EXHIBIT 10.10
35
THE AMERICAN INSTITUTE OF ARCHITECTS
AIA Document B141
STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ARCHITECT
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH
AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR
MODIFICATION.
AGREEMENT
made as of the Twenty-seventh day of July in the year of Nineteen
Hundred and Ninety Five
BETWEEN the Owner:
(Name and address) Rio Hotel & Casino, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
and the Architect:
(Name and address) Xxxxxxx X. Xxxxxxx XX, Chtd.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
For the following Project:
(Include detailed description of Project, location, address and
scope)
XXX XXXXX 0 EXPANSION
Architect's Project No. AAM 205-95
See Attachment #1
The Owner and Architect agree as set forth below.
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TERMS AND CONDITIONS OF AGREEMENT BETWEEN OWNER AND ARCHITECT
ARTICLE 1
ARCHITECT'S RESPONSIBILITIES
1.1 ARCHITECT'S SERVICES
1.1.1 The Architect's services consist of those services
performed by the Architect, Architect's employees and Architect's
consultants as enumerated in Articles 2 and 3 of this Agreement
and any other services included in Article 12.
1.1.2 The Architect's services shall be performed as
expeditiously as is consistent with professional skill and care
and the orderly progress of the Work. Upon request of the Owner,
the Architect shall submit for the Owner's approval a schedule
for the performance of the Architect's services which may be
adjusted as the Project proceeds, and shall include allowances
for periods of time required for the Owner's review and for
approval of submissions by authorities having jurisdiction over
the Project. Time limits established by this schedule approved
by the Owner shall not, except for reasonable cause, be exceeded
by the Architect or Owner.
1.1.3 The services covered by this Agreement are subject to the
time limitations contained in Subparagraph 11.5.1.
ARTICLE 2
SCOPE OF ARCHITECT'S BASIC SERVICES
2.1 DEFINITION
2.1.1 The Architect's Basic Services consist of those described
in Paragraphs 2.2 through 2.6 and any other services identified
in Article 12 as part of Basic Services, and include normal
structural, mechanical and electrical engineering services.
2.2 SCHEMATIC DESIGN PHASE
2.2.1 The Architect shall review the program furnished by the
Owner to ascertain the requirements of the Project and shall
arrive at a mutual understanding of such requirements with the
Owner.
2.2.2 The Architect shall provide a preliminary evaluation of the
Owner's program, schedule and construction budget requirements,
each in terms of the other, subject to the limitations set forth
in Subparagraph 5.2.1.
2.2.3 The Architect shall review with the Owner alternative
approaches to design and construction of the Project.
2.2.4 Based on the mutually agreed-upon program, schedule and
construction budget requirements, the Architect shall prepare,
for approval by the Owner, Schematic Design
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Documents consisting of drawings and other documents illustrating
the scale and relationship of Project components.
2.2.5 The Architect shall submit to the Owner a preliminary
estimate of Construction Cost based on current area, volume or
other unit costs.
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 Based on the approves Schematic Design Documents and any
adjustments authorized by the Owner in the program schedule or
construction budget, the Architect shall prepare, for approval by
the Owner, Design Development Documents consisting of drawings
and other documents to fix and describe the size and character of
the Project as to architectural, structural, mechanical and
electrical systems, materials and such other elements as may be
appropriate.
2.3.2 The Architect shall advise the Owner of any adjustments to
the preliminary estimate of Construction Cost.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 Based on the approved Design Development Documents and any
further adjustments in the scope or quality of the Project or in
the construction budget authorized by the Owner, the Architect
shall prepare, for approval by the Owner, Construction Documents
consisting of Drawings and Specifications setting forth in detail
the requirements for the construction of the Project.
2.4.2 See Exhibit "A."
2.4.3 The Architect shall advise the Owner of any adjustments to
previous preliminary estimates of Construction Cost indicated by
changes in requirements or general market conditions.
2.4.4 The Architect shall assist the Owner in connection with the
Owner's responsibility for filing documents required for the
approval of governmental authorities having jurisdiction over the
Project.
2.5 BIDDING OR NEGOTIATION PHASE
2.5.1 See Exhibit "A."
2.6 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION
CONTRACT
2.6.1 See Exhibit "A."
2.6.2 See Exhibit "A."
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2.6.3 Duties, responsibilities and limitations of authority of
the Architect shall not be restricted, modified or extended
without written agreement of the Owner and Architect with consent
of the Contractor, which consent shall not be unreasonably
withheld.
2.6.4 The Architect shall be a representative of and shall advise
and consult with the Owner (1) during construction until final
payment to the Contractor is due, and (2) as an Additional
Service at the Owner's direction from time to time during the
correction period described in the Contract for Construction.
The Architect shall have authority to act on behalf of the Owner
only to the extent provided in this Agreement unless otherwise
modified by written instrument.
2.6.5 The Architect shall visit the site at intervals appropriate
to the stage of construction or as otherwise agreed by the Owner
and Architect in writing to become generally familiar with the
progress and quality of the Work completed and to determine in
general if the Work is being performed in a manner indicating
that the Work when completed will be in accordance with the
Contract Documents. However, the Architect shall not be required
to make exhaustive or continuous on-site inspections to check the
quality or quantity of the Work. On the basis of one-site
observations as an architect, the Architect shall keep the Owner
informed of the progress and quality of the Work, and shall
endeavor to guard the Owner against defects and deficiencies in
the Work. (More extensive site representation may be agreed to
as an Additional Service, as described in Paragraph 3.2.)
2.6.6 The Architect shall not have control over or charge of and
shall not be responsible for construction means, methods,
techniques, sequences or procedures, or for safety precautions
and programs in connection with the Work, since these are solely
the Contractor's responsibility under the Contract for
Construction. The Architect shall not be responsible for the
Contractor's schedules or failure to carry out the Work in
accordance with the Contract Documents. The Architect shall not
have control over or charge of acts or omissions of the
Contractor, Subcontractors, or their agents or employees, or of
any other persons performing portions of the Work.
2.6.7 The Architect shall at all times have access to the Work
wherever it is in preparation or progress.
2.6.8 Except as may otherwise be provided in the Contract
Documents or when direct communications have been specially
authorized, the Owner and Contractor shall communicate through
the Architect. Communications by and with the Architect's
consultants shall be through the Architect.
2.6.9 See Exhibit "A."
2.6.10 See Exhibit "A."
2.6.11 The Architect shall have authority to reject Work which
does not conform to the Contract Documents. Whenever the
Architect considers it necessary or advisable for implementation
of the intent of the Contract Documents, the Architect will have
authority to require additional inspection or testing of the Work
in accordance with the provisions of the
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Contract Documents, whether or not such Work is fabricated,
installed or completed. However, neither this authority of the
Architect nor a decision made in good faith either to exercise
or not to exercise such authority shall give rise to a duty or
responsibility of the Architect to the Contractor, Subcontractors,
material and equipment suppliers, their agents or employees or
other persons performing portions of the Work.
