EXHIBIT 10.17
GENERAL CONTRACTOR AGREEMENT (GUARANTEED MAXIMUM PRICE )
This GENERAL CONTRACTOR Agreement is entered into effective as of April 4, 2005,
by and between The SiteWorks Building & Development, SBD , 0000 X Xxxxx Xxx
(General Contractor) and, Mr.& Xxx. Xxxxxxxxxx, 00000 X X 00xx Xxxxx, Xxxxx
Xxxxxxx, Xxxxx, Xxxxxxx 00000, 000 000 0000 hereinafter referred to as "Owner."
ARTICLE I PROJECT
1.01 Owner intends to construct the Renovations to House at 00000 XX 00xx
Xx. Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx including construction of new
addition at front of house, new kitchen, construction of new master
bedroom, 20x20 patio, re-roof existing, roof new additions and
electrical panel for which Owner intends to achieve Substantial
Completion for all Stages of construction (as defined below) on or
November 30, 2006. Owner is responsible for upgrading A/C unit. The
Contract Time and the date by which Substantial Completion should be
achieved will be established when and if Owner accepts Contract
Manager's Guaranteed Maximum Price proposal and permit approval.
1.03 Scope of work will be defined on Architectural Drawings prepared by
Xxxxx Xxxxx Architect, 0000 Xxxxxxxx Xxxxx, Xxxxxxx, XX 00000 and
dated 3/6/06.
ARTICLE II DEFINITIONS
2.01 Certain Definitions:
(a) Contract Documents: This Agreement, including Owner's Standard Uniform
General and Supplementary Conditions, Special Conditions, Division I
Specifications, all Addenda issued prior to the Effective Date, the Project
Manuals developed for the construction of the Project or a portion thereof, all
documents required thereunder, the Drawings and Specifications developed by the
Design Consultant. The Contract Documents form the Contract between Owner and
General Contractor. General Contractor shall perform all of its services and
construct the Work (as defined below) pursuant to the entire Contract. Duties
and obligations of General Contractor which are described in this Agreement may
be expanded or further defined by additional provisions of the other Contract
Documents. "General Contractor" shall be substituted for "Contractor" or
"General Contractor" in Owner's Standard Uniform General and Supplementary
Conditions and Division I Specifications.
(b) Construction Cost Limitation: The cost limit for construction which must not
be exceeded as a result of the design of the Design Consultant and which may be
stipulated if a contract with a Design Consultant.
(c) . Construction Phase: The implementation and execution of the construction
work required by the Contract Documents. The construction of the Project may be
divided into different stages each with different dates for implementation and
completion (referred to as a "Stage").
(d) Project Team: The Owner, General Contractor, Design Consultant(s), any
separate contractors employed by Owner, and other consultants employed for the
purpose of programming, design, and construction of the Project. The
constitution of the Project Team may vary at different phases of the Project.
The Project Team will be designated by Owner and may be modified from time to
time by Owner.
(e) Day: The calendar day unless otherwise specifically designated.
(f) Design Consultant: Licensed professionals, or firms employing such licensed
professionals, engaged by Owner as independent consultants for design of all or
a portion of the Project Improvements and to prepare drawings and specifications
for the construction of the Project (the "Drawings and Specifications"). More
than one such professional or firm may be employed by Owner. (All such
professionals or firms, regardless of number, may be referred to in the singular
herein,)
(g) Final Completion; as defined by AIA or industry Standard Uniform and
Supplementary General Conditions.
(h) General Conditions Work: As defined in by standard practice
(i) Blank
(j) Preconstruction Phase: The programming, schematic design, design
development, construction documents and bidding phases. (k)Preliminary Project
Cost The total estimated cost of all project development, including design,
construction, and other associated costs which will be established prior to the
commencement of design.
(I) Project Construction Budget (PCB): The budget established for the site
preparation and construction of all the Project Improvements and facilities
relating to and being a part of the Project, which includes the Construction
Cost Limitation and other costs specified by Owner,
(m) Project Improvements: All Project facilities requiring construction,
including all preparatory matters prior to construction, such as site
preparation.
(n) Standards and Standard Specifications: The construction and design
requirements and standards of BOCA or National Building Code and Florida
Building Code and various building and life safety code specified by OFPC which
are hereby incorporated by reference.
(o) Subcontractors; All trade contractors, separate contractors, and
subcontractors entering into contracts ("Subcontracts") with the General
Contractor for the performance of the work. The relationship between the General
Contractor and the Subcontractors shall be that of a general contractor to its
subcontractors unless otherwise approved in advance in writing by Owner, or
except when Owner enters into a separate contract directly with a Subcontractor.
(p) Substantial Completion: November 15, 2006, As defined by Standard Uniform
General and Supplementary General Conditions,
(q) Total Project Cost :The total budget established for the Project by the
SiteWorks Building & Development, SBD (General Contractor) at the end of the
design development phase (subject to subsequent modification by Owner), which
includes but is not limited to professional services costs, General Contractor's
costs, the costs of the General Conditions items, furniture, fixtures and
equipment costs, landscaping costs, moving costs, and other miscellaneous costs.
(r)Work: The provision of all services, labor, materials, supplies, and
equipment which are required or reasonably inferable to complete the Project in
strict accordance with the requirements of the Contract Documents (as such may
be modified or amended). The term "reasonably inferable" takes into
consideration the understanding of the parties hereto that not every detail will
be shown in the Contract Documents. The General Contractor shall not be entitled
to an increase in the Guaranteed Maximum Price (as described in section due to
the absence of any detail or specification the Contractor may require or for any
construction which may be found necessary as the work progresses in order to
complete the construction of the Project. If an item or system is either shown
or specified, all material and equipment required for the proper installation of
such item or system and needed to make a complete operating installation shall
be provided whether or not detailed or specified, omitting only such parts as
are specifically excepted by the Owner. Notwithstanding the above, the
Contractor shall not be responsible for design, except incidental
designing/detailing as required by the Specifications for shop drawing purposes.
