STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR WHERE THE BASIS OF
PAYMENT IS THE COST OF THE WORK PLUS A FEE WITH OR WITHOUT A GUARANTEED
MAXIMUM PRICE
AIA Document A111 - Electronic Format
AGREEMENT
made as of the 25th day of July in the year of Nineteen Hundred and Ninety-
six.
BETWEEN the Owner:
(Name and address)
Microware Systems Corporation
0000 X.X. 000xx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
and the Contractor:
The Xxxxx Company, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
the Project is:
(Name and address)
Microware Corporation Headquarters
Clive, IA
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY
IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION
OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT
D401.
The 1987 Edition of AIA Document A201, General Conditions of the Contract for
Construction, is adopted in this document by reference. Do not use with other
general conditions unless this document is modified. This document has been
approved and endorsed by The Associated General Contractors of America.
The Architect is:
(Name and address)
Savage-Ver Ploeg & Associates
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxx Xxxxxx, XX 00000
The Owner and Contractor agree as set forth below.
ARTICLE 1
THE CONTRACT DOCUMENTS
1.1 The Contract Documents consist of this Agreement, Conditions of the
Contract (General, Supplementary and other Conditions), Drawings,
Specifications, Addenda issued prior to execution of this Agreement, other
documents listed in this Agreement and Modifications issued after execution of
this Agreement; these form the Contract, and are as fully a part of the
Contract as if attached to this Agreement or repeated herein. The Contract
represents the entire and integrated agreement between the parties hereto and
supersedes prior negotiations, representations or agreements, either written
or oral. An enumeration of the Contract Documents, other than Modifications,
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appears in Article 16. If anything in the other Contract Documents is
inconsistent with this Agreement, this Agreement shall govern.
ARTICLE 2
THE WORK OF THIS CONTRACT
2.1 The Contractor shall execute the entire Work described in the Contract
Documents, except to the extent specifically indicated in the Contract
Documents to be the responsibility of others, or as follows:
Construction services for the Corporate Headquarters for Microware Systems
Corporation located in Clive, IA.
ARTICLE 3
RELATIONSHIP OF THE PARTIES
3.1 The Contractor accepts the relationship of trust and confidence
established by this Agreement and covenants with the Owner to cooperate with
the Architect and utilize the Contractor's best skill, efforts and judgment in
furthering the interests of the Owner; to furnish efficient business
administration and supervision; to make best efforts to furnish at all times
and adequate supply of workers and materials, and to perform the Work in the
best way and most expeditious and economical manner consistent with the
interests of the Owner. The Owner agrees to exercise best efforts to enable
the Contractor to perform the Work in the best way and most expeditious manner
by furnishing and approving in a timely way information required by the
Contractor in accordance with requirements of the Contract Documents.
3.1.1 For the purpose of the agreement the Project Consultant is:
Xxx XxXxxxxx
Mid-America Group, Ltd.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxx Xxxxxx, XX 00000
ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1 The date of commencement is the date from which the Contract Time of
Subparagraph 4.2 is measured; it shall be the date of this Agreement, as first
written above, unless a different date is stated below or provision is made
for the date to be fixed in a notice to proceed issued by the Owner.
(Insert the date of commencement, if it differs from the date of this
Agreement or, if applicable, state that the date will be fixed in a notice to
proceed.)
August 1, 1996
Unless the date of commencement is established by a notice to proceed issued
by the Owner, the Contractor shall notify the Owner in writing not less than
five days before commencing the Work to permit timely filing of mortgages,
mechanic's liens and other security interests.
4.2 The Contractor shall achieve Substantial Completion of the entire Work not
later than (Insert the calendar date or number of calendar days after the date
of commencement. Also insert any requirements for earlier Substantial
Completion of certain portions of the Work, if not stated elsewhere in the
Contract Documents.)
June 15, 1997
, subject to adjustments of this Contract Time as provided in the Contract
Documents.
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(Insert provisions, if any, for liquidated damages relating to failure to
complete on time.)
ARTICLE 5
CONTRACT SUM
5.1 The Owner shall pay the Contractor in current funds for the Contractor's
performance of the Contract the Contract Sum consisting of the Cost of the
Work as defined in Article 7 and the Contractor's Fee determined as follows:
(State a lump sum, percentage of Cost of the Work or other provision for
determining the Contractor's Fee, and explain how the Contractor's Fee is to
be adjusted for changes in the Work.)
The Fee shall be $165,000.
