Standard Form of Agreement Between Owner and Contractor where the basis of payment is the Cost of Work Plus a Fee with a Guaranteed Maximum Price
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Standard Form of Agreement Between Owner and Contractor where the basis of payment is the Cost of Work Plus a Fee with a Guaranteed Maximum Price
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AIA ® Document A102 ™ — 2007
Standard Form of Agreement Between Owner and Contractor where the basis of payment is the Cost of Work Plus a Fee with a Guaranteed Maximum Price
AGREEMENT made as of the 25th day of January in the year 2011
(In words, indicate day, month and year)
BETWEEN the Owner:
Harvey-Cleary Builders, Inc.
Cirrus Logic, Inc. — Corporate Headquarters Building
A new 6-story concrete framed office building and adjacent 7-level concrete parking garage located at 800 West 6 th St., Austin, Texas , The Project consists of a135, 877 gross square feet of office space and 117, 847 gross square feet of parking garage area accommodating 316 parking spaces, along with further details as set forth in the Contract Documents.
Interior Finish-Out Options: The Work for the Project shall initially include, and the Contractor’s Fee and construction schedules shall account for, coordination of Subcontractors and Separate Contractors selected and separately paid by Owner to perform interior finish-out and specialty work. Owner reserves the right to issue a Construction Change Directive modifying this scope of work as follows: a) adding interior finish-out to the Work following a competitive bid process, with Contractor using its own forces and subcontractors; b) adding interior finish-out to the Work, with the contracts of Owner-selected Subcontractors being assigned to Contractor; or c) deducting all finish-out coordination from the Work, and awarding to a Separate Contractor, with a deduction in Contractor’s Fee.
The Owner and Contractor agree as follows.
TABLE OF ARTICLES
ARTICLE 1 THE CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, the Drawings, Specifications and other documents identified in Article 16 of this Agreement and Modifications issued after execution of this Agreement, all of which form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. If anything in the other Contract Documents, other than a Modification, 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, and shall also perform all work incidental thereto or reasonably inferable therefrom that is necessary in order that the Work will be complete and in conformity with the Contract Documents, except as specifically indicated in the Contract Documents to be the responsibility of others.
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.
ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
4.1 The date of
commencement of the Work shall be the date of this Agreement unless
a different date is stated below or provision is made for the date
to be fixed in a notice to proceed issued by the Owner.
The date of commencement of the Work shall be set forth in a Notice to Proceed that will be issued by owner to Contractor.
If, prior to commencement of the Work, the Owner requires time to file mortgages and other security interests, the Owner’s time requirement shall be as follows:
§ 4.2 The Contract Time and the FF&E Deadlines shall be measured from the date of commencement.
4.3 The Contractor shall
achieve Substantial Completion of the entire Work not later than
five hundred (500 ) days from the date of commencement (the
“Contract Time”), subject to adjustments of this
Contract Time as provided in the Contract Documents.
§ 4.4 FF&E DEADLINE(S): The Contractor shall achieve such progress in the Work as is required to make areas ready and available for the installation, by others, of those items identified in Exhibit “E”— Schedule of Owner’s FF&E not later than the respective individual dates set forth in the exhibit for each of those items (the “FF&E Deadlines”), subject to adjustments of these FF&E Deadlines as provided in the Contract Documents.
(Insert provisions, if any, for liquidated damages relating to failure to achieve Substantial Completion on time, or for bonus payments for early completion of the Work.)
ARTICLE 5 CONTRACT SUM
5.1 The Owner shall pay
the Contractor the Contract Sum in current funds for the
Contractor’s performance of the Contract. The Contract Sum is
the Cost of the Work as defined in Article 7 plus the
Contractor’s Fee, plus the General Conditions Amount, the
total of which is subject to the GMAX and other provisions of the
Contract Documents. If the Owner elects to proceed with completion
of the interior finish-out portion of the Project under §6.5.1
or §6.5.3 of this Agreement, the Contract Sum shall also
include the Interior Stipulated Sum § 5.1.1 The
The Contractor’s Fee shall be five hundred four thousand and no/100 dollars ($ 504,000.00 ) , subject to the limitations of the GMAX. The Contractor’s Fee includes an amount of one hundred twenty thousand and no/00 dollars ($ 120,000.00 ) (the “Interior Coordination Fee”) identified as Contractor’s compensation for coordination of Subcontractors and Separate Contractors to be selected and separately paid by Owner to perform interior finish-out and specialty work.
§ 5.1.2 The method of adjustment of the Contractor’s Fee for changes in the Work:
For any change in the Work that involves an increase or decrease in the GMAX or the General Conditions Amount, a fee of six percent ( 6.0 %) , as overhead and profit, will be applied to the otherwise reimbursable costs listed in §220.127.116.11 through §18.104.22.168 of the General Conditions that are added or saved as a result of the change in the Work, and the result shall be added to or deducted from the Contractor’s Fee and GMAX.
§ 5.1.3 Limitations, if any, on a Subcontractor’s overhead and profit for increases in the cost of its portion of the Work:
Costs of the Work attributable to reimbursable Subcontract Costs under §7.3 shall not include, and Owner shall not be liable for, any Subcontractor’s markup that exceeds fifteen percent ( 15.0 %) for overhead and profit.
§ 5.1.4 Rental rates for Contractor-owned equipment shall not exceed the standard rates indicated in Exhibit “B”—Alternates, Allowances and Unit Prices .
5.1.5 Unit prices, if
any, are identified in Exhibit “B”—Alternates,
Allowances and Unit Prices.
