EXHIBIT 10.60
OWNER-CONTRACTOR AGREEMENT
for
ABB POWER SYSTEMS
XXXXX REIT, LLC - VAI
("Owner")
and
BEERS CONSTRUCTION CORP.
("Contractor")
OWNER-CONTRACTOR AGREEMENT
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ARTICLE 1 - THE WORK....................................................... 2
ARTICLE 2 - THE PROJECT.................................................... 2
ARTICLE 3 - THE CONTRACT DOCUMENTS......................................... 2
3.1 Contract Documents............................................... 2
ARTICLE 4 - TIME OF COMMENCEMENT AND SUBSTANTIAL COMPLETION................ 3
4.1 Date of Commencement............................................. 3
4.2 Contract Time.................................................... 3
4.3 Adjustment for Changes........................................... 3
4.4 Substantial Completion........................................... 3
4.5. Final Completion................................................. 3
ARTICLE 5 - CHANGE ORDERS.................................................. 3
5.1 Right to Make Changes............................................ 3
5.2. Fee.............................................................. 4
ARTICLE 6 - CONTRACT SUM................................................... 4
6.1 Contract Sum..................................................... 4
ARTICLE 7 - PAYMENTS....................................................... 4
7.1 Process Payments................................................. 4
7.2 Semifinal Payment................................................ 5
7.3 Final Payment.................................................... 5
7.4 Payment of Subcontractors........................................ 5
7.5 Payment Requests and Related Form................................ 5
ARTICLE 8 - PERFORMANCE AND PAYMENT BONDS.................................. 5
ARTICLE 9 - MISCELLANEOUS PROVISIONS....................................... 6
9.1 Notices.......................................................... 6
9.2 Owner's Liability................................................ 6
9.3 Owner's and Contractor's Representatives......................... 6
9.4 Definitions...................................................... 6
9.5 Examination of Documents......................................... 6
9.6 Construction Loan................................................ 7
(1)
OWNER-CONTRACTOR AGREEMENT
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THIS AGREEMENT is made on the 14th day of June, 1999:
Regarding:
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"PROJECT": ABB Power Systems
Chesterfield County, Virginia
Between:
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"OWNER": Xxxxx REIT, LLC - VA I
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
And:
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"CONTRACTOR": Bovis Construction Corp.
Address: 0000 Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Designed By:
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"ARCHITECT": Smallwood, Reynolds, Xxxxxxx, Xxxxxxx & Associates, Inc.
Address: One Piedmont Center
Suite 303
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone No: (000) 000-0000
The Owner and the Contractor hereby agree as follows: FOR VALUABLE
CONSIDERATION, the sufficiency of which is hereby acknowledged, the parties
promise,
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covenant and agree that the Owner shall engage and compensate Contractor and the
Contractor shall perform the Work relative to the Project all as hereinafter set
forth.
ARTICLE 1
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THE WORK
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The Contractor shall perform all Work required by the Contract documents
relative to the Project set forth above within the Contract Time stipulated
therein and in complete accordance with and fulfillment of the provisions, terms
and conditions thereof.
ARTICLE 2
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THE PROJECT
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The Project is identified above shall consist of the total construction
required under the Contract Documents upon the real property identified by the
legal description attached as Exhibit "D-1" (the "site").
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ARTICLE 3
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THE CONTRACT DOCUMENTS
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3.1 Contract Documents. The Contract Documents relative to this
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Agreement Package above consist of the following Exhibits:
(a) This Owner-Contractor Agreement
(b) The General Conditions of the Contract for Construction
(hereinafter referred to as the "General Conditions")
(c) Payment Request Form
(d) Waiver of Lien Form
(e) Contractor's Affidavit Form
(f) Final Waiver of Lien Form
(g) Summary of Lump Sum Price
(h) Clarifications and Description of Work
2
(i) Construction Schedule Prepared by Bovis Construction Corp.
dated June 10, 1999, and as updated and agreed to by the
Owner upon completion of Drawings.
(j) The Drawings
(k) The Specifications
These all collectively form the Contract, and are all as fully a part of the
Contract as if attached to this Agreement as repeated herein.
ARTICLE 4
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TIME OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
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4.1 Date of Commencement. The Contractor shall commence the Work no
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later than June 21, 1999 ("Notice to Proceed").
4.2 Contract Time. The Contractor shall perform the Work as required
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in the Contract Documents to achieve Substantial Completion of the entire Work
on or before three hundred fifteen (315) calendar days after the Date of
Commencement.
4.3 Adjustment for Changes. The Contract Time may be extended only
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for those causes expressly stipulated herein and elsewhere in the Contract
Documents and only strictly in accordance with the procedures and requirements
set forth therein.
4.4 Substantial Completion. The Date of Substantial Completion shall
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be as defined in the Contract Documents.
4.5. Final Completion. In no event shall the Work be considered
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complete for purposes of final payment until the following have occurred: (a)
all construction items required by the Contract Documents have been fully
completed and approved, (b) a final certificate of payment issued by the
Architect as provided in the General Conditions.
ARTICLE 5
CHANGE ORDERS
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5.1 Right to Make Changes. Owner may make modifications in the Work
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in accordance with the General Conditions and appropriate adjustments in
Contract Time and Contract Sum shall be made in compliance therewith.
3
5.2. Fee. The fee earned by Contractor and any Subcontractor (as
---
defined in the General Conditions) for performing any additional work under a
Change Order performed on a "cost" plus "fee" basis shall be determined on the
following basis:
(a) The fee earned by any Subcontractor for performing such
additional work shall be 10% of the Cost of the Work (as defined in the
General Conditions) incurred by such Subcontractor to perform such work.
(b) The fee earned by Contractor for additional work performed by
Subcontractors shall be 5% of the Cost of the Work incurred by Contractor
to have such work performed.
(c) The fee earned by Contractor for additional work performed by
its own forces shall be 10% of the Cost of the Work incurred by Contractor
to perform such work.
ARTICLE 6
CONTRACT SUM
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6.1 Contract Sum. The Owner shall pay the Contractor the Sum of Five
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Million Five Hundred Forty-Nine Thousand Five Hundred Twenty Seven and No/100
($5,549,527.00) Dollars for the full and proper performance of the Work
hereunder, subject to Modification only and strictly in accordance with this
Agreement and as otherwise provided by the Contract Documents.
ARTICLE 7
PAYMENTS
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Based upon Applications for Payment submitted to the Owner and
Architect by the Contractor and Certificates for Payment issued by the
Architect, all in accordance with the requirements of the Contract Documents the
Owner shall make payments on account of the Contract Sum to the Contractor as
provided in the Contract Documents as follows:
7.1 Process Payments. The Owner shall make progress payments based
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upon duly certified Applications for Payment for each period ending on the
20/th/ day of each month, not later than the 10/th/ day of the following month.
Such progress payments shall be in the amount of Ninety (90%) Percent of the
portion of the Contract Sum properly allocable to labor, materials and equipment
incorporated in the Work and properly allocable to materials and equipment
suitably stored, insured and protected at the site or, at Owner's discretion, at
some other location agreed upon in writing and approved by the Owner, for the
period covered by the Application for
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Payment, less the aggregate of previous payments made by the Owner. When
$277,500.00 has been withheld as retainage no further retainage will be held
from progress payments.
7.2 Semifinal Payment. At the Date of Substantial Completion of the
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Work and submission of Semifinal Application for Payment all as provided in the
Contract Documents, the Owner shall within thirty (30) days after receipt of
such Application and other appropriate documentation and Certification by
Architect be required by the Contract Documents to make semifinal payment to the
Contractor of the certified amount owing of all unpaid balance of the Contract
Sum, as adjusted, for work completed, except for the amount of any continued
retention as provided by the Contract Documents determined necessary to protect
Owner's remaining interests until final completion.
7.3 Final Payment. Final Payment constituting the entire unpaid
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balance of the Contract Sum, as appropriately adjusted under the Contract
Documents, shall be paid by the Owner to the Contractor when the Work has been
finally completed, the Contract fully performed, the Architect has issued a
Final Certificate for Payment which approves the Final Application for Payment,
and the Contractor has provided all necessary submittals and documents required
by and otherwise fulfilled all other requirements set forth in the Contract
Documents. Such application shall be submitted on or before the 25/th/ day of
the month in which completion occurs and payment shall be due and payable on or
before the 10/th/ day of the next month or after Owner's receipt of the Final
Certificate of Payment, whichever is the later.
7.4 Payment of Subcontractors. No later than seven (7) days after
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receipt of payment by Contractor, Contractor shall make payments to its
subcontractors and suppliers reflecting appropriate retainage in the same
proportion as withheld by Owner and, to the extent to their interest therein for
amounts owing for labor, materials and services provided and for which payment
is so made by Owner.
7.5 Payment Requests and Related Form. Owner provides as Exhibits C
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through F the forms to be employed in appropriate circumstances in connection
with payment applications. Owner reserves the right upon reasonable advance
written notice to Contractors to modify or substitute any of all of these forms.
ARTICLE 8
PERFORMANCE AND PAYMENT BONDS
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8.1 The Contractor may be required to furnish Performance and Payment
Bonds, each in an amount at least equal to the Contract Sum, as defined herein,
as security for the faithful performance and payment of all of the Contractor's
obligations under the Contract Documents. Such Bonds shall be as required by
the Contract Documents and shall be delivered to the Owner no later than five
(5) days after the date requested. The cost of said Bonds would be payable by
Owner.
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ARTICLE 9
MISCELLANEOUS PROVISIONS
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9.1 Notices. The proper addresses for giving Notices under this
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Agreement are:
To Owner: Xxxxx REIT, LLC - VA I
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
To Contractor: Bovis Construction Corp.
0000 Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
To Architect: Smallwood, Reynolds, Xxxxxxx, Xxxxxxx & Associates
One Piedmont Center, Suite 303
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
9.2 Owner's Liability. The liability of the Owner hereunder shall be
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limited to its interest in the Project and the Property. No other property of
the Owner (or of any Partner or Venturer in Owner if Owner is a partnership or
joint venture) shall be subject to seizure or any other claim of any nature
whatsoever to satisfy any of Owner's obligations arising from this Agreement.
Neither Xxx X. Xxxxx, III, nor any other person or entity who may at any time be
a member, partner, or joint venturer in any partnership or joint venture which
may be the Owner, shall have any liability for any of the obligations of the
Owner arising from this Agreement.
9.3 Owner's and Contractor's Representatives. Owner hereby appoints
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Xxxxxxx X. Xxxxxx or his designee as the Owner's representative for all purposes
under this Contract. Contractor hereby appoints Xxxxx Xxxxxx or his designee
under this Contract. Either party may change his representative by written
notice to the other. Either representative may appoint a designee for either
general or limited purposes upon written notice to the other representative. If
such appointment is for less than all purposes, the notice shall set forth the
limited nature of the appointment.
9.4 Definitions. Terms used in this Agreement which are defined in
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the Contract Documents shall have the meanings designated in the Contract
Documents.
9.5 Examination of Documents. The Contractor affirms, by signature
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to this Contract, that he has carefully examined all Contract Documents, and
further agrees that he will not plead unfamiliarity with any of the Contract
Documents in connection with any dispute which may arise under the Contract
Documents.
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9.6 Construction Loan. The parties acknowledge that the Owner has or
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will obtain financing for the construction of the Project from a third-party
lender ("Lender"). The Contractor agrees that it will cooperate with the Owner
and Lender for the purpose of facilitating the Owner's financing of the Project,
and shall execute any and all documents, notices, agreements, or forms which are
required under the Contract Documents or the Owner or Lender may reasonably
require in order for the Owner to obtain financing for the Project.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as a Contract under seal, as
of the date set forth on the first page hereof.
OWNER:
XXXXX REIT, LLC - VA I, a Georgia limited
liability company
By: XXXXX OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership,
its sole member
By: Xxxxx Real Estate Investment
Trust, Inc., a Maryland
corporation, general partner
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx III
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Title: President
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CONTRACTOR:
BOVIS CONSTRUCTION CORP.,
a Florida corporation
By: /s/ Xxxxxxx X. Smile
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Name: Xxxxxxx X. Smile
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Title: Vice President
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EXHIBIT "B"
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GENERAL CONDITIONS
OF THE
CONSTRUCTION CONTRACT
GENERAL CONDITIONS OF THE
CONSTRUCTION CONTRACT
ARTICLE 1.
THE CONTRACT DOCUMENTS
1.1 DEFINITIONS
1.1.1 The Contract Documents consist of the Owner-Contractor Agreement, the
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Conditions of the Contract (General, Supplementary and Other Conditions),
the Drawings, the Specifications, and all Addenda issued prior to and all
Modifications which have been approved in writing by the Owner and issued
after execution of the Contract. A Modification is (1) a written
amendment to the Owner-Contractor Agreement signed by both parties, (2) a
Change Order, (3) a written interpretation issued by the Architect
pursuant to Subparagraph 2.2.7, or (4) a written order for a minor change
in the Work issued by the Architect pursuant to Subparagraph 12.3. The
Contract Documents do not include bidding or proposal documents such as
the advertisement or invitation for bid or proposal, instructions to
bidders, sample forms, the Contractor's bid or proposals or portions of
Addenda relating to any of these, or any other documents, unless
specifically enumerated in the Owner-Contractor Agreement.
1.1.2 The Contract Documents form the Contract for Construction, which
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represents the entire and integrated agreement between the parties hereto
and supersedes all prior negotiations, representations, or agreements,
either written or oral. The Contract may be amended or modified only by a
Modification as defined in Subparagraph 1.1.1. The Contract Documents
shall not be construed to create any contractual relationship between the
Owner or the Architect and any Subcontractor or Sub-subcontractor,
supplier, or vendor of the Contractor.
1.1.3 The Work comprises the completed construction required by the Contract
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Documents and includes all labor necessary to produce such construction,
all materials, fabrications, assemblies, and equipment incorporated or to
be incorporated in such construction, and all materials, equipment,
tools, construction means, utilities, facilities, transportation,
appliances, supervision and services necessary to achieve total
completion of the Project, including such materials and equipment which
may be consumed or used but not actually incorporated in such
construction.
1.1.4 The Project is the total construction of which the Work performed under
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the Contract Documents may be the whole or a part.
1.1.5 The Site is the real property upon which the Project is situated.
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1.2 EXECUTION, CORRELATION AND INTENT
1.2.1 The Contract Documents shall be signed in not less than triplicate by the
Owner and Contractor. If either the Owner or the Contractor or both do
not sign the Conditions of the Contract, Drawings, Specifications, or any
of the other Contract Documents, the Architect, with approval of the
Owner, shall identify such Documents.
1.2.2 By executing the Owner-Contractor Agreement, the Contractor represents
and acknowledges that:
(a) He has carefully reviewed the Contract Documents for errors,
discrepancies, ambiguities and omissions;
(b) He has visited the site and familiarized himself with its physical
conditions and the local conditions under which the Work is to be
performed; and
(c) He has reviewed carefully all surveys, records and data regarding
the site and its physical conditions as have been made available by
Owner or Architect or were otherwise reasonably accessible and
available to him; and
(d) He has correlated his observations with the requirements of the
Contract Documents.
1.2.3 The intent of the Contract Documents is to include all items necessary
for the proper execution and completion of the Work. The Contract
Documents are complementary, and what is required by any one shall be
binding as if required by all. The Contractor shall be obligated to
perform Work required by any Contract Document as fully as though
required by all of them. Words and abbreviations which have well know
technical or trade meanings are used in the Contract Documents in
accordance with such recognized meanings. Without limiting the duty of
the Contractor regarding review of the Contract Documents, in the event
of a conflict or discrepancy among the various Contract Documents, the
Document shall be given precedence in the following order (in descending
order or precedence):
Provisions of the Owner-Contractor Agreement
Modifications
Change Orders
Addenda
Special Conditions
Supplementary Conditions
General Conditions
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Specifications
Drawings - (large scale Drawings over small-scale)
(figures over scaled measurements)
(schedules over other information on Drawings)
1.2.4 The organization of the Specifications into divisions, sections and
articles, and the arrangement of Drawings shall not control the
Contractor in dividing the Work among subcontractors or in establishing
the extent of the Work to be performed by any trade.
1.2.5 If any errors, discrepancies, ambiguities or omissions are found at any
time in the Contract Documents, the Contractor shall notify the Owner and
Architect in writing before beginning the Work involved. The Architect,
with Owner's approval, will make corrections, interpretations or
clarifications promptly, basing his decisions on what is reasonably
inferable from and consistent with the intent of the Contract Documents.
1.2.6 All pertaining statutes, ordinances, laws, rules, codes, regulations,
standards, and lawful orders of public authorities having jurisdiction of
the Work of this Contract are hereby incorporated (in their form as
effective on the date of execution of the Owner-Contractor Agreement)
into the Contract Documents as if repeated in full herein and are
intended wherever reference is made in either the singular or plural to
Code or Building Code, except as otherwise specified. Contractor shall be
responsible for such Code compliance with regard to his Work on the
Project.
1.2.7 Cross references and citations of Sections and Subsections in this
Document are for the convenience of the Contractor, the Owner, and the
Architect, and are not intended to be plenary or exhaustive nor are they
intended to be considered in interpreting the Contract or any other part
of the Contract Documents.
1.3 OWNERSHIP AND USE OF DOCUMENTS
1.3.1 All Drawings, Specifications and revisions thereto and copies thereof are
and shall remain the property of Owner and shall be returned to Owner
upon completion of the Project.
ARTICLE 2.
THE ARCHITECT
2.1 DEFINITION
2.1.1 The Architect is the person lawfully licensed to practice architecture,
or an entity lawfully practicing architecture, identified as such in the
Owner-Contractor Agreement, and is referred to throughout the Contract
Documents as if singular in number and masculine in gender. The term
Architect means the Architect or his authorized representative.
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2.2 ADMINISTRATION OF THE CONTRACT
2.2.1 The Architect will provide administration of the Contract as hereinafter
described.
2.2.2 The Architect will be the Owner's representative during construction and
until final payment is made. The Owner's instructions to the Contractor
shall be provided to the Contractor in writing either directly, with copy
to Architect, or through the Architect. The Architect will have authority
to act on behalf of the Owner only to the extent provided in the Contract
Documents.
2.2.3 The Architect will visit the site at intervals appropriate to the stage
of construction and as required by the Owner to familiarize himself
generally with the progress and quality of the Work to determine in
general if the Work is proceeding in accordance with the Contract
Documents. On the basis of his on-site observations as an Architect, he
will keep the Owner informed of the progress of the Work, and will
endeavor to guard the Owner against defects and deficiencies in the Work
of the Contractor.
2.2.4 The Architect will not be responsible for and will not have control or
charge of construction means, methods, techniques, sequences or
procedures, or for safety precautions and programs in connection with the
Work. The Architect will not be responsible for or have control or charge
over the acts or omissions of the Contractor, Subcontractors, or any of
their agents or employees, or any other persons performing any of the
Work. The failure of the Architect to discover or to call to Owner's
attention any defects and deficiencies in the Work of the Contractor
shall not excuse or otherwise relieve Contractor of its obligations to
Owner under the Owner-Contractor Agreement.
2.2.5 The Architect and the Owner shall at all times have access to the Work
wherever it is in preparation and progress. The Contractor shall provide
facilities for such access so the Architect may perform his functions
under the Contract Documents and the Owner may observe such.