5.2 GUARANTEED MAXIMUM PRICE (IF APPLICABLE)
5.2.1 The sum of the Cost of the Work and the Contractor's Fee shall be
guaranteed by the Contractor not to exceed (See 5.2.1.1) Dollars ($ ),
subject to additions and deductions by Change Order as provided in the
Contract Documents. Such maximum sum is referred to in the Contract Documents
as the Guaranteed Maximum Price. Costs which would cause the Guaranteed
Maximum Price to be exceeded shall be paid by the Contractor without
reimbursement by the Owner.
(Insert specific provisions if the Contractor is to participate in any
savings.)
All savings shall be split 50% to Microware Systems Corporation and 50% to The
Xxxxx Company, Inc.
5.2.1.1 At the execution of this agreement, the target Guaranteed Maximum
Price (GMP) is $5,269,000. The final GMP shall be established by September 1,
1996. Tenant Improvements will be carried as an allowance if sufficient
design information is not available.
(State the numbers or other identification of accepted alternates, but only if
a Guaranteed Maximum Price is inserted in Subparagraph 5.2.1. If decisions
on other alternates are to be made by the Owner subsequent to the execution of
this Agreement, attach a schedule of such other alternates showing the amount
for each and the date until which that amount is valid.)
It is agreed that the Guaranteed Maximum Price may include certain items for
which all specifications or determinations have not been made, and thus
estimates of cost cannot be made. For such items, reasonable allowances have
been made based upon experience and customary practice, and all such items are
specifically listed as "allowance" items on the breakdown on the Guaranteed
Maximum Price. When the actual costs of each allowance item is determined,
such actual cost shall be submitted in place of the applicable allowance.
Whenever costs are less than a stated allowance, 100% of the difference will
be returned to the Owner by Change Order. Whenever costs are more than a
stated allowance, the Contract Sum will be adjusted by change or per Article 5
and 6 accordingly.
5.2.3 The amount agreed to for unit prices, if any, are as follows:
(State unit prices only if a Guaranteed maximum Price is inserted in
Subparagraph 5.2.1)
It is the intent of the Owner to release initial work scopes through Project
work orders (see Exhibit B) prior to establishment of the Guaranteed Maximum
Price. All Project work orders executed prior to the GMP will be incorporated
within the GMP, when established.
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It is the Owner, Architect, and the Contractor's intent to establish the GMP
following completion of all Design Documents and bidding of all trade
packages, materials, and determination of Project costs. Allowances and
contingencies, if any, will be incorporated within the GMP with prior
agreement by all parties.
The Contractor will provide total Project cost estimates, incorporating all
information known to date, and track final bid packages compared to the
Project budget, until the GMP is established.
ARTICLE 6
CHANGES IN THE WORK
6.1 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
6.1.1 Adjustments to the Guaranteed Maximum Price on account of changes in
the Work may be determined by any of the methods listed in Subparagraph 7.3.3
of the General Conditions.
6.1.2 In calculating adjustments to subcontracts (except those awarded with
the Owner's prior consent on the basis of cost plus a fee), the terms "cost"
and "fee" as used in Clause 7.3.3.3 of the General Conditions and the terms
"costs" and "a reasonable allowance for overhead and profit" as used in
Subparagraph 7.3.6 of the General Conditions shall have the meanings assigned
to them in the General Conditions and shall not be modified by Articles 5, 7
and 8 of this Agreement. Adjustments to subcontracts awarded with the Owner's
prior consent on the basis of cost plus a fee shall be calculated in
accordance with the terms of those subcontracts.
6.1.3 In calculating adjustments to this Contract, the terms "cost" and
"costs" as used in the above-referenced provisions of the General Conditions
shall mean the Cost of Work as defined in Article 7 of this Agreement and the
terms "fee" and "a reasonable allowance for overhead and profit" shall mean
the Contractor's Fee as defined in Paragraph 5.1 of this Agreement.
6.1.4 After the GMP is established, the fee shall be fixed. The first
$100,000 of additive changes shall be at cost with no fee xxxx-up. All
changes after the $100,000 threshold is reached shall have a xxxx-up of 4% for
Contractor's fee. All costs shall be identified in Article 7 and 8.
6.2 CONTRACTS WITHOUT A GUARANTEED MAXIMUM PRICE
6.3 ALL CONTRACTS
6.3.1 If no specific provision is made in Paragraph 5.1 for adjustment of the
Contractor's Fee in the case of changes in the Work, or if the extent of such
changes is such, in the aggregate, that application of the adjustment
provisions of Paragraph 5.1 will cause substantial inequity to the Owner or
Contractor, the Contractor's Fee shall be equitably adjusted on the basis of
the Fee established for the original Work.