§ 5.1.6 GENERAL CONDITIONS AMOUNT: The Owner shall pay the Contractor, in current funds, the lump sum, General Conditions Amount of eight hundred eighty-two thousand nine hundred seventy-one and no/100 dollars ($882,971.00) for providing those items set forth in Article 7.8 of this Agreement that are necessary for completion of the Work, subject to additions and deductions by Change Order or Construction Change Directive as provided in the Contract Documents. General Conditions Costs that would cause the General Conditions Amount to be exceeded shall be paid by the Contractor without reimbursement by the Owner.
§ 5.2 GUARANTEED MAXIMUM PRICE (“GMAX”)
5.2.1 The Contract Sum is
guaranteed by the Contractor not to exceed
) , subject to additions and deductions by Change Order or
Construction Change Directive as provided in the Contract
Documents. Such maximum sum is referred to in the Contract
Documents as the Guaranteed Maximum Price (or “GMAX”).
Costs which would cause the GMAX to be exceeded shall be paid by
the Contractor without reimbursement by the Owner.
Owner and Contractor shall agree upon a Guaranteed Maximum Price, insert such agreed amount into section 5.2.1 above and initial said amount within thirty ( 30 ) days following the Date of Commencement.
In the event that Owner and Contractor are not able to reach an agreement regarding the Guaranteed Maximum Price within the time set forth above, then the Contract shall be deemed to be terminated for the mutual convenience of the parties, without fault or remedy other than that set forth in section 14.4.3 of Exhibit “A”—Terms and Conditions.
The amount of savings, if any, shall be determined and distributed between the parties in accordance with Section 5.2.6, below.
§ 5.2.2 The GMAX is based on the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner:
(State the numbers or other identification of accepted alternates. If bidding or proposal documents permit the Owner to accept other alternates subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when the amount expires.)
Alternates, if any, are identified in Exhibit “B”—Alternates, Allowances and Unit Prices .
The Owner may, in its sole discretion, exercise the option to accept any combination of Alternates, upon the terms contained in Exhibit “B,” at any time up to sixty ( 60 ) day s following the Commencement Date. Owner’s acceptance must be made in writing and delivered to Contractor. Upon such acceptance, a Change Order or Construction Change Directive shall be issued reflecting the adjustments to the Contract Time, General Conditions Amount and GMAX, if any, associated with the accepted Alternates as indicated in Exhibit “B.” Should Owner wish to accept any Alternate after the expiration of sixty ( 60 ) days following the Commencement Date, then Contractor shall be entitled to reasonably adjust the time and/or price terms associated with such Alternate(s)
§ 5.2.3 Allowances included in the GMAX and the General Conditions Amount, if any, are identified in Exhibit “B”—Alternates, Allowances and Unit Prices :
(Identify allowance and state exclusions, if any, from the allowance price.)
§ 5.2.4 Assumptions, if any, on which the GMAX is based:
The Contract Sum, subject to the GMAX and other provisions of the Contract Documents, shall be the full compensation for the Contractor’s satisfactory performance of Contractor’s obligations under the Contract and, except as otherwise expressly provided in Section 3.7.4 of the General Conditions, is conclusively presumed to include compensation for all costs and expenses incurred in performing Contractor’s obligations under the Contract.
§ 5.2.5 CONSTRUCTION CONTINGENCY. Contractor acknowledges that the Drawings and Specifications are anticipated to require further development by the Architect. Consequently, the Contractor has provided in the GMAX for the construction costs associated with such further development consistent with the Contract Documents and reasonably inferable therefrom by including, and identifying in the Schedule of Values, a contingency line item in the amount of two hundred fifty thousand and no/100 dollars ($ 250,000.00 ) (the “Construction Contingency”).
§ 22.214.171.124 The Construction Contingency is established for increases in Costs of the Work incurred by the Contractor for unforeseen causes or details not reasonably inferable from the Contract Documents at the time of the execution of this Agreement and shall not be used for reimbursement of expenses and costs not otherwise recoverable as Cost of the Work or General Conditions Costs under Article 7 of this Agreement. It is understood that the amount of the Construction Contingency, except as otherwise provided in this Agreement, is the maximum sum available to the Contractor to cover costs incurred as a result of such unforeseen causes or details and that cost overruns in excess of the amount of the Construction Contingency will be borne by the Contractor.
§ 126.96.36.199 Contractor may use amounts from the Construction Contingency to balance Costs of the Work and General Conditions Costs that exceed the amounts identified in the Schedule of Values; provided, however, that the amount applied from the Construction Contingency toward cost overruns shall not exceed fifteen percent ( 15.0 %) of the Division Subtotal for any given CSI MasterFormat specification division within the Schedule of Values, or fifteen percent ( 15.0 %) of the General Conditions Amount, without prior written approval from the Owner. Contractor shall provide Owner with appropriate evidence to substantiate the need for each use of the Construction Contingency.
§ 188.8.131.52 Use of the Construction Contingency shall not constitute a change in the Work eligible for the application of the Contractor’s Fee rate set forth in §5.1.2.
§ 5.2.6 DISTRIBUTION OF SAVINGS. Upon Final Completion of the Work, Contractor shall make an accounting to the Owner of the Contract Sum, and Owner shall review the accounting and determine, with Contractor, according to the following provisions whether any savings have been realized:
ARTICLE 6 CHANGES IN THE WORK
§ 6.1 Adjustments to the GMAX on account of changes in the Work may be determined by any of the methods listed in Section 7.3.3 of the General Conditions.
§ 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 Section 184.108.40.206 of the General Conditions and the term “costs” as used in Section 7.3.7 of the General Conditions shall have the meanings assigned to them in the General Conditions and shall be subject to the limitations of Articles 5, 7 and 8 of this Agreement. Adjustments to subcontracts awarded with the Owner’s prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts, subject to the limitations on overhead and profit contained in Article 5 of this Agreement.
