EXHIBIT 10.55
STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND DESIGN/BUILDER
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH
AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS USE,
COMPLETION OR MODIFICATION.
AUTHENTICATION
OF THIS
ELECTRONICALLY
DRAFTED AIA
DOCUMENT MAY BE MADE BY USING AIA DOCUMENT
D401.
This
document
comprises two separate
Agreements:
Part 1 Agreement and Part 2
Agreement. To the extent
referenced in these
Agreements,
subordinate
parallel
agreements
to A191 consist of AIA Document
A491,
Standard
Form of Agreements
Between
Design/Builder and Contractor,
and AIA Document B901, Standard Form of
Agreements Between Design/Builder and Architect.
Copyright
1985,
(C)1996 The American
Institute of
Architects,
1735 New York
Avenue,
NW, Washington,
DC 20006-5292.
Reproduction of the material herein or
substantial
quotation of its provisions
without the written
permission of the
AIA
violates
the
copyright
laws of the United
States and will
subject
the
violator to legal prosecution.
AGREEMENT
1996 EDITION
--------------------------------------------------------------------------------
AGREEMENT
made as of the 11th day of November in the year of 2004
(IN WORDS, INDICATE DAY, MONTH AND YEAR.)
BETWEEN the Owner:
(NAME AND ADDRESS)
MONTICELLO RACEWAY MANAGEMENT, INC.
204 State Route 17B
Monticello. NY 12701
Design/Builder:
(NAME AND ADDRESS)
Armistead Mechanical
168 Hopper Avenue
Waldwick, NJ 74630
For the following Project:
(INCLUDE PROJECT NAME, LOCATION AND A SUMMARY DESCRIPTION.)
New Horse Paddock-consisting of approximately 16,000 s.f. located
on the grounds
of Monticello Raceway, Monticello, NY 12701
The
Plumbinq and HVAC
services
described in Article 3 will be provided by the
Design Builder
(NAME AND ADDRESS)
(REGISTRATION NUMBER)
(RELATIONSHIP TO DESIGN/BUILDER)
Armistead Mechanical
168 Hopper Avenue
Waldwick, NJ 74630
Normal
Plumbing and HVAC
engineering
services will be provided
contractually
through Desgin Builder except as indicated below:
(NAME AND ADDRESS)
(REGISTRATION NUMBER)
(RELATIONSHIP TO DESIGN/BUILDER)
SJM Associates
Mechanical Engineer
4800 Route 28
Boiceville, NY 12412
The Owner and the Design/Builder agree as set forth below.
--------------------------------------------------------------------------------
(C) 1996 THE AMERICAN
INSTITUTE
OF
ARCHITECTS,
1735 NEW YORK
AVENUE,
N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT A191 o
OWNER-DESIGN/BUILDER
AGREEMENT
o 1996
EDITION
o AIA(R)
o
WARNING:
Unlicensed
photocopying
violates
U.S.
copyright
laws
and
is
subject
to
legal
prosecution.
This
document
was
electronically
produced
with
permission
of the AIA and can be
reproduced in
accordance with your license
without
violation until the date of expiration as
noted
below.
expiration
as
noted
below.
User
Document:
a191-armistead-11-9-04.aia
--
11/10/2004.
AIA License Number
1500563,
which
expires on 12/31/2004.
TERMS AND CONDITIONS - AGREEMENT
ARTICLE 1
GENERAL PROVISIONS
1.1
BASIC DEFINITIONS
1.1.1.
The Contract
Documents
consist of the documents
listed in Article
14, and this Agreement, the Design/Builder's Proposal and written
addenda to the
Proposal
identified in Article 14, the Construction
Documents
approved by the
Owner in
accordance
with
Subparagraph
3.2.3 and
Modifications
issued after
execution
of this
Part 2
Agreement.
A
Modification
is a Change
Order or a
written
amendment to this Agreement
signed by both parties,
or a Construction
Change Directive issued by the Owner in accordance with Paragraph
8.3.
