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EXHIBIT 10.9
Contract #226311
Vendor #16625
FEDERATED CORPORATE SERVICES, INC.
Abatement, Demolition & Site Clearance
of 000 Xxxxxx Xxx. (Former A & S Department Store) and
related work.
LUMP SUM CONTRACT
ARTICLES OF AGREEMENT
This Contract is made as of 2/17/98, between Federated Corporate
Services, Inc. a Delaware Corporation, having a mailing address at 0 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (hereinafter called "Federated") acting
herein as agent for an affiliated entity of Federated Department Stores, Inc.
(hereinafter called "Owner") that either owns or has leased from a non-Federated
affiliated entity the Department Store identified below, party of the first
part, and Iroquios Corp, a (New York) Corporation, having its principal office
at 00-00 00xx Xxxxxx, Xxxx Xxxxxx Xxxx, X.X. (hereinafter called "Contractor"),
party of the second part.
(Department Store) Location of Work: project name: A&S Hempstead Demolition
city/state: Hempstead, New York
Contractor understands and agrees that Federated, in its capacity as
Agent for Owner pursuant to the appointment contained in a certain Agency
Agreement dated July 1, 1993, shall perform hereunder on behalf of the Owner,
and such performances shall have the same force and effect as performance by
Owner would have had.
WITNESSETH
In consideration of the mutual promises hereinafter set forth, the
parties hereto hereby agree as follows:
ARTICLE 1: PERFORMANCE
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Section (a) Contractor shall furnish all services, materials, labor,
tools, equipment, plant facilities and everything necessary to undertake and
complete in a thoroughly first-class and workmanlike manner all of the work
indicated in the Drawings, Specifications and General and Special Conditions,
under the direction and to the satisfaction of Architect and Owner.
Section (b) Contractor shall do all work in accordance with the Contract
Documents. In this Contract, the term "Work" shall mean (1) all the labor,
materials, services, machinery, equipment, tools, plant facilities and other
items required by the Drawings, Specifications and General and Supplementary
Conditions and to fully comply with the requirements of this Contract, (2) the
coordination of Contractor's Work with that of the other trades and the other
contractors and subcontractors, (3) all additional changes in the Work which
Owner may order pursuant to Article IV hereof, and (4) the doing and performance
of everything else required by the Contract.
ARTICLE II: COMMENCEMENT
Contractor shall commence the Work at the site on 3/2/98, and prosecute
the Work continuously, with reasonable diligence, to completion. Completion of
Work shall be accomplished by Contractor by 7/31/98. It is mutually agreed that
the Work shall also be completed in accordance with the interim completion dates
set forth in Schedule "B".
ARTICLE III: PAYMENT
Section (a) Owner shall pay to Contractor, and Contractor shall accept,
in full payment for the full and complete performance of the Contract and all
the Work called for in Article I hereof and in the Contract Documents described
in Schedule A hereof, the sum of One Million Eight Hundred and Eight Thousand
Dollars, no cents ($1,808,000.00) subject to
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additions, amendments, or deductions as provided in this Article III, Article IV
hereof and Article 16 of the General Conditions. This sum (hereafter referred to
as the "Contract Sum") is composed of amounts outlined in schedule "C" attached
hereto along with all applicable sales and use taxes which Contractor is
required to collect. In the event that Contractor is not registered to collect
taxes in the state where the Work is to be performed Owner may accrue and pay
such taxes. Payment shall be made on account of work performed, less a retainage
of Ten percent (10%), to Contractor thirty (30 ) days after receipt by Owner of
a properly completed Application For Payment in accordance with the terms of
this Contract and Owner's Invoicing Procedures, provided however, that such
amount shall not exceed the amount certified as then due and payable.
Section (b) The Contract Sum may be adjusted to include Owner's Optional
Hold Alternates described in Schedule "D" attached hereto and made a part hereof
ARTICLE IV: ADDITIONAL WORK
Section (a) Owner may order, from time to time, without invalidating
this Contract, order additional work or changes by altering, adding to or
deducting from the Work.
Section (b) in accordance with Article 16 of the General Conditions, if
Contractor shall perform additional work on a negotiated lump sum plus a
percentage fee basis or on a cost and percentage fee basis, he shall promptly
submit a proposal to Owner, and said proposal shall be supported by a detailed
estimate calculated in accordance with the following:
(1) Work to be performed by Contractor's own forces:
(a) Estimated direct productive labor costs, including applicable
insurance and taxes, but exclusive of the premium portion of any
overtime (see (d) below); plus
(b) Estimated net cost of direct materials and equipment rentals
including applicable taxes and insurance; plus
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(c) Field overhead (to cover all job costs for supervision;
employees above the level of xxxxxxx, timekeeping, checking,
engineering, expediting and other unallocable field costs such
as insurance, utility services, job clean-up, tools, equipment
and the like), home overhead and profit at Fifteen percent (15%)
of (a) plus (b); plus
(d) Premium portion of any estimated overtime, including applicable
insurance and taxes.
(2) Work to be performed by Subcontractors:
(a) Estimated direct productive labor costs, including applicable
insurance and taxes, but exclusive of premium portion of any
overtime (Section (d) below); plus
(b) Net cost of direct materials and equipment rentals including
applicable taxes and insurance; plus
(c) Field Overhead (to cover all costs for supervision; employees
above the level of xxxxxxx, timekeeping, checking, engineering,
expediting and other unallocable field costs such as insurance,
utility service, job clean-up, tools, equipment and the like),
home overhead and profit at Fifteen percent (15%) of (a) plus
(b); plus
(d) The premium portion of any overtime, including applicable
insurance and taxes.
(3) General Contractor's markup on subcontractor work:
(a) Additional work performed by subcontractors will be charged at
the subcontractor's estimated price for the work plus Five
percent (5%) thereof exclusive of the premium portion of any
overtime. This represents full compensation for the
undersigned's supervision and general job expense, overhead and
profit.
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(4) When overtime work is performed, only the actual cost of the
premium time plus applicable insurance and taxes will be paid by
Owner. Overhead and profit shall not to be added on premium time
work.
Section (c) If such proposal does not specify the amount or the rate by
which the Contract Sum or Adjusted Contracted Sum shall be adjusted, then there
shall be no adjustment in the Contract Sum or Adjusted Contract Sum. If such
proposal does not state that the time for the completion of the Work will be
extended or shortened, then there shall be no such extension or shortening of
time. If such proposal does state that the time will be extended or shortened,
then there shall be no other extension or shortening of time, unless Contractor,
within the time for making a claim for adjustment in the Contract Sum or
Adjusted Contract Sum, shall make a claim to Owner for a revised extension or
shortening of said time.
Upon delivery of any such claim by Contractor to Owner, Owner shall have
the right to cancel the additional order for changes giving rise to such claim
by Contractor, but if Owner does not cancel same, then Owner and Contractor
shall endeavor to agree on the amount by which the Contract Sum or Adjusted
Contract Sum should be adjusted or on the date when all of said work shall be
completed. If agreement on any of said points is reached, it shall be reduced to
writing and shall be enforceable only when signed by an authorized
representative of the party to be charged. Even if Owner and Contractor cannot
reach an agreement on all of said points, Owner may, nevertheless, direct
Contractor to proceed with the work as changed. In such case, any disputed point
shall be determined by the Architect. The Owner, however, shall have the option
to designate the basis under paragraph (e) of Article 16 of the General
Conditions by which the Architect may make its determinations.
Section (d) Any adjustment to the Contract Sum or Adjusted Contract Sum
that may be agreed upon between Owner and Contractor, shall be deemed to include
therein the profit and overhead of Contractor.
Section (e) Upon formal request by Owner or Architect to Contractor,
Contractor shall, within seven (7) days from the date of such request, furnish
estimates of the cost of additional work involved.
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ARTICLE V: BONDING
Contractor shall execute and deliver to Owner a performance bond for one
hundred percent (100%) of the Contract Sum. Contractor shall furnish a bond
satisfactory to Owner from a surety company approved or designated by Owner for
the performance of the Contract, which bond shall comply with the laws of the
state in which the work is done.
ARTICLE VI: TERMINATION
Section (a) If Owner elects to terminate the Work, it may do so upon ten
(10) days' written notice to Contractor, or, if the Work should be stopped by
Owner for a period of three (3) months through no act or fault of Contractor or
of anyone employed by it, then Contractor may, upon ten (10) days written
notice to Owner (following such three (3) month period), stop work and terminate
this Contract and remove from the site all construction equipment and other
items belonging to it. In the event of termination as provided above, the Owner
shall have no liability to the Contractor other than to pay the Contractor, to
the extent previous payments have not already been made, all reasonable and
proper costs of the Work incurred by the Contractor through the date of
termination, including fair and reasonable compensation for overhead
attributable to such work as the Contractor has performed.
Section (b) Owner may, after giving Contractor ten (10) days' written
notice, terminate the employment of Contractor and take possession of the
jobsite and Work and of all materials, tools, and appliances thereon and finish
the Work by whatever method it may deem expedient upon the occurrence of any of
the following events:
(i) a petition is filed either by or against Contractor in any court
or pursuant to any statute, whether in bankruptcy, insolvency,
or similar proceedings;
(ii) Contractor makes an assignment for the benefit of its creditors,
or a receiver of any property of Contractor is appointed in any
suit or proceedings;
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(iii) Contractor refuses or fails to supply enough properly skilled
workmen or proper materials, or Contractor refuses or fails to
carry out the Work or any part thereof in accordance with the
Contract Documents, within the applicable time specified herein
(or within any extension thereof approved by the Owner) or falls
to make progress as to, in the sole judgment of the Owner,
endangers performance of this Contract in accordance with its
terms;
(iv) Contractor fails to make prompt payment to subcontractors for
materials or labor; or
(v) Contractor disregards laws and ordinances or is otherwise in
violation of any provision of this Contract.
In the event that Contractor shall correct the situation which has
caused the notice of termination to be given by Owner as provided above within
the ten (10) day notice period, the termination shall be deemed waived, and this
Contract shall continue in effect in the same manner as though such cause of
termination had not existed; provided, however, that Owner reserves its right to
damages for breach of any provision of this Contract. In the event of the
termination of the employment of Contractor as provided in this Section (b),
Contractor shall prepare and furnish to Owner a statement of costs to that date,
similar to the monthly statements provided in Paragraph (m) of Article 34 of the
General Conditions, plus all obligations incurred in the interest of the Work
but not yet due. Construction equipment on the site belonging to Contractor may
be used by Owner or its agent until the Work is completed. Should the expense so
incurred by Owner in completing the Work exceed the difference between the
Contract Sum or Adjusted Contract Sum and the total amount paid to Contractor,
Contractor shall pay such excess to Owner upon demand. Should the said expense
be less than the said difference, Owner shall pay to Contractor an amount
equivalent to the portion of the work completed by Contractor prior to the
termination of its employment. The net amount of such statement then unpaid
shall become due and payable to Contractor.
