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EXHIBIT 10.23
AGREEMENT
made as of the _________Fifth_________________ day of____May____ in the year of
Nineteen Hundred and Ninety-Seven
BETWEEN the Owner: SYMANTEC CORPORATION
(Name and address) 00000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and the Contractor: WEBCOR BUILDERS
(Name and address) 0000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
the Project is: SYMANTEC - CC5 OFFICE BUILDING/PARKING STRUCTURE
(Name and address) 00000 X. XxXxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
the Architect is: HELLMUTH, OBATA & KASSABAUM, INC.
(Name and address) 00 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, 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, appears in Article 16. If anything
in the other Contract Documents is inconsistent with this Agreement, this
Agreement shall govern except that the General Conditions shall govern if they
are inconsistent with this Agreement.
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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 of a four story, 143,000 square foot office building ("Office
Building") with a four level, 291,000 square foot, 777 stall subterranean
parking structure ("Parking Structure") and related site work ("Site Work"). The
scope of the Work shall include all shell work for the Office Building and
related Site Work ("Shell Improvements"), the construction of the Parking
Structure and related Site Work ("Parking Improvements") and, at the option of
and in the sole discretion of Owner, some or all of the tenant improvements for
the Office Building ("Tenant Improvements"). If Owner elects to have the
Contractor construct the Tenant Improvements, such election shall be confirmed
in a Change Order signed by the Owner and Contractor containing the terms upon
which such improvements will be constructed by Contractor (including an increase
in the Guaranteed Maximum Price).
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 Owner,
Architect and Development Manager 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 an 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 and making payments to the Contractor in accordance with requirements
of the Contract Documents.
3.2 Nothing contained in the Contract Documents shall create a contractual
relationship between Owner and any third party. It is understood and agreed,
however, that Owner shall be an intended third party beneficiary of all
contracts between Contractor and third parties for labor or materials related to
the Project. The Contractor shall include a provision in each subcontract, and
shall require each subcontractor to include a similar provision in any
sub-subcontracts, providing that Owner is a third party beneficiary of such
subcontract or sub-subcontract.
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.
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(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.)
The date of commencement shall be March 17, 1997 ("Commencement Date").
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 the timely filing of mortgages,
mechanic's liens and other security interests.
4.2 The Contractor shall achieve Substantial Completion (i) of the entire Work
excluding Tenant Improvements not later than July 10, 1998, and (ii) of the
entire Work, including Tenant Improvements, if applicable, not later than August
14, 1998; provided, however, that Substantial Completion with respect to item
(ii) shall be extended to the extent the programming, design and permitting for
the tenant improvements is not concluded, through no fault of Contractor, in
time to commence construction of the of the tenant improvements on or before
March 26, 1998.
(Insert the calendar date or number of calendar days after the date of commence.
Also insert any requirements for earlier Substantial Completion of certain
portions of the Work, if not stated elsewhere in the Contract Documents.)
, subject to adjustments of this Contract Time as provided in the Contract
Documents.
(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 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 Contractor's Fee for the Shell Improvements, Parking Improvements and
Site Work shall be two and one-half percent (2.5%) of the Cost of the Work for
such improvements. The Contractor's Fee for the Tenant Improvements, if
applicable, shall be three percent (3%) of the Cost of the Work for such
improvements.
5.2 GUARANTEED MAXIMUM PRICE (IF APPLICABLE)
5.2.1 The sum of the Cost of the Work and the Contractor's Fee is guaranteed by
the Contractor not to exceed the amount to be established pursuant to this
Paragraph 5.2.1 [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.
Language indicted as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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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.)
Within fifteen (10) days after Contractor receives completed Construction
Drawings and Specifications, Contractor shall submit to Owner a proposed
Guaranteed Maximum Price (excluding Tenant Improvements) based on the
subcontractor bids selected in accordance with Article 10 of this Agreement and
Article 5 of the General Conditions and in such detail as Owner shall reasonably
request but in any event is such detail as the schedule of values contemplated
in Paragraph 12.5.1. The actual Guaranteed Maximum Price shall be determined and
agreed upon by Owner and Contractor within ten (10) days of Owner's receipt of
such proposal, but in no event later than June 30, 1997. In the event Owner and
Contractor cannot agree on the actual Guaranteed Maximum Price by such date,
then either party may terminate this Agreement and such termination shall be
deemed a Termination for Convenience pursuant to Paragraph 14.2 of the General
Conditions. The estimate of the Guaranteed Maximum Price (exclusive of the
Contractor's Fee) based on preliminary construction drawings and specifications
("Preliminary Guaranteed Maximum Price") is as follows:
Office Building $ 9,822,855
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Parking Structure $ 9,652,125
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Site Work $ 1,048,331
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CC5/WHQ Interconnect $ 121,763
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$20,645,074
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5.2.2 The Guaranteed Maximum Price is based upon the following alternates, if
any, which are described in the Contract Documents and are hereby accepted by
the Owner:
(State the numbers or other identification of accepted alternates, not 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.)
5.2.3 The amounts 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)
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.
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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] this Agreement, unless the Owner has furnished the
Contractor with prior written approval of the form and substance of a
subcontract, in which case such adjustments shall be calculated in accordance
with the terms and conditions of that subcontract.
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 the Work as defined in Article 7 of this Agreement and the terms
"fee" and "a reasonable allowance for overhead and profit" shall mean the
Contractor's Fee as defined in Paragraph 5.1 of this Agreement.
6.1.4 Contractor understands and agrees that neither the Contract Sum nor the
Contract Time may be increased or extended except as provided in the Contract
Documents. Contractor agrees that the Contract Sum and Contract Time cannot be
changed by implication, oral agreement, course of conduct, course of dealing, or
other method not specifically set forth in the Contract Documents. The Owner's
decision in any instance to increase the Contract Sum or extend the Contract
Time when such increase or extension is not required by the Contract Documents
(e.g., pursuant to an oral agreement) shall not serve to waive Owner's right to
require a written Change Order or Change Directive in every other instance and
shall not estop Owner from denying any other increase or extension that is not
required under the express provisions of the Contract Documents.
[6.2 CONTRACTS WITHOUT A GUARANTEED MAXIMUM PRICE]
[6.2.1 Increased costs for the items set forth in Article 7 which result from
changes in the Work shall become part of the Cost of the Work, and the
Contractor's Fee shall be adjusted as provided in Paragraph 5.1.]
[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.]
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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ARTICLE 7
COSTS TO BE 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 and Paragraph 7.5.2 of the General Conditions.
Notwithstanding anything to the contrary contained in this Article 7, the Cost
of the Work shall not include items set forth in Paragraph 7.5.1 of the General
Conditions.
7.1.1 LABOR COSTS
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.
(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 the included and whether for all
or only part of their time.)
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 that portion of their time required for the Work.
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 (but not merit bonuses), 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 properly entered into under the terms of the
Contract Documents.
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, if any, shall be [handed]
properly stored at the Project site, or in accordance with the Owner's
instructions, turned over to the Owner at the completion of the Work or, at the
Owner's
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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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.
7.1.4 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND
RELATED ITEMS
7.1.4.1 Costs, including transportation, [installation,] and 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 salvage 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.] and
consumed in the performance of the Work. Any such items used but not consumed,
which are paid for by the Owner, shall become the property of the Owner and
shall be delivered to the Owner upon completion of the Work in accordance with
instructions furnished by the Owner. If the Owner elects, however, the
Contractor shall purchase any such items from the Owner at a purchase price
equal to the original cost charged to the Owner, less the reduction in fair
market value resulting directly from use of any such item in connection with the
Work or such other price which is mutually acceptable to the Owner and the
Contractor. Upon demand by the Owner, the Contractor shall furnish the Owner
with any information and documentation necessary to verify the period of time
for which such items were used in connection with the Work.
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.] Rental charges of all necessary
machinery and equipment, exclusive of hand tools, used at the site of the Work,
whether rented from the Contractor, including installation, minor repairs and
replacements, dismantling, removal, transportation and delivery costs thereof.
Such rental charges shall be consistent with those generally prevailing in the
location of the Project. The Contractor shall obtain bids for all machinery and
equipment to be rented from no less than two (2) responsible suppliers other
than the Contractor itself or an affiliate. The Owner shall, with the advice of
the Contractor and the Development Manager, determine which bid is to be
accepted and, if the Contractor is offering to rent its equipment or machinery,
determine whether to accept one of the bids or whether to accept Contractor's
offer to rent such equipment or machinery. In no event shall the Contractor be
entitled to reimbursement for any cumulative total of rental charges in
connection with any single piece of machinery or equipment in excess of the
difference between (x) the fair market value of the piece of machinery or
equipment on the date it is first rented in connection with the Work, and (y)
the fair market value of the piece of machinery or equipment on the last day it
is rented in connection with the Work. The Contractor shall pay any excess
rental charges.
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.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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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. Expenses shall be substantiated by documentation in form and
substance satisfactory to Owner.
7.1.5 MISCELLANEOUS COSTS
7.1.5.1 That portion directly attributable to this Contract of premiums for
insurance and bonds required by the Contract; provided, however, that such bond
costs (other than those paid to Subcontractors or Sub-subcontractors) shall not
be included in the Cost of the Work for purposes of calculating the Contractor's
Fee.
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 Contract
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, judgment 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.
7.1.5.6 Deposits lost for causes other than the Contractor's fault or
negligence.
7.1.5.7 Costs incurred by Contractor prior to the date of commencement in good
faith with written approval of Owner.
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 writing by the Owner.
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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 to the extent not (i) caused by the
Contractor, a Subcontractor or anyone for whom either is responsible, or (ii)
capable of being prevented through timely notice of an unsafe condition to the
Owner.
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] was
not caused by the Contractor, [or the Contractor's personnel] a Subcontractor, a
Sub-subcontractor or anyone for whom either is responsible, 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
provided that any absence of collectible insurance is not due to the
Contractor's breach of the Contract or a contract for insurance.
7.2.4 In correcting defective or 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 or neglect of the
Contractor or 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.
7.3 GENERAL CONDITIONS
7.3.1 Costs as defined herein shall be actual costs paid by the Contractor, less
all discounts, rebates and salvages which shall be taken by the Contractor,
subject to Article 9 of the Agreement. All payments made by the Owner pursuant
to this Article 7, whether those payments are actually made before or after the
execution of the Contract, are to be included within the Guaranteed Maximum
Price to be established pursuant to Paragraph 5.2 above; provided, however, that
in no event shall the Owner be required to reimburse the Contractor for any
portion of the Cost of the Work incurred prior to the Commencement Date unless
the Contractor has received the Owner's written consent prior to incurring such
cost.
7.3.2 Notwithstanding the breakdown or categorization of any costs to be
reimbursed in this Article 7 or elsewhere in the Contract Documents, there shall
be no duplication of payment in the
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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event of any particular items for which payment is requested can be
characterized as falling into more than one of the types of compensable or
reimbursable categories.
7.3.3 Any costs which comprise the Cost of the Work as described in Article 7 or
in Paragraph 7.5.2, which are also set forth in the Schedule of General
Conditions Costs attached hereto as Exhibit G, are subject to an aggregate limit
of ____________ Dollars ($_________).
ARTICLE 8
COSTS NOT TO BE REIMBURSED
8.1 The Cost of the Work shall not include (i) those items set forth in
Paragraph 7.5.1 of the General Conditions, and (ii) the following:
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.
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, or failure to comply
with the requirements of the Contract Documents by, 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 of this
Agreement or in Paragraph 7.5.2 of the General Conditions.
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
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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. The Contractor shall not
obtain for its own benefit any cash discounts in connection with the Work prior
to providing the Owner with seven (7) days prior written notice of the potential
discount and an opportunity to furnish funds necessary to obtain such discount
on behalf of the Owner.
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 and a reduction in the Guaranteed Maximum Price.
ARTICLE 10
SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Contractor does not customarily perform
with the Contractor's own personnel shall be performed under subcontracts or by
other appropriate agreements with the Contractor. The 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]
Development Manager. The Owner will then determine, with the advice of the
Contractor and subject to the reasonable objection of the Development Manager or
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 Development
Manager [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 requires that another bid be accepted,
and (4) Owner's objection to the specific bidder recommended to Owner by
Contractor is not reasonable; then the Contractor may require that a Change
Order be issued to adjust the Guaranteed Maximum Price by the lesser of (i) 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, and (ii) the
difference between the bid of the person or entity recommended by the Owner to
the Contractor and the amount attributable to such subcontract or other
agreement in the original schedule of values with respect to the Guaranteed
Maximum Price submitted by the Contractor and accepted by the Owner.
10.3 Subcontracts or other agreements shall conform to the payment provisions of
Paragraphs 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.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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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 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 alter final payment, or for such longer period as may be required by law.
11.2 If any inspection by Owner of Contractor's records, books, correspondence,
instructions, drawings, receipts, vouchers, memoranda or any other data relating
to the Contract Documents reveals an overcharge, Contractor shall pay Owner upon
demand an amount equal to the overcharge, plus simple interest from the date of
such overcharge at the annual rate of 10% as reimbursement for said overcharge
and the administrative expenses incurred in determining the overcharge. The
requirements of this Paragraph 11.2 shall not apply to any portion of an
overcharge which is the subject of a good faith dispute between the Owner and
the Contractor.
ARTICLE 12
PROGRESS PAYMENTS
12.1 Based upon Applications for Payment and all supporting documentation
submitted to the [Architect] Development Manager by the Contractor and
Certificates for Payment issued [by the Architect] pursuant to Article 9 of the
General Conditions, 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] as established in
Article 9 of the General Conditions.[:]
12.3 [Provided an Application for Payment is received by the Architect not later
than the ______________ day of a month, the Owner shall make payment to the
Contractor not later than the ______________________ day of the ______________
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
______________ days after the Architect receives the Application for Payment.]
Applications for Payment shall be submitted and paid in accordance with the
provisions set forth in the General Conditions.
12.4 With each Application for Payment the Contractor shall submit payrolls,
xxxxx cash accounts, receipted invoices or invoices with check vouchers
attached, and any other evidence required by the Owner or [Architect]
Development Manager to demonstrate that cash disbursements already made by the
Contractor on account of the Cost of the Work equal or exceed (1) progress
payments already received by the Contractor; less (2) that portion of those
payments attributable to the Contractor's Fee; plus (3) payrolls for the period
covered by the present Application for Payment; plus (4) retainage provided in
Subparagraph 12.5.4, if any,
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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applicable to prior progress payments. In addition to any other items required
in this Paragraph 12.4 or in Paragraph 9.3.1.3 of the General Conditions, each
Application for Payment shall be accompanied by the following, all in form and
substance reasonably satisfactory to the Owner and in compliance with applicable
California statutes:
(1) Duly executed waivers of mechanics' and materialmen's liens from the
Contractor and all such Subcontractors, establishing payment or
satisfaction of the payment requested by the Contractor in the
Application for Payment; and
(2) Such other information, documentation and materials as the Owner or
the Development Manager may require, including without limitation
invoices from Subcontractors or Sub-subcontractors evidencing
amounts requested in such Application for Payment.
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 substantiate its accuracy as the
[Architect] Development Manager may require. This schedule, unless objected to
by the [Architect] Development Manager or the Owner, 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 lesser of (1) the percentage of
that portion of the Work which has actually been completed or (2) the percentage
obtained by dividing (a) the expense which has actually been incurred by the
Contractor on account of that portion of the Work for which the Contractor has
made or intends to make actual payment prior to the next Application for Payment
by (b) the share of the Guaranteed Maximum Price allocated to that portion of
the Work in the schedule of values.
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 Change order.
12.5.3.2 If approved in advance in writing by the Owner, [Add] add that portion
of the Guaranteed Maximum Price properly allocable to materials and equipment
delivered and suitably
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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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.
12.5.3.3 Add the Contractor's Fee, less retainage of ten percent (10%). The
Contractor's Fee shall be computed upon the Cost of the Work described in the
two preceding Clauses at the rate stated in Paragraph 5.1 or, if the
Contractor's Fee is stated as a fixed sum in that Paragraph, shall be an amount
which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the
two preceding Clauses bears to a reasonable estimate of the probable Cost of the
Work upon its completion.
12.5.3.4 Subtract the aggregate of previous payments made by the Owner.
12.5.3.5 Subtract the shortfall, if any, indicated by the Contractor in the
documentation required by Paragraph 12.4 to substantiate prior Applications for
Payment, or resulting from errors subsequently discovered by the Owner's
accountants in such documentation.
12.5.3.6 Subtract amounts, if any, for which the Architect and Development
Manager has withheld or nullified a Certificate for Payment as provided in
Paragraph 9.5 of the General Conditions and other amounts, not including
retainage described in Paragraph 12.5.3.3, properly held by the Owner under the
Contract Documents at the time of each progress payment.
12.5.4 Additional retainage, if any, shall be as follows: The Owner shall
withhold as retainage ten percent (10%) of all Cost of the Work items and of the
Contractor's Fee included in each Application for Payment; provided, however, at
no time shall retainage in the aggregate exceed five percent (5%) of the Cost of
the Work. Retainage for Cost of the Work attributable to rebar, concrete,
shoring, mass excavation and certain other trades may be subject to a further
limitation on retainage as approved in writing by Owner, Lender and Contractor.
Any retainage under this Paragraph 12.5.4 shall not duplicate any amounts
retained pursuant to Subparagraphs 12.5.3.3, 12.7.1, or 12.7.2. The Owner shall
have the option, but not the obligation, to reduce the retainage requirement of
this Agreement or release any portion of retainage prior to the date specified
in the Contract Documents. Any exercise of this option, however, shall be in
writing and shall not be a waiver of (1) any of the Owner's rights to retainage
in connection with other payments to the Contractor, or (2) any other right or
remedy that the Owner has under the Contract Documents, at law or in equity.
(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
12.6.1 Applications for Payment shall show the Cost of the Work actually
incurred by the Contractor through the end of the period covered by the
Application for Payment and for which the Contractor has made or intends to make
actual payment prior to the next Application for Payment.]
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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[12.6.2 Subject to other provisions of the Contract Documents, the amount of
each progress payment shall be computed as follows:
12.6.2.1 Take the Cost of the Work as described in subparagraph 12.6.1.
12.8.2.2 Add the Contractor's Fee, less retainage of ________________ percent
(________%). The Contractor's Fee shall be computed upon the Cost of the Work
described in the preceding Clause 12.6.2.1 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
in the preceding Clause bears to a reasonable estimate of the probable Cost of
the Work upon its completion.
12.6.2.3 Subtract the aggregate of previous payments made by the Owner.
12.6.2.4 Subtract the shortfall, if any, indicated by the Contractor in the
documentation required by Paragraph 12.4 or to substantiate prior Applications
for Payment or resulting from errors subsequently discovered by the Owner's
accountants in such documentation.
12.6.2.5 Subtract amounts, if any, for which the Architect has withheld or
withdrawn a Certificate for Payment as provided in the Contract Documents.
12.6.3 Additional retainage, if any, shall be as follows:]
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 ten
percent (10%). 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 If approved in writing in advance in writing by Owner, Add 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, suitably stored off the site at a
location agreed upon in writing, less retainage of ten percent (10%).
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
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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and other amounts, not including retainage described in Paragraph 12.7.1 and
12.7.2, properly held by the Owner under the Contract Documents at the time of
each progress payment.
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.
(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 and Development Manager 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 or Development Manager 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 or Development Manager has made exhaustive or continuous on-site
inspections or that the Architect or Development Manager has made examinations
to ascertain how or for what purposes the Contractor has used amounts previously
paid on account of the Contract. Such examinations, audits and verifications, if
required by the Owner, will be performed by the Owner's accountants acting in
the sole interest of the Owner.
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 and all
required supporting documentation 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 Development Manager and 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:]
13.2 The amount of the final payment shall be calculated as follows:
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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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 Development Manager and 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 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 the 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 claimed by the Contractor, the
Contractor shall be entitled to demand arbitration of the disputed amount
without a further decision of the Architect. Such demand for arbitration shall
be made by the Contractor within 30 days after the Contractor's receipt of a
copy of the Architect's final Certificate for Payment; failure to demand
arbitration within this 30-day period shall result in the substantiated amount
reported by the Owner's accountants becoming binding on the Contractor. Pending
a final resolution by arbitration, the Owner shall pay the Contractor the amount
certified in the Architect's final Certificate for Payment.
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
as provided in Paragraph 5.2, the amount of such savings shall be recalculated
and appropriate credit given to the Owner in determining the net amount to be
paid by the Owner to the Contractor.]
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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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.
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, if any.)
(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:
A. (i) Contractor has included zero (0) days of weather related delays in
the schedule. In the event the work is delayed by weather, the completion
date shall be extended by the actual number of days lost.
(ii) The construction schedule is based on all design information, permits
and approvals being available when needed to allow for a proper and continuous
flow of the construction. Subject to the limitations on delay contained in the
General Conditions, including without limitation Paragraphs 7.5 and 8.3 thereof,
any deviation from this will delay the completion date shown in Section 4.2.
B. Contingency Fund - Included in the Guaranteed Maximum Price is a contingency
fund in the amount of $_________ (to be determined). This contingency fund shall
be administered jointly by Owner and Contractor, neither of which shall
unreasonably withhold approval. This fund is not to be used for changes in the
scope or for upgrades in the quality of the Work as reflected in the Contract
Documents. The fund is intended to be used for additional costs necessary to
complete the Project which relate to necessary work about which Contractor had
no knowledge and would not reasonably be expected to have knowledge at the time
Contractor and Owner agreed upon the Guaranteed Maximum Price. In general, the
fund is to be used for coordination of items necessary for a completed building
and inadvertently missed. Examples included items not shown on the Plans and
Specifications that cause a "gap" between any subcontractors' scope of work or a
"gap" between Contractor's and a subcontractor's work, and items that are
improperly coordinated or are impractical in the Plans and Specifications and
must be modified at a cost.
C. Savings - All savings which are generated after the Guaranteed Maximum
Price is established will be returned to the Owner.
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D. Subcontractors - All trades will be bid to a minimum of three qualified
subcontractors approved by the Owner, except the concrete work which shall be
performed by the Contractor. Concrete work is to be performed on a cost plus 10%
markup basis with a savings split of 70% to the Owner and 30% to the Contractor.
Owner or Owner's Representative will have the right to full audit of all
concrete estimates and cost reports upon completion of the work. The HVAC and
electrical work shall be negotiated with Xxxxxxxxxxx Mechanical and Xxxxxxxx &
Xxxxxxxx, providing these subcontractors do not exceed their schematic budgets.
After competitive bidding, all bids will be analyzed by the Contractor and a
recommendation for selection will be presented to the Owner for approval.
E. Design-build - Electrical, HVAC, Plumbing and Fire Protection will be done on
a design-build basis. The engineering for each of these trades will be included
in the subcontractor scopes of work. Owner will engage consulting engineers who
will provide the following services:
i. Performance outline specifications and definition of finish/quality
levels during the schematic design phase.
ii. Reviews of design-build bids for compliance with performance
criteria, including evaluation of proposed designs and alternates.
iii. Review and approval of design drawings provided by design-build
subcontractors prior to permit submittal.
iv. Review of shop drawings and submittals during construction.
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 or 14.2.5 (excluding the fee described in Paragraph
14.2.5(c) of the General Conditions, if applicable) 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:
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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.
15.3.3 Subtract the aggregate of previous payments made by the Owner.
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 (as modified)] Agreement.
16.1.2 The General Conditions are the General Conditions of the Contract for
Construction[, AIA Document A201, 1987 Edition (as modified)] attached hereto as
Exhibit A.
16.1.3 The Supplementary and other Conditions of the Contract are listed on
Exhibit B attached hereto. [those contained in the Project Manual dated ,and
are as follows:
DOCUMENT TITLE PAGES]
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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16.1.4 The specifications are those contained in the Project Manual dated as in
Paragraph 16.1.3, and are [as follows:] listed on Exhibit C attached hereto.
(Either list the Specifications here or refer to an exhibit attached to this
Agreement.)
[SECTION TIDE PAGES]
16.1.5 The Drawings are listed on the attached Exhibit D. [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 TIDE DATE]
16.1.6 The addenda, if any, are [as follows:] listed on Exhibit E attached
hereto.
[NUMBER DATE PAGES]
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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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] Exhibit E.
16.1.7 Other Documents, if any, forming part of the Contract Documents are
[as follows:] listed on Exhibit F.
(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 this Agreement. They should he listed here only if intended to he
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] Development Manager for use in the
administration of the Contract, and the remainder to the Owner.
16.1.8 This Agreement, and the General Conditions, are based on AIA Documents
A111 and A201, respectively, but each excludes certain provisions contained
therein and includes certain provisions that have been negotiated by the parties
which are not contained in the AIA documents. Text that is plain or underlined
in this document is a part of this Agreement; text that is overstriked is not a
part of this Agreement. No comparison or other reference to AIA Documents A111
or A201 shall affect the interpretation of this Agreement, the General
Conditions, or any of the other Contract Documents.
OWNER CONTRACTOR
------------------------------------ -----------------------------------
(Signature) (Signature)
------------------------------------ -----------------------------------
(Printed name and title) (Printed name and title)
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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ARTICLE 1
GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 THE CONTRACT DOCUMENTS
The Contract Documents consist of the Agreement between Owner and Contractor
(hereinafter the Agreement), Conditions of the Contract (General, Supplementary
and other Conditions), Drawings, Specifications, addenda issued prior to
execution of the Contract, other documents listed in the Agreement and
Modifications issued after execution of the Contract. A Modification is (l) a
written amendment to the Contract signed by both parties, (2) a Change Order,
(3) a Construction Change Directive or (4) a written order for a minor change in
the Work issued by the [Architect] Development Manager pursuant to Paragraph 7.4
or by the Owner. Unless specifically enumerated in the Agreement, the Contract
Documents do not include other documents such as bidding requirements
(advertisement or invitation to bid, instructions to Bidders, sample forms, the
Contractor's bid or portions of addenda relating to bidding requirements).
1.1.2 THE CONTRACT
The Contract Documents form the Contract for Construction. The Contract
represents the entire and integrated agreement between the parties hereto and
supersedes prior negotiations, representations or agreements, either written or
oral. The Contract may be amended or modified only by a Modification. [The
Contract Documents shall not be construed to create a contractual relationship
of any kind (l) between the Architect and Contractor, (2) between the Owner and
a Subcontractor or Sub-subcontractor or (3) between any persons or entities
other than the Owner and Contractor. The Architect shall, however, be entitled
to performance and enforcement of obligations under the Contract intended to
facilitate performance of the Architect's duties.] The Contract Documents shall
not be construed to create a contractual relationship of any kind (1) between
the Architect and Contractor, (2) between the Development Manager and
Contractor, (3) between the Architect and Development Manager, (4) between the
Owner and a Subcontractor or Sub-subcontractor (except as provided in Paragraph
5.4 hereof) or (5) between any persons or entities other than the Owner and
Contractor. The Development Manager and Architect shall, however, be entitled to
performance by the Contractor and to enforce the obligations of the Contractor
under the Contract as the same are intended to facilitate performance of their
duties.
1.1.3 THE WORK
The term "Work" means the construction and services required by the Contract
Documents, whether completed or partially completed, and includes all other
labor, materials, equipment and services provided or to be provided by the
Contractor to fulfill the Contractor's obligations. The Work may constitute the
whole or a part of the Project.
1.1.4 THE PROJECT
The Project is the total construction of which the Work performed under the
Contract Documents may be the whole or a part and which may include construction
by the Owner or by separate contractors.
1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents,
wherever located and whenever issued, showing the design, location and
dimensions of the Work, generally including plans, elevations, sections,
details, schedules and diagrams.
1.1.6 THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the
written requirements for materials, equipment, construction systems, standards
and workmanship for the Work, and performance of related services.
1.1.7 THE PROJECT MANUAL
The Project Manual is the volume usually assembled for the Work which may
include the bidding requirements, sample forms, conditions of the Contract and
Specifications.
1.1.8 ADDENDUM
A change to the Contract Documents issued by Architect or Development Manager's
approval prior to the execution of the Agreement and specifically listed in the
Agreement.
1.1.9 FINAL COMPLETION
The date the Contract has been fully performed, all the Work has been completed
and a Final Certificate for payment approved by the owner has been issued by the
Architect.
1.1.10 INDICATED AND SHOWN
Shall each mean as detailed, scheduled, or called for in the Contract Documents.
1.1.11 LAW
All federal, state, and local statues, rules, and regulations and ordinances
applicable to performance of the Work or construction or operation of the
Project, including, without limitation, building codes, environmental laws
(including toxic waste and dust control), social security and unemployment
compensation laws, workers' compensation laws, safety laws, and archaeological
and paleontological preservation laws.
1.1.12 CONCEALED CONDITIONS
Conditions at site which are (i) subsurface or otherwise concealed physical
conditions which differ materially from those indicated in the Contract
Documents, or (ii) unknown physical conditions of an unusual nature which differ
materially from those ordinarily found to exist and generally recognized as
inherent in construction activities of the character provided for in the
Contract Documents (including, without limitation, existence of asbestos,
phychlorinated biphenyls, or other hazardous materials) which adversely affect
the quality or cost of the Work.