ARTICLE III DESIGNATION OF GENERAL CONTRACTOR AND DUTIES
3.01 The Owner hereby designates and appoints the General Contractor and
authorizes the General Contractor to so act in connection with the scope of work
and services set forth and described in this Agreement.
3.02 Notwithstanding anything to the contrary contained in this Agreement, Owner
and General Contractor agree and acknowledge that Owner is entering into this
Agreement in reliance on General Contractor's special and unique abilities with
respect to performing its obligations hereunder, and General Contractor's
special and unique abilities with respect to GENERAL CONTRUCTION. The General
Contractor accepts the relationship of trust and confidence established between
it and the Owner by this Agreement. General Contractor covenants with Owner to
use its best efforts, skill, judgment, and abilities to perform the services
hereunder and to further the interests of Owner in accordance with Owner's
requirements and procedures, in accordance with the highest standards of General
Contractor's profession or business and in compliance with all applicable
national, federal, state, municipal, laws, regulations, codes, ordinances,
orders and with those of any other body having jurisdiction, General Contactor
warrants, represents, covenants, and agrees that there are no obligations,
commitments, or impediments of any kind that will limit or prevent performance
of the services required hereunder.
3.03 The General Contractor warrants, represents, covenants, and agrees that all
of the Services to be performed by the General Contractor under or pursuant to
this Agreement shall be of the standard and quality which prevail among similar
businesses and organizations of superior knowledge and skill engaged in
providing similar services in major United States urban areas under the same or
similar circumstances and involving a project such as The Project.
3.04 The General Contractor's duties as set forth herein shall at no time be in
any way diminished by reason of any approval by the Owner nor shall the General
Contractor be released from any liability by reason of such approval by die
Owner, it being understood that the Owner at all times is ultimately relying
upon the General Contractor's skill and knowledge in performing the services
required hereunder.
3.05 The General Contractor warrants, represents, covenants, and agrees that all
persons connected with the General Contractor directly in charge of its services
arc duly registered and/or licensed under the laws, rules and regulations of any
authority having jurisdiction, if so required by such laws, rules and
regulations.
3.06 The General Contractor warrants, represents, covenants, and agrees to call
to Owner's attention anything of any nature in any drawings, specifications,
plans, sketches, instructions, information, requirements, procedures, and other
data supplied to the General Contractor (by the Owner or any other party) which
it regards in its opinion as unsuitable, improper, or inaccurate in connection
with the purposes for which such document or data is furnished. Nothing shall
excuse or detract from the General Contractor's responsibilities or obligations
hereunder in a case where such document or data is furnished unless the General
Contractor advises Owner in writing that in its opinion such document or data
and any requests made therein for action are unsuitable, improper, or inaccurate
and Owner confirms in writing that it wishes the General Contractor to proceed
in accordance with the data as originally given.
3.07 The General Contractor warrants, represents, covenants, and agrees to
furnish efficient business administration and superintendence and perform its
services hereunder or pursuant if this Agreement in the best way and in the most
expeditious and economical manner consistent with the interests of Owner.
3.08 The General Contractor warrants, represents, covenants, and agrees that it
shall, at its own cost, make good any defects in the Preconstruction Phase
Services as soon as the General Contractor becomes aware of such defects or is
notified of such defects should the General Contractor refuse or neglect to make
good such defects within a reasonable time after receiving notice requesting
such remedial work, then the Owner shall be entitled to make good such defective
services at the expense of the General Contractor. This commitment by General
Contractor is in addition to, and not in substitution for, any other remedy for
defective Services which the Owner may have at law or in equity. General
Contractor's obligations with respect to Construction Phase Services are set
forth in Owner's Standard Uniform General and Supplementary Conditions and
elsewhere as may be noted.
3.09 General Contractor warrants, represents, and agrees that if (i) it is a
corporation or limited liability company, then it is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida, or a foreign corporation or limited liability company duly authorized
and in good standing to conduct business in The State of Florida, that it has
all necessary corporate power and has received all necessary corporate approvals
to execute and deliver the Agreement, and the individual executing the Agreement
on behalf of General Contractor has been duly authorized to act for and General
Contractor, or (ii) if it is a partnership, limited partnership, or limited
liability partnership, then it has all necessary partnership power and has
secured all necessary approvals to execute and deliver this Agreement and
perform all its obligations hereunder. The individual executing this Agreement
on behalf of General Contractor has been duly authorized to act for and bind
General Contractor.
3.10 Neither the execution and delivery of this Agreement by General Contractor
nor the performance of its obligations hereunder will result in the violation of
any provision, if a corporation, of its articles of incorporation or by-laws, if
a limited liability company, of its articles of organization or regulations, or
if a partnership, by any partnership agreement by which General Contractor is
bound, or any agreement by which General Contractor is bound or to the best of
the General Contractor's knowledge and belief, will conflict with any order or
decree of any court or governmental instrumentality relating to General
Contractor.
3.12 Except for the obligation of Owner to pay General Contractor certain
fees and expenses pursuant to the terms of this Agreement, and to
perform certain other obligations pursuant to the terms and conditions
explicitly set forth herein, Owner shall xxxx no liability to General
Contractor or to anyone claiming through or under General Contractor by
reason of the execution or performance of this Agreement.
Notwithstanding any obligation or liability of Owner to General
Contractor, no present or future partner or affiliate of Owner or any
agent, officer, director, employee, or regent of Owner, or of the
components comprising The OWNER, or anyone claiming under Owner has or
shall have any personal liability to General Contractor or to anyone
claiming through or under General Contractor by reason of the execution
or performance of this Agreement.
