EXHIBIT 10.50
Agreement Between Owner and Contractor
AGREEMENT made as of the 30th day of January in the year 2004
BETWEEN the Owner: MONTICELLO RACEWAY MANAGEMENT, INC.
and the Contractor: FLUOR ENTERPRISES, INC.
The Project is: MONTICELLO RACINO
Fitup and Renovations at the Monticello Raceway,
Monticello, New York
The Architect is: XXXXXXX, BEER AND XXXXXX ARCHITECTS
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Owner and Contractor agree as follows:
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ARTICLE I THE CONTRACT DOCUMENTS
The Contract 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 so 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 Contract
Documents to be the responsibility of others. The scope of work is split
into two phases:
2.1 Phase I - Phase I Pre-Construction Services shall be performed by the
Contractor consisting of estimating, value engineering constructability
review, preparation of a Critical Path Schedule, bidding, purchasing,
subcontracting and developing an acceptable Guaranteed Maximum Price.
("GMP") The Pre-Construction Services shall commence on October 24, 2003
and be completed upon submission of an acceptable GMP and a receipt from
the Owner of a Notice to Proceed for construction.
2.2 Phase II Construction Services shall be performed by the Contractor in
accordance with the Contract Documents and the Guaranteed Maximum Price
("GMP") pursuant to Amendment No 1. Amendment No. 1 shall be jointly
developed and shall include the GMP and scope of Work to be performed. The
parties shall endeavor to complete Amendment No. 1 on or before March 1,
2004.
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.
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ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1. The date of commencement of the Phase I Pre-Construction was October
24, 2003. The date of commencement of the Phase II Construction Services
shall be established by a Notice to Proceed issued by the Owner to the
Contractor.
4.2 The Contract Time shill be measured from the date of the Notice to
Proceed.
4.3 The Contractor shall achieve Substantial Completion of the entire Work
no later than one hundred seventy-nine (179) calendar days from the date
of the Notice to Proceed subject to adjustments of this Contract Time as
provided in the Contract Documents ("Contract Time"). In the event the
Contractor fails to substantially complete the Work within the Contract
Time, the Contractor shall pay to the Owner the amount of Three Thousand
Dollars ($3,000) per day as liquidated damages for each day after the
Contract Time until the project has achieved Substantial Completion. The
amount of liquidated damages is a reasonable estimate of the damages,
which damages are impossible to specifically determine at the time this
Contract is exceuted, that the Owner will incur in the event the Project
is completed after the date of Substantial Completion and not a penalty.
The parties agree that Contractor's total aggregate liability for
liquidated damages shall be limited to $190,000 and such liquidated
damages are the Owner's sole and exclusive remedy with respect to late
completion.
4.4 In the event the Contractor is able to achieve Substantial Completion
of the entire Work prior to the expiration of the Contract Time, the
Contractor shall receive from the Owner, the amount of Three Thousand
Dollars ($3,000) per day as a fee bonus for each day of early completion.
In the event the Contractor is able to achieve Substantial Completion on
or prior to July 1, 2004, the Contractor shall also receive an additional
fee bonus of One Hundred Thousand Dollars ($100,000).
In order for the Contractor to earn the additional fee bonus of One
Hundred Thousand Dollars ($100,000), Substantial Completion must be
achieved by July 1, 2004, without regards to any adjustments of the
Contract Time as provided in the Contract.
ARTICLE 5 BASIS FOR PAYMENT
5.1 CONTRACT SUM
5.1 Contract Sum
5.1.1 The Owner shall pay the Contractor the Contract Swan in current fund
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 Lump
Sum Phase I Pre-Construction Services Fee, Lump Sum Phase II Construction
Services Fee, and Lump Sum General Conditions, which Contract Sum is
limited to the provisions of Article 5.2
5.1.2 The Lump Sum amount for Phase I Pre-Construction Services is One
Hundred Three Thousand Dollars ($103,000).
5.1.3 The Lump Sum amount for Phase II Construction Phase Fee and Lump Sum
General Conditions is Six Hundred Twenty-four Thousand Dollars ($624,000).
5.1.4 The General Conditions included within the Lump Sum for Phase II
Construction Phase Services include all staffing costs, both Home office
and field; all staff related costs such as taxes, insurance, benefits,
travel and relocation expenses; all field office expenses including
consumables, office equipment, office rental, printing, telephone and
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other office related expenses; all cost for insurance required to be
provided by the Contractor; Home office expenses of any kind; and any
costs associated with the Contractor providing a Corporate Guarantee of
Completion to the Owner.
5.1.5 In the event the Cost of Work plus the Lump Sum amounts for Phase 1
and Phase II Fee sad Lump Sum General Conditions are less than the GMP,
the savings shall revert one hundred percent (100%) to the Owner.
5.2 GUARANTEED MAXIMUM PRICE
5.2.1 The Sum of the Cost of the Work and the Contractor's Lump Sum for
Phase I and Phase 11 Services and General Conditions will be guaranteed by
the Conttactor not to exceed the sum as set forth on Amendment No 1,
subject to additions and deductions by Change Orders as provided in the
Contract Documents. Such maximum sum is referred to in the Contract
Documents as the Guaranteed Maximum Price. ("GMP"). Costs which would
cause the Guaranteed Maximum Price to be exceeded shall be paid by the
Contractor without reimbursement by the Owner.
5.2.2 The Guaranteed Maximum Price is based on the Contract Documents and
Amendment No. 1 which describes any assumptions, qualifications,
exclusions and allowances.
5.2.3 In providing the GMP, the Contractor acknowledges that the Drawings
and Specifications are incomplete, and the Contractor has anticipated
further development by the Architect and its consultants of the Drawings
and Specifications. The Contractor has provided in the GMP for such
further development consistent with the intent of the Contract Documents
ensuring that the Work is complete and fully operational for their
intended beneficial use and occupancy in accordance with the Contract
Documents.
ARTICLE 6 CHANGES IN THE WORK
6.1 Adjustments to the Guaranteed Maximum Price on account of changes im
the Work may be determined by any of the methods listed in Subparagraph
7.3.3 of AIA Document A201-1997.
6.2 In calculating adjustments to subcontracts (except those awarded with
the Owner's prior consent on the basis of cost plus a fee), the terms
"cost" and "fee" as used in Clause 7.3.3.3 of AIA Document A201-1997 and
the terms "costs" and "a reasonable allowance for overhead and profit" as
used in Subparagraph 7.3.6 of AIA Document A201-1997 shall have the
meanings assigned to them in AIA Document A201-1997 and shall not be
modified by Articles 5, 7 and 8 of this Agreement. Adjustments to
subcontractors awarded with the Owner's prior consent on the basis of cost
plus a fee shall be calculated in accordance with the terms of those
subcontracts.
6.3 In calculating adjustments to the Guaranteed Maximum Price, the terms
"cost" and "costs" as used in the above-referenced provisions of AIA
Document A201-1997 shall mean the Cost of the Work as defined in Article 7
of this Agreement and the terms "fee" and "a reasonable allowance for
overhead and profit" shall mean the Contractor's Fee as defined in
Subparagraph 5.1.2 and 5.1.3 of this Agreement.
6.4 For a change in the Work, the Contractor shall be entitled to a
xxxx-up of five (5%) percent of the cost of the Change for Phase II
Construction Service Fee and five percent (5%) Lump Sum General
Conditions.
___________ Cost of Change Percent of Cost of Change Increase
----------------------------------
$ 0 - $ 50,000 10%
$ 50 - $100,000 8%
$100 - $500,000 6%
$ over $500,000 4%
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6.5 For a change in the Work, the Subcontractors of the Contractors shall
be limited to a xxxx-up of ten (10%) on the coat of work performed by the
Subcontractors for overhead and profit and a xxxx-up of five (5%) for work
performed by a sub-subcontractor. The sub-subcontractor shall also be
limited to a ten (10%) percent xxxx-up on the cost of work performed by
the sub-subcontractor for overhead and profit. In no event shall there be
more than two tiers of xxxx-up allowed.
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
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 workkhops subject to the Provisions of Article 5.
7.2.2 Wages or salaries of the Coatractor's supervisory and administrative
personnel stationed at the site or office but only for that portion of
their time required for the Work subject to the Provisions of Article 5.
7.2.3 Wages and salaries of the Contractor's supervisory or administrative
personnel engaged, at factories, workshops or on the road, in expediting
the production or transportation of materials or equipment required for
the Work, but only for that portion of their time required for the Work
subject to the Provisions of Article 5.
7.2.4 Costs paid or incurred by the Contractor for taxes, insurance,
contributions, assessments and benefits required by law or collective
bargaining agreements 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 subject to the Provisions of Article 5.
7.3 SUBCONTRACT COSTS
7.3.1 Payments made by the Contractor to Subcontractors in accordance with
the requirements of the subcontracts.
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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 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 subject to the Provisions of Article 5.
7.5.2 Rental charges for temporary facilities, machinery, equipment, and
hand tools not customarily owned by construction workers that are provided
by the Contractor at the site, whether rented from the Contractor or
others, and costs of transportation, installation, minor repairs and
replacements, dismantling and removal thereof. Rates and quantities of
equipment rented shall be subject to the Owner's prior approval subject to
the Provisions of Article 5.
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 and reasonable xxxxx cash expenses of the
site office subject to the Provisions of Article 5.
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 subject to the Provisions of Article 5.
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.
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7.6 MISCELLANEOUS COSTS
7.6.1 That portion of insurance and bond premiums that can be directly
attributed to this Contract subject to the Provisions of Article 5.
7.6.2 Sales, use or similar taxes imposed by a governmental authority that
are related to the Work.
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.
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 or subject to
the Guaranteed Maximum Price. 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.
7.6.6 Data processing costs related to the Work subject to the Provisions
of Article 5.
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.
7.6.9 Expenses incurred in accordance with the Contractor's standard
personnel policy for relocation and temporary living allowances of
personnel required for the Work, if approved by the Owner subject to the
Provisions of Article 5.
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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 AlA
Document A201-1997.
7.7.3 Costs of repairing or correcting damaged or nonconforming Work shall
be paid by the contractor who damaged the Work or performed it
incorrectly.
ARTICLE 8 COSTS NOT TO BE REIMBURSED
8.1 The Cost of the Work shall not include:
8.1.1 Salaries and other compensation of the Contractor's personnel
stationed at the Contractor's principal office or offices other than the
site office, except as specifically provided in Subparagraphs 7.2.2 and
7.2.3 or as may be provided in Article 14.
8.1.2 Expenses of the Contractor's principal office and offices other than
the site office.
8.1.3 Overhead and general expenses, except as may be expressly included
in Article 7.
8.1.4 The Contractor's capital expenses, including interest on the
Contractor's capital employed for the Work.
8.1.5 Rental costs of machinery end equipment, except as specifically
provided in Subparagraph 7.5.2.
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 reasonably inferable from those described in Article 7.
8.1.8 Costs, other than costs included in Change Orders approved by the
Owner, that would cause the Guaranteed Maximum Price to be exceeded.
8.1.9 Costs and Expenses as defined in Article 5 that are otherwise
included in the Lump Sum Fee and General Conditions.
ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS
9.1 All discounts, rebates and refunds obtained by the Contractor shall
accrue to the Cost of the Work.
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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 if they meet Contractor's qualification requirement. 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 or Owner's Representative. The Owner
shall then timely determine with the Contractor 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, and the accounting and control systems shall be satisfactory to
the Owner. The Owner and the Owner's accountants shall be afforded access
to, and shall be permitted to audit and copy, the Contractor's records,
books, correspondence, instructions, drawings, receipts, subcontracts,
purchase orders, vouchers, memoranda and other data relating to this
Contract, and the Contractor shall preserve these for a period of three
years after final payment, or for such longer period as may be required by
law.
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 Conract Documents. The
Fixed Fee and General Conditions amounts shall be paid in accordance with
the attached Schedule of Payments.
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:
12.1.3 Provided that an Application for Payment is received by the
Architect not later than the 1st day of the month, the Owner shall make
payment to the Contractor not later than the 1st day of the following
month. If an Application for Payment is received by the Architect after
the application date fixed above, payment shell be made by the Owner not
later than 30 days after the Architect receives the Application for
Payment.
12.1.4 With each Application for Payment starting with the second
application, the Contractor shall submit a Release of Lien and Claim from
each subcontractor or vendor that payments have been made from the
Application for Payment requested by the Contractor for the previous
month. The Release of Lien and Claim shall show the amount paid for Work
performed and the retainage balance due for that Work. The submission of
Release of Lien and Claim shall continue until final application at which
time the Contractor shall submit Final Release of Lien and Claim for every
subcontractor and vendor subject to receipt of such Final Payment. The
Contractor shall submit with its Application for Payment each month its
Release of Lien and Claims for all payments received as of the date of
application and subject to receipt of the current application payment.
Such Release of Lien and Claim forms shall be approved by the Owner.
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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 sucb
data to substantiate its accuracy as the Architect may acquire. 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.
12.1.7 Subject to other provisions of the Contact Documents, the amount of
each progress payment shall be computed based on the AIA G 702/703 Forms
without retainage, except as provided in Section 12.1.8 herein:
The Contractor's Lump Sum Fee shall be paid on a monthly basis in
proportion to the Cost of Work to be paid each month. The General
Conditions amount shall be paid in accordance with a mutually agreeable
schedule.
12.1.8 Upon the Owner's prior approval, payments to Subcontractors shall
be subject to retainage of not less than ten percent (10%). The Owner and
the Contractor shall agree upon a mutually acceptable procedure for review
and approval of payments and retention for Subcontractors. Retainage
amount shall be reduced to 5% upon completion of 50% of such
Subcontractor's work in strict compliance with the Contract Documents and
the Contract Time.
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 infomnation 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. Such
examinations, audits and verifications, if required by the Owner, will be
performed by the Owner's accountants acting in the sole interest of the
Owner.
