design Professional and incorporated in the design documents of the Design Professional.

The Design Professional shall defend and hold the Owner, Construction Manager, Trade Contractor and

Subcontractors harmless from all suits or claims for infringement of any patent rights or copyrights arising out of such selection. To the extent portions of this paragraph are in conflict with SF 396 (codified at Iowa Code

Section 573A.5) said portions are void and unenforceable.

3.10 CONFIDENTIALITY The Owner shall treat as confidential information all proprietary design systems and methods that may be disclosed to the Owner in connection with the performance of this Agreement if they are specified and marked as "Confidential". If a document is not marked as "Confidential" it will not be treated as such. Nothing contained herein, however, shall be interpreted in a manner that modified or is in conflict with the purpose and application of the open records laws contained in the Code of Iowa.

ARTICLE 4 OWNER'S RESPONSIBILITIES

4.1 INFORMATION AND SERVICES PROVIDED BY THE OWNER

4.1.1 To the extent the Owner has obtained the information and Services identified below, the Owner shall provide them to the Design Professional in a timely manner. The Design Professional shall be entitled to rely on the completeness and accuracy of such information and Services.

4.1.1.1 Information describing the physical characteristics of the Worksite, including surveys, Worksite evaluations, legal descriptions, existing conditions, subsurface and environmental studies, reports and investigations, all as set forth in Exhibit A.

4.1.1.2 Inspection and testing Services during construction as required by law or as mutually agreed.

4.1.1.3 Unless otherwise provided in the Contract Documents, necessary approvals, site plan review, rezoning, easements and assessments, fees and charges required for the construction, use, occupancy or renovation of permanent structures, including legal and other required Services. The information required by Clause 4.1.1.1 shall be provided in reasonable detail. Legal descriptions shall include easements, title restrictions, boundaries, and zoning restrictions. Worksite descriptions shall include

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties

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T existing buildings and other construction and all other pertinent site conditions. Adjacent property descriptions shall include structures, streets, sidewalks, alleys, and other features relevant to the Work.

Utility details shall include available Services, lines at the Worksite and adjacent thereto, and connection points. The information shall include public and private information, subsurface information, grades, contours, and elevations, drainage data, exact locations and dimensions, and benchmarks that can be used in laying out the Work. The Design Professional shall in writing request from the Owner any information identified in Paragraph 4.1.1 that the Design Professional believes the Owner has obtained but has not provided to the Professional.

4.1.2 The Owner shall promptly report to the Design Professional errors, inconsistencies and omissions it discovers in the Construction Documents; however, nothing in this subsection shall relieve the Design

Professional of responsibility for its own errors, inconsistencies and omissions.

4.1.3 Approvals by the Owner shall not be deemed to be an assumption of responsibility by the Owner for any error, inconsistency or omission in the drawings and specifications or other documents prepared by the

Design Professional, its employees, agents or consultants. The Owner shall provide all approvals required under this Agreement in a timely manner.

4.2 OWNER'S REPRESENTATIVE The Owner's representative is . The Representative:

4.2.1 shall be fully acquainted with the Project;

4.2.2 agrees to furnish the information and Services required of the Owner pursuant to section 4.1 so as not delay the Services of the Design Professional; and

4.2.3 shall have authority to bind the Owner in all matters requiring the Owner's approval, authorization or written notice. If the Owner changes its representative or the representative's authority as listed above, the

Owner shall notify the Design Professional in writing in advance. The Owner's Representative is also authorized to resolve disputes in accordance with Section 9.2 of this Agreement.

4.3 TRADE CONTRACTS The Owner shall provide the Design Professional with copies of all executed Trade

Contracts.

4.4 LEGAL REQUIREMENTS The Owner will not provide legal advice to or act as the attorney for the Design

Professional. The Owner expects that the design Professional will consult an attorney whenever the Design

Professional believes that doing so is its best interest.

4.5 ROYALTIES, PATENTS AND COPYRIGHTS The Owner shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods or systems specifically required by the Owner to be incorporated in the design documents of the Design Professional. The Owner agrees to defend and hold the Design Professional harmless from any suits or claims of infringement of any patent rights or copyrights arising out of any patented or copyrighted materials, methods or systems required by the Owner or used by the Trade Contractor but not required by the Owner or Design Professional. To the extent portions of this paragraph are in conflict with SR 396 (codified at Iowa Code Section 573A.5) said portions are void and unenforceable.

ARTICLE 5 TIME

5.1 TIME FOR SERVICES The Design Professional shall provide the Services required by this Agreement in conformance with the most recent Project Schedule approved by the Owner. The Design Professional's Fee as set forth in Section 6.1 is based on completion of Construction Documents no later than Zero (0) Days following execution of this Agreement. If completion of Construction Documents is not achieved within this time through no fault of the Design Professional, the Design Professional's Fee shall be equitably adjusted.

ConsensusDocs� 803 - Standard Agreement Between Owner and Design Professional (CM Acting as Agent has been Retained by Owner) - © 2007, Revised 2011. THIS DOCUMENT MAY HAVE BEEN MODIFIED FROM THE STANDARD LANGUAGE, and a report of modifications can be generated through the ConsensusDocs platform. Purchase of the document permits the user to print one contract for each party to the contract within one project only. You may only make copies of finalized documents for distribution to parties

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The term Project Schedule in this paragraph shall have the same meaning as the Construction Schedule defined in Section 2.7.5.

5.2 DELAYS BY DESIGN PROFESSIONAL If the progress or completion of the Project is delayed by reason of any error, inconsistency or omission of the Design Professional which violates the applicable standard of care, the Design Professional shall compensate the Owner for and indemnify it against all damages which may accrue as a result of such delay, except as otherwise provided in Section 5.4. In addition, the Design

Professional shall provide Services at its own cost, including any overtime costs and expenses, required to make up time lost to the Owner because of such delay. The Owner shall provide prompt written notice to the

Design Professional of such delay after the Owner first recognizes the delay.

5.3 DELAYS BY OWNER If the Design Professional is delayed in the performance of its Services by any act or omission of the Owner, or by changes ordered by the Owner which are due to causes beyond the Design

Professional's control, or by a delay authorized by the Owner pending dispute resolution, then the time allotted in the Project Schedule for the Design Professional's Services shall be extended for the period of such delay or the Owner shall authorize the Design Professional to work overtime to make up such lost time, and the Design Professional's compensation shall be equitably adjusted. The Design Professional shall provide prompt written notice to the Owner of such delay after the Design Professional first recognizes such delay.

5.4 LIMITED MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES

5.4.1 The Owner and the Design Professional waive claims against each other for consequential damages arising out of or relating to this Agreement, whether arising in contract, warranty, tort (including negligence), strict liability or otherwise, including but not limited to losses of use, profits, business, reputation or financing, except for those specific items of damages excluded from this waiver, as mutually agreed upon by the Parties and identified below.