Service Solicited - 2004 - Hillside Landscaping Company - Construction Contract
CONTRACT FOR CONSTRUCTION
BETWEEN CITY OF EAGLE, IDAHO
AND
HillSIDE lANDSCAPE COMPANY
CHAPTER 2
BUilDER'S REQUIRED SERVICES
AND
GENERAL TERMS AND CONDITIONS
Dated: 10/10/04
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 Performance 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 I 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 Information From Owner ........................................................................................... 8
6.2 Resolution Of Questions ........................................................................................... 9
6.3 Processing Of Documents.........................................................................................9
6.4 Sufficiency Of Owner Information.............................................................................. 9
ARTICLE 7 SUMITTALS ............................................................................................................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 Performance Of Changes ....................................................................................... 12
9.6 Disputes Regarding Changes .................................................................................12
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 Conditions
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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 Performance 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 Condijions
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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 Information................... ...... ............... ................................ ..... 28
20.2 Ownership Of Information ..................................................................................... 28
20.3 Disclosure Of Information............................... ............................ ...................... ..... 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 Termination For Cause By Owner ......................................................................... 31
24.2 Termination For Cause By General Contractor ..................................................... 32
24.3 Termination For Convenience...... ...................................... ...... .... ........ ................. 33
24.4 General Contractor's Compensation When General Contractor Terminates
For Cause Or Owner Terminates For Convenience .............................................. 33
24.5 General Contractor's Compensation When Owner Terminates For Cause............ 33
24.6 Limitation On Termination Compensation ............................................................. 34
24.7 General Contractor's Responsibility Upon Termination ......................................... 34
24.8 Lack Of Duty To Terminate ...................................................................................34
24.9 Limitation On Termination 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 Condijions
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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 Condijions
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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 Return Of Documents To Owner: The General Contractor shall return to the Owner
the reproducible set(s) and all copies of Construction Documents upon final acceptance
of the Work or termination of this Contract For Construction, whichever occurs first.
1.3 Minimum Requirements: In every case, requirements established by the Construction
Documents shall be considered as the minimum which will be accepted.
1 .4 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.
1.5 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;
1.5.1 As between figures given on plans and scaled measurements, the figures shall
govern;
1.5.2 As between large scale plans and small scale plans, the large scale plans shall
govern;
1.5.3 As between plans and specifications, the requirements of the specifications shall
govern;
1.5.4 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
Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condijions
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General Conditions
Technical Specifications
Drawings
Large scale drawings over smaller scale drawings
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 performance 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 performance.
Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Conditions
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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
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.
In addition, if the General Contractor's scope of the Work involves modifications to or
remodeling of an existing structure(s) or other man-made feature(s) on the Site, the
General Contractor has also
(iii) reviewed all available as-built and record drawings, plans and specifications;
and,
(iv) thoroughly inspected the structure(s) and man-made feature(s) to be modified or
remodeled prior to submission of bid, if any, but in all events prior to signing this
Contract For Construction.
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
Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condijions
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Work; (ii) comply with the requirements of this Contract For Construction; and, (iii) are
performed in a workmanlike manner and in accordance with the standards currently
practiced by persons and entities performing 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.
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
Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condijions
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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;
(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;
(Hi) 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
performance 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
Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condijions
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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 perform 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 or
Structure unless first approved and scheduled by the Owner. The General
Contractor understands and acknowledges that the Owner may incur damages if
the Owner's operations on the Site are interrupted or impaired as a result of the
Work.
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 performance 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 twenty-eight (28)
calendar days prior to the required date of Substantial Completion.
3.13.2 The General Contractor shall meet with the Owner not less than twenty-eight (28)
Contract For Construction . Chapter 2 Builder's Required Services and General Terms and Condijions
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calendar days prior to the required 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, Plumbing, Electrical, and State of Idaho.
3.14.1 The Contractor shall obtain and pay for all required licenses and permits
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 State arising from the construction
and completion of the work.
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
harmony.
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.