1.2 EXECUTION, CORRELATION AND INTENT
1.2.1 The Contract Documents shall be signed by the Owner and Contractor as
provided in the Agreement. If either the Owner or Contractor or both do not sign
all the Contract Documents, the Architect shall identify such unsigned Documents
upon request.
1.2.2 [Execution of the Contract by the Contractor is a representation that the
Contractor has visited the site, become familiar with local conditions under
which the Work is to be performed and correlated personal observations with
requirements of the Contract Documents.] Execution of the Contract by the
Contractor is a representation that said Contract Documents [are full and
complete,] are sufficient to have enabled the Contractor to determine the cost
of the Work therein to enter into the Contract, and that the Contract Documents
are sufficient to enable it to contract the Work outlined therein, and otherwise
to fulfill all its obligations hereunder, including, but not limited to,
contractor's obligation to construct the Work for an amount not in excess of the
Contract Sum on or before the date(s) of Substantial Completion established in
the Agreement. The Contractor further acknowledges and declares that it has
visited and examined the site, examined all physical, legal, and other
conditions affecting the Work and is fully familiar with all of the conditions
thereon and thereunder affecting the same. In connection therewith, Contractor
specifically represents and warrants to Owner that it has, by careful
examination, satisfied itself as to: (1) The nature, location, and character of
the Project and the site, including, without limitation, the surface [and
subsurface] conditions of the site and all structures and obstructions thereon
[and thereunder], both natural and man-made, and all surface [and subsurface]
water conditions of the site and the surrounding area; (2) the nature, location,
and character of the general area in which the Project is located,
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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including without limitation, its climatic conditions, available labor supply
and labor costs, and available equipment supply and equipment costs; and (3) the
quality and quantity of all materials, supplies, tools, equipment, labor, and
professional services necessary to complete the Work in the manner and within
the cost and time frame required by the Contract Documents. In connection with
the foregoing, and having carefully examined all Contract Documents, as
aforesaid, and having visited the site, the Contractor acknowledges and declares
that it has no knowledge of any discrepancies, omissions, ambiguities, or
conflicts in said Contract Documents, and that if it becomes aware of any such
discrepancies, or conflicts, it will promptly notify Development Manager and
Architect of such fact.
1.2.3 [The intent of the Contract Documents is to include all items necessary
for the proper execution and completion of the Work by the Contractor. The
Contract Documents are complementary, and what is required by one shall be as
binding as if required by all; performance by the Contractor shall be required
only to the extent consistent with the Contract Documents and reasonably
inferable from them as being necessary to produce the intended results.] The
intent of the Contract Documents is to include all items necessary for the
proper execution and completion of the Work by the Contractor. The Work shall
consist of all items specifically [included] shown in the Contract Documents as
well as all additional items of Work which are reasonably inferable from that
which is specified in order to complete the Work in accordance with the Contract
Documents. The Contract Documents are complementary, and what is required by any
one Contract Document shall be as binding as if required by all. Any differences
between the requirements of the Drawings and the Specifications or any
differences noted within the Drawing themselves or within the Specifications
themselves will be referred to the Owner, Development Manager and Architect by
Contractor.
1.2.4 Organization of the Specifications into divisions, sections and articles,
and arrangement of Drawings shall not control the Contractor in dividing the
Work among Subcontractors or in establishing the extent of Work to be performed
by any trade.
1.2.5 Unless otherwise stated in the Contract Documents, words and abbreviations
which have well-known technical or construction industry meanings are used in
the Contract Documents in accordance with such recognized meanings.
1.3 OWNERSHIP AND USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER
DOCUMENTS
1.3.1 [The Drawings, Specifications and other documents prepared by the
Architect are instruments of the Architect's service through which the Work to
be executed by the Contractor is described. The Contractor may retain one
contract record set.] The Drawings, Specifications, and other similar or related
documents and copies thereof are furnished to the Contractor for the purpose of
performing the Work are, and shall remain, the property of the Owner. Neither
the Contractor nor any Subcontractor, Sub-subcontractor or material or equipment
supplier shall own or claim a copyright in the Drawings, Specifications [and
other documents prepared by the Architect, and unless otherwise indicated the
Architect shall be deemed the author of them and will retain all common law,
statutory and other reserved rights, in addition to the copyright. All copies of
them, except the Contractor's record set, shall be returned or suitably
accounted for to the Architect, on request, upon completion of the Work.] and
other similar or related documents, and Owner will retain all common law,
statutory, and other reserved rights, in addition to the copyright (including,
without limitation, the right to create derivative works therefrom). [All copies
of such document shall be returned to the Owner upon completion of the Work.]
The Drawings, Specifications and other similar or related documents [prepared by
the Architect], and copies thereof furnished to the Contractor, are for use
solely with respect to this Project. They are not to be used by the Contractor
or any Subcontractor, Sub-subcontractor or material or equipment supplier on
other projects or for additions to this Project outside the scope of the Work
without the specific written consent of the Owner [and Architect]. The
Contractor, Subcontractors, Sub-subcontractors and material or equipment
suppliers are granted a limited license to use and reproduce applicable portions
of the Drawings, Specifications and other documents [prepared by the Architect]
appropriate to and solely for use in the execution of their Work under the
Contract Documents. All copies made under this license shall bear the statutory
copyright notice, if any, shown on the Drawings, Specifications and other
documents prepared by the Architect. Submittal or distribution to meet official
regulatory requirements or for other purposes in connection with this Project is
not to be construed as publication in derogation of [the Architect's] any
copyright or other reserved rights.
1.4 CAPITALIZATION
1.4.1 Terms capitalized in these General Conditions include those which are (l)
specifically defined, (2) the titles of numbered articles and identified
references to Paragraphs, Subparagraphs and Clauses in the document (3) the
titles of other documents published by the American Institute of Architects.
1.5 INTERPRETATION
1.5.1 In the interest of brevity the Contract Documents frequently omit
modifying words such as "all" and "any" and articles such as "the" and "an," but
the fact that a modifier or an article is absent from one statement and appears
in another is not intended to affect the interpretation of either statement.
ARTICLE 2
OWNER
2.1 DEFINITION
2.1.1 The Owner is the person or entity identified as such in the Agreement and
is referred to throughout the Contract Documents as if singular in number. The
term "Owner" means the Owner or the Owner's authorized representative.
2.1.2 The Owner upon reasonable written request shall furnish to the contractor
in writing information which is necessary and relevant for the Contractor to
evaluate, give notice of or enforce mechanic's lien rights. Such information
shall include a correct statement of the record legal title to the property on
which the Project is located, usually referred to as the site, and the Owner's
interest therein at the time of execution of the Agreement, and, within five
days after any change, information of such change in title, recorded or
unrecorded.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2.1 The Owner shall, at the request of the Contractor, prior to execution of
the Agreement and promptly from time to time thereafter furnish to the
Contractor reasonable evidence that financial arrangements have been made to
fulfill the Owner's obligations under the Contract. [note: Unless such
reasonable evidence were furnished on request prior to the execution of the
Agreement, the prospective contractor would not be required to execute the
Agreement or to commence the Work.] The Owner may select the Architect, the
Development Manager, or any other designee or designees, including any employee
or agent of the Owner, to be the Owner's Representative, and such person or
persons shall have all powers of the Owner enumerated herein. The Owner may
specify an Owner's Representative as to all issues hereunder or may specify an
Owner's Representative as to any specific issue or issues. The Owner shall
specify an Owner's Representative in writing to both the Architect (if the
Owner's Representative is other than the Architect) and the
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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Contractor. The Architect, the Development Manager and the Contractor shall have
no right or authority to rely on the authority of any alleged Owner's
Representative unless the architect and the Contractor are in possession of a
document signed by the Owner specifying said person as the Owner's
Representative as to the particular issue or issues in question.
2.2.2 The Owner shall furnish any surveys in its possession describing physical
characteristics, legal limitations and utility locations for the site of the
Project, and a legal description of the site.
2.2.3 Except for permits and fees which are the responsibility of the Contractor
under the Contract Documents, the Owner shall secure and pay for necessary
approvals, easements, assessments and charges required for construction, use or
occupancy of permanent structures or for permanent changes in existing
facilities. Such approvals and the like shall be provided by Owner within a time
and in a manner so as to avoid any unreasonable delays in the Work or schedule
of Contractor and shall include only such approvals for permanent facilities
which are necessary to perform the Work as set forth in the Contract Documents.
2.2.4 Information or services [under the Owner's control] required to be
furnished by Owner shall be furnished by the Owner with reasonable promptness to
avoid delay in orderly progress of the Work.
2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will
be furnished, free of charge, such copies of Drawings and Project Manuals as are
reasonably necessary for execution of the Work.[ ten (10) copies of the Drawings
and Specifications prepared by Owner's Architect; all other drawings and
documents necessary for the execution and completion of the Work shall be
furnished at Contractor's expense.]
2.2.6 The foregoing are in addition to other duties and responsibilities of the
Owner enumerated herein and especially those in respect to Article 6
(Construction by Owner or by Separate Contractors), Article 9 (Payments and
Completion) and Article II (Insurance and Bonds).
2.3 OWNER'S RIGHT TO STOP THE WORK
2.3.1 [If the Contractor fails to correct Work which is not in accordance with
the requirements of the Contract Documents as required by Paragraph 12.2 or
persistently fails to carry out Work in accordance with the Contract Documents,
the Owner, by written order signed personally or by an agent specifically so
empowered by the Owner in writing, may order the Contractor to stop the Work, or
any portion thereof, until the cause for such order has been eliminated;
however, the right of the Owner to stop the Work shall not give rise to a duty
on the part of the Owner to exercise this right for the benefit of the
Contractor or any other person or entity, except to the extent required by
Subparagraph 6.1.3.] If the Contractor fails to correct defective Work as
required by Paragraph 12.2, or fails to complete the Work within the Contract
Time or fails or refuses to provide a sufficient amount of properly supervised
and coordinated labor, materials, or equipment so as to be able to complete the
Work within the Contract Time, or fails to remove or discharge (within ten days)
any lien resulting from the Work for which the Contractor has been paid in
accordance with the Agreement filed upon Owner's property by anyone claiming by,
through, or under Contractor, or disregards the instructions of Architect,
Development Manager or Owner when based upon the requirements of the Contract
Documents, or is in default of any of its obligations hereunder, the Owner, by a
written order signed by any agent specifically so empowered by the Owner in
writing, may order the Contractor to stop the Work, or any portion thereof,
until cause of such order has been eliminated; however, this right of the Owner
to stop the Work shall not give rise to any duty on the part of the Owner to
exercise this right for the benefit of the Contractor or any other person or
entity. This right shall be in addition to, and not in restriction of, the
Owner's rights under Paragraph 12.2.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance
with the Contract Documents and fails within a seven-day period after receipt of
written notice from the Owner to commence and continue correction of such
default or neglect with diligence and promptness, [the Owner may after such
seven-day period give the Contractor a second written notice to correct such
deficiencies within a second seven-day period. If the Contractor within such
second seven-day period after receipt of such second notice fails to commence
and continue to correct any deficiencies,] or fails within such seven-day period
to eliminate (or diligently commence to eliminate) the cause of any stop work
order issued under Subparagraph 2.3.1 hereof, the Owner may, without prejudice
to other remedies the Owner may have, correct such deficiencies. In such case an
appropriate Change Order shall be issued deducting from payments then or
thereafter due the Contractor the cost of correcting such deficiencies,
including compensation for the Development Manager's and Architect's and their
consultants' additional services and expenses made necessary by such default,
neglect or failure. [Such action by the Owner and amounts charged to the
Contractor are both subject to prior approval of the Architect.] If payments
then or thereafter due the Contractor are not sufficient to cover such amounts,
the Contractor shall pay the difference to the Owner.
ARTICLE 3
CONTRACTOR
3.1 DEFINITION
3.1.1 The Contractor is the person or entity identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number.
The term "Contractor" means the Contractor or the Contractor's authorized
representative. The plural term "Contractors" refers to persons or entities who
perform construction or operations related to the Project under these or similar
Conditions of the Contract.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.2.1 [The] In addition to and not in derogation of Contractor's duties under
Subparagraphs 1.2.2 and 1.2.3 hereof, Contractor shall carefully study and
compare the Contract Documents with each other and with information furnished by
the Owner pursuant to Subparagraph 2.2.2 and shall at once report to the
Development Manager and Architect errors, inconsistencies or omissions
discovered. The Contractor shall not be liable to the Owner, Development Manager
or Architect for damage resulting from errors, inconsistencies or omissions in
the Contract Documents that would not have been discovered by a prudent and
experienced contractor in advance and that are not of the nature of items
described in and intended to be covered in Subparagraphs 1.2.2 and 1.2.3 hereof
unless the Contractor recognized or reasonably should have recognized such
error, inconsistency or omission and [knowingly] failed to report it to the
Development Manager and Architect. If the Contractor performs any construction
activity [knowing it involves a recognized] involving an error, inconsistency or
omission in the Contract Documents [without such notice to the Architect] that
Contractor recognized or reasonably should have recognized without such notice
to the Development Manager and Architect, the Contractor shall assume
appropriate [complete] responsibility for such performance and shall bear an
appropriate [the full] amount of the attributable costs for correction.
3.2.1.1 If any errors, inconsistencies, or omissions in Contract Documents are
recognized or reasonably should have been recognized by the Contractor, any
member of its organization, or any of its Subcontractors, the Contractor shall
be responsible for notifying the Development Manager
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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and Architect in writing of such error, inconsistency, or omission before
proceeding with the Work. The Architect will take such notice under advisement
and within a reasonable time commensurate with job progress render a decision.
The Architect's decision shall be subject to Owner's approval. The Contractor
shall be liable for damage, loss or expense to Owner, Development Manager and
Architect resulting from Contractor's (i) failure to report any such discovery
or (ii) performance of any construction activity if Contractor knows or should
have known of such error, inconsistency, omission or violation.
3.2.2 The In addition to and not in derogation of Contractor's duties under
Subparagraph 1.2.2 and 1.2.3 hereof, Contractor shall take field measurements
and verify field conditions and shall carefully compare such field measurements
and conditions and other information known (or which reasonably should have been
known) to the Contractor with the Contract Documents before commencing
activities. Errors, inconsistencies or omissions discovered (or which reasonably
should have been discovered) shall be reported to the Architect and Development
Manager at once.
3.2.3 The Contractor shall perform the Work in accordance with the Contract
Documents and submittals approved pursuant to Paragraph 3.12.
3.2.4 Should the Specifications and Drawings fail to particularly describe the
material or kind of goods to be used where shown or reasonably inferable, then
it shall be the duty of the Contractor to make inquiry of the Owner and
Architect as to what is best-suited. The material that is consistent with the
level of quality of adjacent materials shall be considered a part of the
Contract.
3.2.5 Before undertaking each part of the Work, the Contractor shall coordinate
the Architect to check and verify all pertinent data in the Drawings and
Specifications, against field measurements actually made at the site and report
at once in writing to the Owner any discrepancies which the Contractor may
discover. The Contractor shall establish and implement procedures to be followed
by the Contractor and Subcontractors for expediting the processing and approval
of shop drawings, catalogs and samples, and the scheduling of requirements for
materials and equipment. The Contractor shall maintain and cause the
Subcontractors and Sub-subcontractors to maintain at the site current marked
sets of working drawing prints and specifications reflecting "as built"
conditions for each portion of the Work. Upon Final Completion, the Contractor
shall deliver the marked sets to the Architect for correction of the original
drawings.
3.2.6 Contractor shall be held to the standard of care exercised by major
professional reputable general contractors in Santa Xxxxx County, California
area. References herein to "the knowledge of Contractor" or the like shall mean
either that which the Contractor should have know had it exercised such standard
of care.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's
best skill and attention. The Contractor shall be solely responsible for and
have control over construction means, methods, techniques, sequences and
procedures and for coordinating all portions of the Work under the Contract,
unless Contract Documents give other specific instructions concerning these
matters.
3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of
the Contractor's employees, Subcontractors and their agents and employees, and
other persons performing portions of the Work under a contract or other
arrangement with the Contractor. It is understood and agreed that the
relationship of Contractor to Owner shall be that of an independent Contractor.
Nothing contained herein or inferable herefrom shall be deemed or construed to
(1) make Contractor the agent, servant or employee of the Owner, or (2) create
any partnership, joint venture, or other association between Owner and
Contractor. Any direction or instruction by Owner in respect of the Work shall
relate to the results the Owner desires to obtain from the Work, and shall in no
way affect Contractor's independent contractor status as described herein.
3.3.3 The Contractor shall not be relieved of obligations to perform the Work in
accordance with the Contract Documents either by activities or duties of the
Architect, Development Manager or Owner in their [Architect's] administration of
the Contract, or by tests, inspections or approvals required or performed by
persons other than the Contractor.
3.3.4 The Contractor shall be responsible for inspection of portions of Work
already performed under this Contract to determine that such portions are in
proper condition to receive subsequent Work.
3.3.5 The Contractor has the responsibility to ensure that all material
suppliers and Subcontractors, their agents, and employees adhere to the Contract
Documents, and that they order materials on time, taking into account the
current market and delivery conditions and that they provide materials on time.
The Contractor shall coordinate its Work with that of all others on the Project
including deliveries, storage, installations, and construction utilities. The
Contractor shall be responsible for the space requirements, locations, and
routing of its equipment. In areas and locations where the proper and most
effective space requirements, locations, and routing cannot be made as
indicated, the Contractor shall meet with all others involved, before
installation, to plan the most effective and efficient method of overall
installation.
3.3.6 The services to be performed under this Agreement shall be performed by
the Contractor's own staff, unless otherwise authorized by the Owner. The
employment of, contract with, or use of the services of any other person or firm
by the Contractor (except with respect to Subcontractors discussed elsewhere in
the Contract) as consultant or otherwise, shall be subject to the prior written
approval of the Owner. Such approval shall not be construed as constituting an
agreement between the Owner and any such person or firm.
3.4 LABOR AND MATERIALS
3.4.1. Unless otherwise provided in the Contract Documents, the Contractor shall
provide and pay for labor, materials, equipment, tools, construction equipment
and machinery, water, heat, utilities, transportation, and other facilities and
services necessary for proper execution and completion of the Work, whether
temporary or permanent and whether or not incorporated or to be incorporated in
the Work.
3.4.2 The Contractor shall enforce strict discipline and good order among the
Contractor's employees and other persons carrying out the Contract. The
Contractor shall not permit employment of unfit persons or persons not skilled
in tasks assigned to them. Contractor shall also be responsible for labor peace
on the Project and shall at all times use its best efforts and judgment as an
experienced contractor to adopt and implement policies and practices designed to
avoid work stoppages, slowdowns, disputes, or strikes where reasonably possible
and practical under the circumstances and shall at all times maintain
Project-wide labor harmony. Except as specifically provided in Subparagraph
8.3.1 hereof, Contractor shall be liable to Owner for all damages suffered by
Owner occurring as a result of work stoppages, slowdowns, disputes, or strikes
which are caused by the Contractor.
3.4.3 Materials shall conform to manufacturer's standards in effect at the date
of execution of the Agreement and shall be installed in strict accordance with
manufacturer's directions. The Contractor shall, if required by the Owner,
Development Manager or Architect, furnish satisfactory evidence as to the kind
and quality of any materials. All packaged materials shall be shipped to the
site in the original containers clearly labeled, and delivery slips shall be
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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submitted with bulk materials identifying thereon the source, and warranting
quality and compliance with Contract Documents. After the Contract has been
executed, the Owner and the Architect will consider a formal request for the
substitution of products in place of those specified only under the conditions
specified in the General Requirements.
3.5 WARRANTY
3.5.1 [The Contractor warrants to the Owner and Architect that materials and
equipment furnished under the Contract will be of good quality and new unless
otherwise required or permitted by the Contract Documents, that the Work will be
free from defects not inherent in the quality required or permitted, and that
the Work will conform with the requirements of the Contract Documents.] The
contractor warrants to the Owner that the Work, whether performed by Contractor
or by Subcontractors, including all materials and equipment, will be of good
quality, free of defects, in material and workmanship, will strictly conform to
the Contract Documents, and that, if applicable, the Project will perform to the
specifications set forth in the Contract Documents . In the event of breach of
this Warranty, the Owner may elect (i) to require the Contractor at its sole
cost and expense to repair or remedy such breach within ten (10) days of notice
thereof (or if such breach cannot reasonably be cured within such ten (10) day
period, then the Contractor shall commence to cure such breach within ten (10)
days and thereafter diligently prosecute such cure to completion); (ii) to
repair or remedy such breach and be entitled to full reimbursement from
Contractor, if Contractor has failed to so repair as provided in subsection (i);
or (iii) any other remedy at law or in equity. In the event Contractor cures any
breach hereunder or reimburses Owner for the expenses of such breach Contractor
shall be subrogated to the rights of Owner against any Subcontractor. Work not
conforming to these requirements, including substitutions not properly approved
and authorized, may be considered defective. The Contractor's warranty excludes
remedy for damage or defect caused by abuse not committed by Contractor,
modifications not executed by the Contractor, improper or insufficient
maintenance the performance of which Contractor was not responsible for,
improper operation not performed by Contractor, or normal wear and tear under
normal usage. If required by the Architect, Development Manager or Owner, the
Contractor shall furnish satisfactory evidence as to the kind and quality of
materials and equipment.
3.5.2 The Contractor shall issue in writing to the Owner as a condition
precedent to final payment a "General Warranty" reflecting the terms and
conditions of this Paragraph 3.5 for all Work under the Contract.
3.5.3 Except when a longer warranty time is specifically called for in the
Specifications Sections or is otherwise provided by law, the General Warranty
shall be eighteen (18) months and shall be in form and content otherwise
satisfactory to the Owner; provided, however, that the General Warranty for
equipment shall be twelve (12) months.
3.5.5 Warranties shall become effective on a date established by the Owner and
Architect in accordance with the Contract Documents. This date shall be the Date
of Substantial Completion of the entire Work or beneficial occupancy and use of
any portion of the Work by the Owner, unless otherwise provided in any
Certificate of Partial Substantial Completion approved by the parties. If the
date is determined on the basis of partial occupancy or use by the Owner, then
only the warranties for Work so occupied or used shall become effective on such
date.
3.5.6 The Contractor shall warrant for a period of eighteen (18) months that the
building(s) shall be watertight and leakproof at every point and in every area,
except where leaks can be attributed to damage to the building(s) by external
forces beyond Contractor's control. The Contractor shall, immediately upon
notification by the Owner of water penetration, determine the source of water
penetration and, at its own expense, do any work necessary to make the
building(s) watertight. Contractor shall also, at its own expense, repair or
replace any other damaged material, finishes, and furnishings, damaged as a
result of this water penetration, to return the building(s) to its (their)
original condition.
3.5.7 In addition to the foregoing stipulations, the Contractor shall comply
with all other warranties referred to in any portions of the Contract Documents
or otherwise provided by law or in equity, and where warranties overlap, the
more stringent requirement shall govern.
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the
Work or portions thereof provided by the Contractor which are legally enacted,
[when bids are received or negotiations concluded, whether or not yet effective
or merely scheduled to go into effect] and in a timely manner, complete and
submit to the appropriate governmental authorities all required tax reports.
3.7 PERMITS, FEES AND NOTICES
3.7.1 [Unless otherwise provided in the Contract Documents, the Contractor shall
secure and pay for the building permit and other permits and governmental fees,
licenses and inspections and other consents for general constructions,
including, without limitation, street opening, sidewalk, and other obstructions,
access over public ways and storage necessary for proper execution and
completion of the Work which are customarily secured after execution of the
Contract and which are legally required when bids arc received or negotiations
concluded.] The Contractor shall procure all certificates of inspection, use,
occupancy, permits and licenses and give all notices necessary and incidental to
the due and lawful prosecution of the Work. Certificates of inspection, use, and
occupancy shall be delivered to the Owner upon completion of the Work in
sufficient time for occupation of the Project in accordance with the approval
schedule for the Work. Owner shall be responsible for the cost of such
certificates, permits and licenses.
3.7.2 [The Contractor shall comply with and give notices required by laws,
ordinances, rules, regulations and lawful orders of public authorities bearing
on performance of the Work.] The Contractor shall comply with all Law in the
preparation for and performance of the Work (and give all notices required by
Law with a copy to Development Manager and Architect) and agrees to and does
hereby indemnify, defend and hold Owner harmless from any and all fines and
penalties which may arise out of the Contractor's failure to do so.
3.7.3 It is not the Contractor's responsibility to ascertain that the Contract
Documents are in accordance with applicable laws, statutes, ordinances, building
codes, and rules and regulations. However, if the Contractor observes that
portions of the Contract Documents are at variance therewith, the Contractor
shall promptly notify the Architect and Owner in writing, and necessary changes
shall be accomplished by appropriate Modification.
3.7.4 If the Contractor performs Work [knowing it to be] (including, without
limitation, the installation of any materials or equipment) that it knows or
reasonably should have known would be contrary to laws, statutes, ordinances,
building codes, and rules and regulations without such notice to express written
approval of the Owner, the Contractor shall assume full responsibility for such
Work and shall bear [the attributable costs] all costs attributable to the
correction thereof or related thereto (including all fines and penalties).
3.8 ALLOWANCES
3.8.1 The Contractor shall include in the Contract Sum all allowances stated in
the Contract Documents. Items covered by allowances shall be supplied for such
amounts and by such persons or entities as the Owner may direct, but the
Contractor shall not be required to employ persons or entities against which the
Contractor makes reasonable objections.
3.8.2 Unless otherwise provided in the Contract Documents:
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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.1 materials and equipment under the allowance shall be selected
promptly by the Owner to avoid any delay in the Work;
.2 allowances shall cover the cost to the Contractor of materials and
equipment delivered at the site and all required taxes, less
applicable trade discounts;
[.3 Contractor's costs for unloading and handling at the site, labor,
installation costs, overhead, profit and other expenses
contemplated for stated allowance amounts shall be included in the
Contract Sum and not in the allowances;]
.4 whenever costs are more than or less than allowances, the Contract
Sum shall be adjusted accordingly by Change Order. The amount of
the Change Order to the extent provided in Paragraph 7.5 shall
reflect (1) the difference between actual costs and the allowances
under Clause 3.8.2.2 and (2) changes in Contractor's costs under
Clause 3.8.2.3.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent superintendent and necessary
assistants who shall be in attendance at the Project site during performance of
the Work. The superintendent shall represent the Contractor, and communications
given to the superintendent shall be as binding as if given to the Contractor.
Important communications shall be confirmed in writing. Other communications
shall be similarly confirmed on written request in each case.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare
and submit for the [Owner's and] Architect's information and the Development
Manager's and Owner's review and approval a Contractor's construction schedule
for the Work. The schedule shall not exceed time limits current under the
Contract Documents, shall be revised as required herein and at appropriate
intervals as required by the conditions of the Work and Project, shall be
related to the entire Project to the extent required by the Contract Documents,
and shall provide for expeditious and practicable execution of the Work. The
Schedule shall indicate the proposed starting and completion dates for the
various subdivisions of the Work as well as the totality of the Work. The
schedule shall be updated every thirty (30) days and submitted to Development
Manager with Contractor's Applications for Payment. Each schedule shall contain
a comparison of actual progress with the estimated progress for such point in
time stated in the original schedule. If any schedule submitted sets forth a
date for Substantial Completion for the Work or any phase of the Work beyond the
Date(s) of Substantial Completion established in the Contract (as the same may
be extended as provided in the Contract Documents), then Contractor shall submit
to Development Manager and Owner for their review and approval a narrative
description of the means and methods which Contractor intends to employ to
expedite the progress of the Work to ensure timely completion of the various
phases of the Work as well as the totality of the Work. To ensure such timely
completion, Contractor shall take all necessary action, including, without
limitation, increasing the number of personnel and labor on the Project and
implementing overtime and double shifts. In that event, Contractor shall not be
entitled to an adjustment in the Contract Sum or the schedule.
3.10.2 The Contractor shall prepare and keep current, for the Development
Manager's and Architect's approval, a schedule of submittals which is
coordinated with the Contractor's construction schedule and allows the
Development Manager and Architect reasonable time to review submittals.
3.10.3 The Contractor shall conform to the most recent schedules.
3.10.4 Prior to execution of this Contract, the Contractor shall have prepared a
preliminary project schedule, estimating completion dates for a design, review,
approval, bidding, award and construction of the various phases of the Project.
After approval by the Owner, the preliminary project schedule will be
automatically incorporated as an exhibit and shall be updated and amended as
approved by Owner and Contractor to reflect changes in the estimated completion
dates for the various activities noted above.
The Contractor shall conduct pre-construction conferences with Subcontractors.
The Contractor shall schedule and conduct meetings to be attended by the
Subcontractors and representatives of the Owner, the Development Manager and the
Architect to discuss such matters as procedures, progress, problems, scheduling,
and compliance with Laws. The Contractor shall take, transcribe, and distribute
minutes of such meetings and deliver such to all parties in attendance or
otherwise involved in the Project unless done so by another party.
The Contractor shall also prepare a report not later than thirty (30) calendar
days after the contract is awarded which shall include a complete list of
suppliers, items to be purchased from the suppliers or fabricators, time
required for fabrication and the schedule delivery dates for each item. As soon
as available, copies of purchase orders shall be furnished to the Development
Manager and Owner.