§ 6.3 In calculating adjustments to the GMAX, the terms “cost” and “costs” as used in the above-referenced provisions of the General Conditions shall mean the Cost of the Work as defined in Article 7 of this Agreement and the term “fee” shall mean the Contractor’s Fee as defined in Section 5.1.1 of this Agreement.
§ 6.4 NOT USED.
§ 6.5 INTERIOR FINISH-OUT OPTIONS. Anything in the Contract Documents to the contrary notwithstanding, Owner shall have the right, in its sole discretion, to select from among the following options for completing the interior finish-out portions of the Project described in Exhibit “C”—Scope of Interior Finish-Out Work :
Following Owner’s selection of an Interior Finish-Out Option, the parties will proceed in accordance with §6.4 of the General Conditions. THE BASIS OF PAYMENT FOR THE WORK DESCRIBED IN EXHIBIT “C” IF ADDED TO THE WORK PURSUANT TO THIS SECTION 6.5 SHALL BE A STIPULATED SUM.
ARTICLE 7 COSTS TO BE REIMBURSED
§ 7.1 COST OF THE WORK
§ 7.1.1 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 written consent of the Owner. The Cost of the Work shall include only the items set forth in this Article 7, excluding those items identified as General Conditions Costs in Section 7.8 of this Agreement.
§ 7.1.2 Where any cost is subject to the Owner’s prior approval, the Contractor shall obtain this approval prior to incurring the cost. The parties shall endeavor to identify any such costs prior to executing this Agreement.
§ 7.2 LABOR COSTS
§ 7.2.1 Wages and labor burden of construction workers directly employed by the Contractor to perform the construction of the Work at the site or, with the Owner’s prior written approval, at off-site workshops, paid at the fixed rates set forth in Exhibit “D”—Wage Rates and Payroll Burden .
7.2.2 NOT USED.
§ 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 Section 7.4.1 in excess of those actually installed to allow for reasonable waste and spoilage and two percent (2.0%) attic stock as set forth in Exhibit “H” —Schedule of Attic Stock . Contractor shall prepare an inventory identifying the type and quantity of unused excess materials, if any. Such materials shall become the Owner’s property and be delivered to the Owner, along with the inventory records, upon Substantial Completion of the Work or, at the Owner’s option, shall be sold by the Contractor. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work.
§ 7.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS
§ 7.5.1 Costs of transportation, storage, installation, maintenance, dismantling and removal of materials, supplies, 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. Costs of materials, supplies, machinery, equipment and tools that are not fully consumed shall be based on the cost or value of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project site. Costs for items not fully consumed by the Contractor shall mean fair market value.
§ 7.5.2 Rental charges for machinery, equipment and hand tools not customarily owned by construction workers that are provided by the Contractor at the site and costs of transportation, installation, minor repairs, dismantling and removal, except as set forth in Section 7.8 of this Agreement. The total rental cost of any Contractor-owned item may not exceed the purchase price of any comparable item. Rates of Contractor-owned equipment and quantities of equipment shall be subject to the Owner’s prior written approval.
7.5.3 NOT USED.
§ 7.5.5 Costs of materials and equipment to be incorporated into the completed construction and suitably stored off the site at a mutually acceptable location, subject to the Owner’s prior written approval.
§ 7.6.2 Sales, use or similar taxes imposed by a governmental authority that are related to the Work and for which the Contractor is liable.
§ 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 Section 13.5.3 of the General Conditions or by other provisions of the Contract Documents, and which do not fall within the scope of Section 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, provided that Contractor notified Owner in advance and in writing that a royalty payment would be necessary to use the design, process or product; the reasonable 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 GMAX. If such royalties, fees and costs are excluded by the last sentence of Section 3.17 of the General Conditions or other provisions of the Contract Documents, then they shall not be included in the Cost of the Work.
§ 7.6.6 NOT USED.
§ 7.6.7 Deposits lost for causes other than the Contractor’s negligence or failure to fulfill a specific responsibility in the Contract Documents.
7.6.8 NOT USED.
§ 7.6.11 Costs attributable to Excusable Delays to the extent allowable under Article 8.3.5 of the General Conditions.
§ 7.6.12 Costs for providing site security personnel, if requested by Owner.
§ 7.7 OTHER COSTS AND EMERGENCIES
§ 7.7.1 Other costs incurred in the performance of the Work if, and to the extent, approved in advance in writing by the Owner.
§ 7.7.2 Costs 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 Section 10.4 of the General Conditions, provided that such action was not necessitated by any breach, negligence, error or omission on the part of the Contractor or its Subcontractor(s) (of any tier).
§ 7.7.3 Costs of repairing or correcting damaged or nonconforming Work executed by the Contractor, Subcontractors or suppliers (of any tier), provided that such damaged or nonconforming Work was not caused by the sole negligence of the Owner or the Owner’s failure to fulfill a specific responsibility and only to the extent that the cost of repair or correction is not recovered by the Contractor from insurance, sureties, Subcontractors or suppliers (of any tier), or others.
§ 7.8 GENERAL CONDITIONS COSTS: The term “General Conditions Costs” refers exclusively to costs associated with the following items, which are accounted for in, and payable to the Contractor solely out of, the General Conditions Amount, subject to approved application of the Construction Contingency:
General Conditions Costs accounted for in the General Conditions Amount specified in §5.1.6 above are based on the bid form dated 10/25/2010.
§ 7.9 RELATED PARTY TRANSACTIONS
§ 7.9.1 For purposes of Section 7.9, the term “related party” shall mean a parent, subsidiary, affiliate or other entity having common ownership or management with the Contractor; any entity in which any stockholder in, or management employee of, the Contractor owns any interest in excess of ten percent in the aggregate; or any person or entity which has the right to control the business or affairs of the Contractor. The term “related party” includes any member of the immediate family of any person identified above.