ARTICLE 7
COSTS BE TO REIMBURSED
7.1 The term Cost of the Work shall mean costs necessarily incurred by the
Contractor in the proper performance of the Work. Such costs shall be at
rates not higher than the standard paid at the place of the Project except
with prior consent of the Owner. The Cost of the Work shall include only the
items set forth in this Article 7.
7.1.1 LABOR COSTS
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7.1.1.1 Wages of construction workers directly employed by the Contractor to
perform the construction of the Work at the site or, with the Owner's
agreement, at off-site workshops.
7.1.1.2 Wages or salaries of the Contractor's supervisory and administrative
personnel when stationed at the site with the Owner's agreement. See attached
7.1.1.2.
(If it is intended that the wages or salaries of certain personnel stationed
at the Contractor's principal or other offices shall be included in the Cost
of the Work, identify in Article 14 the personnel to be included and whether
for all or only part of their time.)
7.1.1.2 Wages or salaries of Contractor's employees, in that capacity
employed in the performance of the Work. Wages or salaries of the
Contractor's supervisory and administrative personnel wherever stationed, not
limited to the job site, and in that capacity employed. If personnel are not
stationed at the job site, the charging rates will apply on a pro-rated hourly
basis to only time spent specifically on work for this project. In lieu of
actual wages or salaries, the charging rates below shall apply.
Project Manager $2,000/Week
Project Engineer $1,250/Week
Project Superintendent $1,950/Week
Estimator
Project Coordinator $750/Week
Assistant Superintendent $1,500/Week (If necessary)
7.1.1.3 Wages and salaries of the Contractor's supervisory or administrative
personnel engaged, at factories, workshops or on the road, in expediting the
production or transportation of materials or equipment required for the Work,
but only for the portion of their time required for the Work, with prior
consent of the Owner.
7.1.1.4 Costs paid or incurred by the Contractor for taxes, insurance,
contributions, assessments and benefits required by law or collective
bargaining agreements and, for personnel not covered by such agreements,
customary benefits such as sick leave, medical and health benefits, holidays,
vacations and pensions, provided such costs are based on wages and salaries
included in the Cost of the Work under Clauses 7.1.1.1 through 7.1.1.3.
7.1.2 SUBCONTRACT COSTS
Payments made by the Contractor to Subcontractors in accordance with the
requirements of the subcontracts.
7.1.3 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION
7.1.3.1 Costs, including transportation, of materials and equipment
incorporated or to be incorporated in the completed construction.
7.1.3.2 Costs of materials described in the preceding Clause 7.1.3.1 in
excess of those actually installed but required to provide reasonable
allowance for waste and for spoilage. Unused excess materials, in any, shall
be handed over to the Owner at the completion of the Work, or at the Owner's
option, shall be sold by the Contractor; amounts realized, if any, from such
sales shall be credited to the Owner as a deduction from the Cost of the Work.
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7.1.4 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITES AND RELATED
ITEMS
7.1.4.1 Costs, including transportation, installation, maintenance,
dismantling and removal of materials, supplies, temporary facilities,
machinery, equipment, and hand tools not customarily owned by the construction
workers, which are provided by the Contractor at the site and fully consumed
in the performance of the Work; and cost less fair market value on such items
if not fully consumed, whether sold to others or retained by the Contractor.
Cost for items previously used by the Contractor shall mean fair market value.
7.1.4.2 Rental charges for temporary facilities, machinery, equipment, and
hand tools not customarily owned by the construction workers, which are
provided by the Contractor at the site, whether rented from the Contractor or
others, and costs of transportation, installation, minor repairs and
replacements, dismantling and removal thereof. Rates and quantities of
equipment rented shall be subject to the Owner's prior approval. See Attached
7.1.4.2.1
7.1.4.2.1 Attached, as Exhibit A, is the schedule for major equipment rental
rates to be used on the project. These rates are to be used for the duration
of the Project.
7.1.4.3 Costs of removal of debris from the site.
7.1.4.4 Costs of telegrams and long-distance telephone calls, postage and
parcel delivery charges, telephone service at the site and reasonable xxxxx
cash expenses of the site office.
7.1.4.5 That portion of the reasonable travel and subsistence expenses of the
Contractor's personnel incurred while traveling in discharge of duties
connected with the Work, with prior consent of the Owner.
7.1.5 MISCELLANEOUS COSTS
7.1.5.1 That portion directly attributable to this Contract of premiums for
insurance and bonds.
7.1.5.2 Sales, use or similar taxes imposed by a governmental authority which
are related to the Work and for which the Contractor is liable.
7.1.5.3 Fees and assessments for the building permit and for other permits,
licenses and inspections for which the Contractor is required by the Contracts
Documents to pay.
