FIXED PRICE AND CONTRACT PAYMENTS. A. The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor’s timely performance of its obligations hereunder the fixed price stated on the Project Form. The price set forth in this paragraph shall constitute the Contract Price, which shall not be modified except by Change Order as provided in the Contract Documents. All requests by the Contractor for an increase in the Contract Price must be submitted as a written claim under Article XIII; B. Within ten (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Design Professional the Contractor’s Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor’s Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Design Professional or the Owner requests. The Contractor shall not imbalance its Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of the Contract Documents. The Contractor’s Schedule of Values will be utilized for the Contractor’s Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Design Professional and the Owner; C. The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this paragraph. 1. On or before the 1st day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment Request. Said Payment Request shall be in such format and include whatever supporting information as may be required by the Design Professional, the Owner, or both. Therein, the Contractor may request payment for ninety-five percent (95%) of that part of the Contract Price allocated on the Schedule of Values to Contract requirements to the date of the Payment Request properly provided, labor, materials, and equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if off-site storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage. 2. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor’s representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with the Contract, and that the Contractor knows of no reason why payment should not be made as requested. 3. The Design Professional, if any, shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract Documents. The Design Professional, if any, shall approve in writing the amount which, in the opinion of the Design Professional, if any, is properly owing to the Contractor. 4. The Owner shall make payment to the Contractor within thirty (30) days following the Design Professional’s written approval of each Payment Request, provided that as a condition precedent to payment, the Contractor has attested that it has paid all taxes, excises, and license fees due to the State of Idaho and its taxing units as required by Idaho Code, Title 63, Chapter 15; and provided further that the Contractor, in consideration of securing the business of erecting or constructing public works in this state, recognizing that the business in which he is engaged is of a transitory character, and that in the pursuit thereof, his property used therein may be without the state when taxes, excises, or license fees to which he is liable become payable, agrees: a. To pay promptly when due all taxes (other than on real property), excises and license fees due to the state, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or accruing during the term of this contract, whether or not the same shall be payable at the end of such term; b. That if the said taxes, excises, and licenses fees are not payable at the end of said term, but liability for the payment thereof exists, even though the same constitute liens upon his property, to secure the same to the satisfaction of the respective officers charged with the collection thereof; and c. That, in the event of his default in the payment or securing or of such taxes, excises, and license fees, to consent that the department, officer, board, or taxing unit entering into this contract may withhold for any payment due him hereunder the estimated amount of such accrued and accruing taxes, excises, and license fees for the benefit of all taxing units to which said contractor is liable. The amount of each such payment shall be the amount approved for payment by the Owner and Design Professional, if any, less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by the Contract Documents. 5. The Design Professional’s, if any, approval of the Contractor’s Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Section VII.F hereinbelow. 6. The submission by the Contractor of a Payment Request constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rights, or other claims relating to the Project site. 7. The Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner. D. When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer and suppliers the amounts they are due for the work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided herein, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future; E. Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract Documents; F. The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or all of the amount previously paid to the Contractor due to: 1. The quality of a portion, or all, of the Contractor’s work not being in accordance with the requirements of this Contract; 2. The quantity of the Contractor’s work not being as represented in the Contractor’s Payment Request, or otherwise; 3. The Contractor’s rate of progress being such that, in the Owner’s opinion, Substantial or Final Completion, or both, may be inexcusably delayed; 4. The Contractor’s failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor’s Project-related obligations including, but not limited to, subcontractors, laborers, and material and equipment suppliers; 5. Claims made, or likely to be made, against the Owner or its property; 6. Loss caused by the Contractor; 7. The Contractor’s failure or refusal to perform any of its obligations to the Owner; 8. Failure of the Contractor to pay taxes as required by Idaho Code, Title 63, Chapter 15; 9. Contractor’s failure to properly inventory and/or store materials on site. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this paragraph, the Contractor shall promptly comply with such demand; G. If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days written notice of its intent to cease work to the Owner. Any payment not made within thirty (30) days after the date due shall bear interest at the rate computed by the State Treasurer in compliance with Section 00-00-000, Idaho Code; H. When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Design Professional, if any, in writing and shall furnish to the Owner and Design Professional a listing of those matters yet to be finished. The Owner and Design Professional will thereupon conduct an inspection to confirm that the work is in fact substantially complete. Upon its confirmation that the Contractor’s work is substantially complete, the Design Professional, if any, will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial Completion. If the Owner or Design Professional, through its inspection, fails to find that the Contractor’s work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon completion of equipment testing, Owner training, delivery and approval of O&M manuals, project punch list completion, and project acceptance by the Owner, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred percent (100%) of the Contract Price less any amounts attributable to liquidated damages, together with the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims; I. When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Design Professional thereof in writing. Thereupon, the Owner or Design Professional will perform a final inspection of the Project. If the Owner or Design Professional confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Owner or Design Professional will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner or Design Professional is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor’s final payment;
Appears in 5 contracts
Samples: Fixed Price Construction Contract, Fixed Price Construction Contract, Fixed Price Construction Contract
FIXED PRICE AND CONTRACT PAYMENTS. A. (A) The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor’s 's timely performance of its obligations hereunder the fixed price stated on the Project Formof Two Hundred Twenty Thousand Three Hundred Twenty- Eight and 69/100 Dollars ($220,328.69). The price set forth in this paragraph Subparagraph 7(A) shall constitute the Contract Price, which shall not be modified except by Change Order as provided in this Contract. This fixed price above is based on the Contract Documentsquantities indicated based on the actual scope of the project as shown on the construction plans. All requests by Should the quantities of any of the items of the work as listed in the executed Proposal and Bid Form be increased, the Contractor for an increase shall perform the additional work at the unit bid prices submitted. Should the quantities of any of the items of the work as listed in the Contract executed Proposal and Bid Form be decreased, the Fixed Price must shall be submitted reduced accordingly based on the above unit bid prices and the Contractor shall make no claim for anticipated profits or lost overhead for any decrease in quantities. Payments will be made on actual quantifies installed, as a written claim under Article XIIImeasured in place;
B. (B) Within ten (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Design Professional the Contractor’s 's Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor’s 's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Design Professional or the Owner requests. The Contractor shall not imbalance its Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of the Contract Documentsthis Contract. The Contractor’s 's Schedule of Values will be utilized for the Contractor’s 's Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Design Professional and the Owner;
C. (C) The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this paragraph.
1Paragraph 7. On or before the 1st day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment RequestRequest for the period ending the 25th day of the month to the following: Xxxx Xxxx – Facilities Director Collin County Construction and Projects 0000 Xxxxxxxxx Xxx. Said McKinney, TX 75071 In accordance with the Texas Prompt Payment Request Act and the Owner's receipt of a properly submitted and correct Application for Payment, and the issuance of a Certificate for Payment, the Owner shall make payment to the Contractor, in the amount approved by the Owner less 5% retainage. Such payment shall be adjusted for work that is incomplete or not in such format and include whatever supporting information as may be required by accordance with the Design Professional, the OwnerContract Documents, or both. Thereinthat is the subject of a separate contract, or subcontract or supplier claim or lien against the Contractor may request or the payment bonds for ninety-five percent (95%) of that part of the Contract Price allocated on the Schedule of Values to Contract requirements project. Notwithstanding anything herein to the date of the Payment Request properly providedcontrary, labor, materials, and Contractor shall not be paid for equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if off-site storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage.
2until after installation. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor’s 's representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with the this Contract, and that the Contractor knows of no reason why payment should not be made as requested.
3. The Design ProfessionalThereafter, if any, the Owner shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract Documentsthis Contract. The Design Professional, if any, Owner shall approve in writing the amount which, in the opinion of the Design Professional, if anyOwner, is properly owing to the Contractor.
4. The Owner shall make payment to the Contractor within thirty (30) days following the Design Professional’s written approval of each Payment Request, provided that as a condition precedent to payment, the Contractor has attested that it has paid all taxes, excises, and license fees due to the State of Idaho and its taxing units as required by Idaho Code, Title 63, Chapter 15; and provided further that the Contractor, in consideration of securing the business of erecting or constructing public works in this state, recognizing that the business in which he is engaged is of a transitory character, and that in the pursuit thereof, his property used therein may be without the state when taxes, excises, or license fees to which he is liable become payable, agrees:
a. To pay promptly when due all taxes (other than on real property), excises and license fees due to the state, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or accruing during the term of this contract, whether or not the same shall be payable at the end of such term;
b. That if the said taxes, excises, and licenses fees are not payable at the end of said term, but liability for the payment thereof exists, even though the same constitute liens upon his property, to secure the same to the satisfaction of the respective officers charged with the collection thereof; and
c. That, in the event of his default in the payment or securing or of such taxes, excises, and license fees, to consent that the department, officer, board, or taxing unit entering into this contract may withhold for any payment due him hereunder the estimated amount of such accrued and accruing taxes, excises, and license fees for the benefit of all taxing units to which said contractor is liable. The amount of each such payment shall be the amount approved for payment by the Owner and Design Professional, if any, less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by the Contract Documents.