§ 7.9.2 If any of the costs to be reimbursed arise from a transaction between the Contractor and a related party, the Contractor shall notify the Owner of the specific nature of the contemplated transaction, including the identity of the related party and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If the Owner, after such notification, authorizes the proposed transaction, then the cost incurred shall be included as a cost to be reimbursed, and the Contractor shall procure the Work, equipment, goods or service from the related party, as a Subcontractor, according to the terms of Article 10. If the Owner fails to authorize the transaction, the Contractor shall procure the Work, equipment, goods or service from some person or entity other than a related party according to the terms of Article 10.
ARTICLE 8 COSTS NOT TO BE REIMBURSED
§ 8.1 The Cost of the Work shall not include the items listed below:
ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS
§ 9.1 Cash discounts obtained on payments made by the Contractor shall accrue to the Owner if (1) before making the payment, the Contractor included them in an Application for Payment and received payment from the Owner, or (2) the Owner has deposited funds with the Contractor with which to make payments; otherwise, cash discounts shall accrue to the Contractor. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they can be obtained.
§ 9.2 Amounts that accrue to the Owner in accordance with the provisions of Section 9.1 shall be credited to the Owner as a deduction from the Cost of the Work.
ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS
§ 10.1 Those portions of the Work that the Contractor does not customarily perform with the Contractor’s own personnel shall be performed under subcontracts or by other appropriate agreements with the Contractor. The Owner may designate specific persons from whom, or entities from which, the Contractor shall obtain bids. The Contractor shall obtain bids from Subcontractors and from suppliers and shall deliver such bids to the Architect. The Owner shall then determine, with the advice of the Contractor and the Architect, which bids will be accepted, provided, however, that the Owner shall have the right, in its sole discretion to reject any proposed Subcontractor or supplier. The Contractor shall not be required to contract with anyone to whom the Contractor has reasonable objection.
§ 10.2 When a specific bidder (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 GMAX 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. If the Subcontract is awarded on a cost-plus a fee basis, the Contractor shall provide in the Subcontract for the Owner to receive the same audit rights with regard to the Subcontractor as the Owner receives with regard to the Contractor in Article 11, below.
§ 10.4 Anything in this Article 10 to the contrary notwithstanding, Owner, with the Consent of Contractor, shall have the right, in its sole discretion, to select and enter into agreements with subcontractors and suppliers in accordance with §6.5 of this Agreement and §2.4 of the General Conditions with respect to interior finish-out portions of the Project. To the extent that those sections may come into conflict with Article 10, the provisions of those sections shall govern and supersede the provisions of this Article 10. Contractor may object to Owner’s selection of particular subcontractors for bona-fide reasons concerning jobsite safety, in which case, Owner shall select another subcontractor. Otherwise Contractor’s consent shall not be unreasonably withheld.
ARTICLE 11 ACCOUNTING RECORDS
§ 11.1 The Contractor shall keep full and detailed records and accounts related to the cost of the Work and exercise such controls as may be necessary for proper financial management under this Contract and to substantiate all costs incurred. The accounting and control systems shall be maintained in accordance with generally accepted accounting principles (“GAAP”) satisfactory to the Owner. The Owner and the Owner’s auditors shall, during regular business hours and upon reasonable notice, be afforded access to, and shall be permitted to audit and copy, the Contractor’s records and accounts, including complete documentation supporting accounting entries, books, correspondence, instructions, drawings, receipts, subcontracts, Subcontractor’s proposals, purchase orders, vouchers, memoranda and other data relating to this Contract. The Contractor shall preserve these records for a period of three years after final payment, or for such longer period as may be required by law.
§ 11.2 Contractor’s records and accounts subject to auditing and copying shall include but not be limited to Project files, accounting records, written policies and procedures; subcontract files (including proposals of successful and unsuccessful bidders, bid recaps, etc.); original estimates; estimating work sheets; correspondence; change order files (including documentation covering negotiated settlements); backcharge logs and supporting documentation; general ledger entries detailing cash and trade discounts earned; information, materials and data of every kind and character such as documents, subscriptions, records, computerized information, agreements, purchase orders, leases, contracts, commitments, arrangements, notes, daily diaries, superintendent reports, drawings, receipts, vouchers and memoranda, and any other Contractor records which may have a bearing on matters of interest to the Owner in connection with the Contractor’s work for the Owner (all foregoing hereinafter referred to as “Project Records”). Project Records subject to audit shall also include those records necessary to evaluate and verify direct costs as they may apply to costs associated with this Agreement. In those situations where Project Records have been generated from computerized data, Contractor agrees to provide Owner’s representatives with extracts of data files in computer readable format on data disks or suitable alternative computer data exchange formats. Information provided by Contractor for accounting records will only be provided for Work or costs that involve, or relate to, this Project or is reasonably required by Owner’s auditor to perform a comprehensive audit for the Project (“Project Records”).
§ 11.3 The Owner agrees not to disclose any information gained in the audit process concerning the practices, processes, methods or other confidential information of the Contractor. Owner acknowledges that such information constitutes the trade secrets of Contractor, and that disclosure of such information may have a substantial impact on Contractor’s competitiveness. Owner further agrees to take reasonable steps to prevent such information from being disclosed by any of its employees, consultants, or subcontractors.
ARTICLE 12 PAYMENTS
§ 12.1 PROGRESS PAYMENTS
§ 12.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents.
§ 12.1.2 The period covered by each Application for Payment shall be one calendar month ending on the twenty-fifth day of the month.
