HomeMy WebLinkAboutResolution 2007-077 contract with sundt construction for a new fire protection water line for the marana airport
MARANA RESOLUTION NO. 20Q7-77
RELATING TO MARANA REGIONAL AIRPORT; APPROVING AND AUTHORIZING A
CONTRACT WITH SUNDT CONSTRUCTION, INC. FOR THE CONSTRUCTION
MANAGER AT RISK DESIGN PHASE SERVICES FOR THE CONSTRUCTION OF A NEW
FIRE PROTECTION WATER LINE FOR THE MARANA REGIONAL AIRPORT.
WHEREAS the Mayor and Council find that the tenns and conditions of the contract with
Sundt Construction me. are in the best interest of the Town.
NOW, THEREFORE, BE IT RESOL YED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, that the contract between the Town of Marana and Sundt
Construction me. attached to and incorporated by this reference in this resolution as Exhibit A is
hereby approved, and the Town Manager is hereby authorized to execute it for and on behalf of
the Town of Mar ana.
BE IT FURTHER RESOLVED that the Town's Manager and staff are hereby directed
and authorized to undertake all other and further tasks required or beneficial to carry out the
terms, obligations, and objectives of the aforementioned contract.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 16th d.y arM.y, 2~7 I;{. Y'-IJC/'
Mayor Ed Honea
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AIA DOCUMENT A 12 1 /CMc AND AGC DOCUMENT 565
STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND CONSTRUCTION MANAGER
where the Construction Manager is also
THE CONTRACTOR
1991 EDITION
The 1997 Edition of AIA Document 201, General Conditions of the Contract for Construction, is referred to herein.
AGREEMENT
made as of the 22nd day of March in the year of 2007
BETWEEN the Owner: Town of Marana, an Arizona Municipal Corporation
11700 W. Avra Valley Road, #91
Marana, Arizona 85653
and the Construction Manager: Sundt Construction, Inc.
1501 W. Fountainhead Parkway, Suite 600 (85282)
P.O. Box 25346
Tempe, Arizona 85285
The Project is: The construction of a new Fire Protection Waterline for the Marana Regional
Airport
The Architect is: Carter Burgess
10 1 North First Ave., Suite 3 100
Phoenix, Arizona 85003
The Owner and Construction Manager agree as set forth below.
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ARTICLE 1
GENERAL PROVISIONS
RELATIONSHIP OF PARTIES
The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement, and
covenants with the Owner to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the
Architect in furthering the interests of the Owner. The Construction Manager shall furnish construction administration and
management services and use the Construction Manager's best efforts to perform the Project in an expeditious and
economical manner consistent with interests of the Owner. The Owner shall endeavor to promote harmony and cooperation
among the Owner, Architect, Construction Manager and other persons or entities employed by the Owner for the Project. All
references to Architect shall also mean CONSULTANT.
1.2 GENERAL CONDITIONS
For the Construction Phase, the General Conditions of the Contract shall be the 1997 Edition of AIA Document A201,
General Conditions of the Contract for Construction, which is incorporated herein by reference as modified (Exhibit A). For
the Preconstruction Phase, or in the event that the Preconstruction and Construction Phases proceed concurrently, AIA
Document A201 as modified shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The
term "Contractor" as used in AIA Document A201 shall mean the Construction Manager.
ARTICLE 2
CONSTRUCTION MANAGER'S RESPONSIBILITIES
The Construction Manager shall perform the services described in this Article. The services to be provided under Paragraphs
2.1 and 2.2 constitute the Preconstruction Phase services. If the Owner and Construction Manager agree, after consultation
with the Architect, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both
phases shall proceed concurrently.
2.1 PRECONSTRUCTION PHASE
2. 1.1 PRELIMINARY EVALUATION
The Construction Manager shall provide a preliminary evaluation of the Owner's program and Project budget requirements
each in terms of the other.
2.1.2 CONSULTATION
The Construction Manager shall jointly schedule and attend regular meetings with the Owner and Architect, including a 3-5
day workshop. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements,
and the selection of materials, building systems and equipment. The Construction Manager shall provide recommendations
on construction feasibility; actions designed to minimize adverse effects of labor or material shortages, time requirements for
procurement, installation and construction completion; and factors related to construction cost including estimates of
alternative designs or materials, preliminary budgets and possible economies.
2.1.3 PRELIMINARY PROJECT SCHEDULE
When Project requirements described in Subparagraph 3. 1.1 have been sufficiently identified, the Construction Manager shall
prepare, and periodically update, a preliminary Project schedule for the Architect's review and the Owner's approval. The
Construction Manager shall obtain the Architect's approval of the portion of the preliminary Project schedule relating to the
performance of the Architect's services. The Construction Manager shall coordinate and integrate the preliminary Project
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schedule with the services and activities of the Owner, Architect and Construction Manager. As design proceeds, the
preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for
receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and
processing of shop drawings and samples, delivery of materials or equipment requiring long-lead time procurement, Owner's
occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial
Completion. If preliminary Project schedule update indicate the previously approved schedules may not be met, the
Construction Manager shall make appropriate recommendations to the Owner and Architect.
2.1.4 PHASED CONSTRUCTION
The Construction Manager shall make recommendations to the Owner and Architect regarding the phased issuance of
Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the
Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and
provisions for temporary facilities.
2.1.5 PRELIMINARY COST ESTIMATES
2.1.5.1 When the Owner has sufficiently identified the Project requirements and the Architect has prepared other basic design
criteria or 30% drawings, the Construction Manager shall prepare for the review of the Architect and approval of the Owner,
a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques.
2.1.5.2 When Schematic Design Documents or 60% drawings, have been prepared by the Architect and approved by the
Owner, the Construction Manager shall prepare for the review of the Architect and approval of the Owner, a more detailed
estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager
shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager.
2.1.5.3 When Design Development Documents or 90% drawings, have been prepared by the Architect and approved by the
Owner, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and
approval by the Owner. During the preparation of the Construction Documents, the Construction Manager shall update and
refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager.
2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the
Construction Manager shall make appropriate recommendations to the Owner and Architect.
2.1.6 SUBCONTRACTORS AND SUPPLIERS
The Construction Manager shall submit its Subcontractor Procurement Plan (SPP) to the Owner for review. The SPP
shall utilize a qualifications based procurement and selection process conforming to ARS Title 34 requirements. The
Construciton Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner and
Architect for their review and comment a list of prequalified possible subcontractors, including suppliers who are to furnish
materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the
Work. The Owner will promptly reply in writing to the Construction Manager if either the Architect or Owner know of any
objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the
qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to
or reject any proposed subcontractor or supplier. The Construction Manager shall maintain primary responsibility for
prequallifying subcontractors, vendors and other personnel providing goods or services through the SPP, including
confirming the basis and statements of qualification and shall maintain primary responsibility for subcontractor
performance in providing goods and services to the Project in a safe, effective, efficient, and timely manner.
2.1.7 LONG-LEAD TIME ITEMS
The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long-lead time items
which will constitute part of the Work as required to meet the Project schedule. If such long-lead time items are procured by
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the Owner, the Construction Manager shall participate and assist the Owner in the procurement process and such
item shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner's acceptance of
the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the Owner
to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The
Construction Manager shall expedite the delivery of long-lead time items.
2.1.8 EXTENT OF RESPONSIBILITY
Construction Manager and Town of Marana understand and agree that during the Preconstruction Phase,
Construction Manager will provide its expertise as a contractor to assist the Town of Marana and Design Professional
in the development of the Project, including its expertise regarding constructability, Project cost and budget, value
engineering, and the means, methods, techniques, sequences and procedures for the performance of the work.
The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the
Guaranteed Maximum Price, but shall provide estimates, schedules, and constructability reviews that are reasonably
representative of the Project cost, schedule and other requirements at the time of submitting preliminary or interim
information, including estimates and schedules. The recommendations and advice of the Construction Manager
concerning design alternatives shall be subject to the review and approval of the Owner and the Owner's professional
consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications are in
accordance with applicable laws, ordinances, statutes, ordinances, building codes, rules and regulations. However, if the
Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction
Manager shall promptly notify the Architect and Owner in writing.
2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION
The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract
Documents regarding equal employment opportunity and affirmative action programs.
2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME
2.2.1 When the Drawings and Specifications are sufficiently complete, the Construction Manager shall propose a Guaranteed
Maximum Price, which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee.
2.2.2 As the Drawings and Specifications may not be finished at the time the Guaranteed Maximum Price proposal is
prepared, the Construction Manager shall provide in the Guaranteed Maximum Price for further development of the Drawings
and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. Such
further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or
equipment, all of which, if required, shall be incorporated by Change Order.
2.2.3 The estimated Cost of the Work shall include as a separate and specifically identifiable item the Construction
Manager's contingency, a sum established by the Construction Manager for the Construction Manager's exclusive use to cover
costs arising under Subparagraph 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not the basis
for a Change Order as described in the following paragraph.
The Construction Manager's Contingency is available to the Construction Manager to cover items not otherwise
recoverable by Change Order. All cost associated with the refinement of design details within the Scope of Work and
within the standards of quality and quantity on which the Guaranteed Maximum Price is based, costs due to labor
disputes, costs due to overruns in the performance of work with Construction Manager's own personnel, increase in
bid or negotiated subcontracts or purchase order agreements, labor disputes within manufacturing or transportation
industries causing delays in receipt of materials or equipment not the fault of the Construction Manager, lost time due
to acts beyond the control of the Construction Manager and fixed jobsite costs due to these delays are recoverable
from the Construction Manager's Contingency. The Construction Manager's Contingency is not available for Owner
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increases in allowances, changes in the Scope of Work or design changes. The Construction Manager shall submit to
owner for review all items charged to Construction Managers contingency. The Construction Manager shall keep
track of each item charged to the contingency.
2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE
The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis, which
shall include:
I A list of Drawings and Specifications, including all addenda thereto and Conditions of the Contract, which
were used in preparation of the Guaranteed Maximum Price proposal.
.2 A list of allowances and a statement of their basis. Owner Contingency, if any, that is included shall be
addressed as an allowance and will require owner's written approval for its use.
.3 A list of the clarifications and assumptions made by the Construction Manager in the preparation of the
Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and
Specifications.
.4 The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade
categories, allowances, contingency, and other items and the fee that comprise the Guaranteed Maximum
Price.
.5 The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a
schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is
based.
2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal
and the written statement of its basis. In the event that the Owner or Architect discovers any inconsistencies or inaccuracies in
the information presented, they shal I promptly notify the Construction Manager, who shall make appropriate adjustments to
the Guaranteed Maximum Price proposal, its basis or both.
2.2.6 Unless the Owner accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the
proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be
effective without written acceptance by the Construction Manager.
2.2.7 Prior to the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a
Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except
as the Owner may specifically authorize in writing.
2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its
basis shall be set forth in Amendment No. I (Exhibit D). The Guaranteed Maximum Price shall be subject to additions and
deductions by a change in the Work as provided in the Contract Documents and the date of Substantial Completion shall be
subject to adjustment as provided in the Contract Documents.