5. The Design Professional’s, if any, approval of the Contractor’s Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Section VII.F hereinbelow.
6this Contract. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers and other person or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rightsentity who has, or other claims relating to might have a claim against the Project site.
7Owner for the work done on the Owner’s property. The Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner.;
D. (D) When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer laborers and suppliers the amounts they are due for the work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided hereinwithin 10 days after the Contractor’s receipt of payment, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future;
E. (E) Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract Documentsthis Contract;
F. (F) The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or all of the amount previously paid to the Contractor due to:
(1. ) The quality of a portion, or all, of the Contractor’s 's work not being in accordance with the requirements of this Contract;
(2. ) The quantity of the Contractor’s 's work not being as represented in the Contractor’s 's Payment Request, or otherwise;
(3. ) The Contractor’s 's rate of progress being such that, in the Owner’s 's opinion, Substantial Completion or Final Completionfinal completion, or both, may be inexcusably delayed;
(4. ) The Contractor’s 's failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor’s 's Project-related obligations including, but not limited to, subcontractors, laborers, laborers and material and equipment suppliers;
(5. ) Claims made, or likely to be made, against the Owner or its property;
(6. ) Loss caused by the Contractor;
(7. ) The Contractor’s 's failure or refusal to perform any of its obligations to the Owner;
8. Failure of the Contractor to pay taxes as required by Idaho Code, Title 63, Chapter 15;
9. Contractor’s failure to properly inventory and/or store materials on site. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this paragraphSubparagraph 7(F), the Contractor shall promptly comply with such demand;
G. (G) If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days days' written notice of its intent to cease work to the Owner. Any payment not made within thirty .
(30H) days after the date due shall bear interest at the rate computed by the State Treasurer in compliance with Section 00-00-000, Idaho Code;
H. When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Design Professional, if any, in writing and shall furnish to the Owner and Design Professional a proposed punch list listing of those matters yet to be finished. The Owner and Design Professional will thereupon conduct an inspection to confirm that the work is in fact substantially complete and shall upon determining that the work is substantially complete, shall review and revise, if necessary, the proposed punch list. Upon its confirmation that the Contractor’s work is substantially complete, the Design Professional, if any, Owner will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial CompletionCompletion and furnish the final punch list of items that need to be completed for final completion. If the Owner or Design ProfessionalOwner, through its inspection, fails to find that the Contractor’s 's work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon completion of equipment testing, Owner training, delivery and approval of O&M manuals, project punch list completion, and project acceptance by the OwnerSubstantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred ninety percent (10090%) of the Contract Price less any amounts attributable to liquidated damages, together with and less the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims;
I. (I) When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Design Professional thereof in writing. Thereupon, the Owner or Design Professional will perform a final inspection of the Project. If the Owner or Design Professional confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Owner or Design Professional will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner or Design Professional is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor’s 's final payment;
(J) If the Contractor fails to achieve final completion within 30 days of (i) Substantial Completion, or (ii) the Owner’s delivery to the Contractor of the punch list described in Subparagraph 7(H) herein, whichever is later, the Contractor shall pay the Owner the sum of One Hundred Dollars ($100.00) per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be unexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages; .
(K) Prior to being entitled to receive final payment, and as a condition precedent thereto, the Contractor shall furnish the Owner, in the form and manner required by Owner, if any:
(1) An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers, or other third parties in connection with the Project, have been paid or otherwise satisfied;
(2) If applicable, consent(s) of surety to final payment;
(3) All product warranties, operating manuals, instruction manuals and other record documents, drawings (including as-built drawings), satisfactory test results and things customarily required of the Contractor, or expressly required herein or set forth in the bid documents, as a part of or prior to Project closeout;
(L) The final Certificate for Payment will not be issued until all such warranties and guaranties have been received and accepted by the Owner, and a Certificate of Acceptance is issued.
Appears in 1 contract
Samples: Construction Contract
FIXED PRICE AND CONTRACT PAYMENTS. A. (A) The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor’s 's timely performance of its obligations hereunder the fixed price stated on the Project Formof three hundred nine thousand eight hundred thirty-two dollars and zero cents ($309,832.00). The price set forth in this paragraph Subparagraph 7(A) shall constitute the Contract Price, which shall not be modified except by Change Order as provided in this Contract. This fixed price above is based on the Contract Documentsquantities indicated based on the actual scope of the project as shown on the construction plans. All requests by Should the quantities of any of the items of the work as listed in the executed Proposal and Bid Form be increased, the Contractor for an increase shall perform the additional work at the unit bid prices submitted. Should the quantities of any of the items of the work as listed in the Contract executed Proposal and Bid Form be decreased, the Fixed Price must shall be submitted reduced accordingly based on the above unit bid prices and the Contractor shall make no claim for anticipated profits or lost overhead for any decrease in quantities. Payments will be made on actual quantifies installed, as a written claim under Article XIIImeasured in place;
B. (B) Within ten (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Design Professional the Contractor’s 's Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor’s 's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Design Professional or the Owner requests. The Contractor shall not imbalance its Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of the Contract Documentsthis Contract. The Contractor’s 's Schedule of Values will be utilized for the Contractor’s 's Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Design Professional and the Owner;
C. (C) The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this paragraph.
1Paragraph 7. On or before the 1st day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment RequestRequest for the period ending the 25th day of the month to the following: Xxxx Xxxx Director of Facilites Collin County 0000 Xxxxxxxxx Xxx. Said McKinney, TX 75071 In accordance with the Texas Prompt Payment Request Act and the Owner's receipt of a properly submitted and correct Application for Payment, and the issuance of a Certificate for Payment, the Owner shall make payment to the Contractor, in the amount approved by the Owner less 5% retainage. Such payment shall be adjusted for work that is incomplete or not in such format and include whatever supporting information as may be required by accordance with the Design Professional, the OwnerContract Documents, or both. Thereinthat is the subject of a separate contract, or subcontract or supplier claim or lien against the Contractor may request or the payment bonds for ninety-five percent (95%) of that part of the Contract Price allocated on the Schedule of Values to Contract requirements project. Notwithstanding anything herein to the date of the Payment Request properly providedcontrary, labor, materials, and Contractor shall not be paid for equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if off-site storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage.
2until after installation. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor’s 's representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with the this Contract, and that the Contractor knows of no reason why payment should not be made as requested.
3. The Design ProfessionalThereafter, if any, the Owner shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract Documentsthis Contract. The Design Professional, if any, Owner shall approve in writing the amount which, in the opinion of the Design Professional, if anyOwner, is properly owing to the Contractor.
4. The Owner shall make payment to the Contractor within thirty (30) days following the Design Professional’s written approval of each Payment Request, provided that as a condition precedent to payment, the Contractor has attested that it has paid all taxes, excises, and license fees due to the State of Idaho and its taxing units as required by Idaho Code, Title 63, Chapter 15; and provided further that the Contractor, in consideration of securing the business of erecting or constructing public works in this state, recognizing that the business in which he is engaged is of a transitory character, and that in the pursuit thereof, his property used therein may be without the state when taxes, excises, or license fees to which he is liable become payable, agrees:
a. To pay promptly when due all taxes (other than on real property), excises and license fees due to the state, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or accruing during the term of this contract, whether or not the same shall be payable at the end of such term;
b. That if the said taxes, excises, and licenses fees are not payable at the end of said term, but liability for the payment thereof exists, even though the same constitute liens upon his property, to secure the same to the satisfaction of the respective officers charged with the collection thereof; and
c. That, in the event of his default in the payment or securing or of such taxes, excises, and license fees, to consent that the department, officer, board, or taxing unit entering into this contract may withhold for any payment due him hereunder the estimated amount of such accrued and accruing taxes, excises, and license fees for the benefit of all taxing units to which said contractor is liable. The amount of each such payment shall be the amount approved for payment by the Owner and Design Professional, if any, less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by the Contract Documents.
5. The Design Professional’s, if any, approval of the Contractor’s Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Section VII.F hereinbelow.
6this Contract. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers and other person or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rightsentity who has, or other claims relating to might have a claim against the Project site.
7Owner for the work done on the Owner’s property. The Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner.;
D. (D) When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer laborers and suppliers the amounts they are due for the work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided hereinwithin 10 days after the Contractor’s receipt of payment, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future;
E. (E) Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract Documentsthis Contract;
F. (F) The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or all of the amount previously paid to the Contractor due to:
(1. ) The quality of a portion, or all, of the Contractor’s 's work not being in accordance with the requirements of this Contract;
(2. ) The quantity of the Contractor’s 's work not being as represented in the Contractor’s 's Payment Request, or otherwise;
(3. ) The Contractor’s 's rate of progress being such that, in the Owner’s 's opinion, Substantial Completion or Final Completionfinal completion, or both, may be inexcusably delayed;
(4. ) The Contractor’s 's failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor’s 's Project-related obligations including, but not limited to, subcontractors, laborers, laborers and material and equipment suppliers;
(5. ) Claims made, or likely to be made, against the Owner or its property;
(6. ) Loss caused by the Contractor;
(7. ) The Contractor’s 's failure or refusal to perform any of its obligations to the Owner;
8. Failure of the Contractor to pay taxes as required by Idaho Code, Title 63, Chapter 15;
9. Contractor’s failure to properly inventory and/or store materials on site. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this paragraphSubparagraph 7(F), the Contractor shall promptly comply with such demand;
G. (G) If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days days' written notice of its intent to cease work to the Owner. Any payment not made within thirty .