The Contractor shall hold weekly progress meetings at the site, or at such other
time and frequency as are acceptable to the Owner. Progress of the Work shall be
reported in detail with reference to construction schedules. Each interested
Subcontractor shall have present a competent representative to report the
condition of its work and to receive information.
3.10.5 The Contractor shall cooperate with the Development Manager in scheduling
and performing the Contractor's Work to avoid conflict, delay in or interference
with the Work of other Contractors or the construction or operations of the
Owner's own forces.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
3.11.1 The Contractor shall maintain at the site for the Owner one record copy
of the Drawings, Specifications, addenda, Change Orders and other Modifications,
in good order and marked currently to record changes and selections made during
construction, and in addition approved Shop Drawings, Product Data, Samples and
similar required submittals. These shall be available to the Development Manager
and Architect and shall be delivered to the Architect Development Manager for
submittal to the Owner upon completion of the Work.
3.11.2 At the Date of Substantial Completion and as a condition precedent to
final payment, the Contractor shall furnish the following documents to the
Development Manager for submittal to the Owner: Record Drawings showing the
field changes and selections (all changes and selections to be approved by the
Owner and the Architect in advance ) affecting the general construction,
mechanical, electrical, plumbing, and all other work, and indicating the Work as
actually installed. These shall consist of carefully drawn markings on a set of
reproducible prints of the Architect's most recent and complete Drawings,
including all changes issued with bulletins and requests for information,
obtained and paid for by Owner. The Contractor shall maintain at the job site
one (1) set of Architect's Drawings and indicate thereon each field change as it
occurs.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially
prepared for the Work by the
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier or
distributor to illustrate some portion of the Work.
3.12.2 Product Data are illustrations, standard schedules, performance charts,
instructions, brochures, diagrams and other information furnished by the
Contractor to illustrate materials or equipment for some portion of the Work.
3.12.3 Samples are physical examples which illustrate materials equipment or
workmanship and establish standards by which the work will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not
Contract Documents. The purpose of their submittal is to demonstrate for those
portions of the Work for which submittals are required the way the Contractor
proposes to conform to the information given and the design concept expressed in
the Contract Documents. Review by the Architect is subject to the limitations of
Subparagraph 4.2.7.
3.12.5 The Contractor shall review, approve and submit to the Architect, with a
copy to Development Manager and Owner, Shop Drawings, Product Data, Samples and
similar submittals required by the Contract Documents with reasonable promptness
and in such sequence as to cause no delay in the Work or in the activities of
the Owner or of separate contractors. The Contractor shall cooperate with the
Development Manager in the coordination of the Contractor's Shop Drawings,
Product Data, Samples and similar submittals with related documents submitted by
other Contractors. Submittals made by the Contractor which are not required by
the Contract Documents may be returned without action.
3.12.6 The Contractor shall perform no portion of the Work requiring submittal
and review of Shop Drawings, Product Data, Samples or similar submittals until
the respective submittal has been approved by the Development Manager and
Architect. Such Work shall be in accordance with approved submittals.
3.12.7 By [approving] reviewing and submitting Shop Drawings, Product Data,
Samples and similar submittals, the Contractor represents that the Contractor
has determined and verified materials, field measurements and field construction
criteria related thereto, or will do so, and has checked and coordinated the
information contained within such submittals with the requirements of the Work
and of the Contract Documents.
3.12.8 The Contractor shall not be relieved of responsibility for deviations
from requirements of the Contract Documents by the Development Manager's or
Architect's approval of Shop Drawings, Product Data, Samples of similar
submittals unless the Contractor has specifically informed the Development
Manager and Architect in writing of such deviation at the time of submittal and
the Development Manager and Architect [has] have given written approval to the
specific deviation. The Contractor shall not be relieved of responsibility for
errors or omissions in Shop Drawings, Product Data, Samples or similar
submittals by the Architect's approval thereof.
3.12.9 The Contractor shall direct specific attention, in writing or on
resubmitted Shop Drawings, Product Data, Samples or similar submittals, to
revisions other than those requested by the Development Manager and Architect on
previous submittals.
3.12.9.1 Shop drawings for Architectural, Structural, Mechanical and Electrical
work shall be submitted for approval to the Development Manager and the
Architect.
3.12.9.2 The Contractor shall assemble for the Development Manager's and
Architect's approval and transmittal to the Owner three (3) complete copies of
loose leaf binders of all operating and maintenance data from all manufacturers
whose equipment is installed in the Work.
3.12.10 Informational submittals upon which the Development Manager and
Architect is are not expected to take responsive action may be so identified in
the Contract Documents.
3.12.11 When professional certification of performance criteria of materials,
systems or equipment is required by the Contract Documents, the Development
Manager and Architect shall be entitled to rely upon the accuracy and
completeness of such calculations and certifications.
3.13 USE OF SITE
3.13.1 The Contractor shall confine operations at the site to areas permitted by
law, ordinances, permits and the Contract Documents and shall not unreasonably
encumber the site with materials or equipment.
3.14 CUTTING AND PATCHING
3.14.1 The Contractor shall be responsible for cutting, fitting or patching
required to complete the Work or to make its parts fit together properly and
shall restore all portions of the Work which are cut, fitted or patched to a
completely finished condition acceptable to the Development Manager and
Architect.
3.14.2 The Contractor shall not damage or endanger a portion of the Work or
fully or partially completed construction of the [Owner or separate contractors]
Owner's own forces or of other Contractors by cutting, patching or otherwise
altering such construction, or by excavation. The Contractor shall not cut or
otherwise alter such construction by the Owner or a separate contractor except
with written consent of the Owner and [of such separate contractor] such other
Contractors; such consent shall not be unreasonably withheld. The Contractor
shall not unreasonably withhold from the Owner or [a separate contractor] the
other Contractors the Contractor's consent to cutting or otherwise altering the
Work.
3.15 CLEANING UP
3.15.1 The Contractor shall keep the premises and surrounding area free from
accumulation of waste materials or rubbish caused by operations under the
Contract. At completion of the Work the Contractor shall remove from and about
the Project waste materials, rubbish, the Contractor's tools, construction
equipment, machinery and surplus materials.
3.15.2 If the Contractor fails to clean up as provided in the Contract
Documents, the Owner may do so and the cost thereof shall be charged to the
Contractor.
3.15.3 The Contractor shall be responsible for broken glass, and at completion
of the Work shall replace such damaged or broken glass. In addition to general
broom cleaning, the Contractor shall perform the following final cleaning for
all trades at completion of the Work:
.1 Remove temporary protections.
.2 Remove marks, stains, fingerprints and other soil or dirt from painted,
decorated, and natural-finished woodwork and other work.
.3 Remove spots, mortar, plaster, soil and point from ceramic tile, marble,
and other finish materials and wash or wipe clean.
.4 Clean fixtures, cabinetwork and equipment, removing stains, paint, dirt,
and dust and leave it in an undamaged, new condition.
.5 Clean aluminum in accordance with recommendations of the manufacturer.
.6 Clean resilient floors thoroughly with a well rinsed mop containing only
enough moisture to clean off any surface dirt or dust and buff dry by
machine or bring the surfaces to sheen.
.7 Remove all labels and wash both sides of all glass.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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3.16 ACCESS TO WORK
3.16.1 The Contractor shall provide the Owner, Development Manager and Architect
access to the Work in preparation and progress wherever located.
3.16.2 The Contractor shall forward all communications to the Owner directly,
with a copy to the Development Manager and Architect.
3.17 ROYALTIES AND PATENTS
3.17.1 The Contractor shall pay all royalties and license fees. The Contractor
shall defend suits or claims for infringement of patent rights and shall
indemnify, defend and hold the Owner, Development Manager and Architect harmless
from loss on account thereof, but shall not be responsible for such defense or
loss when a particular design, process or product of a particular manufacturer
or manufacturers is required by the Contract Documents. However, if the
Contractor has reason (or should have had reason) to believe that the required
design, process or product is an infringement of a patent, the Contractor shall
be responsible for such loss unless such information is promptly furnished to
the Architect.
3.18 INDEMNIFICATION
3.18.1 [To the fullest extent permitted by law, the Contractor shall indemnify
and hold harmless the Owner, Architect, Architect's consultants, and agents and
employees of any of them from and against claims, damages, losses and expenses,
including but not limited to attorneys' fees, arising out of or resulting from
performance of the Work, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or
destruction of tangible property (other than the Work itself) including loss of
use resulting therefrom, but only to the extent caused in whole or in part by
negligent acts or omissions of the Contractor, a Subcontractor, anyone directly
or indirectly employed by them or anyone for whose acts they may be liable,
regardless of whether or not such claim, damage, loss or expense is caused in
part by a party indemnified hereunder. Such obligation shall not be construed to
negate, abridge, or reduce other rights or obligations of indemnity which would
otherwise exist as to a party or person described in this Paragraph 3.18.] To
the greatest extent permitted by law, the Contractor shall indemnify, defend and
hold harmless the Owner, Development Manager, Architect and their agents,
shareholders, directors, employees, affiliates, consultants, successors and
assigns ("Indemnitees") from and against any and all of the following
("Claims"): (i) claims, damages, losses, liability and expenses, including but
not limited to attorneys' fees, arising out of or resulting from the act,
omission, negligence or willful misconduct of the Contractor, Subcontractors,
Sub-subcontractors or their employees or agents or in connection with the
performance of the Work; and (ii) any claim for payment or damages by a
Subcontractor or Sub-subcontractor, except for claims resulting from Owner's
failure to pay Contractor in accordance with the Agreement for Work performed by
such Subcontractor or Sub-subcontractor. Such Claims may include, but are not
limited to, mechanics' liens, unperfected claims of mechanics, materialmen or
laborers, bodily injury, sickness, disease or death, injury to or destruction of
tangible property, or a patent infringement. Such indemnity obligation shall not
be construed to negate, abridge, or otherwise reduce any other right or
obligation of indemnity which would otherwise exist in favor or any person or
party described in this Paragraph 3.18 under the Contract Documents or at law or
in equity. Nothing herein shall be deemed to abridge the right of Owner to seek
contribution where appropriate.
3.18.2 In claims against any person or entity indemnified under this paragraph
3.18 by an employee of the Contractor, a Subcontractor, anyone directly or
indirectly employed by them or anyone for whose acts they may be liable, the
indemnification obligation under this Paragraph 3.18 shall not be limited by a
limitation on amount or type of damages, compensation or benefits payable by or
for the Contractor or a Subcontractor under workers' or workmen's compensation
acts, disability benefit acts or other employee benefit acts.
3.18.3 The obligations of the Contractor under this paragraph 3.18 shall not
extend to the liability of the Development Manager, Architect, [the Architect's]
their consultants, and agents and employees of any of them arising out of (1)
the preparation or approval of maps, drawings, opinions, reports, surveys,
Change Orders, designs or specifications, or (2) the giving of the failure to
give directions or instructions by the Architect, the Architect's consultants,
and agents and employees of any of them provided such giving or failure to give
is the primary cause of the injury or damage.
3.18.4 The Contractor shall defend Indemnitees, through counsel reasonably
approved by Owner, in any action, proceeding or arbitration brought against the
Indemnitees, or any of them, by reason of any such claim described above in this
paragraph 3.18. The Contractor's obligation to defend Indemnitees shall extend
to any action, proceeding or arbitration alleging any claim described in this
paragraph 3.18, except if such action, proceeding or arbitration asserts or
alleges only that the injury to the claimant results solely from the negligence
or misconduct of Indemnitees, or any of them, and from no other cause, or if a
final judgment is obtained establishing that such injury to the claimant
resulted solely from the negligence or misconduct of Indemnitees, or any of
them, in which event Contractor's obligation to defend Indemnitees shall cease
upon the date such judgment becomes final and each Indemnitee shall thereupon
reimburse Contractor for its reasonable attorneys' fees, consultant's fees and
court costs incurred in so defending that Indemnitee.
3.18.5 If any claim or lien or stop-notice or any other demand for payment or
security therefor, including claims or demands upon the performance and payment
bond sureties, is made or filed with or against the Owner or the Project by
Contractor or by any Person claiming that the Contractor or any Subcontractor,
Sub-Subcontractor, Supplier or other person under it has failed to perform its
contractual obligations or to make payment for any labor, services, materials,
equipment, taxes, trust fund contribution or other items or obligations
furnished or incurred for, or in connection with, the Work, or if the Contractor
or any Subcontractor, Sub-Subcontractor, Supplier or other person under it
causes damage to the Work or fails to comply with the terms or provisions of the
Contract Documents (and Owner has not received insurance proceeds fully
compensating it for such damage or failure), then the Owner shall have the right
to retain from any payment then due or thereafter to become due an amount
sufficient to (1) satisfy, discharge and defend against any such claim of lien
or stop notice or other demand, or any action or proceeding thereon which may be
brought to judgment or award; (2) make good any such nonpayment, nonperformance,
damage, failure or default; and (3) compensate the Owner and other Indemnitees
for, and indemnify them against, any and all losses, reasonable accountants',
reasonable consultants' and reasonable experts' fees and costs which may be
sustained or incurred, by the Owner and other Indemnitees through counsel
reasonably approved by Owner in connection therewith. The Owner shall have the
right to apply and charge against any amount due to be paid to the Contractor,
or any amounts retained from such payments, as may be required for the foregoing
purposes. If the amount to be paid, or the amount retained, is insufficient
therefor, the Contractor shall be liable for the difference and upon written
demand shall immediately pay the same to the Owner. The provisions of this
paragraph are in addition to such other rights and entitlements as the
Indemnitees may enjoy against Contractor under this Agreement, the Contract
Documents, and at law and in equity, provided, however, the provisions of this
paragraph shall not apply to any claim of lien, stop-notice or other demand for
payment or security which arise out of Owner's breach of this Agreement,
including Owner's failure or the failure of the lender(s) for the Project to pay
for the Work which is the subject of the lien, stop notice or other demand.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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3.18.6 Should any Subcontractor, Sub-Subcontractor, Supplier or other person
under them make, record or file, or maintain any action on or respecting, a
claim of mechanic's lien, a stop-notice or equitable lien, a claim of the
payment or performance bond, or a lis pendens, the Contractor shall immediately
and at its own expense procure, furnish and record appropriate statutory release
bonds, or take other action reasonably approved by Owner, which would under
applicable law extinguish or expense said claim, stop-notice or lis pendens. Any
failure of the Contractor to procure, furnish and record such release bond may
be treated by the Owner as an event of default under the Contract Documents.
Notwithstanding the foregoing, Contractor shall have no obligations to take the
action required under this paragraph if any such claim, lien or lis pendens
results from Owner's failure to make progress payments required hereunder.
3.19.1 If the Owner furnishes to the Contractor a construction loan agreement or
similar agreement between Owner and any lender, Contractor agrees to fully
cooperate with Owner in reasonably complying with the provisions thereof and
agrees to furnish any and all information, reports and certificates which are
required thereunder. Contractor specifically agrees to make such changes to the
Contract Documents as the lender may reasonably request, including without
limitation, changes to the monthly payment schedule, retentions, data to be
delivered with invoices, lender inspections, delivery of notices to the lender
regarding various matters and assignment of the Contract Documents to the
lender.
3.19.2 The Contractor shall provide all documents, reports and other information
requested by any escrow agent or title insurer, and shall cooperate with such
persons to the fullest extent possible.
3.19.3 In the event any lender of the Owner shall designate an inspecting
architect or other representative, the Owner may require the concurrence of such
architect or representative in each instance in which approval of Owner,
Development Manager or Architect is required by any Provision of these General
Conditions or other Contract Documents. The Contractor agrees to cooperate with
such inspecting architect or representative.
3.20 Contractor shall, in addition to any other Contractor duties and
obligations set forth in this Contract and subject to the terms and provisions
of this Contract, perform the following:
3.20.1 The Contractor, and any Subcontractor if expressly requested by Owner or
Development Manager, shall provide Owner and Development Manager with a copy of
the current contractor's license and certificate of insurance for the Contractor
prior to payment of the first Application for Payment. The Contractor shall
remain at all times during the term of this Contract fully qualified and capable
of performing every phase of the Work to complete the Project, either itself or
through the Subcontractors.
3.20.2 The Contractor shall maintain at the site on a current basis records of
all Subcontracts, orders for materials and equipment, shop drawings, samples,
and any other related documents and revisions thereto which arise out of the
Contract Documents or the Work.
3.20.3 After Substantial Completion, the Contractor shall perform or assist
Owner or Development Manager in the start-up of all Equipment and other
mechanical operations and systems included as a part of the Work.
ARTICLE 4
ADMINISTRATION OF THE CONTRACT
4.1 ARCHITECT AND DEVELOPMENT MANAGER
4.1.1 The Architect is the person lawfully licensed to practice architecture or
an entity lawfully practicing architecture identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number.
The term "Architect" means the Architect or the Architect's authorized
representative.
4.1.2 The Development Manager is Sares-Regis Group of Northern California, LP,
with offices at 000 Xxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxx, XX 00000-0000 or
such successor as the Owner may appoint from time to time by written notice to
the Contractor.
4.1.[2]3 [Duties, responsibilities and limitations of authority of the
Architect as set forth in the Contract Documents shall not be restricted,
modified or extended without written consent of the Owner, Contractor and
Architect. Consent shall not be unreasonably withheld.] The duties,
responsibilities and limitations of authority of the Architect and Development
Manager as set forth in the Contract Documents shall not be modified or extended
without written consent of the Owner and the Architect or Development Manager
and written notice to the Contractor, except that the Owner may unilaterally
limit the Architect's or Development Manager's authority from time to time by
written notice to the Contractor; however, the limiting of the Development
Manager's or Architect's authority cannot be retroactive. Except to the extent
provided in Paragraph 7.5, Owner shall have no liability for the negligence,
willful misconduct or defaults of Development Manager or Architect. If
Contractor incurs any expense or liability as a result thereof, Contractor shall
be subrogated to the rights, if any, of Owner against Development Manager or
Architect.
It is the intent of the parties that if there are any errors or inconsistencies
in the Specifications and Drawings or if the Specifications or Drawings are in
violation of Law, then (i) Contractor and the Architect preparing such
Specifications and Drawings shall allocate such liability and responsibility,
should they so elect, in a separate document of which Owner shall not be a
party, (ii) as between Owner and Contractor, Owner shall have no liability or
responsibility whatsoever (except to the limited extent provided in Paragraph
7.5).
4.1.4 In case of termination of employment of the Architect or Development
Manager, [the Owner shall appoint an architect against whom the Contractor makes
no reasonable objection and whose status under the Contract Documents shall be
that of the former architect.] Owner may at any time employ or retain any
licensed Architect or person or entity qualified to act as Architect or
Development Manager to perform all or any part of their duties hereunder or to
exercise any of their rights hereunder. Owner shall notify all parties in
writing (setting forth the scope of said replacement Architect's or Development
Manager's duties and responsibilities).
4.1.4 Disputes arising under Subparagraphs 4.1.2 and 4.1.3 shall be subject to
arbitration.
4.2 [ARCHITECT'S] ADMINISTRATION OF THE CONTRACT
4.2.1 [The Architect will provide administration of the Contract 2s described in
the Contract Documents, and will be the Owner's representative (I) during
construction, (2) until final payment is due and (3) with the Owner's
concurrence, from time to time during the correction period described in
Paragraph 12.2. The Architect will advise and consult with the Owner. The
Architect will have authority to act on behalf of the Owner only to the extent
provided in the Contract Documents, unless otherwise modified by written
instrument in accordance with other provisions of the Contract.] The Owner shall
provide administration of the Contract as hereinafter described and may delegate
any part of such obligation to the Development Manager or Architect, but such
delegation shall not limit the Owner's right to require its concurrence or
approval of the Development Manager's or Architect's actions, if the Owner so
elects. The Owner may participate in all major meetings as required, and may
serve as the person through whom the Contractor special communications and needs
are passed, including requests for information and special consultation with
architects, engineers, outside consultants and lending institutions.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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The Development Manager, with the concurrence of the Owner and Architect, shall
have general supervision and direction of the Work. The Architect, with the
approval of the Owner in each case shall supervise and instruct the Contractor
with regard to matters set forth in the Drawings and Specifications. In addition
to any specific responsibilities assigned elsewhere in the Contract Documents,
the Owner shall decide any and all questions which may arise as to the rate of
progress of the Work. The Development Manager and Architect will have authority
to act on behalf of the Owner only to the extent provided in the Contract
Documents, unless otherwise modified by written instrument executed by Owner.
4.2.2 The Architect will visit the site at intervals appropriate to the stage of
construction to become generally familiar with the progress and quality of the
completed Work and to determine in general if the Work is being performed in a
manner indicating that the Work, when completed, will be in accordance with the
Contract Documents. However, the Architect will not be required to make
exhaustive or continuous on-site inspections to check quality or quantity of the
Work. On the basis of on-site observations as an architect, the Architect will
keep the Owner informed of progress of the Work, and will endeavor to guard the
Owner against defects and deficiencies in the Work.
4.2.3 The Development Manager and The the Architect will not have control over
or charge of and will not be responsible for construction means, methods,
techniques, sequences or procedures, or for safety precautions and programs in
connection with the Work, since these are solely the Contractor's responsibility
as provided in Paragraph 3.3. The Architect will not be responsible for the
Contractor's failure to carry out the Work in accordance with the Contract
Documents. The Architect will not have control over or charge of and will not be
responsible for acts or omissions of the Con-tractor, Subcontractors, or their
agents or employees, or of any other persons performing portions of the Work.
4.2.4 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION. Except as otherwise
provided in the Contract Documents or when direct communications have been
specially authorized by Owner, the Owner and Contractor shall [endeavor to]
communicate through the [Architect] Development Manager; provided, however, that
Owner may instruct, correspond or negotiate with Contractor directly.
Communications by and with the Architect's consultants shall be through the
Architect. Communications by and with Subcontractors and material suppliers
shall be through the Contractor. Communications by and with [separate
contractors] other Contractors shall be through the [Owner] Development Manager.
4.2.5 [Based on the Architect's observations and evaluations of the Contractor's
Applications for Payment, the Architect will review and certify the amounts due
the Contractor and will issue Certificates for Payment in such amounts.]
4.2.6 The Owner, Development Manager and Architect will have authority to reject
Work which does not conform to the Contract Documents. Whenever the Architect
considers it necessary or advisable for implementation of the intent of the
Contract Documents, and after consulting with Development Manager, the Architect
will have authority to require additional inspection or testing of the Work in
accordance with Subparagraphs 13.5.2 and 13.5.3, whether or not such Work is
fabricated, installed or completed. However, neither this authority of the
Owner, Development Manager and Architect nor a decision made in good faith
either to exercise or not to exercise such authority shall give rise to a duty
or responsibility of the Owner, Development Manager or Architect to the
Contractor, Subcontractors, material and equipment suppliers, their agents or
employees, or other persons performing portions of the Work.
4.2.7 The Architect will review and approve or take other appropriate action
upon the Contractor's submittals such as Shop Drawings, Product Data and
Samples, but only for the limited purpose of checking for conformance with
information given and the design concept expressed in the Contract Documents.
The Architect's action will be taken with such reasonable promptness as to cause
no delay in the Work or in the activities of the Owner, Contractor or separate
contractors, while allowing sufficient time in the Architect's professional
judgment to permit adequate review. Review of such submittals is not conducted
for the purpose of determining the accuracy and completeness of other details
such as dimensions and quantities, or for substantiating instructions for
installation or performance of equipment or systems, all of which remain the
responsibility of the Contractor as required by the Contract Documents. The
Architect's review of the Contractor's submittals shall not relieve the
Contractor of the obligations under Paragraphs 3.3, 3.5 and 3.12. The
Architect's review shall not constitute approval of safety precautions or,
unless otherwise specifically stated by the Architect, of any construction
means, methods, techniques, sequences or procedures. The Architect's approval of
a specific item shall not indicate approval of an assembly of which the item is
a component.
4.2.8 The Architect Development Manager will [prepare] direct the Architect to
issue Change Orders and Construction Change Directives, and may authorize minor
changes in the Work as provided in Paragraph 7.4. All Change Orders and
Construction Change Directives shall require the approval of Owner in writing to
be binding on Owner.
4.2.9 The Architect will conduct inspections to determine the date or dates of
Substantial Completion and the date of Final Completion, will receive and
forward to the Owner for the Owner's review and records written warranties and
related documents required by the Contract and assembled by the Contractor, and
will issue a final Certificate for Payment upon compliance with the requirements
of the Contract Documents approve, subject to Owner's review and approval, the
final Application for Payment in such amounts.
4.2.10 If the Owner and Architect agree, the Architect will provide one or more
project representatives to assist in carrying out the Architect's
responsibilities at the site. The duties, responsibilities and limitations of
authority of such project representatives shall be as set forth in an exhibit to
be incorporated in the Contract Documents.
4.2.11 Subject to Paragraph 4.3 hereinbelow in respect of claims, the [The]
Architect will, in the first instance, interpret and decide matters concerning
performance under and requirements of the Contract Documents on written request
of either the Owner, Development Manager or Contractor. The Architect's response
to such requests will be made with reasonable promptness and within any time
limits agreed upon. If no agreement is made concerning the time within which
interpretations required of the Architect shall be furnished in compliance with
this Paragraph 4.2, then delay shall not be recognized on account of failure by
the Architect to furnish such interpretations until 15 days after written
request is made for them. Should a conflict be discovered within the Contract
Documents, the CONTRACTOR SHALL BE DEEMED TO HAVE AGREED TO PERFORM THE WORK IN
ACCORDANCE WITH THE LEVEL OF QUALITY ESTABLISHED IN THE PLANS AND SPECIFICATION
AND ACCEPTED INDUSTRY STANDARDS FOR SIMILAR PROJECTS unless it shall have asked
for and obtained a decision, in writing, approved by Owner, from the Architect
before entering into the Contract.
4.2.12 Interpretations and decisions of the Architect will be consistent with
the intent of and reasonably inferable from the Contract Documents and will be
in writing or in the form of drawings. When making such interpretations and
decisions, the Architect will endeavor to secure faithful performance by both
Owner and Contractor, will not show partiality to either and will not be liable
for results of interpretations or decisions so rendered in good faith.
4.2.13 The Architect's decisions on matters relating to aesthetic effect will be
final if consistent with the intent expressed in the Contract Documents.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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4.3 CLAIMS AND DISPUTES
4.3.1 DEFINITION. A Claim is a demand or assertion by one of the parties
seeking, as a matter of right, adjustment [or interpretation] of Contract terms,
payment of money, extension of time or other relief with respect to the terms of
the Contract. The term "Claim" also includes other disputes [and matters in
question] between the Owner and Contractor arising out of or relating to the
Contract. Claims must be made by written notice. The responsibility to
substantiate Claims shall rest with the party making the Claim.
4.3.2 DECISION OF ARCHITECT. Claims, including those alleging an error or
omission by the Development Manager or Architect, shall be referred initially to
the Architect for action as provided in Paragraph 4.4. A decision by the
Architect, as provided in Subparagraph 4.4.4, shall be required as a condition
precedent to arbitration or litigation of a Claim between the Contractor and
Owner as to all such matters arising prior to the date final payment is due,
regardless of (1) whether such matters relate to execution and progress of the
Work or (2) the extent to which the Work has been completed. The decision by the
Architect in response to a Claim shall not be a condition precedent to
arbitration or litigation in the event (l) the position of Architect is vacant,
(2) the Architect has not received evidence or has failed to render a decision
within agreed time limits, (3) the Architect has failed to take action required
under Subparagraph 4.4.4 within 30 days after the Claim is made, (4) 45 days
have passed after the Claim has been referred to the Architect or (5) the Claim
relates to a mechanic's lien.
4.3.3 TIME LIMITS ON CLAIMS. Claims by either party must be made within 21 days
after occurrence of the event giving rise to such Claim or within 21 days after
the claimant first recognizes the condition giving rise to the Claim, whichever
is later. Claims must be made by written notice. An additional Claim made after
the initial Claim has been implemented by Change Order will not be considered
unless submitted in a timely manner.
4.3.4 CONTINUING CONTRACT PERFORMANCE. Pending final resolution of a Claim
including arbitration, unless otherwise agreed in writing the Contractor shall
proceed diligently with performance of the Contract and the Owner shall continue
to make payments in accordance with the Contract Documents.
4.3.5 WAIVER OF CLAIMS: FINAL PAYMENT. The making of final payment shall
constitute a waiver of Claims by the Owner except those arising from:
.1 liens, Claims, security interests or encumbrances arising out of
the Contract and unsettled;
.2 failure of the Work to comply with the requirements of the
Contract Documents; or
.3 terms of special warranties required by the Contract Documents.
