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MEMORANDUM
To: Mayor, City Council, City Manager
From: Mark T. Sokolow, City Attorney ~ ~
Subject: P. R. No. 12133; Council Meeting April 1, 2003
Date: March 28, 2003
Attached is P. R. No. 12133 authorizing the Executive Director
of the City of Port Arthur Section 4A Economic Development
Corporation to execute a design/builder agreement, upon approval
from the Board of Directors of the City of Port Arthur Section 4A
Economic Development Corporation. The name of the design/builder
needs to be designated. These following companies submitted
proposals:
1. Simco Enterprises, Inc.
2. Bruces General Construction
3. Schaumburg & Polk, Inc.
4. Dikita Engineering
5. D. P. Consulting Engineers,
6. T&N Laboratories, Inc.
Inc.
MTS/ts
Attachment
CC:
Executive Director, EDC
VIA FACSIMILE (409) 724-7585
Jim wimberley
VIA FACSIMIL~
Carl Parker
(409) 985-2833
P. R. No. 12133
03/27/03 ts
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE EXECUTIVE
DIRECTOR OF THE CITY OF PORT ARTHUR SECTION
4A ECONOMIC DEVELOPMENT CORPORATION TO
EXECUTE A DESIGN/BUILDER AGREEMENT, UPON
APPROVAL FROM THE BOARD OF DIRECTORS OF THE
CITY OF PORT ARTHUR SECTION 4A ECONOMIC
DEVELOPMENT CORPORATION
WHEREAS, the City Council deems it in the best interests of
the citizens of Port Arthur to authorize the Executive Director of
the City of Port Arthur Section 4A Economic Development Corporation
to enter into a design/builder agreement with
Directors of the City of
Development Corporation.
, upon approval from the Board of
Port Arthur Section 4A Economic
NOW THEREFORE,
OF PORT ARTHUR:
Section 1.
true and correct.
Section 2.
BE IT RESOLVED BY THE CiTY COUNCIL OF THE CITY
That the facts and opinions in the preamble are
Development Corporation is herein
design/builder agreement with
· in substantially the same form
as attached hereto as Exhibit "A",
Port Arthur Section 4A Economic Development Corporation,
changes as are approved to by the City Attorney.
upon approval from the City of
with such
Section 3.
That a copy of the caption of this Resolution
Arthur Section 4A Economic
authorized to execute a
That the Executive Director of the City of Port
be spread
A.D.,
of Port Arthur,
Mayor
upon the Minutes of the City Council.
ADOPTED AND APPROVED on this day of
2003, at a Regular Meeting of the City Council
Texas, by the following vote: AYES:
, City Council
of the City
NOES:
ATTEST:
OSCAR ORTIZ, MAYOR
EVANGELINE GREEN, CITY SECRETARY
APPROVED AS TO FORM:
MARK T. SOKOLOW, CITY ATTORNEY
APPROVED FOR ADMINISTRATION:
STEVE FITZGIBBONS, CITY MANAGER
IGALIOUS "IKE" MILLS, EXECUTIVE DIRECTOR, EDC
STATE OF TEXAS
COUNTY OF JEFFERSON
DESIGN/BUILDER CONTRACT
WHEREAs, the City of Port Arthur Section 4A Economic Development
Corporation has, as of this date, entered into, or plans to enter
into, an Economic Incentive Agreement with IASIS Healthcare
Corporation and Williams & Rao, L. P., (hereafter called
IASIS/Williams & Rao Economic Incentive Agreement), as to have IASIS
Healthcare Corporation build a new Hospital, and to have Williams &
Rao, L. P., build a new Medical Office Building (MOB) on the
approximately thirty (30) acre Williams & Rao tract that is in the
area adjacent to Highways 365 and 69, in Port Arthur, Texas; and,
WHEREAS, IASIS Healthcare Corporation and Williams & Rao, L.
have requested that the City of Port Arthur Section 4A Economic
Development Corporation (hereinafter called Owner or EDC) provide
certain site improvements, and
WHEREAS, the City of Port Arthur Section 4A Economic Development
Corporation has advertised for Request for Qualifications from
Design/Builder firms for site improvements for the new Hospital and
the new Medical Office Building; and,
WHEREAS, IASIS Healthcare Corporation has indicated that it will
use R. J. Griffin & Company, W. T. Byler, Thomas Miller & Partners,
L. L. C., and Ingram Civil Engineering Group to design and construct
the Hospital, and
WHEREAS, LaGrone Services, Inc. and Carney Engineering, Inc.,
will also be acting as the IASIS grading contractor and will be
contracting with W. T. Bylar for the placement of fill material from
the adjacent Jefferson County Drainage District No. 7 (DD7) borrow
pit to the proposed Hospital Site for a cost of $1,030,000 to be paid
by W. T. Bylar, and
WHEREAS, Williams & Rao, L. P. will be contracting with another
construction company for the Medical Office Building, and
WHEREAS, the City of Port Arthur Section 4A Economic Development
Corporation believes based on (1) their Qualifications filed on
, and (2) their demonstrated competence as shown
in their timely completion of ,
that
have the most experience and qualifications to provide design work,
as well as site and other improvements, that are being requested of
the EDC to perform in the IASIS/Williams & Rao L. P., Economic
Incentive Agreement; and,
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WHEREAS, the City of Port Arthur Section 4A Economic Development
Corporation,
desire to enter into the following agreement:
The City of Port Arthur Section 4A Economic Developmenu
Corporation of Port Arthur, Texas and
(hereinafter called
DESIGN/BUILDER) in consideration of the mutual covenants hereinafter
set forth, agree as follows:
ARTICLE 1. WORK
1.01. Design/Builder shall complete all Work as specified or
indicated in the Contract Documents. The Work is generally described
as follows:
Provide all labor, material and equipment necessary to design and
build, as described in the EDC deliverables in Article II, Section
2.1(a) (1), (2), (3}, (4), (5), (6), (7) and (9) of the IASIS/Williams
& Rao, L. P., Economic Incentive Agreement, as more fully described
in Exhibits I, II and III, and as also described below:
~* Storm Sewer System. Ail storm sewer facilities necessary
to provide storm water drainage outside the boundaries of the
Hospital Site to serve the Hospital Site, the MOB Site and public
roadways as required by City Code and by existing DD7 regulations.
* Storm Water Detention and/or Retention. Ail storm wa~er
detention or retention necessary for the Hospital Site, MOB Site and
public roadways at the adjacent DD7 pit, if allowed by existing DD7
regulations, or otherwise.
* Sanitary Sewer System. A minimum 6" sanitary sewer line
using the City's sanitary sewer system (including any applicable tap
and impact fees) provided at two (2) locations, five feet (5')
outside the Hospital and the MOB. The sanitary sewer system shall be
provided as necessary to provide sanitary sewer to the Hospital Site
and MOB Site and as required by City Code.
* Domestic Water System. A minimum 6" water system utility
line using the City water system (including any applicable meter, tap
and impact fees) provided to a point five feet (5') outside the
Hospital and the MOB as determined by City Code. The domestic water
line shall be provided, as necessary, to provide potable water to the
Hospital Site and MOB site, as required by City Code.
* Fire Water Line System. 8" fire water line system
(including meter, Siamese connection, tap and impact fees) provided
in a loop around the Hospital and to a point five feet (5') outside
the Hospital and the MOB, as determined by IASIS. The fire water
line shall be provided as required by City Code.
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* Primary Access Road~ A 4-lane divided road built to the
Texas Department of Transportation standards shall be designed and
built the length of one side of the longest side of the Hospital Site
and connected to the Hospital parking lot as to provide access to the
Hospital Site. The Design/Builder shall consult with IASIS regarding
the design and location of the road, and the Design/Builder shall use
its best efforts to design and locate all ~curb cuts," if any, to the
Hospital's and MOB's design specifications.
* Secondary Access Road. An additional 4-lane divided road
or roads built to Texas Department of Transportation standards for
this type of development shall be accessible to the Hospital Site,
subject to all non-attainment zone consents and/or requirements
imposed by the Texas Department of Transportation, if any. The
Design/Builder shall consult with IASIS regarding the design and
location of the roads and the Design/Builder shall use its best
efforts to design and locate all ~curb cuts," if any, to the
Hospital's and MOB's design specifications.
* Clearing and Grubbing of Hospital Site and MOB Site.
Perform all preliminary site preparation work related to clearing,
cutting and grubbing, which work shall be completed within sixty (60)
days after the effective date of this Agreement."
ARTICLE 2. THE PROJECT
2.01. The Project for which the Work under the Contract Documents
may be the whole or only a part is generally described as follows:
Public Infrastructure as denoted in IASIS/Williams & Rao, L. P.
Economic Incentive Agreement
ARTICLE 3. CONTRACT TIMES
3.01.
Days to Achieve Substantial Completion and Final Payment
The Work will be substantially completed within the days, as
described in Exhibit "I-Phase I", Exhibit "II-Phase II" and Exhibit
~III-Phase III" on the land as described in Exhibit "IV".
3.02.
Notice to Proceed for Each Phase
The Design/Builder shall not proceed on any phase until it
receives a notice to proceed issued by the Owner's Representative of
the City of Port Arthur Section 4A Economic Development Corporation
as this Design/Builder contract is contingent upon (1) completion of
other tasks by other entities as delineated in the IASIS/Williams &
Rao, L. P., Economic Incentive Agreement, (2) availability of funding
and (3) the availability of rights-of-way and easements.
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3.03.
Liquidated Damages
A. Design/Builder and Owner recognize that time is of the essence
of this Agreement and that Owner will suffer financial loss if the
Work is not completed within the times specified in paragraph 3.01
above, plus any extensions thereof allowed in accordance with
paragraph 11 of the General Conditions. The parties also recognize
the delays, expenses and difficulties involved in proving the actual
loss suffered by Owner if the Work is not completed on time.
Accordingly, instead of requiring any such proof, Owner and
Design/Builder agree that as liquidated damages for delay (but not as
a penalty), Design/Builder shall pay $ to the Owner for each
day that expires after the time specified in paragraph 3.01 for
Substantial Completion until the Work is substantially complete.
After Substantial Completion, if Design/Builder shall neglect, refuse
or fail to complete the remaining Work within the time specified in
paragraph 3.01 for completion and readiness for final payment or any
proper extension thereof granted by Owner, Design/Builder shall pay
Owner $ for each day that expires after the time specified in
paragraph 3.01 for completion and readiness for final payment.
ARTICLE 4.
INSURANCE AND OTHER REQUIREMENTS
The Design/Builder shall have such insurance as is required in
the IASIS/Williams & Rao economic incentive contract and as denoted
in Exhibit "V", and shall further have such qualifications as
required in the IASIS/Williams & Rao Economic Incentive Agreement.
ARTICLE 5.
OWNER'S REPRESENTATIVE
The Owner's Representative shall be the City Manager of the City
of Port Arthur or his Designee.
A~TICLE 6.
CONTRACT PRICE
6.01. Owner shall pay Design/Builder the following sum(s) for
completion of each phase of the Work in accordance with the Contract
Documents.
A. For a price of $ for Phase I (Exhibit ~I");
B. For a price of $ for Phase II (Exhibit "II"); and
C. For a price of $ for Phase III (Exhibit ~III").
ARTICLE 7.
PAYMENT PROCEDURES
Design/Builder shall submit and Owner will process Applications for
Payment in accordance with Article 13 of the General Conditions.
A. Progress Payments; Retainage. Owner shall make progress
payments on account of the Contract Price on the basis of
Design/Builder's Applications for Payment, which are to be submitted
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on or about the 1st day of each month during performance of the Work.
All such payments will be based on the Schedule of Values established
in paragraph 2.06 of the General Conditions.
Prior to Substantial Completion, progress payments will
be made in an amount equal to the percentage indicated
below, but, in each case, less the aggregate of payments
previously made and less such amounts as Owner may
withhold in accordance with paragraph 13.03 of the
General Conditions.
90% percent of Work completed (with the balance
being retainage)
B. Final Payment. Upon final completion and acceptance of the Work
in accordance with paragraph 13.09 of the General Conditions, and
upon proper submittal of affidavits that all subcontractors and
suppliers have been paid, Owner shall pay the remainder of the
Contract Price.
ARTICLE 8.
INTEREST
8.01. Ail moneys not paid when due, as provided in Article 13 of
the General Conditions, shall bear interest at the rate of __percent
per annum.
ARTICLE 9.
DESIGN/BUILDER'S REPRESENTATIONS
9.01. TO induce Owner to enter into this Agreement,
Design/Builder makes the following representations:
A. Design/Builder has examined and carefully studied the Contract
Documents.
B. Design/Builder has visited the Site and become familiar with and
is satisfied as to the general, local, and Site conditions that may
affect cost, progress, performance or furnishing of the Work.
C. Design/Builder is familiar with and is satisfied as to all
federal, state and local Laws and Regulations that may affect cost,
progress, performance or furnishing of the Work. This includes but
is not limited to all regulations of the Texas Department of
Transportation and Drainage District 7.
D. Design/Builder has carefully studied all reports of explorations
and tests of subsurface conditions at or contiguous to the Site and
all drawings of physical conditions in or relating to existing
surface or subsurface structures at or contiguous to the Site.
E. Design/Builder is aware of the general nature of work to be
performed by others at the Site including the contractors and
z. Design build agmt _city
engineers of IASIS and Williams & Rao, LP that relates to the Work as
indicated in the Contract Documents.
F. Design/Builder has correlated the information known to
Design/Builder, information and observations obtained from visits to
the Site, reports and drawings identified in the Contract Documents,
and all additional examinations, investigations, explorations, tests,
studies and data with the Contract Documents.