2.2.9 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to
reflect the agreed-upon assumptions and clarifications contained in Amendment No. I (Exhibit D). Such revised Drawings
and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner,
Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such
revised Drawings and Specifications are inconsistent with the agreed upon assumptions and clarifications.
2.2. 10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time
the Guaranteed Maximum Price is established.
2.3 CONSTRUCTION PHASE
2.3.1 GENERAL
2.3. 1.1 The Construction Phase shall commence on the earlier of:
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(1) the Owner's written acceptance of the Construction Manager's Guaranteed Maximum Price proposal and
issuance of a Notice to Proceed, or
(2) the Owner's first written authorization to the Construction Manager to perform certain individual items
such as:
(a) award a subcontract, or
(b) undertake construction Work with the Construction Manager's own forces, or
(c) issue a purchase order for materials or equipment required by the Work.
2.3.2 ADMINISTRATION
2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction
Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction
Manager. The Construction Manager shall obtain bids from Subcontractors and from suppliers for materials or equipment
fabricated to a special design for the Work from the approved list compiled from the qualifications based Subcontractor
Procurement Plan previously reviewed and, after analyzing such bids, shall deliver such bids to the Owner and Architect.
The Owner shall then determine, with the advice of the Construction Manager and subject to the reasonable objection of the
Architect, which bids will be accepted. The Owner may designate specific persons or entities from whom the Construction
Manager shall prequalify and obtain bids; however, if the Guaranteed Maximum Price has been established, the Owner may
not prohibit the Construction Manager from obtaining bids from other qualified bidders. The Construction Manager shall not
be required to contract with anyone to whom the Construction Manager has reasonable objection.
2.3.2.2 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered
by the Construction Manager to the Owner and Architect (1) is recommended to Owner by the Construction
Manager; (2) is qualified to perform that portion of the Work; (3) has submitted a bid which conforms to the
requirements of the Contract Documents without reservations or exception, but the Owner requires that another bid
be accepted, then the Construction Manager may require that a change in the Work be issued to adjust Contract Time
and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the
Owner by the Construction Manager and the amount of the subcontract or other agreement actually signed with the
person or entity designated by the Owner. Before the final decision, the Construction Manager shall present the
Owner with a comparative analysis of qualifications, costs, and schedule information.
2.3.2.3 All bids or proposals shall be obtained from those prequalified bidders in accordance with the Subcontractor
Procurement Plan.
2.3.2.4 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall
conform to the payment provisions of Subparagraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee
without prior consent of the Owner.
2.3.2.5 The Construction Manager shall schedule and conduct meetings at which the Owner, Architect, Construction
Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and
promptly distribute meeting minutes.
2.3.2.6 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall
prepare a schedule in accordance with Paragraph 3. 10 of AIA Document A20 1, including the Owner's occupancy
requirements. The Project Schedule shall present activities and events in a logical and sequential manner, with linked
predecessors and successors, indicating relationships, dependencies, restraints, durations and other information as
needed to make the plan meaningful and useful as a tool to set baseline progress schedules for the Project, to monitor
and evaluate the progress of the work against such baseline.
2.3.2.7 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the
entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Construction Manager's
personnel on-site and offisite working on the project, Subcontractors working on the site, total number of workers, major
equipment on site and status of such equipment, materials received, and Work accomplished, problems encountered and
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other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Architect.
2.3.2.8 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual
costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall
identify variances between actual and estimated costs and report the variances to the Owner and Architect at regular intervals.
2.4 PROFESSIONAL SERVICES
The Construction Manager 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 Construction Manager has specifically agreed in writing to provide such services. In such event, the Construction Manager
shall cause such services to be performed by appropriately licensed professionals.
2.5 UNSAFE MATERIALS
In addition to the provisions of Paragraph 10. 1 in AIA Document A20 1, if reasonable precautions wil I be inadequate to
prevent foreseeable bodily injury or death to persons resulting from a material or substance encountered but not created on the
site by the Construction Manager, the Construction Manager shall, upon recognizing the condition, immediately stop Work in
the affected area and report the condition to the Owner and Architect in writing. The Owner, Construction Manager and
Architect shall then proceed in the same manner described in Subparagraph 10. 1.2 of AIA Document A201. The Owner shall
be responsible for obtaining the services of a licensed laboratory to verify the presence or absence of the material or substance
reported by the Construction Manager and, in the event such material or substance is found to be present, to verify that it has
been rendered harmless. The Construction manager will advise and facilitate information on qualified firms for
Owner's consideration and selection. Unless otherwise required by the Contract Documents, the Owner shall furnish in
writing to the Construction Manager 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 Construction Manager and 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 Construction
Manager or Architect has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom
the Construction Manager and Architect have no reasonable objection. The Construction Manager will assist the Owner
to mitigate costs and delays to every extent possible.
2.6 CONSTRUCTION MANAGERS DESIGNATED REPRESENTATIVE
The CM shall designate in writing a representative who shall have express authority to bind the CM with respect to
all matters requiring the CM's approval or authorization. This representative shall have the authority to make
decisions on behalf of the CM concerning estimates and schedules, construction budgets, and changes in the Work,
and shall render such decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in
the services or Work of the owner. The Construction Manager designates Michael Hill as its authorized
representative.
ARTICLE 3
OWNER'S RESPONSIBILITIES
3.1 INFORMATION AND SERVICES
3. 1.1 The Owner shall provide full information in a timely manner regarding the requirements of the Project, including a
program which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships,
flexibility and expandability requirements, special equipment and systems, and site requirements.
3.1.2 The Owner, upon written request from the Construction Manager, shall furnish evidence of Project financing prior to
the start of the Construction Phase and from time to time thereafter as the Construction Manager may request in writing.
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Furnishing of such evidence shall be a condition precedent to commencement or continuation of the Work.
3.1.3 The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction
Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the
responsibility of the Owner.
3.1.4 STRUCTURAL AND ENVIRONMENTAL TEST, SURVEYS AND REPORTS
In the Preconstruction Phase, the Owner shall furnish the following with reasonable promptness and at the Owner's expense,
and the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings
and tests described in Clauses Sections 3.1.4.1 through 3.1.4.4 exeept te the extent !hat the Cefistfuction Managef kfiews of
I . 1?-. but shall exercise customary precautions relating to the performance of the Work.
3.1.4.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law
3.1.4.2 Surveys describing physical characteristics, legal limitations and utility location for the site of the Project and a
written legal description of the site. The surveys and legal information shall include as applicable, grades and lines of streets,
alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements,
encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data
pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines,
both public and private, above and below grade, including inverts and depths. All information on the survey shall be
referenced to a project benchmark.
3.1.4.3 The services of geotechnical engineers when such services are requested by the Construction Manager. Such services
may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of
hazardous materials, ground corrosion and resistivity test, including necessary operations for anticipating subsoil condition,
with reports and appropriate professional recommendations.
3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and
environmental tests, inspections and reports which are required by law, including required special inspections.
3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Project and are
requested by the Construction Manager.
3.2 OWNER'S DESIGNATED REPRESENTATIVE
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. This representative shall have the authority to make decisions on
behalf of the Owner concerning estimates and schedules, construction budgets, and changes in the Work, and shall render
such decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of
the Construction Manager. The Owner designates Charles Mangum as its authorized representative.
3.3 ARCHITECT
The Owner shall retain the Architect to provide the Basic Services, including normal structural, mechanical and electrical
engineering services, other than cost estimating services, described in the Owner-CONSULTANT Agreement. The Owner
shall authorize and cause the Architect to provide those additional services described in Owner-CONSULTANT
Agreement.. The Owner shall authorize and cause the Architect to provide those Additional Services requested by the
Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases
of the Work. Such services shall be provided in accordance with time schedules agreed to by the Owner, Architect and
Construction Manager. Upon request of the Construction Manager, the Owner shall furnish to the Construction Manager a
copy of the Owner's Agreement with the Architect, from which compensation provisions may be deleted.
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3.4 LEGAL REQUIREMENTS
The Owner shall determine and advise the Architect and Construction Manager of any special legal requirements relating
specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Project. The
Owner shall furnish such legal services as are necessary to provide the information and devices required under Paragraph 3. 1.
ARTICLE 4
COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES
The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows:
4.1 COMPENSATION
4.1.1 For the services described in Paragraphs 2.1 and 2.2 the Construction Manager's compensation shall be calculated as
follows:
Compensation for Preconstruction Phase Services shall consist of:
The total price for Preconstruction Services is proposed as a Not To Exceed (NTE) amount of
$39,798.00 for actually rendered and billed services (up to NTE amount). Exhibit B provides a
detailed scope of work with associated cost for Preconstruction.
?o Proposal is based on completion of the preconstruction Phase Services within five (5) consecutive
months.
The total price is proposed as a not to exceed amount.
Preconstruction services beyond five (5) months will be considered additional services if the not to
exceed amount has been reached. Cost of services is based on the cost buildup billing rate of actual
salary plus direct costs plus indirect costs associated with an individual, and profit, all expressed as a
multiple of actual base salary. Such cost build up of individual billing rates shall be furnished as a
billing rate schedule and attached to this agreement as Exhibit C.
Construction Manager shall provide with each invoice a statement of personnel by name, position,
and billing rate, task or activity, and hours charged in the invoice period and cumulative to date.
4.1.2 Compensation for Preconstruction Phase services shall be equitably adjusted if such services extend beyond a period of
five (5) consecutive months from the date of this Agreement or if the originally contemplated scope of services is
significantly modified.
4.1.3 Compensation shall be based upon the individual Billing Rates as defined in Exhibit C.
4.2 PAYMENTS
4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable,
shall be in proportion to services performed.
4.2.2 Payments are due and payable twenty-one (21) days from the date the Construction Manager's invoice is received by
the Owner. Amounts unpaid after the date on which payment is due shall bear interest at the rate entered below, or in the
absence thereof, at the legal rate prevailing from time to time at the place where the Project is located.
Prime plus one percent (1 %).
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ARTICLE 5
COMPENSATION FOR CONSTRUCTION PHASE SERVICES
The Owner shall compensate the Construction Manager for Construction Phase services as follows:
5.1 COMPENSATION
5. 1.1 For the Construction Manager's performance of the Work as described in paragraph 2.3, the Owner shall pay the
construction Manager in current funds the Contract Sum consisting of the cost of the Work as defined in Article 7 and the
Construction Manager's Fee determined as follows:
Compensation for Construction phase services shall consist of:
Fee of Five and Three Quarters percent (5.75 %) of the estimated Cost of the Work. The
Construction Manager's Fee shall become a fixed fee at the time of acceptance of the Guaranteed
Maximum Price by the Owner.
Such fee shall be paid as follows:
In proportionate increments to the monthly Application For Payment submitted (see Article 7).
Compensation for changes in the Work shall consist of:
?, Fee of Five and Three Quarters percent (5.75%) of the increased cost of the changes in the Work.