Section (c) Owner may, with or without cause, order the Contractor in
writing to suspend, delay or interrupt the Work in whole or in part for such
period of time as Owner may determine.
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Section (d) An adjustment shall be made for increases in the cost of
performance of the Contract, including profit on the increased cost of
performances, caused by suspension, delay or interruption caused by the Owner.
No adjustment shall be made to the extent that (1) performance is, was or would
have been so suspended, delayed or interrupted by another cause for which
Contractor is responsible; or (2) an equitable adjustment is made or denied
under another provision of this Contract. Adjustments made in the cost of
performance may have a mutually agreed fixed or percentage fee.
ARTICLE VII: HOLD ALTERNATES
Owner shall have the right to order the performance of any or all of the
work specified in Schedule "D" attached hereto. If Owner shall order such work,
then Contractor shall furnish and perform such work in the same manner as the
original work to be furnished by Contractor under the Contract Documents and the
provisions in said Schedule "D" shall apply thereto. However, such work shall be
done only upon subsequent authorization evidenced by the issuance of change
orders pursuant to Article IV hereof.
ARTICLE VIII: CONTRACT DOCUMENTS
The Drawings, Specifications and General and Special Conditions,
together with the Articles of Agreement and other documents listed on Schedule
"A" attached hereto shall constitute the Contract Documents and together
constitute the Contract. The Contract Documents are intended to be
complementary, and what is required in any one of them shall be as binding as if
called for by all. To the extent possible, all parts of the Contract Documents
shall be construed so as to be consistent with each other. However, in the event
of a conflict or inconsistency between the various Contract Documents, the order
of precedence for interpretation of the Contract Documents shall be as follows:
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(1) Articles of Agreement
(2) Letter of Intent
(3) General Conditions
(4) Supplementary Conditions
(5) Latest Addenda
(6) Specifications
(7) Contract Drawings
ARTICLE IX: ASSIGNMENT
Section (a) Contractor may not assign the Contract or sublet it as a
whole without the written consent of Owner, nor shall Contractor assign any
monies due or to become due hereunder without the previous written consent of
Owner.
Section (b) Owner reserves the right to assign the Contract, and in the
event of such assignment, the assignor's obligations under the contract will be
assumed by the assignee who will then be known as Owner under the Contract. Upon
such assignment, the assignor shall be entirely released from all covenants and
obligations under the Contract.
ARTICLE X: AMENDMENTS
No waiver, modification, or amendment of any term, condition, or
provision of this Contract shall be valid or of any force or effect unless made
in writing, signed by the parties hereto and specifying with particularity the
nature and extent of such waiver, modification or amendment. The signing of such
writing or writings in any instance or instances shall not be construed as a
general waiver, abandonment, modification or amendment of any of the terms,
conditions or provisions of the Contract, but the same shall be strictly limited
and restricted to the specific waiver, amendment or modification agreed to by
the parties.
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ARTICLE XI: CHOICE OF LAW
The laws of the state where the Work is being performed shall govern as
to the interpretation, validity and effect of this Contract.
ARTICLE XII: NOTICES
Any notice, demand, request, designation, direction, approval,
authorization, consent, statement, permission or agreement provided for herein
shall be given in writing to the party to whom it is to be given or made, at its
place of business hereinabove stated or such other place as may hereafter in
writing be designated by such party; provided, however, that if it is to be
given to Owner, it shall be given only to a person authorized by Owner, and
provided, however, that any notice thereof will be conclusively deemed to have
been delivered by Owner to Contractor if delivered to Contractor's field
superintendent or authorized agent of Contractor stationed at the site.
ARTICLE XIII: DEFINITIONS
Whenever occurring in this Contract or any of the Contract Documents,
unless the context clearly requires a different meaning, the following terms are
defined terms and are to fit their grammatical use:
"Adjusted Contract Sum" shall mean the Contract Sum as adjusted from
time to time pursuant to Article IV hereof and Section 16 of the General
Conditions. As of any particular time during the performance of this Contract,
the Adjusted Contract Sum as used in this Contract shall mean and refer to such
Adjusted Contract Sum as shall then exist.
"Contractor" shall mean the party of the second part of this Contract.
"Contract Sum" shall mean the dollar amount specified as the Contract
Sum in Article III hereof.
"Cost," as used in Article IV (b) shall mean:
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(a) The amount disbursed by the particular subcontractor or
Contractor for materials and their transportation required for
the proper execution of the particular work, and for large tools
on either a daily or monthly rental basis as elected by Owner.
The rental rate shall be in accordance with the rates
established by A.E.D. or other accepted standard in the
locality. Owner shall be entitled to all trade discounts and to
such cash discounts with respect to which Owner shall have
furnished Contractor with such monies, so that Contractor may
pay with such monies and receive such cash discounts.
(b) Wages paid for labor directly engaged in the work at the
jobsite, including such items in connection with such labor as
welfare and vacation fund, Social Security, unemployment and
disability insurance taxes and other fringe benefits paid in
connection with wages that are paid pursuant to this Contract
and documented to the satisfaction of Owner. Owner shall be
entitled to any credits received by the subcontractor or
Contractor.
(c) At the option of Owner, in lieu of the amount otherwise payable
by Contractor to a subcontractor pursuant to the foregoing
subdivisions, an amount determined with approval of Owner by
estimate, negotiation and acceptance as the lump sum that shall
be paid by Contractor to the subcontractor.
"Drawings" shall mean collectively all of the Drawings listed in
Schedule "A" annexed hereto and such other drawings and revisions, if any,
hereafter prepared by the Architect supplemental thereto, including those
prepared by the Architect in connection with any additional work or changes in
the work which may be ordered pursuant to Article IV hereof.
"General Conditions" shall mean the General Conditions, including any
Supplementary Conditions, which may be modified in the Specifications or
amendments to the Contract, if any, prepared by the Architect.
"Owner" shall mean the party of the first part to this Contract.
"Specifications" or "Project Manual" shall mean collectively all of the
specifications and addenda listed in said Schedule "A" annexed hereto, including
such other specifications.
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amendatory or supplementary specifications, bulletins, addenda and supplements,
if any, that may be issued by Architect supplemental thereto and those prepared
by Architect in connection with any additional work or changes in the work which
may be ordered pursuant to Article IV hereof
"Subcontractor" shall mean only those having a direct contract with
Contractor, including those contracts made by Owner and assigned to Contractor,
and including one who furnishes material worked to a special design according to
the Drawings and Specifications, but not including one who merely furnishes
material not so worked.
"Architect" shall mean the owner and his engineering consultants. Owner
shall have the right to substitute any other Architect or Engineer to perform
any of said services.
ARTICLE XIV: AUDIT RIGHTS
The Contractor shall keep full and detailed accounts as may be necessary
for proper financial management under this Contract in accordance with a system
acceptable to Owner. All accounts contained in books, records, vouchers,
receipts, correspondence and memos pertaining to construction work shall be
preserved by the Contractor for a period of three years after final payment by
Owner. Complete access to these documents and the right to audit and make copies
thereof, during normal working hours and upon reasonable notice to Contractor is
hereby guaranteed to the Owner and its authorized representatives by the
Contractor both during the time when the job is under way and for the period of
time set forth above.
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IN WITNESS WHEREOF, Contractor and Owner have caused this Agreement to
be signed, sealed and delivered by their fully authorized officers as of the
date first above written.
OWNER: OWNER:
FEDERATED CORPORATE SERVICES, INC.
---------------------------------- ---------------------------------
By: [SIG] BY: /s/ XXXXX X. XXXXXX 3/4/98
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Xxxxx X. Xxxxxx
Operating Vice President
Title: Senior Vice President
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Date 3/10/98 [SIG] 3/6
----------------------------- ------------------------------
CONTRACTOR
IROQUOIS CORPORATION
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By: /s/ XXXXXXX XXXXXX [SIG] 3/3/98
------------------------------- ------------------------------
Title: Xxxxxxx Xxxxxx, President
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Date: 2-27-98
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SCHEDULE A(Page 1 of 2)
CONTRACT DOCUMENTS
1. All work is to be performed in accordance with the following:
2. Articles Of Agreement (along with Schedules attached thereto) General
Conditions (Schedule E)
3. Project Xxxxxx for Emergency Demolition-Asbestos Removal, Demolition and
Site clearance 000 Xxxxxx Xxx. (Former A&S Department Store) Prepared by
Inc. Village of Hempstead Community Development agency.
4. Asbestos removal specification for former Xxxxxxx and Xxxxxxx dated
February 11, 1998, prepared by Xxxxxxx Environmental Consultants, Inc.
5. Proposals dated December 17, 1997 and February 18, 1998 from Iroquois
Corp.
CLARIFICATION:
1. The asbestos removal specification prepared by Xxxxxxx Environmental
shall supercede the one in the project xxxxxx prepared by the
incorporated village of Hempstead community developing agency.
2. All work including the asbestos removal work shall be performed union.
3. Contractors shall provide temporary electric, heat and hot water
required for its work.
4. Contractor shall remove foundation and footings of parking structure and
back fill.
5. Satisfactory soil for backfill and fill materials shall be free of clay,
silt, rock or grave larger than 2" in any dimension, debris, waste,
frozen materials, vegetable and other deleterious matter. Material shall
be 10% to 60% by weight passing on a No. 10 sieve and not more than 10%
passing a No. 200 sieve. Final acceptance of material of material shall
rest with the owner and its engineer. The moisture density curve for the
fill used shall be obtained by the Contractor from the approval Testing
Laboratory as a guide for controlling moisture and achieving the
required compaction.
6. All backfill and fill materials shall be comparted to 95 percent
modified xxxxxxx.
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SCHEDULE A(Page 2 of 2)
(Continued)
7. Contractor shall remove floor slab foundation and footing of small auto
service building and backfill.
8. Contractor shall remove truck tunnel, electric vault and oil tank and
backfill.
9. Contractor shall disconnect and close all utilities as required by the
utility companies, Contractor shall pay all fee's associated with this
work
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SCHEDULE B
INTERIM COMPLETION DATES
1. Start cleaning interior of building March 2,1998
2. Start abatement work March 30,1998
3. Complete abatement work May 1, 1998
4. Demolish old A&S store May 4,1998
5. Complete Work July 31, 1998
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SCHEDULE C
DETERMINATION OF CONTRACT SUM
1. Original lump sum proposal for work indicated in Project Manual for emergency $1,758,000.00
demolition prepared by the Inc. Village of Hempstead Community Development
Agency.
