Exhibit 10.72
1997 EDITION - ELECTRONIC FORMAT
AIA Document A111 - 1997
STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR
where the basis for payment is the COST OF THE WORK PLUS A FEE with a negotiated
Guaranteed Maximum Price
AGREEMENT made as of December 22, 2003.
(In words, indicate day, month and year)
BETWEEN the Owner:
(Name, address and other information)
Corixa Corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
and the Contractor:
(Name, address and other information)
BN Builders, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxxx, XX 00000
The Project is:
(Name and location)
The Architect is:
(Name, address and other information)
The Owner and Contractor agree as follows.
RECITAL:
This Agreement amends, replaces in its entirety and supersedes that certain
Standard Form of Agreement Between Owner and Contractor dated as of July 20,
2001 (the "Original Agreement") between Owner and Contractor. Each party hereto
agrees that upon the execution of this Agreement such party shall forever
release and relinquish any and all claims, demands, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and costs),
whether known or unknown, arising out of or relating to the Original Agreement
which such party may have against the other party or its affiliates or any of
their officers, directors, employees, agents, representatives or assigns.
ARTICLE 1 THE CONTRACT DOCUMENTS
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
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Documents, other than Modifications, appears in Article 15. If anything
in the other Contract Documents is inconsistent with this Agreement,
this Agreement shall govern.
ARTICLE 2 THE WORK OF THIS CONTRACT
2.1 The Contractor shall fully execute the Work described in the
Contract Documents, except to the extent specifically indicated in the
Contract Documents to be the responsibility of others.
2.2 The Contractor will provide as a part of the Work of the
Contract pre-construction services as shall be necessary to complete the
development of the Drawings and Specification, the Schedule and the Guaranteed
Maximum Price for the Project, as well as all work necessary to perform a
constructability review of the Project and value management of all systems and
building components and determination of sequencing the Work as follows:
2.2.1 Project Management Systems and Procedures for
Pre-Construction. The contractor is required to provide
complete project management services to track, monitor,
report, and manage all of the parts and pieces of the Project
in a manner that will allow Owner to maintain all such items
at any time during the course of construction. The Owner will
rely on the contractor's accuracy and timeliness of these
services to make informed decisions relating to the Project.
2.2.2 Drawings. Specifications and Constructability. The
Contractor will advise Owner in connection with all aspects
of the process necessary to complete the construction
drawings. As a part of the Contractor's participation in the
design process for the Project, the Contractor will use its
best efforts to insure that the Project design will include
the latest, and best suited, technology for each building
system. The Contractor will evaluate all systems and recommend
the system to the Owner. The evaluation will also address any
impacts each system will have on the Project included, but
not limited to, cost, performance, schedule and how each
system relates to other pertinent systems.
2.2.3 Budgeting and Estimating. The Owner has established a
direct cost construction budget for this Project of
$17,449,527.00. Contractor shall upon completion of the
Drawings and Specifications deliver to Owner Contractor's
final Guaranteed Maximum Price, which shall include
Contractor's fee hereunder, a contingency of two percent (2%)
and all Work necessary to complete the Project in accordance
with the requirements of this Agreement and based on the final
design documents. At the end of the process contemplated by
this Subparagraph 2.2.2, the Contractor and the Owner shall
arrive at a budget (the "Budget") for the Cost of the Work. In
the event that final budget determined by the Contractor as a
result of the bids, as provided for herein, on the final
Drawings and Specifications construction drawings is more than
ten percent (10%) in excess of the direct cost construction
budget described above, Owner shall have the right to
terminate this Agreement as provided in Section 14.4 of the
General Conditions.
2.2.4 Scheduling. Simultaneous with the delivery by
Contractor of the Guarantied Maximum Price as set forth above,
the Contractor shall deliver to Owner and the Owner and the
Contractor shall agree on a schedule ("Schedule") for the
Project. As a result of Contractor's involvement in the
preparation of the Contract Documents and the Schedule,
Contractor accepts and confirms that the time allowed in
Article 4 and the Schedule is reasonable and sufficient for
completing the Work
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within such time requirements. The Schedule will identify long lead
items and critical activities for the Project. Each major Project
activity will be clearly identified in the schedule as well as identify
the responsible lead supervisor, subcontractor or other applicable
person or entity for each task. The Schedule will also define the
relationship of each activity to other activities, along with logic
ties for previous and future Work. The schedule system will be capable
of schedule control, indicating manpower, equipment, and other resource
requirements; and, have the ability to forecast cash outflow for the
Project.
ARTICLE 3 RELATIONSHIP OF THE PARTIES
The Contractor accepts the relationship of trust and confidence
established by this Agreement and covenants with the Owner to cooperate
with the Architect and Owner's Consultants 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 to complete the entire Work within the Contract Time
required by this Agreement; 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 (i) to exercise commercially reasonable
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 (ii) to make payments to
the Contractor in accordance with the requirements of the Contract
Documents, but subject to the retention provisions of this Agreement
and the other Contract Documents whereby Owner is permitted to withhold
certain amounts from such payments.
ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1.1 The date of commencement is the date from which the Contract Time of
Subparagraph 4.1.2 is measured and shall be the date fixed in a notice
to proceed issued by the Owner to the Contractor.
4.1.2 Substantial Completion of the Work shall be deemed to have occurred
upon the following (i) the Architect has certified that the Work has
been completed in accordance with the Contract Documents, subject to
the completion of punch list items, (ii) a temporary certificate of
occupancy for the Project has been issued by the applicable
governmental authority, and (iii) the Contractor is prepared to issue
and file a Notice of Completion for the Project. As a condition to
obtaining the Architect's certification of Substantial Completion, the
Contractor must submit to the Owner and Architect a request for
Substantial Completion inspection, a list of items to be completed as
of such date (i. e., punch list items) and an estimated time to final
completion of all punch list items. Punch list items shall be deemed to
be only those items which do not affect or impair, in any material way,
the use and occupancy of the Project by the Owner. The Architect and
the Owner's
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Consultants will make only two (2) inspections of the Project, at times
reasonably convenient to all parties, to determine whether Substantial
Completion and/or final completion of such Building has been achieved.
If the Project is determined by the Architect and/or the Owner's
Consultants, with Owner's concurrence therein, not to be finally
complete on the second (2nd) such inspection, then each successive
inspection of such Building by the Architect and/or the Owner's
Consultants (or any of them) will be at the sole cost and expense of
the Contractor, and the Owner shall be permitted to charge to the
Contractor, and offset against amounts otherwise payable to the
Contractor under this Contract, the fees, costs and expenses payable to
the Architect and/or the Owner's Consultants in connection with any
such subsequent inspections. The Contractor shall diligently prosecute
the Work in a good and workmanlike manner and achieve Substantial
Completion on or before July 16, 2004 (the "Contract Time"), subject to
adjustments of this Contract Time as provided in the Contract
Documents. The Contractor agrees that the Schedule is adequate and
agrees to dedicate such personnel and other resources as may be
necessary to assure that the Work is continuously managed and performed
in a diligent, skilled and workmanlike manner.
4.1.3 IT IS AGREED BY THE CONTRACTOR AND OWNER THAT, BECAUSE IT WOULD BE
IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGE TO THE
OWNER SHOULD PROJECT FAIL TO REACH SUBSTANTIAL COMPLETION WITHIN THE
TIME PERIOD SPECIFIED IN SUBPARAGRAPH 4.1.2 ABOVE, THERE SHALL BE
ASSESSED AS LIQUIDATED DAMAGES, BUT NOT AS A PENALTY, THE SUM OF
$12,000 FOR EACH DAY UP TO THIRTY (30) DAYS AND $6,000 FOR EACH DAY
OVER THIRTY (30) DAYS BEYOND THE APPLICABLE CONTRACT TIME UNTIL THE
DATE THAT THE PROJECT HAS REACHED SUBSTANTIAL COMPLETION. THE PAYMENT
OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR
PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO THE OWNER.
CONTRACTOR'S INITIALS: ___________ OWNER'S INITIALS: __________
The Owner may deduct liquidated damages actually incurred from time to time from
any unpaid amounts then or thereafter due to the Contractor under this
Agreement. Any liquidated damages not so deducted from any unpaid amounts due
the Contractor shall be payable to the Owner at the demand of the Owner,
together with interest thereon from the date of demand until paid at the rate of
interest stated in Paragraph 14.2 hereof.
If, prior to commencement of the Work, the Owner requires time to file
mortgages, mechanic's liens and other security interests, the Owner's
time requirement shall be as follows:
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ARTICLE 5 BASIS FOR PAYMENT
5.1 CONTRACT SUM
5.1.1 The Owner shall pay the Contractor the Contract Sum in current
funds for the Contractor's performance of the Contract. The Contract
Sum is the Cost of the Work as defined in Article 7 plus the
Contractor's Fee.
5.1.2 The Contractor's Fee is: 2% of the Cost of the Work.
(State a lump sum, percentage of Cost of the Work or other provision
for determining the Contractor's Fee, and describe the method of
adjustment of the Contractor's Fee for changes in the Work.)
5.2 GUARANTEED MAXIMUM PRICE
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 Guaranteed Maximum
Price agreed on between Owner and Contractor pursuant to Article 2
above, subject to additions and deductions by Change Order as provided
in the Contract Documents. Such maximum sum is referred to in the
Contract Documents as the Guaranteed Maximum Price. Costs which would
cause the Guaranteed Maximum Price to be exceeded shall be paid by the
Contractor without reimbursement by the Owner. To the extent that the
Cost of the Work is less than the Guaranteed Maximum Price, any such
savings shall be shared 75% by Owner and 25% by Contractor.
Notwithstanding the preceding sentence, the Contractor's share of any
such savings shall be increased by 2-1/2% for each complete week that
Substantial Completion of the Work is achieved in advance of the date
for Substantial Completion of the Work as set forth in the Schedule;
provided that the maximum increase in the Contractor's share of such
savings shall be 10%, in which case the Owner's share shall be 65% and
the Contractor's share shall be 35%.
(Insert specific provisions if the Contractor is to participate in any
savings.)
5.2.2 The Guaranteed Maximum Price is based upon the Drawings and
Specifications developed pursuant to Article 2 above and which will be
described in Exhibit C/D upon completion of the Drawings and
Specifications, and all other Contract Documents. Contractor hereby
represents and warrants that it has participated in the preparation of
the Drawings and Specifications, the Schedule and the Budget as
developed pursuant to Article II and upon completion attached as
Exhibit B/E, as defined below, that it has had sufficient time to
review all of such items, that it has substantial experience in
performing projects with scopes of work similar to the Work defined
herein, and has intensively reviewed the Contract Documents and has
found such Contract Documents to be sufficiently complete to (a)
apprise the Contractor of the character, nature, scope and extent of
and standards for the Project, the time required to complete the Work
and the quality of the Work, and (b) permit the Contractor to satisfy
itself that the total of the Cost of the Work plus the Contractor's Fee
will not exceed the Guaranteed Maximum
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Price. Contractor also represents and warrants that it has (i) visited
and inspected the Project site and become familiar with local
conditions that may in any manner affect the cost, progress or
performance of the Work, (ii) become familiar with all Federal, State
and local laws, ordinances, rules and regulations that may in any
manner affect the cost, progress or performance of the Work, (iii)
become familiar with the anticipated labor supply and costs, (iv)
become familiar with local utility company standards and policies, and
(v) studied and carefully correlated all of the Contractor's foregoing
observations with the Contract Documents.
5.2.4 Allowances, if any, are as follows:
(Identify and state the amounts of any allowances, and state whether
they include labor, materials, or both.)
ARTICLE 6 CHANGES IN THE WORK
6.1 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 AIA Document A201-1997.
6.2 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 AIA
Document A201-1997 and the terms "costs" and "a reasonable allowance
for overhead and profit" as used in Subparagraph 7.3.6 of AIA Document
A201-1997 shall have the meanings assigned to them in AIA Document
A201-1997 and shall not be modified by Articles 5,7 and 8 of this
Agreement. Adjustments to subcontracts awarded with the Owner's prior
consent on the basis of cost plus a fee shall be calculated in
accordance with the terms of those subcontracts.
6.3 In calculating adjustments to the Guaranteed Maximum Price,
the terms "cost" and "costs" as used in the above-referenced provisions
of AIA Document A201-1997 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 Subparagraph 5.1.2 of this Agreement.
6.4 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, and the Guaranteed Maximum Price shall be adjusted
accordingly.
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6.5 The Contractor shall furnish such employees, materials, facilities and
equipment and shall Work such hours, including extra shifts, overtime
operations and Sundays and holidays as may be necessary to ensure the
prosecution and completion of the Work in accordance with the agreed
upon Schedule as developed pursuant to Article II and upon completion
attached as Exhibit B. If Work is not being performed in accordance
with the Schedule and any element of the Work that is a critical path
item is more than fifteen (15) days behind the Schedule, or it becomes
apparent from the Schedule that the Work shall not be completed within
the Contract Time, subject in each instance to any extension pursuant
to Section 8.3 of the General Conditions, the Contractor agrees that
it shall, as necessary to improve its progress, take some or all of the
following actions, at no additional cost to the Owner.
6.5.1 Increase the number of employees in such crafts as shall
regain lost Schedule progress; and
6.5.2 Increase the number of Working hours per shift, shifts per
Working day, Working days per week, the amount of equipment or
any combination of the foregoing to regain lost Schedule
progress.
6.6 In addition, the Architect or the Owner's Consultants may require the
Contractor to prepare and submit a recovery Schedule demonstrating
the Contractor's program and proposed Plan to regain lost Schedule
progress and to ensure completion of the Work within the time period
provided in the Schedule. If the Architect and/or the Owner's
Consultants find the proposed plan not acceptable, the Architect and/or
the Owner's Consultants may require the Contractor to submit a new
Plan. If the actions taken by the Contractor or the second proposed
Plan are not satisfactory, the Architect and/or the Owner's Consultants
may require the Contractor to take any of the actions set forth in
Paragraph 6.5 without additional cost to the Owner.
6.7 Failure of the Contractor to substantially comply with the requirements
of Paragraphs 6.5 and 6.6 may be considered grounds for a termination
by the Owner, pursuant to Paragraph 14.4 of the General Conditions,
that the Contractor is failing to prosecute the Work with such
diligence as to ensure its completion within the time specified.
ARTICLE 7 COSTS TO BE REIMBURSED
7.1 COST OF THE WORK
The term Cost of the Work shall mean costs necessarily incurred by the
Contractor in the proper performance of the Work. Such costs shall be
at rates not higher than the standard paid at the place of the Project
except with prior consent of the Owner. The Cost of the Work shall
include only the items set forth in this Article 7.
7.2 LABOR COSTS
7.2.1 Wages of construction workers directly employed by the
Contractor to perform the construction of the Work at the site or, with
the Owner's approval, at off-site workshops.
7.2.2 Wages of construction workers directly employed by the Contractor to
perform the construction of the Work at the site. Attached hereto as Exhibit F
is a list of the unit wage
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rates for all categories of workers that are reasonably anticipated to be
employed by Contractor in connection with the Project. Such unit wages shall not
be changed except as required as a result of changes in applicable union wage
rates and then only to the extent approved by Owner, which approval shall not be
unreasonably withheld.
7.2.3 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.
7.2.4 Costs paid or incurred by the Contractor for taxes, insurance,
contributions, assessments and benefits required by law or collective
bargaining agreements and, for personnel not covered by such
agreements, customary benefits such as sick leave, medical and health
benefits, holidays, vacations and pensions, provided such costs are
based on wages and salaries included in the Cost of the Work under
Subparagraphs 7.2.1 through 7.2.3.
7.2.5 Wages or salaries of the Contractors supervising and
administrative personnel when stationed at the site and wages and
salaries of personnel performing project management, estimating,
preconstruction services, scheduling, manpower planning, data
processing, coordinating with core/shell team, whether performed at the
site or elsewhere but only to the extent of the actual time required
for such work.
7.3 SUBCONTRACT COSTS
7.3.1 Payments made by the Contractor to Subcontractors in
accordance with the requirements of the subcontracts.