4.3.6 CLAIMS FOR CONCEALED OR UNKNOWN CONDITIONS. If a Concealed Condition is
discovered at the site [which are (1) subsurface or otherwise concealed physical
conditions which differ materially from those indicated in the Contract
Documents, or (2) unknown physical conditions of an unusual nature which differ
materially from those ordinarily found to exist and generally recognized as
inherent in construction activities of the character provided for in the
Contract Documents], then notice by the observing party shall be given to the
other party promptly before conditions are disturbed and in no event later than
21 days after first observance of the conditions. The Architect will promptly
investigate such conditions and, if they differ materially and cause an increase
or decrease in the Contractor's cost of, or time required for, performance of
any part of the Work, and if Contractor neither knew nor should have known of
such Concealed Condition prior to entering into this Agreement or prior to
establishing the Guaranteed Maximum Price, will recommend an equitable
adjustment in the Contract Sum or Contract Time, or both. If the Architect
determines that the conditions at the site are not materially different from
those indicated in the Contract Documents or that Contractor either knew or
should have known of such Concealed Condition prior to the time established
above, and that no change in the terms of the Contract is justified, the
Architect shall so notify the Owner and Contractor in writing, stating the
reasons. Claims by either party in opposition to such determination must be made
within 21 days after the Architect has given notice of the decision. If the
Owner and Contractor cannot agree on an adjustment in the Contract Sum or
Contract Time, the adjustment shall be referred to the Architect for initial
determination, subject to further proceedings pursuant to Paragraph 4.4.
4.3.7 CLAIMS FOR ADDITIONAL COST. If the Contractor wishes to make Claim for an
increase in the Contract Sum, written notice as provided herein shall be given
before proceeding to execute the Work. Prior notice is not required for Claims
relating to an emergency endangering life or property arising under Paragraph
10.3. [If the Contractor believes additional cost is involved for reasons
including but not limited to (1) a written interpretation from the Architect,
(2) an order by the Owner to stop the Work where the Contractor was not at
fault, (3) a written order for a minor change in the Work issued by the
Architect, (4) failure of payment by the Owner, (5) termination of the Contract
by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim
shall be filed in accordance with the procedure established herein.] Contractor
shall only be allowed to make and recover on a Claim for an increase in the
Contract Sum resulting from events specifically listed in Paragraph 7.5; no
other increase in the Cost of the Work shall result in an increase in the
Contract Sum.
4.3.8 CLAIMS FOR ADDITIONAL TIME
4.3.8.1 If the Contractor wishes to make Claim for an increase in the Contract
Time, written notice as provided herein shall be given. The Contractor's Claim
shall include an estimate of cost and of probable effect of delay on progress of
the Work. In the case of a continuing delay only one Claim is necessary.
4.3.8.2 If adverse weather conditions are the basis for a Claim for additional
time, such Claim shall be documented by data substantiating that weather
conditions [were abnormal for the period of time and could not have been
reasonably anticipated, and that weather conditions] had an adverse effect on
the scheduled construction.
4.3.9 INJURY OR DAMAGE TO PERSON OR PROPERTY. If either party to the Contract
suffers injury or damage to person or property because of an act or omission of
the other party, of any of the other party's employees or agents, or of others
for whose acts such party is legally liable, written notice of such injury or
damage, whether or not insured, shall be given to the other party within a
reasonable time not exceeding 2 I days after first observance. The notice shall
provide sufficient detail to enable the other party to investigate the matter.
If a Claim for additional cost or time related to this Claim is to be asserted,
it shall be filed as provided in Subparagraphs 4.3.7 or 4.3.8.
4.4 RESOLUTION OF CLAIMS AND DISPUTES
4.4.1 The Architect will review Claims and take one or more of the following
preliminary actions within ten days of receipt of a Claim: (1) request
additional supporting data from the claimant, (2) submit a schedule to the
parties indicating when the Architect expects to take action, (3) reject the
Claim in whole or in part, stating reasons for rejection, (4) recommend approval
of the Claim by the other party or (5) suggest a compromise. The Architect may
also, but is not obligated to, notify the surety, if any, of the nature and
amount of the Claim.
4.4.2 If a Claim has been resolved, the Architect, or at Owner's sole option,
Owner will prepare or obtain appropriate documentation.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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4.4.3 If a Claim has not been resolved, the party making the Claim shall, within
ten days after the Architect's preliminary response, take one or more of the
following actions: (1) submit additional supporting data requested by the
Architect, (2) modify the initial Claim or (3) notify the Architect that the
initial Claim stands.
4.4.4 If a Claim has not been resolved after consideration of the foregoing and
of further evidence presented by the parties or requested by the Architect, the
Architect will notify the parties in writing that the Architect's decision will
be made within seven days, which decision shall be [final and] considered
advisory only and not binding on the parties [but subject to arbitration]. Upon
expiration of such time period, the Architect will render to the parties the
Architect's written decision relative to the Claim, including any change in the
Contract Sum or Contract Time or both. If there is a surety and there appears to
be a possibility of a Contractor's default, the Architect may, but is not
obligated to, notify the surety and request the surety's assistance in resolving
the controversy.
4.5 ARBITRATION
4.5.1 CONTROVERSIES AND CLAIMS SUBJECT TO ARBITRATION. Any controversy or Claim
arising out of or related to the Contract, or the breach thereof, shall be
settled by arbitration in accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association, and judgment upon the award
rendered by the arbitrator or arbitrators may be entered in any court having
jurisdiction thereof, except controversies or Claims relating to aesthetic
effect and except those waived as provided for in Subparagraph 4.3.5. Such
controversies or Claims upon which the Architect has given notice and rendered a
decision as provided in Subparagraph 4.4.4 shall be subject to arbitration upon
written demand of either party. Arbitration may be commenced when 45 days have
passed after a Claim has been referred to the Architect as provided in Paragraph
4.3 and no decision has been rendered.
4.5.2 RULES AND NOTICES FOR ARBITRATION. Claims between the Owner and Contractor
not resolved under Paragraph 4,4 shall, if subject to arbitration under
Subparagraph 4.5.1, be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the American Arbitration Association
currently in effect, unless the parties mutually agree otherwise. Notice of
demand for arbitration shall be filed in writing with the other party to the
Agreement between the Owner and Contractor and with the American Arbitration
Association, and a copy shall be filed with the Architect.
4.5.3 CONTRACT PERFORMANCE DURING ARBITRATION. During arbitration proceedings,
the Owner and Contractor shall comply with Subparagraph 4.3.4.
4.5.4 WHEN ARBITRATION MAY BE DEMANDED. Demand for arbitration of any Claim may
not be made until the earlier of (1) the date on which the Architect has
rendered a final written decision on the Claim, (2) the tenth day after the
parties have presented evidence to the Architect or have been given reasonable
opportunity to do so, if the Architect has not rendered a final written decision
by that date, or (3) any of the five events described in Subparagraph 4.3.2.
4.5.4.1 When a written decision of the Architect states that (1) the decision is
final but subject to arbitration and (2) a demand for arbitration of a Claim
covered by such decision must be made within 30 days after the date on which the
party making the demand receives the final written decision, then failure to
demand arbitration within said 30 days' period shall result in the Architect's
decision becoming final and binding upon the Owner and Contractor. If the
Architect renders a decision after arbitration proceedings have been initiated,
such decision may be entered as evidence, but shall not supersede arbitration
proceedings unless the decision is acceptable to all parties concerned.
4.5.4.2 A demand for arbitration shall be made within the time limits specified
in Subparagraphs 4.5.1 and 4.5.4 and Clause 4.5.4.1 as applicable, and in other
cases within a reasonable time after the Claim has arisen, and in no event shall
it be made after the date when institution of legal or equitable proceedings
based on such Claim would be barred by the applicable statute of limitations as
determined pursuant to Paragraph 13.7.
4.5.5 Limitation on Consolidation or Joinder. No arbitration arising out of or
relating to the Contract Documents shall include, by consolidation or joinder or
in any other manner, the Architect, the Architect's employees or consultants,
except by written consent containing specific reference to the Agreement and
signed by the Architect, Owner, Contractor and any other person or entity sought
to be joined. No arbitration shall include, by consolidation or joinder or in
any other manner, parties other than the Owner, Contractor, a separate
contractor as described in Article 6 and other persons substantially involved in
a common question of fact or law whose presence is required if complete relief
is to be accorded in arbitration. No person or entity other than the Owner,
Contractor or a separate contractor as described in Article 6 shall be included
as an original third party or additional third party to an arbitration whose
interest or responsibility is insubstantial. Consent to arbitration involving an
additional person or entity shall not constitute consent to arbitration of a
dispute not described therein or with a person or entity not named or described
therein. The foregoing agreement to arbitrate and other agreements to arbitrate
with an additional person or entity duly consented to by parties to the
Agreement shall be specifically enforceable under applicable law in any court
having jurisdiction thereof.
4.5.6 CLAIMS AND TIMELY ASSERTION OF CLAIMS. A party who files a notice of
demand for arbitration must assert in the demand all Claims then known to that
party on which arbitration is permitted to be demanded. When a party fails to
include a Claim through oversight, inadvertence or excusable neglect, or when a
Claim has matured or been acquired subsequently, the arbitrator or arbitrators
may permit amendment.
4.5.7 JUDGMENT ON FINAL AWARD. The award rendered by the arbitrator or
arbitrators shall be final, and judgment may be entered upon it in accordance
with applicable law in any court having jurisdiction thereof.
ARTICLE 5
SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract with the
Contractor to perform a portion of the Work at the site. The term
"Subcontractor" is referred to throughout the Contract Documents as if singular
in number and means a Subcontractor or an authorized representative of the
Subcontractor. The term "Subcontractor does not include [a separate contractor]
other Contractors or subcontractors of [a separate contractor] other
Contractors.
5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect
contract with a Subcontractor to perform a portion of the Work at the site. The
term "Sub-subcontractor" is referred to throughout the Contract Documents as if
singular in number and means a Sub-subcontractor or an authorized representative
of the Sub-subcontractor.
5.1.3 The terms Subcontractor and Sub-subcontractor also include persons
supplying materials and equipment incorporated into, used in connection with, or
consumed by the Work.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
5.2.1 Unless otherwise stated in the Contract Documents or the bidding
requirements, the Contractor, as soon as practicable after award of the
Contract, shall furnish in writing to the [Owner through the Architect]
Development Manager for review by the Owner, Development Manager and Architect
the names of persons or entities (including
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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those who are to furnish materials or equipment fabricated to a special design)
proposed for each portion of the Work.[ The Architect will promptly reply to the
Contractor in writing stating whether or not the Owner or the Architect, after
due investigation, has reasonable objection to any such proposed person or
entity. Failure of the Owner or Architect to reply promptly shall constitute
notice of no reasonable objection.] Copies of all bids or other proposals from
Subcontractors shall, upon request of the Owner, be submitted to the Owner. All
Subcontractors shall be subject to the approval of Owner which approval shall
not be unreasonably withheld.
5.2.2 The Contractor shall not contract with a proposed person or entity to whom
the Owner, Development Manager or Architect has made reasonable and timely
objection. The Contractor shall not be required to contract with anyone to whom
the Contractor has made reasonable objection.
5.2.3 If the Owner, Development Manager or Architect has reasonable objection to
a person or entity proposed by the Contractor, the Contractor shall propose
another to whom the Owner, Development Manager or and Architect has have no
reasonable objection. The Contract Sum shall be increased or decreased by the
difference in cost occasioned by such change and an appropriate Change Order
shall be issued. However, no increase in the Contract Sum shall be allowed for
such change unless the Contractor has acted promptly and responsively in
submitting names as required.
5.2.4 The Contractor shall not change a Subcontractor, person or entity
previously selected if the Owner, Development Manager or Architect makes
reasonable objection to such change. The Owner may require the Contractor to
change any Subcontractor previously approved and, if at such time the Contractor
is not in default hereunder, the Contract Sum shall be increased or decreased by
the difference in cost occasioned by such change.
5.2.5 Prior to solicitation of bids from Subcontractors and material suppliers,
Contractor shall submit to the Owner, Development Manager and Architect a
proposed list of bidders. The Owner reserves the right to approve and add to
such bidders list. Such approval shall be in writing.
5.2.6 It is understood that in the event of a conflict between Owner, on the one
hand, and the Development Manager or Architect, on the other hand, regarding the
selection of subcontractors, the Owner's decision in selection of subcontractors
shall govern.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 By appropriate written 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 these Documents,
assumes toward the Owner, Development Manager and Architect. Each subcontract
agreement shall preserve and protect the rights of the Owner, Development
Manager and Architect under the Contract Documents with respect to the Work to
be performed by the Subcontractor so that subcontracting thereof will not
prejudice such rights, and shall allow to the Subcontractor, unless specifically
provided otherwise in the subcontract agreement, the benefit of all rights,
remedies and redress against the Contractor that the Contractor, by the Contract
Documents, has against the Owner. Where appropriate, the Contractor shall
require each Subcontractor to enter into similar agreements with
Sub-subcontractors. The Contractor shall make available to each proposed
Subcontractor, prior to the execution of the subcontract agreement, copies of
the Contract Documents to which the Subcontractor will be bound, and, upon
written request of the Subcontractor, identify to the Subcontractor terms and
conditions of the proposed subcontract agreement which may be at variance with
the Contract Documents. Subcontractors shall similarly make copies of applicable
portions of such documents available to their respective proposed
Sub-subcontractors.
5.3.2 Any part of the work performed for the Contractor by a Subcontractor shall
be pursuant to a written Subcontract between the Contractor and such
Subcontractor, which shall be prepared on the form of Subcontract which the
Owner has approved. Each Subcontract shall:
.1 require that such work be performed in accordance with the
requirements of the Contract Documents;
.2 waive all rights the contracting parties may have against one
another or that the Subcontractor may have against the Owner for
damages caused by fire or other perils covered by the property
insurance described in the Contract Documents;
.3 require the Subcontractor to carry and maintain liability
insurance in accordance with the Contract Documents; and
.4 require the Subcontractor to furnish such certificates and waivers
of liens as Owner, any lender or title insurer may reasonably
request including waivers of mechanics' lien rights to the extent
permitted by law.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1 [Each subcontract agreement for a portion of the Work is assigned by the
Contractor to the Owner provided that:
.1 assignment is effective only after termination of the Contract by
the Owner for cause pursuant to Paragraph 14.2 and only for those
subcontract agreements which the Owner accepts by notifying the
Subcontractor in writing; and
.2 assignment is subject to the prior rights of the surety, if any,
obligated under bond relating to the Contract.]
All subcontract agreements shall conform to the requirements of the Contract
Documents and Contractor hereby assigns to Owner (and Owner's permitted assigns)
all its interest in any subcontract agreements and purchase orders now existing
or hereinafter entered into by Contractor for performance of any part of the
Work, which assignment will be effective upon acceptance by Owner in writing and
only as to those subcontract agreements and purchase orders that Owner
designates in said writing. It is agreed and understood that Owner may only
accept said assignment upon (i) Termination for Cause pursuant to Paragraph
14.2.1, or (ii) upon Termination for Convenience pursuant to Paragraph 14.2.5
and payment of the fee as provided under Paragraph 14.2.6.2. Upon such
acceptance by Owner, (1) Contractor shall promptly furnish to Owner true and
correct copies of the designated subcontract agreements, and purchase orders,
and (2) Owner shall only be required to compensate the designated
Subcontractor(s) or supplier(s) for compensation accruing to such party(ies) for
Work done or materials delivered from and after the date on which Owner
determines to accept the subcontract agreement(s) or purchase order(s). All sums
due and owing by Contractor to the designated Subcontractor(s) or supplier(s)
for work performed or material supplied prior to Owner's determination to accept
the subcontract agreement(s) or purchase order(s) shall constitute a debt
between such parties and Contractor. It is further agreed that all subcontract
agreements and purchase orders shall provide that they are freely assignable by
Contractor to Owner and assigns under the terms and conditions stated
hereinabove. It is further agreed and understood that such assignment is part of
the consideration to Owner for entering into the Contract with Contractor any
may not be withdrawn prior to Final Completion. Contractor shall deliver or
cause to be delivered to Owner a written acknowledgment in form and substance
satisfactory to Owner from each of its Subcontractors and suppliers of the
contingent assignment described herein no later than ten (10) days after the
date of
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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execution of each subcontract agreement and purchase order with such parties.
5.4.2 If the Work has been suspended for more than 30 days, he Subcontractor's
compensation shall be equitably adjusted.
5.5 CONTRACTOR'S RESPONSIBILITY FOR ACTS OF SUBCONTRACTORS
5.5.1 The Contractor shall be totally responsible and liable for all acts and
omissions of the Subcontractors and each of their employees, agents and
independent contractors and all other parties for whose acts any of such
Subcontractors may be liable, to the same extent as the Contractor is
responsible and liable for the acts and omissions of parties directly employed
by the Contractor. The Contractor shall also be solely responsible for the
payment of the Subcontractor and all other persons directly or indirectly
employed by the Contractor or the Subcontractors, whether or not such persons
are entitled to assert mechanics' lien, stop notice, equitable lien or labor and
material lien rights against the Project or the site.
ARTICLE 6
CONSTRUCTION BY OWNER OR BY [SEPARATE] OTHER CONTRACTORS
6.1.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION WITH OWN FORCES AND TO AWARD
[SEPARATE] OTHER CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations related
to the Project with the Owner's own forces, which include persons or entities
under separate contracts not administered by the Development Manager. The Owner
further reserves the right to award other contracts in connection with other
portions of the Project or other construction or operations on the site [and to
award separate contracts in connection with other portions of the Project or
other construction or operations on the item] under Conditions of the Contract
identical or substantially similar to these including those portions related to
insurance and waiver of subrogation. If the Contractor claims that delay or
additional cost is involved because of such action by the owner, the Contractor
shall make such Claim as provided elsewhere in the Contract Documents.
6.1.2 [When separate contracts are awarded for different portions of the Project
or other construction or operations on the site, the term "Contractor" in the
Contract Documents in each case shall mean the Contractor who executed each
separate Owner-Contractor Agreement.] When the Owner performs construction or
operations with the Owner's own forces, including persons or entities under
separate contracts not administered by the Development Manager, the Owner shall
provide for coordination of such forces with the Work of the Contractor in order
to prevent any disruption or delay to the Work of the Contractor, who shall
cooperate with them.
6.1.3 [The Owner shall provide for coordination of the activities of the Owner's
own forces and of each separate contractor with the Work of the Contractor, who
shall cooperate with them. The Contractor shall participate with other separate
contractors and the Owner in reviewing their construction schedules when
directed to do so. The Contractor shall make any revisions to the construction
schedule and Contract Sum deemed necessary after a joint review and mutual
agreement. The construction schedules shall then constitute the schedules to be
used by the Contractor, separate contractors and the Owner until subsequently
revised.
6.1.4 Unless otherwise provided in the Contract Documents, when the Owner
performs construction or operations related to the Project with the Owner's own
forces, the Owner shall be deemed to be subject to the same obligations and to
have the same rights which apply to the Contractor under the Conditions of the
Contract, including, without excluding others, those stated in Article 3, this
Article 6 and Articles 10, 11 and 12.]
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford [the Owner and separate contractors] the
Owner's own forces, Development Manager and other Contractors reasonable
opportunity for introduction and storage of their materials and equipment and
performance of their activities and shall connect and coordinate the
Contractor's construction and operations with theirs as required by the Contract
Documents.
6.2.2 If part of the Contractor's Work depends for proper execution or results
upon construction or operations by the [Owner or a separate contractor] Owner's
own forces or other Contractors, the Contractor shall, prior to proceeding with
that portion of the Work, promptly report to the Owner, Development Manager and
Architect [apparent] discrepancies or defects in such other construction that
would render it unsuitable for such proper execution and results or would render
it incompatible with Contractor's Work. Failure of the Contractor so to report
shall constitute an acknowledgment that the Owner's [or separate contractors']
or other Contractors' completed or partially completed construction is fit and
proper to receive the Contractor's Work[, except as to defects not then
reasonably discoverable] and is fully compatible therewith.
6.2.3 [Costs] Subject to Paragraph 8.3 hereof, costs caused by delays or by
improperly timed activities or defective construction shall be borne by the
party responsible therefor.
6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the
Contractor to completed or partially completed construction or to property of
the Owner or [separate contractors] other Contractors as provided in
Subparagraph 10.2.5 or to other completed or partially completed construction or
property on the site or to property of any adjoining owner or other party.
6.2.5 Claims and other disputes and matters in question between the Contractor
and a separate contractor shall be subject to the provisions of Paragraph 4.3
provided the separate contractor has reciprocal obligations.
6.2.6 The Owner and each separate contractor shall have the same
responsibilities for cutting and patching as are described for the Contractor in
Paragraph 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises among the Contractor[, separate contractors and the
Owner] and other Contractors as to their responsibility [under their respective
contracts for maintaining the premises and surrounding area free from waste
materials and rubbish as described in Paragraph 3.15, the Owner may clean up and
allocate the cost among those responsible as the Architect determines to be
just.] for cleaning up as required by Paragraph 3.15, assignment of this
clean-up will be determined by the Development Manager.
ARTICLE 7
CHANGES IN THE WORK
7.1 CHANGES
7.1.1 Changes in the Work may be accomplished after execution of the Contract,
and without invalidating the Contract, only by Change Order, Construction Change
Directive or order for a minor change in the Work as provided in Paragraph 7.4,
subject to the limitations stated in this Article 7 and elsewhere in the
Contract Documents. When submitting a proposal for a Change Order or
Construction Change Directive, the Contractor shall include and set forth in
clear and precise detail breakdowns of labor and materials for all trades
involved and the estimated impact on the construction schedule. The Contractor
shall furnish spread sheets from which the breakdowns were prepared, plus spread
sheets, if requested, of any Subcontractors.
7.1.2 A Change Order shall be based upon agreement among the Owner, and
Contractor; a Construction Change
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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Directive requires agreement by the Owner, Development Manager and Architect and
may or may not be agreed to by the Contractor; an order for a minor change in
the Work may be issued by the Architect Development Manager alone.
7.1.3 Changes in the Work shall be performed under applicable provisions of the
Contract Documents, and the Contractor shall proceed promptly, unless otherwise
provided in the Change Order, Construction Change Directive or order for a minor
change in the Work.
7.1.4 If unit prices are stated in the Contract Documents or subsequently agreed
upon, and if quantities originally contemplated are so changed in a proposed
Change Order or Construction Change Directive that application of such unit
prices to quantities of Work proposed will cause substantial inequity to the
Owner or Contractor, the applicable unit prices shall be equitably adjusted.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared by the [Architect]
Development Manager and signed by the Owner, Contractor, Development Manager and
Architect, stating their agreement upon all of the following for the item
covered in each Change Order as well as the cumulative effect and impact of all
previous Change Orders:
.1 a change in the Work;
.2 the amount of the adjustment in the Contract Sum, if any; and
.3 the extent of the adjustment in the Contract Time, if any[.]; and
.4 the portion of the cost thereof to be applied against the Contractor's
Contingency or the Owner's Contingency.
7.2.2 Methods used in determining adjustments to the Contract Sum may include
those listed in Subparagraph 7.3.3.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written order [prepared by the
Architect] directed to the Contractor and signed by the Owner [and architect],
directing a change in the Work and stating a proposed basis for adjustment, if
any, in the Contract Sum or Contract Time, or both. The Owner may by
Construction Change Directive, without invalidating the Contract, order changes
in the Work within the general scope of the Contract consisting of additions,
deletions or other revisions, the Contract Sum and Contract Time being adjusted
accordingly.
7.3.2 A Construction Change Directive shall be used in the absence of total
agreement on the terms of a Change Order.
7.3.3 If the Construction Change Directive provides for an adjustment to the
Contract Sum, the adjustment shall be based on one of the following methods:
.1 mutual acceptance of a lump sum properly itemized and supported by
sufficient substantiating data to permit evaluation;
.2 unit prices stated in the Contract Documents or subsequently agreed upon
.3 cost to be determined in a manner agreed upon by the parties and a
mutually acceptable fixed or percentage fee; or
.4 as provided in Subparagraph 7.3.6.
7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall
promptly proceed with the change in the Work involved and within five days of
receipt of same advise the [Architect] Development Manager and Owner of the
Contractor's agreement or disagreement with the method, if any, provided in the
Construction Change Directive for determining the proposed adjustment in the
Contract Sum or Contract Time.
7.3.5 A Construction Change Directive signed by the Contractor indicates the
agreement of the Contractor therewith, including adjustment in Contract Sum and
Contract Time or the method for determining them for the item covered in each
Change Directive as well as the cumulative effect and impact of all previous
Change Directives. Such agreement shall be effective immediately and shall be
recorded as a Change Order.
7.3.6 If the Contractor does not respond [promptly] within the five-day period
prescribed above, or disagrees with the method for adjustment in the Contract
Sum, the method and the adjustment shall be determined by the [Architect]
Development Manager on the basis of reasonable expenditures and savings of those
performing the Work attributable to the change, including, in case of an
increase in the Contract Sum, a reasonable allowance for overhead and profit as
provided in Paragraph 7.3.3. In such case, and also under Clause 7.3.3.3, the
Contractor shall keep and present, in such form as the [Architect] Development
Manager may prescribe, an itemized accounting together with appropriate
supporting data. Unless otherwise provided in the Contract Documents, costs for
the purposes of this Subparagraph 7.3.6 shall be limited to the following:
.1 costs of labor, including social security, old age and unemployment
insurance, fringe benefits required by agreement or custom, and
workers' or workmen's compensation insurance;
.2 costs of materials, supplies and equipment, including cost of
transportation, whether incorporated or consumed;
.3 reasonable rental costs of machinery and equipment, exclusive of hand
tools, obtained and used specifically for such Work, whether rented
from the Contractor or others;
.4 costs of premiums for all bonds (if any) and insurance, permit fees,
and sales, use or similar taxes directly attributable to such Work
[related to the Work]; and
.5 additional costs of supervision and field office personnel directly
attributable to the change.
7.3.7 Pending final determination of actual cost to the Owner, amounts not in
dispute may be included in Applications for Payment. The amount of credit to be
allowed by the Contractor to the Owner for a deletion or change which results in
a net decrease in the Contract Sum shall be actual net cost as confirmed by the
[Architect] Development Manager and Owner. When both additions and credits
covering related Work or substitutions are involved in a change, the allowance
for overhead and profit shall be figured on the basis of net increase, if any,
with respect to that change.
7.3.8 If the Owner and Contractor do not agree with the adjustment in Contract
Time or the method for determining it, the adjustment or the method shall be
[referred to the Architect for determination] determined in accordance with
Paragraph 8.3 hereof.
7.3.9 When the [Owner and Contractor agree with the determination made by the
Architect concerning the] adjustments in the Contract Sum and Contract Time[, or
otherwise reach agreement upon the adjustments] are determined as provided
herein, such [agreement] determination shall be effective immediately and shall
be recorded by preparation and execution of an appropriate Change Order.
7.4 MINOR CHANGES IN THE WORK
7.4.1 The [Architect] Owner and Development Manager will each have authority to
order minor changes in the Work not involving adjustment in the Contract Sum or
extension of the Contract Time and not inconsistent with the intent of the
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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Contract Documents. Such changes shall be effected by written order and shall be
binding on the Owner and Contractor. The Contractor shall carry out such written
orders promptly.
7.5 ALLOCATION OF ADDITIONAL COSTS
7.5.1 Additional Costs caused by the following events shall not constitute a
Cost of the Work or entitle the Contractor to an increase in the Contract Sum or
extension of the Contract Time:
.1 Any act or omission constituting a default or negligence by
Contractor, Subcontractors, Sub-subcontractors or their employees
or agents.
.2 The cost of repair of improper Work or Work damaged by Contractor,
Subcontractor, Sub-subcontractor or their employees or agents.
.3 Intentionally omitted.
.4 Additional testing, inspections or approvals pursuant to Paragraph
13.5.3.
.5 Deposits lost because of Contractor's fault or negligence.
7.5.2 Additional costs caused by the following events shall constitute a Cost of
the Work and shall entitle Contractor to an increase in the Contract Sum and/or
an extension of the Contract Time without application against the Contingency:
.1 Willful misconduct or breach of this Agreement by Owner.
.2 Voluntary changes in the Work requested by Owner constituting changes in
the Project not required by Law or reasonably necessary to cause the
Project to operate as generally contemplated by the Plans and
Specifications.
.3 Changes in Subcontractors required by Owner without cause pursuant to
Paragraph 5.2.4.
.4 Suspensions, delays or interruptions pursuant to Paragraph 14.3 without
cause or resulting from the negligence or willful misconduct or defaults
of Architect or Development Manager.
.5 Damage to the project caused by Owner due to move in.
.6 Increases in the Contractor's cost of performance of any part of the
Work to the extent such increase is the result of the negligence or
willful misconduct or defaults of Architect or Development Manager.
7. Except as otherwise provided in this Agreement (including without
limitation Paragraphs 1.2 or 3.2), errors, discrepancies, omissions or
interfacing omissions in the Drawings and Specifications.
7.5.3 After execution of a Change Order, the change in the Contract Sum and
Contract Time, if any, shall be final and binding on both parties. Thereafter,
Contractor shall not be entitled to request any additional increase to the
Contract Sum as a result of such Change Order for direct, indirect, delay,
acceleration or other costs or extension of the Contract Time, whether caused as
a result of facts known prior to such determination or thereafter. In
determining any claim for an increase, the Contract Sum or extensions of the
contract Time as a result of delays, any and all "float time" (i.e., delay in
portions of the Work not directly causing a delay in Substantial Completion;
i.e., critical path) shall be owned by Owner. The Contractor shall use its best
efforts to rearrange the Work so as to minimize delays and minimize any valid
Cost of the Work increase or any valid Contract Time extensions. In any event,
no claim by Contractor for an increase in the Contract Sum whether by a claim
based on additional direct costs, delay costs, acceleration costs, unjust
enrichment, quantum merit or otherwise, or for an extension of the Contract
Time, shall be valid.
