Exhibit 10.45
Standard Form of Agreement Between Owner and
Contractor where the basis for payment is the COST OF THE
WORK PLUS A FEE with a negotiated Guaranteed Maximum Price
AIA Document A111 - 1997
1997 Edition - Electronic Format
AGREEMENT made as of the 31 day of March in the year 2000.
(In words, indicate day, month and year)
BETWEEN the Owner: Urban Fetch
(Name, address and other information) 000 Xxxxxxxx
Xxx Xxxx, XX
and the Contractor: Mastercraft Builders, Inc.
(Name, address and other information) 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
The Project is: Urban Fetch
(Name and location) 000 00xx Xxx
Xxx Xxxx, XX
The Architect is: Xxxxxx-XxXxxxxx Xxxx
(Name, address and other information) 000 Xxxxxxxx
Xxx Xxxx, XX 00000
The Owner and Contractor agree as follows.
ARTICLE 1 THE CONTRACT DOCUMENTS
The Contractor Documents consist of this Agreement, Conditions of the
Contract (General, Supplementary and other Conditions), Drawings,
Specifications, Addenda issued prior to execution of this Agreement, other
documents listed in this Agreement and Modifications issued after
execution of this Agreement; these form the Contract, and are as fully a
part of the Contract as if attached to this Agreement or repeated herein.
The contract represents the entire and integrated agreement between the
parties hereto and supersedes prior negotiations, representations or
agreements, either written or oral. An enumeration of the Contract
Documents, other than Modifications, appears in Article 15. If anything in
the other Contract Documents is inconsistent with this Agreement, this
Agreement shall govern.
ARTICLE 2 THE WORK OF THIS CONTRACT
The Contractor shall fully execute the Work described in the Contract
Documents, except to the extent specifically indicated in the Contract
Documents to be the responsibility of others.
ARTICLE 3 RELATIONSHIP OF THE PARTIES
The Contractor accepts the relationship of trust and confidence
established by this Agreement and covenants with the Owner to cooperate
with the Architect and exercise the Contractor's skill and judgment in
furthering the interests of the Owner; to furnish efficient business
administration and supervision; to furnish at all times an adequate supply
of workers and materials; and to perform the Work in an expeditious and
economical manner consistent with the Owner's interests. The Owner agrees
to furnish and approve, in a timely manner, information required by the
Contractor and to make payments to the Contractor in accordance with the
requirements of the Contract Documents.
ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1 The date of commencement of the Work shall be the date of this
Agreement unless a different date is stated below or provision is made for
the date to be fixed in a notice to proceed issued by the Owner.
(Insert the date of commencement, if it differs from the date of this
Agreement or, if applicable, note that the date will be fixed in a notice
to proceed.)
- Preliminary Pricing and review is to commence immediately.
- Upon client written approval the base building work will commence.
- All designed systems and interiors shall await architect's approved
drawings and Building Department permits.
4.2 The Contract Time shall be measured from the date of commencement.
- Commencement shall mean submittal of client approved architectural/
engineering drawings and permits.
4.3 The Contractor shall achieve Substantial Completion of the entire Work
not later than __ days from the date of commencement, or as follows:
Time is of the essence.
, subject to adjustments of this Contract Time as provided in the Contract
Documents.
ARTICLE 5 BASIS FOR PAYMENT
5.1 CONTRACT SUM
5.1.1 The Owner shall pay the Contractor the Contract Sum in current funds
for the Contractor's performance of the Contract. The Contract Sum is the
Cost of the Work as defined in Article 7 plus the Contractor's Fee.
5.1.2 The Contractor's Fee is: 8% General Conditions; 2% insurance and
7.5% overhead and fee.
These percentages are based upon the sum of the subcontracts under the
general contractor.
ARTICLE 7 COSTS TO BE REIMBURSED
7.1 COST OF THE WORK
The term Cost of the Work shall mean costs necessarily incurred by the
Contractor in the proper performance of the Work. Such costs shall be at
rates not higher than the standard paid at the place of the Project except
with prior consent of the Owner. The Cost of the Work shall include only
the items set forth in this Article 7.
7.2 LABOR COSTS - All of this section is included in General Conditions of
Article 5, (paragraph) 5.1.2.