ARTICLE IV GENERAL CONTRACTOR'S PERSONNEL AND SUBCONTRACTORS
4.01 The General Contractor's personnel, and the General Contractor's associated
sub consultants, to be employed in the Project, shall be identified in Exhibit
A. The personnel and entities identified in Exhibit A shall not be changed
except with the Owner's prior written agreement, which shall not be unreasonably
withheld.
4.02 All subcontracts shall be awarded in accordance with the normal industry
standards. General Contractor shall notify Owner in advance in writing of the
identities of all Subcontractors with which it intends to subcontract. General
Contractor shall not subcontract with any Subcontractor to which Owner has a
reasonable objection. Such notice shall be given sufficiently in advance to
permit Owner adequate time for review without delay to the Project, and allowing
time for General Contractor to make substitute selections, but in no event shall
such notice be given less than ten (10} days before the intended subcontract
date. General Contractor shall not be required to subcontract with any
Subcontractor to which it has reasonable objection, or if such subcontract is
not in accordance with normal industry practice. If General Contractor intends
to submit a proposal for subcontract work, it shall notify Owner in writing
prior to soliciting proposals from potential subcontractors. When General
Contractor's Subcontractors for constructing the Work have been identified, they
shall not be changed without Owner's prior written approval, which shall not be
unreasonably withheld. General Contractor shall not incur any Subcontract costs
prior to issuance by Owner of a Notice to Proceed for such Work.
ARTICLE V
GENERAL CONTRACTOR'S SERVICES;
PART 1; PRECONSTRUCTION PHASE SERVICES
Design drawings, permitting of all required drawings for the project.
5.01 ARTICLE VI
GENERAL CONTRACTOR'S SERVICES:
PART 2; CONSTRUCTION PHASE SERVICE
6.01 The Construction Phase shall be deemed to commence upon the earlier of (i)
the date specified in a Notice to Proceed issued by Owner after approval by
Owner of a Guaranteed Maximum Price for the Work or portion of the Work
specified in such Notice to Proceed, (ii) the issuance of a purchase order by
General Contractor for materials or equipment for the Project after prior
written authorization by Owner, or (iii) award of a Subcontract in accordance
with the requirements of this Contract and after prior written authorization by
Owner, Preconstruction Phase Services may overlap Construction Phase Services.
In implementation, of the responsibilities and duties of the General Contractor
for the Construction Phase, the General Contractor shall provide the following
services:
(a) Project Control.
(1) General Contractor shall construct the work in strict accordance with the
Contract Documents within the time required by the Schedule approved by Owner
and as required by Owner's Standard Uniform General and Supplementary General
Conditions, and Division I Specifications. General Contractor shall award and
enter into, as a general contractor, all Subcontracts necessary and appropriate
to provide all labor and material; for the construction of the Project, General
Contractor shall self-perform works as described in the attached exhibits and
other Work which has been awarded to General Contractor.
(2) Monitor (the Work of the Subcontractors as required and coordinate such Work
with the activities and responsibilities of the Project Team with a goal to
attain completion of the Project at a cost not to exceed the Project
Construction Budget Guaranteed Maximum Price, and to attain Substantial
Completion by the date set forth in Exhibit B herein when executed.
(3) Attend Owner's Project progress meetings scheduled by Owner no less often
that once per month, and fully advise the Project Team at such meetings as to
Project status.
(4) Schedule, direct and attend regular meetings with other members of the
Project Team during the construction of the Project to discuss jointly such
matters as procedures, progress, problems and scheduling. Prior to each meeting,
the General Contractor shall prepare and distribute to the other Project Team
members b written agenda for the meeting. Prepare and distribute at each Project
Team meeting a memorandum setting forth the list of critical activities which
require immediate action and the date by when the activity must be completed,
and record and distribute the minutes of each meeting.
(5) As provided Exhibit A, maintain a competent, full-time staff at the Project
site to coordinate and provide general direction over the Work and progress of
the Subcontractors on the Project.
(6) As provided in Exhibit A, establish on-site organization of personnel and
clearly defined lines of authority in order to effectuate the overall plans of
the Project Team. At a minimum, General Contractor's site personnel shall
include a project manager, project superintendent, project engineer, and
appropriate administrative support personnel.
(7) In consultation with Owner, establish procedures for coordination among the
Project Team, Subcontractors, and separate contractors. Design Consultants, and
other consultants with respect to all aspects of the construction of the
Project, and implement such procedures.
(8) Expedite and coordinate delivery and installation of Owner-procured material
and equipment.
(9) General Contractor shall supervise and direct the Work and shall be solely
responsible for construction means, methods, techniques, sequences, and
procedures for the Work.
(10) In accordance with Owner's Standard Uniform General and Supplementary
Conditions, provide and pay for all labor, materials, equipment, tools,
construction equipment and machinery, water, heat, utilities, transportation,
and all other facilities and services necessary for the proper execution and
completion of the Work in strict accordance with the requirements of the
Contract Documents.
(11) Obtain building permits and special permits for permanent improvements as
required by law or the Contract Documents. Assist Owner or Design Consultant in
obtaining all approvals required from authorities having jurisdiction over the
Project.
(12) Inspect the Work of Subcontractors to ensure conformance with the Contract
Documents. Scheduling: Perform Project scheduling in compliance with Owner's
Project Scheduling if included therein, otherwise provide regular monitoring,
updating, and reissuing of the all Project Schedules as construction progresses,
including, without limitation, master Project schedules, detailed construction
schedules, submittal schedules, inspection schedules, and occupancy schedules;
identify potential and actual variances between scheduled and probable
completion dates, review the schedules for Work not started or incomplete and
recommend to the Owner adjustments in the schedules to conform with the probable
completion dates and provide summary reports to the Owner of each schedule
update and document all changes in construction schedules. Incorporate
activities of the Subcontractors and other parties affecting the progress of the
Work, including, without limitation, activity sequences and durations,
allocation of labor and materials, processing of shop drawings, data, and
samples, delivery of long lead time items. Include Owner's occupancy
requirements and occupancy priorities. Evaluate Subcontractor's personnel and
equipment, and availability of supplies and materials, with respect to each
Subcontractor's ability to meet the Schedule. Recommend action to Owner when any
Subcontract requirements arc not met, or appear unlikely to be met.