12.1.3 The Owner shall
make payment to the Contractor on a given, properly completed and
supported Application for Payment not later than forty-five
( 45 ) days after the Architect receives the Application for
§ 12.1.4 With each Application for Payment, the Contractor shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Contractor on account of the Cost of the Work equal or exceed (1) progress payments already received by the Contractor; less (2) that portion of those payments attributable to the Contractor’s Fee; plus (3) payrolls for the period covered by the present Application for Payment. Contractor’s Applications for Payment shall otherwise conform to, and be supported by the items listed in Article 9.3 of the General Conditions.
§ 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 and approved by the Architect and the Owner. The schedule of values shall conform to the requirements of Section 9.2 of the General Conditions. 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. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the Contractor on account of that portion of the Work for which the Contractor has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the GMAX allocated to that portion of the Work in the schedule of values.
§ 12.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows:
§ 12.1.8 The Owner and the Contractor shall agree upon a (1) mutually acceptable procedure for review and approval of payments to Subcontractors and (2) the percentage of retainage held on Subcontracts, and the Contractor shall execute subcontracts in accordance with those agreements.
§ 12.1.9 NOT USED.
§ 12.2 FINAL PAYMENT
§ 12.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, as determined after accounting for all amounts credited as savings and all other offsets, shall be made by the Owner to the Contractor no less than thirty (30) days and no more than thirty-five (35) days after
§ 12.2.2 Prior to Architect’s issuance of a final Certificate for Payment, Contractor shall compile a final accounting for the performance of the Contract, and submit same to Architect for review by Owner’s auditors. The Owner’s auditors 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 auditors report to be substantiated by the Contractor’s final accounting, and provided the other conditions of Section 12.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner’s auditors, 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 Section 9.5.1 of the General Conditions. The time periods stated in this Section 12.2.2 supersede those stated in Section 9.4.1 of the General Conditions. The Architect is not responsible for verifying the accuracy of the Contractor’s final accounting.
12.2.3 NOT USED.
ARTICLE 13 DISPUTE RESOLUTION
§ 13.1 INITIAL DECISION MAKER
The Architect will serve as Initial Decision Maker pursuant to Section 15.2 of the General Conditions, unless the parties appoint below another individual, not a party to the Agreement, to serve as Initial Decision Maker.
(If the parties mutually agree, insert the name, address and other contact information of the Initial Decision Maker, if other than the Architect.)
Ambrose & House Architects, LLP shall serve as the Initial Decision Maker with respect to the building shell, parking garage, and other portions of the Work identified with the shell building permit.
The Lauck Group, Inc. d/b/a lauckgroup , shall serve as the Initial Decision Maker with respect to those portions of the Work identified with the interior finish-out building permit.
§ 13.2 BINDING DISPUTE RESOLUTION
For any Claim
subject to, but not resolved by mediation pursuant to
Section 15.3 of the General Conditions, the method of binding
dispute resolution shall be as follows:
o Arbitration pursuant to Section 15.4 of the General Conditions
þ Litigation in a court of competent jurisdiction
o Other (Specify)
ARTICLE 14 DEFAULT, TERMINATION AND SUSPENSION
§ 14.1 The Owner may declare the Contractor to be in default of the Contract, and the Contract may be terminated by the Contractor, or by the Owner, as provided in Article 14 of the General Conditions. Owner’s declaration of default shall become effective, and Contractor will be deemed in default of the Contract, unless Contractor cures such default in accordance with Section 14.2.5 of the General Conditions.
§ 14.2 NOT USED:
§ 14.3 NOT USED.
§ 14.4 The Work may be suspended by the Owner as provided in Article 14 of the General Conditions.
ARTICLE 15 MISCELLANEOUS PROVISIONS
§ 15.1 Where reference is made in this Agreement to a provision of the General Conditions or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents.
§ 15.2 Payments due and unpaid under the Contract shall bear interest beginning ninety (90) days after the date payment is due, at the legal rate prevailing from time to time at the place where the Project is located.
(Insert rate of interest agreed upon, if any.)
15.3 The Owner’s
§ 15.5 Neither the Owner’s nor the Contractor’s representative shall be changed without ten days’ written notice to the other party.
§ 15.6 Other provisions:
§ 15.6.1 OWNER’S FF&E . Reference is made to the fact that Owner intends to purchase certain furnishings, fixtures and equipment separately from the Contract for installation by Separate Contractors. The Contractor hereby acknowledges that it has received a document that is attached hereto and incorporated into the Contract Documents as Exhibit “E”— Schedule of Owner’s FF&E . With respect to those items listed in Exhibit “E” , Contractor shall account for and incorporate into the Work the requirements of Exhibit “E” in accordance with Sections 3.10.2 and 6.1.5 of the General Conditions.
§ 15.6.2 INDEMNITY. CONTRACTOR SHALL FULFILL THE DEFENSE AND INDEMNITY OBLIGATIONS SET FORTH IN SECTION 3.18 OF THE GENERAL CONDITIONS.
§ 15.6.3 EXECUTION. The Contract may be executed in any number of multiple counterparts, all of which taken together shall constitute one and the same agreement.
§ 15.6.5 NOTICES. Any notice, approval, consent, request or other communication (for purposes of this paragraph, collectively referred to as “Notice”) provided or permitted to be given by the Contract Documents must be performed or given in accordance with Section 13.3 of the General Conditions.
ENUMERATION OF CONTRACT DOCUMENTS
§ 16.1.1 The Agreement is this executed AIA Document A102—2007, Standard Form of Agreement Between Owner and Contractor, as modified.
§ 16.1.2 The General Conditions are AIA Document A201—2007, General Conditions of the Contract for Construction, as modified and attached hereto as Exhibit “A”—General Conditions .