7.2.1 Wages of construction workers directly employed by the Contractor to
perform the construction of the Work at the site or, with the Owner's
approval, at off-site workshops.
7.2.2 Wages or salaries of the Contractor's supervisory and administrative
personnel when stationed at the site with the Owner's approval.
(If it is intended that the wages or salaries of certain personnel
stationed at the Constructor's principal or other offices shall be
included in the Cost of the Work, identify in Article 14 the personnel to
be included and whether for all or only part of their time, and the rates
at which their time will be charged to the Work.)
7.2.4 Costs paid or incurred by the Contractor for taxes, insurance,
contributions, assessments and benefits required by law and, for personnel
not covered by such agreements, customary benefits such as sick leave,
medical and health benefits, holidays, vacations and pensions, provided
such costs are based on wages and salaries included in the Cost of the
Work under Subparagraphs 7.2.1 through 7.2.3.
7.3 SUBCONTRACT COSTS
7.3.1 Payments made by the Contractor to Subcontractors in accordance with
the requirements of the subcontracts.
7.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION
7.4.1 Costs, including transportation and storage, of materials and
equipment incorporated or to be incorporated in the completed
construction.
7.4.2 Costs of materials described in the preceding Subparagraph 7.4.1 in
excess of those actually installed to allow for reasonable waste and
spoilage. Unused excess materials, if any, shall become the Owner's
property at the completion of the Work.
7.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND
RELATED ITEMS
7.5.1 Costs, including transportation and storage, installation,
maintenance, dismantling and removal of materials, supplies, temporary
facilities, machinery, equipment and hand tools not customarily owned by
construction workers, that are provided by the Contractor at the site and
fully consumed in the performance of the Work; and cost (less salvage
value) of such items if not fully consumed, whether sold to others or
retained by the Contractor. Cost for items previously used by the
Contractor shall mean fair market value. These costs are included in
General Conditions unless designated above normal scope of work.
7.5.3 Costs of removal of debris from the site.
7.5.4 Costs of document reproductions, facsimile transmissions and
long-distance telephone calls, postage and parcel delivery charges,
telephone service at the site, will be billed as direct cost.
7.5.5 That portion of the reasonable expenses of the Contractor's
personnel incurred while traveling in discharge of duties connected with
the Work. If required to inspect manufacturers facilities to verify
scheduling production subject to the owner's prior approval.
7.5.6 Costs of materials and equipment suitably stored off the site at a
mutually acceptable location, if approved in advance by the Owner.
7.6 MISCELLANEOUS COSTS
7.6.1 That portion of insurance and bond premiums that can be directly
attributed to this Contract:
included under insurance per Article 5 subparagraph 5.1.2
7.6.2 Sales, use or similar taxes imposed by a governmental authority that
are related to Work.
Client must submit Certificate of Capital Improvement or be subject to
applicable taxes.
7.6.3 Fees and assessments for the building permit and for other permits,
licenses and inspections for which the Contractor is required by the
Contract Documents to pay.
This is a specific line item to be paid by client to contractor.
7.6.4 Fees of laboratories for tests required by the Contract Documents,
except those related to defective or nonconforming Work for which
reimbursement is excluded by Subparagraph 13.5.3 of AIA Document A201-1997
or other provisions of the Contract Documents, and which do not fall
within the scope of Subparagraph 7.7.3.
7.6.5 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of
defending suits or claims for infringement of patent rights arising from
such requirement of the Contract Documents; and payments made in
accordance with legal judgments against the Contractor resulting from such
suits or claims and payments of settlements made with the Owner's consent.
However, such costs of legal defenses, judgments and settlements shall not
be included in the calculation of the Contractor's Fee. If such royalties,
fees and costs are excluded by the last sentence of Subparagraph 3.17.1 of
AIA Document A201-1997 or other provisions of the Contract Documents, then
they shall not be included in the Cost of the Work.
7.6.7 Deposits lost for causes other than the Contractor's negligence or
failure to fulfill a specific responsibility to the Owner as set forth in
the Contract Documents.
7.6.8 Legal, mediation and arbitration costs, including attorneys' fees,
other than those arising from disputes between the Owner and Contractor,
reasonably incurred by the Contractor in the performance of the Work and
with the Owner's prior written approval; which approval shall not be
unreasonably withheld.