(30H) days after the date due shall bear interest at the rate computed by the State Treasurer in compliance with Section 00-00-000, Idaho Code;
H. When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Design Professional, if any, in writing and shall furnish to the Owner and Design Professional a proposed punch list listing of those matters yet to be finished. The Owner and Design Professional will thereupon conduct an inspection to confirm that the work is in fact substantially complete and shall upon determining that the work is substantially complete, shall review and revise, if necessary, the proposed punch list. Upon its confirmation that the Contractor’s work is substantially complete, the Design Professional, if any, Owner will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial CompletionCompletion and furnish the final punch list of items that need to be completed for final completion. If the Owner or Design ProfessionalOwner, through its inspection, fails to find that the Contractor’s 's work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon completion of equipment testing, Owner training, delivery and approval of O&M manuals, project punch list completion, and project acceptance by the OwnerSubstantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred ninety percent (10090%) of the Contract Price less any amounts attributable to liquidated damages, together with and less the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims;
I. (I) When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Design Professional thereof in writing. Thereupon, the Owner or Design Professional will perform a final inspection of the Project. If the Owner or Design Professional confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Owner or Design Professional will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner or Design Professional is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor’s 's final payment;
(J) If the Contractor fails to achieve final completion within 30 days of (i) Substantial Completion, or (ii) the Owner’s delivery to the Contractor of the punch list described in Subparagraph 7(H) herein, whichever is later, the Contractor shall pay the Owner the sum of one hundred dollars and zero cents Dollars ($100.00) per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be unexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages; .
(K) Prior to being entitled to receive final payment, and as a condition precedent thereto, the Contractor shall furnish the Owner, in the form and manner required by Owner, if any:
(1) An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers, or other third parties in connection with the Project, have been paid or otherwise satisfied;
(2) If applicable, consent(s) of surety to final payment;
(3) All product warranties, operating manuals, instruction manuals and other record documents, drawings (including as-built drawings), satisfactory test results and things customarily required of the Contractor, or expressly required herein or set forth in the bid documents, as a part of or prior to Project closeout;
(L) The final Certificate for Payment will not be issued until all such warranties and guaranties have been received and accepted by the Owner, and a Certificate of Acceptance is issued.
Appears in 1 contract
Samples: Construction Contract
FIXED PRICE AND CONTRACT PAYMENTS. A. (A) The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor’s 's timely performance of its obligations hereunder the fixed price stated on the Project Formof Two Million Six Hundred Eighteen Thousand and No/100 Dollars ($2,618,000.00). The price set forth in this paragraph Subparagraph 7(a) shall constitute the Contract Price, which shall not be modified except by Change Order as provided in the Contract Documents. All requests by the Contractor for an increase in the Contract Price must be submitted as a written claim under Article XIIIthis Contract;
B. (B) Within ten (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Design Professional Architect the Contractor’s 's Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor’s 's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Design Professional Architect or the Owner requests. The Contractor shall not imbalance its it’s Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of the Contract Documentsthis Contract. The Contractor’s 's Schedule of Values will be utilized for the Contractor’s 's Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Design Professional Architect and the Owner;
C. (C) The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this paragraph.
1Paragraph 7. On or before the 1st 15th day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment RequestRequest for the period ending the 30th day of the month. Said Payment Request shall be in such format and include whatever supporting information as may be required by the Design ProfessionalArchitect, the Owner, or both. Therein, the Contractor may request payment for ninety-ninety five percent (95%) of that part of the Contract Price allocated on the Schedule of Values allocable to Contract requirements to the date of the Payment Request properly provided, labor, materials, materials and equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if off-site offsite storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage.
2. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor’s 's representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with the this Contract, and that the Contractor knows of no reason why payment should not be made as requested.
3. The Design ProfessionalThereafter, if any, the Architect shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract Documentsthis Contract. The Design Professional, if any, Architect shall approve in writing the amount which, in the opinion of the Design Professional, if anyArchitect, is properly owing to the Contractor.
4. The Owner shall make payment to the Contractor within thirty (30) days following the Design Professional’s Architect's written approval of each Payment Request, provided that as a condition precedent to payment, the Contractor has attested that it has paid all taxes, excises, and license fees due to the State of Idaho and its taxing units as required by Idaho Code, Title 63, Chapter 15; and provided further that the Contractor, in consideration of securing the business of erecting or constructing public works in this state, recognizing that the business in which he is engaged is of a transitory character, and that in the pursuit thereof, his property used therein may be without the state when taxes, excises, or license fees to which he is liable become payable, agrees:
a. To pay promptly when due all taxes (other than on real property), excises and license fees due to the state, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or accruing during the term of this contract, whether or not the same shall be payable at the end of such term;
b. That if the said taxes, excises, and licenses fees are not payable at the end of said term, but liability for the payment thereof exists, even though the same constitute liens upon his property, to secure the same to the satisfaction of the respective officers charged with the collection thereof; and
c. That, in the event of his default in the payment or securing or of such taxes, excises, and license fees, to consent that the department, officer, board, or taxing unit entering into this contract may withhold for any payment due him hereunder the estimated amount of such accrued and accruing taxes, excises, and license fees for the benefit of all taxing units to which said contractor is liable. The amount of each such payment shall be the amount approved for payment by the Owner and Design Professional, if any, Architect less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by the Contract Documents.
5this Contract. The Design Professional’s, if any, Architect's approval of the Contractor’s 's Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Section VII.F hereinbelow.
6Subparagraph 7(F) herein below. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights rights, shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rights, rights or other claims relating to the Project site.
7. The Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner.;
D. (D) When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer laborers and suppliers the amounts they are due for the work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided herein, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future;
E. (E) Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract Documentsthis Contract;
F. (F) The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion of or all of the entire amount previously paid to the Contractor due to:
(1. ) The quality of a portion, or all, of the Contractor’s 's work not being in accordance with the requirements of this Contract;
(2. ) The quantity of the Contractor’s 's work not being as represented in the Contractor’s 's Payment Request, or otherwise;
(3. ) The Contractor’s 's rate of progress being such that, in the Owner’s 's opinion, Substantial Completion or Final Completionfinal completion, or both, may be inexcusably delayed;
(4. ) The Contractor’s 's failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor’s 's Project-related obligations including, but not limited to, subcontractors, laborers, laborers and material and equipment suppliers;
(5. ) Claims made, or likely to be made, against the Owner or its property;
(6. ) Loss caused by the Contractor;
(7. ) The Contractor’s 's failure or refusal to perform any of its obligations to the Owner;
8. Failure of the Contractor to pay taxes as required by Idaho Code, Title 63, Chapter 15;
9. Contractor’s failure to properly inventory and/or store materials on site. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this paragraphSubparagraph 7(F), the Contractor shall promptly comply with such demand;
G. (G) If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days days' written notice of its intent to cease work to the Owner. Any payment not made within thirty (30) days after the date due shall bear interest at the rate computed by the State Treasurer in compliance with Section 00-00-000, Idaho Codeof one percent (1%) per month;
H. (H) When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Design Professional, if any, Architect in writing and shall furnish to the Owner and Design Professional Architect a listing of those matters yet to be finished. The Owner and Design Professional Architect will thereupon conduct an inspection to confirm that the work is in fact substantially complete. Upon its confirmation that the Contractor’s 's work is substantially complete, the Design Professional, if any, Architect will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial Completion. If the Owner or Design ProfessionalArchitect, through its inspection, fails to find that the Contractor’s 's work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon completion of equipment testing, Owner training, delivery and approval of O&M manuals, project punch list completion, and project acceptance by the OwnerSubstantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred percent (100%) of the Contract Price less any amounts attributable to liquidated damages, together with ninety-seven and one-half percent (97.5%) of the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims;
I. (I) When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Design Professional Architect thereof in writing. Thereupon, the Owner or Design Professional Architect will perform a final inspection of the Project. If the Owner or Design Professional Architect confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Owner or Design Professional Architect will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner or Design Professional Architect is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor’s 's final payment;
(J) If the Contractor fails to achieve final completion within 30 days of the date of Substantial Completion, the Contractor shall pay the Owner the sum of One Thousand and No/100 Dollars ($1000.00) per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages;
(K) Prior to being entitled to receive final payment and as a condition precedent thereto, the Contractor shall furnish the Owner, in the form and manner required by Owner, if any, with a copy to the Architect:
(1) An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers, or other third parties in connection with the Project, have been paid or otherwise satisfied;
(2) If required by the Owner, separate releases of lien or lien waivers from each subcontractor, lower tier subcontractor, laborer, supplier or other person or entity who has, or might have a claim against the Owner or the Owner's property;
(3) If applicable, consent(s) of surety to final payment;
(4) All product warranties, operating manuals, instruction manuals and other record documents, drawings and things customarily required of the Contractor, or expressly required herein, as a part of or prior to Project closeout;
(L) The Owner shall, subject to its rights set forth in Subparagraph 7(F) above, make final payment of all sums due the Contractor within ten (10) days of the Architect's execution of a final Approval for Payment.