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 30 days after the issuance of the Architect's final Certificate for
Payment, or as follows:
12.2.3 The Owner's accountants will review and report in writing on the
Contractor's final accounting within 30 days after delivery of the final
accounting to the Architect by the Contractor. Based upon such Cost of the
Work as the Owner's accountants report to be substantiated by the
Contractor's final accounting, and provided the other conditions of
Subparagraph 12.2.1 have been met, the Architect will, within seven days
after receipt of the written report of the Owner's accountants, either
issue to the Owner a final Certificate for Payment with a copy to the
Contractor, or notify the Contractor and Owner in writing of the
Architect's reasons for withholding a certificate as provided in
Subparagraph 9.5.1 of the AIA Document A201-1997. The time periods stated
in this Subparagraph 12.2.3 supersede those stated in Subparagraph 9.4.1
of the AIA Document A201-1997.
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12.2.4 If the Owner's accountants report the Cost of the Work as
substantiated by the Contractor's final accounting to be less than
claimed by the Contractor, the Contractor shall be entitled to demand
arbitration of the disputed amount without a further decision of the
Architect. Such demand for arbitration shall be made by the Contractor
within 30 days after the Contractor's receipt of a copy of the
Architect's final Certificate for Payment; failure to demand arbitration
within this 30-day period shall result in the substantiated amount
reported by the Owner's accountants becoming binding on the Contractor.
Pending a final resolution by arbitration, the Owner shall pay the
Contractor the amount certified in the Architect's final Certificate for
Payment.
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 5 to correct defective or nonconforming Work, the Owner shall
reimburse the Contractor such costs and the Contractors Fee applicable
thereto on the same basis as if such costs had been incurred prior to
final payment, but not in excess of the Guaranteed Maximum Price. If the
Contractor has participated in savings as provided in Paragraph 5.2, the
amount of such savings shall be recalculated and appropriate credit given
to the Owner in determining the net amount to be paid by the Owner to the
Contractor.
ARTICLE 13 TERMINATION OR SUSPENSION
13.1 The Contract may be terminated 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.
13.2 The Contract may be terminated by the Owner for cause as provided in
Article 14 of AIA Document A201-1997. The amount, if any, to be paid to
the Contractor under Subparagraph 14.2.4 of AIA Document A201-1997 shall
not cause the Guaranteed Maximum Price to be exceeded, nor shall it
exceed an amount calculated as follows:
13.2.1 Take the Cost of the Work incurred by the Contractor to the date
of termination;
13.2.2 Add the Contractor's General Conditional Fee computed upon
approved schedule of payments as of the date of termination all Fee and
General Conditions amounts shall be deemed carried when billed in
accordance with the Schedule of Payments to be included in Amendment No.
1.
13.2.3 Subtract the aggregate of previous payments made by the Owner.
13.2.3 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,
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. Contractor shall be paid for all costs
associated with assisting Owner in such assignment or other actions
related to such subcontractors.
13.3 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 Subparagraphs 5.1.2 and
Paragraph 6.4 of this Agreement.
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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 of 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.
14.3 The Owner's representative is: Xxxxxxx Xxxxxx
14.4 The Contractor's representative is: Xxxxx Xxxxxxx
14.5 Neither the Owner's nor the Contractors representative shall be
changed without ten days' written notice to the other party.
14.6 Other provisions: In no event shall Contractor or its affiliates be
liable to Owner whether based upon contract, strict liability, tort
(including negligence) or any other legal theory for any indirect,
incidental, consequential, or special damages of any nature whatsoever
including without limitation: production related losses and expenses due
to loss of use or shutdown, loss of actual or anticipated profits or
revenues, increased operating expense, costs of or due to business
interruption or downtime, cost of capital or interest expense on shutdown
equipment or facility, overhead and other costs for unrealized work and
services, increased overhead expenses due to loss of production, loss of
market share, or claims by customers due to missed deliveries, except for
such damages caused by the willful misconduct of Contractor.
ARTICLE 15 ENUMERATION OP 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 Agreement Between Owner and
Contractor, AIA Document Al11-1997 as modified.
15.1.2 The General Conditions are the 1997 edition of the General
Conditions of the Contract for Construction, AIA Document A201-1997 as
modified and attached hereto as Exhibit "__".
15.1.3 The Specifications are those contained in the Project Manual dated
as in Subparagraph 15.1.3, and are as follows:
Section Title Pages
15.1.4 The Drawings are as follows, and are dated unless a different date
is shown below:
Number Title Pages
12
15.15 The Addenda, if any, are as follows:
Number Title Pages
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in
this Article 15.
15.1.6 Other Documents, if any, forming part of the Contract Documents
are as follows:
ARTICLE 16 INSURANCE AND BONDS
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, and the remainder to the Owner.
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxx
-------------------------------- -----------------------------------
OWNER (SIGNATURE) CONTRACTOR (SIGNATURE)
Xxxxx Xxxxxx Xxxxx Xxxxx
-------------------------------- -----------------------------------
Xxxxx Xxxxxx Xxxxx Xxxxx
Executive V.P. Vice President
(Printed name and title) (Printed name and title)
13
GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
ARTICLE 1
GENERAL PROVISIONS BASIC DEFINITIONS
1.1.1 The Contract Documents consist of the Agreement between Owner and
Contractor (hereinafter the Agreement), Conditions of the Contract (General,
Supplementary and other Conditions), Drawings, Specifications, Addenda issued
prior to execution of the Contract, other documents listed in the Agreement and
Modifications issued after execution of the Contract. A Modification is (1) a
written amendment to the Contract signed by both parties, (2) a Change Order,
(3) a Construction Change Directive or (4) a written order for a minor change in
the Work issued by the Architect. Unless specifically enumerated in the
Agreement, the Contract Documents do not include other documents such as bidding
requirements (advertisement or invitation to bid, Instructions to Bidders,
sample forms, the Contractor's bid or portions of Addenda relating to bidding
requirements).
1.1.2 THE CONTRACT The Contract Documents form the Contract for Construction.
The Contract represents the entire and integrated agreement between the parties
hereto and supersedes prior negotiations, representations or agreements, either
written or oral. The Contract may be amended or modified only by a Modification.
The Contract Documents shall not be construed to create a contractual
relationship of any kind (1) between the Architect and Contractor, (2) between
the Owner and a Subcontractor or Sub-subcontractor, (3) between the Owner and
Architect or (4) between any persons or entities other than the Owner and
Contractor. The Architect shall, however, be entitled to performance and
enforcement of obligations under the Contract intended to facilitate performance
of the Architect's duties.
1.1.3 THE WORK
The term "Work" means the construction and services required by the Contract
Documents, whether completed or partially completed, and includes all other
labor, materials, equipment and services provided or to be provided by the
Contractor to fulfill the Contractor's obligations. The Work may constitute the
whole or a part of the Project.
1.1.4 THE PROJECT
The Project is the total construction of which the Work performed under the
Contract Documents may be the whole or a part and which may include construction
by the Owner or by separate contractors.
1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents
showing the design, location and dimensions of the Work, generally including
plans, elevations, sections, details, schedules and diagrams.
1.1.6 THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the
written requirements for materials, equipment, systems, standards and
workmanship for the Work, and performance of related services.
1.1.7 THE PROJECT MANUAL
The Project Manual is a volume assembled for the Work which may include the
bidding requirements, sample forms, Conditions of the Contract and
Specifications.
1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
1.2.1 The intent of the Contract Documents is to include all items necessary for
the proper execution and completion of the Work by the Contractor. The Contract
Documents are complementary, and what is required by one shall be as binding as
if required by all; performance by the Contractor shall be required to the
extent consistent with the Contract Documents.
1.2.2 Organization of the Specifications into divisions, sections and articles,
and arrangement of Drawings shall not control the Contractor in dividing the
Work among Subcontractors or in establishing the extent of Work to be performed
by any trade.
1.2.3 Unless otherwise stated in the Contract Documents, words which have
well-known technical or construction industry meanings are used in the Contract
Documents in accordance with such recognized meanings.
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1.3 CAPITALIZATION
1.3.1 Terms capitalized in these General Conditions include those which are (1)
specifically defined, (2) the titles of numbered articles and identified
references to Paragraphs, Subparagraphs and Clauses in the document or (3) the
titles of other documents published by the American Institute of Architects.
1.4 INTERPRETATION
1.4.1 In the interest of brevity the Contract Documents frequently omit
modifying words such as "all" and "any" and articles such as "the" and "an," but
the fact that a modifier or an article is absent from one statement and appears
in another is not intended to affect the interpretation of either statement.
1.5 EXECUTION OF CONTRACT DOCUMENTS
1.5.1 The Contract Documents shall be signed by the Owner and Contractor. If
either the Owner or Contractor or both do not sign all the Contract Documents,
the Architect shall identify such unsigned Documents upon request.
1.5.2 Execution of the Contract by the Contractor is a representation that the
Contractor has visited the site, become generally familiar with local conditions
under which the Work is to be performed and correlated personal observations
with requirements of the Contract Documents.
1.6 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF
SERVICE
1.6.1 The Drawings, Specifications and other documents, including those in
electronic form, prepared by the Architect and the Architect's consultants are
Instruments of Service through which the Work to be executed by the Contractor
is described. The Contractor may retain one record set. Neither the Contractor
nor any Subcontractor, Sub-subcontractor or material or equipment supplier shall
own or claim a copyright in the Drawings, Specifications and other documents
prepared by the Architect or the Architect's consultants, and unless otherwise
indicated the Architect and the Architect's consultants shall be deemed the
authors of them and will retain all common law, statutory and other reserved
rights, in addition to the copyrights. All copies of Instruments of Service,
except the Contractor's record set, shall be returned or suitably accounted for
to the Architect, on request, upon completion of the Work.
The Drawings, Specifications and other documents prepared by the Architect and
the Architect's consultants, and copies thereof furnished to the Contractor, are
for use solely with respect to this Project. They are not to be used by the
Contractor or any Subcontractor, Sub-subcontractor or material or equipment
supplier on other projects or for additions to this Project outside the scope of
the Work without the specific written consent of the Owner, Architect and the
Architect's consultants. The Contractor, Subcontractors, Sub-subcontractors and
material or equipment suppliers are authorized to use and reproduce applicable
portions of the Drawings, Specifications and other documents prepared by the
Architect and the Architect's consultants appropriate to and for use in the
execution of their Work under the Contract Documents. All copies made under this
authorization shall bear the statutory copyright notice, if any, shown on the
Drawings, Specifications and other documents prepared by the Architect and the
Architect's consultants. Submittal or distribution to meet official regulatory
requirements or for other purposes in connection with this Project is not to be
construed as publication in derogation of the Architect's or Architect's
consultants' copyrights or other reserved rights.
ARTICLE 2
OWNER
2.1 GENERAL
2.1.1 The Owner is the person or entity identified as such in the Agreement and
is referred to throughout the Contract Documents as if singular in number. The
Owner shall designate in writing a representative who shall have express
authority to bind the Owner with respect to all matters requiring the Owner's
approval or authorization. Except as otherwise provided in Subparagraph 4.2.1,
the Architect does not have such authority. The term "Owner" means the Owner or
the Owner's authorized representative.
2.1.2 The Owner shall furnish to the Contractor within fifteen days after
receipt of a written request, information necessary and relevant for the
Contractor to evaluate, give notice of or enforce mechanic's lien rights. Such
information shall include a correct statement of the record legal title to the
property on which the Project is located, usually referred to as the site, and
the Owner's interest therein.
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2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2.1 The Owner shall, at the written request of the Contractor, prior to
commencement of the Work and thereafter, furnish to the Contractor reasonable
evidence that financial arrangements have been made to fulfill the Owner's
obligations under the Contract. Furnishing of such evidence shall be a condition
precedent to commencement or continuation of the Work. After such evidence has
been furnished, the Owner shall not materially vary such financial arrangements
without prior, notice to the Contractor.
2.2.2 Except for permits and fees, including those required under Subparagraph
3.7.1, which are the responsibility of the Contractor under the Contract
Documents, the Owner shall secure and pay for necessary approvals, easemments,
assessments and charges required for construction, use or occupancy of permanent
structures or for permanent changes in existing facilities.
2.2.3 The Owner shall furnish surveys describing physical characteristics, legal
limitations and utility locations for the site of the Project, and a legal
description of the site. The Contractor shall be entitled to rely on the
accuracy of information furnished by the Owner but shall exercise proper
precautions relating to the safe performance of the Work.
2.2.4 Information or services required of the Owner by the Contract Documents,
including without limitation all design and architectural services, except such
services specifically provided by Contractor, shall be furnished by the Owner
and provided with reasonable promptness. Any other information or services
relevant to the Contractor's performance of the Work under the Owner's control
shall be furnished by the Owner after receipt from the Contractor of a written
request for such information or services.
2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will
be furnished, free of charge, such copies of Drawings and Project Manuals as are
reasonably necessary for execution of the Work.
2.3 OWNER'S RIGHT TO STOP THE WORK
2.3.1 If the Contractor fails to correct Work which is not in accordance with the
requirements of the Contract Documents or persistently fails to carry out Work
in accordance with the Contract Documents, the Owner may, after giving
Contractor notice of such failure and the reasonable opportunity to cure such
failure, issue a written order, to the Contractor to stop the Work, or any
portion thereof, until the cause for such order has been eliminated; however,
the right of the Owner to stop the Work shall not give rise to a duty on the
part of the Owner to exercise this right for the benefit of the Contractor or
any other person or entity, except to the extent required by Subparagraph 6.1.3.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance
with the Contract Documents and fails within a seven-day period after receipt of
written notice from the Owner to commence and continue correction of such
default or neglect with diligence and promptness, the Owner may after such
seven-day period give the Contractor a second written notice to correct such
deficiencies within a three-day period. If the Contractor within such three-day
period after receipt of such second notice fails to commence and continue to
correct any deficiencies, the Owner may, without prejudice to other remedies the
Owner may have pursuant to this Agreement, correct such deficiencies. In such
case an appropriate Change Order shall be issued deducting from payments then or
thereafter due the Contractor the reasonable cost of correcting such
deficiencies in excess of the Contract Sum. Such action by the Owner and amounts
charged to the Contractor are both subject to prior approval of the Architect.
If payments then or thereafter due the Contractor are not sufficient to cover
such amounts, the Contractor shall be responsible to the extent set forth in
Section 14.2.
ARTICLE 3
CONTRACTOR
3.1 GENERAL
3.1.1 The Contractor is the person or entity identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number.
The term "Contractor" means the Contractor or the Contractor's authorized
representative.
3.1.2 The Contractor shall perform the Work in accordance with the Contract
Documents.