2.6.12 The Architect shall review and approve or take other
appropriate action upon Contractor's submittals such as Shop
Drawings, Product Data and Samples, but only for the limited
purpose of checking for conformance with information given and
the design concept expressed in the Contract Documents. The
Architect's action shall be taken with such reasonable promptness
as to cause no delay in the Work or in the construction of the
Owner or of separate contractors, while allowing sufficient time
in the Architect's professional judgment to permit adequate
review. Review of such submittals is not conducted for the
purpose of determining the accuracy and completeness of other
details such as dimensions and quantities or for substantiating
instructions for installation or performance of equipment or
systems designed by the Contractor, all of which remain the
responsibility of the Contractor to the extent 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 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. When professional certification
of performance characteristics of materials, systems or equipment
is required by the Contract Documents, the Architect shall be
entitled to rely upon such certification to establish that the
materials, systems or equipment will meet the performance
criteria required by the Contract Documents.
2.6.13 See Exhibit "A."
2.6.14 See Exhibit "A."
2.6.15 The Architect shall interpret and decide matters
concerning performance of the Owner and Contractor under the
requirements of the Contract Documents on written request of
either the Owner or Contractor. The Architect's response to such
requests shall be made with reasonable promptness and within any
time limited agreed upon.
2.6.16 Interpretations and decisions of the Architect shall be
consistent with the intent of and reasonably inferable from the
Contract Documents and shall be in writing or in the form of
drawings. When making such interpretations and initial
decisions, the Architect shall endeavor to secure faithful
performance by both Owner and Contractor, shall not show
partiality to either, and shall not be liable for results of
interpretations or decisions so rendered in good faith.
2.6.17 The Architect's decisions on matters relating to
aesthetic effect shall be final if consistent with the intent
expressed in the Contract Documents.
2.6.18 The Architect shall render written decisions within a
reasonable time on all claims, disputes or other matters in
question between the Owner and Contractor relating to the
execution or progress of the Work as provided in the Contract
Documents.
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2.6.19 The Architect's decisions on claims, disputes or other
matters, including those in question between the Owner and
Contractor, except for those relating to aesthetic effect as
provided in Subparagraph 2.6.17, shall be subject to arbitration
as provided in this Agreement and in the Contract Documents.
ARTICLE 3
ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 The services described in this Article 3 are not included
in Basic Services unless so identified in Article 12, and they
shall be paid for by the Owner as provided in this Agreement, in
addition to the compensation for Basic Services. The services
described under Paragraphs 3.2 and 3.4 shall only be provided if
authorized or confirmed in writing by the Owner. If services
described under Contingent Additional Services in Paragraph 3.3
are required due to circumstances beyond the Architect's control,
the Architect shall notify the Owner prior to commencing such
services. If the Owner deems that such services described under
Paragraph 3.3 are not required, the Owner shall give prompt
written notice to the Architect. If the Owner indicates in
writing that all or part of such Contingent Additional Services
are not required, the Architect shall have no obligation to
provide those services.
3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES
3.2.1 See Exhibit "A."
3.2.2 See Exhibit "A."
3.2.3 Through the observations by such Project Representatives,
the Architect shall endeavor to provide further protection for
the Owner against defects and deficiencies in the Work, but the
furnishing of such project representation shall not modify the
rights, responsibilities or obligations of the Architect as
described elsewhere in this Agreement.
3.3 CONTINGENT ADDITIONAL SERVICES
3.3.1 Making revisions in Drawings, Specifications or other
documents when such revisions are:
.1 inconsistent with approvals or instructions previously
given by the Owner, including revisions made necessary
by adjustments in the Owner's program or Project
budget;
.2 required by the enactment or revision of codes, laws or
regulations subsequent to the preparation of such
documents; or
.3 due to changes required as a result of the Owner's
failure to render decisions in a timely manner.
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3.3.2 Providing services required because of significant changes
in the Project including, but not limited to, size, quality,
complexity, the Owner's schedule, or the method of bidding or
negotiating and contracting for construction, except for services
required under Subparagraph 5.2.5.
3.3.3 Preparing Drawings, Specifications and other documentation
and supporting data, evaluating Contractor's proposals, and
providing other services in connection with Change Orders and
Construction Change Directives.
3.3.4 Providing services in connection with evaluating
substitutions proposed by the Contractor and making subsequent
revisions to Drawings, Specifications and other documentation
resulting therefrom.
3.3.5 Providing consultation concerning replacement of Work
damaged by fire or other cause during construction, and
furnishing services required in connection with the replacement
of such Work.
3.3.6 Providing services made necessary by the default of the
Contractor, by major defects or deficiencies in the Work of the
Contractor, or by failure of performance of either the Owner or
Contractor under the Contract for Construction.
3.3.7 See Exhibit "A."
3.3.8 Providing services in connection with a public hearing,
arbitration proceeding or legal proceeding except where the
Architect is party thereto.
3.3.9 Preparing documents for alternative, separate or sequential
bids or providing services in connection with bidding,
negotiation or construction prior to the completion of the
Construction Documents Phase.
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1 Providing analyses of the Owner's needs and programming the
requirements of the Project.
3.4.2 Providing financial feasibility or other special studies.
3.4.3 Providing planning surveys, site evaluation or comparative
studies of prospective sites.
3.4.4 See Exhibit "A."
3.4.5 Providing services relative to future facilities, systems
and equipment.
3.4.6 Providing services to investigate existing conditions or
facilities or to make measured drawings thereof.
3.4.7 Providing services to verify the accuracy of drawings or
other information furnished by the Owner.
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3.4.8 Providing coordination of construction performed by
separate contractors or by the Owner's own forces and
coordination of services required in connection with construction
performed and equipment supplied by the Owner.
3.4.9 Providing services in connection with the work of a
construction manager or separate consultants retained by the
Owner.
3.4.10 Providing detailed estimates of Construction Cost.
3.4.11 Providing detailed quantity surveys or inventories of
material, equipment and labor.
3.4.12 Providing analyses of owning and operating costs.
3.4.13 See Exhibit "A."
3.4.14 Providing services for planning tenant or rental
spaces.
3.4.15 Making investigations, inventories of materials or
equipment, or valuations and detailed appraisals of existing
facilities.
3.4.16 Preparing a set of reproducible record drawings showing
significant changes in the Work made during construction based on
marked-up prints, drawings and other data furnished by the
Contractor to the Architect.
3.4.17 Providing assistance in the utilization of equipment or
systems such as testing, adjusting and balancing, preparation of
operation and maintenance manuals, training personnel for
operation and maintenance, and consultation during operation.
3.4.18 See Exhibit "A."
3.4.19 Providing services of consultants for other than
architectural, structural, mechanical and electrical engineering
portions of the Project provided as a part of Basic Services.
3.4.20 Providing any other services not otherwise included in
this Agreement or not customarily furnished in accordance with
generally accepted architectural practice.
ARTICLE 4
OWNER'S RESPONSIBILITIES
4.1 The Owner shall provide full information regarding
requirements for the Project, including a program which shall set
forth the Owner's objectives, schedule, constraints and criteria,
including space requirements and relationships, flexibility,
expandability, special equipment, systems and site requirements.