(c) Cost Control.
(t) Maintain cost accounting records in good form on expenditures and materials,
or for any other expenditures requiring accounting records; and afford the Owner
access to these records and preserve them for a period of four (4) years after
final payment is made by the Owner to the General Contractor.
(2) Prepare and administer, and provide to Owner, Subcontractors' schedule of
values, subcontractors' sworn statements and waivers of lien as required,
contract and disbursement summaries, change order listings and change Orders,
and budget cost summary reports as required by Owner.
(3) General Contractor shall promptly identify all variances between estimated
costs and actual costs, and shall promptly report such variances for the Project
Team along with recommendations for action, but in any event, no more than two
(2) business days after acquiring such information. Change Orders; develop and
implement a system acceptable to the Owner for the preparation, review and
processing of Change Orders, change order requests, and requests for
information, in accordance with Owner's Standard Uniform General and
Supplementary Conditions and Division I Specifications, Wage Rates. Maintain
strict enforcement of State of Florida prevailing wage laws in accordance with
Owner's Standard Uniform General and Supplementary Conditions. Cooperate with
Owner in monitoring the submission to the Owner of payroll records by the
various Subcontractors when requested.
(f) Special Consultants.
Assist the Owner in selecting and retaining professional services not otherwise
described in this Agreement for the Project, and coordinate these services at
the owner's request in order to meet the Schedule, without however, assuming
direct responsibility for the work of these consultants.
(g) Documents. Shop Drawings, and Submissions.
(1) The Design Consultant shall be the interpreter of the design intent of the
Construction Contract Documents, subject to the terms and conditions of the
agreement between the Design Consultant and the Owner, provided, however, the
General Contractor shall request such interpretations from the Design
Consultant, with Owner consent, from time to time in order to facilitate the
General Contractor `s accomplishment of its duties under this Agreement
(2) In collaboration with the other members of the Project Team, the General
Contractor shall establish and implement procedures for expediting the
processing and Design Consultants' approval of shop drawings and other
submissions, and in accordance with Specifications, as applicable. Receive from
the Subcontractors, and review, all shop drawings and other submissions for
conformance with the Contract Documents. Coordinate shop drawings and other
submissions with the Contract Documents and other related documents prior to
transmitting them to other members of the Project Team.
(3) The General Contractor shall record the progress of the Project, submit
written progress reports to the other members of the Project Team, including
information on the Subcontractor's Work and the percentage of completion, and
keep a daily log of Project construction activities available to the other
members of the Project Team in accordance with Owner's Standard Uniform General
and Supplementary Conditions; and each member of the General Contractor's site
personnel, whose job function involves or includes observation of Project
construction, shall maintain a daily log of construction activities and
observations, which daily logs shall be submitted to the Owner no less
frequently than weekly for the immediately preceding week.
(4) The General Contractor shall maintain at the Project site and make available
to Owner, updated records of subcontracts, drawings, examples, purchases,
materials, equipment, maintenance and operating manuals and instructions, and
other construction related documents, including all changes and revisions, a
directory of personnel, Project correspondence, inspection procedures (as
prepared by others), testing laboratory procedures (as prepared by others),
contract changes, time extensions, progress payment data, final acceptance
procedures, instructions from Owner; and shall obtain data from Subcontractors
and maintain current set of record drawings and project manual.
(5) Coordinate and facilitate the creation of record and as-built drawings, and
the procurement of warranties and guarantees,
(6) Provide Owner with complete, unaltered copies of all Subcontracts, and all
amendments thereto.
(7) Submit to Owner all documents substantiating payments to qualifying HUB'S in
a format designated by Owner.
(h) Safety,
General Contractor is solely responsible for all safety precautions and programs
in connection with the Work. General Contractor shall review the safety programs
developed by each of the Subcontractors and prepare and submit to Owner a
comprehensive safety program which complies with all applicable requirements of
the Occupational Safety and Health Act of 1970 and all other applicable State,
Local, or federal laws or regulations, and with any Owner-controlled insurance
program. General Contractor shall ensure compliance by the Subcontractors with
their contractual safety requirements. The existence of any Owner-controlled
insurance programs shall not operate to diminish or eliminate in any way General
Contractor's responsibilities under this paragraph.
ARTICLE VII PAYMENTS TO THE GENERAL CONTRACTOR
7.01 N/A
(e) Additional Services:
(1) From time to time Owner may request that General Contractor perform services
in addition to those Services required or reasonably inferable herein (such
services in addition are hereinafter called "Additional Services"). Each time
that Construction Manager is requested to perform services which General
Contractor seems to be Additional Services, and prior to performing such
Additional Services, General Contractor shall complete and forward to Owner for
acceptance by Owner an Additional Services Requisition in the form of Exhibit C
attached hereto, which shall describe in detail die nature or scope of the
Additional Services, the basis upon which General Contractor has determined that
the requested services are Additional Services, and which shall set forth the
maximum amount of fees and reimbursable expenses for which General Contractor is
prepared to perform such Additional Services, together with a proposed schedule
for the performances of such Additional Services, General Contractor shall
proceed only after written acceptance by Owner of the Additional Services
Requisition and written approval from Owner to proceed.
