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Service Solicited - 2006 - KJ Corporation, Inc - Hill Road Park Pt 2 CONTRACT FOR CONSTRUCTION BETWEEN CITY OF EAGLE, IDAHO AND CHAPTER 1 BUILDER'S AGREEMENT Dated: April 18, 2006 .~ .., TABLE OF CONTENTS RECiTALS.......................................................................................................................... ..... 2 ARTICLE 1 THE CONTRACT DOCUMENTS .......................................................................... 3 ARTICLE 2 NOTiCES....... ....... ... ............. ......... ... ......... ........... ... ..... ................. ... .......... ...... .... 4 ARTICLE 3 COMPENSATION OF GENERAL CONTRACTOR ...............................................4 ARTICLE 4 GENERAL CONTRACTOR'S SCOPE OF WORK ................................................5 ARTICLE 5 SPECIFIC INSURANCE REQUIREMENTS .......................................................... 5 ARTICLE 6 PERSONNEL, SUBCONTRACTOR, SUPPLIER, AND CONSULTANT CHARTS ...................................................................................... 6 ARTICLE 7 CONSTRUCTION SCHEDULE AND SPECIFIC BOND REQUiREMENTS........... 6 ARTICLE 8 AMENDMENTS TO CHAPTER 2..........................................................................7 APPENDIX A GENERAL CONTRACTOR'S COMPENSATION SCHEDULE .......................... 8 APPENDIX B GENERAL CONTRACTOR'S PERSONNEL CHART ........................................ 9 APPENDIX C GENERAL CONTRACTOR'S SUBCONTRACTORS AND SUPPLIERS CHART ...................................................................................... 10 Contract For Construction . Chapter 1 Builder's Agreement. 11 CONTRACT FOR CONSTRUCTION CHAPTER 1 BUILDER'S AGREEMENT This Contract For Construction, is entered into between: "OWNER" And "GENERAL CONTRACTOR" City of Eagle 31 0 East State Street P.O. Box 1520 Eagle, ID 83616 This Contract For Construction is executed under seal, and shall be effective on the date signed by the last party to do so. ADDRESSES and AUTHORIZED REPRESENTATIVES: The authorized representatives and addresses of the Owner, the General Contractor and the Professional(s) are: OWNER: Representative: Address: City, State, Zip: Telephone: E-mail: GENERAL CONTRACTOR: Sharon K. Bergmann, City Clerk 31 0 East State Street P.O. Box 1520 Eagle, Idaho 83616 208/939-6813 FAX: 208/939-6827 Sharon@citvofeaqle.orq Representative: Jack Young, President Address: K-J Corporation, 2316 North Cole Road City, State, Zip: Boise, Idaho 83704 Telephone: 208/378-8713 FAX: 208/378/9367 E-mail: kj@kjcorporation.com General Contractor's License #: RCE543 FEIN / SSN #: 820492381 PROFESSIONAL: Representative: Address: City, State, Zip: Telephone: E-mail: CSHQA /James G. Murray, AlA C. W. Moore Plaza 250 S. 5th Street Boise, 10 83702 (208)343-4635 Fax: (208) 343-4638 iim.murravlCilcshaa.com or Kvle.Hemlv@cshaa.com Contract For Construction . Chapter 1 Builder's Agreement. 1 The Professional is designated as the Owner's representative pursuant to Paragraph 11.1 of Chapter 2. OWNER'S PROJECT IDENTIFICATION INFORMATION: Project Title: Project Location: Address: City, State, Zip: City of Eagle, Hill Road Park- Phase II Eagle Idaho, Idaho 310 East State Street P.O. Box 1520 Eagle, Idaho 83616 General Project Description: Work includes the construction of both site and building improvements within the recently constructed Hill Road Park including: earthwork, paving (both asphalt and concrete) playground equipment and surfacing, adjustments of the existing asphalt parking lot, site furniture, three buildings, electrical power and lighting, plumbing, sprinkler irrigation, seeding and both tree and shrub planting. TIME FOR PERFORMANCE: A. Commencement of Construction: The General Contractor shall commence construction of its scope of the Work within fifteen (15) days after submission of the performance and payment bonds (the 'Commencement Date"). B. Substantial Completion: The General Contractor shall accomplish Substantial Completion of its scope of the Work within One Hundred Sixty Five (165) days after commencement of construction as described in paraoraph A alone (the "required date of Substantial Completion"). C. Final Completion: The General contractor shall accomplish Final Completion of its scope of the Work within thirty (30) days of substantial completion as defined in this aoreement (the "required date of Final Completion"). RECITALS A. The Owner intends to construct the Project and is engaging the General Contractor to perfonm certain labor, supervision and services and provide certain equipment, goods and materials for the Project. B. The Owner and General Contractor each acknowledges that it will act in good faith in carrying out its duties and obligations. Contract For Construction . Chapter 1 Builder's Agreement. 2 C. The Owner's engagement of the General Contractor is based upon the General Contractor's representations to the Owner that it (i) is experienced in the type of labor and services the Owner is engaging the General Contractor to perform; (ii) is authorized and licensed to perfonm the type of labor and services for which it is being engaged in the State and locality in which the Project is located; (iii) is qualified, willing and able to perform labor and services for the Project; and, (iv) has the expertise and ability to provide labor and services which will meet the Owner's objectives and requirements, and which will comply with the requirements of all governmental, public and quasi-public authorities and agencies having or asserting jurisdiction over the Project. D. The Owner and General Contractor each acknowledges that it has reviewed and familiarized itself with this Contract For Construction, including the documents enumerated in ARTICLE 1, and agrees to be bound by the terms and conditions contained therein. NOW, THEREFORE, for good and valuable consideration, the parties agree as follows: ARTICLE 1 THE CONTRACT DOCUMENTS 1.1 The "Contract For Construction" between the parties is comprised of the following documents: this "Chapter 1 - Builder's Agreement", including the foregoing recitals A. through D., and all attached documents and appendices; "Chapter 2 - Builder's Required Services And General Terms and Conditions" and all attached documents and appendices, incorporated herein by reference; Bid proposal submitted by General Contractor, encompassing base bid; and Alternate #2, including Addenda. The Construction Documents, now existing or issued hereafter; Any amendments executed by the Owner and the General Contractor hereafter; and, Any additional documents, including but not limited to work change directives, listed hereafter, if any: 1.2 Documents not included or expressly contemplated in this Article 1 do not, and shall not, fonm any part of this Contract For Construction. 1.3.1 The Owner shall furnish the General Contractor with ten (10) copies of the Construction Documents required for the General Contractor's scope of the Work. Contract For Construction . Chapter 1 Builder's Agreement. 3 ARTICLE 2 NOTICES 2.1 Unless otherwise provided, all notices shall be in writing and considered duly given if original is (i) hand delivered; (ii) delivered by telex, facsimile, or telecopy; or (iii) sent by U.S. Mail, postage prepaid. All notices shall be given to the addresses set forth above. Notices hand delivered or delivered by telex, facsimile, or telecopy shall be deemed given the next business day following the date of delivery. Notices given by U.S. Mail shall be deemed given as of the second business day following the date of posting. ARTICLE 3 COMPENSATION OF GENERAL CONTRACTOR 3.1 The Owner shall pay and the General Contractor shall accept, as full and cornplete payrnent for the General Contractor's timely and complete perforrnance of its obligations hereunder the fixed price of: One Million Six Hundred Eleven Thousand One Hundred and no/100 Dollars ($1.611.100.00). The amount set forth above is the Construction Contract Price and includes the aggregate arnount of all allowances and any unit price items to be furnished or installed. 3.2 Within ten (10) calendar days after execution of this Contract For Construction, the General Contractor shall prepare and present to the Owner and the designated Professional, as Appendix A, the General Contractor's Compensation Schedule which includes: A. Schedule of values for payment of the construction contract price on a lump sum . basis. B. Tirne Schedule for payment of the Construction Contract Price on a lump sum basis. 3.3 Within fifteen ~ calendar days after receipt by the Owner of the General Contractor's invoice, properly prepared pursuant to Article 15 of Chapter 2, the Owner shall pay to the General Contractor ninety-five percent @2%) of the total amount approved by a Professional, withholding the balance as retainage, unless there is a dispute about the amount of compensation due the General Contractor. The date on which payment is due shall be referred to as the "Payment Date". 3.4 For change orders directed by a Professional to be performed by the General Contractor on a time and materials basis pursuant to Paragraph 9.4.1 of Chapter 2, the General Contractor shall be reimbursed the actual incurred cost and expense plus a maximum markup of ten percent (1Q%) for the change order Work performed by its forces. 3.5 When additional Work by the General Contractor's subcontractors and suppliers is required and approved pursuant to Paragraph 9.4.3 of Chapter 2, the General Contractor shall be reimbursed the actual incurred costs and expenses paid to those subcontractors and suppliers, plus a markup of not more than ten percent (1Q%). 3.6 If the General Contractor disputes a change order decision pursuant to Paragraph 9.6 of Chapter 2, it must give the Owner its written notice of dispute, including the reasons Contract For Construction . Chapter 1 Builder's Agreement. 4 therefore, within ten (10) calendar days of the disputed decision. 3.7 If liquidated damages are assessed pursuant to Paragraph 17.2 of Chapter 2, such damages shall be calculated at the rate of seven hundred and fifty ($750.00) Dollars per calendar day. ARTICLE 4 GENERAL CONTRACTOR'S SCOPE OF WORK 4.1 The General Contractor shall furnish or cause to be furnished, and pay for out of the Construction Contract Price, all management, supervision, financing, goods, products, materials, equipment, systems, labor, services, permits, licenses, construction machinery, water, heat, utilities, transportation and other facilities necessary for proper execution and completion of its scope of the Work in accordance with all of the terms and conditions of this Contract For Construction. The general nature of the scope of Work the General Contractor is to complete is briefly described as follows: The Contractor is responsible for the entire project. ARTICLE 5 SPECIFIC INSURANCE REQUIREMENTS 5.1 The General Contractor shall purchase and maintain, at its expense, from a company or companies authorized to do business in the state in which the Project is located, insurance policies containing the following selected types of coverages and minimum limits of liability protecting from claims which may arise out of or result from the performance or non-performance of services under this Contract For Construction by the General Contractor or by anyone directly or indirectly employed by it, or by anyone for whose acts it may be liable: (i) Workers' Compensation, Disability Benefit, or similar employee benefit act coverage, and employer's liability coverage, as required by the state in which the Project is located. (ii) General Liability which (i) includes premises/operations, product/completed operations, contractual liability, independent contractors, broad-fonm property damage, underground, explosion and collapse hazard, and personal/ advertising injury; and, (ii) names the Owner and the Owner's Related Parties as additional insureds, with per-occurrence limits of not less than two million ($2,000,000) Dollars. (iii) Comprehensive Automobile Liability which includes contractual liability coverage and coverage for all owned, hired and non-owned vehicles with limits of not less than one million ($1,000,000) Dollars. per accident for bodily injury and property damage, or one million ($1,000,000) Dollars. combined single limit. (iv) Builder's Risk Insurance which (i) includes without duplication, but is not limited Contract For Construction. Chapter 1 Builder's Agreement. 5 to, fire (with extended coverage), theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal; and, (ii) names the Owner and the Owner's Related Parties, with coverage for one hundred (100%) percent of the insurable value of the General Contractor's scope of the Work, and a per-claim deductible of two million ($2,000,000) Dollars. ARTICLE 6 PERSONNEL, SUBCONTRACTOR, SUPPLIER AND CONSULTANT CHARTS 6.1 The General Contractor shall prepare and attach as Appendix B to this Agreement the General Contractor's Personnel Chart which lists by name, job category and responsibility the General Contractor's primary employees who will work on the Project. The General Contractor shall promptly infonm the Owner in writing of any proposed replacements, the reasons therefor, and the name(s) and qualification(s) of proposed replacement(s). The Owner shall have the right to reject any proposed replacement. 6.2 The General Contractor (i) shall prepare and attach as Appendix C to this Agreement the General Contractor's Subcontractors And Suppliers Chart which lists by name and general Project responsibility each subcontractor and supplier who will be utilized by the General Contractor to provide goods or services with respect to the Project; (ii) shall not enter into any agreement with any subcontractor or supplier to which the Owner raises a reasonable, timely objection; and, (iii) shall promptly infonm the Owner in writing of any proposed replacements, the reasons therefor, and the name(s) and qualification(s) of proposed replacement(s). The Owner shall have the right to reject any proposed replacement. ~ 6.3 The Owner shall prepare and attach as Appendix D to this Agreement the Owner's Consultants Chart which lists by name and general duties each consultant retained by the Owner to provide services with respect to the Project. The Owner reserves the right to engage any other consultants which it may deem necessary or desirable. ARTICLE 7 CONSTRUCTION SCHEDULE AND SPECIFIC BOND REQUIREMENTS 7.1 The General Contractor shall, not less than ten (10) calendar days after execution of this Contract For Construction, prepare and submit a proposed Construction Schedule to the Owner and the designated Professional for their review and acceptance pursuant to Paragraph 16.1 of Chapter 2. 7.2 Surety Bond Requirements: 7.2.1 The General Contractor shall be required to provide payment and performance bonds. The amount of the premiums for such bonds shall be included in the Construction Contract Price. 7.2.2 The General Contractor shall not be required to provide a maintenance Contract For Construction. Chapter 1 Builder's Agreement . 6 bond. ARTICLE 8 AMENDMENTS TO CHAPTER 2 8.1 The following additions to, deletions from and/or modifications to the specifically referenced articles and paragraphs of Chapter 2 shall take precedence over the provisions of those referenced articles and paragraphs as follows: None THE PARTIES AGREE TO THE TERMS AS SET FORTH HEREIN: ("Ow~" r") By:);}6~KR:n,~~ ../ - Sharon K. Bergmann City of Eagle Its: City Clerk of Eaale, Idaho Date: ~---~ 7- t7&7 Aa~ I-b/~ ~"',..;~~ ~...... ,,':.....~~~~..~~~ ! .. o\tl'OIl-d ~ ':0 - . ,. ...... ~ . :*:'-' '~\ ~ . . . . i : -.~ :...: : ~.... seA :: ~ tfJ ..~ c 1 .~'<4. ~ , :;. _.0.., _ ,..... ~ .d -.p(J/( I. ~.....,)..... '-f')r" ....... ,."\ ..... ~"li' OF \') ,,-' .-- -.... \- ", '......n.."" [Insert Corporate Seal If Required] Contract For Construction . Chapter 1 Builder's Agreement. 7 APPENDIX A GENERAL CONTRACTOR'S COMPENSATION SCHEDULE A. SCHEDULE OF VALUES FOR PAYMENT OF THE CONSTRUCTION CONTRACT PRICE ON A LUMP SUM BASIS See attached Appendix A B. TIME SCHEDULE FOR PAYMENT OF THE CONSTRUCTION CONTRACT PRICE ON A LUMP SUM BASIS See attached Appendix A Contract For Construction . Chapter 1 Builder's Agreement. 8 - ----- =======~===~================ - ----- ~a~22~~~a2~~~2222222~222~22 2 w ~ . ~ , i l 0:: . ----- -----------------=---------- ) - ----- ~8$~~~~~~~8g~~~~~~~a2222i22- l, ~~- 8 l, .. "lI: .. .. ..~. .. .. .. .. .. .. .. .. .. .. .. .. .. ... . g ZZ~ Im~mo...~~~~M~O.~O~!M ... . J: M~NN~ ~~a...... N~ ... ... 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("). u O...J M~~~~~~~ ~ ~_ ~ ~~ ... c Q) III W<( ~~ ~~~~ (I). ~ W c.s; 5> ... C) u ~i .... ~ c (/) ~IS.9l - ===== =~=~======================== W - ::; z i~ Q. ::::l Qg.l!l~ ~ C)!z:5 8 I-cv'" ~ (S"'2!2! ~ In - Q) I-U~o ~w <( _cCVj ::c ...l0J!! LL m~e:z i=~en , ~I~I 0 ::;Cl:::::l::::l (/) 3: djj al :z . Q.~oo :'S!!2o 0 z :5 ~ffi Q.oc Cl: ,w ~lIJCV ii: c~ ::EZ w J: U ~o Q wlnz s o~~ ~ ...ll- <en Cl'tl U ~ ~~~Q~~~~~en~~~en~~ ~~ ~z !z 1~ IS U ,0 en 3: t 0::0::Z...l00W ffi OC =t= W"iict)~ W ~~~~~~i~ii;I~~~~I~~ U<( ::;l!cc 0 ~ ::::lo,8E 8E~8 C:!!:: . - . ----- =================----------- Z - Z"....,.--- 0 <(C'sm I <( I ~~ . I ...N(").~U)~~~~...NM.~~~~~--------- - U ::c8..5::> ..............,............ .............. ----- =======~======~============= - ----- - APPENDIX B GENERAL CONTRACTOR'S PERSONNEL CHART A. Company K-J Corporation, Inc. 2316 N. Cole Road Suite 0 Boise, Idaho 83704 B. Project Manager Pale Anderson C. Project Supervisor Oale Anderson Responsibility: Overall supervision of Hill Road Park Phase II, including: Subcontractor and Material coordination and scheduling, quality control, submittal processing, owner contact, and contract administrator. Location will be on-site throughout construction. Contract For Construction . Chapter 1 Builder's Agreement . 9 APPENDIX C GENERAL CONTRACTOR'S SUBCONTRACTORS AND SUPPLIERS CHART A. Earthwork Rocky Mountain Paving B. Irrigation ILS Co. C. Landscape ILS Co. D. Plumbing Buss Mechanical E. Electrician R & M Electric F. SurveyorlLayout Manager Tealeys Land Surveying Contrad For Construction . Chapter 1 Builder's Agreement . 10 CONTRACT FOR CONSTRUCTION BETWEEN CITY OF EAGLE, IDAHO AND K-J CORPORATION CHAPTER 2 BUILDER'S REQUIRED SERVICES AND GENERAL TERMS AND CONDITIONS Dated: April 18, 2006 TABLE OF CONTENTS ARTICLE 1 THE CONTRACT DOCUMENTS ............................................................................. 1 1.1 Additional Sets of Documents.................................................................................... 1 1.2 Return Of Documents To Owner ...............................................................................1 1.3 Electronic Media........................................................................................................ 1 1.4 Minimum Requirements.............................................................................................1 1.5 Owner Disclaimer Of Warranty ..................................................................................1 1.6 Conflicts In Documents..............................................................................................1 1.7 Shop Drawings And Submittals .................................................................................2 1.8 Contract Changes ..................................................................................................... 