1.1.2
The term "Work" means the construction and services
provided by the
Design/Builder to fulfill the Design/Builder's obligations.
1.1.3
The term
"Contractor"
when
referred to in the Contract
Documents
shall be deemed to mean and refer to the Design/Builder herein.
1.2
EXECUTION, CORRELATION AND INTENT
1.2.1
It is the intent of the Owner and
Design/Builder
that the Contract
Documents include all items necessary for proper execution and
completion of the
Work.
The Contract
Documents
are
complementary,
and what is required by one
shall be binding as if required by all;
performance by the Design/Builder shall
be required only to the extent consistent with and reasonably
inferable from the
Contract
Documents as being
necessary to produce the intended
results.
Words
that have well-known
technical or construction
industry
meanings are used in
the Contract Documents in accordance with such recognized meanings.
1.2.2
If the Design/Builder
believes or is advised by the Architect or by
another
design
professional
retained to provide
services on the Project that
implementation
of any
instruction
received
from
the
Owner
would
cause
a
violation of any applicable
law, the
Design/Builder
shall notify the Owner in
writing.
Neither the
Design/Builder
nor the
Architect
shall be obligated to
perform any act which either believes will violate any applicable
law.
1.2.3
Nothing
contained
in
this
Part
2
Agreement
shall
create
a
contractual
relationship
between the Owner and any person or entity other than
the Design/Builder.
1.3
OWNERSHIP AND USE OF DOCUMENTS
1.3.1
Drawings,
specifications,
and
other
documents
and
electronic
data
furnished by the Design/Builder are instruments of service. The
Design/Builder's
Architect and other providers of
professional
services shall retain all common
law,
statutory
and
other
reserved
rights,
including
copyrights
in
those
instruments of service furnished by them.
Drawings,
specifications,
and other
documents and electronic
data are furnished for use solely with respect to this
Agreement. The Owner shall be permitted to retain copies, including
reproducible
copies, of the drawings, specifications, and other documents and
electronic data
furnished by the Design/Builder for information and reference in
connection with
the Project except as provided in Subparagraphs 1.3.2 and 1.3.3.
1.3.2
Drawings,
specifications,
and other
documents and electronic data
furnished
by the
Design/Builder
shall
not be used by the
Owner or others on
other projects,
for additions to this Project or for completion of this Project
by others,
except by agreement in writing and with appropriate
compensation to
the Design/Builder, unless the Design/Builder is adjudged to be in
default under
this Agreement or under any other subsequently executed agreement.
1.3.3
If the Design/Builder
defaults in the Design/Builder's
oblgiations
to the
Owner,
the
Architect
shall
grant a
license
to the Owner to use the
drawings,
specifications,
and other documents and electronic data furnished by
the
Architect
to the
Design/Building
for
the
completion
of
the
Project,
conditioned
upon
the
Owner's
execution
of
an
agrement
to
cure
the
Design/Builder's
default in payment to the
Architect
for services
previously
performed and to indemnify the Architect with regard to claims
arising from such
reuse without the Architect's professional involvement.
1.3.4
Submission or distribution of the Design/Builder's documents to
meet
official regulatory
requirements or for similar purposes in connection with the
Project
is not to be
construed
as
publication
in
derogation
of the rights
reserved in Subparagraph 1.3.1
--------------------------------------------------------------------------------
(C) 1996 THE AMERICAN
INSTITUTE
OF
ARCHITECTS,
1735 NEW YORK
AVENUE,
N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT A191 o
OWNER-DESIGN/BUILDER
AGREEMENT
o 1996
EDITION
o AIA(R)
o
WARNING:
Unlicensed
photocopying
violates
U.S.
copyright
laws
and
is
subject
to
legal
prosecution.
This
document
was
electronically
produced
with
permission
of the AIA and can be
reproduced in
accordance with your license
without
violation until the date of expiration as
noted
below.
expiration
as
noted
below.
User
Document:
a191-armistead-11-9-04.aia
--
11/10/2004.