7.1.5.4 Fees of testing laboratories for tests required by the Contract
Documents, except those related to defective or nonconforming Work for which
reimbursement is excluded by Subparagraph 13.5.3 of the General Conditions or
other provisions of the Contract Documents and which do not fall within the
scope of Subparagraphs 7.2.2 through 7.2.4 below.
7.1.5.5 Royalties and license fees paid for the use of a particular design,
process or product required by the Contract Documents; the cost of defending
suits or claims for infringement of patent rights arising from such
requirement by the Contract Documents; payments made in accordance with legal
judgments against the Contractor resulting from such suits or claims and
payments of settlements made with the Owner's consent; provided, however, that
such costs of legal defenses, judgments and settlements shall not be included
in the calculation of the Contractor's Fee or of a Guaranteed Maximum Price,
if any, and provided that such royalties, fees and costs are not excluded by
the last sentence of Subparagraph 3.17.1 of the General Conditions or other
provisions of the Contract Documents.
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7.1.5.6 Deposits lost for causes other than the Contractor's fault or
negligence.
7.1.6 OTHER COSTS
7.1.6.1 Other costs incurred in the performance of the Work if and to the
extent approved in advance in the writing of the Owner.
7.1.6.2 Utility fees including but not limited to water, steam, gas, oil,
electricity, snow removal, winterizing and temporary toilets; protection and
altering of public utility; protection and repairs of adjoining property;
rental property for storage of materials to be incorporated in the Work.
General Liability insurance charges shall be reimbursed at the rate of
$8.50 per thousand times the total Cost of the Work per Article 7, including
Fee.
7.2 EMERGENCIES: REPAIRS TO DAMAGED, DEFECTIVE OR NONCONFORMING WORK
The Cost of the Work shall also include costs described in Paragraph 7.1 which
are incurred by the Contractor:
7.2.1 In taking action to prevent threatened damage, injury or loss in case
of an emergency affecting the safety of persons and property, as provided in
Paragraph 10.3 of the General Conditions.
7.2.2 In repairing or correcting Work damaged or improperly executed by
construction workers in the employ of the Contractor, provided such damage or
improper execution did not result from the fault or negligence of the
Contractor or the Contractor's foremen, engineers or superintendents, or other
supervisory, administrative or managerial personnel of the Contractor.
7.2.3 In repairing damaged Work other than that described in Subparagraph
7.2.2, provided such damage did not result from the fault or negligence of the
Contractor or the Contractor's personnel, and only to the extent that the cost
of such repairs is not recoverable by the Contractor from others and the
Contractor is not compensated therefor by insurance or otherwise.
7.2.4 In correcting defective of nonconforming Work performed or supplied by
a Subcontractor or material supplier and not corrected by them, provided such
defective or nonconforming Work did not result from the fault of neglect of
the Contractor of the Contractor's personnel adequately to supervise and
direct the Work of the Subcontractor or material supplier, and only to the
extent that the cost of correcting the defective or nonconforming Work is not
recoverable by the Contractor from the Subcontractor or material supplier.
ARTICLE 8
COSTS NOT TO BE REIMBURSED
8.1 The Cost of the Work shall not include:
8.1.1 Salaries and other compensation of the Contractor's personnel stationed
at the Contractor's principal office or offices other than the site office,
except as specifically provided in Clauses 7.1.1.2 and 7.1.1.3 or as may be
provided in Article 14.
8.1.2 Expenses of the Contractor's principal office and offices other than
the site office.
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8.1.3 Overhead and general expenses, except as may be expressly included in
Article 7.
8.1.4 The Contractor's capital expenses, including interest on the
Contractor's capital employed for the Work.
8.1.5 Rental costs of machinery and equipment, except as specifically
provided in Clause 7.1.4.2.
8.1.6 Except as provided in Subparagraphs 7.2.2 through 7.2.4 and Paragraph
13.5 of this Agreement, costs due to the fault or negligence of the
Contractor, Subcontractors, anyone directly or indirectly employed by any of
them, or for whose acts any of them may be liable, including but not limited
to costs for the correction of damaged, defective or nonconforming Work,
disposal and replacement of materials and equipment incorrectly ordered or
supplied, and making good damage to property not forming part of the Work.
8.1.7 Any cost not specifically and expressly described in Article 7.
8.1.8 Costs which would cause the Guaranteed Maximum Price, if any, to be
exceeded.