4.2 The Owner shall establish and update an overall budget for
the Project, including the Construction Cost, the Owner's other
costs and reasonable contingencies related to all of these costs.
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4.3 If requested by the Architect, the Owner shall furnish
evidence that financial arrangements have been made to fulfill
the Owner's obligations under this Agreement.
4.4 See Article 12.
4.5 The Owner shall furnish surveys describing 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 structure; adjacent drainage; rights-of-way,
restrictions, easements, encroachments, zoning, deed
restrictions, boundaries and contours of the site; locations,
dimensions and necessary data pertaining to existing buildings,
other improvements and trees; and information concerning
available utility services and lines, both public and private,
above and below grade, including inverts and depths. All the
information on the survey shall be referenced to a Project
benchmark.
4.6 See Exhibit "A."
4.6.1 The Owner shall furnish the services of other consultants
when such services are reasonably required by the scope of the
Project and are requested by the Architect.
4.7 The Owner shall furnish structural, mechanical, chemical,
air and water pollution tests, tests for hazardous materials, and
other laboratory and environmental tests, inspections and reports
required by law or the Contract Documents.
4.8 The Owner shall furnish all legal, accounting and insurance
counseling services as may be necessary at any time for the
Project, including auditing services the Owner may require to
verify the Contractor's Applications for Payment or to ascertain
how or for what purposes the Contractor has used the money paid
by or on behalf of the Owner.
4.9 The services, information, surveys and reports required by
Paragraphs 4.5 through 4.8 shall be furnished at the Owner's
expense, and the Architect shall be entitled to rely upon the
accuracy and completeness thereof.
4.10 Prompt written notice shall be given by the Owner to the
Architect if the Owner becomes aware of any fault or defect in
the Project or nonconformance with the Contract Documents.
4.11 The proposed language of certificates or certifications
requested of the Architect or Architect's consultants shall be
submitted to the Architect for review and approval at least 14
days prior to execution. The Owner shall not request
certifications that would require knowledge or services beyond
the scope of this Agreement.
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ARTICLE 5
CONSTRUCTION COST
5.1 DEFINITION
5.1.1 The Construction Cost shall be the total cost or estimated
cost to the Owner of all elements of the Project designed or
specified by the Architect.
5.1.2 The Construction Cost shall include the cost at current
market rates of labor and materials furnished by the Owner and
equipment designed, specified, selected or specially provided for
by the Architect, plus a reasonable allowance for the
Contractor's overhead and profit. In addition, a reasonable
allowance for contingencies shall be included for market
conditions at the time of bidding and for changes in the Work
during construction.
5.1.3 Construction Cost does not include the compensation of the
Architect and Architect's consultants, the costs of the land,
rights-of-way, financing or other costs which are the
responsibility of the Owner as provided in Article 4.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owner's Project budget, preliminary
estimates of Construction Cost and detailed estimates of
Construction Cost, if any, prepared by the Architect, represent
the Architect's best judgment as a design professional familiar
with the construction industry. It is recognized, however, that
neither the Architect nor the Owner has control over the cost of
labor, materials or equipment, over the Contractor's methods of
determining bid prices, or over 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 Project budget or from any estimate of
Construction Cost or evaluation prepared or agreed to by the
Architect.
5.2.2 No fixed limit of Construction Cost shall be established as
a condition of this Agreement by the Furnished, proposal or
establishment of a Project budget, unless such fixed limit has
been agreed upon in writing and signed by the parties hereto. If
such a fixed limit has been established, the Architect shall be
permitted to include contingencies for design, bidding and price
escalation, to determine what materials, equipment, component
systems and types of construction are to be included in the
Contract Documents, to make reasonable adjustments in the scope
of the Project and to include in the Contract Documents alternate
bids to adjust the Construction Cost to the fixed limit. Fixed
limits, if any, shall be increased in the amount of an increase
in the Contract Sum occurring after execution of the Contract for
Construction.
5.2.3 If the Bidding or Negotiation Phase has not commenced
within 90 days after the Architect submits the Construction
Documents to the Owner, any Project budget or fixed limit of
Construction Cost shall be adjusted to reflect changes in the
general level of xxxxx in the construction industry between the
date of submission of the Construction Documents to the Owner and
the date on which proposals are sought.
5.2.4 If a fixed limit of Construction Cost (adjusted as provided
in Subparagraph 5.2.3) is exceeded by the lowest bona fide bid or
negotiated proposal, the Owner shall:
.1 give written approval of an increase in such fixed
limit;
.2 authorize rebidding or renegotiating of the Project
within a reasonable time;
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.3 if the Project is abandoned, terminate in accordance
with Paragraph 8.3; or
.4 cooperate in revising the Project scope and quality as
required to reduce the Construction cost.
5.2.5 If the Owner chooses to proceed under Clause 5.2.5.5, the
Architect, without additional charge, shall modify the Contract
Documents as necessary to comply with the fixed limit, if
established as a condition of this Agreement. The modification
of Contract Documents shall be the limit of the Architect's
responsibility arising out of the establishment of a fixed limit.
The Architect shall be entitled to compensation in accordance
with this Agreement for all services performed whether or not the
Construction Phase is commenced.
ARTICLE 6
USE OF ARCHITECT'S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
6.1 The Drawings, Specifications and other documents prepared
by the Architect for this Project are instruments of the
Architect's service for use solely with respect to this Project
and, unless otherwise provided, the Architect shall be deemed the
author of these documents and shall retain all common law,
statutory and other reserved rights, including the copyright.
The Owner shall be permitted to retain copies, including
reproducible copies, of the Architect's Drawings, Specifications
and other documents for information and reference in connection
with the Owner's use and occupancy of the Project. The
Architect's Drawings, Specifications or other documents shall not
be used by the Owner or others on other projects, for additions
to this Project or for completion of this Project by others,
unless the Architect is adjudged to be in default under this
Agreement, except by agreement in writing and with appropriate
compensation to the Architect.
6.2 Submission or distribution of documents to meet official
regulatory requirements or for similar purposes in connection
with the Project is not to be construed as publication in
derogation of the Architect's reserved rights.
ARTICLE 7
ARBITRATION
7.1 Claims, disputes or other matters in question between the
parties to this Agreement arising out of or relating to this
Agreement or breach thereof shall be subject to and decided by
arbitration in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Association
currently in effect unless the parties mutually agree otherwise.
7.2 Demand for arbitration shall be filed in writing with the
other party to this Agreement and with the American Arbitration
Association. A demand for arbitration shall be made within a
reasonable time after the claim, dispute or other matter in
question has arisen. In no event shall the demand for
arbitration be made after the date when institution of legal or
equitable proceedings based on such claim, dispute or other
matter in question would be barred by the applicable statutes of
limitations.