AIA License Number
1500563,
which
expires on 12/31/2004.
ARTICLE 2
OWNER
2.1
The Owner shall designate a representative
authorized to act on the
Owner's
behalf
with
respect
to the
Project.
The
Owner or such
authorized
representative shall examine documents submitted by the
Design/Builder and shall
render decisions in a timely manner and in accordance with the
schedule accepted
by the Owner. The Owner may obtain
independent review of the Contract Documents
by a separate architect,
engineer,
contractor or cost estimator under contract
to or employed by the Owner. Such independent
review shall be undertaken at the
Owner's
expense in a timely manner and shall not delay the orderly
progress of
the Work.
2.2
The Owner may appoint an on-site project
representative
to observe
the Work and to have such other responsibilities as the Owner and
Design/Builder
agree in writing.
2.3
The
Owner
shall
cooperate
with the
Design/Builder
in
securing
building and other
permits,
licenses and
inspections.
The Owner shall not be
required to pay the fees for such permits, licenses and
inspections
unless the
cost of such fees is excluded from the Design/Builder's Proposal.
2.4
The Owner shall
furnish
services of land
surveyors,
geotechnical
engineers
and
other
consultants
for
subsoil,
air
and
water
conditions,
Agreement,
when such
services are deemed
necessary by the
Design/Builder
to
properly carry out the design services required by this Agreement.
2.5
The Owner
shall
disclose,
to the extent
known to the Owner,
the
results and reports of prior tests,
inspections or investigations conducted for
the Project involving: structural or mechanical systems; chemical,
air and water
pollution;
hazardous
materials;
or
other
environmental
and
subsurface
conditions.
The
Owner
shall
disclose
all
information
known
to the
Owner
regarding the presence of pollutants at the Project's site.
2.6
The
Owner
shall
furnish
all
legal,
accounting
and
insurance
counselling services as may be necessary at any time for the
Project,
including
such auditing
services as the Owner may require to verify the
Design/Builder's
Applications for Payment.
2.7
Those
services,
information,
surveys
and
reports
required
by
Paragraphs
2.4
through
2.6 which are
within
the
Owner's
control
shall be
furnished at the Owner's expense,
and the
Design/Builder
shall be entitled to
rely upon the accuracy and completeness thereof,
except to the extent the Owner
advises the Design/Builder to the contrary in writing.
2.8.
If the Owner
requires
the
Design/Builder
to maintain any special
insurance
coverage,
policy,
amendment,
or
rider,
the
Owner
shall pay the
additional cost thereof, except as otherwise stipulated in this
Agreement.
2.9
If the
Owner
observes
or
otherwise
becomes
aware of a fault or
defect in the Work or nonconformity
with the
Design/Builder's
Proposal or the
Construction
Documents,
the Owner shall give prompt
written notice thereof to
the Design/Builder.
2.10
The Owner
shall,
at the
request of the
Design/Builder,
prior to
execution of this Agreement and promptly upon request thereafter,
furnish to the
Design/Builder reasonable evidence that financial arrangements have
been made to
fulfill the Owner's obligations under the Contract.
2.11
The Owner shall
communicate
with
persons or entities
employed or
retained by the
Design/Builder
through the
Design/Builder,
unless
otherwise
directed by the Design/Builder.
--------------------------------------------------------------------------------
(C) 1996 THE AMERICAN
INSTITUTE
OF
ARCHITECTS,
1735 NEW YORK
AVENUE,
N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT A191 o
OWNER-DESIGN/BUILDER
AGREEMENT
o 1996
EDITION
o AIA(R)
o
WARNING:
Unlicensed
photocopying
violates
U.S.
copyright
laws
and
is
subject
to
legal
prosecution.
This
document
was
electronically
produced
with
permission
of the AIA and can be
reproduced in
accordance with your license
without
violation until the date of expiration as
noted
below.
expiration
as
noted
below.
User
Document:
a191-armistead-11-9-04.aia
--
11/10/2004.