7.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED
CONSTRUCTION
7.4.1 Costs, including transportation and storage, of materials and
equipment incorporated or to be incorporated in the completed
construction.
7.4.2 Costs of materials described in the preceding Subparagraph
7.4.1 in excess of those actually installed to allow for reasonable
waste and spoilage. Unused excess materials, if any, shall become the
Owner's property at the completion of the Work or, at the Owner's
option, shall be sold by the Contractor. Any amounts realized from such
sales shall be credited to the Owner as a deduction from the Cost of
the Work.
7.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND
RELATED ITEMS
7.5.1 Costs, including transportation and storage, installation,
maintenance, dismantling and removal of materials, supplies, temporary
facilities, machinery, equipment, and hand tools not customarily owned
by construction workers, that are provided by the Contractor at the
site and fully consumed in the performance of the Work; and cost (less
salvage value) of such items if not fully consumed, whether sold to
others or retained by the Contractor. Cost for items previously used by
the Contractor shall mean fair market value.
7.5.2 Rental charges for temporary facilities, machinery, equipment,
and hand tools not customarily owned by construction workers that 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.
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7.5.3 Costs of removal of debris from the site.
7.5.4 Costs of document reproductions, facsimile transmissions and
long-distance telephone calls, postage and parcel delivery charges,
telephone service at the site and reasonable xxxxx cash expenses of the
site office.
7.5.5 That portion of the reasonable expenses of the Contractor's
personnel incurred while traveling in discharge of duties connected
with the Work.
7.5.6 Costs of materials and equipment suitably stored off the site
at a mutually acceptable location, if approved in advance by the Owner.
7.6 MISCELLANEOUS COSTS
7.6.1 That portion of insurance and bond premiums that can be
directly attributed to this Contract:
7.6.2 Sales, use or similar taxes imposed by a governmental
authority that are related to the Work.
7.6.3 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.
7.6.4 Fees of 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 AIA Document
A201-1997 or other provisions of the Contract Documents, and which do
not fall within the scope of Subparagraph 7.7.3.
7.6.5
7.6.6 Data processing costs related to the Work.
7.6.7 Deposits lost for causes other than the Contractor's
negligence or failure to fulfill a specific responsibility to the Owner
as set forth in the Contract Documents.
7.6.8 Legal, mediation and arbitration costs, including attorneys'
fees, other than those arising from disputes between the Owner and
Contractor, reasonably incurred by the Contractor in the performance of
the Work and with the Owner's prior written approval; which approval
shall not be unreasonably withheld.
7.6.9 Expenses incurred in accordance with the Contractor's standard
personnel policy for relocation and temporary living allowances of
personnel required for the Work, if approved by the Owner.
7.7 OTHER COSTS AND EMERGENCIES
7.7.1 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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7.7.2 Costs due to emergencies incurred 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 10.6 of AIA
Document A201-1997.
7.7.3 Costs of repairing or correcting damaged or nonconforming Work
executed by the Contractor, Subcontractors or suppliers, provided that
such damaged or nonconforming Work was not caused by negligence or
failure to fulfill a specific responsibility of the Contractor and only
to the extent that the cost of repair or correction is not recoverable
by the Contractor from insurance, sureties, Subcontractors or
suppliers.
ARTICLE 8 COSTS NOT TO BE REIMBURSED
8.1 The Cost of the Work shall not include:
8.1.1 Salaries and other compensation of the Contractor's personnel
stationed at the Contractor's principal office or offices other than
the site office, except as specifically provided in Subparagraphs 7.2.2
and 7.2.3 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 Subparagraph 7.5.2.
8.1.6 Except as provided in Subparagraph 7.7.3 of this Agreement, costs
due to the negligence or failure to fulfill a specific responsibility
of the Contractor, Subcontractors and suppliers or anyone directly or
indirectly employed by any of them or for whose acts any of them may
be liable.
8.1.7 Any cost not specifically and expressly described in Article 7.
8.1.8 Costs, other than costs included in Change Orders approved by the
Owner,that would cause the Guaranteed Maximum Price to be exceeded.
8.1.9 The cost of bonds of Subcontractors or
Sub-subcontractors, except (i) in instances where
Owner specifically approves such bonds for a
particular Subcontractor or Sub-subcontractor, or
(ii) when the Owner requires such bonds or the same
are required by a governmental agency with
jurisdiction over the Project. Owner shall be deemed
to have approved a bond for a particular
Subcontractor or Sub-subcontractor, if such
Subcontractor or Sub-subcontractor is on a list of
subcontractors pre-approved by Owner and the bid of
such Subcontractor or Sub-subcontractor, inclusive of
the proposed bond, is the low bid for the particular
aspect of the Work in question.
8.1.10 All direct and indirect costs of any nature from or
attributable to either delays, disruptions or
interferences, excepting only those costs which are
expressly identified and permitted in accordance with
Article 8 of the
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General Conditions.
8.1.11 All costs incurred by Contractor for bonuses, stock
options, profit sharing arrangements and similar
incentive programs, except as otherwise specifically
approved by the Owner and included in the wage rates
attached as Exhibit F.
8.1.12 All direct and indirect costs of any nature resulting
from or attributable to concealed conditions, except
for those costs which are expressly identified and
permitted in accordance with Subparagraph 4.3.6 of
the General Conditions.
8.1.13 All costs of non-Project related permits, licenses,
fees and union dues, required by any local, state or
federal governmental authorities or labor agreements
to enable the Contractor, its Subcontractor or
Sub-subcontractors of any tier to be qualified to do
business and/or perform trade activities at the
Project site.
8.1.14 Costs that would cause the Guaranteed Maximum Price
to be exceeded, except costs for changes in the work
as provided in Article 7 of the General Conditions
and costs included in the claims and disputes upon
which Contractor ultimately prevails in accordance
with Article 4.3 of the General Conditions.
ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS
9.1 Cash discounts obtained on payments made by the Contractor shall
accrue to the Owner if (i) before making the payment, the Contractor
included them in an Application for Payment and received payment
therefor from the Owner, or (2) the Owner has deposited funds with the
Contractor with which to make payments; otherwise, cash discounts shall
accrue to the Contractor. Trade discounts, rebates, refunds and amounts
received from sales of surplus materials and equipment shall accrue to
the Owner, and the Contractor shall make provisions so that they can be
secured.
9.2 Amounts that accrue to the Owner in accordance with the provisions
of Paragraph 9.1 shall be credited to the Owner as a deduction from the
Cost of the Work.
ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Contractor does not customarily
perform with the Contractor's own personnel shall be performed under
subcontracts or by other appropriate agreements with the Contractor.
All Subcontracts, including, without limitation, purchase orders shall
be awarded on the basis of competitive bids submitted by prospective
Subcontractors according to the following procedure:
10.1.1 Contractor shall invite bids from proposed Subcontractors on a
timely basis so as to meet the requirements of the Schedule.
Contractor shall notify Architect, Owner's Consultants and
Owner of the schedule for requesting bids. Upon receiving such
bids, Owner and Contractor shall jointly open such bids.
Contractor shall then analyze all such bids and
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make recommendations to Owner for awards, accompanying its
recommendation with all pertinent data, (including information
concerning the three best bids for the particular trade or
material) required for decision upon the award, and certifying
that, to the best of its knowledge, the bid of the recommended
proposed Subcontractor is bona fide, fair and reasonable. If
the bids submitted by the Contractor for any trade or portion
of the Work all exceed the budgeted line item therefor in the
Project budget, the Owner may request, and upon such request
the Contractor shall obtain, additional bids. The Owner may
designate specific persons or entities from whom the
Contractor shall obtain bids; however, 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.
10.1.2 Failure of Owner to respond to Contractor's recommendation
with respect to a particular proposed Subcontractor within
fifteen (15) days from the date of Owner's receipt thereof
shall constitute rejection of such proposed Subcontractor by
Owner.
10.1.3 When Owner has determined the award to any proposed
Subcontractor, Contractor shall Contract solely in its own
name and behalf and not in the name or behalf of Owner with
the specified Subcontractor.
10.1.4 Contractor shall not make any substitution for any
Subcontractor or person or organization who has been approved
by Owner unless the substitution is approved by Owner, or
unless Subcontractor is guilty of a material breach of its
Subcontract. No increase in the Guaranteed Maximum Cost will
be granted for any such Contractor-instituted substitution.
10.1.6 Owner's acceptance of any Subcontractors pursuant to Paragraph
5.2 does not constitute a guarantee or warranty of the
Subcontractor or its ability to conduct its portion of the
Work.
10.2 Contractor shall furnish to Owner, from time to time, upon five (5)
days prior written request: (1) a current list of all Subcontractors
containing such information as Owner may request and (2) true and
correct copies of all executed Subcontracts.
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 Owner may
designate specific persons or entities from whom the Contractor shall
obtain bids. The Contractor shall obtain bids from Subcontractors and from
suppliers of materials or equipment fabricated especially for the Work and
shall deliver such bids to the Architect. The Owner shall then determine,
with the advice of the Contractor and the Architect, which bids will be
accepted. The Contractor shall not be required to contract with anyone to
whom the Contractor has reasonable objection.
10.2 If a specific bidder among those whose bids are delivered by the
Contractor to the Architect (1) is recommended to the Owner by the
Contractor; (2) is qualified to perform that portion of the Work; and (3)
has submitted a bid that conforms to the requirements of the Contract
Documents without reservations or exceptions, but the Owner requires that
another bid be accepted, then the Contractor may require that a Change
Order be issued to adjust the
12
Guaranteed Maximum Price by the difference between the bid of the
person or entity recommended to the Owner by the Contractor and the
amount of the subcontract or other agreement actually signed with the
person or entity designated by the Owner.
10.3 Subcontracts or other agreements shall conform to the
applicable payment provisions of this Agreement, and shall not be
awarded on the basis of cost plus a fee without the prior consent of
the Owner.
ARTICLE 11 ACCOUNTING RECORDS
The Contractor shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this
Contract, and the accounting and control systems shall be satisfactory
to the Owner. The Owner and the Owner's accountants shall be afforded
access to, and shall be permitted to audit and copy, the Contractor's
records, books, correspondence, instructions, drawings, receipts,
subcontracts, purchase orders, vouchers, memoranda and other data
relating to this Contract, and the Contractor shall preserve these for
a period of three years after final payment, or for such longer period
as may be required by law. All subcontracts shall contain provisions
substantially similar to the provisions of this Article 11 and shall
allow Owner the right to audit the applicable books and records of such
subcontractors.
ARTICLE 12 PAYMENTS
12.1 PROGRESS PAYMENTS
12.1.1 Based upon Applications for Payment submitted to the Architect
by the Contractor and Certificates for Payment issued by the Architect,
the Owner shall make progress payments on account of the Contract Sum
to the Contractor as provided below and elsewhere in the Contract
Documents.
12.1.2 The period covered by each Application for Payment shall be
one calendar month ending on the last day of the month, or as follows:
12.1.3 Provided that an Application for Payment is received by the
Architect not later than the 25th day of a month, the Owner shall make
payment to the Contractor not later than the 10th day of the following
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 fifteen (15) days after the Architect receives the
Application for Payment.
12.1.4 With each Application for Payment, the Contractor shall submit
(a) a statement of the percentage of completion of the Work and each
trade then in progress correlated with the Contractor's Schedule of
Values, (b) duly executed conditional lien releases and waivers (in the
form required under Washington law) from Contractor. The Contractor
conditionally waives all lien and stop notice rights against the Owner,
the Project and the Project site with respect to all payments to be
made in the Application for Payment being submitted, (c) duly executed
unconditional lien releases and waivers (in the form required under
Washington law) from Contractor. The Contractor unconditionally and
irrevocably waives all lien and stop notice rights against the Owner,
the Project and the Project site with respect to all payments made
pursuant to all previous Applications for Payment.
13
12.1.5 Each Application for Payment shall be based on 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 based on the final agreed Guaranteed
Maximum Price amount. This schedule shall be used as a basis for
reviewing the Contractor's Applications for Payment.
12.1.6 The Application for Payment shall constitute a representation
by the Contractor to the Owner that, to the best of the Contractor's
knowledge information and belief, the design and construction have
progressed to the point indicated; the quality of the Work covered by
the application is in accordance with the Contract Documents; and the
Contractor is entitled to payment in the amount requested.
12.1.7 The Contractor shall pay each contractor, upon receipt of
payment from the Owner, out of the amount paid to the Contractor on
account of such contractor's work, the amount to which said contractor
is entitled in accordance with the terms of the Contractor's contract
with such contractor. The Contractor shall, by appropriate agreement
with each contractor, require each contractor to make payments to
subcontractors in similar manner.
12.1.8 The Owner shall have no obligation to pay or to be responsible
in any way for payment to a contractor of the Contractor except as may
otherwise be required by law.
12.1.9 The Contractor warrants that: (1) title to Work, materials and
equipment covered by an Application for Payment will pass to the Owner
either by incorporation in construction or upon receipt of payment by
the Contractor, whichever occurs first; (2) Work, materials and
equipment covered by previous Applications for Payment are free and
clear of liens, claims, security interests or encumbrances, hereinafter
referred to as "liens;" and (3) no Work, materials and equipment
covered by an Applications for Payment will have been acquired by the
Contractor, or any other person performing work at the site or
furnishing materials or equipment for the Project, subject to an
agreement under which an interest therein or an encumbrance thereon is
retained by the seller or otherwise imposed by the Contractor or such
other person.
12.1.10 Payment shall be sent to:
BNBuilders, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
14
12.1.12 Subject to other provisions of the Contract Documents, the
amount of each progress payment shall be computed as follows:
.1 take that portion of the Guaranteed Maximum Price
properly allocable to completed Work as determined by
multiplying the percentage of 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 shall be included as
provided in Subparagraph 7.3.8 of AIA Document
A201-1997;
.2 add that portion of the Guaranteed Maximum Price
properly allocable to materials and equipment
delivered and suitably stored at the site for
subsequent incorporation in the Work, or if approved
in advance by the Owner, suitably stored off the site
at a location agreed upon in writing;
.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
Subparagraph 5.1.2 or, if the Contractor's Fee is
stated as a fixed sum in that Subparagraph, shall be
an amount that 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;
.4 subtract the aggregate of previous payments made by
the Owner;
.5 subtract the shortfall, if any, indicated by the
Contractor in the documentation required by Paragraph
12.1.4 to substantiate prior Applications for
Payment, or resulting from errors subsequently
discovered by the Owner's accountants in such
documentation; and
.6 subtract amounts, if any, for which the Architect has
withheld or nullified a Certificate for Payment as
provided in Paragraph 9.5 of AIA Document A201-1997.
12.1.13 Except with the Owner's prior approval, payments to
Subcontractors shall be subject to retainage of not less than ten
percent (10%). The Owner and the Contractor shall agree upon a
mutually acceptable procedure for review and approval of payments and
retention for Subcontractors. Subject to Owner approval, Contractor may
request and receive an early retention release in instances where (i)
further retention is not warranted, (ii) applicable work has been
accepted by Owner, Architect and any applicable governmental authority,
and (iii) Owner has received evidence of full payment to applicable
Subcontractors (or such full payment shall occur with such release) and
all applicable mechanic's lien waivers.
12.1.14 In taking action on the Contractor's Applications for Payment,
the Architect shall be entitled to rely on the accuracy and
completeness of the information furnished by the Contractor and shall
not be deemed to represent that the Architect has made a detailed
examination, audit or arithmetic verification of the documentation
submitted in accordance with Subparagraph 12.1.4 or other supporting
data; that the Architect has made exhaustive or continuous on-site
inspections or that the Architect has made examinations to ascertain
how or for what purposes the Contractor has used amounts previously
paid on account of the Contract. Such examinations, audits and
verifications, if required by the Owner, will be performed by the
Owner's accountants acting in the sole interest of the Owner.
12.1.15 Owner may at any time elect to issue one or more checks which are
payable jointly to Contractor and its Subcontractors of any tier. This right
includes, but is not
15
limited to, issuing jointly payable checks in circumstances where a dispute
exists between Owner and the Contractor with respect to the value of any
partially or fully completed Work, including disputed claims for Change Orders,
and circumstances where the Contractor has failed to provide lien release/waiver
documents as required herein. Any such checks shall be forwarded to the
Contractor for further handling.