Appears in 1 contract
Samples: Fixed Price Construction Contract
FIXED PRICE AND CONTRACT PAYMENTS. A. (A) The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor’s 's timely performance of its obligations hereunder the fixed price stated on the Project Formof One Hundred Sixty-Three Thousand, Nine Hundred Ninety-One and 84/100 Dollars ($163,991.84). The price set forth in this paragraph Subparagraph 7(A) shall constitute the Contract Price, which shall not be modified except by Change Order as provided in this Contract. This fixed price above is based on the Contract Documentsquantities indicated based on the actual scope of the project as shown on the construction plans. All requests by Should the quantities of any of the items of the work as listed in the executed Proposal and Bid Form be increased, the Contractor for an increase shall perform the additional work at the unit bid prices submitted. Should the quantities of any of the items of the work as listed in the Contract executed Proposal and Bid Form be decreased, the Fixed Price must shall be submitted reduced accordingly based on the above unit bid prices and the Contractor shall make no claim for anticipated profits or lost overhead for any decrease in quantities. Payments will be made on actual quantifies installed, as a written claim under Article XIIImeasured in place;
B. (B) Within ten (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Design Professional the Contractor’s 's Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor’s 's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Design Professional or the Owner requests. The Contractor shall not imbalance its Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of the Contract Documentsthis Contract. The Contractor’s 's Schedule of Values will be utilized for the Contractor’s 's Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Design Professional and the Owner;
C. (C) The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this paragraph.
1Paragraph 7. On or before the 1st day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment RequestRequest for the period ending the 25th day of the month to the following: Xxxx Xxxx Director of Facilities Collin County Facilities Maintenance 0000 Xxxxxxxxx Xxx. Said XxXxxxxx, TX 75071 In accordance with the Texas Prompt Payment Request Act and the Owner's receipt of a properly submitted and correct Application for Payment, and the issuance of a Certificate for Payment, the Owner shall make payment to the Contractor, in the amount approved by the Owner less 5% retainage. Such payment shall be adjusted for work that is incomplete or not in such format and include whatever supporting information as may be required by accordance with the Design Professional, the OwnerContract Documents, or both. Thereinthat is the subject of a separate contract, or subcontract or supplier claim or lien against the Contractor may request or the payment bonds for ninety-five percent (95%) of that part of the Contract Price allocated on the Schedule of Values to Contract requirements project. Notwithstanding anything herein to the date of the Payment Request properly providedcontrary, labor, materials, and Contractor shall not be paid for equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if off-site storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage.
2until after installation. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor’s 's representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with the this Contract, and that the Contractor knows of no reason why payment should not be made as requested.
3. The Design ProfessionalThereafter, if any, the Owner shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract Documentsthis Contract. The Design Professional, if any, Owner shall approve in writing the amount which, in the opinion of the Design Professional, if anyOwner, is properly owing to the Contractor.
4. The Owner shall make payment to the Contractor within thirty (30) days following the Design Professional’s written approval of each Payment Request, provided that as a condition precedent to payment, the Contractor has attested that it has paid all taxes, excises, and license fees due to the State of Idaho and its taxing units as required by Idaho Code, Title 63, Chapter 15; and provided further that the Contractor, in consideration of securing the business of erecting or constructing public works in this state, recognizing that the business in which he is engaged is of a transitory character, and that in the pursuit thereof, his property used therein may be without the state when taxes, excises, or license fees to which he is liable become payable, agrees:
a. To pay promptly when due all taxes (other than on real property), excises and license fees due to the state, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or accruing during the term of this contract, whether or not the same shall be payable at the end of such term;
b. That if the said taxes, excises, and licenses fees are not payable at the end of said term, but liability for the payment thereof exists, even though the same constitute liens upon his property, to secure the same to the satisfaction of the respective officers charged with the collection thereof; and
c. That, in the event of his default in the payment or securing or of such taxes, excises, and license fees, to consent that the department, officer, board, or taxing unit entering into this contract may withhold for any payment due him hereunder the estimated amount of such accrued and accruing taxes, excises, and license fees for the benefit of all taxing units to which said contractor is liable. The amount of each such payment shall be the amount approved for payment by the Owner and Design Professional, if any, less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by the Contract Documents.
5. The Design Professional’s, if any, approval of the Contractor’s Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Section VII.F hereinbelow.
6this Contract. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers and other person or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rightsentity who has, or other claims relating to might have a claim against the Project site.
7Owner for the work done on the Owner’s property. The Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner.;
D. (D) When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer laborers and suppliers the amounts they are due for the work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided hereinwithin 10 days after the Contractor’s receipt of payment, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future;
E. (E) Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract Documentsthis Contract;
F. (F) The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or all of the amount previously paid to the Contractor due to:
(1. ) The quality of a portion, or all, of the Contractor’s 's work not being in accordance with the requirements of this Contract;
(2. ) The quantity of the Contractor’s 's work not being as represented in the Contractor’s 's Payment Request, or otherwise;
(3. ) The Contractor’s 's rate of progress being such that, in the Owner’s 's opinion, Substantial Completion or Final Completionfinal completion, or both, may be inexcusably delayed;
(4. ) The Contractor’s 's failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor’s 's Project-related obligations including, but not limited to, subcontractors, laborers, laborers and material and equipment suppliers;
(5. ) Claims made, or likely to be made, against the Owner or its property;
(6. ) Loss caused by the Contractor;
(7. ) The Contractor’s 's failure or refusal to perform any of its obligations to the Owner;
8. Failure of the Contractor to pay taxes as required by Idaho Code, Title 63, Chapter 15;
9. Contractor’s failure to properly inventory and/or store materials on site. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this paragraphSubparagraph 7(F), the Contractor shall promptly comply with such demand;
G. (G) If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days days' written notice of its intent to cease work to the Owner. Any payment not made within thirty .
(30H) days after the date due shall bear interest at the rate computed by the State Treasurer in compliance with Section 00-00-000, Idaho Code;
H. When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Design Professional, if any, in writing and shall furnish to the Owner and Design Professional a proposed punch list listing of those matters yet to be finished. The Owner and Design Professional will thereupon conduct an inspection to confirm that the work is in fact substantially complete and shall upon determining that the work is substantially complete, shall review and revise, if necessary, the proposed punch list. Upon its confirmation that the Contractor’s work is substantially complete, the Design Professional, if any, Owner will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial CompletionCompletion and furnish the final punch list of items that need to be completed for final completion. If the Owner or Design ProfessionalOwner, through its inspection, fails to find that the Contractor’s 's work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon completion of equipment testing, Owner training, delivery and approval of O&M manuals, project punch list completion, and project acceptance by the OwnerSubstantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred ninety percent (10090%) of the Contract Price less any amounts attributable to liquidated damages, together with and less the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims;
I. (I) When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Design Professional thereof in writing. Thereupon, the Owner or Design Professional will perform a final inspection of the Project. If the Owner or Design Professional confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Owner or Design Professional will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner or Design Professional is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor’s 's final payment;
(J) If the Contractor fails to achieve final completion within 30 days of (i) Substantial Completion, or (ii) the Owner’s delivery to the Contractor of the punch list described in Subparagraph 7(H) herein, whichever is later, the Contractor shall pay the Owner the sum of One Hundred 00/100 Dollars ($100.00) per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be unexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages; .
(K) Prior to being entitled to receive final payment, and as a condition precedent thereto, the Contractor shall furnish the Owner, in the form and manner required by Owner, if any:
(1) An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers, or other third parties in connection with the Project, have been paid or otherwise satisfied;
(2) If applicable, consent(s) of surety to final payment;
(3) All product warranties, operating manuals, instruction manuals and other record documents, drawings (including as-built drawings), satisfactory test results and things customarily required of the Contractor, or expressly required herein or set forth in the bid documents, as a part of or prior to Project closeout;
(L) The final Certificate for Payment will not be issued until all such warranties and guaranties have been received and accepted by the Owner, and a Certificate of Acceptance is issued.