(2) If Owner concludes that all or part of the services described in the
Additional Services Requisition are Services already required to be performed by
General Contractor pursuant to the Agreement or are reasonably inferable there
from, then Owner shall notify General Contractor of Owner's determination and
Owner and General Contractor shall attempt, in good faith, to resolve by
negotiation their differences. If within seven (7) business days Owner and
General Contractor are unable to resolve their differences, then General
Contractor shall nevertheless perform the services requested by Owner as if the
services were Services required to be performed pursuant to this Agreement,
without prejudice, however, to General Contractor's right to pursue a claim for
compensation for such disputed services.
(3) Upon acceptance by Owner, each Additional Services Requisition and the
services performed by General Contractor pursuant to such Additional Services
Requisition shall become part of this Agreement and shall be subject to all the
terms and conditions of this Agreement, as fully and completely as though the
same had been included in this Agreement as a required Service at the original
execution of this Agreement.
(I) N/A
7.02 Construction Phase
(a) Owner shall compensate General Contractor for Construction Phase services on
the basis of the sum of the Cost of the Work as defined herein plus the General
Contractor's Construction Phase Fee (such sum is referred to as the "Contract
Sum") as set forth below. The Contract Sum shall not exceed the Guaranteed
Maximum Price set forth in Exhibit B hereto, subject to changes authorized by
the terms and conditions of the Contract Documents. Any cost which is not
authorized by the terms and conditions of the Contract Documents, but which
would cause the Guaranteed Maximum Price to be exceeded shall be paid by General
Contractor without reimbursement by Owner. In the event that the Contractor is
required to pay or bear the burden of any new federal, state, or local tax, or
of any rate increase of an existing tax (except a fax on income) with respect to
its forces and/or its performance of the Work (not including the forces and Work
performed by Subcontractors) as a result of any statute, court decision, written
ruling, or regulation taking effect after the effective date of this Agreement,
the Guaranteed Maximum Price shall be increased by the amount of the new tax or
tax increase.
(b) The Owner has afforded the General Contractor with unrestricted access to
the existing improvements and conditions on the site and has given the General
Contractor the opportunity to thoroughly investigate the existing conditions,
which the General Contractor represents it has done. The results of General
Contractor's investigation have been taken into account in establishing the
Guaranteed Maximum Price of the Work. General Contractor shall not be entitled
to a claim for an adjustment in time or price under Owner's Standard Uniform
General and Supplementary Conditions for conditions which General Contractor
discovered or ought to have discovered in General Contractor's investigation.
Before<< proceeding with the Work, the General Contractor shall review the
Drawings and Specifications and notify the Design Consultant and Owner of any
errors, omissions or discrepancies in the Drawings and Specifications it
discovers with respect to the existing conditions. The General Contractor shall
not proceed with the Work, if any defect, defined as any error, omission,
conflict, inconsistency or lack of clarity, is known or should be known by
General Contractor to exist in the Drawings or Specifications or other Contract
Documents, and if General Contractor nevertheless proceeds to perform the work
then General Contractor shall be responsible for all foreseeable resulting cost,
including the cost of redoing or remedying the Work and time delays resulting
there from unless and to the extent such costs result from concealed conditions.
Upon discovering a defect in the Drawings or Specifications, the General
Contractor shall immediately submit a written request for an explanation or
decision to the Design Consultant and the Owner.
(c) N/A
(d) N/A
(e) In full consideration of General Contractor's services during the
Construction Phase of this Agreement, Owner shall pay General Contractor a
Construction Phase Fee as follows:
(f) If the Guaranteed Maximum Price increases by more than three percent from
the amount originally set forth in Exhibit B hereto, then General Contractor
shall be entitled to an equitable increase in the General Contractor's
Construction Phase Fee which shall be calculated pro rata.
(g) In Owner's Standard Uniform General and Supplementary Conditions, references
to adjustments in "cost" or "costs" refer to Costs of the Work as defined herein
below, and references to General Contractor's "overhead" and "profit" refer to
General Contractor's Construction Phase Fee.
(h) The General Contractor's Fee shall cover the General Contractor's profit,
general overhead and the following costs and expenses: All expenses in
connection with maintaining and operating General Contractor's main office and
any branch or field offices, including (except as otherwise provided
hereinafter).
(1) Salaries of General Contractor's officers, project managers, estimators, and
schedulers.
(2) Salaries of persons employed in the main or branch offices of the General
Contractor whose time is devoted lo the general conduct of the General
Contractor's business, such as office managers, stenographers, plan clerks, file
clerks, and draftsmen.
(3) Overhead or general expenses of any kind except those specifically included
herein.
(4) Services and expenses of the estimating, personnel, accounting, budget
control, audit and management information systems (other than pre-construction
services) relating to accounting in General Contractor's office and even if at
the site, except as specifically identified herein.
(5) Interest on the General Contractor's capital or on money borrowed by the
General Contractor, including the capital employed by the General Contractor in
the performance of the Work.
(6) Amounts required to be paid by General Contractor for Federal and/or State
income and franchise taxes.
(7) Legal, accounting, or other similar professional services provided by or lo
General Contractor, in regard lo disputes, arbitrations, litigations or other
such proceedings with Subcontractors, with municipal authorities, with the
Owner, the Design Consultants or any other person or entity relating to the
Project or otherwise.
