Mou/Moa - 2015 - American Ramp Co / Progressive Bike Ramps - 6/24/20150SCAtitiEED
CITY OF EAGLE DESIGN -
BUILD CONTRACT
This Design -Build Contract ( "Contract ") is entered into this W3 day ofianf,, 20I5,
by and between the City of Eagle, a municipal corporation of the State of Idaho ( "City "), and
American Ramp Company, Inc., d/b /a Progressive Bike Ramps, a Missouri corporation
authorized to do business in Idaho ( "Contractor "). City and Contractor are sometimes
collectively referred to Herein as the "Parties."
RECITALS
WHEREAS, the City published a Request for Proposals ( "RFP ") in the Valley Tunes on
May 1, 2015 for design -build services for a mountain bike skills course at the Eagle Sports
Complex (the "Project "); and
WHEREAS, following the procedures set forth in the RFP, the City selected Contractor
to perform the work for the Project as described in the RFP.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, the City and Contractor agree as follows:
1. Scope of Work. The City engages Contractor to perform the work associated
with the Project as more particularly described in the RFP, a copy of which is attached hereto as
Exhibit A and incorporated herein by this reference, and Contractor's proposal, a copy of which
is attached hereto as Exhibit 8 and incorporated herein by this reference.
2. Payment. The City agrees to pay Contractor for Contractor's services rendered
under this Contract an amount not to exceed Forty -Seven Thousand Five Hundred Dollars
($17,500.00) for acceptable completion of the Project (the "Contract Price "). The Parties agree
that Contractor will invoice the City for payment under this Contract for services rendered
hereunder as follows:
2.1 Contractor shall submit its standard monthly invoice describing the
services performed and expenses incurred during the preceding month. The City shall make
payment of all undisputed portion s of such invoice and provide written justification for the
withholding of any disputed portions to Contractor within thirty (30) calendar days after receipt
of Contractor's monthly invoice.
2.2 Each payment request from Contractor shall be accompanied by an
updated critical path schedule for completion of the Project within the Contract Time, as defined
in Section 3 herein.
3. Contract Time. The Project shall be completed by October 15, 2015. The
Contract Time will commence to run on the thirtieth day after the Effective Date of this Contract
or, if a Notice to Proceed is given, on the day indicated in the Notice to Proceed. A Notice to
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DESIGN -BUILD CONTRACT
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Proceed may be given at any time within thirty (30) days after the Effective Date of this
Contract.
4. Delivery of Performance and Payment Bonds and Evidence of Insurance.
Prior to commencement of any work, Contractor shall deliver to the City Performance and
Payment Bonds identifying the City and Certificates of Insurance consistent with the
requirements of the RFP identifying the City as additional insured.
5. Contractor's Responsibilities. Contractor shall perform all labor and provide all
material and equipment necessary to complete the Project, except as otherwise provided herein
or specifically otherwise agreed to by the Parties. The Parties anticipate that some or all of the
dirt work for the Project will be performed by volunteers of various stakeholder groups, which
work may be excluded from Contractor's responsibilities upon written agreement of the Parties.
The Contractor shall:
5.1 Supervise and direct the "ork, using its best skill and attention, and
diligently and continuously work on the construction to ensure prompt completion. Contractor
shall be solely responsible for all construction means, methods, techniques, sequences and
procedures, and for coordinating all portions of the work under the Contract.
5.2 Provide all labor, materials, tools, permits, construction equipment and
machinery, water, heat, utilities, transportation and other facilities and services necessary for the
proper execution and completion of the work.
5.3 Warrant to the City that all materials and equipment furnished under this
Contract will be ne", unless otherwise specified, and that all % {ork "ill be of good quality, free
from faults and defects and in conformance with the Contract Documents as defined herein.
5.4 Be responsible to the City for the acts and omissions of all the
Contractor's employees and all subcontractors. if any. their agents and employees, and all other
persons performing any of the work on behalf of the Contractor. Contractor shall indemnify and
hold harmless the City from any and all damage or injury of every description arising out of or in
connection with the work to be performed under this Contract.
5.5 Confine operations at the site of construction to areas provided by law,
ordinances, permits and the Contract Documents, and shall not unreasonably encumber any site
with materials or equipment.
5.6 Keep the Project site free from accumulation of waste materials or rubbish
caused by the Contractor's operations_ At the completion of the work Contractor shall remove
all of his waste material and rubbish on or about the Project site, as well as all tools, construction
equipment, machinery and surplus materials.
5.7 Contract responsibility shall include all contracting and scheduling duties,
supervision, and attend all meetings with City regarding design and construction of the Project.
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DESIGN -BUILD CONTRACT
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5.8 Contractor shall pay all applicable taxes for which Contractor is
responsible as required by law or as otherwise agreed under this Contract.
5.9 Contractor shall comply with all laws, rules and regulations or orders of
all public authorities relating to the performance of the work herein.
b. Independent Contractor Relationship. Contractor is an independent contractor
and is not an employee, servant, agent, partner or joint venture of the City. The City shall
determine the work to be done by Contractor, but Contractor shall determine the means by which
it accomplishes the work specified by the City. Contractor is not eligible for, and shall not
participate in, any employee pension, health or other fringe benefit plan of the City.
7. Assignment. It is expressly understood and agreed by the Parties hereto that
Contractor shall not have the right to assign, transfer, hypothecate or sell any of its rights under
this Contract except upon prior written consent of the City.
8. Termination for Cause.
8.1 Termination by City. If through any cause Contractor shall fail to fulfill in
a timely and proper manner its obligations under this Contract, or if the Contractor shall violate
any of the covenants, agreements, or stipulations of this Contract, the City shall thereupon have
the right to terminate this Contract by giving written notice to the Contractor of such termination
and specifying the effective date thereof at least fifteen (15) days before the effective date of
such termination. If this Contract is terminated for cause, the Contractor shall be entitled to
receive just and equitable compensation for any work satisfactorily completed prior to the
effective date of termination.
8.2 Damages Upon Termination. Notwithstanding Section 8.1 herein,
Contractor shall not be relieved of liability to the City for damages sustained by the City by
virtue of any breach of this Contract by Contractor, and the City may withhold any payments to
Contractor for the purposes of set -off until such time as the exact amount of damages due the
City from Contractor is determined. This provision shall survive the termination of this Contract
and shall not relieve Contractor of its liability to the City for damages, provided that the amount
of such damages shall not exceed the total compensation provided for in Section 2 of this
Contract.
8.3 Termination by C'ontrcictor. If the City or its representatives fail to make
necessary decisions throughout the Project, delay decisions and negatively impact the
Contractor's ability to complete the Project satisfactorily or in a timely manner, or fail to male
payments as set forth in the Contract Documents, Contractor may terminate the Contract in the
same manner and under the same payment conditions as stated in Section 8.1 herein.
9. Taxes. Neither federal, state or local income taxes, nor payroll taxes of any kind
shall be withheld and paid by the City on behalf of Contractor or employees of Contractor.
Contractor shall not be treated as an employee of the City with respect to the services performed
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DESIGN -BUILD CONTRACT
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hereunder for federal or state tax purposes. Contractor understands that it is responsible to pay
all taxes o«ed by Contractor in accordance with applicable federal, state and local laws.
l0. Licenses. Contractor represents that it possesses the skill and experience
necessary and all licenses and authorizations required to perform the services under this
Contract, including a public works contractor's license as required by Title 54, Chapters 19 and
45, Idaho Code.
I I . Warranty. Contractor agrees to warrant for a period of one (1) year from the
date of substantial completion all labor and materials Furnished in the construction and
installation of the bike park facilities to be of good merchantable quality, and free from any and
all defects. The one -year installation warranty set forth herein specifically excludes general
maintenance necessitated by normal «ear and tear. Additionally. Contractor agrees to provide a
ten (10) year warranty on all steel ramp components installed at the Project. In the event a defect
occurs, the City shall notify Contractor in writing and Contractor agrees to cure said defect
within fifteen (I5) days of the notice. Costs of curing any such defect shall be borne solely by
Contractor. Upon completion of Contractor's work, Contractor agrees to provide the City with
all written warranties and guaranties relating to the labor, goods, products, materials, equipment
and systems incorporated into Contractor's scope of «ork, endorsed, countersigned and assigned
as necessary.
12. Indemnification. Contractor agrees to indemnify, defend, and hold harmless the
City, its officers, agents and employees, from and against any and all claims, losses, actions, or
judgments for damages or injury to persons or property arising out of or in connection with the
act and"or an) performances or acti%ities of Contractor, its agents, employees or representatives
under this Contract.
13. Insurance. Contractor agrees to obtain and keep in full force and effect, at its
sole cost and expense, during its acts under this Contract the insurance policies in the amounts
provided belo%%. Contractor agrees to pro% ide the City «ith certificates of insurance and a
declarations page evidencing the policies listed not later than ten (10) days after the Effective
Date of this Contract.
13.1 General Liability. A commercial general or business liability insurance
policy in the minimum amount of $1,000,000.00 per occurrence, which shall name and protect
Contractor, its employees, and the City and its officers, agents and employees from and against
any and all claims, losses, actions and judgments for damages or injury to persons or property
arising out of or in connection with the Contractor's acts.
13.2 Automobile Liability. For motor vehicles used in the State of Idaho.
including all owned vehicles, non -owned vehicles, and all hired vehicles, a motor vehicle
liability insurance policy in the minimum amount of $1,000,000.00 per occurrence combined
single limit for bodily injury and property damage.
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13.3 Worker's Compensation. Statutory worker's compensation and
employer's liability insurance in the minimum statutory amounts as provided under Title 72,
Idaho Code.
13.4 Umbrella. A comprehensive general liability ( "Umbrella ") insurance
policy, in the minimum amount of $2,000,000.00, in the form of a Certificate of Insurance issued
on behalf of the City of Eagle, naming the City as Additional Insured.