Compensation for trade work performed by Construction Manager's personnel shall consist of:
?- Fee of Fifteen percent (15%) of the cost of the trade work.
5.2 GUARANTEED MAXIMUM PRICE
5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee are guaranteed by the Construction Manager not
to exceed the amount provided in Amendment No. 1, subject to additions and deductions by changes in the Work as provided
in the Contract Documents. Such maximum sum as adjusted by approved changes in the Work 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 Construction Manager without reimbursement by the Owner.
Upon completion of the project, if the actual Cost of the Work, including fees paid in accordance with Articles 4 and
5, is less than the Guaranteed Maximum Price, as provided and adjusted by Change Orders, all savings shall be:
?- Returned in full to the Owner, One Hundred percent (100%).
5.3 CHANGES IN THE WORK
5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of
Amendment No. I may be determined by any of the methods listed in Subparagraph 7.3.3 of AIA Document A201 (Exhibit
A).
5.3.2 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 and the terms "costs" and "a reasonable
allowance for overhead and profit" as used in Subparagraph 7.3.6 of AIA Document A201 shall have the meanings assigned
to them in that document and shall not be modified by this Article 5. 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.
5.3.3 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above-referenced provisions of
AIA A1211CMc and AGC 565
Revision Ju7y 2005 Page 10 of 24
AIA Document A201 shall mean the Cost of the Work as defined in Article 6 of this Agreement and the terms "and a
reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Subparagraph 5. 1.1 of
this Agreement.
5.3.4 If no specific provision is made in Subparagraph 5. 1.1 for adjustment of the Construction Manager'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
Subparagraph 5. 1.1 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee
shall be equitably adjusted on the basis of the fee established for the original Work.
5.3.5 The Construction Manager has included (15) days of weather related delays within his project schedule as
defined by Article 11, Contract Time, of Amendment No. I to the Agreement. If the project experiences additional
weather related delays beyond the defined amount of (15) days, the Construction Manager shall be entitled to
additional contract time on a day for day basis. The Construction Manager shall provide the Owner written
notification no later than (14) work days from the date of the event which caused the need for a time extension.
Failure to notify the Owner in writing within the (14) working day period shall be just cause for the rejection of the
time extension.
5.4 Damages.
5.4.1 Liquidated Damages. Construction Manager understands that if Substantial Completion (defined as a
Temporary Certificate of Occupancy) is not attained, due to sole responsibility of Construction Manager, by the
Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to specify accurately and
ascertain. Construction Manager agrees that if Substantial Completion is not attained by thirty (30) days after the
Scheduled Substantial Completion Date (the 11LD Date"), Construction Manager shall pay Owner One Thousand Five
Hundred and 00/100 Dollars ($1,500.00) as liquidated damages for each day that Substantial Completion extends
beyond the LD Date. The liquidated damages provided herein shall be in lieu of all liability for any and all extra costs,
losses, expenses, claims, penalties and any other damages, whether special of consequential, and of whatsoever nature
incurred by Owner which are occasioned by any delay in achieving Substantial Completion. Final Completion will be
attained within thirty (30) days of Substantial Completion date, and all punchlist, owner training, as-built drawings
and Final Certificate of Occupancy shall be completed.
ARTICLE 6
COST OF THE WORK FOR CONSTRUCTION PHASE
6.1 COSTS TO BE REIMBURSED
6. 1.1 The term "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper
performance of the Work. Such costs shall be at rates not higher than those customarily 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 6.
6.1.2 LABOR COSTS
I Wages of construction workers directly employed by the Construction Manager to perform the construction
of the Work at the site or, with the Owner's agreement, at off-site workshops.
.2 Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at
the site with the Owner's agreement, and employees stationed at the main or branch office directly
involved in the support of the project.
.3 Wages and salaries of the Construction Manager'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.
.4 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and
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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, training, drug testing,
holidays, vaeatiefts and pensions, provided that such costs are based on wages and salaries included in the
Cost of the Work under Clauses 6.1.2.1 through 6.1.2.3. Holidays and vacations are excluded from
payroll taxes and fringe benefits and shall be billed directly to the project and considered
reimbursable under the terms of this Agreement.
.5 Wages, salaries, payroll taxes, insurance and fringe benefits, as defined in Paragraphs 6.1.1, 6.1.2,
6.1.3.and 6.1.4 above, shall be reimbursed in accordance with Appendix A, Personnel Reimbursement
Schedule.
6.1.3 SUBCONTRACT COSTS
Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts.
6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION
.1 Costs, including transportation, of materials and equipment incorporated or to be incorporated in the
completed construction.
.2 Costs of materials described in the preceding Clause 6.1.4.1 in excess of those actually installed but
required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall
be handed over to the Owner at the completion of the Work, or at the Owner's option, shall be sold by the
Construction Manager; amounts realized, if any, from such sales shall be credited to the Owner as a
deduction from the Cost of the Work.
6.1.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS
I Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies,
temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction
workers, which are provided by the Construction Manager at the site and fully consumed in the performance
of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or
retained by the Construction Manager. Cost for items previously used by the Construction Manager shall
mean fair market value.
.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by the
construction workers, which are provided by the Construction Manager at the site, whether rented from the
Construction Manager 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 Ownef's
pfiof-appf-e? fair market rates.
.3 Costs of removal of debris from the site.
.4 Reproductions costs, costs of telegrams, facsimile transmissions and long-distance telephone calls, postage
and express delivery charges, telephone service at the site and reasonable petty cash expenses of the site
office.
.5 That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel
incurred while traveling in discharge of duties connected with the Work.
6.1.6 MISCELLANEOUS COSTS
I That portion directly attributable to this Contract of costs for insurance and bonds.
Subcontractor default insurance shall be reimbursed at the fixed rate of 1.25 % of the total
subcontract amount.
Subcontractor general liability wrap-up insurance program (Z-25) shall be reimbursed at the fixed
rate of 1.25 % of the total subcontract amount and credited at the fixed rate of 1.25 % of the
subcontract amount from each subcontractor.
General Liability (PLPD) Insurance premiums shall be reimbursed at the fixed rate of 1.10 percent
(1. 10 %) of the Guaranteed Maximum Price.
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Property insurance premiums shall be reimbursed in full and adjusted as necessary for increased or
decreased time for construction and change orders.
.2 Sales, use or similar taxes imposed by a governmental authority which are related to the Work and for
which the Construction Manager is liable.
.3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the
Construction Manager is required by the Contract Documents to pay.
.4 Fees of testing laboratories for tests required by the Contract Documents, except those related to
nonconforming Work other than that for which payment is permitted by Clause 6.1.8.2.
.5 Royalties and license fees paid for the use of particular design, process or product required by the Contract
Documents; the cost of defending suits or claims for infringement of patent or other intellectual property
rights arising from such requirement by the Contract Documents; payments made in accordance with legal
judgments against the Construction Manager resulting from such suits or claims and payments of
settlements made with the Owner's consent; provided, however, that such costs of legal defenses, judgments
and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed
Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of
Subparagraph 3.17.1 of AIA Document A201 or other provisions of the Contract Documents.
.6 Daia pfeeessing-e Costs related to the Work for safety, OSHA, EEO, and other regulatory reporting as
well as project time, personnel and data records and reports.
.7 Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific
responsibility to the Owner set forth in this Agreement.
.8 Legal, mediation and arbitration costs, other than those arising from disputes between the Owner and
Construction Manager, reasonably incurred by the Construction Manager in the performance of the Work
and with the Owner's written permission, which permission shall not be unreasonably withheld.
.9 Expenses incurred in accordance with the Construction Manager's standard personnel policy for relocation
and temporary living allowance of personnel required for the Work, in case it is necessary to relocate such
personnel from distant locations.
6.1.7 OTHER COSTS
I Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by
the Owner.
6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK
The Cost of the Work shall also include costs described in Subparagraph 6. 1.1 which are incurred by the Construction
Manager:
I In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of
persons and property, as provided in Paragraph 10.3 6of AIA Document A20 1.
.2 In repairing or correcting damaged or nonconforming Work executed by the Construction Manager or the
Construction Manager's Subcontractors or suppliers, provided that such damaged or nonconforming Work
was not caused by the negligence or failure to fulfill a specific responsibility to the Owner set forth in the
Agreement of the Construction Manager or the Construction Manager's foremen, engineers or
superintendents, or other supervisory, administrative or managerial personnel of the Construction Manager,
or the failure of the Construction Manager's personnel to supervise adequately the Work of the
Subcontractors or suppliers, and only to the extent that the cost of repair or correction is not recoverable by
the Construction Manager from insurance, Subcontractors or suppliers.
6.1.9 The costs described in Subparagraphs 6. 1.1 through 6.1.8 shall be included in the Cost of the Work notwithstanding any
provision of AIA Document A201 or other Conditions of the Contract which may require the Construction Manger to pay
such costs, unless such costs are excluded by the provisions of Paragraph 6.2.
6.2 COSTS NOT TO BE REIMBURSED
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I Salaries and other compensation of the Construction Manager's personnel stationed at the Construction
Manager's principal office or offices other than the site office, except as specifically provided in Clauses
Sections 6.1.2.2, 6.1.2.3, 6.1.2.4 and 6.1.2.5.
.2 Expenses of the Construction Manager's principal office and offices other than the site office except as
specifically provided in Paragraph 6. 1.
.3 Overhead and general expenses, except as may be expressly included in Paragraph 6. 1.
.4 The Construction Manager's capital expenses, including interest on the Construction Manager's capital
employed for the Work.
.5 Rental costs of machinery and equipment, except as specifically provided in subparagraph 6.1.5.2.
.6 Except as provided in Clause 6.1.8.2, costs due to the negligence of the Construction Manager or the failure
of the Construction Manager to fulfill a specific responsibility to the Owner set forth in this Agreement.
.7 Costs incurred in the performance of Preconstruction Phase Services except as defined by Article 4.
.8 Except as provided in Clause 6.1.7. 1, any cost not specifically and expressly described in Paragraph 6. 1.
.9 Costs which would cause the Guaranteed Maximum Price to be exceeded.
6.3 DISCOUNTS, REBATES AND REFUNDS
6.3.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (1) before making
the payment, the Construction Manager included them in an Application for Payment and received payment therefor from the
Owner, or (2) the Owner has deposited funds with the Construction Manager with which to make payments; otherwise, cash
discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of
surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they
can be secured.
6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Subparagraph 6.3.1 shall be credited to the
Owner as a deduction from the Cost of the Work.
6.4 ACCOUNTING RECORDS
6.4.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for
proper financial management under this Contract; the accounting and control systems shall be safist?aetefy to the owfief. be
in accordance with generally accepted accounting methods (GAAP). The Project shall be operated in an open book
manner and Owner and the Owner's accountants shall be afforded access to the Construction Manager's records, books,
correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating
to this Project, and the Construction Manager shall preserve these for a period of three years after final payments, or for such
longer period as may be required by law.