12.2 FINAL PAYMENT
12.2.1 Final payment, constituting the entire unpaid balance of the
Contract Sum, shall be made by the Owner to the Contractor when:
.1 the Contractor has fully performed the Contract
except for the Contractor's responsibility to correct
Work as provided in Subparagraph 12.2.2 of AIA
Document A201-1997, and to satisfy other
requirements, if any, which extend beyond final
payment; and
.2 a final Certificate for Payment has been issued by
the Architect.
.3 Neither final payment nor amounts retained, if any,
shall become due until the Contractor submits to the
Owner (1) an affidavit that payrolls, bills for
materials and equipment, and other indebtedness
connected with the Project for which the Owner or
Owner's property might be liable have been paid or
otherwise satisfied, (2) consent of surety, if any,
to final payment, (3) a certificate that insurance
required by the Contract Documents is in force
following completion of the Work, and (4) if required
by the Owner, other data establishing payment or
satisfaction of obligations, such as receipts,
releases and waivers of liens, to the extent and in
such form as may be designated by the Owner. If a
contractor 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
reimburse the Owner for moneys the latter may be
compelled to pay in discharging such lien, including
all costs and reasonable attorney's fees.
12.2.2 Final payment constituting the entire unpaid balance due shall
be paid by the Owner to the Contractor within after the Owner's receipt
of the Contractor's final Application for Payment when the Work has
been completed and the Contract fully performed except for those
responsibilities of the Contractor which survive final payment and the
receipt of the Architect's Final Certificate for Payment.
12.2.3 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 Subparagraph 12.2.1 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 AIA Document A201-1997. The
16
time periods stated in this Subparagraph 12.2.3 supersede those
stated in Subparagraph 9.4.1 of the AIA Document A201-1997.
12.2.4 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.
12.2.5 Notwithstanding any other provision of this Article 12. Owner
may retain and withhold from any final payment an amount equal to up
to 150% of (a) the value of any defective or nonconforming work, (b)
the cost to complete all punch list items as determined by the
Architect, and (c) any other disputed amounts.
With the final Application for Payment, and as a condition to final
payment, the Contractor shall submit, in addition to the items required
pursuant to Paragraph 12.4 above and other provisions of the Contract
Documents (a) all maintenance and operating manuals, keys, spare parts,
extra stock and special tools required by the Contract Documents, (b)
two (2) sets of as-built drawings showing the Work as completed and
reflecting the location of concealed utilities, mechanical or
electrical systems and components, (c) all guarantees and warranties
given in connection with the Work (including all guarantees and
warranties required by the Contract Documents), (d) assignments of
all guarantees and warranties of all Subcontractors and
Sub-subcontractors, (e) evidence of compliance of the Work with any and
all requirements of all applicable governmental authorities, (f) a list
of all Subcontractors and Sub-subcontractors of every tier providing
services and/or materials in connection with the Project, in a formal,
adequately bound, cataloged form, which shall include the names,
addresses, telephone numbers and fax numbers of such persons, and shall
further include notices as to where pertinent persons can and may be
reached for emergency service, and (g) such other information and
documentation as the Owner may request in its reasonable discretion.
Final payment shall not relieve Contractor or any Subcontractors or
Sub-subcontractors of their respective warranty obligations.
12.2.6 If, subsequent to final payment and at the Owner's request,
the Contractor incurs costs described in Article 13 of the General
Conditions 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.
ARTICLE 13 TERMINATION OR SUSPENSION
13.1 The Contract may be terminated by the Contractor, or by the
Owner for convenience, as provided in Article 14 of AIA Document
A201-1997. However, the amount to be paid to the
17
Contractor under Subparagraph 14.1.3 of AIA Document A201-1997 shall
not exceed the amount the Contractor would be entitled to receive under
Paragraph 13.2 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.
13.2 The Contract may be terminated by the Owner for cause as
provided in Article 14 of AIA Document A201-1997. The amount, if any,
to be paid to the Contractor under Subparagraph 14.2.4 of AIA Document
A201-1997 shall not cause the Guaranteed Maximum Price to be exceeded,
nor shall it exceed an amount calculated as follows:
13.2.1 Take the Cost of the Work incurred by the Contractor to the
date of termination;
13.2.2 Add the Contractor's Fee computed upon the Cost of the Work to
the date of termination at the rate stated in Subparagraph 5.1.2 or, if
the Contractor's Fee is stated as a fixed sum in that Subparagraph, an
amount that 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; and
13.2.3 Subtract the aggregate of previous payments made by the Owner.
13.3 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 that the Owner elects to retain and
that is not otherwise included in the Cost of the Work under
Subparagraph 13.2.1. 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 13, execute and deliver all such
papers and lake 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.
13.4 The Work may be suspended by the Owner as provided in Article
14 of AIA Document A201-1997; in such case, the Guaranteed Maximum
Price and Contract Time shall be increased as provided in Subparagraph
14.3.2 of AIA Document A201-1997 except that the term "profit" shall be
understood to mean the Contractor's Fee as described in Subparagraphs
5.1.2 and Paragraph 6.4 of this Agreement.
ARTICLE 14 MISCELLANEOUS PROVISIONS
14.1 Where reference is made in this Agreement to a provision AIA
Document A201-1997 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 The Owner's representative is:
(Name, address and other in formation.)
14.4 The Contractor's representative is:
(Name, address and other information.)
18
14.5 Neither the Owner's nor the Contractor's representative shall
be changed without ten days' written notice to the other party.
14.6 Other provisions:
ARTICLE 15 ENUMERATION OF CONTRACT DOCUMENTS
15.1 The Contract Documents, except for Modifications issued after
execution of this Agreement, are enumerated as follows:
15.1.1 The Agreement is this executed 1997 edition of the Standard
Form of Agreement Between Owner and Contractor, AIA Document A111-1997.
15.1.2 The General Conditions are the 1997 edition of the General
Conditions of the Contract for Construction, AIA Document A201-1997.
15.1.3 The Schedule attached as EXHIBIT B.
15.1.4 The Drawings listed on EXHIBIT C attached.
15.1.5 The Specifications listed on EXHIBIT D attached.
Portions of Addenda relating to bidding requirements are not part of
the Contract Documents unless the bidding requirements are also
enumerated in this Article 15.
15.1.6 Other Documents, if any, forming part of the Contract
Documents are as follows:
(List here any additional documents, such as a list of alternates that
are intended to form part of the Contract Documents. AIA Document
A201-1997 provides 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 be listed here only if
intended to be part of the Contract Documents. )
ARTICLE 16 INSURANCE AND BONDS
(List required limits of liability for insurance and bonds. AIA
Document A201-1997 gives other specific requirements for insurance and
bonds.)
This Agreement is entered into as of the day and year first written above and is
executed in at least three original copies, of which one is to be delivered to
the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
19
CORIXA CORPORATION BN BUILDERS, INC.
/s/ Xxxxxx Xxxxxx /s/ Xxxx Xxxxxxx
__________________________ ______________________________
OWNER (Signature) CONTRACTOR (Signature)
Xxxxxx Xxxxxx, CEO Xxxx Xxxxxxx, President
___________________________ ______________________________
(Printed name and title) (Printed name and title)
20
1997 EDITION - ELECTRONIC FORMAT
AIA DOCUMENT A201 - 1997
GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
TABLE OF ARTICLES
1. GENERAL PROVISIONS
2. OWNER
3. CONTRACTOR
4. ADMINISTRATION OF THE CONTRACT
5. SUBCONTRACTORS
6. CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
7. CHANGES IN THE WORK
8. TIME
9. PAYMENTS AND COMPLETION
10. PROTECTION OF PERSONS AND PROPERTY
11. INSURANCE AND BONDS
12. UNCOVERING AND CORRECTION OF WORK
13. MISCELLANEOUS PROVISIONS
14. TERMINATION OR SUSPENSION OF THE CONTRACT
INDEX
Acceptance of Nonconforming Work
9.6.6, 9.9.3, 12.3
Acceptance of Work
9.6.6, 9.8.2, 9.9.3, 9.10.1, 9.10.3, 12.3
Access to Work
3.16, 6.2.1, 12.1
Accident Prevention
4.2.3, 10
Acts and Omissions
3.2, 3.3.2, 3.12.8, 3.18, 4.2.3, 4.3.8, 4.4.1, 8.3.1,
9.5.1, 10.2.5, 13.4.2, 13.7, 14.1
Addenda
1.1.1, 3.11
Additional Costs, Claims for
4.3.4, 4.3.5, 4.3.6, 6.1.1, 10.3
Additional Inspections and Testing
9.8.3, 12.2.1, 13.5
Additional Time, Claims for
4.3.4, 4.3.7, 8.3.2
ADMINISTRATION OF THE CONTRACT
3.1.3, 4, 9.4, 9.5
1
Advertisement or Invitation to Bid
1.1.1
Aesthetic Effect
4.2.13, 4.5.1
Allowances
3.8
All-risk Insurance
11.4.1.1
Applications for Payment
4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5,
9.10, 11.1.3, 14.2.4, 14.4.3
Approvals
2.4, 3.1.3, 3.5, 3.10.2, 3.12, 4.2.7, 9.3.2, 13.4.2,
13.5
Arbitration
4.3.3, 4.4, 4.5.1, 4.5.2, 4.6, 8.3.1, 9.7.1, 11.4.9,
11.4.10
Architect
4.1
Architect, Definition of
4.1.1
Architect, Extent of Authority
2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2, 7.3.6,
7.4, 9.2, 9.3.1, 9.4, 9.5, 9.8.3, 9.10.1, 9.10.3, 12.1,
12.2.1, 13.5.1, 13.5.2, 14.2.2, 14.2.4
Architect, Limitations of Authority and Responsibility
2.1.1, 3.3.3, 3.12.4, 3.12.8, 3.12.10, 4.1.2, 4.2.1,
4.2.2, 4.2.3, 4.2.6, 4.2.7, 4.2.10, 4.2.12, 4.2.13,
4.4, 5.2.1, 7.4, 9.4.2, 9.6.4, 9.6.6
Architect's Additional Services and Expenses
2.4, 11.4.1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4
Architect's Administration of the Contract
3.1.3, 4.2, 4.3.4, 4.4, 9.4, 9.5
Architect's Approvals
2.4, 3.1.3, 3.5.1, 3.10.2, 4.2.7
Architect's Authority to Reject Work
3.5.1, 4.2.6, 12.1.2, 12.2.1
Architect's Copyright
1.6
Architect's Decisions
4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1,
4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2,
9.4, 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4
Architect's Inspections
4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 13.5
Architect's Instructions
3.2.3, 3.3.1, 4.2.6, 4.2.7, 4.2.8, 7.4.1, 12.1, 13.5.2
Architect's Interpretations
4.2.11, 4.2.12, 4.3.6
Architect's Project Representative
4.2.10
Architect's Relationship with Contractor
1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2,
3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3,
4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2,
9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3,
11.4.7, 12, 13.4.2, 13.5
Architect's Relationship with Subcontractors
1.1.2, 4.2.3, 4.2.4, 4.2.6, 9.6.3, 9.6.4, 11.4.7
Architect's Representations
9.4.2, 9.5.1, 9.10.1
Architect's Site Visits
4.2.2, 4.2.5, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2,
9.10.1, 13.5
Asbestos
10.3.1
Attorneys' Fees
3.18.1, 9.10.2, 10.3.3
Award of Separate Contracts
6.1.1, 6.1.2
Award of Subcontracts and Other Contracts for Portions of the Work
5.2
Basic Definitions
1.1
Bidding Requirements
1.1.1, 1.1.7, 5.2.1, 11.5.1
Boiler and Machinery Insurance
11.4.2
Bonds, Lien
9.10.2
Bonds, Performance, and Payment
7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5
Building Permit
3.7.1
Capitalization
1.3
Certificate of Substantial Completion
9.8.3, 9.8.4, 9.8.5
Certificates for Payment
4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1,
9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4
Certificates of Inspection, Testing or Approval
13.5.4
Certificates of Insurance
9.10.2, 11.1.3
Change Orders
1.1.1, 2.4.1, 3.4.2, 3.8.2.3, 3.11.1, 3.12.8, 4.2.8,
4.3.4, 4.3.9, 5.2.3, 7.1, 7.2, 7.3, 8.3.1, 9.3.1.1,
9.10.3, 11.4.1.2, 11.4.4, 11.4.9, 12.1.2
Change Orders, Definition of
7.2.1
CHANGES IN THE WORK
3.11, 4.2.8, 7, 8.3.1, 9.3.1.1, 11.4.9
Claim, Definition of
4.3.1
Claims and Disputes
3.2.3, 4.3, 4.4, 4.5, 4.6, 6.1.1, 6.3, 7.3.8, 9.3.3,
9.10.4, 10.3.3
Claims and Timely Assertion of Claims
2
4.6.5
Claims for Additional Cost
3.2.3, 4.3.4, 4.3.5, 4.3.6, 6.1.1, 7.3.8, 10.3.2
Claims for Additional Time
3.2.3, 4.3.4, 4.3.7, 6.1.1, 8.3.2, 10.3.2
Claims for Concealed or Unknown Conditions
4.3.4
Claims for Damages
3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3,
11.1.1, 11.4.5, 11.4.7, 14.1.3, 14.2.4
Claims Subject to Arbitration
4.4.1, 4.5.1, 4.6.1
Cleaning Up
3.15, 6.3
Commencement of Statutory Limitation Period
13.7
Commencement of the Work, Conditions Relating to
2.2.1, 3.2.1, 3.4.1, 3.7.1, 3.10.1, 3.12.6, 4.3.5, 5.2.1,
5.2.3, 6.2.2, 8.1.2, 8.2.2, 8.3.1, 11.1, 11.4.1, 11.4.6,
11.5.1
Commencement of the Work, Definition of
8.1.2
Communications Facilitating Contract Administration
3.9.1, 4.2.4
Completion, Conditions Relating to
1.6.1, 3.4.1, 3.11, 3.15, 4.2.2, 4.2.9, 8.2, 9.4.2, 9.8,
9.9.1, 9.10, 12.2, 13.7, 14.1.2
COMPLETION, PAYMENTS AND
9
Completion, Substantial
4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3,
9.10.4.2, 12.2, 13.7
Compliance with Laws
1.6.1, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8,
4.6.4, 4.6.6, 9.6.4, 10.2.2, 11.1, 11.4, 13.1, 13.4,
13.5.1, 13.5.2, 13.6, 14.1.1, 14.2.1.3
Concealed or Unknown Conditions
4.3.4, 8.3.1, 10.3
Conditions of the Contract
1.1.1, 1.1.7, 6.1.1, 6.1.4
Consent, Written
1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2,
9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2
CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
1.1.4, 6
Construction Change Directive, Definition of
7.3.1
Construction Change Directives
1.1.1, 3.12.8, 4.2.8, 4.3.9, 7.1, 7.3, 9.3.1.1
Construction Schedules, Contractor's
1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3
Contingent Assignment of Subcontracts
5.4, 14.2.2.2
Continuing Contract Performance
4.3.3
Contract, Definition of
1.1.2
CONTRACT, TERMINATION OR SUSPENSION OF THE
5.4.1.1, 11.4.9, 14
Contract Administration
3.1.3, 4, 9.4, 9.5
Contract Award and Execution, Conditions Relating to
3.7.1, 3.10, 5.2, 6.1, 11.1.3, 11.4.6, 11.5.1
Contract Documents, The
1.1, 1.2
Contract Documents, Copies Furnished and Use of
1.6, 2.2.5, 5.3
Contract Documents, Definition of
1.1.1
Contract Sum
3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, 9.1,
9.4.2, 9.5.1.4, 9.6.7, 9.7, 10.3.2, 11.4.1, 14.2.4,
14.3.2
Contract Sum, Definition of
9.1
Contract Time
4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4, 8.1.1,
8.2, 8.3.1, 9.5.1, 9.7, 10.3.2, 12.1.1, 14.3.2
Contract Time, Definition of
8.1.1
CONTRACTOR
3
Contractor, Definition of
3.1, 6.1.2
Contractor's Construction Schedules
1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3
Contractor's Employees
3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2,
10, 3, 11.1.1, 11.4.7, 14.1, 14.2.1.1,
Contractor's Liability Insurance
11.1
Contractor's Relationship with Separate Contractors and Owner's Forces
3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2, 12.2.4
Contractor's Relationship with Subcontractors
1.2.2, 3.3.2, 3.18.1, 3.18.2, 5, 9.6.2, 9.6.7, 9.10.2,
11.4.1.2, 11.4.7, 11.4.8
Contractor's Relationship with the Architect
1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2,
3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3,
4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3,
9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3,
3
11.4.7, 12, 13.4.2, 13.5
Contractor's Representations
1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.8.2
Contractor's Responsibility for Those Performing the Work
3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5.1,
10
Contractor's Review of Contract Documents
1.5.2, 3.2, 3.7.3