13.5 Insurance Limits. The limits of insurance shaH not be deemed a limitation
of the covenants to indemnify and save and hold harmless the City. If the City becomes liable
for an amount in excess of the insurance limits herein provided, Contractor covenants and agrees
to indemnify and save and hold harmless the City from and for all such losses, claims, actions or
judgments for damages or liability to persons or propert). Contractor shall provide the City with a
Certificate of Insurance or other proof of insurance evidencing Contractor's compliance with the
requirements of this paragraph and submit such proof of insurance to the City Clerk.
13.6 Other Requh-ements. All insurance coverages required by this Contract
shall be with insurance companies licensed and admitted to do business in the State of Idaho.
Contractor warrants that it will provide at least thirty (30) days prior written notice to the City of
any change, cancellation or non - renewal of any insurance policy.
14. Change Orders. The City reserves the right to order work changes in the nature
of additions, deletions or modifications, without invalidating this Contract, and agrees to make
corresponding adjustments in the Contract Price and time for completion. All changes will be
authorized by a written change order signed b) the Cit) and Contractor. The change order will
include conforming changes in the Contract Price and completion time. Work shall be changed,
and the Contract Price and completion time shall be modified only as set out in the written
change order. Any adjustment in the Contract Price resulting in a credit or a charge to the City
shall be determined by mutual agreement of the Parties before starting the work involved in the
change.
15. No Waiver. Failure of any party to exercise any of the rights under this Contract,
or breach thereof, shall not be deemed to be a waiver of such right or a waiver of any subsequent
breach.
16. Choice of Law. This Contract shall be governed by the laws of the State of
Idaho. Any dispute under this Contract, or related to this Contract, shall be decided in
accordance with the laws of the State of Idaho, and venue shall be in the Fourth Judicial District
in Ada County, Idaho.
17. Amendment. This Contract can only be amended or modified in writing under
mutual agreement of the Parties.
18. Severability.If any part of this Contract is held unenforceable, the remaining
portions of the Contract will nevertheless remain in full force and effect.
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19. Binding Effect. This Contract shall be binding upon and inure to the benefit of
the parties hereto, their respective successors, heirs, executors, assigns and legal representatives.
20. Entire Agreement. This Contract represents the entire and integrated agreement
between the City and Contractor, and supersedes all prior estimates, negotiations,
representations, agreements or prior understandings, either written or oral.
21. Notices. Any notice provided for or concerning this Contract shall be in writing
and be deemed sufficiently given when sent by certified or registered mail if sent to the
respective address of each party as set forth below:
City Contractor
City of Eagle Progressive Bike Ramps
Attn: Mike Alpo Attn: Jason Stouder
660 E. Civic Lane 601 S. McKinley Ave.
Eagle, ID 83616 Joplin, MO 64801
22. Time is of the Essence. It is specifically declared and agreed that time is of the
essence of this Contract.
23. Preparation of Agreement. No presumption shall exist in favor of or against
any party to this Contract as the result of the drafting and preparation of the Contract.
24. Paragraph I leadings. The titles to the paragraphs of this Contract are solely for
the convenience of the Parties and shall not be used to explain, modify, simplify or aid in the
interpretation of the provisions of this Contract.
25. Attorney Fees. Should any litigation be commenced between the Parties hereto
concerning this Contract, the prevailing party shall be entitled to court costs and reasonable
attorney fees as determined by a court of competent jurisdiction, in addition to any other relief as
may be granted.
26. No Third Party Beneficiaries. This Contract is not intended to create, and does
not create, any third party beneficiary rights.
27. Counterparts. This Contract may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of «hick together shall constitute
one and the same instrument.
28. Contract Documents. The Contract Documents as used in this Contract are:
28.1 This Contract;
28.2 Contractor's Bid, accepted by the Eagle City Council on June 9, 2015;
28.3 The City of Eagle's RFP for the Project;
28.4 Performance and Payment Bonds; and
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28.5 The General Conditions.
29. Authorization. The undersigned representative of each party certifies that he!she
is an authorized agent of the respective party and has been duly authorized to bind the party to
the terms of this Contract.
30. Effective Date. This Contract shall be effective upon approval and execution by
the City.
IN WITNESS WHEREOF, the Parties have hereunto caused their representatives and
officials to execute this Contract, which shaH be effective as of the date executed by the City.
CITY:
CITY OF EAGLE, Idaho
ATTEST:
By: ,.
ames D. Reyi old
Date: . /_-)a b.
CONTRACTOR:
AMERICAN RAMP COMPANY, INC., dr'b ?a Progressive Bike Ramps
Mayor
Sharon e manrp F ��
City Clerkffreasuce � A-
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By:
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DESIGN -BUILD CONTRACT
BUILDER'S REQUIRED SERVICES
AND
GENERAL TERMS AND CONDITIONS
ARTICLE 1
THE CONTRACT DOCUMENTS
1.1 Conflicts In Documents: In the event of any conflict, discrepancy, or inconsistency
among any of the documents which make up this Design -Build Contract, the following
shall control:
1.1.1 Conflicts in the Contract Documents shall be brought to the Project Manager's
attention. In such instances, the following is the order of authority of documents, the first
taking the highest precedence:
Agreement (Owner /Contractor)
General Conditions
RFP
1.2 Shop Drawings And Submittals: Shop drawings and other submittals from the
Design -Build Contractor or its subcontractors and suppliers do not constitute a part of
this Design -Build Contract.
1.3 Contract Changes: The Design -Build Contractor understands and agrees that this
Design -Build Contract 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
Design -Build can be accomplished only by written documents signed by the parties_
ARTICLE2
DESIGN -BUILD 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 Design -Build Contract. the Design -Build 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 Design -Build 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, if any, 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-
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Contract For Construction - lder's Required Servpces and General Terms and Conditions
2.1.2 If the Design -Build 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,
if any, or the Owner, and prior to proceeding, the Design -Build Contractor shall
be responsible for the consequences of such performance.
2.1.3 Requests by the Design -Build 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 The Design -Build Contractor shall promptly report to the Professional, if any, or
the Owner 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, if any, or the Owner seven (7) days response time, shall
be deemed evidence that the Design -Build 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 Design -Build Contract, the Design -Build 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 Design -Build 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
Design -Build 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
Design -Build Contract.
Claims resulting from the Design -Build Contractor's failure to familiarize itself with the
Site or pertinent documents shall be deemed waived.
Contract For Construction - Bu Ider's Required Services and General Terms and Conditions
7
ARTICLE 3
DESIGN -BUILD CONTRACTOR'S DUTIES, OBLIGATIONS
AND RESPONSIBILITIES
3.1 Performance Of Work: The Design -Build Contractor shall supervise and complete its
obligations under this Design -Build Contract using its best skill and attention. The
Design -Build Contractor shall furnish management, supervision, coordination, labor and
services which (i) expeditiously, economically and properly completes its scope of the
Work; (ii) comply with the requirements of this Design -Build Contract; 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 Design -Build 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 Design -Build Contractor damage, compromise
or destroy any part of the Project or the Site, the Design -Build Contractor shall be
fully and exclusively responsible for and bear all costs associated therewith.
3.1.2 All services rendered by the Design -Build 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 Design -Build 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 Design -Build Contractor understands and acknowledges that the Work
referred to in this Design -Build Contract 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 Design -Build 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 Design -Build 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.
Contract For Construction - Bu. lders Requ red Services and General Terms and Conditions
3
3.3 Safety: Safety shall be a prime concern of the Design -Build Contractor at all times. The
Design -Build 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
Design -Build Contractor shall, concurrently with its performance, maintain detailed
records of activities on the Site.
3.5 As -Built Drawings: The Design -Build Contractor shall maintain at the Site one copy of
all drawings, specifications, addenda, approved shop drawings, change order(s),
submittals, and other modifications in good order and accurately marked depicting all
changes as they occur during construction_ The as -built drawings shall be available at all
times to the Owner, the Professional, if any, and the Owners 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 Design -Build Contractor shall include such supplementary notes and details
necessary to clearly and accurately represent as -built construction.
3.6 Bribes And Kick - Backs: The Design -Build 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,
(iii) offer nor accept any bribes or kick -backs in connection with the Project from or to
any individual or entity, including any of its trade contractors, subcontractors,
consultants, suppliers or manufacturers of Project goods and materials; or,
(iv) without the express written permission of the Owner, call for or by exclusion
require or recommend the use of any subcontractor, consultant, product,
material, equipment, system, process or procedure in which the Design -Build
Contractor has a direct or indirect proprietary or other pecuniary interest.
3.7 Quality Control And Testing: Unless otherwise provided in this Design -Build Contract,
the Owner shall select the quality control and testing agencies, if necessary, and pay for
the cost of specified measures and tests required by the Construction Documents. The
Design -Build 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 Design -Build Contractor shall immediately notify the
Professional, if any, or the Owner, 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
Contract For Construction - Guilder's Required Services and GeneralTenns and Conditions
4
occurrences.
3.9 Hazardous Substances: The Design -Build Contractor shall immediately notify the
Owner, 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 Design -Build Contractor encounters
environmental contamination (including but not limited to Hazardous Substances and
petroleum releases), the Design -Build 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 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 Design -Build 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 Design -Build Contractor understands and acknowledges that the Owner may
need access to or use of certain areas of the Site or Work prior to the Design -
Build 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 Design -Build Contractor shall not enter any Owner - occupied area of the Site
or Structure unless first approved and scheduled by the Owner. The Design -Build
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 Design -Build 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 Design -Build 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 Design -Build
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 Design -Build Contractor until satisfactory final clean -up is accomplished and
inspection is made by the Owner, accompanied by the Design -Build 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
Design -Build Contractor, and the Design -Build Contractor shall promptly pay any
deficiency amount to Owner.