2.2.6 The Architect will be the interpreter of the requirements of the Contract
Documents and of the performance thereunder by the Contractor.
2.2.7 Subject to Subparagraph 2.2.9, the Architect will render interpretations
necessary for the proper execution of progress of the Work, with
reasonable promptness and in accordance with any time limit agreed upon.
2.2.8 Claims, disputes and other matters in question between the Contractor and
the Owner relating to the execution or progress of the Work or the
interpretation of the Contract Documents shall be referred initially to
the Architect for decisions, which he will render in writing to Owner and
Contractor within a reasonable time.
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2.2.9 All interpretations and decisions of the Architect shall be consistent
with the intent of and reasonably inferable from the Contract Documents
and will be in writing or in the form of drawings.
2.2.10 Both the Owner, with Architect's concurrence, and the Architect
independently will have authority to reject Work which does not conform
to the Contract Documents. Whenever, in Architect's opinion, he considers
it necessary or advisable for the implementation of the intent of the
Contract Documents, he will have authority to require special inspection
or testing of the Work in accordance with Subparagraph 4.18.2 whether or
not such Work be then fabricated, installed or completed. However,
neither the Architect's nor Owner's authority to act under this
Subparagraph 2.2.10 nor any decision made by them in good faith either to
exercise or not to exercise such authority, shall give rise to any
liability, duty or responsibility of the Architect or Owner to the
Contractor, any Subcontractor, any of their agents or employees, or any
other person performing any of the Work, except as provided in
Subparagraph 4.18.2.
2.2.11 The Architect will review and approve or take other appropriate action
upon Contractor's submittals such as Shop Drawings, Product Data and
Samples, but only for conformance with the design concept of the Work,
and with the information given in the Contract Documents and applicable
laws, rules and regulations. Such actions shall be taken with reasonable
promptness so as to cause no delay in the Work.
2.2.12 The Architect will prepare Change Orders in accordance with Article 12,
and will have authority to order minor changes in the Work as provided in
Subparagraph 12.3.
2.2.13 Based upon observations at the site and upon an evaluation of the
Contractor's Application(s) for Payment, in consultation with the Owner,
the Architect shall determine the amount owing to the Contractor,
pursuant to the terms of the Owner-Contractor Agreement. The Architect
shall issue Certificate(s) for Payment to the Owner in such amounts.
2.2.14 The Architect will conduct inspections to determine the Date of
Substantial Completion and the date of Final Completion and issue such
Certificates regarding completion in accordance with Subparagraphs 9.1.4
and 9.4.4 and will receive and review written warranties and related
documents required by the Contract Documents and assembled by the
Contractor, and will issue a final Certificate for Payment upon
compliance by Contractor with the requirements of the Contract Documents.
2.2.15 The duties, responsibilities and limitations of authority of the
Architect as the Owner's representative during construction as set forth
in the Contract Documents will not be modified or extended without the
written consent of the Owner and the Architect.
2.2.16 In case of the termination of the employment of the Architect, the Owner
may appoint another Architect in which event he shall become the
Architect under the Contract Documents.
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ARTICLE 3.
THE OWNER
3.1 DEFINITION
3.1.1 The Owner is the person or entity identified as such in the Owner-
Contractor Agreement and is referred to throughout the Contract Documents
as if singular in number and masculine in gender. The term Owner means
the Owner or his authorized representative.
3.2 OWNER'S RESPONSIBILITIES
3.2.1 The Owner shall furnish or provide reasonable access to all surveys in
its possession describing the physical characteristics and utility
locations for the Site, subject, however, to the provisions of
Subparagraph 4.19. Such survey(s) shall establish the property lines and
permanent bench marks. The Owner shall provide the Contractor with a
legal description of the Site including any known legal limitations or
restrictions.
3.2.2 Except as provided expressly in the Owner-Contractor Agreement, the Owner
shall secure and pay for necessary permits, approvals, assessments and
charges required for the actual use or occupancy of permanent structures
or permanent changes in existing structures.
3.2.3 Information or services under the Owner's control shall be furnished by
the Owner upon Contractor's request with reasonable promptness to avoid
delay in the orderly progress of the Work.
3.2.4 The Contractor will be furnished free of charge three (3) sets of
Contract Documents. Any revised Drawings, Specifications or other
Contract Documents issued after execution of the Agreement shall be
furnished as necessary for proper performance of the Work. All other sets
requested by the Contractor shall be at Contractor's expense.
3.2.5 The foregoing are in addition to the other duties and responsibilities of
the Owner enumerated herein.
3.2.6 The Owner, its consultants and the Architect shall all times have access
to the Work whenever it is in preparation or progress. The Contractor
shall provide safe facilities for such access.
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3.3 OWNER'S REPRESENTATIVES
3.3.1 The Owner may provide, on a full-time or part-time basis, such
construction consultants as it shall deem necessary or appropriate to
preserve and protect its interests. Upon receipt of written notice from
Owner designating such consultant(s), Contractor shall afford them all
rights of access and inspection as are permitted to the Owner and to its
Architect. However, no action or inaction on the part of any such
consultants shall be deemed an acceptance by the Owner of any defective
Work or of any work which does not strictly conform to the Contract
Documents unless specifically approved by Owner in writing.
3.3.2 Owner shall provide a representative authorized to act for it under the
Contract Documents. Such representative shall be expressly stipulated (as
the designated "Owner's Representative") in the Owner-Contractor
Agreement or by subsequent written designation by Owner.
3.3.3 No observation of the Owner, its consultants or its Architect and no
inspections, tests or approvals by them shall relieve the Contractor from
obligation to perform the Work in strict conformity with the Contract
Documents unless specifically approved by Owner in writing.
ARTICLE 4.
THE CONTRACTOR
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4.1 DEFINITION
4.1.1 The Contractor is the person or entity identified as such in the Owner-
Contractor Agreement Documents and is referred to throughout the Contract
Documents as if singular in number and masculine in gender. The term
Contractor means the Contractor or his authorized representative.
4.2 STANDARD OF PERFORMANCE
4.2.1 The Contractor recognizes the relationship of trust and confidence
established between him and the Owner by this Agreement and covenants
with the Owner to furnish the highest and best skill, attention, judgment
and cooperation in performance of the Work as measured against the
prevailing industry standards of construction contractors on comparable
projects. The Contractor agrees to cooperate fully with the Owner's
representatives and consultants and with the Architect, to provide a high
and efficient level of business administration, management, coordination
and superintendance of the Work.
4.3 REVIEW AND IMPLEMENTATION OF CONTRACT DOCUMENTS
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4.3.1 Before submitting his bid or proposal to the Owner, and continuously
after the execution of the Contract, the Contractor shall carefully study
and compare the Contract Documents and shall at once report to the
Architect and the Owner any error, ambiguity, inconsistency or omission
that may be discovered, including any requirement which may be contrary
to any law, ordinance, rule, regulation, or order of any public agency or
authority, enacted as of the date of the Owner-Contractor Agreement,
bearing on the performance of the Work including any building codes and
drainage and sanitary requirements. By submitting his proposal or bid for
the Contract and the Work under it, the Contractor agrees that the
Contract Documents appear accurate, consistent, and complete insofar as
can be then reasonably determined. Contractor agrees that the Contract
Sum includes the cost of all materials, equipment and labor and
everything else which will be required to comply with such ordinances,
requirements, laws, rules and regulations enacted as of the date of the
Agreement.
4.3.2 The Contractor shall not proceed with any portion of the Work affected by
any error, ambiguity, inconsistency or omission upon its discovery until
further direction or instruction by the Architect. If the Contractor has
promptly upon discovery reported in writing any error, ambiguity,
inconsistency or omission, and has promptly stopped the affected Work
until instructed and otherwise followed the instructions of the Owner or
Architect, the Contractor shall not be liable to the Owner for any damage
or delay resulting from any such errors, ambiguities, inconsistencies or
omissions in the Contract Documents.
4.3.3 However, no allowance for additional compensation or extension of time
for completion shall be permitted by the Contractor based on claims of
defects, errors, omissions, ambiguities or inconsistencies in the
Contract Documents to the extent that they were discoverable upon
exercise of reasonable diligence by the Contractor and such discovery
(and prompt notice) would have avoided or reduced their impact on the
Work.
4.3.4 The Contractor shall perform no portion of the Work at any time without
Contract Documents authorizing and describing such portion of the Work
or, where required, approved Shop Drawings, Product Data or Samples for
such portion of the Work.
4.4 SUPERVISION AND CONSTRUCTION PROCEDURES
4.4.1 The Contractor shall supervise and direct the Work, using his best skill,
attention and judgment. He shall be solely responsible for all
construction means, methods, techniques, sequences and procedures and for
coordinating all portions of the Work under the Contract. All Work
performed hereunder shall be in a skillful and workmanlike manner.
4.4.2 The Contractor shall at all times during regular work days maintain an
adequate management and supervisory staff of competent persons, and an
adequate and competent supply of workmen and material necessary to carry
out the Work and agrees further to
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complete the Work in an expeditious and efficient manner consistent with
the best interest of the Owner.
4.4.3 The Contractor shall not be relieved of his obligations to perform the
Work in accordance with the Contract Documents either by the activities
or duties of the Owner, his consultants, or the Architect in his
administration of the Contract, or by inspections, tests or approvals
required or performed by persons other than the Contractor.
4.4.4 The Contractor's Project Superintendent and necessary assistants and
staff shall devote full-time attention to this Project and shall maintain
an office on the Property. Such personnel shall direct, coordinate and
supervise all work under this Agreement and shall inspect all materials
delivered to the Project.
4.4.5 The Contractor's Project Manager and Project Superintendent shall be
designated to Owner in writing prior to commencement of Work. Contractor
shall not change such designations thereafter without prior written
notice to Owner and Owner's consent, unless the designated person ceases
to be employed by Contractor. The Owner may, by written notice to
Contractor, object to any person or persons designated by Contractor,
originally or subsequently, as Project Manager or Superintendent, whom
Owner deems objectionable within its reasonable discretion. Upon such
notice of objection, Contractor shall promptly submit an alternative
designation reasonably acceptable to the Owner.
4.5 LABOR AND MATERIALS
4.5.1 Unless otherwise provided in the Contract Documents, the Contractor shall
provide and pay for all labor, materials, fabrications, assemblies,
equipment, tools, construction equipment and machinery, water, heat,
utilities, transportation, and all other facilities and services
necessary for the proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be
incorporated in the Work.
4.5.2 The Contractor shall at all times enforce strict discipline and good
order among his employees and subcontractor shall require his
subcontractors to do the same.
4.5.3 All Work shall be executed in neat, skillful, workmanlike manner in
accordance with best recognized trade practices. Only competent and
skilled workmen who satisfactorily perform their duties shall be employed
on the Work. When requested by Owner, Contractor shall discharge and
shall not reemploy on the Work any person who is deemed by Owner as
unfit, unskilled, disorderly, dangerous, insubordinate, incompetent, or
otherwise objectionable.
4.5.4 Contractor shall timely place orders for sufficient quantities of
material (including equipment, fabrications and assemblies) from
reputable suppliers and strictly in accordance and subject to
requirements of the Contract Documents. Contractor shall provide Owner
promptly with complete copies of all such orders.
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4.5.5 No substitutions or variations from the Contract Documents shall be
permitted in the Work itself or any materials (including equipment,
fabrications or assemblies) comprising it, without the express prior
written authorization of such substitution or variation by Architect or
Owner.
4.5.6 Contractor will acknowledge receipt of materials and equipment purchased
for Owner for installation under the Contract Documents and will provide
storage and protection for such materials and equipment.
4.5.7 Upon delivery of all materials (including fabrications, assemblies and
equipment), Contractor shall ascertain whether or not they comply with
contract requirements and shall reject all nonconforming materials and
have all nonconforming materials removed immediately from the project
site. All materials delivered to the job site shall be so stored and
handled as to preclude inclusion of any foreign substances or any
discoloration or adulteration thereof and to prevent any damage thereto
which might reduce its effectiveness as part of the Work.
4.5.8 Unless otherwise specifically indicated, where trade or brand names
appear in the Specifications they are used to indicate standards of
quality. However, this is intended to be an open specification (except as
otherwise designated), accessible to any reputable manufacturer whose
product is deemed by the Architect as equal to that named or described
and meets the quality, performance and other requirements of Contract
Documents. The Owner, however, shall have the right to approve products
submitted as being equal to those specified and his decision shall be
final and conclusive.
4.5.9 Should the Contractor desire to substitute another item of material or
equipment for one specified, he shall make such request for substitution
in writing to Architect, stating any credit or extra involved and shall
provide all required supporting data and samples to justify his request.
However, such substitution shall not be made without express written
authorization by Architect, based upon his determination that the item
proposed is equal to the one specified. Further, even if so authorized,
the Contractor shall be responsible for its correct function and
operation and its accommodation into spaces allotted. In the event of a
misfit, or change in Work being required in work of any or all trades, on
account of acceptance of a substitution offered by the Contractor, the
Contractor alone shall bear the costs for extra work to make changes
arising as a result of the use of the substitute, including the cost of
such architectural or engineering analysis and drawing changes as may be
required.
4.5.10 Whenever required in the opinion of the Owner or the Architect or
required by the Specifications for the proper determination of the
qualities of the materials to be furnished under the Contract Documents,
or to be used in the Work, the Contractor shall furnish test specimens or
samples of same, the costs of which shall be paid as provided in
Paragraph 4.18 of the General Conditions.
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4.6 WARRANTY
4.6.1 The Contractor warrants to the Owner and the Architect that all materials
and equipment furnished under this Contract will be new unless otherwise
specified, and that all Work (including all materials and equipment) will
be of the specified quality, free from faults and defects and in
conformance with the Contract Documents. All Work not conforming to these
requirements, including substitutions not properly approved and
authorized, may be considered defective. If required by the Architect,
the Contractor shall furnish satisfactory evidence as to the kind and
quality of materials and equipment. This warranty is not limited by any
other provision of the Contract Documents. The Warranties set forth in
this paragraph and elsewhere in the Contract Documents shall survive
final acceptance of the Work.
4.6.2 Without limiting the responsibility or liability of the Contractor under
the Contract, all warranties and attendant rights given by manufacturers
on materials or equipment incorporated in the Work are hereby assigned by
the Contractor to the Owner. If requested, the Contractor shall execute
formal assignments of said manufacturers' warranties to the Owner. The
Contractor shall not obtain any materials or equipment under warranties
which do not run directly to the benefit of the Owner and all such
warranties shall be directly enforceable by the Owner.
4.6.3 The foregoing warranties, and those contained elsewhere in the Contract
Documents or implied by law shall be deemed cumulative and not
alternative or exclusive. No one or more of them shall be deemed to alter
or limit any other or any other remedy or right under the Contract
Documents or the law.
4.7 TAXES
4.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall
pay all sales, retail, occupational, service, excise, old age benefit and
unemployment compensation taxes, consumer, use and other similar taxes as
well as any other taxes or duties on the material, equipment and labor
for the Work or portions thereof provided by the Contractor which are
legally enacted by any municipal, county, federal or state authorities or
department or agency thereof at the time of execution of the Owner-
Contractor Agreement, whether or not yet effective.
4.7.2 All records maintained by the Contractor pertaining to such taxes and
levies and payment thereof shall be made available to the Owner at
reasonable times for inspection, audit and copying.
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4.8 PERMITS, FEES AND NOTICES
4.8.1 Except as provided in Subparagraph 3.2.2, the Contractor shall secure and
pay for building permits, and all other permits, approvals, assessments,
charges, governmental fees and licenses necessary for the construction
and proper execution and the completion of the Work, which are legally
required as of the date of the Owner-Contractor Agreement.
4.8.2 The Contractor shall give all notices and comply with all applicable
laws, ordinances, building codes, rules, regulations and lawful orders of
any public authority bearing on the performance of the Work. If the
Contractor observes that any of the Contract Documents are at variance
therewith in any respect, he shall promptly notify the Architect and the
Owner in writing of such non-compliance.
4.8.3 If the Contractor performs any Work knowing it to be contrary to such
laws, ordinances, rules or regulations, and without such notice to the
Architect and Owner, he shall assume full responsibility therefor and
shall bear all costs attributable thereto.
4.9 DOCUMENTS AND SAMPLES AT THE SITE
4.9.1 The Contractor shall maintain at the site for the Owner and Architect one
copy of all Drawings, Specifications, Addenda, approved Shop Drawings,
Product Data and Samples, Change Orders and other Modifications in good
order. These shall be available to the Owner and Architect.
4.9.2 In addition to the foregoing, Contractor shall maintain at the Project
site records of all contracts and documents which arise out of the
Contract Documents or the construction of the Project, including, without
limitation, the following: subcontracts; materials and equipment orders;
governmental, commercial and technical standards and specifications;
routine Project correspondence; job meeting minutes, memoranda and notes;
and any other related documents and revisions thereto. During progress of
the Work and prior to final payment, Contractor shall deliver to Owner
duplicates of any such documents that may be requested by Owner or as may
be required by the technical trade specifications or other Contract
Documents.
4.9.3 Contractor shall maintain at the Project site a current marked set of
working drawing prints and specifications showing as built conditions,
configurations and locations, in order to facilitate the preparation of
as-built drawings.
4.9.4 Contractor shall maintain cost accounting records with respect to the
Cost of the Work on a cash basis in accordance with generally accepted
accounting principles.
4.9.5 From time to time and at any time after the execution of the Agreement
and after five (5) days' advance written notice to Contractor, Owner
shall have access to and the right to examine and audit any pertinent
books, documents, papers and records of Contractor
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involving transactions related to the Contract Documents. At the end of
the Project construction, Contractor, if requested by Owner, shall turn
over such records, or copies thereof, to the custody of Owner, and Owner
may preserve such records for such further period of time as Owner may
elect.
4.10 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
4.10.1 Shop Drawings are drawings, diagrams, schedules and other data specially
prepared for the Work by the Contractor or any subcontractor,
manufacturer, supplier or distributor to illustrate some portion or the
Work.
4.10.2 Product Data are illustrations, standard schedules, performance charges,
instructions, brochures, diagrams and other information furnished by the
Contractor to illustrate a material, product or system for some portion
of the Work.
4.10.3 Samples are physical examples in the size, shape, finish and quantity
required by the specifications which illustrate materials, equipment or
workmanship and establish standards by which the Work will be judged.
Samples furnished under this Subparagraph are not to be confused with
full size on-the-site "Mock-Ups" called for in some specification
sections. At the option of Owner or Architect, Samples will be subject to
testing, and in such event such additional Samples as may be necessary
shall be supplied by Contractor at no additional cost.
4.10.4 The Contractor shall prepare, review, approve and submit with reasonable
promptness and in such orderly sequence and time as to cause no delay in
the Work or in the work of the Owner or any separate contractor, all Shop
Drawings, Product Data and Samples required by the Contract Documents.
4.10.5 The following provisions shall be applicable to the preparation and
submission of Shop Drawings and Product Data (as applicable):
(a) Shop Drawings shall be prepared in accordance with the following
minimum requirements:
(i) Sheets shall be numbered consecutively.
(ii) Shop Drawings shall indicate all working and erection
dimensions.
(iii) Shop Drawings shall show arrangements and sectional views.