Appears in 1 contract
Samples: Construction Contract
FIXED PRICE AND CONTRACT PAYMENTS. A. (A) The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor’s 's timely performance of its obligations hereunder the fixed price stated on the Project Form. The of Eight Hundred Ninety Four Thousand and No/100 Dollars ($894,000.00).The price set forth in this paragraph Subparagraph 7(a) shall constitute the Contract Price, which shall not be modified except by Change Order as provided in the Contract Documents. All requests by the Contractor for an increase in the Contract Price must be submitted as a written claim under Article XIIIthis Contract;
B. (B) Within ten (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Design Professional Engineer the Contractor’s 's Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor’s 's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Design Professional Engineer or the Owner requests. The Contractor shall not imbalance its it’s Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of the Contract Documentsthis Contract. The Contractor’s 's Schedule of Values will be utilized for the Contractor’s 's Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Design Professional Engineer and the Owner;
C. (C) The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this paragraph.
1Paragraph 7. On or before the 1st fifteenth (15th) day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment RequestRequest for the period ending the thirtieth (30th) day of the month. Said Payment Request shall be in such format and include whatever supporting information as may be required by the Design ProfessionalEngineer, the Owner, or both. Therein, the Contractor may request payment for ninety-five percent (95%) of that part of the Contract Price allocated on the Schedule of Values allocable to Contract requirements to the date of the Payment Request properly provided, labor, materials, materials and equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if off-site offsite storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage.
2. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor’s 's representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with the this Contract, and that the Contractor knows of no reason why payment should not be made as requested.
3. The Design ProfessionalThereafter, if any, the Engineer shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract Documentsthis Contract. The Design Professional, if any, Engineer shall approve in writing the amount which, in the opinion of the Design Professional, if anyEngineer, is properly owing to the Contractor.
4. The Owner shall make payment to the Contractor within thirty (30) days following the Design Professional’s Engineer's written approval of each Payment Request, provided that as a condition precedent to payment, the Contractor has attested that it has paid all taxes, excises, and license fees due to the State of Idaho and its taxing units as required by Idaho Code, Title 63, Chapter 15; and provided further that the Contractor, in consideration of securing the business of erecting or constructing public works in this state, recognizing that the business in which he is engaged is of a transitory character, and that in the pursuit thereof, his property used therein may be without the state when taxes, excises, or license fees to which he is liable become payable, agrees:
a. To pay promptly when due all taxes (other than on real property), excises and license fees due to the state, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or accruing during the term of this contract, whether or not the same shall be payable at the end of such term;
b. That if the said taxes, excises, and licenses fees are not payable at the end of said term, but liability for the payment thereof exists, even though the same constitute liens upon his property, to secure the same to the satisfaction of the respective officers charged with the collection thereof; and
c. That, in the event of his default in the payment or securing or of such taxes, excises, and license fees, to consent that the department, officer, board, or taxing unit entering into this contract may withhold for any payment due him hereunder the estimated amount of such accrued and accruing taxes, excises, and license fees for the benefit of all taxing units to which said contractor is liable. The amount of each such payment shall be the amount approved for payment by the Owner and Design Professional, if any, Engineer less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by the Contract Documents.
5this Contract. The Design Professional’s, if any, Engineer's approval of the Contractor’s 's Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Section VII.F hereinbelow.
6Subparagraph 7(F) herein below. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights rights, shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rights, rights or other claims relating to the Project site.
7. The Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner.;
D. (D) When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer laborers and suppliers the amounts they are due for the work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided herein, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future;
E. (E) Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract Documentsthis Contract;
F. (F) The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion of or all of the entire amount previously paid to the Contractor due to:
(1. ) The quality of a portion, or all, of the Contractor’s 's work not being in accordance with the requirements of this Contract;
(2. ) The quantity of the Contractor’s 's work not being as represented in the Contractor’s 's Payment Request, or otherwise;
(3. ) The Contractor’s 's rate of progress being such that, in the Owner’s 's opinion, Substantial Completion or Final Completionfinal completion, or both, may be inexcusably delayed;
(4. ) The Contractor’s 's failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor’s 's Project-related obligations including, but not limited to, subcontractors, laborers, laborers and material and equipment suppliers;
(5. ) Claims made, or likely to be made, against the Owner or its property;
(6. ) Loss caused by the Contractor;
(7. ) The Contractor’s 's failure or refusal to perform any of its obligations to the Owner;
8. Failure of the Contractor to pay taxes as required by Idaho Code, Title 63, Chapter 15;
9. Contractor’s failure to properly inventory and/or store materials on site. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this paragraphSubparagraph 7(F), the Contractor shall promptly comply with such demand;
G. (G) If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days days' written notice of its intent to cease work to the Owner. Any payment not made within thirty (30) days after the date due shall bear interest at the rate computed by the State Treasurer in compliance with Section 00-00-000, Idaho Codeof one percent (1%) per month;
H. (H) When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Design Professional, if any, Engineer in writing and shall furnish to the Owner and Design Professional Engineer a listing of those matters yet to be finished. The Owner and Design Professional Engineer will thereupon conduct an inspection to confirm that the work is in fact substantially complete. Upon its confirmation that the Contractor’s 's work is substantially complete, the Design Professional, if any, Engineer will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial Completion. If the Owner or Design ProfessionalEngineer, through its inspection, fails to find that the Contractor’s 's work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon completion of equipment testing, Owner training, delivery and approval of O&M manuals, project punch list completion, and project acceptance by the OwnerSubstantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred ninety-seven point five percent (10097.5%) of the Contract Price less any amounts attributable to liquidated damages, together with the balance being withheld as the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims;
I. (I) When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Design Professional Engineer thereof in writing. Thereupon, the Owner or Design Professional Engineer will perform a final inspection of the Project. If the Owner or Design Professional Engineer confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Owner or Design Professional Engineer will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner or Design Professional Engineer is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor’s 's final payment;
(J) If the Contractor fails to achieve final completion within thirty (30) days of the date of Substantial Completion, the Contractor shall pay the Owner the sum of Seven Hundred Fifty and No/100 Dollars ($750.00) per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages;
(K) Prior to being entitled to receive final payment and as a condition precedent thereto, the Contractor shall furnish the Owner, in the form and manner required by Owner, if any, with a copy to the Engineer:
(1) An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers, or other third parties in connection with the Project, have been paid or otherwise satisfied;
(2) If required by the Owner, separate releases of lien or lien waivers from each subcontractor, lower tier subcontractor, laborer, supplier or other person or entity who has, or might have a claim against the Owner or the Owner's property;
(3) If applicable, consent(s) of surety to final payment;
(4) All product warranties, operating manuals, instruction manuals and other record documents, drawings and things customarily required of the Contractor, or expressly required herein, as a part of or prior to Project closeout;
(L) The Owner shall, subject to its rights set forth in Subparagraph 7(F) above, make final payment of all sums due the Contractor within ten (10) days of the Engineer's execution of a final Approval for Payment.
Appears in 1 contract
Samples: Fixed Price Construction Contract
FIXED PRICE AND CONTRACT PAYMENTS. A. (A) The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor’s 's timely performance of its obligations hereunder the fixed price stated on the Project Formof One Hundred Twenty-Four Thousand, Six Hundred One and 84/100 Dollars ($124,601.84). The price set forth in this paragraph Subparagraph 7(A) shall constitute the Contract Price, which shall not be modified except by Change Order as provided in this Contract. This fixed price above is based on the Contract Documentsquantities indicated based on the actual scope of the project as shown on the construction plans. All requests by Should the quantities of any of the items of the work as listed in the executed Proposal and Bid Form be increased, the Contractor for an increase shall perform the additional work at the unit bid prices submitted. Should the quantities of any of the items of the work as listed in the Contract executed Proposal and Bid Form be decreased, the Fixed Price must shall be submitted reduced accordingly based on the above unit bid prices and the Contractor shall make no claim for anticipated profits or lost overhead for any decrease in quantities. Payments will be made on actual quantifies installed, as a written claim under Article XIIImeasured in place;
B. (B) Within ten (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Design Professional the Contractor’s 's Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor’s 's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Design Professional or the Owner requests. The Contractor shall not imbalance its Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of the Contract Documentsthis Contract. The Contractor’s 's Schedule of Values will be utilized for the Contractor’s 's Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Design Professional and the Owner;
C. (C) The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this paragraph.
1Paragraph 7. On or before the 1st day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment RequestRequest for the period ending the 25th day of the month to the following: Xxxx Xxxxx Building Projects Manager Collin County Construction and Projects 0000 Xxxxxxxxx Xxx. Said XxXxxxxx, XX 00000 In accordance with the Texas Prompt Payment Request Act and the Owner's receipt of a properly submitted and correct Application for Payment, and the issuance of a Certificate for Payment, the Owner shall make payment to the Contractor, in the amount approved by the Owner less 5% retainage. Such payment shall be adjusted for work that is incomplete or not in such format and include whatever supporting information as may be required by accordance with the Design Professional, the OwnerContract Documents, or both. Thereinthat is the subject of a separate contract, or subcontract or supplier claim or lien against the Contractor may request or the payment bonds for ninety-five percent (95%) of that part of the Contract Price allocated on the Schedule of Values to Contract requirements project. Notwithstanding anything herein to the date of the Payment Request properly providedcontrary, labor, materials, and Contractor shall not be paid for equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if off-site storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage.