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3.1.3 The Contractor shall not be relieved of obligations to perform the Work in
accordance with the Contract Documents either by activities or duties of the
Architect in the Architect's administration of the Contract, or by tests,
inspections or approvals required or performed by persons other than the
Contractor.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.2.1 Since the Contract Documents are complementary, before starting each
portion of the Work, the Contractor shall carefully study and compare the
various Drawings and other Contract Documents relative to that portion of the
Work, as well as the information furnished by the Owner pursuant to Subparagraph
2.2.3, shall take field measurements of any existing conditions related to that
portion of the Work and shall observe any conditions at the site affecting it.
These obligations are for the purpose of facilitating construction by the
Contractor and are not for the purpose of discovering errors, omissions, or
inconsistencies in the Contract Documents; however, any errors, inconsistencies
or omissions discovered by the Contractor sha11 be reported promptly to the
Architect as a request for information in such form as the Architect may
require.
3.2.2 Any design errors or omissions noted by the Contractor during this review
shall be reported promptly to the Architect, but it is recognized that the
Contractor's review is made in the Contractor's capacity as a contractor and not
as a licensed design professional unless otherwise specifically provided in the
Contract Documents. The Contractor is not required to ascertain that the
Contract Documents are in accordance with applicable laws, statutes, ordinances,
building codes, and rules and regulations, but any nonconformity discovered by
or made known to the Contractor shall be reported promptly to the Architect.
3.2.3 If the Contractor believes that additional cost or time is involved
because of clarifications or instructions issued by the Architect in response to
the Contractor's notices or requests for information pursuant to Subparagraphs
3.21 and 3.2.2, the Contractor shall make Claims as provided in Subparagraph
4.3.6 and 4.3.7. The Contractor shall not be liable to the Owner or Architect
for damages resulting from errors, inconsistencies or omissions in the Contract
Documents or for differences between field measurements or conditions and the
Contract Documents unless the Contractor recognized such error, inconsistency,
omission or difference and knowingly failed to report it to the Architect.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor sha11 supervise and direct the Work, using the Contractor's
best skill and attention. The Contractor shall be solely responsible for and
have control over construction means, methods, techniques, sequences and
procedures and for coordinating all portions of the Work under the Contract,
unless the Contract Documents give other specific instructions concerning these
matters. If the Contract Documents give specific instructions concerning
construction means, methods, techniques, sequences or procedures, the Contractor
shall evaluate the jobsite safety thereof and, except as stated below, shall be
responsible for the jobsite safety of such means, methods, techniques, sequences
or procedures. If the Contractor determines that such means, methods,
techniques, sequences or procedures may not be safe, the Contractor sha11 give
timely written notice to the Owner and Architect and shall not proceed with that
portion of the Work without further written instructions from the Architect. If
the Contractor is then instructed to proceed with the required means, methods,
techniques, sequences or procedures without acceptance of changes proposed by
the Contractor, the Owner shall be solely responsible for any resulting loss or
damage.
3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of
the Contractor's employees, Subcontractors and their agents and employees, and
other persons or entities performing portions of the Work for or on behalf of
the Contractor or any of its Subcontractors as if such acts and omissions were
the conduct of the Contractor.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall
provide and pay for labor, materials, equipment, tools, construction equipment
and machinery, water, heat, utilities, transportation, and other facilities and
services necessary for proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated in
the Work.
3.4.2 The Contractor may make substitutions only with the consent of the Owner,
after evaluation by the Architect and in accordance with a Change Order.
3.4.3 The Contractor shall enforce strict discipline and good order among the
Contractor's employees and other persons carrying out the Contract. The
Contractor shall not permit employment of unfit persons or persons not skilled
in tasks assigned to them.
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3.5 WARRANTY
The Contractor warrants to the Owner and Architect that materials and
equipment furnished under the Contract will be of good quality and new
unless otherwise required or permitted by the Contract Documents, that
the Work will be free from defects not inherent in the quality required
or permitted, and that the Work will conform to the requirements of the
Contract Documents. Work not conforming to these requirements, including
substitutions not properly approved and authorized, may be considered
defective. The Contractor's warranty excludes remedy for damage or
defect caused by abuse, modifications not executed by the Contractor,
improper or insufficient maintenance, improper operation, or normal wear
and tear and normal usage. If required by the Architect, the Contractor
shall furnish satisfactory evidence as to the kind and quality of
materials and equipment. Contractor's warranty obligations shall extend
for a period of one year after Substantial Completion of the Work. All
warranties or guarantees made by the Contractor in connection with its
services are limited to those set forth in this paragraph. The
Contractor makes no other warranties or guarantees, express or implied,
including any WARRANTY OF MERCHANTABILITY OR WARRANTY OR FITNESS FOR A
PARTICULAR PURPOSE.
The Contractor shall, for the protection of the Owner, demand from all
vendors from which the Contractor procures machinery, equipment,
materials or services guarantees with respect to such machinery,
equipment, materials and services, which shall be made available to the
Owner to the full extent of the terms thereof. The Contractor's
liability with respect to such machinery, equipment materials and
services shall be limited to procuring guarantees from such vendors and
rendering all reasonable assistance to the Owner for the purpose of
enforcing the same."
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the
Work provided by the Contractor which are legally enacted when bids are received
or negotiations concluded, whether or not yet effective or merely scheduled to
go into effect.
3.7 PERMITS, FEES AND NOTICES
3.7.1 Unless otherwise provided in the Contract Documents, the Owner shall
secure and pay for the building permit and other permits and governmental fees,
licenses and inspections necessary for proper execution and completion of the
Work which are customarily secured after execution of the Contract and which are
legally required when bids are received or negotiations concluded.
3.7.2 The Contractor shall comply with and give notices required by laws,
ordinances, rules, regulations and lawful orders of public authorities
applicable to performance of the Work.
3.7.3 It is not the Contractor's responsibility to ascertain that the Contract
Documents are in accordance with applicable laws, statutes, ordinances, building
codes, and rules and regulations. However, if the Contractor observes that
portions of the Contract Documents are at variance therewith, the Contractor
shall promptly notify the Architect and Owner in writing, and necessary changes
shall be accomplished by appropriate Modification.
3.7.4 If the Contractor performs Work knowing it to be contrary to laws,
statutes, ordinances, building codes, and rules and regulations without such
notice to the Architect and Owner, the Contractor shall assume appropriate
responsibility for such Work and shall bear the costs attributable to
correction.
3.8 ALLOWANCES
3.8.1 The Contractor shall include in the Contract Sum all allowances stated in
the Contract Documents. Items covered by allowances shall be supplied for such
amounts and by such persons or entities as the Owner may direct, but the
Contractor shall not be required to employ persons or entities to whom the
Contractor has reasonable objection.
3.8.2 Unless otherwise provided in the Contract Documents:
.1 allowances shall cover the cost to the Contractor of materials and
equipment delivered at the site and all required taxes, less
applicable trade discounts;
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.2 Contractor's costs for unloading and handling at the site, labor,
installation costs, overhead, profit and other expenses contemplated
for stated allowance amounts shall be included in the Contract Sum
but not in the allowances;
.3 whenever costs are more than or less than allowances, the Contract
Sum shall be adjusted accordingly by Change Order. The amount of the
Change Order shall reflect (1) the difference between actual costs
and the allowances under. Clause 3.8.2.1 and (2) changes in
Contractors costs under Clause 3.8,2.2.
3.8.3 Materials and equipment under an allowance shall be selected by the Owner
in sufficient time to avoid delay in the Work.
3.9 PROJECT REPRESENTATIVE
3.9.1 The Contractor and Owner shall employ a competent Representative and
necessary assistants who shalll be in attendance at the Project site during
performance of the Work. Such Representative shall represent the Parties, and
communications given to the Representative shall be as binding as if given to
such party. Important communications shall be confirmed in writing. Other
communications shall be similarly confirmed on written request in each case.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare
and submit for the Owner's and Architect's information a Contractor's
construction schedule for the Work. The construction schedule shall provide for
the commencement, sequence and time of performance of the Work in such a manner
as to substantially complete the Work in accordance with the Contract Documents.
The construction schedule shall be revised at appropriate intervals as required
by the conditions of the Work and Project, shall be related to the entire
Project to the extent required by the Contract Documents, and shall provide for
expeditious and practicable execution of the Work.
3.10.2 The Contractor shall prepare and keep current, for the Architect's
approval, a schedule of submittals which is coordinated with the Contractor's
construction schedule and allows the Architect reasonable time to review
submittals.
3.10.3 The Contractor shal1 perform the Work in general accordance with the most
recent schedules submitted to the Owner and Architect.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
3.11.1 The Contractor shall maintain at the site for the Owner one record copy
of the Drawings, Specifications, Addenda, Change Orders and other Modifications,
in good order and marked currently to record field changes and selections made
during construction, and one record copy of approved Shop Drawings, Product
Date, Samples and similar required submittals. These shall be available to the
Architect and shall be delivered to the Architect for submittal to the Owner
upon completion of the Work as a cost of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially
prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor,
manufacturer, supplier or distributor to illustrate some portion of the Work.
3.12.2 Product Data are illustrations, standard schedules, performance charts,
instructions, brochures, diagrams and other information furnished by the
Contractor to illustrate materials or equipment for some portion of the Work.
3.12.3 Samples are physical examples which illustrate materials, equipment or
workmanship and establish standards by which the Work will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not
Contract Documents. The purpose of their submittal is to demonstrate for those
portions of the Work for which submittals are required by the Contract Documents
the way by which the Contractor proposes to conform to the information given and
the design concept expressed in the Contract Documents. Review by the Architect
is subject to the limitations of Subparagraph 4.2.7. Informational submittals
upon which the Architect is not expected to take responsive action may be so
identified in the Contract Documents. Submittals which are not required by the
Contract Documents may be returned by the Architect without action.
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3.12.5 The Contractor shall review for compliance with the Contract Documents,
approve and submit to the Architect Shop Drawings, Product Data, Samples and
similar submittals required by the Contract Documents with reasonable promptness
and in such sequence as to cause no delay in the Work or in the activities of
the Owner or of separate contractors. Submittals which are not marked as
reviewed for compliance with the Contract Documents and approved by the
Contractor may be returned by the Architect without action.
3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and
similar submittals, the Contractor represents that the Contractor has determined
and verified materials, field measurements and field construction criteria
related thereto, or will do so, and has checked and coordinated the information
contained within such submittals with the requirments of the Work and of the
Contract Documents subject to the provisions of Section 3.12.10.
3.12.7 The Contractor shall perform no portion of the Work for which the
Contract Documents require submittal and review of Shop Drawings, Product Data,
Samples or similar submittals until the respective submittal has been approved
by the Architect.
3.12.8 The Work shall be in accordance with approved submittals except that the
Contractor shall not be relieved of responsibility for deviations from
requirements of the Contract Documents by the Architect's approval of Shop
Drawing, Product Data, Samples or similar submittals unless the Contractor has
specifically informed the Architect in writing of such deviation at the time of
submittal and (1) the Architect has given written approval to the specific
deviation as a minor change in the Work, or (2) a Change Order or Construction
Change Directive has been issued authorizing the deviation. The Contractor shall
not be relieved of responsibility for errors or omissions in Shop Drawings,
Product Data, Samples or similar submittals by the Architect's approval thereof.
3.12.9 The Contractor shall direct specific attention, in writing or on
resubmitted Shop Drawings, Product Data, Samples or similar submittals, to
revisions other than those requested by the Architect on previous submittals. In
the absence of such written notice the Architect's approval of a resubmission
shall not apply to such revisions.
3.12.10 The Contractor shall not be required to provide professional services
which constitute the practice of architecture or engineering except for the
design/build services related to the pre-engineered metal building (including
its HVAC, plumbing and electrical services) portion of the Work for the new
Paddock as described in Amendment No. 1, unless the Contractor needs to provide
such services in order to carry out the Contractor's responsibilities for
construction means, methods, techniques, sequences and procedures. The
Contractor shall not be required to provide professional services in violation
of applicable law. The Contractor shall cause such services or certification to
be provided by a properly licensed design professional, whose signature and
seal, if necessary, shall appear on all drawings, calculations, specifications,
certifications, Shop Drawings and other submittals prepared by any such
professional. Shop Drawings and other submittals related to the Work designed or
certified by such professional, if prepared by others, shall bear such
professional's written approval when submitted to the Architect. The Owner and
the Architect shall be entitled to rely upon the adequacy, accuracy and
completeness of the services, certifications or approvals performed by such
design professionals, provided the Owner and Architect have specified to the
Contractor all performance and design criteria that such services must satisfy.
Pursuant to this Subparagraph 3.12.10, the Architect will review, approve or
take other appropriate action on submittals only for the limited purpose of
checking for conformance with information given and the design concept expressed
in the Contract Documents. The Contractor shall not be responsible for the
adequacy of the performance or design criteria required by the Contract
Documents.
3.13 The Owner shall obtain title to all drawings, specifications, computer
programs or other information which were initially developed by the Contractor
during and solely for the purpose of the Services and which are based on the
Owner's proprietary information. If the Owner makes or authorizes reuse of any
such documents or information produced by the Contractor without the express
written consent of the Contractor, the Owner assumes full responsibility and
shall indemnify and hold the Contractor harmless from any and all risks involved
in such reuse. Nothing in this Agreement shall be construed as limiting the
Contractor's ownership of or rights to use its basic know-how, experience and
skills, and the experience and skills of its employees, whether or not acquired
during performance of the Services to perform any engineering, design or other
services for any other party. Except as stated above, computer programs and
other information used or prepared by the Contractor pursuant to this Agreement
which the Owner may require the Contractor to supply in accordance with this
Agreement shall remain the property of the Contractor; however, the Owner has
the right to use such information if such information is incorporated into the
Services.
3.13.1 The Contractor shall confine operations at the site to areas permitted by
law, ordinances, permits and the Contract Documents and shall not unreasonably
encumber the site with materials or equipment.
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3.14 CUTTING AND PATCHING
3.14.1 The Contractor shall be responsible for cutting, fitting or patching
required to complete the Work.
3.14.2 The Contractor shall not damage or endanger a portion of the Work or
fully or partially completed construction of the Owner or separate contractors
by cutting, patching or otherwise altering such construction, or by excavation.