Contractor's Right to Stop the Work
9.7
Contractor's Right to Terminate the Contract
4.3.10, 14.1
Contractor's Submittals
3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3,
9.8.2, 9.8.3, 9.9.1, 9.10.2, 9.10.3, 11.1.3, 11.5.2
Contractor's Superintendent
3.9, 10.2.6
Contractor's Supervision and Construction Procedures
1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3,
6.2.4, 7.1.3, 7.3.4, 7.3.6, 8.2, 10, 12, 14
Contractual Liability Insurance
11.1.1.8, 11.2, 11.3
Coordination and Correlation
1.2, 1.5.2, 3.3.1, 3.10, 3.12.6, 6.1.3, 6.2.1
Copies Furnished of Drawings and Specifications
1.6, 2.2.5, 3.11
Copyrights
1.6, 3.17
Correction of Work
2.3, 2.4, 3.7.4, 4.2.1, 9.4.2, 9.8.2, 9.8.3, 9.9.1,
12.1.2, 12.2, 13.7.1.3
Correlation and Intent of the Contract Documents
1.2
Cost, Definition of
7.3.6
Costs
2.4, 3.2.3, 3.7.4, 3.8.2, 3.15.2, 4.3, 5.4.2, 6.1.1,
6.2.3, 7.3.3.3, 7.3.6, 7.3.7, 7.3.8, 9.10.2, 10.3.2,
10.5, 11.3, 11.4, 12.1, 12.2.1, 12.2.4, 13.5, 14
Cutting and Patching
6.2.5, 3.14
Damage to Construction of Owner or Separate Contractors
3.14.2, 6.2.4, 9.2.1.5, 10.2.1.2, 10.2.5, 10.6, 11.1,
11.4, 12.2.4
Damage to the Work
3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.6, 11.4, 12.2.4
Damages, Claims for
3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3,
11.1.1, 11.4.5, 11.4.7, 14.1.3, 14.2.4
Damages for Delay
6.1.1, 8.3.3, 9.5.1.6, 9.7, 10.3.2
Date of Commencement of the Work, Definition of
8.1.2
Date of Substantial Completion, Definition of
8.1.3
Day, Definition of
8.1.4
Decisions of the Architect
4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1,
4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2,
9.4, 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4
Decisions to Withhold Certification
9.4.1, 9.5, 9.7, 14.1.1.3
Defective or Nonconforming Work, Acceptance, Rejection and Correction of
2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.5.2, 9.6.6,
9.8.2, 9.9.3, 9.10.4, 12.2.1, 137.1.3
Defective Work, Definition of
3.5.1
Definitions
1.1, 2.1.1, 3.1, 3.5.1, 3.12.1, 3.12.2, 3.12.3, 4.1.1,
4.3.1, 5.1, 6.1.2, 7.2.1, 7.3.1, 7.3.6, 8.1, 9.1, 9.8.1
Delays and Extensions of Time
3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1,
7.4.1, 7.5.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2
Disputes
4.1.4, 4.3, 4.4, 4.5, 4.6, 6.3, 7.3.8
Documents and Samples at the Site
3.11
Drawings, Definition of
1.1.5
Drawings and Specifications, Use and Ownership of
1.1.1, 1.3, 2.2.5, 3.11, 5.3
Effective Date of Insurance
8.2.2, 11.1.2
Emergencies
4.3.5, 10.6, 14.1.1.2
Employees, Contractor's
3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2,
10.3, 11.1.1, 11.4.7, 14.1, 14.2.1.1
Equipment, Labor, Materials and
1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13,
3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3,
9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2
Execution and Progress of the Work
1.1.3, 1.2.1, 1.2.2, 2.2.3, 2.2.5, 3.1, 3.3, 3.4, 3.5,
3.7, 3.10, 3.12, 3.14, 4.2.2, 4.2.3, 4.3.3, 6.2.2, 7.1.3,
7.3.4, 8.2, 9.5, 9.9.1, 10.2, 10.3, 12.2, 14.2, 14.3
Extensions of Time
3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3,
7.4.1, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2
Failure of Payment
4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6
Faulty Work
4
(See Defective or Nonconforming Work)
Final Completion and Final Payment
4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1,
11.4.5, 12.3.1, 13.7, 14.2.4, 14.4.3
Financial Arrangements, Owner's
2.2.1, 13.2.2, 14.1.1.5
Fire and Extended Coverage Insurance
11.4
GENERAL PROVISIONS
1
Governing Law
13.1
Guarantees (See Warranty)
Hazardous Materials
10.2.4, 10.3, 10.5
Identification of Contract Documents
1.5.1
Identification of Subcontractors and Suppliers
5.2.1
Indemnification
3.17, 3.18, 9.10.2, 10.3.3, 10.5, 11.4.1.2, 11.4.7
Information and Services Required of the Owner
2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3,
6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3,
11.2, 11.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4
Injury or Damage to Person or Property
4.3.8, 10.2, 10.6
Inspections
3.1.3, 3.3.3, 3.7.1, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.2,
9.8.3, 9.9.2, 9.10.1, 12.2.1, 13.5
Instructions to Bidders
1.1.1
Instructions to the Contractor
3.2.3, 3.3.1, 3.8.1, 4.2.8, 5.2.1, 7, 12, 8.2.2, 13.5.2
Insurance
3.18.1, 6.1.1, 7.3.6, 8.2.1, 9.3.2, 9.8.4, 9.9.1,
9.10.2, 9.10.5, 11
Insurance, Boiler and Machinery
11.4.2
Insurance, Contractor's Liability
11.1
Insurance, Effective Date of
8.2.2, 11.1.2
Insurance, Loss of Use
11.4.3
Insurance, Owner's Liability
11.2
Insurance, Project Management Protective Liability
11.3
Insurance, Property
10.2.5, 11.4
Insurance, Stored Materials
9.3.2, 11.4.1.4
INSURANCE AND BONDS
11
Insurance Companies, Consent to Partial Occupancy
9.9.1, 11.4.1.5
Insurance Companies, Settlement with
11.4.10
Intent of the Contract Documents
1.2.1, 4.2.7, 4.2.12, 4.2.13, 7.4
Interest
13.6
Interpretation
1.2.3, 1.4, 4.1.1, 4.3.1, 5.1, 6.1.2, 8.1.4
Interpretations, Written
4.2.11, 4.2.12, 4.3.6
Joinder and Consolidation of Claims Required
4.6.4
Judgment on Final Award
4.6.6
Labor and Materials, Equipment
1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13,
3.15.1, 42.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3,
9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2
Labor Disputes
8.3.1
Laws and Regulations
1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6,
9.6.4, 9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1,
13.5.2, 13.6, 14
Liens
2.1.2, 4.4.8, 8.2.2, 9.3.3, 9.10
Limitation on Consolidation or Joinder
4.6.4
Limitations, Statutes of
4.6.3, 12.2.6, 13.7
Limitations of Liability
2.3, 3.2.1, 3.5.1, 3.7.3, 3.12.8, 3.12.10, 3.17,
3.18, 4.2.6, 4.2.7, 4.2.12, 6.2.2, 9.4.2, 9.6.4, 9.6.7,
9.10.4, 10.3.3, 10.2.5, 11.1.2, 11.2.1, 11.4.7, 12.2.5,
13.4.2
Limitations of Time
2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1,
4.2.7, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4,
8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9,
9.10, 11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5, 13.7, 14
Loss of Use Insurance
11.4.3
Material Suppliers
1.6, 3.12.1, 4.2.4, 4.2.6, 5.2.1, 9.3, 9.4.2, 9.6, 9.10.5
Materials, Hazardous
10.2.4, 10.3, 10.5
Materials, Labor, Equipment and
1.1.3, 1.1.6, 1.6.1, 3.4, 3.5.1, 3.8.2, 3.8.23, 3.12,
3.13,
5
3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2,
9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2
Means, Methods, Techniques,Sequences and Procedures of Construction
3.3.1, 3.12.10, 4.2.2, 4.2.7, 9.4.2
Mechanic's Lien
4.4.8
Mediation
4.4.1, 4.4.5, 4.4.6, 4.4.8, 4.5, 4.6.1, 4.6.2, 8.3.1,
10.5
Minor Changes in the Work
1.1.1, 3.12.8, 4.2.8, 4.3.6, 7.1, 7.4
MISCELLANEOUS PROVISIONS
13
Modifications, Definition of
1.1.1
Modifications to the Contract
1.1.1, 1.1.2, 3.7.3, 3.11, 4.1.2, 4.2.1, 5.2.3, 7, 8.3.1,
9.7, 10.3.2, 11.4.1
Mutual Responsibility
6.2
Nonconforming Work, Acceptance of
9.6.6, 9.9.3, 12.3
Nonconforming Work, Rejection and Correction of
2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.8.2, 9.9.3,
9.10.4, 12.2.1, 13.7.1.3
Notice
2.2.1, 2.3, 2.4, 3.2.3, 3.3.1, 3.7.2, 3.7.4, 3.12.9, 4.3,
4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 11.1.3,
11.4.6, 12.2.2, 12.2.4, 13.3, 13.5.1, 13.5.2, 14.1, 14.2
Notice, Written
2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8,
4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3,
11.4.6, 12.2.2, 12.2.4, 13.3, 14
Notice of Testing and Inspections
13.5.1, 13.5.2
Notice to Proceed
8.2.2
Notices, Permits, Fees and
2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2
Observations, Contractor's
1.5.2, 3.2, 3.7.3, 4.3.4
Occupancy
2.2.2, 9.6.6, 9.8, 11.4.1.5
Orders, Written
1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2,
13.5.2, 14.3.1
OWNER
2
Owner, Definition of
2.1
Owner, Information and Services Required of the
2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3,
6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3,
11.2, 11.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4
Owner's Authority
1.6, 2.1.1, 2.3, 2.4, 3.4.2, 3.8.1, 3.12.10, 3.14.2,
4.1.2, 4.1.3, 4.2.4, 4.2.9, 4.3.6, 4.4.7, 5.2.1, 5.2.4,
5.4.1, 6.1, 6.3, 7.2.1, 7.3.1, 8.2.2, 8.3.1,
9.3.1, 9.3.2, 9.5.1, 9.9.1, 9.10.2, 10.3.2, 11.1.3,
11.3.1, 11.4.3, 11.4.10, 12.2.2, 12.3.1, 13.2.2, 14.3, 14.4
Owner's Financial Capability
2.2.1, 13.2.2, 14.1.1.5
Owner's Liability Insurance
11.2
Owner's Loss of Use Insurance
11.4.3
Owner's Relationship with Subcontractors
1.1.2, 5.2, 5.3, 5.4, 9.6.4, 9.10.2, 14.2.2
Owner's Right to Carry Out the Work
2.4, 12.2.4. 14.2.2.2
Owner's Right to Clean Up
6.3
Owner's Right to Perform Construction and to Award Separate Contracts
6.1
Owner's Right to Stop the Work
2.3
Owner's Right to Suspend the Work
14.3
Owner's Right to Terminate the Contract
14.2
Ownership and Use of Drawings, Specifications and Other Instruments of Service
1.1.1, 1.6, 2.2.5, 3.2.1, 3.11.1, 3.17.1, 4.2.12, 5.3
Partial Occupancy or Use
9.6.6, 9.9, 11.4.1.5
Patching, Cutting and
3.14, 6.2.5
Patents
3.17
Payment, Applications for
4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5,
9.10.1, 9.10.3, 9.10.5, 11.1.3, 14.2.4, 14.4.3
Payment, Certificates for
4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1,
9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4
Payment, Failure of
4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6
Payment, Final
4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1,
11.4.5, 12.3.1, 13.7, 14.2.4, 144.3
Payment Bond, Performance Bond and
7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5
Payments, Progress
4.3.3, 9.3,9.6, 9.8.5, 9.10.3, 13.6, 14.2.3
6
PAYMENTS AND COMPLETION
9
Payments to Subcontractors
5.4.2, 9.5.1.3, 9.6.2, 9.6.3, 9.6.4,9.6.7, 11.4. 8,14.2.1.2
PCB
10.3.1
Performance Bond and Payment Bond
7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5
Permits, Fees and Notices
2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2
PERSONS AND PROPERTY, PROTECTION OF
10
Polychlorinated Biphenyl
10.3.1
Product Data, Definition of
3.12.2
Product Data and Samples, Shop Drawings
3.11, 3.12, 4.2.7
Progress and Completion
4.2.2, 4.3.3, 8.2, 9.8, 9.9.1, 14.14
Progress Payments
4.3.3, 9.3.9.6, 9.8.5, 9.10.3, 13.6, 14.2.3
Project, Definition of the
1.1.4
Project Management Protective Liability Insurance
11.3
Project Manual, Definition of the
1.1.7
Project Manuals
2.2.5
Project Representatives
4.2.10
Property Insurance
10.2.5, 11.4
PROTECTION OF PERSONS AND PROPERTY
10
Regulations and Laws
1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, 9.9.1,
10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1,
13.5.2, 13.6, 14
Rejection of Work
3.5.1, 4.2.6, 12.2.1
Releases and Waivers of Liens
9.10.2
Representations
1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.4.2, 9.5.1, 9.8.2,
9.10.1
Representatives
2.1.1, 3.1.1, 3.9, 4.1.1, 4.2.1, 4.2.10, 5.1.1, 5.1.2, 13.2.1
Resolution of Claims and Disputes
4.4, 4.5, 4.6
Responsibility for Those Performing the Work
3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5.1, 10
Retainage
9.3.1, 9.6.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3
Review of Contract Documents and Field Conditions by Contractor
1.5.2, 3.2, 3.7.3, 3.12.7, 6.1.3
Review of Contractor's Submittals by Owner and Architect
3.10.1, 3.10.2, 3.11, 3.12, 4.2, 5.2, 6.1.3, 9.2, 9.8.2
Review of Shop Drawings, Product Data and Samples by Contractor
3.12
Rights and Remedies
1.1.2, 2.3, 2.4, 3.5.1, 3.15.2, 4.2.6, 4.3.4, 4.5, 4.6, 5.3, 5.4, 6.1,
6.3, 7.3.1, 8.3, 9.5.1, 9.7, 10.2.5, 10.3, 12.2.2, 12.2.4, 13.4, 14
Royalties, Patents and Copyrights
3.17
Rules and Notices for Arbitration
4.6.2
Safely of Persons and Property
10.2, 10.6
Safety Precautions and Programs
3.3.1, 4.2.2, 4.2.7, 5.3.1, 10.1, 10.2, 10.6
Samples, Definition of
3.12.3
Samples, Shop Drawings, Product Data and
3.11, 3.12, 4.2.7
Samples at the Site, Documents and
3.11
Schedule of Values
9.2, 9.3.1
Schedules, Construction
1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3
Separate Contracts and Contractors
1.1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6, 8.3.1, 11.4.7, 12.1.2,
12.2.5
Shop Drawings, Definition of
3.12.1
Shop Drawings, Product Data and Samples
3.11, 3.12, 4.2.7
Site, Use of
3.13, 6.1.1, 6.2.1
Site Inspections
1.2.2, 3.2.1, 3.3.3, 3.7.1, 4.2, 4.3.4, 9.4.2, 9.10.1, 13.5
Site Visits, Architect's
4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9.10.1, 13.5
Special Inspections and Testing
4.2.6, 12.2.1, 13.5
Specifications, Definition of the
7
1.1.6
Specifications, The
1.1.1, 1.1.6, 1.1.7, 1.2.2, 1.6, 3.11, 3.12.10, 3.17
Statute of Limitations
4.6.3, 12.2.6, 13.7
Stopping the Work
2.3, 4.3.6, 9.7, 10.3, 14.1
Stored Materials
6.2.1, 9.3.2, 10.2.1.2, 10.2.4, 11.4.1.4
Subcontractor, Definition of
5.1.1
SUBCONTRACTORS
5
Subcontractors, Work by
1.2.2, 3.3.2, 3.12.1, 4.2.3, 5.2.3, 5.3, 5.4, 9.3.1.2, 9.6.7
Subcontractual Relations
5.3, 5.4, 9.3. 1.2, 9.6, 9.10 10.2.1, 11.4.7, 11.4.8, 14.1, 14.2.1,
14. 3. 2
Submittals
1.6, 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8,
9.9.1, 9.10.2, 9.10.3, 11.1.3
Subrogation, Waivers of
6.1.1, 11.4.5, 11.4.7
Substantial Completion
4.2.9, 8.1.1, 8.1.3, 8.2.3, 9. 4.2, 9.8, 9.9.1, 9.10.3, 9.10.4.2,
12. 2, 13.7
Substantial Completion, Definition of
9.8.1
Substitution of Subcontractors
5.2.3, 5.2.4
Substitution of Architect
4.1.3
Substitutions of Materials
3.4.2, 3.5.1, 7.3.7
Sub-subcontractor, Definition of
5.1.2
Subsurface Conditions
4.3.4
Successors and Assigns
13.2
Superintendent
3.9, 10.2.6
Supervision and Construction Procedures
1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, 6.2.4,
7.1.3, 7.3.6, 8.2, 8.3.1, 9.4.2, 10, 12, 14
Surety
4.4.7, 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2
Surety, Consent of
9.10.2, 9.10.3
Surveys
2.2.3
Suspension by the Owner for Convenience
14.4
Suspension of the Work
5.4.2,14.3
Suspension or Termination of the Contract
4.3.6, 5.4.1.1, 11.4.9, 14
Taxes
3.6, 3.8.2.1, 7.3.6.4
Termination by the Contractor
4.3.10, 14.1
Termination by the Owner for Cause
4.3.10, 5.4.1.1, 14.2
Termination of the Architect
4.1.3
Termination of the Contractor
14.2.2
TERMINATION OR SUSPENSION OF THE CONTRACT
14
Tests and Inspections
3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 10.3.2,
11.4.1.1, 12.2.1, 13.5
TIME
8
Time, Delays and Extensions of
3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1,
7.5.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2
Time Limits
2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 4.2, 4.3,
4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1, 9.3.3,
9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 11.1.3, 11.4.1.5, 11.4.6,
11.4.10, 12.2, 13.5, 13.7, 14
Time Limits on Claims
4.3.2, 4.3.4, 4.3.8, 4.4, 4.5, 4.6
Title to Work
9.3.2, 9.3.3
UNCOVERING AND CORRECTION OF WORK
12
Uncovering of Work
12.1
Unforeseen Conditions
4.3.4, 8.3.1, 10.3
Unit Prices
4.3.9, 7.3.3.2
Use of Documents
1.1.1, 1.6, 2.2.5, 3.12.6, 5.3
Use of Site
3.13, 6.1.1, 6.2.1
Values, Schedule of
9.2, 9.3.1
Waiver of Claims by the Architect
13.4.2
Waiver of Claims by the Contractor
4.3.10, 9.10.5, 11.4.7, 13.4.2
8
Waiver of Claims by the Owner
4.3.10, 9.9.3, 9.10.3, 9.10.4, 11.4.3, 11.4.5, 11.4.7, 12.2.2.1,
13.4.2, 14.2.4
Waiver of Consequential Damages
4.3.10, 14.2.4
Waiver of Liens
9.10.2, 9.10.4
Waivers of Subrogation
6.1.1, 11.4.5, 11.4.7
Warranty
3.5, 4.2.9, 4.3.5.3, 9.3.3, 9.8.4, 9.9.1, 9.10.4, 12.2.2, 13.7.1.3
Weather Delays
4.3.7.2
Work, Definition of
1.1.3
Written Consent
1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 9.9.1,
9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2
Written Interpretations
4.2.11, 4.2.12, 4.3.6
Written Notice
2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1,
8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3, 11.4.6, 12.2.2, 12.2.4, 13.3, 14
Written Orders
1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2, 13.5.2, 14.3.1
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 (1) 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. 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 (1) between
the Architect and Contractor, (2) between the Owner and a Subcontractor
or Sub-subcontractor, (3) between the Owner and Architect or (4)
between any persons or entities other than the Owner and Contractor.