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7.3 No arbitration arising out of or relating to this Agreement
shall include, by consolidation, joinder or in any other manner,
an additional person or entity not a party to this Agreement,
except by written consent containing a specific reference to this
Agreement signed by the Owner, Architect, and any other person or
entity sought to be joined. Consent to arbitration involving an
additional person or entity shall not constitute consent to
arbitration of any claim, dispute or other matter in question not
described in the written consent or with a person or entity not
named or described therein. The foregoing agreement to arbitrate
and other agreements to arbitrate with an additional person or
entity duly consented to by the parties to this Agreement shall
be specifically enforceable in accordance with applicable law in
any court having jurisdiction thereof.
7.4 The award rendered by the arbitrator or arbitrators shall
be final, and judgment may be entered upon it in accordance with
applicable law in any court having jurisdiction thereof.
ARTICLE 8
TERMINATION, SUSPENSION OR ABANDONMENT
8.1 This Agreement may be terminated by either party upon not
less than seven days' written notice should the other party fail
substantially to perform in accordance with the terms of this
Agreement through no fault of the party initiating the
termination.
8.2 If the Project is suspended by the Owner for more than 30
consecutive days, the Architect shall be compensated for services
performed prior to notice of such suspension. When the Project
is resumed, the Architect's compensation shall be equitably
adjusted to provide for expenses incurred in the interruption and
resumption of the Architect's services.
8.3 This Agreement may be terminated by the Owner upon not less
than seven days' written notice to the Architect in the event
that the Project is permanently abandoned. If the Project is
abandoned by the Owner for more than 90 consecutive days, the
Architect may terminate this Agreement by giving written notice.
8.4 Failure of the Owner to make payments to the Architect in
accordance with this Agreement shall be considered substantial
nonperformance and cause for termination.
8.5 If the Owner fails to make payment when due the Architect
for services and expenses, the Architect may, upon seven days'
written notice to the Owner, suspend performance of services
under this Agreement. Unless payment in full is received by the
Architect within seven days of the date of the notice, the
suspension shall take effect without further notice. In the
event of a suspension of services, the Architect shall have no
liability to the Owner for delay or damage caused the Owner
because of such suspension of services.
8.6 In the event of termination not the fault of the Architect,
the Architect shall be compensated for services performed prior
to termination, together with Reimbursable Expenses then due and
all Termination Expenses as defined in Paragraph 8.7.
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8.7 Termination Expenses are in addition to compensation for
Basic and Additional Services, and include expenses which are
directly attributable to termination. Termination Expenses shall
be computed as a percentage of the total compensation for basic
Services and Additional Services earned to the time of
termination, as follows:
.1 Twenty percent of the total compensation for Basic
and Additional Services earned to date if termination
occurs before or during the predesign, site analysis,
or Schematic Design Phases; or
.2 Ten percent of the total compensation for Basic and
Additional Services earned to date if termination
occurs during the Design Development Phase; or
.3 Five percent of the total compensation for Basic and
Additional Services earned to date if termination
occurs during any subsequent phase.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Unless otherwise provided, this Agreement shall be governed
by the law of the principal place of business of the Architect.
9.2 See Exhibit "A."
9.3 Causes of action between the parties to this Agreement
pertaining to acts or failures to act shall be deemed to have
accrued and the applicable statutes of limitations shall commence
to run not later than either the date of Substantial Completion
for acts or failures to act occurring prior to Substantial
Completion, or the date of issuance of the final Certificate for
Payment for acts or failures to act occurring after Substantial
Completion.
9.4 See Exhibit "A."
9.5 The Owner and Architect, respectively, bind themselves,
their partners, successors, assigns and legal representatives to
the other party to this Agreement and to the partners,
successors, assigns and legal representatives of such other party
with respect to all covenants of this Agreement. Neither Owner
nor Architect shall assign this Agreement without the written
consent of the other.
9.6 This Agreement represents the entire and integrated
agreement between the Owner and Architect and supersedes all
prior negotiations, representations or agreements, either written
or oral. This Agreement may be amended only by written
instrument signed by both Owner and Architect.
9.7 Nothing contained in this Agreement shall create a
contractual relationship with or a cause of action in favor of a
third party against either the Owner or Architect.
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9.8 Unless otherwise provided in this Agreement, the Architect
and Architect's consultants shall have no responsibility for the
discovery, presence, handling, removal or disposal of or exposure
of persons to hazardous materials in any form at the Project
site, including but not limited to asbestos, asbestos products,
polychlorinated biphenyl (PCB) or other toxic substances.
9.9 The Architect shall have the right to include
representations of the design of the Project, including
photographs of the exterior and interior, among the Architect's
promotional and professional materials. The Architect's
materials shall not include the Owner's confidential or
proprietary information if the Owner has previously advised the
Architect in writing of the specific information considered by
the Owner to be confidential or proprietary. The Owner shall
provide professional credit for the Architect on the construction
sign and in the promotional materials for the Project.
ARTICLE 10
PAYMENTS TO THE ARCHITECT
10.1 DIRECT PERSONNEL EXPENSE
10.1.1 Direct Personnel Expense is defined as the direct
salaries of the Architect's personnel engaged on the Project and
the portion of the cost of their mandatory and customary
contributions and benefits related thereto, such as employment
taxes and other statutory employee benefits, insurance, sick
leave, holidays, vacations, pensions and similar contributions
and benefits.
10.2 REIMBURSABLE EXPENSES
10.2.1 Reimbursable Expenses are in addition to compensation
for Basic and Additional Services and include expenses incurred
by the Architect and Architect's employees and consultants in the
interest of the Project, as identified in the following Clauses.
10.2.1.1 Expense of transpiration in connection with the
Project; expenses in connection with authorized out-of-town
travel; long-distance communications; and fees paid for securing
approval of authorities having jurisdiction over the Project.
10.2.1.2 See Exhibit "A."
10.2.1.3 If authorized in advance by the Owner, expense of
overtime work requiring higher than regular rates.
10.2.1.4 See Exhibit "A."
10.2.1.5 Expense of additional insurance coverage or limits,
including professional liability insurance, requested by the
Owner in excess of that normally carried by the Architect and
Architect's consultants.
10.2.1.6 See Exhibit "A."
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10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
10.3.1 An initial payment as set forth in Paragraph 11.1 is
the minimum payment under this Agreement.
10.3.2 Subsequent payments for Basic Services shall be made
monthly and, where applicable, shall be in proportion to services
performed within each phase of service, on the basis set forth in
Subparagraph 11.2.2.
10.3.3 If and to the extent that the time initially
established in Subparagraph 11.5.1 of this Agreement is exceeded
or extended through no fault of the Architect, compensation for
any services rendered during the additional period of time shall
be computed in the manner set forth in Subparagraph 11.3.2.
10.3.4 When compensation is based on a percentage of
Construction Cost and any portions of the Project are deleted or
otherwise not constructed, compensation for those portions of the
Project shall be payable to the extent services are performed on
those portions, in accordance with the schedule set forth in
Subparagraph 11.2.2, based on (1) the lowest bona fide bid or
negotiated proposal, or (2) if no such bid or proposal is
received, the most recent preliminary estimate of Construction
Cost or detailed estimate of Construction Cost for such portions
of the Project.