The Contractor shall not cut or otherwise alter such construction by the Owner
or a separate contractor except with written consent of the Owner and of such
separate contractor, such consent shall not be unreasonably withheld. The
Contractor shall not unreasonably withhold from the Owner or a separate
contractor the Contractor's consent to cutting or otherwise altering the work.
3.15 CLEANING UP
3.15.1 The Contractor shall keep the premises and surrounding area free from
accumulation of waste materials or rubbish caused by operations under the
Contract. At completion of the Work, the Contractor shall remove from and about
the Project waste materials, rubbish, the Contractor's tools, construction
equipment, machinery and surplus materials.
3.15.2 If the Contractor fails to clean up as provided in the Contract
Documents, the Owner may do so and the cost thereof shall be charged to the
Contractor, provided Owner has given notice and reasonable opportunity to
perform such services.
3.16 ACCESS TO WORK
3.16.1 The Contractor shall provide the Owner and Architect access to the Work
in preparation and progress wherever located.
3.17 ROYALTIES, PATENTS AND COPYRIGHTS
3.17.1 The Contractor shall include as a term or condition of each Purchase
Order employed by it in the performance of the Work a patent indemnification
extending from vendor under the Purchase Order to the Owner for the vendor
to defend suits or claims for infringement of copyrights and patent rights and
shall hold the Owner and Architect harmless from loss on account thereof, but
shall not be responsible for such defense or loss when a particular design,
process or product of a particular manufacturer or manufacturers is required by
the Contract Documents or where the copyright violations are contained in
Drawings, Specifications or other documents prepared by the Owner or Architect.
However, if the Contractor has reason to believe that the required design,
process or product is an infringement of a copyright or a patent, the Contractor
shall notify the Owner of such infringement.
3.18 INDEMNIFICATION
3.18.1 To the fullest extent permitted by law the Contractor shall indemnify and
hold harmless the Owner, Architect, Architect's consultants, and agents and
employees of any of them from and against claims, damages, losses and expenses,
including but not limited to attorneys' fees, arising out of or resulting from
performance of the Work, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or
destruction of tangible property (other than the Work itself or other existing
facilities of Owner), but only to the extent caused by the negligent acts or
omissions of the Contractor, a Subcontractor, anyone directly or indirectly
employed by them or anyone for whose acts they may be liable, regardless of
whether or not such claim, damage, loss or expense is caused in part by a party
indemnified hereunder. Such obligation shall not be construed to negate,
abridge, or reduce other rights or obligations of indemnity which would
otherwise exist as to a party or person described in this Paragraph 3.18.
3.18.2 In claims against any person or entity indemnified under this Paragraph
3.18 by an employee of the Contractor, a Subcontractor, anyone directly or
indirectly employed by them or anyone for whose acts they may be liable, the
indemnification obligation under Subparagraph 3.18.1 shall not be limited by a
limitation on amount or type of damages, compensation or benefits payable by or
for the Contractor or a Subcontractor under workers' compensation acts,
disability benefits acts or other employee benefit acts.
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ARTICLE 4
ADMINISTRATION OF THE CONTRACT
4.1 ARCHITECT
4.1.1 The Architect is the person lawfully licensed to practice architecture or
an entity lawfully practicing architecture identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number.
The term "Architect" means the Architect or the Architects authorized
representative.
4.1.2 Duties, responsibilities and limitations of authority of the Architect as
set forth in the Contract Documents shall not be restricted, modified or
extended without written consent of the Owner, Contractor and Architect. Consent
shall not be unreasonably withheld.
4.1.3 If the employment of the Architect is terminated, the Owner shall employ a
new Architect against whom the Contractor has no reasonable objection and whose
status under the Contract Documents shall be that of the former Architect.
4.2 ADMINISTRATION OF THE CONTRACT
4.2.1 The Architect or Owner's designee will provide administration of the
Contract as described in the Contract Documents, and will "be an Owner's
representative (1) during construction, (2) until final payment is due and (3)
with the Owners concurrence, from time to time during the one-year period for
correction of Work described in Paragraph 12.2. The Architect or the Owner's
designee will have authority to act on behalf of the Owner only to the extent
provided in the Contract Documents, unless otherwise modified in writing in
accordance with other provisions of the Contract.
4.2.2 The Architect, or the Owner's designee as a representative of the Owner,
will visit the site at intervals appropriate to the stage of the Contractor's
operations (1) to become generally familiar with and to keep the Owner informed
about the progress and quality of the portion of the Work completed, (2) to
endeavor to guard the Owner against defects and deficiencies in the Work, and
(3) to determine in general if the Work is being performed in a manner
indicating that the Work, when fully completed, will be in accordance with the
Contract Documents. However, the. Architect or the Owner's designee will not be
required to make exhaustive or continuous on-site inspections to check the
quality or quantity of the Work. The Architect or the Owner's designee will
neither have control over or charge of nor be responsible for, the construction
means, methods, techniques, sequences or procedures, or for the safety
precautions and programs in connection with the Work, since these are solely the
Contractor's rights and responsibilities under the Contract Documents, except as
provided in Subparagraph 3.3.1.
4.2.3 The Architect or the Owner's designee will not be responsible for the
Contractor's failure to perform the Work in accordance with the requirements of
the Contract Documents. The Architect or the Owner's designee will not have
control over or charge of and will not be responsible for acts or omissions of
the Contractor, Subcontractors, or their agents or employees, or any other
persons or entities performing portions of the Work.
4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION. Except as otherwise
provided in the Contract Documents or when direct communications have been
specially authorized, the Owner and Contractor shall endeavor to communicate
with each other through the Architect or the Owner's designee about matters
arising out of or relating to the Contract. Communications by and with the
Architect's consultants shall be through the Architect. Communications by and
with Subcontractors and material suppliers shall be through the Contractor.
Communications by and with separate contractors shalll be through the Owner.
4.2.5 Based on the Architect's or the Owner's designee's evaluations of the
Contractor's Applications for Payment, the Architect or the Owner's designee
will review and certify the amounts due the Contractor and will issue
Certificates for Payment in such amounts.
4.2.6 The Architect or the Owner's designee will have authority to reject Work
that does not conform to the Contract Documents. Whenever the Architect or the
Owner's designee considers it necessary or advisable, the Architect or the
Owner's designee will have authority to require inspection or testing of the
Work in accordance with Subparagraphs 13.5.2 and 13.5.3, whether or not such
Work is fabricated, installed or completed. However, neither this authority of
the Architect or the Owner's designee 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 or the Owner's designee to the Contractor,
Subcontractors, material and equipment suppliers, their agents or employees, or
other persons or entities performing portions of the Work.
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4.2.7 The Architect or the Owner's designee will review and approve or take
other appropriate action upon the 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 or the Owner's designee's action will be
taken with such reasonable promptness as to cause no delay in the Work or in the
activities of the Owner, Contractor or separate contractors, while allowing
sufficient time in the Architect's or the Owner's designee'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, all of which remain the
responsibility of the Contractor as required by the Contract Documents. The
Architect's or the Owner's designee's review of the Contractor's submittals
shall not relieve the Contractor of the obligations under Paragraphs 3.3, 3.5
and 3.12. The Architect's or the Owner's designee's review shall not constitute
approval of safety precautions or, unless otherwise specifically stated by the
Architect or the Owner's designee, of any construction means, methods,
techniques, sequences or procedures. The Architect's or the Owner's designee's
approval of a specific item shall not indicate approval of an assembly of which
the item is a component.
4.2.8 The Architect or the Owner's designee will prepare Change Orders and
Construction Change Directives, and may authorize minor changes in the Work as
provided in Paragraph 7.4.
4.2.9 The Architect or the Owner's designee will conduct inspections to
determine the date or dates of Substantial Completion and the date of final
completion, will receive and forward to the Owner, for the Owner's review and
records, written warranties and related documents required by the Contract and
assembled by the Contractor, and will issue a final Certificate for Payment upon
compliance with the requirements of the Contract Documents.
4.2.10 If the Owner and Architect agree, the Architect will provide one or more
project representatives to assist in carrying out the Architect's
responsibilities at the site. The duties, responsibilities and limitations of
authority of such project representatives shall be as set forth in an exhibit to
be incorporated in the Contract Documents.
4.2.11 The Architect will interpret and decide matters concerning performance
under and requirements of the Contract Documents on written request of either
the Owner or Contractor. The Architect's response to such requests will be made
in writing within any time limits agreed upon or otherwise with reasonable
promptness. If no agreement is made concerning the time within which
interpretations required of the Architect shall be furnished in compliance with
this Paragraph 4.2, then delay shall not be recognized on account of failure by
the Architect to furnish such interpretations until 15 days after written
request is made for them.
4.2.12 Interpretations and decisions of the Architect will be consistent with
the intent of and reasonably inferable from the Contract Documents and will be
in writing or in the form of drawings. When making such interpretations and
initial decisions, the Architect will endeavor to secure faithful performance by
both Owner and Contractor, will not show partiality to either and will not be
liable for results of interpretations or decisions so rendered in good faith.
4.2.13 The Architect's decisions on matters relating to aesthetic effect will be
final if consistent with the intent expressed in the Contract Documents subject
to Section 4.3 below.
4.3 CLAIMS AND DISPUTES
4.3.1 Definition. A Claim is a demand or assertion by one of the parties
seeking, as a matter of right, adjustment or interpretation of Contract terms,
payment of money, extension of time or other relief with respect to the terms of
the Contract. The term "Claim" also includes other disputes and matters in
question between the Owner and Contractor arising out of or relating to the
Contract. Claims must be initiated by written notice. The responsibility to
substantiate Claims shall rest with the party making the Claim.
4.3.2 Time Limits on Claims. Claims by either party must be initiated within 21
days after occurrence of the event giving rise to such Claim or within 21 days
after the claimant first recognizes the condition giving rise to the Claim,
whichever is later. Claims must be initiated by written notice to the Architect
and the other party.
4.3.3 Continuing Contract Performance. Pending final resolution of a Claim
except as otherwise agreed in writing or as provided in Subparagraph 9.7.1 and
Article 14, the Contractor shall proceed diligently with performance of the
Contract and the Owner shall continue to make payments to Contractor, including
any direct cost of the Contractor, related to disputed claims in accordance with
Section 7.3.6.
4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered
at the site which are (1) subsurface or otherwise concealed physical conditions
which differ materially from those indicated in the Contract Documents or (2)
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unknown physical conditions of an unusual nature, which differ materially from
those ordinarily found to exist and generally recognized as inherent in
construction activities of the character provided for in the Contract Documents,
then notice by the observing party shall be given to the other party promptly
before conditions are disturbed and in no event later than 21 days after first
observance of the conditions. The Architect will promptly investigate such
conditions and will recommend an equitable adjustment in the Contract Sum or
Contract Time, or both. If the Architect determines that no change in the terms
of the Contract is justified, the Architect shall so notify the Owner and
Contractor in writing, stating the reasons. Claims by either party in opposition
to such determination must be made within 21 days after the Architect has given
notice of the decision. If the Owner and Contractor cannot agree on an
adjustment in the Contract Sum or Contract Time, the dispute shall be resolved
pursuant to Paragraph 4.4
4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an
increase in the Contract Sum, written notice as provided herein shall be given
before proceeding to execute the Work. Prior notice is not required for Claims
relating to an emergency endangering life or property arising under Paragraph
10.6.
4.3.6 If the Contractor believes additional cost is involved for reasons
including but not limited to (1) a written interpretation from the Architect,
(2) an order by the Owner to stop the Work where the Contractor was not at
fault, (3) a written order for a minor change in the Work issued by the
Architect, (4) failure of payment by the Owner, (5) termination of the Contract
by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim
shall be filed in accordance with this Paragraph 4.3.
4.3.7 CLAIMS FOR ADDITIONAL TIME
4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract
Time, written notice as provided herein shall be given. The Contractor's Claim
shall include an estimate of cost and of probable effect of delay on progress of
the Work. In the case of a continuing delay only one Claim is necessary.
4.3.7.2 If adverse weather conditions are the basis for a Claim for additional
time, such Claim shall be documented by data substantiating that weather
conditions were abnormal for the period of time, could not have been reasonably
anticipated and had an adverse effect on the scheduled construction.
4.3.8 Injury or Damage to Person or Property. If either party to the Contract
suffers injury or damage to person or property because of an act or omission of
the other party, or of others for whose acts such party is legally responsible,
written notice of such injury or damage, whether or not insured, shall be given
to the other party within a reasonable time not exceeding 21 days after
discovery. The notice shall provide sufficient detail to enable the other party
to investigate the matter.
4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed
upon, and if quantities originally contemplated are materially changed in a
proposed Change Order or Construction Change Directive so that application of
such unit prices to quantities of Work proposed will cause substantial inequity
to the Owner or Contractor, the applicable unit prices shall be equitably
adjusted.
4.4 ARBITRATION
4.4.1 Any Claim or dispute arising out of or related to the Contract shall be
subject to arbitration. Prior to arbitration, the parties shall endeavor to
resolve disputes by negotiation between the Owner and Contractor
representatives; however, if negotiation by the representatives fails such Claim
or dispute shall be referred to a representative of senior management of the
parties hereto for resolution prior to arbitration.
4.4.2 Claims not resolved by negotiation as set forth in Paragraph 4.4.1 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 the Contract and with the
American Arbitration Association, and a copy shall be filed with the Architect,
unless the parties hereto mutually agree to use other dispute resolution
resources, rules and arbitrators to administer the proceedings and resolve the
Claim or dispute.
4.4.3 A demand for arbitration shall be made within a reasonable time after the
Claim or dispute has arisen, and in no event shall it be made after the date
when institution of legal or equitable proceedings based on such Claim would be
barred by the applicable statute of limitations as determined pursuant to
Paragraph 13.7.
4.4.4 Clams and Timely Assertion of Claims. The party filing a notice of demand
for arbitration must assert in the demand all Claims then known to that party on
which arbitration is permitted to be demanded.
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4.4.5 Judgment on Award. The award rendered by the arbitrator or arbitrators,
whether interim or final, shall be binding on the parties and shall include any
relief, legal or equitable, determined by the arbitrator or arbitrators to be
supported by the evidence presented at the arbitration hearing and judgment may
be entered upon it in accordance with applicable law in any court.