The Architect shall, however, be entitled to performance and
enforcement of obligations of the Contractor under the Contract
intended to facilitate performance of the Architect's 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.
9
1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract
Documents 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,
systems, standards and workmanship for the Work, and performance of
related services.
1.1.7 THE PROJECT MANUAL
The Project Manual is a volume assembled for the Work which may include
the bidding requirements, sample forms, Conditions of the Contract and
Specifications.
1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
1.2.1 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 indicated results. The Contractor hereby
specifically acknowledges and declares that the Contract Documents are
full and complete, are sufficient to have enabled the Contractor to
determine the cost of the Work therein in order to enter into the
Contract and that the Drawings, the Specifications, and all Addenda,
are sufficient to enable it to construct the Work outlined therein in
accordance with applicable laws, statutes, building codes and
regulations, and otherwise to fulfill all its obligations hereunder.
The Contractor further acknowledges that it has visited the site,
examined all conditions affecting the Work, is fully familiar with all
of the conditions thereof and affecting the same, and, having carefully
examined all Drawings, Specifications and documents. The Contractor
shall not be responsible for any discrepancies or omissions in the
Drawings and Specifications, except to the extent that the Contractor
is aware of, or should be aware of such discrepancies.
1.2.2 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.
1.2.3 Unless otherwise stated in the Contract Documents, words which
have well-known technical or construction industry meanings are used in
the Contract Documents in accordance with such recognized meanings.
1.3 CAPITALIZATION
1.3.1 Terms capitalized in these General Conditions include those
which are (1) specifically defined, (2) the titles of numbered articles
and identified references to Paragraphs, Subparagraphs and Clauses in
the document or (3) the titles of other documents published by the
American Institute of Architects.
1.4 INTERPRETATION
1.4.1 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.
10
1.5 EXECUTION OF CONTRACT DOCUMENTS
1.5.1 The Contract Documents shall be signed by the Owner and
Contractor. 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. 5. 2 Execution of the Contract by the Contractor is a representation
that the Contractor has visited the site, become generally familiar
with local conditions under which the Work is to be performed and
correlated personal observations with requirements of the Contract
Documents.
1.6 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER
INSTRUMENTS OF SERVICE
1.6.1 All copies of the Drawings and Specifications, except the
Contractor's record set, shall be returned or suitably accounted for to
the Owner, on request, upon completion of the Work. The Drawings,
Specifications and other documents prepared by the Architect and the
Architect's consultants, 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, Architect and the
Architect's consultants. The Contractor, Subcontractors,
Sub-subcontractors and material or equipment suppliers are authorized
to use and reproduce applicable portions of the Drawings,
Specifications and other documents prepared by the Architect and the
Architect's consultants appropriate to and for use in the execution of
their Work under the Contract Documents.
ARTICLE 2 OWNER
2.1 GENERAL
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 Owner shall designate in writing a
representative who shall have express authority to bind the Owner with
respect to all matters requiring the Owner's approval or authorization.
Except as otherwise provided in Subparagraph 4. 2. 1, the Architect
does not have such authority. The term "Owner" means the Owner or the
Owner's authorized representative.
2.1.2 The Owner shall furnish to the Contractor within fifteen days
after receipt of a written request, information 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.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
11
2.2.1 Intentionally deleted.
2.2.2 Intentionally Deleted.
2.2.3 Intentionally deleted.
2.2.4 Information or services required of the Owner by the Contract
Documents shall be furnished by the Owner with reasonable promptness.
Any other information or services relevant to the Contractor's
performance of the Work under the Owner's control shall be furnished by
the Owner after receipt from the Contractor of a written request for
such information or services.
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.
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, including, without limitation,
persistent failure to meet the Schedule as provided in Articles 4 and 6
of the Agreement, the Owner may issue a written order to 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 duly 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.
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, 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 reasonable cost of correcting such deficiencies,
including Owner's expenses and compensation for the Architect's
additional services 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
12
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 GENERAL
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.
3.1.2 The Contractor shall perform the Work in accordance with the
Contract Documents.
3.1.3 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 in the Architect's administration of the
Contract, or by tests, inspections or approvals required or performed
by persons other than the Contractor.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY
CONTRACTOR
3.2.1 Since the Contract Documents are complementary, before
starting each portion of the Work, the Contractor shall carefully study
and compare the various Drawings and other Contract Documents relative
to that portion of the Work, as well as the information furnished by
the Owner pursuant to Subparagraph 2. 2. 3, shall take field
measurements of any existing conditions related to that portion of the
Work and shall observe any conditions at the site affecting it or any
variance from applicable laws, statutes, ordinances, building codes,
rules, regulations, or any lawful orders of any governmental body, or
public or quasi-public authority. These obligations are for the purpose
of facilitating construction by the Contractor and are not for the
purpose of discovering errors, omissions, or inconsistencies in the
Contract Documents; however, any errors, inconsistencies or omissions
discovered by the Contractor shall be reported promptly to the
Architect as a request for information in such form as the Architect
may require.
3.2.2 Any design errors or omissions noted by the Contractor during
this review shall be reported promptly to the Architect, but it is
recognized that the Contractor's review is made in the Contractor's
capacity as a contractor and not as a licensed design professional
unless otherwise specifically provided in the Contract Documents. The
Contractor is not required to ascertain that the Contract Documents are
in accordance with applicable laws, statutes, ordinances, building
codes, and rules and regulations, but any nonconformity discovered by
or made known to the Contractor shall be reported promptly to the
Architect.
3.2.3 If the Contractor believes that additional cost or time is
involved because of clarifications or instructions issued by the
Architect in response to the Contractor's notices or requests for
information pursuant to Subparagraphs 3. 2. 1 and 3. 2. 2, the
Contractor shall make Claims as provided in Subparagraphs 4. 3. 6 and
4. 3. 7. If the Contractor fails to perform the obligations of
Subparagraphs 3. 2. 1 and 3. 2. 2, the Contractor shall pay such costs
and damages to the Owner as would have been avoided if the Contractor
had performed such obligations. The Contractor shall not be liable to
the Owner or the Architect for damage resulting from errors,
inconsistencies or omissions in the Contract Documents unless the
Contractor has performed that portion of the Work that is the subject
of such error, inconsistency or omission and recognized or reasonably
should have recognized such error, inconsistency or omission and failed
to report it to the Architect and the Owner. If the Contractor performs
any construction activity involving error, inconsistency or omission in
the Contract Documents that Contractor recognized or reasonably should
have recognized without such notice to the Architect and the Owner, the
Contractor
13
shall be fully responsible for such performance and shall bear all
costs of correction.
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 the Contract Documents give
other specific instructions concerning these matters. If the Contract
Documents give specific instructions concerning construction means,
methods, techniques, sequences or procedures, the Contractor shall
evaluate the jobsite safety thereof and, except as stated below, shall
be fully and solely responsible for the jobsite safety of such means,
methods, techniques, sequences or procedures. If the Contractor
determines that such means, methods, techniques, sequences or
procedures may not be safe, the Contractor shall give timely written
notice to the Owner and Architect and shall not proceed with that
portion of the Work without further written instructions from the
Architect. If the Contractor is then instructed to proceed with the
required means, methods, techniques, sequences or procedures without
acceptance of changes proposed by the Contractor, the Owner shall be
solely responsible for any resulting loss or damage.
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 or entities performing
portions of the Work for or on behalf of the Contractor or any of its
Subcontractors.
3.3.3 The Contractor shall be responsible for inspection of portions
of Work already performed to determine that such portions are in proper
condition to receive subsequent Work.
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 may make substitutions only with the
consent of the Owner, after evaluation by the Architect and in accordance with a
Change Order. Should the Specifications or Drawings fail to particularly
describe the material or kind of goods to be used in any place, then it shall be
the duty of the Contractor to Inquire of the Owner or the Architect as to what
is required.
3.4.3 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.
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
14
the quality required or permitted, and that the Work will conform to
the requirements of the Contract Documents. 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, modifications not
executed by the Contractor, improper or insufficient maintenance,
improper operation, or normal wear and tear and normal usage. If
required by the Architect, the Contractor shall furnish satisfactory
evidence as to the kind and quality of materials and equipment.
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer, use and similar
taxes for the Work 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.
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 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 are received or negotiations concluded.
3.7.2 The Contractor shall comply with and give notices required by
laws, ordinances, rules, regulations and lawful orders of public
authorities applicable to performance of the Work.
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 that it knows or reasonably
should have known is contrary to any applicable laws, statutes,
ordinances, building codes, rules or regulations without prompt notice
to the Architect and the Owner, the Contractor shall be liable for all
attributable losses, costs, damages and expenses.
3.8 ALLOWANCES
3.8.1 The Contractor shall include in the Contract Sum all
allowances staled 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 to whom the Contractor has
reasonable objection.
3.8.2 Unless otherwise provided in the Contract Documents:
.1 allowances shall cover the cost to the Contractor of
materials and equipment delivered at the site and all
required taxes, less applicable trade discounts;
.2 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 but not
in the allowances;
.3 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 shall
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reflect (1) the difference between actual costs and the
allowances under Clause 3.8.2.1 and (2) changes in
Contractor's costs under Clause 3.8.2.2.
3.8.3 Materials and equipment under an allowance shall be selected
by the Owner in sufficient time to avoid delay in the Work.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent superintendent
approved by Owner 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 a
Contractor's construction schedule for the Work. The schedule shall not
exceed time limits current under the Contract Documents, shall be
revised 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.
3.10.2 The Contractor shall prepare and keep current, for the
Architect's approval, a schedule of submittals which is coordinated
with the Contractor's construction schedule and allows the Architect
reasonable time to review submittals.
3.10.3 The Contractor shall perform the Work in general accordance
with the most recent schedules submitted to the Owner and Architect.
3.10.4 The Contractor shall also prepare a report not later
than thirty (30) calendar days after the date the parties agree on the
Guaranteed Maximum Price which shall include a complete list of suppliers, items
to be purchased from the suppliers or fabricators, time required for fabrication
and scheduled delivery dates for each item. As soon as available, copies of
purchase orders shall be furnished to the Owner.
3.10.5 The Contractor shall hold weekly progress meetings at
the Project 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 the
construction schedule and the critical path schedule. Each interested
Subcontractor shall have present a competent representative to report the
condition of its work and to receive information.
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 field
changes and selections made during construction, and one record copy of
approved Shop Drawings, Product Data, Samples and similar required
submittals. These shall be available to the Architect and shall be
delivered to the Architect for submittal to the Owner upon completion
of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
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3.12.1 Shop Drawings are drawings, diagrams, schedules and other data
specially prepared for the Work by the 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 by the Contract Documents the way by which 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. Informational submittals upon
which the Architect is not expected to take responsive action may be so
identified in the Contract Documents. Submittals which are not required
by the Contract Documents may be returned by the Architect without
action.
3.12.5 The Contractor shall review for compliance with the Contract
Documents, approve and submit to the Architect 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.
Submittals which are not marked as reviewed for compliance with the
Contract Documents and approved by the Contractor may be returned by
the Architect without action.
3.12.6 By approving 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.
3.12.7 The Contractor shall perform no portion of the Work for which
the Contract Documents require submittal and review of Shop Drawings,
Product Data, Samples or similar submittals until the respective
submittal has been approved by the Architect.