7.7 OTHER COSTS AND EMERGENCIES
7.7.1 Other costs incurred in the performance of the Work if and to the
extent approved in advance in writing by the Owner.
7.7.2 Costs due to emergencies incurred in taking action to prevent
threatened damage, injury or loss in case of an emergency affecting the
safety of persons and property, as provided in Paragraph 10.6 of AIA
Document A201-1997.
7.7.3 Costs of repairing or correcting damaged or nonconforming Work
executed by the Contractor, Subcontractors or suppliers, provided that
such damage or nonconforming Work was not caused by negligence or failure
to fulfill a specific responsibility of the Contractor and only to the
extent that the cost of repair or correction is not recoverable by the
Contractor from insurance, sureties, Subcontractors or suppliers.
ARTICLE 8 COSTS NOT TO BE REIMBURSED
8.1 The Cost of the Work shall not include:
8.1.3 Overhead and general expenses, except as may be expressly included
in Article 7.
8.1.6 Except as provided in Subparagraph 7.7.3 of this Agreement, costs
due to the negligence or failure to fulfill a specific responsibility of
the Contractor, Subcontractors and suppliers or anyone directly or
indirectly employed by any of them or for whose acts any of them may be
liable.
8.1.7 Any cost not specifically and expressly described in Article 7.
8.1.8 Costs, other than costs included in Change Orders approved by the
Owner.
ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Contractor does not customarily
perform with the Contractor's own personnel shall be performed under
subcontracts or by other appropriate agreements with the Contractor. The
Owner may designate specific persons or entities from whom the Contractor
shall obtain bids. The Contractor shall obtain bids from Subcontractors
and from suppliers of materials or equipment fabricated especially for the
Work and shall deliver such bids to the Architect. The Owner shall then
determine, with the advice of the contractor and the Architect, which bids
will be accepted. The Contractor shall not be required to contract with
anyone to whom the Contractor has reasonable objection.
10.2 If a specific bidder among those whose bids are delivered by the
Contractor to the Architect (1) is recommended to the Owner by the
Contractor; (2) is qualified to perform that portion of the Work; and (3)
has submitted a bid that conforms to the requirements of the Contract
Documents without reservations or exceptions, but the Owner requires that
another bid be accepted, then the Contractor may require that a Change
Order be issued to adjust the Guaranteed Maximum Price by the difference
between the bid of the person or entity recommended to the Owner by the
Contractor and the amount of the subcontract or other agreement actually
signed with the person or entity designated by the Owner.
10.3 Subcontracts or other agreements shall conform to the applicable
payment provisions of this Agreement, and shall not be awarded on the
basis of cost plus a fee without the prior consent of the Owner.
ARTICLE 11 ACCOUNTING RECORDS
The Contractor shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this
Contract.
ARTICLE 12 PAYMENTS
12.1 PROGRESS PAYMENTS
12.1.1 Based upon Applications for Payment submitted to the Architect by
the Contractor and Certificates for payment issued by the Architect, the
Owner shall make progress payments on account of the Contract Sum to the
Contractor as provided below and elsewhere in the Contract Documents.
12.1.2 The period covered by each Application for Payment shall be one
calendar month ending on the last day of the month, or as follows:
12.1.4 With each Application for Payment, the Contractor shall submit
payrolls, xxxxx cash accounts, receipted invoices or invoices with check
vouchers attached, and any other evidence required by the Owner or
Architect to demonstrate that cash disbursements already made by the
Contractor on account of the Cost of the Work equal or exceed (1) progress
payments already received by the Contractor; less (2) that portion of
those payments attributable to the Contractor's Fee; plus (3) payrolls for
the period covered by the present Application for Payment.
12.1.5 Each Application for payment shall be based on the most recent
schedule of values submitted by the Contractor in accordance with the
Contract Documents. The schedule of values shall allocate the entire
Guaranteed Maximum Price among the various portions of the Work, except
that the Contractor's Fee shall be shown as a single separate item. The
schedule of values shall be prepared in such form and supported by such
data to substantiate its accuracy as the Architect may require. This
schedule, unless objected to by the Architect, shall be used as a basis
for reviewing the Contractor's Applications for Payment.
12.1.6 Applications for Payment shall show the percentage of completion of
each portion of the Work as of the end of the period covered by the
Application for Payment.