2. Additional cost for asbestos removal due to increased scope
and requirements indicated in asbestos removal specifications $ 30,000.00
prepared by Xxxxxxx Environmental Consultants, Inc.
3. Xxxxx and demolish small auto service building. $ 20,000.00
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4. TOTAL LUMP SUM CONTRACT AMOUNT. $1,808,000.00
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SCHEDULE D
OPTIONAL HOLD ALTERNATES
It is mutually agreed the Hold Alternates listed below shall be available to the
Owner for the time listed below without change in cost to Owner. The Contractor
shall provide the Owner and Architect with written notice ten (10) days prior to
the expiration date of the Hold Alternates. Any Hold Alternate price shall
remain in force until ten (10) days after such notification is received, even
though this date may be later than the Hold Alternate date listed on this
schedule.
NONE
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SCHEDULE E
FEDERATED CORPORATE SERVICES, INC.
GENERAL CONDITIONS
CONTENTS
1. Purpose
2. Articles of Agreement
3. Definitions
4. Drawings and Specifications (DELETED)
5. Shop Drawings (DELETED)
6. Samples
7. Examination of Site and Contract Documents
8. Laying Out Work
9. Permits, Licenses and Certificates
10. Materials and Workmanship
11. Equipment
12. Supervision and Inspection
13. Contractor's Insurance; Indemnity
14. Owner's Insurance (DELETED)
15. Protection of Work, Property and Persons
16. Change in the Work
17. Time of Performance
18. Job Organization, Progress Schedule and Chart
19. Progress and Order of the Work
20. Progress Photographers (DELETED)
21. Separate Contracts (DELETED)
22. Architect's Status
23. Architect's Decision
24. Laws, Ordinances and Regulations
25. Labor Conditions
26. Working Hours
27. Work Sequence
28. Owner's Right to Occupy (DELETED)
29. Use of Premises
30. Owner's Right to do Work
31. Subcontracts
32. Relations of Contractor and Subcontractor
33. Cash Allowance
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Xxxxxx #
00. Payments
35. Correction of Work Before Final Payment
36. Preliminary and Final Acceptance
37. Correction of Work after Final Payment
38. Warranty
39. Damages
40. Litigation
41. Taxes
42. Title to Work and Materials (DELETED)
43. Signs and Advertisements
44. Manufacturer's Directions (DELETED)
45. Cutting and Patching (DELETED)
46. Owner's Contractors (DELETED)
47. Cleaning and Removal of Materials
48. Mechanic's Liens
49. First Aid
50. Watchman (DELETED)
51. Site Regulations
52. Records (DELETED)
53. As Built Drawings (DELETED)
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1. PURPOSE
a. The purpose of these General Conditions shall be to define the relationship
of the Architect, the Owner, and the Contractor, each to the other; to lay down
certain rules which shall be common to them to the end that the Work may be
carried on and completed, in an expeditious, orderly and workmanlike manner; and
these General Conditions, together with the Specifications shall establish the
standard of materials and workmanship to be used, so that the Project shall be a
complete and finished piece of work, and that all portions of the same may be
executed in the best manner known to each representative trade.
b. In case of conflict between these General Conditions and the Specifications,
these General Conditions shall take precedence. A General Condition clause
referring to the work of the Contractor shall, however, be considered as waived
or modified if so noted in the Specifications.
c. All Specifications issued for the work of the several trades employed in the
construction of the Project shall be understood as being prefaced by these
General Conditions.
2. ARTICLES OF AGREEMENT
These General Conditions shall be considered as a part of the Articles of
Agreement executed by the Contractor covering work in or for the Project. Where
there is any conflict, the Articles of Agreement shall take precedence over the
Specifications and these General Conditions as more fully set forth in Article
VIII of the Articles of Agreement.
3. DEFINITIONS
a. The "Contract Documents" collectively referred to as the "Contract" consist
of these General Conditions, the Letter of Intent, the Drawings and
Specifications, the Articles of Agreement (with all schedules attached thereto)
and the other documents referred to in Article VIII of the Articles of Agreement
including all modifications thereof properly incorporated therein by reference
or otherwise.
b. Wherever the term "Contractor" is used in the Contract, it shall mean unless
otherwise noted, the individual firm, or corporation other than the Owner, which
executed the Contract and is to perform the work required thereunder, acting as
General Contractor for the Work, and so identified in the Articles of Agreement.
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(1) As used in the Specifications, the term "Contractor" shall be
construed to mean the General Contractor as well as the
Subcontractor to whom the division of work has been sublet, as
their respective interests may appear.
c. Wherever the terms "Furnish and Install", or "Provide" are used in the
Contract they shall mean all labor, materials, equipment, appliances and
services provided or to be provided by the Contractor to fulfill the
Contractor's obligations and necessary for the completion of the Work as defined
in Article I of the Articles of Agreement.
d. Wherever the terms "or equal", "necessary", "suitable", "as directed", "when
directed", "satisfactory", "good and sufficient", or other general qualifying
terms are used in the Contract they shall be construed as though followed by the
words "in the opinion of the Architect or Owner".
6. SAMPLES
a. Samples, as called for in the various sections of the Specifications, or as
requested by the Architect, shall be submitted in duplicate for his approval,
allowing a reasonable time for their consideration. Samples shall be properly
labeled with the project name and location; manufacturer's name; contractor's
name; type, finish and composition of material; date of submission.
b. If requested, samples as required above shall also be furnished concurrently
to Owner for approval, in duplicate.
7. EXAMINATION OF SITE AND CONTRACT DOCUMENTS
a. The Contractor shall satisfy himself as to the nature and location of the
Work; the character, quality and quantity of surface and subsurface materials to
be encountered; the general and local conditions, particularly those bearing
upon availability of labor; the character of equipment and facilities needed
preliminary to and during the prosecution of the Work; and all other matters
which can in any way affect the Work or the cost thereof under the Contract.
b. The Contractor represents that it has had an opportunity to examine and has
carefully examined the Contract Documents including the Drawings,
Specifications, General Conditions and the Articles of Agreement, and has fully
acquainted itself with the soil conditions described in the project soils
reports, as well as obstructions, grades, excavation, fill and other conditions
at the site and its surroundings; and that it has made all investigations
essential to a full understanding of the difficulties which may be encountered
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in performing the Work. Contractor shall, regardless of any such conditions
relevant to the Work, the site or its surroundings, complete the Work for the
compensation stated in Section (a), Article III of the Articles of Agreement
(except in the case of changes in the Work which will be paid for pursuant to
the provisions of Article IV of the Articles of Agreement and Article 16 hereof)
and assume full and complete responsibility for completion of the Work under any
such conditions which may exist at the site or its surroundings and all risks in
connection therewith. In addition thereto Contractor represents that it is fully
qualified and able to do the Work in accordance with the terms of the Contract
within the time specified.
8. LAYING OUT WORK
a. The Contractor shall lay out his work correctly and shall be responsible for
any damage caused to Owner or other contractors due to incorrect layout of his
work. The Contractor shall engage and hire a licensed surveyor to locate the
structures, to assure their correct and vertical position on the property, to
establish correct levels and bench marks, to make required surveys for verifying
boundary lines and easements, to locate column centers, piers, walls, pits and
trenches and otherwise to fully and completely layout all work required by the
Contract.
b. The Drawings are intended to show correctly existing and contiguous work, but
neither the Architect nor the Owner guarantees that such work will be executed
in exact accordance with the Drawings. The Contractor shall, therefore, examine
and verify any work in place or furnished by others upon which his work is in
any way dependent for its perfect efficiency according to the intent of the
Contract Documents, and shall at once report to the Architect and Owner any
error or discrepancy which may appear in the same, so that any such matter may
be explained or adjusted before the work in question is undertaken. In the event
of the failure of the Contractor to give this notice before proceeding with his
work, or if the Contractor shall connect his work to such erroneous work of
other contractors, he shall assume all charges and make any changes to his work
made necessary by his failure to observe this condition.
9. PERMITS, LICENSES AND CERTIFICATES
a. All necessary permits and licenses shall be obtained for the Owner by the
Contractor and their costs shall be included in the Contract Sum. The Contractor
shall give all necessary notices, pay all fees required by law, and comply with
all governmental laws, ordinances, rules and regulations relative to the Work
and to the preservation of the public health and safety. The Contractor shall
secure and pay for, all certificates of inspection and of occupancy that may be
required and shall furnish them to the Architect for delivery to the Owner.
b. If the Contractor does any wiring or provides any hoists, pumps, fans, motors
or fixtures or performs any other work in which electricity is used, then he
shall furnish
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temporary as well as permanent certificates from the Board of Underwriters and
other bodies having jurisdiction and such certificates shall be filed with the
Owner.
c. Prior to commencement of the Work, the Contractor shall provide evidence
satisfactory to the Owner that the Contractor meets all requirements and is
licensed to do business in the state and location where the Work is located.
10. MATERIALS AND WORKMANSHIP
a. The contractor shall maintain order and discipline among the workmen on
the jobsite at all times and employ only such labor throughout as will
not interfere with the speedy and uninterrupted completion of the work.
b. All materials and equipment shall be delivered at such times and in such
manner as will insure the speedy and uninterrupted progress and completion of
the work. The building shall not be used for the storage of materials except
upon written order of the Owner, and if any materials so stored obstruct the
progress of any portion of the various parts of the Work, they shall be moved
from place to place or from the premises as the Owner may direct, at the expense
of the Contractor.
c. Owner shall, at Owner's cost, make such tests and reports of materials
or work furnished except where stated to the contrary in the Architect's
or Engineer's drawings and specifications.
11. EQUIPMENT
a. The Contractor shall furnish all labor, materials scaffolding, ladders,
planking, centering, false work and forms, tools, machinery, implements,
transportation, cartage and other items requisite and necessary for the proper
and entire finishing of his work and its connection to the work of other
contractors, notwithstanding that each and every item necessary may not be
particularly shown or described, to the end that the Work as a whole may be
completed in a timely manner.
b. DELETED
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c. All hoistways and scaffolds shall be constructed and maintained in strict
accordance with the laws, ordinances and regulations having jurisdiction
relating thereto.
d. Prior approval of location of hoistways and scaffolds shall be obtained from
the Owner and Architect.
e. Under no circumstances shall the Owner's equipment, tools, or appliances be
used by the Contractor or any of his subcontractors.