G. Design/Builder has contacted and has obtained approval, or will
obtain approval, from Drainage District 7 as to obtaining fill dirt
from their adjacent pit, obtaining access over their land for
purposes of transporting the dirt and for other construction
activities needed for the IASIS/Williams & Rao Economic Incentive
Agreement, and as to using the DD7 pit for outfall and retention for
the drainage needs of the project.
Go Design/Builder has given Owner written notice of all conflicts,
errors, ambiguities or discrepancies that Design/Builder has
discovered in the Contract Documents and the written resolution
thereof by Owner is acceptable to Design/Builder, and the Contract
Documents are generally sufficient to indicate and convey
understanding of all terms and conditions for performance and
furnishin§ of the Work.
ARTICLE 10. CONTRACT DOCUMENTS
10.01. The Contract Documents, which comprise the entire agreement
between Owner and Design/Builder concerning the Work, consist of the
following:
A. This Agreement (pages 1 to 10, inclusive);
B. Exhibits to this Agreement;
Co
Design/Builder's Proposal of
dated
D. Notices to proceed for each Phase;
E. Performance and Payment Bonds;
Standard General Conditions of the Contrac5 Between Owner
and Design/Builder (with the deletion of Sections 3.04,
4.0lB, 4.02, 4.04, 8.01A6 a, b, c, e and g);
Requirements of Design and construction in the EDC
deliverables and other relevant information in the
IASIS/Williams & Rao Economic Incentive Agreement;
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The following, which may be delivered, prepared, or issued
after the Effective Date of this Agreement and are not
attached hereto:
Ail written amendments and other documents amending,
modifying or supplementing the Contract Documents
pursuant to paragraph 3.03.A of the General Conditions;
Specifications as defined in paragraph 1.01.A.42 of the
General Conditions; and
3. Drawings as defined in Paragraph 1.01.A.18 of the
General Conditions.
10.02. There are no Contract Documents other than those listed
above in this Article 10.
10.03. The Contract Documents may only be amended, modified, or
supplemented as provided in paragraph 3.03 of the General Conditions.
ARTICLE 11.
MISCELLANEOUS
11.01. The Standard General Conditions of the Contract Between
Owner and Design/Builder are referred to herein as the General
Conditions.
11.02. Terms used in this Owner-Design/Builder Agreement, which
are defined in Article 1 of the General Conditions, will have the
meanings indicated therein.
11.03. No assignment by a party hereto of any rights under or
interests in the Contract Documents will be binding on another party
hereto without the written consent of the party sought to be bound;
and, specifically but without limitation, moneys that may become due
and moneys that are due, may not be assigned without such consent
(except to the extent that the effect of this restriction may be
limited by law}, and unless specifically stated to the contrary in
any written consent to an assignment, no assignment will release or
discharge the assignor from any duty or responsibility under the
Contract Documents.
11.04. Owner and Design/Builder each binds itself, its successors,
assigns and legal representatives to the other party hereto, its
partners, successors, assigns and legal representatives in respect to
all covenants, agreements and obligations contained in the Contract
Documents.
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11.05. Any provision or part of the Contract Documents held to be
void or unenforceable under any Law or Regulation shall be deemed
stricken, and all remaining provisions shall continue to be valid and
binding upon Owner and Design/Builder, who agree that the Contract
Documents shall be reformed to replace such stricken provision or
part thereof with a valid and enforceable provision that comes as
close as possible to expressing the intention of the stricken
provision.
11.06. The Design/Builder shall allow IASIS and its general
contractor to meet and confer regarding the proposed improvements, as
further delineated in Section 7.2 of the IASIS/Williams & Rao, L. P.,
Economic Incentive Agreement and shall further cooperate with the
City, IASIS, as well as Williams & Rao, L.P., to accomplish the goals
as delineated in the IASIS/Williams & Rao, L. P. Economic Incentive
Agreement.
11.07. The Design/Builder shall complete the improvements in the
timetables, as delineated in Exhibits ~I", "II" and ~III" without
opportunity for change orders for additional days associated with
weather delays, as more fully delineated in Article VII of the
IASIS/Williams & Rao, L. P., Economic Incentive Agreement.
11.08. The Design/Builder firm shall include a daily bonus and
liquidated provision in all of its subcontracts of the improvements
with such daily bonus and liquidated damage provisions of $
per day for late days, and $ per day for early completion.
11.09. If there is a default by Williams & Rao, L. P. or IASIS
Healthcare Corporation, the owner may terminate this contract with
days written notice.
11.10. The Design/Builder shall also do the following,
Exhibit ~P# and Exhibit "S" of the IASIS/Williams & Rao,
Economic Incentive Agreement:
as noted in
L.P.,
within one hundred fifty (150) days, prepare plans and
specifications for water, sewer, drainage, utilities,
erosion control, and grading included within the EDC
Improvements, including a firm estimate for the cost
thereof, in form satisfactory to IASIS;
Within one hundred fifty (150) days, the Design/Builder
shall obtain an agreement with DD7 to accept all outfall
resulting from the Hospital Site as required by Exhibit
"H" of the IASIS, Williams & Rao, L. P., Economic Incentive
Agreement;
within sixty (60) days, the Design/Builder shall deliver
written confirmation of the availability of adequate fill
from DD7 as required for the Hospital development project
z. Design_build agmt _city
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as required by Exhibit ~H" of the IASIS, Williams & Rao, L.
P., Economic Incentive Agreement;
Within sixty (60) days, the Design/Builder will obtain
written confirmation from a geotechnical engineer selected
by IASIS of suitability of adequate fill from the landfill
site immediately adjacent to the Hospital Site in the
quantity and quality required by IASIS for completion of
the Building Pad Improvements;
The Design/Builder will obtain all non-attainment zone
consents and/or approvals required from all federal, state
and local authorities, including specifically the Texas
Department of Transportation, with respect to the planned
construction of roads as described on Exhibit "H" of the
IASIS, Williams & Rao, L. P., Economic Incentive
Agreement and/or confirmation that no such consents and/or
approvals are required.
11.11 Design/Builder shall timely provide the information as
required by IASIS and Williams & Rao, L. P., as to all work
performed by the Design/Builder and as further delineated in Article
VIII, Article XI and Article XIV of the IASIS/Williams & Rao, L. P.
Economic Incentive Agreement.
11.12. Design/Builder shall coordinate completion of the EDC
improvements with the construction of the Hospital as delineated by
reference to the time schedules as delineated in Article VII of the
IASIS/Williams & Rao, L. P. Economic Incentive Agreement.
IN WITNESS W~EREOF, Owner and Design/Builder have signed this
Agreement in duplicate. One counterpart each has been delivered to
Owner and Design/Builder. All portions of the Contract Documents
have been signed, initialed or identified by Owner and
Design/Builder.
This Owner-Design/Builder Agreement will be effective on the __
day of , 2003.
SIGNED and AGREED to on this the
day of , 2003.
OWNER:
CITY OF PORT A~THUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION OF PORT ARTHUR, TEXAS
BY:
ATTESTs
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ADDRESS FOR GIVING NOTICES:
444 4~ Street
Port Arthur, Texas 77641
SIGNED and AGREED to on this
DESIGN/BUILDER:
the
day of
, 2003.
BY;
Attest:
ADDRESS FOR GIVING NOTICES:
SIGNED and AGREED to on this the
2003.
__ day of
BY:
Attest:
ADDRESS FOR ~IVIN~ NOTICES:
Engineering License No.
APPROVED AS TO FORM:
Jim Wimberley, Attorney at Law
Mark Sokolow, City Attorney
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TARI,Iz Ole C~ONTIZIWI~
Page
I
ARTICLE 1--DEFINITIONS ............................................................................................................................................................... 1
1.01 Defined Terms ............................................................................................................................................................
4
ARTICLE 2--PRELIMINARY MATTERS ....................................................................................................................................... 4
2.01 Delivery o f Bondsflnsurance Certificates .................................................................................................................. 4
2.02 Conunencement of Contract Times; Notice to Proceed ............................................................................................ 5
2.03 Starting the Work ....................................................................................................................................................... 5
2.04 Before Starting Conshxtction ..................................................................................................................................... 5
2.05 Imtial Conference ....................................................................................................................................................... 5
2.06 Initially Acceptable Schedules .............................................................................................................. : ....................
ARTICLE 3-CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE ........................................................................... 6
3.01 Intent ........................................................................................................................................................................... 6
3.02 References ............................. ; .................................................................................................................................... 6
6
3.03 Amending and Supplementing Con~xact Documents ................................................................................................ 7
3.04 Reuse o f Documents ..................................................................................................................................................
ARTICLE 4--AVAILAB[L,ITY OF LANDS; DIFFERING SITE CONDITIONS; REFERENCE POINTS; 7
ItAZARD O US CONDITIONS ................................................................................................................................................... 7
4.01 Availability of Lands .......................................................................................................................................... : ...... 7
4.02 Differing Site Conditions ........................................................................................................................................... 8
4.03 Reference Points ........................................................................................................................................................ 8
4.04 Hazardous Conditions ................................................................................................................................................
9
ARTICLE 5-BONDS AND INSURANCE ......................................................................................................................................... 9
5.01 performance, Payment and Other Bonds .................................................................................................................. 9
5.02 DmaNmU BR's X hb ity ................................................................................................ 2
5.03 OWNER's Liability Insurance ...............................................................................................
10
5.04 Property Insurance ................................................................... ~ ................................................................................ 11
5.05 Waiver of Rights ....................................................................................................................................................... 12
5.06 Receipt and npplieaaon of Proceeds .............................................................................................................. iiiii 112
5.07 Acceptance of Bonds and Insurance; Option to Replace ........................................................................... 12
5.08 PaCdal Lltilizafion--Propealy Insurance ..................................................................................................................... 13
5.09 Licensed Surefie~ and Insurers; Certificates of h~,surance ........................................................................................
13
ARTICLE 6-DESIGN/BUIJ~DER'S RESPONSIB[L,ITIES ........................................................................................................... 13
,.6.01 Design Professional Servtces .................................................................................................................................... I4
~.02 Supervision and Superintendence of Consm:ction .................................................................................................. .............. ......... 14
6.03 Labor, Materials and Equipment ....................................................................................................... 15
6.04 Progress Schedule ' ' .............................................
6.05 Concerning Subcontractors, Suppliers and Others ............................................................. 15
6.06 Patent Fees and Royalties ......................................................................................................................................... 16
6.07 Permits ................................................................................................................................................................... iiii 16
6.08 Laws and Regulations ...................................................................................................................................... iiiii.... 16
6.09 Taxes ................................................................................................................................................................ 16
6.10 Use of Site and Other Areas .................................................................................................................................. ii~ 17
6.11 Record Documents ................................................................................................................................................. 17
6.12 Safety and Protection ....................................................................................................................................... i~ii121 18
6.13 Safety Re~msentative.: .......................................................................................................................................
Hazard Communica6on Programs ........................................................................................................................... 18
6.14 ...... 18
6.15 Emergencies ..............................................................................................................................................
6.16 Submittals ....... - .................................................................................
6.17 Continuing the Work .................................................................................................... 19
6.18 DESIGN/BUILDER's General Warranty and Guarantee ........................................................................................
6.19 Inde~rmification .................................................................................... ' ................................. 19
20
ARTICLE 7--OTItER CONSTRUCTION .................................................................................................................................
7.01 Related Constnlction at Site ...................................................................................................................................... ~)
7.02 Coordmalion ...........................................................................................................................................................
21
8.01 General ....................................................................................................................... .. 22
8.02 Scope of OWNER's Safety, and Itazardous Waste Responsibilities ..................................................................... 22
8.03 Resident Project Representation ...............................................................................................................................
22
ARTICLE 9-CItANGES KN THE WORK; CLAIMS .................................................................................................................. 22
9.01 GeneraI--Righ~s and Obhgations ............................................................................................................................. 22
9.02 Notice o£Intent tG Make Clatm ................................................................................................................................ 22
9.03 Claim Documentahon ............................................................................................................................................... 22
9.04 Decision ..................................................................................................................................................................... 22
9.05 Time Limit Extension ............................................................................................................................................... 22
9.06 Exceptions ................................................................................................................................................................. 23
9.07 Execution of Change Orders ..................................................................................................................................... 23
9.08 Notice to Sureties ......................................................................................................................................................
E .................................... 23
ARTICLE 10-CHANGE OF CONTRACT PRIC .................................................................................... 23
10.01 General ...............................................................................................................................................................
10.02 CostoftheWork .......................................................................................................................................................
10 03 Cash Allowances ......... - ............................................................................................ 6
10.04 Unit Prices ............................................................................................................................
......... 27
ARTICLE 11 --CHANGE O F CONTRACT TEMES ............................................................................................... .... 27
1,.0l .................................................................................................................................................................
11.02 tensions ........................................................................................................................................................ 27
ARTICLE 12-'I'ESWS AND INSPECTIONSi CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE27
CONSTRIJC"rlON ............................................................................................................................................................... 27
' 12.01 Notice of Defec~ ..................................................................................................................................... 27
12.02 Access to Conslmcfion ................................................................................................................................... 28
12.03 Tests and Inspections ................................................................................................................................................ 28
12.04 Uncovering Conm:uc~on ....................................................................................................................................... i}} 28
· 12.05 Owner May Stop the Construction ................................................................................................................. iiiiiii... ~8
"~2.06 Correction or Removal of Defective Construction ......................................... i .............................................. 29
~2.07 Correction Period .....................................................................................................................................................
..... 29
12.08 Aceeptanee o f Defective ConsUuction .......................................................................................................... . ...... 29
12.09 OWNER May Correct Defective Consmmtion ................................................................................