(iv) Shop Drawings shall indicate anchoring and fastening details,
including information for making connections to other work. Contractor
shall furnish installation instructions to be followed in the field to
achieve manufacturer's designed and planned intentions.
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(b) The form of Shop Drawings shall be as follows:
(i) Up to 8-1/2" x 14" in size may be either prints on opaque
paper, or reproducible sepia transparency.
(ii) Submissions larger than above shall be reproducible sepia
transparency.
(c) The following number of copies shall be submitted:
(i) Opaque submissions shall be in duplicate.
(ii) Sepia transparency submissions shall include one reproducible
and two prints.
4.10.6 Contractor shall be responsible for the following review and submittal
procedures:
(a) Contractor shall review, approve and stamp with its approval before
submission all Samples, Shop Drawings and Product Data specified by the
Contract Documents or subsequently by Architect as covered by
Modifications. Shop Drawings, Product Data and Samples shall be submitted
only by Contractor. By approving and submitting Shop Drawings and
Samples, Contractor thereby represents that it has determined and
verified all field measurements, field construction criteria, materials,
catalog numbers and similar data and that it has checked and coordinated
each Shop Drawing, Product Data and Sample with the requirements of the
Contract Documents. At the time of submission Contractor shall inform
Architect in writing of any deviations in the Shop Drawings, Product Data
or Samples from the requirements of the Contract Documents.
(b) Contractor shall be responsible for the following verifications for
all items furnished to work with existing job conditions:
(i) Dimensions shall be checked against field measurements.
(ii) Items specified to have mechanical utilities shall be
coordinated with services as to location and character.
(iii) Items specified to have electric service shall be coordinated
with services as to volts, phase, hurtz, feeders and ampere protection at
panel.
(c) Contractor shall date each Sample, Product Data and Shop Drawing
submittal and indicate the name of the Project, description or name of
equipment, material, and product and identify by specification section
where it is specified, and indicate location where it is to be used in
the Work.
(d) Contractor shall accompany each Sample, Product Data and Shop Drawing
submitted to Architect with a transmittal letter, in duplicate with a
copy being mailed to
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Owner containing project name, Contractor's name, number of samples, data
or drawings, titles and other pertinent data. The transmittal letter
shall outline deviations, if any, in Samples, Product Data or Shop
Drawings from requirements of Contract Documents.
(e) Submissions made without Contractor's approval indicated thereon will
be returned for compliance with this requirements before being reviewed
by Architect.
(f) Contractor is responsible for obtaining and distributing drawings
after as well as before final approval to all subcontractors who are
concerned with coordination of the Work.
4.10.7 No portion of the Work requiring submission of a Shop Drawing, Project
Data or Sample shall be commenced until the submittal has been approved
by the Architect. All such portions of the Work shall be in accordance
with submittals approved by the Architect. Owner shall not be responsible
for the cost of any purchases which are not in accord with Shop Drawings
approved by the Architect.
4.10.8 The following provisions shall be applicable to Architect's review of
Samples, Product Data and Shop Drawings:
(a) Architect's acceptance is only for conformance with the design
concept of the Project and with information in Contract Documents.
Approval of a separate item does not constitute approval of an assembly
in which the item functions.
(b) Review of Shop Drawings, Product Data and Samples by Architect shall
not relieve Contractor of responsibility for deviations and/or omissions
from the Contract Documents, unless Contractor has in writing called
attention to such deviations and/or omissions at the time of submission
of the Shop Drawings, Data and Samples, nor shall it relieve Contractor
of the responsibility for errors and/or omissions of any kind in Shop
Drawings, Data and Samples, unless such deviations, changes and/or
omissions are duly reviewed as such and noted by specific reference on
the Shop Drawing, Data or the Sample. When Contractor does call such
deviations and/or omissions to the attention of Architect, Contractor
shall state in its letter whether or not such deviations, changes and/or
omissions involve any change in cost. If no such change is mentioned, it
shall be assumed that no change in cost is involved for making the
change, deviation and/or omission. Letters fully describing any
deviation, change and/or omission, together with the reasons therefor and
the statement of the amount of cost change, shall be submitted in
duplicate by Contractor to Owner and Architect together with the affected
drawings and specifications.
(c) Where only one Sample is called for, approval will be by letter only;
where two or more Samples are called for, one Sample will be returned
with Architect's approval stamp and signature or initials.
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(d) One set of approved Shop Drawings and Product Data will be returned,
including an opaque print or a sepia, when a sepia is submitted, with
Architect's approval stamp and signature or initials.
(e) Samples not complying with Contract Documents will be returned noted
"Not Approved", with a general description of corrections and changes
required noted thereon or in the transmittal. One set of Product Data or
Shop Drawings not complying with the Contract Documents, including a set
of opaque print or marked up sepias when sepias are submitted, will be
returned noted "Not Approved" and with a general description of
corrections and changes required indicated thereon.
(f) Contractor shall make corrections and changes in unapproved Samples,
Product Data and Shop Drawings and shall resubmit such Samples, Product
Data and Shop Drawings in the same manner as specified above, until
Architect's approval is obtained. In the transmittal letter accompanying
Samples, Product Data and Shop Drawings being resubmitted, Contractor
shall direct specific attention to revisions, if any, other than
corrections requested by Architect on previous resubmissions. Any such
resubmittal processes, however, necessitated by deficient prior
submittals requiring correction shall not be justification for extension
of the Contract Time or increase in the Contract Sum.
4.11 USE OF SITE
4.11.1 The Contractor shall confine operations at the site to areas permitted by
law, ordinances, permits and the Contract Documents. The Contractor shall
not unreasonably encumber the site with any materials or equipment, and
shall maintain the site in a neat, orderly manner. Contractor, all
Subcontractors and suppliers and anyone directly or indirectly employed
by or associated with any of them, shall confine their ingress and egress
to the Project site to areas approved in advance by Owner and shall not
use or permit any such persons to use any other ingress or egress to or
from the Project site. Contractor shall assume full responsibility for
any damage to any such land or area, or to the Owner or occupant thereof
or of any land or areas contiguous thereto, resulting from the
performance of the Work.
4.11.2 Contractor shall take measures to control the blowing or spreading of
dust, smoke, dirt, mud and refuse from its Work to avoid nuisance and
inconvenience to others whether on or off the site. These measures shall
be in compliance with, without being limited to, all applicable laws, and
shall be subject to the Architect approval. Contractor shall furnish all
necessary labor and materials such as water, approved chemicals and
equipment.
4.11.3 Contractor shall be responsible for the removal or drainage of all water
interfering with the proper prosecution of his Work. It shall at all
times assure such drainage shall not be a nuisance or inconvenience to
Owner, other separate contractors or their work, or the occupants or
users of any other public or private area on or off the site. This
paragraph supplements, and does not supersede, any drainage or dewatering
called for elsewhere in the Contract Documents.
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4.11.4 Contractor agrees (a) to perform its Work on the Project (and to have the
Subcontractors and other parties so perform their work) so as not to
interfere with or disrupt the business operations of Owner and (b) upon
the request of Owner to immediately take all steps necessary to permit
Owner's business operations to continue without interference or
disruption.
4.12 CUTTING AND PATCHING WORK
4.12.1 The Contractor shall be responsible for all cutting, fitting or patching
that may be required to complete the Work or to make its several parts
fit together properly.
4.12.2 The Contractor shall not damage or endanger any portion of the Work or
the work of the Owner or any separate contractors by cutting, patching or
otherwise altering any work, or by excavation. The Contractor shall not
cut or otherwise alter the work of the Owner or any separate contractor
except with the written consent of the Owner and of such separate
contractor.
4.12.3 Patching of all finishes shall match any existing work to meet
Architect's approval.
4.13 CLEANING UP
4.13.1 The Contractor at all times shall keep the Project and site free from
accumulation of waste materials or rubbish caused by his operations. As
the Work is performed, he shall remove all his waste materials and
rubbish from and about the Project and the Property, and at the
completion of the Work he shall remove, as well, all of his tools,
construction equipment, machinery and surplus materials, the title to
which has not been vested in Owner pursuant to the Contract Documents. He
shall replace any broken glass, remove stains, spots, marks and dirt from
painted decorated work, clean hardware, remove paint spots and smears
from all surfaces, clean fixtures and wash all concrete masonry and tile
and clean all glass.
4.13.2 If the Contractor fails to satisfy the obligations set forth in
Subparagraph 4.13.1, the Owner may do so and the cost thereof shall be
charged to the Contractor.
4.14 COMMUNICATIONS
4.14.1 The Contractor shall forward all communications directly to the
Architect, with a copy to the Owner, unless otherwise specifically
directed in writing by the Owner.
4.15 ROYALTIES AND PATENTS
4.15.1 The Contractor shall pay all royalties and license fees. He shall defend
all suits or claims for infringement of any patent rights and shall save
the Owner harmless from loss on account thereof. However, the Owner shall
be responsible for all such loss when a
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particular design, process, or the product of a particular manufacturer
or manufacturers is specified; provided, that if the Contractor knew or
reasonably should have known, that the design, process, or product
specification is an infringement of a patent, he shall promptly notify
the Owner and Architect in writing of such knowledge, otherwise he shall
be responsible for such loss as may result from his failure to give
prompt notice.
4.16 INDEMNIFICATION
4.16.1 In consideration of the execution of the Owner-Contractor Agreement, and
receipt acknowledged by Contractor of Ten and No/100 ($10.00) Dollars and
other good and valuable consideration from Owner to Contractor as payment
for the promises given in this Paragraph, the Contractor, to the fullest
extent permitted by law, shall indemnify and hold harmless the Owner,
their agents, employees, successors, and assigns from and against all
liability, claims, damages, losses, expenses and costs of any kind or
description (including, but not limited to, court costs and attorney's
fees and other related costs and expenses, losses and damages, and any
claim, damage, loss or expense attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible property,
including the loss of use resulting (therefrom) arising out of or in
connection with the performance of the Work (including failure to comply
with terms of the Contract Documents or other breach or default) provided
that such liability, claim, damage, loss or expense is caused in whole or
in part by any act or omission of the Contractor, any subcontractor or
materialman, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable. Such obligation shall
not be construed to negate, abridge, or otherwise reduce any other right
or obligation of indemnity which would otherwise exist as to any party or
person described in this Paragraph.
4.16.2 Contractor agrees that if any law or equity action is brought against
Owner and/or their agents or employees because of any of the foregoing
matters, whether or not any other party defendant shall be joined in the
action, Contractor shall, at its own expense, settle or defend such
action, paying all costs, expenses and attorneys' fees incurred and
paying any judgment that may be rendered therein against either Owner, or
their agents and employees or any or all of the foregoing parties, and,
except to the extent that any damage or expense is incurred as the result
of the act or omission which is the negligence of Owner or Architect, as
the case may be, neither Owner nor Architect shall be required to make
any contribution whatsoever to the payment of any such judgment or
settlement.
4.16.3 In any and all claims against the Owner or the Architect or any of their
agents or employees by any employee of the Contractor, any subcontractor,
anyone directly or indirectly employed by any of them or anyone for whose
acts any of them may be liable, the indemnification obligation under this
Paragraph shall not be limited in any way by any limitation on the amount
or type of damages, compensation or benefits payable by or for the
Contractor or any Subcontractor under Worker's or Workmen's Compensation
Act, disability benefit acts or other employee benefit acts.
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4.16.4 As an additional and independent covenant of the Contract Documents,
Contractor shall procure, as additional protection to Owner, an
independent indemnification and hold harmless agreement from each
Subcontractor, providing for the protection set forth in Paragraphs
4.16.1 and 4.16.2.
4.17 LAYOUT
4.17.1 Contractor shall be responsible for the accuracy of the Project lines and
levels. Contractor shall compare carefully the levels shown on the
drawings with existing levels and shall call Architect's and Owner's
attention to any discrepancies before proceeding with the Work. The Work
shall be erected square, plumb, level, true and line and grade, in the
exact plane and to the correct elevation and/or sloped to drain as
indicated and/or as necessary to drain.
4.17.2 The Contractor shall maintain in his employ a competent, qualified and
experienced engineer to perform layout work. Unless otherwise expressly
agreed in writing or stated in the Contract Documents, a registered civil
engineer shall be engaged by Contractor to establish several initial base
lines for the Project for control and reference.
4.18 TESTS
4.18.1 If the Contract Documents, laws, ordinances, rules, regulations or orders
of any public agency or authority having jurisdiction require any portion
of the Work to be inspected, tested or approved, the Contractor shall
give the Architect and the Owner at least 24 hours notice (to the extent
that Contractor has such advance notice) of its readiness so the
Architect and Owner may observe such inspecting, testing or approval.
Unless otherwise specifically provided in the Contract Documents, the
Contractor shall bear all costs of such inspections, tests or approvals.
4.18.2 If the Architect or Owner determines that any Work requires special
inspection, testing, or approval which subparagraph 4.18.1 does not
include, the Owner or the Architect may instruct the Contractor to order
such special inspection, testing or approval, and the Contractor shall
give notice as provided in subparagraph 4.18.1. If such special
inspection or testing reveals a failure of the Work to comply with the
requirements of the Contract Documents (including any laws, ordinances,
rules, regulations or orders of any public agency or authority having
jurisdiction) the Contractor shall bear all costs thereof, including
compensation for the Architect's additional services made necessary by
such failure; otherwise the Owner shall bear such costs, and an
appropriate Change Order shall be issued.
4.18.3 Required certificates of inspection, testing or approval shall be secured
by the Contractor and promptly delivered by him to the Architect.
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4.19 SITE AND RELATED PHYSICAL CONDITIONS AFFECTING THE WORK
4.19.1 Before submitting his bid or proposal, the Contractor shall be
responsible for having taken all steps reasonably necessary to evaluate
and ascertain the nature and location of the Work, nature of the site and
all physical characteristics and conditions relative to it, and the
general and local conditions which can affect the Work or the costs or
duration thereof. This shall include but not be limited to Contractor's
careful inspection and examination of the site and examination of all
surveys, records and information relating to it in the Contract Documents
or otherwise provided by the Owner for inspection by the Contractor. Upon
reasonable advance notice to Owner, the Contractor may undertake himself,
at his own expense, such other physical testing or sampling of the site
as he shall deem necessary to fully inform himself of its physical
conditions and characteristics.
4.19.2 Failure by the Contractor to fully acquaint himself with such conditions
which may affect the Work, including but not limited to conditions
relating to transportation, handling, and storage of materials, weather,
topographic and/or other physical conditions, availability of labor,
water, roads or power, applicable laws, ordinances or regulations, and
the character and availability of equipment and facilities needed prior
to and during the prosecution of the Work, shall not relieve the
Contractor of his responsibilities under the Contract Documents and shall
not constitute a basis for an adjustment of Contract Time or Contract Sum
under any circumstances.
4.19.3 The Owner assumes no responsibility for any understanding or
representations concerning such conditions or characteristics made by any
of his agents or representatives or by Architect prior to the execution
of the Owner-Contractor Agreement unless such understanding or
representations are expressly stated in the Contract Documents.
4.19.4 The Owner shall provide Contractor reasonable access to such information,
surveys, data and records regarding subsurface and other physical site
characteristics and conditions which may have been made by Architect or
Owner or are otherwise in their possession. These records are made
available to Contractor for his information; however, other than as
expressly provided on the Contract Documents, there is no express or
implied warranty or guarantee whosoever as to the accuracy of any of the
information records nor any interpretation contained therein. Contractor
expressly recognizes this limitation and stipulates that his opinions and
interpretations regarding the character and condition of the site upon
which the Work is to be constructed is founded only upon information and
representations specifically made in the Contract Documents and otherwise
upon his independent observations, examination and evaluation.
4.20 FOUNDATION SURVEY
4.20.1 After completion of the foundation and before any part thereof has been
covered, Contractor shall promptly notify Owner and Architect of such
completion to permit the Owner, at his sole election, to cause to be
performed, a survey of the foundation to determine its actual physical
location in relation to all boundary lines and servitudes.
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4.21 START-UP
4.21.1 Contractor shall be responsible for start-up of all systems and equipment
included in the Work and has included in the Contract Sum sufficient
allowances to cover contingencies which may arise in connection with the
start-up of individual systems, equipment and the total facility. Full
compliance with each manufacturer's specifications and instructions shall
be observed. Equipment which has been specified to be furnished with
manufacturer's supervision of start-up shall be placed in operation only
under the supervision of manufacturer's representative.
ARTICLE 5.
SUBCONTRACTORS
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5.1 DEFINITION
5.1.1 A subcontractor is a person or entity who has a direct contract with the
Contractor to perform any of the Work. The term Subcontractor is referred
to throughout the Contract Documents as if singular in number and
masculine in gender and means a subcontractor or his authorized
representative. The term Subcontractor does not include any separate
contractor of the Owner or his subcontractors.
5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect
contract with a Subcontractor to perform any of the Work. The term Sub-
subcontractor is referred to throughout the Contract Documents as if
singular in number and masculine in gender and means a Sub-subcontractor
or an authorized representative thereof.
5.2 AWARD OF SUBCONTRACTORS AND OTHER CONTRACTS
5.2.1 As soon as practicable after award of the Contract and prior to entering
into any Sub- contracts, the Contractor shall furnish to the Owner and
the Architect in writing the names of the persons or entities (including
those who are to furnish materials or equipment fabricated to a special
design) proposed for each of the principal portions of the Work or as
otherwise expressly requested by Architect. Such listing shall include
sufficient identifying information and description of qualifications so
as to permit a reasonable evaluation of such persons or entities. 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 any such proposed person or entity
to whom the Owner or the Architect has made reasonable objection under
the provisions of
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Subparagraph 5.2.1 The Contractor shall not be required to contract with
anyone to whom he has a reasonable objection.
5.2.3 If the Owner or the Architect has and timely asserts reasonable objection
to any such proposed person or entity, the Contractor shall submit a
substitute to whom the Owner or the Architect has no reasonable
objection, and the Contract Sum shall be increased or decreased by the
difference in cost occasioned by such substitution and an appropriate
Change Order shall be issued; however, no increase in the Contract Sum
shall be allowed for any such substitution unless the Contractor has
acted promptly and responsively in submitting names as required by
Subparagraph 5.2.1.
5.2.4 The Contractor shall make no substitution for any Subcontractor, person
or entity previously selected if the Owner or Architect makes reasonable
objection to such substitution.
5.3 SUBCONTRACTOR RELATIONS
5.3.1 The Contractor shall not be discharged from any obligations to Owner
hereunder as a result of any subcontract. The Contractor shall be as
fully responsible to the Owner for the acts and omissions of its
Subcontractors and its suppliers of materials and of persons either
directly or indirectly employed by them as it is for the acts and
omissions of persons directly employed by it. The responsibility of the
Contractor for its Sub-contractors and suppliers shall not be diminished
by the right of the Owner to approve Subcontractors and suppliers or that
the Owner may have exercised or not exercised that right or by any other
right of the Owner relating to Subcontractors or suppliers. Nothing
contained in the Contract Document shall relieve the Contractor of the
responsibility for his Subcontractors or create any contractual relation
between any Subcontractor or material supplier and the Owner.