12.1.8 Except with the Owner's prior approval, payments to Subcontractors
shall be subject to retainage of not less than percent (10%). The Owner
and the Contractor shall agree upon a mutually acceptable procedure for
review and approval of payments and retention for Subcontractors.
12.1.9 In taking action on the Contractor's Applications for Payment, the
Architect shall be entitled to rely on the accuracy and completeness of
the information furnished by the Contractor and shall not be deemed to
represent that the Architect has made a detailed examination, audit or
arithmetic verification of the documentation submitted in accordance with
Subparagraph 12.1.4 or other supporting data; that the Architect has made
exhaustive or continuous on-site inspections or that the Architect has
made examinations to ascertain how or for what purposes the Contractor has
used amounts previously paid on account of the Contract.
12.2 FINAL PAYMENT
12.2.1 Final payment, constituting the entire unpaid balance of the
Contract Sum, shall be made by the Owner to the Contractor when:
.1 the Contractor has fully performed the Contract except for the
Contractor's responsibility to correct Work as
provided in Subparagraph 12.2.2 of AIA Document A201-1997, and to
satisfy other requirements, if any, which extend beyond final
payment; and
.2 a final Certificate for Payment has been issued by the Architect.
12.2.2 The Owner's final payment to the Contractor shall be made no later
than 10 days after the issuance of the Architect's final Certificate for
Payment, or as follows:
12.2.5 If, subsequent to final payment and at the Owner's request, the
Contractor incurs costs described in Article 7 and not excluded by Article
8 to correct defective or nonconforming Work, above and beyond the
architectural drawings and specifications, the Owner shall reimburse the
Contractor such costs and the Contractor's Fee applicable thereto on the
same basis as if such costs had been incurred prior to final payment.
ARTICLE 13 TERMINATION OR SUSPENSION
13.1 The Contract may be terminated by the Contractor, or by the Owner for
convenience, as provided in Article 14 of AIA Document A201-1997. However,
the amount to be paid to the Contractor under Subparagraph 14.1.3 of AIA
Document A201-1997 shall not exceed the amount the Contractor would be
entitled to receive under Paragraph 13.2 below, except that the
Contractor's Fee shall be calculated as if the Work had been fully
completed by the Contractor, including a reasonable estimate of the Cost
of the Work for Work not actually completed.
13.2 The Contract may be terminated by the Owner for cause as provided in
Article 14 of AIA Document A201-1997.
13.3 The Owner shall also pay the Contractor fair compensation, either by
purchase or rental at the election of the Owner, for any equipment owned
by the Contractor that the Owner elects to retain and that is not
otherwise included in the Cost of the Work under Subparagraph 13.2.1. To
the extent that the Owner elects to take legal assignment of subcontracts
and purchase orders (including rental agreements), the Contractor shall,
as a condition of receiving the payments referred to in this Article 13,
execute and deliver all such papers and take all such steps, including the
legal assignment of such subcontracts and other contractual rights of the
Contractor, as the Owner may require for the purpose of fully vesting in
the Owner the rights and benefits of the Contractor under such
subcontracts or purchase orders.
13.4 The Work may be suspended by the Owner as provided in Article 14 of
AIA Document A201-1997; in such case, the Guaranteed Maximum Price and
Contract Time shall be increased as provided in Subparagraph 14.3.2 of AIA
Document A201-1997 except that the term "profit" shall be understood to
mean the Contractor's Fee as described in Subparagraph 5.1.2 and Paragraph
6.4 of this Agreement.
ARTICLE 14 MISCELLANEOUS PROVISIONS
14.1 Where reference is made in this Agreement to a provision AIA Document
A201-1997 or another Contract Document, the reference refers to that
provision as amended or supplemented by other provisions of the Contract
Documents.
14.2 Payments due and unpaid under the Contract shall bear interest from
the date payment is due at the rate stated below, or in the absence
thereof, at the legal rate prevailing from time to time at the place where
the Project is located.
(Insert rate of interest agreed upon, if any.)
9%
14.3 The Owner's representative is: XXXXXXX Xxxxxxxx
(Name, address and other information) x/x Xxxxx Xxxxx
000 Xxxxxxxx, X.X., X.X.
14.4 The Contractor's representative is: Xxxxxxx Xxxxxx
(Name, address and other information) c/o Mastercraft Builders, Inc.