§ 16.1.3 The Supplementary and other Conditions of the Contract:
§ 16.1.4 The Specifications:
(Either list the Specifications here or refer to an exhibit attached to this Agreement.)
Title of Specifications exhibit: Exhibit “F”—List of Construction Documents
16.1.5 The Drawings:
§ 16.1.6 The Addenda, if any:
Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are also enumerated in this Article 16.
§ 16.1.7 Additional documents, if any, forming part of the Contract Documents:
“B”— Alternates, Allowances and Unit Prices
ARTICLE 17 INSURANCE AND BONDS
The Contractor shall purchase and maintain insurance and provide bonds as set forth in Article 11 of the General Conditions.
(State bonding requirements, if any, and limits of liability for insurance required in Article 11 of the General Conditions.)
At least five (5) business days prior to execution of this Contract, Contractor shall provide Owner with copies of the policies of insurance and surety bonds required under the Contract for Owner’s review. On the date of the Contract’s execution and prior to the commencement of any Work, Contractor shall provide Owner with evidence that it has obtained insurance and bonds that satisfy all requirements set forth in Article 11 of Exhibit “A.” Failure by Contractor or any Subcontractor or Sub-Subcontractor (of any tier) to obtain and continuously maintain such insurance and bonds, or any portion thereof, shall be deemed a material breach of the Contract.
This Agreement entered into as of the day and year first written above.
AIA ® Document A201™ — 2007
General Conditions of the Contract for Construction
EXHIBIT “A”—General Conditions
for the following PROJECT:
(Name and location or address)
Logic, Inc. — Corporate Headquarters Building
TABLE OF ARTICLES
of Nonconforming Work
Costs, Claims for
Inspections and Testing
Time, Claims for
Administration of the Contract
or Invitation to Bid
Architect , Definition of
Extent of Authority
Limitations of Authority and Responsibility
Architect’s Additional Services and
Architect’s Administration of the
Architect’s Authority to Reject Work
Architect’s Project Representative
Architect’s Relationship with
Architect’s Relationship with
Architect’s Site Visits
Subcontracts and Other Contracts for Portions of the Work
Performance, and Payment
Inspection, Testing or Approval
Orders , Definition
Claims , Definition of
Timely Assertion of Claims
Unknown Conditions, Claims for
the Work, Conditions Relating to
of the Work , Definition
Communications Facilitating Contract
Conditions Relating to
Consolidation or Joinder
BY OWNER OR BY SEPARATE CONTRACTORS
Change Directive ,
Assignment of Subcontracts
Contract , Definition of
TERMINATION OR SUSPENSION OF THE
and Execution, Conditions Relating to
Documents, Copies Furnished and Use of
Documents , Definition
Sum , Definition of
Time , Definition of
Contractor , Definition of
Contractor’s Construction Schedules
Contractor’s Liability Insurance
Contractor’s Relationship with Separate
Contractors and Owner’s Forces
Contractor’s Relationship with
Contractor’s Relationship with the
Contractor’s Responsibility for Those
Performing the Work
Contractor’s Review of Contract
Contractor’s Right to Stop the Work
Contractor’s Right to Terminate the
Contractor’s Supervision and Construction
Furnished of Drawings and Specifications
and Intent of the Contract Documents
Construction of Owner or Separate Contractors
Damage to the
Commencement of the Work , Definition of
Substantial Completion ,
Nonconforming Work, Acceptance, Rejection and Correction of
Work , Definition of
Extensions of Time
and Samples at the Site
Drawings , Definition of
Specifications, Use and Ownership of
Labor, Materials or
Progress of the Work
Completion and Final Payment
Extended Coverage Insurance
of Subcontractors and Suppliers
and Services Required of the Owner
Decision Maker, Definition of
Decision Maker, Decisions
Decision Maker, Extent of Authority
Damage to Person or Property
of Service , Definition
Boiler and Machinery
Effective Date of
Loss of Use
Companies, Consent to Partial Occupancy
Companies, Settlement with
Intent of the
Loss of Use
Labor, Equipment and
Techniques, Sequences and Procedures of Construction
Changes in the Work
Modifications , Definition of
to the Contract
Nonconforming Work, Acceptance of
Work, Rejection and Correction of
Testing and Inspections
Owner , Definition of
Information and Services Required of the
Owner’s Liability Insurance
Owner’s Loss of Use Insurance
Relationship with Subcontractors
Owner’s Right to Carry Out the Work
Owner’s Right to Clean Up
Owner’s Right to Perform Construction and
to Award Separate Contracts
Owner’s Right to Stop the Work
Right to Suspend the Work
Right to Terminate the Contract
and Use of Drawings, Specifications and Other Instruments of
Occupancy or Use
Bond, Performance Bond and
Bond and Payment Bond
Fees, Notices and Compliance with Laws
PROPERTY, PROTECTION OF
Data , Definition of
and Samples, Shop Drawings
Project , Definition of the
OF PERSONS AND PROPERTY
Waivers of Liens
for Those Performing the Work
Contract Documents and Field Conditions by Contractor
Contractor’s Submittals by Owner and Architect
Review of Shop
Drawings, Product Data and Samples by Contractor
Patents and Copyrights
Notices for Arbitration
Persons and Property
Precautions and Programs
Samples , Definition of
Shop Drawings, Product Data and
the Site, Documents and
Contracts and Contractors
Drawings , Definition
Drawings, Product Data and Samples
Inspections and Testing
Specifications , Definition of the
Subcontractor , Definition of
Completion , Definition
Sub-subcontractor , Definition of
and Construction Procedures
by the Owner for Convenience
Termination of the Contract
by the Contractor
by the Owner for Cause
by the Owner for Convenience
OR SUSPENSION OF THE CONTRACT
and Extensions of
of Data in Digital Form
AND CORRECTION OF WORK
Conditions, Concealed or Unknown
Claims by the Architect
Claims by the Contractor
Claims by the Owner
The Contract Documents are enumerated in the Agreement between the Owner and Contractor (hereinafter the Agreement). 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 the advertisement or invitation to bid, Instructions to Bidders, sample forms, other information furnished by the Owner in anticipation of receiving bids or proposals, the Contractor’s bid or proposal, 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 or cause of action of any kind (1) between the Contractor and the Architect or the Architect’s consultants, (2) between the Owner and a Subcontractor or a Sub-subcontractor, (3) between the Owner and the Architect or the Architect’s consultants or (4) between any persons or entities other than the Owner and the Contractor. There are no intended third-party beneficiaries to the Contract. The obligations of Owner and Contractor under the Contract are intended solely for the benefit of the other party, and any benefits arising out of those obligations that may accrue to third parties are entirely incidental. Notwithstanding anything else in this section to the contrary, Contractor’s obligations include cooperation 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, and any part thereof, that are necessary in order that such construction and services will be complete and in conformity with the Contract Documents and all applicable safety regulations and other regulations bearing on the means and methods of construction, 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 and 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 INSTRUMENTS OF SERVICE
Instruments of Service are documentary representations, including those in electronic form, of the tangible and intangible creative work performed by the Architect and the Architect’s consultants in connection with the Project under their respective professional services agreements. Instruments of Service may include, without limitation, studies, surveys, models, sketches, drawings, specifications, and other similar materials.
§ 1.1.8 INITIAL DECISION MAKER
The Initial Decision Maker is the person identified in the Agreement to render initial decisions on Claims in accordance with Section 15.2 and certify termination of the Agreement under Section 14.2.2.
§ 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
§ 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. Except to the extent specifically indicated in the Contract Documents that a portion of the work is to be the responsibility of others, the intention of the Drawings and Specifications includes, without limitation, that all work, equipment, casework, mechanical, electrical and similar devices of whatever nature, be completely installed, hooked-up, made operational and made functional for the purpose for which they are intended, by the Contractor, and that all costs therefor are included in the GMAX.
§ 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 that have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings.
§ 1.2.4 CLARIFICATIONS: The general character of the Work is shown on the Drawings and Specifications, but clarifications, and refinements may be made when needed to more fully explain the Work. Provided that they were reasonably inferable from the Drawings and Specifications that were bid by Contractor as necessary to provide a completed and fully operational system, facility or structure, such clarifications and refinements shall be considered part of the scope of the Work to be performed without adjustment in the Contract Sum, GMAX, Contract Time or FF&E Deadlines.
§ 1.2.5 DIAGRAMMATIC DEPICTIONS: Drawings, depictions and diagrams for mechanical, plumbing and electrical work shall be considered as diagrammatic only, not to be used for any structural guidance or physical layout, and Contractor shall be responsible to provide any and all numbers and lengths of mechanical, plumbing or electrical fittings, wire, conduit, connections, attachments or similar materials needed to complete the Work, at no adjustment to the Contract Sum, GMAX, Contract Time or FF&E Deadlines.
§ 1.3 CAPITALIZATION
Terms capitalized in these General Conditions include those that are (1) specifically defined, (2) the titles of numbered articles or (3) the titles of other documents published by the American Institute of Architects.
§ 1.4 INTERPRETATION
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. Should the Contract Documents become the subject of litigation, they shall not be construed more favorably for or strictly against any party based on a claim that one was the author, drafter or maker of the Contract Documents.
§ 1.5 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE
§ 1.5.1 The owners of Instruments of Service, including the Drawings and Specifications, as determined by the Owner’s separate agreements with its architect or architects, will retain all common law, statutory and other reserved rights, including copyrights. The Contractor, Subcontractors, Sub-subcontractors, and material or equipment suppliers shall not own or claim a copyright in the Instruments of Service. 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’ reserved rights.
§ 1.5.2 The Contractor, Subcontractors, Sub-subcontractors (of any tier) and material or equipment suppliers are authorized to use and reproduce the Instruments of Service provided to them solely and exclusively for execution of the Work. All copies made under this authorization shall bear the copyright notice, if any, shown on the Instruments of Service. The Contractor, Subcontractors, Sub-subcontractors (of any tier), and material or equipment suppliers may not use the Instruments of Service on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner.
§ 1.6 TRANSMISSION OF DATA IN DIGITAL FORM
If the parties intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions, unless otherwise already provided in the Agreement or the Contract Documents.
§ 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 Section 4.2.1, the Architect does not have such authority. The term “Owner” means the Owner or the Owner’s authorized representative.
§ 2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic’s lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner’s interest therein.
§ 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
§ 2.2.1 Prior to commencement of the Work, the Contractor may request in writing that the Owner provide reasonable evidence that the Owner has made financial arrangements to fulfill the Owner’s obligations under the Contract. Thereafter, the Contractor may only request such evidence if (1) the Owner fails to make payments to the Contractor as the Contract Documents require; (2) a change in the Work materially changes the Contract Sum; or (3) the Contractor identifies in writing a reasonable concern regarding the Owner’s ability to make payment when due. The Owner shall furnish such evidence as a condition precedent to commencement or continuation of the Work or the portion of the Work affected by a material change. After the Owner furnishes the evidence, the Owner shall not materially vary such financial arrangements without prior notice to the Contractor.
§ 2.2.2 Except for permits and fees that are the responsibility of the Contractor under the Contract Documents, including those required under Section 3.7.1, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities.
§ 2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to reasonably 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 The Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. The Owner shall also furnish any other information or services under the Owner’s control and relevant to the Contractor’s performance of the Work with reasonable promptness after receiving the Contractor’s written request for such information or services.
§ 2.2.5 Unless otherwise provided in the Contract Documents, the Owner shall furnish to the Contractor one copy of the Contract Documents for purposes of making reproductions pursuant to Section 1.5.2.
§ 2.3 OWNER’S RIGHT TO STOP THE WORK
If the Contractor fails to correct Work that is not in accordance with the requirements of the Contract Documents as required by Section 12.2, or in response to a declaration of default by the Owner under Section 14.2, or repeatedly fails to carry out Work in accordance with the Contract Documents or any safety or other regulations bearing upon the means and methods of construction, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. The Contractor shall not be entitled to any adjustment of Contract Sum, GMAX, Contract Time or FF&E Deadlines as a result of any such properly issued and justified order.
§ 2.4 OWNER’S RIGHT TO CARRY OUT THE WORK
Without limitation to any of Owner’s other rights or remedies at law or in equity, Owner shall have the right to declare Contractor to be in default of the Contract under the circumstances set forth in Section 14.2 of these General Conditions. Owner reserves the right to carry out all or part of the Contractor’s Work in accordance with the provisions of Section 14.2 of these General Conditions or Section 6.5 of the Agreement.
§ 2.5 OWNER’S RIGHT TO ELIMINATE PART OF THE WORK
§ 2.5.1 Owner has the right, in its sole and absolute discretion, to eliminate entire or partial elements of the Work at any time prior to the Contractor’s commencement of such elements of the Work. In such an event, GMAX, Contract Time and FF&E Deadlines will be adjusted downward via Construction Change Directive in an amount as calculated under Article 7 of these General Conditions. Within ten (10) days following such elimination, the Contractor shall also submit a revised schedule of values to the Owner to reflect the adjusted Work scope.
§ 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 Contractor shall be lawfully licensed, if required in the jurisdiction where the Project is located. The Contractor shall designate in writing a representative who shall have express authority to bind the Contractor with respect to all matters under this Contract. The term “Contractor” means the Contractor or the Contractor’s authorized representative.
§ 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents.
§ 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect’s administration of the Contract, or by tests, inspections or approvals required or performed by persons or entities other than the Contractor.
§ 3.1.4 INDEPENDENT CONTRACTOR. It is understood and agreed that the relationship of the Contractor to the Owner shall be that of an independent contractor. Nothing contained in or inferable from the Contract Documents shall be construed to make Contractor the agent, servant or employee of the Owner. It is understood and agreed that any direction or instruction by Owner in respect to the Work relates solely to the results the Owner desires to obtain from the Work, and shall in no way affect Contractor’s status as an independent contractor or relieve Contractor of the responsibility for the means and methods of performing the Work. Nothing in this paragraph shall be construed as limiting the Contractor’s obligations toward the Owner that arise from the relationship of trust and confidence set forth in Article 3 of the Agreement
§ 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
§ 3.2.1 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, correlated personal observations with requirements of the Contract Documents, and has satisfied itself as to the condition thereof and that the GMAX is just and reasonable compensation for all the Work, including all foreseen or foreseeable risks, hazards and difficulties in connection therewith.
§ 3.2.2 Because the Contract Documents are complementary, the Contractor shall, before starting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Section 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 coordination and construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly, and before proceeding with the affected portion of the Work, report to the Architect and Owner any errors, inconsistencies or omissions discovered by or made known to the Contractor as a request for information in such form as the Architect may require. 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.
§ 3.2.3 The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but the Contractor shall promptly, and before proceeding with the affected portion of the Work, report to the Architect and Owner any design errors or omissions or any nonconformity discovered by or made known to the Contractor as a request for information in such form as the Architect may require.
§ 3.2.4 If the Contractor believes that additional cost or time is involved because of clarifications or instructions the Architect issues in response to the Contractor’s notices or requests for information pursuant to Sections 3.2.2 or 3.2.3, the Contractor shall make Claims as provided in Article 15. If the Contractor fails to perform the obligations of Sections 3.2.2 or 3.2.3, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations. The Contractor shall not be liable to the Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents or for differences between field measurements or conditions and the Contract Documents, however, if, without having reported same to the Architect, the Contractor performs any work involving: (i) a design error, inconsistency or omission that was actually discovered, or which should have been discovered by the Contractor; or (ii) a nonconformity with applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities that was actually observed by the Contractor, then the Contractor shall assume appropriate responsibility for such Work and shall bear an appropriate share of the costs attributable to correction, which shall not be considered a Cost of the Work.
§ 3.2.5 Anything to the contrary in the Contract Documents notwithstanding, and to the fullest extent permitted by law, the Owner disclaims any and all implied or express warranties regarding: (i) the accuracy, sufficiency, or completeness of the Contract Documents or any report, survey, analysis or investigation provided to Contractor; (ii) the constructability of the improvements depicted in the Contract Documents; and (iii) the conditions of existing improvements. The parties agree that any such deficiency or condition shall not create a cause of action against Owner for breach of express or implied warranty, misrepresentation or fraud. If Contractor believes that it is entitled to extra time or compensation as a result of errors in the Contract Documents, reports, surveys, analyses, investigations, or concealed field conditions, then Contractor shall, as a condition precedent to seeking redress in any court, follow the claim procedures set forth in Article 15 of these General Conditions.
§ 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
§ 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention and shall provide supervision sufficient to achieve proper coordination and timely completion of the Work. The Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences and procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and shall not proceed with that portion of the Work without furt