ARTICLE 7
CONSTRUCTION PHASE
7.1 PROGRESS PAYMENTS
7. 1.1 Based upon Applications for Payment submitted to the Aachitee Owner by the Construction Manager and Ceftifieates
for- Payffient issued by the A
the Owner shall make progress payments on account of the contract Sum to the
Construction Manager as provided below and elsewhere in the Contract Documents.
7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month,
or as follows:
7.1.3 Provided an Application for Payment is received by the Afehitee Owner not later than the first (1') day of a month,
the Owner shall make payment to the Construction Manager not later than the twenty first (21') day of the same month. If
an Application for Payment is received by the Afehitee! Owner after the application date fixed above, payment shall be made
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by the Owner not later than twenty one (21) days after the Afehiteet Owner receives the Application for Payment
7.1.5 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction
Manager 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 Construction Manager's Fee shall be shown as a single separate
item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the
Afehitee Owner may require. This schedule, unless objected to by the Afehiteet Owner shall be used as a basis for
reviewing the Construction Manager's Applications for Payment.
7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period
covered by the Application for Payment. The percentage completion shall be the lesser of (1) the percentage of that portion
of the Work which has actually been completed or (2) the percentage obtained by dividing (a) the expense which has actually
been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has
made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed
Maximum Price allocated to that portion of the Work in the schedule of values.
7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as
follows:
I Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined
by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed
Maximum Price allocated to that portion of the Work in the schedule of values. Pending final
determination of cost to the Owner of changes in the Work, amounts not in dispute may be included as
provided in Subparagraph 7.3.7 of AIA Document A201, even though the Guaranteed Maximum Price has
not yet been adjusted by Change Order.
.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 Construction Manager's Fee, less retainage af pefeem ( %) in accordance with Paragraph
7.1.8. The Construction Manager'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. 1 or, if the Construction Manager's fee is stated as
a fixed sum in that Subparagraph, shall be an amount which bears the same ratio to that fixed-sum Fee as
the Cost of the Work in the two preceding Clauses bears to a reasonable estimate of the probable Cost of the
Work upon its completion.
.4 Subtract the aggregate of previous payments made by the Owner.
.5 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by
Subparagraph 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently
discovered by the Owner's accountants in such documentation.
.6 Subtract amounts, if any, for which the Afehitee Owner has withheld or nullified a ceftifieftte an
Application of Payment as provided in Paragraph 9.5 of AIA Document A20 1.
7.1.8 Payments to Construction Manager and retention thereon shall comply with A.R.S. §34-607 as follows:
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7.1.8.1 Payment to the contractor on the basis of a duly certified and approved estimate of the work performed
during the preceding calendar month under the contract may include payment for material and equipment, but to
ensure the proper performance of the contract, the owner shall retain ten per cent of the amount of each estimate
until final completion and acceptance of all material, equipment and work covered by the contract. An estimate of the
work submitted shall be deemed approved and certified for payment after seven days from the date of submission
unless before that time the owner or owner's agent prepares and issues a specific written finding setting forth those
items in detail in the estimate of the work that are not approved for payment under the contract. The owner may
withhold an amount from the progress payment sufficient to pay the expenses the owner reasonably expects to incur
in correcting the deficiency set forth in the written finding. The progress payments shall be paid on or before fourteen
days after the estimate of the work is certified and approved. The estimate of the work shall be deemed received by
the owner on submission to any person designated by the owner for the submission, review or approval of the estimate
of the work.
7.1.8.2 When the contract is fifty per cent completed, one-half of the amount retained including any securities
substituted under Subparagraph 7.1.8.4 shall be paid to the contractor on the contractor's request provided the
contractor is making satisfactory progress on the contract and there is no specific cause or claim requiring a greater
amount to be retained. After the contract is fifty per cent completed, no more than five per cent of the amount of any
subsequent progress payments made under the contract may be retained providing the contractor is making
satisfactory progress on the project, except that if at any time the owner determines satisfactory progress is not being
made ten per cent retention shall be reinstated for all progress payments made under the contract after the
determination.
7.1.8.3 On completion and acceptance of each separate building, public work or other division of the contract on
which the price is stated separately in the contract, except as qualified in Subparagraph 7.1.8.4, payment may be
made in full, including retained percentages, less authorized deductions. In preparing estimates, the material and
equipment delivered on the site to be incorporated in the job shall be taken into consideration in determining the
estimated value by the architect, engineer or other person, as specified in the contract.
7.1.8.4 Ten per cent of all estimates pursuant to Subparagraph 7.1.8.2, shall be retained by the agent as a guarantee
for complete performance of the contract, to be paid to the contractor within sixty days after completion or riling
notice of completion of the contract. Retention of payments by an agent longer than sixty days after final completion
and acceptance requires a specific written finding by the agent of the reasons justifying the delay in payment. No
agent may retain any monies after sixty days that are in excess of the amount necessary to pay the expenses the agent
reasonably expects to incur in order to pay or discharge the expenses determined by the agent in the finding justifying
the retention of monies. In lieu of the retention provided in this section, the agent, at the option of the contractor, shall
accept as a substitute an assignment of time certificates of deposit of banks licensed by this state, securities of or
guaranteed by the United States of America, securities of this state, securities of counties, municipalities and school
districts within this state or shares of savings and loan associations authorized to transact business in this state, in an
amount equal to ten per cent of all estimates that are retained by the agent as a guarantee for complete performance
of the contract. If the agent accepts substitute security as described in this paragraph for the ten per cent retention,
the contractor is entitled to receive all interest or income earned by this security as it accrues and all such security in
lieu of retention shall be returned to the contractor by the agent within sixty days after final completion and
acceptance of all material, equipment and work covered by the contract if the contractor has furnished the agent
satisfactory receipts for all labor and material billed and waivers of liens from any and all persons holding claims
against the work. In no event shall the agent accept a time certificate of deposit of a bank or shares of a savings and
loan association in lieu of the retention specified unless accompanied by a signed and acknowledged waiver of the
bank or savings and loan association of any right or power to setoff against either the agent or the contractor in
relationship to the certificates or shares assigned.
7.1.8.5 Retention shall be withheld from the Construction Manager in accordance with the terms listed above for
trade work performed by his own personnel and subcontractors. Retention shall not be withheld from the
Construction Manager for payment of General Conditions, Fee, Purchase Order Agreements, allowances, taxes and
direct pass through items; Le.: bonds, insurance, permits, etc.
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The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of
payments and retention for subcontracts.
7.1.9 Except with the Owner's prior approval, the Construction Manager shall not make advance payments to suppliers for
materials or equipment which have not been delivered and stored at the site.
7.1 - 10 In taking action on the Construction Manager's Applications for Payment, the Architect and the Owner shall be
entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be
deemed to represent that the Architect or the Owner has made a detailed examination, audit or arithmetic verification of the
documentation submitted in accordance with Subparagraph 7.1.4 or other supporting data; that the Architect has made
exhaustive or continuous on-site inspections or that either the Architect or the Owner has made examinations to ascertain
how or for what purposes the Construction Manager 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.
7.2 FINAL PAYMENT
7.2.1 Final payment shall be made by the Owner to the Construction Manager when (1) the Contract has been fully
performed by the Construction Manager except for the Construction Manager's responsibility to correct nonconforming Work,
as provided in Subparagraph 12.2.2 of AIA Document A201, and to satisfy other requirements, if any, which necessarily
survive final payment; (2) a final Application for Payment and a final accounting for the Cost of the Work has been submitted
by the Construction Manager and reviewed by the Owner's accountants; and (3) a final Geftifieate Application for Payment
has then been issued by the Afehitee Construction Manager; such final payment shall be made by the Owner not more than
30 days after the issuance of the Afehiteet's Construction Manager's final Geffifieme Application for Payment, or as
follows:
7.2.2 The amount of the final payment shall be calculated as follows:
Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the
Construction Manager's Fee; but not more than the Guaranteed Maximum Price.
.2 Subtract amounts, if any, for which the Afehitee Owner withholds, in whole or in part, a final Geftifieate
Application for Payment as provided in Subparagraph 9.5.1 of AIA Document A201 or other provisions of
the Contract Documents.
.3 Subtract the aggregate of previous payments made by the Owner.
If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager, the
Construction Manager shall reimburse the difference to the Owner.
7.2.3 The Owner's accountants will review and report in writing on the Construction Manager's final accounting within 30
days after delivery of the final accounting to the Afehitee Owner by the Construction Manager. Based upon such Cost of the
Work as the Owner's accountants report to be substantiated by the Construction Manager's final accounting, and provided the
other conditions of Subparagraph 7.2.1 have been met, the Afehifee Owner will, within seven days after receipt of the
written report of the Owner's accountants, either issue to the Owfief: a fifial Gertifiettfe fef Ppayment with a eopy to the
Construction Manager, or notify the Construction Manager afid Owne in writing of the Af:ehiieet's Owner's reasons for
withholding a eeftifieaie payment as provided in Subparagraph 9.5.1 of AIA Document A201. The time periods stated in this
Paragraph 7.2 supersede those stated in Subparagraph 9.4. 1 of AIA Document A20 1.
7.2.4 If the Owner's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting
to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed in accordance
with Article 9 withaut a ftir-thef deeisiefi of the Afehiteet. Unless agreed to otherwise, a demand for mediation or arbitration
of the disputed amount shall be made by the Construction Manager within 60 days after the Construction Manager's receipt of
a copy of the Afehiteet's fifial Geftifieate faf Payffient. Owner's reason for withholding payment. Failure to make such
AIA A1211CMc and AGC 565
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demand within this 60-day period shall result in the substantiated amount reported by the Owner's accountants becoming
binding on the Construction Manager-.-Peffd+ffg Upon receipt of a final resolution of the disputed amount, the Owner shall
pay the Construction Manager the amount certified in the Afehiteet's Construction Manager's final Gef:tifieafe Application
for Payment revised to reflect the final resolution.
7.2.5 If, subsequent to final payment and at the Owner's request, the Construction Manager incurs costs described in
Paragraph 6.1 and not excluded by Paragraph 6.2 (1) arising from the resolution of disputes, the Owner shall reimburse the
Construction Manager such costs and the Construction Manager's fee, if any, related 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.
ARTICLE 8
INSURANCE AND BONDS
8.1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER
During both phases of the Project, the Construction Manager shall purchase and maintain insurance as set forth in Paragraph
I LI of AIA Document A201-1997. Such insurance shall be written for not less than the following limits, or greater if
required by law:
8.1.1 Workers' Compensation and Employers' Liability meeting statutory limits mandated by State and Federal laws
8.1.2 Commercial General Liability including coverage for Premise s- Operations, Independent Contractors' Protective,
Products-Completed Operations, Contractual Liability, Personal Injury, and Broad Form Property Damage (including
coverage for Explosion, Collapse and Underground hazards):
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$1,000,000 Personal and Advertising Injury
$2,000,000 Products-Completed Operations Aggregate
I The policy shall be endorsed to have the General Aggregate apply to this Project only.
.2 Products and Completed Operations insurance shall be maintained for a mimmum period of at least (Two)
years after either 90 days following Substantial completion or final payment, whichever is earlier.