(i) In addition to the payment procedures described in Owner's Standard Uniform
General and Supplementary Conditions, Division I Specifications, Contractor
shall submit with each application for payment all receipts, invoices with check
vouchers or other evidence of payment, xxxxx cash account information, payrolls,
and any and all other evidence which Owner or Design Consultant shall deem
necessary to support the amount requested, The General Contractor's Construction
Phase Fee shall be shown as a separate line item on the schedule of values. In
determining the percentage of completion, General Contractor shall use the
lesser of the percentage of the Work actually completed for each classification
on the schedule of values, or the percentage of The Guaranteed Maximum Price
allocable to that item which has been actually incurred and demonstrated as an
expense by the General Contractor. If the General Contractor's Construction
Phase Fee is a fixed fee then the amount requested for such fee shall be in the
same proportion to the total fee as the amount requested for the Cost of the
Work relative lo the total Cost of the Work used in deriving the then current
Guaranteed Maximum Price. Retainage as specified in Owner's Standard Uniform
General and Supplementary Conditions will be applied 10 the entire amount
requested including the Cost of the Work and the General Contractor's
Construction Phase Fee. Each schedule of values submitted shall maintain the
originally established value for each work classification line item or
subcontractor, and shall contain any revisions to costs or cost estimates for
each such classification or subcontractor. The format and tracking method of the
original schedule of values and of all updates thereto shall be subject to the
approval of Owner and Design Consultant. If at any time, the amount shown on the
schedule of values exceeds the Guaranteed Maximum Price allocable to that
classification or subcontractor, then the amount payable to General Contractor
by Owner shall be reduced by the amount of such excess. At all times, the
estimated cost of performing the uncompleted and unpaid portion of the Work
(including General Contractor's overhead and profit) shall not exceed the unpaid
balance of the Guaranteed Maximum Price (less retainage on Work previously
completed). Payments to Subcontractors included in an application for payment
shall not exceed the percentage of Work allocable to that Subcontractor for each
respective schedule of values classification which has been actually completed.
7.03 Owner shall have the right to withhold from payments due General Contractor
such sums as are necessary to protect Owner against any loss or damage which may
result from negligence by General Contractor or failure of General Contractor to
perform General Contractor's obligations under this Agreement.
7 .04 The final request for payment shall not be made until General Contractor
delivers to Owner a complete release of all liens arising out of this Agreement
and an affidavit that so far as General Contractor has knowledge or information,
the release includes and covers all materials and services over which General
Contractor has control for which a lien could be filed, but General Contractor
may, if any agent or consultant refuses to furnish a release in full, furnish a
bund satisfactory to Owner to indemnify Owner against any lien. If any lien
remains unsatisfied after all payments are made. General Contractor shall refund
to Owner all moneys Owner may be compelled to pay in discharging such lien,
including all costs and reasonable attorneys' fees, and Owner shall have all
remedies at law and in equity.
7.05 In addition to the procedures contained in the AIA Standard Uniform General
and Supplementary General Conditions, Owner shall have no obligation to make
final payment until a final accounting of the Cost of the Work has been
submitted by General Contractor and has been verified by Owner or Owner's
representatives. The aggregate total of payments to General Contractor shall not
exceed the total of the actual Cost of the Work as verified by Owner or Owner's
representative from General Contractor's final accounting plus the applicable
General Contractor's Construction Phase Fee, as certified for payment in
accordance with lire Contract, but in no event more than the Guaranteed Maximum
Price. If payments made to General Contractor exceed that which is due and owing
pursuant to this Article VII, then General Contractor shall promptly refund such
excess to Owner.
7.06 Any provision hereof to the contrary not withstanding, Owner shall not be
obligated to make any payment (whether a progress payment or final payment) to
General Contractor hereunder if any one or more of the following conditions
precedent exist.
(a) General Contractor is in breach or default under this Agreement;
(b) Any part of such payment is attributable to services which are not performed
in accordance with this Agreement; provided, however, such payment shall be made
as to the part thereof attributable to services which were performed in
accordance with this Agreement;
(c) General Contractor has failed to make payments promptly to consultants or
other third parties used in connection with the services for which Owner has
made payment to General Contractor; or
(d) If Owner, in its good faith judgment, determines that the portion of the
compensation then remaining unpaid will not be sufficient to complete the
services in accordance with this Agreement, no additional payments will be due
General Contractor hereunder unless and until General Contractor, at General
Contractor's sole cost, performs a sufficient portion of the remaining services
so that such portion of the compensation then remaining unpaid is determined by
Owner to be sufficient to so complete the then remaining services.
(e) Nothing contained herein shall require the Owner 10 pay the General
Contractor an aggregate amount exceeding the Guaranteed Maximum Price or to make
payment if in the Owner's belief the cost to complete the Work would exceed the
Guaranteed Maximum Price less previous payments to General Contractor.
7.07 No partial payment made hereunder shall be, or shall be construed to be
final acceptance or approval of that part of the services to which such partial
payment relates, or a release of General Contractor of any of General
Contractor's obligations hereunder or liabilities with respect to such services.
7.08 General Contractor shall promptly pay all bills validly due and owing for
labor and material performed and furnished by others in connection with the
performance of the Preconstruction Phase Services and the construction of the
Work.
7.09 Owner shall have the right to verify and audit the details set forth in
General Contractor's xxxxxxxx, certificates, accountings, cost data, and
statements, either before or after payment therefore, by (1) inspecting the
books and records of General Contractor during normal business hours; (2)
examining any reports with respect to this Project; (3) interviewing General
Contractor's business employees; (4) visiting the Project site; and (5) other
reasonable action.
7.10 The acceptance by General Contractor or General Contractor's successors of
final payment under this Agreement shall constitute a full and complete release
of Owner from any and all claims, demands, and causes of action whatsoever which
General Contractor or General Contractor's successors have or may have against
Owner under the provisions of this Agreement except those previously made in
writing and identified by General Contractor as unsettled at the time of the
final request for payment.
ARTICLE VIII COST OF THE WORK
8.01 The term Cost of the Work means costs which the General Contractor must
necessarily incur to properly perform the Work in strict compliance with the
Contract Documents. Cost of the Work includes only the items set forth in this
Article VIII (a) Labor and Administrative:
(1) Reasonable and customary wages paid to construction workers directly
employed by General Contractor who perform the construction of the Work.
(2) Reasonable and customary wages or salaries of General Contractor's
supervisory and administrative personnel who are identified on Exhibit A but
only when stationed full-time at the site with the Owner's prior consent.