30
ARTICLE 13--PAYMlgNTS TO DESIGN/BUILDER AND COMPLETION .............................................................................. 30
13.01 Schedule of Values ................................................................................................................................................... 30
13.02 Application for Progress Payment ............................................................................................................................ 30
13.03 D ~ESIGN/BUILDER's Warranty of Title .......................... ............................................................................... iiiiiiiii 31
13.04 Progress Payments .......................................................................................................................................... . ........ 31
13.05 Substanfi,4 Completion .................................................................................................................................... .. 32
13.06 Partial U '~'ti[Lzation ...;...~; .................................................................................................................................. . ...... 32
13.07 Final Impeetlon .............................................................................................................................................. i ........ 32
13.08 Final Application for Payment .......................................................................................................................
33
13.09 Final Payment and Acceptance ................................................................................................................................. 33
13.10 Waiver o f Clain~ ................................ % .....................................................................................................................
34
ARTICLE 14-SUSI'E1NSION OF WORK AND TERI~iNATION ............................................................................................... 34
14.01 Owner May Suspend Work ...................................................................................................... iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii 34
14.02 Owner May Terminate for Cause ............................................................................................. 34
14.03 Owner May Terrn~ate for Convenience .................................................................................................................
14.04 DESIGN/BUILDER May Stop Work or Terminate ................................................................................................ 35
35
ARTICLE 15-DISPUTE RESOLUTION ........................................................................................................................................
ARTICLE 16--h'I1SCELLAN'EO US ................................................................................................................................................... 3%55
16 01 Giving Notice ............................................................................................................................................................ }~
16.02 Computation o f Times ..............................................................................................................................................
16.03 Notice of Claim ......................................................................................................................................................... 3.~
16.04 Cumulative Remedies ........................................................................................................................................ ~
16.05 Survival of Obligations .............................................................................................................................................
EXIfIBIT GC-A to GENERAL CONDITIONS OF THE AGREEM]F. NT BETVVEEN OVCNER AND 37
DESIGN/BUII.DER DATED ................................................................................................................... 37
15.01 Dispute Resolulron Agreement .................................................................................................................................
ARTICLE 1-DEFINITION
1.01 Defined Tetw~s
A. Wherever used in these General Conditions or in
the other Con~act Documents the following terms have
the meanings indicated which are applicable to both the
singular and plural thereof:
1. Addenda-~Written or graph/c insl~uments issued
prior to the opening of Proposals which clarify,
correct or ctmnge the Request for Proposals or the
Contract Documents.
2. Agreement--The written contract between
OWNER and DESIGN/BUILDER covering the
Work; other Contract Documents are attached to the
Agreement and rmade a part thereof as provided
therein.
3. Application for Payment--The form which is to
be used by DESIGN/BUILDER in requesting
progress or £mal payments and which is to be
accompanied by such ~uppoVdng documentation as is
required by the Contract Documents.
4. Asbestos-Any material that contains more lhan
one percent asbestos and is friable or is releasing
· sbe~tos tTeers into the air above current action levels
established by the United States Occupational Safety
and Health Administrafion~
5. Bonds-Performance and payment bonds and
other instruments of security.
6. Cash Flow Projection-A schedule prepared by
DESIGN/BUILDER estimating that portion of the
Con~-act Price to be due during each month of
peffonnanco.
7. Change Order-A written order which is signed
by DESIGN/BUll. DER and OWNER which
authorizes an addition, deletion or revision in the
Work, or an adjustment in the Contract Price or the
Contract Times, issued on or after the Effective Date
of the Agreement.
8. Conceptual Documents--The ckawings and
specifications and/or other graphic or written
materials, criteria and information concerning
OW2qER% requirements for the Project, such as
design objectives and constraints, space, capacity and
performance requirements, flexibility and
expandability, including those ite~ns enumerated in
the Request for Proposals which show or describe the
character and scope of, or relate to, the Work to be
performed or rum/shed and wtfich have been
prepared by or for OWNER.
9. Conxtruction--The performing or furnishing of
labor, the furnishing and incorporating of materials
and equipment into the Work and the fum/shing of
services (other than Design Professional Services)
and documents, all as required by the Contract
Documents.
I0. Conxtruction Subagreement--A written
agreement between DESIGN/BUILDER and a
coustmction con~a-actor for provision of Coustruction.
11. Contract Documents-Tbe Agreement, the
Conceptual Documents, Addenda (which pertain to
the Contract Documents), DESIGN/BUILDER's
Proposal, the Notice to Proceed, the Bonds, these
General Conditions, the Supplementary Conditions,
the Specifications and the Drawings together with ail
Work Change Directives, Ct~.nge Orders, Written
Amendments, and Field Orders, issued on or after the
Effective Date of the Agreement. The Contract
Documents 81so include those documents specifically
identified by the OWNER in the Request for
Proposals.
12. Contract Price-The moneys payable by
OWNER. to DESIGN/BUILDER for completion of
the Work in accordance with the Contract
Documents.
[3. Contract Times--'Ilre numbers of days or the
dates stated m the Agreement (i) to achieve
Substantial Completion, and (ii) to complete the
Work so that [x is ready for f-real paymenl in
accordance w/th paragraph 13.08.A
14. defective--An adjecnve which when modifying
the term ConsWacfion refers to Con.stractlon that is
unsatisfactory, faulty or deficient_ in that it does not
conform tc the Con~act Documents, or does not meet
the requirements of any inspection, reference
standard, test or approval referred to in the Contract
Docmments, or has been damaged prior lo OWNEWs
final payment (unless responsibility for the protection
thereof has been assumed by OWNER at Substantial
Completion).
15. DESIGN/BUILDER-The individual or entity
with whom OWNER tuts entered into the Agreement.
16. Design Subagreement--A written agreement
between DESIGN/BUILDER and a design
professional for provision of Design Professional
Services.
17. Design Professional Services-Services related
to the preparation of Drawings, Specifications, and
other design submittals specified by the Contract
Documents and required to be performed by licensed
design professionals, as well as services provided by
or for liceased design professionals during
Bidding/Negotiating, Construction, or Operational
phases.
18. Drawings--Tlxose portions of the Conlract'
Documents prepared by or for DESIGN/BIJILDER
and approved by OWNER consisting of drawings,
diagram.s, illnstsafions, schedules and other data
which show the scope, extent, and character of the
Work.
19. Effective Date of the dgreernent-The date
indicated in the Agreement on which it becomes
effective, but if no such date is indicated it means the
date on which the Agreement is s~gned and delivered
by the last of the two parties to sign and deliver.
20. Engbteer--A duly licensed individual or emit3
destgnated by DESIGN/BUILDER to perform o~
fumish specified Design Professional Services hi
connection with the Work.
21. FieM Order--A written order issued by OWNER
wkich orders m/nor changes m the Work but wttich
does not revolve a change in tile Contract Phce or the
Cona-act Tunes.
22. Hazardous Condition--The presence at the Site of
Asbestos, Hazardous Waste. PCB's Petroleum
Products or Radioactive Materials hi such quantifies
or circumstances that there is a danger to persons or
property.
23. Hazardous Waste--The term Hazardous Waste
shall have the meaning provided in Section 1004 of
the Solid Waste Disposal Act (42 USC Section
6903).
24. Laws and Regulations; Laws or Reguiotions--
Any and ali applicable laws, rules, regulations,
ordinance& codes and orders of any and all
governmental bed/es, agencies, authorities and cour~
having jurisdiction.
25./.jo~--421mrges, security interests or
encumbrances upon real property or personal
propetB'.
26.Milestone-A principal event specified in the
Contract Documents relating to an intermediate
completion date or tLme prior to Substantial
Completion o fall the Work.
27. Notice of.4ward--The written notice by OX,VNER
to the successful proposer staling that upon
compliance by the successful proposer with the
conditions prec~lent enumerated therein, within the
tLme specified, OWNER will sign and deliver the
Agreement.
2
28.1gotice to Proceed-A written notice given by
OWNER to DESIGN/BUILDER fixing the date on
which the Contract T/roes w/Il conunence to mn.
29. OtffNER--The public body, or authority,
individual or entity with wbom D ~ESIGN/BUILDER
has entered into the Agreement and for whom the
Work is to be provided.
30. OWigER's Consultant--An individual or entity
having a contract with OWNER to furnish services as
OWNER's consultant with respect to the Project and
who is identified as such in the Supplementary
Conditions.
31. OWNER~ Representative-A person designated
in writing to act as OWNER's representative with
respect to DESIGN/BUILDER% performance of the
Work. Such person shall have complete authority to
transmit instructions, receive itfformation, interpret
and de[me OWNER's policies, make decisions w/th
respect to performance office Work, and provide such
other services as may be agreed upon.
32. Partial Utilization-Use by OWNER of a
sobstantially completed part of the Work for the
purpose for which it is intended (or a related purpose)
prior to Substantial Completion of all the Work.
33. PCBs-Polychlorinatedbiphenyls.
34. Petroleum-Petroleum, including crude oil or
m~y fraction thereof which is liquid at standard
conditions of temperature and pre~sure (60 degrees
Fata'enheit and 14.7 pounds per square inch
absolute), such as oil, petroleum, fuel oil, off sludge,
oil refuse, gasoline, kerosene, and oil mixed with
other non-Hazardous Wastes and crude oils.
35. Project-The total construction of which the
Coasmtcfion to be provided under the Contract
Documents may be the whole, or a part as indicated
elsewhere in the Contract Documents.
36. Proposal--Tlie documents submitted by
DESIGN/BUILDER in response to the Request for
Proposals setting forth the design concepts, proposed
prices, and other conditions for die Work to be
performed.
37. Radioactive MateriaL-Source, special nuclear,
or byproduct material as defined by the Atom/c
Energy Act of 1954 (42 USC Section 20l I et seq.) as
amended from time to time.
38. Request for Proposals--The document prepared
by or for OWNER specifying and describing
OWNER's objectives and the procedure to be
followed in preparing and submitting a Proposal and
awarding a contract.
39. Resident Project Representative--The author/zed
representative of OWNER who may be assigned to
the Site or any part thereof.
40. Schedule of Valuex--A schedule prepared by
DESIGN/BUILDER and acceptable to OWNER
indicating that portion of the Contract Price to be
paid for each major component of the Work.
41.Site-Lands or other areas de.sig~ated in the
Contract Docttments as being furnished by OWNER
for the performance of the Construction, storage, or
42. Spec~ficat/ons-Those po~ons of the Contract
Docttments prepared by or for DESIGN/BUILDER
and approved by OWNER consisting of written
technical descriptions of materials, equipment,
construction systems, standards and workmanship as
applied to the Consmxction and certain administrative
details applicable thereto.
43. Subcontractor-An individual or entity other than
a Supplier or Engineer having a direct contract with
DESIGN/BUILDER or with any other Subcon~actor
for the performance of a part of the Work.
44. Submittal--A written or graphic docuanent
prepared by or for DESIGN/BUILDER wifich is
required by the Contract Documents to be submitted
lo OWNERby DESIGN/BUILDER- Subm/ttals may
include Drawings, Specifications, progress schedules,
shop drawings, samples, Cash Flow Projections, and
Schedules of Values. Subnfittals other than
Drawings and Specifications are not Contract
Documents.
45.Substantial Completion--The time at which the
ConsWacfion (or a specified part) has progressed to
the point where it is sufficiently complete, in
accordance with the Contract Documents, so that the
ConsUmction [or a specified part) can be utilized for
the purposes for wtfich it is mtende& The terms
"substantially complete" and "substantially
completed" as applied to all or part of the
Conswaction refer to Substantial Completion thereof.
46. Supplementary Conditions--The part of the
Contract Documents which amends or supplements
these General Condtlaons.
47. Supplier--A manufacturer, fabricator, supplier.
distn'butor, materialman or vendor having a direct
contract with DESIGN/BUILDER or with any
Subeonlractor te furnish materials or equipment to be
incorporated in the Work by DESIGN/BUILDER or
any Subcontractor.
48. Unit Price Work-Work to be paid for on the
basis of trait prices.
49. Work-The entire completed cormlruct/on or the
various separately idenfiftable parts thereof required
to be performed or furnished under the Contrac~
Documents. Work include~ and is the re.suit of
performing or furnishing Design Professional
Services and Consu-ucfion required by the Contract
Documents
50. Work Change Directive-A written directive to
DESIGN/BU1LDEIL issued on or after the Effective
Date of the Agreement and signed by oWNER
ordering an addition, deletion or revision in the
Work, or responding to differing site conditions
under which the Work is to be performed as provided
in paragraph 4.02 or to emergencies under paragraph
6.15. A Work Change Directive will not change the
Contract Price or thc Contract Tin, es, but is evidence
that file panics expect that the change dkected or
documented by a Work Change Directive will be
incorporated in a subsequently issued Change Order
following negotiations by the parties as to its effect, if
any, on the Conlract Price or Contract Times.
51. Written Amendment--A written amendment of
the Contract Documents, signed by OWNER and
DESIGN/BUILDER on or after the Effective Date of
the Agreement and normally dealing with the
nonengineering or nontectmical rather fl~an s~ictly
design or construcnon-related aspects of the Contract
Documents.
ARTICLE 2--PRELLVI1NARY IXL~.TTERS
2.01 Delivery of Bonds~Insurance Certificate
A When DESIGN/BUILDER delivem the executed
AgreementS to oWNER, DESIGN/BUILDER
shall also deliver to oWNER such Bonds as
DESIGN/BUILDER may be required to furnish
in accordance with paragraph 5.01.A and
insurance ceffdficate~ for the required insurance
in accordance with paragraph 5.02 and 5.04.