1 ARTICLE 2 GENERAL CONTRACTOR'S REVIEWS AND EVALUATIONS ...............................2 2.1 Sufficiency Of Construction Documents ....................................................................2 2.2 Sufficiency Of Site Conditions ...................................................................................2 ARTICLE 3 GENERAL CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES. 3 3.1 Perfonmance Of Work..... .. ......... ............. ................. .................... ............ ..................3 3.2 Compliance With Governmental Requirements......................................................... 3 3.3 Safety........ ....... ............... ....... .................. ............................... ............. ..................... 4 3.4 Concurrent Records ..... ........... ............. ........ ...... .................... ..... ............ .................. 4 3.5 As-Built Drawings ........... ......... ............... ................................. ........................... ....... 4 3.6 Bribes And Kick-Backs ..............................................................................................4 3.7 Quality Control And Testing.......................................................................................4 3.8 Incident Reporting..................................................................................................... 5 3.9 Hazardous Substances .............................................................................................5 3.10 Owner's Use Of And Access To The Site ................................................................5 3.11 Site Control And Cleanup ........................................................................................5 3.12 Advertising Prohibition............................................................................................. 6 3.13 Commissioning ...................... ................ ...... .... ... ..... ....................... .........................6 ARTICLE 4 GENERAL CONTRACTOR'S PERSONNEL, SUBCONTRACTORS, AND SUPPLIERS ... .... .... .......... ................ ...... ........... .... ........ .... ......... .......... ....... .... 6 4.1 Project Staffing ...... ........... ......... .............. ......... ............ ..... ... ............. ......... ..... ... .......6 4.2 Subcontractor / Supplier Contracts............................................................................6 4.3 Resolution Of Trade Disputes.....................................................................................7 ARTICLE 5 GOODS, PRODUCTS AND MATERIALS ................................................................7 5.1 Quality Of Materials................................................................................................... 7 5.2 Installation And Use Of Materials .............................................................................. 8 5.3 Unsuitable Materials.................................................................................................. 8 5.4 Security For Work In Progress...................................................................................8 Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions ARTICLE 6 DOCUMENTS AND INFORMATION........................................................................8 6.1 Infonmation From Owner............................................................................................8 6.2 Resolution Of Questions............ ................................................................................ 9 6.3 Processing Of Documents......... ................................................................................ 9 6.4 Sufficiency Of Owner Information ..............................................................................9 ARTICLE 7 SUMITT ALS............................................................................................................. 9 7.1 Submittal Schedule ................................................................................................... 9 7.2 Processing Of Submittals .......................................................................................... 9 ARTICLE 8 GENERAL CONTRACTOR'S INSPECTION OF AND CORRECTION OF DEFECTIVE OR INCOMPLETE WORK................................................................ 10 8.1 Rejection And Correction Of Work In Progress........................................................ 10 8.2 Covered Or Concealed Work................................................................................... 10 ARTICLE 9 CHANGE ORDERS AND CHANGES TO THE WORK........................................... 10 9.1 Change Order Requests.......................................................................................... 10 9.2 Owner-Directed Changes ........................................................................................ 11 9.3 Administration Of Changes...................................................................................... 11 9.4 Compensation For Changes.................................................................................... 11 9.5 Perfonmance Of Changes........................................................................................12 9.6 Disputes Regarding Changes.................................................................................. 1 2 9.7 Necessity For Signed Writing .................................................................................. 12 ARTICLE 10 FINANCIAL CLAIMS AND LIENS ........................................................................12 10.1 Notification Regarding Liens.................................................................................. 12 10.2 Discharge Of Liens................................................................................................ 12 ARTICLE 11 OWNER'S CONSUL TANT(S), PROFESSIONAL(S) AND CONSTRUCTION ADMINiSTRATION............................................................................................... 13 11.1 Owner's Designated Professional Representative ................................................. 13 11.3 Professional Site Visits .......................................................................................... 13 11.4 Professional Rejection Of Work............................................................................. 13 11.5 Professional Evaluations ....................................................................................... 13 11.6 Professional Submittal Activities............................................................................14 11.7 Professional Interpretations............................................. ......................................14 11.8 Professional Change Order Activities .................................................................... 14 11.9 Professional Pay Application Activities .................................................................. 14 11.10 Professional Relationship To General Contractor................................................14 ARTICLE 12 INSPECTION, CORRECTION OF WORK, AND PROJECT CLOSE OUT ...........15 12.1 Substantial Completion.......................................................................................... 15 12.2 Final Completion ...................................................................................................16 Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condttions ii ARTICLE 13 GENERAL CONTRACTOR'S WARRANTIES AND GUARANTEES ....................18 13.1 One-Year Warranty............................................................................................... 18 13.2 Express Warranties And Guarantees - General Contractor................................... 18 13.3 Express Warranties And Guarantees - Subcontractors And Suppliers.................. 19 13.4 Non-Exclusivity And Survival.................................................................................19 13.5 Non-Limitation ................................................. ...................................................... 19 13.6 Commencement Of Obligations...... ................. ............... ........ ............... ........ ........ 19 ARTICLE 14 OWNER'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES .......................... 19 14.1 Owner's Representative ........................................................................................ 19 14.2 Owner's General Duties ........................................................................................ 19 ARTICLE 15 GENERAL CONTRACTOR'S COMPENSATION.................................................20 15.1 Unit Prices.................................................................................................. ........... 20 15.2 Schedule Of Values........ ............ ..................... ............... ....... ..................... ........... 20 15.3 Invoicing Procedures ...... ............ ................ ..... ...................... ..................... ..... ......20 15.4 Payment Procedures ...... ............ ................ ..... ...................... ..................... ..... ......21 15.5 Owner's Right To Refuse Payment........................................................................21 15.6 General Contractor's Right To Refuse Perfonmance For Non-Payment.................22 15.7 Correction Of Past Payments ................................................................................22 15.8 Interest On Outstanding Amounts Due.................................................................. 22 15.9 Invoice Warranties And Guarantees...................................................................... 22 15.10 General Contractor's Signature ...........................................................................23 15.11 Taxes .................................................................................................................. 23 15.12 Compensation Of General Contractor's Subcontractors And Suppliers............... 23 15.13 Final Payment .....................................................................................................23 ARTICLE 16 SCHEDULE REQUiREMENTS............................................................................24 16.1 Construction Schedule .......................................................................................... 24 16.2 Delay In Performance............................................................................................25 16.3 Modifications To Time For Performance................................................................ 25 16.4 Early Completion .................. ..................................................................... ............ 25 16.5 Modification Dates Of Substantial Completion Or Final Completion....................... 25 16.6 Document Review .................................................................................................25 ARTICLE 17 LIQUIDATED DAMAGES.....................................................................................26 17.1 Time Is Of The Essence ........................................................................................ 26 17.2 Failure To Timely Achieve Completion ..................................................................26 17.3 Compensable Delay .............................................................................................. 26 17.4 Excusable Delay............ .......... ............ ............... ......... ............................... ...........26 17.5 Owner's Right To Withhold Payment.....................................................................27 ARTICLE 18 CONCEALED AND UNFORSEEN CONDITIONS................................................ 27 18.1 Notification Regarding Unusual Conditions............................................................ 27 Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condttions iii ARTICLE 19 GENERAL CONTRACTOR'S RECORDS............................................................ 28 19.1 Preparation Of Records......................................................................................... 28 19.2 Retention Of Records ............................................................................................28 19.3 Access To Records. ....... ... ... .... ......... .......... ... ........ ..... ... ..... ................. ... .......... ....28 ARTICLE 20 PROPRIETARY DOCUMENTS AND CONFIDENTIALITY................................... 28 20.1 Nature And Use Of Infonmation .............................................................................28 20.2 Ownership Of Infonmation......................................................................................28 20.3 Disclosure Of Infonmation ...................................................................................... 29 20.4 Instructions To Employees ....................................................................................29 20.5 Non-Publications.. ....................... ......................... ..... ......... ............ ............. .......... 29 ARTICLE 21 GENERAL INSURANCE REQUIREMENTS ........................................................29 21.1 General Insurance Requirements.......................................................................... 29 21.2 Certificates Of Insurance ................................................ ..... .................................. 29 21.3 Effect Of Insurance................ ................................................................................ 29 21.4 Waiver Of Subrogation .......................................................................................... 30 ARTICLE 22 GENERAL BOND REQUIREMENTS................................................................... 30 22.1 General Bond Requirements ................................................................................. 30 22.2 Delivery Of Bonds ....... ................... .................... ....... ........................ ....... .............30 ARTICLE 23 OWNER'S RIGHT TO STOP WORK ...................................................................30 23.1 Cease And Desist Order........................................................................................ 30 ARTICLE 24 TERMINATION OR SUSPENSION OF CONTRACT FOR CONSTRUCTION...... 31 24.1 Tenmination For Cause By Owner ......................................................................... 31 24.2 Termination For Cause By General Contractor...................................................... 32 24.3 Tenmination For Convenience ...............................................................................33 24.4 General Contractor's Compensation When General Contractor Tenminates For Cause Or Owner Tenminates For Convenience............................................... 33 24.5 General Contractor's Compensation When Owner Terminates For Cause ............ 33 24.6 Limitation On Tenmination Compensation.............................................................. 34 24.7 General Contractor's Responsibility Upon Termination.......................................... 34 24.8 Lack Of Duty To Terminate ...................................................................................34 24.9 Limitation On Tenmination Claim ...........................................................................34 ARTICLE 25 APPLICABLE LAW AND DISPUTE RESOLUTION.............................................. 34 25.1 Applicable State Law ............................................................................................. 34 25.2 Court Actions.. ...................... .......... ................ ........... .......... ........... ......... .............. 34 25.3 Mutual Discussion ................ .......................... .......... ......................... ........ ............ 35 25.4 Facilitative Mediation... .......... ............... .......... ......................................... ..............35 25.5 Conflicting Dispute Resolution Provisions.............................................................. 36 Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions iv 25.6 Arbitration Preclusion ............ ................... ........... ..... ........................... .................. 36 25.7 Performance During Dispute Resolution................................................................ 36 ARTICLE 26 DAMAGES AND REMEDIES............................................................................... 36 26.1 General Contractor's Repair .................................................................................. 36 26.2 General Contractor's Reimbursement ...................................................................36 26.3 General Indemnity ................................................................................................. 36 26.4 Intellectual Property Indemnity ..............................................................................37 26.5 Non-Exclusivity Of Owner's Remedies ..................................................................37 26.6 Waiver Of Damages ..............................................................................................37 26.7 Interest ................... ...... ............. ......... .................... .......................... .............. ....... 37 ARTICLE 27 MISCELLANEOUS PROViSiONS........................................................................37 27.1 Integration ................................................................................. ............................ 37 27.2 Severability............................................................................................................ 37 27.3 Waiver................................................................................................................... 38 27.4 Strict Compliance ............................ .............. .............. ..........................................38 27.5 Third-Party Beneficiaries....... .......... ............................. ............................. ............38 27.6 Survival.. ................ ............... ....... ...................... .............. .......... ...........................38 27.7 Assignment .... .......... .............. .................. ........... ............................. ............ ......... 38 27.8 Execution Of Documents.................................................................. ..................... 38 ARTICLE 28 DEFINITIONS ...................................................................................................... 38 Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions v CONTRACT FOR CONSTRUCTION CHAPTER 2 BUILDER'S REQUIRED SERVICES AND GENERAL TERMS AND CONDITIONS ARTICLE 1 THE CONTRACT DOCUMENTS 1.1 Additional Sets Of Documents: The Contractor will be furnished free of charge (10) complete sets of Drawings and Project Manuals for the project. Additional sets will be furnished at the cost of reproduction, postage and handling. 1.2 Minimum Requirements: In every case, requirements established by the Construction Documents shall be considered as the minimum, which will be accepted. 