7.5.4 Failure of both parties to agree to any change to the Contract Sum,
Contract Time or other Contract term pursuant to a Change Directive shall be
treated as provided in Paragraph 4.4. However, nothing shall excuse the
Contractor from proceeding with performance of the Contract as changed by Change
Directive from Owner, provided Owner continues to pay Contractor in accordance
with the Contract Documents and Contractor shall use its best efforts to
rearrange the Work so as to avoid or minimize delays and additional costs
resulting from delays in final agreement on such disputed matters.
7.5.5 References in the Contract Documents to "the expense of Contractor",
"charged to Contractor", "Contractor shall bear the cost of" or the like shall
mean that the Contractor shall absorb the cost thereof which shall not
constitute a Cost of the Work, whether or not any Contractor's Contingency then
exists.
ARTICLE 8
TIME
8.1 DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is the period of time, including
authorized adjustments, allotted in the Contract Documents for Substantial
Completion of the Work.
8.1.2 The date of commencement of the Work is the date established in the
Agreement. The date shall not be postponed by the failure to act of the
Contractor or of persons or entities for whom the Contractor is responsible.
8.1.3 The date of Substantial Completion is the date certified by the Architect
and approved by the Owner in accordance with Paragraph 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean calendar day
unless otherwise specifically defined.
8.2 PROGRESS AND COMPLETION
8.2.1 Time limits stated in the Contract Documents are of the essence of the
Contract. By executing the Agreement the Contractor confirms that the Contract
Time is a reasonable period for performing the Work.
8.2.2 The Contractor shall not [knowingly], except by agreement or instruction
of the Owner in writing, prematurely commence operations on the site or
elsewhere prior to the effective date of insurance required by Article II to be
furnished by the Contractor. The date of commencement of the Work shall not be
changed by the effective date of such insurance. Unless the date of commencement
is established by a notice to proceed given by the Owner, the Contractor shall
notify the Owner in writing not less than five days or other agreed period
before commencing the Work to permit the timely filing of mortgages, mechanic's
liens and other security interests.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall
achieve Substantial Completion within the Contract Time.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 Subject to the provisions of Paragraph 7.5, if [If] the Contractor is
delayed at any time in progress of the Work by an act or neglect of the Owner or
Architect, or of an employee of either, or of a separate contractor employed by
the Owner, or by changes ordered in the Work, or by [labor disputes, fire,
unusual delay in deliveries, unavoidable casualties or other causes beyond the
Contractor's control, or by delay authorized by the Owner pending arbitration,
or by other causes which the Architect determines may justify delay, then the
Contract Time shall be extended by Change Order for such reasonable time as the
Architect may determine] occurrences beyond the control and without the fault or
negligence of the Contractor
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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and which by the exercise of reasonable diligence the Contractor is unable to
prevent or provide against, including labor disputes (other than disputes
limited to the work force of, or provided by, the Contractor or its
Subcontractors), fire, unusual delay in deliveries not reasonably anticipatable,
unavoidable casualties, or by other occurrences which the Development Manager,
subject to the Owner's approval, determines may justify delay, then, provided
that the Contractor is in compliance with Subparagraph 4.3.3 hereof, the
Contract Time Shall be extended and the Contract Sum shall be increased by
Change Order or Construction Change Directive for the length of time actually
and directly caused by such occurrence as determined by the Development Manager
and approved by the Contractor and Owner (such approval not to be unreasonably
withheld, delayed, or conditioned); provided, however, that such extension of
Contract Time shall be net of any delays caused by or due to the fault or
negligence of the Contractor or which are otherwise the responsibility of the
Contractor and shall also be net of any contingency of "float" time allowance
included in the Contractor's construction schedule. The Contractor shall, in the
event of any occurrence likely to cause a delay, cooperate in good faith with
the Development Manager and Owner to minimize and mitigate the impact of any
such occurrence and do all things reasonable under the circumstances to achieve
this goal.
8.3.2 Claims relating to time shall be made in accordance with applicable
provisions of Paragraphs 4.3 and Article 7. A copy of any claim for extension
shall be delivered to the Owner, and the Contractor shall immediately take all
steps reasonably possible to lessen the adverse impact of such delay.
8.3.3 This Paragraph 8.3 does not preclude recovery of damages for delay by
either party under other provisions of the Contract Documents; provided,
however, that Contractor's sole and exclusive remedy for delays of the type
described in Paragraph 8.3.1 shall be an extension of the Contract Time or an
increase in the Contract Sum as provided in this Article 8.
8.3.4 The Owner may seek recovery for actual damages suffered due to delays of
the Contractor; such actual damages will be considered to commence five (5) days
after each or all of the following: (1) scheduled Substantial Completion date
for any portion of the Work, (2) scheduled occupancy date for any portion of the
Work, (3) scheduled Substantial Completion date for the entire Work; and (4)
scheduled occupancy date for the entire Work. The dates referenced herein shall
be subject to adjustment as provided in the Contract Documents.
8.3.5 No change in the Work, whether by way of alteration or addition to the
Work, shall be the basis of an extension in the Contract Time unless and until
such alteration or addition has been authorized by a Change Order or Change
Directive executed and issued in accordance with and in strict compliance with
the requirements of the Contract Documents.
Any claim for increased cost for delay shall be asserted in accordance with the
provisions of Paragraph 4.3.3 unless the time is extended in writing by the
Owner. This requirement is of the essence of the Contract Documents.
Accordingly, no course of conduct or dealings between the parties, no express or
implied acceptance of alterations or additions to the Work, and no claim that
the Owner has been unjustly enriched by any alteration or addition to the Work,
whether or not there is in fact any such unjust enrichment, shall be the basis
for any claim to an increase in the Contract sum or an extension in the Contract
Time.
ARTICLE 9
PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
9.1.1 The Contract Sum is stated in the Agreement and, including authorized
adjustments, is the total amount payable by the Owner to the Contractor for
performance of the Work under the Contract Documents.
9.2 SCHEDULE OF VALUES
9.2.1 Before the first Application for Payment, the Contractor shall submit to
the Architect a schedule of values allocated to various portions of the Work,
prepared in such form and supported by such data to substantiate its accuracy as
the Architect may require. This schedule, unless objected to by the Architect,
shall be used as a basis for reviewing the Contractor's Applications for
Payment.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 At least ten days before the date established by the lender(s) for the
Project for each progress payment, the Contractor shall submit to the Architect
Development Manager an itemized Application for Payment for operations completed
in accordance with the schedule of values. Such application shall be notarized,
if required, and supported by such data substantiating the Contractor's right to
payment as the Owner or Architect Development Manager may require, such as
copies of requisitions from Subcontractors and material suppliers, and
reflecting retainage if provided for elsewhere in the Contract Documents.
9.3.1.1 Such applications may include requests for payment on account of changes
in the Work which have been properly authorized by Construction Change
Directives but not yet included in Change Orders.
9.3.1.2 Such applications may not include requests for payment of amounts the
Contractor does not intend to pay to a Subcontractor or material supplier
because of a dispute or other reason.
9.3.1.3 Such Application for Payment shall be accompanied by waivers of lien and
other documentation from subcontractors as may be reasonably required by the
Owner, any lender and title insurer to establish the absence of any claims for
mechanics or other statutory liens.
9.3.1.4 Copies of all Applications for Payment shall be submitted to the Owner
and, upon the Owner's request, directly to the lender(s) for the Project.
9.3.2 Unless otherwise provided in the Contract Documents, payments shall be
made on account of materials and equipment delivered and suitably stored at the
site for subsequent incorporation in the Work. If approved in advance by the
Owner, payment may similarly be made for materials and equipment suitably stored
off the site at a location agreed upon in writing. Payment for materials and
equipment stored on or off the site shall be conditioned upon compliance by the
Contractor with procedures satisfactory to the Owner to establish the Owner's
title to such materials and equipment or otherwise protect the Owner's interest,
and shall include applicable insurance, storage and transportation to the site
fur such materials and equipment stored off the site.
9.3.3 The Contractor warrants that title to all Work covered by an Application
for Payment will pass to the Owner no later than the time of payment. The
Contractor further warrants that upon submittal of an Application for Payment
all Work for which Certificates for Payment have been previously issued and
payments received from the Owner shall, to the best of the Contractor's
knowledge, information and belief, be free and clear of liens, claims, security
interests or encumbrances in favor of the Contractor, Subcontractors, material
suppliers, or other persons or entities making a claim by reason of having
provided labor, materials and equipment relating to the Work.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 [The Architect will, within seven days after receipt of the Contractor's
Application for Payment, either issue to the Owner a Certificate for Payment,
with a copy to the Contractor, for such amount as the Architect determines is
properly due, or notify the Contractor and Owner in writing of the Architect's
reasons for withholding certification in whole or in part as provided in
Subparagraph 9.5.1.] The Development Manager will assemble a Project Application
for Payment by combining the Contractor's applications with
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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similar applications for progress payments from other Contractors and, after
certifying the amounts due on such applications, forward them to the Architect
within seven days.
9.4.1.1 Within seven days after the Architect's receipt of the Project
Application for Payment, the Development Manager and Architect will either issue
to the Owner a Project Certificate for Payment, with a copy to the Contractor,
for such amount as the Development Manager and Architect determine is properly
due, or notify the Contractor and Owner in writing of the Development Manager's
and Architect's reasons for withholding certification in whole or in part as
provided in Subparagraph 9.5.1. Such notification will be forwarded to the
Contractor by the Development Manager.
9.4.2 The issuance of a separate Certificate for Payment or a Project
Certificate for Payment will constitute a representations made separately by the
Development Manager and Architect to the Owner, based on their Architect's
individual observations at the site and the data comprising the Application for
Payment submitted by the Contractor, that the Work has progressed to the point
indicated and that, to the best of the Development Manager's and Architect's
knowledge, information and belief, quality of the Work is in accordance with the
Contract Documents. The foregoing representations are subject to an evaluation
of the Work for conformance with the Contract Documents upon Substantial
Completion, to results of subsequent tests and inspections, to minor deviations
from the Contract Documents correctable prior to completion and to specific
qualifications expressed by the Development Manager or Architect. The issuance
of a separate Certificate for Payment or a Project Certificate for Payment will
further constitute a representation that the Contractor is entitled to payment
in the amount certified. However, the issuance of a separate Certificate for
Payment or a Project Certificate for Payment will not be a representation that
the Development Manager or Architect has (1) made exhaustive or continuous
on-site inspections to check the quality or quantity of the Work, (2) reviewed
construction means, methods, techniques, sequences or procedures, (3) reviewed
copies of requisitions received from Subcontractors and material suppliers and
other data requested by the Owner to substantiate the Contractor's right to
payment or (4) made examination to ascertain how or for what purpose the
Contractor has used money previously paid on account of the Contract Sum.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
9.5.1 The Development Manager and Architect may decide not to certify payment
and may withhold a Certificate for Payment in whole or in part, to the extent
reasonably necessary to protect the Owner, if in the Development Manager's or
Architect's opinion the representations to the Owner required by Subparagraph
9.4.2 cannot be made. If the Architect is unable to certify payment in the
amount of the Application, the Architect will notify the Contractor and Owner as
provided in Subparagraph 9.4.1. If the Development Manager or Architect is
unable to certify payment in the amount of the Application, the Development
Manager or Architect will notify the Contractor and Owner as provided in
Subparagraph 9.4.1.1. If the Contractor, Development Manager and Architect
cannot agree on a revised amount, the Development Manager and Architect will
promptly issue a Certificate for Payment for the amount for which the
Development Manager and Architect is are able to make such representations to
the Owner. The Development Manager or Architect may also decide not to certify
payment or, because of subsequently discovered evidence or subsequent
observations, may nullify the whole or a part of a Certificate for Payment
previously issued, to such extent as may be necessary in the Development
Manager's or Architect's opinion to protect the Owner from loss because of:
.1 defective Work not remedied;
.2 third party claims filed or reasonable evidence indicating
probable filing of such claims:
.3 failure of the Contractor to make payments properly to
Subcontractors or for labor, materials equipment.
.4 reasonable evidence that the Work cannot be completed for the
unpaid balance of the Contract Sum,
.5 damage to the Owner or another contractor,
.6 reasonable evidence that the Work will not be completed within the
Contract Time, and that the unpaid balance would not be adequate
to cover actual or liquidated damages for the anticipated delay:
or
.7 persistent failure to carry, out the Work in accordance with the
Contract Documents.
9.5.2 When the above reasons for withholding certification are removed,
certification will be made for amounts previously withheld.
9.5.3 If Contractor disputes any determination by the Development Manager or
Architect with regard to any Certificate of Payment, Contractor shall
nevertheless expeditiously continue to prosecute the Work.
9.5.4 The Owner may independently dispute payment in whole or part, whether or
not a Certificate for Payment has been issued regarding the same, and in such
event shall promptly notify the Development Manager, Architect and Contractor in
writing of the dispute and the reason or reasons therefor. The Owner shall not
be deemed to be in breach of this Contract by reason of the withholding of any
payment pursuant to any provision of the Contract Documents, provided the
Development Manager or Architect has approved the Owner's action, or the Work in
question shall have been rejected by any governmental authority, the Owner or
any lender of the Owner.
9.6 PROGRESS PAYMENTS
9.6.1 After the Development Manager and Architect has have issued a Project
Certificate for Payment or a separate Certificate for Payment, the Owner shall
make payment in the manner and within the time provided in the Contract
Documents, [and shall so notify the Architect] subject to Subparagraph 9.6.4.
9.6.1.1 The Owner shall have the option, but not the obligation, to issue joint
checks to the Contractor and various Subcontractors at the Owner's discretion
with respect to all or any part of the payments discussed in this Article. Any
payment in joint check form or the lack thereof shall not constitute a waiver of
the same as to later payments.
9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of
payment from the Owner, out of the amount paid to the Contractor on account of
such Subcontractor's portion of the Work, the amount to which said Subcontractor
is entitled, reflecting percentages actually retained from payments to the
Contractor on account of such Subcontractor's portion of the Work. The
Contractor shall, by appropriate agreement with each Subcontractor, require each
Subcontractor to make payments to Sub-subcontractors in similar manner.
9.6.3 The Architect Development Manager will, on request, furnish to a
Subcontractor, if practicable, information regarding percentages of completion
or amounts applied for by the Contractor and action taken thereon by the
Development Manager, Architect and Owner on account of portions of the Work done
by such Subcontractor.
9.6.4 Neither the Owner, Development Manager nor Architect shall have an
obligation to pay or to see to the payment of money to a Subcontractor except as
may otherwise be required by law.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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9.6.5 Payment to material suppliers shall be treated in a manner similar to that
provided in Subparagraphs 9.6.2, 9.6.3 and 9.6.4.
9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or
occupancy of the Project by the Owner shall not constitute acceptance of Work
not in accordance with the Contract Documents.
9.7 FAILURE OF PAYMENT
9.7.1 If, through no fault of the Contractor, (1) the Architect does not issue a
Project Certificate for Payment, [through no fault of the Contractor,] within
seven days after receipt of the Development Manager's receipt of the
Contractor's Application for Payment, or (2) if the Owner does not pay the
Contractor within seven days after the date established in the Contract
Documents the amount certified by the Development Manager and Architect or
awarded by arbitration or reference, then the Contractor may, upon seven
additional days' written notice to the Owner, Development Manager and Architect,
stop the Work until payment of the amount owing has been received. The Contract
Time shall be extended appropriately and the Contract Sum shall be increased by
the amount of the Contractor's reasonable costs of shut-down, delay and
start-up, which shall be accomplished as provided in Article 7. Notwithstanding
the foregoing, the Contractor may not stop the Work during the pendency of a
bona fide dispute between Owner and Contractor provided any sums in dispute
claimed by the Contractor are placed in escrow.
9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress of the Work when the
Work or designated portion thereof is sufficiently complete in accordance with
the Contract Documents so the Owner can occupy or utilize the Work for its
intended use.
9.8.2 When the Contractor considers that the Work, or a portion thereof which
the Owner agrees to accept separately, is substantially complete, the Contractor
and Development Manager shall jointly prepare and submit to the Architect and
Owner a comprehensive list of items to be completed or corrected. The Contractor
shall proceed promptly, to complete and correct items on the list. Failure to
include an item on such list does not alter the responsibility of the Contractor
to complete all Work in accordance with the Contract Documents. Upon receipt of
the Contractor's list, the Architect and Owner, assisted by the Development
Manager, will make an inspection to determine whether the Work or designated
portion thereof is substantially complete. If the Architect's inspection
discloses any item, whether or not included on the Contractor's list, which is
not in accordance with the requirements of the Contract Documents, the
Contractor shall, before issuance of the Certificate of Substantial Completion,
complete or correct such item upon notification by the Architect. The Contractor
shall then submit a request for another inspection by the Architect and Owner,
assisted by the Development Manager, to determine Substantial Completion. When
the Work or designated portion thereof is substantially complete, the Architect
will prepare a Certificate of Substantial Completion which shall establish
assist in the determination of the date of Substantial Completion, shall
establish responsibilities of the Owner and Contractor for security,
maintenance, heat, utilities, damage to the Work and insurance, and shall fix
the time within which the Contractor shall finish all items on the list
accompanying the Certificate. Warranties required by the Contract Documents
shall commence on the date of Substantial Completion of the Work or designated
portion thereof unless otherwise provided in the Certificate of Substantial
Completion. The Certificate of Substantial Completion shall be submitted to the
Owner and Contractor for their written acceptance of responsibilities assigned
to them in such Certificate.
9.8.2.1 Upon receipt of the Contractor's list of items to be completed or
corrected, the Development Manager and Architect will promptly make a thorough
review and prepare a "punch list," setting forth in accurate detail any items on
the Contractor's list and additional items that are not acceptable.
9.8.2.2 When the "punch list" has been prepared, the Development Manager and
Architect, if requested, will meet with the Contractor and any Subcontractor to
identify and explain all "punch list" items and answer questions on the work
which must be done before final acceptance.
9.8.2.3 If the Contractor gives notice that a major subcontractor has completed
his "punch list" items, the Development Manager and Architect will review that
portion of the work and, if the items are found to be satisfactorily completed,
advise the Contractor accordingly.
9.8.3 Upon Substantial Completion of the Work or designated portion thereof and
upon application by the Contractor, and certification by the Development Manager
and Architect, and acceptance by the Owner, all lenders for the Project and
applicable governmental authorities, the Owner shall make payment, reflecting
adjustment in retainage, if any, for such Work or portion thereof as provided in
the Contract Documents.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed or partially completed portion
of the Work at any stage when such portion is designated by separate agreement
with the Contractor, provided such occupancy or use is consented to by the
insurer as required under Subparagraph 11.3.11 and authorized by public
authorities having jurisdiction over the Work. Such partial occupancy or use may
commence whether or not the portion is substantially complete, provided the
Owner and Contractor have accepted in writing the responsibilities assigned to
each of them fur payments, retainage if any, security. maintenance, heat,
utilities, damage to the Work and insurance, and have agreed in writing
concerning the period for correction of the Work and commencement of warranties
required by the Contract Documents. When the Contractor considers a portion
substantially complete, the Contractor and Development Manager shall jointly
prepare and submit a list to the Architect as provided under Subparagraph 9.8.2.
Consent of the Contractor to partial occupancy or use shall out be unreasonably
withheld. The stage of the progress of the Work shall be determined by written
agreement between the Owner and Contractor or, if an agreement is reached, by
decision of the Architect after consultation with the Development Manager.
9.9.2 Immediately prior to such partial occupancy or use, the Owner, Development
Manager, Contractor and Architect shall jointly inspect the area be occupied or
portion of the Work to be used in order determine and record the condition of
the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or
portions of the work shall not constitute acceptance of Work not complying with
the requirements of the Contract Documents.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Upon completion of the Work, the Contractor shall forward to the
Development Manager and Owner a written notice that the Work is ready for final
inspection and acceptance and a final Contractor's Application for Payment. Upon
[receipt of written notice that the Work is ready for final inspection and
acceptance and upon receipt of a final Application for Payment,] the Development
Manager will forward the notice and Application for Payment to the Architect,
who will promptly make such inspection. [and, when]When the Architect, based on
the recommendation of the Development Manager, finds the Work acceptable under
the Contract Documents and the Contract fully performed, the Architect will
promptly issue a final Certificate for Payment stating that to the best of the
Architect's knowledge, information and belief, and on the basis of the
Architect's observations and inspections, the Work has been completed in
accordance with terms and conditions of the Contract
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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Documents and that the entire balance found to be due the Contractor and noted
in said final Certificate is due and payable. The Architect's final Certificate
for Payment will constitute a further representation that conditions listed in
Subparagraph 9.10.2 as precedent to the Contractor's being entitled to final
payment have been fulfilled. The Owner shall approve or disapprove the final
Certificate for Payment, stating whether the same is correct and accurate and,
if the Owner disapproves the final Certificate for Payment, stating the reasons
therefor.
9.10.2 Neither final payment nor any remaining retained percentage shall become
due until the Contractor submits to the Architect through the Development
Manager (1) an affidavit that payrolls, bills for materials and equipment, and
other indebtedness connected with the Work for which the Owner or the Owner's
property might be responsible or encumbered (less amounts withheld by Owner)
have been paid or otherwise satisfied, (2) a certificate evidencing that
insurance required by the Contract Documents to remain in force after final
payment is currently in effect and will not be canceled or allowed to expire
until at least 30 days' prior written notice has been given to the Owner, (3) a
written statement that the Contractor knows of no substantial reason that the
insurance will not be renewable to cover the period required by the Contract
Documents, (4) consent of surety, if any, to final payment and (5), if required
by the Owner, other data establishing payment or satisfaction of obligations,
such as receipts, releases and waivers of liens, claims, security interests or
encumbrances arising out of the Contract, to the extent and in such form as may
be designated by the Owner. If a Subcontractor refuses to furnish a release or
waiver required by the Owner, the Contractor may furnish a bond satisfactory to
the Owner to indemnify the Owner against such lien. If such lien remains
unsatisfied after payments are made, the Contractor shall refund to the Owner
all money that the Owner may be compelled to pay in discharging such lien,
including all costs and reasonable attorneys' fees.
9.10.2.1 A reasonable sum may be withheld until the Contractor delivers to the
Owner record drawings and other items required pursuant to Subparagraph 3.11.2,
and the warranties, instructions and maintenance manuals required to be
furnished pursuant to Subparagraphs 3.5 and 3.12.9.2, and a final statement of
the cost of the Work allocated in accordance with the budget and in a form which
has been approved by the lender(s) for the Project has been furnished. All
submittals required to be made to Architect or Development Manager hereunder
shall concurrently be made to Owner.
9.10.3 If, after Substantial Completion of the Work, Final Completion thereof is
materially delayed through no fault of the Contractor or by issuance of Change
Orders affecting Final Completion, and the Development Manager and Architect so
confirms, the Owner shall, upon application by the Contractor and certification
by the Development Manager and Architect, and without terminating the Contract,
make payment of the balance due for that portion of the Work fully completed and
accepted. If the remaining balance for Work Out fully completed or corrected is
less than retainage stipulated in the Contract Documents, and if bonds have been
furnished, the written consent of surety to payment of the balance due for that
portion of the Work fully completed and accepted shall be submitted by the
Contractor to the Architect through the Development Manager prior to
certification of such payment. Such payment shall be made under terms and
conditions concerning final payment, except that it shall not constitute a
waiver of claims. The making of final payment shall constitute a waiver of
claims by the Owner as provided in Subparagraph 4.3.5.
9.10.4 Acceptance of final payment by the Contractor, a Subcontractor or
material supplier shall constitute a waiver claims by that payee except those
previously made in writing and identified by that payee as unsettled at the time
of final Application for Payment. Such waivers shall be in addition to the
waiver described in Subparagraph 4.3.5.
ARTICLE 10
PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
10.1.1 The Contractor shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the
performance of the Contract. The Contractor shall submit the Contractor's safety
program to the Development Manager for review and coordination with the safety
programs of other Contractors.
10.1.2 In the event the Contractor encounters on the site material reasonably
believed to be asbestos or polychlorinated biphenyl (PCB) which has not been
rendered harmless, the Contractor shall immediately stop Work in the area
affected and report the condition to the Owner, Development Manager and
Architect in writing. The Work in the affected area shall not thereafter be
resumed except by written agreement of the Owner and Contractor if in fact the
material is asbestos or polychlorinated biphenyl (PCB) and has not been rendered
harmless. The Work in the affected area shall be resumed in the absence of
asbestos or polychlorinated biphenyl (PCB), or when it has been rendered
harmless, by written agreement of the Owner and Contractor, or in accordance
with final determination by the Architect on which arbitration has not been
demanded, or by arbitration under Article 4.
10.1.3 The Contractor shall not be required pursuant to Article 7 to perform
without consent any Work relating to asbestos or polychlorinated biphenyl (PCB).
10.1.4 To the fullest extent permitted by law, the Owner shall indemnify and
hold harmless the Contractor, Development Manager, Architect, Architect's their
consultants and agents and employees of any of them from and against claims
damages, losses and expenses, including but not limited to attorneys' fees,
arising out of or resulting from performance of the Work in the affected area if
in fact the material is asbestos or polychlorinated biphenyl (PCB) and has not
been rendered harmless, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or
destruction of tangible property (other than the Work itself) including loss of
use resulting therefrom, but only to the extent caused in whole or in part by
negligent acts or omissions of the Owner, anyone directly or indirectly employed
by the Owner or anyone for whose acts the Owner may be liable, regardless of
whether or not such claim, damage, loss or expense is caused in part by a party
indemnified hereunder. Such obligation shall not be construed to negate,
abridge, or reduce other rights or obligations of indemnity which would
otherwise exist as to a party or person described in this Subparagraph 10.1.4.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take reasonable precautions for safety of, and shall
provide reasonable protection to prevent damage, injury or loss to:
.1 employees on the Work and other persons who may be affected
thereby;
.2 the Work and materials and equipment to be incorporated therein,
whether in storage on or off the site, under care, custody or
control of the Contractor or the Contractor's Subcontractor or
Sub-subcontractors; and
.3 other property at the site or adjacent thereto, such as trees,
shrubs, lawns, walks, pavements, roadways, structures and
utilities not designated for removal, relocation or replacement in
the course of construction.
10.2.2 The Contractor shall give notices and comply with applicable laws,
ordinances, rules, regulations and lawful orders of public authorities bearing
on safety of persons or
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property or their protection from damage, injury or loss. Without limiting the
foregoing, Contractor shall provide all facilities and shall follow all
procedures required by the Occupational Safety and Health Act.
10.2.3 The Contractor shall erect and maintain, as required by existing
conditions and performance of the Contract, reasonable safeguards for safety and
protection including posting danger signs and other warnings against hazards,
promulgating safety regulations and notifying owners and users of adjacent sites
and utilities.
10.2.4 When use or storage of explosives or other hazardous materials or
equipment or unusual methods are necessary for execution of the Work, the
Contractor shall exercise utmost care and carry out such activities under
supervision of properly qualified personnel.
10.2.5 The Contractor shall promptly remedy at its sole cost damage and loss
(other than damage or loss resulting from earthquake and flood or insured under
property insurance required by the Contract Documents) to property referred to
in Clauses 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a
Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by
any of them, or by anyone for whose acts they may be liable and for which the
Contractor is responsible under Clauses 10.2.1.2 and 10.2.1.3, except damage or
loss attributable to acts or omissions of the Owner, Development Manager or
Architect or anyone directly or indirectly employed by either of them, or by
anyone for whose acts either of them may be liable, and not attributable to the
fault or negligence of the Contractor. The foregoing obligations of the
Contractor are in addition to the Contractor's obligations under Paragraph 3.18.
10.2.6 The Contractor shall designate a responsible member of the Contractor's
organization at the site whose duty shall be the prevention of accidents. This
person shall be the Contractor's superintendent unless otherwise designated by
the Contractor in writing to the Owner, Development Manager and Architect.
10.2.7 The Contractor shall designate a responsible member of the Contractor's
organization at the site whose duty shall be the prevention of accidents. This
person shall be the Contractor's superintendent unless otherwise designated by
the Contractor in writing to the Owner and Architect.
10.3 EMERGENCIES
10.3.1 In an emergency, affecting safety of persons or property, the Contractor
shall act, at the Contractor's discretion, to prevent threatened damage, injury
or loss. Additional compensation or extension of time claimed by the Contractor
on account of an emergency shall be determined as provided in Paragraph 4.3 and
Article 7.
ARTICLE 11
INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 [The Contractor shall purchase from and maintain in a company or
companies lawfully authorized to do business in the jurisdiction in which the
Project is located such insurance as will protect the Contractor from claims set
forth below which may arise out of or result from the Contractor's operations
under the Contract and for which the Contractor may be legally liable, whether
such operations be by the Contractor or by a Subcontractor ore by anyone
directly or indirectly employed by any of them, or by anyone for whose acts any
of them may be liable:
.1 claims under workers' or workmen's compensation, disability
benefit and other similar employee benefit acts which arc
applicable to the Work to be performed.