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12. SUPERVISION AND INSPECTIONS
a. The Contractor shall supervise and direct the Work at the site. The
Contractor shall be solely responsible for and have control over construction
means, methods, techniques, sequences and procedures and for coordinating all
portions of the Work. He shall place a competent superintendent in charge of the
Work at the site who shall be acceptable to the Owner and who shall remain until
final completion and acceptance of the Work unless removed by reason of
sickness, discharged for cause, or replaced by the Contractor, with the written
consent of the Owner. The Contractor shall be responsible for all acts and
omissions of his superintendent in connection with his Work. The Contractor
shall also employ an assistant superintendent, depending upon job requirements,
so that all operations can be satisfactorily supervised.
b. Wherever reasonably so required by the Architect or the Owner, the Contractor
shall render a detailed report of the condition of the Work in the shop or at
the site.
c. If the Specifications, instructions of the Architect or the Owner, laws,
ordinances or any public authority require any work to be specially tested or
approved, the Contractor shall give the Architect and the Owner timely notice of
its readiness for inspection, and, if the inspection is by an authority other
than the Architect, the Contractor shall inform the Owner and the Architect of
the date fixed for such inspections. Inspections by the Architect shall be made
promptly. If any such work should be covered up without approval or consent of
the Architect or the Owner, it must, if required by the Architect or the Owner,
be uncovered for examination, at the Contractor's expense.
d. Re-examination of questioned work may be ordered by the Architect or the
Owner. If such work is found in accordance with the Contract, the Owner shall
pay the cost of re-examination and replacement. If such work be found not in
accordance with the Contract, through the fault of the Contractor, the
Contractor shall pay such cost.
e. If the Architect or the Owner deem it inexpedient to correct work performed
not in accordance with the Contract, then an equitable deduction from the
Contract Sum shall be made therefor.
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13. CONTRACTOR'S INSURANCE: INDEMNITY
a. The Contractor shall comply with the provisions of Social Security and
unemployment insurance laws, local, state and federal, as may be now or
hereafter in force and applying to the Work and shall accept exclusive liability
and hold the Owner harmless for any contributions or taxes with respect to the
Work payable under such laws.
b. The Contractor, before commencing the Work, shall be qualified under the
Workers' Compensation Law of the state in which the Work is to be done and shall
at all times comply with the provisions of said law. The Contractor shall at all
times pay or cause to be paid any assessment or compensation required to be paid
pursuant to the Workers' Compensation Act or law. The Contractor unconditionally
guarantees to the Owner the full compliance with said conditions, regulations
and laws by any Subcontractor or other person employed by the Contractor or with
whom the Contractor may contract for performance of any work hereunder.
c. To the fullest extent permitted by law, Contractor shall indemnify, defend,
and hold harmless Owner, Owner's affiliates, its employees, and authorized
representatives and assigns of each from and against any and all suits, actions,
legal or administrative proceedings, claims, debts, demands, damages,
liabilities, interest, costs and expenses of whatever kind or nature, whether
arising during or after commencement or completion of the Work, which are in any
manner caused, occasioned or contributed to in whole or in part, through any
negligence or willful misconduct of the Contractor, any Subcontractor or
Subsubcontractor or anyone employed by any of them or anyone for whose acts any
of them may be liable in connection with or incident to the Work, even though
the same may have resulted from the joint, concurring or contributory negligence
of Owner or any Other person or persons, unless the same be caused by the sole
negligence or willful misconduct of the party indemnified or held harmless
hereunder provided that such claim, damage, loss or expense is attributable to
injury or death to any person or persons and damage to any property, regardless
of where located, including the property of Owner. In any and all claims against
those indemnified hereunder, the indemnification obligation shall not be limited
in any way by any limit on the amount or type of damage, compensation or
benefits payable under any workers' compensation acts, disability benefit acts
or other employee benefit acts.
d. The Contractor shall indemnify and hold harmless the Owner and the Owner's
Employees and Affiliates from and against any and all loss, damage and expense
(including, but not limited to, attorneys' fees) which any or all of them may
suffer, incur or pay as a result of or arising out of claims made or litigation
begun on account of violation or infringement, or alleged violation or
infringement, of any letters patent or patent rights, resulting from or arising
out of the Work or of methods, materials or things used by the Contractor, and
the Contractor, if requested, shall assume and defend (with counsel approved by
the Owner) at his own cost and expense any such claim or litigation.
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The Contractor shall pay all royalties and license fees. The Contractor shall
defend all suits or claims for infringement of any patent rights and shall
indemnify and save harmless the Owner from loss on account thereof, except that
the Owner shall be responsible for all such loss when a particular process or
product of a particular manufacturer or manufacturers is specified by the Owner,
but if the Contractor has information that the process or article specified is
an infringement of a patent, he shall be responsible for such loss unless he
promptly gives such information to the Owner.
e. For the purposes of this Article 13, the term the "Owner's Employees and
Affiliates" means:
1. all directors, officers, employees and agents of the Owner;
2. any corporation controlling the Owner and any parent
corporations controlling the same (whether directly or
indirectly);
3. any corporation controlled by the Owner and any corporations
controlled by the same (whether directly or indirectly);
4. any Affiliates; and
5. all directors, officers, employees and agents of any corporation
referred to in items 2, 3 or 4 above.
For purposes of this definition, "control" shall mean ownership of more
than twenty per cent (20%) of the common stock of a corporation. "Affiliate"
shall mean any corporation in which any corporation described in item 2 above
owns more than twenty per cent (20%) of the common stock.
f. If at any time claims shall be made against the Owner or the Owner's
Employees and Affiliates against which the Contractor has indemnified them, then
the Owner may withhold from any payment otherwise due to the Contractor an
amount sufficient in the Owner's discretion to protect the Owner and the Owner's
Employees and Affiliates against the cost of such claims and any costs involved
in connection therewith until the cause for withholding is removed by the
Contractor and evidence to that effect satisfactory to the Owner is furnished to
the Owner.
g. Owner and Contractor each waive any rights each may have against the other on
account of any loss or damages occasioned to Owner or Contractor, their
respective property, or to the premises or its contents arising from any
liability, loss, damage or injury caused by fire or other peril for which
property insurance is carried or required to be carried
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pursuant to this Agreement. The insurance policies obtained by Owner and
Contractor pursuant to this Agreement shall contain endorsements or other
provisions, waiving any right of subrogation which the insurer may otherwise
have against the other party. The provisions of this Section 13g shall not limit
the indemnification for liability pursuant to Section 13c.
h. The provisions of this Article 13 shall not in any way limit the Owner's
rights under the Contract or otherwise available under law or at equity.
i. Before commencing the Work, Contractor shall procure from insurers approved
by Owner and maintain at its own expense, until installation of the Work is
completed and accepted, the following minimum insurance, and will deliver to
Owner certificates of the insurers evidencing such coverage:
(1) Workers' Compensation in accordance with the laws of the State
or States in which the work is being performed.
(2) Employer's Liability Insurance of FIVE HUNDRED THOUSAND DOLLARS
($500,000) for each accident or disease: ONE MILLION DOLLARS
($1,000,000) policy limit.
(3) Fire and Extended coverage, sprinkler leakage, water damage,
vandalism and malicious mischief insurance on all materials used
in the performance of the Work hereunder, and on all fixtures in
the process of manufacture, storage or transit, to the full
extent of the value thereof.
(4) Commercial General Liability Insurance or Owner's and
Contractor's Protective Liability Insurance, including Broad
Form Property Damage and Contractual Liability Coverage, with
the following minimum limits:
Bodily Injury, including Death $5,000,000 per occurrence
Property Damage $1,000,000 per occurrence
(5) Motor Vehicle Liability Insurance covering each motor vehicle
used in connection with the Work in the following amounts: (1)
TWO MILLION DOLLARS ( $2,000,000.00) per occurrence / FIVE
MILLION DOLLARS ($5,000,000.00) policy limit with respect to
injury or death to an individual,; and (2) TWO MILLION DOLLARS
($2,000,000.00) for each accident /and a FIVE MILLION DOLLAR
($5,000,000.00) policy limit for property damage.
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j. Owner shall be named as an additional insured party under the policies as
referred to in paragraphs (3) and (4) above. All policies of insurance referred
to hereinabove shall stipulate that such insurance is primary and is not
additional to any insurance carried by Owner or any additional insureds and
further provide that the particular policies shall not be canceled or coverage
reduced unless and until thirty (30) days prior written notice of such
cancellation or reduction shall be delivered to Owner by the Insurance Company.
k. The Insurance Company must have a "B+VII" or Better "Best" Rating, as shown
on Best's Latest Rating Publication.
1. Certificates of all such insurance policies shall be delivered to the Owner
prior to commencement of the Work and shall contain a thirty (30) days' notice
of cancellation to the Owner. If the insurance required hereunder is canceled
and Contractor cannot or will not reinstate it such shall be a default under the
Contract and Owner may terminate the Contract or exercise any of its other
rights under the Contract.
15. PROTECTION OF WORK, PROPERTY AND PERSONS
a. The Contractor shall be solely responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the
performance of the Contract. The Contractor shall provide sufficient, safe and
proper facilities and safeguards at all times for the prosecution of the Work
and the inspection of the Work by the Owner and for the protection of the public
from injury. The Contractor shall, on written notice from the Owner, remove all
materials, whether worked or unworked, and all portions of the Work which
Architect or the Owner shall determine to be unsound or unsatisfactory. The
Contractor shall protect and care for his work from the time of delivery at the
site until final acceptance of same by the Architect and the Owner. Any portion
of the work liable to injury or soiling shall be carefully boxed or otherwise
protected by the Contractor in a manner satisfactory to the Architect and the
Owner, and, in like manner, he shall protect the Owner's property and the
property of any other contractor having a separate agreement with the Owner from
injury or loss arising in connection with the Contract. This protection shall be
carefully maintained during the construction of the entire Work, and shall be
removed from the premises when requested by the Architect or Owner.
Should the Contractor fail to properly protect his Work, such protection may be
installed by the Owner at the Contractor's expense. The Owner will not assume
any responsibility for tools, materials or other property of the Contractor left
on the premises.
b. The Contractor shall take all necessary precautions for the safety of
employees on the Work, and shall comply with all applicable provisions of
federal, state, county and local safety laws and building codes to prevent
accidents or injury to persons on, about or
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adjacent to the premises where the work is being performed. He shall erect and
properly maintain at all times, as required by the conditions and progress of
the Work, all necessary safeguards as required by the conditions and progress of
the Work, all necessary safeguards for the protection of workers and the public,
and shall post danger signs warning against the hazards created by such features
of construction as protruding nails, hoists, elevator hatchways, scaffolding,
window openings, stairways and falling materials; and he shall designate a
responsible member of his organization on the Work whose duty shall be the
prevention of accidents. The name and position of the person so designated shall
be reported to the Architect and the Owner by the Contractor.
c. The Contractor shall adequately protect all adjoining and adjacent property,
private or public, and he shall repair any and all damage or injury that is a
result of his work. He shall leave the property in as good condition as before
work was started, and he shall relieve the Owner of all responsibility for any
claims due to such injury and must defend any action of law brought by reason
thereof.
d. In an emergency affecting the safety of life or of the work of adjoining
property, the Contractor, without special instructions or authorization from the
Architect or Owner is hereby permitted to act, at his discretion, to prevent
such threatened loss or injury, and he shall so act, without appeal, as if so
instructed or authorized. Any compensation claimed by the Contractor on account
of emergency work shall be determined as stipulated in the Article 16, entitled
"Change in the Work". The Contractor shall, at his earliest opportunity notify
the Owner of such emergency.