000 Xxxx 00xx Xxxxxx, X.X., X.X.
14.5 Neither the Owner's nor the Contractor's representative shall be
changed without ten days' written notice to the other party.
14.6 Other provisions: A deposit is required in the amount of 25% of the
project cost or the total of sub-contractor required deposits + 15%, which
ever is the less.
ARTICLE 15 ENUMERATION OF CONTRACT DOCUMENTS
15.1 The Contract Documents, except for Modifications issued after
execution of this Agreement, are enumerated as follows:
15.1.1 The Agreement is this executed 1997 edition of the Standard Form of
Agreement Between Owner and Contractor, AIA Document A111-1997.
15.1.2 The General Conditions are the 1997 edition of the General
Conditions of the Contract for Construction AIA Document A201-1997.
15.1.3 The Supplementary and other Conditions of the Contract are those
contained in the Project Manual dated ___, and are as follows:
Document Title Pages
ARTICLE 16 INSURANCE AND BONDS
5 million Liability, Workmen compensation (statutory), Disability
(statutory).
This Agreement is entered into as of the day and year first written above and is
executed in at least three original copies, of which one is to be delivered to
the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
/s/ L.J.S. XXXXXXX
--------------------------------------------------
OWNER (Signature) Urban Fetch
L.J.S. XXXXXXX, CFO
--------------------------------------------------
(Printed name and title)
/s/ Xxxxxxx Xxxxxx
--------------------------------------------------
CONTRACTOR (Signature) Mastercraft Builders, Inc.
Xxxxxxx Xxxxxx - Director of Construction
--------------------------------------------------
(Printed name and title)
Rider "A"
SUPPLEMENTARY CONDITIONS
The following Supplementary Conditions modify, change, delete from or add
to the "General Conditions of the Contract for Construction" AIA Document A201 -
1997 ("General Conditions"). Where any article, paragraph, subparagraph or
clause of the General Conditions is modified or deleted by these Supplementary
Conditions, the unaltered provisions of that article, paragraph, subparagraph or
clause shall remain in effect. Where apparent conflicts occur between these
Supplementary Conditions and the provisions of the General Conditions, the
documents shall be interpreted to impose the highest standards and most
stringent obligations upon the Contractor so that the Owner is provided the
broadest possible protection.
1. The following is added as Paragraph 1.2.4:
In case of discrepancies between or among the Contract Documents,
the Contractor shall secure instructions from the Owner or Architect
before proceeding with the Work affected by such discrepancies. The
Contractor shall assume full responsibility for proceeding with such
Work without approval.
2 The following is added as Paragraph 3.2.4:
The Contractor represents that it has had adequate access to the job
site and building area in which the Work is to be performed, it has
satisfied itself as to the nature and location of the Work,
including any possible obstructions, the equipment and facilities
needed for the execution of the Work, and all other matters which
can in any way affect the Work or cost thereof, and that it has
studied the Contract Documents and all other documents relating to,
or which may influence, the Work.
3. The following is added as Paragraph 3.4.4:
The Contractor shall insure that manufactured articles, materials
and equipment are applied, installed, connected, erected, used,
cleaned and conditioned as directed by the respective manufacturers,
unless otherwise specified.
4. The following is added as Paragraph 3.4.5:
In the event that it is necessary for Contractor to stockpile or to
store quantities of materials or equipment on the job site,
Contractor shall inform Owner of such necessity and Owner shall
offer reasonable available space, if any, for storage of such
materials or equipment and Contractor shall be
provided with keys to said storage area. Contractor shall use said
space only for such purpose. Owner shall not be responsible to
Contractor for loss of or damage to said material or equipment for
any cause whatsoever, except where such loss or damage is caused
solely by gross negligence or willful act of Owner, its agents,
servants and/or employees. Combustible materials shall be seared,
kept, and watched over in strict compliance with all Federal, State
and City laws, rules, ordinances and regulations, and the directions
and requirements of any insurance body or insurance carrier covering
Contractor, Owner, the Premises or any part of the contents thereof.
All permits, licenses and certificates required by law in connection
with materials stored on the Premises shall be kept on the Premises
and shall be open to inspection by Owner at all times. Contractor
will not, without the prior consent of the Owner, store or maintain
any explosive, dangerous, or hazardous materials (including
environmentally hazardous materials) on the premises.