.2 claims for damages because of bodily injury, occupational sickness
or disease, or death of the Contractor's employees;
.3 claims for damages because of bodily injury, sickness or disease,
or death of any person other than the Contractor's employees;
.4 claims for damages insured by usual personal injury liability
coverage which are sustained (1) by a person as a result of an
offense directly or indirectly related to employment of such
person by the Contractor, or (2) by another person;
.5 claims for damages, other than to the Work itself, because of
injury to or destruction of tangible property, including loss of
use resulting therefrom;
.6 claims for damages because of bodily injury, death of a person or
property damage arising out of ownership, maintenance or use of a
motor vehicle; AND
.7 claims involving contractual liability insurance applicable to the
Contractor's obligations under Paragraph 3 18.]
Contractor shall procure and maintain, at its own expense' with companies
satisfactory to Owner, the following insurance coverage:
.1 Workers' compensation and Employers' Liability Insurance as required
by California law affording 30 days notice of cancellation to the
Owner. The employers' liability coverage minimum limits are as
follows:
Bodily Injury by Accident -- $100,000 each accident;
Bodily Injury by Disease $100,000 each employee And $500,000
policy limit.
.2 General Liability Insurance in the amount of $1,000,000 each
occurrence for bodily injury and/or property damage liability
combined written on an "occurrence" basis including:
(a) Premises and Operations coverage with X, C, and U exclusion
deleted, if applicable.
(b) Owners and Contractors Protective coverage.
(c) Products and Completed Operations coverage.
(d) "Broad Form Property Damage" coverage including Completed
Operations.
(e) Blanket contractual obligations coverage including both
written and oral contracts and tort liability as prescribed by
law.
(f) Personal Injury Coverage.
(g) An endorsement naming Owner, and such other entities or
persons as Owner may designate, as additional insured.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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(h) An endorsement affording 30 days' notice of cancellation to
Owner in the event of cancellation, nonrenewal or material
reduction in coverage to the extent available.
(i) An endorsement providing that such insurance as is afforded
under Contractor's policy is primary insurance as respect
Owner and that any other insurance maintained by Owner is
excess and noncontributing with the insurance required
hereunder.
.3 Business Auto Liability in the amount of $1,000,000 each occurrence
for bodily injury and/or property damage liability combined
including:
(a) Owned autos,
(b) Hired or borrowed autos,
(c) Non-owned autos, and
(d) An endorsement, affording 30 days' notice of cancellation to
Owner in event of cancellation, or material reduction in
coverage to the extent available.
.4 Excess or Umbrella Liability Insurance with limits not less that
$3,000,000 per occurrence, for bodily injury and/or property damage
combined written on an "occurrence basis" listing the General
Liability, Employers' Liability and Business Liability policies
required as underlying policies and including:
(a) An endorsement naming Owner and such other entities or persons
as Owner may designate as additional insureds.
(b) An endorsement affording 30 days' notice to Owner of
cancellation or material reduction in coverage to the extent
available.
(c) An endorsement providing that any insurance maintained by
Owner is excess and noncontributing with the insurance
required hereunder.
11.1.1.1 Owner and Contractor acknowledge that the insurance requirements set
forth in the Contract Documents may be required to be varied by the lender for
the Project or by Owner's insurance carrier and Contractor agrees to enter into
suitable modifications of the provisions hereof upon the request of the Owner,
provided Owner bears any additional cost occasioned thereby.
11.1.2 The insurance required by Subparagraph 11.1.1 shall be written for not
less than limits of liability specified in the Contract Documents or required by
law, whichever coverage is greater, and shall name Owner as an additional
insured. Coverages, whether written or an occurrence or claims-made basis, shall
be maintained without interruption from date of commencement of the Work until
date of final payment and termination of any coverage required to be maintained
after final payment.
11.1.3 Certificates of Insurance acceptable to the Owner shall be filed with the
Owner prior to commencement of the Work. These Certificates and the insurance
policies required by this Paragraph 11. It shall contain a provision that
coverages afforded under the policies will not be canceled or allowed to expire
until at least 30 days' prior written notice has been given to the Owner. If any
of the foregoing insurance coverages are required to remain in force after final
payment and are reason ably available, an additional certificate evidencing
continuation of such coverage shall be submitted with the final Application
other than the Owner has an insurable interest in the property required by this
Paragraph 11.3 to be covered, whichever is earlier. This insurance shall include
interests of the Owner, and the Contractor, [Subcontractors and
Sub-subcontractors] in the Work.
11.1.4 Copies of policies or a certificate and endorsements, providing coverage
required under this Paragraph 11.1 must be delivered to Owner prior to
commencement of performance under this Contract. The requirements for the
foregoing insurance shall not derogate from Contractor's obligations to
indemnify Owner under the Contract Documents.
11.1.5 Contractor shall maintain all of the foregoing insurance coverage in
force until Final Completion of the Work other than the Products and Completed
Operations Coverage required under subparagraph 11.1.2(c) above which shall be
maintained in force until expiration of the applicable statute of limitations
for claims related to latent defects in construction of improvements to real
property.
11.1.6 If Contractor fails to secure and maintain the required insurance, Owner
shall have the right (without any obligation to do so, however) to secure same
in the name and for the account of Contractor, in which event Contractor shall
pay the cost thereof and shall furnish upon demand all information that may be
required in connection therewith.
11.1.7 Contractor shall require its Subcontractors to provide insurance with
maximum limits of not less than $1,000,000 except as may otherwise be approved
in writing by Owner where Contractor would be required to carry insurance under
the Contract Documents endorsed to name as additional insureds those individuals
and entities set forth in subparagraphs 11.1.1.2(g) and 11.1.1.5(a), above.
11.1.8 Contractor shall not begin any of the Work until all necessary evidence
of insurance has been furnished to Owner.
11.2 OWNER'S LIABILITY INSURANCE
11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's
usual liability insurance. Optionally the Owner may purchase and maintain other
insurance for self protection against claims which may arise from operations
under the Contract. The Contractor shall not be responsible for purchasing and
maintaining this optional Owner's liability insurance unless specifically
required by the Contract Documents.
11.3 PROPERTY INSURANCE
11.3.1 Unless otherwise provided, the Owner shall purchase and maintain, in a
company or companies lawfully authorized to do business in the jurisdiction in
which the Project is located, property insurance in the amount of the initial
Contract Sum as well as subsequent modifications thereto for the entire Work at
the site on a replacement cost basis. Such property insurance shall be
maintained, unless otherwise provided in the Contract Documents or otherwise
agreed in writing by all persons and entities who are beneficiaries of such
insurance, until final payment has been made as provided in Paragraph 9.10 or
until no person or entity other than the Owner has an insurable interest in the
property required by this Paragraph 11.3 to be covered, whichever is earlier.
This insurance shall include interests of the Owner, the Contractor,
Subcontractors and Sub-subcontractors in the Work.
11.3.1.1 Property insurance shall be on an all-risk policy form and shall insure
against the perils of fire and extended coverage and physical loss or damage
including, without duplication of coverage, theft, vandalism, malicious
mischief, collapse, falsework, temporary buildings and debris removal
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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including demolition, and shall cover reasonable compensation for Architect's
services and expenses required as a result of such insured loss. Coverage for
other perils shall not be required unless otherwise provided in the Contract
Documents.
11.3.1.2 If the Owner does not intend to purchase such property insurance
required by the Contract and with all of the coverages in the amount described
above, the Owner shall so inform the Contractor in writing prior to commencement
of the Work. The Contractor may then effect insurance which will protect the
interests of the Contractor, Subcontractors and Sub-subcontractors in the Work,
and by appropriate Change Order the cost thereof shall be charged to the Owner.
If the Contractor is damaged by the failure or neglect of the Owner to purchase
or maintain insurance as described above, without so notifying the Contractor,
then the Owner shall bear all reasonable costs properly attributable thereto.
11.3.1.3 If the property insurance requires minimum deductibles and such
deductibles are identified in the Contract Documents, the Contractor shall pay
costs not covered because of such deductibles. If the Owner or insurer increases
the required minimum deductibles above the amounts so identified or if the Owner
elects to purchase this insurance with voluntary deductible amounts, the Owner
shall be responsible for payment of the additional costs not covered because of
such increased or voluntary deductibles. If deductibles are not identified in
the Contract Documents, the Owner shall pay costs not covered because of
deductibles.
11.3.1.4 Unless otherwise provided in the Contract Documents, this property
insurance shall cover portions of the Work stored off the site after written
approval of the Owner at the value established in the approval, and also
portions of the Work in transit.
11.3.2 BOILER AND MACHINERY INSURANCE. The Owner shall purchase and maintain
boiler and machinery insurance required by the Contract Documents or by law,
which shall specifically cover such insured objects during installation and
until final acceptance the Owner, this insurance shall include interests of the
Owner, Contractor, Subcontractors and Sub-subcontractors in the Work, and the
Owner and Contractor shall be named insureds.
11.3.3 LOSS OF USE INSURANCE. The Owner, at the Owner's option, may purchase and
maintain such insurance as will insure the Owner against loss of use of the
Owner's property due to fire or other hazards, however caused. [The Owner waives
all rights of action against the Contractor for loss of use of the Owner's
property including consequential losses due to fire or other hazards however
caused.] To the extent that the Owner actually receives insurance proceeds to
cover such losses, and only to the extent permitted by the Owner's insurer,
Owner shall waive any rights of action it may have against Contractor for loss
of use of the Owner's property, including consequential losses due to fire or
other hazard however caused. In addition, Owner acknowledges that it shall not
have a right of action against Contractor for loss of use of the Owner's
property unless such loss was caused by Contractor, its Subcontractors,
Sub-subcontractors, or other persons for whom Contractor is responsible.
11.3.4 If the Contractor requests in writing that insurance for risks other than
those described herein or for other special hazards be included in the property
insurance policy, the Owner shall, if possible, include such insurance and the
cost thereof shall be charged to the Contractor by appropriate Change Order.
11.3.5 If during the Project construction period the Owner insures properties,
real or personal or both, adjoining or adjacent to the site by property
insurance under policies separate from those insuring the Project, or if after
final payment property insurance is to be provided on the completed Project
through a policy or policies other than those insuring the Project during the
construction period, the Owner shall waive all rights in accordance with the
terms of Subparagraph 11.3.7 for damages caused by fire or other perils covered
by this separate property insurance. All separate policies shall provide this
waiver of subrogation by endorsement or otherwise.
11.3.6 Before an exposure to loss may occur, the Owner shall file with the
Contractor a copy of each policy that includes insurance coverages required by
this Paragraph 11.3. Each policy shall contain all generally applicable
conditions, definitions, exclusions and endorsements related to this Project.
Each policy shall contain a provision that the policy will not be canceled or
allowed to expire until at least 30 days' prior written notice has been given to
the Contractor.
11.3.7 WAIVERS OF SUBROGATION. The Owner and Contractor waive all rights against
[(1) each other and any of their subcontractors, sub-subcontractors, agents and
employees, each of the other, and (2) the Architect, Architect's consultants,
separate contractors] each other and against the Development Manager, Architect,
Owner's other Contractors and own forces described in Article 6, if any, and any
of their subcontractors, sub-subcontractors, agents and employees, for damages
caused by fire or other perils to the extent covered by property insurance
obtained pursuant to this Paragraph 11.3 or other property insurance applicable
to the Work, except such rights as they have to proceeds of such insurance held
by the Owner as fiduciary. [The Owner or Contractor, as appropriate, shall
require of the Architect, Architect's consultants, separate contractors
described in Article 6, if any, and the subcontractors, sub-subcontractors,
agents and employees of any of them, by appropriate agreements, written where
legally required for validity, similar waivers each in favor of other parties
enumerated herein.] The policies shall provide such waivers of subrogation by
endorsement or otherwise to the extent such waiver is permitted by Owner's and
Contractor's insurers and does not prejudice the insurance required to be
carried by the Owner and Contractor under this Agreement. A waiver of
subrogation shall be effective as to a person or entity even though that person
or entity would otherwise have a duty of indemnification, contractual or
otherwise, did not pay the insurance premium directly or indirectly, and whether
or not the person or entity had an insurable interest in the property damaged.
11.3.8 A loss insured under Owner's property insurance shall be adjusted by the
Owner as fiduciary and made payable to the Owner as fiduciary for the insureds,
as their interests may appear, subject to requirements of any applicable
mortgagee clause and of Subparagraph 11.3.10. The Contractor shall pay
Subcontractors their just shares of insurance proceeds received by the
Contractor, and by appropriate agreements, written where legally required for
validity, shall require Subcontractors to make payments to their
Sub-subcontractors in similar manner.
11.3.9 If required in writing by a party in interest, the Owner as fiduciary
shall, upon occurrence of an insured loss, give bond for proper performance of
the Owner's duties. The cost of required bonds shall be charged against proceeds
received as fiduciary. The Owner shall deposit in a separate account proceeds so
received, which the Owner shall distribute in accordance with such agreement as
the parties in interest may teach, or in accordance with an arbitration award in
which case the procedure shall be as provided in Paragraph 4.5. If after such
loss no other special agreement is made, replacement of damaged property shall
be coveted by appropriate Change Order.
11.3.10 The Owner as fiduciary shall have power to adjust and settle a loss with
insurers unless one of the parties in interest shall object in writing within
five days after occurrence of loss to the Owner's exercise of this power; if
such objection be made, arbitrators shall be chosen as provided in Paragraph
4.5. The Owner as fiduciary shall, in that case, make settlement with insurers
in accordance with directions of such arbitrators. If distribution of insurance
proceeds by arbitration is required, the arbitrators will direct such
distribution.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
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11.3.11 Partial occupancy or use in accordance with Paragraph 9.9 shall not
commence until the insurance company or companies providing property insurance
have consented to such partial occupancy or use by endorsement or otherwise. The
Owner and the Contractor shall take reasonable steps to obtain consent of the
insurance company or companies and shall, without mutual written consent, take
no action with respect to partial occupancy or use that would cause
cancellation, lapse or reduction of insurance.
11.3.12 Contractor hereby releases, and shall cause its subcontractors and
suppliers to release, Owner, Owner's partners, parent companies, affiliates,
shareholders, directors, officers, employees, agents, Development Manager,
Architect and any of the above-mentioned parties (the "Released Parties") from
any and all claims or causes of action whatsoever which Contractor and/or such
parties might otherwise possess in or from or in any way connected with any loss
covered or which should have been covered by insurance, including the deductible
portion thereof, maintained and/or required to be maintained by the Contractor
and/or its subcontractor pursuant to the Contract.
11.4 PERFORMANCE BOND AND PAYMENT BOND
11.4.1 The Owner shall have the right to require the Contractor to furnish bonds
covering faithful performance of the Contract and payment of obligations arising
thereunder as stipulated in bidding requirements or specifically required in the
Contract Documents on the date of execution of the Contract.
11.4.2 Upon the request of any person or entity appearing to be a potential
beneficiary of bonds covering payment of obligations arising under the Contract,
the Contractor shall promptly furnish a copy of the bonds or shall permit a copy
to be made.
ARTICLE 12
UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to the Owner's, Development
Manager's or Architect's request or to requirements specifically expressed in
the Contract Documents, it must, if required in writing by either [the
Architect], be uncovered for [the Architect's] their observation and be replaced
at the Contractor's expense without change in the Contract Time or Contract Sum.
12.1.2 If a portion of the Work has been covered which the Owner, Development
Manager or Architect has not specifically requested to observe prior to its
being covered, the Owner, Development Manager or Architect may request to see
such Work and it shall be uncovered by the Contractor. If such Work is in
accordance with the Contract Documents, costs of uncovering and replacement
shall, by appropriate Change Order, be charged to the Owner. If such Work is not
in accordance with the Contract Documents, the Contractor shall pay such costs
unless the condition was caused by the Owner [or a separate contractor] one of
the other Contractors in which event the Owner shall be responsible for payment
of such costs.
12.2 CORRECTION OF WORK
12.2.1 The Contractor shall promptly correct Work rejected by the Owner,
Development Manager or Architect or failing to conform to the requirements of
the Contract Documents, whether observed before or after Substantial Completion
and whether or not fabricated, installed or completed. The Contractor shall beat
costs of correcting such rejected Work, including additional testing and
inspections and compensation for the Architect's services and expenses made
necessary thereby.
12.2.1.1 The Owner shall have authority at all times, until Final Completion and
acceptance of the Work, to inspect and reject work and materials which in the
Owner's judgment are not in conformity with the Contract Documents.
12.2.2 If, within one year after the date of Substantial Completion of the Work
of designated portion thereof, or after the date for commencement of warranties
established under Subparagraph 9.9.1, or by terms of an applicable special
warranty required by the Contract Documents, any of the Work is found to be not
in accordance with the requirements of the Contract Documents, the Contractor
shall correct it promptly after receipt of written notice from the Owner to do
so unless the Owner has previously given the Contractor a written acceptance of
such condition. This period of one year shall be extended with respect to
portions of Work first performed after Substantial Completion by the period of
time between Substantial Completion and the actual performance of the Work. This
obligation under this Subparagraph 12.2.2 shall survive acceptance of the Work
under the Contract and termination of the Contract. The Owner shall give such
notice promptly after discovery of the condition.
12.2.3 The Contractor shall remove from the site portions of the Work which are
not in accordance with the requirements of the Contract Documents and ate
neither corrected by the Contractor nor accepted by the Owner.
12.2.4 If the Contractor fails to correct nonconforming Work within a reasonable
time, the Owner may correct it in accordance with Paragraph 2.4. If the
Contractor does not proceed with correction of such nonconforming Work within a
reasonable time fixed by written notice from the Owner [Architect], the Owner
may remove it and store the salvable materials or equipment at the Contractor's
expense. If the Contractor does not pay costs of such removal and storage within
ten days after written notice, the Owner may upon ten additional days' written
notice sell such materials and equipment at auction or at private sale and shall
account for the proceeds thereof, after deducting costs and damages that should
have been borne by the Contractor, including compensation for the Development
Manager's and Architect's services and expenses made necessary thereby. If such
proceeds of sale do not cover costs which the Contractor should have borne, the
Contract Sum shall be reduced by the deficiency. If payments then or thereafter
due the Contractor are not sufficient to cover such amount, the Contractor shall
pay the difference to the Owner.
12.2.5 The Contractor shall beat the cost of correcting destroyed or damaged
construction, whether completed or partially completed, of the Owner or
[separate contractors] or other Contractors caused by the Contractor's
correction or removal of Work which is not in accordance with the requirements
of the Contract Documents.
12.2.6 Nothing contained in this Paragraph 12.2 shall be construed to establish
a period of limitation with respect to other obligations which the Contractor
might have under the Contract Documents. Establishment of the time period of one
year as described in Subparagraph 12.2.2 relates only to the specific obligation
of the Contractor to correct the Work, and has no relationship to the time
within which the obligation to comply with the Contract Documents may be sought
to be enforced, nor to the time within which proceedings may be commenced to
establish the Contractor's liability with respect to the Contractor's
obligations other than specifically to correct the Work.
12.3 ACCEPTANCE OF NONCONFORMING WORK
12.3.1 If the Owner prefers to accept Work which is not in accordance with the
requirements of the Contract Documents, the Owner may do so instead of requiring
its removal and correction, in which case the Contract Sum will be reduced as
appropriate and equitable. Such adjustment shall be effected whether or not
final payment has been made.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
24
47
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 GOVERNING LAW
13.1.1 The Contract shall be governed by the laws of the [place where the
Project is located] State of California.
13.2 SUCCESSORS AND ASSIGNS
13.2.1 The Owner and Contractor respectively bind themselves, their partners,
successors, assigns and legal representatives the other party hereto and to
partners, successors, assigns and legal representatives of such other party in
respect to covenants, agreements and obligations contained in the Contract
Documents. [Neither party to the Contract shall assign the Contract as a whole
without written consent of the other. If either party attempts to make such an
assignment without such consent, that party shall nevertheless remain legally
responsible for all obligations under the Contract.] Contractor may not assign
its rights under this Contract. Owner may, without Contractor's consent, assign
its interest in the Contract as security to a lender and in the event the
lender(s) for the Project succeeds to the interest of Owner by foreclosure, deed
in lieu of foreclosure or otherwise, Contractor agrees to perform all of its
obligations under this Agreement for such lender(s) on the terms and conditions
provided in this Agreement. Any entity which shall succeed to the rights of
Owner shall be entitled to enforce the rights of Owner hereunder.
13.3 WRITTEN NOTICE
13.3.1 Written notice shall be deemed to have been duly served if delivered in
person to the individual or a member of the firm or entity or to an officer of
the corporation for which it was intended, or if delivered at or sent by
registered or certified mail to the last business address known to the party
giving notice. At Owner's request a copy of all written notices shall be
delivered to any lender for the project.
13.4 RIGHTS AND REMEDIES
13.4.1 Duties and obligations imposed by the Contract Documents and rights and
remedies available thereunder shall be in addition to and not a limitation of
duties, obligations, rights and remedies otherwise imposed or available by law.
13.4.2 No action or failure to act by the Owner, Development Manager, Architect
or Contractor shall constitute a waiver of a right or duty afforded them under
the Contract, not shall such action or failure to act constitute approval of or
acquiescence in a breach thereunder, except as may be specifically agreed in
writing.
13.4.2 The invalidity of any part or provision of the Contract Documents shall
not impair or affect in any manner whatsoever the validity, enforceability or
effect of the remainder of the Contract Documents.
13.5 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the Work required by the
Contract Documents or by laws, ordinances, rules, regulations or orders of
public authorities having jurisdiction shall be made at an appropriate time.
Unless otherwise provided, the Contractor shall make arrangements for such
tests, inspections and approvals with an independent testing laboratory or
entity acceptable to the Owner, or with the appropriate public authority, and
shall beat all related costs of tests, inspections and approvals. The Contractor
shall give the Development Manager and Architect timely notice of when and where
tests and inspections are to be made so the [Architect] they may observe such
procedures. The Owner shall bear costs of tests, inspections or approvals which
do not become requirements until after bids ate received or negotiations
concluded.
13.5.2 If the Development Manager, Architect, Owner or public authorities having
jurisdiction determine that portions of the Work require additional testing,
inspection or approval not included under Subparagraph 13.5.1, the Development
Manager and Architect will, upon written authorization from the Owner, instruct
the Contractor to make arrangements for such additional testing, inspection or
approval by an entity acceptable to the Owner, and the Contractor shall give
timely notice to the Development Manager and Architect of when and where tests
and inspections are to be made so they [Architect] may observe such procedures.
The Owner shall bear such costs except as provided in Subparagraph 13.5.3.
13.5.3 If such procedures for testing, inspection or approval under
Subparagraphs 13.5.1 and 13.5.2 reveal failure of the portions of the Work to
comply with requirements established by the Contract Documents, the Contractor
shall hear all costs made necessary by such failure including those of repeated
procedures and compensation for the Development Manager's and Architect's
services and expenses.
13.5.4 Required certificates of testing, inspection or approval shall, unless
otherwise required by the Contract Documents, be secured by the Contractor and
promptly delivered to the Development Manager for transmittal to the Architect.
13.5.5 If the Development Manager or Architect is to observe tests, inspections
or approvals required by the Contract Documents, the Development Manager or
Architect will do so promptly and, where practicable, at the normal place of
testing.
13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall
be made promptly to avoid unreasonable delay in the Work.
13.6 INTEREST
13.6.1 Payments due and unpaid under the Contract Documents shall bear interest
from the date that final determination is made that such payment is due at such
rate as the parties may agree upon in writing or, in the absence thereof, at the
legal rate prevailing from time to time at the place where the Project is
located.
13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
13.7.1 As between the Owner and Contractor:
.1 BEFORE SUBSTANTIAL COMPLETION. As to acts or failures to act
occurring prior to the relevant date of Substantial Completion,
any applicable statute of limitations except with respect to
limitations based on discovery shall commence to run and any
alleged cause of action shall be deemed to have accrued in any and
all events not later than such date of Substantial Completion;
.2 BETWEEN SUBSTANTIAL COMPLETION AND FINAL CERTIFICATE FOR PAYMENT.
As to acts or failures to act occur- ring subsequent to the
relevant date of Substantial Completion and prior to issuance of
the final Certificate for Payment, any applicable statute of
limitations except with respect to limitations based on discovery
shall commence to run and any alleged cause of action shall be
deemed to have accrued in any and all events not later than the
date of issuance of the final Certificate for Payment; and
.3 AFTER FINAL CERTIFICATE FOR PAYMENT. As to acts or failures to act
occurring after the relevant date of issuance of the Final
Certificate for Payment, any applicable statute of limitations
except with respect to limitations based on discovery shall
commence to run and any alleged cause of action shall be deemed to
have accrued in any and all events not later than the
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
25
48
date any act or failure to act by the Contractor pursuant any
warranty provided under Paragraph 3.5, the date any correction if
the Work of failure to correct the Work by the Contractor under
Paragraph 12.2, or the date of actual commission of any other act
or failure perform any duty or obligation by the Contractor Owner,
whichever occurs last.
ARTICLE 14
TERMINATION OR SUSPENSION OF THE CONTRACT
4.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the Work is stopped for a
period of 30 days through no act or fault of the Contractor or a Subcontractor,
Sub-subcontractor or their agents or employees or any other persons performing
portions of the Work under contract with the Contractor, for any of the
following reasons:
.1 issuance of an order of a court or other public authority having
jurisdiction;
.2 an act of government, such as a declaration of national emergency,
making material unavailable;
.3 because the Development Manager or Architect has not issued a
Certificate for Payment and has not notified the Contractor of the
reason for withholding certification as provided in Subparagraph
9.4.1, or because the Owner has not made payment on a Certificate for
Payment within the time stated in the Contract Documents;
.4 if repeated suspensions, delays or interruptions by the Owner as
described in Paragraph 14.3 constitute in the aggregate more than 100
percent of the total number of days scheduled for completion, or 120
days in any 365-day period, whichever is less; or
.5 the Owner has failed to furnish to the Contractor promptly, upon the
Contractor's request, reasonable evidence as required by Subparagraph
2.2.1.
14.1.2 If one of the above reasons exists, the Contractor may, upon seven
additional days' written notice to the Owner, Development Manager and Architect,
terminate the Contract and recover from the Owner payment for Work executed and
for proven loss with respect to materials, equipment, tools, and construction
equipment and machinery, including reasonable overhead, profit and damages.
14.1.3 If the Work is stopped for a period of 60 days through no act or fault of
the Contractor or a Subcontractor or their agents or employees or any other
persons performing portions the Work under contract with the Contractor because
the Owner has persistently failed to fulfill the Owner's obligations under the
Contract Documents with respect to matters important to the progress of the
Work, the Contractor may, upon seven additional days' written notice to the
Owner, Development Manager and the Architect, terminate the Contract and recover
from the Owner as provided in Subparagraph 14.1.2.
14.2 TERMINATION BY THE OWNER [FOR CAUSE]
14.2.1 The Owner may terminate the Contract if the Contractor:
.1 [persistently or repeatedly] refuses or fails to supply enough
properly skilled workers or proper materials;
.2 fails to make payment to Subcontractors for materials or labor in
accordance with the respective agreements between the Contractor and
the Subcontractors;
.3 [persistently] disregards laws, ordinances, or rules, regulations or
orders of a public authority having jurisdiction; or
.4 otherwise is guilty of substantial breach of a provision the Contract
Documents.
Termination for any of the above reasons shall be referred to in this Agreement
as "Termination for Cause."
14.2.2 When any of the above reasons exist, the Owner, [upon certification by
the Architect that sufficient cause exists to justify such action,] may without
prejudice to any other rights or remedies of the Owner and after giving the
Contractor and the Contractor's surety, if any, seven days' written notice,
terminate employment of the Contractor and may, subject to any prior rights of
the surety:
.1 take possession of the site and of all materials, equipment, tools,
and construction equipment and machinery thereon owned by the
Contractor;
.2 accept assignment of subcontracts pursuant to Paragraph 5.4; and
.3 finish the Work by whatever reasonable method the Owner may deem
expedient.
14.2.3 [When the Owner terminates the Contract for one of the reasons stated in
Subparagraph 14.2.1] Upon a Termination for Cause, the Contractor shall not be
entitled to receive further payment until the Work is finished.
14.2.4 Once the Work is finished, [If] if the unpaid balance of the Contract Sum
[exceeds] exceeded the costs of finishing the Work, including compensation for
the Development Manager's and Architects services and expenses made necessary
thereby, such excess shall be paid to the Contractor. If such costs exceed the
unpaid balance, the Contractor shall pay the difference to the Owner. The amount
to he paid to the Contractor or Owner, as the case may be, shall, upon
application, be certified by the Architect after consultation with the
Development Manager[, upon application], and this obligation for payment shall
survive termination of the Contract.
14.2.5 The Owner may, at its option, terminate this Contract in whole or in part
from time to time at any time by seven days' written notice thereof to the
Contractor and Contractor's surety, if any ("Termination for Convenience"). Upon
a Termination for Convenience, Contractor agrees to waive any claims for
damages, including loss of anticipated profits, on account thereof, and as the
sole right and remedy of Contractor, Owner shall pay Contractor in accordance
with Subparagraph 14.2.3(c) below. The provisions of the Contract, which by
their nature survive final acceptance of the Work, shall remain in full force
and effect after such Termination for Convenience to the extent provided in such
provisions.