5.3.2 Subcontracts and agreements for the acquisition of materials and
equipment shall be in an appropriate written form acceptable to the
Owner. The Contractor shall include in all such subcontracts and
agreements the pertinent terms and conditions of this Contract to the
fullest extent applicable and require that all work be performed in
accordance therewith. Further, such subcontracts or agreement shall
contain provisions which:
(a) Bind such Subcontractor or Supplier to the Contractor by the terms of
the Contract Documents and to assume toward the Contractor all the
obligations and responsibilities, which the Contractor by those
Documents, assumes toward the Owner, with respect to the work of the
Subcontractor or supplier;
(b) Preserve and protect the rights of Owner under the Contract Documents
with respect to the work to be performed under the subcontract so that
the subcontracting thereof will not prejudice such rights;
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(c) Bind such Subcontractor or Supplier to give to the Owner written
notice of any default under the subcontract or supply agreement on the
part of the Contractor and not to take any action in respect of the
default unless it remains uncured 30 days after the notice is given; and
to accept payment or performance under the subcontract by the Owner in
lieu of payment or performance by the Contractor, although the Owner
shall not be obligated to undertake the Contractor's payment obligations
thereunder.
(d) Require that all claims for additional cost or other damage and
extensions of time, with respect to subcontracted portions of the Work
shall be submitted to Contractor in sufficient time and manner so that
Contractor may comply in the manner provided in the Contract Documents
for like claims by Contractor upon Owner should Contractor elect to pass
such claims through to Owner;
(e) Require that such Subcontractor or supplier look only to the
Contractor and not to Owner or Owner's Lender for the performance of any
or all obligations owed the Subcontractor or supplier.
(f) Require that such Subcontractor or supplier waive and subordinate any
lien, or claim or right of lien against the Project or the land upon
which it is situated as required by Article 14 hereof;
(g) Contain a provision indemnifying Owner in accordance with Paragraph
4.16 hereof.
(h) Waive all rights Owner, Architect, Contractor and Subcontractor may
have against one another for damages caused by fire or other peril
covered by property insurance described in Subparagraph 11.3.6 hereof,
except such rights as they may have to the proceeds of such insurance.
(i) Permit assignment to Owner and assumption of all rights and
obligations thereunder, at Owner's sole election, upon written notice, in
the event of any termination of the Owner-Contractor Agreement.
(j) Require the Subcontractor to enter into similar agreements with his
Sub-subcontractors.
5.3.3 All subcontracts shall be entered by Contractor and copies of all
subcontracts greater than Fifty Thousand ($50,000.00) Dollars shall be
furnished to Owner.
5.3.4 The Contractor and all Subcontractors shall comply with all applicable
licensing laws for contractors prevailing within the state in which the
Project is located.
5.3.5 The Contractor shall make available to each proposed Subcontractor, prior
to the execution of the Subcontract, copies of those of the Contract
Documents to which the Subcontractor will be bound by this Paragraph 5.3,
and necessary to inform them fully of
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the requirements of the Contract Documents which pertain to or which
might otherwise affect their work. Each Subcontractor shall similarly
make copies of such Documents available to his Sub-subcontractors.
5.3.6 The Contractor shall have no financial interest in the payments made
under any subcontract or any contract for materials, labor, services,
equipment or appliances.
ARTICLE 6.
WORK BY OWNER, TENANT, AND SEPARATE CONTRACTORS
-----------------------------------------------
6.1 OWNER'S RIGHT TO PERFORM WORK AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform any work related to the Project
with his own forces, and to award separate contracts in connection with
any other portions of the Project or other work on the site under these
or similar Conditions of the Contract. The Owner specifically reserves
the right to have the forces of any tenant or its separate contractors
enter upon the Project for the purpose of constructing or installing
furniture, fixtures and equipment for the Project ("Tenant-Owner
Improvements"), with respect to any portions of the Work that have
reached such a stage of completion as to permit the construction and
installation of Tenant-Owner Improvements. Such use and occupancy by the
Owner, its tenants or their separate contractors shall not modify any
part of the Contract Documents or be construed as constituting
Substantial Completion or acceptance of any part of the Work. However,
the Owner, his tenants, or their respective separate contractors, agents,
or employees shall be responsible for any damage caused by them to the
Work so occupied by them. If the Contractor claims that delay or
additional cost (other than as compensable under Subparagraph 6.1.3) is
involved because of such action by the Owner, he shall make such claim as
provided elsewhere in the Contract Documents.
6.1.2 The Contractor shall afford the Owner, his Tenants and either of their
respective separate contractors reasonable opportunity for the
introduction and storage of their material and equipment and the
execution of their work, and shall connect and coordinate his Work with
theirs as required by the Contract Documents. The Contractor agrees to
permit the use and sharing of use of those facilities necessary for the
rapid completion of their work, including without limitation, the
Contractor's utilities, hoists, elevators, scaffolding and other
equipment at Contractor's actual costs incurred and, if requested by the
Owner, the Contractor shall provide a separate entrance. Such use and
sharing of Contractor's facilities shall not extend the Contract Time.
6.1.3 The Contractor shall be reimbursed for actual costs or expenses
reasonably incurred by the Contractor as a result of such construction,
use or occupancy. To the extent possible, before such costs or expenses
are incurred, the Contractor will provide the Owner or his
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applicable tenant with a lump sum or unit prices as the Owner may request
to cover such costs or expenses.
6.1.4 The Owner will provide for the coordination of the Work of his own forces
and of each separate Contractor with the Work of the Contractor.
6.2 MUTUAL RESPONSIBILITY
6.2.1 If any part of the Contractor's Work depends for proper execution or
results upon the work of the Owner or any separate contractor, the
Contractor shall, prior to proceeding with the Work, promptly report to
the Architect and Owner any apparent discrepancies or defects in such
other work that render it unsuitable for such proper execution and
results. Failure of the Contractor to so report shall constitute an
acceptance of the Owner's or separate contractor's work as fit and proper
to receive his Work.
6.2.2 Any costs caused by defective or ill-timed work shall be borne by the
party responsible therefor.
6.2.3 Should the Contractor wrongfully cause damage to the Work or property of
the Owner, any tenant of the Owner or to other work on the site, the
Contractor shall promptly remedy such damage or Owner, at his option, may
cause such damage to be remedied at the expense of Contractor.
6.2.4 Should the Contractor wrongfully cause damage to the work or property of
any tenant of Owner or separate contractor, the Contractor shall upon due
notice promptly attempt to settle with such other party (or otherwise
resolves the dispute). If such separate party sues or initiates
proceedings against the Owner on account of any damage alleged to have
been caused by the Contractor, the Owner shall notify in writing the
Contractor who shall defend such proceedings at the Contractor's expense,
and if any judgment or award against the Owner arises therefrom, the
Contractor shall pay or satisfy it and shall reimburse the Owner for all
attorney's fees and court costs which the Owner may have incurred.
6.3 OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises between the Contractor and separate contractors as to
their responsibility for cleaning up as required by the General
Conditions of either such contract, the Owner may upon three (3) days
prior written notice clean up and charge the cost thereof to the
contractor responsible therefor as the Architect shall determine.
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ARTICLE 7.
TIME FOR COMPLETION
-------------------
7.1 DEFINITIONS
7.1.1 The Contract Time is the period of time after the Date of Commencement of
the Work allotted in the Owner-Contractor Agreement in which to achieve
Substantial Completion of the Work, as may be adjusted by Change Order.
The Contract Time shall commence on the Date of Commencement of Work.
7.1.2 The Date of Commencement of the Work is the date established in a notice
to proceed.
7.1.3 The Date of Substantial Completion of the Work or designated portion
thereof is the date certified by the Architect pursuant to Paragraph 9.1.
7.1.4 The Construction Schedule shall be the schedule of activities derived by
the Contractor pursuant to Paragraph 7.5 hereof showing their sequences,
durations and interrelationships and establishing the Contractor's plans
for accomplishing Substantial Completion within the Contract Time.
7.1.5 The term "day" as used in the Contract Documents shall mean calendar day
unless otherwise specifically designated.
7.2 PROGRESS AND COMPLETION
7.2.1 Time is of the essence in the performance of the Work by or on behalf of
the Contractor including particularly, but without limitation, any times
or durations for commencement, prosecution and completion of the Work.
7.2.2 The Contractor shall begin Work on the Date of Commencement. The
Contractor shall thereafter prosecute the Work expeditiously and
diligently at such a rate to maintain progress in accordance with the
Construction Schedule and achieve Substantial Completion within the
Contract Time. The Contractor shall employ all such additional labor,
services and supervision including such extra shifts and overtime as may
be necessary to maintain progress in accordance with the Construction
Schedule and achieve Substantial Completion within the Contract Time, all
without an increase in the Contract Sum unless expressly authorized by
the Contract Documents.
7.2.3 In executing the Owner-Contractor Agreement, the Contractor represents
that the Contract Time (as may be adjusted under the Contract Documents)
for construction and completion of the Work is reasonable, taking into
consideration the type of construction planned and the site conditions,
climatic conditions and industrial conditions (including, without
limitation, labor conditions) prevailing in the area of the Project.
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7.2.4 Should the Project or any portion thereof not be completed in accordance
with the Construction Schedule or within the Contract Time (as adjusted
under the terms of the Contract Documents), Owner shall have the right
but not the obligation to occupy any portion of the Project not so
completed. In such event, Contractor shall not be entitled to any extra
compensation on account of said occupancy by Owner or by Owner's normal
full use of the Project nor shall Contractor interfere in any way with
said use of the Project, or be relieved of any of its responsibilities
under the Contract Documents, including, without limitation, Contractor's
obligation to complete the Project in accordance with the Construction
Schedule. Occupancy by Owner hereunder shall be subject to the
requirements of Subparagraph 11.3.9 with regard to property insurance.
7.3 DELAYS AND EXTENSIONS OF TIME
7.3.1 Except as otherwise specifically provided hereinafter and under Paragraph
12.1 (Changes in the Work), the Contractor shall not be entitled to an
increase in the Contract Sum or payment or compensation of any kind from
the Owner for direct, indirect, consequential, impact or other costs,
expenses or damages, including but not limited to costs of acceleration
or inefficiency, arising because of delay, disruption, interference or
hindrance from any cause whatsoever, whether such delay, disruption,
interference or hindrance be reasonable or unreasonable, foreseeable or
unforeseeable, or avoidable or unavoidable; provided, however, that this
provision shall not preclude recovery of damages by the Contractor for
hindrances or delays due solely to fraud or bad faith on the part of the
Owner or its agents. Otherwise, the Contractor shall be entitled only to
extensions of the Contract Time as the sole and exclusive remedy for such
resulting delay, in accordance with and to the extent specifically
provided in the Contract Documents.
7.3.2 The Contract Time shall be adjusted only as appropriate for Changes in
the Work (pursuant to Paragraph 12.1), Concealed Conditions entitling
contractor to such adjustment (pursuant to Paragraph 12.2), Suspension of
Work (pursuant to Paragraph 19.2), Stopping of Work (pursuant to
Paragraph 16.1), and excusable delays (pursuant to Subparagraph 7.3.4)
and for no other reason. In the event the Contractor requests an
extension of the Contract Time based upon a particular occurrence, he
shall furnish such justification and supporting evidence as the Architect
may deem necessary for a determination as to whether and to what extent
the Contractor is entitled to an extension of time under the provisions
of the Contract. After receipt of such justification and supporting
evidence as is timely submitted, the Architect shall make a determination
extending the Contract Time only to the extent that such occurrence shall
actually have caused extension of the Project duration. The Contractor
acknowledges and agrees that actual delays in activities which, according
to the Construction Schedule, do not affect activities critical to
completion within the Contract Time will not be the basis for an
extension of the Contract Time.
7.3.3 If the Architect finds that the Contractor is entitled to any extension
of the Contract Time, he shall advise the Contractor and Owner in writing
thereof. Appropriate adjustment
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reflecting such increase in the Contract Time and any resultant changes
in activities affected shall then be made to the Construction Schedule. A
Change Order shall be then duly issued under Article 12 effectuating
these adjustments and extending the Contract Time.
7.3.4 Subject to other provisions of the Contract Documents, the Contractor may
be entitled to an extension of the Contract Time (but no increase in the
Contract Sum) for delays arising from the following unforeseeable causes
but only to the extent that they were beyond the control and without the
fault or negligence of the Contractor or his Subcontractors or suppliers
as follows:
1. Labor disputes and strikes including those affecting
transportation.
2. Acts of God, such as tornado, fire, hurricane, blizzard,
earthquake, typhoon or flood or similar unavoidable casualties
that cause damage to completed Work or stored materials or
otherwise cause delay.
3. Abnormal adverse weather not reasonably anticipatable; however,
the Contract Time will not be extended due to normal seasonal
weather variations.
4. Acts of the public enemy, and unanticipated acts of the state,
federal or local government in its sovereign capacity.
5. Acts of another separate contractor in the performance of a
contract with the Owner relating to the Project.
6. Any act or neglect of the Owner or the Architect or any of their
agents or employees.
7.3.5 No extension of Contract Time shall be granted if, in the exercise of
reasonable prudence, Contractor, or anyone for whom the Contractor is
responsible, could have avoided the delay in the progress of the Work.
Delays otherwise allowable shall be reduced by the amount of time that
Contractor or anyone for whom the Contractor is responsible, in the
exercise of reasonable prudence, could have avoided, reduced or made up
such delays in the course of the performance of subsequent portions of
the Work, provided that Contractor shall not be obligated to incur
additional cost to make up excusable delays. In the case of impending
delay resulting from any act or neglect of Owner or Architect, which was
or should reasonably have been foreseen by Contractor, such prudence
shall include prompt notice thereof to Owner and Architect.
7.3.6 Other than pursuant to Paragraph 12.1, no claims for extension of
Contract Time for delay, disruption, interference or hindrance of the
Work hereunder or any portion thereof shall be valid unless a notice of
claim is filed with the Owner and the Architect within ten (10) days of
the first instance of such delay, disruption, interference or hindrance
and, in
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addition, unless a written statement of the claim as hereinafter
described is filed with the Owner and the Architect within twenty (20)
days of such first instance; otherwise all such claims are waived by the
Contractor. In the case of a continuous cause of delay, only one written
claim is necessary.
7.3.6.1 Such notice of claim must clearly identify the instance of
delay, disruption, interference or hindrance and an estimate of
the probable effect of such delay on the progress of the Work.
7.3.6.2 Such statement of the claim must provide all information
required by the scheduling requirements of the Contract
Documents and further provide the following specific
information:
1. Nature of the delay;
2. Date (or anticipated date) of commencement of delay;
3. Activities on the Construction Schedule affected by the
delay, and/or new activities created by the delay, and
their relationship with existing activities;
4. Identification of person(s) or organization(s) or
event(s) responsible for the delay;
5. Anticipated extent of delay;
6. Recommended action to avoid or minimize the delay.
7.3.6.3 The Architect shall receive and process such claims for
extensions of time in accordance with the procedures set forth
in Paragraph 7.3 except that any Change Order issued shall only
amend the Contract Time.
7.3.6.4 The failure of the Contractor to file any claims for extension
of time within the time limits prescribed herein and in the form
and manner required hereby shall be deemed a material prejudice
to the interests of the Owner and shall constitute an absolute
waiver of the claim and the right to file or thereafter
prosecute the same.
7.3.7 To the extent that Contractor is entitled to any increase in contract sum
for delay, disruption, interference or hindrance under this Paragraph
7.3, an absolute condition precedent to such entitlement shall be strict
compliance with all requirements and procedures for entitlement to an
extension of time hereunder.
7.3.8 The Contractor shall keep the Owner and Architect constantly advised to
all factors which may affect the Contractor's progress toward Substantial
Completion time of the Work within the Contract Time.
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7.4 OWNER'S RIGHT TO ACCELERATE
7.4.1 The Owner shall have the right to require, by Change Order issued under
Article 12, that completion of all or any portion of the Work be
accelerated to an earlier time. In the case of such acceleration, the
Contractor shall require his forces and Subcontractors to work such
overtime hours and take such other measures as reasonably necessary to
accomplish the acceleration. The Owner's obligation on account of such
acceleration shall be to reimburse the Contractor for any increase on his
cost of such acceleration. The Contractor shall keep accurate records of
such overtime hours and other premium or acceleration costs and excuses
resulting from such acceleration. Such reimbursement shall include
overhead and profit of the Contractor and his Subcontractor. This
subparagraph shall have no application to overtime work which the
Contractor is required to perform because of his failure to meet the
Construction Schedule, or, without limitation, because of any other fault
of the Contractor.
7.5 THE CONSTRUCTION SCHEDULE
7.5.1 The Contractor, immediately after being awarded the Contract, shall be
responsible for deriving a Construction Schedule (as more particularly
prescribed in the Supplementary Conditions), which shall fully describe
the intended method of accomplishing all the various work and related
activities necessary to completion of the entire Project hereunder. Such
Construction Schedule shall demonstrate an expeditious, practicable and
reasonable plan for accomplishing Substantial Completion of the Work
within the Contract Time and Final Completion of the Project.
7.5.2 The Construction Schedule shall take fully into account accomplishment of
such interim milestones or requirements of Owner for completion of
portions of the Work at times earlier than the full Contract Time. Such
milestones and requirements, if any, shall be as prescribed in the
Supplementary Conditions.
7.5.3 A preliminary Construction Schedule shall be prepared and submitted to
Owner and to Architect in final proposed form, in the format prescribed
in the Supplementary Conditions, no later than ten (10) days after the
date of the Owner-Contractor Agreement or the Date of Commencement of
Work, whichever is earlier. This preliminary Construction Schedule should
incorporate the input of major subcontractors, fabricators, and suppliers
of materials or equipment which are not readily available for delivery to
the Project. In submitting this preliminary Construction Schedule,
Contractor warrants and represents that in his opinion and that of his
major subcontractors, fabricators and suppliers, it presents a reasonable
and workable plan and sequence for timely performance of all Work and
further constitutes their intended plan and sequence for its
accomplishment.
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7.5.4 The Contractor shall be entitled to no payment under this Owner-
Contractor Agreement unless and until the Contractor has so submitted the
preliminary Construction Schedule in required format.
7.5.5 The Owner and Architect shall review this preliminary Construction
Schedule as initially submitted; however, such review shall be only to
determine its compliance with Contract requirements regarding Substantial
Completion, final completion and any specified interim completion
milestones or requirements. Such review shall not require an independent
evaluation or determination by Owner or Architect of the workability,
feasibility or reasonableness of the Contractor's proposed Construction
Schedule.
7.5.6 Within ten (10) days after submission of the preliminary Construction
Schedule under Subparagraph 7.5.3 above, the Owner, Architect and
Contractor shall jointly meet to review the preliminary Construction
Schedule at the Contractor's Project office and at a time established by
written notice from Architect. Within ten (10) days thereafter,
Contractor shall submit a revised Construction Schedule incorporating any
changes deemed necessary by the Contractor or directed by Owner or
Architect. This revised Construction Schedule shall thereafter be deemed
the Construction Schedule for the Project.
7.5.7 Thereafter, the Construction Schedule shall be revised and updated in
such manner and frequency as specified in the Supplementary Conditions.
7.5.8 The Construction Schedule shall be revised appropriately to reflect
accurately any adjustment extending the Contract Time allowed by
Architect including revision to the durations, sequences and
interrelationships of activities affected by the occurrences permitting
such adjustment.
7.5.9 The Contractor shall keep the Owner, the Architect and all of his
Subcontractors and material suppliers fully and completely informed at
all times of the content of the Construction Schedule, other schedules
and all other scheduling information applicable to or which may affect
the Work of all Subcontractors and material suppliers. This information
shall in all cases be furnished to the Subcontractors and material
suppliers in sufficient time to allow them to adjust their plans so as to
meet all required performance dates relative to their portions of the
Work.
7.5.10 To the extent that any provisions of this Paragraph 7.5 are at variance
with the scheduling requirements specified in the Supplementary
Conditions, the latter shall govern.
7.5.11 The Owner and the Architect shall be entitled to rely fully on the
content of the Construction Schedule (as it may be revised) in planning
and scheduling performance of their obligations under the Contract
Documents or of interrelated work by their own forces or separate
contractors.
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ARTICLE 8.
PAYMENTS TO CONTRACTOR
----------------------
8.1 CONTRACT SUM
8.1.1 The Contract Sum is as stated in the Owner-Contractor Agreement,
including adjustment thereto as authorized by the Contract Documents.
Such Contract Sum (or the portion thereof authorized by the Owner-
Contractor Agreement) shall represent the total amount payable by the
Owner to the Contractor for performance of the Work under the Contract
Documents.
8.2 SCHEDULE OF VALUES
8.2.1 Before the first Application for Payment and as a strict condition
precedent to payment under Article 8, the Contractor shall submit to the
Architect a Schedule of Values allocated to the various portions of the
Work aggregating and dividing the Total Contract Sum so as to facilitate
determination of progress and progress payment. The Schedule of Values
shall be prepared in such form and supported by such data to substantiate
its accuracy as the Architect may require. The Schedule of Values shall
be in a format consistent with that to be used on the Application for
Payment forms and shall segregate each major work item and each
subcontracted item on a single line, with item numbers corresponding (if
practicable) with specifications section numbers. Further, it shall
provide a preliminary schedule of the Contractor's anticipated monthly
Progress Payments. This Schedule, unless objected to by the Architect,
shall be used only as a basis for the Contractor's Applications for
Payment.
8.3 APPLICATIONS FOR PAYMENT
8.3.1 At least fifteen (15) days before the date for each progress payment
established in the Owner-Contractor Agreement, the Contractor shall
submit to the Architect an itemized Application for Payment duly sworn
and notarized on such form as required by Owner and based on the
previously approved Schedule of Values. It shall be supported by such
data information and documentation substantiating the Contractor's right
to payment as the Owner or the Architect may require, and reflecting
retainage, if any, as provided elsewhere in the Owner-Contractor
Agreement. To the extent of any delay in submission of any Application
for Payment in duly authorized form, any specified date for progress
payment shall be extended commensurately.
8.3.2 If approved in writing in advance by Owner, payments will be made on
account of materials or equipment not incorporated in the Work but
delivered and suitably stored at the site and suitably stored at some
other location approved by Owner in writing. Payments for materials or
equipment stored on or of the site shall be further conditioned upon
submission by the Contractor of bills of sale or such other evidence or
procedures satisfactory to the Owner to establish the Owner's title to
such materials or equipment or
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otherwise protect the Owner's interest, including applicable insurance
and transportation to the site for those materials and equipment stored
off the site.
8.4 CERTIFICATES FOR PAYMENT
8.4.1 The Architect will promptly review such Application and, within seven
days after the receipt of the Contractor's Application for Payment,
either issue a Certificate for Payment to the Owner, with a copy to the
Contractor, for such amount as the Architect determines is properly due,
or notify the Contractor in writing his reasons for withholding a
Certificate as provided in Subparagraph 8.6.1.
8.4.2 The issuance of a Certificate for Payment will constitute a
representation by the Architect to the Owner, based on his observations
at the site as provided in Subparagraph 2.2.3 and the certified data
comprising the Application for Payment, that the Work has progressed to
the point indicated and that it therefore appears the Contractor is
entitled to payment in the amount certified.
8.5 PROGRESS PAYMENTS
8.5.1 After the Architect has issued a Certificate for Payment and provided the
Contractor has complied with all requirements of Subparagraph 8.5.2 and
otherwise is not in default under the Contract Documents, the Owner shall
make payment in the amounts and manner and within the time provided in
the Contract Documents.
8.5.2 As a condition precedent to payment, Contractor shall submit on a monthly
basis at or prior to the time of receipt of each payment its duly
executed waiver of all rights and claims of lien on the Work or the
Project Site for the period for which payment is made, in the form
provided by Owner. Contractor shall also submit on a monthly basis at the
time of receipt of each monthly payment a similar waiver for labor and
materials furnished during the period for which the previous Application
for Payment was made in the form provided by Owner and executed by each
of the Subcontractors who performed services for that previous period and
paid receipts from suppliers and materialmen who provided equipment or
material in that previous period.
8.5.3 The Contractor shall promptly pay each Subcontractor (including suppliers
not previously paid), upon receipt of payment from the Owner, out of the
amount paid to the Contractor on account of such Subcontractor's Work,
the amount to which said Subcontractor is entitled, reflecting the
percentage actually retained, if any, from payments to the Contractor on
account of such Subcontractor's Work. The Contractor shall, by an
appropriate agreement with each Subcontractor, require each Subcontractor
to make payments to his Subcontractors in similar manner. Until such
payment is actually made, Contractor shall be considered to hold such
funds as a fiduciary in trust for the benefit of such subcontractors.
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8.5.4 The Architect may, on request and at his discretion, furnish to any
Subcontractor, if practicable, information regarding the percentage of
completion or the amounts applied for by the Contractor and the action
taken thereon by the Architect on account of Work done by such
Subcontractor.
8.5.5 Neither the Owner nor the Architect shall have any obligation to pay or
to see to the payment of any moneys to any Subcontractor or supplier,
except as may otherwise be required by law. However, if the Contractor
fails to pay any Subcontractor or supplier amounts due them, the Owner
shall upon seven (7) days written notice to Contractor, have the right to
make payments out of any unpaid portion of the Contract Sum to such
parties as Owner may deem reasonably necessary to protect its interests
and those of Owner's Lender. Any such payments so made by the Owner shall
be considered as having been paid to Contractor.
8.5.6 No certificate for a progress payment, nor any progress payment, nor any
partial or entire use or occupancy of the Project by the Owner, shall
constitute an acceptance of any Work or performance not in accordance
with the Contract Documents. Any determination or certification of the
Architect shall be made for the limited purpose of making monthly
Progress Payments and shall not relieve the Contractor of full
responsibility for all defective materials and workmanship and for its
failure strictly to follow the Contract Documents, notwithstanding the
Owner or the Architect may have observed the default or failure.
8.6 PAYMENTS WITHHELD
8.6.1 The Architect may decline to certify payment and may withhold his
certificate in whole or in part, to the extent necessary reasonably to
protect the Owner, if, in his opinion, he is unable to make
representations to the Owner as to the accuracy of the facts and
estimates contained in the Contractor's Application for Payment. If the
Architect is unable to make such representations to the Owner and to
certify payment in the amount of the Application, he will notify the
Contractor as provided in Subparagraph 8.4.1. If the Contractor and the
Architect cannot agree on a revised amount, the Architect will promptly
issue a Certificate for Payment for the amount for which he is able to
make such representations to the Owner. The Architect may also decline to
certify payment or, because of subsequently discovered evidence or
subsequent observations, he may nullify or modify the whole or any part
of any certificate for Payment previously issued, to such extent as may
be necessary in his opinion to protect the Owner from loss because of:
1. Defective or nonconforming Work not remedied;
2. Third party claims filed or reasonable evidence indicating
probable filing of such claims;
3. Failure of the Contractor to make payments properly to
Subcontractors or suppliers for labor, materials or equipment;
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4. Reasonable evidence that the Work cannot be completed for the
unpaid balance of the Contract Sum;
5. Damage to the Owner or another contractor;
6. Reasonable evidence that the Work will not be completed with the
Contract Time; or
7. Unsatisfactory prosecution of the Work in accordance with the
Contract Documents.
8.6.2 When the above grounds in Subparagraph 8.6.1 are removed, payment shall
be made for amounts withheld because of them.
8.6.3 In the event that Architect should decline to certify or nullify a prior
certification regarding any portion of an Application for Payment
submitted by Contractor, the Owner shall pay only such amount as
certified by Architect as justifiably due Contractor. Any overpayments to
Contractor shall, unless otherwise credited or adjusted, be repaid to
Owner upon demand.
8.6.4 The Architect and the Owner shall have the right to contact
subcontractors and suppliers directly to ascertain (1) what amounts, if
any, are due to them from Contractor, and (2) the projected costs of
completing the remaining portion of their Work, and (3) the scope, amount
and substance of any claims and disputes between them and Contractor.
8.7 SEMIFINAL PAYMENT UPON SUBSTANTIAL COMPLETION
8.7.1 Upon Substantial Completion of the Work or designated portion thereof (as
established pursuant to Paragraph 9.1), the Contractor shall submit a
Semifinal Application for Payment.
8.7.2 Subject to the more specific provisions elsewhere in the Contract
Documents, the Semifinal Application for Payment shall provide for
continued retention by Owner of at least an amount equal to twice the
reasonably estimated cost or expense necessary to accomplish the
following:
(a) Completion of all uncompleted work items;
(b) Remedy of any uncorrected work not in accordance with the Contract
Documents;
(c) Satisfy any and all unresolved claims or liens filed or asserted (or
reasonably anticipated filing or assertion) against Owner, its Lender,
the Project or any of the Work by any person or entity providing labor,
materials, equipment or services through or on behalf of the Contractor;
and
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(d) Compensating Owner and its separate contractors for any unresolved
claims of damage or injury caused by Contractor, or anyone for whom it
shall be held responsible under the Contract Documents, which have been
asserted or are reasonably anticipated (including claims arising out of
Contractor's breach or default hereunder).
8.7.3 The Contractor's Application for Semifinal payment shall provide an
estimated amount for the continued retainage set forth in Subparagraph
8.7.2 which Architect and Owner shall review and adjust as they deem
necessary to reasonably protect the Owner's remaining interests.
Architect shall then certify such application, as adjusted, for payment
of any balance owing for Work performed over such adjusted retainage.
8.7.4 Upon final adjustment and certification by Architect of such Semifinal
Application for Payment, Owner shall issue payment in accordance with the
amount certified provided Contractor shall have first provided the
following:
(a) An Affidavit that all indebtedness of Contractor connected with Work
has been paid in full with the exception of amounts specifically listed
in the Semifinal Application and certification as unresolved or unpaid;
(b) Waivers of all rights and claims of lien as described in Subparagraph
8.5.2;
(c) Other waivers, releases or data required by Owner or Architect
establishing such payment or satisfaction; and
(d) Consent of surety, if any.
8.8 FINAL COMPLETION AND FINAL PAYMENT
8.8.1 Upon or prior to issuance of a written notice (under Subparagraph 9.4) by
the Architect to the Owner and the Contractor that the Work has reached
final completion, Contractor shall submit his final Application for
Payment to Architect.
8.8.2 Such final Application for Payment shall include as a separate attachment
a final adjustment of accounts reflecting any and all appropriate final
accounting and adjustments of the contract balances and Contract Sum
including but not limited to:
(a) Cost of the Work (if the Owner-Contractor Agreement provides for
reimbursement of "cost").
(b) Additions and deductions resulting from the following:
(1) All Change Orders (and Change Order "cost" if appropriate under
the Contract Documents).
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(2) Allowances.
(3) Unit Prices.
(4) Deductions or Adjustments for defective or uncompleted work.
(5) Bonuses, as applicable.
(6) Deductions for liquidated or other damages.
(7) Savings and other adjustments (as appropriate under the Contract
Documents).
(c) Total Contract Sum, as adjusted.
(d) Previous payments.
(e) Final Payment due to the Contractor.
8.8.3 As conditions precedent to final payment under the Contract Documents,
Contractor shall:
(a) execute and furnish a release of all claims and liens (except as
previously made in writing and identified as unsettled at the time of the
final Application for Payment) against Owner, its Lender, the Project and
the land upon which the Project is situated arising under or by virtue of
the Contract Documents, including in the event of any termination as
permitted by the Contract Documents, claims or liens arising under or by
virtue of such termination;
(b) furnish written final releases and waivers of all rights to claim or
file liens properly executed by any and all Subcontractors, vendors or
others furnishing work, labor, materials, machinery or fixtures for the
performance of Work;
(c) furnish appropriate affidavits and other such other data in such form
designated by Owner as may be reasonably requested by Owner to establish
payment or satisfaction and of all payrolls, material bills, and other
indebtedness connected with the Work for which the Owner, its lender or
its property might in any way be responsible; and
(d) furnish a consent of surety, if any, to final payment.
If any Subcontractor or Supplier refuses to furnish a release or waiver
required by the Owner, the Contractor may furnish a bond satisfactory to
the Owner to indemnify him against any such lien. If any such lien
remains unsatisfied after all payments are made, the Contractor shall
refund to the Owner all moneys that the latter may be compelled to pay in
discharging such lien, including all costs and reasonable attorneys'
fees.
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8.8.4 Upon his review and approval of such application the Architect shall
prepare a final Change Order reflecting approved adjustments to the
Contract Sum not previously made by Change Orders.
8.8.5 Upon such final adjustment and issuance of any change order so required
and upon his review and approval of the final Application for Payment,
reflecting such adjustments, the Architect shall promptly issue a final
Certificate for Payment stating that to the best of his knowledge,
information and belief, and on the basis of his observations and
inspections, the Work has been completed in accordance with the terms and
conditions of the Contract Documents and that the entire balance found to
be due the Contractor and noted in said final Certificate, is due and
payable. The Architect's final Certificate for Payment will constitute a
further representation that the conditions precedent to the Contractor's
being entitled to final payment as set forth in Subparagraph 8.8.3 have
been fulfilled.
8.8.6 Final payment shall be due and payable in the amount certified thirty
(30) days after Owner's receipt of such final Certificate of Payment.
8.9 WAIVER
8.9.1 Subject to Subparagraph 8.9.2, neither inspection by Owner or Architect,
or by any of their duly authorized representatives, nor any order,
measurement, notice or certificate by Owner; nor any order by Owner for
the payment of money; nor final payment hereunder; nor acceptance of any
work or any extension of time; nor any possession taken by Owner, shall
operate as a waiver of any provision of the Contract Documents or any
right of the Owner thereunder or of any right to damages under the
Contract Documents or under law. Any waiver by Owner of any breach of the
Contract Documents shall not be held to be a waiver of any other or
subsequent breach, and any waiver by Owner of any right to terminate the
Agreement shall not be held to be a waiver of any breach of the Contract
Documents, but Owner retains all of its rights to recover damages
therefor.
8.9.2 The making of final payment shall constitute a waiver of all claims by
the Owner except those arising from:
1. Unsettled liens.
2. Faulty or defective Work appearing after Substantial Completion.
3. Failure of the Work to comply with the requirements of the
Contract Documents.
4. Terms of any special warranties required by the Contract
Documents.
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5. Claims thereafter asserted by third parties against Owner, its
Lender or the Project arising out of or relative in any way to the
Work or the performance thereof by or on behalf of Contractor.
8.9.3 The acceptance of final payment shall constitute a waiver of all claims
by the Contractor except those previously made in writing and identified
by the Contractor as unsettled at the time of the final Application for
Payment.
ARTICLE 9.
COMPLETION
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9.1 SUBSTANTIAL COMPLETION
9.1.1 The Date of Substantial Completion of the Work or designated portion
thereof acceptable to Owner is the date certified by the Architect when
construction is sufficiently complete, in accordance with the Contract
Documents, so that the Owner (or its tenant(s)) can occupy or utilize the
Work or such designated portion thereof for the use for which it is
intended with all of the installations, parts and systems relating
thereto and required by the Work hereunder functional, accessible,
operable and usable by the Owner for their full and unimpeded intended
usage. Such completion shall include, as applicable, all certificates of
occupancy or other permits or authorizations by governmental agencies
having jurisdiction thereof, necessary to permit such usage. Only minor
or incidental corrective work under punch lists and final cleaning (if
required) beyond cleaning needed for the Owner's full use may remain for
Final Completion.
9.1.2 When the Contractor considers the Work to be substantially complete, he
shall submit to the Owner and Architect written notice that the Work, or
such designated portion thereof, is substantially complete, along with a
list of items to be completed or corrected. The failure to include any
items on such list does not alter the responsibility of the Contractor to
complete all Work in accordance with the Contract Documents. Within a
reasonable time after receipt of notice, the Architect shall make an
inspection to determine the status of completion.
9.1.3 Should the Architect determine that the Work has not reached substantial
completion, the Architect shall promptly notify the Owner and Contractor
in writing of his determination and the reasons therefor. The Contractor
shall promptly remedy deficiencies and complete all incomplete work and
thereafter send another written notice of substantial completion to the
Owner and Architect who shall within a reasonable time thereafter
reinspect the Work.
9.1.4 When the Architect determines that the Work or such designated portion is
substantially complete, the Architect will prepare a Certificate of
Substantial Completion on AIA Form G704, or such other form as the Owner
shall stipulate, accompanied by the Contractor's list of items to be
completed or corrected, as verified and amended by the Architect. The
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issuance of such certificate shall establish the Date of Substantial
Completion thereof. Such certificate shall further state the
responsibilities of the Owner and Contractor for security, maintenance,
heat, utilities, damage to the Work and insurance, and shall set forth
the time period within which the Contractor shall remedy or complete
items listed above.
9.1.5 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.
9.1.6 If the appropriate governmental agencies refuse to issue a Certificate of
Occupancy or other necessary permits for reasons other than fault of the
Contractor, including without limitation deficiencies in the Contract
Documents, the requirement of such Certificate will be deemed to be
waived, unless the Contractor knew or should have known of such
deficiencies and failed to call it timely to the attention of the Owner
and the Architect. The Contractor, at the Owner's option, shall
thereafter perform the Work necessary to obtain such Certificate with an
adjustment to the Contract Sum necessary to obtain such Certificate which
shall be effected by Change Order.
9.2 COMPLETION AND CLOSEOUT SUBMITTALS
9.2.1 As soon as practicable, but in no event later than twenty (20) days after
the Date of Substantial Completion, the Contractor shall:
1. Fully complete all remaining items and correct all deficient
items, whether or not listed on the Certificate of Substantial
Completion;
2. Organize, prepare and submit to Owner through Architect all
Closeout Submittal Information (as defined in Paragraph 9.3);
3. To the extent not previously accomplished for Substantial
Completion, complete the start-up of all systems and equipment
and provide the Owner's designated personnel with instructions by
Contractor (or its supplier, subcontractor or manufacturer) in
care, use, cleaning, maintenance and operation procedures for
each item; and
4. To the extent not previously accomplished, complete all cleaning
and disposal operations required by governing codes, ordinances,
regulations, anti-pollution requirements and Contract Documents.
The entire Work (buildings and grounds) shall be cleaned as
specified by Architect and as required for Owner's intended use.
9.3 CONTRACTOR'S CLOSEOUT SUBMITTAL
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9.3.1 As a necessary part of completion of the Work under the Contract
Documents, the Contractor shall assemble and submit to Owner through
Architect the following material and documentation:
1. Except as otherwise provided by the Contract Documents, all
certificates and approvals of any governmental agency with authority over
the Project or the Work required for the full, unrestricted use and
occupancy thereof by Owner for its intended purpose, including
specifically, but without limitation:
(a) Certificate(s) of Occupancy.
(b) Certificates of inspection for such systems and installations (as
applicable) as:
(1) elevators, moving stairs and walks, (2) mechanical systems, (3)
plumbing systems, (4) fire protection, and (5) electrical systems.
2. One record set of all the following project documentation:
(a) Project Manual (Specifications).
(b) Project Drawings.
(c) Addenda.
(d) Change Orders and Modifications to Contract.
(e) Owner's and Architect's Field Orders or written instructions,
sketches, etc.
(f) Approved Shop Drawings, Product Data and Samples.
(g) Testing laboratory reports.
(h) All Construction samples and product samples.
3. One record set of "as built" drawings, legibly marked concurrently
with the construction process including but not limited to, the
following:
(a) Depths of various elements of foundation in relation to finish
first floor datum;
(b) Horizontal and vertical locations of underground utilities and
appurtenances, referenced to permanent surface improvements;
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(c) Location of internal utilities and appurtenances concealed in
construction, referenced to visible and accessible features of
structure(s);
(d) Field Changes of dimensions and details;
(e) Changes made by Field Orders, or Change Orders and not shown on
Contract Drawings (as amended); and
(f) Details not on original Contract Drawings.
4. One record set of "as built" specifications legibly marked so as to
indicate the manufacturer, trade name, catalog number, and supplier of
each product and item of equipment actually installed.
5. One record set of schematic diagrams covering installations of all
electrical, mechanical and pneumatic controls.
6. Three duplicate sets, each separately bound and indexed in vinyl
covered three ring binders, of operating instructions and maintenance
recommendations for all Work, including, without limitation, a printed
parts list for all items which might be subject to replacement. These
instructions shall set forth all of the information necessary for
Owner to operate and make full and efficient use of all equipment and
systems comprising the Work, and perform such maintenance and
servicing as would ordinarily be done by Owner or its personnel. They
shall be neatly typewritten in simple, non-technical language when
possible, with sufficient diagrams and explanation where necessary to
be readily understandable by average laymen.
7. All keys and key schedules.
8. All spare parts, maintenance materials and any materials or equipment
for which Contractor had been paid but which was not actually
incorporated into Work.
9. The originals of all Warranties, Guaranties, Bonds, or Certificates of
Compliance required by the Contract Documents, relative to the Work or
its component parts, equipment and systems, including those given by
Contractor, Subcontractors and material manufacturers or suppliers.
These shall be prepared in a vinyl covered three ring binder and
indexed in order of and in accordance with corresponding specification
sections or other contract requirements. All such warranties,
guarantees and certificates, if not issued directly to Owner, shall by
their terms by assignable to Owner and shall be accompanied by duly
executed documentation effecting such transfer and assignment.
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9.4 FINAL COMPLETION
9.4.1 When the Contractor considers the Work is fully complete and ready for
final inspection, the Contractor shall certify in writing to the Owner
and Architect that:
(a) Contract Documents have been reviewed by the Contractor.
(b) All work has been carefully inspected by the Contractor for
compliance with the Contract Documents.
(c) All work has been completed in accordance with Contract Documents.
(d) Equipment and systems have been cleaned, tested and started up in
accordance with the Contract Documents and are operational.
(e) All Closeout Submittals required by Paragraph 9.3 have been properly
made.
(f) Work is fully completed and ready for final inspection.
9.4.2 The Architect and the Owner shall make an inspection to verify the status
of completion within a reasonable time after receipt of the Contractor's
certification required by Paragraph 9.4.1.
9.4.3 If the Owner and the Architect determine that any of the Work is
incomplete or defective, the Architect shall promptly notify the
Contractor, in writing, of such incomplete or defective Work, itemizing
and describing such remaining items with reasonable particularity. The
Contractor shall immediately complete all items and remedy all stated
deficiencies, after which the Contractor shall send another written
certification to the Owner and the Architect that the Work is fully
complete. The Architect shall promptly reinspect the Work.
9.4.4 When the Owner and Architect determine that the entire work has been
fully and properly completed in accordance with the Contract Documents,
the Architect shall give written notice of final completion to the Owner
and the Contractor.
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
Work.
10.2 SAFETY OF PERSONS AND PROPERTY
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10.2.1 The Contractor shall take all reasonable precautions for the safety of,
and shall provide all reasonable protection to prevent damage, injury or
loss to:
1. All employees and subcontractors and subcontractors and their
employees of the Project or performing the Work and all other
persons who may be affected thereby;
2. All the Work and all materials and equipment to be incorporated
therein, whether in storage on or off the site, under the care,
custody or control of the Contractor or any of his
Subcontractors or sub-subcontractors; and
3. Other property at the site or adjacent thereto, including trees,
shrubs, lawns, walks, pavements, relocation or replacement in
the course of construction.
10.2.2 The Contractor shall give all notices and comply with all applicable
laws, ordinances , rules regulations and lawful orders of any public
authority bearing on the safety of persons or property or their
protection from damage, injury or loss. Specifically but without
limitation, Contractor and all of his Subcontractors shall thoroughly
familiarize themselves with all requirements of Public Law 91-956 enacted
by Congress, December 29, 1970, cited as the "Occupational Safety and
Health Act of 1970", and all amendments thereto, commonly referred to as
OSHA, and it shall be the responsibility of the Contractor to fully
enforce and comply with all of the provisions of this Act.
10.2.3 The Contractor shall erect and maintain, as required by existing
conditions and progress of the Work, all 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 utilities.
10.2.4 When the use or storage of explosives or other hazardous materials or
equipment is necessary for the execution of the Work, the Contractor
shall exercise the utmost care and shall carry on such activities under
the supervision of properly qualified personnel.
10.2.5 The Contractor shall promptly remedy all damage or loss to any property
referred to in this Paragraph 10.2 caused in whole or in part by the
Contractor, any Subcontractor, any Sub-subcontractor, or anyone directly
or indirectly employed by any of them, or by anyone for whose acts any of
them may be liable and for which the Contractor is responsible under
Paragraph 10.2.1, except damage or loss attributable solely to the
negligent acts or omissions of the Owner or Architect or anyone directly
or indirectly employed by either of them, or by anyone for whose acts
either of them may be liable. The foregoing obligations of the Contractor
are in addition to his obligations under Paragraph 4.1.6.
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10.2.6 The Contractor shall designate a responsible member of his 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 the Architect.
10.2.7 The Contractor shall not load or permit any part of the Work to be loaded
so as to endanger its safety.
10.3 EMERGENCIES
10.3.1 In any emergency affecting the safety of persons or property, the
Contractor shall act at his discretion to prevent threatened damage,
injury or loss.
ARTICLE 11.
INSURANCE
---------
11.1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 Before commencing the Work, Contractor shall have in effect and maintain,
until completion and final acceptance of the Work, all insurance required
under this Paragraph 11.1. Such insurance shall name Owner as an
additional insured and shall be carried with companies duly qualified to
do business in the State in which the Project is located and acceptable
to Owner, the Contractor shall furnish to Owner copies of Certificates of
Insurance of all such policies. Such certificates shall bear the
endorsement that they are not to be cancelled, changed or permitted to
lapse until thirty (30) days after Owner has received written notice as
evidenced by return receipt of registered or certified mail, and it is
agreed further that as to lapsing such notice will not be valid if mailed
more than thirty-five (35) days prior to the proposed expiration date of
the policy. Such notice must be sent to Owner as indicated elsewhere in
the General Conditions and be clearly labeled on outside of the envelope
"INSURANCE CANCELLATION". Contractor shall require each Subcontractor to
provide coverage adequate to protect Subcontractor and its employees.
Upon request, Contractor shall deliver Contractor's and/or any
Subcontractor's insurance policies to Owner for review. If the terms of
coverage of such policies are unacceptable to Owner, Contractor and/or
Subcontractor shall revise its coverage or obtain additional coverage as
reasonably requested by Owner. Owner's approval of Contractor's and any
Subcontractor's insurance shall not relieve or limit their liability
under the Contract Documents. In the event of the failure of Contractor
to furnish and maintain such insurance, then Owner shall have the right,
but not the obligation, to take out and maintain such insurance for and
in the name of Contractor and Contractor shall pay the cost thereof and
furnish all necessary information to permit Owner to take out and
maintain such insurance for the account of Contractor. Contractor shall
not allow any Subcontractor to commence work on its subcontract until all
such insurance required of Subcontractor has been obtained.
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11.1.2 Contractor shall purchase and maintain such insurance as will protect it
from claims set forth below which may arise out of or result from
Contractor's operations under the Contract Documents, whether such
operations be by Contractor or by any Subcontractor or by anyone directly
or indirectly employed by any of them, or by anyone for whose acts any of
them may be liable:
(a) Claims under Workers' or Workmen's Compensation, disability benefit
and other similar employee benefit acts;
(b) Claims for damages because of bodily injury, occupational sickness or
disease, or death of his employees;
(c) Claims for damages because of bodily injury, sickness or disease, or
death of any person other than its employees;
(d) Claims for damages insured by usual personal injury liability
coverage which are sustained (i) by any person as a result of an offense
directly or indirectly related to the employment of such person by
Contractor, or (ii) by any other person;
(e) Claims for damages, other than to the Work itself, because of injury
to or destruction of tangible property, including loss of use resulting
therefrom; and
(f) Claims for damages because of bodily injury or death of any person or
property damages arising out of the ownership, maintenance or use of any
motor vehicle.
11.1.3 The liability insurance required by this Paragraph 11.1 shall be on a
comprehensive basis including:
(a) Premises - Operations (including X-C-U);
(b) Independent contractor's protection;
(c) Products and completed operations, which must be maintained for one
(1) year commencing with the issuance of the final Certificate of
Payment;
(d) Contractual, including specified provision for the Contractor's
obligations under Subparagraph 4.16;
(e) Owned, non-owned and hired motor vehicles; and
(f) Broad form coverage for property damage.
11.1.4 The insurance required in this Paragraph 11.1 shall be in not less than
the following amounts:
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(a) Workers' Compensation:
(i) Workers' or Workmen's Compensation - maximum permitted by
statute, unlimited, if permitted;
(ii) Employer's liability -- $100,000.
(b) Commercial General Liability:
Bodily injury and property damage having a combined single limit of
$5,000,000 and including the following coverage:
(i) Personal Injury;
(ii) Independent contractors;
(iii) Products and completed operations, which must be maintained for
one (1) year commencing with the issuance of the final certificate of
payment;
(iv) Contractual liability;
(v) Umbrella liability coverage in the amount of $10,000,000.
(c) Automobile Liability:
(i) Bodily injury and death -- $5,000,000/$100,000;
(ii) Property damage -- $500,000.
11.2 OWNER'S LIABILITY INSURANCE
11.2.1 Owner shall be responsible for purchasing and maintaining its own
liability insurance and, at its option, may purchase and maintain such
insurance as will protect it against claims which may arise from
operations under the Contract Documents.
11.3 PROPERTY INSURANCE
11.3.1 Unless otherwise provided, Contractor shall purchase and maintain
property insurance upon the entire Work and the Project site in the full
amount of the Contract Sum, as adjusted pursuant to the terms of the
Contract Documents. This insurance shall include the interests of Owner,
Contractor, Subcontractors and Sub-subcontractors in the Work and shall
insure against the perils of fire and extended coverage and shall include
"all risk" insurance for physical loss or damage. If the insurance which
Contractor will maintain contains deductibles, whichever party that has
experienced the loss shall pay the deductibles for any loss which is
subject to said deductibles and as a result is not
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recoverable from an insurance carrier. Such certificates shall bear the
endorsement that they are not to lapse until thirty (30) days after Owner
and Lender have received written notice as evidenced by return receipt of
registered or certified mail.
11.3.2 Any loss insured under Subparagraph 11.3.1 and 11.3.2 is to be adjusted
with Contractor and made payable to Contractor as trustee for the
insureds, as their interests may appear, subject to the requirements of
any applicable mortgagee clause and of Subparagraph 11.3.8. Contractor
shall pay each Subcontractor a just and equitable share of any insurance
monies received by Contractor, and by appropriate agreement, written
where legally required for validity, shall require each Subcontractor to
make payments to its subcontractors in similar manner.
11.3.3 Contractor shall file a Certificate of Insurance describing Contractor's
insurance coverage provided for hereunder with Owner before an exposure
to loss may occur.
11.3.4 If Owner requests in writing that insurance for risks other than those
described in Subparagraphs 11.3.1 and 11.3.2 be included in the property
insurance policy, Contractor shall, if possible, include such insurance,
and the cost thereof shall be charged to Owner by appropriate Change
Order.
11.3.5 Owner, Contractor, and all Subcontractors waive all rights against (a)
each other and Subcontractors, sub-subcontractors, agents and employees
each of the other, and (b) Architect and separate contractors, if any,
and their subcontractors, sub-subcontractors, agents and employees, for
damages caused by fire or other perils to the extent covered by insurance
obtained pursuant to this Paragraph 11.3 or any other property insurance
applicable to the Work, except such rights as they may have to the
proceeds of such insurance held by Owner as trustee. The foregoing waiver
afforded Architect, its agents and employees shall not extend to the
liability of Architect, its agents or employees arising out of (a) the
preparation or approval of maps, drawings, opinions, reports, surveys,
Change Orders, designs or specifications, or (b) the giving of or the
failure to give directions or instructions by Architect, its agents or
employees provided such giving or failure to give is the primary cause of
the injury or damage. Owner or Contractor, as appropriate, shall require
of Architect, separate contractors, Subcontractors and sub-subcontractors
by appropriate written agreements, similar waivers each in favor of all
other parties enumerated in this Subparagraph 11.3.6.
11.3.6 If, after such loss, no other special agreement is made, replacement of
damaged work shall be covered by an appropriate Change Order.
11.3.7 Contractor, as trustee, shall have power to adjust and settle any loss
with the insurers.
11.3.8 If Owner finds it necessary to occupy or use a portion or portions of the
Work prior to substantial completion thereof, such occupancy shall not
commence prior to a time to which the insurance company or companies
providing the property insurance have consented by endorsement to the
policy or policies. This insurance shall not be cancelled
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or lapsed on account of such partial occupancy. Consent of the insurance
company or companies to such occupancy or use shall not be unreasonably
withheld.
11.3.9 Nothing in this Paragraph however, shall alter the risk of loss,
excluding loss or damage resulting from faulty design, of all
improvements to be constructed and materials and equipment to be used in
the Work, which shall remain with and upon the Contractor until the Work
has been fully completed and accepted by way of issuance of final payment
to Contractor. Without limiting this liability, the Contractor shall be
entitled to use the proceeds of insurance obtained under this Paragraph
to effect repairs to and replacements of the Work in accordance with the
foregoing subparagraph.
11.4 LOSS OF USE INSURANCE
11.4.1 Owner, at its option, may purchase and maintain such insurance as will
insure it against loss of use of its property due to fire or other
hazards, however caused. Owner waives all rights of action against
Contractor for loss of use of Owner's property, including consequential
losses due or fire or other hazards, however caused, to the extent
covered by insurance under this Subparagraph 11.4.1.
11.5 WRAP-UP
11.5.1 In lieu of the insurance requirements set forth in Paragraphs 11.1.
through 11.3 hereof, Owner shall have the right to purchase "Wrap-Up"
insurance for the Project to protect the interest of Owner, Contractor,
any separate contractor and all Subcontractors. In such event, the
Contract Sum shall be reduced to reflect the total amount included
therein to compensate Contractor and all Subcontractors for the insurance
coverage which would have been required under Paragraph 11.1 hereof.
ARTICLE 12.
CHANGES IN THE WORK AND CLAIMS
12.1 CHANGE ORDERS
12.1.1 A Change Order is a written order to the Contractor signed by the Owner
and the Architect, issued after execution of the Contract, authorizing a
change in the Work or an adjustment in the Contract Sum or the Contract
Time. The Contract Sum and the Contract Time may be changed only by
Change Order. A Change Order signed by the Contractor indicates his
agreement therewith, including the adjustment in the Contract Sum or the
Contract Time; provided, however, that the Contractor shall be obligated
to proceed with any duly executed Change Order regardless of whether it
is signed by him or not.
12.1.2 The Owner, without invalidating the Contract, may order changes in the
Work within the general scope of the Contract consisting of additions,
deletions or other revisions, the
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Contract Sum and the Contract Time being adjusted accordingly. All such
changes in the Work shall be authorized by Change Order, and shall be
performed under the applicable conditions of the Contract Documents.
12.1.3 Upon issuance of a Change Order signed by Owner and Architect the
Contractor shall proceed promptly with the Changed Work notwithstanding
any disagreement regarding the resulting adjustments to the Contract Sum
or Contract Time. In such case, the Contract Sum and Contract Time shall
be adjusted unilaterally by the amounts shown in the Change Order,
subject to any reservation of rights regarding such dispute preserved by
written notice of claim by Contractor (pursuant to Paragraph 12.5) to
Owner and Architect prior to proceeding with the work in question.
12.1.4 The cost or credit to the Owner resulting from a change in the Work shall
be determined in one or more of the following ways:
(1) By mutual acceptance of a lump sum properly itemized and
supported by sufficient substantiating data to permit evaluation;
(2) By unit prices stated in the Contract Documents or subsequently
agreed upon;
(3) By cost to be determined in a manner agreed upon by the parties
and a mutually acceptable fixed or percentage fee; or
(4) By the method provided in Subparagraph 12.1.4.
(5) The cost or credit to the Owner resulting from a change in the
Work, or extra work, not covered by unit prices, shall be based on
the following percentages added to material and labor costs:
Percentage allowance to the Contractor for overhead (including Bond
Premiums), and profit for extra work performed by Contractor with his
own forces shall be ten (10%) percent. Percentage allowance to the
Contractor for overhead (including Bond Premiums) and profit for
extra work performed by the Contractor's Subcontractor and supervised
by the Contractor shall be five percent (5%).
12.1.5 If none of the methods set forth in Clauses 12.1.4(1), 12.1.4(2),
12.1.4(3) or 12.1.4(4) is agreed upon, the Contractor, provided he
receives a written order signed by the Owner, shall promptly proceed with
the Work involved. The cost of such Work shall then be determined by the
Architect on the basis of the reasonable expenditures and savings of
those performing the Work attributable to the change, including, in the
case of an increase in the Contract Sum, a reasonable allowance for
overhead and profit. In such case, and also under Subparagraphs 12.1.4(3)
and 12.1.4(4) above, the Contractor shall keep and present, in such form
as the Architect may prescribe, an itemized accounting together with
appropriate supporting data for inclusion in a Change Order. Unless
otherwise provided in the Contract Documents, cost shall be limited to
the following: cost of
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materials, including sales tax and cost of delivery; cost of labor,
including social security, old age and unemployment insurance, and fringe
benefits required by agreement or custom; workers' or workmen's
compensation insurance; bond premiums; rental value of equipment and
machinery; and the additional costs of supervision and field office
personnel directly attributable to the change. Pending final
determination of cost to the Owner, payments on account shall be made on
the Architect's Certificate for Payment. The amount of credit to be
allowed by the Contractor to the Owner for any deletion or change which
results in a net decrease in the Contract Sum will be the amount of the
actual net cost as confirmed by the Architect. When both additions and
credits covering related Work or substitutions are involved in any one
change, the allowance for overhead and profit shall be figured on the
basis of the net increase, if any, with respect to that change.