ARTICLE 5
SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract with the
Contractor to perform a portion of the Work at the site. The term
"Subcontractor" is referred to throughout the Contract Documents as if singular
in number and means a Subcontractor or an authorized representative of the
Subcontractor. The term "Subcontractor" does not include a separate contractor
or subcontractors of a separate contractor.
5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect
contract with a Subcontractor to perform a portion of the Work at the site. The
term "Sub-subcontractor" is referred to throughout the Contract Documents as if
singular in number and means a Sub-subcontractor or an authorized representative
of the Sub-subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
5.2.1 Unless otherwise stated in the Contract Documents or the bidding
requirements, the Contractor, as soon as practicable after award of the
Contract, shall furnish in writing to the Owner through the Architect the names
of persons or entities (including those who are to furnish materials or
equipment fabricated to a special design) proposed for each principal portion of
the Work. The Architect will promptly reply to the Contractor in writing stating
whether or not the Owner or the Architect, after due investigation, has
reasonable objection to any such proposed person or entity. Failure of the Owner
or Architect to reply promptly shall constitute notice of no reasonable
objection.
5.2.2 The Contractor shall not contract with a proposed person or entity to whom
the Owner or Architect has made reasonable and timely objection. The Contractor
shall not be required to contract with anyone to whom the Contractor has made
reasonable objection.
5.2.3 If the Owner or Architect has reasonable objection to a person or entity
proposed by the Contractor, the Contractor shall propose another to whom the
Owner or Architect has no reasonable objection. If the proposed but rejected
Subcontractor was reasonably capable of performing the Work, the Contract Sum
and Contract Time shall be increased or decreased by the difference, if any,
occasioned by such change, and an appropriate Change Order shall be issued
before commencement of the substitute Subcontractor's Work.
5.2.4 The Contractor shall not change a Subcontractor, person or entity
previously selected if the Owner or Architect makes reasonable objection to such
substitute.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 By appropriate agreement, written where legally required for validity, the
Contractor shall require each Subcontractor, to the extent of the Work to be
performed by the Subcontractor, to be bound to the Contractor by terms of the
Contract Documents, and to assume toward the Contractor all the obligations and
responsibilities, including the responsibility for safety of the Subcontractor's
Work, which the Contractor, by these Documents, assumes toward the Owner and
Architect. Each subcontract agreement shall preserve and protect the rights of
the Owner and Architect under the Contract Documents with respect to the Work to
be performed by the Subcontractor so that subcontracting thereof will not
prejudice such rights, and shall allow to the Subcontractor, unless specifically
provided otherwise in the subcontract agreement, the benefit of all rights,
remedies and redress against the Contractor that the Contractor, by the Contract
Documents, has against the Owner. Where appropriate, the Contractor shall
require each Subcontractor to enter into similar agreements with
Sub-subcontractors. The Contractor shall make available to each proposed
Subcontractor, prior to the execution of the subcontract agreement, copies of
the Contract Documents to which the Subcontractor will be bound, and, upon
written request of the Subcontractor, identify to the Subcontractor terms and
conditions of the proposed subcontract agreement which may be at variance with
the Contract Documents. Subcontractors will similarly make copies of applicable
portions of such documents available to their respective proposed
Sub-subcontractors.
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VLT-CONST-GC(1-30.04).doc
5.4 ASSIGNMENT OF SUBCONTRACTS
5.4.1 Each subcontract agreement for a portion of the Work shall have provisions
allowing the assignment of such contract by the Contractor to the Owner.
5.4.2 Upon such assignment, if the Work has been suspended for more than 30
days, the Subcontractor's compensation shall be equitably adjusted for increases
in cost resulting from the suspension.
ARTICLE 6
CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations related
to the Project with the Owner's own forces, and to award separate contracts in
connection with other portions of the Project or other construction or
operations on the site under Conditions of the Contract identical or
substantially similar to these including those portions related to insurance and
waiver of subrogation. In such event, the Owner shall assume sole responsibility
for its own employees, contractors and agents and any and all of their
respective acts and omissions. If the Contractor claims that delay or additional
cost is involved because of such action by the Owner, the Contractor shall make
such Claim as provided in Paragraph 4.3.
6.1.2 When separate contracts are awarded for different portions of the Project
or other construction or operations on the site, the term "Contractor" in the
Contract Documents in each case shall mean the Contractor who executes each
separate Owner-Contractor Agreement.
6.1.3 The Owner shall provide for coordination of the activities of the Owner's
own forces and of each separate contractor with the Work of the Contractor, who
shall cooperate with them. The Contractor shall participate with other separate
contractors and the Owner in reviewing their construction schedules when
directed to do so. The Contractor shall make any revisions to the construction
schedule deemed necessary after a joint review and mutual agreement. The
construction schedules shall then constitute the schedules to be used by the
Contractor, separate contractors and the Other until subsequently revised.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner and separate contractors reasonable
opportunity for introduction and storage of their materials and equipment and
performance of their activities, and shall connect and coordinate the
Contractor's construction and operations with theirs as required by the Contract
Documents.
6.2.2 If part of the Contractor's Work depends for proper execution or results
upon construction or operations by the Owner or a separate contractor, the
Contractor shall, prior to proceeding with that portion of the Work, promptly
report to the Architect apparent discrepancies or defects in such other
construction that would render it unsuitable for such proper execution and
results. Failure of the Contractor so to report shall constitute an
acknowledgment that the Owner's or separate contractor's completed or partially
completed construction is fit and proper to receive the Contractor's Work,
except as to defects not then reasonably discoverable.
6.2.3
6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the
Contractor to completed or partially completed construction or to property of
the Owner or separate contractors as provided in Subparagraph 10.2.5.
6.2.5 The Owner and each separate contractor shall have the same
responsibilities for cutting and patching as are described for the Contractor in
Subparagraph 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises among the Contractor, separate contractors and the
Owner as to the responsibility under their respective contracts for maintaining
the premises and surrounding area free from waste materials and rubbish, the
Owner may clean up and the Architect will allocate the cost among those
responsible, subject to Section 3.15.2.
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ARTICLE 7
CHANGES IN THE WORK
7.1 GENERAL
7.1.1 Changes in the Work may be accomplished after execution of the Contract,
and without invalidating the Contract, by Change Order, Construction Change
Directive or order for a minor change in the Work, subject to the limitations
stated in this Article 7 and elsewhere in the Contract Documents.
7.1.2. A Change Order shall be based upon agreement among the Owner, Contractor,
and Architect; a Construction Change Directive requires agreement by the Owner
and Architect and may or may not be agreed to by the Contractor; an order for a
minor change in the Work may be issued by the Architect alone.
7.1.3 Changes in the Work sha11 be performed under applicable provisions of the
Contract Documents, and the Contractor shall proceed promptly, unless otherwise
provided in the Change Order, Construction Change Directive or order for a minor
change in the Work.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared by the Architect or
Contractor and signed by the Owner, Contractor and Architect, stating their
agreement upon all of the following:
.1 change in the Work;
.2 the amount of the adjustment, if any, in the Contract Sum; and
.3 the extent of the adjustment, if any, in the Contract Time.
7.2.2 Methods used in determining adjustments to the Contract Sum may include
those listed in Subparagraph 7.3.3, and those otherwise mutually agreed upon by
the Owner and Contractor.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written order prepared by the
Architect and signed by the Owner and Architect, directing a change in the Work
prior to agreement on adjustment, if any, in the Contract Sum or Contract Time,
or both. The Owner may by Construction Change Directive, without invalidating
the Contract, order changes in the Work within the general scope of the Contract
consisting of additions, deletions or other revisions, the Contract Sum and
Contract Time being adjusted accordingly.
7.3.2 A Construction Change Directive shall be used in the absence of total
agreement on the terms of a Change Order.
7.3.3 If the Construction Change Directive provides for an adjustment to the
Contract Sum, the adjustment shall be based on one of the following methods:
.1 mutual acceptance of a lump sum properly itemized and supported by
sufficient substantiating data to permit evaluation;
.2 unit prices stated in the Contract Documents or subsequently agreed
upon;
.3 cost to be determined in a manner agreed upon by the parties and a
mutually acceptable fixed or percentage fee; or
.4 if the parties are unable to agree, then as provided in Subparagraph
7.4.
7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall
promptly proceed with the change in the Work involved and advise the Architect
of the Contractor's agreement or disagreement with the method, if any, provided
in the Construction Change Directive for determining the proposed adjustment in
the Contract Sum or Contract Time.
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7.3.5 A Construction Change Directive signed by the Contractor indicates the
agreement of the Contractor therewith, including adjustment in Contract Sum and
Contract Time or the method for determining them. Such agreement shall be
effective immediately and shall be recorded as a Change Order.
7.4 DISPUTED CHANGES
7.4.1 In the case of disputed Change Order Work, the parties agree to resolve
said dispute in the following manner If Fluor believes that it has been directed
to perform work that is outside the scope of its Contract Work it shall notify
the Owner's Representative in writing that the work in question is outside the
scope of its Contract Work. Fluor, as soon as practicable but no later than
thirty (30) days after the notice, shall prepare and submit a Rough Order of
Magnitude (ROM) to the Owner's Representative. The ROM shall consist of a
detailed estimate of Owner's maximum exposure for the work in question. Upon
receipt of Fluor's ROM, the Owner's Representative shall assign a Pending Item
Claim (PIC) number to the work in question and shall issue Fluor a notice to
proceed. Fluor shall proceed to perform the work in question on a time and
material basis. Using the PIC number to identify the work in question, Fluor
shall account for the time and material costs in its monthly payment
requisition. Fluor shall requisition costs incurred in connection with such PIC
on a monthly basis. Owner shall be obligated to pay Fluor one hundred percent
(100%) of the ROM, for Reimbursable Costs that are provided for in Article 7 of
the Agreement. If the parties are unable to resolve either the scope or the
price of the work in question within thirty (30) days after the Owner
Representative issued the PIC number, the dispute shall be settled in accordance
with the provisions set forth in Section 4.3 herein. Any arbitration award shall
be limited to a determination of whether the work in question is Contract Work
and the price for said work. If said award hold that the work in question is
Contract Work, the Owner shall not be required to increase the GMP in connection
with the PIC. If the arbitration holds that the work in question is a change in
scope, a Change Order shrill be issued that adds the amount of the disputed work
to the GMP and the Owner shall pay for such Change Order(s) in accordance with
the Agreement
7.4.2 When the Owner and Contractor agree with the determination made by the
Architect concerning the adjustments in the Contract Sum and Contract Time, or
otherwise reach agreement upon the adjustments, such agreement shall be
effective immediately and shall be recorded by preparation and execution of an
appropriate Change Order.
7.5 CONSTRUCTION CHANGE REQUESTS (CCR's)
7.5.1 In the event minor changes to the work are sought by the Architect/Owner,
a Construction Change Request (CCR) will be issued by the Architect as follows:
.1 A CCR will precede a Construction Change Directive.
.2 A CCR will precede a Change Order.
.3 Each CCR will contain sufficient documentation (sketches, drawings,
specifications, etc.) to define the extent of work being requested.
Each CCR will further define the intent of the documents issued as
follows:
- "Proceed Immediately - Owner will pay T&M
- "Proceed Only After Cost and Schedule Approval"
- "For Budget Pricing Only
- "Proceed Immediately - For Clarification Only"
.4 Upon receipt of a CCR, Contractor shall proceed in the fashion
described. Contractor shall submit required information to
Architect/Owner for approval via a Change Order Request and shall
only proceed in accordance with the instructions provided on the
CCR.
.5 If for any reason a dispute arises relative to the Contractor's
price and schedules as submitted via a Change Order Request, the
Architect may issue a Construction Change Directive in accordance
with Section 7.3.
.6 If no disputes arises, Contractor shall proceed in accordance with
Section 7.3.
ARTICLE 8
TIME
8.1 DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is the period of time, including
authorized adjustments, allotted in the Contract Documents for Substantial
Completion of the Work.
8.1.2 The date of commencement of the Work is the date established in the
Agreement.
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8.1.3 The date of Substantial Completion is the date certified by the Architect
in accordance with Paragraph 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean calendar day
unless otherwise specifically defined.
8.2 PROGRESS AND COMPLETrON
8.2.1 The completion dates agreed to in the Schedule are of the essence of the
Contract. By executing the Agreement the Contractor confirms that the Contract
Time is a reasonable period for performing the Work.
8.2.2 The Contractor shall not knowingly, except by agreement or instruction of
the Owner in writing, prematurely commence operations on the site or elsewhere
prior to the effective date of insurance required by Article 11 to be furnished
by the Contractor and Owner. The date of commencement of the Work shall not be
changed by the effective date of such insurance. Unless the date of commencement
is established by the Contract Documents or a notice to proceed given by the
Owner, the Contractor shall notify the Owner in writing not less than five days
or other agreed period before commencing the Work to permit the timely filing of
mortgages, mechanic's liens and other security interests.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall
achieve Substantial Completion within the Contract Time.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Contractor is delayed at any time in the commencement or progress
of the Work by an act or neglect of the Owner or Architect, or of an employee of
either, or of a separate contractor employed by the Owner, or by changes ordered
in the Work, or by labor disputes, fire, unusual delay in deliveries,
unavoidable casualties or other causes beyond the Contractor's control, or by
delay authorized by the Owner pending arbitration, or by other causes that may
reasonably justify delay, then the Contract Sum and the Contract Time may be
equitably adjusted for any such delay.
8.3.2 Claims relating to time shall be made in accordance with applicable
provisions of Paragraph 4.3.
8.3.3 This Paragraph 8.3 does not preclude recovery of damages for delay by
either party under other provisions of the Contract Documents.
ARTICLE 9
PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
9.1.1 The Contract Sum is stated in the Agreement and, including authorized
adjustments, is the total amount payable by the Owner to the Contractor for
performance of the Work under the Contract Documents.
9.2 SCHEDULE OF VALUES
9.2.1 Before the first Application for Payment, the Contractor shalll submit to
the Architect a schedule of values allocated to various portions of the Work,
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.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 At least ten days before the date established for each progress payment,
the Contractor shall submit to the Architect an itemized Application for Payment
for operations completed in accordance with the schedule of values. Such
application shall be notarized, if required, and supported by such data
substantiating the Contractor's right to payment as the Owner or Architect may
require, such as copies of requisitions from Subcontractors and material
suppliers, and reflecting retainage if provided for in the Contract Documents.