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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 perform services for the Owner.
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
terms, 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 terms, 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
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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.
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 legal description and any required survey;
(ii) all written and tangible material in its possession concerning conditions below
ground at the Site;
(iii) if the Project involves an existing structure, all available as-built drawings, record
drawings, plans, specifications and structure system information in its possession
with respect to such structure; and,
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(iv) the Owner's pertinent Project dates and key milestone dates.
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 information 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
writing of any additional information 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, (iji) 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.
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.
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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
conform 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
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.
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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
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
time 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.
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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
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
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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, one designated Professional shall act as the Owner's representative from the
effective date of this Contract For Construction until one (1) year from the date the
General Contractor achieves Substantial Completion.
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 familiarization with the progress and quality of the Work and to inspect the Work to
determine 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 conform to and comply with testing requirements.
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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
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 determine 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 determines 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.
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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 inspection.
12.1.2 At or prior to the substantial completion inspection, the General Contractor will
prepare and furnish to the Professional a Declaration of Substantial Completion,
which at a minimum must:
(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
inspection of the Work to determine whether the Work is substantially complete.
12.1.4 At inspection(s) to determine whether the General Contractor's Work is
substantially complete, the Professional will:
(i) inspect 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 inspection 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, the
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certificate of occupancy, and other necessary and customary documents and
items pre-requisite for the Owner's occupancy and 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
inspection 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
Final Completion inspection 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 dose-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 inspection
of the Work to determine whether the Work is finally complete.
12.2.3 At the Final Completion inspection to determine whether the General
Contractor's Work is finally complete, the Professional will:
(i) inspect the General Contractor's Work;
(ii) determine whether the General Contractor has satisfactorily completed or
corrected all items on the list included with the Declaration of Substantial
Completion;
(iii) determine 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) determine whether required inspections and approvals by the official(s)
having or asserting jurisdiction over the Project have been satisfactorily
completed; and,
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(v) determine, 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
inspection 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;
(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
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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
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 determine 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 conform 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
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in a form 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
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.
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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
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
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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;
(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 perform 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
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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
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 determined 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;
(ii) all goods, products, materials, equipment and systems covered by an invoice are
free and clear of liens, claims, security interests or encumbrances; and,
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(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 performed 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.
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 harmless, 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.
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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.
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 remaining 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
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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 Performance: 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).
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.
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ARTICLE 17
UQUIDA TED DAMAGES
17.1 Time Is Of The Essence: The parties hereto mutually understand and agree that time is
of the essence in the performance 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
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 terminated 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 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; or (iii)
any other cause which the Owner determines may justify the compensation of the
General Contractor for the delay, the General Contractor's compensation 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
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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,
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 promptly, 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 performance 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.
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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
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 information, 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
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rights with respect to such documents.
20.3 Disclosure Of Information: The General Contractor shall not disclose any information
it receives from the Owner to any other person or entity except to the extent necessary
to allow it to perform 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 information which is not in the public domain as
information 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.
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 performance 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
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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.
ARTICLE 22
GENERAL BOND REQUIREMENTS
22.1 General Bond Requirements: If the General Contractor is required to provide
performance 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 form approved by the Owner;
(ii) 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.
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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 eliminated 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
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 terms 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
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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;
(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 termination.
24.1.3 If the Owner terminates 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
termination was without cause, then in such event, said termination shall be
deemed a termination for convenience as set forth in Paragraph 24.3.
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24.2 Termination For Cause By General Contractor:
24.2.1 The General Contractor may terminate 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,
(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, terminating 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 performed 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 termination of
subcontracts or supplier orders. These costs shall not include amounts paid in
accordance with other provisions hereof.
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24.5 General Contractor's Compensation When Owner Terminates For Cause: If this
Contract For Construction is terminated 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
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 termination 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.
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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,
(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
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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.
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 perform 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 permitted 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
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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 permitted 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.
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 instruments 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.
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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.
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 termination.
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.
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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: 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
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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.
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 performed 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.
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