2until after installation. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor’s 's representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with the this Contract, and that the Contractor knows of no reason why payment should not be made as requested.
3. The Design ProfessionalThereafter, if any, the Owner shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract Documentsthis Contract. The Design Professional, if any, Owner shall approve in writing the amount which, in the opinion of the Design Professional, if anyOwner, is properly owing to the Contractor.
4. The Owner shall make payment to the Contractor within thirty (30) days following the Design Professional’s written approval of each Payment Request, provided that as a condition precedent to payment, the Contractor has attested that it has paid all taxes, excises, and license fees due to the State of Idaho and its taxing units as required by Idaho Code, Title 63, Chapter 15; and provided further that the Contractor, in consideration of securing the business of erecting or constructing public works in this state, recognizing that the business in which he is engaged is of a transitory character, and that in the pursuit thereof, his property used therein may be without the state when taxes, excises, or license fees to which he is liable become payable, agrees:
a. To pay promptly when due all taxes (other than on real property), excises and license fees due to the state, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or accruing during the term of this contract, whether or not the same shall be payable at the end of such term;
b. That if the said taxes, excises, and licenses fees are not payable at the end of said term, but liability for the payment thereof exists, even though the same constitute liens upon his property, to secure the same to the satisfaction of the respective officers charged with the collection thereof; and
c. That, in the event of his default in the payment or securing or of such taxes, excises, and license fees, to consent that the department, officer, board, or taxing unit entering into this contract may withhold for any payment due him hereunder the estimated amount of such accrued and accruing taxes, excises, and license fees for the benefit of all taxing units to which said contractor is liable. The amount of each such payment shall be the amount approved for payment by the Owner and Design Professional, if any, less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by the Contract Documents.
5. The Design Professional’s, if any, approval of the Contractor’s Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Section VII.F hereinbelow.
6this Contract. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers and other person or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rightsentity who has, or other claims relating to might have a claim against the Project site.
7Owner for the work done on the Owner’s property. The Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner.;
D. (D) When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer laborers and suppliers the amounts they are due for the work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided hereinwithin 10 days after the Contractor’s receipt of payment, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future;
E. (E) Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract Documentsthis Contract;
F. (F) The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or all of the amount previously paid to the Contractor due to:
(1. ) The quality of a portion, or all, of the Contractor’s 's work not being in accordance with the requirements of this Contract;
(2. ) The quantity of the Contractor’s 's work not being as represented in the Contractor’s 's Payment Request, or otherwise;
(3. ) The Contractor’s 's rate of progress being such that, in the Owner’s 's opinion, Substantial Completion or Final Completionfinal completion, or both, may be inexcusably delayed;
(4. ) The Contractor’s 's failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor’s 's Project-related obligations including, but not limited to, subcontractors, laborers, laborers and material and equipment suppliers;
(5. ) Claims made, or likely to be made, against the Owner or its property;
(6. ) Loss caused by the Contractor;
(7. ) The Contractor’s 's failure or refusal to perform any of its obligations to the Owner;
8. Failure of the Contractor to pay taxes as required by Idaho Code, Title 63, Chapter 15;
9. Contractor’s failure to properly inventory and/or store materials on site. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this paragraphSubparagraph 7(F), the Contractor shall promptly comply with such demand;
G. (G) If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days days' written notice of its intent to cease work to the Owner. Any payment not made within thirty .
(30H) days after the date due shall bear interest at the rate computed by the State Treasurer in compliance with Section 00-00-000, Idaho Code;
H. When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Design Professional, if any, in writing and shall furnish to the Owner and Design Professional a proposed punch list listing of those matters yet to be finished. The Owner and Design Professional will thereupon conduct an inspection to confirm that the work is in fact substantially complete and shall upon determining that the work is substantially complete, shall review and revise, if necessary, the proposed punch list. Upon its confirmation that the Contractor’s work is substantially complete, the Design Professional, if any, Owner will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial CompletionCompletion and furnish the final punch list of items that need to be completed for final completion. If the Owner or Design ProfessionalOwner, through its inspection, fails to find that the Contractor’s 's work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon completion of equipment testing, Owner training, delivery and approval of O&M manuals, project punch list completion, and project acceptance by the OwnerSubstantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred ninety percent (10090%) of the Contract Price less any amounts attributable to liquidated damages, together with and less the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims;
I. (I) When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Design Professional thereof in writing. Thereupon, the Owner or Design Professional will perform a final inspection of the Project. If the Owner or Design Professional confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Owner or Design Professional will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner or Design Professional is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor’s 's final payment;
(J) If the Contractor fails to achieve final completion within 30 days of (i) Substantial Completion, or (ii) the Owner’s delivery to the Contractor of the punch list described in Subparagraph 7(H) herein, whichever is later, the Contractor shall pay the Owner the sum of One Hundred Seventy-Five and 00/100 Dollars ($175.00) per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be unexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages; .
(K) Prior to being entitled to receive final payment, and as a condition precedent thereto, the Contractor shall furnish the Owner, in the form and manner required by Owner, if any:
(1) An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers, or other third parties in connection with the Project, have been paid or otherwise satisfied;
(2) If applicable, consent(s) of surety to final payment;
(3) All product warranties, operating manuals, instruction manuals and other record documents, drawings (including as-built drawings), satisfactory test results and things customarily required of the Contractor, or expressly required herein or set forth in the bid documents, as a part of or prior to Project closeout;
(L) The final Certificate for Payment will not be issued until all such warranties and guaranties have been received and accepted by the Owner, and a Certificate of Acceptance is issued.
Appears in 1 contract
Samples: Construction Contract
FIXED PRICE AND CONTRACT PAYMENTS. A. (A) The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor’s 's timely performance of its obligations hereunder the fixed price stated on the Project Formof Thirty-Four Thousand Four Hundred Ninety-One Dollars and Twenty Cents ($34,491.20). The price set forth in this paragraph Subparagraph 7(A) shall constitute the Contract Price, which shall not be modified except by Change Order as provided in this Contract. This fixed price above is based on the Contract Documentsquantities indicated based on the actual scope of the project as shown on the construction plans. All requests by Should the quantities of any of the items of the work as listed in the executed Proposal and Bid Form be increased, the Contractor for an increase shall perform the additional work at the unit bid prices submitted. Should the quantities of any of the items of the work as listed in the Contract executed Proposal and Bid Form be decreased, the Fixed Price must shall be submitted reduced accordingly based on the above unit bid prices and the Contractor shall make no claim for anticipated profits or lost overhead for any decrease in quantities. Payments will be made on actual quantifies installed, as a written claim under Article XIIImeasured in place;
B. (B) Within ten (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Design Professional the Contractor’s 's Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor’s 's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Design Professional or the Owner requests. The Contractor shall not imbalance its Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of the Contract Documentsthis Contract. The Contractor’s 's Schedule of Values will be utilized for the Contractor’s 's Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Design Professional and the Owner;
C. (C) The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this paragraph.
1Paragraph 7. On or before the 1st day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment RequestRequest for the period ending the 25th day of the month to the following: Xxxx Xxxxx Building Projects Manager Collin County Construction and Projects 0000 Xxxxxxxxx Xxx. Said XxXxxxxx, XX 00000 In accordance with the Texas Prompt Payment Request Act and the Owner's receipt of a properly submitted and correct Application for Payment, and the issuance of a Certificate for Payment, the Owner shall make payment to the Contractor, in the amount approved by the Owner less 5% retainage. Such payment shall be adjusted for work that is incomplete or not in such format and include whatever supporting information as may be required by accordance with the Design Professional, the OwnerContract Documents, or both. Thereinthat is the subject of a separate contract, or subcontract or supplier claim or lien against the Contractor may request or the payment bonds for ninety-five percent (95%) of that part of the Contract Price allocated on the Schedule of Values to Contract requirements project. Notwithstanding anything herein to the date of the Payment Request properly providedcontrary, labor, materials, and Contractor shall not be paid for equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if off-site storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage.
2until after installation. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor’s 's representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with the this Contract, and that the Contractor knows of no reason why payment should not be made as requested.
3. The Design ProfessionalThereafter, if any, the Owner shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract Documentsthis Contract. The Design Professional, if any, Owner shall approve in writing the amount which, in the opinion of the Design Professional, if anyOwner, is properly owing to the Contractor.