ARTICLE 9
DISCOUNTS, REBATES AND REFUNDS
9.1 Cash discounts obtained on payments made by the Contractor shall accrue
to the Owner if (1) before making the payment, the Contractor included them in
an application for Payment and received payment therefor from the Owner, or
(2) the Owner has deposited funds with the Contractor with which to make
payments; otherwise, cash discounts shall accrue to the Contractor. Trade
discounts, rebates, refunds and amounts received from sales of surplus
materials and equipment shall accrue to the Owner, and the Contractor shall
make provisions so that they can be secured.
9.2 Amounts which accrue to the Owner in accordance with the provisions of
Paragraph 9.1 shall be credited to the Owner as a deduction from the Cost of
the Work.
ARTICLE 10
SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Contractor does not customarily
perform with the Contractor's own personnel shall be performed under
subcontracts or by other appropriate agreements with Contractor. The
Contractor shall obtain bids from Subcontractors and from suppliers of
materials or equipment fabricated especially for the Work and shall deliver
such bids to the Architect. The Owner will then determine, with the advice of
the Contractor and subject to the reasonable objection of the Architect, which
bids will be accepted. The Owner may designate specific persons or entities
from whom the Contractor shall obtain bids; however, if a Guaranteed Maximum
Price has been established, the Owner may not prohibit the Contractor from
obtaining bids from others. The Contractor shall not be required to contract
with anyone to whom the Contractor has reasonable objection.
10.2 If a Guaranteed Maximum Price has been established and a specific bidder
among those whose bids are delivered by the Contractor to the Architect (1) is
recommended to the Owner by the Contractor; (2) is qualified to perform that
portion of the Work; and (3) has submitted a bid which conforms to the
requirements of the Contract Documents without reservations or exceptions, but
the Owner required that another bid be accepted; then the Contractor may
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require that a Change Order be issued to adjust the Guaranteed Maximum Price
by the difference between the bid of the person or entity recommended to the
Owner by the Contractor and the amount of the subcontract or other agreement
actually signed with the person or entity designated by the Owner.
10.3 Subcontracts or other agreements shall conform to the payment provisions
of Paragraph 12.7 and 12.8, and shall not be awarded on the basis of cost plus
a fee without the prior consent of the Owner.
10.4 The Owner, Project Consultant, Architect, and Contractor team shall
jointly determine accepted subcontractor and supplier bidder's lists prior to
release of specific bid packages. The Contractor shall prepare initial lists
for approval/revisions by the team.
ARTICLE 11
ACCOUNTING RECORDS
11.1 The Contractor shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this
Contract; the accounting and control systems shall be satisfactory to the
Owner. The Owner and the Owner's accountants shall be afforded access to, and
can request copies of, the Contractor's records, books, correspondence,
instructions, drawings, receipts, subcontracts, purchase orders, vouchers,
memoranda and other data relating to this Contract, and the Contractor shall
preserve these for a period of three years after final payment, or for such
longer period as may be required by law.
ARTICLE 12
PROGRESS PAYMENTS
12.1 Based upon Applications for Payment submitted to the Architect by the
Contractor and Certificates for Payment issued by the Architect, the Owner
shall make progress payments on account of the Contract Sum to the Contractor
as provided below and elsewhere in the Contract Documents.
12.2 The period covered by each Application for Payment shall be one calendar
month ending on the last day of the month, or as follows:
12.3 Provided and Application for Payment is received by the Architect not
later than the first day of a month, the Owner shall make payment to the
Contractor not later than the twenty-fifth day of the same month. If an
Application for Payment is received by the Architect after the application
date fixed above, payment shall be made by the Owner not later than twenty-
five days after the Architect receives the Application for Payment.
12.4 With each Application for Payment, the Contractor shall submit
supporting records and other evidence as mutually agreed between the Owner or
Architect and Contractor to demonstrate expenditures incurred. Additional
information will be provided to the Owner and Architect by the Contractor, if
requested.
12.5 CONTRACTS WITH A GUARANTEED MAXIMUM PRICE
12.5.1 Each Application for Payment shall be based upon the most recent
schedule of values submitted by the Contractor in accordance with the Contract
Documents. The schedule of values shall allocate the entire Guaranteed
Maximum Price among the various portions of the Work, except that the
Contractor's Fee shall be shown as a single separate item. The schedule of
values shall be prepared in such form and supported by such data to
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substantiate its accuracy as the Architect may require. This schedule, unless
objected to by the Architect, shall be used as a basis for reviewing the
Contractor's Applications for Payment.
12.5.2 Applications for Payment shall show the percentage completion of each
portion of the Work as of the end of the period covered by the Application for
Payment. The percentage completion shall be the percentage of that portion of
the Work which has actually been completed.