16. CHANGE IN THE WORK
a. The Owner without invalidating the Contract, may order extra work or make
changes by altering, adding to or deducting from the Work, the Contract Sum
being adjusted accordingly. All the stipulations, provisions and conditions
contained in the General Conditions and in the Specifications shall apply with
full force and effect to any and all omissions and/or changes and/or additions
to the work under the Contract.
b. No order for additional work or changes given to the Contractor (and no
cancellation of such order) shall be deemed authorized or to bind or obligate
the Owner in any way unless same shall have been previously signed on behalf of
the Owner by an authorized representative of the Owner in the form of a Change
Order. The sole exception to this is the issuance by Owner of an emergency work
order whereby the Contractor is authorized to proceed upon receipt of a special
verbal emergency work order number issued by Owner with an agreed "not to
exceed" price.
c. Any work commenced by the Contractor prior to the time a claim is made by the
Contractor that such work is not provided for in the Contract, where the Owner
shall not
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have issued an order for extra work, shall be deemed to be included in the
Contract, and not additional work.
d. In giving instructions, the Owner shall have authority to make minor changes
in the Work, not involving extra cost, and not inconsistent with the purposes of
the Work, but otherwise, except in an emergency endangering life or property, no
extra work or change shall be made unless in pursuance of a written order or
emergency work order from the Owner and no claim for an addition to the Contract
Sum shall be valid unless so ordered.
e. The amount of the adjustment of the Contract Sum by reason of any such extra
work or change shall be determined, at the option of the Owner, in either one or
more of the following bases, as selected by the Owner.
(1) by estimate, negotiation and acceptance of a lump sum plus a
percentage fee;
(2) by the unit prices stated in the general contract or
subcontracts;
(3) by Cost and a percentage fee, subject to a guaranteed maximum
price;
(4) in the case of an deletion of any work, the Contract Sum or
Adjusted Contract Sum shall be reduced in an amount equal to the
estimated but reasonable value of the deleted work in relation
to the Contract Sum or Adjusted Contract Sum;
(5) in case there be any substitution of work pursuant to request of
Owner, then Owner shall receive full credit for the omitted
work, at the same rate that Contractor shall receive for
additional work, and Contractor shall be entitled to payment for
the additional work;
(6) or any combination of the above acceptable to Owner.
f. Adjustments in time of performance for work under the Contract by reason of
any changes in the work shall be made in accordance with Article 17, entitled
"Time of Performance", hereinbelow and such adjustments in time of performance
shall be stated in the pertinent change authorizations. No further claim for
adjustment in time of performance by reason of changes in the work will be
considered after approval of such pertinent change authorizations.
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17. TIME OF PERFORMANCE
a. Time is of the essences for all time limits stated in the Contract.
b. Should the completion of the Work be delayed beyond the time stated in the
Contract, the Owner may, but shall not be required to, grant the Contractor
additional time for completion thereof; provided that if in the Owner's opinion
the failure of the Contractor to complete the Work within the time specified
arises from unavoidable delays (as defined hereinafter), then the Owner may
grant such additional time for completion as he may find reasonable and proper
after consideration of the extent of the unavoidable delay. Unavoidable delays
shall mean (1) delays which result from causes beyond the Contractor's control
and which he could not have provided against by the exercise of reasonable
foresight, care, prudence or diligence; (2) delays which result from Change
Orders altering or increasing the amount of work or quantity of materials and
which shall be as stated in the approved applicable change authorizations; and
(3) delays resulting from damage to the Contractor's work by other contractors
or because of improper work of other contractors, provided however, that the
Owner is promptly notified in writing of such delay and immediate written demand
is made by the Contractor for extension of time for completion. The extension of
time hereinabove provided for shall be the Contractor's exclusive remedy in the
event of such a delay, no matter how or by whom caused.
Delays on account of loss of time resulting from the necessity of
submitting specifications, drawings or samples for approval and from making
surveys, measurements and inspections, and such interruptions as may occur on
account of reasonable interference by other contractors employed by the Owner
but which do not necessarily prevent the completion of the whole work within the
time specified, are not unavoidable delays, and the Owner shall not be under any
obligation to grant any extensions of time by reason thereof.
c. Any other claims involving loss of time shall be submitted at the time of
occurrence of the alleged cause of such loss of time; in no case will any
consideration be given to such claims submitted more than fourteen calendar days
after such occurrence.
18. JOB ORGANIZATION, PROGRESS SCHEDULE AND CHART
a. The Contractor shall submit, prior to starting work, a job organization chart
which shall be subject to approval of the Owner.
b. The Contractor shall promptly, upon award of the Contract, submit to the
Architect and the Owner a detailed schedule by trade, showing the order in which
he proposes to carry
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on the Work, with dates at which the several parts of the Work will start and
the estimated dates of completion of same.
c. The Contractor shall prepare a progress chart in the form of a plan, at
suitable scale, which shall indicate the salient features of the Work, with
symbols to indicate the progress at any time.
d. The above stipulated progress chart and schedule shall be submitted to the
Architect and the Owner for approval before the Work is commenced. All work
under the Contract shall in general be done in such order and by such methods as
shall produce the best economy, safety and speed.
e. The Contractor shall bring all progress schedules and charts up-to-date
approximately every two weeks.
19. PROGRESS AND ORDER OF THE WORK
The Owner shall have the right, without giving the Contractor the right to any
extra compensation, at any time when, in the judgment of the Architect or the
Owner, the Work is not proceeding in accordance with the approved progress
schedule, to require the Contractor to take such measures or adopt such methods
as may be necessary in the Architect's or the Owner's opinion, to obtain and
maintain satisfactory progress, but the failure of the Architect or the Owner to
demand that the Contractor adopt such measures shall not relieve the Contractor
of his obligation to secure the rate of progress necessary to complete the Work
within the time required by the Contract.
22. ARCHITECT'S STATUS
a. The Architect shall be an Owner's representative during the construction
period and he shall observe the work in process on behalf of the Owner. He is
the agent of the Owner only to the extent provided in the Contract and when in
special instances he is authorized by the Owner so to act, and in such instances
he shall, upon request, show the Contractor written authority. He has authority
to reject the Work for failure to comply with the Contract Documents.
b. As the Architect is, in the first instance, the interpreter of the conditions
of the Contract and the judge of its performance, he shall side neither with the
Owner nor with the Contractor, but shall use his authority under the contract to
enforce its faithful performance by all.
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c. In case of the termination of the employment of the Architect, the Owner
shall appoint a capable and reputable Architect, whose status under the Contract
shall be that of the former Architect.
23. ARCHITECT'S DECISION
a. The Architect, if requested by either the Owner or the Contractor, shall,
within a reasonable time, make decisions on all claims of the Owner or the
Contractor and on all other matters relating to the execution of the Work or the
interpretation of the Contract Documents.
The Architect's decisions shall be final in matters pertaining to interpretation
of Contract Documents and certification of value of work performed or omitted.
24. LAWS, ORDINANCES AND REGULATIONS
The Contractor shall comply with all federal, state and local laws,
ordinances, rules and regulations, and he shall give all notices and obtain all
permits for obstructions, encroachments and as otherwise necessary for the
conduct of the Work as drawn and specified, and he shall pay all fees and costs
in connection with the same unless otherwise stated herein. If the Contractor
observes that the Drawings and Specifications are at variance with the laws,
ordinances, rules and regulations above referred to, he shall promptly notify
the Architect and the Owner in writing, and any necessary changes shall be
adjusted as provided in these General Conditions under Article 16, entitled
"Change in the Work". If the Contractor performs any work knowing it to be
contrary to such laws, ordinances, rules and regulations, and without such
notice to the Architect and Owner, he shall assume all responsibility for such
work and shall bear attributable costs.
25. LABOR CONDITIONS
a. The Contractor shall employ only such labor as, to the satisfaction of the
Architect or the Owner, will work in harmony with other trades engaged upon work
at or about the premises. The Contractor shall maintain order and discipline
among the workmen at all times.
b. If, at any time, it shall be impracticable or contrary to the interests of
the Owner in its sole judgment, to proceed with or continue the performance of
the Work or any part thereof, whether or not for reasons for which either of the
parties is responsible, the Owner may order the Contractor to suspend
performance until such time as the Owner may deem it practicable to proceed.
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26. WORKING HOURS
a. When so directed by the Architect or the Owner and when not directed by Owner
as a remedy to comply with the project schedule, the Contractor shall perform
his Work on an overtime basis and the cost to be charged therefor shall be only
the actual wages in excess of straight time wages normally paid by the
Contractor, plus any increased payroll taxes, insurance premiums and welfare
payments attributable to the premium portion of these wages in accordance with
Article IV of the Articles of Agreement.
b. Should the Contract Documents require that the Contractor's work be performed
after normal working hours, or should the Contractor elect to perform work after
normal working hours, any additional cost of such work shall be borne by the
Contractor.
27. WORK SEQUENCE
If, in the judgment of the Architect or the Owner, it becomes necessary at any
time to accelerate the overall work, the Contractor, when ordered and directed
by the Architect or the Owner, shall cease work at any particular point and
transfer its workers to such point or points, and execute such portion of its
work as may be required, to enable other contractors to hasten and properly
engage and carry on their work, all as directed by the Architect and the Owner.
29. USE OF PREMISES
The Contractor shall not load or permit any part of any structure to be
loaded with a weight that will endanger its safety. The Contractor shall enforce
the Architect's and Owner's instructions regarding signs, advertisements, fires
and smoking.
30. OWNER'S RIGHT TO DO WORK
If the Contractor should neglect to prosecute the Work properly or fail
to perform any provision of the Contract, the Owner, after seven days' written
notice to the Contractor, may, without prejudice to any other remedy he may
have, make good such deficiencies and may deduct the cost thereof, including
Architect's additional services and expenses made necessary by such default,
neglect or failure, from the payment then or thereafter due the Contractor,
provided however, that the Architect shall have approved both such action and
the amount charged to the Contractor.