3.12.8 The Work shall be in accordance with approved submittals
except that the Contractor shall not be relieved of responsibility for
deviations from requirements of the Contract Documents by the
Architect's approval of Shop Drawings, Product Data, Samples or similar
submittals unless the Contractor has specifically informed the
Architect in writing of such deviation at the time of submittal and (1)
the Architect has given written approval to the specific deviation as a
minor change in the Work, or (2) a Change Order or Construction Change
Directive has been issued authorizing the 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 Architect on
previous submittals. In the absence of such written notice the
Architect's approval of a resubmission shall not apply to such
revisions.
3.12.10 The Contractor shall not be required to provide professional
services which constitute the practice of architecture or engineering
unless such services are specifically required by the Contract
Documents for a portion of the Work or unless the Contractor needs to
provide such
17
services in order to carry out the Contractor's responsibilities for
construction means, methods, techniques, sequences and procedures. The
Contractor shall not be required to provide professional services in
violation of applicable law. If professional design services or
certifications by a design professional related to systems, materials
or equipment are specifically required of the Contractor by the
Contract Documents, the Owner and the Architect will specify all
performance and design criteria that such services must satisfy. The
Contractor shall cause such services or certifications to be provided
by a properly licensed design professional, whose signature and seal
shall appear on all drawings, calculations, specifications,
certifications, Shop Drawings and other submittals prepared by such
professional. Shop Drawings and other submittals related to the Work
designed or certified by such professional, if prepared by others,
shall bear such professional's written approval when submitted to the
Architect. The Owner and the Architect shall be entitled to rely upon
the adequacy, accuracy and completeness of the services, certifications
or approvals performed by such design professionals, provided the Owner
and Architect have specified to the Contractor all performance and
design criteria that such services must satisfy. Pursuant to this
Subparagraph 3.12.10, the Architect will review, approve or take other
appropriate action on submittals only for the limited purpose of
checking for conformance with information given and the design concept
expressed in the Contract Documents. The Contractor shall not be
responsible for the adequacy of the performance or design criteria
required by the Contract Documents.
3.12.11 The Contractor shall assemble for the Architect's approval and
transmittal to the Owner three (3) complete copies in looseleaf binders
of all operating and maintenance data from all manufacturers whose
equipment is installed in the Work. The Contractor shall also prepare a
checklist or schedule showing the type of lubricant to be used at each
point of application, and the intervals between lubrication for each
item of equipment.
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.
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 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 consent shall not be unreasonably withheld. The
Contractor shall not unreasonably withhold from the Owner or a separate
contractor 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. The Contractor shall be responsible for broken
glass, and at completion of the work shall replace such damaged or
broken glass. After broken glass has been replaced, the Contractor
shall remove all labels, and wash and polish both sides of all such
glass.
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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.
3.16 ACCESS TO WORK
3.16.1 The Contractor shall provide the Owner and Architect access to
the Work in preparation and progress wherever located.
3.17 ROYALTIES, PATENTS AND COPYRIGHTS
3.17.1 The Contractor shall pay all royalties and license fees. The
Contractor shall defend suits or claims for infringement of copyrights
and patent rights and shall hold the Owner 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 or
where the copyright violations are contained in Drawings,
Specifications or other documents prepared by the Owner or Architect.
However, if the Contractor has reason to believe that the required
design, process or product is an infringement of a copyright or 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 The Contractor shall indemnify and hold harmless the Owner and
its directors, officers, agents, employees and independent contractors
from and against any and all losses, costs, claims, damages, expenses,
and liabilities, including without limitation reasonable attorneys'
fees and expense, arising out of or resulting from (1) the failure of
the Contractor to perform its obligations under the Contract Documents.
(2) the inaccuracy of any representation or warranty of the Contractor
given under the Contract Documents, (3) any claim of damage or loss by
any Subcontractor or Subsubcontractor or anyone directly or indirectly
employed by any of them arising out of any alleged act or omission of
the Contractor or any Subcontractor or Subsubcontractor, or anyone
directly or indirectly employed by any of them or for whose acts any of
them may be liable, or (4) any negligent act or omission or willful
misconduct of the Contractor, or any Subcontractor or Subsubcontractor,
or anyone directly or indirectly employed by any of them or for whose
acts any of them may be liable. Contractor's duty to indemnify Owner
shall not apply to liability for damages arising out of bodily injury
to persons or damage to property caused by or resulting from the sole
negligence of Owner or Owner's agent or employees. Contractor's duty to
indemnify Owner for liability for damages arising out of bodily injury
to persons or damage to property caused by or resulting from the
concurrent negligence of (a) Owner or Owner's agents or employees, and
(b) Contractor or Contractor's agents or employees, shall apply only to
the extent of negligence of Contractor or Contractor's agents or
employees. Contractor's duty to defend, indemnify and hold Owner
harmless shall include, as to all claims, demands, losses and
liability, to which it applies, and Owner's personnel-related costs,
reasonable attorney's fees, court costs and all other claim related
expenses. Contractor specifically and expressly waives any immunity
that may be granted it under the Washington State Industrial Insurance
Act, Title 51 revised Code of Washington. Further, the indemnification
obligation under this Contract shall not be limited in any way by any
limitation on the amount or type of damages, compensation or benefits
payable to or for any third party under workers' compensation acts,
disability benefits acts, or other employee benefits acts; provided
Contractor's waiver of Immunity by the provisions of this paragraph
extends only to claims against Owner, and does not include, or extend
to, any claims by Contractor's employees directly against Contractor.
19
THE UNDERSIGNED CERTIFY THAT THIS INDEMNIFICATION WAS MUTUALLY
NEGOTIATED.
OWNER CONTRACTOR
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 Subparagraph
3.18.1 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' compensation acts, disability benefit acts
or other employee benefit acts.
3.19 REPRESENTATIONS AND WARRANTIES. The Contractor represents and
warrants the following to the Owner (in addition to the other representations
and warranties contained in the Contract Documents), as an inducement to the
Owner to execute the Owner-Contractor Agreement, which representations and
warranties shall survive the execution and delivery of the Owner-Contractor
Agreement and the final completion of the work:
(a) that it is financially solvent, able to pay his debts as they
mature and possessed of sufficient working capital to complete
the Work and perform his obligations under the Contract
Documents;
(b) that it is able to furnish the plant, tools, materials,
supplies, equipment and labor required to complete the Work
and perform his obligations hereunder and has sufficient
experience and competence to do so;
(c) that it is authorized to do business in the State where the
Project is located and properly licensed by all necessary
governmental and public and quasi-public authorities having
jurisdiction over him and over the work and the site of the
Project;
(d) that the Contractor's execution of the Owner-Contractor
Agreement and its performance thereof is within its duly
authorized powers; and
(e) that its duly authorized representative has visited the site
of the Work, familiarized himself with the local conditions
under which the Work is to be performed and correlated his
observations with the requirements of
20
the Contract Documents.
ARTICLE 4 ADMINISTRATION OF THE CONTRACT
4.1 ARCHITECT
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 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.
4.1.3 If the employment of the Architect is terminated, the Owner
shall employ a new Architect against whom the Contractor has no
reasonable objection and whose status under the Contract Documents
shall be that of the former Architect.
4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT
4.2.1 The Architect will provide detailed administration of the
Contract as described in the Contract Documents, and will be an Owner's
representative (1) during construction, (2) until final payment is due
and (3) with the Owner's concurrence, from time to time during the
one-year period for correction of Work described in Paragraph 12.2.
4.2.2 The Architect, as a representative of the Owner, will visit
the site at intervals appropriate to the stage of the Contractor's
operations (1) to become generally familiar with and to keep the Owner
informed about the progress and quality of the portion of the Work
completed, (2) to endeavor to guard the Owner against defects and
deficiencies in the Work, and (3) to determine in general if the Work
is being performed in a manner indicating that the Work, when fully
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 the quality or quantity of the Work. The
Architect will neither have control over or charge of, nor be
responsible for, the construction means, methods, techniques, sequences
or procedures, or for the safety precautions and programs in connection
with the Work, since these are solely the Contractor's rights and
responsibilities under the Contract Documents, except as provided in
Subparagraph 3.3.1.
4.2.3 The Architect will not be responsible for the Contractor's
failure to perform the Work in accordance with the requirements of the
Contract Documents. The Architect will not have control over or charge
of and will not be responsible for acts or omissions of the Contractor,
Subcontractors, or their agents or employees, or any other persons or
entities 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, the Owner and Contractor
shall endeavor to communicate with each other through the Architect
about matters arising out of or relating to the Contract.
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 shall be through the Owner.
21
4.2.5 Based on the Architect's evaluations of the Contractor's
Applications for Payment, the Architect will review and recommend to
Owner the amounts due the Contractor and will issue Certificates for
Payment in such amounts.
4.2.6 The Architect will have authority to reject Work that does not
conform to the Contract Documents. Whenever the Architect considers it
necessary or advisable, the Architect will have authority to require
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 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 Architect
to the Contractor, Subcontractors, material and equipment suppliers,
their agents or employees, or other persons or entities 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 will prepare Change Orders and Construction
Change Directives, and may authorize minor changes in the Work as
provided in Paragraph 7.4.
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.
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 Upon the request of the Owner, claims, disputes and other
matters in question relating to the execution or progress of the Work
or the interpretation of the Contract Documents shall be referred to
the Architect for initial decision, which the Architect shall render in
writing within a reasonable time, not to exceed 15 days after the date
on which such request if made.
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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
initiated by written notice. The responsibility to substantiate Claims
shall rest with the party making the Claim.
4.3.2 TIME LIMITS ON CLAIMS. Claims by either party must be
initiated 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
initiated by written notice to the Architect and the other party.
4.3.3 CONTINUING CONTRACT PERFORMANCE. Pending final resolution of a
Claim except as otherwise agreed in writing or as provided in
Subparagraph 9.7.1 and Article 14, the Contractor shall proceed
diligently with performance of the Contract and the Owner shall
continue to make payments in accordance with the Contract Documents.
4.3.4 CLAIMS FOR CONCEALED OR UNKNOWN CONDITIONS. If conditions are
encountered 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, 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 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 conditions
encountered are materially different, the Contract Sum and Contract
Time shall be equitably adjusted, but 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.
4.3.5 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 10.6.
23
4.3.6 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
this Paragraph 4.3.
4.3.7 CLAIMS FOR ADDITIONAL TIME
4.3.7.1 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.
4.3.7.2 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, could not
have been reasonably anticipated and had an adverse effect on the
scheduled construction.
4.3.8 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, or of others for whose acts such
party is legally responsible, written notice of such injury or damage,
whether or not insured, shall be given to the other party within a
reasonable time not exceeding 21 days after discovery. The notice shall
provide sufficient detail to enable the other party to investigate the
matter.
4.3.9 If unit prices are stated in the Contract Documents or
subsequently agreed upon, and if quantities originally contemplated are
materially changed in a proposed Change Order or Construction Change
Directive so 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.
4.3.10 CLAIMS FOR CONSEQUENTIAL DAMAGES. The Contractor and Owner
waive Claims against each other for consequential damages arising out
of or relating to this Contract. This mutual waiver includes:
.1 damages incurred by the Owner for rental expenses,
for losses of use, income, profit, financing,
business and reputation, and for loss of management
or employee productivity or of the services of such
persons; and
.2 damages incurred by the Contractor for principal
office expenses including the compensation of
personnel stationed there, for losses of financing,
business and reputation, and for loss of profit
except anticipated profit arising directly from the
Work.
This mutual waiver is applicable, without limitation, to all
consequential damages due to either party's termination in accordance
with Article 14. Nothing contained in this Subparagraph 4.3.10 shall be
deemed to preclude an award of liquidated direct damages, when
applicable, in accordance with the requirements of the Contract
Documents.
4.4 RESOLUTION OF CLAIMS AND DISPUTES
4.4.1 DECISION OF ARCHITECT. To the extent requested by Owner,
claims, including those alleging an error or omission by the Architect
but excluding those arising under Paragraphs 10.3 through 10.5, shall
be referred initially to the Architect for decision. If referred to the
Architect by Owner, an initial decision by the Architect shall be
required as a condition precedent to mediation, arbitration or
litigation of all Claims between the Contractor and Owner arising prior
to the date final payment is due, unless 30 days have passed after the
24
Claim has been referred to the Architect with no decision having been
rendered by the Architect. The Architect will not decide disputes
between the Contractor and persons or entities other than the Owner.
4.4.2 The Architect will review Claims and within ten days of the
receipt of the Claim take one or more of the following actions: (1)
request additional supporting data from the claimant or a response with
supporting data from the other party, (2) reject the Claim in whole or
in part, (3) approve the Claim, (4) suggest a compromise, or (5) advise
the parties that the Architect is unable to resolve the Claim if the
Architect lacks sufficient information to evaluate the merits of the
Claim or if the Architect concludes that, in the Architect's sole
discretion, it would be inappropriate for the Architect to resolve the
Claim.
4.4.3 In evaluating Claims, the Architect may, but shall not be
obligated to, consult with or seek information from either party or
from persons with special knowledge or expertise who may assist the
Architect in rendering a decision. The Architect may request the Owner
to authorize retention of such persons at the Owner's expense.
4.4.4 If the Architect requests a party to provide a response to a
Claim or to furnish additional supporting data, such party shall
respond, within ten days after receipt of such request, and shall
either provide a response on the requested supporting data, advise the
Architect when the response or supporting data will be furnished or
advise the Architect that no supporting data will be furnished. Upon
receipt of the response or supporting data, if any, the Architect will
either reject or approve the Claim in whole or in part.
4.4.5 The Architect will approve or reject Claims by written
decision, which shall state the reasons therefor and which shall notify
the parties of any change in the Contract Sum or Contract Time or both.
The approval or rejection of a Claim by the Architect shall be final
and binding on the parties but subject to mediation and arbitration.
4.4.6 When a written decision of the Architect states that (1) the
decision is final but subject to mediation and 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.
4.4.7 Upon receipt of a Claim against the Contractor or at any time
thereafter, the Architect or the Owner may, but is not obligated to,
notify the surety, if any, of the nature and amount of the Claim. If
the Claim relates to a possibility of a Contractor's default, the
Architect or the Owner may, but is not obligated to, notify the surety
and request the surety's assistance in resolving the controversy.
4.4.8 If a Claim relates to or is the subject of a mechanic's lien,
the party asserting such Claim may proceed in accordance with
applicable law to comply with the lien notice or filing deadlines prior
to resolution of the Claim by the Architect, by mediation or by
arbitration.
4.5 MEDIATION
4.5.1 Any Claim arising out of or related to the Contract, except
Claims relating to aesthetic effect and except those waived as provided
for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5 shall, after initial
decision by the Architect where applicable or 30 days after submission
of the Claim to the Architect, be subject to mediation as a condition
precedent to arbitration or the institution of legal or equitable
proceedings by either party.
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4.5.2 The parties shall endeavor to resolve their Claims by
mediation which, unless the parties mutually agree otherwise, shall be
in accordance with the Construction Industry Mediation Rules of the
American Arbitration Association currently in effect. Request for
mediation shall be filed in writing with the other party to the
Contract and with the American Arbitration Association. The request may
be made concurrently with the filing of a demand for arbitration but,
in such event, mediation shall proceed in advance of arbitration or
legal or equitable proceedings, which shall be stayed pending mediation
for a period of 60 days from the date of filing, unless stayed for a
longer period by agreement of the parties or court order.
4.5.3 The parties shall share the mediator's fee and any filing fees
equally. The mediation shall be held in the place where the Project is
located, unless another location is mutually agreed upon. Agreements
reached in mediation shall be enforceable as settlement agreements in
any court having jurisdiction thereof.
4.6 ARBITRATION
4.6.1 Any Claim arising out of or related to the Contract, except
Claims relating to aesthetic effect and except those waived as provided
for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5, shall, after decision
by the Architect or 30 days after submission of the Claim to the
Architect, be subject to arbitration. Prior to arbitration, the parties
shall endeavor to resolve disputes by mediation in accordance with the
provisions of Paragraph 4.5.
4.6.2 Claims not resolved by mediation shall be decided by
arbitration which, unless the parties mutually agree otherwise, shall
be in accordance with the Construction Industry Arbitration Rules of
the American Arbitration Association currently in effect. The demand
for arbitration shall be filed in writing with the other party to the
Contract and with the American Arbitration Association, and a copy
shall be filed with the Architect.