AIA License Number
1500563,
which
expires on 12/31/2004.
ARTICLE 3
DESIGN/BUILDER
3.1
SERVICES AND RESPONSIBILITIES
3.1.1.
Design services required by this Agreement shall be performed by
qualified architects and other design professionals.
The contractual obligations
of such professional persons or entities are undertaken and
performed in the
interest of the Design/Builder.
3.1.2
The agreements betweeen the Design/Builder and the persons or
entities identified in this Agreement, and any subsequent
modifications, shall be
in writing.
These agreements, including financial arrangements with respect
to this Project, shall be promptly and fully disclosed to the Owner
upon request.
3.1.3
The Design/Builder shall be responsible to the Owner for acts and
omissions of the Design/Builder's employees, subcontractors and
their agents
and employees, and other persons, including the Architect and other
design
professionals, performing any portion of the Design/Builder's
obligations under
this Agreement.
3.2
BASIC SERVICES
3.2.1
The
Design/Builder's
Basic
Services
are
described
below and in
Article 14.
3.2.2
The
Design/Builder
shall designate a representative
authorized to
act on the Design/Builder's behalf with respect to the Project.
3.2.3
The Design/Builder
shall submit
Construction
Documents for review
and
approval
by
the
Owner.
Construction
Documents
may
include
drawings,
specifications,
and other documents and electronic data setting forth in detail
the requirements for construction of the Work, and shall:
.1
be
consistent
with
the
intent
of
the
Design/Builder's
Proposal;
.2
provide
information
for the
use of
those
in the
building
trades; and
.3
include documents
customarily
required for regulatory agency
approvals.
3.2.4
The
Design/Builder,
with the
assistance of the Owner,
shall file
documents
required to obtain
necessary
approvals of governmental
authorities
having jurisdiction over the project.
3.2.5
The
Design/Builder
shall provide or cause to be provided and shall
pay for
design
services,
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.
3.2.6
The Design/Builder
shall be responsible for all construction means,
methods, techniques, sequences and procedures, and for coordinating
all portions
of the Work under this Agreement.
--------------------------------------------------------------------------------
(C) 1996 THE AMERICAN
INSTITUTE
OF
ARCHITECTS,
1735 NEW YORK
AVENUE,
N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT A191 o
OWNER-DESIGN/BUILDER
AGREEMENT
o 1996
EDITION
o AIA(R)
o
WARNING:
Unlicensed
photocopying
violates
U.S.
copyright
laws
and
is
subject
to
legal
prosecution.
This
document
was
electronically
produced
with
permission
of the AIA and can be
reproduced in
accordance with your license
without
violation until the date of expiration as
noted
below.
expiration
as
noted
below.
User
Document:
a191-armistead-11-9-04.aia
--
11/10/2004.
AIA License Number
1500563,
which
expires on 12/31/2004.
3.2.7
The Design/Builder shall keep the Owner informed of the progress
and
quality of the Work.
3.2.8
The
Design/Builder
shall be responsible
for correcting Work which
does not conform to the Contract Documents.
3.2.9
The
Design/Builder
warrants
to
the
Owner
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
construction
will be free from faults and
defects,
and that the
construction
will conform
with the requirements of the Contract Documents.
Construction not conforming to
these requirements,
including substitutions not properly approved by the Owner,
shall be corrected in accordance with Article 9.
3.2.10
The Design/Builder
shall pay all sales,
consumer,
use and similar
taxes which had been legally enacted at the time the
Design/Builder's
Proposal
was first
submitted
to the Owner,
and shall
secure and pay for
building and
other permits and governmental fees, licenses and inspections
necessary for the
proper execution and completion of the Work which are either
customarily secured
after execution of a contract for
construction
or are legally
required at the
time the Design/Builder's Proposal was first submitted to the
Owner.
3.2.11
The
Design/Builder
shall comply with and give notices
required by
laws,
ordinances,
rules,
regulations and lawful orders of public
authorities
relating to the Project.