2.02 Commencement of Contract Timex; Notice to
Proceed
A. The Contract Times will commence to mn
on the thirtiefli day after the Effective Date of the
Agreement, or, if a Notice to Proceed is given, on
the day indicated in the Notice to Proceed. A
Notice to Proceed may be given fit any time within
thirty days after the Effective Date of the
Agreement. In no event will the Contzact Times
commence to nm hter than the ninetieth day after
the last day for receipt of the Proposal or the
thkedeth day after the Effective Date of the
Agreement, win~bever date is earlier.
2.03 Starting the Work
A. DESIGN/BUILDER shall start to perform the
Work on the date when the Conlract Times commence to
2.04 Before Slarting Conxtruction.
A. DESIGN/BUILDER shall submit the following
for review within ten days after commencement of the
Contract Times:
1. A preliminary progress schedule in. caring the
limes (numbers of days or dates) for starting and
completing the various stages of the Work including
each Milestone vi~cified in the Con~act Documents;
2. A preliminary schedule of required Submittals
and the times for submitting, reviewing and
processing each Submittal;
3. A preliminary Schedule of Values for all of the
Work which will include quantifies and prices of
items aggregating the Contract Price and will
subdivide the Work into com4~onent parts in
sufficient detail to serve as the basis for progress
payments during pefformm~ce of the Work. Such
prices will include a pro rata amount of overbead and
profit applicable to each item of Work; and
4. A prelintinary Cash Flow Projection.
B. Before any Work is started, DESIGN/BUILDER
and OWNER shall ead~ deliver to die other, widl copies
to each additional insured identified in the
Supplementary Conditions, certificates of insurance (and
other evidence of insurance which either of thegn or any
additional insmed may reasonably request) which
DESIGN/BUILDER and OWNER respectively are
required to purchase and maintain in accordance with
paragraphs 5.02.A, 5.04.A and 5.04.B.
2.05 Initial Conference
A. Within twenty days after the Contract Times
start to nm a conference attended by OWNER and
DESIGN/BUILDER and others as appropriate will be
held to establish a working understandhlg among the
parties as to the Work and to discuss the design concepts,
schedules referred to in paragraph 2.1M.A, procedures for
handling Submittals, processing Applications for
Payment, maintaining required records, items required
pursuant to paragraph 8.01 .A.6 and other matters.
2.06 Initially ~fcceptable Schedules
A. At least ten days before submission of the first
Application for Payment a conference attended by
DESIGN/BUILDER, oWNER and others as appropriate
will be held to review for acceptability the schedules
submitted in accordance with paragraph 2.04.A.
DESIGN/BUILDER shall have an additional ten days to
make correcfious and adjustments and to complete and
resubmit the schedules. No progress payment shall be
made to DESIGN/BUILDER until the schedules are
submitted to and acceptable to OWNER as provided
below. The progress schedule vail be acceptable to
OWNER as providing an orderly progression of the
Work to completion within any specified Milestones and
the Contract Times, but such acceptance will neither
impose on oWNER responsibility for the sequencing,
scheduling or progress of the Work nor interfere with or
reheve DESIGN/BUILDER from DESIGN/BUILDER's
full respous~ility therefor. The format and structure of
the progress schedule will be as set forth in the Conlract
Documents. OW-NEWs acceptance shall not be deemed
to confum that the schedule is a reasonable plan for
performing the Work. DESIGN/BUILDER's schedule of
Submittals will be acceptable to OV, rNER as providing a
workable arrangement for reviewing and processing rite
required Submittals. DESIGN/BUILDER's Schedule of
Values and Cash Flow Projection will be acceptable to
OWNER as to form and substance.
ARTICLE 3--CONTRACT DOCLrM~I~WS:
INTENT, AM2ENDING, REUSEARTICLE
3.01 Intent
A. The Contract Documents comprise the entire
agreement between OWNER and DESIGN/BUILDER
concerning the Work. The Contract Documents are
complemen~ay; what is called forby one is as binding as
if called for by all The Contract Documents will be
construed in accordance wittt the law of the place of the
Project..
B. It is the intent of the Contract Documents to
describe a functionally complete Project (or part thereof)
to be designed and cons~xucted in accordance with the
Contract Documents. Any Work, materials or equipment
that may reasonably be inferred fi-om the Contract
Documents or from prevailing custom or trade usage as
being required to produce the intended result will be
furnished and performed whether or not specifically
called for. When words or phiases which have a well-
known technical or constmcfion industry or trade
meaning are used to describe work. materials or
equipment, such words or phrases shall be interpreted in
accordance with that meaning.
3.02 References
A. Reference to standards, specifications, manuals or
codes of any technical society, organization or
association, or to the Laws or Regulations of any
governmental authority, whether such reference be
specific or by implication, shall mean the latest standard,
specification, manual, code or Laws or Regulations in
effect on the last day for receipt of Proposals except as
may be othetwise specifically stated in the Contract
Documents.
B. Except as otherwise specifically stated in the
Conlract Documents or as may be provided by
amendment or supplement thereto issued by one of the
methods indicated in paragraph 3.03.A, the provisions of
the Contract Documents shall take precedence in
resolving any conflict, error, ambiguity or discrepancy
between the provtsions of the Conwact Documents and:
1. the provisions of any such standard,
specification, manual, code or instruction (whether m
not specifically incorporated by reference in the
Contract Documents)', or
2. the provisions of any such Laws or Regulations
applicable to the performance of the Work (anless
such an interpretation of rile provisions of the
Contract Docunsents would result in violation of such
Law or Regulation).
C. No pmvisinn of any such standard, specification,
manual code or iml~ucfion shall be effective to change
the duties and respons~ilities of OWNER,
DESIGN/BUILDER or any of their subcontractors,
consultants, agents, or employees from those set forth in
the Contract Documents, nor shall it be effective to
assign to OWNER any duty or authority to supervise or
direct the furnishing or performance of the Work or any
duty or authority to undertake respons~ility inconsistent
with the promsions of paragraph 8.02 or any other
provision of the Contract Documents.
3.03 Amending and Suppleraenang Contract
Documents
A. The Contract Docmnents may be mended to
provide for additions, deletions and revisions in the
Work or to modify the terms and conditions thereof in
one or more of the following ways:
6
1. OX~'qER's approval of required Subnfitta[s
(pursuant to paragraph 6.16.B);
2. A WorkCbange Dkective;
3. A Change Order;
4. A formal Written Amendment; or
5. A Field Order.
$. 04 Reuse of Documents
A. All documents including Drawings and
Specifications prepared or furnished by
DESIGN/BUILDER pursuant to this Agreement are
/nslnmaents of service in respect of the Project and
DESIGN/BUILDER shall retain an ownerstfip and
property interest therein whether or not rite Project is
completed. OWNER may make and retain copies for
information and reference in connection with the use and
occupancy of the Project by OWNER and others;
however, such documents are not intended or represented
to be suitable for reuse by OWNER or others on
extensions of the Project or on any other project. Any
reuse without written verification or adaptation by
DESIGN/BUILDER for the specific purpose intended
will be at OWNER's sole risk and without liability or
legal exposure to DESIGN/BUILDER and OWNER
shall indemnify and hold harmless DESIGN/BUILDER,
Subcontractors, and Engineer from all claims, damages,
losses and expenses including attorneys' fees arising out
of or resulting therefrom. Any such verification or
adaptation will entitle DESIGN/BUILDER to further
compensation at rates to be agreed upon by OWNEK and
DESIGN/BUILDEIL
ARTICLE 4-AVAILABILITY OF LANDS;
DIFFERENG SITE CONDITIONS; REFERENCE
pOINTS; ItAZakRDOUS CONDITIONS
4.01 Availability of Lands
A. OWNER shall furnish, as indicated in the
COntract Documents, thc lands upon which the
Construction is to be performed, rights-of-way and
easements for access thereto, and such other lands which
are designated for ',lie use of D -ESIGN/BUILDER.
B. Upon reasonable written request, OWNER shall
furnish DESIGN/BUILDER with a correct statement of
record legal title and legal description of the lands upon
which the Consmlcfion is to be performed and OWNER's
interest therein as necessary for giving notice of or filing
a mechanic's lien against such lands in accordance with
applicable Laws and Regulations. OWNER shall
identify any encumbrances or restrictions not of general
application but specifically related to use of lands so
furnished with wlfich DESIGN/BUILDER will have to
comply in performing the Work. Easements for
permanent structures or permanent changes in existing
facilities will be obtained and paid for by oWNER,
unless otho3vlse provided in the COntract Documents. If
DESIGN/BUILDER and OWNER are unable to agree on
entitlement to or the amount or extent of any adjuslments
in the COntract Price or the ConWact Times as a result of
any delay in oWNER% furnishing these lands, rights-of-
way or easements, DESIGN/BUfLDER may make a
cIaim therefor as provided in Article 9.
C. DESIGN/BUILDER shall provide for ail
additional lands and access thereto that may be required
for temporary construction facilities or storage of
materials and equipment.
4. 02 Differing Site Conditions
A. DESIGN/BUILDER shall promptly, and before
the conditious are disturbed, give a written notice to
OWNER of(i) subsurface or latent physical conditions at
the Site which differ materially from those indicated in
the Contract Documents, or (ii) unlmown physical
conditions at the Site, of an unusual nature, which differ
materially from those ordinarily encountered and
generally recognized as inhering in work of the character
called for by the CunWact Docuruents.
B. oWNER will investigate the site conditions
7
promptly after receiving the notice. If the conditions do
materially so differ and cause an increase or decrease tn
the DESIGN/BUILDER's cost of, or thc tune required
for, performing any pan of Ii~e Work. whether or not
changed as a result of the conditions, an equitable
adjustment shall be made under this clause and tile
Contract Price or Tunes modified in writing by Change
Order in accordance with Article 9
C. No request by DESIGN/BUILDER for an
equitable adjustment under paragtapI~ 4.02 shall be
allowed unless DESIGN/BUILDER has given the written
notice required; provided that the time prescribed in
9.02.A for giving written notice may be extended by
OWNER.
4.03 Reference Points
A. DESIGN/BUILDER shall be responsible for
laying out the constmenon and shall protect and preserve
the reference points established by OWNER pursuam to
paragraph 8.01.A.6.e and shall make no changes or
relocations without tile prior written approval of
OWNER. DESIGN/BUILDER shal/report to OWNER
whenever any reference point or propeay monument is
lost or destroyed or requires relocation because of
necessary changes ill grades or locations, and shall be
respons~le for the accurate replacement or relocation of
such reference points or property monuments by
professionally qualified personnel.
4.04 Hazardous Conditions
A. OWNER will be responsible for any Hazardous
Condition encountered at the Site which was not
identified in the Contract Documents to be wirtfin the
scope of the Work OWNER shall not be respuns~le for
materials creafng a Hazardous Condition brought to the
Site by DESIGN/BUILDER, Subcontractors, Suppliers
or anyone else for whom DESIGN/BUILDER is
respons~le.
B. DESIGN/BUILDER and any affected
Subcontractor shall mediately (i) stop ail Construction
in councetion with such Hazardous Condition and in any
area affected thereby ~,except in an emergency as required
by paragraph 6.15), and (il) notify OWNER (and
thereafier confim~ such notice in writing). OWNER sha[l
promptly determine the necessity of retaimng a qualified
expert to evaluate such Hazardous Condition or take
corrective acnon, if any. DESIGN/BUILDER shall nol
be required to resume Conswacnon tn connecnon with
such Hazardous Condition or m any such affected area
until after oWNER has obtained any required pernuts
related thereto and delivered to DESIGN/BUILDER
special writlen notice (i) specifying that such ttazardons
Condition and any affected area is or has been rendered
safe for the resumption of Cunstmcfion, or (ii) specifying
any special conditions under wkich such Construction
may be resmmed safely. If OWNER and
DESIGN/BUILDER cannot agree as to entitlement to or
the amom~t or extent of an adjusunent_ if any, in Contract
Price or Contract Times as a result of such Consmicfion
stoppage or such special conditions under which
Cunstruction is agreed by DESIGN/BUILDER to be
resumed, either party may make a clatm therefor as
provided in Article 9
C. If after receipt of such special written notice
DESIGN/BUILDER does not agree to resmne
Coustmctien based on a reasonable behef it is unsafe, or
does not agree to resume such Construction under such
special conditions, then OWNER may order such portion
of the Work that is related to such Hazardous Condition
or in such affected area to be deleted fi.om the Work If
OWNER and DESIGN/BUILDER cannot agree as to
entitlement to or the mount or extent of an adjustment, ff
any, in Contract Price or Contract TLmes as a result of
deleting such portion of the Work, then either party may
make a claim therefor as provided in Article 9. OWNER
may have such deleted portion of tl~e Work performed by
OWNER's own forces or others in accordance with
Article 7.
D. To the fullest extent permitted by Laws and
Regulations, OWNER shall indemnify and hold harmless
DESIGN/BUILDER, SubconU'actors, Supphers,
Engineers and the officers, directors, employees, agents,
other consultants and subcontractors of each and any of
them from and against all claims, costs, losses and
damages (including but not linfited tc all fees and charges
of engineers, archilccls, aUomcys and other professionals
and all court or arbitranon or other dispute resolution
costs) arising out of or resulting fiom such ltazardous
Condmon. provided thal 0) any such ch[m_ cost, loss or
damage ~s attributable to boddy inJUry, sickness, disease
or death, or to injury to or destruction of tangible
proper~y (other than completed Consauction Services/,
including the loss of use resulting therefrom, and (ii)
nothing in this paragraph 4.04.D shall obligate OWNER
to indemnify any individual or emity from and agains!
the consequences of that individual's or enfity's own
negligence or willful misconduct.