(a) Upon receipt of a notice instituting a Termination for Cause or a
Termination for Convenience, Contractor shall, unless the notice
directs otherwise, immediately discontinue the Work on that date and
to the extent specified in the notice, place no further orders or
subcontracts for materials, equipment, services or facilities,
except as may be necessary for completion of such portion of the
Work as is not discontinued, promptly make every reasonable effort
to procure cancellation upon terms satisfactory to Owner of all
orders and subcontracts to the extent they relate to the performance
of the discontinued portion of the Work, and thereafter do only such
Work as may be necessary to preserve and protect work already in
progress and to protect materials, plants and equipment on the Site
or in transit thereto.
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
26
49
(b) Upon a Termination for Convenience or a Termination for Cause, the
obligations of the Contract shall continue as to portions of the
Work already performed and as to bona fide obligations assumed by
Contractor prior to the date of termination.
(c) Upon a Termination for Convenience, Contractor shall be entitled to
be paid the full cost of all Work properly done by Contractor to the
date of termination not previously paid for, less sums already
received by Contractor on account of the portion of the Work
performed. If at the date of such termination Contractor has
properly prepared or fabricated off the Site any goods for
subsequent incorporation in the Work, and if Contractor delivers
such goods to the Site or to such other place as the Owner shall
reasonably direct, then Contractor shall be paid for such goods or
materials.
14.2.6 Upon a Termination for Convenience, the Owner may without prejudice to
any other rights or remedies of the Owner and subject to any prior rights of the
surety:
.1 take possession of the site and of all materials, equipment,
tools, and construction equipment and machinery thereon owned by
the Owner or rented on its behalf by Contractor;
.2 accept assignment of subcontracts pursuant to Paragraph 5.4 if but
only if Owner pays Contractor, in addition to any other sums owing
hereunder, a fee equal to twenty percent (20%) of the difference
between (x) the Contractor's Fee calculated as if the Cost of the
Work were equal to the Guaranteed Maximum Price at the time of
termination (or, if the Guaranteed Maximum Price has not yet been
established, the Preliminary Guaranteed Maximum Price established
in the Agreement), and (y) the Contractor's Fee paid or owing to
Contractor as a result of the actual Cost of the Work completed
prior to termination; provided, however, that upon Final
Completion, the value for (x) will be recalculated based on the
actual Cost of the Work rather than the Guaranteed Maximum Price
or estimate thereof, and Contractor will refund to Owner the
difference between the fee paid by Owner based on the initial
calculation and the amount owed based on such recalculation.
.3 finish the Work by whatever reasonable method the Owner may
deem expedient.
14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
14.3.1 The Owner may, without cause, order the Contractor in writing to suspend,
delay or interrupt the Work in whole or in part for such period of time as the
Owner may determine.
14.3.2 An ad99justment shall be made for increases in the cost of performance of
the Contract, including profit on the increased cost of performance, caused by
suspension, delay or interruption. No adjustment shall be made to the extent:
.1 that performance is, was or would have been so suspended, delayed
or interrupted by another cause for which the Contractor is
responsible; or
.2 that an equitable adjustment is made or denied under another
provision of this Contract.
14.3.3 Adjustments made in the cost of performance may have a mutually agreed
fixed or percentage fee.
50
EXHIBIT C
PROJECT MANUAL SPECIFICATIONS
HOK & Associates Design Development Specifications dated January 31, 1997.
NOTE: Final specifications will be issued with completed Construction Drawings
and Specifications and incorporated into the contract with the GMP.
51
EXHIBIT D
SYMANTEC CC5 OFFICE BUILDING
EXHIBIT "D"
CONTRACT DOCUMENTS
MAY 5,1997
WEBCOR BUELDERS JOB #295
1. Design Development Submittal - Architectural Specifications by HOK dated
1/31/97.
2. Geotechnical Investigation - Soils Report by Xxxxxxxxx & Xxxxx dated
2/10/97.
3. Drawings as listed below:
Sheet# Description Date
-----------------------------------------------------------------------------------
Architectural Drawings by HOK:
-------- Title Page 1/31/97
1.1A-1 Drawing Index 1/31/97
1.1A-2 Gen. Notes, Symbols & Abbreviations 1/31/97
Civil Drawings by Xxxx & Xxxxxx:
C.0-1 Topographic Survey 1/8/97
C.0-2 Basement Excavation 1/26/97
C.0-3 Basement Excavation - Notes & Sections 1/26/97
Landscape Drawings by Xxxxxxxx & Associates, Inc.:
2.2A-01 Site Layout Plan 1/31/97
2.2C-01 Site Details 1/31/97
2.5A-01 Site Planting Plan 1/31/97
Structural Drawings by Nishkian & Associates:
3.1-1 General Notes 1/31/97
3.2-1 Foundation/Level B4 Plan 1/31/97
3.2-2 Level B3 Framing Plan 1/31/97
3.2-3 Level B2 Framing Plan 1/31/97
3.2-4 Level B1 Framing Plan 1/31/97
3.2-5 Ground Level Framing Plan 1/31/97
3.2-6 Second Level Framing Plan 1/31/97
3.2-7 Third Level Framing Plan 1/31/97
3.2-8 Fourth Level Framing Plan 1/31/97
3.2-10 Penthouse Roof Framing Plan 1/31/97
3.2-9 Roof Framing Plan 1/31/97
52
Symantec CC5 Office Building
EXHIBIT "D" - Contract Documents
May 5, 1997
Webcor Builders Job #295
Page 2
-----------------------------------------------------------------------------------
3.3-1 Non-Frame Column Schedule 1/31/97
3.3-2 Braced Frame Elevations 1/31/97
3.3-3 Braced Frame Elevations and Details 1/31/97
3.4-1 Concrete Column Details 1/31/97
3.4-2 Typical Concrete Beam Details 1/31/97
3.4-4 Concrete Beam Schedule 1/31/97
3.6-1 Typical Steel Details 1/31/97
3.6-2 Typical Steel Details 1/31/97
3.6-3 Typical Steel Details 1/31/97
Architectural Drawings by HOK:
4.2-01 Xxxxx X0 Xxxx 0/00/00
0.0-00 Xxxxx X0 Xxxx 1/31/97
4.2-03 Xxxxx X0 Xxxx 0/00/00
0.0-00 Xxxxx X0 Xxxx 1/31/97
4.2-05 Ground Level Plan 1/31/97
4.2-06 Level 2 Floor Plan 1/31/97
4.2-07 Xxxxx 0 Xxxxx Xxxx 0/00/00
0.0-00 Xxxxx 0 Xxxxx Plan 1/31/97
4.2-09 Penthouse/Roof Plan 1/31/97
4.3A-01 Stair Plans 1/31/97
4.3A-02 Stair Plans 1/31/97
4.3A-03 Stair Plans 1/31/97
4.3A-04 Core Plans 1/31/97
4.3A-05 Core Plans 1/31/97
4.3A-06 Ground Level Toilet Room Plan 1/31/97
4.3B-1 Enlarged Plan Main Lobby 1/31/97
4.4-1 Reflected Ceiling Plans -
Lobby Levels 1 & 2 1/31/97
4.4-2 Reflected Ceiling Plan -
Lobby Level 2 1/31/97
4.5-01 Exterior Elevations 1/31/97
4.5-02 Exterior Elevations 1/31/97
4.5A-01 Enlarged Elevations 1/31/97
4.5A-02 Enlarged Elevations 1/31/97
4.5A-03 Enlarged Elevation 1/31/97
4.5A-04 Enlarged Elevation 1/31/97
4.5A-05 Enlarged Elevation 1/31/97
4.5A-06 Enlarged Elevation 1/31/97
4.5A-07 Enlarged Elevation 1/31/97
4.5A-08 Enlarged Elevation 1/31/97
4.5A-09 Enlarged Elevation 1/31/97
4.6-01 Toilet Room Interior Elevations 1/31/97
53
Symantec CC5 Office Building
EXHIBIT "D" - Contract Documents
May 5, 1997
Webcor Builders Job #295
Page 3
-----------------------------------------------------------------------------------
4.6-2 Enlarged Lobby Elevation 1/31/97
4.6-3 Enlarged Lobby Elevations 1/31/97
4.7-01 Sections 1/31/97
4.8-1 Stair Sections 1/31/97
4.8-3 Elevator Hoistway Sections 1/31/97
4.20A-01 Waterproofing Details 1/31/97
4.20D-01 Built-up Roofing Details 1/31/97
4.20E-01 Cement Plaster Exterior Soffits 1/31/97
4.30A-01 Hollow Metal Frames-Hold Open Details 1/31/97
4.30A-02 Door Threshold Details 1/31/97
4.40A-01 General Notes/Partition Types 1/31/97
4.40A-02 Partition Types 1/31/97
4.40B-01 Partition Termination Details 1/31/97
4.40B-02 Partition Details 1/31/97
4.40B-03 CMU Partition Details 1/31/97
4.40C-01 Acoustical Panel on T-Bar System 1/31/97
4.40C-02 Gypsum Board Ceiling and Soffits 1/31/97
4.40C-03 Ceiling Section Details 1/31/97
4.40D-01 ADA - Restroom Fixture & Accessory
Details 1/31/97
4.40D-02 ADA - Restroom Lavatory Details 1/31/97
4.40D-03 Toilet Room Shower Details 1/31/97
4.50A-01 Stair Railing Details 1/31/97
4.50A-02 Concrete Filled Metal Pan Stair
Details 1/31/97
4.50B-01 Passenger Elevator Cab Interior
Elev. & Details 1/31/97
4.50B-02 Freight Elevator Cab Interior
Elev. & Details 1/31/97
4.50B-03 Elevator Details 1/31/97
HVAC Drawings by C.M.I.:
6.1-1 Drawing List, Notes, Legend & Schedule 1/31/97
6.1-2 Schedules 1/31/97
6.2-1 Xxxxx X0 Xxxx 0/00/00
0.0-0 Xxxxx X0-X0 Xxxx 1/31/97
6.2-3 Level B1 Plan 1/31/97
6.2-4 Ground Level Plan 1/31/97
6.2-5 Level 2 Floor Plan 1/31/97
6.2-6 Xxxxx 0 Xxxxx Xxxx 0/00/00
0.0-0 Xxxxx 0 Xxxxx Plan 1/31/97
6.3-1 Penthouse/Roof Plan 1/31/97
6.5-1 Piping Schematic Chilled &
Condenser Water 1/31/97
6.5-2 Piping Schematic Hot Water 1/31/97
54
Symantec CC5 OFFICE Building
EXHIBIT "D" - Contract Documents
May 5, 1997
Webcor Builders Job #295
Page 4
-----------------------------------------------------------------------------------
Electrical Drawings by Xxxxxxxx & Xxxxxxxx, Inc.:
7.1-00 Legend, Ltg. Fixture Schedule &
Drawing List 1/31/97
7.1-01 Fixtures Schedule 1/31/97
7.1-02 Site Electrical Plan 1/31/97
7.2-00 Level B4 Electrical Plan 1/31/97
7.2-01 Level B3 Lighting Plan 1/31/97
7.2-02 Level B2 Lighting Plan 1/31/97
7.2-03 Level B1 Lighting Plan 12/12/96
7.2-04 Ground Level Electrical Plan 1/31/97
7.2-04P Ground Level Power Plan 1/31/97
7.2-05 Level 2 Electrical Plan 1/31/97
7.2-06 Level 3 Electrical Plan 1/31/97
7.2-07 Level 4 Electrical Plan 1/31/97
7.2-08 Penthouse/Roof Electrical Plan 1/31/97
7.5-00 Single Line Diagram 1/31/97
7.5-01 Riser Diagrams 1/31/97
7.7-00 Details - Electrical Rooms 1/31/97
55
WEBCOR BUILDERS
EXHIBIT "F"
May 5, 1997
WEBCOR BUILDERS JOB #295
PROJECT SYSTEMS SUMMARY
PROJECT: CC5 OFFICE BUILDING
LOCATION: CUPERTINO, CA
CM: XXXXX XXXXX
OWNER: SYMANTEC
ARCHITECT: HOK
ESTIMATE DATE: 25-Feb-97
ESTIMATOR: SRN & Xxxx Xxxx
ESTIMATE #: DD January 31, 1997 Drawings
---------------------------------------------------------------------------------------------------
OFFICE BUILDING PARKING STRUCTURE
LINE WBI CODE DESCRIPTION 144,378 SF 290,862 SF
PRICE $/SF PRICE $/SF
---------------------------------------------------------------------------------------------------
1 01000 GENERAL CONDITIONS $ 356,772 $ 2.47 $ 356,772 $ 1.23
2 02000 SITEWORK $ - $ - $1,823,993 $ 6.27
3 03000 LANDSCAPE AND IRRIGATION $ - $ - $ - $ -
4 04000 FOUNDATIONS $ 471,319 $ 3.26 $ 307,255 $ 1.06
5 05000 BUILDING STRUCTURE $2,678,350 $18.55 $5,461,932 $18.78
6 06000 EXTERIOR ENVELOPE (VERTICAL) $2,187,332 $15.15 $ 18,750 $ 0.06
7 07000 WATERPROOFING, INSULATION & ROOFING $ 564,796 $ 3.91 $ 180,679 $ 0.62
8 08000 INTERIOR CONSTRUCTION $ 801,003 $ 5.55 $ 91,330 $ 0.31
9 09000 SPECIALTIES $ 38,200 $ 0.26 $ 4,200 $ 0.01
10 10000 BUILDING EQUIPMENT $ 38,000 $ 0.26 $ - $ -
11 11000 SPECIAL CONSTRUCTION $ - $ - $ - $ -
12 15300 BUILDING FURNISHINGS $ - $ - $ - $ -
13 15400 ELEVATORS $ 225,000 $ 1.56 $ 128,000 $ 0.44
14 15500 FIRE SPRINKLERS $ 175,000 $ 1.21 $ 231,323 $ 0.80
15 16000 PLUMBING $ 320,000 $ 2.22 $ 56,000 $ 0.19
16 18000 H.V.A.C. $ 842,032 $ 5.83 $ 216,866 $ 0.75
17 19000 ELECTRICAL $ 646,071 $ 4.47 $ 296,094 $ 1.02
18 24000 MISCELLANEOUS EXPENSES $ 115,505 $ 0.80 $ 119,854 $ 0.41
19 19000 CONTINGENCY $ 100,000 $ 0.69 $ 100,000 $ 0.34
20 24000 CONTRACTOR JOB EQUIPMENT $ 23,660 $ 0.16 $ 23,660 $ 0.06
---------- ------ ---------- ------
SUBTOTAL $9,583,274 $66.38 $9,416,707 $32.38
CONTRACTORS FEE @ 2.6% $ 239,582 $ 1.66 $ 235,418 $ 0.81
---------- ------ ---------- ------
TOTAL COST $9,822,855 $68.04 $9,652,125 $33.18
---------- ----------
---------------------------------------------------------------------------------------------------
SITEWORK
LINE WBI CODE DESCRIPTION 95,417 SF TOTAL
PRICE $/SF
---------------------------------------------------------------------------------------------------
1 01000 GENERAL CONDITIONS $ - $ - $ 713,545
2 02000 SITEWORK $ 462,594 $ 4.85 $ 2,286,587
3 03000 LANDSCAPE AND IRRIGATION $ 272,300 $ 2.85 $ 272,300
4 04000 FOUNDATIONS $ - $ - $ 778,575
5 05000 BUILDING STRUCTURE $ 7,500 $ 0.08 $ 8,147,782
6 06000 EXTERIOR ENVELOPE (VERTICAL) $ - $ - $ 2,206,082
7 07000 WATERPROOFING, INSULATION & ROOFING $ 150,800 $ 1.58 $ 896,275
8 08000 INTERIOR CONSTRUCTION $ - $ - $ 892,333
9 09000 SPECIALTIES $ - $ - $ 42,400
10 10000 BUILDING EQUIPMENT $ - $ - $ 38,000
11 11000 SPECIAL CONSTRUCTION $ - $ - $ -
12 15300 BUILDING FURNISHINGS $ - $ - $ -
13 15400 ELEVATORS $ - $ - $ 353,000
14 15500 FIRE SPRINKLERS $ - $ - $ 406,556
15 16000 PLUMBING $ - $ - $ 376,000
16 18000 H.V.A.C. $ 80,500 $ 0.84 $ 1,139,398
17 19000 ELECTRICAL $ 18,000 $ 0.19 $ 960,164
18 24000 MISCELLANEOUS EXPENSES $ 9,068 $ 0.10 $ 244,426
19 19000 CONTINGENCY $ 22,000 $ 0.23 $ 222,000
20 24000 CONTRACTOR JOB EQUIPMENT $ - $ - $ 47,320
---------- ------ -----------
SUBTOTAL $1,022,762 $10.72 $20,022,743
CONTRACTORS FEE @ 2.6% $ 25,569 $ 0.27 $ 500,569
---------- ------ -----------
TOTAL COST $1,048,331 $10.99 $20,523,311
---------- -----------
PAGE 1
56
Webcor Builders
EXHIBIT "F"
May 5, 1997
WEBCOR BUILDERS JOB #295
SYSTEMS ESTIMATE
Project: CCS-OFFICE BUILDING
Location: CUPERTINO
CM: XXXXX XXXXX
Owner: SYMANTEC
Architect: HOK
Estimate Date: 25-Feb-97
Estimator: SRN & Xxxx Xxxx Building Size: 144,378 Square Feet
Estimate #: DD Budget January 31, 1997 Schedule: 15 months
---------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION PRICE $/SF COMMENTS
---------------------------------------------------------------------------------------------------------------------------
1 GENERAL CONDITIONS 356,772 $ 2.47
2 BUILDING PAD EARTHWORK 0 $ -
3 LANDSCAPE AND IRRIGATION 0 $ -
4 FOUNDATIONS 471,319 $ 3.26
5 BUILDING STRUCTURE 2,678,350 $ 18.55
6 EXTERIOR ENVELOPE (VERTICAL) 2,187,332 $ 15.15
7 WATERPROOFING, INSULATION, & ROOFING 564,796 $ 3.91
8 INTERIOR CONSTRUCTION 801,003 $ 5.55
9 SPECIALTIES 38,200 $ 0.26
10 BUILDING EQUIPMENT 38,000 $ 0.26
11 SPECIAL CONSTRUCTION 0 $ -
12 BUILDING FURNISHINGS 0 $ -
13 ELEVATORS 225,000 $ 1.56
14 FIRE SPRINKLERS 175,232 $ 1.21
15 PLUMBING 320,000 $ 2.22
16 HVAC 842,032 $ 5.83
17 ELECTRICAL 646,071 $ 4.47
18 MISCELLANEOUS EXPENSES 115,505 $ 0.80
19 CONTINGENCY 100,000 $ 0.69
20 CONTRACTOR JOB EQUIPMENT 23,660 $ 0.16
---------- -------
SUBTOTAL 9,583,274 $ 66.38
CONTRACTORS FEE @ 2.5% 239,582 $ 1.66
---------- -------
TOTAL BUILDING COSTS $9,822,855
----------
Cost per sf $68.04
ALTERNATES
ADD COOLING DUCT LOOPS $200,000 Add
ADD FOR 800KW GENERATOR $388,400 Add
Page 1
57
WEBCOR BUILDERS
GENERAL CONDITIONS
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
01 - 010 1 GENERAL CONDITIONS 1 LS 356,772 356,772 2.47 Pro rata with Parking
TOTAL GENERAL CONDITIONS 356,772
------------------------ -------
BUILDING PAD EARTHWORK
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
2 Clear & Grub Site 0 SF 0.00 0 0.00 See Sitework Estimate
2 Asphalt Patch 0 LS 0.00 0 0.00 See Sitework Estimate
2 Storm/Sewer/Water 0 LS 0.00 0 0.00 See Sitework Estimate
TOTAL BUILDING PAD EARTHWORK 0
---------------------------- -------
LANDSCAPE & IRRIGATION
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
3 Landscape/Hardscape Area 0 SF 0.00 0 0.00 See Sitework Estimate
TOTAL LANDSCAPE & IRRIGATION 0
---------------------------- -------
FOUNDATIONS
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
4 Substructure Rebar 208,365 LBS 0.45 93,764 0.65
4 Substructure Concrete 1 LS 377,555 377,555 2.62
TOTAL FOUNDATIONS 471,319
----------------- -------
BUILDING STRUCTURE
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
5 Rebar @ Decks, Pits, Misc. 113,906 LBS 0.45 51,257 0.36
5 Mesh @ Metal Decking 151,874 SF 0.45 68,343 0.47
5 Superstructure Concrete 1 ls 381,927 381,927 2.65
5 Block Walls @ Loading Dock 3,209 SF 11.00 35,299 0.24
5 Steel Framing @ Building
Shell 973 TNS 1,600.00 1,556,800 10.78 12#/sf + 1# for Panel Attach
5 Steel Framing @ Penthouse 43 TNS 1,600.00 68,800 0.48 Based on 10#/sf
5 Metal Decking 151,874 SF 2.20 334,123 2.31
5 Metal Stairs & Landings 7 FLTS 7,800.00 54,600 0.38
5 Misc Metals 1 LS 40,000.00 40,000 0.28
5 Awning Frames 1,744 SF 50.00 87,200 0.60
5 2nd Floor Lobby Rail 0 LF 0.00 0 0.00
TOTAL BUILDING STRUCTURE 2,678,350
------------------------ ---------
Page 2
58
Webcor Builders
EXTERIOR ENVELOPE (VERTICAL)
------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------
6 Precast Panel System 1 LS 1,333,000 1,333,000 9.23
6 Punched Windows 12,214 SF 28.76 351,275 2.43
0 Xxxxxx Xxxxxxx - 0xx Xxxxx 3,189 SF 28.11 89,643 0.62
6 Main Lobby 2,372 SF 50.00 118,600 0.82
6 East Lobby 728 SF 50.00 36,400 0.25
6 Awning Glazing 1744 SF 30.00 52,320 0.36
6 Entry Doors 5 PR 7,627.00 38,135 0.26
6 Single Entry Door 1 EA 2,500.00 2,500 0.02
6 5" x 5" extruded aluminum trim
(10ft +\- pcs) 10 EA 1,174.00 11,740 0.08 Penthouse Trim
6 Sheet Metal Wall Panels EIFS
@ Penthouse 5,280 SF 6.00 31,680 0.22
6 Penthouse EIFS 6420 SF 16.00 102,720 0.71
6 Backside of Parapet 2415 SF 8.00 19,320 0.13
TOTAL EXTERIOR ENVELOPE (VERTICAL) 2,187,332
---------------------------------- ---------
WATERPROOFING, INSULATION, & ROOFING
----------------------------------------------------------------------------------------------------------------------
UNIT
WBI CODE SYS DESCRIPTION QUANTITY UNIT PRICE PRICE $/SF COMMENTS
----------------------------------------------------------------------------------------------------------------------
7 Thermal Wall Insulation 50,000 SF 0.40 20,000 0.14
7 Thermal insulation under
ground floor 37,858 SF 1.41 53,380 0.37
7 Safing insulation @ Perimeter 3,640 LF 2.85 10,374 0.07
7 Insulation @ Spandrel Glass 140 SF 3.00 420 0.00
7 Thermal Roof Insulation 40,045 SF 0.75 30,034 0.21
7 Fireproofing @ Steel 151,874 SF 1.85 280,967 1.95
7 Built up Roofing System 40,045 SF 2.25 90,101 0.62
7 Tapred insulation 23,688 SF 1.60 37,901 0.26
7 Water Proofing @ Showers 540 SF 3.00 1,620 0.01
7 Flashing & Sheet Metal 1 LS 35,000.00 35,000 0.24
7 Misc. Joint Sealers 1 LS 5,000.00 5,000 0.03
TOTAL WATERPROOFING, INSULATION, & ROOFING 564,796
------------------------------------------ -------
INTERIOR CONSTRUCTION
--------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
--------------------------------------------------------------------------------------------------------------
8 Restroom Countertops 8 EA 1,250.00 10,000 0.07
8 Thresholds 10 EA 200.00 2,000 0.01
8 Misc. Rough Carpentry 1 LS 20,000.00 20,000 0.14
8 Doors & Frames - Singles 56 EA 900.00 50,400 0.35
8 Doors & Frames - Pairs 9 PR 2,000.00 18,000 0.12
8 Total Doors @ Elevators 6 PR 2,500.00 15,000 0.10
8 PG&E Service Door 12 FT wide 1 EA 6,500.00 6,500 0.05
8 Loading Dock Service Door
24 Ft Wide 1 EA 15,000.00 15,000 0.10
8 Core & Shaft Walls 4 FLR 70,000.00 280,000 1.94 Per Floor Allowance
8 Cement Board @ Showers 1 LS 1,000.00 1,000 0.01
8 3RD Floor Soffit 1,200 SF 20.00 24,000 0.17 Includes Scaffolding
8 Core Restrooms Ceramic Tile 4,930 SF 8.00 39,440 0.27
8 Ceramic Tile @ Showers 1,063 SF 11.00 11,693 0.08
8 Balcony Pavers 0 SF 0.00 0 0.00 Non Accessible Balconies
8 Misc @ Cores 4 FLR 600.00 2,400 0.02
8 Misc. Painting 4 FLR 5,500.00 22,000 0.15
8 Vinyl Wallcovering
in Restrooms 2,856 SF 1.25 3,570 0.02
8 Lobby Wall/Floor/Ceiling
Finish Allowance 1 LS 240,000.00 240,000 1.66 Allowance
8 Lighting 0 LS 0.00 0 0.00 Included in Ceiling Allowance
8 New Bathrooms off Lobby 2 EA 20,000.00 40,000 0.28 Allowance
8 Furnishings 0 LS 0.00 0 0.00 NIC
TOTAL INTERIOR CONSTRUCTION 801,003
--------------------------- -------
SPECIALTIES
--------------------------------------------------------------------------------------------------------------
Page 3
59
WEBCOR BUILDERS
----------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
9 Louvers near Dock Door 140 SF 50.00 7,000 0.05
9 Lockers @ Shower Rooms 8 EA 300.00 2,400 0.02
9 Fire Extinguishers & Cabinets 6 EA 200.00 1,600 0.01
9 Toilet Accessories & Partitions 4 FLR 6,000.00 24,000 0.17
9 Shower Accessories 4 EA 700.00 2,800 0.02
9 Benches @ Shower Rooms 2 EA 200.00 400 0.00
------------------------------------- ------------
TOTAL SPECIALTIES 38,200
------------------------------------- ------------
----------------------------------------------------
BUILDING EQUIPMENT
------------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
10 Window Washing Tiebacks 1 LS 30,000.00 30,000 0.21 Tiebacks Only
10 Dock Leveler 1 EA 8,000.00 8,000 0.06
------------------------------------- ------------
TOTAL BUILDING EQUIPMENT 38,000
------------------------------------- ------------
----------------------------------------------------
SPECIAL CONSTRUCTION
------------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
11 Special Construction 0 EA 0.00 0 0.00
------------------------------------- ------------
TOTAL SPECIAL CONSTRUCTION 0
------------------------------------- ------------
----------------------------------------------------
BUILDING FURNISHINGS
------------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
12 Window Coverings 0 EA 0.00 0 0.00 NIC, By Owner
------------------------------------- ------------
TOTAL BUILDING FURNISHINGS 0
------------------------------------- ------------
----------------------------------------------------
ELEVATORS
------------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
13 4 Stop Hydraulic Passenger Elevator 2 EA 60,000.00 120,000 0.83
13 4 Stop Hydraulic Freight Elevator 1 EA 75,000.00 75,000 0.52
13 Cab Allowance 2 EA 15,000.00 30,000 0.21 Allowance
------------------------------------- ------------
TOTAL ELEVATORS 225,000
------------------------------------- ------------
----------------------------------------------------
FIRE SPRINKLERS
------------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
14 14 Fire Sprinkler System 152,376 SF 1.15 175,232 1.21
------------------------------------- ------------
TOTAL FIRE SPRINKLERS 175,232
------------------------------------- ------------
Exhibit F Xxxxx Bldg DD.xls Page 4
60
WEBCOR BUILDERS
PLUMBING
-----------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
Wall Hung Water Closets 24 EA 220,000 1.52
Urinals 8 EA with above 0.00
Lavatories 16 EA with above 0.00
Dual Drinking Fountains 4 EA with above 0.00
Janitor sinks 2 EA with above 0.00
Floor drains 8 EA with above 0.00
Roof/Balcony Drains 30 EA with above 0.00
Fuel Oil Tank & Piping 1 LS 30,000.00 30,000 0.21
Revised Bath Layout 1 LS 37,000.00 37,000 0.26
Showers (4) each 1 LS 16,000.00 16,000 0.11
New Drinking Fountains (4) each 1 LS 6,000.00 6,000 0.04
Upgrade to Automatic Flush
Valves 1 LS 8,000.00 8,000 0.06
New Janitor sinks (2) each 1 LS 3,000.00 3,000 0.02
TOTAL PLUMBING 320,000
-------------- -------
H.V.A.C.