.3 The Contractual Liability insurance shall include coverage sufficient to meet the obligations in AIA
Document A201-1997 under Paragraph 3.18.
8.1.3 Construction Manager shall use its subcontractor general liability rolling wrap-up insurance program, Z-25,
which provides additional insured including completed operations coverage, primary and non contributory and
aggregate per project endorsements in favor of the Owner. Completed operations coverage shall be for a period of 10
years following substantial completion.
$ 25,000,000 Each Occurrence
$ 25,000,000 General Aggregate
$ 25,000,000 Products/Completed Operations Aggregate
8.143 Automobile Liability (owned, non-owned and hired vehicles) for bodily injury and property damage:
$ 1,000,000 Each Accident
8.1.54 Other coverage:
"All-risk" Property insurance including earthquake, flood, stored materials and material in transit, including
waivers of subrogation, as set forth in Article 5, Insurance and Bonds of the General Conditions of the
Contract Between Owner and Construction Manager. Earthquake and flood insurance may be provided
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with limits of coverage that are less than the contract amount or excluded if the Project is located in a high
hazard zone. Contractor shall pay the deductible for one loss event which is caused by either an All Other
Perils (AOP) loss such as fire, wind, vandalism etc. which is subject to a $10,000 deductible or Earthquake
which is subject to a $100,000 deductible. Contractor shall use the Project contingency fund or Project
savings to pay such loss. If neither or both together are insufficient to pay such Contractor shall be
responsible for the unpaid portion. The Owner shall pay all deductibles expenses arising from subsequent
AOP or Earthquake losses. In addition, the Owner shall pay all deductible expenses arising from subsequent
AOP or Earthquake losses. In addition, the Owner shall pay all deductible expenses for each Flood losses
which is subject to a deductible of 5 % of values at risk a the time of loss or $250,000 whichever is greater.
Subcontractor default insurance:
$25,000,000 Each Loss
$50,000,000 Aggregate
(ff Umbrella Liability coverage is required over the primary insurance or retention, insert the coverage limits. Commercial General Liabilits, and Automobile
Liability limits mav be attained by individual policies or by a combination ofprimary policies and Umbrellet andlor Liabilitv policies.)
8.2 INSURANCE REQUIRED OF THE OWNER
During both phases of the Project, the Owner shall purchase and maintain liability afid pfepefty insurance, ifieluding waivefs
of subfegation'; as set forth in Paragraphs 11.2 and 11.3 of AIA Document A201-1997. Sueh insufanee shall be -ATitteff-f?3f
(Ifnot a blanket policy, list the objects to be insured.)
8.3 PERFORMANCE AND PAYMENT BOND
8.3.1 The Construction Manager shall furnish bonds covering faithful performance of the Contract and payment of
obligations arising thereunder. Bonds may be obtained through the Construction Manager's usual source and the cost thereof
shall be included in the Cost of the Work. The amount of each bond shall be equal to One Hundred percent (100%) of the
Contract Sum.
8.3.2 The Construction Manager shall deliver the required bonds to the Owner at least five days before the commencement
of any Work at the Project site.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 DISPUTE RESOLUTION
9. 1.1 Claims, disputes or other matters in question between the parties to this Agreement shall be resolved by ffiediation eF-13,Y
afbitration as follows:
The parties shall endeavor to settle the dispute first through direct negotiation of the principals authorized to resolve
such claims, disputes, or other matters:
Owner's Principal: Mike Reuwsatt, Town Manager (or Designee)
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Revision Ju7y 2005 Page 19 of 24
Architect's Representative Bruce Loev, Carter Burgess
Construction Manager's Principal: Eric Hedlund
9.1.2 If direct negotiation is unsuccessful, the parties shall endeavor to settle the dispute through mediation. Any
mediation conducted pursuant to this Paragraph 9.1 shall be held in accordance with the Construction Industry Mediation
Rules of the American Arbitration Association currently in effect, unless the parties mutually agree otherwise. Demand for
mediation shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. Any
demand for mediation shall be made within a reasonable time after the claim, dispute or other matter in question has arisen
and negotiation of the principals has failed to resolve the issue as described in paragraph 9.1.1. In no event shall the
demand for mediation be made after the date when institution of legal or equitable proceedings based upon such claim,
dispute or other matter in question would be barred by the applicable statute of limitations.
9.1.3 Any claim, dispute or other matter in question not resolved by mediation shall be decided by arbitration in accordance
with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless parties
mutually agree otherwise. Notwithstanding any Construction Industry Arbitration Rule currently in effect, any
arbitrator shall have no power to ignore any provision of this Agreement, to retain any expert, to order discovery,
production of records or documents, issue subpoenas or order depositions or responses to interrogatories without the
prior written consent of the parties.
9.1.4 Demand for arbitration shall be filed in writing with the other party to this Agreement and with the American
Arbitration Association. A demand for arbitration may be made eenetiffently with a defflafid fef mediation if mediation has
failed to resolve the dispute and shall be made within a reasonable time after the claim, dispute or other matter in question
has arisen and mediation is determined by either party as unable to reach a resolution.. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable proceedings based upon such claim, dispute or other
matter in question would be barred by the applicable statute of limitations.
9.1.5 No afbitfation
----g to the Cafttfaet Deeuments shall inelude, by eaftselidation of jeifidef of ifi afty
athef mannef, the Afeltiteet, Afehiteet's efliplayees of eensultaws, exeept by wfitten eensen! eentaining speeifie fefefe
to the Agfeefiient and signed by the Afebiteet, Owfief:, Genstfuefieft Managef and afty othef pefsef,
jained. No afbitfaiion shall iftelude, by eensalidatiefi of jeindef of iii afiy athef fflannef, pafiies
he Owfief,
Constfuetiefi Matiagef, a sepafafe eefitfaetef as desefibed in Aftiele 6 of AIA Daeuffient A201 and othef pefsans substantially
ifivelved in a eaffifiien question ef faet of law whose pfesenee is feqtfifed mplete felief is to be aeeefded in Etfbitfativeii-.
No pefsen of entity othef thafi the Ownef of Gefistmetieft Managef of Et sepafate eent-ft-et-of as desefibed ifi Af6ele 6 ef AIA
DaeuniefitA201 shall be ineluded as an efiginal thifd pafty of additional thifd pafty to an afbitfatieft whese intefest of
fesponsibility is ifisubstantial. Gensen+ te firbitfatieft invelvi-C-1 - ?Eldik--! pefson of efitity shall fiat eanstitute agfeemefit te
afbitfatieft of a dispute fiet desefibed ifi sueh eefisent of with a pefsen ef ef-i"ty nat ef desefibed thefeifi. The
agr-eeffient to afbitfate and otheF agfeefnefits te afbitfate wit 3ft ef efiIii., eafisented to -S
Agfeefiient shall be speeifiealb, enfef:eeable undef appliefible 6%, in any eauft h vingiiefisdietieft thefeef,
9.1.6 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. In no event may any arbitrator award any party
consequential or indirect damages.
9.2 Deleted under This Paragraph shall be conducted in accordance with the provisions of Subparagraphs 9.1.2 and
9.1.3
9.3 OTHER PROVISIONS
9.3.1 Unless otherwise noted, the terms used in this Agreement shall have the same meaning as those in the 1997 Edition of
AIA Document A201, General Conditions of the Contract for Construction.
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Revision Ju7Y 2005 Page 20 of 24
9.3.2 EXTENT OF CONTRACT
This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire
and integrated agreement between the Owner and Construction Manager and supersedes all prior negotiations, representations
or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner
and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this
Agreement, this Agreement shall govern.
9.3.3 OWNERSHIP AND USE OF DOCUMENTS
The Drawings, Specifications and other documents prepared by the Architect, and copies thereof furnished to the
Construction Manager, are for use solely with respect to this Project. They are not to be used by the Construction Manager,
Subcontractors, Sub-subcontractors or suppliers on other projects, or for additions to this Project outside the scope of the
Work, without the specific written consent of the Owner and Architect. The Construction Manager, Subcontractors, Sub-
subcontractors and suppliers are granted a limited license to use and reproduce applicable portions of the Drawings,
Specifications and other documents prepared by the Architect appropriate to and for use in the execution of their Work under
the Contract Documents.
9.3.4 GOVERNING LAW
The Contract shall be governed by the law of the place where the Project is located.
9.3.5 ASSIGNMENT
The Owner and Construction Manager 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. Neither party to the Contract shall
assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment
without such consent, the party shall nevertheless remain legally responsible for all obligations under the Contract.
Notwithstanding the foregoing, in the event of a sale or transfer of a portion or all of the Project to a different Owner,
such purchasers, transferees or assigns shall have no rights or remedies of any kind or nature against Construction
Manager and all provisions of this Agreement inconsistent therewith are void and of no force and effect.
ARTICLE 10
TERMINATION OR SUSPENSION
10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE
10. 1. 1 Prior to execution by both parties of Amendment No. I establishing the Guaranteed Maximum Price, the Owner may
terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the
reasons described in Subparagraph 14. 1.1 of AIA Document A20 1.
10. 1.2 If the Owner or Construction Manager terminates this Contract pursuant to this Paragraph 10. 1 prior to
commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstruction
Phase services performed prior to receipt of notice of termination; provided, however, that the compensation of such services
shall not exceed the compensation set forth in Subparagraph 4. 1. 1.
10. 1.3 If the Owner or Construction Manager terminates this Contract pursuant to this Paragraph 10. 1 after commencement
of the Construction Phase, the Construction Manager shall, in addition to the compensation provided in Subparagraph 10. 1.2,
be paid an amount calculated as follows:
Take the Cost of the Work incurred by the Construction Manager
AIA A1211CMc and AGC 565
Revision Ju7Y 2005 Page 21 qf 24
Add the Construction Manager's Fee computed upon the Cost of the work to the date of termination at the
rate stated in Paragraph 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph,
an amount which bears the same ratio to the fixed-sum Fee as the Cost of Work at the time of termination
bears to a reasonable estimate of the probable Cost of the Work upon its completion.
.3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase.
The Owner shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the
Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise
included in the Cost of the Work under Clause 10. 1.3. 1. To the extent that the Owner elects to take legal assignment of
subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving
the payments referred to in this Article 10, execute and deliver all such papers and take all such steps, including the legal
assignment of such subcontracts and other contractual rights of the Construction Manager, as the Owner may require for the
purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase
orders.
Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the Owner's written
approval prior to the execution of Amendment No. I shall contain provisions permitting assignment to the Owner as described
above. If the Owner accepts such assignment, the Owner shall reimburse or indemnify the Construction Manager with respect
to all costs arising under the subcontract, purchase order or rental agreement except those which would not have been
reimbursable as Cost of the work if the contract had not been terminated. If the Owner elects not to accept the assignment of
any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not
been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and the
Owner shall pay the Construction Manager the costs necessarily incurred by the Construction Manager by reason of such
termination.
10.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE
Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as provided in Article 14 of
AIA Document A20 1.