4.6.3 A demand for arbitration shall be made within the time limits
specified in Subparagraphs 4.4.6 and 4.6.1 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.
4.6.4 LIMITATION ON CONSOLIDATION OR JOINDER.
4.6.5 CLAIMS AND TIMELY ASSERTION OF CLAIMS. The party filing 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.
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4.6.6 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 or
subcontractors of a separate contractor.
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.
5.2 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 the names of persons or entities (including those who are
to furnish materials or equipment fabricated to a special design)
proposed for each principal 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.
5.2.2 The Contractor shall not contract with a proposed person or
entity to whom the Owner 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 or Architect has reasonable objection to a person
or entity proposed by the Contractor, the Contractor shall propose
another to whom the Owner or Architect has no reasonable objection. If
the proposed but rejected Subcontractor was reasonably capable of
performing the Work, the Contract Sum and Contract Time shall be
increased or decreased by the difference, if any, occasioned by such
change, and an appropriate Change Order shall be issued before
commencement of the substitute Subcontractor's Work. However, no
increase in the Contract Sum or Contract Time 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 or Architect makes reasonable
objection to such substitute.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 By appropriate agreement, written where legally required for
validity, the Contractor shall require each Subcontractor, to the
extent of the Work to be performed by the Subcontractor, to be bound to
the Contractor by terms of the Contract Documents, and to assume toward
the Contractor all the obligations and responsibilities, including the
responsibility for safety of the Subcontractor's Work, which the
Contractor, by these Documents, assumes toward the Owner and Architect.
Each subcontract agreement shall preserve and protect the rights of the
Owner 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
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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 will similarly make copies of
applicable portions of such documents available to their respective
proposed Sub-subcontractors.
5.3.2 Notwithstanding any provision of Subparagraph 5.3.1, any part of
the Work performed for the Contractor by a Subcontractor or its
Sub-subcontractor shall be pursuant to a written Subcontract between the
Contractor and such Subcontractor (or the Subcontractor and its
Sub-subcontractor at any tier), which shall be prepared on a form of
subcontract satisfactory to the Owner in all respects. Each such
subcontract shall, where the context so requires, contain provisions that:
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 or the
Subsubcontractor may have against the Owner for
damages caused by fire or other perils covered by the
insurance described in the Contract Documents;
3. require the Subcontractor to carry and maintain
insurance coverage in accordance with the Contract
Documents, and to file certificates of such coverage
with the Contractor;
4. require the Subcontractor to submit certificates and
waivers of liens for work completed by it and by its
Sub-subcontractors as a condition to the disbursement
of the progress payment next due and owing;
5. require submission to Contractor or Subcontractor, as
the case may be, of applications for payment in a
form approved by the Owner, together with clearly
defined invoices and xxxxxxxx supporting all such
applications under each subcontract to which the
Contractor is a party;
6. require that each Subcontractor continue to perform
under its subcontract in the event the Contract is
terminated and the Owner shall take an assignment of
said subcontract and request such Subcontractor to
continue such performance.
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
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which the Owner accepts by notifying the
Subcontractor and Contractor in writing; and
.2 assignment is subject to the prior rights of the
surety, if any, obligated under bond relating to the
Contract.
5.4.2 Upon such assignment, if the Work has been suspended for more
than 30 days, the Subcontractor's compensation shall be equitably
adjusted for increases in cost resulting from the suspension.
ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE
CONTRACTS
6.1.1 The Owner reserves the right to perform construction or
operations related to the Project with the Owner's own forces, and to
award separate contracts in connection with other portions of the
Project or other construction or operations on the site 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 in Paragraph 4.3.
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 executes each separate Owner-Contractor Agreement.
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 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 Other 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
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, the Contractor shall, prior to proceeding with that portion
of the Work, promptly report to the Architect apparent discrepancies or
defects in such other construction that would render it unsuitable for
such proper execution and results. Failure of the Contractor so to
report shall constitute an acknowledgment that the Owner's or separate
contractor's completed or partially completed construction is fit and
proper to receive the Contractor's Work, except as to defects not then
reasonably discoverable.
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6.2.3 The Owner shall be reimbursed by the Contractor for costs
incurred by the Owner which are payable to a separate contractor
because of delays, improperly timed activities or defective
construction of the Contractor. The Owner shall be responsible to the
Contractor for costs incurred by the Contractor because of delays,
improperly timed activities, damage to the Work or defective
construction of a separate contractor.
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 as provided in
Subparagraph 10.2.5.
6.2.5 The Owner and each separate contractor shall have the same
responsibilities for cutting and patching as are described for the
Contractor in Subparagraph 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 as to the responsibility under their respective contracts
for maintaining the premises and surrounding area free from waste
materials and rubbish, the Owner may clean up and the Architect will
allocate the cost among those responsible.
ARTICLE 7 CHANGES IN THE WORK
7.1 GENERAL
7.1.1 Changes in the Work may be accomplished after execution of the
Contract, and without invalidating the Contract, by Change Order,
Construction Change Directive or order for a minor change in the Work,
subject to the limitations stated in this Article 7 and elsewhere in
the Contract Documents.
7.1.2 A Change Order shall be based upon agreement between the Owner
and the Contractor; a Construction Change Directive may be issued by
the Architect with the written approval of the Owner and may or may not
be agreed to by the Contractor; an order for a minor change in the Work
which does not involve a change in the Contract Sum or the Contract
Time may be issued by the Architect 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.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared by the
Architect and signed by the Owner, Contractor and Architect, stating
their agreement upon all of the following:
.1 change in the Work;
.2 the amount of the adjustment, if any, in the Contract
Sum; and
.3 the extent of the adjustment, if any, in the Contract
Time.
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 and signed by the Owner and Architect, directing a change
in the Work prior to agreement on
30
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 advise the Architect 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 en method for
determining them. Such agreement shall be effective immediately and
shall be recorded as a Change Order.
7.3.6 If the Contractor does not respond promptly or disagrees with
the method for adjustment in the Contract Sum, the method and the
adjustment shall be determined by the Owner 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. In such case, and also
under Clause 7.3.3.3, the Contractor shall keep and present, in such
form as the Architect 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' compensation
insurance;
.2 costs of materials, supplies and equipment, including
cost of transportation, whether incorporated or
consumed;
.3 rental costs of machinery and equipment, exclusive of
hand tools, whether rented from the Contractor or
others;
.4 costs of premiums for all bonds and insurance, permit
fees, and sales, use or similar taxes related to the
Work; and
.5 additional costs of supervision and field office
personnel directly attributable to the change.
7.3.7 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.
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.
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7.3.8 Pending final determination of the total cost of a
Construction Change Directive to the Owner, amounts not in dispute for
such changes in the Work shall be included in Applications for Payment
accompanied by a Change Order indicating the parties' agreement with
part or all of such costs. For any portion of such cost that remains in
dispute, the Architect will make an interim determination for purposes
of monthly certification for payment for those costs. That
determination of cost shall adjust the Contract Sum on the same basis
as a Change Order, subject to the right of either party to disagree and
assert a claim in accordance with Article 4.
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,
such agreement shall be effective immediately and shall be recorded by
preparation and execution of an appropriate Change Order.
7.3.10 No change in the Work, whether by way of alteration or
addition to the Work, shall be the basis of an addition to the Contract
Sum or a change in the Contract Time unless and until such alteration
or addition has been authorized by a Change Order or a Construction
Change Directive executed and issued in accordance with and in strict
compliance with the requirements of the Contract Documents. This
requirement is of the essence of the Contract Documents. Accordingly,
no course of conduct or dealings between the parties, nor 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 change in the Contract Time.
7.4 MINOR CHANGES IN THE WORK
7.4.1 The Architect will 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 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.
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.
8.1.3 The date of Substantial Completion is the date certified by
the Architect 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
32
date of insurance required by Article 11 to be furnished by the
Contractor and Owner. 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 the Contract Documents or 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 If the Contractor is delayed at any time in the commencement or
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 economic industry-wide strikes, fire, unusual
delay in deliveries, unavoidable casualties or other causes beyond the
Contractor's control, or by delay authorized by the Owner pending mediation and
arbitration, or by other causes which the Architect determines may justify
delay, then the Contract Time and mutually agreed additional costs shall be
extended by Change Order for a period equal to any delay in Substantial
Completion of the Work directly resulting from such delay (an "excusable
delay"). It shall be Contractor's responsibility to notify Owner as soon as
reasonably possible of the circumstances which might give rise to any claim for
delay and to prove to Owner that a delay in Substantial Completion would be
caused specifically by an excusable delay in a portion of the Work which was on
the critical path of the Progress Schedule. Extension of time and additional
costs shall be Contractor's sole remedy for any such delay and no adjustment of
the Contract Sum, except as provided above, shall be made unless the delay shall
have been caused by acts constituting interference by Owner with Contractor's
performance of the Work and such acts continue after Contractor has given
written notice thereof to Owner. Owner's reasonable exercise of any of its
rights under Article 12 "Changes in the Work", regardless of the extent or
number of such changes, or Owner's exercise of any of its rights to stop or
suspend the Work, shall not be construed as interference with Contractor's
performance of the Work.
8.3.2 Claims relating to time shall be made in accordance with
applicable provisions of Paragraph 4.3.
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.
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 Owner a schedule of values allocated to various portions
of the Work. This schedule, shall be used as a basis for reviewing the
Contractor's Applications for Payment.
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9.3 APPLICATIONS FOR PAYMENT
9.3.1 At least ten days before the date established for each
progress payment, the Contractor shall submit to the Owner and
Architect an itemized Application for Payment for operations completed
in accordance with the schedule of values. Such application shall be
notarized, if required, and reflecting retainage if provided for in the
Contract Documents.
9.3.1.1 As provided in Subparagraph 7.3.8, such applications may
include requests for payment on account of changes in the Work which
have been properly authorized by Construction Change Directives, or by
interim determinations of the Architect, but not yet included in Change
Orders.
9.3.1.2 Such applications may not include requests for payment for
portions of the Work for which the Contractor does not intend to pay to
a Subcontractor or material supplier, unless such Work has been
performed by others whom the Contractor intends to pay.
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 the costs of applicable insurance, storage
and transportation to the site for 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
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.
9.4.2 The issuance of a Certificate for Payment will constitute a
representation by the Architect to the Owner, based on the Architect's
evaluation of the Work and the data comprising the Application for
Payment, that the Work has progressed to the point indicated and that
the 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
correction of minor deviations from the Contract Documents prior to
completion and to specific qualifications expressed by the Architect.
The issuance of a Certificate for Payment will further constitute a
representation that the Contractor is entitled to payment in the amount
certified. However, the issuance of a Certificate for Payment will not
be a representation that the Architect has (1) made exhaustive
34
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 Architect may withhold a Certificate for Payment in whole
or in part, to the extent reasonably necessary to protect the Owner, if
in the 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 Contractor and Architect cannot agree on a revised amount, the
Architect will promptly issue a Certificate for Payment for the amount
for which the Architect is able to make such representations to the
Owner. The Architect may also withhold a Certificate for Payment or,
because of subsequently discovered evidence, may nullify the whole or a
part of a Certificate for Payment previously issued, to such extent as
may be necessary in the Architect's opinion to protect the Owner from
loss for which the Contractor is responsible, including loss resulting
from acts and omissions described in Subparagraph 3.3.2, because of:
.1 defective Work not remedied;
.2 third party claims filed or reasonable evidence
indicating probable filing of such claims unless
security acceptable to the Owner is provided by the
Contractor;
.3 failure of the Contractor to make payments properly
to Subcontractors or for labor, materials or
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.
9.6 PROGRESS PAYMENTS
9.6.1 After the Architect has issued a 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.
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 a similar manner.
9.6.3 The Architect will, on request, furnish to a Subcontractor, if
practicable, information regarding percentages of completion or amounts
applied for by the Contractor and action
35
taken thereon by the Architect and Owner on account of portions of the
Work done by such Subcontractor.
9.6.4 Neither the Owner 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.
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.
9.6.7 Unless the Contractor provides the Owner with a payment bond
in the full penal sum of the Contract Sum, payments received by the
Contractor for Work properly performed by Subcontractors and suppliers
shall be held by the Contractor for those Subcontractors or suppliers
who performed Work or furnished materials, or both, under contract with
the Contractor for which payment was made by the Owner. Nothing
contained herein shall require money to be placed in a separate account
and not commingled with money of the Contractor, shall create any
fiduciary liability or tort liability on the part of the Contractor for
breach of trust or shall entitle any person or entity to an award of
punitive damages against the Contractor for breach of the requirements
of this provision.
9.7 FAILURE OF PAYMENT
9.7.1 If the Architect does not issue a Certificate for Payment,
through no fault of the Contractor, within seven days after receipt of
the Contractor's Application for Payment, or if the Owner does not pay
the Contractor within seven days after the xxxx established in the
Contract Documents the amount certified by the Architect or awarded by
arbitration, then the Contractor may, upon seven additional days'
written notice to the Owner 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, plus interest as provided for in the Contract Documents.
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 that 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 shall prepare and submit to the Architect a
comprehensive list of items to be completed or corrected prior to final
payment. 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.
9.8.3 Upon receipt of the Contractor's list, the Architect 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 sufficiently complete in accordance with the Contract
Documents so that the Owner can occupy or utilize the Work or
designated portion thereof for its intended use, the Contractor shall,
before issuance of the Certificate of Substantial Completion, complete
or correct such item upon notification by the Architect. In such case,
the Contractor shall then submit a request for another inspection by
the Architect to determine Substantial Completion.
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9.8.4 When the Work or designated portion thereof is substantially
complete, the Architect will prepare a Certificate of Substantial
Completion which shall establish 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.
9.8.5 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. Upon such
acceptance and consent of surety, if any, the Owner shall make payment
of retainage applying to such Work or designated portion thereof. Such
payment shall be adjusted for Work that is incomplete or not in
accordance with the requirements of 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
Clause 11.4.1.5 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 for 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 shall 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 not be unreasonably withheld. The stage of the
progress of the Work shall be determined by written agreement between
the Owner and Contractor or, if no agreement is reached, by decision of
the Architect.
9.9.2 Immediately prior to such partial occupancy or use, the Owner,
Contractor and Architect shall jointly inspect the area to be occupied
or portion of the Work to be used in order to 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 receipt of written notice that the Work is ready for
final inspection and acceptance and upon receipt of a final Application
for Payment, the Architect will promptly make such inspection and, when
the Architect 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 on the basis of the
Architect's on-site visits and inspections, the Work has been completed
in accordance with terms and conditions of the Contract Documents and
that the entire balance found to be due the Contractor and noted in the
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.
9.10.2 Neither final payment nor any remaining retained percentage
shall become due until the Contractor submits to the Architect (1) an
affidavit that payrolls, bills for materials and
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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 surely, 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.
9.10.3 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 Architect
so confirms, the Owner shall, upon application by the Contractor and
certification by the 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 not fully
completed or corrected is less than retainage stipulated in the
Contract Documents, and if bonds have been furnished, the written
consent of surely 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 prior to certification of such payment. Such payment
shall be made under terms and conditions governing final payment,
except that it shall not constitute a waiver of claims.
9.10.4 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.
9.10.5 Acceptance of final payment by the Contractor, a Subcontractor
or material supplier shall constitute a waiver of 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.
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.
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 Subcontractors or
Sub-subcontractors; and
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.3 other properly 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 property or their
protection from damage, injury or loss.
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 safely 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 on such
activities under supervision of properly qualified personnel.
10.2.5 The Contractor shall promptly remedy damage and loss (other
than damage or loss insured under properly 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 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 and Architect.
10.2.7 The Contractor shall not load or permit any part of the
construction or site to be loaded so as to endanger its safety.
10.3 HAZARDOUS MATERIALS
10.3.1 If reasonable precautions will be inadequate to prevent
foreseeable bodily injury or death to persons resulting from a material
or substance, including but not limited to asbestos or polychlorinated
biphenyl (PCB), encountered on the site by the Contractor, the
Contractor shall, upon recognizing the condition, immediately stop Work
in the affected area and report the condition to the Owner and
Architect in writing.