12.5.3 Subject to other provisions of the Contract Documents, the amount of
each progress payment shall be computed as follows:
12.5.3.1 Take that portion of the Guaranteed Maximum Price properly allocable
to completed Work as determined by multiplying the percentage completion of
each portion of the Work by the share of the Guaranteed Maximum Price
allocated to that portion of the Work in the schedule of values. Pending
final determination of cost to the Owner of changes in the Work, amounts not
in dispute may be included as provided in Subparagraph 7.3.7 of the General
Conditions, even though the Guaranteed Maximum Price has not yet been adjusted
by the Change Order.
12.5.3.2 Add that portion of the Guaranteed Maximum Price properly allocable
to materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work or, if approved in advance by the Owner,
suitably stored off the site at a location agreed upon in writing.
12.5.3.4 Subtract the aggregate of previous payments made by the Owner.
12.5.3.6 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment as provided in Paragraph 9.5 of the
General Conditions.
12.5.4 Additional retainage, if any, shall be as follows:
(If it is intended to retain additional amounts from progress payments to the
contractor beyond (1) the retainage from the Contractor's Fee provided in
Clause 12.5.3.3, (2) the retainage from Subcontractors provided in Paragraph
12.7 below, and (3) the retainage, if any, provided by other provisions of the
Contract, insert provision for such additional retainage here. Such
provision, if made, should also describe any arrangement for limiting or
reducing the amount retained after the Work reaches a certain state of
completion.)
12.6 CONTRACTS WITHOUT A GUARANTEED MAXIMUM PRICE
12.7 Except with the Owner's prior approval, payments to Subcontractors
included in the Contractor's Applications for Payment shall not exceed an
amount for each Subcontractor calculated as follows:
12.7.1 Take that portion of the Subcontract Sum properly allocable to
completed Work as determined by multiplying the percentage completion of each
portion of the Subcontractor's Work by the share of the total Subcontract Sum
allocated to that portion in the Subcontractor's schedule of values, less
retainage of five percent (5%). Pending final determination of amounts to be
paid to the Subcontractor for changes in the Work, amounts not in dispute may
be included as provided in Subparagraph 7.3.7 of the General Conditions even
though the Subcontract Sum has not yet been adjusted by Change Order.
12.7.2 Add that portion of the Subcontract Sum properly allocable to
materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work or, if approved in advance by the Owner,
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suitably stored off the site at a location agreed upon in writing, less
retainage of five percent (5%).
12.7.3 Subtract the aggregate of previous payments made by the Contractor to
the Subcontractor.
12.7.4 Subtract amounts, if any, for which the Architect has withheld or
nullified a Certificate for Payment by the Owner to the Contractor for reasons
which are the fault of the Subcontractor.
12.7.5 Add, upon Substantial Completion of the entire Work of the Contractor,
a sum sufficient to increase the total payments to the Subcontractor to one
hundred percent (100%) of the Subcontract Sum, less amounts, if any, for
incomplete Work and unsettled claims; and, if final completion of the entire
Work is thereafter materially delayed through no fault of the Subcontractor,
add any additional amounts payable on account of Work of the Subcontractor in
accordance with Subparagraph 9.10.3 of the General Conditions.
12.7.6 Upon written approval by the Owner, the Contractor will be paid for
and release to subcontractors retention on subcontracts which are completed to
the satisfaction of the Owner, Project Manager, Architect, and the Contractor.
(If it is intended, prior to Substantial Completion of the entire Work of the
Contractor, to reduce or limit the retainage from Subcontractors resulting
from the percentages inserted in Subparagraphs 12.7.1 and 12.7.2 above, and
this is not explained elsewhere in the Contract Documents, insert here
provisions for such reduction or limitation.)
The subcontract Sum is the total amount stipulated in the subcontract to be
paid by the Contractor to the Subcontractor for the Subcontractor's
performance of the subcontract.
12.8 Except with the Owner's prior approval, the Contractor shall not make
advance payments to suppliers for materials or equipment which have not been
delivered and stored at the site.
12.9 In taking action on the Contractor's Applications for Payment, the
Architect shall be entitled to rely on the accuracy and completeness of the
information furnished by the Contractor and shall not be deemed to represent
that the Architect has made a detailed examination, audit or arithmetic
verification of the documentation submitted in accordance with Paragraph 12.4
or other supporting data; that the Architect has made exhaustive or continuous
on-site inspections of that the Architect has made examinations to ascertain
how or for what purposes the Contractor has used amounts previously paid on
account of the Contract. Such examinations, audit and verifications, if
required by the Owner, will be performed by the Owner's accountants acting in
the sole interest of the Owner.