10.2.1 In the event of stieh termination by the Owner for cause, the amount payable to the Construction Manager pursuant to
Subparagraph 14.1.2 of AIA Document A201 shall not exceed the amount the Construction Manager would have been
entitled to receive pursuant to Subparagraphs 10. 1.2 and 10. 1.3 of this Agreement.
10.2.2 In the event of stieh termination by the Construction Manager or by the Owner for convenience, the amount to be
paid to the Construction Manager under Subparagraph 14.1.2 of AIA Document A201 shall not exceed the amount the
Construction Manager would be entitled to receive under Subparagraphs 10. 1.2 or 10. 1.3 above.
10.3 SUSPENSION
The Work may be suspended by the Owner as provided in Article 14 of AIA Document A20 1; in such case, the Guaranteed
Maximum Price, if established, shall be increased as provided in Subparagraph 14.3.2 of AIA Document A201 except that the
term cost of performance of the Contract in that Subparagraph shall be understood to mean the Cost of the Work and the term
profit shall be understood to mean the Construction Manager's Fee as described in Subparagraphs 5.1.1 and 5.3.4 of this
Agreement.
ARTICLE 11
OTHER CONDITIONS AND SERVICES
This Agreement entered into as of the day and year first written above.
AIA A1211CMc and AGC 565
Revision Ju7y 2005 Page 22 of 24
OWNER
By wdL
uwsatt
Its: Town Manager
Date:
Attest:
By:
ZZ
0-Jocely Bronson
Its: Town Clerk
Dab
BY:
Its: Airport Diree r
Date7
Approved to tm.
ts.
F r
B
0 tt
r Cassidy
ts: own Attorney
Date:
CONSTRUCTION MANAGER: Sundt Construction, Inc.
B y: ?? A--- ?
Eric Hedlund, P.E., CPC
Its: Senior Vice President
Date: 67/2- 4 1 o77
Att
By: es
Its: Air&&
Date:
;L
EXHIBIT 66A99
1997 Edition of AIA Document A201
General Conditions
AIA DOCUMENT A201-1997
General Conditions of the Contractfor Construction (April 2005)
TABLE OF ARTICLES
1. GENERAL PROVISIONS
2. OWNER
3. CONTRACTOR
4. ADMINSTRATION 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
1997 EDITION
Revision April 2005
CAUTION: You should use an original AJA document with the AIA logo printed in red. An original assures that
changes will not be obscured as may occur when documents are reproduced.
Uopyrignt 1911, 1915, 1918,1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976,1987, C 1997 by The American
Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial quotation of its provisions without
written permission of the AIA violates the copyright laws of the United States and will subject the violator to legal prosecution.
WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
1
ARTICLE 1 GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 THE CONTRACT DOCUMENTS
Precedence of the Contract Documents eafisist o is as follows: 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, Instruction 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 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.
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.
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 the 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.
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WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
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.
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 The Drawings, Specifications and other documents, including those in electronic form, prepared by the
Architect and the Architect's consultants are Instruments of Service through which the Work to be executed by the
Contractor is described. The Contractor may retain one record set. Neither the Contractor nor any Subcontractor, Sub-
subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings, Specifications and other
documents prepared by the Architect or the Architect's consultants, and unless otherwise indicated the Architect and the
Architect's consultants shall be deemed the authors of them and will retain all common law, statutory and other reserved
rights, in addition to the copyrights. All copies of Instruments of Service, except the Contractor's record set, shall be
returned or suitably accounted for to the Architect, 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 be used by the Contractor or any
Subcontractor, S ub- 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.
All copies made under this authorization shall bear the statutory copyright notice, if any, shown on the Drawings,
Specifications and other documents prepared by the Architect and the Architect's consultants. Submittal or distribution
to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as
publication in derogation of the Architect's or Architect's consultants' copyrights or other reserved rights.
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.
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2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2.1 The Owner shall, at the written request of the Contractor, prior to commencement of the Work and thereafter,
furnish to the Contractor reasonable evidence that financial arrangements have been made to fulfill the Owner's
obligations under the Contract. Furnishing of such evidence shall be a condition precedent to commencement or
continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial
arrangements without prior notice to the Contractor.
2.2.2 Except for permits and fees, including those required under Subparagraph 3.7. 1, which are the responsibility of
the Contractor under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements,
assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes
in existing facilities.
2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for
the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of
information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work.
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, 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 duty
on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the
extent required by Subparagraph 6.1.3.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails
within a seven-day period after receipt of written notice from the Owner to commence and continue correction of such
default or neglect with diligence and promptness, the Owner may after such seven-day period give the Contractor a
second written notice to correct such deficiencies within a three-day period. If the Contractor within such three-day
period after receipt of such second notice fails to commence and continue to correct any deficiencies, 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 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
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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.
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 Subparagraph 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 Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents or for
differences between field measurements or conditions and the Contract Documents unless the Contractor recognized
such error, inconsistency, omission or difference and knowingly failed to report it to the Architect.
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.
WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
5
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.
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 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
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 knowing it to be contrary to laws, ordinances, building codes, and rules and
regulations without such notice to the Architect and Owner, the Contractor shall assume appropriate responsibility for
such Work and shall bear the costs attributable to correction.
3.8 ALLOWANCES
3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items
covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but
the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection.
3.8.2 Unless otherwise provided in the Contract Documents:
.1 allowances shall cover the cost of 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, ever-head, profit and other
expenses contemplated for stated allowance amounts shall be included in the Contr-aet 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 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,and an
adjustment of fee in accordance with the Agreement.
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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 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.
3.11 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
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the
Contractor or a Subcontractor, S ub- 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 Drawing, 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 Coiitr-acter-may be returned by the Architect without action.
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3.12.6 By approv4t-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. The Contractor shall
clearly differentiate submittals of products, materials or services, that are deemed to be "as equal" to items
specified in the Contract Documents and the approval of the Architect or Owner of such "as equal" submittals
will not relieve the contractor of the responsibility of the subsequent performance of such items when
incorporated into or provided for the Work.
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 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.
3.13 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 material 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
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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 form accumulation of waste materials or
rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and
about the Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus
materials.
3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and the cost
thereof shall be charged to the Contractor.
3.16 ACCESS TO WORK
3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever
located and whenever desired within the limitations of safe practice.
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 the 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 To the fullest extent permitted bylaw and to the extent claims, damages, losses or expenses are not covered by
Project Management Protective Liability insurance purchased by the Contractor in accordance with Paragraph 11.3, the
Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants, and agents and employees
of any of them from and against claims, damages, losses and expenses, including, but not limited to attorneys' fees,
arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the
Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone
directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such
claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be
construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party
or person described in this Paragraph 3.18.
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.
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.
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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 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. The Architect will
have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise
modified in writing in accordance with other provisions of the Contract.
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 specifically 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.
4.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review
and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts.
4.2.6 The 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.
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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 The Architect will interpret and decide matters concerning performance under, and requirements of, the
Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests will
be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If no agreement is
made concerning the time within which interpretations required of the Architect shall be furnished in compliance with
this Paragraph 4.2, then delay shall not be recognized on account of failure by the Architect to furnish such
interpretations until 15 days after written request is made for them.
4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from
the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and initial
decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show
partiality to either and will not be liable for results of interpretations or decisions so rendered in good faith.
4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if consistent with the intent
expressed in the Contract Documents.
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, including 50% of
the cost of the disputed Work pending resolution in accordance with the terms and processes defined in the
"Dispute Resolution" articles of the Agreement with the Owner..
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
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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.
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 person; 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 Resolution of claims and disputes shall be in accordance with the terms and processes
defined in the "Dispute Resolution" articles of the Agreement with the Owner.Deeision of Afehiteet.
GlaifflS, ifielUdiRg thOSe allegiRg an eFFOF Or- amission by the Ar-ehiteet bu! exeluding those arising undef Par-agf:aphs 1444
through 10.5, shall be refef:Fed initially ?e the Ar-ehiteet f6f: decisiefi. An initial decisioR by the Ar-ehiteet shall b-e
f:equir-ed as a condition pr-ecedefit to mediation, arbitration or litigation of all Claims between the Contf:ae!of: and Owfle
. to the date final payment is due, unless 30 days have passed afteF the Claim haS beell FOfeffed tO the
A- h i ?., 1,
-t- ;Ivith no Eleeision having been reader-ed by the Ar-chiteei. The Ar-ehiteet will not deeide Elisputes between the
Centr-aetar and per-sefis of! entities athef than the OwneF.
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4.5 MEDIATION
4.5.1 Mediation shall be in accordance with the terms and processes defined in the "Dispute
Resolution" articles of the Agreement with the Owner.Aft), Claim a6sing out of of: f:elated to the Cafitf:aet,
exeept ClaifflS Felating to aesthetic effect and except those waived as pf:evided for in Subparagr-aphs 4.3.10, 9.10.4 an
9.10.5 shall, af4ef: initial deeisimi by the Afehiteet oF 30 Elays afteF SUbMiSSiOR of ?he Paim to the Ar-ehiteet, be subjeet tE)
mediation as a eendition preeeadeamt to -mr-h-itr-atiofi eF the institution of legal or- equitable pr-eeeediags by eithef: pafty.
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4.6 ARBITRATION
4.6.1 Arbitration shall be in accordance with the terms and processed defined in the "Dispute
Resolution" articles of the Agreement with the Owner.Any Claim ar-ising out of or related to the GentFact,
except Claims r-elating to aesthetie effect and except those waived as pr-ovided foF in Subpar-agr-aphs 4.3.10, 9.10.4, a
9.10.5, shall, after- Eleeision by the AFehiteet of: 30 Elays afler submission of the Claim to the Ar-ehiteet, be subject to
ar-bitr-atioH. 12r-ior to ar-bitFatian, the par-ties shall endeavaf: to f-esolve Elisputes by mediation in aGeoManee with the
. . r Par-agfaph 4.5
4.6.2 G 1 a ms not r-esolved by mediation shall be deeided by ar-bitmtion which, unless paFties mutual!y agree
otheFwise, shall be in aecoMance with the Gonsir-uetion lfidustr-y Ar-bitr-aliian Rules of the AmeFieaii Ar-bitf:atiofi
Association ew:Fently in effeet. The demand for arbitration shall be filed ift wf:iting with the other paAy to the Cofitr-ac4
aftEl with the Amef4ean Af:h4r-ation Asseeiation, and a cop), shall be filed with !he Arehiteet7
4.6.2- .4 demafiEl for- ar-bitr-atieft shall be made wiihiH the time limits specified in Subpar-agFaphs 4.4.6 and 4.6.1 as
applieable, and in atheF eases within a reasonable time after- the Claim has ar-isen, and ift no event shall it be made aftef
the Elate when institution of legal of: equitable pr-oeeedings based on sueh Claim would be baf+ed by the applieable statute
of limiIations as detef:mined pumumit to Paragraph 13.7.