3.2.12 The
Design/Builder
shall pay
royalties
and license
fees for patented
designs,
processes or products. The Design/Builder shall defend suits or
claims
for infringement of patent rights and shall hold the Owner 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 is required
by the Owner.
However, if the Design/Builder has reason to believe the use of a
required
design,
process
or
product
is an
infringement
of a
patent,
the
Design/Builder
shall be
responsible
for such loss unless such
information is
promptly furnished to the Owner.
3.2.13
The Design/Builder shall keep the premises and surrounding area
free
from
accumulation of waste materials or rubbish caused by operations
under this
Agreement.
At the completion of the Work, the Design/Builder
shall remove from
the site waste materials,
rubbish,
the
Design/Builder's
tools,
construction
equipment, machinery, and surplus materials.
--------------------------------------------------------------------------------
(C) 1996 THE AMERICAN
INSTITUTE
OF
ARCHITECTS,
1735 NEW YORK
AVENUE,
N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT A191 o
OWNER-DESIGN/BUILDER
AGREEMENT
o 1996
EDITION
o AIA(R)
o
WARNING:
Unlicensed
photocopying
violates
U.S.
copyright
laws
and
is
subject
to
legal
prosecution.
This
document
was
electronically
produced
with
permission
of the AIA and can be
reproduced in
accordance with your license
without
violation until the date of expiration as
noted
below.
expiration
as
noted
below.
User
Document:
a191-armistead-11-9-04.aia
--
11/10/2004.
AIA License Number
1500563,
which
expires on 12/31/2004.
3.2.14
The
Design/Builder
shall notify the Owner when the
Design/Builder
believes
that the Work or an
agreed
upon
portion
thereof
is
substantially
completed. If the Owner concurs, the Design/Builder shall issue a
Certificate of
Substantial Completion which shall establish the Date of
Substantial Completion,
shall state the
responsibility of each party for security,
maintenance,
heat,
utilities, damage to the Work and insurance, shall include a list
of items to be
completed
or corrected
and shall fix the time within which the
Design/Builder
shall
complete
items
listed
therein.
Disputes
between
the
Owner
and
Design/Builder
regarding the
Certificate
of Substantial
Completion
shall be
resolved in accordance with provisions of Article 10.
3.2.15
The
Design/Builder
shall
maintain
at the site for the
Owner one
record
copy
of the
drawings,
specifications,
product
data,
samples,
shop
drawings,
Change
Orders and other
modifications,
in good order and regularly
updated to record the
completed
construction.
These shall be delivered to the
Owner upon completion of construction and prior to final payment.
3.3
ADDITIONAL SERVICES
3.3.1
The
services
described in this
Paragraph
3.3 are not included in
Basic Services unless so identified in Article 14, and they shall
be paid for by
the Owner as provided in this
Agreement,
in addition to the
compensation
for
Basic Services.
The services
described in this Paragraph 3.3 shall be provided
only if authorized or confirmed in writing by the Owner.
3.3.2
Making revisions in drawings, specifications, and other documents
or
electronic data when such revisions are required by the enactment
or revision of
codes,
laws or regulations
subsequent to the
preparation of such documents or
electronic data.
3.3.3
Providing
consultation
concerning
replacement
of Work damaged by
fire or other cause during
construction,
and furnishing
services
required in
connection with the replacement of such Work.
3.3.4
Providing services in connection with a public hearing,
arbitration
proceeding
or legal
proceeding,
except
where the
Design/Builder
is a party
thereto.
3.3.5
Providing
coordination of construction performed by the Owner's own
forces or
separate
contractors
employed
by the Owner,
and
coordination
of
services
required in
connection
with
construction
performed
and
equipment
supplied by the Owner.
3.3.6
Preparing a set of reproducible
record documents or electronic data
showing significant changes in the Work made during construction.
3.3.7
Providing assistance in the utilization of equipment or systems
such
as
preparation of operation and
maintenance
manuals,
training
personnel for
operation and maintenance, and consultation during operation.