10.3.2 The Owner shall obtain the services of a licensed laboratory
to verify the presence or absence of the material or substance reported
by the Contractor and, in the event such material or substance is found
to be present, to verify that it has been rendered harmless. Unless
otherwise required by the Contract Documents, the Owner shall furnish
in writing to the Contractor and Architect the names and qualifications
of persons or entities who are to perform tests verifying the presence
or absence of such material or substance or who are to perform the task
of removal or safe containment of such material or substance. The
Contractor and the Architect will promptly reply to the Owner in
writing stating whether or not either has reasonable objection to the
persons or entities proposed by the Owner. If either the Contractor or
Architect has an objection to a person or entity proposed by the Owner,
the Owner shall propose another to whom the Contractor and the
Architect have no reasonable objection. When the material or
substance has been rendered harmless, Work in the affected area shall
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resume upon written agreement of the Owner and Contractor. The Contract
Time shall be extended appropriately and the Contract Sum shall be
increased in the amount of the Contractor's reasonable additional costs
of shut-down, delay and start-up, which adjustments shall be
accomplished as provided in Article 7.
10.3.3 To the fullest extent permitted by law, the Owner shall
indemnify and hold harmless the Contractor, Subcontractors, 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 in the affected area if in fact the material or
substance presents the risk of bodily injury or death as described in
Subparagraph 10.3.1 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) and provided that such damage,
loss or expense is not due to the sole negligence of a party seeking
indemnity.
10.4 The Owner shall not be responsible under Paragraph 10.3 for
materials and substances brought to the site by the Contractor unless
such materials or substances were required by the Contract Documents.
10.5 If, without negligence on the part of the Contractor, the
Contractor is held liable for the cost of remediation of a hazardous
material or substance solely by reason of performing Work as required
by the Contract Documents, the Owner shall indemnify the Contractor for
all cost and expense thereby incurred.
10.6 EMERGENCIES
10.6.1 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 acceptable to Owner and 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 or 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' compensation, disability
benefit and other similar employee benefit acts which
are 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;
.5 claims for damages, other than to the Work itself,
because of injury to or destruction of tangible
properly, 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;
.7 claims for bodily injury or property damage arising
out of completed operations; and
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.8 claims involving contractual liability insurance
applicable to the Contractor's obligations under
Paragraph 3.18.
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. Coverages,
whether written on 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 Prior to the commencement of the Work, Contractor shall file
with the Owner valid Certificates of Insurance and amendatory riders or
endorsements to the Contractor's insurance policies, all in form and
substance satisfactory to the Owner, naming the Owner and any
subsidiary, parent or affiliate corporations of the Owner and their
directors, officers, agents and employees or other persons or entities
with an insurable interest designated by the Owner as additional
insureds thereunder. Said endorsements or amendatory riders shall
indicate that as respects said additional insureds, there shall be
severability of interests under said insurance policies for all
coverages provided under said insurance policies. The Certificates and
amendatory riders or endorsements shall clearly indicate the specific
coverage (including the contractual liability for the Contractor's
obligations under Paragraph 3.18) and shall contain a provision
requiring the giving of written notice to the Owner until at least
thirty (30) days prior to the cancellation, non-renewal or material
modification of any such policies, as evidenced by return receipt of
United States Certified or Registered Mail.
11.1.4 If the Contractor fails to purchase or maintain or require to
be purchased and maintained the liability insurance specified by
Subparagraph 11.1.1, the Owner may (but shall not be obligated to)
purchase such insurance on the Contractor's behalf and shall be
entitled to be repaid for any premiums paid therefor by the Contractor
in the manner set forth in Paragraph 2.4.
11.1.5 When such insurance, due to the attainment of a normal
expiration date or renewal date, shall expire, the Contractor shall,
not less than thirty (30) days prior to such expiration or renewal
date, supply the Owner with updated replacement Certificates of
Insurance and amendatory riders or endorsements that clearly evidence
the continuation of all coverage in the same manner, limits of
protection, and scope of coverage, as was provided by the Certificates
and amendatory riders or endorsements originally supplied.
11.2 OWNER'S LIABILITY INSURANCE
11.2.1 The owner shall be responsible for purchasing and maintaining
the owner's usual liability insurance.
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11.3 PROJECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE
11.3.1 Optionally, the Owner may require the Contractor to purchase
and maintain Project Management Protective Liability insurance from the
Contractor's usual sources as primary coverage for the Owner's,
Contractor's and Architect's vicarious liability for construction
operations under the Contract. Unless otherwise required by the
Contract Documents, the Owner shall reimburse the Contractor by
increasing the Contract Sum to pay the cost of purchasing and
maintaining such optional insurance coverage, and the Contractor shall
not be responsible for purchasing any other liability insurance on
behalf of the Owner. The minimum limits of liability purchased with
such coverage shall be equal to the aggregate of the limits required
for Contractor's Liability Insurance under Clauses 11.1.1.2 through
11.1.1.5.
11.3.2 To the extent damages are covered by Project Management
Protective Liability insurance, the Owner, Contractor and Architect
waive all rights against each other for damages, except such rights as
they may have to the proceeds of such insurance. The policy shall
provide for such waivers of subrogation by endorsement or otherwise.
11.3.3 The Owner shall not require the Contractor to include the
Owner, Architect or other persons or entities as additional insureds on
the Contractor's Liability Insurance coverage under Paragraph 11.1.
11.4 PROPERTY INSURANCE
11.4.1 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
written on a builder's risk "all-risk" or equivalent policy form in the
amount of the initial Contract Sum, plus value of subsequent Contract
modifications and cost of materials supplied or installed by others,
comprising total value for the entire Project at the site on a
replacement cost basis without optional deductibles. Such properly
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 11.4 to be covered, whichever is later. This
insurance shall include interests of the Owner, the Contractor,
Subcontractors and Sub-subcontractors in the Project.
11.4.1.1 Property insurance shall be on an "all-risk" or equivalent
policy form and shall include, without limitation, insurance against
the perils of fire (with extended coverage) and physical loss or damage
including, without duplication of coverage, theft, vandalism, malicious
mischief, collapse, earthquake, flood, windstorm, falsework, testing
and startup, temporary buildings and debris removal including
demolition occasioned by enforcement of any applicable legal
requirements, and shall cover reasonable compensation for Architect's
and Contractor's services and expenses required as a result of such
insured loss.
11.4.1.2 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 in writing, then the Owner shall bear all reasonable
costs properly attributable thereto.
11.4.1.3 If the property insurance requires deductibles, the Owner
shall pay costs not covered because of such deductibles.
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11.4.1.4 This property insurance shall cover portions of the Work
stored off the site, and also portions of the Work in transit.
11.4.1.5 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.
11.4.2 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 by 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.
11.4.3 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.
11.4.4 If the Contractor requests in writing that insurance for risks
other than those described herein or other special causes of loss 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.
11.4.5 If during the Project construction period the Owner insures
properties, real or personal or both, at 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 11.4.7
for damages caused by fire or other causes of loss covered by this
separate property insurance. All separate policies shall provide this
waiver of subrogation by endorsement or otherwise.
11.4.6 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 11.4. 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,
and that its limits will not be reduced, until at least 30 days' prior
written notice has been given to the Contractor.
11.4.7 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 described
in Article 6, if any, and any of their subcontractors,
sub-subcontractors, agents and employees, for damages caused by fire or
other causes of loss to the extent covered by property insurance
obtained pursuant to this Paragraph 11.4 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. A waiver of
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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.
11.4.8 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
11.4.10. 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.
11.4.9 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 reach, or in accordance with an arbitration award in
which case the procedure shall be as provided in Paragraph 4.6. If
after such loss no other special agreement is made and unless the Owner
terminates the Contract for convenience, replacement of damaged
property shall be performed by the Contractor after notification of a
Change in the Work in accordance with Article 7.
11.4.10 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 is made, the dispute shall be
resolved as provided in Paragraphs 4.5 and 4.6. The Owner as fiduciary
shall, in the case of arbitration, make settlement with insurers in
accordance with directions of the arbitrators. If distribution of
insurance proceeds by arbitration is required, the arbitrators will
direct such distribution.
11.5 PERFORMANCE BOND AND PAYMENT BOND
11.5.1 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.
11.5.2 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
Architect's or Owner's request or to requirements specifically
expressed in the Contract Documents, it must, if required in writing by
the Architect or Owner, be uncovered for the examination and be
replaced at the Contractor's expense without change in the Contract
Time.
12.1.2 If a portion of the Work has been covered which the Architect
or Owner has not specifically requested to examine prior to its being
covered, the Architect or Owner 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 at the Owner's expense. If such Work is
not in accordance with the Contract Documents, correction shall be at
the Contractor's expense unless the condition was caused by the Owner
or a separate contractor in which event the Owner shall be responsible
for payment of such costs.
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12.2 CORRECTION OF WORK
12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
12.2.1.1 The Contractor shall promptly correct Work rejected by the
Architect or failing to conform to the requirements of the
Contract Documents, whether discovered before or after
Substantial Completion and whether or not fabricated,
installed or completed. Costs of correcting such rejected
Work, including additional testing and inspections and
compensation for the Architect's services and expenses made
necessary thereby, shall be at the Contractor's expense.
12.2.2 AFTER SUBSTANTIAL COMPLETION
12.2.2.1 In addition to the Contractor's obligations under Paragraph
3.5, if, within one year after the date of Substantial Completion of
the Work or 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. The Owner shall give such notice promptly after
discovery of the condition. During the one-year period for correction
of Work, if the Owner fails to notify the Contractor and give the
Contractor an opportunity to make the correction, the Owner waives the
rights to require correction by the Contractor and to make a claim for
breach of warranty. If the Contractor fails to correct nonconforming
Work within a reasonable time during that period after receipt of
notice from the Owner or Architect, the Owner may correct it in
accordance with Paragraph 2.4.
12.2.2.2 The one-year period for correction of Work 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.
12.2.2.3 The one-year period for correction of Work shall not be
extended by corrective Work performed by the Contractor pursuant to
this Paragraph 12.2.
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 are neither corrected by the Contractor nor accepted by
the Owner.
12.2.4 The Contractor shall bear the cost of correcting destroyed or
damaged construction, whether completed or partially completed, of the
Owner or separate contractors caused by the Contractor's correction or
removal of Work which is not in accordance with the requirements of the
Contract Documents.
12.2.5 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 one-year period for correction of Work 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
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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.
ARTICLE 13 MISCELLANEOUS PROVISIONS
13.1 GOVERNING LAW
13.1.1 The Contract shall be governed by the law of the place where
the Project is located.
13.2 SUCCESSORS AND ASSIGNS
13.2.1 The Owner and Contractor respectively bind themselves, their
partners, successors, assigns and legal representatives to 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. The Contractor
shall not assign the Contract as a whole, or any monies due or to
become due thereunder, without written consent of the Owner. If the
Contractor attempts to make such an assignment without such consent, it
shall nevertheless remain legally responsible for all obligations under
the Contract. Owner may assign its rights under the Contract to a
lender and Contractor agrees to enter into an agreement with such
lender pursuant to which at lender's request Contractor will complete
the Work upon payment of the balance of the amounts due to Contractor
hereunder. Any Assignee of Owner shall be entitled to all rights and
subject to all obligations of the Owner hereunder.
13.2.2 The Owner may, without consent of the Contractor, assign the
Contract to an institutional lender providing construction financing
for the Project. In such event, the lender shall assume the Owner's
rights and obligations under the Contract Documents. The Contractor
shall execute all consents reasonably required to facilitate such
assignment.
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.
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, Architect or
Contractor shall constitute a waiver of a right or duty afforded them
under the Contract, nor shall such action or failure to act constitute
approval of or acquiescence in a breach thereunder, except as may be
specifically agreed in writing.
13.5 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 bear
all related costs of tests, inspections and approvals. The Contractor
shall give the Architect
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and Owner timely notice of when and where tests and inspections are to
be made so that the Architect may be present for such procedures. The
Owner shall bear costs of tests, inspections or approvals which do not
become requirements until after bids are received or negotiations
concluded.
13.5.2 If the 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 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 Architect of when and where
tests and inspections are to be made so that the Architect may be
present for such procedures. Such costs, except as provided in
Subparagraph 13.5.3, shall be at the Owner's expense.
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,
all costs made necessary by such failure including those of repeated
procedures and compensation for the Architect's services and expenses
shall be at the Contractor's expense.
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 Architect.
13.5.5 If the Architect is to observe tests, inspections or approvals
required by the Contract Documents, the 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 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 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 occurring
subsequent to the relevant date of Substantial
Completion and prior to issuance of the final
Certificate for Payment, any applicable statute of
limitations 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 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 any act or failure to act by the
Contractor pursuant to any Warranty
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provided under Paragraph 3.5, the date of any
correction of the Work or failure to correct the Work
by the Contractor under Paragraph 12.2, or the date
of actual commission of any other act or failure to
perform any duty or obligation by the Contractor or
Owner, whichever occurs last.
ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the Work is
stopped for a period of 30 consecutive days through no act or fault of
the Contractor or a Subcontractor, Sub-subcontractor or their agents or
employees or any other persons or entities performing portions of the
Work under direct or indirect contract with the Contractor, for any of
the following reasons:
.1 issuance of an order of a court or other public
authority having jurisdiction which requires all Work
to be stopped;
.2 an act of government, such as a declaration of
national emergency which requires all Work to be
stopped;
.3 because the 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; or
.4 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 The Contractor may terminate the Contract if, through no act
or fault of the Contractor or a Subcontractor, Sub-subcontractor or
their agents or employees or any other persons or entities performing
portions of the Work under direct or indirect contract with the
Contractor, repeated suspensions, delays or interruptions of the entire
Work 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.
14.1.3 If one of the reasons described in Subparagraph 14.1.1 or
14.1.2 exists, the Contractor may, upon seven days' written notice to
the Owner 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.
14.1.4 If the Work is stopped for a period of 60 consecutive days
through no act or fault of the Contractor or a Subcontractor or their
agents or employees or any other persons performing portions of 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 and the Architect, terminate the Contract and
recover from the Owner as provided in Subparagraph 14.1.3.
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 of the Contract Documents.
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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. Upon request of the
Contractor, the Owner shall furnish to the Contractor
a detailed accounting of the costs incurred by the
Owner in finishing the Work.
14.2.3 When the Owner terminates the Contract for one of the reasons
stated in Subparagraph 14.2.1, the Contractor shall not be entitled to
receive further payment until the Work is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of
finishing the Work, including compensation for the Architect's services
and expenses made necessary thereby, and other damages incurred by the
Owner and not expressly waived, such excess shall be paid to the
Contractor. If such costs and damages exceed the unpaid balance, the
Contractor shall pay the difference to the Owner. The amount to be paid
to the Contractor or Owner, as the case may be, shall be certified by
the Architect, upon application, and this obligation for payment shall
survive termination of the Contract.
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 The Contract Sum and Contract Time shall be adjusted for
increases in the cost and time caused by suspension, delay or
interruption as described in Subparagraph 14.3.1. Adjustment of the
Contract Sum shall include profit. 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 the Contract.
14.4 TERMINATION BY THE OWNER FOR CONVENIENCE
14.4.1 The Owner may, at any time, terminate the Contract for the
Owner's convenience and without cause.
14.4.2 Upon receipt of written notice from the Owner of such
termination for the Owner's convenience, the Contractor shall:
.1 cease operations as directed by the Owner in the
notice;
.2 take actions necessary, or that the Owner may direct,
for the protection and preservation of the Work; and
.3 except for Work directed to be performed prior to the
effective date of termination stated in the notice,
terminate all existing subcontracts and purchase
orders and enter into no further subcontracts and
purchase orders.
14.4.3 In case of such termination for the Owner's convenience, the
Contractor shall be entitled to receive payment for Work executed, and
costs incurred by reason of such
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termination, along with reasonable overhead and profit not to exceed
the Contractor's fee on the Work not executed; provided that in the
event of any termination pursuant to Sections 2.2.3 or 6.7 of the
Agreement, Owners shall be obligated to pay for the cost of the Work
executed and not the attendant overhead and profit.
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