4. 16. 4 Limitation on Consolidation of: Joinder, No arbitr-ation afising out of or- r-elating to the Catitmet shall ifielude,?
consolidation of: joinder- of: in any otheF manneF, the Ar-ehiteet, the Ar-chiteet's employees OF OWISU!tafitS, eWept by
writteR eonsent containing specifie r-efefeRee to the Agreement and signed by the AFA*eet, Owner-, Contr-aetor- and a"
other- person or- entity sought to bejoiRed. No aFbitr-ation shall inelude, by conselidation or-joinder- eF in any othe
mafinef:, parties other ihan the Owner, QffltFaetor-, a sepaf:ate eantr-aetef as described in Aftiele 6 and other pef:sans
substantially involved in a eommon questioR of faet or- law whose pr-esenee is f:equir-ed if complete f:elief is to be
aeeor-Eled in afbitfation. No pe-son -- --tity oilier than the Owner-, Ceatr-aetor- or a separate eontf:aetor as deser-ibed in
Article 6 shall be ineluded as an of:iginal thifd part), E)r- additional third party to an mbitr-ati0ft Whose iRteFest o
responsibility is insubstaRtial. Consent to ar-bitFatiwi involving aR additional per-son or- eniity shall nat eanstitute eofisef4
to af:bitr-ation of a Claim not Eleser-ibed ther-ein or with a - Rot named E)r- Eleser-ibed theFeifi. The feFegoi*g
agf:eement to arbitrate and other- agr-eemeats tA Ar-hitr-;4N., 1 ' A "ith an additional pef:son or- entity Eluly eonsented to by par-ties
io the Agreement shall be s.peeifieally eHfOFeeable under- applieable law in any eouf:t havingjuFisdietioH thereot?
4.6.5 Claims and Timely Assertion of Claims. The party filing a notioe of demand for- mbitf:ation must assert in t
demand all Glaims then known to that pafty on which aFbitFatiOR is permitted tO be ElefflaRded.
4.6.6 judgmen! oii Final Awar-El. The award r-efider-ed by the arbitrator- of: arbi!f:atE)f:s shall be final, and judgment may
be entef:ed upon it in aceef4anee with applicable law in any eour-t having j ur-isdietioR ther-eaf.
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.
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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 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.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided that:
.1 assignment is effective only after termination of the Contract by the Owner for cause pursuant to
Paragraph 14.2 and only for those subcontract agreements which the Owner accepts by notifying the
Subcontractor 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.
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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
Owner until subsequently revised.
6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations
related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and
to have the same rights which apply to the Contractor under the Conditions of the Contract, including, without excluding
others, those stated in Article 3, this Article 6 and Articles 10, 11 and 12.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner and separate contractors 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.
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 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 among the Owner, Contractor and Architect; a Construction
Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor; an
order for a minor change in the Work may be issued by the Architect 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.
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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 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 o 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 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 Architect 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
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covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured
on the basis of net increase, if any, with respect to that change.
7.3.8 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.
7.4 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 date of insurance required by Article I I 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.
8.2.4 If the Owner requires or causes the Contractor to accelerate the Schedule of the Work or to change the
sequence in which the Work shall be performed, and such acceleration or change requires the Contractor to
incorporate materials or equipment in the Work before measures can be undertaken by the Contractor to protect
such Work, the Contractor shall give prompt written notice of such to the Owner. Thereafter, should the Owner
direct the Contractor to proceed in the absence of appropriate measures to protect the Work, the Owner (1)
waives claims for any damages resulting therefrom, and (2) shall defend, indemnify and hold harmless the
Contractor, its Subcontractors and Sub-subcontractors and the agents, officers, directors and employees of each
of them, from and against any and all direct claims, damages, losses, costs and expenses, including but not limited
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to attorneys' fees, losses, costs and expenses incurred in connection with any testing, remediation, and dispute
resolution process, arising out of or relating to the Owner's acceleration of the Schedule of the Work or change in
the sequence of the Work.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Contractor is delayed at a 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 labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond
the Contractor's control, or by delay authorized by the Owner pending mediation and arbitration, or by other causes
whieh the Ar-ehiteet deter-mities may justify delay, then the Contract Time shall be extended by Change Order for such
reasonable time as the Architect, Owner and Contractor may determine.
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 Payments, the Contractor shall submit to the Afvhiteet Owner a schedule of
values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its
accuracy as the Ar-ehiteet Owner may require. This schedule, unless objected to by the Afehitee , Owner, shall be used
as a basis for reviewing the Contractor's Applications for Payment.
9.3 APPLICATIONS FOR PAYMENT (Refer to Owner's Agreement)
9.3.1 At least ten days before the date established for each progress payment, the Contractor shall submit to the
Af:ehiteet Owner an itemized Application for Payment for operations completed in accordance with the schedule of
values. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right
to payment as the Owner or- AFehitee may require, sueh as eepies of r-equisitions f+om Subeontr-aetor-s and fma,
suppliers, and refleeting retainage if provided for- in the centf:aet Peouffients.
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 of Payment have been previously issued and payments received from the Owner shall, to the
best of the Contractor's knowledge, information and belief, be free and clear of liens, claims, security interests or
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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 (Refer to Owner's Agreement)
9.4.1 The Ar-chiiee Owner will, within seven days after receipt of the Contractor's Application for Payment, either
issue to the Owner- a Certifieate for P payment, with a copy to the Contr-aetor, for- sueh amount as the Ar-ehit
deter-mines is pr-operly due, or notify the Contractor and Ownef in writing of the Ar-ehiteet's Owner's reasons for
withholding eer-tifieatieR payment 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, to the best of the Architect's knowledge, information and belief, 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 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 (Refer to Owner's Agreement)
9.5.1 The Afvhitee Owner may withhold a Cer-tificate feFP payment in whole or in part, to the extent reasonably
necessary to protect the Owner, if in the Ar-chiteet's Owner's opinion the representations to the Owner required by
Subparagraph 9.4.2 cannot be made. If the Ar-ehitee Owner is unable to certify payment in the amount of the
Application, the Ar-ehiiee Owner will notify the Contractor and Owner as provided in Subparagraph 9.4. 1. If the
Contractor and Amh4eet Owner cannot agree on a revised amount, the AFehiteet Owner will promptly issue a
Certifieate of-P-payment for the amount for which the Afohiteet Owner is able to make such representations to the
Owne . The Arehitee Owner may also withhold a Certifieate for-12-payment or, because of subsequently discovered
evidence, may nullify the whole or a part of a Cer-tifieate an application for Payment previously issued, to such extent as
may be necessary in the Af-ehiteet's Owner'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 probably 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 (Refer to Owner's Agreement)
9.6.1 Af4er the Architect has issued a Cer-tificate feF 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.
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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 taken thereon by the Ai:ehiteet 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 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 Subparagraph 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 Ar-ehiteet does Hot issue a Ger-tificate for- Payment, t4ough fie fault of the Contractor, within seven -ays
after r-eeeipt of the Coati:aetof:'s Applieation fef Payment, Of If the Owner does not pay the Contractor within seven days
after the date established in the Contract Documents the amount certified by the Architee4 in the Application for
Payment or awarded by arbitration, then the Contractor may, upon seven additional days' written notice to the Owner
and AF6140Ct, 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.
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.
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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.
9.8.6 Upon occupancy of the Work, the Owner shall assume sole responsibility to operate and maintain the
Work properly, and waives any claims by the Owner against the Contractor, its Subcontractors and Sub-
subcontractors and the agents, officers, directors and employees of each of them, for any damages resulting from
improper operation and maintenance, including but not limited to damages arising from mold and other
microbial conditions.
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 and shall not necessarily
constitute Substantial Completion of the portion or portions of the Work occupied or used.
9.10 FINAL COMPLETION AND FINAL PAYMENT (Refer to Owner's Agreement)
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 Ar-chiteet Owner will promptly make such inspection and, when the Arehitee Owner
finds the Work acceptable under the Contract Documents and the Contract fully performed, the Ar-ehitee Owner will
promptly issthe review a final CeFtifieate Application for Payment stating that to the best of the Arehiteet's Owner's
knowledge, information and belief, and on the basis of the Afehiteet's Owner'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 Ger-tifieate Application is due and payable. The Ar-ehiteet's
Contractor's final Cer-fifieate Application 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 Arehiteet Owner (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected
with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld
by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract
Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until
at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no
substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4)
consent of surety, if any, to final payment, (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 and (6) as-builts, spare parts, O&M
Manuals or Instructions, training and warranty programs . 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.
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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 Architeet so eanfimas, the Owner
shall, upon application by the Contractor And eertiAea - tion by the AFehit , 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 surety to payment of the balance due for that portion of the Work fully completed
and accepted shall be submitted by the Contractor to the Arehitee Owner 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
.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways,
structures and utilities not designated for removal, relocation or replacement in the course of
construction.
10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful
orders of public authorities bearing on safety of persons or 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 safety regulations and notifying owners and users of adjacent sites and utilities.
10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary
for execution of the Work, the Contractor shall exercise utmost care and carry 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 property
insurance required by the Contract Documents) to property referred to in Clauses 10.2.1.2 and 10.2.1.3 caused in whole
or in part by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of
them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Clauses 10.2.1.2
and 10.2.1.3, except damage or loss attributable to acts or omissions of the Owner 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.
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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 contamination of the Work or foreseeable bodily
injury or death to persons resulting from a material or substance, including but not limited to mold, mildew, fungi or
other similar microbial conditions, 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, the Work
in the affected area shall 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 contaminates the Work or 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) including but not limited to the existence, development or growth of
mold, mildew, fungi or other microbial conditions 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 or
account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7.
ARTICLE11 INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business
in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth
below which may arise out of or result from the Contractor's operations under the Contract and for which the Contractor
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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 property,
including loss of use resulting therefrom;
.6 claims for damages because of bodily injury, death of a person or property damage arising out of
ownership, maintenance or use of a motor vehicle;
.7 claims for bodily injury or property damage arising out of completed operations; and
.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. Owner and others
required by written contract shall be additional insureds on a primary and non contributory basis on
Contractor's Commercial General Liability coverage which shall also include a waiver of subrogation in favor of
the additional insureds.
11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the
Work. These certificates and the insurance policies required by this Paragraph I LI shall contain a provision that
coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice
has been given to the Owner. If any of the foregoing insurance coverages are required to remain in force after final
payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be
submitted with the final Application for Payment as required by Subparagraph 9.10.2. 14OFFRatiOR e0fl6fffling FeElHe
Of 6ON'er-agO OR a66E)Hflt Of FeViSed lifflits or- elaims paid under the general Aggr-egate, or- both, shall be fur-nished by the
CoRtmetar- with r-easenabl i aeeerdanee with the Cantmetef's infaf:matiefi and belief.
11.1.4 Contractor shall use its subcontractor general liability rolling wrap-up insurance program, Z-25, which
provides additional insured including completed operations coverage, primary and non contributory and
aggregate per project endorsements in favor of the Owner. The limits of liability shall be $25,000,000 each
occurrence, $25,000,000 general aggregate and $25,000,000 products completed operations aggregate. Completed
operations coverage shall be for a period of 10 years following substantial completion. The cost of the Z-25
insurance shall be billed as a cost of the Work.