ARTICLE 13
FINAL PAYMENT
13.1 Final payment shall be made by the Owner to the Contractor when (1) the
Contract has been fully performed by the Contractor except for the
Contractor's responsibility to correct defective or nonconforming Work, as
provided in Subparagraph 12.2.2 of the General Conditions, and to satisfy
other requirements, if any, which necessarily survive final payment; (2) a
final Application for Payment and a final accounting for the Cost of the Work
have been submitted by the Contractor and reviewed by the Owner's accountants;
and (3) a final Certificate for Payment has then been issued by the Architect;
such final payment shall be made by the Owner not more than 30 days after the
issuance of the Architect's final Certificate for Payment, or as follows:
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13.2 The amount of the final payment shall be calculated as follows:
13.2.1 Take the sum of the Cost of the Work substantiated by the Contractor's
final accounting and the Contractor's Fee; but not more than the Guaranteed
Maximum Price, if any.
13.2.2 Subtract amounts, if any, for which the Architect withholds, in whole
or in part, a final Certificate for Payment as provided in Subparagraph 9.5.1
of the General Conditions or other provisions of the Contract Documents.
13.2.3 Subtract the aggregate of previous payments made by the Owner.
If the aggregate of the previous payments made by the Owner exceeds the amount
due the Contractor, the Contractor shall reimburse the difference to the
Owner.
13.3 The Owner's accountants will review and report in writing on the
Contractor's final accounting within 30 days after delivery of the final
accounting to the Architect by the Contractor. Based upon such Cost of Work
as the Owner's accountants report to be substantiated by the Contractor's
final accounting, and provided the other conditions of Paragraph 13.1 have
been met, the Architect will, within seven days after receipt of the written
report of the Owner's accountants, either issue to the Owner a final
Certificate for Payment with a copy to the Contractor, or notify the
Contractor and Owner in writing of the Architect's reasons for withholding a
certificate as provided in Subparagraph 9.5.1 of the General Conditions. The
time periods stated in this Paragraph 13.3 supersede those stated in
Subparagraph 9.4.1 of the General Conditions.
13.4 If the Owner's accountants report the Cost of the Work as substantiated
by the Contractor's final accounting to be less than the amount claimed by the
Contractor, the Contractor shall be entitled to demand arbitration of the
disputed amount without a further decision by the Architect. Such demand
arbitration shall be made by the Contractor within 30 days after the
Contractor's receipt of a copy of the Architect's final Certificate for
Payment; failure to demand arbitration within this 30-day period shall result
in the substantiated amount reported by the Owner's accountants becoming
binding on the Contractor. Pending a final resolution by arbitration, the
Owner shall pay the Contractor the amount certified in the Architect's final
Certificate for Payment.
13.5 If, subsequent to final payment and at the Owner's request, the
Contractor incurs costs described in Article 7 and not excluded by Article 8
to correct defective or nonconforming Work, the Owner shall reimburse the
Contractor such costs and the Contractor's Fee applicable thereto on the same
basis as if such costs had been incurred prior to final payment, but not in
excess of the Guaranteed Maximum Price, if any. If the Contractor has
participated in savings provided in Paragraph 5.2, the amount of such savings
shall be recalculated and appropriate credit given to the Owner in determining
the net amount to be paid by the Owner to the Contractor.
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 Where reference is made in this Agreement to a provision of the General
Conditions or another Contract Document, the reference refers to that
provision as amended or supplemented by other provisions of the Contract
Documents.
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14.2 Payments due and unpaid under the Contract shall bear interest from the
date payment is due at the rate stated below, or in the absence thereof, at
the legal rate prevailing from time to time at the place where the Project is
located.
(Insert rate of interest agreed upon, in any.)
6% per annum
(Usury laws and requirements under the Federal Truth in Lending Act, similar
state and local consumer credit laws and other regulations at the Owner's and
Contractor's principal places of business, the location of the Project and
elsewhere may affect the validity of this provision. Legal advice should be
obtained with respect to deletions or modifications, and also regarding
requirements such as written disclosures or waivers.)
14.3 Other provisions:
14.3 The Owner hereby designates Xxx Xxxxxx or other designees as its
representative, with authority to approve changes in the Work. Such
representative shall be reasonably available and, in all cases, such
representative's signature shall be final and binding on the Owner.
14.4 Notices required or desired to be made under this Agreement shall, if
mailed, be mailed to the party at the address set forth above.