(3) Costs paid or incurred by General Contractor for labor costs arising out of
taxes, insurance, and benefits which an (i) required by law, (ii) required by
collective bargaining agreements, (iii), or otherwise customary, so long as such
costs are based on wages and salaries which are properly included in the Cost of
the Work as defined herein.
(4) Reasonable and customary travel expenses of General Contractor's personnel
incurred directly and solely in support of the Project and approved in advance
in writing by Owner.
(5) Costs of long-distance telephone calls, telegrams, postage, package delivery
and courier service, telephone service, and reasonable and customary xxxxx cash
expenses of General Contractor's jobsite office, incurred directly and solely in
support of the Work, and all incurred at the site.
(b) Materials, Equipment, Tools, Rentals:
(1) Costs of materials and equipment to be incorporated (or incorporated) into
the Work, including transportation charges, and a reasonable and customary
allowance for waste and spoilage. Owner shall be entitled to take possession of
excess materials not incorporated into the Work, or at Owner's option. General
Contractor shall sell such materials and deduct the gross proceeds from the Cost
of the Work. Payment for stored materials is subject to Owner's Standard Uniform
General and Supplementary General Conditions.
(2) Costs of materials, supplies, temporary facilities, equipment, and hand
tools except for those customarily owned by construction workers, all provided
at the site by General Contractor, if such items are fully consumed in the
construction of the Work, and Owner approves such purchase in advance in
writing. Cost for used items shall be based on fair market value and may include
costs of transportation, installation, minor maintenance costs, and removal. If
the item is not fully consumed, then the cost shall be based on cost of the item
minus its fair market salvage value.
(3) Rental charges for temporary facilities, equipment, and hand tools except
for those customarily owned by construction workers, all provided at the site by
General Contractor, and may include transportation, installation, and minor
maintenance costs, and removal, all so long as Owner has approved such items and
the rental rates in advance in writing. If tools, machinery or construction
equipment are rented from the General Contractor, the amount of such rental, the
rate of such rentals, Including the freight and delivery cost thereon and all
operating expenses except labor, shall be determined by application of
"Contractor's Equipment Cost Guide," latest edition published by the AGC,
approved by the Owner before commitments are made and shall in no event be
higher than the prevailing competitive rates paid in the locality for similar
equipment. In no event shall the aggregate rental cost to Owner exceed the
purchase price and maintenance cost of the item. In the event equipment can be
purchased for an amount comparable to the aggregate rental cost of said
equipment, General Contractor shall purchase such equipment and turn it over to
Owner upon final completion of the Work, or, at Owner's option, credit to the
Owner with the amount of the fair market resale value. (4) Site debris removal
and disposal costs in accordance with all applicable laws and regulations. (c)
Subcontracts: Payments made to Subcontractors by General Contractor for the
construction of the Work in accordance with the Contract Documents and the
requirements of the subcontracts with such Subcontractors.
(d) Other costs:
Governmental sales and use taxes directly attributable to the Work. Permit and
inspection fees, except that as a state agency Premiums for insurance and bonds
to the extent directly attributable to this Contract.
Testing fees pursuant to the terms and conditions of Owner's Standard Uniform
General and Supplementary Conditions. Intellectual property royalties and
licenses for items specifically required by the Contract Documents which are, or
will be incorporated into the work. Forfeited deposits, but only if such deposit
has been forfeited in the absence of any fault or negligence of General
Contractor.
Other costs approved in advance in writing by Owner at Owner's sole option and
discretion.
8.0.2
Costs Not Included in the Cost of the Work
The following shall not be included in the Cost of Work to be paid by Owner:
(a) Costs including, but not limited to, the failure to perform of any
Subcontractor or the bankruptcy or insolvency of any Subcontractor.
(b) Legal and administrative costs to review and negotiate these Contract
Documents.
(c) Travel and subsistence expense of General Contractor, its officers or
employees incurred while traveling between the Project and General Contractor's
principal or branch offices, and travel in the metropolitan area of the Project.
(d) Fines, penalties, sanctions or impositions assessed or imposed by any
governmental body, instrumentality or tribunal arising from the fault of General
Contractor.
(e) Costs incurred by General Contractor resulting from the failure of General
Contractor or its Subcontractors to coordinate their work with that of Owner and
its contractors, if any, after agreeing to the schedules therefore, or failure
of General Contractor to comply with directives of Owner not in conflict with
said schedules.
(f) Costs resulting from the failure of General Contractor or any Subcontractor
to procure and maintain insurance as and to the extent required by the Contract
Documents. (g) Any and all personnel costs, including, without limitation,
wages, salaries, and benefits, except for personnel based at the site office and
only as specifically provided herein.
(h) Any and all overhead expense or office expense at any location, except site
office expense to the extent specifically included herein. (i) Costs related to
General Contractor's indemnification obligations pursuant to Article X hereof.
(j) The cost of capital, including, without limitation, interest on capital,
regardless of whether it is related to the Project.
(k) Any cost arising out of the fault or negligence of General Contractor, its
Subcontractors, or any person or entity for whom they may be liable, including,
without limitation, costs related to defective, rejected, or nonconforming work,
materials or equipment, and damage to persons or property.
(I) liquidated or actual damages imposed by Owner for failure of General
Contractor to complete the Work within the Contract Time.
(m) Any and all costs not specifically authorized herein, including, without
limitation, any cost which would cause the Guaranteed Maximum Price to be
exceeded.
ARTICLE IX OWNER'S RESPONSIBILITIES
9.01 The Owner shall be fully acquainted with the Project and shall facilitate
and coordinate the Owner's Project issues with the General Contractor, upon
request, the Owner will furnish in writing the authorization of each
representative of the Owner to represent it in connection with the Project.
9.02 The Owner shall cooperate in providing information to the other members of
the Project Team regarding its requirements for the Project.