9.3.1.1 As provided in Subparagraph 7.3.8, such applications may include
requests for payment on account of changes in the Work which have been properly
authorized by Construction Change Directives, or by interim determinations of
the Architect, but not yet included in Change Orders.
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9.3.1.2 Such applications may not include requests for payment for portions of
the Work for which the Contractor does not intend to pay to a Subcontractor or
material supplier, unless such Work has been performed by others whom the
Contractor intends to pay.
9.3.2 Unless otherwise provided in the Contract Documents, payments shall be
made on account of materials and equipment delivered and suitably stored at the
site for subsequent incorporation in the Work. If approved in advance by the
Owner, payment may similarly be made for materials and equipment suitably stored
off the site at a location agreed upon in writing. Payment for materials and
equipment stored on or off the site shall be conditioned upon compliance by the
Contractor with procedures satisfactory to the Owner to establish the Owner's
title to such materials and equipment or otherwise protect the Owner's interest,
and sha1l include the costs of applicable insurance, storage and transportation
to the site for such materials and equipment stored off the site.
9.3.3 The Contractor warrants that title to all Work covered by an Application
fox Payment will pass to the Owner no later than the time of payment. The
Contractor further warrants that upon submittal of an Application for Payment
all Work for which Certificates for Payment have been previously issued and
payments received from the Owner shall, to the best of the Contractor's
knowledge, information and belief, be free and clear of liens, claims, security
interests or encumbrances in favor of the Contractor, Subcontractors, material
suppliers, or other persons or entities making a claim by reason of having
provided labor, materials and equipment relating to the Work.
9.3.4 Any delinquent payment shall bear interest at the prime rate as published
in "The Money Rates" Section of THE WALL STREET JOURNAL (U.S. Edition), plus two
percent (2%), until paid, but not to exceed the maximum contract rate permitted
by the applicable usury laws. The payment of interest shall not excuse or defer
timely payment of the principal amount on which such interest has accrued or is
accruing.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 The Architect will, within seven days after receipt of the Contractor's
Application for Payment, either issue to the Owner a Certificate for Payment,
with a copy to the Contractor, for such amount as the Architect determines is
properly due, or notify the Contractor and Owner in writing of the Architect's
reasons for withholding certification in whole or in part as provided in
Subparagraph 9.5.1.
9.4.2 The issuance of a Certificate for Payment will constitute a representation
by the Architect to the Owner, based on the Architect's evaluation of the Work
and the data comprising the Application for Payment, that the Work has
progressed to the point indicated and that, to the best of the Architect's
knowledge, information and belief, the quality of the Work is in accordance with
the Contract Documents. The foregoing representations are subject to an
evaluation of the Work for conformance with the Contract Documents upon
Substantial Completion, to results of subsequent tests and inspections, to
correction of minor deviations from the Contract Documents prior to completion
and to specific qualifications expressed by the Architect. The issuance of a
Certificate for Payment will further constitute a representation that the
Contractor is entitled to payment in the amount certified. However, the issuance
of a Certificate for Payment will not be a representation that the Architect has
(1) made exhaustive or continuous on-site inspections to check the quality or
quantity of the Work, (2) reviewed construction means, methods, techniques,
sequences or procedures, (3) reviewed copies of requisitions received from
Subcontractors and material suppliers and other data requested by the Owner to
substantiate the Contractor's right to payment, or (4) made examination to
ascertain how or for what purpose the Contractor has used money previously paid
on account of the Contract Sum.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
9.5.1 The Architect may withhold a Certificate for Payment in whole or in part,
to the extent reasonably necessary to protect the Owner, if in the Architect's
opinion the representations to the Owner required by Subparagraph 9.4.2 cannot
be made. If the Architect is unable to certify payment in the amount of the
Application, the Architect will notify the Contractor and Owner as provided in
Subparagraph 9.4.1. If the Contractor and Architect cannot agree on a revised
amount, the Architect will promptly issue a Certificate for Payment for the
amount for which the Architect is able to make such representations to the
Owner. The Architect may also withhold a Certificate for Payment or, because of
subsequently discovered evidence, may nullify the whole or a part of a
Certificate for Payment previously issued, to such extent as may be necessary in
the Architect's opinion to protect the Owner from loss for which the Contractor
is responsible, including loss resulting from acts and omissions described in
Subparagraph 3.3.2, because of:
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.1 defective Work not remedied;
.2 third party claims filed or reasonable evidence indicating probable
filing of such claims for which the Contractor is liable under the
Contract and which the Contractor has unreasonably denied its
obligations for such claims;
.3 failure of the Contractor to make payments properly to
Subcontractors or for labor, materials or equipment;
.4 reasonable evidence that the Work cannot be completed for the unpaid
balance of the Contract Sum;
.5 damage to the Owner for which Contractor is liable hereunder;
.6 persistent failure to carry out the Work in accordance with the
Contract Documents;
.7 failure to pay liquidated damages or reasonable evidence that
Contractor is unable to pay such damages.
9.5.2 When the above reasons for withholding certification are removed,
certification will be made for amounts previously withheld.
9.6 PROGRESS PAYMENTS
9.6.1 After the Architect has issued a Certificate for Payment, the Owner shall
make payment in the manner and within the time provided in the Contract
Documents, and shall so notify the Architect.
9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of
payment from the Owner, out of the amount paid to the Contractor on account of
such Subcontractor's portion of the Work, the amount to which said Subcontractor
is entitled, reflecting percentages actually retained from payments to the
Contractor on account of such Subcontractor's portion of the Work. The
Contractor shall, by appropriate agreement with each Subcontractor, require each
Subcontractor to make payments to Sub-subcontractors in a similar manner.
9.6.3 The Architect will, on request, furnish to a Subcontractor, if
practicable, information regarding percentages of completion or amounts applied
for by the Contractor and action taken thereon by the Architect and Owner on
account of portions of the Work done by such Subcontractor.
9.6.4 Neither the Owner nor Architect shall have an obligation to pay or to see
to the payment of money to a Subcontractor except as may otherwise be required
by law.
9.6.5 Payment to material suppliers shall be treated in a manner similar to that
provided in Subparagraphs 9.6.2, 9.6.3 and 9.6.4.
9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or
occupancy of the Project by the Owner shall not constitute acceptance of Work
not in accordance with the Contract Documents.
9.6.7 Unless the Contractor provides the Owner with a payment bond in the full
penal sum of the Contract Sum, payments received by the Contractor for Work
properly performed by Subcontractors and suppliers shall be held by the
Contractor for those Subcontractors or suppliers who performed Work or furnished
materials, or both, under contract with the Contractor for which payment was
made by the Owner. Nothing contained herein shall require money to be placed in
a separate account and not commingled with money of the Contractor, shall create
any fiduciary liability or tort liability on the part of the Contractor for
breach of trust or shall entitle any person or entity to an award of punitive
damages against the Contractor for breach of the requirements of this provision.
9.7 FAILURE OF PAYMENT
9.7.1 If the Architect does not issue a Certificate for Payment, through no
fault of the Contractor, within seven days after receipt of the Contractor's
Application for Payment, or if the Owner does not pay the Contractor within
seven days after the date established in the Contract Documents the amount
certified by the Architect or awarded by arbitration, then the Contractor may,
upon seven additional days' written notice to the Owner and Architect, stop the
Work until payment of the amount owing has been received. The Contract Time
shall be extended appropriately and the Contract Sum shall be increased by the
amount of the Contractor's reasonable costs of shut-down, delay and start-up,
plus interest as provided for in the Contract Documents.
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9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress of the Work when the
Work or designated portion thereof is sufficiently complete in accordance with
the Contract Documents so that the Owner can occupy or utilize the Work for its
intended use.
9.8.2 When the Contractor considers that the Work, or a portion thereof which
the Owner agrees to accept separately, is substantially complete, the Contractor
shall prepare and submit to the Architect a comprehensive list of items to be
completed or corrected prior to final payment. Failure to include an item on
such list does not alter the responsibility of the Contractor to complete all
Work in accordance with the Contract Documents.
9.8.3 Upon receipt of the Contractor's list, the Architect will make an
inspection to determine whether the Work or designated portion thereof is
substantially complete. If the Architect's inspection discloses any item,
whether or not included on the Contractor's list which is not sufficiently
complete in accordance with the Contract Documents so that the Owner can occupy
or utilize the Work or designated portion thereof for its intended use, the
Contractor shall, before issuance of the Certificate of Substantial Completion,
complete or correct such item upon notification by the Architect. In such case,
the Contractor shall then submit a request for another inspection by the
Architect to determine Substantial Completion.
9.8.4 When the Work or designated portion thereof is substantially complete, the
Architect will prepare a Certificate of Substantial Completion which shall
establish the date of Substantial Completion, shall establish responsibilities
of the Owner and Contractor for security, maintenance, heat, utilities, damage
to the Work and insurance, and shall fix the time within which the Contractor
sha11 finish all items on the list accompanying the Certificate. Warranties
required by the Contract Documents shall commence on the date of Substantial
Completion of the Work or designated portion thereof unless otherwise provided
in the Certificate of Substantial Completion.
9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner
and Contractor for their written acceptance of responsibilities assigned to them
in such Certificate. Upon such acceptance and consent of surety, if any, the
Owner shall make payment of retainage applying to such Work or designated
portion thereof. Such payment shall be adjusted for Work that is incomplete or
not in accordance with the requirements of the Contract Documents.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed or partially completed portion
of the Work at any stage when such portion is designated by separate agreement
with the Contractor, provided such occupancy or use is consented to by the
insurer as required under Clause 11.4.1.5 and authorized by public authorities
having jurisdiction over the Work. Such partial occupancy or use may commence
whether or not the portion is substantially complete, provided the Owner and
Contractor have accepted in writing the responsibilities assigned to each of
them for payments, retainage, if any, security, maintenance, heat, utilities,
damage to the Work and insurance, and have agreed in writing concerning the
period for correction of the Work and commencement of warranties required by the
Contract Documents. When the Contractor considers a portion substantially
complete, the Contractor shall prepare and submit a list to the Architect as
provided under Subparagraph 9.8.2. Consent of the Contractor to partial
occupancy or use sha11 not be unreasonably withheld. The stage of the progress
of the Work shall be determined by written agreement between the Owner and
Contractor or, if no agreement is reached, in accordance with Paragraph 4.4.
9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor
and Architect shall jointly inspect the area to be occupied or portion of the
Work to be used in order to determine and record the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or
portions of the Work shall not constitute acceptance of Work not complying with
the requirements of the Contract Documents.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Upon receipt of written notice that the Work is ready for final
inspection and acceptance and upon receipt of a final Application for Payment,
the Architect will promptly make such inspection and, when the Architect finds
the Work acceptable under the Contract Documents and the Contract fully
performed, the Architect will promptly issue a final Certificate for Payment
stating that to the best of the Architect's knowledge, information and belief
and on the basis of the Architect's on-site visits and inspections, the Work has
been completed in accordance with terms and conditions of the Contract Documents
and that the entire balance found to be due the Contractor and noted in the
final Certificate is due and payable. The Architect's final Certificate for
Payment will constitute a further representation that conditions listed in
Subparagraph 9.10.2 as precedent to the Contractor's being entitled to final
payment have been fulfilled.
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9.10.2 Neither final payment nor any remaining retained percentage shall become
due until the Contractor submits to the Architect (1) an affidavit that
payrolls, bills for materials and equipment, and other indebtedness connected
with the Work for which the Owner or the Owner's property might be responsible
or encumbered (less amounts withheld by Owner) have been paid or otherwise
satisfied, (2) a certificate evidencing that insurance required by the Contract
Documents to remain in force after final payment is currently in effect and will
not be canceled or allowed to expire until at least 30 days' prior written
notice has been given to the Owner, (3) a written statement that the Contractor
knows of no substantial reason that the insurance will not be renewable to cover
the period required by the Contract Documents, (4) consent of surety, if any, to
final payment and (5), if required by the Owner, other data establishing payment
or satisfaction of obligations, such as receipts, releases and waivers of liens,
claims, security interests or encumbrances arising out of the Contract, to the
extent and in such form as may be designated by the Owner. If a Subcontractor
refuses to furnish a release or waiver required by the Owner, the Contractor may
furnish a bond satisfactory to the Owner to indemnify the Owner against such
lien. If such lien remains unsatisfied after payments are made, the Contractor
shall refund to the Owner all money that the Owner may be compelled to pay in
discharging such lien, including all costs and reasonable attorneys' fees.
9.10.3 If, after Substantial Completion of the Work, final completion thereof is
materially delayed through no fault of the Contractor or by issuance of Change
Orders affecting final completion, and the Architect so confirms, the Owner
shall, upon application by the Contractor and certification by the Architect,
and without terminating the Contract, make payment of the balance due for that
portion of the Work fully completed and accepted. If the remaining balance for
Work not fully completed or corrected is less than retainage stipulated in the
Contract Documents, and if bonds have been furnished, the written consent of
surety to payment of the balance due for that portion of the Work fully
completed and accepted shall be submitted by the Contractor to the Architect
prior to certification of such payment. Such payment shall be made under terms
and conditions governing final payment, except that it shall not constitute a
waiver of claims.
9.10.4 The making of final payment shall constitute a waiver of Claims by the
Owner except those arising from:
.1 liens, Claims, security interests or encumbrances arising out of
the Contract and unsettled;
.2 failure of the Work to comply with the requirements of the Contract
Documents; or
.3 terms of special warranties required by the Contract Documents.
9.10.5 Acceptance of final payment by the Contractor, a Subcontractor or
material supplier shall constitute a waiver of claims by that payee except those
previously made in writing and identified by that payee as unsettled at the time
of final Application for Payment.
ARTICLE 10
PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
10.1.1 The Contractor shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the
performance of the Contract.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take reasonable precautions for safety of and shall
provide reasonable protection to prevent damage, injury or loss to:
.1 employees on the Work and other persons who may be affected thereby;
.2 the Work and materials and equipment to be incorporated therein,
whether in storage on or off the site, under care, custody or
control of the Contractor or the Contractor's Subcontractors or
Sub-subcontractors; and
.3 other property at the site or adjacent thereto, such as trees,
shrubs, lawns, walks, pavements, roadways, structures and utilities
not designated for removal, relocation or replacement in the course
of construction.
10.2.2 The Contractor shall give notices and comply with applicable laws,
ordinances, rules, regulations and lawful orders of public authorities bearing
on safety of persons or property or their protection from damage, injury or
loss.
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10.2.3 The Contractor shall erect and maintain, as required by existing
conditions and performance of the Contract, reasonable safeguards for safety and
protection, including posting danger signs and other warnings against hazards,
promulgating safety regulations and notifying owners and users of adjacent sites
and utilities.
10.2.4 When use or storage of explosives or other hazardous materials or
equipment or unusual methods are necessary for execution of the Work, the
Contractor shall exercise utmost care and carry on such activities under
supervision of properly qualified personnel.
10.2.5 The Contractor shall promptly remedy damage and loss (other than damage
or loss insured under property insurance required by the Contract Documents) to
property referred to in Clauses 10.2.1.2 and 10.2.1.3 caused in whole or in part
by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or
indirectly employed by any of them, or by anyone for whose acts they may be
liable and for which the Contractor is responsible under Clauses 10.2.1.2 and
10.2.1.3. The cost of such repair shall be paid by insurance provided by Owner
or reimbursed by Owner, except damage caused by willful misconduct of Contractor
or any subcontractor. The foregoing obligations of the Contractor are in
addition to the Contractor's obligations under Paragraph 3.18.
10.2.6 The Contractor shall designate a responsible member of the Contractor's
organization at the site whose duty shall be the prevention of accidents. This
person shall be the Contractor's superintendent unless otherwise designated by
the Contractor in writing to the Owner and Architect.
10.3 HAZARDOUS MATERIALS
10.3.1 If reasonable precautions will be inadequate to prevent foreseeable
bodily injury or death to persons resulting from a material or substance,
including but not limited to asbestos or polychlorinated biphenyl (PCB),
encountered on the site by the Contractor, the Contractor shall, upon
recognizing the condition, immediately stop Work in the affected area and report
the condition to the Owner and Architect in writing.
10.3.2 The Owner shall obtain the services of a licensed laboratory to verify
the presence or absence of the material or substance reported by the Contractor
and, in the event such material or substance is found to be present, to verify
that it has been rendered harmless. Unless otherwise required by the Contract
Documents, the Owner shall furnish in writing to the Contractor and Architect
the names and qualifications of persons or entities who are to perform tests
verifying the presence or absence of such material or substance or who are to
perform the task of removal or safe containment of such material or substance.
The Contractor and the Architect will promptly reply to the Owner in writing
stating whether or not either has reasonable objection to the persons or
entities proposed by the Owner. If either the Contractor or Architect has an
objection to a person or entity proposed by the Owner, the Owner shall propose
another to whom the Contractor and the Architect have no reasonable objection.
When the material or substance has been rendered harmless, Work in the affected
area shall resume upon written agreement of the Owner and Contractor. The
Contract Time shall be extended appropriately and the Contract Sum shall be
increased in the amount of the Contractor's reasonable additional costs of
shut-down, delay and startup, which adjustments shall be accomplished as
provided in Article 7.
10.3.3 Anything herein to the contrary notwithstanding, title to, ownership of,
and legal responsibility and liability for any and all pre-existing
contamination shall at all times remain with the Owner, 'Pre-existing
contamination is any hazardous or toxic substance present at the site which was
not brought there by the Contractor or the remediation of such pre-existing
contamination was not the subject matter of this Contract or other agreement
between Contractor and Owner. The Owner hereby releases and agrees to defend,
indemnify and hold the Contractor harmless from and against any and all costs,
losses, damages, expenses (including attorneys' fees), fines, penalties, claims
and causes of action which arise out of or result in any way from such
pre-existing contamination, except to the extent that the same result from the
Contractor's gross negligence or willful misconduct.
10.4 The Owner shall not be responsible under Paragraph 10.3 for materials and
substances brought to the site by the Contractor unless such materials or
substances were required by the Contract Documents.
10.5 If the Contractor is held liable for the cost of remediation of a hazardous
material or substance solely by reason of performing Work as required by the
Contract Documents, the Owner shall indemnify the Contractor for all cost and
expense thereby incurred, except as provided in Paragraph 10.3.3.
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10.6 EMERGENCIES
10.6.1 In an emergency affecting safety of persons or property, the Contractor
shall act, at the Contractor's discretion, to prevent threatened damage, injury
or loss. Additional compensation or extension of time claimed by the Contractor
on account of an emergency shall be determined as provided in Paragraph 4.3 and
Article 7.
ARTICLE 11
INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 The Contractor shall purchase from and maintain in a company or companies
lawfully authorized to do business in the jurisdiction in which the Project is
located such insurance as will cover:
.1 claims under workers' compensation, disability benefit and other
similar employee benefit acts which are applicable to the Work to
be performed;
.2 claims for damages because of bodily injury, occupational sickness
or disease, or death of the Contractor's employees;
.3 claims for damages because of bodily injury, sickness or disease,
or death of any person other than the Contractor's employees;
.4 claims for damages insured by usual personal injury liability
coverage;
.5 claims for damages, other than to the Work itself, because of
injury to or destruction of tangible property, including loss of
use resulting therefrom;
.6 claims for damages because of bodily injury, death of a person or
property damage arising out of ownership, maintenance or use of a
motor vehicle;
.7 claims for bodily injury or property damage arising out of
completed operations;
.8 claims involving contractual liability insurance applicable to the
Contractor's obligations under Paragraph 3.18; and
.9 claims in excess of the coverages set forth above in the form of an
excess umbrella policy with limits of Ten Million Dollars
($10,000,000).
11.1.2 The insurance required by Subparagraph 11.1.1 shall be written for the
limits of liability specified in the Contract Documents or required by law,
whichever coverage is greater. Coverages, whether written on an occurrence or
claims made basis, sha1l be maintained without interruption from date of
commencement of the Work until date of final payment and termination of any
coverage required to be maintained after final payment.
11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the
Owner prior to commencement of the Work. These certificates and the insurance
policies required by this Paragraph 11.1 shall contain a provision that
coverages afforded under the policies will not be canceled or allowed to expire
until at least 30 days' prior written notice has been given to the Owner. If any
of the foregoing insurance coverages are required to remain in force after final
payment and are reasonably available, an additional certificate evidencing
continuation of such coverage shall be submitted with the final Application for
Payment as required by Subparagraph 9.10.2. Information concerning reduction of
coverage on account of revised limits or claims paid under the General
Aggregate, or both, shall be furnished by the Contractor with reasonable
promptness in accordance with the Contractor's information and belief.
11.2 OWNER'S LIABILITY INSURANCE
11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's
usual liability insurance.
11.3 Left blank intentionally
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11.4 PROPERTY INSURANCE
11.4.1 Unless otherwise provided, the Owner shall purchase and maintain, in a
company or companies lawfully authorized to do business in the jurisdiction in
which the Project is located, property insurance written on a builders risk
"all-risk" or equivalent policy form in the amount of the initial Contract Sum,
plus value of subsequent Contract modifications and cost of materials supplied
or installed by others, comprising total value for the entire Project at the
site on a replacement cost basis without optional deductibles. Such property
insurance shall be maintained, unless otherwise provided in the Contract
Documents or otherwise agreed in writing by all persons and entities who are
beneficiaries of such insurance, until final payment has been made as provided
in Paragraph 9.10 or until no person or entity other than the Owner has an
insurable interest in the property required by this Paragraph 11.4 to be
covered, whichever is later. This insurance shall include interests of the
Owner, the Contractor, Subcontractors and Sub-subcontractors in the Project "The
Owner shall assume and at its election insure all risk of loss or damage to any
existing facilities, the Work itself, and any other property or Work of the
Owner now or hereafter at or near the site of the Work. The Owner waives its
recovery rights against the Contractor for any loss or damage arising from risks
assumed hereunder and agrees to obtain a waiver of subrogation rights of its
insurers against the Contractor for any such loss or damage. If the Owner is not
the sole owner of the facility or existing property at or adjacent to the
jobsite, the Owner shall obtain an undertaking from the other owners thereof
sufficient to provide to the Contractor the same protection from liability for
loss or damage to such property as would be afforded to the Contractor under
this Section if the Owner were the sole owner. "Property" insurance shall be on
an "all-risk" or equivalent policy form and shall include, without limitation,
insurance against the perils of fire (with extended coverage) and physical loss
or damage including, without duplication of coverage, theft, vandalism,
malicious mischief, collapse, earthquake, flood, windstorm, false work, testing
and startup, temporary buildings and debris removal including demolition
occasioned by enforcement of any applicable legal requirements, and shall cover
reasonable compensation for Architect's and Contractor's services and expenses
required as a result of such insured loss.
11.4.1.1 If the Owner does not intend to purchase such property insurance
required by the Contract and with all of the coverages in the amount described
above, the Owner shall so inform the Contractor in writing prior to commencement
of the Work. The Contractor may then effect insurance which will protect the
interests of the Contractor, Subcontractors and Sub-subcontractors in the Work,
and by appropriate Change Order the cost thereof shall be charged to the Owner.
If the Contractor is damaged by the failure or neglect of the Owner to purchase
or maintain insurance as described above, without so notifying the Contractor in
writing, then the Owner shall bear all reasonable costs properly attributable
thereto.
11.4.1.2 If the property insurance requires deductibles, the Owner sha1l pay
costs not covered because of such deductibles.
11.4.1.3 This property insurance shall cover portions of the Work stored off the
site, and also portions of the Work in transit.
11.4.1.4 Partial occupancy or use in accordance with Paragraph 9.9 shall not
commence until the insurance company or companies providing property insurance
have consented to such partial occupancy or use by endorsement or otherwise. The
Owner and the Contractor shall take reasonable steps to obtain consent of the
insurance company or companies and shall, without mutual written consent, take
no action with respect to partial occupancy or use that would cause
cancellation, lapse or reduction of insurance.
11.4.2 Boiler and Machinery Insurance. The Owner shall purchase and maintain
boiler and machinery insurance required by the Contract Documents or by law,
which shall specifically cover such insured objects during installation and
until final acceptance by the Owner; this insurance shall include interests of
the Owner, Contractor, Subcontractors and Sub-subcontractors in the Work, and
the Owner and Contractor shall be named insureds.
11.4.3 LOSS OF USE INSURANCE. The Owner, at the Owner's option, may purchase and
maintain such insurance as will insure the Owner against loss of use of the
Owner's property due to fire or other hazards, however caused. The Owner waives
all rights of action against the Contractor for loss of use of the Owner's
property, including consequential losses due to fire or other hazards however
caused.
11.4.4
11.4.5 If during the Project construction period the Owner insures properties,
real or personal or both, at or adjacent to the site by property insurance under
policies separate from those insuring the Project, or if after final payment
property insurance is to be provided on the completed Project through a policy
or policies other than those insuring the Project during the construction
period, the Owner shall waive all rights in accordance with the terms of
Subparagraph 11.4.7 for damages caused by fire or other causes of loss covered
by this separate property insurance. All separate policies shall provide this
waiver of subrogation by endorsement or otherwise.
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11.4.6 Before an exposure to loss may occur, the Owner shall file with the
Contractor a copy of each policy that includes insurance coverages required by
this Paragraph 11.4. Each policy sha11 contain all generally applicable
conditions, definitions, exclusions and endorsements related to this Project.
Each policy shall contain a provision that the policy will not be canceled or
allowed to expire, and that its limits will not be reduced, until at least 30
days' prior written notice has been given to the Contractor.
11.4.7 Waivers of Subrogation. The Owner and Contractor waive all rights against
(1) each other and any of their subcontractors, sub-subcontractors, agents and
employees, each of the other, and (2) the Architect, Architect's consultants,
separate contractors described in Article 6, if any, and any of their
subcontractors, sub-subcontractors, agents and employees, for damages caused by
fire or other causes of loss to the extent covered by property insurance
obtained pursuant to this Paragraph 11.4 or other property insurance applicable
to the Work, except such rights as they have to proceeds of such insurance held
by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall
require of the Architect, Architect's consultants, separate contractors
described in Article 6, if any, and the subcontractors, sub-subcontractors,
agents and employees of any of them, by appropriate agreements, written where
legally required for validity, similar waivers each in favor of other parties
enumerated herein. The policies shall provide such waivers of subrogation by
endorsement or otherwise. A waiver of subrogation shall be effective as to a
person or entity even though that person or entity would otherwise have a duty
of indemnification, contractual or otherwise, did not pay the insurance premium
directly or indirectly, and whether or not the person or entity had an insurable
interest in the property damaged.
11.4.8 A loss insured under Owner's property insurance shall be adjusted by the
Owner as fiduciary and made payable to the Owner as fiduciary for the insureds,
as their interests may appear, subject to requirements of any applicable
mortgagee clause and of Subparagraph 11.4,10. The Contractor shall pay
Subcontractors their just shares of insurance proceeds received by the
Contractor, and by appropriate agreements, written where legally required for
validity, shall require Subcontractors to make payments to their
Sub-subcontractors in similar manner.
11.4.9 If required in writing by a party in interest, the Owner as fiduciary
shall, upon occurrence of an insured loss, give bond for proper performance of
the Owner's duties. The cost of required bonds shall be charged against proceeds
received as fiduciary. The Owner shall deposit in a separate account proceeds so
received, which the Owner shall distribute in accordance with such agreement as
the parties in interest may reach, or in accordance with an arbitration award in
which case the procedure shall be as provided in Paragraph 4.6. If after such
loss no other special agreement is made and unless the Owner terminates the
Contract for convenience, replacement of damaged property shall be performed by
the Contractor after notification of a Change in the Work in accordance with
Article 7.
11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with
insurers unless one of the parties in interest shall object in writing within
five days after occurrence of loss to the Owner's exercise of this power; if
such objection is made, the dispute shall be resolved as provided in Paragraphs
4.5 and 4.6. The Owner as fiduciary shall, in the case of arbitration, make
settlement with insurers in accordance with directions of the arbitrators. If
distribution of insurance proceeds by arbitration is required, the arbitrators
will direct such distribution.