E. The provisions of paragraph 4.02 are not
intended to apply to materials uncovered or revealed at
the Site which are or could be a Hazardous Condition
when such materials are identified in the Supplementary
Conditions.
ARTICLE S-BONDS AND INSURANCE
5.01 Performance, Paymem and Other Bonds
A DESIGN/BUILDER shall furn/sh performance
and payment Bonds, each m an amount at least equal to
the Contract Price as security for the faithful performance
and payment of all DESIGN/BUILDER'S obligations to
fumisk, provide and pay for Constracuon and related
materials under the Contract D~cuments. These Bonds
shall remain in effect at least until one year after the date
when fml payment becomes due, except as provided
otherwise by Laws or Regulations or by the Contract
Documents. DESIGN/BUILDER shall also furnish such
other Bonds as are requked by the Supplementary
Conditions. All Bonds shall be in tlie form prescribed by
the Conlract Documents except as provided otherwise by
Laws or Regulations, and shall be executed by such
sureties ag are named in the current list of "Companies
Holding Certificates of Authorily as Acceptable Sureties
on Federal Bonds and as Acceptable Reinsuring
Companies" as published in Circular 570 (amended) by
the Audit Staff, Bttreau of Government Financial
Operations, U.S. Treasury Department. All Bonds
signed by an agent must be accompanied by a certified
copy of such agenfs authority to act.
B. If the surety on any Bond famished by
DESIGN/BUILDER is declared a bankrupt or becomes
insolvent or its right to do business is terminated in any
state where any part of the Project is located or it ce2ses
to meet the requirements of paragraph 5.01.A,
DESIGN/BUILDER shall within flfixly days thereafter
substitute another Bond and surety meetLng the
requirements of paragraphs 5.01.A and 5.09.
5.02 DESIGN/BUILDER9 Liability Insurance
A. DESIGN/BUILDER shall purchase and maintain
sucli Comprehensive or Commercial General Liability
(subject to customary exclusions in respect of
professional liability), Automobile Liability and Worker's
Compensation insurance as is appropriate for the Work
being performed and furnished and as will provide
9
protection from claims set forth below which may arise
out of or result from DESIGN/BUILDER's performance
and furnishing of the Work and DESIGN/BUILDER's
other obligations under the Contract DocumentS, whether
it is to be performed or furnished by
DESIGN/BUILDEIL, any Subcontractor or Supplier, or
by anyone directly or indtrectly employed by any of
them to perform or furnish any of the Work, or by
anyone for whose acts any of diem may be liable:
1. Claims under workers' compensation, disability
benefits and other similar employee benefit acts;
2. Claims for damages because of bodily injury,
occupational sickness or disease, or death of
DESIGN/BUILDER's employees;
3. Claims for damages because of bodily injury,
sickness or disease, or death of any person other than
DESIGN/BUILDER's employees;
4. Claims for damages insured by customary
personal injury hability coverage wtfich are sustained
(i) by any person as a result of an offense directly or
indirectly related to the employment of such person
By DESIGN/BUILDER, or (ii) by any other person
for any other reason;
5. Claims for damages, other than to the Work
itself, because of injury to or destruction of tangible
property wherever located, including loss of use
resulting therefrom; and
6. Claims for damages because of bodily injury or
death of any person or proper~y damage arising out of
the ownership, maintenance or use of any motor
vehicle.
B. The policies of iusurance required by paragraph
5.02.A shall:
1. With respect to insurance required by paragraphs
5.02.A.3 through 5.02.A.6 inclusive, include as
additional insureds OWNER and OWNER's
Consultants and any oilier persons or entities
indicated in the Supplementary Conditions, all of
whom shall be listed as additional insured& and
include coverage for the respective officers and
employees of all such additional msureds;
2. Include at least the specific coverages and be
x~tlen for not less than il~e limits of liability
provided in the Supplementary Conditions or
required by Laws or Regulations, Mfichever is
greater;
3. Include completed operafiurm insurance;
4. Include contractual liability insurance covering
DESIGN/BUILDER's indemnity obligations under
paragraphs 6.06, 6.10 and 6.19;
5. Contain a provision or endorsemant that the
coverage afforded will not be cancelled, materially
changed or renewal refused until at least 30 days
prior written notice has been given to OWNER and
each other additional in~urcd indicated in the
Supplementary Conditions to whom a certificate of
insurance bas been issued (and the certificates of
insurance furnished by the DESIGN/BUILDER
pursuant to paragraph 5.09.B will so provide);
6. Remain in effect at least until final payment and
at all times thereafter when DESIGN/BUILDER may
bo correcting, removing or replacing defective
Construction in accordance with paragraphs 12.06
and 12.07; and
7. With respect to corapleted operations insurance,
and any other insurance coverage written on a
claims-made basis, remain in effect for at least two
years a~er fatal payment (and DESIGN/BUILDER
shall famish oWNER and each other additional
insured indicated in the Supplementary Conditions to
whom a certificate of insurance has been issued
evidence satisfactory to OWNER and any such
additional insured of continuation of such insurance
at final payment and one year thereafter).
5.03 OWNER's Liability Insurance
10
A. In addition to the insurance required to be
provided by D ~ESIGN/BUILDER under paragraph 5.02,
OWNER, at OWNER's option, nuy purchase and
maintain at OV, qqER% expense OX,5qqER's ova~ liability
insurance as will protect OWNER against clahns which
may arise from operations under the Contract
Documents.
5.04 Property Insurance
A. Unless other~vise provided in the Supplementary
Conditions, DESIGN BUILDER shall purchase and
maintain property insurance upon the Construction at the
Site in the amount of the full replacement cost thereof
(subject to such deduct~ole amounts as may be provided
in the Supplementary Conditions or required by Laws
and Regulations). This insurance will:
1. Include the interests of OWNER,
DESIGN/BUILDER, Subcontractors, and any other
persons or entities indicated in file Supplementary
Conditions, each of whom is deemed to have an
insurable interest and shall be listed as an insmed or
additional insured;
2. Be written on a Builder's Risk 'all-risk~ or open
peril or special muses of loss policy form that shall at
least include insurance for physical loss and damage
to the Constmction~ temporary buildings, falsework
and all materials and equipment in Iransit, and shall
insure againgt at least the following perils or causes
of loss: f~re, lighming, extended coverage, the~
vandalism and malicious mischief, earthquake,
collapse, debris removal, demolition occasioned by
enforcement of Laws and Regulations, water
damage, and such other perils or causes of loss as
may be specifically required by the Supplementary
Conditions;
3. Include expenses incurred in the repair or
replacement of any insured property (including but
not limited to fees and charges of engineers and
architects);
4. Cover materials and equipment stored at the Site
or at another location that was agreed to in writing by
OWNER prior to being incorporated in the
Construction, provided Ihat such materials and
equipment have been included in an Application for
Payment approved by O~q~R;
5. Be maintained in effect until final payment is
made unless otherwise agreed to in writing by
oWNER and DESIGN/BUILDER with ttfirty days
written notice to each other additional insured to
whom a certificate of insurance has been issued; and
6. Allow partial utilization in accordance with
paragraph 5.08.
B. DESIGN/BUILDER shall purchase and
maintain such boiler and machinery insurance or
additional property insurance as may be required by the
Supplementary Conditions or Laws and Regulations
wtfich witl include the interests of OWNEK,
DESIGN/BUILDER, Snbconlractors, and any other
individuals or entities indicated in the Supplementary
Conditions, each of whom is deemed to have an
insurable interest and shall be listed as an insured or
additional insured.
C. Ali the policies of insurance (and the eorlificates
or other evidence thereof) required to be purchased and
maintained by DESIGN/BUILDER in accordance with
paragraph 5.04 will contain a provision or endorsement
that ll~e coverage afforded will not be cancelled or
materially changed or renewal refused until at least 30
days' prior written notice has been given to oWNER and
to each other additional insured to whom a certificate of
insurance has been issued and will contain waiver
provisions in accordance with paragraph 5.05.A.
D. OWNER shall not be responsible for purchasing
and maintaining any property insurance to protect the
interests of DESIGN/BUILDER, Subeonmactors,
Suppliers, Engineers or others in the Work to the extent
of any deductible mounts that are identified in the
Supplementary Conditions. The risk of loss within such
identified deductible amount, will be borne by
11
DESIGN/BUILDER, Subcontractor or others suffering
any such loss and if any of them wishes property
insurance coverage within the limits of such amounts,
each may purchase and maLntain it at the purchaser's own
expense.
5.05 Waiver o fRights
A. OWNER and DESIGN/BUILDER intend that all
policies purchased in accordance with paragraph 5.04
will protect OWNER, DESIGN/BUILDER, Engineers,
Subcontractors, and all other individuals or entities
indicated in the Supplementary Conditions to be listed as
insureds or additional insureds in such policies and will
provide primary coverage for all losses and damages
caused by the perils or causes of loss covered thereby.
Ail such policies shall contain pmvisious to the effect
that in the event of payment of any loss or damage the
insurem will have no righls of recovery against any of the
insureds or additional insure(ts theremtdes. OWNER and
DESIGN/BUILI')ER waive all rights against each other
and their respecnve officers, directors, employees and
agents for all losses and damages caused by, arismg out
of or resulting from any of the perils or causes of loss
covered by such policies and any othe~ property
insurance applicable to the Work; and, in addition, waive
all such fights against Subcontractors, Suppliers,
Engineers and ail other individuals or entities indicated in
the Supplementary Conditous to be listed as insureds or
additional insureds under such policies for losses and
damages so eamwxL None of the above waivers shah
extend to the rights that any patty malting such waiver
may have to the proceeds ofinsta*~ce held by OWNER
as trustee or otherwise payable under any policy so
issued. In additinr~ OWNER waives all rights against
DESIGN/BUILDER, Subcontractors. Engineers and
Suppliers and the officers, directors, employees and
agents of any of them for business interruption, loss of
use of OWNER's property and any othes consequential
damages caused by, arising out of or result/nfl from any
of such insured perils or cause~ of loss or any other peril
or cause of loss whether or not insured.
5.06 Receipt and Application of Ptvceeds
A. Any insured loss under rite policies of insurance
required by paragraph 5.04 will be adjusted with
OWNER and made payable to OWNER as fiduciary for
the insure&, as their interests may appear, subject to rite
requirements of any applicable moagage clause and of
paragraph 5.06.B. oWNER shall deposit in a separate
account any money so received, and shall dis~bute it in
accordance with such agreement as the parties in interest
may reach. If no other special agreement is reached the
damaged Work shall be repaired or replaced, the moneys
so received applied on account thereof and the Work and
the cost thereof covered by an appropriate Cliange Order
or Written Amendment.
B. oWNER as fiduciary shall have power to adjust
and set, lc any loss with the insurers unless one of the
parties in interest shall object in writing within fifteen
days after ',he occurrence of loss to OWNER's exercise of
this power. If such objection be made, oWNER as
fiduciary shall make se~lement with the insurers in
accordance with such agreement as the parties in interest
may reach. If no such agreement among the parties in
interest is reached, OWNER as fiduciary shall adjust and
settle the loss with the insurers and, if required in writing
by any party in interest, OWNER as fiduciary shall give
bond for the proper performance of such duties.
12
5.07 Acceptance of Bonds and Insurance; Option to
Replace
A. If either party has any objection to the coverage
afforded by or other provisions of the Bonds or insurance
required to be purchased and maintained by the other
parW in accordance with Article 5 on the basis of their
not complying with the Conlract Documents, the
objecting party stroll so noOfy the other party in writing
within ten days after receipt of the certificates (or other
evidence requested) required by paragraph 2.04.B.
oWNER and DESIGN/BUILDER shall each provide to
the other such additional information in respect of
insmance provided as the other may reasonably request.
If either party does not purchase or maintain all of the
Bonds and iasurance required of such party by the
Contract Documents, such party shall notify the other
party in writing of such failure to purchase prior to the
start of the Work, or of such failure to maintair~ prior to
any change ia the required coverage. Without prejudice
to may other right or remedy, the other puny may elect to
obtain equivalent Bonds or insurance to protect such
other party's interests at the expense of the party who was
supposed to provide such coverage, and a Change Order
or Written Amendment shall be issued to adjust thc
Contract price accordingly.
5.08 Partal Utiliza~on-Property Insurance
A. If OWNER finds it necessary to occupy or use a
portion or portions of the Work prior to Substantial
Completion of all the Constmcfioth such use or
occupancy may Be accomplished in accordance with
paragraph 13.06; provided that no such use or occupancy
shall commence Before the insurers providing the
property insurance have acknowledged notice thereof
and in writing effected any changes irt coverage
necessitated thereby. The insurers providing the property
insurance shall consent by endorsement on the policy or
policies, but the property insmm~ce shall not Be cancelled
or permitted to lapse on account of any such partial use
or occupancy.
5.09 Licensed Sureties and btsurers: Certificates of
A. All Bonds and insurance required by the Contract
Documents to be purchased and maintained ~y OWNER
or DESIGN/BUILDER shall be obtained fiom surety or
insurance companies that are duly licensed or authorized
in the jurisdiction in which the Project is located to issue
Bonds or insurance policies for the lirrdts and coverages
so required. Such surety and insurance companies shall
also meet such additional requirements and qualifications
as may be provided in the Supplementary Conditions.
B. DESIGN/BUILDER shall deliver to OWNER,
with copies to each additional ir~ured indicated in the
Supplementary Conditions, certificates of insurance (and
other evidence of insurance requested by OWNER or any
other additional insured) which DESIGN/BUILDER is
required to purchase and maintain in accordance with
paragraph 5.02.A. oWNER shall deliver to
DESIGN/BUILDER, with copies to each additional
insured indicated in the Supplementary Conditions,
certificates of insurance (and other evidence of insurance
requested by DESIGN/BUILDER or any other additional
insured) which OWNER is required to purchase and
maintain ia accordance with paragraptm 5.04.A and
5.04.B.