11.2 OWNER'S LIABILITY INSURANCE
11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance.
11.3 PROjECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE
. - 1 11
11.3.1 0 11 - Q e the Contr-aetaf! to purchase and maintain Pr-ojeet Management Pr-oteetiv_e
- usual sources a -age for- !he Ownef-'S, GOHtFaetaf's and
Liability in thia,
Mehiiect's viear-ious liability fof eafistFuetien opef:atians ?der th? Gentr-aet. Unless other-wise Fequir-ed by the Cent
Doeuments, !he Ownef shall feimbuf:se the CentfaetaF by iner-easing the Cant+aet Sum to pay the cost of pufvhasing
maintainiRg sueh optional insufunee coverage, and the Contri-aeteer shall not be r-espensible for- purehasing any other-
liability insuranee on behalf of the Ownen The minimufn limits of liability pufehased with sueh eeverage shall be e
to the aggregate of the lifnits r-equif:ed for- Gentr-aeter's Liability hisumHee undef: Clauses 11. 1. 1.2 thfough 11. 1. 1.5.
11.3.2 To the e*tent damages are eavef:ed by Pr-ejeet Management PFOteetive Liability insur-ance, the Owfief:,
Contmetor- and Ar-ehitect waive all r-ighis against each othef for- Elamages, e*eept sueh rights as they may have to the
proceeds of such insuFanee. The policy shall pf:evide for- sueh waiver-s of subr-egation by endersement of athefawise.
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11.2.3 Tlie ownef: shall not feEluire the Contractof to include the Ownef, Afehiteet or other persons or
aaditional insLifeds on the Contmetor's Liability 1 isuFanee eovefag"n&F Paf:agr-aph 11 - 1 -
11.4 PROPERTY INSURANCE
11.4.1 Unless otherwise provided, the Contractor 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
11 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 property insurance shall be maintained, unless otherwise
provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of
such insurance, until final payment has been made as provided in Paragraph 9. 10 or until no person or entity other than
the Owner has an insurable interest in the property required by this Paragraph 11.4 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, water damage, stored material,
material in transit, 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 01 ' A ' ?ner does not intend to pur-ehase sueh pr-eper-ty i . . ed by the Cont-Faot and with all o
the coverages in the amount deser-ibed above, the Owner- shall so iiiferm the Contraetof in wr-itifig PFi8F to
commeReement of the Wor-k. The Contraetof: may then effect ifisuraftee which will pr-oteet the interests of the
Contr-aetei:, Subeontraetof:s and Sub subeeftimetor-s in the Wof:k, and by appropriate Change OfEleF the east ther-eof sha44
be chaf:ged to the Ownef:. if the CoatFaetor- is damaged by the failuf:e or 4iegleet of the Ownef: to purchase or- Maintain
desefibed above, without so fioti?ying the CoRtmeter in w6fing, then the Owner shall bear all r-easenable
costs pr-operly att6butable thef:ete.
11.4.1.3 If the property insurance requires deductibles, the Owner shall pay costs not covered because of such
deductibles.
11.4.1.4 This property insurance shal I 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 Contraetor- 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 S ub- subcontractors in the Work, and the Owner and Contractor shall be named insured.
11.4.3 Loss of Use of 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 lftheContr-a wFiting that insuFanee for- rislis other- than these deser-ibed herein or- othef special
eauses of less be ineluded i nsuranee policy, the Owner shall, if possible, inolude sueh insur-anee, a"d t
cost theFeOf Shall be chaFged- to aetar- by appropriate Change 0
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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 Contractor shall file with the Cantraetaf Owner a copy e
eael+1N4ie-y-certificate of insurance that includes insurance coverages required by this Paragraph 11.4. gaeh pakey
sh-all em-ntain all gener-ally applieable eenditiOnS, defillitiORS, eNGIUSiOnS afid ORE10fSefflefAS Felaled tO this PFOjeOt. Each
pohey ertificate 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 Contmeto Owner.
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 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 Contractor's property insurance shall be adjusted by the Ownef: Contractor as
fidueiar-y and made payable to the Owner and Contractor as fidueiary for the benefit of 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 and Contractor as fidueiafy shall, upon occurrence of an
insured loss, give bond for proper performance of the Owner's and Contractor's duties. The cost of required bonds
shall be charged against proceeds received as fidueiar-y. The Owner and Contractor shall deposit in a separate account
proceeds so received, which the Owner and Contractor 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, and to the extent funds are available 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 Ownef: Contractor as fidueiafy 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 Contractor'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-
Contractor is fidueiafy 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.
11.4.11 Owner agrees to release, defend, hold harmless and indemnify Contractor from all damages and costs
including deductible expense which (1) arise from terrorist attacks, domestic or foreign, and (2) to the extent set
forth in Subparagraph 10.3.3 material or substance, including mold, mildew, fungi or other microbial conditions,
whether or not such loss, damage or costs are covered by any insurance maintained or purchased by Owner or
Contractor. Such damages and costs shall include but are not limited to: the Work itself, architect's fees, loss
resulting from laws or ordinances, pollution clean up expenses, "soft costs", and delay in opening expenses.
Owner agrees that Contractor shall not be obligated to continue performance or complete the project or the
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Work until funds sufficient to cover the cost of repair or replacement of the Work damaged by perils, insured or
not, are placed in escrow and available for the benefit of, and to pay, Contractor and it's subcontractors, and
their suppliers for all costs incurred in their repair, replacement and completion of the Work. The placement of
such funds in escrow and the execution of a contract Change Order mutually acceptable to Contractor and
Owner adjusting the Contract Sum and Contract Time shall be an express condition precedent to Contractor's
obligation to repair, replace or complete the Work.
11.5 PERFORMANCE BOND AND PAYMENT BOND
11.5.1 The Owner shall 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 request or to requirements specifically expressed
in the Contract Documents, it must, if required in writing by the Architect, be uncovered for the Architect's 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 has not specifically requested to examine prior to
its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work
is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order,
be 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.
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. If
the Contractor fails to correct nonconforming Work within a reasonable time after receipt of notice, the Owner
may correct it in accordance with Paragraph 2.4.
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 warr anties 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.
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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 NONCOMFORMING WORK
12.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract
Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be
reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made.
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. Except as provided in
Subparagraph 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the
other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain
legally responsible for all obligations under the Contract.
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 bylaws,
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
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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 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 Subparagraph 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 of 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 Warr anty 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
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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 h-e-e-au-4e the -A r-ehiteet has not issued a Certificate ?ar- Payment and has not notified the Gentraeter- of the
rem-sen fOr 6@FtifiOation as provided in Subparagraph 9.4.1, er because the Owner has not made
payment on a CeFtif4eate-foFPaywie-PA within the time stated in the Contract Documents; and has not
notified the Contractor of the reason for withholding payment as provided in Subparagraph 9.4.1 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 f:easanable 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.
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
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waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, 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 termination, along with Feasonable overhead and profit on the Work
not executed.
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EXHIBIT "B"
Detailed Preconstruction Scope of Work
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EXHIBIT 66C99
Billing Rate Schedule
Exhibit "C"
Marana Regional Airport - Fire Protection Waterline Preconstruction
PRECONSTRUCTION SERVICES PROPOSAL
CODE
I DESCRIPTION Billable Est.
Rate Hours Total
PRECONSTRUCTION SERVICES
1001 OPERATIONS MANAGER $111.40 3 $334
1002 PROJECT DIRECTOR $108-80 43 $4,678
1003 PROJECT MANAGER $101.20 101 $10,221
1030 PRE-CONSTRUCTION MANAGER $108-80 23 $2,502
1030 SENIOR ESTIMATOR $101.20 78 $7,894
1030 ESTIMATOR 11 $75.70 62 $4,693
1009 PROJECT SUPERINTENDENT $76.30 46 $3,510
1026 PROJECT ENGINEER $77.60 2 $155
1034 PROJECT ADMINSTRATOR $38.70 8 $310
Craftsmen
GENERAL FOREMAN $54.90 0 $0
FOREMAN $39.16 0 $0
MASTER CRAFTSMAN $37.12 0 $0
CRAFTSMAN $37.12 0 $0
APPRENTICE $29.75 0 $0
TRAINEE $25.72 0 $0
Total Reirnbursables 5,500
Total Costs 366 $39,798
Notes:
1 PROPOSAL IS BASED ON COMPLETION OF PRECONSTRUCTION PHASE BY AUGUST 2007.
2 TOTAL PRICE IS PROPOSED AS A NOT TO EXCEED AMOUNT, REIMBURSED BASED ON
ACTUAL HOURS AND APPENDIX A, PERSONNEL REIMBURSEMENT SCHEDULE.
3 PRECONSTRUCTION SERVICES BEYOND AUGUST 22, 2007 WILL BE CONSIDERED
ADDITIONAL SERVICES IF THE NOT TO EXCEED AMOUNT HAS BEEN REACHED.
4 PRECONSRUCTION SERVICES TO BE PROVIDED AS GENERALLY DESCRIBED IN AIA 121-
CM/GC.
5 DRAWING REPRODUCTION HAS BEEN INCLUDED AS A REIMBURSABLE COSTS UP TO $150C
6 THE ABOVE RATES DO NOT INCLUDE REIMBURSABLE EXPENSES. THE ABOVE RATES
ARE EFFECTIVE OCTOBER 1, 2006 THROUGH OCTOBER 1, 2007. RATES WILL BE
REVIEWED AND ADJUSTED EFFECTIVE OCTOBER 1ST OF EACH YEAR, BEGINNING
OCTOBER 1, 2007.
EXHIBIT "D"
Sample GMP Amendment
AMENDMENT NO. I TO AGREEMENT
BETWEEN OWNER AND CONSTRUCTION MANAGER
Pursuant to Paragraph 2.2. of the Agreement, dated between (Owner) and
(Construction Manager), for (the Project), the Owner and Construction
Manager establish a Guaranteed Maximum Price and Contract Time for the Work as set forth below.
ARTICLE I
GUARANTEED MAXIMUM PRICE
The Construction Manager's Guaranteed Maximum Price for the Work, including the estimated Cost of the Work as defined
in Article 6 and the Construction Manager's Fee as defined in Article 5, is
Dollars ($
This Price is for the performance of the Work in accordance with the Contract Documents listed and attached to this
Amendment and marked Exhibits A through F as follows:
Exhibit A Drawings, Specifications, addenda and General, Supplementary and other Conditions of the Contract on
which the Guaranteed Maximum Price is based, pages through dated
Exhibit B Allowance items, pages through , dated
Exhibit C Assumptions and clarifications made in preparing the Guaranteed Maximum Price, pages
through , dated
Exhibit D Completion schedule, pages through , dated
Exhibit E Alternate prices, pages through dated
Exhibit F Unit prices, pages through dated
ARTICLE 11
CONTRACTTIME
The date of Substantial Completion established by this Amendment is:
OWNER: CONSTRUCTION MANAGER:
By: By:
Date: Date:
Attest: Attest: