EXHIBIT 10.50
Agreement Between Owner and Contractor
AGREEMENT made as of the 30th day of January in the year 2004
BETWEEN the Owner:
MONTICELLO RACEWAY MANAGEMENT, INC.
and the Contractor:
FLUOR ENTERPRISES, INC.
The Project is:
MONTICELLO RACINO
Fitup and Renovations at the Monticello Raceway,
Monticello, New York
The Architect is:
BRENNON, BEER AND GORMAN ARCHITECTS
515 Madison Avenue
New York, New York 10023
The Owner and Contractor agree as follows:
1
ARTICLE I
THE CONTRACT DOCUMENTS
The
Contract
Documents
consist
of this
Agreement,
Conditions
of the
Contract
(General,
Supplementary
and
other
Conditions),
Drawings,
Specifications, Addenda issued prior to execution of this
Agreement, other
documents
listed
in
this
Agreement
and
Modifications
issued
after
execution of this Agreement;
these form the Contract,
and are as fully a
part of the Contract as if attached so this Agreement or repeated
herein.
The Contract
represents the entire and integrated
agreement
between the
parties
hereto and
supersedes
prior
negotiations,
representations
or
agreements,
either
written
or
oral.
An
enumeration
of the
Contract
Documents, other than Modifications, appears in Article 15. If
anything in
the other Contract
Documents is inconsistent
with this
Agreement,
this
Agreement shall govern.
ARTICLE 2
THE WORK OF THIS CONTRACT
The
Contractor
shall fully
execute the Work
described
in the Contract
Documents,
except
to the
extent
specifically
indicated
in
Contract
Documents to be the
responsibility of others.
The scope of work is split
into two phases:
2.1 Phase I - Phase I Pre-Construction
Services shall be performed by the
Contractor
consisting of estimating,
value engineering
constructability
review,
preparation
of a Critical Path
Schedule,
bidding,
purchasing,
subcontracting
and
developing an acceptable
Guaranteed
Maximum
Price.
("GMP") The
Pre-Construction
Services shall commence on October 24, 2003
and be completed
upon
submission of an acceptable GMP and a receipt from
the Owner of a Notice to Proceed for construction.
2.2 Phase II Construction Services shall be performed by the
Contractor in
accordance
with the Contract
Documents and the Guaranteed
Maximum Price
("GMP") pursuant
to
Amendment
No 1.
Amendment
No. 1 shall be
jointly
developed and shall include the GMP and scope of Work to be
performed. The
parties shall
endeavor to complete
Amendment No. 1 on or before March 1,
2004.
ARTICLE 3
RELATIONSHIP OF THE PARTIES
The
Contractor
accepts
the
relationship
of
trust
and
confidence
established
by this
Agreement and covenants
with the Owner to cooperate
with the
Architect
and exercise the
Contractor's
skill and judgment in
furthering
the
interests
of the Owner;
to furnish
efficient
business
administration and supervision; to furnish at all times an adequate
supply
of workers and materials,
and to perform the Work in an
expeditious
and
economical manner consistent with the Owner's interests.
The Owner agrees
to furnish and approve,
in a timely manner,
information
required by the
Contractor and to make payments to the
Contractor in accordance
with the
requirements of the Contract Documents.
2
ARTICLE 4
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1. The date of commencement of the Phase I Pre-Construction
was October
24, 2003. The date of commencement
of the Phase II Construction
Services
shall be
established
by a Notice to
Proceed
issued by the Owner to the
Contractor.
4.2 The
Contract
Time shill be measured
from the date of the Notice to
Proceed.
4.3 The Contractor shall achieve Substantial Completion of the
entire Work
no later than one hundred
seventy-nine
(179) calendar days from the date
of the Notice to Proceed
subject to
adjustments of this Contract Time as
provided in the Contract
Documents
("Contract
Time").
In the event the
Contractor
fails to
substantially
complete the Work within the Contract
Time, the
Contractor
shall pay to the Owner the amount of Three Thousand
Dollars
($3,000)
per day as
liquidated
damages
for each day after the
Contract Time until the project has achieved Substantial
Completion.
The
amount of
liquidated
damages is a
reasonable
estimate of the
damages,
which damages are
impossible to
specifically
determine at the time this
Contract is
exceuted,
that the Owner will incur in the event the Project
is completed after the date of Substantial Completion and not a
penalty.
The parties
agree that
Contractor's
total
aggregate
liability for
liquidated
damages
shall be
limited
to
$190,000
and such
liquidated
damages are the Owner's
sole and
exclusive
remedy with
respect to late
completion.
4.4 In the event the Contractor is able to achieve Substantial
Completion
of the entire
Work prior to the
expiration
of the
Contract
Time,
the
Contractor
shall
receive
from the Owner,
the amount of Three
Thousand
Dollars ($3,000) per day as a fee bonus for each day of early
completion.
In the event the Contractor is able to achieve
Substantial
Completion on
or prior to July 1, 2004, the Contractor
shall also receive an additional
fee bonus of One Hundred Thousand Dollars ($100,000).
In order for the
Contractor to earn the
additional
fee bonus of One
Hundred
Thousand
Dollars
($100,000),
Substantial
Completion
must
be
achieved
by July 1,
2004,
without
regards
to any
adjustments
of the
Contract Time as provided in the Contract.
ARTICLE 5
BASIS FOR PAYMENT
5.1
CONTRACT SUM
5.1
Contract Sum
5.1.1 The Owner shall pay the Contractor the Contract Swan in
current fund
for the Contractor's
performance of the Contract. The Contract Sum is the
Cost of the
Work as defined
in
Article
7 plus
the
Contractor's
Lump
Sum Phase I Pre-Construction
Services Fee, Lump Sum Phase II Construction
Services
Fee,
and Lump Sum General
Conditions,
which
Contract
Sum is
limited to the provisions of Article 5.2
5.1.2 The Lump Sum amount
for Phase I
Pre-Construction
Services
is One
Hundred Three Thousand Dollars ($103,000).
5.1.3 The Lump Sum amount for Phase II Construction Phase Fee and
Lump Sum
General Conditions is Six Hundred Twenty-four Thousand Dollars
($624,000).
5.1.4 The
General
Conditions
included
within the Lump Sum for Phase II
Construction
Phase Services include all staffing costs,
both Home office
and field;
all staff
related costs such as taxes,
insurance,
benefits,
travel
and
relocation
expenses;
all field
office
expenses
including
consumables, office equipment, office rental, printing, telephone
and
3
other
office
related
expenses;
all cost for
insurance
required to be
provided
by the
Contractor;
Home office
expenses of any kind;
and any
costs
associated with the Contractor
providing a Corporate
Guarantee of
Completion to the Owner.
5.1.5 In the event the Cost of Work plus the Lump Sum
amounts for Phase 1
and Phase II Fee sad Lump Sum
General
Conditions
are less than the GMP,
the savings shall revert one hundred percent (100%) to the Owner.
5.2
GUARANTEED MAXIMUM PRICE
5.2.1
The Sum of the Cost of the Work and the
Contractor's
Lump Sum for
Phase I and Phase 11 Services and General Conditions will be
guaranteed by
the
Conttactor
not to
exceed
the sum as set forth on
Amendment
No 1,
subject to additions
and
deductions
by Change Orders as provided in the
Contract
Documents.
Such
maximum
sum is
referred
to in the
Contract
Documents as the
Guaranteed
Maximum
Price.
("GMP").
Costs which would
cause the
Guaranteed
Maximum
Price to be exceeded
shall be paid by the
Contractor without reimbursement by the Owner.
5.2.2 The Guaranteed
Maximum Price is based on the Contract Documents and
Amendment
No.
1
which
describes
any
assumptions,
qualifications,
exclusions and allowances.
5.2.3 In providing the GMP, the Contractor
acknowledges that the Drawings
and
Specifications
are
incomplete,
and the Contractor has
anticipated
further
development by the Architect and its
consultants of the Drawings
and
Specifications.
The
Contractor
has
provided
in the GMP for
such
further
development
consistent with the intent of the Contract Documents
ensuring
that
the Work is
complete
and
fully
operational
for
their
intended
beneficial
use and
occupancy in
accordance
with the Contract
Documents.
ARTICLE 6
CHANGES IN THE WORK
6.1
Adjustments to the Guaranteed
Maximum Price on account of changes im
the Work may be
determined by any of the methods
listed in
Subparagraph
7.3.3 of AIA Document A201-1997.
6.2 In calculating
adjustments to subcontracts (except those awarded with
the
Owner's
prior
consent
on the basis of cost plus a fee),
the terms
"cost" and "fee" as used in Clause
7.3.3.3 of AIA Document
A201-1997 and
the terms "costs" and "a reasonable
allowance for overhead and profit" as
used in
Subparagraph
7.3.6
of AIA
Document
A201-1997
shall
have the
meanings
assigned
to them in AIA
Document
A201-1997
and
shall not be
modified
by
Articles
5,
7
and 8 of
this
Agreement.
Adjustments
to
subcontractors awarded with the Owner's prior consent on the basis
of cost
plus a fee
shall be
calculated
in
accordance
with the
terms of those
subcontracts.
6.3 In calculating
adjustments to the Guaranteed Maximum Price, the terms
"cost"
and
"costs"
as used in the
above-referenced
provisions
of AIA
Document A201-1997 shall mean the Cost of the Work as defined in
Article 7
of this
Agreement
and the terms "fee" and "a
reasonable
allowance
for
overhead
and
profit"
shall
mean the
Contractor's
Fee as
defined
in
Subparagraph 5.1.2 and 5.1.3 of this Agreement.
6.4 For a change
in the
Work,
the
Contractor
shall be
entitled
to a
mark-up
of five
(5%)
percent
of the cost of the
Change
for
Phase II
Construction
Service
Fee
and
five
percent
(5%)
Lump
Sum
General
Conditions.
___________ Cost of Change
Percent of Cost of Change Increase
----------------------------------
$
0 - $ 50,000
10%
$ 50 - $100,000
8%
$100 - $500,000
6%
$ over $500,000
4%
4
6.5 For a change in the Work, the
Subcontractors of the Contractors shall
be limited to a mark-up of ten (10%) on the coat of work
performed by the
Subcontractors for overhead and profit and a mark-up of five (5%)
for work
performed
by a
sub-subcontractor.
The
sub-subcontractor
shall also be
limited to a ten (10%)
percent
mark-up on the cost of work
performed by
the
sub-subcontractor for overhead and profit. In no event shall there
be
more than two tiers of mark-up allowed.
ARTICLE 7
COSTS TO BE REIMBURSED
7.1 COST OF THE WORK
The term Cost of the Work
shall mean costs
necessarily
incurred
by the
Contractor in the proper
performance of the Work.
Such costs shall be at
rates not higher than the standard paid at the place of the Project
except
with prior
consent of the Owner.
The Cost of the Work shall include only
the items set forth in this Article 7.
7.2 LABOR COSTS
7.2.1 Wages of construction workers directly employed by the
Contractor to
perform
the
construction
of the Work at the site or,
with the
Owner's
approval, at off-site workkhops subject to the Provisions of
Article 5.
7.2.2 Wages or salaries of the Coatractor's supervisory and
administrative
personnel
stationed
at the site or office
but only for that
portion of
their time required for the Work subject to the Provisions of
Article 5.
7.2.3 Wages and salaries of the Contractor's supervisory or
administrative
personnel engaged,
at factories,
workshops or on the road, in expediting
the production or
transportation
of materials or equipment
required for
the Work,
but only for that
portion of their time
required for the Work
subject to the Provisions of Article 5.
7.2.4
Costs
paid or incurred by the
Contractor
for
taxes,
insurance,
contributions,
assessments
and
benefits
required by law or
collective
bargaining
agreements and, for personnel not covered by such
agreements,
customary
benefits
such as sick
leave,
medical
and
health
benefits,
holidays,
vacations and pensions,
provided such costs are based on wages
and salaries
included in the Cost of the Work under
Subparagraphs
7.2.1
through
7.2.3
subject to the
Provisions
of Article 5.
7.3
SUBCONTRACT COSTS
7.3.1 Payments made by the Contractor to Subcontractors in
accordance with
the requirements of the subcontracts.
5
7.4
COSTS
OF
MATERIALS
AND
EQUIPMENT
INCORPORATED
IN THE
COMPLETED
CONSTRUCTION
7.4.1
Costs,
including
transportation
and storage,
of
materials
and
equipment
incorporated
or
to
be
incorporated
in
the
completed
construction.
7.4.2 Costs of materials described in the preceding
Subparagraph 7.4.1 in
excess
of those
actually
installed
to allow for
reasonable
waste and
spoilage.
Unused
excess
materials,
if any,
shall
become the
Owner's
property at the completion of the Work.
7.5 COSTS OF OTHER
MATERIALS AND
EQUIPMENT,
TEMPORARY
FACILITIES
AND
RELATED ITEMS
7.5.1
Costs,
including
transportation
and
storage,
installation,
maintenance,
dismantling
and removal of materials,
supplies,
temporary
facilities,
machinery, equipment, and hand tools not customarily owned by
construction
workers, that are provided by the Contractor at the site and
fully
consumed in the
performance of the Work; and cost of such items if
not fully consumed,
whether sold to others or retained by the Contractor.
Cost for items
previously
used by the Contractor
shall mean fair market
value subject to the Provisions of Article 5.
7.5.2 Rental charges for temporary facilities,
machinery,
equipment, and
hand tools not customarily owned by construction workers that are
provided
by the
Contractor
at the site,
whether
rented from the
Contractor
or
others,
and costs of
transportation,
installation,
minor
repairs
and
replacements,
dismantling
and removal
thereof.
Rates and quantities of
equipment rented shall be subject to the Owner's prior approval
subject to
the
Provisions
of Article 5.
7.5.3 Costs of removal of debris from the site.
7.5.4
Costs
of
document
reproductions,
facsimile
transmissions
and
long-distance
telephone
calls,
postage
and
parcel
delivery
charges,
telephone
service at the site and
reasonable
petty cash expenses of the
site office subject to the Provisions of Article 5.
7.5.5
That
portion
of
the
reasonable
expenses
of
the
Contractor's
personnel
incurred while traveling in discharge of duties
connected with
the Work subject to the Provisions of Article 5.
7.5.6 Costs of materials and equipment
suitably
stored off the site at a
mutually acceptable location, if approved in advance by the Owner.
6
7.6 MISCELLANEOUS COSTS
7.6.1 That portion of
insurance
and bond
premiums
that can be directly
attributed to this Contract subject to the Provisions of Article 5.
7.6.2 Sales, use or similar taxes imposed by a governmental
authority that
are related to the Work.
7.6.3 Fees and
assessments for the building permit and for other permits,
licenses
and
inspections
for which the
Contractor
is
required by the
Contract Documents to pay.
7.6.4 Fees of laboratories
for tests required by the Contract
Documents,
except
those
related
to
defective
or
nonconforming
Work
for
which
reimbursement is excluded by Subparagraph 13.5.3 of AIA Document
A201-1997
or other
provisions
of the
Contract
Documents,
and
which do not fall
within the scope of Subparagraph 7.7.3.
7.6.5 Royalties and license fees paid for the use of a particular
design,
process
or
product
required
by the
Contract
Documents;
the
cost of
defending
suits or claims for
infringement of patent rights arising from
such
requirement
of
the
Contract
Documents;
and
payments
made
in
accordance with legal judgments against the Contractor resulting
from such
suits or claims and payments of settlements made with the Owner's
consent.
However,
such, costs of legal defenses,
judgments and settlements
shall
not be included in the calculation of the
Contractor's
Fee or subject to
the
Guaranteed
Maximum
Price.
If such
royalties,
fees and
costs are
excluded
by the last
sentence
of
Subparagraph
3.17.1 of AIA
Document
A201-1997 or other provisions of the Contract
Documents,
then they shall
not be included in the Cost of the Work.
7.6.6 Data processing
costs related to the Work subject to the Provisions
of Article 5.
7.6.7 Deposits lost for causes other than the
Contractor's
negligence or
failure to fulfill a specific
responsibility to the Owner as set forth in
the Contract Documents.
7.6.8 Legal,
mediation and arbitration costs,
including attorneys' fees,
other than those arising from disputes
between the Owner and
Contractor,
reasonably
incurred by the Contractor in the
performance of the Work and
with the Owner's
prior
written
approval;
which
approval
shall not be
unreasonably withheld.
7.6.9
Expenses
incurred in
accordance
with the
Contractor's
standard
personnel
policy
for
relocation
and
temporary
living
allowances
of
personnel
required for the Work,
if approved by the Owner subject to the
Provisions of Article 5.
7
7.7 OTHER COSTS AND EMERGENCIES
7.7.1 Other costs
incurred in the
performance
of the Work if and to the
extent approved in advance in writing by the Owner.
7.7.2
Costs
due to
emergencies
incurred
in taking
action to
prevent
threatened
damage,
injury or loss in case of an emergency
affecting the
safety of persons
and
property,
as provided
in
Paragraph
10.6 of AlA
Document A201-1997.
7.7.3 Costs of repairing or correcting damaged or nonconforming
Work shall
be
paid
by
the
contractor
who
damaged
the
Work
or
performed
it
incorrectly.
ARTICLE 8
COSTS NOT TO BE REIMBURSED
8.1 The Cost of the Work shall not include:
8.1.1
Salaries
and
other
compensation
of the
Contractor's
personnel
stationed at the
Contractor's
principal office or offices other than the
site office,
except as specifically
provided in Subparagraphs
7.2.2 and
7.2.3 or as may be provided in Article 14.
8.1.2 Expenses of the Contractor's principal office and offices
other than
the site office.
8.1.3 Overhead and general expenses,
except as may be expressly
included
in Article 7.
8.1.4
The
Contractor's
capital
expenses,
including
interest
on
the
Contractor's capital employed for the Work.
8.1.5 Rental
costs of machinery
end
equipment,
except as
specifically
provided in Subparagraph 7.5.2.
8.1.6 Except as provided in Subparagraph
7.7.3 of this
Agreement,
costs
due to the negligence or failure to fulfill a specific
responsibility
of
the
Contractor,
Subcontractors
and
suppliers
or
anyone
directly
or
indirectly
employed
by any of them or for whose
acts any of them may be
liable.
8.1.7 Any cost not reasonably inferable from those described in
Article 7.
8.1.8 Costs,
other than costs
included in Change Orders
approved by the
Owner, that would cause the Guaranteed Maximum Price to be
exceeded.
8.1.9
Costs and
Expenses
as
defined
in
Article 5 that are
otherwise
included in the Lump Sum Fee and General Conditions.
ARTICLE 9
DISCOUNTS, REBATES AND REFUNDS
9.1 All
discounts,
rebates and refunds obtained by the Contractor
shall
accrue to the Cost of the Work.
8
ARTICLE 10
SUBCONTRACTS AND OTHER AGREEMENTS
10.1 Those portions of the Work that the Contractor
does not
customarily
perform with the
Contractor's
own
personnel
shall be
performed
under
subcontracts or by other appropriate
agreements with the Contractor.
The
Owner may designate
specific persons or entities from whom the Contractor
shall obtain bids if they meet Contractor's qualification
requirement. The
Contractor
shall obtain bids from
Subcontractors
and from
suppliers of
materials
or
equipment
fabricated
especially
for the Work
and
shall
deliver such bids to the
Architect or Owner's
Representative.
The Owner
shall
then
timely
determine
with the
Contractor
which
bids
will be
accepted.
The Contractor shall not be required to contract with anyone to
whom the Contractor has reasonable objection.
10.2 If a specific
bidder
among
those whose bids are
delivered
by the
Contractor
to the
Architect
(1) is
recommended
to
the
Owner
by the
Contractor;
(2) is qualified to perform that portion of the Work; and (3)
has
submitted a bid that
conforms
to the
requirements of the
Contract
Documents without reservations or exceptions,
but the Owner requires that
another bid be
accepted,
then the
Contractor
may require that a Change
Order be issued to adjust the
Guaranteed
Maximum Price by the difference
between
the bid of the person or entity
recommended
to the Owner by the
Contractor and the amount of the subcontract or other
agreement
actually
signed with the person or entity designated by the Owner.
10.3
Subcontracts
or other
agreements
shall conform to the
applicable
payment
provisions
of this
Agreement,
and shall not be
awarded on the
basis of cost plus a fee without the prior consent of the Owner.
ARTICLE 11
ACCOUNTING RECORDS
The
Contractor
shall keep full and detailed
accounts and exercise
such
controls as may be necessary for proper
financial
management
under this
Contract,
and the accounting and control systems shall be satisfactory to
the Owner. The Owner and the Owner's
accountants shall be afforded access
to, and shall be permitted to audit and copy,
the
Contractor's
records,
books, correspondence,
instructions,
drawings,
receipts,
subcontracts,
purchase
orders,
vouchers,
memoranda
and other data
relating
to this
Contract,
and the
Contractor
shall preserve these for a period of three
years after final payment, or for such longer period as may be
required by
law.
ARTICLE 12 PAYMENTS
12.1
PROGRESS PAYMENTS
12.1.1 Based upon
Applications for Payment
submitted to the Architect by
the Contractor and Certificates
for Payment issued by the Architect,
the
Owner shall make
progress
payments on account of the Contract Sum to the
Contractor as provided below and elsewhere in the Conract
Documents.
The
Fixed Fee and General
Conditions amounts shall be paid in accordance with
the attached Schedule of Payments.
12.1.2 The period
covered by each
Application
for Payment
shall be one
calendar month ending on the last day of the month, or as follows:
12.1.3
Provided
that an
Application
for
Payment
is
received
by the
Architect
not later than the 1st day of the month,
the Owner
shall make
payment
to the
Contractor
not later
than the 1st day of the
following
month.
If an Application
for Payment is received by the Architect
after
the application
date fixed above,
payment shell be made by the Owner not
later
than 30 days
after the
Architect
receives
the
Application
for
Payment.