4. The Owner shall make payment to the Contractor within thirty (30) days following the Design Professional’s written approval of each Payment Request, provided that as a condition precedent to payment, the Contractor has attested that it has paid all taxes, excises, and license fees due to the State of Idaho and its taxing units as required by Idaho Code, Title 63, Chapter 15; and provided further that the Contractor, in consideration of securing the business of erecting or constructing public works in this state, recognizing that the business in which he is engaged is of a transitory character, and that in the pursuit thereof, his property used therein may be without the state when taxes, excises, or license fees to which he is liable become payable, agrees:
a. To pay promptly when due all taxes (other than on real property), excises and license fees due to the state, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or accruing during the term of this contract, whether or not the same shall be payable at the end of such term;
b. That if the said taxes, excises, and licenses fees are not payable at the end of said term, but liability for the payment thereof exists, even though the same constitute liens upon his property, to secure the same to the satisfaction of the respective officers charged with the collection thereof; and
c. That, in the event of his default in the payment or securing or of such taxes, excises, and license fees, to consent that the department, officer, board, or taxing unit entering into this contract may withhold for any payment due him hereunder the estimated amount of such accrued and accruing taxes, excises, and license fees for the benefit of all taxing units to which said contractor is liable. The amount of each such payment shall be the amount approved for payment by the Owner and Design Professional, if any, less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by the Contract Documents.
5. The Design Professional’s, if any, approval of the Contractor’s Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Section VII.F hereinbelow.
6this Contract. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers and other person or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rightsentity who has, or other claims relating to might have a claim against the Project site.
7Owner for the work done on the Owner’s property. The Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner.;
D. (D) When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer laborers and suppliers the amounts they are due for the work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided hereinwithin 10 days after the Contractor’s receipt of payment, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future;
E. (E) Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract Documentsthis Contract;
F. (F) The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or all of the amount previously paid to the Contractor due to:
(1. ) The quality of a portion, or all, of the Contractor’s 's work not being in accordance with the requirements of this Contract;
(2. ) The quantity of the Contractor’s 's work not being as represented in the Contractor’s 's Payment Request, or otherwise;
(3. ) The Contractor’s 's rate of progress being such that, in the Owner’s 's opinion, Substantial Completion or Final Completionfinal completion, or both, may be inexcusably delayed;
(4. ) The Contractor’s 's failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor’s 's Project-related obligations including, but not limited to, subcontractors, laborers, laborers and material and equipment suppliers;
(5. ) Claims made, or likely to be made, against the Owner or its property;
(6. ) Loss caused by the Contractor;
(7. ) The Contractor’s 's failure or refusal to perform any of its obligations to the Owner;
8. Failure of the Contractor to pay taxes as required by Idaho Code, Title 63, Chapter 15;
9. Contractor’s failure to properly inventory and/or store materials on site. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this paragraphSubparagraph 7(F), the Contractor shall promptly comply with such demand;
G. (G) If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days days' written notice of its intent to cease work to the Owner. Any payment not made within thirty .
(30H) days after the date due shall bear interest at the rate computed by the State Treasurer in compliance with Section 00-00-000, Idaho Code;
H. When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Design Professional, if any, in writing and shall furnish to the Owner and Design Professional a proposed punch list listing of those matters yet to be finished. The Owner and Design Professional will thereupon conduct an inspection to confirm that the work is in fact substantially complete and shall upon determining that the work is substantially complete, shall review and revise, if necessary, the proposed punch list. Upon its confirmation that the Contractor’s work is substantially complete, the Design Professional, if any, Owner will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial CompletionCompletion and furnish the final punch list of items that need to be completed for final completion. If the Owner or Design ProfessionalOwner, through its inspection, fails to find that the Contractor’s 's work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon completion of equipment testing, Owner training, delivery and approval of O&M manuals, project punch list completion, and project acceptance by the OwnerSubstantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred ninety percent (10090%) of the Contract Price less any amounts attributable to liquidated damages, together with and less the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims;
I. (I) When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Design Professional thereof in writing. Thereupon, the Owner or Design Professional will perform a final inspection of the Project. If the Owner or Design Professional confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Owner or Design Professional will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner or Design Professional is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor’s 's final payment;
(J) If the Contractor fails to achieve final completion within 30 days of (i) Substantial Completion, or (ii) the Owner’s delivery to the Contractor of the punch list described in Subparagraph 7(H) herein, whichever is later, the Contractor shall pay the Owner the sum of zero Dollars ($0.00) per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be unexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages; .
(K) Prior to being entitled to receive final payment, and as a condition precedent thereto, the Contractor shall furnish the Owner, in the form and manner required by Owner, if any:
(1) An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers, or other third parties in connection with the Project, have been paid or otherwise satisfied;
(2) If applicable, consent(s) of surety to final payment;
(3) All product warranties, operating manuals, instruction manuals and other record documents, drawings (including as-built drawings), satisfactory test results and things customarily required of the Contractor, or expressly required herein or set forth in the bid documents, as a part of or prior to Project closeout;
(L) The final Certificate for Payment will not be issued until all such warranties and guaranties have been received and accepted by the Owner, and a Certificate of Acceptance is issued.
Appears in 1 contract
Samples: Construction Contract
FIXED PRICE AND CONTRACT PAYMENTS. A. The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor’s timely performance of its obligations hereunder the fixed price stated on the Project Formof Dollars ($ ). The price set forth in this paragraph shall constitute the Contract Price, which shall not be modified except by Change Order as provided in the Contract Documents. All requests by the Contractor for an increase in the Contract Price must be submitted as a written claim under Article XIII;
B. Within ten (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Design Professional Architect the Contractor’s Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor’s Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Design Professional Architect or the Owner requests. The Contractor shall not imbalance its Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of the Contract Documents. The Contractor’s Schedule of Values will be utilized for the Contractor’s Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Design Professional Architect and the Owner;
C. The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this paragraph.
1. On or before the 1st day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment RequestRequest for the period ending the day of the month. Said Payment Request shall be in such format and include whatever supporting information as may be required by the Design ProfessionalArchitect, the Owner, or both. Therein, the Contractor may request payment for ninety-five percent (95%) of that part of the Contract Price allocated on the Schedule of Values to Contract requirements to the date of the Payment Request properly provided, labor, materials, and equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if off-site storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage.
2. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor’s representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with the Contract, and that the Contractor knows of no reason why payment should not be made as requested.
3. The Design Professional, if any, Architect shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract Documents. The Design Professional, if any, Architect shall approve in writing the amount which, in the opinion of the Design Professional, if anyArchitect, is properly owing to the Contractor.
4. The Owner shall make payment to the Contractor within thirty (30) days following the Design ProfessionalArchitect’s written approval of each Payment Request, provided that as a condition precedent to payment, the Contractor has attested that it has paid all taxes, excises, and license fees due to the State of Idaho and its taxing units as required by Idaho Code, Title 63, Chapter 15; and provided further that the Contractor, in consideration of securing the business of erecting or constructing public works in this state, recognizing that the business in which he is engaged is of a transitory character, and that in the pursuit thereof, his property used therein may be without the state when taxes, excises, or license fees to which he is liable become payable, agrees:
a. To pay promptly when due all taxes (other than on real property), excises and license fees due to the state, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or accruing during the term of this contract, whether or not the same shall be payable at the end of such term;
b. That if the said taxes, excises, and licenses fees are not payable at the end of said term, but liability for the payment thereof exists, even though the same constitute liens upon his property, to secure the same to the satisfaction of the respective officers charged with the collection thereof; and
c. That, in the event of his default in the payment or securing or of such taxes, excises, and license fees, to consent that the department, officer, board, or taxing unit entering into this contract may withhold for any payment due him hereunder the estimated amount of such accrued and accruing taxes, excises, and license fees for the benefit of all taxing units to which said contractor is liable. The amount of each such payment shall be the amount approved for payment by the Owner and Design Professional, if any, Architect less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by the Contract Documents.
5. The Design Professional’s, if any, Architect’s approval of the Contractor’s Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Section VII.F hereinbelow.
6. The submission by the Contractor of a Payment Request constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rights, or other claims relating to the Project site.