1.3 Owner Disclaimer Of Warranty: The Owner has requested that the City Attorney prepare contract documents and a professional prepare the construction documents for the Project, including the plans and specifications for the Project, which are to be complete, accurate, coordinated, and adequate for bidding, negotiating and constructing the Work. However, the Owner makes no representation or warranty of any nature whatsoever to the General Contractor concerning such documents. The General Contractor hereby acknowledges and represents that it has not, does not, and will not rely upon any representations or warranties by the Owner concerning such documents, as no such representations or warranties have been or are hereby made. 1.4 Conflicts In Documents: In the event of any conflict, discrepancy, or inconsistency among any of the documents which make up this Contract For Construction, the following shall control: 1.4.1 As between figures given on plans and scaled measurements, the figures shall govern; 1.4.2 As between large scale plans and small scale plans, the large scale plans shall govern; 1.4.3 As between plans and specifications, the requirements of the specifications shall govern; 1.4.4 Conflicts in the Contract Documents shall be brought to the Architect's attention. In such instances, the following is the order of authority of documents, the first taking the highest precedence: Agreement (Owner/Contractor) Addenda Supplementary Conditions General Conditions Technical Specifications Drawings Large scale drawings over smaller scale drawings Contract For Construction . Chapter 2 Builder's Required Services and General Temns and Conditions 1 Written notes, then schedules on the drawings shall be followed in preference to information furnished in the form of lines on drawings. No scale measurement shall be used as a dimension to work except on large scale drawings not dimensioned. Figures on all drawings, as well as the detail drawings themselves, are subject in every case to Contractor's verification and to measurements of adjacent or incorporated work. All such measurements necessary shall be made before undertaking any work dependent upon such data. 1.6 Shop Drawings And Submittals: Shop drawings and other submittals from the General Contractor or its subcontractors and suppliers do not constitute a part of this Contract For Construction. 1.7 Contract Changes: The General Contractor understands and agrees that this Contract For Construction cannot be changed except as provided herein. No act, omission or course of dealing by the parties shall alter the requirement that modifications of this Contract For Construction can be accomplished only by written documents signed by the parties. ARTICLE 2 GENERAL CONTRACTOR'S REVIEWS AND EVALUATIONS 2.1 Sufficiency Of Construction Documents: Prior to submission of bid, if any, but in all events prior to signing this Contract For Construction, the General Contractor has received and carefully reviewed and evaluated the Construction Documents applicable to its scope of the Work and agrees that the Construction Documents applicable to its scope of the Work are complete, accurate, adequate, consistent, coordinated and sufficient for bidding, negotiating, costing, pricing and construction of its scope of the Work. 2.1.1 The General Contractor acknowledges its continuing duty to review and evaluate the Construction Documents during the perfonmance of its services and shall immediately notify the Owner and the Professional(s) about any (i) problems, conflicts, defects, deficiencies, inconsistencies or omissions it discovers in or between the Construction Documents; and, (ii) variances it discovers between the Construction Documents and applicable laws, statutes, building codes, rules and regulations. 2.1.2 If the General Contractor performs any Work which it knows or should have known involves (i) a recognized problem, conflict, defect, deficiency, inconsistency or omission in the Construction Documents; or (ii) a variance between the Construction Documents and requirements of applicable laws, statutes, building codes, rules and regulations, without notifying the Professional(s) and prior to proceeding, the General Contractor shall be responsible for the consequences of such perfonmance. 2.1.3 Requests by the Contractor for written interpretations and/or detail drawings shall be made in a timely manner such as will allow ample time for their preparation and delivery without causing delays in the work. Failure of the Contractor to Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 2 request needed clarifications and/or his proceedings with affected work prior to receiving same, shall indicate his acceptance of any and all costs and/or delays required on account of necessary corrections. 2.1.4 Contractor shall promptly report to the Professional any apparent errors, omissions, discrepancies, or conflicts in Contract Documents. Do not proceed with work until clarification or instructions have been received. 2.1.5 Failure to report a conflict in the Contract Documents prior to such time as to allow the Professional seven (7) days response time, shall be deemed evidence that Contractor has elected to proceed in the more expensive manner, if and when directed. 2.2 Sufficiency Of Site Conditions: Prior to submission of bid, if any, but in all events prior to signing this Contract For Construction, the General Contractor has (i) visited the Site and become familiar with local conditions under which the Project is to be constructed and operated; and, (ii) reviewed and familiarized itself with the Site survey and any existing structures on the Site, and gathered all other information necessary for a full understanding of its scope of the Work. Claims resulting from the General Contractor's failure to familiarize itself with the Site or pertinent documents shall be deemed waived. ARTICLE 3 GENERAL CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES 3.1 Performance Of Work: The General Contractor shall supervise and complete its obligations under this Contract For Construction using its best skill and attention. The General Contractor shall furnish management, supervision, coordination, labor and services which (i) expeditiously, economically and properly completes its scope of the Work; (ii) comply with the requirements of this Contract For Construction; and, (iii) are perfonmed in a workmanlike manner and in accordance with the standards currently practiced by persons and entities perfonming or providing comparable management, supervision, labor and services on projects of similar size, complexity and cost to the Project. 3.1.1 The General Contractor shall not damage, endanger, compromise or destroy any part of the Project or the Site, including by way of example and not limitation, work being performed by others on the Site, monuments, stakes, bench marks and other survey points, utility services, and existing features or structures on the Site. Should the General Contractor damage, compromise or destroy any part of the Project or the Site, the General Contractor shall be fully and exclusively responsible for and bear all costs associated therewith. Contract For Construction . Chapter 2 Builder's Required Services and General Temns and Cond~ions 3 3.1.2 All services rendered by the General Contractor for the Project shall be performed by or under the immediate supervision of persons possessing expertise in the discipline of the service being rendered. 3.1.3 The General Contractor shall, in the course of providing its scope of the Work cooperate and communicate with the Owner and all other persons or entities as required for satisfactory completion of the Project. 3.1.4 The General Contractor understands and acknowledges that the Work referred to in this Contract For Construction may be only part of the Project and that the Project may include the construction of other structures or other construction activities on the same Site. The General Contractor shall conduct all its activities so as not to interfere with the construction of, or operations within or from, other structures on the Site. 3.2 Compliance With Governmental Requirements: The General Contractor shall (i) comply with all applicable laws, statutes, building codes, rules, regulations and lawful orders of all governmental, publiC and quasi-public authorities and agencies; (ii) prepare and file documents required to obtain and obtain all necessary approvals and permits, including building permit(s), of all governmental authorities having jurisdiction; and, (iii) provide all notices required of it by governmental authorities relating to the Project. 3.3 Safety: Safety shall be a prime concern of the General Contractor at all times. The General Contractor shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures for coordinating and constructing its scope of the Work, including Site safety and safety precautions and programs. 3.4 Concurrent Records: For any period in which it is engaged in activities on the Site, the General Contractor shall, concurrently with its performance, maintain detailed records of activities on the Site. 3.5 As-Built Drawings: The General Contractor shall maintain at the Site one copy of all drawings, specifications, addenda, approved shop drawings, change order(s), submittals, and other modifications in good order and accurately marked depicting all changes as they occur during construction. The as-built drawings shall be available at all times to the Owner, the Professional(s), and the Owner's consultants, including quality control and testing agency personnel. The drawings shall be neatly and clearly marked in color during construction to record all variations made during construction, and the General Contractor shall include such supplementary notes and details necessary to clearly and accurately represent as-built construction. 3.6 Bribes And Kick-Backs: The General Contractor shall not by any means: (i) induce any person or entity employed in the construction of the Project to give up any part of the compensation to which that person or entity is entitled; Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condftions 4 (ii) confer on any governmental, public or quasi-public official having any authority or influence over the Project, any payment, loan, subscription, advance, deposit of money, services or anything of value, present or promised; (iii) offer nor accept any bribes or kick-backs in connection with the Project from or to any individual or entity, including any of its trade contractors, subcontractors, consultants, suppliers or manufacturers of Project goods and materials; or, (iv) without the express written permission of the Owner, call for or by exclusion require or recommend the use of any subcontractor, consultant, product, material, equipment, system, process or procedure in which the General Contractor has a direct or indirect proprietary or other pecuniary interest. 3.7 Quality Control And Testing: Unless otherwise provided in this Contract For Construction, the Owner shall select the quality control and testing agencies and pay for the cost of specified measures and tests required by the Construction Documents. The General Contractor shall be responsible for the coordination of all tests and inspections and shall arrange for tests and inspections to be conducted as necessary to avoid any interference with the progress of Work. No claims for extension of time or extra costs will be allowed on account of any testing, retesting, inspection, re-inspection, or rejection of Work when defective or deficient Work is found. 3.8 Incident Reporting: The General Contractor shall immediately notify the Owner and Professional(s), both orally and in writing, of the nature and details of all incidents which may adversely affect the quality or progress of the Work including, but not limited to, labor disputes, accidents, delays, damages to Work and other significant occurrences. 3.9 Hazardous Substances: The General Contractor shall immediately notify the Owner and the Professional(s), both orally and in writing, of the presence and location of any physical evidence of, or information regarding, environmental contamination on the Site (including but not limited to Hazardous Substances and petroleum releases) of which it becomes, or reasonably should have become, aware. If the General Contractor encounters environmental contamination (including but not limited to Hazardous Substances and petroleum releases), the General Contractor shall (i) immediately stop perfonmance of Work or that portion of the Work affected by or affecting such contamination; (ii) secure the contaminated area against intrusion; (iii) not disturb or remove the contamination; (iv) not proceed, or allow any subcontractor or supplier to proceed, with any Work or other activities in the area affected by such contamination until directed to do so by the Owner; and, (v) take any other steps necessary to protect life and health. 3.10 Owner's Use of and Access to the Site: The General Contractor shall perfonm its scope of the Work so as not to interrupt any operations of the Owner on the Site. 3.10.1 The General Contractor understands and acknowledges that the Owner may need access to or use of certain areas of the Site or Work prior to the General Contractor's achievement of Substantial Completion, and that such occupancy, access or use shall not constitute the Owner's acceptance of any Work. 3.10.2 The General Contractor shall not enter any Owner-occupied area of the Site unless first approved and scheduled by the Owner. Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condttions 5 3.10.3 The General Contractor shall afford the Owner's own forces, and other consultants, trade contractors, subcontractors and suppliers, access to the Site for perfonmance of their activities, and shall connect and coordinate its construction and operations with theirs as required by the Construction Documents. 3.11 Site Control And Cleanup: During construction, the General Contractor shall maintain 'good order on the Site and shall remove from the Site all construction debris at least every seventy-two (72) hours. Upon completion of the Work, the General Contractor shall, within five (5) calendar days, remove from the Site all construction materials and waste, rubbish, other debris, equipment, sheds and similar items related to, produced by or required for its scope of the Work. No final payment will be made to the General Contractor until satisfactory final clean-up is accomplished and inspection is made by the Owner and the Professional(s), accompanied by the General Contractor. In the event that the Owner has to engage in clean-up activities at any time during the construction period, the full cost of the clean-up shall be deducted from moneys due the General Contractor, and the General Contractor shall promptly pay any deficiency amount to Owner. 3.12 Advertising Prohibition: The General Contractor shall not, without the express written permission of the Owner, use the fact that the General Contractor is providing goods or services to the Owner or for the Project in any advertising or promotional material, including Site signage. 3.13 Commissioning: The General Contractor shall, through the Owner's Representative, schedule and coordinate all equipment and systems start-ups and Project commissioning within its scope of the Work. 3.13.1 The General Contractor shall provide the Owner with operation and maintenance manuals and other operational documentation not less than fourteen (14) calendar days after the established date of Substantial Completion. 3.13.2 The General Contractor shall meet with the Owner not less than fourteen (14) calendar days after the established date of Substantial Completion to familiarize and train them with respect to maintenance and use of the Project. The appropriate Professional(s) will attend and assist with such familiarization and training. 3.14 Permits: The City shall pay for all permits required by the City, ACHD, Ada County, CDH, Plurnbing, Electrical, and State of Idaho. 3.14.1 The Contractor shall obtain and pay for all required licenses and perrnits and shall pay all fees and charges for connections to outside services and for the use of municipal or private property for storage of materials, parking, temporary obstructions, enclosures, opening and patching of streets, etc., off of the property of the City arising from the construction and cornpletion of the work. Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Cond~ions 6 ARTICLE 4 GENERAL CONTRACTOR'S PERSONNEL, SUBCONTRACTORS, AND SUPPLIERS 4.1 Project Staffing: The General Contractor shall staff the Project with qualified and designated individuals and entities responsible for its obligations and performance. 4.1.1 The General Contractor shall name a representative (the "Builder's Representative") to serve as its primary communication contact with the Owner and the Professional(s). 4.1.2 The General Contractor shall employ persons skilled in the tasks assigned to them and shall contract with subcontractors and suppliers skilled in the tasks assigned to them and capable of working harmoniously with all trades, crafts and other individuals on the Project. The General Contractor shall use its best efforts to minimize the likelihood of any strike, work stoppage or other labor disturbance. 4.1.3 The General Contractor shall immediately remove from the Site, for the duration of the Project, any person making an inappropriate racial, sexual or ethnic comment, statement or gesture toward any other individual. 4.1.4 The General Contractor shall immediately remove from the Site, for the duration of the Project, any person who is incompetent, careless, or not working in hanmony. 4.2 Subcontractor I Supplier Contracts: The General Contractor shall enter into written contracts with its subcontractors and suppliers, if any, and those written contracts shall be consistent with this Contract For Construction. It is the intent of the Owner and the General Contractor that the obligations of the General Contractor's subcontractors and suppliers, if any, inure to the benefit of the Owner and the General Contractor, and that the Owner be a third-party beneficiary of the General Contractor's agreements with its subcontractors and suppliers. 4.2.1 The General Contractor shall make available to each subcontractor and supplier, if any, prior to the execution of written contracts with any of them, a copy of the pertinent portions of this Contract For Construction, including those portions of the Construction Documents to which the subcontractor, or supplier will be bound, and shall require that each subcontractor and supplier shall similarly make copies of applicable parts of such documents available to its respective subcontractors and suppliers. 4.2.2 The General Contractor shall engage each of its, subcontractors and suppliers with written contracts which preserve and protect the rights of the Owner and include the acknowledgment and agreement of each subcontractor or supplier that the Owner is a third-party beneficiary of the contract. The General Contractor's agreements with its subcontractors and suppliers shall require that in the event of default under, or termination of, this Contract For Construction, and upon request of the Owner, the General Contractor's subcontractors and suppliers will perfonm services for the Owner. Contract For Construction. Chapter 2 Builder's Required Services and General Terms and Cond~ions 7 4.2.3 The General Contractor shall include in its agreements with its subcontractors and supplier(s) a provision which contains the acknowledgment and agreement of the subcontractor or supplier that it has received and reviewed the applicable tenms, conditions and requirements of this Contract For Construction that are included by reference in its written contract with the General Contractor, and that it will abide by those tenms, conditions and requirements. 