10.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
10.4.1 Payments on account of the Architect's Additional
Services and for Reimbursable Expenses shall be made monthly upon
presentation of the Architect's statement of services rendered or
expenses incurred.
10.5 PAYMENTS WITHHELD
10.5.1 No deductions shall be made from the Architect's
compensation on account of penalty, liquidated damages or other
sums withheld from payments to contractors, or on account of the
cost of changes in the Work other than those for which the
Architect has been found to be liable.
10.6 ARCHITECT'S ACCOUNTING RECORDS
10.6.1 Records of Reimbursable Expenses and expenses
pertaining to Additional Services and services performed on the
basis of a multiple of Direct Personnel Expense shall be
available to the Owner or the Owner's authorized representative
at mutually convenient times.
ARTICLE 11
BASIS OF COMPENSATION
The Owner shall compensate the Architect as follows:
11.1 AN INITIAL PAYMENT of Zero Dollars ($0) shall be made upon
execution of this Agreement and credited to the Owner's account
at final payment.
15
11.2 BASIC COMPENSATION
11.2.1 FOR BASIC SERVICES, as described in Article 2, and any
other services included in Article 12 as part of Basic Services,
Basic Compensation shall be computed as follows:
(Insert basis of compensation, including stipulated sums,
multiples or percentages, and identify phases to which particular
methods of compensation apply, if necessary.)
See Attachment #2
11.2.2 Where compensation is based on a stipulated sum or
percentage of Construction Cost, progress payments for Basic
Services in each phase shall total the following percentages of
the total Basic Compensation payable:
(Insert additional phases as appropriate)
Schematic Design Phase: Ten percent (10%)
Design Development Phase: Twenty percent (20%)
Construction Documents Phase: Sixty percent (60%)
Bidding or Negotiation Phase: Zero percent (0%)
Construction Phase: Ten percent (10%)
Total Basic Compensation One hundred percent
(100%)
11.3 COMPENSATION FOR ADDITIONAL SERVICES
11.3.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as
described in Paragraph 3.2, compensation shall be computed as
follows:
Compensation shall be paid to the Architect in an amount
and at the times as may be agreed upon between Owner and
Architect, should project representation beyond Basic Services be
required and authorized by Owner.
11.3.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT, as described
in Articles 3 and 12, other than (1) Additional Project
Representation, as described in Paragraph 3.2, and (2) services
included in Article 12 as part of Basic Services, but excluding
services of consultants, compensation shall be computed as
follows:
(Insert basis of compensation, including rates and/or multiples
of Direct Personnel Expense for Principals and employees, and
identify Principals and classify employees, if required.
Identify specific services to which particular methods of
compensation apply, if necessary.)
a. Total hours per classifications multiplied by (x)
hourly rate;
b. Total payroll of all classifications multiplied (x) by
.30 (insurance/payroll tax burden);
c. total payroll including payroll taxes multiplied by (x)
one and one-half times.
16
11.3.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including
additional structural, mechanical and electrical engineering
services and those provided under Subparagraph 3.4.19 or
identified in Article 12 as part of Additional Services, a
multiple of one and one quarter (1.25) times the amounts billed
to the Architect for such services.
(Identify specific types of consultants in Article 12, if
required.)
11.4 REIMBURSABLE EXPENSES
11.4.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph
10.2, and any other items included in Article 12 as Reimbursable
Expenses, a multiple of one and one quarter (1.25) times the
expenses incurred by the Architect, the Architect's employees and
consultants in the interest of the Project.
11.5 ADDITIONAL PROVISIONS
11.5.1 IF THE BASIC SERVICES covered by this Agreement have
not been completed within twenty (20) months of the date hereof,
through no fault of the Architect, extension of the Architect's
services beyond that time shall be compensated as provided in
Subparagraphs 10.3.3 and 11.3.2.
11.5.2 Payments are due and payable twenty-one (21) days from
the date of the Architect's invoice. Amounts unpaid twenty-two
(22) days after the invoice date shall bear interest at the rate
entered below, or in the absence thereof at the legal rate
prevailing from time to time at the principal place of business
of the Architect.
(Interest rate of interest agreed upon). Current prime rate of
interest plus 2% as that rate is established by Bank of America
of Nevada.
(Usury laws and requirements under the Federal Truth in Lending
Act, similar state and local consumer credit laws and other
regulations at the Owner's and Architect's principal places of
business, the location of the Project and elsewhere may affect
the validity of this provision. Specific legal advice should be
obtained with respect to deletion or modifications, and also
regarding requirements such as written disclosures or waivers.)
11.5.3 The rates and multiples set forth for Additional
Services shall be annually adjusted in accordance with normal
salary review practices of the Architect.
ARTICLE 12
OTHER CONDITIONS OR SERVICES
(Insert descriptions of other services, identify Additional
Services included within Basic Compensation and modifications to
the payment and compensation terms included in this Agreement.)
17
ARCHITECT'S RELATIONSHIP WITH CONTRACTOR
12.1 The Owner acknowledges that the Architect on this Project
is a professional corporation which is owned by Xxxxxxx X.
Xxxxxxx XX, who, in addition to being a licensed Architect within
the State of Nevada, is also the majority stockholder of Xxxxxxx
Xxxxxx Associates, Inc., the Contractor on this Project. The
Owner acknowledges this relationship between Architect and
Contractor and accepts in every respect this close association
between the two of them. In light of the special relationship
existing between the Architect and Contractor, the Owner agrees
that in case of termination of the Contractor for whatever
reason, the terms and conditions of this Agreement will, at the
option of the Architect, be renegotiated. The Owner and Architect
agree that all documents provided herein shall be solely for use
on this Project, and the Owner understands and agrees that
Xxxxxxx Xxxxxx Associates, Inc., shall be the General Contractor
on this Project.
OWNER'S PROJECT REPRESENTATIVE
12.2 The Owner shall designate representative(s) authorized to
act in the Owner's behalf with respect to this Project. The Owner
or such authorized representative(s) shall examine the documents
submitted by the Architect and shall render decisions pertaining
thereto promptly, to avoid unreasonable delay in the progress of
the Architect's services. For purposes of this Agreement, the
representative(s) shall be _______________________ (to be
completed by Owner).
INSURANCE
12.3 The Architect shall effect and maintain insurance to
protect himself from claims under Workmen's Compensation Acts;
claims for damages because of bodily injury including personal
injury, sickness or disease, or death of any of his employees,
and for claims for damages because of injury to or destruction of
tangible property including loss of use resulting therefrom; and
from claims arising out of the performance of professional
services caused by any errors, omissions or negligent acts of the
Architect. Architect shall secure Professional Liability
Insurance in the amount of ONE MILLION DOLLARS ($1,000,000) and
shall remain in full force and effect during the entire course of
the work and shall endeavor to maintain that dollar amount of
insurance for a period of seven (7) years after completion of the
Project.
This Agreement entered into as of the day and year first written
above.