12.1.4
With
each
Application
for
Payment
starting
with
the
second
application,
the Contractor shall submit a Release of Lien and Claim from
each
subcontractor
or
vendor
that
payments
have
been
made from the
Application
for Payment
requested
by the
Contractor
for the
previous
month.
The
Release of Lien and Claim shall show the amount paid for Work
performed and the retainage
balance due for that Work.
The submission of
Release of Lien and Claim shall continue until final
application at which
time the Contractor shall submit Final Release of Lien and Claim
for every
subcontractor
and vendor
subject to receipt of such Final
Payment.
The
Contractor
shall submit with its
Application
for Payment each month its
Release
of Lien and Claims for all
payments
received
as of the date of
application
and
subject to receipt of the current
application
payment.
Such Release of Lien and Claim forms shall be approved by the
Owner.
9
12.1.5
Each
Application
for
Payment
shall be based on the most recent
schedule of values
submitted by the
Contractor
in
accordance
with the
Contract
Documents.
The
schedule of values
shall
allocate
the entire
Guaranteed
Maximum Price among the various
portions of the Work,
except
that the
Contractor's
Fee shall be shown as a single
separate item. The
schedule of values
shall be prepared in such form and
supported
by sucb
data to
substantiate
its accuracy as the
Architect
may
acquire.
This
schedule,
unless
objected to by the Architect,
shall be used as a basis
for reviewing the Contractor's Applications for Payment.
12.1.6 Applications for Payment shall show the percentage of
completion of
each
portion
of the
Work as of the
end of the
period
covered
by the
Application for Payment.
12.1.7 Subject to other provisions of the Contact Documents, the
amount of
each progress
payment shall be computed
based on the AIA G 702/703 Forms
without retainage, except as provided in Section 12.1.8 herein:
The
Contractor's
Lump
Sum
Fee
shall
be paid on a
monthly
basis
in
proportion
to the
Cost
of
Work
to be paid
each
month.
The
General
Conditions
amount shall be paid in accordance
with a mutually
agreeable
schedule.
12.1.8 Upon the Owner's prior approval,
payments to Subcontractors
shall
be subject to retainage of not less than ten percent (10%).
The Owner and
the Contractor shall agree upon a mutually acceptable procedure for
review
and
approval of payments
and
retention
for
Subcontractors.
Retainage
amount
shall
be
reduced
to
5%
upon
completion
of
50%
of
such
Subcontractor's
work in strict compliance with the Contract Documents and
the Contract Time.
12.1.9 In taking action on the Contractor's
Applications for Payment, the
Architect
shall be entitled to rely on the accuracy and
completeness
of
the
infomnation
furnished by the
Contractor
and shall not be deemed to
represent
that the
Architect has made a detailed
examination,
audit or
arithmetic
verification of the documentation submitted in accordance with
Subparagraph
12.1.4 or other supporting data; that the Architect has made
exhaustive or
continuous
on-site
inspections
or that the Architect has
made examinations to ascertain how or for what purposes the
Contractor has
used
amounts
previously
paid
on
account
of
the
Contract.
Such
examinations, audits and verifications, if required by the Owner,
will be
performed by the Owner's
accountants
acting in the sole
interest of the
Owner.
12.2 FINAL PAYMENT
12.2.1
Final
payment,
constituting
the
entire
unpaid
balance of the
Contract Sum, shall be made by the Owner to the Contractor when;
.1 the
Contractor
has fully
performed the Contract except for the
Contractor's
responsibility
to
correct
Work
as
provided
in
Subparagraph 12.2.2 of AIA Document A201-1997,
and to satisfy other
requirements, if any, which extend beyond final payment; and
.2 a final Certificate for Payment has been issued by the
Architect.
12.2.2 The Owner's final
payment to the Contractor shall be made no later
than 30 days after the issuance of the Architect's
final
Certificate for
Payment, or as follows:
12.2.3 The
Owner's
accountants
will review and report in writing on the
Contractor's
final accounting
within 30 days after delivery of the final
accounting to the Architect by the Contractor. Based upon such Cost
of the
Work
as
the
Owner's
accountants
report
to be
substantiated
by
the
Contractor's
final
accounting,
and
provided
the
other
conditions
of
Subparagraph
12.2.1 have been met, the Architect will,
within seven days
after
receipt of the written
report of the Owner's
accountants,
either
issue to the
Owner a final
Certificate
for
Payment
with a copy to the
Contractor,
or
notify
the
Contractor
and
Owner
in
writing
of
the
Architect's
reasons
for
withholding
a
certificate
as
provided
in
Subparagraph 9.5.1 of the AIA Document A201-1997.
The time periods stated
in this Subparagraph
12.2.3 supersede those stated in Subparagraph
9.4.1
of the AIA Document A201-1997.
10
12.2.4
If the
Owner's
accountants
report
the
Cost
of the
Work
as
substantiated
by the
Contractor's
final
accounting
to be
less
than
claimed by the
Contractor,
the
Contractor
shall be entitled to demand
arbitration
of the
disputed
amount
without a further
decision of the
Architect.
Such demand for
arbitration
shall be made by the Contractor
within
30
days
after
the
Contractor's
receipt
of
a
copy
of
the
Architect's final Certificate for Payment;
failure to demand arbitration
within
this
30-day
period
shall
result in the
substantiated
amount
reported by the Owner's
accountants
becoming binding on the Contractor.
Pending
a final
resolution
by
arbitration,
the
Owner
shall pay the
Contractor the amount certified in the Architect's
final Certificate for
Payment.