7. The Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner.
D. When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer and suppliers the amounts they are due for the work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided herein, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future;
E. Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract Documents;
F. The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or all of the amount previously paid to the Contractor due to:
1. The quality of a portion, or all, of the Contractor’s work not being in accordance with the requirements of this Contract;
2. The quantity of the Contractor’s work not being as represented in the Contractor’s Payment Request, or otherwise;
3. The Contractor’s rate of progress being such that, in the Owner’s opinion, Substantial or Final Completion, or both, may be inexcusably unexcusably delayed;
4. The Contractor’s failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor’s Project-related obligations including, but not limited to, subcontractors, laborers, and material and equipment suppliers;
5. Claims made, or likely to be made, against the Owner or its property;
6. Loss caused by the Contractor;
7. The Contractor’s failure or refusal to perform any of its obligations to the Owner;
8. Failure of the Contractor to pay taxes as required by Idaho Code, Title 63, Chapter 15;
9. Contractor’s failure to properly inventory and/or store materials on site. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this paragraph, the Contractor shall promptly comply with such demand;
G. If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days written notice of its intent to cease work to the Owner. Any payment not made within thirty (30) days after the date due shall bear interest at the rate computed by the State Treasurer in compliance with Section 00-00-000, Idaho Code;
H. When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Design Professional, if any, Architect in writing and shall furnish to the Owner and Design Professional Architect a listing of those matters yet to be finished. The Owner and Design Professional Architect will thereupon conduct an inspection to confirm that the work is in fact substantially complete. Upon its confirmation that the Contractor’s work is substantially complete, the Design Professional, if any, Architect will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial Completion. If the Owner or Design ProfessionalArchitect, through its inspection, fails to find that the Contractor’s work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon completion of equipment testing, Owner training, delivery and approval of O&M manuals, project punch list completion, and project acceptance by the Owner, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred percent (100%) of the Contract Price less any amounts attributable to liquidated damages, together with the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims;
I. When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Design Professional Architect thereof in writing. Thereupon, the Owner or Design Professional Architect will perform a final inspection of the Project. If the Owner or Design Professional Architect confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Owner or Design Professional Architect will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner or Design Professional Architect is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor’s final payment;
Appears in 1 contract
Samples: Fixed Price Construction Contract
FIXED PRICE AND CONTRACT PAYMENTS. A. (A) The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor’s 's timely performance of its obligations hereunder the fixed price stated on the Project Formof Dollars and Cents ($ .00). The price set forth in this paragraph Subparagraph 7(A) shall constitute the Contract Price, which shall not be modified except by Change Order as provided in the Contract Documents. All requests by the Contractor for an increase in the Contract Price must be submitted as a written claim under Article XIIIthis Contract;
B. (B) Within ten TEN (10) calendar days of the effective date hereof, the Contractor shall prepare and present to the Owner and the Design Professional Project Manager the Contractor’s 's Schedule of Values apportioning the Contract Price among the different elements of the Project for purposes of periodic and final payment. The Contractor’s 's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Design Professional Project Manager or the Owner requests. The Contractor shall not imbalance its it’s Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of the Contract Documentsthis Contract. The Contractor’s 's Schedule of Values will be utilized for the Contractor’s 's Payment Requests but shall only be so utilized after it has been acknowledged in writing by the Design Professional Project Manager and the Owner;
C. (C) The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this paragraph.
1Paragraph 7. On or before the 1st FIFTEENTH (15th) day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment RequestRequest for the period ending the last day of the month. Said Payment Request shall be in such format and include whatever supporting information as may be required by the Design ProfessionalProject Manager, the Owner, or both. Therein, the Contractor may request payment for ninety-five ninety percent (9590%) of that part of the Contract Price allocated on the Schedule of Values allocable to Contract requirements to the date of the Payment Request properly provided, labor, materials, materials and equipment properly incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site (or elsewhere if off-site offsite storage is approved in writing by the Owner), less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage.
2. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor’s 's representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with the this Contract, and that the Contractor knows of no reason why payment should not be made as requested.
3. The Design ProfessionalThereafter, if any, the Project Manager shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by the Contract Documentsthis Contract. The Design Professional, if any, Project Manager shall approve in writing the amount which, in the opinion of the Design Professional, if anyProject Manager, is properly owing to the Contractor.
4. The Owner shall make payment to the Contractor within thirty THIRTY (30) days following the Design Professional’s Project Manager's written approval of each Payment Request, provided that as a condition precedent to payment, the Contractor has attested that it has paid all taxes, excises, and license fees due to the State of Idaho and its taxing units as required by Idaho Code, Title 63, Chapter 15; and provided further that the Contractor, in consideration of securing the business of erecting or constructing public works in this state, recognizing that the business in which he is engaged is of a transitory character, and that in the pursuit thereof, his property used therein may be without the state when taxes, excises, or license fees to which he is liable become payable, agrees:
a. To pay promptly when due all taxes (other than on real property), excises and license fees due to the state, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or accruing during the term of this contract, whether or not the same shall be payable at the end of such term;
b. That if the said taxes, excises, and licenses fees are not payable at the end of said term, but liability for the payment thereof exists, even though the same constitute liens upon his property, to secure the same to the satisfaction of the respective officers charged with the collection thereof; and
c. That, in the event of his default in the payment or securing or of such taxes, excises, and license fees, to consent that the department, officer, board, or taxing unit entering into this contract may withhold for any payment due him hereunder the estimated amount of such accrued and accruing taxes, excises, and license fees for the benefit of all taxing units to which said contractor is liable. The amount of each such payment shall be the amount approved for payment by the Owner and Design Professional, if any, Project Manager less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by the Contract Documents.
5this Contract. The Design Professional’s, if any, Project Manager's approval of the Contractor’s 's Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Section VII.F hereinbelow.
6Subparagraph 7(F) herein below. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of any person whatsoever. As a condition precedent to payment, the Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights rights, shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rights, rights or other claims relating to the Project site.
7. The Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner.;
D. (D) When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer laborers and suppliers the amounts they are due for the work covered by such payment. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialman, laborer, or supplier as provided herein, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialman, laborer, or supplier as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future;
E. (E) Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with the Contract Documentsthis Contract;
F. (F) The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion of or all of the entire amount previously paid to the Contractor due to:
(1. ) The quality of a portion, or all, of the Contractor’s 's work not being in accordance with the requirements of this Contract;
(2. ) The quantity of the Contractor’s 's work not being as represented in the Contractor’s 's Payment Request, or otherwise;
(3. ) The Contractor’s 's rate of progress being such that, in the Owner’s 's opinion, Substantial Completion or Final Completionfinal completion, or both, may be inexcusably delayed;
(4. ) The Contractor’s 's failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor’s 's Project-related obligations including, but not limited to, subcontractors, laborers, laborers and material and equipment suppliers;
(5. ) Claims made, or likely to be made, against the Owner or its property;
(6. ) Loss caused by the Contractor;
(7. ) The Contractor’s 's failure or refusal to perform any of its obligations to the Owner;
8. Failure of the Contractor to pay taxes as required by Idaho Code, Title 63, Chapter 15;
9. Contractor’s failure to properly inventory and/or store materials on site. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this paragraphSubparagraph 7(F), the Contractor shall promptly comply with such demand;
G. (G) If within thirty (30) days from the date payment to the Contractor is due, the Owner, without cause or basis hereunder, fails to pay the Contractor any amounts then due and payable to the Contractor, the Contractor shall have the right to cease work until receipt of proper payment after first providing ten (10) days days' written notice of its intent to cease work to the Owner. Any payment not made within thirty (30) days after the date due shall bear interest at the applicable rate computed by under the State Treasurer in compliance with Section 00-00-000Texas Prompt Pay Act, Idaho CodeGovernment Code Chapter 2251;
H. (H) When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Design Professional, if any, Project Manager in writing and shall furnish to the Owner and Design Professional Project Manager a listing of those matters yet to be finished. The Owner and Design Professional Project Manager will thereupon conduct an inspection to confirm that the work is in fact substantially complete. Upon its confirmation that the Contractor’s 's work is substantially complete, the Design Professional, if any, Project Manager will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial Completion. If the Owner or Design ProfessionalProject Manager, through its inspection, fails to find that the Contractor’s 's work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspection(s) which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon completion of equipment testing, Owner training, delivery and approval of O&M manuals, project punch list completion, and project acceptance by the OwnerSubstantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred percent (100%) of the Contract Price less any amounts attributable to liquidated damages, together with One Hundred percent (100%) of the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or threatened claims;
I. (I) When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Design Professional Project Manager thereof in writing. Thereupon, the Owner or Design Professional Project Manager will perform a final inspection of the Project. If the Owner or Design Professional Project Manager confirms that the Project is complete in full accordance with this Contract and that the Contractor has performed all of its obligations to the Owner hereunder, the Owner or Design Professional Project Manager will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner or Design Professional Project Manager is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspection(s), which costs may be deducted by the Owner from the Contractor’s 's final payment;
(J) If the Contractor fails to achieve final completion within FIFTEEN (15) days of the date of Substantial Completion, the Contractor shall pay the Owner the sum of Dollars ($ .00) per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages;
(K) Prior to being entitled to receive final payment and as a condition precedent thereto, the Contractor shall furnish the Owner, in the form and manner required by Owner, if any, with a copy to the Project Manager:
(1) An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers, or other third parties in connection with the Project, have been paid or otherwise satisfied;
(2) If required by the Owner, separate releases of lien or lien waivers from each subcontractor, lower tier subcontractor, laborer, supplier or other person or entity who has, or might have a claim against the Owner or the Owner's property;
(3) If applicable, consent(s) of surety to final payment;
(4) All product warranties, operating manuals, instruction manuals and other record documents, drawings and things customarily required of the Contractor, or expressly required herein, as a part of or prior to Project closeout;
(L) The Owner shall, subject to its rights set forth in Subparagraph 7(F) above, make final payment of all sums due the Contractor within ten (10) days of the Project Manager's execution of a final Approval for Payment.
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Samples: Construction Contract