11.5 PERFORMANCE BOND AND PAYMENT BOND
11.5.1 The Owner shall have the right to require the Contractor to furnish bonds
covering faithful performance of the Contract and payment of obligations arising
thereunder as stipulated in bidding requirements or specifically required in the
Contract Documents on the date of execution of the Contract.
11.5.2 Upon the request of any person or entity appearing to be a potential
beneficiary of bonds covering payment of obligations arising under the Contract,
the Contractor shall promptly furnish a copy of the bonds or shall permit a copy
to be made.
ARTICLE 12
UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to the Architect's request
or to requirements specifically expressed in the Contract Documents, it must, if
required in writing by the Architect, be uncovered for the Architect's
examination and be replaced at the Contractors expense without change in the
Contract Time.
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12.1.2 If a portion of the Work has been covered which the Architect has not
specifically requested to examine prior to its being covered, the Architect may
request to see such Work and it shall be uncovered by the Contractor. If such
Work is in accordance with the Contract Documents, costs of uncovering and
replacement shall, by appropriate Change Order, be at the Owner's expense. If
such Work is not in accordance with the Contract Documents, correction shall be
at the Contractors expense unless the condition was caused by the Owner or a
separate contractor in which event the Owner shall be responsible for payment of
such costs.
12.2 CORRECTION OF WORK
12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
12.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or
failing to conform to the requirements of the Contract Documents, whether
discovered before or after Substantial Completion and whether or not fabricated,
installed or completed. Costs of correcting rejected Work before Substantial
Completion, including additional testing and inspections and compensation for
the Architect's services and expenses made necessary thereby shall be
reimbursable up to the GMP.
12.2.2 AFTER SUBSTANTIAL COMPLETION
12.2.2.1 If, within one year after the date of Substantial Completion of the
Work or designated portion thereof or after the date for commencement of
warranties established under Subparagraph 9.9.1, any of the Work is found to be
not in accordance with the requirements of the Contract Documents, the
Contractor shall correct it promptly after receipt of written notice from the
Owner to do so unless the Owner has previously given the Contractor a written
acceptance of such condition. The Owner sha11 give such notice promptly after
discovery of the condition. During the one year period for correction of Work,
if the Owner fails to notify the Contractor and give the Contractor an
opportunity to make the correction, the Owner waives the rights to require
correction by the Contractor and to make a claim for breach of warranty. If the
Contractor fails to correct nonconforming Work within a reasonable time during
that period after receipt of notice from the Owner or Architect, the Owner may
correct it in accordance with Paragraph 2.4.
12.2.2.2 The one-year period for correction of Work shall be extended with
respect to portions of Work first performed after Substantial Completion by the
period of time between Substantial Completion and the actual performance of the
Work.
12.2.2.3 The one-year period for correction of Work shall not be extended by
corrective Work performed by the Contractor pursuant to this Paragraph 12.2.
12.2.3 The Contractor shall remove from the site portions of the Work which are
not in accordance with the requirements of the Contract Documents and are
neither corrected by the Contractor nor accepted by the Owner.
12.2.4 Nothing contained in this Paragraph 12.2 shall be construed to establish
a period of limitation, with respect to other obligations which the Contractor
might have under the Contract Documents.
12.3 ACCEPTANCE OF NONCONFORMING WORK
12.3.1 If the Owner prefers to accept Work which is not in accordance with the
requirements of the Contract Documents, the Owner may do so instead of requiring
its removal and correction, in which case the Contract Sum will be reduced as
appropriate and equitable. Such adjustment shall be effected whether or not
final payment has been made.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 GOVERNING LAW
13.1.1 The Contract shall be governed by the law of the place where the Project
is located.
13.2 SUCCESSORS AND ASSIGNS
13.2.1 The Owner and Contractor respectively bind themselves, their partners,
successors, assigns and legal representatives to the other party hereto and to
partners, successors, assigns and legal representatives of such other party in
respect to covenants, agreements and obligations contained in the Contract
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Documents. Except as provided in Subparagraph 13.2.2, neither party to the
Contract shall assign the Contract as a whole without written consent of the
other. If either party attempts to make such an assignment without such consent,
that party shall nevertheless remain legally responsible for all obligations
under the Contract
13.2.2 The Owner may, without consent of the Contractor, assign the Contract to
an institutional lender providing constructionn financing for the Project. In
such event, the lender shall assume the Owner's rights and obligations under the
Contract Documents. The Contractor shall execute all consents reasonably
required to facilitate such assignment.
13.3 WRITTEN NOTICE
13.3.1 Written notice shall be deemed to have been duly served if delivered in
person to the individual or a member of the certified firm or entity or to an
officer of the corporation for which it was intended, or if delivered at or sent
by registered or certified mail to the last business address known to the party
giving notice.
13.4 RIGHTS AND REMEDIES
13.4.1 To the extent remedies are provided in this Agreement, then such remedies
would be the exclusive remedy with respect to the subject matter covered
thereby, provided however, such remedy shall be in addition to all other
remedies set forth in this Contract. In the event a course of action or claim
arises for which a remedy is not provided in this Agreement, then the parties
shall have the rights and remedies available at law or in equity, subject to the
waivers, releases and limitations on liabilities set forth in the Agreement. To
the extent that any waivers, releases and limitations of liability are expressed
in this Agreement then such waivers, releases and limitations of liability shall
apply even in the event of default, negligence or strict liability of the
officers to be released or whose liability is limited and shall extend to the
officers, directors, employees, agents and related entities of such party.
13.4.2 No action or failure to act by the Owner, Architect or Contractor shall
constitute a waiver of a right or duty afforded them under the Contract, nor
shall such action or failure to act constitute approval of or acquiescence in a
breach thereunder, except as may be specifically agreed in writing.
13.5 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the Work required by the
Contract Documents or by laws, ordinances, rules, regulations or orders of
public authorities having jurisdiction shall be made at an appropriate time.
Unless otherwise provided, the Contractor shall make arrangements for such
tests, inspections and approvals with an independent testing laboratory or
entity acceptable to the Owner, or with the appropriate public authority, and
shall bear all related costs of tests, inspections and approvals. The Contractor
shall give the Architect timely notice of when and where tests and inspections
are to be made so that the Architect may be present for such procedures. The
Owner shall bear costs of tests, inspections or approvals which do not become
requirements until after bids are received or negotiations concluded.
13.5.2 If the Architect, Owner or public authorities having jurisdiction
determine that portions of the Work require additional testing, inspection or
approval not included under Subparagraph 13.5.1, the Architect will, upon
written authorization from the Owner, instruct the Contractor to make
arrangements for such additional testing, inspection or approval by entity
acceptable to the Owner, and the Contractor shall give timely notice to the
Architect of when and where tests and inspections are to be made so that the
Architect may be present for such procedures. Such costs, except as provided in
Subparagraph 13.5.3, shall be at the Owner's expense.
13.5.3 If such procedures for testing, inspection or approval under
Subparagraphs 13.5.1 and 13.5.2 reveal failure of the portions of the Work to
comply with requirements established by the Contract Documents, all costs made
necessary by such failure including those of repeated procedures and
compensation for the Architect's services and expenses shall be at the
Contractor's expense.
13.5.4 Required certificates of testing, inspection or approval shall, unless
otherwise required by the Contract Documents, be secured by the Contractor and
promptly delivered to the Architect.
13.5.5 if the Architect is to observe tests, inspections or approvals required
by the Contract -' Documents, the Architect will do so promptly and, where
practicable, at the normal place of testing.
13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall
be made promptly to avoid unreasonable delay in the Work.
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13.6 INTEREST
13.6.1 Payments due and unpaid under the Contract Documents shall bear interest
from the date payment is due at such rate as the parties may agree upon in
writing or, in the absence thereof, at the legal rate prevailing from time to
time at the place where the Project is located.
13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
13.7.1 As between the Owner and Contractor:
.1 Before Substantial Completion. As to acts or failures to act
occurring prior to the relevant date of Substantial
Completion, any applicable statute of limitations shall
commence to run and any alleged cause of action shall be
deemed to have accrued in any and all events not later than
such date of Substantial Completion;
.2 Between Substantial Completion and Final Certificate for
Payment. As to acts or failures to act occurring subsequent to
the relevant date of Substantial Completion and prior to
issuance of the final Certificate for Payment, any applicable
statute of limitations shall commence to run and any alleged
cause of action shall be deemed to have accrued in any and all
events not later than the date of issuance of the final
Certificate for Payment; and
.3 After Final Certificate for Payment. As to acts or failures to
act occurring after the relevant date of issuance of the final
Certificate for Payment, any applicable statute of limitations
shall commence to run and any alleged cause of action shall
be deemed to have accrued in any and all events not later than
the date of any act or failure to act by the Contractor
pursuant to any Warranty provided under Paragraph 3.5, the
date of any correction of the Work or failure to correct the
Work by the Contractor under Paragraph 12.2, or the date of
actual commission of any other act or failure to perform any
duty or obligation by the Contractor or Owner, whichever
occurs last.
ARTICLE 14
TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the Work is stopped for a
period of 30 consecutive days through no act or fault of the Contractor or a
Subcontractor, Sub-subcontractor or their agents or employees or any other
persons or entities performing portions of the Work under direct or indirect
contract with the Contractor, for any of the following reasons:
.1 issuance of an order of a court or other public authority
having jurisdiction which requires all Work to be stopped;
.2 an act of government, such as a declaration of national
emergency which requires all Work to be stopped;
.3 because the Architect has not issued a Certificate for Payment
and has not notified the Contractor of the reason for
withholding certification as provided in Subparagraph 9.4.1,
or because the Owner has not made payment on a Certificate for
Payment within the time stated in the Contract Documents; or
.4 the Owner has failed to furnish to the Contractor prompt1y,
upon the Contractor's request, reasonable evidence as required
by Subparagraph 2.2.1.
14.1.2 The Contractor may terminate the Contract if, through no act or fault of
the Contractor or a Subcontractor, Sub-subcontractor or their agents or
employees or any other persons or entities performing portions of the Work under
direct or indirect contract with the Contractor, repeated suspensions, delays or
interruptions of the entire Work by the Owner as described in Paragraph 14.3
constitute in the aggregate more than 100 percent of the total number of days
scheduled for completion, or 120 days in any 365-day period, whichever is less.
14.1.3 If one of the reasons described in Subparagraph 14.1.1 or 14.1.2 exists,
the Contractor may, upon seven days' written notice to the Owner and Architect,
terminate the Contract and recover from the Owner payment for Work executed and
for proven loss with respect to materials, equipment, tools, and construction
equipment and machinery, including reasonable overhead, profit and damages.
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14.1.4 If the Work is stopped for a period of 60 consecutive days through no act
or fault of the Contractor or a Subcontractor or their agents or employees or
any other persons performing portions of the Work under contract with the
Contractor because the Owner has persistently failed to fulfill the Owner's
obligations under the Contract Documents with respect to matters important to
the progress of the Work, the Contractor may, upon seven additional days'
written notice to the Owner and the Architect, terminate the Contract and
recover from the Owner as provided in Subparagraph 14.1.3.
14.2 TERMINATION BY THE OWNER FOR CAUSE
14.2.1 The Owner may terminate the Contract if the Contractor:
.1 persistently or repeatedly refuses or fails to supply enough
properly skilled workers or proper materials;
.2 repeatedly fails to make payment to Subcontractors for
materials or labor in accordance with the respective
agreements between the Contractor and the Subcontractors;
.3 persistently disregards laws, ordinances, or rules,
regulations or orders of a public authority having
jurisdiction; or
.4 otherwise is guilty of substantial breach of a provision of
the Contract Documents.
14.2.2 When any of the above reasons exist, the Owner, upon certification by the
Architect that sufficient cause exists to justify such action, may without
prejudice to any other rights or remedies of the Owner and after giving the
Contractor and the Contractor's surety, if any, seven days' written notice,
terminate employment of the Contractor and may, subject to any prior rights of
the surety:
.1 take possession of the site and of all materials, equipment,
tools, and construction equipment and machinery thereon owned
by the Contractor under the terms of the assignment.
.2 accept assignment of subcontracts pursuant to Paragraph 5.4;
and
.3 finish the Work by whatever reasonable method the Owner may
deem expedient. Upon request of the Contractor, the Owner
shall furnish to the Contractor a detailed accounting of the
costs incurred by the Owner in finishing the Work.
14.2.3 When the Owner terminates the Contract for one of the reasons stated in
Subparagraph 14.2.1, the Contractor shall not be entitled to receive further
payment until the Work is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the
Work, including compensation for the Architect's services and expenses made
necessary thereby, such excess shall be paid to the Contractor. If such costs
and damages exceed the unpaid balance, the Contractor shall pay the difference
to the Owner. The amount to be paid to the Contractor or Owner, as the case may
be, shall be certified by the Architect, upon application, and this obligation
for payment shall survive termination of the Contract.
14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
14.3.1 The Owner may, without cause, order the Contractor in writing to suspend,
delay or; interrupt the Work in whole or in part for such period of time as the
Owner may determine.
14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the
cost and time caused by suspension, delay or interruption as described in
Subparagraph 14.3.1. Adjustment of the Contract Sum shall include profit. No
adjustment shall be made to the extent:
.1 that performance is, was or would have been so suspended,
delayed or interrupted by another cause for which the
Contractor is responsible; or
.2 that an equitable adjustment is made or denied under another
provision of the Contract.
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14.4 TERMINATION BY THE OWNER FOR CONVENIENCE
14.4.1 The Owner may, at any time, terminate the Contract for the Owner's
convenience and without cause.
14.4.2 Upon receipt of written notice from the Owner of such termination for the
Owner's convenience, the Contractor shall:
.1 cease operations as directed by the owner in the notice;
.2 take actions necessary, or that the Owner may direct, for the
protection and preservation of the Work; and
.3 except for Work directed to be performed prior to the
effective date of termination stated in the notice, terminate
all existing subcontracts and purchase orders and enter into
no further subcontracts and purchase orders.
14.4.3 In case of such termination for the Owners convenience, the Contractor
sha11 be entitled to receive payment for Work executed, and costs incurred by
reason of such termination, along with reasonable overhead and profit on the
Work not executed.