--------------------------------------------------------------------------------
(C) 1996 THE AMERICAN
INSTITUTE
OF
ARCHITECTS,
1735 NEW YORK
AVENUE,
N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT A191 o
OWNER-DESIGN/BUILDER
AGREEMENT
o 1996
EDITION
o AIA(R)
o
WARNING:
Unlicensed
photocopying
violates
U.S.
copyright
laws
and
is
subject
to
legal
prosecution.
This
document
was
electronically
produced
with
permission
of the AIA and can be
reproduced in
accordance with your license
without
violation until the date of expiration as
noted
below.
expiration
as
noted
below.
User
Document:
a191-armistead-11-9-04.aia
--
11/10/2004.
AIA License Number
1500563,
which
expires on 12/31/2004.
ARTICLE 4
TIME
4.1
Unless otherwise
indicated,
the Owner and the Design/Builder shall
perform their
respective
obligations as
expeditiously
as is consistent
with
reasonable skill and care and the orderly progress of the Project.
4.2
Time limits stated in the Contract Documents are of the essence.
The
Work to be performed
under this Part 2 Agreement shall commence upon receipt of
a
notice
to
proceed
unless
otherwise
agreed
and,
subject
to
authorized
Modifications,
Substantial
Completion
shall be achieved on or before the date
established in Article 14.
4.3
Substantial Completion is the stage in the progress of the Work
when
the Work or designated
portion thereof is
sufficiently
complete in accordance
with the Contract
Documents so the Owner can occupy or utilize the Work for its
intended use.
4.4
Based on the
Design/Builder's
Proposal,
a
construction
schedule
shall be provided consistent with Paragraph 4.2 above.
4.5
If the
Design/Builder is delayed at any time in the progress of the
Work
by an
act or
neglect
of
the
Owner,
Owner's
employees,
or
separate
contractors
employed
by the Owner,
or by changes
ordered in the Work,
or by
labor disputes,
fire,
unusual delay in deliveries,
adverse weather conditions
not reasonably anticipatable,
unavoidable casualties or other causes beyond the
Design/Builder's
control,
or
by
delay
authorized
by
the
Owner
pending
arbitration,
or by other
causes which the Owner and
Design/Builder
agree may
justify
delay,
then the Contract Time shall be
reasonably
extended by Change
Order.
--------------------------------------------------------------------------------
(C) 1996 THE AMERICAN
INSTITUTE
OF
ARCHITECTS,
1735 NEW YORK
AVENUE,
N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT A191 o
OWNER-DESIGN/BUILDER
AGREEMENT
o 1996
EDITION
o AIA(R)
o
WARNING:
Unlicensed
photocopying
violates
U.S.
copyright
laws
and
is
subject
to
legal
prosecution.
This
document
was
electronically
produced
with
permission
of the AIA and can be
reproduced in
accordance with your license
without
violation until the date of expiration as
noted
below.
expiration
as
noted
below.
User
Document:
a191-armistead-11-9-04.aia
--
11/10/2004.
AIA License Number
1500563,
which
expires on 12/31/2004.
ARTICLE 5
PAYMENTS
5.1
PROGRESS PAYMENTS
5.1.1
The Design/Builder shall deliver to the Owner itemized
Applications
for Payment in such detail as indicated in Article 14.
5.1.2
Within
Thirty
(30)
days
of the
Owner's
receipt
of a
properly
submitted and correct
Application for Payment,
the Owner shall make payment to
the Design/Builder.
5.1.3
The Application for Payment shall constitute a representation by
the
Design/Builder
to the Owner that the design and construction have progressed to
the point
indicated,
the quality of the Work covered by the
application is in
accordance with the Contract
Documents,
and the
Design/Builder is entitled to
payment in the amount requested.
5.1.4
Upon receipt of payment
from the Owner,
the
Design/Builder
shall
promptly pay the Architect,
other design
professionals and each contractor the
amount
to
which
each is
entitled
in
accordance
with
the
terms
of their
respective contracts.