4.3 Resolution Of Trade Disputes: The General Contractor shall promptly resolve claims, complaints, labor disputes and disputes over assignment of work tasks by and among its subcontractors and suppliers. ARTICLE 5 GOODS, PRODUCTS AND MATERIALS 5.1 Quality Of Materials: The General Contractor shall furnish goods, products, materials, equipment and systems which (i) comply with this Contract For Construction; (ii) conform to applicable specifications, descriptions, instructions, drawings, data and samples; (iii) are new (unless otherwise specified or permitted) and without apparent damage; (iv) are of quality, strength, durability, capacity or appearance equal to or higher than that required by the Construction Documents; (v) are merchantable; (vi) are free from defects; and, (vii) beyond and in addition to those required by manufacturers' or suppliers' specifications where such additional items are required by the Construction Documents. 5.2 Installation And Use Of Materials: All goods, products, materials, equipment and systems named or described in the Construction Documents, and all others furnished as equal thereto shall, unless specifically stated otherwise, be furnished, used, installed, employed and protected in strict compliance with the specifications, recommendations and instructions of the manufacturer or supplier, unless such specifications, recommendations or instructions deviate from accepted construction practices, or the Construction Documents, in which case the General Contractor shall so inform the Owner and the appropriate Professional and shall proceed as directed by that Professional, unless otherwise directed by the Owner. The General Contractor shall coordinate and interrelate all trade contracts, and subcontracts to ensure compatibility of goods, products, materials, equipment and systems, and validity of all warranties and guarantees, required by the Construction Documents for its scope of the Work. Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 8 5.3 Unsuitable Materials: With respect to goods, products, materials, equipment or systems which the General Contractor knows or should have known are unsuitable or unavailable at the time of bid submission, no claim with respect to the unsuitability or unavailability of such goods, products, materials, equipment or systems will be entertained unless such a claim, stating proposed alternatives, was made in writing and submitted prior to or with the original bid. Approval by the Owner and a Professional of substitute goods, products, materials, equipment or systems does not mean or imply final acceptance by the Owner and that Professional if such items should be defective or not as previously represented. Should the General Contractor furnish any approved goods, products, materials, equipment or systems different from or in addition to those required by the Construction Documents which require supplemental materials or installation procedures different from or in addition to those required for specified items, the General Contractor shall provide such at no increase in the Construction Contract Price. 5.4 Security For Work In Progress: The General Contractor shall provide its own security for its Work in progress and for the goods, products, materials, equipment. systems, construction machinery, tools, devices and other items required, used or to be used for its scope of the Work. ARTICLE 6 DOCUMENTS AND INFORMATION 6.1 Information From Owner: The Owner shall provide the General Contractor with information reasonably necessary to assist the General Contractor in performing its services including, if applicable: (i) the Site survey; (ii) all written and tangible material in its possession concerning conditions below ground at the Site; (iii) the Owner's pertinent Project dates and key milestone dates. (See Appendix B) 6.2 Resolution Of Questions: The General Contractor shall resolve all questions concerning the Construction Documents with the Professional who has prepared the documents. 6.3 Processing Of Documents: When requested by the Owner, the General Contractor shall process documents, and provide other reasonably required drawings, services and certifications, necessary to enable the Owner to (i) obtain financing or insurance for the Project; (ii) obtain approvals, permits and Certificates of Occupancy for the Project not otherwise required to be obtained by General Contractor; and, (iii) represent that the Work complies with requirements of governmental agencies having jurisdiction over the Project. 6.4 Sufficiency Of Owner Information: The furnishing of infonmation by the Owner to the General Contractor shall not relieve the General Contractor of responsibilities contained elsewhere in this Contract For Construction to evaluate information and documents provided by the Owner and the General Contractor shall timely notify the Owner in Contract For Construction . Chapter 2 Builder's Required Services and General Temns and Cond~ions 9 writing of any additional infonmation needed or services required from the Owner in order for the General Contractor to perform its scope of the Work. ARTICLE 7 SUBMITTALS 7.1 Submittal Schedule: The General Contractor shall timely prepare and transmit to the designated Professional a schedule for provision of all anticipated submittals. The schedule shall (i) include submittals required by the specifications; (ii) be in a format acceptable to the Professional; and, (iii) set forth specific dates for submission of the listed submittals. The General Contractor shall review and approve all submittals prior to submission to a Professional. Failure of the General Contractor to review and approve any submittal prior to submission to the Professional will warrant a return of the submittal without review. 7.2 Processing Of Submittals: The General Contractor shall in timely fashion review, approve if appropriate and forward submittals to the Professional(s) for review and approval along with such detail and information as the Professional requires. No part of the Work dealt with by a submittal shall be fabricated or performed by the General Contractor until such approval has been given. 7.2.1 A Professional is responsible to the Owner, but not to the General Contractor, to verify that the submittals conform to the design concept and functional requirements of the plans and specifications, that the detailed design portrayed in shop drawings and proposed equipment and materials shown in submittals are of the quality specified and will function properly, and that the submittals comply with the Contract For Construction. 7.2.2 The General Contractor shall perform all Work in accordance with approved submittals. Approval of the General Contractor's submittals by a Professional shall not relieve the General Contractor from complying with this Contract For Construction, including all plans and specifications, except as changed by Change Order. ARTICLE 8 GENERAL CONTRACTOR'S INSPECTION OF AND CORRECTION OF DEFECTIVE OR INCOMPLETE WORK 8.1 Rejection And Correction Of Work In Progress: During the course of Project, the General Contractor shall inspect and promptly reject any Work (i) which does not confonm to the Construction Documents; or (ii) which does not comply with any applicable law, statute, building code, rule or regulation of any governmental, public and quasi-public authorities and agencies having jurisdiction. 8.1.1 The General Contractor shall promptly correct or require the correction of all rejected Work, whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The General Contractor shall bear all costs of correcting such Work, including additional testing and Contract For Construction . Chapter 2 Builder's Required Services and General Temns and Condttions 10 inspections and compensation for all services and expenses necessitated by such correction. 8.1.2 The General Contractor shall bear the cost of correcting destroyed or damaged Work, whether completed or partially completed. of the Owner or other trade contractors or subcontractors caused by the General Contractor's correction or removal of rejected Work. 8.2 Covered Or Concealed Work: If a portion of its scope of the Work has been covered, the General Contractor shall, if notified to do so by the Owner or a Professional, uncover the designated portion for observation and then replace it. 8.2.1 If the designated portion of the Work was covered contrary to the request of the Owner or the Professional, or to requirements specifically expressed in the Construction Documents, the General Contractor shall receive no additional compensation for the costs of uncovering and replacement or modification of the Construction Schedule. 8.2.2 If the designated portion of the Work was covered prior to a specific request by the Owner or the Professional that it remain uncovered, the General Contractor shall receive additional compensation for the costs of uncovering and replacement or modification of the Construction Schedule(s) only if the designated portion of the Work was in conformance with the Construction Documents. ARTICLE 9 CHANGE ORDERS AND CHANGES TO THE WORK 9.1 Change Order Requests: Any party to the construction process may request changes to the Work, compensation or applicable schedules. 9.1.1 With respect to such requests for changes by the General Contractor, the General Contractor shall prepare and submit a change order request to the designated Professional. 9.1.2 With respect to requests for changes by parties other than the General Contractor, the General Contractor shall promptly review and respond to change order requests submitted by a Professional. 9.1.3 When requested to do so, the General Contractor shall prepare and submit to a Professional drawings, specifications or other data in support of a change order request. 9.1.4 Each change order shall include time and monetary impacts of the change, whether the change order is considered alone or with all other changes in the course of the project. 9.2 Owner-Directed Changes: The Owner may unilaterally direct the General Contractor to implement changes in the Work so long as the Work the Owner is requiring is not Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Cond~ions 11 outside of the general scope of this Contract For Construction and the General Contractor, upon written direction from the Owner, shall proceed with such change. 9.2.1 A Professional, without the Owner's prior approval, may authorize or direct the General Contractor to make minor changes in the Work which are consistent with the intent of the Construction Documents and which do not involve a change in Project cost, time for construction, Project scope, or approved design elements, and the General Contractor shall promptly carry out such changes. Any such minor changes shall be implemented by written field order and executed by the General Contractor. 9.3 Administration Of Changes: A Professional will administer and manage all change order requests and change orders and will prepare required drawings, specifications and other supporting data as necessary in connection with minor changes, change order requests and change orders. 9.4 Compensation For Changes: With respect to all change order requests involving credit to the Owner or additional compensation to the General Contractor, the General Contractor shall (i) obtain from subcontractors and suppliers the best possible price quotations; (ii) review such quotations to ascertain whether they are reasonable; (iii) prepare an itemized accounting together with appropriate supporting data, including reasonable expenditures by, and savings to, those performing the scope of the Work Involved in the proposed change; and, (iv) provide a reasonable price quotation to the designated Professional. 9.4.1 If price quotations for change order requests are determined by the Professional to be unreasonable, the General Contractor shall, in writing, justify said quotations or provide additional back-up materials. If after review of the additional information the Professional determines the quotation is unreasonable, the Owner may require the General Contractor to perform the subject Work on a tirne and material basis. 9.4.2 The General Contractor shall be allowed no additional compensation for any costs, fees or expenses incurred in performing services already required by this Contract for Construction, and shall not be entitled to additional reimbursement for its home office, other non-job site or indirect overhead expenses, or tools necessary for construction. 9.4.3 It is the responsibility of the General Contractor to review and approve all pricing of additional work required of its subcontractors and suppliers. 9.5 Performance Of Changes: Upon receipt of an field order or change order the General Contractor shall proceed to promptly perform the change in the Work. All changes in the Work shall be performed under applicable conditions of the Construction Documents. 9.6 Disputes Regarding Changes: If the General Contractor disputes a decision (i) that a change has occurred; (ii) whether a change in the work will result in adjustment of its compensation or applicable schedules; or (iii) the amount of any adjustment of compensation or applicable schedules, the General Contractor shall nevertheless carry out the change if directed so to do by Owner. The General Contractor will not prejudice any claim that it may have with respect to that change so long as the General Contractor Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Cond~ions 12 notifies the Owner in writing that it is disputing a decision and states the reasons for its dispute. Failure, however, to notify the Owner in writing shall constitute the General Contractor's waiver of any claim resulting from the change. 9.6.1 In the event a change order request is approved by the Owner in the absence of an agreement with the General Contractor as to cost, time, or both, the appropriate Professional will (i) receive and maintain all documentation pertaining thereto required of the General Contractor; (ii) examine such documentation on the Owner's behalf; (iii) take such other action as may be reasonably necessary or as the Owner may request; and, (iv) make a written recommendation to the Owner concerning any appropriate adjustment in the construction cost or time. 9.7 Necessity For Signed Writing: No act, omission or course of dealing shall alter the requirement that change orders shall be in writing and signed by the Owner, and that change orders are the exclusive method for effecting any adjustment to the General Contractor's compensation or applicable schedules. The General Contractor understands and agrees that neither its compensation nor applicable schedules can be changed by implication, oral agreement, or unwritten change order. ARTICLE 10 FINANCIAL CLAIMS AND LIENS 10.1 Notification Regarding Liens: The General Contractor shall immediately notify the Owner and Professional(s), both orally and in writing, of the nature and details of any mechanics' liens, construction liens, builder's trust fund claims, or claims of any type made by anyone against the Owner, the Professional(s), the General Contractor or any subcontractor or supplier of any of them or against the Project whether or not such claims arise from the Work. 10.2 Discharge Of Liens: The General Contractor shall take all action necessary to obtain the prompt discharge of any liens or claims filed against the Project. If any lien or claim filed against the Project is not discharged and released by the claimant, the General Contractor shall, within a reasonable period of time, but in no event less than fourteen (14) calendar days after request and at its own cost, promptly obtain discharge and release of such lien or claim by filing the appropriate bond. If the General Contractor fails to have any such lien or claim discharged and released, or fails to file the appropriate bond, the Owner shall have the right to pay all sums necessary to obtain such a discharge and release, and the General Contractor shall bear all expenses incurred by the Owner in so doing. ARTICLE 11 OWNER'S CONSUL TANT(S),PROFESSIONAL(S) AND CONSTRUCTION ADMINISTRATION 11.1 Owner's Designated Professional Representative: Unless otherwise directed by the Owner, the designated Professional shall act as the Owner's representative from the effective date of this Contract For Construction until thirty (30) days after the date the General Contractor achieves Substantial Completion. Contract For Construction. Chapter 2 Builder's Required Services and General Terms and Cond~ions 13 11.2 The Professional so designated will (i) be the Owner's design representative during performance of the Work; (ii) consult with and advise the Owner on all design and technical matters; (iii) be the Owner's representative in dealing with the General Contractor on all such matters; and, (iv) administer this Contract For Construction. 11.2.1 Unless otherwise directed by the Owner, the Owner and the General Contractor shall communicate with each other in the first instance through the designated Professional. The Owner's instructions to the General Contractor will be issued through the designated Professional. 11.2.2 The designated Professional will act as initial interpreter of the requirements of this Contract For Construction and as the Owner's advisor on claims. 11.3 Professional Site Visits: The Professional(s) will visit the Site with sufficient frequency for general familiarization with the progress and quality of the Work and to observe the Work to detenmine compliance of the Work with (i) this Contract For Construction, including approved shop drawings and other submittals; (ii) the Construction Schedule; and, (iii) applicable laws, statutes, building codes, rules or regulations of all governmental, public and quasi-public authorities and agencies having or asserting jurisdiction over the Project. 11.4 Professional Rejection Of Work: The Professional(s) may disapprove or reject Work which does not comply with (i) this Contract For Construction including approved shop drawings and other submittals; or (ii) applicable laws, statutes, building codes, rules or regulations of any governmental, publiC and quasi-public authorities and agencies having or asserting jurisdiction over the Project. 11.5 Professional Evaluations: The Professional(s) will review and evaluate the results of all inspections, tests and written reports required by this Contract For Construction and by any governmental entity having or asserting jurisdiction over the Project. The Professional(s) will take appropriate action on test results, including acceptance, rejection, requiring additional testing or corrective work, or such other action deemed appropriate by the Professional(s). The Professional(s) will promptly reject Work which does not confonm to and comply with testing requirements. 11.5.1 The Professional(s) may require inspection or testing of any Work in addition to that required by this Contract For Construction or governmental entities having or asserting jurisdiction over the Project when such additional inspections and testing is necessary or advisable, whether or not such Work is then fabricated, installed or completed. The Professional(s) will take appropriate action on all such special testing and inspection reports, including acceptance, rejection, requiring additional testing or corrective work, or such other action deemed appropriate by the Professional(s). 