12.1.6 If unit prices are stated in the Contract Documents or subsequently
agreed upon, and if the quantities originally contemplated are so changed
in a proposed Change Order that application of the agreed unit prices to
the quantities of Work proposed will cause substantial inequity to the
Owner or the Contractor, the applicable unit prices shall be equitably
adjusted.
12.2 CONCEALED CONDITIONS
12.2.1 Should concealed conditions encountered in the performance of the Work
below the surface of the ground or should concealed or unknown conditions
in an existing structure be materially at variance with the conditions
indicated by the Contract Documents, or should unknown physical
conditions below the surface of the ground or should concealed or unknown
conditions in an existing structure of an unusual nature, differing
materially from those ordinarily encountered and generally recognized as
inherent in work of the character provided for in this Contract, be
encountered, the Contract Sum and Contract Time, as appropriate, shall be
equitably adjusted by Change Order upon written notice of claim written
by either Owner or Contractor made within ten (10) days after the first
observance of the conditions.
12.3 MINOR CHANGES IN THE WORK
12.3.1 The Architect, with the Owner's concurrence, will have authority to order
minor changes in the Work not involving an adjustment to the Contract Sum
or an extension of the Contract Time and not inconsistent with the intent
of the Contract Documents. Such changes shall be effected by written
order, and shall be binding on the Contractor. The Contractor shall carry
out such written orders promptly.
12.4 CHANGE ORDER REQUESTS AND PROPOSALS
12.4.1 Should Owner or Architect contemplate imposition of a change to the Work,
Architect may issue a Change Order Proposal Request to the Contractor to
indicate contemplated changes in the Work. Within ten (10) days from
receipt of such a Request, the Contractor
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shall submit to the Owner through the Architect, a Change Order Proposal
indicating his estimated price and its estimated effect, if any, on the
Contract Time for such changed work.
12.5 CLAIMS
12.5.1 Other than as provided in Paragraphs 12.1 and 12.2, the Contractor shall
not be entitled to any adjustment of Contract Sum or Contract Time except
in strict compliance with the procedures and under the circumstances
hereinafter set forth.
12.5.2 Should the Contractor contend that any other written or oral order (which
shall include direction, instruction, interpretation or determination)
from the Owner or Architect or other event or occurrence shall cause a
change in the work entitling Contractor to adjustment to the Contract Sum
or Contract Time, the Contractor shall:
1. Provide a written Notice of Claim to Owner and to Architect within
ten (10) days after the occurrence of the event upon which the claim is
based. Such Notice of Claim must clearly identify the order or event
which is relied upon and contain a clear statement of why it constitutes
a basis for adjustment.
2. Provide a written statement of claim to Owner and to Architect within
twenty (20) days after the occurrence of the event, which statement shall
include a clear, concise recital of the basis upon which the claim is
asserted, including a designation of the provision or provisions in the
Contract Documents on which the claim is based and the amount of time and
compensation claimed. All costs, expenses or damages and extensions of
time claimed as a result of this alleged change shall be described in
reasonable detail under the circumstances together with complete
supporting documentation.
3. To the extent that any adjustment to the Contract Time is sought, the
Contractor shall also fully comply with the requirements of Subparagraph
7.3.5.
12.5.3 Upon receiving a Statement of Claim, the Architect shall review any
timely claim submitted by the Contractor within a reasonable time. In
conducting this review, the Architect shall have the right to require the
Contractor to submit such additional or supporting documents, data and
other information as the Owner and/or Architect may require, and the
failure to submit such additional documents, data or other information
within fifteen (15) days following written request shall be deemed a
waiver of the claim. Upon completion of such review, the Architect, in
consultation with Owner, shall issue a Change Order amending the Contract
Sum or Contract Time or both as may be found proper. If the Contractor or
Owner disputes the determination made by the Architect as a condition
precedent to any further action to resolve such dispute, such party must
notify the other party and Architect in writing within five (5) days
following receipt of the decision of such dispute and permit Architect
fifteen (15) additional days to reconsider and, if it deems it
appropriate, modify its decision.
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12.5.4 The failure of the Contractor to assert any claim within the time limits
prescribed herein or in the form or manner precisely as required hereby
shall be deemed a material prejudice to the interests of the Owner and
shall constitute an absolute waiver of the claim and the right to file or
thereafter prosecute the same.
12.6 LIMITATION OF ENTITLEMENT
12.6.1 Except as provided in Paragraphs 12.1, 12.2 and 12.5, no order, statement
or conduct of the Owner or the Architect shall entitle the Contractor to
any adjustment hereunder of the Contract Sum or Contract Time. Nothing in
this Article shall excuse the Contractor from proceeding with the
Contract as changed. Nothing contained in this Article 12 shall operate
to limit or extinguish any right or defense of the Owner contained
elsewhere in the Contract Documents or available at law or in equity or
constitute a waiver by the Owner of any right or defense otherwise
available.
ARTICLE 13.
UNCOVERING OF WORK AND CORRECTION OF WORK
-----------------------------------------
13.1 UNCOVERING OF WORK
13.1.1 If any portion of the Work shall be covered contrary to the request of
the Owner or Architect or to requirements specifically expressed in the
Contract Documents, it must, if required in writing by the Owner or the
Architect, be uncovered for his observation and shall be removed and
replaced at the Contractor's expense.
13.1.2 If any other portion of the Work has been covered which the Owner or
Architect has not specifically requested to observe prior to being
covered, the Owner or Architect may request to see such Work and it shall
be uncovered by the Contractor. If such Work be found in accordance with
the Contract Documents, the cost of uncovering and replacement shall, by
appropriate Change Order, be charged to the Owner. If such Work should be
found not in accordance with the Contract Documents, the Contractor shall
pay such costs unless it be found that this condition was caused by the
Owner or a separate contractor in which event the Owner shall be
responsible for the payment of such costs.
13.2 CORRECTION OF WORK
13.2.1 The Contractor shall promptly correct all Work rejected by the Architect
or the Owner as defective or as failing to conform to the Contract
Documents whether observed before or after Substantial Completion and
whether or not fabricated, installed or completed. The Contractor shall
bear all costs of correcting and/or replacing all such rejected Work, and
including compensation of the Architect's additional services and all
other expenses incurred by Owner as a result of such correction including
the expense of repairing and/or replacing all other Work damaged or
destroyed by such replacement and re-execution.
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13.2.2 If it is determined that within one year after the date of Substantial
Completion of the Work or designated portion thereof or within one year
after acceptance by the Owner of designated equipment or within such
longer period of time as may be prescribed by law or by the terms of any
applicable special warranty required by the Contract Documents, any of
the Work is defective or not in accordance with the Contract Documents,
the Contractor shall correct it promptly after receipt of a written
notice from the Owner to do so unless the Owner has previously given the
Contractor a written specific acceptance of such condition. This
obligation shall survive termination or final completion of the Contract.
13.2.3 The Contractor shall remove from the Site all portions of the Work which
are defective or non-conforming and which have not been corrected unless
removal is waived by the Owner.
13.2.4 If the Contractor fails to correct defective or nonconforming Work within
the time period set forth in a written notice from the Owner to the
Contractor, the Owner, after written notice to the Surety, if any, may,
but shall not be required to, correct such defective or non-conforming
Work. All costs of such corrective action incurred by the Owner plus a
fee equal to ten (10%) percent of the costs of such Work incurred by the
Owner and all out-of-pocket expenses incurred by the Owner shall be
deducted from the balance of the Contract Sum due to the Contractor, or
if that is insufficient, the Contractor shall pay the difference to the
Owner upon demand.
13.2.5 If the Contractor does not proceed with the correction of such defective
or non-conforming Work within the time fixed by written notice from the
Owner to the Contractor, the Owner may remove such defective or non-
conforming Work and may store the material or equipment at the expense of
the Contractor. If the Contractor does not pay the costs of such removal
or storage within ten (10) days thereafter, the Owner may upon ten (10)
days additional written notice sell such Work at auction or at private
sale and shall account for the net proceeds thereof after deducting all
the costs that shall have been borne by the Contractor, including
compensation for the Architect's additional services made necessary
thereby and the Owner's out-of-pocket expenses together with a fee of ten
(10%) percent of such costs. If such proceeds of the sale do not cover
all costs which the Owner shall have borne, the difference shall be
charged to the Contractor and an appropriate Change Order shall be
issued. If the unpaid balance of the Contract Sum owing the Contractor is
not sufficient to cover such amount, the Contractor shall pay the
difference to the Owner upon demand.
13.2.6 The Contractor shall bear the cost of making good all work of the Owner
or separate contractors or damaged by such correction or removal.
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13.3 ACCEPTANCE OF DEFECTIVE OR NON-CONFORMING WORK
13.3.1 If the Owner prefers to accept defective or nonconforming Work, he may do
so instead of requiring its removal and correction, in which case a
Change Order will be issued to reflect a reduction in the Contract Sum in
an amount appropriate and equitable. Such adjustment shall be effective
whether or not final payment has been made.
13.4 NON-LIMITATION OF RIGHTS
13.4.1 Nothing contained in Article 13 shall be construed to establish a period
of limitation with respect to any other obligation which Contractor has
under the Contract Documents or under any separate warranty or guaranty
required thereby, including, without limitation, Paragraph 4.6 hereof, or
under law. The establishment of the time period of one year after date of
Substantial Completion or acceptance or such longer period of time as may
be prescribed by law or by the terms of any warranty or guaranty required
by the Contract Documents relates only to the specific obligation of
Contractor to correct the Work, and has no relationship to the time
within which its obligation to comply with the Contract Documents or
applicable provisions of law may be sought to be enforced, nor to the
time within which proceedings may be commenced to establish Contractor's
liability with respect to its obligations other than specifically to
correct the Work.
ARTICLE 14.
TITLE TO WORK AND LIENS
-----------------------
14.1 UNENCUMBERED TITLE TO WORK
14.1.1 Contractor warrants and guarantees that title to all Work covered by any
Application for Payment, whether incorporated in the Project or not, will
pass to Owner free and clear of all liens, claims, security interests or
encumbrances upon the sooner of (i) the date such Work is incorporated
into the Project or (ii) the date Contractor receives payment for such
Work under Application for Payment; and that no Work covered by an
Application for Payment will have been acquired by Contractor or by any
other person performing the Work at the Project Site or furnishing
materials and equipment for the Project, subject to an agreement under
which an interest therein or an encumbrance thereon is retained by the
seller or otherwise imposed by Contractor or such other person.
14.2 LIEN RELINQUISHMENT AND REMOVAL
14.2.1 The Contractor shall fully and promptly pay and discharge any and all
commitments and claims and wholly protect and save harmless Owner and its
property against any and all demands and claims which may or could ripen
into liens or claims of lien on the Project or the property upon which it
is situated. Further, the Contractor shall not at any time suffer or
permit any lien, attachment, or other encumbrance under the laws of the
State in which the Project is situated or otherwise by any person or
persons whomsoever to
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remain on record against the Project or the property upon which it is
situated for any money due or any work done or materials furnished
relative to the Work or otherwise under the Contract Documents or by
reason of any other claim or demand against Contractor or any
Subcontractor. The Contractor shall impose similar contractual
requirements on its Subcontractors.
14.2.2 If Contractor fails to remove any mechanic's or other lien filed by
Contractor, its Subcontractors or materialmen, by satisfaction, bouncing
or otherwise, Owner may retain sufficient funds, out of any money due or
thereafter to become due to Contractor by Owner, to pay the same and to
pay all costs incurred by reason thereof, including reasonable attorneys'
fees and the cost of any xxxx xxxxx Owner may elect to obtain.
Additionally, without prejudice to any other rights or remedies and at
its sole election, Owner may pay said lien or liens and costs out of any
funds that are or that become due to Contractor and that are at any time
in the possession of the Owner.
14.3 SUBORDINATION OF RIGHTS
14.3.1 The Contractor agrees to subordinate, and agrees to have its
Subcontractors subordinate, any lien or claim or right of lien against
the Project and its real property which the Contractor and his
Subcontractors may now or hereafter have on account of construction
labor, services or materials provided under the Contract in connection
with the Work or otherwise for the Project, to any promissory note, loan
agreement, mortgage, deed to secure debt, or other instrument executed by
Owner which creates a first lien on the Project and the real property on
which it is located, including any extension, renewal, additional advance
or other modification thereof. The Contractor shall not, either in its
own right or through subrogation, assignment or otherwise, assert any
lien, privilege or claim which might prejudice or become superior to the
rights of the Lender under such first lien agreement granted by the
Owner. Contractor agrees further to execute any documentation reasonably
required by Owner or its Lender effectuating this subordination.
ARTICLE 15.
CONTRACTOR DEFAULT AND OWNER'S REMEDIES
---------------------------------------
15.1 EVENTS OF CONTRACTOR'S DEFAULT
15.1.1 An Event of Default shall occur if the Contractor shall:
(a) Fail or refuse to maintain progress of the Work in accordance
with the Contract Requirements and Construction Schedule (except to
the extent that an extension of time is allowed); or
(b) Fail to prosecute the Work or any of its components in
accordance with the Contract Documents; or
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(c) Make any material misrepresentation to the Owner (including but
not limited to misrepresentations in connection with any Application
for Payment); or
(d) Persistently or repeatedly refuse or fail to supply sufficient
properly skilled workmen or proper materials, to permit timely
prosecution of the Work; or
(e) Fail to make prompt payment to subcontractors, or for materials
or labor; or
(f) Disregard laws, ordinances, rules, regulations, or orders of any
public authority having jurisdiction; or
(g) Be adjudicated a bankrupt; or
(h) Make a general assignment for the benefit of his creditors; or
(i) Have a receiver appointed as a result of his insolvency; or
(j) Be declared in breach or default under any general Agreement of
Indemnity or other guaranty or indemnity agreement with a surety or
lender and such declaration not be revoked within ten (10) days
thereafter; or
(k) Otherwise commit a substantial violation of a provision of the
Contract Documents.
15.1.2 Upon the happening of an Event of Default by Contractor, the Owner may
elect to give the Contractor written notice thereof. The Contractor
thereafter shall cure the default as soon as possible and in any event
within seventy-two (72) hours from the giving of the notice of default.
15.2. OWNER'S REMEDIES FOR UNCURED CONTRACTOR DEFAULT
15.2.1 If the Contractor does not timely cure its default, as required by
Subparagraph 15.1.2 and upon 72 hours additional written notification to
Contractor and his surety, if any, the Owner may exercise any one or more
of the following rights and remedies:
1. Termination
-----------
(a) Owner may terminate all or any portion of this Contract and
take possession of the Work or portions thereof, including the
Contractor's materials, tools, equipment, construction
equipment, facilities, supplies, machinery and appliances used
or to be used in connection with the Project, whether on or off
the Project site, and to cause the remaining Work to be finished
by another contractor or contractors as may be
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deemed appropriate by the Owner. Such termination shall not
relieve the Contractor, his Surety, or any insurer of Contractor
of any liability or responsibility. Upon such termination and
written request by Owner, the Contractor shall assign its full
interests and rights to the Owner, in any or all of the
subcontracts and contracts with suppliers, or such part thereof
as the Owner may request, although the Owner shall not be
required to accept an assignment of, or otherwise perform under
any such contract. Owner shall be at liberty to negotiate with
and engage (for himself or for any other contractors that Owner
engaged to replace Contractor) any Subcontractors, suppliers, or
others that Contractor dealt with prior to termination.
(b) Upon termination of all or any portion of the Work, Owner
shall not be obligated to make any further payment for any
purpose thereafter until all of such Work shall have been
completed, and all subsequent costs necessary to complete the
Work (including or Architect's additional services necessitated
thereby) shall be paid for by Owner. If the cost to Owner for
completing such Work shall exceed the Contract Sum as adjusted
in accordance with the terms of the Contact Documents for the
Work or any portion thereof so terminated, such excess cost
shall be a rightful claim by Owner against Contractor and such
excess amount shall be immediately due and payable and shall be
paid by Contractor to Owner upon demand. If the cost to Owner
for completing such Work shall be less than the Contract Sum as
adjusted under the Contract Documents for the Work or any
portion thereof so terminated, Owner shall pay any amounts which
Contractor had earned with respect to such Work prior to Owner's
termination thereof; provided, however, that Owner shall in no
event pay an amount greater than the difference between the
Contract Sum for the Work or the portion thereof terminated
hereunder and the amount previously paid to Contractor.
(c) If only a portion of Work has been terminated by Owner,
Contractor agrees to perform the remainder of the Work in
conformity with the Contract Documents and in such a manner as
not to interfere with Owner or others in their performance and
completion of the portion of Work which was terminated.
(d) After the Work has been completed, the Contractor may
remove such materials, tools, plant equipment and appliances as
remain at the Property but the Owner shall not be liable for
anything that has been lost, stolen, destroyed, consumed, worn
or used.
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2. Withhold Money Due
------------------
The Owner may withhold an amount from any and all retainages and
Progress or other Payments then due or thereafter to become due
to the Contractor sufficient to cover the costs of curing such
default until the default has been corrected fully by the
Contractor or in the event same is contested by the Contractor.
3. Direct Additional Effort
------------------------
The Owner may direct the Contractor to furnish additional labor,
materials and equipment that, in the Owner's opinion, would be
sufficient to perform the Work and to expedite the delivery of
materials in order to complete the Work as required under the
Contract Documents. The additional labor, materials and
equipment shall be furnished without adjustment of the Contract
Sum by reason thereof.
4. Perform Work Without Termination
--------------------------------
The Owner may, without prejudice to any other rights or remedies
and without terminating this Agreement, and upon seventy-two
(72) hours prior written notice, perform the obligations in
respect of which the Contractor is in default (including without
limitation, obligations relating to the performance of the Work
and obligations relating to the payment of money) with its own
forces or by engaging other contractors. In such case an
appropriate Change Order shall be issued deducting from the
payments then or thereafter due the Contractor the cost of
correcting such deficiencies, including compensation for the
Architect's additional services and any attorney's fees, made
necessary by such default, neglect or failure. If the payments
then or thereafter due the Contractor are not sufficient to
cover such amount, the Contractor shall pay the difference to
the Owner upon demand.
5. Demand and Seek Specific Performance
------------------------------------
The Owner may demand that the Contractor specifically perform
the obligation in respect of which he is in default or the Owner
may seek a mandatory injunction requiring the Contractor to do
so or a prohibitory injunction restraining the Contractor from
acting contrary to this agreement or the Contract Documents,
including in each case a temporary injunction. The Owner may
obtain such injunctive relief without having to show irreparable
injury or the absence of an adequate remedy at law.
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15.3 OWNER'S REMEDIES FOR REPEATED DEFAULT
15.3.1 The Owner may exercise any one or more of the rights or remedies set
forth in Paragraph 15.2 above without first giving the Contractor or its
Surety a notice and opportunity to cure if: (a) on two or more prior
occasions the Owner shall have justifiably given the Contractor a notice
of default with respect to a similar or related default, or (b) the
Event of Default arises under bankruptcy or insolvency.