12.2.5 If,
subsequent to final payment and at the Owner's
request,
the
Contractor
incurs
costs
described
in
Article 7 and not
excluded
by
Article 5 to correct
defective or
nonconforming
Work,
the Owner shall
reimburse the Contractor
such costs and the
Contractors
Fee applicable
thereto
on the same basis as if such
costs had been
incurred
prior to
final payment,
but not in excess of the Guaranteed Maximum Price. If the
Contractor has
participated in savings as provided in Paragraph 5.2, the
amount of such savings shall be recalculated and appropriate credit
given
to the Owner in determining the net amount to be paid by the Owner
to the
Contractor.
ARTICLE 13
TERMINATION OR SUSPENSION
13.1 The
Contract may be
terminated
by the Owner for
convenience,
as
provided in Article 14 of AIA Document A201-1997.
However, the amount to
be paid to the
Contractor
under
Subparagraph
14.1.3
of AIA
Document
A201-1997 shall not exceed the amount the Contractor would be
entitled to
receive under
Paragraph 13.2 below.
13.2 The Contract may be terminated by the Owner for cause as
provided in
Article 14 of AIA Document
A201-1997.
The amount, if any, to be paid to
the Contractor under Subparagraph
14.2.4 of AIA Document A201-1997 shall
not cause
the
Guaranteed
Maximum
Price to be
exceeded,
nor shall it
exceed an amount calculated as follows:
13.2.1 Take the Cost of the Work
incurred by the
Contractor to the date
of termination;
13.2.2
Add
the
Contractor's
General
Conditional
Fee
computed
upon
approved
schedule of payments as of the date of termination
all Fee and
General
Conditions
amounts
shall be
deemed
carried
when
billed
in
accordance
with the Schedule of Payments to be included in Amendment No.
1.
13.2.3
Subtract the
aggregate of previous
payments
made by the Owner.
13.2.3 The Owner shall also pay the Contractor fair compensation,
either
by purchase or rental at the
election
of the Owner,
for any
equipment
owned by the
Contractor
that the Owner elects to retain and that is not
otherwise included in the Cost of the Work under Subparagraph
13.2.1. To
the extent that the Owner elects to take legal assignment of
subcontracts
and purchase orders (including rental agreements),
the Contractor shall,
execute and
deliver
all such papers and take all such steps,
including
the legal assignment of such subcontracts and other contractual
rights of
the Contractor, as the Owner may require for the purpose of fully
vesting
in the Owner
the
rights
and
benefits
of the
Contractor
under
such
subcontracts or purchase
orders.
Contractor shall be paid for all costs
associated
with
assisting
Owner in such
assignment
or other
actions
related to such subcontractors.
13.3 The Work may be
suspended by the Owner as provided in Article 14 of
AIA Document
A201-1997;
in such case, the Guaranteed
Maximum Price and
Contract
Time shall be increased as provided in
Subparagraph
14.3.2 of
AIA Document A201-1997, except that the term "profit" shall be
understood
to mean the
Contractor's
Fee as
described in
Subparagraphs
5.1.2 and
Paragraph 6.4 of this Agreement.
11
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1
Where
reference
is made
in this
Agreement
to a
provision
AIA
Document A201-1997 or another Contract Document,
the reference refers to
that
provision as amended of
supplemented
by other
provisions
of the
Contract Documents.
14.2 Payments due and unpaid under the Contract
shall bear interest from
the date
payment
is due at the rate
stated
below,
or in the
absence
thereof,
at the
legal
rate
prevailing
from time to time at the place
where the Project is located.
14.3 The Owner's representative is: Phillip Berman
14.4 The Contractor's representative is: Larry Allocco
14.5
Neither
the Owner's nor the
Contractors
representative
shall be
changed without ten days' written notice to the other party.
14.6 Other provisions:
In no event shall Contractor or its affiliates be
liable to Owner
whether
based upon
contract,
strict
liability,
tort
(including
negligence)
or any
other
legal
theory
for any
indirect,
incidental,
consequential,
or special damages of any nature
whatsoever
including without limitation:
production related losses and expenses due
to loss of use or
shutdown,
loss of actual or
anticipated
profits
or
revenues,
increased
operating
expense,
costs
of or due
to
business
interruption or downtime, cost of capital or interest expense on
shutdown
equipment or facility,
overhead and other costs for unrealized
work and
services,
increased overhead expenses due to loss of production, loss of
market share, or claims by customers due to missed deliveries,
except for
such damages caused by the willful misconduct of Contractor.
ARTICLE 15
ENUMERATION OP CONTRACT DOCUMENTS
15.1 The
Contract
Documents,
except
for
Modifications
issued
after
execution of this Agreement, are enumerated as follows:
15.1.1
The
Agreement
is this
executed
Agreement
Between
Owner
and
Contractor, AIA Document Al11-1997 as modified.
15.1.2
The
General
Conditions
are the
1997
edition
of the
General
Conditions of the Contract for
Construction,
AIA Document
A201-1997 as
modified and attached hereto as Exhibit "__".
15.1.3 The Specifications are those contained in the Project Manual
dated
as in Subparagraph 15.1.3, and are as follows:
Section
Title
Pages
15.1.4 The Drawings are as follows, and are dated unless a
different date
is shown below:
Number
Title
Pages
12
15.15 The Addenda, if any, are as follows:
Number
Title
Pages
Portions of Addenda relating to bidding
requirements are not part of the
Contract Documents unless the bidding requirements are also
enumerated in
this Article 15.
15.1.6 Other Documents,
if any,
forming part of the Contract
Documents
are as follows:
ARTICLE 16
INSURANCE AND BONDS
This Agreement is entered into as of the day and year first written
above
and is
executed
in at least three
original
copies of
which one is to be
delivered to the Contractor, and the remainder to the Owner.
