Architect's Agreement

Exhibit 10.3


Standard Form of Agreement Between Owner and Architect
With Standard Form of Architect's Services


This Agreement is derived from:


AIA Document B141 - 1997
1997 Edition - Electronic Format


This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAYBE MADE BY USING AIA DOCUMENT D401


Copyright 1917, 1926, 1948, 1951, 1953, 1958, 1961, 1963, 1966, 1967, 1970, 1974, 1977, 1987 C1997 by The American Institute of Architects Reproduction of the material herein or substantial quotation of it's provisions without written permission of the AIA violates the copyright laws of the United States and will subject the violator to legal prosecution.


TABLE OF ARTICLES


1.1 INITIAL INFORMATION


1.2 RESPONSIBILITIES OF THE PARTIES


1.3 TERMS AND CONDITIONS


1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS


1.5 COMPENSATION


AGREEMENT made as of the 31st day of January in the year 2000 in words, indicate day, month and, year)


BETWEEN the Architect's client identified as the Owner: (Name, address and other information)


Windsor Woodmont. LLC 2231 Valdina Street Dallas Texas 75207 Attention: Daniel Robinowitz


and the Architect: (Name, address and other information)


Paul Steelman, Ltd. 3330 West Desert Inn Road Las Vegas, NV 89102


For the following Project: (Include detailed description of Project)


Architect's Project #99180 - Black Hawk Casino by Hyatt. The project is generally defined as a casino which shall include without limitation (i) an approximately 50,000 square foot casino facility, (ii) various food and beverage and entertainment amenities including one Food Court, one Buffet area. and one Gourmet Restaurant, and (iii) an approximately 400,000 square foot parking garage building capable of holding approximately 800 passenger vehicles. and approximately 60,000 square feet of which will be utilized for back-of-house facilities.


The Owner and Architect agree as follows.


ARTICLE 1.1 INITIAL INFORMATION


1.1.1 This Agreement is based on the following information and assumptions. (Note the disposition for the following items by inserting the requested information or a statement such as "not applicable. * unknown at time or "to be determined later by mutual agreement)


Architect's Scope of Work includes Architecture, Interior Design, Lighting and Graphics Design, which includes Structural Engineering for the Casino Building and garage building (except for pre-cast concrete elements in the garage building), exterior design of the parking garage and Kitchen,/Food Service, consulting services for the Project, all as more particularly described in Paragraph 2.8.3


1.1.2 PROJECT PARAMETERS


1.1.2.1 The objective or use is: (identify or describe if appropriate proposed use or goals.) Casino/Entertainment facility


1.1.2.2 The physical parameters are: (identify or describe if appropriate site, location, dimensions, or other pertinent information, such as geotechnical reports about the site.) The project is located in the City of Black Hawk, Gilpin County, State of Colorado and is legally described on Exhibit A attached hereto, and consists of, (i) an approximately 50.000 square foot casino facility, (ii) various food and beverage and entertainment amenities including one Food Court, one Buffet area, and one Gourmet Restaurant. and (iii) an approximately 400,000 square foot parking garage building capable of holding approximately 800 passenger vehicles. and approximately 60,000 square feet of which will be utilized for back-of-house facilities


1.1.2.3 The Owner's Program is: (identify pertinent legal information, including, if appropriate, land surveys and legal descriptions and restrictions of the site.) The program has been previously supplied. The layout of the master plan is currently being revised jointly by the Architect and the Owner.


1.1.2.4 The legal parameters are: (Identify, documentation or state the manner in which the program will be developed.) This Agreement shall be interpreted and governed according to the laws of the State of Colorado. in which the Project is located


1.1.2.5 The financial parameters are as follows.


Not Applicable


1.1.2.6 The time parameters are: (Identify. if appropriate milestone dates, durations or fast track scheduling.) set forth in Exhibit D attached hereto


1.1.2.7 The proposed procurement or delivery method for the Project is: (Identify, method such as competitive bid, negotiated contract or construction management.)


Not Applicable


1.1.2.8 Other parameters are: (identify special characteristics or needs of the Project such as energy, environmental or historic preservation requirements.) No others at time of execution


1.1.3 PROJECT TEAM


1.1.3.1 The Owner's Designated Representative is: (List name, address and other information)


Timothy Rose Windsor Woodmont. LLC 8117 Golfer's Oasis Las Vegas. NV 89149 (702) 396-4764


1.1.3.2 The persons or entities, in addition to the Owner's Designated Representative who are at Owner's option required to review the Architect's submittals to the Owner are: (List name. address and other information)


Building Sciences. Inc. 8150 North Central Expressway Suite 1100 Dallas, Texas 75206 (214) 369-7474 Attention: Ray Wood


1.1.3.3 The Owner's other consultants and contractors are: (List disciplines and if known identify, them by name and address)


PCL Construction (General Contractor) 2000 South Colorado Boulevard Tower 2, Suite 2-500 Denver, CO 80222 (303) 565-6501 Attention: Mike Gattenbein


D. H. Blattner Construction (Excavation Contractor) 16733 CO Road P.O. Box 37 Avon, MN 56310 (320) 356-7351 Attention: Mark Widman


1.1.3.4 The Architect's Designated Representative is: (List name, address and other information.)


Paul Steelman Ron Davison Steve Anderson Paul Steelman, Ltd. 3330 West Desert Inn Road Las Vegas, NV 89102 (702) 873-0221


1.1.3.5 The consultants retained at the Architect's expense are: (List discipline and if known, identify them by name and address.)


Martin & Peltyn (Structural) 1909 South Hones Boulevard Suite A Las Vegas, NV 89146 (702) 248-7000


Abrams & Tanaka Associates 3214 Nebraska Avenue Santa Monica, CA 90404 Attention: Ryan Nevins


1.1.4 Other important initial information is: No other information required at time of execution


1.1.5 When the services under this Agreement include contract administration services, the General Conditions of the Contract for Construction shall be the edition of AIA Document A201 current as of the date of this Agreement. The Owner's agreements with the General Contractor and the Excavation Contractor utilize modified forms of the AIA Document A201, and the Owner shall provide copies of those agreements to the Architect.


1.1.6 The information contained in this Article 1. 1 may be reasonably relied upon by the Owner and Architect in determining the Architect's compensation. Both parties however recognize that such information may change and in that event the Owner and the Architect shall negotiate appropriate adjustments in schedule compensation and Change in Services in accordance with Paragraph 1.13.


ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES


1.2.1 The Owner and the Architect shall cooperate with one another to fulfill their respective obligations under this Agreement. Both parties shall endeavor to maintain good working relationships among all members of the Project team.


1.2.2 OWNER


1.2.2.1 Unless otherwise provided under this Agreement the Owner shall provide full information in a timely manner regarding requirements for and limitations on the Project. The Owner shall furnish to the Architect, within 15 days after receipt of a written request, information necessary and relevant for the Architect to evaluate, give notice of or enforce lien rights.


1.2.2.2 The Owner shall periodically update the budget for the Project, including that portion allocated for the Cost of the Work. The Owner shall not significantly increase or decrease the overall budget, the portion of the budget allocated for the Cost of the Work, or contingencies included in the overall budget or a portion of the budget without the agreement of the Architect to a corresponding change in the Project scope and quality.


1.2.2.3 The Owner's Designated Representative identified in Paragraph 1. 1.3.4 shall be authorized to act on the Owner's behalf with respect to the Project. The Owner or the Owner's Designated Representative shall render decisions in a timely mariner pertaining to documents submitted by the Architect in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services.


1.2.2.4 The Owner shall furnish the services of consultants other than those designated in Paragraph 1.1.3 or authorize the Architect to furnish them as a Change in Services when such services are requested by the Architect and are reasonably required by the scope of the Project. The Owner's services are more particularly set forth in Paragraph 2.8.3.


1.2.2.5 Unless otherwise provided in this Agreement the Owner shall furnish tests, inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials.


1.2.2.6 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests.


1.2.2.7 The Owner shall provide prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project, including any errors, omissions or inconsistencies in the Architect's Instruments of Service.


1.2.3 ARCHITECT


1.2.3.1 The services performed by the Architect, Architect's employees and Architect's consultants shall be as enumerated in Article 1.4.


1.2.3.2 The Architect's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. Attached to this Agreement as Exhibit D is a schedule for the performance of the Architect's services. This schedule shall include allowances for periods of time required for the Owner's review, for the performance of the Owner's consultants. and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause. be exceeded by the Architect or Owner.


1.2.3.3 The Architect's Designated Representative identified in Paragraph 1. 1.3.4 shall be authorized to act on the Architect's behalf with respect to the Project.


1.2.3.4 The Architect shall maintain the confidentiality of information specifically designated as confidential by the Owner unless withholding such information would violate the law, create the risk of significant harm to the public or prevent the Architect from establishing a claim or defense in an adjudicatory proceeding. The Architect shall require of the Architect's consultants similar agreements to maintain the confidentiality of information specifically designated as confidential by the Owner.


1.2.3.5 Except with the Owner's knowledge and consent, the Architect shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Architect's professional judgment with respect to this Project.


1.2.3.6 The Architect review laws, codes, and regulations applicable to the Architect's services. The Architect shall respond in the design of the Project to requirements imposed by governmental authorities having jurisdiction over the Project. The Architect covenants and agrees that ail architectural and engineering services provided hereunder shall be performed by, or under the direction of, architects and engineers licensed to practice under the laws of the State of Colorado, and that the Architect shall comply with all architectural and engineering licensing requirements of such State.


1.2.3.7 The Architect shall be entitled to rely on the accuracy and completeness of services and information furnished by the Owner. The Architect shall provide prompt written notice to the Owner if the Architect becomes aware of any errors, omissions or inconsistencies in such services or information.


1.1.3.8 The Architect shall be responsible for the coordination of all drawings and design documents relating to the Architect's design and used on the Project, regardless of whether such, drawings and documents are prepared or performed by Architect or by Architect's consultants. The Architect shall coordinate such drawings and design documents with those provided by the Owner and the Owner's consultants, provided, however, the Architect shall not be responsible for any errors or omissions in such documents not provided by the Architect or Architect's consultants.


ARTICLE 1.3 TERMS AND CONDITIONS


1.3.1 COST OF THE WORK


1.3.1.1 The Cost of the Work shall be the total cost or. to the extent the Project is not completed, the estimated cost to the Owner of all elements of the Project designed or specified by the Architect, and such items as are designed by the Owner.


1.3.1.2 The Cost of the Work 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, including the costs of management or supervision of construction or installation provided by a separate construction manager or contractor, plus a reasonable allowance for their 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.


1.3.1.3 The Cost of the Work does not include the compensation of the Architect and the Architect's consultants, the costs of the land, rights-of-way and financing or other costs that are the responsibility of the Owner.


1.3.2 INSTRUMENTS OF SERVICE


1.3.2.1 Drawings, specifications and other documents. including those in electronic form, prepared by the Architect and the Architect's consultants are Instruments of Service for use solely with respect to this Project. The Architect and the Architect's consultants shall be deemed the authors and owners of their respective Instruments of Service and shall retain all common law, statutory and other reserved rights, including copyrights. Notwithstanding the foregoing, upon its payment of the Architect's compensation under this Agreement, the Owner shall have the right to use the Instruments of Service as necessary in connection with any subsequent repairs of, or modifications to, the Project.


Insert D: In the event of any use, reuse, or modification of the Architect's Drawings, Specifications, or other documents prepared by the Architect except as permitted under the terms of this Agreement, whether such use, reuse, or modification is made by he Owner, the Owner's employees, agents, consultants, contractors or any third party over which the Owner has a contractual relationship or can exercise effective control, the Owner agrees to defend, indemnify and hold harmless the Architect, its officers, directors, and employees from and against any claims, suits, demands, losses, and expenses, including fees accruing or resulting to any and all persons, firms, or any other legal entity, on account of any damage or loss to attorneys property or persons, including death, arising out of such unauthorized use, reuse, or modification.


1.3.2.2 Upon execution of this Agreement, the Architect grants to the Owner a nonexclusive license to reproduce the Architect's Instruments of Service solely for purposes of constructing, using, and maintaining the Project, provided that the Owner shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. The Architect shall obtain similar nonexclusive licenses from the Architect's consultants consistent with this Agreement. Any termination of this Agreement prior to completion of the Project shall terminate this license. Upon such termination. the Owner shall refrain from making further reproductions of Instruments of Service and shall return to the Architect within seven days of termination all originals and reproductions in the Owner's possession or control. If and upon the date the Architect is adjudged in default of this Agreement, the foregoing license shall be deemed terminated and replaced by a second, nonexclusive license permitting the Owner to authorize other similarly credentialed design professionals to reproduce and, where permitted by law, to make changes, corrections or additions to the Instruments of Service solely for purposes of completing, using and maintaining the Project.


1.3.2.3 Except for the licenses granted in Subparagraph 1.3.2.2. no other license or right shall be deemed granted or implied under this Agreement. The Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any license granted herein to another parry without the prior written agreement of the Architect. However. the Owner shall be permitted to authorize the Contractor, Subcontractors, Sub-subcontractors and material or equipment suppliers to reproduce applicable portions of the Instruments of Service appropriate to and for use in their execution of the Work by license granted in Subparagraph 1.3.2.2. Submission or distribution of Instruments of Service 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 reserved fights of the Architect and the Architect's consultants. The Owner shall not use the Instruments of Service for future additions or alterations to this Project or for other projects. unless the Owner obtains the prior written agreement of the Architect and the Architect's consultants. Any unauthorized use of the Instruments of Service shall be at the Owner's sole risk and without liability to the Architect and the Architect's consultants.


1.3.2.4


Insert E: 1.3.2.4 In order to facilitate the design and coordination of the Project with the design consultants, the Architect will provide plan drawings and/or other data on electronic media in an AutoCAD format subject to the following conditions:


The Architect's Instruments of Service hereunder are the printed hard copy drawings and specifications issued for the Project whereas electronic media, including CADD files, are tools for their preparation. In all events, the printed hard copies shall take precedence over the electronic media.


The Architect retains ownership of the printed hard copy drawings and specifications and the electronic media. The Owner is granted a license for their use, but only in the operation and maintenance of the Project or as otherwise set forth in this Agreement. Use of these materials for the modification or extension or expansion of this Project or on any other Project, unless under the direction and permission of the Architect, is prohibited. Any unauthorized use of the electronic media and/or data shall be at the Owner's sole risk and without liability to the Architect and the Architect's consultants.


Because the data stored in electronic media form can be altered, either intentionally or unintentionally, by transcription, machine error, environmental factors or by an operator, the Owner agrees to indemnify, defend and hold the Architect and its officers, employees and the Architects' consultants harmless from and against any and all claims, liabilities, damages, losses and costs, including but not limited to costs of defense arising out of any changes to or modification of the data in electronic media form, provided, however that such indemnification shall not extend to any such changes or modifications made by the Architect and its officers and employees and the consultants.


1.3.3 CHANGE IN SERVICES


1.3.3.1 Change in Services of the Architect, including services required of the Architect's consultants, maybe accomplished after execution of this Agreement, without invalidating the Agreement, if mutually agreed in writing, if required by circumstances beyond the Architect's control, or if the Architect's services are affected by any of the circumstances described in Article 3.3. In the absence of mutual agreement in writing, the Architect shall notify the owner prior to providing such services. If the Owner deems that all or a part of such


Change in Services is not required. the Owner shall give prompt written notice to the Architect. and the Architect shall have no obligation to provide those services. Except for a change due to the fault of the Architect. Change in Services of the Architect shall entitle the Architect to an adjustment in compensation pursuant to Paragraph 1.5.2. and to any Reimbursable Expenses described in Subparagraph 1.3-9.2 and Paragraph 1.5,


1.3.4 MEDIATION


1.3.4.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either parry. If such matter relates to or is the subject of a lien arising out of the Architect's services. the Architect may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by arbitration.


1.3.4.2 The Owner and Architect shall endeavor to resolve claims, disputes and other matters in question between them by mediation which. unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other parry to this Agreement and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation, unless stayed for a longer period by agreement of the parties or court order.


1.3.4.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof


1.3.5 ARBITRATION


1.3.6 Any claim. dispute or other matter in question arising out of or related to this Agreement shall be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with Paragraph 1.3.4.


1.3.6.1 Claims, disputes and other matters in question between the parties that are not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association.


1.3.6.2 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 statute of limitations.


1.3.6.3 No arbitration arising out of or relating to this Agreement shall include, by consolidation or joinder or in any other manner, an additional person or entity not a parry to this Agreement, except by written consent containing a specific reference to this Agreement and 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 parties to this Agreement shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof.


1.3.6.4 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.


1.3.7 CLAIMS FOR CONSEQUENTIAL DAMAGES


The Architect and the Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Paragraph 1.3.9. The foregoing provisions shall not affect either of the parties' entitlements to insurance coverage provided in connection with the Project.


1-3.8 MISCELLANEOUS PROVISIONS


1.3.8.1 This Agreement shall be governed by the law of the State in which the Project is located.


1.3.8.2 Terms in this Agreement shall have the same meaning as those in the edition of AIA Document A201. General Conditions of the Contract for Construction, current as of the date of this Agreement.


1.3.8.3 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. In no event shall such statutes of limitations commence to run any later than the date when the Architect's services are substantially completed.


1.3.8.4 To the extent damages are covered by property insurance during construction, the Owner and the Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages. except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A20 1. General Conditions of the Contract for Construction. current as of the date of this Agreement. The Owner or the Architect, as appropriate, shall require of the contractors, consultants. agents and employees of any of them similar waivers in favor of the other parties enumerated herein.


1.3.8.5 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect.


1.3.8.6 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 or toxic substances in any form at the Project site.


1.3.8.7 The Architect shall have the right to include photographic or artistic representations of the design of the Project among the Architect's promotional and professional materials. The Architect shall be given reasonable access to the completed Project to make such representations. However. the Architect's materials shall not include the Owner's 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 in the Owner's promotional materials for the Project.


1.3.8.8 If the Owner requests the Architect to execute certificates. the proposed language of such certificates ...