15.4 NONWAIVER OF DEFAULT REMEDIES
15.4.1 No election by Owner of or his failure to exercise any particular rights
or remedies set forth in Paragraph 15.2 and 15.3 shall operate as a
waiver of any other of such rights or remedies or prevent it from
exercising such rights or remedies, and the right of Owner to so act is
without the prejudice to its rights and without waiver of the
liabilities and obligations of Contractor or any Subcontractors, as the
case may be.
ARTICLE 16.
RIGHTS OF CONTRACTOR
--------------------
16.1 STOP WORK FOR NONPAYMENT OR SUSPENSION
16.1.1 If the entire Work should be suspended for a period of thirty (30) days
by order of Owner, or if Owner should fail to pay to Contractor within
fifteen (15) days after any payment becomes due and payable to
Contractor hereunder, through no act or fault of Contractor or any
Subcontractor or the agents or employees of either or any person
performing any of the Work under a contract with Contractor, then upon
seven (7) additional days' written notice to Owner and Architect,
Contractor may stop the Work until payment of the amount owing has been
received or the suspension order lifted.
16.1.2 The Contract Time shall be adjusted and the Contract Sum shall be
increased by the amount of the Contractor's reasonable duration and
costs of shutdown, delay and start-up, which shall be effected by
appropriate Change Order in accordance with Paragraph 12.1.
16.2 TERMINATION BY CONTRACTOR
16.2.1 If the Work is stopped for thirty (30) days by Contractor pursuant to
Paragraph 16.1, then upon seven (7) additional days' written notice to
the Owner and the Architect, the Contractor may terminate this
Agreement.
16.2.2 Upon such termination, the Contractor may recover from the Owner payment
for all Work executed and for any proven loss sustained upon any
materials, equipment, tools, construction equipment and machinery,
including reasonable profit but not any nondirect or consequential
damages.
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ARTICLE 17.
ASSIGNMENT
----------
17.1 ASSIGNMENT
17.1.1 The Contract Documents shall be binding upon the Owner and the
Contractor, their respective legal representatives, heirs, successors
and assigns. The Contractor shall not assign the whole or any part of
its obligations and undertakings under this Contract and shall not
assign any monies due or to become due hereunder without the prior
written consent of the Owner and the Lender. Any such assignment by the
Contractor of all or any part of the monies due or to become due the
Contractor under this Contract shall contain a provision to the effect
that the right of the assignee in and to any monies due or to become due
the Contractor hereunder shall be subject to the prior claims of all
persons, firms and corporations for services rendered or materials
supplies for the performance of the Work called for in this Contract and
to any and all claims of the Owner or of the Lender, or both, against
the Contractor in connection with the Contractor's performance under
this Contract and under the other Contract Documents. Any request by the
Contractor for the Owner to approve any assignment hereunder shall be
accompanied by a written statement for the Surety whereby the Surety
consents to the assignment and agrees that such assignment will not
affect the Surety's obligation under the Bond. No assignment by the
Contractor hereunder shall relieve the Contractor of any of its
obligations under this Contract or under the other Contract Documents.
The Contractor acknowledges that the Owner may assign its rights
hereunder to the Lender and the Contractor agrees to execute such
written documents to perfect such assignment.
ARTICLE 18.
DISPUTES
--------
18.1 OBLIGATION TO PROCEED AND PERFORM
18.1.1 In the event of any claim, dispute or matter in question (collectively
called a dispute), pending resolution of the dispute the Owner shall
make payments of undisputed amounts. If the Owner requires the
Contractor to proceed with the Work in a manner directed by the Owner
pending resolution of the dispute, the Contractor shall comply with the
requirement but reserving his rights to assert a request for an increase
in Contract Time or Contract Sum as may be applicable pursuant to
Article 12.
18.1.2 Contractor shall carry on the Work and adhere to the Project Schedule
during and notwithstanding all disputes or disagreements with Owner. No
Work shall be delayed or postponed pending resolution of any disputes or
disagreements, except as Contractor and Owner may otherwise agree in
writing.
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ARTICLE 19.
RIGHTS OF OWNER
---------------
19.1 CONDITIONS EXCUSING PERFORMANCE
19.1.1 The Owner shall not be responsible for any failure or inability of the
Owner to perform any of its obligations hereunder by reason of fire,
flood, strike or labor dispute (whether legal or illegal), embargo,
earthquake, work stoppages, acts of any government, acts of war,
sanctions by civil or military authorities, rebellion, civil commotion
or any other reason beyond the Owner's control, whether or not similar
to those listed, but does not include unavailability of funds.
19.2 OWNER'S RIGHT TO SUSPEND WORK
19.2.1 The Owner or the Architect may order the Contractor in writing to
suspend, delay or interrupt all or any part of the Work for such period
of time as he may determine to be appropriate for the convenience of the
Owner.
19.2.2 If the Performance of the Work is, for an unreasonable period of time,
suspended, delayed or interrupted by the Owner, an adjustment of the
Contract Sum shall be made for any increase in Contractor's costs of
performance (excluding profit) and of the Contract Time for any increase
in the time required for performance of the Work necessarily caused by
such unreasonable suspension, delay or interruption, and the Contract
modified in writing accordingly. However, no equitable adjustment shall
be made under this Subparagraph for any suspension pursuant to
Subparagraph 19.3.1, or for which an equitable adjustment is provided or
excluded under any other provision of the Contract Documents and no
adjustment shall be made to the extent that performance would have been
so suspended, delayed or interrupted by any other cause, including the
fault or negligence of the Contractor. No claim for an equitable
adjustment under this Subparagraph shall be allowed before the
Contractor shall have notified the Owner and the Architect in writing of
the act or failure to act involved and unless the claims for increased
costs or increased time required are asserted in writing to the Owner
and the Architect within ten (10) days after the termination of such
suspension, delay or interruption.
19.3 OWNER'S RIGHT TO STOP WORK
19.3.1 If the Contractor fails to correct defective Work as required by
Paragraph 13.2, or persistently fails to carry out the Work or supply
labor or materials in accordance with the Contract Documents, the Owner
may order in writing the Contractor to stop the Work, or any portion
thereof, until the cause for such order has been eliminated; however,
this right of the Owner to stop the Work shall not give rise to any duty
on the part of the Owner to exercise this right for the benefit of the
Contractor or any other person or entity.
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ARTICLE 20.
BONDS
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20.1 PERFORMANCE AND PAYMENT BONDS
20.1.1 Owner shall have the right to require Contractor to furnish Owner a
corporate surety performance bond and labor and material payment bond,
each in the amount of 100 percent of the Cost of the Work. The premiums
for these bonds will be paid by Owner. Owner shall have the right to
require Contractor to obtain corporate surety performance bonds and
labor and material payment bonds covering the work of any and
Subcontractors whose respective portion of the Work totals Seventy-Five
Thousand ($75,000.00) Dollars or more; provided that, if the
construction Lender requires such bonds from other Subcontractors,
Contractor will obtain such required bonds. The premiums for such bonds
will be paid by the Contractor. The bonds shall be executed by a surety
company authorized to engage in such business in the state in which the
Project is situated and approved by the Owner. The form of the bonds
shall be subject to the approval by Owner.
20.1.2 If the surety on any bond furnished by Contractor or any Subcontractor
is declared a bankrupt or becomes insolvent or its right to do business
is terminated in the state where the Project is located, Contractor
shall within ten (10) days thereafter substitute another bond and
Surety, both of which must be acceptable to Owner.
ARTICLE 21.
MISCELLANEOUS PROVISIONS
------------------------
21.1 GOVERNING LAW
21.1.1 The Contract shall be governed by the laws of the State of Georgia.
21.2 WRITTEN NOTICE
21.2.1 All applications for payment, notices, requests and other matters
required or permitted to be give hereunder shall be transmitted to the
addresses shown on the Owner-Contractor Agreement by letter, telex,
telegram, mailgram, cable or private commercial courier. Any party may
change the address for the giving of notices to it by giving due notice
of the new address to the other parties, provided that the address must
be a place in the United States of America where the mails and either
telexes, telegrams, mailgrams or cables are regularly received.
21.2.2 The notice shall be deemed given to the party when properly transmitted
to it at its address set forth in the Owner-Contractor Agreement.
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21.3 CLAIMS FOR DAMAGES
21.3.1 Should either party to the Contract suffer injury or damage to person or
property because of any act or omission of the other party or of any of
his employees, agents or others for whose acts he is legally liable,
claim shall be made in writing to such other party within a reasonable
time after the first observance of such injury or damage.
21.4 NO WAIVER
21.4.1 No action or failure to act or to require in any one or more instances
upon the strict performance of any one of more of the provisions of the
Contract Documents, or to exercise any right herein contained or
provided by law by the Owner, the Architect, or the Contractor shall
constitute a waiver or relinquishment of any right or duty afforded any
of them under the Contract, nor shall any such action of failure to act
constitute an approval of or acquiescence in any breach thereunder, nor
shall it be construed as a waiver of the right to subsequently demand
strict performance or exercise such rights, and the rights shall
continue unchanged and remain in full force and effect, except as may be
specifically agreed in writing.
21.5 RIGHTS AND REMEDIES
21.5.1 Except as set forth in Subparagraph 21.5.2, the duties and obligations
imposed by the Contract Documents and the rights and remedies available
thereunder shall be in addition to and not a limitation of any duties,
obligations, rights and remedies otherwise imposed or available by law.
21.5.2 The Contractor agrees that he can be compensated by money damages for
any breach of this Contract which may be committed by the Owner and
hereby agrees that no default, act, or omission of the Owner or the
Architect, (except for failure to make payments as specifically
addressed in Article 16) shall constitute a material breach of the
Contract entitling the Contractor to cancel or rescind the provisions of
this Contract or (unless the Owner shall so consent or direct in
writing) to suspend or abandon performance of all or any part of the
Work. The Contractor hereby waives any and all rights and remedies to
which he might otherwise be or become entitled, save only his right to
money damages.
21.6 SIGNS AND ADVERTISING
21.6.1 Contractor shall not place or maintain any advertising signs, bills or
posters, not shall he allow same to be placed in or about the site or
structure, except with the prior written consent of Owner.
21.7 ATTORNEY FEES
21.7.1 Should it be necessary for Owner, Lender or Contractor to employ an
attorney to enforce any part of the Contract or the Contract Documents,
then the party adjudged in breach or
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default shall pay the reasonable fee of such attorney and all other
cases related to such enforcement or defense.
21.8 AGREEMENT READ AND UNDERSTOOD
21.8.1 Each and every one of the Articles of the General Conditions and the
other Contract Documents has been read, examined, and the meaning of the
foregoing is fully understood by the Contractor.
21.9 COMPLETE AGREEMENT
21.9.1 There are no understandings between the parties to this Contractor other
than as set forth herein and in the other Contract Documents, and any
and all other verbal or written agreements or arrangements between the
parties hereto relative to any item or provision of this Contract or of
the other Contract Documents are hereby superseded and voided.
21.10 INTEREST
21.10.1 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 at
the place of the Project.
21.11 LABOR RELATIONS
21.11.1 Contractor shall use its best efforts to prevent and avoid labor
disputes and other labor problems which may affect the Work. Contractor
warrants and represents that it presently knows of no fact, the
existence of which might lead to a labor dispute which might affect the
Work.
21.11.2 In the event of any strike, picket, sympathy strike, work stoppage, or
other form of labor dispute at the Project whether directed at the
Contractor, other separate contractors, subcontractors, suppliers or
other persons, Contractor shall notwithstanding continue to perform its
Work required hereby without interruption or delay. In the event
Contractor fails to continue its Work without interruption or delay,
because of any of such events, the Owner, in addition to all other
rights it has in the Contract Documents and at law, may terminate the
Contract after giving Contractor seven (7) days written notice of its
intent to do so for reason of Contractor's failure to perform.
Additionally, if Contractor is party to one or more labor agreement,
Contractor shall take all reasonable action to avoid any Work stoppage,
and in the event of a Work stoppage, Contractor shall within twenty-four
(24) hours take all legal action permitted by such labor agreements or
by law in order to expedite resumption of Work on this Project.
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21.12 CONVENANT NOT TO XXX
21.12.1 Should the Owner elect to terminate the Agreement with the Contractor
for default as provided herein, then the Contractor covenants that he
will not file any suit or proceeding of any kind against the Owner by
reason thereof, until the Owner shall have either abandoned the Project
or completed the Contractor's Work as required under the Contract. If
the Contractor should breach this covenant not to xxx, then Contractor
shall be liable to the Owner for all costs resulting to the Owner
therefrom including, without limitation, all attorney's fees expended by
the Owner in defending said suit or proceeding, unless a positive
determination is made therein that the Contractor's termination by the
Owner was motivated by fraud and bad faith and was without justification
of any kind.
21.13 UNENFORCEABILITY OF ANY CLAUSE
21.13.1 If any clause of this Contract is held as a matter of law to be
unenforceable or unconscionable, the remainder or the Contractor shall
be enforceable without such clause.
21.14 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
21.14.1 The representations and warranties made by the parties in the Contract
Documents and pursuant thereto shall survive the consummation of the
transaction contemplated therein and continue in full force and effect
without limitation.
21.15 NOT TO BENEFIT THIRD PARTIES
21.15.1 No provisions of this Contract shall in any way inure to the benefit of
any third party (including the public at large) so as to constitute such
person a third party beneficiary of this Contract or of any one or more
of the terms and conditions of this Contract or otherwise give rise to
any cause of action in any person not a party to the Owner-Contractor
Agreement, except as provided elsewhere in the Contract Documents.
21.16 TERMINATION OR SUSPENSION BY THE OWNER FOR CONVENIENCE
21.16.1 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.
21.16.2 An adjustment shall be made for increases in the cost of performance of
the Contract, including profit on the increased cost of performance,
caused by suspension, delay or interruption. 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
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2. That an equitable adjustment is made or denied under another
provision of this Contract.
21.16.3 Adjustments made in the cost of performance may have a mutually agreed
fixed or percentage fee.
21.16.4 The Owner may terminate this Contract without cause for the Owner's
convenience at any time before a Notice to Proceed is issued to the
Contractor shall be entitled to no compensation from the Owner.
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EXHIBIT "D"
-----------
WAIVER OF LIEN
The undersigned hereby forever waives and releases any and all types and
forms of contractors', mechanics', and materialmen's lien and other liens
(including, without limitation, any liens which might otherwise have been filed
pursuant to Virginia Codes) with respect to labor or services performed or
materials furnished to the _______________________________ on that certain
construction project (the "Project"), which is being constructed by Bovis
Construction Corp., a Florida corporation ("Contractor") under the
Owner-Contractor Agreement for ABB Power Systems- office building, Chesterfield
County, Virginia dated __________, 1999 between Contractor and Xxxxx REIT,
LLC -VA I, a Georgia limited liability company, and the Land, as described in
the legal description attached hereto as Exhibit "D-1".
Should any claim of lien be filed on the real property records of any
county in the Commonwealth of Virginia by the Undersigned contrary to the terms
of this Waiver of Lien, it is hereby agreed by the undersigned that such claim
of lien shall be dissolved as a matter of record by the recordation of this
Waiver of Lien.
By execution of this Waiver of Lien, the undersigned hereby binds its
representatives, heirs and assigns or its successors and assigns, as the case
may be.
IN WITNESS WHEREOF, the undersigned has caused this Waiver of Lien to be
executed this _________ day of ________________, ______.
COMPANY NAME
Signed, sealed, and delivered By: _____________________________
in the presence of: Title: __________________________
______________________________
Unofficial Witness
______________________________
Notary Public
EXHIBIT "E"
-----------
CONTRACTOR'S AFFIDAVIT
STATE OF GEORGIA
COUNTY OF
TO: Xxxxx REIT, LLC - VA I
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
FROM: Bovis Construction Corp.
RE: Construction Agreement dated __________, 1999 between Xxxxx REIT, LLC - VA
I, (the "Owner"), and Bovis Construction Corp. (the "Undersigned"), for
construction of ABB Power Systems office building, Chesterfield County,
Virginia (the "Contract").
KNOW ALL MEN BY THESE PRESENTS
1. The undersigned hereby certifies that all work required under the Contract
has been performed in accordance with the terms thereof, that all
materialmen, subcontractors, mechanics, and laborers have been paid and
satisfied in full in accordance with the terms of the Contract and that
there are no outstanding claims of any character arising out of the
performance of the Contract which have not been paid and satisfied in full.
2. The undersigned further certifies that to the best of his knowledge and
belief there are no unsatisfied claims for damages resulting from injury or
death to any employees, subcontractors, or the public at large, arising out
of the performance of the Contract, or any suit or claims for any other
damage of any kind, nature, or description which might constitute a lien on
the property of the Owner.
3. The undersigned makes this affidavit for the purpose of receiving final
payment in the amount of $ in full settlement of all claims
arising under or by virtue of the Contract and acceptance of such payment
is acknowledge as a release of the Owner from any and all claims arising
under or by virtue of the Contract.
IN WITNESS WHEREOF, the undersigned has signed and sealed this instrument
this _______ day of ____________________,_____.
BOVIS CONSTRUCTION CORP.
BY:___________________________
TITLE:________________________
Personally appeared before the undersigned,
_________________________, who, after
being duly sworn, deposes and says that the
facts stated in the above affidavit are true.
_____________________________________________
Notary Public
(NOTARIAL SEAL)
My Commission Expires:
_____________________________________________
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EXHIBIT "F"
-----------
FINAL WAIVER OF LIEN
STATE OF _______________________
COUNT OF _______________________
Personally appeared before the undersigned Notary Public _______________,
who, having being duly sworn, deposes and says that he is the (Owner, Partner,
or Office), of (Name of Company), a corporation organized and doing business
-----------------
under the laws of the State of ______________________, and has been duly
authorized by said corporation to make this affidavit,
[a PARTNERSHIP composed of __________________________________________
a SOLE TRADER doing business as _____________________________________
with principal place of business in the City of _____________ and has
personal knowledge of the facts hereinafter set forth.]
Affiant further swears that on the _________ day of ______, 19__, said
(Name of Company), entered into a current contract with Bovis Construction
-----------------
Corp. to furnish all work specified by the Contract for work on the ABB Power
Systems office building located on Waterford Lake Drive, Chesterfield County,
Virginia, on that property further described in the legal description attached
hereto as Exhibit "D-1" (the "Property"), said Bovis Construction Corp. being
the General Contractor for the complete erection of said building.
Affiant furthers swears that all work contemplated to be performed under
this contract has been completed; that all materials and labor used in
connection therewith have been paid in full, and that there are no claims of any
nature outstanding that might become a lien or claim against the Property or any
obligation enforceable against Bovis Construction Corp. or any bond given by it
in connection with said work; that this Affidavit is given for the purpose of
assuring Xxxxx REIT, LLC - VA I of the above facts and to induce it to make
payment to Bovis Construction Corp. in accordance with terms of said contract.
Affiant further swears that employees have been paid in full at the
prevailing scale of wages for the class of work performed and for all services
rendered in connection with said contract.
SWORN TO AND SUBSCRIBED BEFORE
ME THIS ___________ DAY OF
_________________________, ___.
______________________________ ________________________________
(COMPANY OFFICIAL)
______________________________
NOTARY PUBLIC
(NOTARIAL SEAL)
My Commission expires:
______________________________
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