ARTICLE 6 -- DESIGN/BUILDER'S
RESPONSIBILITIES
6.01 Design Professional Services
A. Standard of Care: DESIGN/BUILDER shall
perform or furnish Design Professional Services and
related services in all phases of the project. The standard
of care for all such services performed or furnished under
dais Agreement will Be the care and skill ordinarily used
by members of the engineering profession practicing
under similar conditions at the same time and locality.
B. Preliminary DeMgn Phase: After the Contract
Times commence to run, DESIGN/BUILDER shall:
13
I. Consult wifl~ OWNER to understand OWNER's
requirements for the Project and review available
data.
2. Advise OWNER as to the necessity of
OWNER's providing or obtaining from others
additional reports, data or services of the types
provided in paragraph 8.01.A.6.a-f and assist
OWNER. in obta[rdng such reports, data, or services.
3. Identify and analyze requirements of
governmental authorities having jurisdiction to
approve the portions of the Project designed or
specified by DESIGN/BUILDER with whom
consultation is to be undertaken in connection with
the Project.
4. Obtain such additional geotechnical and related
information which it deems necessary for
performance of the Work.
5. On the basis of the Conceptual Documents and
DESIGN/BUILDER's Proposal, prepare preliminary
design documents consisting of final design criteria,
pr~lmainary drawings, outline specifications, and
written descriptions of the Project.
6. Furnish the pr~laniuary design documents to and
review them with oWNER within the tLme indicated
in the schedules described in paragraph 2.06.A.
C. Final Design Phase: After written acceptance by
oWNER of the prelinfinary design phase documents
DESIGN/BUILDER shall:
1. On the basis of the accepted Preliminary Design
Phase docurrtents, prepare final Drawings showing
the scope, extent and character of the Construction to
be performed and furnished by DESIGN/BUILDER
and Specifications (which will be prepared, where
appropriate, in general conformance with the sixteen
division format of the Consmaction Specifications
Institute).
2. Provide technical criteria, written descriptions
and design data required for obtaining approvals of
such governmental authorities as have jurisdiction to
review or approve the final design of the Project, and
assist oWNER in consultations with appropriate
authorities.
3. Furnish the above documents, Drawings and
Specifications to and review them with OWNER
within the thne indicated in the schedules described
in pmragrapl~ 2.04.A and 2.06.A.
D. Operational Phase: During the Operational
Phase, DESIGN/BUILDER shall:
1. Provide assislance in connection with the start-up,
testing, refining and adjusting of any equipment or
system.
2. Assist OWNER in training staff to operate and
maintain the Project.
3. Assist oWNER in developing systems and
procedures for consol of the operation and
maintenance of and record keeping for the Project.
6.02 Supervision and Superintendence of Cormtruction
A. DESIGN/BUIlDER shall supervise, inspect and
direct the Constmctinn competently and efficiently,
devoting such attention thereto and applying such skills
and expertise as may be necessary to provide thc
Construction in accordance with the Contract
Documents. DESIGN/BUII.,DER shall be solely
responsible for the means, methods, techniques,
sequences and procedures employed for the provision of
Construction. DESIGN/BUILDER shall be respons~le
to see that the completed Construction complies
accurately with the Conlract Documents and shall keep
OWNER advised as to the quality and progress of the
Construction.
B. DESIGN/BLffLDER shall keep on the Site at all
times during construction a competent resident
superintendent, who shall not be replaced without written
notice to oWNER except under extraordinary
14
circunxstances. Tile superintendent will be
DESIGN/BUILDER's representative at the Site and shall
have authority to act on behalf of DESIGN/BUILDER.
All communications to the superintendent shall be as
binding as if given to DESIGN/BUILDER
6.03 Labor, Materials and Equipment
A. DESIGN/BUILDER shall provide competent,
suitably qualified personnel to survey and lay out the
Construction and perform Construction as required by
the Contract Documents. DESIGN/BUILDER shall at all
times maintain good discipline and order at the Site.
Except as otherwise requked for the safety or protection
of persons or the Work or property at the Site or adjacent
thereto, and except as otherwise indicated in the Contract
Documents, all Construction at the Site shall be
performed during regular working hours, and
DESIGN/BUILDER will not pemtit overtime work or
the performance of Coostruction on Saturday, Sunday or
any legal holiday without OWiXFER's written consent,
which will not be mtreasonably withheld.
B. Unless otherwise specified in the Conlxact
Documents, DESIGN/BUILDER shall furnish or cause
to be furnished and assme full respons~ility for
materials, equipment, labor, tramvportafion, construction
equipment and machinery, tools, appliances, fuel, power,
light, heat, telephone, water, sanitary facilities, temporary
facilities and all other facilities and incidentals necessary
for the ful'nLshing, performance, tesfng, start-up and
completion of the Work. DESIGN/BUILDER, in fire
presence of OWNEWs personnel, will dkect the checkout
of utilities and opemtio~ of systems and equipment.
C. All materials and equipment incorporated into the
Work shall be of good quality and new, except as
otherwise provided in the Contract Documents. All
warranties and guarantees specifically called for by the
Contract Documents shall expressly nm to the benefit of
OWNER. If required by OWNER, DESIGN/BUILDER
shall furnish satisfactory evidence (including reports of
required tests) as to the kind and quality of materials and
equipment. Ail materials and equipment shall be applied,
ir. stalled, connected erected, used, cle~aned and
conditioned in accordance with instructions of the
applicable Supplier, except as otherwise provided in the
Contract Documents.
6.04 Progrexs Schedule
A. DESIGN/BUILDER shall adhere to file progress
schedule established in accordance with paragraph
2.06.A as it may be adjusted from time to lime.
1. DESIGN/BUILDER shall submit to OWNER for
acceptance proposed adjus~nents in the progress
schedule that will not change the Contract Times (or
Milestones). Such adjusWaenls will conform
generally to the progress schedule then in effect.
2. Proposed adjustments in the progresa schedule
that will change the Contract Times (or Milestones)
shall be submitted in accordance with the
requirements of Article 11. Such adjuslments may
only be made by a Change Order or Written
Amenchnent.
6.05 Concerning Subcontractors, Suppliers and Others
A. DESIGN/BUILDER shall not employ any
Subcontractor, Engineer, Supplier or other individual or
entity against whom OWNER may have reasonable
objection. DESIGN/BUILDER shall not be required to
employ any Subcontractor, Engineer, Supplier or other
individual or entity to furnish or perform any of the
Work against whom DESIGN/BUILDER has reasonable
objection.
B. DESIGN/BUILDER shall be fully respoas~le to
OWNER for all acts and om/ssions of the Subcontractors,
Engineers, Suppliers and other individuals or entities
performing or furnishing any of the Work under a direct
or indirect contract with DESIGN/BUILDER- Nothing
in 'die Contract Documents shall create for the benefit of
any such Subcontractor, Engineer, Supplier or other
individual or entity any contractual relationship between
OWNER and any such Subcontractor, Engineer, Supplier
or other individual or entity, nor shall it create any
obligation on the part of oWNER to pay or to see to 'die
15
payment of any moneys due any such Subcontractor.
Engineer, Supplier or otimr individual or entity except as
may otherwise be requtied b3 Laws and Regulations
C. DESIGN/BUILDER shall be solely responsible
for scheduling and coordinating Subcontractors.
Engineers, Suppliers and other individuals and entities
peffonnmg or furnishing any of the Work under a direct
or indirect contract with DESIGN/BUILDER.
DESIGN/BUILDER shall requke all Subcontractors.
Engineers, Suppliers and such other individuals and
entities performing or furnishing any of the Work to
conanunicate with the OWNER through
DESIGN/BUILDER.
D. All services performed or provided to and
material and equipment supplied to DESIGN/BUILDER
by a Subcontractor or Supplier will be pmsuant to an
appropriate Design Subagreement or Construction
Subagreement between DESIGN/BUILDER and the
Subcontractor, Engineer or Supplier which specifically
binds the Subcontractor, Engineer or Supplier to the
applicable terms and conditions of the Contract
Documents for the benefit of OWNER. Whenever any
such agreement is with a Subcontractor, Engineer or
Supplier who is listed as an additional insured on the
property insurance provided in paragraph 5.04.A or
$.04.B, the agreement between the DESIGN/BUILDER
and the Subcon(ractor, Engineer or Supplier will contain
provisions whereby the Subcontractor, Engineer or
Supplier waives ali rights against OWNER,
DESIGN/BUILDER, OWNER's Consultants and all
other additional imureds for all losses and damages
caused by any of the perils or causes of loss covered by
such policies and any other property insurance applicable
to the Work. If the insurers on any such policies requke
separate waiver forms to be signed by any Subcontractor,
Engineer or Supplier, DESIGN/BUILDER will obtain
the same.
6. 06 Patent Fees and Royalties
A. DESIGN/BUILDER shall pay all license fees and
royalties and assume all costs incident to the use in the
peffonr~nce of the Work or the kncorporation in the
Work of any invention, design, process, product ot
device which is the subject of patent rights or copyrights
held by others. Ifa particular mventmn, design, process.
product or device is specified m the Conceptual
Documents for use m the peffom~ance of the
ConsU~action and if to the actual 'knowledge of OWNER
its use is subject to patent rights or copyhghts calling for
the pa3nnent of any hcense fee or royalty to others, file
existence of such ~ights shall be disclosed by OWNER in
the Conceptual Documents. To the fullest extent
penrdtted by Laws and Regulations,
DESIGN/BUILDER shall indemnify and hold harmless
OWNER, from and against all clairca, costs, losses and
damages (including but not lknited to all fees and charges
of engineers, architects, attorneys and other professionals
and all court or arbitration or other dispute resolution
costs) arising out of or resulting from any infringement
of patent rights or copyrights incident to the use in the
performance of the Work or resulting f~om the
incorporation in the Work of any invention, design,
process, product or device not specified in the
Conceptual Documents.
6.07 Permits
A. Unless otherwise provided in the Contract
Documents, DESIGN/BUILDER shall directly or
through one or more Subcontractors obtain and' pay for
all necessary permits and licenses. OWNER shall assist
DESIGN/BUILDER, when necessary, in obtaining such
permits and licenses. DESIGN/BUILDER shall pay all
governmental charges and inspection fees necessary for
the prosecution of the Construction, which are applicable
on the last day for receipt of Proposals.
DESIGN/BUILDER shall pay all charges of utility
owners for connections to fire Work, and OWNER shall
pay ail charges of such utility owners for capital costs
related thereto.
6. 08 Laws and Regulations
A. DESIGN/BUILDER shall give all notices and
comply with all Laws and RegUlations of the place of the
Project which are applicable to furnishing and
performance of the Work. Except where otherwise
16
expressly requixed by applicable Laws and Regulations,
OWNER shall not be responsible for monitoring
DESIGN/BUILDER% compliance with any Laws or
Regulations.
B. If DESIGN/BUILDER performs any Work
knowing or having reason to know that it is contrary to
Laws or Regulations, DESIGN/BUILDER shall bear all
costs arising therefrom.
C. Changes in Laws and Regulations not known or
foreseeable on the date of receipt of Proposals having an
effect on the cost or time of performance may be the
subject of a claim under Article 9.
6.09 Taxes
A. DESIGN/BUIEDER shall pay all sales,
consumer, use, gross receipts and other similar taxes
required to be paid by DESIGN/BUILDER m
accordance with the Laws and Regulations of the place
of the Project which are applicable during the
performance of the Work.
6.10 Use of Site and Other Areos
A. DESIGN/BUILDER shall confine construction
equipment, the storage of materials and equipment and
the operations of construction workers to those lands and
areas pex'mitted by the OWNER and other land and areas
permitted by Laws and Regulations, dghtsqff-way,
permits and easements, and shall not unreasonably
encumber the prermses with construction equipment or
other materials or eqmpmem. DESIGN/BUILDER shall
assmue full responsibility for any damage to any such
land or area, or to the owner or occupant thereof or of
any adjacent land or areas, resulting from the
performance of the Construction. Should any claim be
made by any such owner or occupant because of the
performance of the Construction, DESIGN/BUILDER
shall promptly settle with such other party by negotiation
or otherwise resolve the claim by arbitration or other
dispute resolution proceeding or at Law
DESIGN/BUILDER shall, to the fullest extent permitted
by Laws and Regulations. indemnify and hold harm/ess
OWNER, OWNER's Consultants and anyone directly or
indirectly employed by any of them from and against all
claims, costs, losses and damages (including, but not
limited to, fees of engineers, architects, attorneys and
other professionals and court and arbitration or other
dispute resolution costs) arising out of or resulting from
any claim or action, legal or equitable, brought by any
such owner or occupant against OWNER, or any other
party indemnified hereunder to the extent caused by or
based upon DESIGN/BUILDER's performance of the
Construction.
B. During the performance of the Constmcfon,
DESIGN/BUILDER shall keep the premises free from
accumulations of waste materials, rubbish and other
debris resulting from the Construction. At the
completion of the ConsU'uction DESIGN/BUILDER
shall remove all waste materials, rubbish and debris from
and about ~ahe premises as well as all tools, appliances,
constmctio~t equipment, temporary construction and
machinery and surplus materials. DESIGN/BUILDER
shall leave the Site clean and ready for occupancy by
OWNER at Substantial Completion.
DESIGN/BUILDER shall restore to original cohdifidn all
property not designated for alteration by the Contract
Documents.