11.6 Professional Submittal Activities: The Professional(s) will review and approve, reject or take other appropriate action on submittals such as shop drawings, product data, samples and proposed equal materials or equipment and requested substitutions within not more than fourteen (14) calendar days, and will not approve any submittals unless such submittals conform with (i) the Project design concept; (ii) this Contract For Construction; and, (iii) the Owner's budgeted Total Project Construction Cost. A Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 14 Professional's review of submittals shall not constitute final acceptance of materials or equipment furnished or installed if such materials or equipment should be defective or not as represented by approved submittals or as otherwise required by the Construction Documents. The General Contractor remains responsible for details and accuracy, for confirming and correlating all quantities and dimensions, for selecting fabrication processes, for techniques of assembly, and for performing its scope of the Work. 11.7 Professional Interpretations: A Professional will, when requested to do so in writing by the General Contractor, promptly and so as to cause no unnecessary delay, render written or graphic interpretations and decisions necessary for the proper execution of the Work. A Professional's interpretations and decisions relating to artistic effect shall be final if not inconsistent with this Contract For Construction. 11.8 Professional Change Order Activities: The Professional(s) will consult with and advise the Owner concerning, and will administer and manage, all change order requests and change orders on behalf of the Owner. 11.9 Professional Pay Application Activities: The appropriate Professional will review applications for payment, including such accompanying data, information and schedules as the Professional requires, to detenmine the amounts due to the General Contractor and shall authorize payment by the Owner to the General Contractor in writing. After the General Contractor's scope of the Work is determined to be finally complete and the Professional detenmines that the General Contractor has completed its scope of the Work, the Professional will determine whether the General Contractor is entitled to final payment, and if so will so certify to the Owner in writing. 11.10 Professional Relationship To General Contractor: The duties, obligations and responsibilities of the General Contractor under this Contract For Construction shall not be changed, abridged, altered, discharged, released, or satisfied by any duty, obligation or responsibility of any Professional. The General Contractor shall not be a third-party beneficiary of any agreement by and between the Owner and any Professional. The duties of the General Contractor to the Owner shall be independent of, and shall not be diminished by, any duties or obligations of any Professional to the Owner. ARTICLE 12 INSPECTION, CORRECTION OF WORK, AND PROJECT CLOSE OUT 12.1 Substantial Completion: Substantial Completion of the General Contractor's Work shall be deemed to have occurred on the later of the dates that the General Contractor's Work passes a Substantial Completion inspection, and the General Contractor has produced required Substantial Completion documentation and items. 12.1.1 When the General Contractor believes that its Work is substantially complete, it shall notify the Owner and the appropriate Professional that its Work is ready for a Substantial Completion observation. 12.1.2 At or prior to the substantial completion observation, the General Contractor will prepare and furnish to the Professional a Declaration of Substantial Completion, which at a minimum must: Contract For Construction . Chapter 2 Builder's Required Services and General Temns and Condttions 15 (i) contain a blank for entry of the date of Substantial Completion, which date will fix the commencement date of warranties and guaranties and allocate between the Owner and the General Contractor responsibility for security, utilities, damage to the Work and insurance; (ii) include a list of items to be completed or corrected and state the time within which the General Contractor will complete or correct listed items; and, (iii) contain signature lines for the Owner, the General Contractor and the Professional. 12.1.3 Upon receipt of notification from the General Contractor the appropriate Professional will coordinate with the Owner and the General Contractor a date for observing the Work to determine whether the Work is substantially complete. 12.1.4 At observations to detenmine whether the General Contractor's Work is substantially complete, the Professional will: (i) observe the General Contractor's Work; (ii) list additional items to be completed or corrected; and, (iii) determine, in consultation with the Owner, whether Substantial Completion of the General Contractor's Work has occurred. 12.1.5 If the General Contractor's Work is determined not to be substantially complete, the General Contractor shall continue to prosecute the Work until the Work is substantially complete and the observation process shall be repeated at no additional cost to the Owner until the Work is determined to be substantially complete. 12.1.6 On or prior to the required date of Substantial Completion, the General Contractor shall deliver to the appropriate Professional keys, permits, and other necessary and customary documents and items pre-requisite for the Owner's use of the Work for its intended purpose. The Professional will obtain and review Substantial Completion documentation and items, and will inform the General Contractor of any deficiencies. 12.1.7 When the Owner, the General Contractor and the appropriate Professional agree that the General Contractor's Work has passed the Substantial Completion observation and the General Contractor has produced the required Substantial Completion documentation and items, they shall each sign the Declaration of Substantial Completion declaring the Work substantially complete and establishing the actual date of Substantial Completion. The Declaration of Substantial Completion shall also include a list of and time line for the completion of Work needing completion and correction. 12.2 Final Completion: Final Completion of the General Contractor's Work shall be deemed to have occurred on the later of the dates that the General Contractor's Work passes a Contract For Construction. Chapter 2 Builder's Required Services and General Terms and Condttions 16 Final Completion observation and that the General Contractor has produced all required Final Completion close-out documentation and items. Final Completion shall not be deemed to have occurred and no final payment shall be due the General Contractor until the General Contractor has passed the Final Completion inspection and the General Contractor has produced all required Final Completion close-out documentation and items. 12.2.1 When the General Contractor believes its scope of the Work is finally complete, the General Contractor shall notify the Owner and the appropriate Professional that the Work is ready for Final Completion inspection. 12.2.2 Upon receipt of such notification from the General Contractor, the Professional will coordinate with the Owner and the General Contractor a date for observation of the Work to determine whether the Work is finally complete. 12.2.3 At the Final Completion observation to determine whether the General Contractor's Work is finally complete, the Professional will: (i) observe the General Contractor's Work; (ii) detenmine whether the General Contractor has satisfactorily completed or corrected all items on the list included with the Declaration of Substantial Completion; (iii) detenmine whether the General Contractor's Work complies with (a) this Contract For Construction; (b) applicable laws, statutes, building codes, rules or regulations of all governmental, public and quasi-public authorities and agencies having jurisdiction over the Project; and, (c) applicable installation and workmanship standards; (iv) detenmine whether required inspections and approvals by the official(s) having or asserting jurisdiction over the Project have been satisfactorily completed; and, (v) detenmine, in consultation with the Owner, whether the General Contractor's Work is finally complete. 12.2.4 If the General Contractor's Work is not finally complete, the General Contractor shall continue to prosecute the Work until the Work is finally complete and the process shall be repeated at no additional cost to the Owner until the Work is finally complete. 12.2.5 On or prior to the date of Final Completion, the General Contractor shall deliver to the appropriate Professional the following Final Completion close-out documentation and items: (i) all operating and instruction manuals not previously produced during commissioning and required maintenance stocks; (ii) two (2) sets of as-built drawings and markups (provided to the Contractor at the Owner's expense); Contract For Construction. Chapter 2 Builder's Required Services and General Terms and Condttions 17 (iii) certification and affidavit that all insurance required of the General Contractor beyond final payment, if any, is in effect and will not be canceled or allowed to expire without notice to the Owner; (iv) written consent of the surety(ies), if any, to final payment; (v) full, final and unconditional waivers of mechanics or construction liens, releases of builder's trust fund or similar claims, and release of security interests or encumbrances on the Project property from each contractor, subcontractor, supplier or other person or entity who has, or might have a claim against the Owner or the Owner's property; (vi) full, final and unconditional certification and affidavit that all of the General Contractor's obligations to contractors, subcontractors, suppliers and other third parties for payment for labor, materials or equipment related to the Project have been paid or otherwise satisfied; (vii) all written warranties and guarantees relating to the labor, goods, products, materials, equipment and systems incorporated into the General Contractor's scope of the Work, endorsed, countersigned, and assigned as necessary; (viii) affidavits, releases, bonds, waivers, permits and other documents necessary for final close-out of Work; (ix) a list of any item(s) due but unable to be delivered and the reason for non-delivery; and, (x) any other documents reasonably and customarily required or expressly required herein for full and final close-out of the General Contractor's Work. 12.2.6 The appropriate Professional will review and determine the sufficiency of all Final Completion close-out documentation and items required for Final Completion which are submitted by the General Contractor, and will immediately inform the General Contractor about any deficiencies and omissions. ARTICLE 13 GENERAL CONTRACTOR'S WARRANTIES AND GUARANTEES 13.1 One-Year Warranty: In addition to the warranties and guarantees set forth and elsewhere in this Contract For Construction, the General Contractor upon request by the Owner or the Professional shall promptly correct all failures or defects in its scope of the Work for a period of one (1) year after the actual date of Substantial Completion, or the date of acceptance by the Owner, whichever is later. 13.1.1 The General Contractor shall schedule, coordinate and participate walk-through inspection of the Work one (1) month prior to the expiration of the one-year Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condttions 18 correction period, and shall notify the Owner, the appropriate Professional(s), and any necessary subcontractors and suppliers of the date of, and request their participation in, the walk-through inspection. The purpose of the walk-through inspection will be to detenmine if there are defects or failures which require correction. 13.1.2 Should the General Contractor fail to promptly correct any failure or defect, the Owner may take whatever actions it deems necessary to remedy the failure or defect and the General Contractor shall promptly reimburse the Owner for any expenses or damages it incurs as a result of the General Contractor's failure to correct the failure or defect. 13.2 Express Warranties And Guarantees - General Contractor: In addition to the warranties and guarantees set forth elsewhere herein, the General Contractor expressly warrants and guarantees to the Owner: (i) that its scope of the Work complies with (i) the Construction Documents; and, (ii) all applicable laws, statutes, building codes, rules and regulations of all governmental, public and quasi-public authorities and agencies having jurisdiction over the Project. (ii) that all goods, products, materials, equipment and systems incorporated into its scope of the Work confonm to applicable specifications, descriptions, instructions, drawings, data and samples and shall be and are (i) new (unless otherwise specified or permitted) and without apparent damage or defect; (ii) of quality equal to or higher than that required by the Construction Documents; and, (iii) merchantable. (iii) that all management, supervision, labor and services required for its scope of the Work shall comply with this Contract For Construction and shall be and are performed in a workmanlike manner. 13.3 Express Warranties And Guarantees - Subcontractors And Suppliers: The General Contractor shall require that all of its subcontractors and suppliers provide written warranties, guarantees and other undertakings to the Owner and the General Contractor in a fonm identical to the warranties, guarantees and other undertakings set forth in this Contract For Construction, including the warranties, guarantees and undertakings set forth in this Article, which warranties, guarantees and undertakings shall run to the benefit of the Owner as well as the General Contractor. 13.4 Non-Exclusivity And Survival: The warranties and guarantees set forth in this Article, shall be in addition to all other warranties, express, implied or statutory, and shall survive the Owner's payment, acceptance, inspection of or failure to inspect the Work, and review of the Construction Documents. 13.5 Non-Limitation: Nothing contained in Paragraph 13.1, shall be construed to establish a period of limitation with respect to the General Contractor's obligations under this Contract For Construction. Paragraph 13.1 relates only to the General Contractor's specific obligations with respect to the Work, and has no relationship to the time within which the General Contractor's contractual obligations under this Contract For Construction may be enforced, nor to the time within which proceedings may be Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 19 commenced to establish the General Contractor's liability with respect to any contractual obligations pursuant to Paragraph 13.1 or contained elsewhere herein. 13.6 Commencement Of Obligations: Unless otherwise specified, all of the General Contractor's warranty and guaranty obligations, including the time period(s) for all written warranties and guarantees of specifically-designated equipment required by the Construction Documents, shall begin on the actual date of Substantial Completion or the date of acceptance by the Owner, whichever is later. ARTICLE 14 OWNER'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES 14.1 Owner's Representative: The Owner shall name the Owner's Representative to serve as the Owner's primary communication contact with the General Contractor. 14.2 Owner's General Duties 14.2.1 The Owner shall timely compensate the General Contractor in accordance with this Contract For Construction. 14.2.2 Unless otherwise required to be provided by the General Contractor in its scope of services, Owner shall secure and pay for all Project testing. 14.2.3 The Owner shall review documents prepared by the General Contractor in a timely manner and in accordance with schedule requirements. Review by the Owner shall be solely for the purpose of determining whether such documents are generally consistent with the Owner's intent. No review of such documents shall relieve the General Contractor of any of its responsibilities. 14.2.4 The Owner shall not have control or charge of construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the General Contractor, for any of the foregoing purposes, be deemed the agent of the Owner. 14.2.5 The Owner shall provide water, gas and electrical energy only as they exist at the Site prior to the start of construction. The General Contractor shall be responsible to provide and pay for connections to, extensions from and means of using these utilities. The Owner will pay utility company bills for water, gas and electrical energy which is required for the Project and which passes through the Owner's meters. However, the Owner shall not pay for (i) water which is wasted or expended without proper regard for ecological and conservation considerations; (ii) electrical energy expended in electric heating devices; or (iii) utilities for General Contractor's field offices. Acceptance by the General Contractor of the use of the Owner's water, gas and electrical energy constitutes a release from the General Contractor to the Owner of all claims and liability for any damages or losses which may be incurred by the Contract For Construction . Chapter 2 Builder's Required Services and General Temns and Cond~ions 20 General Contractor as a result of water, gas and electrical energy outages or voltage variations or surges. ARTICLE 15 GENERAL CONTRACTOR'S COMPENSATION 15.1 Unit Prices: If any portion of the Construction Contract Price is determined by the application of unit prices, the number of units contained in the General Contractor's Compensation Schedule is an estimate only, and the compensation to the General Contractor shall be determined by the actual number of units incorporated in, or required by, the Work. 15.2 Schedule Of Values: Within the number of calendar days specified in Paragraph 3.2 of Chapter 1, the General Contractor shall prepare and present to the Owner and the designated Professional, the General Contractor's schedule of values, apportioning the Construction Contract Price among the different elements of its scope of the Work for purposes of periodic and final payment. The General Contractor's schedule of values shall be presented in the format, and with such detail and supporting information, requested by the Professional or Owner. The General Contractor shall not imbalance or artificially inflate any element of its schedule of values. Upon the Professional and Owner's acceptance, the schedule of values shall be used to process and pay the General Contractor's payment requests. The schedule of values shall not be changed without written change order authorized by the Owner. 15.3 Invoicing Procedures: In accordance with the procedures and requirements set forth in this Article, the General Contractor shall invoice the Owner and the Owner shall pay the General Contractor the Construction Contract Price. 15.3.1 At least every thirty (30) calendar days after commencement of performance, but no more frequently than once a month, the General Contractor shall submit invoices to the Owner requesting payment in accordance with the schedule of values for labor and services rendered during the preceding thirty (30) calendar days. Each invoice shall contain such detail and be backed up with whatever supporting information the Owner or a Professional requests and shall at a minimum state: (i) the total Construction Contract Price; (ii) the amount due for properly provided labor, materials and equipment properly incorporated into the Project; and with respect to amounts invoiced for materials or equipment necessary for the Project and properly stored at the Site (or elsewhere if offsite storage is approved in writing by the Owner), be accompanied by written proof that the Owner has title to such materials or equipment and that such material and equipment is fully insured against loss or damage; (iii) generally itemize or show a breakdown of the various phases or parts of the General Contractor's scope of the Work as related to the Construction Contract Price; Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Cond~ions 21 (iv) state the value of the various phases or parts actually performed; (v) state previously invoiced amounts and credit payments made; (vi) state the total amount due, less any agreed retainage; and, (vii) have attached such lien waiver and other documentation verifying the General Contractor's payment to subcontractors and suppliers as the Owner or a Professional may request. 15.4 Payment Procedures: Payments shall be deemed timely if postmarked at least two (2) business days before the Payment Date defined in Paragraph 3.3 of Chapter 1 or any other payment due date stated in this Article 15. 15.5 Owner's Right To Refuse Payment: A Professional's approval of the General Contractor's invoice shall not preclude the Owner from exercising any of its remedies under this Contract For Construction. In the event of a dispute, payment shall be made on or before the Payment Date for amounts not in dispute, subject to any setoffs claimed by the Owner. The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or all of the amount previously paid to the General Contractor due to: (i) the General Contractor's failure to perfonm its scope of the Work in compliance with the requirements of this Contract For Construction or any other agreement between the parties; (ii) the General Contractor's failure to correctly and accurately represent the work performed in a payment request, or otherwise; (iii) the General Contractor's performance of its scope of the Work at a rate or in a manner that, in the Owner's opinion, is likely to result in the Project or any portion of the Project being inexcusably delayed; (iv) the General Contractor's failure to use funds previously paid the General Contractor by the Owner, to pay General Contractor's Project-related obligations including, but not limited to, the General Contractor's subcontractors, materialmen, and suppliers; (v) claims made, or likely to be made, against the Owner or its property; (vi) loss caused by the General Contractor or the General Contractor's subcontractors, or suppliers; and, (vii) the General Contractor's failure or refusal to perform any of its obligations to the Owner. 15.6 General Contractor's Right To Refuse Performance For Non-Payment: If within thirty (30) calendar days from the Payment Date the Owner, without cause or basis hereunder, fails to pay the General Contractor any amounts then due and payable to the General Contractor, the General Contractor shall have the right, in addition to all other Contract For Construction. Chapter 2 Builder's Required Services and General Terms and Condttions 22 rights and remedies contained herein, to cease performance of its scope of the Work until receipt of proper payment after first providing fourteen (14) calendar days written notice to the Owner of its intent to cease work. 15.7 Correction Of Past Payments: All prior payments, whether based on estimates or otherwise, may be corrected and adjusted in any subsequent payment and shall be corrected and adjusted in the final payment. In the event that any invoice contains a defect or impropriety which would prevent payment by the Payment Date, the Owner shall notify the General Contractor in writing of such defect or impropriety. Any disputed amounts detenmined by the Owner to be payable to the General Contractor shall be due thirty (30) calendar days from the date the dispute is resolved. 15.8 Interest On Outstanding Amounts Due: Interest shall accrue on amounts owed by the Owner to the General Contractor which remain unpaid thirty (30) calendar days following the date on which payment is due. Said interest shall accrue at the discounted ninety day U.S. Treasury bill rate as established by the Weekly Auction and as reported in The Wall Street Journal on the weekday following each such Weekly Auction. 15.8.1 No interest shall accrue when payment is delayed because of a dispute between the Owner and the General Contractor, or a dispute as to the accuracy or completeness of any request for payment received. This exception to the accrual of interest shall apply only to that portion of a delayed payment which is actually the subject of the dispute and shall apply only for the duration of such disagreement. Nor shall interest accrue on retainage which is withheld to assure performance of this Contract For Construction. 15.9 Invoice Warranties And Guarantees: The General Contractor expressly warrants and guarantees to the Owner that: (i) title to all goods, products, materials, equipment and systems covered by an invoice will pass to the Owner either by incorporation into its scope of the Work, or upon receipt of payment by the General Contractor, whichever occurs first; (ij) all goods, products, materials, equipment and systems covered by an invoice are free and clear of liens, claims, security interests or encumbrances; and, (iii) no goods, products, materials, equipment or systems covered by an invoice have been acquired by the General Contractor, or its subcontractors or suppliers, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the General Contractor, or its subcontractors or suppliers. 15.10 General Contractor's Signature: The signature of the General Contractor on any invoice constitutes the General Contractor's certification to the Owner that (i) the General Contractor's services listed in the invoice have progressed to the level indicated and have been perfonmed as required by this Contract For Construction; (ii) the General Contractor has paid its subcontractors and suppliers, if any, their proportional share of all previous payments received from the Owner; and, (iii) the amount requested is currently due and owing. Contract For Construction . Chapter 2 Builder's Required Services and General Temns and Conditions 23 15.11 Taxes: The General Contractor shall incorporate into the Construction Contract Price, and pay, all sales, consumer, use and similar taxes for goods, products, materials, equipment and systems incorporated into its scope of the Work which were legally required at the time of execution of this Contract For Construction, whether or not yet effective or merely scheduled to go into effect. The General Contractor shall secure, defend, protect, hold hanmless, and indemnify the Owner from and against any and all liability, loss, claims, demands, suits, costs, fees and expenses (including actual fees and expenses of attorneys, expert witnesses, and other consultants) relating to any taxes assessed or imposed upon, incurred by or asserted against the Owner by any taxing authority with respect to such taxes. The General Contractor shall cooperate with and assist the Owner in securing qualified refunds of any sales or use tax paid by the Owner or General Contractor on goods, products, materials, equipment or systems. Any refund secured shall be paid to the Owner. 15.12 Compensation Of General Contractor's Subcontractors And Suppliers: Upon receipt of payment from the Owner, the General Contractor shall pay each of its subcontractors and suppliers, if any, out of the amount received by the General Contractor on account of such subcontractor's or supplier's portion of the General Contractor's scope of the Work, the amount to which each entity is entitled, reflecting percentages actually retained from payments to the General Contractor on account of such entity's portion of the Work. The Owner shall have no obligation to pay, and shall not be responsible for payments to, the General Contractor's subcontractors or suppliers. However, the Owner reserves the right, but has no duty, to make payment jointly to the General Contractor and to any of its subcontractors or suppliers in the event that the Owner becomes aware that the General Contractor fails to payor unreasonably withholds payment from one or more of those entities. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future. 15.13 Final Payment: Prior to being entitled to receive final payment, and as a condition precedent thereto, the General Contractor must achieve Final Completion. The Owner shall, subject to its rights set forth above in this Article, make final payment of all sums due the General Contractor within fourteen (14) calendar days of a Professional's execution of a final approval for payment. ARTICLE 16 SCHEDULE REQUIREMENTS 16.1 Construction Schedule: The Construction Schedule shall include all pertinent dates and periods for timely completion of the Work. 16.1.1 Unless otherwise directed and approved by the Owner, the General Contractor shall prepare the Construction Schedule as a critical path schedule with separate divisions for each major portion of the Work or operations. The Construction Schedule shall include and properly coordinate dates for performance of all divisions of the Work, including completion of off-Site requirements and tasks, so that the Work can be completed in a timely and orderly fashion consistent with the required dates of Substantial Completion and Final Completion. Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condttions 24 16.1.2 The Construction Schedule shall include (i) the required Commencement Date, the required dates of Substantial Completion and Final Completion; (ii) any guideline and milestone dates required by the Owner; (iii) any applicable subcontractor and supplier subschedules; (iv) a submittal schedule which allows sufficient time for review of documents and submittals; (v) the complete sequence of construction by activity, with dates for beginning and completion of each element of construction; and, (vi) required decision dates. 16.1.3 By reviewing the Construction Schedule, the Owner and a Professional do not assume any of the General Contractor's responsibility that the Construction Schedule be coordinated or complete, or for timely and orderly completion by the required dates of Substantial Completion and Final Completion, and any milestone dates required by the Owner, and review and acceptance of the Construction Schedule by the Owner and a Professional shall not relieve the General Contractor of any of its responsibilities. 16.1.4 The General Contractor shall review, on a weekly basis, the actual status of its scope of the Work against the Construction Schedule. The General Contractor shall discuss the status of its scope of the Work weekly with the designated Professional, so that proper overall management may be provided. 16.1.5 The General Contractor shall periodically and in all instances when the General Contractor anticipates that performance of its scope of the Work will be delayed or in fact has been delayed, but not less frequently than monthly, prepare a revised Construction Schedule and show actual progress of the Work through the revision date, projected completion of each rernaining activity, activities modified since previous submittal, major changes in scope, and other identifiable changes. The updated Construction Schedule shall be accompanied by a narrative report which (i) states and explains any modifications of the critical path schedule, if any, including any changes in logic; (ii) defines problem areas and lists areas of anticipated delays; (iii) explains the anticipated impact the problems and delays will have on the schedule and scheduled activities; (iv) reports corrective action taken or proposed; and, (v) states how problems anticipated by projections shown on the schedule will be resolved to avoid delay in delivering the Work by the required dates of Substantial Completion and Final Completion, and other milestone dates required by the Owner, if any. 16.2 Delay In Performance: If at any time the General Contractor anticipates that performance of its scope of the Work will be delayed or in fact has been delayed, the General Contractor shall (i) immediately notify the designated Professional of the probable cause of and effect from the delay, and possible alternatives to minimize the delay; and, (ii) take all corrective actions reasonably necessary to deliver the Work by the required dates of Substantial Completion and Final Completion, and other milestone dates required by the Owner, if any. 16.3 Modifications To Time For Perfonmance: The General Contractor shall determine and promptly notify the Owner and the Professional(s) in writing when it believes adjustments to the required dates of Substantial Completion or Final Completion, or other milestone dates required by the Owner, if any, are necessary, but no such adjustments shall be effective unless approved in writing by the Owner and Professional(s). Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conddions 25 16.4 Early Completion: General Contractor may attempt to achieve Substantial Completion on or before the required date of Substantial Completion. However, such planned early completion shall be for the General Contractor's sole convenience and shall not create any additional General Contractor rights or Owner obligations under this Contract For Construction, nor shall it change the required dates of Substantial Completion or Final Completion. The Owner shall not pay the General Contractor any additional compensation for achieving Substantial Completion or Final Completion prior to the required dates nor will the Owner owe the General Contractor any compensation should the Owner cause the General Contractor not to achieve Substantial Completion earlier than the required date of Substantial Completion or Final Completion earlier than the required date of Final Completion. 16.5 Modification Dates Of Substantial Completion Or Final Completion: The General Contractor may propose modifications to the required dates of Substantial Completion or Final Completion. The Owner may, but is not required to, accept General Contractor's proposal. Modification(s) of the required dates of Substantial Completion or Final Completion shall be accomplished only by duly authorized and accepted change order(s) stating the new date(s) with specificity and reciting that all references in this Contract For Construction to the required dates of Substantial Completion or Final Completion shall thereafter refer to the date(s) as modified, and all rights and obligations, including the General Contractor's liability for actual damages, delay damages and liquidated damages, shall be determined in relation to the date(s) as modified. 16.6 Document Review: The General Contractor shall provide documents to the Owner and Professional(s) for review in accordance with schedule requirements and with sufficient lead time to allow the Owner and Professional(s) reasonable time for review. ARTICLE 17 LIQUIDATED DAMAGES 17.1 Time Is Of The Essence: The parties hereto mutually understand and agree that time is of the essence in the perfonmance of this Contract For Construction and that the Owner will incur damages if the General Contractor's scope of the Work is not completed on time. The General Contractor shall at all times carry out its duties and responsibilities as expeditiously as possible and shall begin, perform and complete its services so that (i) its scope of the Work progresses in accordance with the Construction Schedule; (ii) the Work is substantially completed by the required date of Substantial Completion; and, (iii) the Work is finally complete by the date of Final Completion. 17.2 Failure To Timely Achieve Completion: The parties hereto mutually understand and agree that the Owner will sustain substantial monetary and other damages in the event of a failure or delay by the General Contractor in the completion of its scope of the Work. If the General Contractor inexcusably fails to achieve Substantial Completion by the required date of Substantial Completion as established and previously set forth in this Contract For Construction, the General Contractor shall pay to the Owner, as liquidated Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Cond~ions 26 damages for delay and not as a penalty, the daily amount specified in Chapter 1 for each and every day after the required date of Substantial Completion until Substantial Completion. This liquidated damages provision shall apply and remain in full force and effect in the event that General Contractor is tenminated by Owner for default and shall apply until Substantial Completion has been achieved by any completing builder. If the General Contractor fails to achieve Final Completion by the required date of Final Completion as established and previously set forth in this Contract For Construction, the General Contractor shall pay to the Owner, as liquidated damages for delay and not as a penalty, fifteen (15%) per cent of the daily amount stated for failure to timely achieve Substantial Completion, even if not actually imposed, for each calendar day of unexcused delay in achieving Final Completion. 17.3 Compensable Delay: If the General Contractor is delayed at any tirne in the progress or performance of its scope of the Work by (i) acts or omissions of the Owner or Professional(s); (ii) major changes ordered by the Owner in the scope of Work; or (iii) any other cause which the Owner determines may justify the compensation of the General Contractor for the delay, the General Contractor's cornpensation shall be equitably adjusted to cover the General Contractor's actual and direct increased costs attributable to such delay. 17.4 Excusable Delay: If the General Contractor is delayed at any time in the progress or performance of its scope of the Work by (i) acts or omissions of the Owner or Professional(s); (ii) major changes ordered by the Owner in the scope of Work; (iii) fire; (iv) unusual delays in transportation; (v) adverse unusual weather conditions not reasonably anticipated by the General Contractor; (vi) unavoidable casualties; (vii) causes beyond the General Contractor's control which the Owner agrees in writing are justifiable; or (viii) any other cause which the Owner determines may justify the delay, the Construction Schedule shall be extended for a period equal to the length of such delay, but only if (i) such delay is not in any way caused by default or collusion on the part of the General Contractor or by any cause which the General Contractor could reasonably control or circumvent; (ii) the General Contractor would have otherwise been able to timely perform all of its obligations under this Contract For Construction but for such delay; and, (iii) immediately but not later than seven (7) calendar days after the beginning of any such delay the General Contractor gives notice of its delay claim to the Owner. 17.5 Owner's Right To Withhold Payment: When it reasonably believes (i) that Substantial Completion will be inexcusably delayed; or (ii) that the General Contractor will fail to achieve Final Completion by the date of Final Completion, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the General Contractor the daily amount specified for liquidated damages in this Article for each calendar day of the unexcused delay. 17.5.1 If and when the General Contractor overcomes the delay in timely achieving Substantial Completion or Final Completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the General Contractor those funds withheld, but no longer applicable, as liquidated damages; 17.5.2 Delay caused by labor disputes, picketing, employee boycotts, or the like which directly or indirectly involves employees of the General Contractor or its, Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 27 subcontractors, and suppliers is not the responsibility of the Owner and will result in time extensions only if agreed to in writing by the Owner at the time such events arise. ARTICLE 18 CONCEALED AND UNFORESEEN CONDITIONS 18.1 Notification Regarding Unusual Conditions: If (i) the General Contractor encounters concealed and unforeseen conditions of an unusual nature which affect the performance of its scope of the Work; or (ii) the conditions vary from those indicated by the Construction Documents; and, (iii) such conditions are not ordinarily found to exist or differ materially from those generally recognized as inherent in work of the character provided by the General Contractor, the General Contractor shall prornptly, but in no event later than three (3) calendar days after first observance of the conditions, notify the appropriate Professional(s) and the Owner before conditions are disturbed giving the Professional(s) or the Owner opportunity to observe the condition in its undisturbed state. 18.1.1 The conditions will be promptly investigated and, if they differ substantially and cause a material increase or decrease in the General Contractor's cost of, or time required for, performance of its scope of the Work, the General Contractor's compensation or time for perfonmance or both will be equitably adjusted. 18.1.2 All adjustments in compensation or extensions of time shall be by change order. Change order requests must be made within fourteen (14) calendar days from the date of observation of the changed conditions. 18.1.3 The General Contractor's failure to notify the Professional(s) and Owner as provided in this Article shall constitute a waiver of any claim arising out of or relating to such concealed or unknown condition. ARTICLE 19 GENERAL CONTRACTOR'S RECORDS 19.1 Preparation Of Records: The General Contractor shall, concurrently with performance of its services, prepare substantiating records regarding services rendered and goods furnished. 19.2 Retention Of Records: The General Contractor shall retain in its records copies of all plans, specifications, submittals, correspondence, minutes, memoranda, tape recordings, videos, accounting records, documents reflecting the unit price of construction and other writings or things which document the Project, its design, and its construction. The General Contractor shall maintain substantiating records for five (5) years after the date of Final Completion or for any longer period of time as may be required by law or good construction practice. If the General Contractor receives notification of a dispute or the commencement of litigation regarding the Project within this five (5) year period, the General Contractor shall continue to maintain all Project records until final resolution of the dispute or litigation. 19.3 Access To Records: Upon the request of the Owner, the General Contractor shall Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Cond~ions 28 make its records available during normal business hours to the Owner, its authorized representative(s) or to any state, federal or other regulatory authority. Any such authority, the Owner and its authorized representative(s) shall be entitled to inspect, examine, review and copy the General Contractor's records at the copying party's reasonable expense, within adequate work space at the General Contractor's facilities. Failure by the General Contractor to supply substantiating records shall be reason to exclude the related costs from amounts which might otherwise be payable by the Owner to the General Contractor pursuant to this Contract For Construction. ARTICLE 20 PROPRIETARY DOCUMENTS AND CONFIDENTIALITY 20.1 Nature And Use Of Information: All information, documents, and electronic media furnished by the Owner to the General Contractor (i) belong to the Owner; (ii) are proprietary and confidential; (iii) are furnished solely for use on the Owner's Project; (iv) shall be kept confidential by the General Contractor; and, (v) shall not be used by the General Contractor on any other project or in connection with any other person or entity, unless disclosure or use thereof in connection with any matter other than services rendered to the Owner hereunder is specifically authorized in writing by the Owner in advance. The Owner hereby grants to the General Contractor a limited license to use and reproduce applicable portions of the Construction Documents necessary for execution of its scope of the Work. All copies made under this license shall bear the statutory copyright notice, if any, shown on the documents. 20.2 Ownership Of Information: All information, documents, and electronic media prepared by or on behalf of the General Contractor for the Project are the sole property of the Owner free of any retention rights of the General Contractor. The General Contractor hereby grants to the Owner an unconditional right to use, for any purpose whatsoever, any infonmation, documents or electronic media prepared by or on behalf of the General Contractor for the Project, free of any copyright claims, trade secrets or other proprietary rights with respect to such documents. 20.3 Disclosure Of Information: The General Contractor shall not disclose any infonmation it receives from the Owner to any other person or entity except to the extent necessary to allow it to perfonm its duties under this Contract For Construction 20.4 Instructions To Employees: Because it is difficult to separate proprietary and confidential information from that which is not, the General Contractor shall instruct its employees and agents to regard all infonmation which is not in the public domain as infonmation which is proprietary and confidential. 20.5 Non-Publication: Submission or distribution of documents to meet official regulatory requirements or for other required purposes in connection with the Project is not to be construed as publication in derogation of the Owner's common law copyrights or other reserved rights. Contract For Construction . Chapter 2 Builder's Required Services and General Temns and Condttions 29 ARTICLE 21 GENERAL INSURANCE REQUIREMENTS 21.1 General Insurance Requirements: Unless otherwise required, each insurance policy: (i) shall be issued by an insurance carrier acceptable to the Owner; (ii) shall be kept in force throughout perfonmance of the General Contractor's services and for one (1) year after the end of such performance; (iii) shall be an occurrence policy; and, (iv) shall be evidenced by a certificate of insurance acceptable to the Owner which provides that the coverage evidenced thereby shall not be substantially modified or canceled without twenty-eight (28) calendar days' prior written notice to the Owner. 21.2 Certificates Of Insurance: Prior to performance of services on the Project, the General Contractor shall (i) have all required insurance coverage in effect; and, (ii) deliver to the Owner certificates of insurance for all its required minimum insurance coverage. The General Contractor shall (i) require that its subcontractors, and suppliers, if any, have similar coverage in effect, and prior to the performance of any services on the Project by the General Contractor's subcontractors and suppliers, if any, and (ii) shall ensure that all required insurance coverages of its subcontractors and suppliers, if any, is in effect. The Owner shall have no responsibility to verify compliance by the General Contractor or its subcontractors and suppliers. Upon the request of the Owner, the General Contractor shall deliver to the Owner certificates of insurance and/or copies of policies for all required insurance coverage. 21.3 Effect Of Insurance: Compliance with insurance requirements shall not relieve the General Contractor of any responsibility to indemnify the Owner for any liability to the Owner as specified in any other provision of this Contract For Construction and the Owner shall be entitled to pursue any remedy in law or equity if the General Contractor fails to comply with the contractual provisions of this Contract For Construction. Indemnity obligations specified elsewhere in this Contract For Construction shall not be negated or reduced by virtue of any insurance carrier's (i) denial of insurance coverage for the occurrence or event which is the subject matter of the claim; or (ii) refusal to defend any named insured. 21.4 Waiver Of Subrogation: The General Contractor hereby releases and discharges the Owner and the Owner's Related Parties of and from all liability to the General Contractor, and to anyone claiming by, through or under the General Contractor, by subrogation or otherwise, on account of any loss or damage to tools, machinery, equipment or other property, however caused. Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Cond~ions 30 ARTICLE 22 GENERAL BOND REQUIREMENTS 22.1 General Bond Requirements: If the General Contractor is required to provide perfonmance and payment bond(s), the penal sum of each bond shall be in an amount not less than the Construction Contract Price, as adjusted by any change order(s), and each bond shall: (i) be in a fonm approved by the Owner; (ij) incorporate by reference the terms of this Contract For Construction; (iii) be executed by a company certified by the Secretary of the United States Department of Treasury pursuant to the Act of July 30, 1947 (61 Stat. 646, as amended; 6 U.S.C. 6-13); (iv) be executed by a company licensed and authorized to do business in the state in which the Project is located; and, (v) be accompanied by a power of attorney certifying that the person(s) executing the bond have the authority to do so. 22.2 Delivery Of Bonds: The General Contractor shall deliver any required bond(s) and power(s) of attorney to the Owner prior to commencement of the Work. ARTICLE 23 OWNER'S RIGHT TO STOP WORK 23.1 Cease And Desist Order: If the General Contractor fails or refuses to perform or fails to correct defective Work as required, or persistently fails to carry out the Work in accordance with the Contract For Construction, the Owner may, by written notice, order the General Contractor to cease and desist in performing the Work until the cause for the order has been eliminated to the satisfaction of the Owner. Upon receipt of such instruction, the General Contractor shall immediately cease and desist as instructed by the Owner and shall not proceed further until the cause for the Owner's order has been corrected, no longer exists, or the Owner instructs that the Work may resume. 23.1.1 The General Contractor shall not be entitled to an adjustment in the time for performance or the Construction Contract Price under this clause since such stoppages are considered to be the fault of the General Contractor. 23.1.2 The right of the Owner to stop Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the General Contractor or other. 23.1.3 In the event the Owner issues instructions to cease and desist, and in the further event that the General Contractor fails and refuses with seven (7) calendar days to provide adequate assurance to the Owner that the cause of such instructions will be elirni.11ated or corrected, then the Owner shall have the right, but not the obligation, to carry out the Work or any portion of the Work with its own forces, or Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 31 with the forces of another builder, and the General Contractor shall be responsible for the cost of performing such work by the Owner. 23.1.4 The rights set forth herein are in addition to, and without prejudice to, any other rights or remedies the Owner may have against the General Contractor. ARTICLE 24 TERMINATION OR SUSPENSION OF CONTRACT FOR CONSTRUCTION 24.1 Termination For Cause By Owner: 24.1.1 The Owner may terminate this Contract For Construction for cause if the General Contractor materially breaches this Contract For Construction by: (i) refusing, failing or being unable to properly manage or perform on any Project; (ii) refusing, failing or being unable to supply the Project with sufficient numbers of workers, properly skilled workers, proper materials, or maintain applicable schedules; (iii) refusing, failing or being unable to make prompt payment to subcontractors or suppliers; (iv) disregarding laws, ordinances, rules, regulations or orders of any public authority or quasi-public authority having jurisdiction over the Project; (v) refusing, failing or being unable to substantially perform in accordance with the terms of this Contract For Construction as determined by the Owner, or as otherwise defined elsewhere herein, or (vi) refusing, failing or being unable to substantially perform in accordance with the tenms of any other agreement between the Owner and General Contractor. 24.1.2 Upon the occurrence of any of the events described in Paragraph 24.1.1, the Owner may give notice to the General Contractor setting forth the nature of the default and requesting cure within seven (7) calendar days from the date of notice. At any time thereafter, if the General Contractor fails to initiate the cure and continue to cure the default, the Owner, without prejudice to any other rights or remedies, may take any or all of the following actions: (i) complete all or any part of the General Contractor's scope of the Work, including supplying workers, material and equipment which the Owner deems expedient to complete the General Contractor's scope of the Work; Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 32 (ii) contract with other builder(s) to complete all or any part of the General Contractor's scope of the Work, including supplying workers, material and equipment which the Owner deems expedient to complete the General Contractor's work; (iii) take such other action as is necessary to correct such failure; and, (iv) give notice to the General Contractor of immediate tenmination. 24.1.3 If the Owner tenminates this Contract For Construction for cause, the Owner may also, without prejudice to any other rights and remedies: (i) take possession of all materials, tools, construction equipment and machinery on the Site owned or leased by the General Contractor; (ii) directly pay the General Contractor's subcontractors and suppliers, if any, compensation due to them from the General Contractor; (iii) finish the General Contractor's scope of the Work by whatever method the Owner may deem expedient; and, (iv) require the General Contractor to assign the General Contractor's right, title and interest in General Contractor's subcontracts or orders to the Owner. 24.1.4 If the Owner terminates this Contract For Construction for cause, and the Owner takes possession of all materials, tools, construction equipment and machinery on the Site owned or leased by the General Contractor, the General Contractor's compensation shall be increased by fair payment, either by purchase or rental at the election of the Owner, for any materials, tools, construction equipment and machinery items retained, subject to the Owner's right to recover from the General Contractor its damages resulting from the termination. 24.1.5 If the Owner terminates this Contract For Construction for cause, and it is subsequently determined by a court of competent jurisdiction that such tenmination was without cause, then in such event, said termination shall be deemed a termination for convenience as set forth in Paragraph 24.3. 24.2 Termination For Cause By General Contractor: 24.2.1 The General Contractor may tenminate this Contract For Construction for cause if the Owner materially breaches this Contract For Construction by: (i) refusing, failing or being unable to make prompt payment to the General Contractor without just cause; (ii) disregarding laws, ordinances, rules, regulations or orders of any public authority or quasi-public authority having jurisdiction over any Project; or, Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 33 (iii) refusing, failing or being unable to substantially perform in accordance with the terms of this Contract For Construction or any other agreement between the Owner and General Contractor. 24.2.2 Upon the occurrence of any of the events described in Paragraph 24.2.1, the General Contractor may give notice to the Owner setting forth the nature of the default and requesting cure within seven (7) calendar days from the date of notice. If the Owner fails to cure the default within seven (7) calendar days, the General Contractor, without prejudice to any rights or remedies, may give notice to the Owner of immediate termination. 24.3 Termination For Convenience: The Owner may at any time give notice to the General Contractor, effective in twenty-one (21) calendar days, tenminating this Contract For Construction, in whole or in part, for the Owner's convenience and without cause. 24.4 General Contractor's Compensation When General Contractor Terminates For Cause Or Owner Terminates For Convenience: If this Contract For Construction is (i) terminated by the General Contractor pursuant to Paragraph 24.2; or (ii) terminated by the Owner pursuant to Paragraph 24.3, the Owner shall pay the General Contractor specified amounts due for Work actually perfonmed prior to the effective termination date and reasonable costs associated with termination. The Owner may agree to additional compensation, if any, due to the General Contractor. Absent agreement on the additional amount due the General Contractor, the Owner shall pay the General Contractor: (i) reasonable costs incurred in preparing to perform the terminated portion of its scope of the Work, and in terminating the General Contractor's performance, plus a fair and reasonable allowance for overhead and profit thereon (such profit shall not include anticipated profit or consequential damages); provided, however, that if it appears that the General Contractor would not have profited or would have sustained a loss if its scope of the Work had been completed, no profit shall be allowed or included, and the amount of compensation shall be reduced to reflect the anticipated rates of loss, if any; and, (ii) reasonable costs of settling and paying claims arising out of the tenmination of subcontracts or supplier orders. These costs shall not include amounts paid in accordance with other provisions hereof. 24.5 General Contractor's Compensation When Owner Terminates For Cause: If this Contract For Construction is tenminated by the Owner for cause pursuant to Paragraph 24.1, no further payment shall be made to the General Contractor until Final Completion of the Project. At such time, the General Contractor shall be paid the remainder of the Construction Contract Price less all costs and damages incurred by the Owner as a result of the default of the General Contractor, including liquidated damages applicable thereto. The General Contractor shall additionally reimburse the Owner for any additional costs or expenses incurred. 24.6 Limitation On Termination Compensation: Irrespective of the reason for termination or the party terminating, the total sum paid to the General Contractor shall not exceed the. Contract Construction Price, as properly adjusted, reduced by the amount of payments previously made and penalties or deductions incurred pursuant to any other Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 34 provision of this Contract For Construction, and shall in no event include duplication of payment. 24.7 General Contractor's Responsibility Upon Termination: Irrespective of the reason for termination or the party terminating, if this Contract For Construction is terminated, the General Contractor shall, unless notified otherwise by the Owner, (i) immediately stop work; (ii) reduce its staff, services and outstanding commitments in order to minimize the cost of termination; (iii) terminate outstanding orders and subcontracts; (iv) settle the liabilities and claims arising out of the termination of subcontracts and orders; and, (v) transfer title and deliver to the Owner such completed or partially completed Work, and, if paid for by the Owner, materials, equipment, parts, fixtures, information and such contract rights as the General Contractor has. 24.8 Lack Of Duty To Terminate: The right to terminate or suspend the Work shall not give rise to a duty on the part of either the Owner or the General Contractor to exercise that right for the benefit of the Owner, General Contractor or any other persons or entities. 24.9 Limitation On Termination Claim: If the General Contractor fails to file a claim within one (1) year from the effective date of termination, the Owner shall pay the General Contractor only for services actually performed and expenses actually incurred prior to the effective tenmination date. ARTICLE 25 APPLICABLE LAW AND DISPUTE RESOLUTION 25.1 Applicable State Law: This Contract For Construction shall be deemed to be entered into in and shall be interpreted under the laws of the state in which the Project is located. 25.2 Court Actions: Except as expressly prohibited by law: (i) all legal actions hereunder shall be conducted only in state court or federal court districts where the Project is located and having subject matter jurisdiction over the matter in controversy; except that any final judgment may be enforced in other jurisdictions in any manner provided by law; (ii) the choice of jurisdiction and venue described in the preceding paragraph shall be mandatory and not permissive in nature, thereby precluding the possibility of litigation or trial in any jurisdiction or venue other than that specified herein; (iii) the parties waive any right to assert the doctrine of forum non conveniens or to object to venue; and, Contract For Construction . Chapter 2 Builder's Required Services and General Tenns and Cond~ions 35 (iv) the parties waive any right to a jury trial, and agree that all legal actions shall be tried, both as to factual and legal issues, only to the Court. 25.3 Mutual Discussion: In case of any dispute, claim, question or disagreement arising from or relating to the Project or arising out of this Contract For Construction or the breach thereof, the parties shall first attempt resolution through mutual discussion. 25.4 Facilitative Mediation: If the parties cannot resolve any dispute, claim, question, or disagreement arising from or relating to the Project or arising out of this Contract For Construction or the breach thereof through mutual discussion, as a condition precedent to any litigation, the parties shall in good faith participate in private, non-binding facilitative mediation seeking a just and equitable solution satisfactory to all parties. 25.4.1 All parties to a mediation shall promptly provide all other parties to the mediation with copies of essential documentation relevant to the support or defense of the matter being mediated. 25.4.2 The parties shall not be required to mediate for a period greater than ninety-one (91) calendar days unless otherwise agreed to in writing by the parties. The parties shall share equally any administrative costs and fees of such proceedings, but shall each be responsible for their own expenses otherwise incurred. 25.4.3 In the event that the statute of limitations would run during the required mediation period, either party may institute litigation so as to avoid the running of such statute upon the condition that such party immediately seek a stay of such litigation pending the conclusion of the mediation period. 25.4.4 During the course of mediation, any party to the mediation may apply for injunctive relief from any court of competent jurisdiction until the mediation period expires or the dispute is otherwise resolved. 25.4.5 The Owner, the Professional(s), the General Contractor, and any other parties involved in any way in the design or construction of the Project are bound, each to each other, by this requirement to mediate prior to commencement of any litigation, provided that they have signed this Contract For Construction or an agreement that incorporates this Contract For Construction by reference or signed any other agreement which binds them to mediate. Each such party agrees that it may be joined as an additional party to a mediation involving other parties under any such agreement. In the case where more than one mediation is begun under any such agreement and any party contends that the mediations are substantially related, the mediations may be heard by the mediator selected in the first mediation which was commenced. 25.5 Conflicting Dispute Resolution Provisions: Neither party to this Contract For Construction shall enter into any contract with regard to the Project which directly or indirectly gives the right to resolve any dispute with, involving, or affecting the other to any other person or legal entity which is in conflict with the dispute resolution procedures required by this Article. Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 36 25.6 Arbitration Preclusion: In case of a dispute relating to the Project, or arising out of this Contract For Construction, no party to this Contract For Construction shall be required to participate in or be bound by, any arbitration proceedings. 25.7 Performance During Dispute Resolution: The Owner and the General Contractor agree that pending the resolution of any dispute, controversy, or question, the Owner and the General Contractor shall each continue to perfonm their respective obligations without interruption or delay, and the General Contractor shall not stop or delay the performance of its scope of the Work. ARTICLE 26 DAMAGES AND REMEDIES 26.1 General Contractor's Repair: The General Contractor shall, at its expense, promptly correct, repair, or replace all goods, products, materials, systems, labor and services which do not comply with the warranties and guarantees set forth in this Contract For Construction, or any other applicable warranty or guarantee. 26.2 General Contractor's Reimbursement: The General Contractor shall promptly reimburse the Owner for any expenses or damages incurred by the Owner as a result of (i) the General Contractor's failure to substantially perform in accordance with the terms of this Contract For Construction; (ii) deficiencies or conflicts in the Construction Documents attributable to the General Contractor or of which the General Contractor was or should have been aware; (iii) breach of the warranties and guarantees set forth in this Contract For Construction or any other applicable warranty or guarantee; or (iv) other acts or omissions of the General Contractor. 26.3 General Indemnity: To the fullest extent penmitted by law the General Contractor shall secure, defend, protect, hold harmless, and indemnify the Owner and the Owner's Related Parties from and against any and all liability, loss, claims, demands, suits, costs, fees and expenses (including actual fees and expenses of attorneys, expert witnesses, and other consultants), by whomsoever brought or alleged, and regardless of the legal theories upon which premised, including, but not limited to, those actually or allegedly arising out of bodily injury to, or sickness or death of, any person, or property damage or destruction (including loss of use), which may be imposed upon, incurred by or asserted against the Owner or the Owner's Related Parties allegedly or actually arising out of or resulting from the General Contractor's services, including without limitation any breach of contract or negligent act or omission (i) of the General Contractor; or (ii) of the General Contractor's subcontractors or suppliers, if any, or (iii) of the agents, employees or servants of the General Contractor or its subcontractors or suppliers, if any. 26.3.1 To the fullest extent penmitted by law, the General Contractor, for itself and for its subcontractors and suppliers, and the respective agents, employees and servants of each, expressly waives any and all immunity or damage limitation provisions available to any agent, employee or servant under any workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts, to the extent such statutory or case law would otherwise limit the amount recoverable by the Owner or the Owner's Related Parties pursuant to the indemnification provision contained in the paragraph above. Contract For Construction . Chapter 2 Builder's Required Services and General Temns and Cond~ions 37 26.4 Intellectual Property Indemnity: To the fullest extent permitted by law, the General Contractor shall defend, protect, hold harmless, and indemnify the Owner and the Owner's Related Parties from and against any and all liability, loss, claims, demands, suits, costs, fees and expenses (including actual fees and expenses of attorneys, expert witnesses, and other consultants), by whomsoever brought or alleged, for infringement of patent rights, copyrights, or other intellectual property rights, except with respect to designs, processes or products of a particular manufacturer expressly required by the Owner or Professional(s) in writing. If the General Contractor has reason to believe the use of a required design, process or product is an infringement of a patent, the General Contractor shall be responsible for such loss unless such information is promptly given to the Owner. 26.5 Non-Exclusivity Of Owner's Remedies: The Owner's selection of one or more remedies for breach of this Contract For Construction contained herein shall not limit the Owner's right to invoke any other remedy available to the Owner under this Contract For Construction or by law. 26.6 Waiver Of Damages: The General Contractor shall not be entitled to, and hereby waives any monetary claims for or damages arising from or related to, lost profits, lost business opportunities, unabsorbed overhead or any indirect consequential damages. 26.7 Interest: The Owner is entitled to interest on all amounts due from the General Contractor that remain unpaid thirty (30) days after the amount is deemed due, whether as a result of a resolution of a dispute or otherwise. Any such interest shall be calculated by the same method as set forth in Paragraph 15.8. ARTICLE 27 MISCELLANEOUS PROVISIONS 27.1 Integration: This Contract For Construction represents the entire and integrated agreement between the Owner and the General Contractor, and supersedes all prior negotiations, representations or agreements, either written or oral, for the Project. This Contract For Construction may be amended only by written instrurnents signed by both the Owner and the General Contractor, and is subject to such reasonable modifications as may be required by the Owner's lender(s) or insurer(s), if any. 27.2 Severability: If any provision of this Contract For Construction, or the application thereof, is determined to be invalid or unenforceable, the remainder of that provision and all other provisions shall remain valid and enforceable. 27.3 Waiver: No provision of this Contract For Construction may be waived except by written agreement of the parties. A waiver of any provision on one occasion shall not be deemed a waiver of that provision on any subsequent occasion, unless specifically stated in writing. A waiver of any provision shall not affect or alter the remaining provisions of this Contract For Construction. Contract For Construction. Chapter 2 Builder's Required Services and General Temns and Cond~ions 38 27.4 Strict Compliance: No failure of the Owner to insist upon strict compliance by the General Contractor with any provision of this Contract For Construction shall operate to release, discharge, modify, change or affect any of the General Contractor's obligations. 27.5 Third-Party Beneficiaries: This Contract For Construction shall inure solely to the benefit of the parties hereto and their successors and assigns, and, except as otherwise specifically provided in this Contract For Construction, nothing contained in this Contract For Construction is intended to or shall create a contractual relationship with, or any rights or cause of action in favor of, any third party against either the Owner or the General Contractor. 27.6 Survival: All provisions of this Contract For Construction which contain continuing obligations shall survive its expiration or tenmination. 27.7 Assignment: Except as prohibited by applicable law, neither party shall assign any or all of its benefits or executory obligations under this Contract For Construction without the approval of the other party, except in case of assignment solely for security or assignment by the Owner to a Related Party of the Owner. The Owner and the General Contractor bind their successors and assigns to the other party to this Contract For Construction. 27.8 Execution Of Documents: Upon the request of the Owner, the General Contractor shall execute documents required by the Owner's lender whereby the General Contractor agrees that in the event of the Owner's default under, or the termination of, any construction loan agreement, the General Contractor will complete the services required by this Contract For Construction under the terms and conditions contained herein so long as the lender fulfills the obligations of the Owner toward the General Contractor as set forth in this Contract For Construction. ARTICLE 28 DEFINITIONS When one of the following capitalized words, terms or phrases is used in this contract, it shall be interpreted or construed first as defined below, second according to its generally-accepted meaning in the construction industry, and third according to its common and customary usage. Builder: An entity, including but not limited to a general contractor, a trade contractor or a construction manager, engaged directly by the Owner pursuant to a Contract For Construction. Construction Contract Price: The dollar amount for which a Builder agrees to perform the Work set forth in a Contract For Construction. Construction Documents: Plans, specifications, change orders, revisions, addenda, and other information which set forth in detail the Work. Construction Schedule: The timetable which sets forth pertinent dates for timely completion of the Work. Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 39 .. Contract For Construction: A written agreement between the Owner and a Builder for provision of goods, products, materials, equipment, systems, management, supervision, labor and services required to construct all or part of a Project. Contract For Professional Services: A written agreement between the Owner and a Professional for provision of services and related items required to design or engineer all or part of a Project. Declaration Of Substantial Completion: Document declaring the Work substantially complete and suitable for occupancy or beneficial use by the Owner. Final Completion: The stage of construction when the Work has been completed in accordance with the Contract for Construction and the Owner has received all documents and items necessary for closeout of the Work. Hazardous Substances: The term "Hazardous Substance" shall have the same meaning and definition as set forth in the Comprehensive Environmental Response Compensation and Liability Act as amended, 42 USC S 6901 et seq., and regulations promulgated thereunder (collectively "CERCLA") and any corresponding state or local law or regulation, and shall also include: (a) any Pollutant or Contaminant as those terms are defined in CERCLA; (b) any Solid Waste or Hazardous Constituent as those terms are defined by, or are otherwise identified by, the Resource Conservation and Recovery Act as amended, 42 USC S 6901 et seq., and regulations promulgated thereunder (collectively "RCRA") and any corresponding state or local law or regulation; (c) crude oil, petroleum and fractions of distillates thereof; (d) any other material, substance or chemical defined, characterized or regulated as toxic or hazardous under any applicable law, regulation, ordinance, directive or ruling; and, (e) any infectious or medical waste as defined by any applicable federal or state laws or regulations. Owner's Related Parties: Any parent, subsidiary or affiliated entities of the Owner, including the respective officers, trustees, office holders, directors, shareholders, partners, and employees of each. Professional: An entity, including but not limited to an architect, civil engineer or geotechnical engineer, engaged directly by the Owner to provide design or engineering services. Project: A planned construction undertaking as more specifically described immediately preceding the recitals in Chapter 1 of a Contract For Professional Services or in a Contract For Construction. Project Design Schedule: The timetable which sets forth the required relationships between, and pertinent dates for, required completion of design and engineering services, documents and related activities. Site: The geographical location of a Project, usually defined by legal boundary lines, and the location characteristics including, but not limited to, grades and lines of streets, alleys, pavements and adjoining structures, rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, existing buildings and improvements, and service and utility lines. Substantial Completion: The stage of construction when the Owner can occupy or beneficially use satisfactorily completed Work for its intended purpose. Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions 40 Total Project Construction Cost: The total cost to the Owner to complete construction of the Project, including, without limitation, the Work, the cost of utilities, the cost of fees for permits and licenses, and modifications necessitated by local conditions. Work: Any and all computers, construction machinery, documents, equipment, facilities, fixtures, furnishings, goods, heat, items, labor, licenses, management, materials, permits, products, services, supervision, supplies, systems, taxes, testing, tools, utilities, transportation, vehicles, and water, required to be perfonmed or supplied and/or necessary for proper execution and completion of the Project, or some portion thereof, whether or not incorporated or to be incorporated into the Project. Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condttions 41