9.03 Owner shall furnish for the site of the Project any necessary surveys
describing the physical characteristics, soil reports and subsurface
investigations, known legal limitations, utility locations, and the legal
description; to the extent such items may be required by agreements between
Owner and Design Consultant or other consultants. Owner shall inform all special
consultants retained by the Owner that they shall coordinate their services
through the General Contractor. Owner shall provide special testing and
inspection services to the extent required by Florida Education Code section
51.782, as amended
9.04 If the Owner has actual knowledge of any fault or detect in the Project or
non-conformance with the Drawings and Project Manual, Owner shall give prompt
written notice thereof to the General Contractor.
ARTICLE X INDEMNITY
10.01 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE GENERAL CONTRACTOR
AND ITS AGENTS, PARTNERS, EMPLOYEES, AND CONSULTANTS (COLLECTIVELY
"INDEMNITORS") SHALL AND DO AGREE TO INDEMNIFY, PROTECT, DEFEND WITH COUNSEL
APPROVED BY OWNER, AND HOLD HARMLESS THE OWNER ITS AFFILIATED ENTERPRISES,
REPRESENTATIVES OF THE OWNER, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, REGENTS,
PARTNERS, EMPLOYEES AND AGENTS (COLLECTIVELY "INDEMNTTEES") FROM AND AGATNST ALL
CLAIMS, DAMAGES, LOSSES, LENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND EXPENSES,
INCLUDING ATTORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPTION (COLLECTIVELY
"LIABILITIES") OF ANY PERSON OR ENTITY WHOMSOEVER ARISING OUT OF, CAUSED BY, OR
RESULTING FROM THE PERFORMANCE OF THE SERVICES OR ANY PART THEREOF WHICH ARE
INDEMNITEE, SO LONG AS IT IS NOT CAUSED BY THE SOLE NEGLIGENCE OR WILLFUL
MISCONDUCT OF ANY INDEMNITEE, IN THE EVENT MORE SUCH INDEMNITORS SHALL BE
JOINTLY AND SEVERALLY RESPONSIBLE TO THE INDEMNITEES FOR INDEMNIFICATION AND THE
ULTIMATE RESPONSIBILITY AMONG SUCH INDEMNITORS FOR THE LOSS AND EXPENSE OF ANY
SUCH INDEMNIFICATION SHALL BE SETTLED BY SEPARATE PROCEEDINGS AND WITHOUT
JEOPARDY TO ANY INDEMNITEE. THE PROVISIONS OF THIS ARTICLE SHALL NOT BE
CONSTRUED TO ELIMINATE OR REDUCE ANY OTHER INDEMNIFICATION OR RIGHT WHICH OWNER
OR ANY OF THE INDEMNITIES HAS BY LAW.
10.02 GENERAL CONTRACTOR SHALL PROTECT AND INDEMNIFY THE OWNER FROM AND AGAINST
ALL CLAIMS, DAMAGES, JUDGMENTS AND LOSS ARISING FROM INFRINGEMENT OR ALLEGED
INFRINGEMENT OF ANY UNITED STATES PATENT, OR COPYRIGHT, ARISING BY OR OUT OF ANY
OF THE WORK PERFORMED HEREUNDER OR THE USE BY GENERAL CONTRACTOR, OR BY OWNER AT
THE DIRECTION OF GENERAL CONTRACTOR, OF ANY ARTICLE OR MATERIAL, PROVIDED THAT
UPON BECOMING AWARE OF A SUIT OR THREAT OF SUIT FOR PATENT OR COPYRIGHT
INFRINGEMENT. OWNER SHALL PROMPTLY NOTIFY GENERAL CONTRACTOR AND GENERAL
CONTRACTOR SHALL BE GIVEN FULL OPPORTUNITY TO NEGOTIATE A SETTLEMENT. GENERAL
CONTRACTOR DOES NOT WARRANT AGAINST INFRINGEMENT BY THE OPERATION OF ANY PROCESS
IN THE EVENT OF LITIGATION, OWNER AGREES TO COOPERATE REASONABLY WITH GENERAL
CONTRACTOR AND PARTIES SHALL BE ENTITLED, IN CONNECTION WITH ANY SUCH
LITIGATION, TO BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE. 10.03 The
indemnities contained herein shall survive the termination of this Agreement for
any reason whatsoever.
Exhibit A
Position Project responsibility Xxxx Nurse
Project Manager: Overall Project responsibility Xxxx Xxxxx/Xxxx Xxxxxxx
Superintendent On site personnel management
Skilled Workers Installation of the Work
EXHIBIT B
GUARANTEED MAXIMUM PRICE PROPOSAL
We hereby submit to Mr. & Xxx. Xxxxxxxxxx (OWNER) pursuant to the provisions of
Article V of the GENERAL CONTRACTOR At-Risk Agreement a Guaranteed Maximum Price
for the Project (as defined in the Agreement) based on the Contract Documents
(as defined by the Agreement) developed for the Project, as follows:
1: A lump sum, not-to exceed amount for the reimbursable Cost of the Work
provided by the Agreement (exclusive of contingencies for design, bidding, and
price escalation):
One hundred and thirty one thousand, three hundred dollars ($161,000.00). Permit
Fees are not included and are the homeowner's responsibility.
Payment Schedule: Down payment $45,000.00 upon issuance of permit, bi-weekly
draws as per Industry Standard AIA Draw Schedule.
Total of General Contractor's Construction Phase Fees pursuant to the Agreement
TOTAL $161,000.00
THIS CONTRACT IS CONTINGENT UPON FINANCING
SiteWorks Building & Development Co., Inc.
__________________________________
SSCarl Xxxxxxx Xxxxx, CEO
Date: ___________________________
Accepted and Agreed
__________________________________
By: SSFredricker Rhodriquez, Owner
__________________________________
By: SS Xxxxxxxx X. Xxxxxxxxxx, Owner
Date: ____________________________