-----------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
16 Built-up Chilled Water Fans sized for 4 xxxxx
System Without Duct Loops 142,275 SF 6.06 865,032 5.99 Chillers aired for 6 xxxxx
16 Generator Exhaust 1 LS 5,000.00 5,000 0.03
16 Preheat Coils in Fan Rooms 1 LS 12,000.00 12,000 0.08
16 PG & E Rebates 1 LS -40,000.00 (40,000) -0.28
TOTAL H.V.A.C. 842,032
-------------- -------
ELECTRICAL
-----------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
17 Electrical System 142,275 SF 4.54 646,071 4.47 5 xxxxx/sf + 125 low generator
TOTAL ELECTRICAL 646,071
---------------- -------
Page 5
61
WEBCOR BUILDERS
MISCELLANEOUS EXPENSES
-----------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
18 SAFETY INSPECTIONS 19 DY 375 7,125 0.05
18 LIABILITY INSURANCE 0.58% LS 9,823,000 56,973 0.39
18 PRIME CONTRACTOR BOND 0.00% LS 0 0 0.00 NOT INCLUDED
18 SUBCONTRACTOR BONDS 1.50% LS 1,983,335 29,750 0.21 MEPS Only
18 ARCHITECTURAL/ENGR. SERVICES 0 LS 0 0 0.00 BY OWNER
18 TESTING AND INSPECTION 0 LS 0 0 0.00 BY OWNER
18 FINAL CLEAN UP 144,378 SF 0.15 21,657 0.15
18 FEES AND PERMITS 0 LS 0 0 0.00 BY OWNER
TOTAL CONTRACTOR SERVICES 115,505
------------------------- -------
CONTINGENCY
-----------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
19 PROJECT CONTENTENCY @ 1% 1.00% EA 100,000 100,000 0.69
TOTAL CONTINGENCY 100,000
----------------- -------
CONTRACTOR JOB EQUIPMENT
-----------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
20 JOBSITE CRANES 1 LS 0.00 0 0.00 By subcontractors
20 TEMPORARY EQUIPMENT 1 LS 0.00 0 0.00
20 MANLIFT 1 LS 0.00 0 0.00
20 EQUIPMENT, TOOLS, VEHICLES 1 LS 18,760.00 18,760 0.13
20 EXPENDABLE MATERIALS 1 LS 4,900.00 4,900 0.03
TOTAL CONTRACTOR JOB EQUIPMENT 23,660
------------------------------ -------
Page 6
62
WEBCOR BUILDERS
EXHIBIT "F"
May 5, 1997
WEBCOR BUILDERS JOB #295
SYSTEMS ESTIMATE
Project: CC5 PARKING STRUCTURE
Location: CUPERTINO
CM: XXXXX XXXXX
Owner: SYMANTEC
Arch: HOK Parking Stalls: 777
Estimate Date: 05-May-97 Parking Structure Size: 290,862
Estimator: SRN & Xxxx Xxxx Square Feet
Estimat #: DD Budget January 31, 1997 Schedule: 15 months
WBI CODE SYS DESCRIPTION PRICE $/SF % COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
1 GENERAL CONDITIONS 356,772 $ 1.23
2 SITEWORK 1,823,993 $ 6.27
3 LANDSCAPE AND IRRIGATION 0 $ -
4 FOUNDATIONS 307,255 $ 1.06
5 BUILDING STRUCTURE 5,461,932 $18.78
6 EXTERIOR ENVELOPE (VERTICAL) 18,750 $ 0.06
7 WATERPROOFING, INSULATION, & ROOFING 180,679 $ 0.62
8 INTERIOR CONSTRUCTION 91,330 $ 0.31
9 SPECIALTIES 4,200 $ 0.01
10 BUILDING EQUIPMENT 0 $ -
11 SPECIAL CONSTRUCTION 0 $ -
12 BUILDING FURNISHINGS 0 $ -
13 ELEVATORS 128,000 $ 0.44
14 FIRE SPRINKLERS 231,323 $ 0.80
15 PLUMBING 56,000 $ 0.19
16 HVAC 216,866 $ 0.75
17 ELECTRICAL 296,094 $ 1.02
18 MISCELLANEOUS EXPENSES 119,854 $ 0.41
19 CONTINGENCY 100,000 $ 0.34
20 CONTRACTOR JOB EQUIPMENT 23,660 $ 0.08
--------- ------
SUBTOTAL 9,416,707 $32.38
CONTRACTORS FEE 2.5% 235,418 $ 0.81
--------- ------
PARKING STRUCTURE COST $9,652,125
---------
Cost per sf $33.18
Cost per Stall $12,422
Efficiency (SF/Stall) 374
Page 1
63
Webcor Builders
--------------------------------------
GENERAL CONDITIONS
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
01-010 1 GENERAL CONDITIONS 1 LS 356,772.25 356,772 1.23 Pro rata with Building
-------
TOTAL GENERAL CONDITIONS 356,772
-------
--------------------------------------
SITEWORK
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
2 Clear & Grub Site 0 SF 0.00 0 0.00 See Sitework
2 Mass Excavation 1 LS 725,000.00 725,000 2.49
2 Site Grading 1 LS 50,000.00 50,000 0.17 Allowance
2 Shoring & Underpinning 1 LS 940,100.00 940,100 3.23 Xxxxxxx Bid
2 Foundation Drain 3,062 LF 25.00 76,550 0.26
2 Foundation Drain Rock 4,593 CY 5.35 24,573 0.08
2 Asphalt Patch 0 LS 0.00 0 0.00 See Sitework
2 Stall & Directional Striping 777 STL 10.00 7.770 0.03 Striping only
2 Storm/Sewer/Water 0 LS 0.00 0 0.00 See Sitework
---------
TOTAL SITEWORK 1,823,993
---------
--------------------------------------
LANDSCAPE & IRRIGATION
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
3 0 0.00
--
TOTAL LANDSCAPE & IRRIGATION 0
--
--------------------------------------
FOUNDATIONS
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
4 Substructure Rebar 179,514 LBS 0.45 80,781 0.28
4 Substructure 1 LS 226,474 226,474 0.78
-------
TOTAL FOUNDATIONS 307,255
-------
--------------------------------------
BUILDING STRUCTURE
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
5 Superstructure Rebar 2,431,924 LBS 0.45 1,094,366 3.76
5 Superstructure Concrete 1 LBS 4,053,566 4,053,566 13.94
5 Block Walls - 4 ft high 3,324 SF 11.00 36,564 0.13
5 Block Walls - 8'2" high 3,955 SF 11.00 43,505 0.15
5 Block Walls - 12'-2" high 4,162 SF 11.00 45,782 0.16
5 Metal Stairs & Landings 13 FLTS 7,800.00 101,400 0.35
5 Temporary Stair Tower 1 LS 15,000.00 15,000 0.05
5 Misc Metals 1 LS 30,000.00 30,000 0.10
5 Railing @ Ramps & SE Stair 334 LF 125.00 41,750 0.14
---------
TOTAL BUILDING STRUCTURE 5,461,932
---------
Page 2
64
Webcor Builders
EXTERIOR ENVELOPE (VERTICAL)
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
6 HM Doors & Frames - 3' x 7' 17 EA 750.00 12.750 0.04
6 HM Doors & Frames - 6' x 7' 3 EA 2,000.00 6,000 0.02
6 Overhead Rolling Grill 0 EA 0.00 0 0.00 Not Required
------
TOTAL EXTERIOR ENVELOPE (VERTICAL) 18,750
------
WATERPROOFING, INSULATION & ROOFING
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
7 Miradrain @ Perimeter Walls 46,893 SF 3.00 140,679 0.48 With Volclay backing
7 Flashing & Sheet Metal 1 LS 5,000.00 5,000 0.02
7 Exhaust Grates/Hoods 4 EA 7,500.00 30,000 0.10 ALLOWANCE
7 Misc. Joint Sealers 1 LS 5,000.00 5,000 0.02
-------
TOTAL WATERPROOFING, INSULATION, & ROOFING 180,679
-------
INTERIOR CONSTRUCTION
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
8 Misc. Rough Carpentry 1 LS 15,000.00 15,000 0.05
8 Core & Shaft Walls 3.5 FLR 10,000.00 35,000 0.12 Per Floor Allowance
8 Elevator Floors + Base 844 SF 7.50 6,330 0.02
8 Misc. Painting 3.5 FLR 10,000.00 35,000 0.12
------
TOTAL INTERIOR CONSTRUCTION 91,330
------
SPECIALTIES
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
9 Signage 0 LS 0.00 0 0.00
9 Fire Extinguisher & Cabinets 28 EA 150.00 4,200 0.01
9 Toilet and Bath Accessories 0 EA 0.00 0 0.00
-----
TOTAL SPECIALTIES 4,200
-----
BUILDING EQUIPMENT
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
10 Parking Control Equipment 0 0.00 0 0.00 Not Provided
--
TOTAL BUILDING EQUIPMENT 0
--
SPECIAL CONSTRUCTION
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
11 Special Construction 0 EA 0.00 0 0.00
--
TOTAL SPECIAL CONSTRUCTION 0
--
Page 3
65
WEBCOR BUILDERS
BUILDING FURNISHINGS
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
12 WINDOW COVERINGS 0 EA 0.00 0 0.00
TOTAL BUILDING FURNISHINGS 0
-------------------------- -------
ELEVATORS
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
13 Four Stop Hydro, 150 fpm 2 EA 62,500.00 125,000 0.43 Standard Cabs
13 Cab Floors 2 EA 1,500.00 3,000 0.01 Floors Only
TOTAL ELEVATORS 128,000
--------------- -------
FIRE SPRINKLERS
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
14 Fire Sprinkler System 289,154 SF 0.80 231,323 0.80
TOTAL FIRE SPRINKLERS 231,323
--------------------- -------
PLUMBING
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
15 Parking Drainage 1 LS 56,000.00 56,000 0.19 Floor/trench Drains
TOTAL PLUMBING 56,000
-------------- -------
H.V.A.C.
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
16 Ventilation & Exhaust 289,154 SF 0.75 216,866 0.75
TOTAL H.V.A.C. 216,866
-------------- -------
ELECTRICAL
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
17 Electrical System 289,154 SF 1.02 296,094 1.02
17 Plaza Lighting, Allowance 0 LS 0.00 0 0.00 See Sitework
TOTAL ELECTRICAL 296,094
---------------- -------
Page 4
66
WEBCOR BUILDERS
MISCELLANEOUS EXPENSES
-----------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
18 SAFETY INSPECTIONS 22 DY 375 8,250 0.03
18 LIABILITY INSURANCE 0.58% LS 9,650,000 55,970 0.19
18 PRIME CONTRACTOR BOND 0.00% LS 0 0 0.00 NOT INCLUDED
18 SUBCONTRACTOR BONDS 1.50% LS 800,282 12.004 0.04 MEPS Only
18 ARCHITECTURAL/ENGR. SERVICES 0 LS 0 0 0.00 BY OWNER
18 TESTING AND INSPECTION 0 LS 0 0 0.00 BY OWNER
18 FINAL CLEAN UP 290,862 SF 0.15 43,629 0.15
18 FEES AND PERMITS 0 LS 0 0 0.00 BY OWNER
TOTAL MISCELLANEOUS SERVICES 119,854
---------------------------- -------
CONTINGENCY
-----------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
19 PROJECT CONTENTENCY @ 1% 1.00% EA 10,100,000 100,000 0.34
TOTAL CONTINGENCY 100,000
----------------- -------
CONTRACTOR JOB EQUIPMENT
-----------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
20 JOBSITE CRANES 1 LS 0.00 0 0.00 By subcontractors
20 CRANE MOBILIZATION 1 LS 0.00 0 0.00
20 TEMPORARY EQUIPMENT 1 LS 0.00 0 0.00
20 MANLIFT 1 LS 0.00 0 0.00
20 EQUIPMENT, TOOLS, VEHICLES 1 LS 18,760.00 18,760 0.06
20 EXPENDABLE MATERIALS 1 LS 4,900.00 4,900 0.02
TOTAL CONTRACTOR JOB EQUIPMENT 23,660
------------------------------ -------
Page 5
67
WEBCOR BUILDERS
EXHIBIT "F"
May 5, 1997
WEBCOR BUILDERS JOB #295
SYSTEMS ESTIMATE
Project: CCS-OFFICE BUILDING
Location: CUPERTINO
CM: XXXXX XXXXX
Owner: SYMANTEC
Architect: HOK/XXXXXXXX
Estimate Date: 25-Feb-97
Estimator: SRN & Xxxx Xxxx Site Area O/S Building: 57,000 Square Feet
Estimate #: DD-January 31, 1997 Schedule: 12 months
---------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION PRICE COMMENTS
---------------------------------------------------------------------------------------------------------------------------
1 GENERAL CONDITIONS 0
2 SITEWORK 462,594
3 LANDSCAPE AND IRRIGATION 272,300
4 FOUNDATIONS 0
5 BUILDING STRUCTURE 7,500
6 EXTERIOR ENVELOPE (VERTICAL) 0
7 WATERPROOFING, INSULATION, & ROOFING 150,800
8 INTERIOR CONSTRUCTION 0
9 SPECIALTIES 0
10 BUILDING EQUIPMENT 0
11 SPECIAL CONSTRUCTION 0
12 BUILDING FURNISHINGS 0
13 ELEVATORS 0
14 FIRE SPRINKLERS 0
15 PLUMBING 80,500
16 HVAC 0
17 ELECTRICAL 16,000
18 MISCELLANEOUS EXPENSES 9,068
19 CONTINGENCY 22,000
20 CONTRACTOR JOB EQUIPMENT 0
----------
SUBTOTAL 1,022,762
----------
CONTRACTORS FEE 2.5% 25,569
----------
TOTAL SITEWORK COSTS $1,048,331
----------
Page 1
68
WEBCOR BUILDERS
GENERAL CONDITIONS
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
01 - 010 1 GENERAL CONDITIONS 1 LS 0 0.00
-------
TOTAL GENERAL CONDITIONS 0
-------
SITEWORK
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
2 Clear & Grub Site 0 SF 0.75 0 0.00
0 Xxxx Xxxxxx A/C repair 1 LS 20,000.00 20,000 0.35 Allowance
2 Grading @ S/E P.L. for ramp & Xxxx Xxxx 0 LS 7,500.00 7,500 0.13
2 Heavy base for East P.L. sidewalk 1,800 SF 3.00 5,400 0.09 Vehicular Concrete
Xxxxxx XXX
0 Xxxxxxxx Xxxxx Paving 8,380 SF 6.00 50,280 0.88 Front & Rear Plaza
2 Slate Paving 2,680 SF 19.50 52,260 0.92 Front & Rear Plaza
2 Foam Fill @ Slate & Int. Type Paving 480 CY 71.67 34,402 0.60 Front & Xxxx Xxxxx
0 Xxxx Xxxxx Fire Lane 5,371 SF 6.00 32,226 0.57 At East Property
line
2 Asphalt Fire Lane 1,500 SF 4.25 6,375 0.11 At East Property
line
0 Xxxx Xxxx Xxxxxxxx 1,900 SF 4.50 8,550 0.15 Includes Base
Prep.
2 North Sidewalk 714 SF 4.50 3,213 0.06 Includes Base
Prep.
2 On site Sidewalks 1,517 SF 5.50 8,344 0.15 Includes Base
Prep.
2 New curbs at No. & East P.L.'s 600 LF 11.00 6,600 0.12
2 Storm/Sewer/Water 1 LS 40,000.00 40,000 0.70 Allowance
2 Fountain & Pool 0 LS 0.00 0 0.00 Eliminated From
Scope
2 Concrete Sealing Walls 4ft wide 130 LF 370.00 48,100 0.84
2 Concrete Planter seat wall 18" wide 792 LF 145.00 114,840 2.01
2 Concrete Mow Bands 101 LF 5.00 505 0.01
2 Entry Steps 160 LF 25.00 4,000 0.07
2 Project Sign Wall 1 LS 20,000.00 20,000 0.35 PIP Concrete Sign
Allowance
---------
TOTAL SITEWORK 462,594
---------
LANDSCAPE & IRRIGATION
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
3 Planting 1 LS 61,600.00 61,600 1.08 Xxxxxx Quote
3 Redwood Headerboard 1 LS 10,000.00 10,000 0.18 Xxxxxx Quote
3 Irrigation 1 LS 53,100.00 53,100 0.93 Xxxxxx Quote
3 Normal Weight Soil on Structure 1 LS 65,300.00 65,300 1.15 Xxxxxx Quote
3 Soil Preparation, fertilizer, bark mulch 1 LS 9,800.00 9,800 0.17 Xxxxxx Quote
3 Volleyball Pit 1 LS 10,000.00 10,000 0.18 No Equipment
3 Clean up and 60 day maintenance 1 LS 2,600.00 2,600 0.05 Xxxxxx Quote
3 Redwood Headerboard 998 LF 50.00 49,900 0.88 Assume 2 ft Tall
3 Redwood Headerboard 1 LS 10,000.00 10,000 0.18 @ S/E P.L.
--------
TOTAL LANDSCAPE & IRRIGATION 272,300
--------
FOUNDATIONS
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
4 Foundation Rebar 0 LBS 0.00 0 0.00
4 Foundation Rebar 0 CY 0.00 0 0.00
-------
TOTAL FOUNDATIONS 0
-------
Page 2
69
WEBCOR BUILDERS
--------------------------------------
BUILDING STRUCTURE
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
5 Shotcrete Wall Rebar 0 LBS 0.45 0 0.00
5 Metal Deck Topping Mesh 0 SF 0.45 0 0.00
5 Misc 0 LBS 0.45 0 0.00
5 Misc - Elevator Pits, Curbs, Etc 0 LS 0.00 0 0.00
5 Topping over Waterproofed Deck
@ grade 0 SF 2.00 0 0.00
5 Shotcrete Walls 0 CY 0.00 0 0.00
5 Interior Ramp Wall 0 SF 0.00 0 0.00
5 Column Bases 0 EA 0.00 0 0.00
5 Topping @ Metal Deck 0 SF 0.00 0 0.00
5 Block Walls - 4 ft high 0 SF 11.00 0 0.00
5 Steel Framing @ Parking Garage 0 TNS 0.00 0 0.00
5 Metal Decking 0 SF 0.00 0 0.00
5 Metal Stairs & Landings 0 FLTS 7,800.00 0 0.00
5 Hand Rails 50 LF 150.00 7,500 0.13
-----
TOTAL BUILDING STRUCTURE 7,500
-----
--------------------------------------
EXTERIOR ENVELOPE (VERTICAL)
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
6 Hollow Metal Doors & Frames 0 EA 750.00 0 0.00
6 Overhead Rolling Grill 0 EA 10,000.00 0 0.00
--
TOTAL EXTERIOR ENVELOPE (VERTICAL) 0
--
--------------------------------------
WATERPROOFING, INSULATION, & ROOFING
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
7 Fireproofing @ Steel 0 SF 1.65 0 0.00
7 Waterproof Deck o/s Bldg Line
@ Concrete 15,000 SF 3.00 45,000 0.79
7 Waterproof Deck o/s Bldg Line
@ Landscape 42,000 SF 2.40 100,800 1.77
7 Shotcrete Wall Waterproofing 0 SF 3.00 0 0.00
7 Flashing & Sheet Metal 0 SF 5,000.00 0 0.00
7 Louvers @ Elevator Shafts/
Garage 0 LS 10,000.00 0 0.00
7 Misc. Joint Sealers 1 LS 5,000.00 5,000 0.09
-------
TOTAL WATERPROOFING, INSULATION, & ROOFING 150,800
-------
--------------------------------------
INTERIOR CONSTRUCTION
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
8 Misc. Rough Carpentry 0 LS 15,000.00 0 0.00
8 Core & Shaft Walls 0 FLR 15,000.00 0 0.00 Per Floor Allowance
8 Misc. Painting 0 FLR 2,500.00 0 0.00
--
TOTAL INTERIOR CONSTRUCTION 0
--
Page 3
70
WEBCOR BUILDERS
--------------------------------------
SPECIALTIES
--------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
10-520 9 FIRE EXTINGUISHERS & CABINETS 0 EA 150.00 0 0.00
10-800 9 TOILET AND BATH ACCESSORIES 0 EA 155.00 0 0.00
-------
TOTAL SPECIALTIES 0
-------
--------------------------------------
BUILDING EQUIPMENT
--------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
11-400 10 FOOD SERVICE EQUIPMENT 0
-------
TOTAL BUILDING EQUIPMENT 0
-------
--------------------------------------
SPECIAL CONSTRUCTION
--------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
13-000 11 SPECIAL CONSTRUCTION 0 EA 0.00 0 0.00
-------
TOTAL SPECIAL CONSTRUCTION 0
-------
--------------------------------------
BUILDING FURNISHINGS
--------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
12-500 12 WINDOW COVERINGS 0 EA 0.00 0 0.00
-------
TOTAL BUILDING FURNISHINGS 0
-------
--------------------------------------
ELEVATORS
--------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
13 Four Stop Hydro, 150 fpm 0 EA 50,000.00 0 0.00 Standard Cabs
14-205 13 CAB FLOORS 0 EA 1,500.00 0 0.00
-------
TOTAL ELEVATORS 0
-------
--------------------------------------
FIRE SPRINKLERS
--------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
14 Fire Sprinkler System 0 SF 0.80 0 0.00
-------
TOTAL FIRE SPRINKLERS 0
-------
--------------------------------------
PLUMBING
--------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
-----------------------------------------------------------------------------------------------------------------------------------
15 Parking Drainage 0 LS 53,000.00 0 0.00
15 Drainage for Area o/s
Building Line 1 LS 71,500.00 71,500 1.25
15 Water Supply For Irrigation 1 LS 9,000.00 9,000 0.16
-------
TOTAL PLUMBING 80,500
-------
--------------------------------------
H.V.A.C.
--------------------------------------
Page 4
71
Webcor Builders
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
16 Ventilation & Exhaust 0 SF 0.75 0 0.00
--
TOTAL H.V.A.C. 0
--
ELECTRICAL
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
17 Electrical System 0 SF 1.10 0 0.00
17 Plaza Lighting, Allowance 1 LS 18,000.00 18,000 0.32
------
TOTAL ELECTRICAL 18,000
------
MISCELLANEOUS EXPENSES
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
18 - 200 18 SAFETY INSPECTIONS 4 DY 375 1,500 0.03 BY OWNER
18 - 250 18 LIABILITY INSURANCE 0.58% LS 1,050,000 6,090 0.11
18 - 300 18 PRIME CONTRACTOR BOND 0.00% LS 0 0 0.00 NOT INCLUDED
18 - 400 18 SUBCONTRCTOR BONDS 1.50% LS 98,500 1,478 0.03 MEPS ONLY
18 - 500 18 GROSS RECEIPTS TAX (S.F. ONLY) 0.00% LS 1,050,000 0 0.00
18 - 675 18 ARCHITECTURAL/ENGR. SERVICES 0 LS 0 0 0.00 BY OWNER
18 - 750 18 TESTING AND INSPECTION 0 LS 0 0 0.00 BY OWNER
18 - 900 18 FINAL CLEAN UP 0 SF 0.15 0 0.00
18 - 950 18 FEES AND PERMITS 0 LS 0 0 0.00 BY OWNER
-----
TOTAL MISCELLANEOUS EXPENSES 9,068
-----
CONTINGENCY
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
19 - 100 19 PROJECT CONTINGENCY @2% 2% EA 1,100,000 22,000 0.39
------
TOTAL CONTINGENCY 22,000
------
CONTRACTOR JOB EQUIPMENT
------------------------------------------------------------------------------------------------------------------------------
WBI CODE SYS DESCRIPTION QUANTITY UNIT UNIT PRICE PRICE $/SF COMMENTS
------------------------------------------------------------------------------------------------------------------------------
17 - 061 20 JOBSITE CRANES 0 LS 7,500.00 0 0.00
17 - 062 20 CRANE MOBILIZATION 0 LS 0.00 0 0.00
17 - 063 20 TEMPORARY EQUIPMENT 0 LS 3,300.00 0 0.00
17 - 064 20 MANLIFT 0 LS 0.00 0 0.00
17 - 065 20 EQUIPMENT, TOOLS, VEHICLES 0 LS 14,175.00 0 0.00
17 - 066 20 EXPENDABLE MATERIALS 0 LS 4,200.00 0 0.00
--
TOTAL CONTRACTOR JOB EQUIPMENT 0
--
Page 5
72
SYMANTEC
CC5 OFFICE BUILDING/PARKING STRUCTURE
EXHIBIT "F"
MAY 5, 1997
WEBCOR BUILDERS JOB #295
ASSUMPTIONS/QUALIFICATIONS
1. OFFICE BUILDING:
a. Structural steel frame weight is 12 lb/sf.
b. Precast is a white matrix for the bulk of the facade with a
darker color as accented on the drawings.
x. Xxxxx in loading dock/vault area are 8" CMU block.
d. Stairs are pre-fab, pre-poured Xxxxxx Stairs (or equal). No
floor covering is provided in the shell estimate.
e. Roofing, including terraces, is a 4-ply built-up roof.
f. Doors at core rooms are 3' x 8'0" oak or equal with non-mortised
latch sets.
g. Doors off elevator lobbies are manufactured assemblies by "Total
Door".
h. The punched and strip windows are standard extrusions (2" x
4-1/2") with Kynar finish. The curtain wall at the entries is a
2-1/2" x 10" internally reinforced extrusion. The steps in the
glazing are accomplished by applying surface stops to the
mullions at the rear of the mullion. The entry doors are 1/2"
tempered glass with Von Duprin panic hardware.
i. The drywall scope includes all core walls, shaft walls, and
penthouse but does not include perimeter or column furring.
j. The rest rooms will have ceramic tile on the floor in the toilet
areas, full height on the three wet walls in the toilet area and
tile base only in the lavatory area. The remaining walls will
have vinyl wall covering and the lavatory area floor will be
carpeted with the tenant improvements.
k. Painting is limited to exterior metals, all door and frames,
rest room ceilings, and stairwells.
73
SYMANTEC - CC5 OFFICE BUILDING/PARKING STRUCTURE
ASSUMPTIONS/QUALIFICATIONS
Page 2
--------------------------------------------------------------------------------
l. The lobby allowance is based on the sketches by HOK dated
February 14, 1997. No allowance is included for the upper
floors.
m. Window washing sockets and tiebacks are included. Davit arms and
scaffold are excluded.
n. Insulation between the B1 level and the first floor is a sprayed
on material with R-11 rating.
o. Canopies are assumed to be painted steel with 9/16" laminated
glass.
p. The passenger elevators are standard hydraulic 3000#, 150 fpm
with center opening doors. The "freight" elevator is a standard
4000# premanufactured hydraulic car as made by Otis, Schindler,
etc. This is not an industrial type freight elevator.
q. Janitor sinks are included on all floors.
r. Faucets are manual and flush valves are automatic with battery
operators.
s. The HVAC system is a built-up chilled water system with fan
capacity for 4 xxxxx/sf and chiller capacity for 6 xxxxx/sf. The
HVAC price takes into account the PG&E rebates which are
available. The duct loops and fan coils are not included in the
shell estimate.
t. The electrical system provides a 3000 amp 480/277 service and a
125 kw backup generator to handle egress lighting, telephone
switch, security, fire alarm, and one elevator. This system will
provide 5 xxxxx/sf for plug loads.
2. PARKING STRUCTURE
a. The basement will be shored and then have shotcrete walls
installed against a miradrain with volclay backing. The
shotcrete finish will be a rubber float.
b. A perimeter foundation drain is installed around the base of the
perimeter footings which ties into a central sump/ejector.
c. Structural design is a combination of the January 31, 1997
design development drawings and Nishkian input provided on
December 31, 1996.
d. Interior walls at stairs are 4 ft. CMU with drywall above to the
underside of the deck. Elevator shafts are full height CMU.
e. Doors and frames are 3' x 7' hollow metal with non mortised
latch sets.
74
SYMANTEC - CC5 OFFICE BUILDING/PARKING STRUCTURE
ASSUMPTIONS/QUALIFICATIONS
Page 3
-------------------------------------------------------------------------------
f. No gates or grilles are provided at the two ramps to restrict access
and no parking control equipment is included.
g. Painting is limited to the elevator and stair cores. The columns,
walls, and ceiling are not painted.
h. The elevators are 3000 lb, 150 fpm, standard hydraulic elevators. The
cabs are to be standard with an allowance included for the floors only.
i. The parking structure will be ventilated as required by code and will
have CO sensors regulating the fans.
j. The basement slab on grade will be installed over the insitu subgrade
material without rock or sand.
k. Lighting will be provided by high pressure sodium lamps.
l. All signage and graphics in the basement shall be provided by the Owner.
3. SITEWORK:
a. An allowance is included to upgrade the sub-base for the sidewalk at
the apartments on the east side.
b. Plaza paving is slate tile bands set in between colored concrete fields.
c. The fountain and pool have been deleted per the design development
drawings.
d. All plaza lighting is included as an $18,000 allowance.
e. The curb and gutter and sidewalk along De Anza are to remain as is and
are therefore not included as new in the estimate.
f. Volleyball equipment is to be provided by the Owner.
g. All site walls are standard xxxx concrete.
h. The soil on top of the deck will be a standard weight material as
Nishkian has designed the structure to accommodate this.