3.12 Advertising Prohibition: The Design -Build Contractor shall not, without the express
written permission of the Owner, use the fact that the Design -Build Contractor is
Contract For Construction - Builder's Required Services and GeneralTerms and Conditions
5
providing goods or services to the Owner or for the Project in any advertising or
promotional material, including Site signage.
3.13 Commissioning: The Design -Build Contractor shall schedule and coordinate with
Owner all equipment and systems start-ups and Project commissioning within its scope
of the Work.
3.13.1 The Design -Build 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 Design -Build Contractor shall meet with the Owner not less than twenty -
eight (28) calendar days prior to the required date of Substantial Completion to
familiarize and train them with respect to maintenance and use of the Project.
3.14 Permits: The Design -Build 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.
ARTICLE4
DESIGN -BUILD CONTRACTOR'S PERSONNEL,
SUBCONTRACTORS, AND SUPPLIERS
4.1 Project Staffing: The Design -Build Contractor shall staff the Project with qualified and
designated individuals and entities responsible for its obligations and performance.
4.1.1 The Design -Build Contractor shall name a representative (the 'Builder's
Representative ") to serve as its primary communication contact with the Owner.
4.1.2 The Design -Build 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 Design -Build Contractor shall use its best
efforts to minimize the likelihood of any strike, work stoppage or other labor
disturbance.
4.1.3 The Design -Build 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 Design -Build Contractor shall immediately remove from the Site, for the
duration of the Project, any person who is incompetent, careless, or not working
in harmony.
42 Subcontractor ! Supplier Contracts: The Design -Build Contractor shall enter into
written contracts with its subcontractors and suppliers, if any, and those written contracts
shall be consistent with this Design -Build Contract. It is the intent of the Owner and the
Design -Build Contractor that the obligations of the Design -Build Contractor's
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6
subcontractors and suppliers, if any, inure to the benefit of the Owner and the Design -
Build Contractor, and that the Owner be a third -party beneficiary of the Design -Build
Contractors agreements with its subcontractors and suppliers.
4.2.1 The Design -Build 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 Design -Build Contract, 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.
422 The Design -Build 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 Design -
Build Contractors agreements with its subcontractors and suppliers shall require
that in the event of default under, or termination of, this Design -Build Contract,
and upon request of the Owner, the Design -Build Contractor's subcontractors
and suppliers will perform services for the Owner.
4.2.3 The Design -Build 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 Design -Build Contract
that are included by reference in its written contract with the Design -Build
Contractor, and that it will abide by those terms, conditions and requirements.
4.3 Resolution Of Trade Disputes: The Design -Build 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 Design -Build Contractor shall furnish goods, products,
materials, equipment and systems which;
(i) comply with this Design -Build Contract;
(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
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(vi) are free from defects; and,
(vii) beyond and in addition to those required by manufacturers' or suppliers'
specifications where such additional items are required by the Construction
Documents.
5.2 Installation And Use Of Materials: All goods, products, materials, equipment and
systems named or described in the Construction Documents, and all others furnished as
equal thereto shall, unless specifically stated otherwise, be furnished, used, installed,
employed and protected in strict compliance with the specifications, recommendations
and instructions of the manufacturer or supplier, unless such specifications,
recommendations or instructions deviate from accepted construction practices, or the
Construction Documents, in which case the Design -Build Contractor shall so inform the
Professional, if any, or the Owner and shall proceed as directed by the Professional, if
any, or by the Owner. The Design -Build 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 Design -Build 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 Professional, if any, and the
Owner of substitute goods, products, materials, equipment or systems does not mean or
imply final acceptance by the Professional, if any, or the Owner if such items should be
defective or not as previously represented. Should the Design -Build 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 Design -Build Contractor shall provide such at no increase in the
Construction Contract Price.
5.4 Security For Work In Progress: The Design -Build 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 Design -Build Contractor with
information reasonably necessary to assist the Design -Build 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;
Contract For Construction - Builder's Required Serv1cesand GeneralTerms and Conditions
8
(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,
(iv) the Owner's pertinent Project dates and key milestone dates.
6.2 Resolution Of Questions: The Design -Build Contractor shall resow all questions
concerning the Construction Documents, if any, with the Owner.
6.3 Processing Of Documents: When requested by the Owner, the Design -Build
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 Design -Build Contractor; and, (i)
represent that the Work compies with requirements of governmental agencies having
jurisdiction over the Project.
6.4 Sufficiency Of Owners' Information: The furnishing of information by the Owner to
the Design -Build Contractor shall not relieve the Design -Build Contractor of
responsibilities contained elsewhere in this Design -Build Contract to evaluate
information and documents provided by the Owner and the Design -Build Contractor shall
timely notify the Owner in writing of any additional information needed or services
required from the Owner in order for the Design -Build Contractor to perform its scope of
the Work.
ARTICLE 7
SUBMITTALS
7.1 Submittal Schedule: The Design -Build Contractor shall timely prepare and transmit to
the Professional, if any, or the Owner 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 Owner; and, (iii) set forth speck dates for submission of
the listed submittals. The Design -Build Contractor shall review and approve all
submittals prior to submission to the Professional, if any, or the Owner.
7.2 Processing Of Submittals: The Design -Build Contractor shall in timely fashion review.
approve if appropriate and forward submittals to the Professional, if any. or the Owner
for review and approval along with such detail and information as the Professional or
Owner requires. No part of the Work dealt with by a submittal shall be fabricated or
performed by the Design -Build Contractor until such approval has been given.
7.2.1 The Professional, if any, or the Owner is responsible 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 Design -Build Contract_
7.2.2 The Design -Build Contractor shall perform all Work in accordance with approved
submittals. Approval of the Design -Build Contractor's submittals by the
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9
Professional or the Owner shall not relieve the Design -Build Contractor from
complying with this Design -Build Contract, including all plans and specifications,
except as changed by Change Order.
ARTICLE 8
DESIGN -BUILD 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
Design -Build 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 Design -Build 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 Design -Build 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 Design -Build Contractor shall bear the cost of correcting destroyed or
damaged Work, whether completed or partially completed, of the Owners or
other trade contractors or subcontractors caused by the Design -Build
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 Design -Build Contractor shall, if notified to do so by the Professional, if any, or the
Owner, 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
Professional or the Owner, or to requirements specifically expressed in the
Construction Documents, the Design -Build Contractor shall receive no additional
compensation for the costs of uncovering and replacement or modification of the
Construction Schedule.
8.22 If the designated portion of the Work was covered prior to a speck request by
the Professional or the Owner that it remain uncovered, the Design -Build
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.
Cortract For Consiruclian • Builder's Required Services and General Terms and Conditions
10
9.1.1 With respect to such requests for changes by the Design -Build Contractor, the
Design -Build Contractor shall prepare and submit a change order request to the
designated Professional, if any, or to the Owner.
9.1.2 With respect to requests for changes by parties other than the Design -Build
Contractor, the Design -Build Contractor shall promptly review and respond to
change order requests submitted by the Professional, if any, or the Owner.
9.1.3 When requested to do so, the Design -Build Contractor shall prepare and submit
to the Professional, if any, or the Owner, 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 Design -Build
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 Design -Build Contract and the Design -Build
Contractor, upon written direction from the Owner, shall proceed with such change.
9.2.1 The Professional, if any, without the Owner's approval, or the Owner, may
authorize or direct the Design -Build 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 Design -Build Contractor shall
promptly carry out such changes. Any such minor changes shall be implemented
by written field order and executed by the Design -Build Contractor.
9.3 Administration Of Changes: The Professional, if any, or Owner 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 Design -Build Contractor, the
Design -Build 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 Professional, if any, or the Owner.
9.4.1 If price quotations for change order requests are determined by the Professional,
if any, or the Owner to be unreasonable, the Design -Build Contractor shall, in
writing, justify said quotations or provide additional back -up materials. If after
review of the additional information the Professional, if any, or Owner determines
the quotation is unreasonable, the Owner may require the Design -Build
Contractor to perform the subject Work on a time and material basis.
9.4.2 The Design -Build Contractor shall be allowed no additional compensation for any
-tract For Construction • Suidefs Required services and Genera Tenns and Conditions
11
costs, fees or expenses incurred in performing services already required by this
Design -Build Contract, and shall not be entitled to additional reimbursement for
its home office, other non job site or indirect overhead expenses, or tools
necessary for construction.
9.4.3 It is the responsibility of the Design -Build 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 Design -
Build 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 Design -Build 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 (ii) the amount of any adjustment of
compensation or applicable schedules, the Design -Build Contractor shall nevertheless
carry out the change if directed so to do by Owner. The Design -Build Contractor will not
prejudice any claim that it may have with respect to that change so long as the Design -
Build Contractor notes 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 Design -Build 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 Design -Build Contractor as to cost, time, or both, the
Professional, if any, or Owner will (i) receive and maintain all documentation
pertaining thereto required of the Design -Build 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 Design -Build
Contractor's compensation or applicable schedules. The Design -Build 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 Design -Build Contractor shall immediately notify
the Owner and Professional, if any, 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, if any, the Design -Build
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 Design -Build Contractor shall take all action necessary to
Contract For Construction - Builder's Required Services and GeneralTerms and Conditions
12
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
Design -Build 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 Design -
Build Contractor fails to have any such lien or claim discharged and released, or fails to
file the appropriate bond, the Owner shall have the right to pay all sums necessary to
obtain such a discharge and release, and the Design -Build Contractor shall bear all
expenses incurred by the Owner in so doing.
ARTICLE 11
OWNER'S CONSULTANT(S), PROFESSIONAL AND
CONSTRUCTION ADMINISTRATION
11.1 Owner's Designated Professional Representative: Unless otherwise directed by the
Owner, one Professional may be designated and shall act as the Owner's representative
from the effective date of this Design -Build Contract until one (1) year from the date the
Design -Build Contractor achieves Substantial Completion.