ARTICLE 15
TERMINATION OR SUSPENSION
15.1 The Contract may be terminated by the Contractor as provided in Article
14 of the General Conditions; however, the amount to be paid to the Contractor
under Subparagraph 14.1.2 of the General Conditions shall not exceed the
amount the Contractor would be entitled to receive under Paragraph 15.3 below,
except that the Contractor's Fee shall be calculated as if the Work had been
fully completed by the Contractor, including a reasonable estimate of the Cost
of the Work for Work not actually completed.
15.2 If a Guaranteed Maximum Price is established in Article 5, the Contract
may be terminated by the Owner for cause as provided in Article 14 of the
General Conditions; however, the amount, if any, to be paid to the Contractor
under Subparagraph 14.2.4 of the General Conditions shall not cause the
Guaranteed Maximum Price to be exceeded, nor shall it exceed the amount the
Contractor would be entitled to receive under Paragraph 15.3 below.
15.3 If no Guaranteed Maximum Price is established in Article 5, the Contract
may be terminated by the Owner for cause as provided in Article 14 of the
General Conditions; however, the Owner shall then pay the Contractor an amount
calculated as follows:
15.3.1 Take the Cost of the Work incurred by the Contractor to the date of
termination.
15.3.2 Add the Contractor's Fee computed upon the Cost of the Work to the
date of termination at the rate stated in Paragraph 5.1 or, if the
Contractor's Fee is stated as a fixed sum in that Paragraph, an amount which
bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time
of termination bears to a reasonable estimate of the probable Cost of the Work
upon its completion.
15.3 Subtract the aggregate of previous payments made by the Owner.
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The Owner shall also pay the Contractor fair compensation, either by purchase
or rental at the election of the Owner, for any equipment owned by the
Contractor which the Owner elects to retain and which is not otherwise
included in the Cost of the Work under Subparagraph 15.3.1. To the extent
that the Owner elects to take legal assignment of subcontracts and purchase
orders (including rental agreements), the Contractor shall, as a condition of
receiving the payments referred to in this Article 15, execute and deliver all
such papers and take all such steps, including the legal assignment of such
subcontracts and other contractual rights of the Contractor, as the Owner may
require for the purpose of fully vesting in the Owner the rights and benefits
of the Contractor under such subcontracts or purchase orders.
15.4 The Work may be suspended by the Owner as provided in Article 14 of the
General Conditions; in such case, the Guaranteed Maximum Price, if any, shall
be increased as provided in Subparagraph 14.3.2 of the General conditions
except that the term "cost of performance of the Contract" in that
Subparagraph shall be understood to mean the Cost of the Work and the term
"profit" shall be understood to mean the Contractor's Fee as described in
Paragraphs 5.1 and 6.3 of this Agreement.
ARTICLE 16
ENUMERATION OF CONTRACT DOCUMENTS
16.1 The Contract Documents, except for Modifications issued after execution
of this Agreement, are enumerated as follows:
16.1.1 The Agreement is this executed Standard Form of Agreement Between
Owner and Contractor, AIA Document A111, 1987 Edition.
16.1.2 The General Conditions are the General Conditions of the Contract for
Construction, AIA Document A201, 1987 Edition.
16.1.3 The Supplementary and other Conditions of the Contract are those
contained in the Project Manual dated , and are as follows:
Document Title Pages
To be Amended to this Contract.
16.1.4 The Specifications are those contained in the Project Manual dated as
in Paragraph 16.1.3, and are as follows:
(Either list the Specifications here or refer to an exhibit attached to this
Agreement.)
Section Title Pages
To be Amended to this Contract.
16.1.5 The Drawings are as follows, and are dated unless a different date
is shown below:
(Either list the Drawings here or refer to an exhibit attached to this
Agreement.)
Number Title Date
To be Amended to this Contract.
16.1.6 The Addenda, if any, are as follows:
Number Date Pages
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To be Amended to this Contract.
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in this
Article 16.
16.1.7 Other Documents, if any, forming part of the Contract Documents are as
follows:
(List here any additional documents which are intended to form part of the
Contract Documents. The General Conditions provide that bidding requirements
such as advertisement or invitation to bid, Instructions to Bidders, sample
forms and the Contractor's bid are not part of the Contract Documents unless
enumerated in the Agreement. They should be listed here only if intended to
be part of the Contract Documents.)
This Agreement is entered into as of the day and year first written above and
is executed in at least three original copies of which one is to be delivered
to the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
OWNER CONTRACTOR
MICROWARE SYSTEMS CORPORATION THE XXXXX COMPANY, INC.
/S/ XXXXXXX X. XXXXXX /S/ XXXXX X. XXXXXXX
------------------------------ -----------------------------
(Signature) (Signature)
Xxxxx X. Xxxxxxx
President, Iowa Division
(Printed name and title)
(Printed name and title)
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