C. DESIGN/BUILDER shall not load nor permit
any part of any structure to be loaded in ~ny mahfie~'th,~t
will endanger the structure, nor shall DESIGN
BUILDER subject any part of the Work or adjacent
property to stresses or pressures that will endanger it.
17
6. I I Record Documents
A. DESIGN/BUILDER shall maintsin in a sale
place at the Site one record copy of all Drawings,
Specifications, Addenda, Written Amendanents, Change
Orders, Field Orders and Work Change Directives, in
good order and annotated to show all changes made
during construction. These record documents together
with all approved Subndttals will be available to
OWNER for reference. Upon completion of the Work,
these record documents and Submittals, including a
reproducible set of record drawtngs, will be delivered to
OWNEtE
6.12 Safety and Protection
A. DESIGN/BUILDER shall be solely responsible
for initiating, maintaining and supervtsing all safety
precautions and programs h: connecuon with the
Construction DESIGN/BUILDER shall take all
necessary precautiom for the safety of, and shall provide
the necessary protection to prevent damage, injury or loss
to:
1. all persons on the Site or who may be affected by
the Conslzuction;
2. all Work and materials and equipment to be
incorporated therein, whether in storage on or off the
Site; and
3. other prope~ny at the Site or adjacent thereto,
including trees, shrubs, lam, walks, pavements,
roadways, swactures, utilities and underground
facilities not designated for removal, relocaaon or
replacement ia the course of cunstmction.
B. DESIGN/BUILDER shall comply with
applicable Laws and Regulations of any public body
having jurisdiction for safety of persons or property or to
protect them fi.om damage, injury or loss; and shall erect
and maintain ail necessary safeguards for such safety and
protection~ DESIGN/BUILDER shall notify owners of
adjacent properly and of underground facilities and
utility owners when prosecution of the Work may affect
them, and shall cooperate with them in the protection,
removal, relocation and replacement of their property.
All damage, injur~ or loss to any properly caused,
directly or indirectly, in whole or in part, by
DESIGN/BUILDER, any Subcontractor, Supplier or any
other individual or entity d[rectIy or indirectly employed
. by any of them to perform or furnish any of the Work or
anyone for whose acts any of them may be liable, shall
be remedied by DESIGN/BUILDER.
DESIGN/BUILDER's dunes and responsibilities fm
safety and for protection of the consu:action shall
continue until such nme as all the Work is completed and
OWNER has issued a nonce to DESIGN/BUILDER ia
accordance with paragraph 13.09 that the Work is
acceptable {except as otherwise expressly provided tn
connection with Substantial Completion'l.
6. f3 Safety Representative
A. DESIGN/BUILDER shall designate a qualified
and experienced safety representative at the Site whose
duties and responsibilities shall be the prevention of
accidents and the maintaining and superv~stng of safety
precautio~ and programs.
6.14 Hazard Communication Programx
A. DESIGN/BUILDER shall be responsible for
coordinating any exchange of material safety data sheets
or other h,~zard communication information required to
be made available to or exchanged between or anaong
employers at the Site in accordance with Laws or
Regulations.
18
6.15 Emergencms
A. In emergencies affecting the safety or protection
of persons or the consWucfion or property at file Site or
adjacent thereto. DESIGN/BUILDER, without special
instmcuon ot authorization from OWNER, ts obligated
to act to prevent fl~reatened damage, injury or loss.
DESIGN/BUILDER shall give OWNER prompt written
notice if DESIGN/BUILDER believes that any
s~gnificant changes m the Construction or variations fxom
the Conu-act Documents have been caused thereby, If a
change in the Consract Documents is required because of
the action taken by DESIGN/BUILDER in response to
such an emergency, a Work Change Directive or Change
Order will be issued to document the consequences of
such action.
616 Submittals
A. OWNER will review and approve Submittals in
accordance with the schedule of required Submittals
accepted by OWNER as required by paragraph 2.06.A.
OWNER's review and approval will be only to determine
if the items covered by the Submittals will, after
installation or incorporation in the construction, conform
to the int'ormafion given in the Conlract Documents and
be compatib!e with the design concept of the completed
Project as a functioning whole as indicated by the
Contract Documents. OWNF~'s review and approval
will not extend to means, methods, techniques, sequences
or procedures of cons~xaction (except where a particular
means, method, technique, sequence or procedure of
construction is specifically and expressly called for by
the Contract Documents) or to safety precautious or
programs incident thereto. The review and approval of a
separate item as such will not indicate approval of the
assembly in which the item functions.
DESIGN/BUILDER shall make corrections required by
OWNER, and shall return the requisod number of
corrected copies of the required Submittal for review and
approvaI. DESIGN/BUILDER shah d/feet specific
attention in writing to revisions other than the corrections
called for by OWNER on previous Submittaks.
B. OWNEWs review and approval of required
Submittals shall not relieve DESIGN/BUILDER from
responsibility for any variation dom the requirements of
the Contract Documents unless DESIGN/BUILDER has
tn x~qiting called OWNER's anention to each such
variation at the tisne of subnfission and OWNER has
given written approval of each such variation by specific
written nohauon thereof incorporated in or accompanying
the Submittal.
C. Where a Submittal is required by the ConO-act
Documents or the ['mai schedule of Submittals accepted
by OWNER as required by paragraph 2.06.A, any related
Construction provided prior to OWNER's rewew and
approval of the pertinent Submittal will be at the sole
expense and responsibility of DESIGN/BUILDER.
6.17 Continuingthe Work
A. DESIGN/BUILDER shall carry on the Work
and adhere to the progress schedule during all disputes or
disagreements with OWNER No Work shall be delayed
or postponed pending resolution of any disputes or
disagreements, except as DESIGN/BUILDER and
OWNER may otherwise agree in writing.
6.18 DESIGN/BUILDER's General Warranty and
Guarantee. 18 DESIGN/BUILDER's General
Warranty and Guarantee
A. DESIGN/BUILDER wammts and guarantees to
OX~qER that all Coas~xuction will be in accordance with
the Contract Documents and will not be defective.
DESIGN/BUILDER's warranty and guarantee hereunder
excludes defects or damage caused by:
1. Abuse, modification or improper maintenance or
operation by persous other than DESIGN/BUILDER,
Subconh-actors or Suppliers; or
2. Normal wear and tear under normal usage.
B. DESIGN/BUILDER's obligation to perform and
complete thc Work in accordance with the Contract
Documents shall be absolute. None of the following will
constitute an acceptance of Work that is not in
19
accordance with the Contract Documents or a release of
DESIGN~BUILDER's obligation to perform the Work in
accordance with the Contract Documents:
1. Observations by OWNER;
2. The making of any progress or f-mai payment;
3. The issuance of a certificate of Substantial
Completion;
4. Use or occupancy of the Work or any part thereof
by OWNER;
5. Any acceptance by OWNER or any failure to do
so;
6. Any review and approval of a Submittal;
7. Any inspection, test or approval by others; or
8. Any correction of defective Construction by
OWNER_
6.19 Indemn~cation
A. DESIGN/BUILDER shall indemnify and hold
hannleas OWNER, OWNER's officers, directors,
employees, agents and consultants fi.om and against all
claims, cosB, losses and damages (including but not
limited to all fees and charges of engineers, architects,
attorneys and other professionals and all court or
arbilration or other dispute resolution costs) arising out of
or resulting from the performance of Constmctiort,
provided that any such claim, cost, loss or damage is
attn~outable to bodily injury, sickness, disease or death, or
to injury to or destruction of mng~le propen'y (other than
the Work itself), including the loss of use resulting
thereffora, but only to the extent such claim, cost or
damage is caused by any negligent act or omission of
DESIGN/BUILDER, any Subcontractor, Engineer, any
Suppher, any individual or entity directly or indirectly
employed by any of them to perform or furnish any of
the Work or anyone for whose acts any of them may be
liable.
B. In any and all claims against OWNER or any of
fl~eir respective consultants, agents, officers, directors or
employees by any employee (or the survivor or personal
representative of such employee) of
DESIGN/BUILDER, any Subcontractor, any Engineer,
any Supplier, any individual or entity directly or
indirectly employed by any of them to perform or furnish
any of the Work or anyone for whose acts any of them
may be liable, the indemnification obligation under
paragraph 6.19.A shall not be limited in any way by any
lim/tafion on the amount or type of damages,
compensation or benefits payable by or for DESIGN-
/BUILDER or any such Subcontractor, Engineer,
Supplier or other individual or entity under workers'
compensation acts, disability benefit acts or other
employee benefit acts.
C. The indemnification obligations of
DESIGN/BUILDER under paragraph 6.19 shall not
extend to the liability of OWNER's Consultants, officers,
director~, employees or agents ahsing out of the
preparation or approval of maps, drawings, opinions,
reports, surveys, designs, or specifications.
ARTICLE 7.-OTItER CONSTRUc'I1ON
7.01 Related Construction at Site
A. OWNER may perform other Work related to the
Project at the Site by OWNER's own forces, or let other
direct contracts therefor or have other work performed by
utility owners. If the fact flutt such other work is to be
performed was not noted in the Conceptual Documents
then (i) written notice thereof will be given to
DESIGN/BUILDER prior to starting any such other
work and (ii) DESIGN/BUILDER may make a claim
therefor as provided in Article 9 if DESIGN/BUILDER
believes that such performance will involve additional
expense to DESIGN/BUILDER or requires additional
time and the parties are unable to agree as to the mount
or extent thereof.
2O
B. DESIGN/BUILDER shall afford each other
coo~actor who is a party to such a direct conU-act and
each utility owner (and OWNER. if OWNER is
performing the additional work with OWNER's
employees) proper and safe access to file Site and a
reasonable oppormmty for the mtroductmn and storage
of materials and equipment and the execution of such
other work and shall properly connect and coordinate the
Construction with theirs. Unless otherwise provided in
the Conlxact Documents, D -ESIGN/BUILDER shall do
all cutting, fitting and patching of the Work that may be
required to make its several parts come together properly
and integrate with such other work. DESIGN/BUILDER
shall not endanger any work of others by cutting,
excavating or otherwise altering thek work arid will only
cut or alter their work with the written consem of
OWNER and the others whose work will be affected.
The duties and responsibilities of DESIGN/BUILDER
under this paragraph are for the benefit of such utility
owners and other contractors to tile extent that there are
comparable provisions fox the benefit of DE-
SIGN/BUILDER tn said dtrecl conn-acts be0~veen
OWNER and such utility owners and other contractors.
C. If the proper execution or results of any pan of
DESIGN/BUILDER's Work depends upon work
performed or services provided by others under this
Article 7, DESIGN/BUILDER shall inspect such other
work and appropriate instruments of service and
promptly report to OWNER in writing any delays,
&fo:ts or deficiencies in such other work or services that
render it unavailable or unsuitable for the proper
execution and results of DESIGN/BUILDER% Work.
DESIGN/BUILDER% laUure so to report will constitute
an accepmce of such other work as fit and proper for
integration with DESIGN/BUILDER's Work except for
latent or nonapparent defects and deficiencies in such
other work.
Z02 Coordination
A. If OWNER contracts with others for the
performance of other work on rite Project at the Site, the
following will be set forth in Supplementary Conditions:
1. The individual or enUty who will have authority
and responsibility for coordination of the activities
among the various prince contractors wilI be
identified;
2 The specific matters To be covered by such
authority and responsibility will be itemized; and
3, The extent of such authority and responsibilities
will be provided.
B. Unless otherwise provided in the Supplementary
Conditions, OWNER shall have sole authority and
responsibility in respect of such coordination.
ARTICLE 8--OWNER'S RESPONSIBILITIES
8. Ol Gr~neral
A. OWNER shall do the following in a timely
manner so as not to delay the services of
DESIGN/BUILDER.
1. Designate in writing a person to act as
OWNER's Representative with respect to the services
to be rendered under tiffs Agreement.
2. Provide such legal services as OWNER may
requzre with regard to legal issues pertaining to the
Project including any that may be raised by
DESIGN/BLqLDER.
3. If requested in writing by DESIGN/BUILDER,
furnish reasonable evidence satisfactory to
DESIGN/BUILDER, that sufficiem funds are
available and committed for the entire cost of the
ProjecL Unless such reasonable evidence is
fimxished, DESIGN/BUILDER is not required to
commence or continue any Work, or may, ff such
evidence is not presented within a reasonable thne,
stop Work upon 15 days notice to the Owner.
4. Make payments to DESIGN/BUILDER
21
promptly when they are due as provided in paragraph
13.04 and 13.09.
5. Furnish lands and easements as set forth m
paragraph 4.01 .A.
6. Furnish to DESIGN/BUILDER, as required for
performance of DESIGN/BUILDER's Services the
following, all of which DESIGN/BUILDER nmy use
and rely upon in performing servsces under tlxis
Agreement:
a. Envirorm~ental assessment and impact
b. Property, boundary, easement- right-of-way,
topographic and utility surveys;
c. Property deaonpuons~
d Zoning, deed and other land use restficttons:
Engineering surveys to estabhsh reference pomes
for design and conslrucfion wlfich in OWNEWs
judgment are necessary to enable
DESIGN/BUILDER to proceed with the Work;
f. Assistance in filing docmnents required to obtain
necessary approvals of governmental authorities
having jurisdiction over the Project;
g. Subsurface data used m preparation of the
Conceptual Documents.
7. Review submittals subject to OWNER review
pursuant to paragraph 6.16.A.
8. Provide information known to or in the
possession of OWNER relating to the presence of
materials and substances at the site which could
create a Hazardous Condition.
B. OWNER's respons~ilifies in respect of
purchasing and maintaining liability and property
insurance are set forth in paragraphs 5.03.A through
5.04 .E.