(Article 12: Continued on Next Page)
OWNER ARCHITECT
(Signature) (Signature)
(Printed name and title) (Printed name and title)
18
(Article 12: Continued)
OTHER SERVICES
12.4 The Architect shall furnish the services to provide and be
responsible for any submissions and/or the coordination required
to gain approval by any public or private company and/or other
governmental agencies having jurisdiction over the Project
including the Paradise Town Board, Xxxxx County Planning
Commission; Xxxxx County Commissioners; Xxxxx County Department
of Building and Safety; Xxxxx County Fire Department; State of
Nevada Fire Xxxxxxxx; Las Vegas Valley Water District; Xxxxx
County Sanitation District; Nevada Power Company; Central
Telephone Company and Southwest Gas Corporation. The Architect
hereby acknowledges that other professional Architectural and
Engineering services provided for within this Agreement which are
beyond the normal Architectural, Structural, Mechanical and
Electrical Engineering services for the Project are as follows:
A. Soils Investigation Report and Foundation Engineering.
B. Civil Engineering.
C. Food and Beverage Service Equipment Design and
Specifications.
D. Traffic Investigation and Report.
E. Hotel Tower Glazing System Design and Specifications.
F. Life Safety Systems Design and Consultation.
G. Interior and Exterior Signage/Lighting Design
Consultation.
H. Sound and Page Design and Consultation.
I. Interior Design Documents/Specifications and
Consultation.
J. Landscape Design Documents and Specifications.
K. Drainage Study and Update.
Where individuals are specifically designated, Owner and
Architect grant each other the right to substitute other
individuals in the event of death, disability, or dismissal with
approval of the other party with such approval not to be
unreasonably withheld.
The Architect shall provide lien releases for the Project from
all consultants upon completion and final payment for the Project
to Architect, only if requested by Owner.
OTHER OWNER'S RESPONSIBILITIES
12.5 The Owner shall furnish the services of a Professional
Engineer to provide those services which may include a Traffic
Report and/or a Drainage Flood Report should they be required to
gain approval by any public or private company and/or other
governmental agencies having jurisdiction over the Project.
20
ATTACHMENT #1
WHEREAS, the Owner intends to design, construct and maintain
a new forty one (41) story hotel tower addition to the existing
Rio Hotel and Casino and provide some 1,025 guest rooms with a
restaurant and lounge at the top floor. Also included in the
expansion of the main casino is back of house and support areas;
a second level restaurant/retail and support area; basement
support and the main entrance Ring Road are being re-aligned.
Additionally being constructed is a 4-level Parking Garage
for public parking and a 3- Level Valet Parking Garage. Also
included is the expansion of the pool/recreation area onto the
existing parking deck adjacent to the pool area. A detailed
listing is as follows:
I. SITE
A. ROADWAYS (Approximately 11.2 Acres)
- New entry re-alignment at Hotel Rio Drive (includes
4 exit lanes to Flamingo).
- Two entrance lanes off Flamingo Road.
- Three entrance lanes to Porte Cochere.
- Five Ring Road lanes from front of project back to
Employee Parking area.
- One exit lane to (Flamingo Road) from Parking
Garage Area to Hotel Rio Drive.
- One valet lane from Parking Garage area to Porte
Cochere.
- Three lanes off Ring Road to Parking Garage self
parking.
- New Valet Parking tunnel extension.
- Re-align Ring Road on West side (adjacent to Valley
View) for new Valet Garage.
B. SURFACE PARKING
- Re-align self parking east and north of existing
parking deck.
- Re-align valet parking parallel with Flamingo Road.
- Provide new Employee Parking on new Cind-R-Lite
parcel and at Old Valley Foods property.
C. LANDSCAPE
- Landscape modifications as required for new
construction as a part of this expansion.
II. HOTEL/CASINO BUILDING
A. BASEMENT
NEW
PAGE 1
1. Approximately 78,500 sf of new basement (to
include):
Receiving dock; dry storage; central plant
facilities; housekeeping; training rooms; security
offices; employee lounges; wine cellar; liquor
storage andfresh seafood butcher shop; show
dressing rooms/lockers/storage; retail storage and
miscellaneous back of house storage. Also a new
tunnel extension to connect to existing tunnels.
REMODEL AREAS:
2. Phase IV Human Resources/Payroll areas to be re-
aligned towards existing storage area .
3. Uniform issue area to be reworked and expanded into
existing training area.
B. FIRST FLOOR
NEW
1. Approximately 120,000 sf of new first floor (to
include):
New casino (26,900 sf); three (3) restaurants
(17,100 sf); eight (8) retail spaces (11,300 sf);
restrooms; hardcount; softcount; associated back of
house spaces and circulation.
Front Desk Hotel Registration Office and baggage
expansion (5,780 sf).
REMODEL AREAS:
2. Existing hard count and public restrooms (at
existing east expansion) to removed and replaced
with expanded casino and a new vestibule entrance.
Front Desk Hotel Registration/Lobby re-alignment.
C. SECOND FLOOR
NEW
1. Approximately 79,000 sf new second floor (to
include):
Two (2) restaurants (8,400 sf); 13 retail spaces
(20,800 sf); one (1) night club (11,300 sf);
associated back of house spaces and circulation.
D. THIRD FLOOR (TOWER)
NEW
PAGE 2
1. Approximately 23,950 sf new third floor within
Hotel Tower footprint (to include):
Two (2) wedding chapels; reception space; room
service kitchen; Two (2) Honeymoon Suites;
associated back of house spaces and circulation.
2. Approximately 5,000 sf of new third floor (to
include):
Night Club (3,000 sf); Show Control Room (800 sf);
Mechanical Room (1,200 sf)
E. HOTEL TOWER (4th thru 41st)
NEW
1. Typical Floors 4-39
- Approximately 26,550 sf each floor
- Twenty-six (26) typical suites each floor.
- Two (2) end hospitality suites each floor.
- Twenty-second floor Exercise Room.
2. 40th Floor
- Approximately 18,870 sf
- Approximately 220 seat restaurant with outdoor
balcony
- Two (2) Hospitality suites
- One (1) Hospitality suite with outdoor balcony
and swimming pool
- One (1) Typical Guest Room interconnecting to
Hospitality Suite
3. 41st Floor
- Approximately 11,500 sf.
- One (1) Lounge with outdoor balcony
- One (1) Presidential Suite with outdoor
balcony and swimming pool.
4. 42nd & 43rd Floors
- Approximately 4,750 sf each floor
- Mechanical and Machine Rooms
- Radio Room
III. POOL/RECREATION AREA
A. EXISTING POOL AREA
- New Pool (approximately 5,000 sf) with new
decking around.
PAGE 3
B. POOL RECREATION AREA (to be constructed on existing
Parking Deck (approximately 70,000 sf) to include):
- New Deck Lounge area
- Two (2) new Sand Volleyball Courts
- Sports courts (i.e. Bocce Ball and
Shuffleboard)
- various landscape areas
- water spray-down elements
C. VEHICLE SERVICE RAMP
- Approximately 2,160 sf from parking area up to
Recreation Deck.
D. PEDESTRIAN WALKWAY
- Extension of existing walkway (adjacent to
pool area), between new Recreation Deck and
New Casino Building - approximately 7,000 sf.
E. POOL EQUIPMENT ROOM
- Approximately 260 sf for new pool room,
located at existing lower level of Parking
Deck.
IV. PARKING GARAGES
A. PUBLIC PARKING GARAGE
- Four (4) levels (3 raised)
- Approximately 418,000 sf / 1,080 spaces
B. VALET PARKING GARAGE
- Three (3) levels (1 Basement / 1 raised)
- Approximately 175,000 sf / 470 spaces
For purposes of this Agreement, the Scope of Work delineated
above shall be titled: Rio Phase S Expansion, Architect's Project
AAM 205-95, hereinafter referred to as the "Project".
PAGE 4
ATTACHMENT #2
BASIC COMPENSATION
11.2.1 For BASIC SERVICES, as described in Article 2, and any
other services included in Article 12 as a part of Basic
Compensation shall be computed as follows:
Basic Compensation shall be the Architectural and Engineering
Fee, calculated at four and twenty-five percent (4.25%) of actual
construction costs including specialty equipment (i.e. food and
bar service equipment, elevators, lighting, sound equipment,
etc., and actual F.F. & E. buyout, which includes: wallcovering,
carpet, specialty lighting, fixtures, furnishings, millwork and
finishes). This Architectural and Engineering Fee would equal to
four and twenty-five percent (4.25 %) of the Construction/F.F. &
E. costs, or Six Million Six Hundred Thirty Thousand Dollars,
($6,630,000).
Owner shall be invoiced monthly in Twenty (20) equal payments of
Three Hundred Thirty-One Thousand, Five Hundred Dollars
($331,500) commencing June 1995 and continuing through January
1997 for "Basic Services" rendered by the Architect, and shall be
invoiced separately for any expenses incurred for Additional
Services of the Architect, Additional Services of Consultants and
Reimbursable Expenses.
PAGE 5
EXHIBIT "A"
2.4.2 The Architect shall assist the Owner in the preparation of
necessary bidding information, bidding forms, the Conditions of
the Contract, and the form of Agreement between the Owner and
Contractor.
Amended to read:
2.4.2 The Architect shall assist the Owner, only if requested by
the Owner, in the preparation of the necessary bidding
information, bidding forms, the Conditions of the Contract, and
the form of Agreement between the Owner and Contractor.
2.5.1 The Architect, following the Owner's approval of the
Construction Documents and of the latest preliminary estimate of
Construction Cost, shall assist the Owner in obtaining bids of
negotiated proposals and assist in awarding and preparing
contracts for construction.
Amended to read:
2.5.1 The Architect, following the Owner's approval of the
Construction Documents and of the latest preliminary estimate of
Construction Cost, shall assist the Owner and negotiated
Contractor, only if requested by Owner, in obtaining bids of
negotiated proposals and assist in awarding and preparing
contracts for construction.
2.6.1 The Architect's responsibility to provide Basic Services
for the Construction Phase under this Agreement commences with
the award of the Contract for Construction and terminates at the
earlier of the issuance to the Owner of the final Certificate for
Payment or 60 days after the date of Substantial Completion of
the Work unless extended under the terms of Subparagraph 10.3.3.
Amended to read:
2.6.1 The Architect's responsibility to provide Basic Services
for the Construction Phase under this Agreement commences with
the award of the Contract for Construction and terminates at the
earlier of the issuance to the Owner of the Final Certificate for
Payment by the Contractor or 60 days after the date of
Substantial Completion of the Work, unless extended under the
terms of Subparagraph 10.3.3.
2.6.2 The Architect shall provide administration of the Contract
for Construction as set forth below and in the edition of AIA
Document A201, General Conditions of the Contract for
Construction, current as of the date of this Agreement, unless
otherwise provided in this Agreement.
Amended to read:
2.6.2 The Architect shall provide administration of the Contract
for Construction as set forth below, unless otherwise provided in
this Agreement
PAGE 1
2.6.9 Based on the Architect's observations and evaluations of
the Contractor's Applications for Payment, the Architect shall
review and certify the amounts due the Contractor.
Amended to read:
2.6.9 Based on the Architect's observations and evaluations of
the Contractor's Applications for Payment, the Architect shall
review and certify the amounts due the Contractor, only if
requested by the Owner.
2.6.10 Delete.
2.6.13 The Architect shall prepare Change Orders and Construction
Change Directives, with supporting documentation and data if
deemed necessary by the Architect as provided in Subparagraphs
3.1.1 and 3.3.3 for the Owner's approval and execution in
accordance with the Contract Documents, and may authorize minor
changes in the Work not involving an adjustment in the Contract
Sum or an extension of the Contract Time which are not
inconsistent with the intent of the Contract Documents.
Amended to read:
2.6.13 The Architect may authorize minor changes in the Work not
involving an adjustment in the Contract Sum or an extension of
the Contract Time which are not inconsistent with the intent of
the Contract Documents.
2.6.14 The Architect shall conduct inspections to determine the
date or dates of Substantial Completion and the date of final
completion, shall receive and forward to the Owner for the
Owner's review and records written warranties and related
documents required by the Contract Documents and assembled by the
Contractor, and shall issue a final Certificate for Payment upon
compliance with the requirements of the Contract Documents.
Amended to read:
2.6.14 The Architect shall forward to the Owner for the Owner's
review and records, any other written warranties and related
documents required by the Contract Documents and not received,
assembled and issued directly to the Owner by the Contractor.
3.2.1 If more extensive representation at the site than is
described in Subparagraph 2.6.5 is required, the Architect shall
provide one or more Project Representatives to assist in carrying
out such additional on-site responsibilities.
Amended to read:
3.2.1 If more extensive representation at the site than is
described in Subparagraph 2.6.5 is required by the Owner, the
Architect shall provide one or more Project Representatives to
assist in carrying out such additional on-site responsibilities.
PAGE 2
3.2.2 Project Representatives shall be selected, employed and
directed by the Architect, and the Architect shall be compensated
therefor as agreed by the Owner and Architect. The duties,
responsibilities and limitations of authority of Project
Representatives shall be as described in the edition of AIA
Document B352 current as of the date of this Agreement, unless
otherwise agreed.
Amended to read:
3.2.2 Project Representatives shall be selected, employed and
directed by the Architect, and the Architect shall be compensated
therefor as agreed by the Owner and Architect.
3.3.7 Delete.
3.4.4 Providing special surveys, environmental studies and
submissions required for approvals of governmental authorities or
others having jurisdiction over the Project.
Amended to read:
3.4.4 Providing special surveys, environmental studies and
submission required for approvals of governmental authorities or
others having jurisdiction over the Project beyond that normally
required to gain public hearing before the Xxxxx County Planning
Commission and Xxxxx County Commissioners with regard to
Architectural Review, Variance, etc. if required.