5.1.5
The Owner shall have no obligation under this Agreement to pay or
to
be
responsible
in any
way
for
payment
to
the
Architect,
another
design
professional or a contractor performing portions of the Work.
5.1.6
Neither
progress
payment nor partial or entire use or occupancy of
the
Project
by the
Owner
shall
constitute
an
acceptance
of
Work
not in
accordance with the Contract Documents.
5.1.7
The Design/Builder
warrants that title to all construction
covered
by an
Application
for Payment will pass to the Owner no later than the time of
payment.
The
Design/Builder
further
warrants
that
upon
submittal
of
an
Application for Payment all
construction
for which payments have been received
from the Owner shall be free and clear of liens,
claims, security
interests or
encumbrances
in favor of the
Design/Builder
or any
other
person
or
entity
performing
construction
at the
site
or
furnishing
materials
or
equipment
relating to the construction.
5.1.8
At the time of
Substantial
Completion,
the
Owner
shall
pay the
Design/Builder
the retainage,
if any, less the
reasonable
cost to correct or
complete
incorrect or incomplete Work. Final payment of such withheld sum
shall
be made upon correction or completion of such Work.
5.2
FINAL PAYMENT
5.2.1
Neither final payment nor amounts retained, if any, shall become
due
until the
Design/Builder
submits to the Owner: (i) an affidavit that payrolls,
bills for materials and
equipment,
and other
indebtedness
connected with the
Work for which the Owner or Owner's
property might be responsible or encumbered
(less amounts withheld by the 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
Design/Builder
knows
of no
substantial
reason that the insurance will not be renewable to cover the
period
required by the Contract
Documents;
(4) consent of surety,
if any, to
final payment; and (5) if required by the Owner, other data
establishing payment
or satisfaction of obligations, such as receipts, releases and
waivers of liens,
claims,
security interests or encumbrances arising out of the Contract,
to the
extent and in such form as may be
designated
by the Owner.
If a contractor or
other person or entity
entitled to assert a lien
against the Owner's
property
refuses to furnish a release or waiver required by the Owner, the
Design/Builder
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
Design/Builder
shall
indemnify
the
Owner
for all loss and
cost,
including
reasonable attorney's fees incurred as a result of such lien.
--------------------------------------------------------------------------------
(C) 1996 THE AMERICAN
INSTITUTE
OF
ARCHITECTS,
1735 NEW YORK
AVENUE,
N.W.,
WASHINGTON, D.C. 20006-5292. AIA DOCUMENT A191 o
OWNER-DESIGN/BUILDER
AGREEMENT
o 1996
EDITION
o AIA(R)
o
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This
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Document:
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AIA License Number
1500563,
which
expires on 12/31/2004.
5.2.2
When the Work has been completed and the contract
fully
performed,
the
Design/Builder
shall submit a final
application for payment to the Owner,
who shall make final payment within 30 days of receipt.
5.2.3
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.
5.2.4
Acceptance of final payment shall
constitute a waiver of all claims
by the Design/Builder
except those previously made in writing and identified by
the Design/Builder as unsettled at the time of final Application
for Payment.
ARTICLE 6
PROTECTION OF PERSONS AND PROPERTY
6.1
The Design/Builder shall be responsible for initiating,
maintaining
and providing
supervision of all safety
precautions and programs in connection
wwith the performance of this Agreement.
6.2
The Design/Builder shall take reasonable
precautions for the safety
of, and shall provide
reasonable
protection to prevent damage,
injury or loss
to: (i) 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
case,
custody,
or
control
of
the
Design/Builder or the Design/Builder's contractors; and (3) other
property at 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.
6.3
The
Design/Builder
shall give
notices and comply with
applicable
laws,
ordinances,
rules,
regulations and lawful orders of public
authorities
bearing on the safety of persons or property or their
protection
from
damage,
injury or loss.
6.4
The Design/Builder shall promptly remedy damage and loss (other
than
damage or loss
insured
under
property
insurance
provided or required by t