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31. SUBCONTRACTS
a. Contractor may not employ any subcontractor without the prior consent of
owner and shall not employ any that the Architect or the Owner may within a
reasonable time object to as incompetent or unfit.
b. The Contractor shall obtain from Owner the names of subcontractors proposed
by the Owner for some of the principal parts of the work and the employment of
all subcontractors shall be subject to the approval of the Owner. The Contractor
shall not be required to employ for any of the Work a subcontractor against whom
he has a reasonable objection. The Owner and Contractor shall mutually agree to
a list of subcontractors permitted to bid on principal portions of the Work. The
subcontractor's bids shall be opened and analyzed in full consultation with
Owner and in accordance with Owner's bid opening procedures.
c. If the Contractor has submitted before execution of the Contract a list of
subcontractors and the change of any name on such list is required in writing by
the Owner after such execution, the Contract Sum shall be increased or
diminished by the difference in cost occasioned by such change.
d. The Contractor agrees that he is as fully responsible to the Owner for the
acts and omissions of his Subcontractors and of persons either directly or
indirectly employed by them, as he is for the acts and omissions of persons
directly employed by him.
e. Nothing contained in the Contract shall create any contractual relation or
any other obligation between any Subcontractor and the Owner.
32. RELATIONS OF CONTRACTOR AND SUBCONTRACTOR
a. The Contractor shall procure the Owner's written approval before entering
into any contract for the purchase of items of material or before subcontracting
for any portion of the work. The Contractor may, at its own cost and expense,
require surety bonds from subcontractors. In no event shall the cost of such
bonds be included in the Contract Sum. If requested by the Owner, all
subcontracts and contracts entered into in connection with the Work shall be on
the forms specified or approved by the Owner. The approval by the Owner of any
subcontract shall not release Contractor from any responsibility or liability in
connection with said subcontract or from the Contract Documents including the
Drawings, Specifications and General Conditions .
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b. By appropriate agreement, written where legally required for validity, the
Contractor shall require each Subcontractor, to the extent of the Work to be
performed by the Subcontractor, to be bound to the Contractor by terms of the
Contract Documents, and to assume toward the Contractor all the obligations and
responsibilities which the Contractor, by the Contract Documents, assumes toward
the Owner and the Architect. Each subcontract agreement shall preserve and
protect the rights of the Owner and the Architect under the Contract Documents
with respect to the work to be performed by the Subcontractor so that
subcontracting thereof will not prejudice such rights, and shall allow to the
Subcontractor, unless specifically provided otherwise in the subcontract
agreement, the benefit of all rights, remedies and redress against the
Contractor that the Contractor, by the Contract Documents, has against the
Owner. Where appropriate, the Contractor shall require each Subcontractor to
enter into similar agreements with sub-subcontractors. The Contractor shall make
available to each proposed Subcontractor, prior to the execution of the
subcontract agreement, copies of the Contract Documents to which the
Subcontractor will be bound, and, upon written request of the Subcontractor,
identify to the Subcontractor terms and conditions of the proposed subcontract
agreement which may be at variance with the Contract Documents. Subcontractors
shall similarly make copies of applicable portions of such documents available
to their respective proposed sub-subcontractors.
c. The Contractor agrees:
(1) to be bound to the Subcontractor by all the obligations that the
Owner assumes to the Contractor under the Contract, and by all
the provisions thereof affording remedies and redress to the
Contractor from the Owner.
(2) to pay the Subcontractor, upon the payment of certificates, if
issued under the schedule of values described in the Article 34,
entitled "Payments", the amount allowed to the Contractor on
account of the Subcontractor's work to the extent of the
Subcontractor's interest therein.
(3) to pay the Subcontractor, upon the payment of certificates, if
issued otherwise than as in paragraph c (2) immediately above,
so that at all times his total payments shall be as large in
proportion to the value of the work done by him as the total
amount certified to the Contractor is to the value of the work
done by him.
(4) to pay the Subcontractor to such extent as may be provided by
the Contract or the subcontract, if either of these provides for
earlier or larger payments than the above.
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(5) to pay the Subcontractor on demand for his work or materials as
far as executed and fixed in place, less the retained
percentage, at the time the certificate should issue, even
though the certificate is not issued for any cause not the fault
of the Subcontractor.
(6) to pay the Subcontractor a just share of any insurance money
received by the Contractor under the Article 14, entitled
"Owner's Insurance".
(7) to make no demand for liquidated damages or penalty for delay in
any sum in excess of such amount as may be specifically named in
the subcontract.
(8) that no claim for services rendered or materials furnished by
the Contractor to the Subcontractor shall be valid unless
written notice thereof is given by the Contractor to the
Subcontractor during the first ten days of the calendar month
following that in which the claim originated.
(9) to require the Subcontractor to be present and to submit
evidence in any judicial proceeding or other proceeding
involving his portion of the Work.
d. Nothing contained in this article shall create any obligation on the part of
the Owner to pay to or to see to the payment of any sums to any Subcontractor.
33. CASH ALLOWANCE
Wherever cash allowances are stated in the Contract Documents, it shall
be understood that such allowances represent the absolute net cost to the
Contractor, and it shall be understood that the total Contract Sum includes
charges of every nature, as well as overhead and profit, in connection with the
items covered by such cash allowances. If the items covered by cash allowances
cost more or less than the stated allowance, the net difference in cost will be
added to or deducted from the Contract Sum, and if the entire item is omitted,
the full amount of the cash allowance shall be deducted from the Contract Sum.
34. PAYMENTS
a. The Contractor shall submit to the Owner an application for each payment, and
receipts or other vouchers, showing his payments for materials and labor,
including payments to Subcontractors as required under the Article 32, entitled
"Relations of Contractor and Subcontractor". Each such application shall be
accompanied by adequate
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evidence of such payments during the period since the last approved application
for payment and by a statement of the amounts of the Contractor's intended
payments during the current payment period.
b. In addition to the withholding provided for in Article III of the Articles of
Agreement, the Owner may withhold or, on account of subsequently discovered
evidence, nullify the whole or a part of any certificate to such extent as may
be necessary to protect the Owner from loss on account of:
(1) Defective work not remedied.
(2) Claims filed or evidence indicating probable filing of claims.
(3) Failure of the Contractor to make payments properly to
subcontractors or for material or labor.
(4) A reasonable doubt that the contract can be completed for the
unpaid balance of the Contract Sum.
(5) Damage to another Contractor or Subcontractor.
(6) Loss, damage, cost or expense for which Contractor may be
liable.
(7) Reasonable evidence that the Work will not be completed within
the Contract time.
(8) Persistent failure to carryout the Work in accordance with the
Contract Documents.
When the above causes are remedied to the satisfaction of Owner, payment shall
be made for amounts withheld because of them.
c. Payments made on valuation of work done shall require that the application be
submitted at least thirty days before each payment falls due. The Contractor
shall, before the first application, submit to the Owner a schedule of values of
the various parts of the work, including quantities, aggregating the total sum
of the Contract, divided so as to facilitate payments to Subcontractors made out
in such form as the Owner and the Contractor may agree upon, and supported by
such evidence as to its correctness as the Owner may direct as well as to submit
a separate breakdown of the valuation of the work in a form acceptable to Owner
to provide Owner with accurate "database" cost information.
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The schedule, when approved by the Owner, shall be used as a basis for
certificates of payments, unless it be found to be in error. No payments will be
made until such schedule is submitted and agreed to by Owner. The Contractor
shall, from time to time, upon request of the Owner, revise such breakdown so
that it will be satisfactory and acceptable to the Owner as to content,
distribution of costs, detail of breakdown and form. In applying for payments,
the Contractor shall, in addition to the other material submitted with the
application for payment, submit a statement based upon this schedule and, if
required, itemized in such form and supported by such evidence as the Owner may
direct, showing his right to the payment claimed.
d. Contractor's written demands shall be directed and sent to the Owner c/o
Federated Corporate Services, 0 Xxxx Xxxxxxx Xx., Xxxxxxxxxx, XX 00000,
attention: Senior Vice President/Store Planning and Construction or to such
other address as may be designated by the Owner.
e. The Owner shall not be in default to the Contractor by reason of non-payment
of any money due to the Contractor until Owner shall have failed to pay for a
period of fifteen (15) days after the due date specified in this paragraph or
is otherwise found to be due and payable unless Owner is permitted to withhold
such payment in accordance with the provisions of this Contract.
f. With the second and subsequent requisitions for payment, Contractor shall
submit to Owner Release and Waiver of Lien forms (from the Contractor and all
Subcontractors) in a form acceptable to Owner indicating that all charges
previously included on the statement of said month have actually been paid in
full by the Contractor.
g. Upon completion of the Work by the Contractor in accordance with the
Drawings, Specifications, General Conditions and other Contract Documents, the
Contractor shall tender the Work to the Owner and if the Owner shall accept the
Work, the remaining balance of the Contract Sum or Adjusted Contract Sum shall
be due to Contractor within thirty (30) days after delivery to the Owner of the
Contractor's final notarized application for payment and the forms hereinafter
mentioned. Final payment shall be conditioned upon the receipt by the Owner of a
final statement covering all items under the Contract, together with
Contractor's Final Release and Waiver of Lien form in a form acceptable to Owner
and signed and notarized by the Contractor, Release and Waiver of Lien forms
signed and notarized by all subcontractors and material suppliers of the
Contractor on forms acceptable to Owner, and a certificate of the Contractor to
the effect that all bills and claims incurred in the furtherance of the Work,
whether by the Contractor or any subcontractor engaged by the Contractor, have
been satisfied.
h. Submission of an application for payment shall constitute a representation
and warranty by Contractor that all of the said bills due and payable prior to
the time of each request have been paid, by the applications to such payment of
the funds received by the Contractor pursuant to each such request.
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35. CORRECTION OF WORK BEFORE FINAL PAYMENT
a. The Contractor shall do the Work in accordance with the Drawings,
Specifications, and General Conditions and other Contract Documents and shall
furnish all labor, equipment, materials and other necessary services for the
complete performance of the Work in a good and first-class workmanlike manner.
Neither acceptance of or payment for the Work or any part thereof, nor the
partial or entire use or occupancy of the Work by Owner, shall release
Contractor from liability for any warranties of material or equipment installed
or for workmanship which is faulty, unsound, improper, not first-class
workmanship, or not in accordance with the Drawings, Specifications and General
Conditions as approved by the Owner, and the Contractor shall, at its own
expense, take down and replace all such portions of the Work determined by the
Architect as failing to conform to the Contract, whether incorporated or not and
whether done by him or his Subcontractors, and shall bear the expense to the
Owner of making good all work of other contractors destroyed or damaged by such
removal or replacement, and shall remedy any defects which shall appear within a
period of two years (or longer, per specifications) from the date of completion
of the Work. The Owner shall give notice of observed defects with reasonable
promptness.
b. If the Contractor does not remove such non-conforming work within a
reasonable time, fixed by written notice, the Owner may remove it and may store
the material at the expense of the Contractor. If the Contractor does not pay
the expenses of such removal within ten days' time thereafter, the Owner may,
upon ten day's written notice, sell such materials at auction or at private sale
and shall account for the net proceeds thereof, after deducting all the costs
and expenses that should have been borne by the Contractor.