3.4.13 Delete.
3.4.18 Providing services after issuance to the Owner of the
final Certificate for Payment; or in the absence of a final
Certificate for Payment, more than 60 days after the date of
Substantial Completion of the Work.
Amended to read:
3.4.18 Providing services after issuance to the Owner of the
final Certificate for Payment by the Contractor, or in the
absence of a final Certificate for Payment, more than 60 days
after the date of Substantial Completion of the Work
4.6 Delete.
9.2 Delete.
9.4 The Owner and Architect waive all rights against each other
and against the contractors, consultants, agents and employees of
the other for damages, but only to the extent covered by property
insurance during construction, except such rights as they may
have to the proceeds of such insurance as set forth in the
edition of AIA Document A201, General Conditions of the Contract
for Construction, current as of the date of this Agreement. The
Owner and Architect each shall require similar waivers from their
contractors, consultants and agents.
Amended to read:
PAGE 3
9.4 The Owner and Architect waive all rights against each other
and against the contractors, consultants, agents and employees of
the other for damages, but only to the extent covered by property
insurance during construction. The Owner and Architect each
shall require similar waivers from their contractors, consultants
and agents.
10.2.1.2 Expense of reproductions, postage and handling of
Drawings, Specifications and other documents.
Amended to read:
10.2.1.2 Expense of reproducing photographs and other documents
other than those used by the Architect for his Consultants or in-
house use.
10.2.1.4 Expense of renderings, models and mock-ups requested by
the Owner.
Amended to read:
10.2.1.4 Expense of additional renderings, artwork, not provided
for by Architect, and/or models and mock-ups as specifically
requested by the Owner for his exclusive use on the Project.
10.2.1.6 Delete.
PAGE 4
ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS
AGREEMENT made this 1st day of November, 1995, by and
between X. X. Xxxxxxx XX Chtd. with offices located at 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 (hereinafter call
("Assignor") and RIO PROPERTIES, INC., a Nevada corporation, with
offices located at 0000 X. Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx 00000
(hereinafter call "Assignee").
RECITALS
WHEREAS, Assignor has created and authored various
Works (hereinafter "Works"), included but not
limited to the hotel and related facility
concepts, names, plans, designs, schematics, blue
prints, renderings, color applications and layouts
for the Rio Hotel and Casino in Las Vegas, Nevada,
all of which constitute protectable intellectual
properties including but not limited to copyright,
patent and trade secret interests, which may give
rise to trademark and trade dress rights,
(hereinafter "Interests"); all pursuant to
Architectural Agreement entered into by and
between Assignor and Assignee dated July 27, 1995.
WHEREAS, Assignor desires to transfer entire ownership
in the Work(s), and all Interests therein, to
Assignee for which Assignee has agreed to give
Assignor adequate consideration;
WHEREAS, Assignor and Assignee further acknowledge that
such an Agreement must be in writing and signed by
Assignor in order to be valid and binding, the
Parties thus agree that this Assignment shall
constitute that writing.
IT IS THEREFORE agreed between Assignor and Assignee as
follows:
1. Grant of Rights. Assignor hereby grants, transfers,
assigns, and conveys to Assignee, its successors and assigns, the
entire title, right, interest, ownership and all subsidiary
rights in and to the Works, and all Interests therein, which
Assignor may possess as the author or owner of the Works. Those
Works shall include but not be limited to those Works set forth
in Attachment I attached hereto and incorporated herein by
reference. Said Grant of Rights shall include but not be limited
to Assignor agreeing to assist and aid Assignee in any efforts or
actions undertaken by Assignee to protect the Interests
applicable to the Works, such actions including but not limited
to securing registration of copyrights, trademarks (Federal or
state), trade dress, or patent(s) therein which resulting
registrations shall be in Assignee's name as claimant, and the
right to secure renewals, reissues, and extension of any
Intellectual Property interests in the United States of America
or any foreign country.
2. Consideration. Assignor and Assignee further agree and
acknowledge that the consideration for Assignment by Assignor
shall be deemed to be (20%) twenty percent of architectural fees
to be paid pursuant to above referred Agreements. The Parties
hereto further
1
agree that said consideration is full and adequate compensation
for such Assignment by the Assignor to the Assignee.
3. Warranty of Interests. Assignor hereby confirms and
warrants to Assignee that as of the date of this Assignment,
Assignor is the lawful owner of good and marketable title in and
to all of the works and interests therein described and has the
full legal rights to assign the same.
4. Execution of Future Documents. The Assignee agrees to
execute and deliver to Assignor any and all documents that may be
necessary or are helpful to the Assignee in securing or
perfecting the registration of the rights conveyed herein.
5. MISCELLANEOUS PROVISIONS. THE FOLLOWING PROVISIONS
SHALL FURTHER APPLY TO THIS ASSIGNMENT:
a. Scope of Agreement. All terms of this Agreement
are applicable to any portion or part of the Works, as
well as the Works in their entirety.
b. Construction. For purposes of construction of this
Agreement, the language used herein shall be construed
as the language of both parties and neither party shall
be deemed the draftee.
c. Notices. Any notice which either party desires to
give to the other in connection with this Agreement
shall be given in writing and shall be mailed by
certified mail or by registered mail to the address
herein set forth, return receipt requested, and such
notice shall be deemed to have been received by the
other party upon such mailing. Each party may change
its address by written notice in accords with this
provision.
d. Waiver. The failure of either party to insist on
strict compliance with any of the terms, covenants, or
conditions of this agreement by the other party shall
not be deemed a waiver of that term, covenant, or
condition, nor shall any waiver or relinquishment of
any right or power for all or any other time.
e. Arbitration. In the event a dispute arises between
the parties as to any term or condition in this
Agreement, the parties agree to resolve such dispute by
submitting the dispute to binding arbitration before
the Nevada Arbitration Association, or American
Arbitration Association in Las Vegas, Nevada. The
decision of the Arbitration shall be conclusive and
enforceable by any court of competent jurisdiction. The
prevailing party shall be entitled to its reasonable
attorney fees.
f. Interpretation and Enforcement. This Agreement
shall be interpreted under applicable intellectual
property laws of the United States, including but not
limited to the Copyright Act, the Trademark Act as
Revised, patent laws of the United States, as well as
any other and such applicable laws of the State of
Nevada.
2
g. Severability. All non-material terms and
conditions of this Agreement shall be severable one
from the other so should any provision be held illegal
or unenforceable by a competent court of jurisdiction,
the remaining provisions shall remain in effect.
h. Entire Agreement. This Agreement constitutes the
entire agreement between the Parties hereto relating as
to transfer of Assignor's rights in the Works and
supersedes any prior oral or written agreement or
understanding between the parties relating to such
rights in said Work(s).
IN WITNESS WHEREOF and intended to be legally bound by, the
Parties have hereunder set their hands, the day and the first
year written above.
____________________, Assignor _____________________,Assignee
Xxxxxxx X. Xxxxxxx XX, Chartered RIO PROPERTIES, INC.
by: Xxxxxxx X. Xxxxxxx XX Xxxxx X. Xxxxxxx, Xx.
its President its President