/s/ Morad Tahbaz
/s/ Terry Towle
--------------------------------
-----------------------------------
OWNER (SIGNATURE)
CONTRACTOR (SIGNATURE)
Morad Tahbaz
Terry Towle
--------------------------------
-----------------------------------
Morad Tahbaz
Terry Towle
Executive V.P.
Vice President
(Printed name and title)
(Printed name and title)
13
GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
ARTICLE 1
GENERAL PROVISIONS BASIC DEFINITIONS
1.1.1
The
Contract
Documents
consist
of the
Agreement
between
Owner
and
Contractor
(hereinafter
the Agreement),
Conditions of the Contract
(General,
Supplementary and other Conditions),
Drawings,
Specifications,
Addenda issued
prior to execution of the Contract,
other documents listed in the Agreement and
Modifications
issued after
execution of the Contract.
A Modification is (1) a
written
amendment to the Contract
signed by both parties,
(2) a Change Order,
(3) a Construction Change Directive or (4) a written order for a
minor change in
the
Work
issued
by
the
Architect.
Unless
specifically
enumerated
in the
Agreement, the Contract Documents do not include other documents
such as bidding
requirements
(advertisement
or
invitation
to bid,
Instructions
to Bidders,
sample forms,
the
Contractor's
bid or portions of Addenda relating to bidding
requirements).
1.1.2 THE CONTRACT The Contract
Documents
form the Contract for
Construction.
The Contract represents the entire and integrated
agreement between the parties
hereto and supersedes prior negotiations,
representations or agreements, either
written or oral. The Contract may be amended or modified only by a
Modification.
The
Contract
Documents
shall
not
be
construed
to
create
a
contractual
relationship of any kind (1) between the Architect and
Contractor,
(2) between
the Owner and a Subcontractor
or
Sub-subcontractor,
(3) between the Owner and
Architect
or (4)
between
any
persons
or
entities
other than the Owner and
Contractor.
The
Architect
shall,
however,
be
entitled to
performance
and
enforcement of obligations 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 to the
extent consistent with the Contract Documents.
1.2.2 Organization of the Specifications into divisions,
sections and articles,
and
arrangement
of Drawings
shall not control the
Contractor in dividing the
Work among
Subcontractors or in establishing the extent of Work to be
performed
by any trade.
1.2.3
Unless
otherwise
stated in the
Contract
Documents,
words
which have
well-known technical or construction
industry meanings are used in the Contract
Documents in accordance with such recognized meanings.
-1-
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 to be used by the
Contractor
or any
Subcontractor,
Sub-subcontractor
or material or
equipment
supplier on other projects or for additions to this Project outside
the scope of
the Work without the specific
written
consent of the Owner,
Architect and the
Architect's consultants. The Contractor, Subcontractors,
Sub-subcontractors and
material or equipment
suppliers are authorized to use and reproduce
applicable
portions of the Drawings,
Specifications
and other
documents
prepared by the
Architect
and the
Architect's
consultants
appropriate
to and for use in the
execution of their Work under the Contract Documents. 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.
-2-
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,
easemments,
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,
including without limitation all design and architectural services,
except such
services
specifically
provided by Contractor,
shall be furnished by the Owner
and provided
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 or persistently
fails to carry out Work
in
accordance
with
the
Contract
Documents,
the
Owner
may,
after
giving
Contractor
notice of such failure and the
reasonable
opportunity to cure such
failure,
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 pursuant to this Agreement,
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 in excess of the Contract Sum. 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 be
responsible to the extent set forth in
Section 14.2.
ARTICLE 3
CONTRACTOR
3.1
GENERAL
3.1.1 The Contractor is the person or entity identified as such in
the Agreement
and is referred to throughout
the Contract
Documents as if singular in number.
The term
"Contractor"
means
the
Contractor
or the
Contractor's
authorized
representative.
3.1.2 The
Contractor
shall
perform the Work in
accordance
with the Contract
Documents.
-3-
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
sha11 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
3.21 and 3.2.2,
the
Contractor
shall make Claims as provided in
Subparagraph
4.3.6 and 4.3.7.
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 sha11 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
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
sha11 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
as if such acts and omissions were
the conduct of the Contractor.
3.4
LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents,
the Contractor shall
provide and pay for labor, materials,
equipment,
tools, construction equipment
and machinery, water, heat, utilities,
transportation, and other facilities and
services
necessary
for proper
execution and
completion of the Work,
whether
temporary or permanent and whether or not
incorporated or to be incorporated in
the Work.
3.4.2 The Contractor may make
substitutions only with the consent of the Owner,
after evaluation by the Architect and in accordance with a Change
Order.
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.
-4-
3.5
WARRANTY
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. Contractor's
warranty obligations shall extend
for a period of one year after
Substantial
Completion of the Work. All
warranties or guarantees
made by the Contractor in connection
with its
services
are
limited
to
those
set
forth
in
this
paragraph.
The
Contractor makes no other warranties or guarantees,
express or implied,
including any WARRANTY OF
MERCHANTABILITY
OR WARRANTY OR FITNESS FOR A
PARTICULAR PURPOSE.
The Contractor
shall, for the protection of the Owner,
demand from all
vendors
from
which
the
Contractor
procures
machinery,
equipment,
materials
or
services
guarantees
with
respect
to
such
machinery,
equipment,
materials and services, which shall be made available to the
Owner
to
the
full
extent
of the
terms
thereof.
The
Contractor's
liability
with
respect
to such
machinery,
equipment
materials
and
services shall be limited to procuring
guarantees from such vendors and
rendering
all
reasonable
assistance
to the Owner for the
purpose of
enforcing the same."
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 Owner shall
secure and pay for the building permit and other permits and
governmental
fees,
licenses and inspections
necessary for proper
execution
and completion of the
Work which are customarily secured after execution of the Contract
and which are
legally required when bids are received or negotiations concluded.
3.7.2 The
Contractor
shall
comply
with and give
notices
required
by laws,
ordinances,
rules,
regulations
and
lawful
orders
of
public
authorities
applicable to performance of the Work.
3.7.3 It is not the Contractor's
responsibility
to ascertain that the Contract
Documents are in accordance with applicable laws, statutes,
ordinances, building
codes,
and rules and
regulations.
However,
if the
Contractor
observes that
portions of the Contract
Documents are at variance
therewith,
the
Contractor
shall promptly notify the Architect and Owner in writing,
and necessary changes
shall be accomplished by appropriate Modification.
3.7.4
If the
Contractor
performs
Work
knowing
it to be
contrary
to laws,
statutes,
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 to the
Contractor
of materials and
equipment
delivered
at the
site
and
all
required
taxes,
less
applicable trade discounts;
-5-
.2
Contractor's
costs for
unloading
and handling at the site,
labor,
installation costs, overhead,
profit and other expenses contemplated
for stated
allowance
amounts
shall be included in the Contract Sum
but not in the allowances;
.3
whenever
costs are more than or less than
allowances,
the Contract
Sum shall be adjusted
accordingly by Change Order. The amount of the
Change Order shall reflect (1) the
difference
between
actual costs
and
the
allowances
under.
Clause
3.8.2.1
and
(2)
changes
in
Contractors costs under Clause 3.8,2.2.
3.8.3 Materials and equipment under an allowance shall be selected
by the Owner
in sufficient time to avoid delay in the Work.
3.9
PROJECT REPRESENTATIVE
3.9.1 The
Contractor
and Owner
shall
employ a competent
Representative
and
necessary
assistants
who shalll be in
attendance
at the Project
site during
performance of the Work. Such
Representative
shall represent the Parties,
and
communications
given to the
Representative
shall be as binding as if given to
such party.
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 construction schedule shall provide for
the commencement,
sequence and time of performance of the Work in such a manner
as to substantially complete the Work in accordance with the
Contract Documents.
The construction
schedule 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 shal1 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
Date, 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 as a cost 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,
Sub-subcontractor,
manufacturer, supplier or distributor to illustrate some portion of
the Work.
3.12.2 Product Data are illustrations,
standard schedules,
performance charts,
instructions,
brochures,
diagrams
and
other
information
furnished
by
the
Contractor to illustrate materials or equipment for some portion of
the Work.
3.12.3 Samples are physical
examples which illustrate
materials,
equipment or
workmanship and establish standards by which the Work will be
judged.
3.12.4 Shop
Drawings,
Product
Data,
Samples and similar
submittals
are not
Contract
Documents.
The purpose of their submittal is to demonstrate for those
portions of the Work for which submittals are required by the
Contract Documents
the way by which the Contractor proposes to conform to the
information given and
the design concept expressed in the Contract Documents.
Review by the Architect
is subject to the limitations of Subparagraph
4.2.7.
Informational
submittals
upon which the
Architect
is not expected to take
responsive
action may be so
identified in the Contract
Documents.
Submittals which are not required by the
Contract Documents may be returned by the Architect without action.
-6-
3.12.5 The Contractor
shall review for compliance with the Contract
Documents,
approve and submit to the Architect
Shop
Drawings,
Product Data,
Samples and
similar submittals required by the Contract Documents with
reasonable promptness
and in such
sequence as to cause no delay in the Work or in the
activities
of
the
Owner or of
separate
contractors.
Submittals
which
are not
marked
as
reviewed
for
compliance
with
the
Contract
Documents
and
approved
by the
Contractor may be returned by the Architect without action.
3.12.6 By approving and
submitting
Shop
Drawings,
Product Data,
Samples and
similar submittals, the Contractor represents that the Contractor
has determined
and verified
materials,
field
measurements
and field
construction
criteria
related thereto,
or will do so, and has checked and coordinated the information
contained
within such
submittals
with the
requirments of the Work and of the
Contract Documents subject to the provisions of Section 3.12.10.
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
Drawing,
Product Data,
Samples or similar submittals unless the Contractor has
specifically
informed the Architect in writing of such deviation at the time of
submittal
and (1) the
Architect
has given
written
approval to the
specific
deviation as a minor change in the Work,
or (2) a Change Order or
Construction
Change Directive has been issued authorizing the deviation. The
Contractor shall
not be relieved of
responsibility
for errors or
omissions
in Shop
Drawings,
Product Data, Samples or similar submittals by the Architect's
approval thereof.
3.12.9
The
Contractor
shall
direct
specific
attention,
in
writing
or on
resubmitted
Shop
Drawings,
Product Data,
Samples or similar
submittals,
to
revisions other than those requested by the Architect on previous
submittals. In
the absence of such written
notice the
Architect's
approval of a resubmission
shall not apply to such revisions.
3.12.10 The Contractor
shall not be required to provide
professional
services
which
constitute the practice of
architecture
or
engineering
except for the
design/build
services related to the pre-engineered
metal building
(including
its HVAC,
plumbing
and
electrical
services)
portion of the Work for the new
Paddock as described in Amendment No. 1, 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. The Contractor
shall cause such services or certification to
be provided by a properly
licensed
design
professional,
whose
signature and
seal, if necessary, shall appear on all drawings, calculations,
specifications,
certifications,
Shop
Drawings
and
other
submittals
prepared
by
any
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,
certificat