36. PRELIMINARY AND FINAL ACCEPTANCE
a. Upon notification by the Contractor that he has completed all work under the
Contract, the Architect and Owner will inspect all work and issue a "punch list"
with an agreed upon time limit stipulated for correction of all items listed
therein. The issuance of a "punch list" shall constitute preliminary acceptance.
The Owner reserves the right to accept work subject to compliance with all
"punch list" requirements, and such acceptance shall constitute substantial
completion only for the Work accepted.
b. The final certificate of payment together with a certificate of final
acceptance, will be issued only after all "punch list" items have been corrected
to the satisfaction of the Architect and Owner. The completion of all "punch
list" requirements and the issuance of the final certificates of payment and
acceptance shall constitute final acceptance for purposes of Article 38. In the
event that the Contractor does not complete all punch list items within two
"call-back" inspections by the Owner or Architect, Owner may deduct its costs
(including architects' fees, travel expenses and any other costs incurred for
any subsequent call-back) from the final payment due to Contractor.
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c. Should the Contractor neglect to correct "punch list" items within the
stipulated period of time (not to exceed 60 days), the Owner may, after 3 days'
written notice to the Contractor, without prejudice to any other remedy he may
have, make good such deficiencies and may deduct the cost thereof from the
payment then due the Contractor.
37. CORRECTION OF WORK AFTER FINAL PAYMENT
a. Neither the final certificate of payment nor any provision in the Contract
shall relieve the Contractor of responsibility for faulty materials or
workmanship and, unless otherwise provided herein or specified, he shall remedy
any defects due thereto and pay for any damage to other work resulting therefrom
which shall appear within a period of two years from the date of the final
certificate covering all contract work.
b. Where guarantees or warranties are written in any section of the
Specifications for terms longer than two years, the longer term shall apply.
c. The Owner shall give notice of observed defects with reasonable promptness.
38. WARRANTY
a. The Contractor shall deliver to the Architect and the Owner, upon completion
of all work under the Contract, his written warranty made out to the Owner and
in form satisfactory to the Architect and the Owner, warranting and guaranteeing
all of the work under the Contract, including work performed by subcontractors,
to be free from faulty materials, and free from improper workmanship, and, other
than proper and usual wear, agreeing to replace or re-execute, without cost to
the Owner, such work as may be found to be improper or imperfect and to make
good all damage caused to other work or materials due to such required
replacements or re-execution.
b. This warranty shall be made to cover a period of two years from the date of
final acceptance of all work under the Contract (except as specified for
substantial completion in paragraph c below) as evidenced by the Architect's
final certificate, or for other periods where so stipulated in the various trade
specifications. It shall be the Contractor's responsibility in negotiating
subcontracts to provide for subcontract warranties for a period of two (2)
years, or longer if noted in the Specifications.
c. Should the Owner before the completion of the Work as a whole, accept for
occupancy and occupy a portion of the Work, upon issuance by the Architect of a
certificate of substantial completion for that portion, the period of warranty
for the work of that portion shall commence upon the date of the Architect's
certificate of substantial completion.
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d. Warranties must be furnished and approved by the Architect and the Owner
before acceptance and final payments are made.
e. Neither the final certificate nor payment nor any provision in the Contract
shall relieve the Contractor of responsibility for neglect, faulty materials or
workmanship during the period covered by the warranty.
f. Consistent with the above, in the case of work performed by Subcontractors
where warranties or guarantees are required under the various sections of the
Specifications, the Contractor shall secure such warranties or guarantees from
said Subcontractors addressed to and for the benefit of the Contractor and the
Owner and deliver the original and one copy of same to the Architect and the
Owner before completion of the Work as above defined.
g. All warranties or guarantees received by the Contractor from material, men,
equipment makers, or Subcontractors shall be approved by the Contractor and the
Owner, but shall be made directly to the Owner. Such guarantees, however, shall
be enforced by the Contractor if occasion arises. If the makers of the
guarantees fail to fulfill their guarantee obligations, any costs incurred by
Owner in connection therewith shall be at the expense of Contractor, and
Contractor shall indemnify and hold harmless Owner for all such costs and
expenses.
39. DAMAGES
a. If either party to the Contract should suffer damage in any manner because of
any wrongful act or neglect of the other party or of anyone employed by him,
then he shall be reimbursed by the other party for such damage.
b. Claims under this clause shall be made in writing to the party liable within
a reasonable time of the first observance of such damage and not later than the
time of final payment, except as expressly stipulated otherwise in the case of
faulty work or materials, and shall be adjusted by agreements or arbitration.
40. LITIGATION
In the event that any litigation shall, at any time or place wherever
the place of jurisdiction may be, be commenced against the Owner, by reason of
any claim, whether under any contract, in negligence or any other tort, or
otherwise, which will pertain or be alleged to pertain to any work, labor,
services or equipment or their transportation or storage, furnished or to be
furnished by Contractor, any of its Subcontractors, material men,
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or any of their respective agents, representatives, employees, invitees or any
other person, firm or corporation engaged or retained by any of them, or to or
for failure by any of them to furnish any work, labor, services or equipment, or
their transportation or storage, required under the Contract, then the Owner
shall have the right to join the Contractor as a party defendant in such
litigation. The Contractor agrees that the Contractor may so be made party
defendant in such litigation and the Contractor also agrees to accept service of
process in such litigation and to subject himself to the jurisdiction of the
court in which such litigation is pending, to the end that the rights of the
claimant or claimants and the rights and the obligations of the Owner and the
Contractor as to each other may be determined in such litigation. In the event
that the Contractor shall for any reason fail to accept such service of process
and to subject himself to the jurisdiction of such court, then the Contractor
shall be liable to the Owner in the amount of and for any judgments and costs
that may be assessed against the Owner in such litigation, including legal
interest thereon and including any attorneys' fees and any other expenses that
may be incurred by the Owner in such litigation.
41. TAXES
Any taxes imposed by any law of the federal government, any state or any
subdivision thereof, or any local government, on any materials, articles or
services required to be furnished by the Contractor, shall be paid by the
Contractor without recourse against or reimbursement thereof from the Owner. The
Contractor shall pay all payroll taxes, contributions, unemployment insurance or
other similar taxes now or hereafter in effect.
43. SIGNS AND ADVERTISEMENTS
Contractor may, subject to compliance with all requirements of all
public authorities having jurisdiction, display not more than one advertising
sign in a place at the site, to be designated by Architect. This sign shall be
paid for, erected, maintained and removed at the completion of the Work by the
Contractor and shall contain the project name, the Owner's and Architect's name,
his name and that of such Subcontractors as he may elect. The sign shall be of
size, type and general design as approved by the Architect and the Owner.
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Xxxxxxxx #000000
Xxxxxx #
00. CLEANING AND REMOVAL OF MATERIALS
a. It shall be the Contractor's duty to keep the buildings and the site at all
times in orderly condition for the proper coordination and prosecution of the
Work; and he shall turn over the premises to the Owner in a properly cleaned
condition as described herein.
b. The Contractor upon completion of all contract work, and prior to final
inspection and acceptance of the Work by the Architect and owner shall
thoroughly clean the site.
48. MECHANIC'S LIENS
The Contractor shall remove or bond immediately any lien on Owner's
premises that may be filed against any part of or the entire Work or against any
part of or the entire site for any work, materials, labor or services that may
be or will be furnished or alleged to be furnished by any of the Contractor's
Subcontractors or material men, whether actual or alleged. Contractor shall
indemnify and hold harmless the Owner against all loss and expenses, including
all attorney's fees, arising from each and every such lien and the removal of
each and every such lien. The Contractor further agrees that so much of the
monies due under the Contract, as may be considered necessary by the Owner, may
be retained by the Owner until all such suits, claims for damages or expenses,
as aforesaid shall have been settled and paid and each and every such lien
removed and satisfied. If the Contractor fails to remove any such lien, (in
addition to all other rights and remedies available to the Owner) the Owner may
satisfy, remove or discharge such lien; and at Owner's election, the Owner may
deduct the entire cost or any part thereof (including, but not limited to,
attorneys' fees) from the Contract Sum or Adjusted Contract Sum, as the case may
be, or the Contractor shall pay the same to the Owner upon demand.
49. FIRST AID
a. All articles necessary for "First Aid" shall be provided by the Contractor in
his field office. The Contractor shall have standing arrangements for the
immediate removal and hospital treatment of any employees who may be injured or
who may become ill.
b. In case of accidents, the Contractor shall immediately furnish the Owner with
full data relative to such accidents.
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Xxxxxxxx #000000
Xxxxxx #
00. SITE REGULATIONS
All regulations and rules of the Owner which may be in effect at the site
regarding employment, passes, badges and conduct at the site shall be rigidly
observed by the Contractor, his Subcontractors and material men and their
respective personnel and employees. The Contractor shall remove from the site or
the Work any employee not satisfactory to the Owner.
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THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
PERFORMANCE AND PAYMENT BOND
BOND NO. -PA7575001
KNOW ALL MEN BY THESE PRESENTS, that we, IROQUOIS CORPORATION 00-00 00XX XXXXXX
xx XXXX XXXXXX XXXX, XX as Principal (hereinafter called the Principal), and The
Insurance Company of the State of Pennsylvania, a corporation under the laws of
the State of Pennsylvania, as Surety (hereinafter called the Surety) are held
and firmly bound unto FEDERATED CORPORATION SERVICES, INC. 00000 XXXX XXXXXXX
XXXXXX of CINCINNATI OHIO.
(hereinafter called the Owner), and to all persons who furnish labor or material
directly to the Principal for use in the prosecution of the work hereinafter
named, in the just and full sum of ONE MILLION EIGHT HUNDRED AND EIGHT
THOUSAND DOLLARS ($1,808,000.00), to the payment of which sum, well and truly
to be made, the said Principal and Surety bind themselves, and their respective
heirs, administrators, executors, successors and assigns, jointly and severally,
firmly by these presents.
WHEREAS, the Principal has entered into a certain written contract, with the
Owner, dated the 17TH day of FEBRUARY, 1998, to DEMOLITION & RELATED WORK AT
THE A&S HEMPSTEAD DEMOLITION SITE HEMPSTEAD, NY which contract is hereby
referred to and made a part hereof as fully and to the same extent as if copied
at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS such that, if Contractor
shall promptly and faithfully perform said Contract, then this obligation shall
be null and void: otherwise it shall remain in full force and effect.
Whenever Contractor shall be, and declared by Owner to be, in default under the
Contract, the Owner having performed Owner's obligation thereunder, the Surety
may promptly remedy the default, or shall promptly
1) Complete the Contract in accordance with its terms and conditions,
or
2) Obtain a bid or bids for completing the Contract in accordance with
its terms and conditions, and upon determination by Surety of the lowest
responsible bidder, or, if the Owner elects, upon determination by the Owner
and the Surety jointly of the lowest responsible bidder, arrange for a contract
between such bidder and Owner, and make available as work progresses (even
though there should be a default or a succession of defaults under the contract
or contracts of completion arranged under this paragraph)sufficient funds to
pay the cost of completion less the balance of the contract price: but not
exceeding, including other costs and damages for which the Surety may be liable
hereunder, the amount set forth in the first paragraph hereof. The term
"balance of the contract price," as used in this paragraph, shall mean the total
amount payable by Owner to Contractor under the Contract and any amendments
thereto, less the amount properly paid by Owner to Contractor.
Any suit under this bond must be instituted before the expiration of two (2)
years from the date on which final payment under the Contract falls due.
No right of action shall accrue on this bond to or for the use of any person or
corporation other than the Owner named herein or the heirs, executors,
administrators or successors of the Owner.
NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal
shall promptly make payment to all claimants as hereinafter defined, for all
labor and material used or reasonably required for use in the performance of
the Contract, then this obligation shall be void: otherwise it shall remain in
full force and effect, subject, however, to the following conditions.
1. A claimant is defined as one having direct contract with the
Principal or with a Subcontractor of the Principal for labor, material, or
both, used or reasonably required for use in the performance of the Contract,
labor and material being construed to include that part of water, gas,light,
heat, oil, gasoline, telephone service or rental of equipment directly
applicable to the Contract.
2. The above named Principal and Surety hereby jointly and severally
agree with the Owner that every claimant as herein defined, who has not been
paid in full before the expiration of a period of ninety (90) days after the
date on which the last of such claimant's work or labor was done or performed,
or materials were furnished by such claimant, may xxx on this bond for the use
of such claimant, prosecute the suit to final judgment for such sum or sums as
may be justly due claimant, and have execution thereon. The Owner shall not be
liable for the payment of any costs or expenses of any such suit.
3. No suit or action shall be commenced hereunder by any claimant:
a. A claimant not having a direct contractual relationship with
the principal contractor shall not have a right of action upon the payment bond
unless (1) he has within 30 days after furnishing
49
NEW HAMPSHIRE INSURANCE COMPANY POWER OF ATTORNEY
Principal Bond Office: 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 PA7575001
(Void unless numbered in red)
KNOW ALL MEN BY THESE PRESENTS, that THE INSURANCE COMPANY OF THE STATE OF
PENNSYLVANIA and NEW HAMPSHIRE INSURANCE COMPANY have made, constituted and
appointed, and by these presents does make, constitute and appoint
Xxxxx X. Xxxxxxxx, III, Xxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxx, Xx., Xxxxxxx
XxXxxxx of Cherry Hill, NJ
its true and lawful attorney-in-fact, for it and in its name, place, and stead
to execute on behalf of the said Company, as surety, bonds, undertakings and
contracts of suretyship to be given to
ALL OBLIGEES
provided that no bond or undertaking or contract of suretyship executed under
this authority shall exceed in amount the sum of
******Three Million Dollars ($3,000,000.00)******
This Power of Attorney is granted and is signed and sealed by facsimile
under and by the authority of the following Resolution adopted by the Board of
Directors of the Company on the 5th day of January, 1998.
"RESOLVED, that the Chairman of the Board, the Vice Chairman of the Board,
the President an Executive Vice President or a Senior Vice President or a Vice
President of the Company, be, and that each or any of them is, authorized to
execute Powers of Attorney, qualifying the attorney-in-fact named in the given
Power of Attorney to execute in behalf of the Company, bonds, undertakings and
all contracts of suretyship: and that an Assistant Vice President, a Secretary
or an Assistant Secretary be, and that each or any of them hereby is, authorized
to attest the execution of any such Power of Attorney and to attach thereto
the seal of the Company.
FURTHER RESOLVED, that the signatures of such officers and the seal of the
Company may be affixed to any such Power of Attorney or to any certificate
relating thereto by facsimile, and any such Power of Attorney or certificate
bearing such facsimile signatures or facsimile seal shall be valid and binding
upon the Company when so affixed and in the future with respect to any bond,
undertaking or contract of suretyship to which it is attached."
In witness Whereof, The Insurance Company of the State of Pennsylvania and
New Hampshire Insurance Company has caused its official seal to be hereunto
affixed, and these presents to be signed by one of its Vice Presidents and
attested by one of its Assistant Vice Presidents this 5th day of January, 1998.
attest:
(SEAL) The Insurance Company of the State of Pennsylvania
New Hampshire Insurance Company
By
/s/ XXXXX X. XXXXX
-------------------------------------
Xxxxx X. Xxxxx, Senior Vice President
-------------------------------------------------------------------------------
XXXXXXX XXXXXXX
Notary Public, State of New York
No. 01SA4974380
Qualified in Suffolk County
Commission Expires 11/13/75
/s/ XXXXXXX XXXXXXX
---------------------------------
NOTARY SIGNATURE AND
SEAL (REQUIRED)
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss:
On this 5th day of January 1998 before me came the above named officer of The
Insurance Company of the State of Pennsylvania and New Hampshire Insurance
Company, to me personally known to be the individual and officer described
herein, and acknowledged that he executed the foregoing instrument and affixed
the seals of said corporations thereto by authority of his office.
-------------------------------------------------------------------------------
I, Xxxxxxxxx Xxxx, Secretary of The Insurance Company of the State of
Pennsylvania and New Hampshire Insurance Company do hereby certify that the
foregoing and attached Power of Attorney remains in full force and has not been
revoked; and therefore that the Resolutions of the Board of Directors, act
forth in the said Power of Attorney, is now in force.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal
of each corporation
(SEAL) this 1ST day of APRIL, 1998
/s/ XXXXXXXXX X. XXXX
-----------------------------
Xxxxxxxxx X. Xxxx, Secretary
50
THE INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
Executive Offices
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
--------------------------------------------------------------------------------
FINANCIAL STATEMENT
as of December 31, 1996
ASSETS LIABILITIES
------ -----------
Bonds ......................................... $ 809,672,652 Reserve for Losses and Loss Expense ......... $ 746,162,443
Stocks ........................................ 490,322,429 Reserve for Unearned Premiums ............... 189,453,341
Collateral Loans .............................. -0- Reserve for Expenses, Taxes,
Cash & Short-Term Investments ................. 840,837 Licenses and Fees ......................... 1,439,332
Agents' Balances or Uncollected Premiums ...... 289,007,135 Provisions for Reinsurance .................. 22,785,096
Funds Held By Ceding Reinsurers ............... 1,260,935 Funds Held Under Reinsurance Treaties ....... 14,927,709
Reinsurance Recoverable on Loss Payments ...... 70,524,427 Other Liabilities ........................... 17,735,784
Equities & Deposits in Pools & Associations.... 23,734,640 Capital Stock ............................... 5,005,500
Other Admitted Assets ......................... 128,789,245 Surplus ..................................... 616,643,095
--------------
TOTAL ASSETS ............................. $1,614,152,300 TOTAL POLICYHOLDERS' SURPLUS................. 621,648,595
-------------- --------------
TOTAL LIABILITIES AND POLICYHOLDERS'
SURPLUS ..................................... $1,614,152,300
--------------
--------------------------------------------------------------------------------
Bonds and stocks are valued in accordance with the basis adopted by the
National Association of Insurance Commissioners.
Securities carried at $109,809,196 in the above Statement are deposited as
required by law.
--------------------------------------------------------------------------------
CERTIFICATE
XXXXXXXXX X. XXXX, Secretary and XXXXXXX X. XXXXXXXX, Comptroller of The
Insurance Company of the State of Pennsylvania being duly sworn, each for
himself deposes and says that they are above described officers of the said
Company and that on the 31st day of December, 1996, the Company actually
possessed the assets set forth in the foregoing statement and that such assets
were available for the payment of losses and claims and held for the protection
of its policyholders and creditors, except as hereinbefore indicated, and that
the foregoing statement is a correct exhibit of such assets and liabilities of
the said company on the 31st day of December, 1996, according to the best of
their information, knowledge and belief, respectively.
[SEAL] /s/ XXXXXXXXX X. XXXX /s/ XXXXXXX X. XXXXXXXX
---------------------- -----------------------
Secretary Comptroller
--------------------------------------------------------------------------------
STATE OF NEW YORK ) SS.:
COUNTY OF NEW YORK )
On this 1st Day of April, 1997 /s/ XXXXX XXXXX
Before me came the above named officers --------------------------------
of the AIU Insurance Company, to me XXXXX XXXXX
personally shown to be the individuals Notary Public, State of New York
and officers described herein, and No. 01RA5052011
acknowledged that they executed the Qualified in Kings County
foregoing instrument and attached the
seal of said corporation thereto by
authority of their offices.
51
the first of such material or performance the first of such labor served on the
principal contractor, a written notice, which shall inform the principal of the
nature of the materials being furnished or to be furnished, or labor being
performed or to be performed, and identifying the party contracting for such
labor or materials and the site for the performance of such labor or the
delivery of such materials, and (2) he has given written notice to the principal
contractor and the governmental unit involved within 30 days from the date on
which the claimant performed the last of the labor or furnished or supplied the
last of the material for which the claim is made, stating with substantial
accuracy the amount claimed and the name of the party to whom the material was
furnished or supplied or for whom the labor was done or performed.
b. After the expiration of one (1) year following the date on which Principal
ceased Work on said Contract, it being understood, however, that if any
limitations embodied in this bond are prohibited by [?????] laws controlling
the construction hereof, such limitations shall be deemed to be amended so as
to be equal to the minimum period of limitations permitted by such law.
c. Other than in a state court of competent jurisdiction in and for the county
or other political subdivision of the state in which the Project, or any part
thereof, is situated, or in the United States District Court for the district
in which the Project, or any part thereof, is situated, and not elsewhere.
4. The amount of this bond shall be reduced by and to the extent of any payment
or payments made in good faith hereunder, inclusive of the payment by Surety of
mechanics' liens which may be filed of record against said improvement, whether
or not claim for the amount of such lien be presented under and against this
bond.
Signed and sealed this 1ST day of APRIL, 1998.
IROQUOIS CORPORATION
/s/ [SIG] /s/ [SIG] (President)
--------------------------------------- ---------------------------------------
(Witness) (Principal) (Seal)
THE INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
/s/ XXXXX X. XXXXX
---------------------------------------
XXXXX X. XXXXX (Witness) By: /s/ XXXXXXX X. XXXXXXX, XX.
---------------------------------------
(Seal)
Xxxxxxx X. Xxxxxxx, Xx. (Attorney-in-Fact)
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