5. The following is added as Paragraph 3.4.6:
Notwithstanding anything contained herein to the contrary, all
material delivered to the job site shall be unconditionally owned by
Contractor at the time of delivery and shall be free of the lien or
claim of any third party, for which Owner has made payment to the
Contractor.
6. The following is added as Paragraph 3.5.2:
Notwithstanding anything contained herein to the contrary,
Contractor does hereby warrant all Work and material to be in full
and complete accordance with the contract and all Work and materials
to be free from any and all defects and imperfections and fully
suitable for the use and purposes for which each and every part is
intended. Contractor further agrees that should any defect develop
or appear, Contractor shall promptly, upon demand, fully correct,
substitute and make good any such defective material or workmanship
without any cost to Owner and will save Owner harmless against any
claim, demand, loss or damage arising from any breach of the
warranty contained herein. The foregoing warranty shall commence on
the date the Architect certifies the Work is fully completed and
shall terminate one (1) year thereafter unless otherwise extended by
applicable law. Where Owner has terminated this contact pursuant to
the terms and conditions provided for herein, the period of warranty
for the Work performed by Contractor shall commence on the effective
date of termination.
If any warranty shall be given by any manufacturer, installer,
supplier, subcontractor, or by any other person involved in any
manner or performing any work in relation to this project to the
Contractor or to any Subcontractor, whether such warranty is
required by this contract or otherwise, the Contractor or such
Subcontractor hereby agrees unconditionally to assign all
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rights under such warranty to Owner. The Contractor or Subcontractor
agrees to deliver a written assignment of such warranty and all
other evidence of such warranty to Owner. Notwithstanding anything
to the contrary, any warranty which shall be longer than the one (1)
year warranty granted by a Contractor to Owner as provided in this
Paragraph 3.5.2 shall remain in full force and effect and shall not
be shortened by this paragraph or any other clause in this contract.
Any warranties by manufacturers will supercede Contractor's
warranty.
7. The following is added to Paragraph 3,7.1;
No portion of the Work shall be performed unless and until:
(x) all permits required for the performance of the construction
Work will have been obtained and will be in full force and
effect; and
(y) any prior portion of the Work, which must be or customarily is
inspected by a governmental or insurance representative and
the inspection of which would be made impossible or
impractical by the performance of the portion of the Work to
be performed, shall have been inspected.
The following is added to Paragraph 3.7.4:
In the event any violations are placed upon the premises by any
public authority as a result of or in connection with the Work, to
be reflected on drawings and specifications to be agreed upon by
owner and contractor or as otherwise agreed upon as in the case of
demolition work by the Contractor, the Contractor shall be solely
responsible therefor and shall bear all costs attributable thereto.
Final payment, in an amount at least sufficient to correct such
violations as determined by the Architect, shall be withheld until
all such violations are cured of record. In addition, Contractor
shall indemnify Owner for all damage, cost and expense arising from
such violations including but not limited to reasonable attorneys
fees. In the event Contractor fails to cure such violations of
record within a reasonable time, Owner may cause such violations to
be cured and upon demand Contractor shall pay Owner the costs
incurred in such cure including reasonable attorneys fees. The above
is exclusive of C of O, previous violations or errors and omissions
by Architect and/or engineer.
9. The following is added as Paragraph 0.00.0.0:
Contractor shall obtain all applicable approvals and permits
required for the placement of a dumpster on the Premises. The
location of the dumpster shall be Subject to Owner's approval.
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10. The following is added as Paragraph 3.18.3.
If any claim or demand is made against Owner or Architect arising
out of or caused by any act or omission of Contractor, its
subcontractors, agents and/or employees during the progress of the
Work, Owner may, in its sole discretion, withhold payments to
Contractor up to the amount of the claim or demand being asserted
plus estimated costs and legal fees. Notwithstanding the preceding
sentence, to the extent any such claims are covered by insurance and
the insurance carrier acknowledges without reservation that it will
defend such claims and pay any judgements or settlements arising in
connection therewith, Owner shall not withheld payments. Any
payments that are withheld in accordance with this paragraph will
not effect Contractors obligations to complete performance under
this agreement. To the extent that Owner has not withheld payments,
Contractor shall refund to Owner and Architect all monies that Owner
or Architect may be compelled to pay in satisfying such claims
and/or liabilities including all costs and reasonable legal fees.
Contractor shall exercise proper care and caution so as to avoid
accident or injury to persons and property and shall adopt and carry
out any reasonable suggestions of Owner or Architect in an effort to
ensure safety.
11. The following is added to Paragraph 4.2.4:
Notwithstanding the above, direct communications between and among
Owner and Contractor, which is not conducted through the Architect,
shall nevertheless be fully valid and effective and must be in
writing.
12. The following is added to Paragraph 6.24:
Should the Contractor cause damage to the Work or property of any
separate owners contractor, the Contractor shall upon due notice
promptly attempt to settle with such other contractor by agreement,
or otherwise to resolve the dispute. If such separate contractor
sues or initiates an arbitration proceeding against the Owner on
account of any damage alleged to have been caused by the Contractor,
the Owner shall notify the Contractor who shall defend such
proceedings at the Contractors expense, and if any judgment or award
against the Owner arises therefrom the Contractor shall pay or
satisfy it and shall reimburse the Owner for all attorneys' fees and
court or arbitration costs Which the Owner has incurred.
13. The following is added to Paragraph 9.3.1.
Each Application for Payment shall be in the form of AIA Document
G702 "Application and Certificate for Payment," supported by
Contractor's completed payment schedule form.
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The submission of an Application for Payment shall constitute
representations by Contractor to the Owner, that (1) the Work has
progressed to the point indicated; (2) the quality of the Work is in
accordance with the Contract documents; (3) Contractor is entitled
to payment in the amount certified; (4) Contractor has supervised
the Work in accordance with the terms of the Contract Documents; (5)
all documents and other data submitted by Contractor in order to
substantiate Contractor's right to payment are true and correct; (6)
all monies previously paid on account of the Contract Sum have been
applied in accordance with the Contract Documents and in full
compliance with any applicable law, including the New York Lien Law.
14. The following is added to Paragraph 9.3.3:
In the event that, at any time, there shall be evidence of any lien
or claim for Work or material furnished in the performance of the
Work which, if established, could be an encumbrance upon the
property upon which said Work is to be performed or for which Owner
is or may become liable, for which Owner has previously paid, Owner
shall have the right to retain out of any payment then due or to
become due to Contractor the full amount of the lien or claim. If
any such claim or lien is asserted after all payments hereunder have
been made, or should the amount owed to Contractor be insufficient
to completely indemnify and defend Owner from and against any such
claim or lien, Contractor shall refund to Owner the sums that Owner
was compelled to pay in discharging such lien or satisfying such
claim, including but not limited to reasonable legal, accounting and
engineering fees, or Contractor shall bond such liens or claims. In
the event that any lien shall be filed during the course of the
Work, Contractor shall discharge same by bonding or in any other
manner provided by law, within five (5) days from the date of filing
thereof. In the event that Contractor shall fail or refuse to so
discharge such lien, Owner shall have the right to cause the same to
be removed by bonding or by payment, and the entire cost incurred by
Owner in so doing, including reasonable legal and accounting fees,
shall be deducted from the Contract Price.
15. The following is added as Paragraph 9.4.3:
If Architect requests additional documentation or information in
connection with any Application for Payment and said additional
documentation or information shall only be with respect to a portion
of the Work for which payment is sought by the Contractor, then
Architect shall issue a Certificate of Payment for that portion of
the Work not in question and contemporaneously make its request to
Contractor for the additional
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documentation or information needed to issue a Certificate of
Payment for the balance of the amount applied for. The Architect's
Certificate of Payment for such balance shall await its receipt of
such additional documentation or information.
16. The following is added as Paragraph 9.5.3:
Before each progress payment other than the final payment, shall be
deemed earned or payable, Contractor and each Subcontractor and
supplier shall execute and deliver to Owner a waiver of lien in form
reasonably acceptable to Owner with respect to the payments made by
Owner pursuant to the previous Certificate for Payment. Before the
final payment shall be deemed earned and payable. Contractor and
each Subcontractor and supplier shall execute and deliver to Owner a
waiver of lien in form reasonably acceptable to Owner.