11.1.1 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 Design -Build Contractor on all such matters; and, (iv) administer this Design -
Build Contract.
11.1.2 Unless otherwise directed by the Owner, the Owner and the Design -Build
Contractor shall communicate with each other in the first instance through the
designated Professional. The Owner's instructions to the Design -Build Contractor
will be issued through the designated Professional,
11.1.3 The designated Professional will act as initial interpreter of the requirements of
this Design -Build Contract and as the Owner's advisor on claims.
11.2 Professional Site Visits: The Professional 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 Design -Build Contract, 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.
11.3 Professional Rejection Of Work: The Professional may disapprove or reject Work
which does not comply with (i) this Design -Build Contract 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.
11.4 Professional Evaluations: The Professional will review and evaluate the results of all
inspections, tests and written reports required by this Design -Build Contract and by any
governmental entity having or asserting jurisdiction over the Project. The Professional
will take appropriate action on test results, including acceptance, rejection, requiring
Contract For Construction - Builder's Requ red Sery ces and GeneralTerms and Conditions
13
additional testing or corrective work, or such other action deemed appropriate by the
Professional. The Professbnal will promptly reject Work which does not conform to and
comply with testing requirements.
11.4.1 The Professional may require inspection or testing of any Work in addition to that
required by this Design -Build Contract 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 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.
11.5 Professional Submittal Activities: The Professional 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 Design -Build
Contract; and, (iii) the Owner's budgeted Total Project Construction Cost. The
Professionals 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 Design -Build 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.
11.6 Professional Change Order Activities: The Professional 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.
11.7 Professional Pay Application Activities: The Professional will review applications for
payment, including such accompanying data, information and schedules as the
Professional requires to determine the amounts due to the Design -Build Contractor and
shall authorize payment by the Owner to the Design -Build Contractor in writing_ After the
Design -Build Contractor's scope of the Work is determined to be finally complete and the
Professional determines that the Design -Build Contractor has completed its scope of the
Work, the Professional will determine whether the Design -Build Contractor is entitled to
final payment, and if so will so certify to the Owner in writing.
11.8 Professional Relationship To Design -Build Contractor: The duties, obligations and
responsibilities of the Design -Build Contractor under this Design -Build Contract shall not
be changed, abridged, altered, discharged_ released, or satisfied by any duty, obligation
or responsibility of the Professional. The Design -Build Contractor shall not be a third -
party beneficiary of any agreement by and between the Owner and the Professional.
The duties of the Design -Build Contractor to the Owner shall be independent of, and
shall not be diminished by, any duties or obligations of the Professional to the Owner.
ARTICLE 12
INSPECTION, CORRECTION OF WORK,
AND PROJECT CLOSE OUT
Contract For Construchon - Builder's Required Services and GeneralTerm sand Conditions
14
12.1 Substantial Completion: Substantial Completion of the Design -Build Contractor's Work
shall be deemed to have occurred on the later of the dates that the Design -Build
Contractor's Work passes a Substantial Completion inspection, and the Design -Build
Contractor has produced required Substantial Completion documentation and items.
12.1.1 When the Design -Build Contractor believes that its Work is substantially
complete, it shall notify the Owner and the Professional, if any, that its Work is
ready for a Substantial Completion inspection.
12.1.2 At or prior to the substantial completion inspection, the Design -Build Contractor
will prepare and furnish to the Professional, if any, or Owner 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 Design -Build 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 Design -Build Contractor will complete or correct listed
items; and,
(iii) contain signature lines for the Owner, the Design -Build Contractor and
the Professional, if any.
12.1.3 Upon receipt of notification from the Design -Build Contractor the Professional, if
any, or Owner will coordinate with the Design -Build 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 Design -Build Contractor's Work is
substantially complete, the Professional, if any, or Owner will:
(i) inspect the Design -Build Contractor's Work;
(ii) list additional items to be completed or corrected; and,
(iii) determine, whether Substantial Completion of the Design -Build
Contractor's Work has occurred.
12.1.5 If the Design -Build Contractor's Work is determined not to be substantially
complete, the Design -Build 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 Design -Build
Contractor shall deliver to the appropriate Professional, if any, or Owner, keys,
permits, the 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, if any, or Owner, will obtain and
review Substantial Completion documentation and items, and will inform the
Contract For Construction - Pfe cu red SC- ,v!CIS �s d Terms and C 'OFF
I-5
Design -Build Contractor of any deficiencies.
12.1.7 When the Owner, the Design -Build Contractor and the Professional, if any, agree
that the Design -Build Contractor's Work has passed the Substantial Completion
inspection and the Design -Build 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 Design -Build Contractor's Work shall be
deemed to have occurred on the later of the dates that the Design -Build Contractor's
Work passes a Final Completion inspection and that the Design -Build 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
Design -Build Contractor until the Design -Build Contractor has passed the Final
Completion inspection and the Design -Build Contractor has produced all required Final
Completion close -out documentation and items.
12.2.1 When the Design -Build Contractor believes its scope of the Work is finally
complete, the Design -Build Contractor shall notify the Owner and the
Professional, if any, that the Work is ready for Final Completion inspection.
12.2.2 Upon receipt of such notification from the Design -Build Contractor, the
Professional, if any, or the Owner will coordinate with the Design -Build
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 Design -Build
Contractors Work is finally complete, the Professional, if any, or Owner will:
(i} inspect the Design -Build Contractors Work;
(ii) determine whether the Design -Build Contractor has satisfactorily
completed or corrected all items on the list included with the Declaration
of Substantial Completion;
(iii) determine whether the Design -Build Contractor's Work complies with (a)
this Design -Build Contract; (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,
(v) determine whether the Design -Build Contractor's Work is finally complete.
12.2.4 If the Design -Build Contractors Work is not finally complete, the Design -Build
°_'_ntract For Construction - Builder's Required Services and General7erms and Conditions
I6
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
untilthe Work is finally complete.
12.2.5 On or prior to the date of Final Completion, the Design -Build Contractor shall
deliver to the Professional, if any, or Owner, 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 Design -Build
Contractor beyond final payment, if any, is in effect and will not be
canceled or allowed to expire without notice to the Owners;
(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 Design -
Build 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 Design -
Build 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 Design -Build Contractor's
Work.
12.2.6 The Professional, if any, or Owner, will review and determine the sufficiency of all
Final Completion close -out documentation and items required for Final
Completion which are submitted by the Design -Build Contractor, and will
immediately inform the Design -Build Contractor about any deficiencies and
omissions.
Contract For Construction - Builder's Required Services and General Tenns and Conditions
17
ARTICLE 13
DESIGN -BUILD CONTRACTOR'S WARRANTIES AND GUARANTEES
13.1 One -Year Warranty: In addition to the warranties and guarantees set forth and
elsewhere in this Design -Build Contract, the Design -Build Contractor upon request by
the Owner or the Professional, if any, 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 Owners, whichever is later.
13.1.1 The Design -Build 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 Professional, if any, 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 Design -Build 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 Design -Build Contractor shall promptly reimburse the Owner for
any expenses or damages it incurs as a result of the Design -Build Contractor's
failure to correct the failure or defect.
13.2 Express Warranties And Guarantees - Design -Build Contractor: In addition to the
warranties and guarantees set forth elsewhere herein, the Design -Build 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, andr (iii)
merchantable.
(iii) that all management, supervision, labor and services required for its scope of the
Work shall comply with this Design -Build Contract and shall be and are
performed in a workmanlike manner.
13.3 Express Warranties And Guarantees - Subcontractors And Suppliers: The Design -
Build Contractor shall require that all of its subcontractors and suppliers provide written
warranties, guarantees and other undertakings to the Owner and the Design -Build
Contractor in a form identical to the warranties, guarantees and other undertakings set
forth in this Design -Build Contract, 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 Design -Build Contractor.
Contract For Construction - Builder's Required Services and General Terms and Conditions
18
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 Design -Build Contractor's obligations under this
Design -Build Contract. Paragraph 13.1 relates only to the Design -Build Contractor's
specific obligations with respect to the Work, and has no relationship to the time within
which the Design -Build Contractor's contractual obligations under this Design -Build
Contract may be enforced, nor to the time within which proceedings may be commenced
to establish the Design -Build 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 Design -Build
Contractors 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 Design -Build Contractor.
14.2 Owner's General Duties
14.2.1 The Owner shall timely compensate the Design -Build Contractor in accordance
with this Design -Build Contract.
14.2.2 Unless otherwise required to be provided by the Design -Build 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 Design -Build 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 Design -Build 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 Design -Build Contractor, for any of the
foregoing purposes, be deemed the agent of the Owner.
14.2.5 The Owner shall provide water, gas and electrical energy only as they exist at the
Site prior to the start of construction. The Design -Build Contractor shall be
responsible to provide and pay for connections to, extensions from and means of
using these utilities.
Contract For Construction - Builder's Required Services and Genera Terms and Conditions
19
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 Design -
Build Contractor's field offices.
Acceptance by the Design -Build Contractor of the use of the Owner's water, gas
and electrical energy constitutes a release from the Design -Build Contractor to
the Owner of all claims and liability for any damages or losses which may be
incurred by the Design -Build Contractor as a result of water, gas and electrical
energy outages or voltage variations or surges.
ARTICLE 15
DESIGN -BUILD 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 Design -Build Contractor's
Compensation Schedule is an estimate only, and the compensation to the Design -Build
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 specked in Paragraph 3.2 of
Chapter 1, the Design -Build Contractor shall prepare and present to the Owner and the
Professional, if any, the Design -Build 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 Design -Build 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 Design -Build Contractor shall not
imbalance or artificially inflate any element of its schedule of values. Upon the
Professional and/or Owner's acceptance, the schedule of values shall be used to
process and pay the Design -Build 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 Design -Build Contractor shall invoice the Owner and the Owner shall pay
the Design -Build 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 Design -Build Contractor shall submit
invoices to the Owner requesting payment in accordance with the schedule of
values for labor and services rendered during the preceding thirty (30) calendar
days. Each invoice shall contain such detail and be backed up with whatever
supporting information the Owner or the Professional, if any, requests and shall
at a minimum state:
(i) the total Construction Contract Price;
(ii) the amount due for properly provided labor, materials and equipment
Contract For Construction - Builder's Required Services and General Terms and Conditions
01
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 it offsite storage is approved in
writing by the Owner), be accompanied by written proof that the Owner
has title to such materas or equipment and that such material and
equipment is fully insured against loss or damage;
(i) generally itemize or show a breakdown of the various phases or parts of
the Design -Build 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
Design -Build Contractor's payment to subcontractors and suppliers as the
Owner or the Professional may request.
15.4 Payment Procedures: Payments shall be deemed timely it 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: The Professionars and/or Owner's approval of the
Design -Build Contractor's invoice shall not preclude the Owner from exercising any of its
remedies under this Design -Build Contract, 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 Design -Build Contractor due to:
(i) the Design -Build Contractor's failure to perform its scope of the Work in
compliance with the requirements of this Design -Build Contract or any other
agreement between the parties;
(ii) the Design -Build Contractor's failure to correctly and accurately represent the
work performed in a payment request: or otherwise;
(iii) the Design -Build 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 Design -Build Contractor's failure to use funds previously paid the Design -
Build Contractor by the Owner, to pay Design -Build Contractor's Project-related
obligations including, but not limited to, the Design -Build Contractor's
subcontractors, materialmen, and suppliers;
(v) claims made, or likely to be made, against the Owner or its property;
Contract For Construction • Builder's Required Services and General Terms and Cond tions
21
(vi) loss caused by the Design -Build Contractor or the Design -Build Contractor's
subcontractors, or suppliers; and,
(vii) the Design -Build Contractors failure or refusal to perform any of its obligations to
the Owner.
15.6 Design -Build 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 Design -Build Contractor any amounts then due and
payable to the Design -Build Contractor, the Design -Build 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 Design -Build Contractor in writing of such defect or impropriety. Any
disputed amounts determined by the Owner to be payable to the Design -Build
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 Design -Build 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 Joumal on the weekday following each such Weekly Auction,
15.81 No interest shall accrue when payment is delayed because of a dispute between
the Owner and the Design -Build 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 Design -Build Contract.
15.9 Invoice Warranties And Guarantees: The Design -Build 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 Design -Build 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,
(iii) no goods, products, materials. equipment or systems covered by an invoice have
been acquired by the Design -Build 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 Design -Build
Contract For Construction - Builder's Required Services and Genera Terms and Conditions
Contractor, or its subcontractors or suppliers.
15.10 Design -Build Contractor's Signature: The signature of the Design -Build Contractor on
any invoice constitutes the Design -Build Contractor's certification to the Owner that (i)
the Design -Build Contractor's services listed in the invoice have progressed to the level
indicated and have been performed as required by this Design -Build Contract; (ii) the
Design -Build 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 Design -Build 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 Design -Build Contract, whether or not yet
effective or merely scheduled to go into effect. The Design -Build 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 (ncluding 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 Design -Build Contractor shall cooperate
with and assist the Owner in securing qualified refunds of any sales or use tax paid by
the Owner or Design -Build Contractor on goods, products, materials, equipment or
systems. Any refund secured shall be paid to the Owner.
15.12 Compensation Of Design -Build Contractor's Subcontractors And Suppliers: Upon
receipt of payment from the Owner, the Design -Build Contractor shall pay each of its
subcontractors and suppliers, if any, out of the amount received by the Design -Build
Contractor on account of such subcontractor's or supplier's portion of the Design -Build
Contractor's scope of the Work, the amount to which each entity is entitled, reflecting
percentages actually retained from payments to the Design -Build 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 Design -Build Contractor's subcontractors or
suppliers. However, the Owner reserves the right, but has no duty, to make payment
jointly to the Design -Build Contractor and to any of its subcontractors or suppliers in the
event that the Owner becomes aware that the Design -Build Contractor fails to pay or
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 Design -Build 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 Design -Build Contractor within fourteen {14) calendar days of a
Professionals execution of a final approval for payment.
ARTICLE 16
SCHEDULE REQUIREMENTS
16.1 Construction Schedule: The Construction Schedule shall include all pertinent dates
contract For Construction -Builder's Required Services and General Terms and Conditions
23
and periods for timely completion of the Work.
16.1.1 Unless otherwise directed and approved by the Owner, the Design -Build
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 the Professional, if any,
do not assume any of the Design -Build 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 Design -Build Contractor of any of its responsibilities.
16.1.4 The Design -Build Contractor shall review, on a weekly basis, the actual status of
its scope of the Work against the Construction Schedule. The Design -Build
Contractor shall discuss the status of its scope of the Work weekly with the
designated Professional, if any, or the Owner: so that proper overall
management may be provided.
16.1.5 The Design -Build Contractor shall periodically and in all instances when the
Design -Build 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 milestone dates required by the Owner, if any.
16.2 Delay In Performance: If at any time the Design -Build Contractor anticipates that
performance of its scope of the Work will be delayed or in fact has been delayed, the
Contract for Construction - Builder's Required Services and General Terms and Conditions
24
Design -Build Contractor shall (i) immediately notify the Professional, if any, or the
Owner, of the probable cause of and effect from the delay, and possible alternatives to
minimize the delay; and, (io 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 Design -Build Contractor shall determine
and promptly notify the Owner and the Professional, if any, 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,
if any.
16.4 Early Completion: Design -Build 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 Design -Build Contractor's sole convenience
and shall not create any additional Design -Build Contractor rights or Owner obligations
under this Design -Build Contract, nor shall it change the required dates of Substantial
Completion or Final Completion. The Owner shall not pay the Design -Build Contractor
any additional compensation for achieving Substantial Completion or Final Completion
prior to the required dates nor will the Owner owe the Design -Build Contractor any
compensation should the Owner cause the Design -Build 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 Design -
Build Contractor may propose modifications to the required dates of Substantial
Completion or Final Completion_ The Owner may, but is not required to, accept Design -
Build 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 Design -Build Contract 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 Design -Build 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 Design -Build Contractor shall provide documents to the Owner
and Professional, if any, for review in accordance with schedule requirements and with
sufficient lead time to allow the Owner and Professional reasonable time for review.
ARTICLE 17
LIQUIDATED DAMAGES
17.1 Time is Of The Essence: The parties hereto mutually understand and agree that time is
of the essence in the performance of this Design -Build Contract and that the Owner will
incur damages if the Design -Build Contractor's scope of the Work is not completed on
time. The Design -Build 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
Contract For Construction - Builder's Required Services and General Terms and Conditions
25
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 Compensable Delay: If the Design -Build 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, if any; (ii) major changes ordered by the Owner in the scope of Work; or
(ii) any other cause which the Owner determines may justify the compensation of the
Design -Build Contractor for the delay, the Design -Build Contractor's compensation shall
be equitably adjusted to cover the Design -Build Contractor's actual and direct increased
costs attributable to such delay.
17.3 Excusable Delay: If the Design -Build 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, if any; (ii) major changes ordered by the Owner in the scope of Work; (ii)
fre; (iv) unusual delays in transportation; (v) adverse unusual weather conditions not
reasonably anticipated by the Design -Build Contractor; (vi) unavoidable casualties; (vi)
causes beyond the Design -Build 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 Design -Build Contractor or by any cause which the Design -Build
Contractor could reasonably control or circumvent; (ii) the Design -Build Contractor would
have otherwise been able to timely perform all of its obligations under this Design -Build
Contract but for such delay; and, (iii) immediately but not later than seven (7) calendar
days after the beginning of any such delay the Design -Build Contractor gives notice of its
delay claim to the Owner.
17.4 Owner's Right To Withhold Payment: When it reasonably believes (i) that Substantial
Completion will be inexcusably delayed; or (ii) that the Design -Build 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 Design -Build
Contractor the daily amount specified for liquidated damages in this Article for each
calendar day of the unexcused delay.
17.4.1 If and when the Design -Build 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 Design -
Build Contractor those funds withheld, but no longer applicable, as liquidated
damages;
17.4.2 Delay caused by labor disputes, picketing, employee boycotts, or the like which
directly or indirectly involves employees of the Design -Build 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 Design -Build Contractor
Contract For Construction - Builder's Required Services and General Terms and Conditions
26
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 Design -Build Contractor, the Design -Build Contractor shall promptly, but
in no event later than three (3) calendar days after first observance of the conditions,
notify the Professional, if any, and the Owner before conditions are disturbed giving the
Professional 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 Design -Build Contractor's cost of, or
time required for, performance of its scope of the Work, the Design -Build
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 Design -Build Contractor's failure to notify the Professional, if any, and Owner
as provided in this Article shall constitute a waiver of any claim arising out of or
relating to such concealed or unknown condition.
ARTICLE 19
DESIGN -BUILD CONTRACTOR'S RECORDS
19.1 Preparation Of Records: The Design -Build Contractor shall, concurrently with
performance of its services, prepare substantiating records regarding services rendered
and goods furnished.
19.2 Retention Of Records: The Design -Build 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 Design -Build 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 Design -Build Contractor receives
notification of a dispute or the commencement of litigation regarding the Project within
this five (5) year period, the Design -Build Contractor shall continue to maintain all Project
records untilfinai resolution of the dispute or litigation.
19.3 Access To Records: Upon the request of the Owner, the Design -Build 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 Design -Build Contractor's records at the copying party's
reasonable expense, within adequate work space at the Design -Build Contractor's
facilities. Failure by the Design -Build 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 Design -Build Contractor pursuant to this Design -Build Contract.
Contract For Construction - Builder's. Required Senrces and Generat Terms and Conditions
ARTICLE20
PROPRIETARY DOCUMENTS AND CONFIDENTIALITY
20.1 Nature And Use Of Information: All information, documents, and electronic media
furnished by the Owner to the Design -Build 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 Design -Build Contractor; and, (v) shall not be used by
the Design -Build 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 Design -Build 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 Design -Build Contractor for the Project are the sole property of the
Owner free of any retention rights of the Design -Build Contractor. The Design -Build
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 Design -Build Contractor for the Project, free of any copyright claims, trade secrets or
other proprietary rights with respect to such documents.
20.3 Disclosure Of Information: The Design -Build 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 Design -Build Contract
20.4 Instructions To Employees: Because it is difficult to separate proprietary and
confidential information from that which is not, the Design -Build 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 Owners;
(ii) shall be kept in force throughout performance of the Design -Build Contractor's
services and for one (1) year after the end of such performance;
(iii) shall be an occurrence policy; and,
Contract For Construction • Builders Required Services and General Tenns and Conditions
(iv) shall be evidenced by a certificate of insurance acceptable to the Owners which
provides that the coverage evidenced thereby shall not be substantially modified
or canceled without thirty (30) calendar days' prior written notice to the Owner.
21.2 Certificates Of Insurance: Prior to performance of services on the Project, the Design -
Build 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 Design -Build 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 Design -Build 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
Design -Build Contractor or its subcontractors and suppliers. Upon the request of the
Owner, the Design -Build 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
Design -Build Contractor of any responsibility to indemnify the Owner for any liability to
the Owner as specified in any other provision of this Design -Build Contract and the
Owner shall be entitled to pursue any remedy in law or equity if the Design -Build
Contractor fails to comply with the contractual provisions of this Design -Build Contract.
Indemnity obligations specified elsewhere in this Design -Build Contract 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 Design -Build Contractor hereby releases and discharges
the Owner and the Owner's Related Parties of and from all liability to the Design -Build
Contractor, and to anyone claiming by, through or under the Design -Build 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 Design -Build 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 Design -Build Contract;
(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,
Contract For Construction - 6ulder's Required Services and General Terms and Conditions
29
(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 Design -Build Contractor shall deliver any required bond(s) and
power(s) of attorney to the Owner prior to commencement of the Work.
ARTICLE23
OWNER'S RIGHT TO STOP WORK
23.1 Cease And Desist Order: If the Design -Build 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 Design -Build Contract, the Owner may, by written notice, order the
Design -Build 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 Design -Build 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 instruct that the Work may resume.
23.1.1 The Design -Build 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 Design -Build 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 Design -Build Contractor or
other.
23.1.3 in the event the Owner issues instructions to cease and desist, and in the further
event that the Design -Build 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 Design -Build 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 Owners may have against the Design -Build Contractor.
ARTICLE24
TERMINATION OR SUSPENSION OF
DESIGN -BUILD CONTRACT
24.1 Termination For Cause By Owners:
24.1.1 The Owners may terminate this Design -Build Contract for cause if the Design -
Build Contractor materially breaches this Design -Build Contract by:
(i) refusing, failing or being unable to properly manage or perform on any
Project;
Contract For Corrstruction - Buti:, s Required Services and Generafferms and Conditions
30
(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 Design -Build Contract 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 Design -
Build Contractor.
24.1.2 Upon the occurrence of any of the events described in Paragraph 24.1.1, the
Owner may give notice to the Design -Build 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 Design -Build 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 Design -Build Contractor's scope of the
Work, including supplying workers, material and equipment which the
Owner deems expedient to complete the Design -Build Contractor's scope
of the Work;
(ii) contract with other builder(s) to complete all or any part of the Design -
Build Contractor's scope of the Work, including supplying workers,
material and equipment which the Owner deems expedient to complete
the Design -Build Contractor's work;
(iii) take such other action as is necessary to correct such failure; and,
(iv) give notice to the Design -Build Contractor of immediate termination.
24.1.3 If the Owner terminates this Design -Build Contract 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 Design -Build Contractor;
(ii) directly pay the Design -Build Contractor's subcontractors and suppliers, if
any, compensation due to them from the Design -Build Contractor;
(iii) finish the Design -Build Contractor's scope of the Work by whatever
method the Owner may deem expedient; and,
Contract For Construction Builder's Requ•red Services and General Tenns and Conditions
(iv) require the Design -Build Contractor to assign the Design -Build
Contractor's right, title and interest in Design -Build Contractor's
subcontracts or orders to the Owner.
24.1.4 If the Owner terminates this Design -Build Contract for cause, and the Owner
takes possession of all materials, tools, construction equipment and machinery
on the Site owned or leased by the Design -Buid Contractor, the Design -Build
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 Design-Build Contractor its damages resulting from the
termination.
24.1.5 If the Owner terminates this Design -Build Contract 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.
24.2 Termination For Cause By Design -Build Contractor:
24.2.1 The Design -Build Contractor may terminate this Design -Build Contract for cause
if the Owner materially breaches this Design -Build Contract by:
(i) refusing, failing or being unable to make prompt payment to the Design -
Build 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 Design -Build Contract or any other agreement
between the Owner and Design -Build Contractor.
24.2.2 Upon the occurrence of any of the events described in Paragraph 24.2.1, the
Design -Build 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
Design -Build 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 Design -
Build Contractor_ effective in twenty -one (21) calendar days, terminating this Design -
Build Contract in whole or in part, for the Owner's convenience and without cause.
24.4 Design -Build Contractor's Compensation When Design -Build Contractor
Terminates For Cause Or Owner Terminates For Convenience: If this Design -Build
Contract is (i) terminated by the Design -Build Contractor pursuant to Paragraph 24.2; or
(ii) terminated by the Owner pursuant to Paragraph 24.3, the Owner shall pay the
Design -Build 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 Design -Build Contractor.
contract For Construction - Builder's Required Services aid General Terms and Conditions
32
Absent agreement on the additional amount due the Design -Build Contractor, the Owner
shall pay the Design -Build Contractor:
(i) reasonable costs incurred in preparing to perform the terminated portion of its
scope of the Work, and in terminating the Design -Build 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 Design -Build 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.
24.5 Design -Build Contractor's Compensation When Owner Terminates For Cause: If
this Design -Build Contract is terminated by the Owner for cause pursuant to Paragraph
24.1, no further payment shall be made to the Design -Build Contractor until Final
Completion of the Project. At such time, the Design -Build 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 Design -Build Contractor, including liquidated
damages applicable thereto. The Design -Build 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 Design -Build 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 Design -Build Contract, and shall in no event include duplication of
payment,
24.7 Design -Build Contractor's Responsibility Upon Termination: Irrespective of the
reason for termination or the party terminating, if this Design -Build Contract is
terminated, the Design -Build 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 Design -Build Contractor has.
24.8 Lack Of Duty To Terminate: The right to terminate or suspend the Work shall not give
Contract For Construction - Builder's Required Services and Genera Terms and Conditions
33
rise to a duty on the part of either the Owner or the Design -Build Contractor to exercise
that right for the benefit of the Owner, Design -Build Contractor or any other persons or
entities.
249 Limitation On Termination Claim: If the Design-Build Contractor fails to file a claim
within one (1) year from the effective date of termination, the Owner shall pay the
Design -Build Contractor only for services actually performed and expenses actually
incurred prior to the effective termination date.
ARTICLE25
APPLICABLE LAW AND DISPUTE RESOLUTION
25.1 Applicable State Law: This Design -Build Contract shall be deemed to be entered into
in and shall be interpreted under the laws of the state in which the Project is located.
25.2 Court Actions: Except as expressly prohibited by law:
(i) all legal actions hereunder shall be conducted only in state court or federal court
districts where the Project is located and having subject matter jurisdiction over
the matter in controversy; except that any final judgment may be enforced in
other jurisdictions in any manner provided by law;
(ii) the choice of jurisdiction and venue described in the preceding paragraph shall
be mandatory and not permissive in nature, thereby precluding the possibility of
litigation or trial in any jurisdiction or venue other than that specified herein;
(ii) 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 Design -Build Contract 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 Design -Build
Contract 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 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
Contract ror Comtruction - Builder's Required Services and General Terms and Conditions
34
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, if any, the Design -Build 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 Design -Build Contract or an
agreement that incorporates this Design -Build Contract by reference or signed
any other agreement which binds them to mediate. Each such party agrees that it
may be joined as an additional party to a mediation involving other parties under
any such agreement. In the case where more than one mediation is begun under
any such agreement and any party contends that the mediations are substantially
related, the mediations may be heard by the mediator selected in the first
mediation which was commenced.
25.5 Conflicting Dispute Resolution Provisions: Neither party to this Design -Build
Contract 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
Design -Build Contract. no party to this Design -Build Contract shall be required to
participate in or be bound by. any arbitration proceedings.
25.7 Performance During Dispute Resolution: The Owner and the Design -Build
Contractor agree that pending the resolution of any dispute, controversy, or question, the
Owners and the Design -Build Contractor shall each continue to perform their respective
obligations without interruption or delay, and the Design -Build Contractor shall not stop
or delay the performance of its scope of the Work_
ARTICLE 26
DAMAGES AND REMEDIES
26.1 Design -Build Contractor's Repair: The Design -Build 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
Design -Build Contract, or any other applicable warranty or guarantee.
26.2 Design -Build Contractor's Reimbursement: The Design -Build Contractor shall
promptly reimburse the Owner for any expenses or damages incurred by the Owner as a
result of (i) the Design -Build Contractor 's failure to substantially perform in accordance
Contract For Construction - Builders Required Services and Genera Terms and Conddions
19361
with the terms of this Design -Build Contract; (u) deficiencies or conflicts in the
Construction Documents attributable to the Design -Build Contractor or of which the
Design -Build Contractor was or should have been aware; (iii) breach of the warranties
and guarantees set forth in this Design -Build Contract or any other applicable warranty
or guarantee; or (iv) other acts or omissions of the Desgn -Build Contractor.
26.3 General Indemnity: To the fullest extent permitted by law the Design -Build Contractor
shall secure, defend, protect, hold harmless, and indemnify the Owner and the Owner's
Related Parties from and against any and all liability, loss, claims, demands, suits, costs,
fees and expenses (including actual fees and expenses of attorneys, expert witnesses,
and other consultants), by whomsoever brought or alleged, and regardless of the legal
theories upon which premised, including, but not limited to, those actually or allegedly
arising out of bodily injury to, or sickness or death of, any person, or property damage or
destruction (including loss of use). which may be imposed upon, incurred by or asserted
against the Owner or the Owner's Related Parties allegedly or actually arising out of or
resulting from the Design -Build Contractor's services, including without limitation any
breach of contract or negligent act or omission (i) of the Design -Build Contractor; or (ii)
of the Design -Build Contractor's subcontractors or suppliers, if any, or (iii of the agents,
employees or servants of the Design -Build Contractor or its subcontractors or suppliers,
if any.
26.3.1 To the fullest extent permitted by law, the Design -Build 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 Design -
Build 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, if any, in writing. If the Design -Build Contractor has reason to
believe the use of a required design, process or product is an infringement of a patent,
the Design -Build 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 Design -Build Contract contained herein shall not limit the
Owner's right to invoke any other remedy available to the Owner under this Design -Build
Contract or by law.
26.6 Waiver Of Damages: The Design -Build 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.
Contract For Construction - Builder's Required Services and General Terms and Conditions
26.7 Interest: The Owner is entitled to interest on all amounts due from the Design -Build
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 Design -Build Contract represents the entire and integrated agreement
between the Owner and the Design -Build Contractor, and supersedes all prior
negotiations, representations or agreements, eiither written or oral, for the Project. This
Design -Build Contract may be amended only by written instruments signed by both the
Owner and the Design -Build Contractor, and is subject to such reasonable modifications
as may be required by the Owner's lender(s) or insurer(s). if any.
27.2 Severability: If any provision of this Design -Build Contract, 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 Design -Build Contract 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 Design -Build Contract.
27.4 Strict Compliance: No failure of the Owner to insist upon strict compliance by the
Design -Build Contractor with any provision of this Design -Build Contract shall operate to
release, discharge, modify, change or affect any of the Design -Build Contractor's
obligations.
27.5 Third -Party Beneficiaries: This Design -Build Contract shall inure solely to the benefit of
the parties hereto and their successors and assigns, and, except as otherwise
specifically provided in this Design -Build Contract, nothing contained in this Design -Build
Contract 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 Owners or the Design -Build
Contractor.
27.6 Survival: All provisions of this Design -Build Contract 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 Design -Build Contract 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 Design -
Build Contractor bind their successors and assigns to the other party to this Design -Build
Contract.
27.8 Execution Of Documents: Upon the request of the Owner, the Design -Build
Contractor shall execute documents required by the Owner's lender whereby the
Design -Build Contractor agrees that in the event of the Owner's default under, or the
Contract For Construction - Builder's Required Services and General Terms and Condtuons
37
termination of, any construction loan agreement, the Design -Build Contractor will
complete the services required by this Design -Build Contract under the terms and
conditions contained herein so long as the lender fulfils the obligations of the Owner
toward the Design -Build Contractor as set forth in this Design -Build Contract.
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 the Design -Build Contractor, a trade contractor or
a construction manager, engaged directly by the Owner pursuant to a Design -Build Contract,
Construction Contract Price: The dollar amount for which a Builder agrees to perform the
Work set forth in a Design -Build Contract.
Construction Documents: City of Eagle Design -Build Contract, change orders, City of Eagle
Mountain Bike Skills Course RFP, 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.
Design -Build Contract: 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 administer the Project on
behalf of Owner.
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 Design -Build Contract 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 § 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 § 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 toiac or hazardous under
any applicable law, regulation, ordinance, directive or ruling; and, (e) any infectious or medical
Contract For Construction - Builder's Requred Services and GeneralTenns and Conditions
38
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: The entity with which the City of Eagle has contracted to administer the Project.
Project: A planned construction undertaking as more specifically described in the City of Eagle
Design -Build Contract.
Project Design Schedule: The timetable which sets forth the required relationships between,
and pertinent dates for, required completion of design and engineering services, documents and
related activities.
Site: The geographical location of a Project, usually defined by legal boundary lines, and the
location characteristics including, but not limited to, grades and lines of streets, alleys,
pavements and adjoining structures, rights -of -way, restrictions, easements, encroachments,
zoning, deed restrictions, existing buildings and improvements, and service and utility lines.
Substantial Completion: The stage of construction when the Owner can occupy or
beneficially use satisfactorily completed Work for its intended purpose.
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.
Contract For Construction - Builder's Requ red Sery ces and General Terms and Conditions
J9
TABLE OF CONTENTS
ARTICLE I THE CONTRACT DOCUMENTS ............................................ ..............................1
3.1 Conflicts In ..................... ................ .....,.1
1.2 Shop Drawings And Submittals ........... .......................... _ ..... .. ....... ................. 'I
1.3 Contract Changes .............. . a................................................... ................. ........... .....1
ARTICLE 2 0FSI`GN -1BUILD CONTRACTOR'S REVIEWS AND EVALUATIONS .......................1
2.1 Sufficiency Of Construction Documents ....... ............................. ..............................1
2.2 Sufficiency Of Site Condition5 ......................................»....,.....,, ..........,,,,......,,........2
ARTICLE 3 DES N -BUILD CONTRACTOWS; DUTIES, OBLIGATIONS AND
RESPONSIBIL1TJES ........... ... ... ,,,....,.,,...,... ,.............................- .., .....,.,......................3
3.1 Perkma ace Of W4xk . _ ............................ ............................... . ..................»...,...,,.,3
3.2 Complionsoe With Governmental Requirements .......................... ..............................3
33 , Safety ............................... ,..,.......,,.....,.,,..,.............................. ................. ».....,......4
3.4 Concurrent Records .............................,,...,.......... ............................... ..............4
3.5 As- Built Drawings ........................... ......................,...,............... .............,................4
3.6 Bribes And }dick- Barks ............................ . .. .......... .,,..........................4
3.7 Quality Control And Testing. ....
3 8 Incident Reporting ............ ............... ........ ,.,.,........ 4
3.9 hazardous Subsiances ............................... ......................... . .. ... ....................,,..
3.1 D Owners' Use Of And Access To The Site ............. ............................... .................5
3.11 Site Control And Cleanup ................... ................................... ..............................5
3.12 Advertising , Pfohibifion ............................................. ...................._.- ._.. - -.- .......,,.....
3.13 Commissioning ........ ..... ...... ..., ..,,...... ...,.........................., .,,- .........,,.,..,..,.....8
3.14 Permits ... . .... .. ............................... ..................-.....,.,,.,.., ,............................,$
ARTICLE 4 DESIGN -BUILD CONTRACTOR'S PERSONNEL. SUBCONTRACTORS,
AND SUPPLIERS ......» .............. ............................... .... ..............................8
4 -1 Project Staffing .............................. ...................... ............................... ................6
42 Subcontractor i Supplier Contracts ............. ............................... .............................8
4.3 Resolution Of Trade Disputes-.. _ ........... ......... ............... ____ ................... ........,.....7
ART] C!_E 5 GOODS, PRODUCTS AiND MATER IA .............................. ..............................7
5.1 Quality Of Materials ................. ..... .......... .. ......... , ........ .................... ... ,.........,., - ...... -7
5.2 Installation And Use Of Materials.....,__ . .............. ............................... V,.....
5.3 Unsuitable Materials .................. ......................... ........ ... ........ ..... .....,,............. .-- ,...,_ -8
5 -4 Security For Work In Progress. .......... .......
ARTICLE 6 DOCUMENTS AND ItwlFORIVIATION..,.
........... ..............................8
6.1 InforirnaWn From Owners ........ ................................................. ..............................S
6.2 Resolution Of c u tons .............................. .................................. .........................._9
5.3 Processing Of O ocuments ........................»...........,. ......,...........,............ .............�
Contract Fqr Construction - G lder's A "aired Servi es and Gomm, Tenrs arkd CWKNtkM
ARTICLE 7 SUBMITTALS ......................... ........ ' ................... _ .... ...................................... j9
7.1 Submittal Schedule ... ... ....... .................... ................ ........ ................................... 9
ARTICLE B DESIGN-BU |LID INSPECTION OF AND CORRECTION OF
81 Rejection And Correction Of Work |n Progress ... ...... . ....... ....... .--- ...... --_lD
8.2Covered OrConcealed Work.. ..........................
ARTICLE 9 CHANGE ORDERS AND CHANGES TO THE WORK ............ ...... 11,11
9'1 Change Order Requests ....... ......................................... ...... ................................
11
92 Owner-Directed Changes .............. ..-~.............. . ............... ..................... ..............
�1
S.3 Administration Of Chongem—_.-.—__..................... ...... _ ... --...................
~..-�1
9-4Cumpenmodion For Chan0ss—.-._---- .............. ___ ........
--_--_-_.�1
9-5 Performance Of Changes ...................... ......... ....... ...... _ ................................... 12
9.6 Disputes Regarding Changes ............ -' ... ... - ..................................................... 12
0.7 Necessity For Signed Writing ... ... .......... ......... `—_..... ~ ............... '....... .... -,12
10.1 Notification Regarding Liens ...... ___ ......... —, ....................................
—_-_-1�
10-2 Discharge OfLkNns.—.. ........ ....... ........... —......... ....................... ....... —.—._13
ARTICLE I| OWNER'S CONS AND CONSTRUCTION
11.1 Owners' Designate d Profe*moiouoal Representa0ve ......... ~,~ ..................... ---------- 13
11.2 Professional Site Visits ................. .......... —.................. _ ................ ............ 13
11.3 ProNmoslons8 Rejection OfVVbrk..-. ....... ,_.__........ _.._,—._._._,'_,-13
11/4 1P«0f&S,9i»nM EvWuations ....... ---_.---.---....... --...... ........ .—__-_14
11.5Profe$sWonai Submittal Aaieitiewx--'_ ........ .............................. . ... ....... _—.14
11.6 Professional Change OrderAotividos; —._...... ......... ...................... ............ ... _'114
11,7Pnoilbssloria1 Pay App4cation AcWdlies -~_.— ..... ....... ... ........ --_._--.~14
ARTICLE 12 INSPECTION, CORRECTION OF WORK, AND PROJECT CLOSE OUT .... ,~,15
12.1 Smbstamga| ......... -._. ..................... ............ . ....... .... ...... ___ ...... 15
12-2 Final Conrilpletkm ... -- .............. _ ....... --- ....... ...... ..................... ......... ...... 16
ARTICLE 13 DESIGN-BUILD CONTRACTOR'S WARRANTIES AND GUARANTEES ............ 18
13.1 One-Year Warranty ---....................................................... _ .................... __.18
132 ExpneaaWanantiesAndGuonantees-Desigm'Bu||d Cont nvctor ......... ........... -'18
133 Express Warranties And Guarantees- Subcontractors And Suppliers ...... ...... ..1B
Cwma,t Fe,Consl.udion~84Weirs Requ,reJaerv1mm.An1 GeneralTprm,and Copdtliojis
13.5 Nan- LimMikabon .......... .. ...... ..... ..... ....... ___ ...... ... .................................... ..........19
13.6 Commencement Of Obl igations ............................................. .............................19
ARTICLE 14 OWNERS' DUTIES, OBLIGATION'S AND RESPONSIBILITIES ...................:......15
14 -1 Owners Representagive ......... ............................ .......... .__. ........ . ............ ................. 19
14,2 Owners' Generei Duties ...- ............. .......... ..... ................. .......... ...........19
ARTICLE 15 DE I,G,Nr 'S'i ILD CONTRACTOR'S COMPENSATION TION ............. .........................:...2Q
15,1 [;Unit Prices .. . . ............... .............................., ,,......, .............................._ ....,....20
15;2 Schedule Of Velues.-.--...... ...................................................... .............................20
..... . .-- - . .
15.3 Invoicing Procedures . .. ....................... ... ............ .............._..............20
.
15.4 Payment 'Procedures .................... ..... ..
21
15.5 Owners' Right To Refuse Payment ............ ..... .... ............. ...4----- -- - - - - -- 1.,...-,.,. .........
21
15.8 DesigrrBufld Contractor's Right To Refuse Performance For Non- Paynvnt..- .......
22
15.7 Correction Of past Payn -ants .... ...................... .... -.... ,,.......,,, .................,..,..........
15,8 Interest Can Outstanding Amounts Due ... .................. .,,..,. ,,.,............... ,................... 22
15.9 lrnvoice Warranties Arid Guarantees .............. .......................................... __ ........
22
15.10'Design -Build Contractor's Signature......... ........ ___ ........................... .........
..23
1:5.11 Takes ............... .................................................................. .............................23
15.12 Gvrrlpansetion Of Design -Build ConfrWors Sutamntrackws And Suppliers ... ,....
23
15.13 Final Payment ................. .. ......... ....m.........,................ .... ............,.,,.,..,,....,..23
ARTICLE 16 SCHEDULE REQUIREMENTS .............................................. ................ .............24
16.1 Construction Schedule ............. .................. ............................... .. .. - -.- ...,.,..,,24
16.2 Delay In Performance........ ,.. ........................... ............................... 25
16.3 Mad'itications To Time For Pe rformance ... ....... .............. ................ ,.. .................. 25
18,E Larly Completion .......................... .. ........................ ............................... - .,,,.....25
18,6 Modification Dales Of Substantial Completion Or Final Completion...... . ...... - ... .... 25
1D -6 Document Review ..... .:................................................ ............................... ......25
ARTICLE 17 LIQUIDATED DAMAGES--- ......... ............ — ... ... a ................ __ ........ — ..... __ S
17.1 thine Is Of The Essence..... .................. ____ ................ __ ....................... — ... ..... 26
17.2 Compensable Delay... ............... _-_ ........... ___ .......................... ...................... 26
17,3 Excusabte Delay_-, ...... — ...................... _ ... .......... ,,.... .... ........... .., .................. .,,. 6
17.4 Owner's Right To Withhold Payment... ...... - ............ ............................ ,. _...,....26
ARTICLE 18 CONCEALED AND IJN ORSEEN CONDITIONS....... ............. ____ .......... ... 27
18.1 Notification Regarding Unusual Conditions .,..... ............................... ...... ............27
ARTICLE 19 DESIGN -BUILD CONTRACTOR'S RF—C ORDS ..................... ............................... 27
19.1 Preparation Of Records ......................................................... ............................... 27
192 Retentlon Of Records . ...... ... .............................. . ............ ....,........................27
183 Access To Records ...................... .................... ....... ..--...,........ ........................ .....28
ARTICLE 20 PROPRIETARY DOCUMENTS AND C�] N)` 1DENTIALIT` r'..-... ... ...........:..............2$
Contract Far Connifuction - Builder's Required ."Sarv'Zes and General Tenns and Conditions
20.1 Nature And Use OfInformation .............. -............ ....... ........ ._—..~--........ .....28
20.2 Onn8mship [X Information ... ....... . .......... —........................... ...... _................ 28
20.3 Disclosure Of Information ...................... ........... ..... ......... ............... ............. ...28
20/4 Instructions To Employees ...................... —. ........ ___ ...... ._. ........ ..................... 28
20.5 .......... ......... .......... ...... ......... ..~.. .......... .......... ..._ ..... '_28
2t1 General insurance --- .............. ....... ........ _ .......... _' ...... . ... ,--2G
21.2 Certificates Of Insurance_ _ ....... .......... .............. ...................... ............. _--38
21.3 Effect Of lnw&wmNmee. ....... ..... —_'^'_..'-_..'.~........... ................ ............ ......... 20
23.1 General Bond Requirements ... ... ..... —...... ............. ......... ... ...... .......................... 29
222 Delivery Of Bonds ... ............. ...... ........ .......... ....... .............. '..................... 30
ARTICLE 23 OWNERS' RIGHT TO STOP WORK.. ........... . ..... .................... ................ ..8O
23`1 Cease And Nsist{}rdsr ............. .......... ...... .... .............. ................................ 30
ARTICLE 24 TERMINATION OR SUSPENSION OF DESIGN-BUILD CONTRACT .......... _-.31
24.1 Termination Fur Cause 8y {}mmers-- .... ....... .............. ............ — ....... __-31
24.2 Termination For Cause ByDeuign'Build Contractor ........ ............. __'~ ........ ... 32
24.3 Termination For .--'-------------33
24.4 Design-Build Contractor's Contractor
Tenn|ma\as For Cause Or Owners Terminate For Convenience '. —''—'--''—'33
24.5 Design-Build Contractor's Compensation When Owners Terminate For Cause.—.33
24.8 Limitation On Termination Compensation ........—...-...--.-----.--.,.,--.,��
24.7 Design-Build {:oMtr$xlzfe Ra8pWmribi|iiy UpomTe"netizn --'--..----....—...33
24.8 Lack Of Duty ToTerrninobe.-. ................... - .—._._—.,_.'^..—_--..---..34
25.1 Applicable State Law ..................... ~ ..... ___ ... ............ -........... ............ ---34
25.2 Court Actions ... ..... ___ ...... ....... ............. ___ ......... ----...---_---34
25.3 Mutual Discussion -__._—.—..—_..-~~........... .. ............... —
....... ........ 34
25.4 Facilitative Mediathon --_.,... -------
...... -_.—.34
25.5Comfliaino Dispute Remdutiiom Provisions .-----_----._-._---_--.^'�5
25.6 Arbitration Preclusion .................... .'................................... .. ..............
--_3H5
ARTICLE 26 DAMAGES AND REMEDIES ....... ......... ........ .—~...---................... .............. 36
25] Design.-Build Contractor's ...... ~—.---...... .__.-... ........ _................. 36
26.2Oesfgn'Bwi|d Contractors ...— ......... ................... —'_—'_.'-36
26.3 General Indemnity .................................... . ......... --...... .' ............. ........... -�56
26'4 Intellectual' Prop" Indemnity ............. ____ .................... .................. ........... -_36
26.5 Nun Of Owners Remedies . .......... ........... .._ ... ___ ....... -_'........ ....... 37
26.6 Waiver Of Damages --.._--_._-..................... ............ ........ ...... ................... 37
28.7 Interest.. ~.-..-,~..-~..~..-._-_-._._-.-_-__......--...-..,..... 37
271 Integration ......................... ... ...... ............ .............................. ...... ........ .... .37
27-2 Seve ....................... __`................... .............. .................. ........ ..... ___ 37'
27.3 Waiver ............ ................. .^-----''^~~~`----'............. ' .............. ---37
ZT4Strict.............. -.................... .......... ................. --.......... 37
27.5Thimd'Pady BeNekiamin .... .......................... -.--'-_~--.~~'-~^^^^'~~^^~-''37
27.6 Survival ............... ..... ___ ,..,,,_,_-,,_,,, ........................ __ ... ...... . .... ........ 37
27.7Ayakqnnnwnt .......... _—.-,-__.-_-,-~.'.-^'...................... ............... .............. 36
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and General Terms anmc IL" ummn`