17. The following is added as Paragraph 00.0.0.0:
All coverages required under subsection 11.1.1 shall be written on
an occurrence basis, by companies licensed to do business in the
State of New York and otherwise acceptable to Owner for not less
than the limits of liability set forth below:
A. Worker's Compensation and Statutory Employers Liability:
Statutory Limits
B. Commercial General Public Liability: Including, but not
limited to, Premises Operation, bodily injury, personal
injury, death, independent contractors, products and completed
operations, contractual liability and broad form property
damage coverage in a combined single limit amount of not less
than $10,000,000.
C. Automobile Liability: Per Person/Per Occurrence: Bodily
Injury: $1,000,000/$1,000,000
D. Products and Completed Operations Insurance shall be
maintained for a minimum period of two (2) years after final
payment and Contractor shall continue to provide evidence of
such coverage to Owner on an annual basis during the
aforementioned period.
18. The following is added as Paragraph 11.1.4:
Certificates of Insurance or duplicate original policies of
insurance acceptable to the Owner which specifically set forth
evidence of all coverage required
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hereunder, and copies of all endorsements that are subsequently
issued, shall be delivered by Contractor to the Owner prior to the
commencement of the Work. Contractor shall not, by its actions or
inactions, cause any insurance policies to be canceled or permit
them to lapse prior to the issuance of the Final Certificate of
Completion for the Work and all insurance policies shall include
clauses to the effect that (i) the policy shall not be canceled,
changed & non-renewed or coverage thereunder reduced until at least
forty-five (45) days after Owner, Architect and any mortgagee whose
name and address has been provided to the insurer have received
written notice thereof; (ii) the act or omission of the named
insured or any additional insured will not invalidate the policy as
to the other additional insureds; and (iii) such insurance shall be
primary and noncontributory.
19. The following is added as Paragraph 11.1.5:
All insurance required hereunder shall be written, unless specified
otherwise herein, without the inclusion of any defense costs within
the limits of liability per job, and shall name Owner, Architect,
and each of the aforesaid parties' agents, officers and employees
and, upon notice from Owner, any mortgagee, as an additional insured
thereunder.
In the event of the failure of Contractor to furnish and maintain
any of the insurance required pursuant to this Contract, Owner shall
have the right at its option to terminate this Contract for cause,
as provided for in Paragraph 14.2.1 or to take out and maintain such
insurance for and in the name of Contractor and Contractor agrees to
pay the cost thereof and to furnish all necessary information to
permit Owner to take out and maintain such insurance for the account
of Contractor. Compliance by Contractor with the foregoing
requirements to carry insurance and furnish certificates shall not
relieve Contractor from liability assumed under any provision of
this Contract.
20. The following is added as Paragraph 11.1.6:
The insurance required by this Paragraph 11, at the option of
Contractor, may be effected by blanket and/or umbrella policies
issued to Contractor covering the Premises, provide that the
policies otherwise comply with the provisions of this Paragraph 11
and allocate to the Premises the coverage specified herein, without
possibility of reduction or coinsurance by reason of, or damage to,
any other premises named therein.
21. Notwithstanding the provisions of Paragraph 13.3.1, all notices
hereunder shall be given by personal messenger or courier delivery,
by facsimile transmission, by overnight or express mail service or
by mailing certified, return receipt requested, addressed to
Contractor, Architect or to Owner at
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the addresses set forth on the first page of the Standard Form
Agreement. Any notice given by Contractor to Owner which relates to
(i) a claim of default by Owner, (ii) a demand for payment, or (iii)
an attempted termination of this Contract or of the Work, and any
other correspondence in connection therewith, shall also be sent by
Contractor to:
Ruskin, Moscou, Xxxxx & Faltischek, P.C.
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
22. The following is added as Paragraph 13.8:
Contractor warrants and represents it shall employ sufficient
workers at the site to complete work in a timely manner.
23. The following is added as Paragraph 13.9:
For all work done by Contractor in connection with this Contract,
Contractor warrants and represents that any and all materials used
in this project shall be equal to or superior in quality, in all
respects, to (a) the material being removed and replaced and (b) the
same or similar type of material existing elsewhere in the building.
In no event, however, shall any materials used in this Project be
inferior to the materials and standards required by the drawings and
specifications.
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