8.02Scope of OWNER's SafcO' and Hazardous Waste
Responsibilities
A. The OWNER shall not supervise, direct or have
control or authority over, nor be respoasible for,
DESIGN/BUILDER's means, methods, techniques,
sequences or procedures of consnmcuon or the safety
precautions and programs incident thereto, or for any
failure of DESIGN/BUILDER to comply with Laws and
Regulations applicable to the furnishing or performance
of the Work. oWNER will not be responsible for
DESIGN/BUILDER's failure to perform or furnish the
Work in accordance with the Contract Documents.
B. oWNER'S responsibility m respect of undis-
closed Asbestos, PCBs, Petroleum, Hazardous Waste or
Radioacuve Materials uncovered or revealed at thc Site is
set forth in paragraph 4.04.
8.03 Resident Project Representation
A. oWNER may furnish a Resident Project
Representative to observe the pefformm~ce of
Construction. The duties, respons~ilities and limitations
of authority of any such Resident Project Representative
and assistants will be as provided in the Supplementary
Conditions.
ARTICLE 9--CHANGES IN TIlE woRK; CLAIMS
9.01 General-Rights and Obligations
A. Without invalidating the Agreement and without
notice to any surety, OWNER may, at any time or from
time to time, order additions, deletions or revisions in the
Work wittfin the general scope of the contract by a
Written Atnendment, a Change Order, or a Work Change
Directive. Upon receipt of any such document,
DESIGN/BUILDER shall promptly proceed with the
Work involved which will be performed under the
applicable pmvlsious of the Contract Documents (except
22
as otherwise specifically provided).
9.02 Notice of Intent to Make Claim
A. If OWNER and DESIGN/BUILDER are unable
to agree as to the extent, if any, of an adjustment in the
Contract Price or an adjustment of the Contract Times
that should be allowed as a result of any order of
OWNER pursuant to paragraph 9.01.A or other
occurrence for which the Contract Documents provide
that such adjusWnent(s) may be made, a claim may be
made therefor. Written notice of intent to make such a
claim shall be submitted to the other party promptly and
in no event more than 30 days after the start of the
occurrence or event giving r/se to the claim.
9.03 Claim Documentation
A. Substantiating documentation shall be submitted
by the claiming party within 30 days after delivery of the
notice required by paragraph 9.02.A.
9.04 Decision
A. The other patty shall render a decision on the
claim no more than 30 days after the receipt of the
substantiating documentation required by paragraph
9.03.A. This decision will be final and binding unless
the chiming pax~' gives notice of intention to exemise its
rights under Article 15 within 30 days of receipt of the
decision and exercises such rights within 30 days of
giving the notice of intent.
9.05 Time Limit Extension
A. The time limits of paragraphs 9.03.A and 9.04.A
may be extended by mutual agreement.
9.06 Exceptions
A. DESIGN/BUILDER shall not be entitled to an
increase in the Conaact Price or an extension of the
Contract Tkmea with respect to any Work performed that
is not required by the Contract Documents as amended,
modified and supplemented as provided in paragraph
3.03, except in Ore case of an emergency as provided in
paragraph 6.15 or in the case ofuncovering Construction
as provided inparagraph 12.04.
9.07 Execution of Change Orders
A. oWNER and DESIGN/BUILDER shall execute
appropriate Change Orders or Written Amendments
covering:
1. changes in the Work which are (i) ordered by
OV~4ER pursuant to paragraph 9.01, (ii) required
because of acceptance of defective Construction
under paragraph 12.08 or correcting defeca've Work
under paragraph 12.09 or (iii) agreed to by the
parties; and
2. changes in the Conlxact Price or Contract Times
wtfich are agreed to by the parties.
9.08 Notice to Sureties
A. If notice of any change affecting the general
scope of the Work or the provisions of the Contract
Documents (incIuding, but not limited to, Contract Price
or Contract Times) is required by the provisions of any
Bond to be given to a surety, the giving of any such
notice will be DESIGN/BUILDER's respons~ility, and
the amount of each applicable Bond will be adjusted
accordingly.
ARTICLE 10-.CItANGE OF CONTRACT pRICE
10.01 General
A. The Contract Price constitutes the total com-
pensation (subject to authorized adjustments) payable to
DESIGN/BUILDER for pefforn~g the Work.
B. The Contract Price may only be changed by a
Change Order or by a Written Amendment. Any claim
for an adjuslment in the Con~ract Price shall be based on
written notice delivered by the party making the claim to
the other party promptly in accordance with paragraph
9.02.A.
C. The value of any Work covered by a Change
Order or of any claim for an adjustment in the Contract
Price will be detemfined as follows:
1. Where the Work involved is covered by unit
prices contained in thc Contract Documents, by
application of such unit prices to the quantities of the
items involved;
2. Where the Work involved is not covered by unit
prices contained in the Cont~ract Documents, by a
mutually agreed lump sum (wtfich may include an
allowance for overhead and profit not necessarily in
accordance with paragraph 10.02) or by mutually
agreed unit prices;
3. Where the Work involved is not covered by unit
prices contained in the Contract Documents and
agreement to a Imnp sum is not reached under
paragraph 10.01.C.2, on the basis of the Cost of the
Work (determined as provided in paragraph 10.02)
plus a DESIGN/BUILDER's Fee for overhead and
profit (determined as pro,Aded in paragraph 10.02.C).
10.02 Cost of the Work
A. Costx Included: The term Cost of the Work
means the sum of all costs necessarily incuned and paid
by DESIGN/BUILDER in the proper performance of the
Work. Except as otherwise may be agreed to in writing
by OWNER, such costs shall be in mounts no higher
than those prevailing in rite locality of the Project, shall
include only the following items and shall not include
any oftbe costs itemized in paragraph 10.02.B:
1. Payroll costs for employees in the direct employ
of DESIGN/BUILDER in the performance of the
Work under schedules of job classifications agreed
upon by OWNER and DESIGN/BUILDER-
a. Such employees shall include without limitation
superintendents, foremen and other personnel
employed full-tinge at the Site. Payroll costs for
employees not employed full time on the Site
shall be apportioned on the basis of their time
spent on the Site. Payroll costs shall include, but
not be Imfited to, salaries and wages plus tim
cost of fringe benefits which shall include social
security contributions, unemployment, excise
and payroll taxes, workers' compensation, health
and retirement benefits, bonuses, sick leave,
vacation and holiday pay applicable thereto.
The expenses of perforating Work after regular
working hours, on Saturday, Sm~day or legal
holidays, shall be included in the above to the
extent authorized by OWNER.
b. Such employees shall also include engineers and
engineering technicians providing Design
Professional Services. For purposes of this
paragraph 10.02.A.1, DESIGN/BUILDER shall
be entitled to payment for such employees an
amount equal to salary costs times a factor, both
as designated in the Agreement, for all services
performed or finmished by such employees
engaged on the Project.
2. Cost of all materials and equipment furnished and
incorporated in the Work, including costs of
transportation and storage thereof, and Suppliers'
field services required in connection therewith. All
cash di~connts shall accrue to DESIGN/BLr~DER
unless oWNER deposits funds with
DESIGN/BUILDER with which to make payments,
in wbJch case the cash discounts shall accrue to
OWNER. All trade discounts, rebates and refunds
and returns from sale of surplus materials and
equipment shall accme to OWNER, and
DESIGN/BUILDER shall make provisions so that
they may be obtained.
3. Payments made by DESIGN/BUILDER to
Subcontractors for Work performed or furnished by
Subcontractors.
4. Payments made by DESIGN/BUILDER to
Engineers for Design Professional Services provided
or furnished by Engineers under a Design
Subagreement.
5. Costs of special consultants (including but not
limited to testing laboratories, surveyors, attorneys
and accountants) employed for services specifically
related to the Work.
6. Supplemental costs including the following items:
a. Tbe proportionofnecessary transportation, ~xavel
and subsistence expenses of DE-
SIGN/BUILDER's employees incurred in
discharge of duties connected with the Work.
Cost, including transportation and maintenance,
of all materials, supplies, equipment, machinery,
appliances, office and temporary facilities at the
Site and hand tools not owned by the workers,
which m:e consmned in the performance of the
Work, and cost less market value of such items
used but not consumed which remain the
propen'.y of DESIGN/BUIlDER.
Rentals of all Work equipment and machinery
and the para thereof whether rented fxom
DESIGN/BUILDER or others in accordance
with rental agreements approved by OWNER,
and the costs of tram%~rtafion, loading,
unloadlng; imstallafion, dismantling and removal
thereof-all in accordance with the terms of said
~ental agreements, The rental of any such
equipment, machinery or parts shall cease when
the usc therenf is no longer necessary for thc
Work.
Sales, consumer, use or similar taxes related to
the Work, and for which DESIGN/BUILDER is
liable, imposed by Laws and Regulations.
Deposits lost for causes other than negligence of
DESIGN/BUILDER, any Suboonh~actor or
anyone directly or indirectly employed by any of
them or for whose acts any of them may be
liable, and royalty payments and fees for permits
and licenses.
Losses, damages and related expenses caused by
damage to the Work not compensated by
insurance or otherwise, sustained by
DESIGN/BUILDER in connection with file
furnishing and performance of file Work pro-
vided they have resulted from causes other than
the negligence of DESIGN/BUILDER, any
Subcontractor, or anyone directly or indirectly
employed by any of them or for whose acm any
of them nmy be liable. Such losses shall include
settlements made with the written consent and
approval of oWNER. No such losses, damages
and expenses shall be included m the Cost of the
Work for the purpose of determiv2ng
DESIGN/BUILDER's fee. If, however, any
such loss or damage requires rework and
DESIGN/BUILDER is placed in charge thereof,
DESIGN/BUILDER shall be paid for services a
fee proportionate to that stated h~ paragraph
10.02.C.
g. The cost of utilities, fuel and sanitary facilities at
the Site.
Minor expenses such as telegrams, long distance
telephone calls, telephone service at the Site,
expressage and similar petty cash items in
connection with the Work.
i. Cost of premiums for ail Bonds and msunmce
DESIGN/BUILDER is required by the Contract
Documents to purchase and maintain.
B. Costs Excluded: The term Cost of the Work'
shall not include any of the following:
1. Payroll costs and other compensation of
DESIGN/BUILDER's officers, executives, principals
(of parW_erships and sole proprietorships), general
managers, engineers, architects, estimators, attorneys,
auditors, accountants, purchasing and contracting
agents, expediters, timekeepers, clerks and other
personnel employed by DESIGN/BUILDER whether
25
at the Site or in DESIGN/BUILDER's principal or a
branch office for general admmistratinn of the Work
and not specifically included in the agreed upon
schedule of job classifications referred to in
paragraph 10.02.A.1 ~- all of which are to be
considered administrative costs covered by the
DESIGN/BUILDEWs fee.
2. Expenses of DESIGN/BUILDER's principal and
branch offices other than DESIGN/BUILDER's
office at the Site.
3. Any part of DESIGN/BUILDER's capital
expenses, including interest on DESIGN/BUILDeR's
capital employed for the Work and charges agamst
DESIGN/BUILDER for delinquent payments.
4. Costs due to the negligence of
DESIGN/BUILDER, any Subcontractor, or anyone
directly or indirectly employed by any of them or for
whose acts any of them may be liable, including but
not limited to, the correction of defective Work,
disposal of materials or equipment wrongly supplied
and making good any damage to property.
5. Other overhead or general expense costs of any
kind and the costs of any item not specifically and
expressly included in paragraph 10.02.
C. Fee: The DESIGN/BUILDER's fee allowed to
DESIGN/BUII.DER for overhead and profit on Change
Orders priced by paragraph 10.01.C.3 shall be
determined as follows:
1. A mutually acceptable fLxed fee; or
2. Ifa luted fee is not agreed upon, then a fee based
on the following percentages of the various portions
of the Cost of the Work:
a. For costs incurred under paragraphs 10.02.A.1,
A.2, A.5 and A.6 the DESIGN/BUILDER~s fee
shall be 15 percent;
b. For costs incurred under paragraph 10.02.A.3 and
10.02.A.4, thc DESIGN/BUILDER's fee shall be
five percent;
c. Where one or more t~ers of subcontracts are on
the basis of Cost of the Work plus a fee and no
fixed fee is agreed upon. the inlent of paragraphs
10.02.A.1, 10.02.A.2 and 10.02.A.3 is that the
Subcon~zactor who actually perforr~ or
famishes Work, at whatever tier, will be paid a
fee of 15 percent of the costs incurred by such
Subcontxactor under paragraphs 10.02.A.I and
10.02.A.2 and that any lfigher net Subcontractor
and DESIGN/BUILDER will each be paid a fee
of five percent of the amount paid to the next
lower tier Subcontractor;
d. The amount of credit to be allowed by
DESIGN/BUILDER to OWNER for aay change
wtuch results m a net decrease in cost will be the
amount of the actual net decrease m cost plus a
deduction in DESIGN/BUILDER's fee by au
amount equal to five percent of such net
decrease: and
e. When both additions and creCt~ts are involved in
any one change, the adjusunent in
DESIGN/BUILDER's fee stroll be computed on
the basis of the net change in accordance with
paragraphs 10.02.C.2.a through 10.02.C.2.d,
inclusive.
D. Documentation: Whenever the cost of any
Work is to be determined pursuant to paragraph 10.02.A
and 10.02.B, DESIGN/BUILDER will establish and
maintain records thereof in accordance with generally
accepted accounting practices and submit in a form
acceptable to OWNER an itemized cost breakdown
together with supporting dam.
10.03 Cash Allowances
A. The Contract Price includes all allowances so
named in the Contract Documents.
1. The allowances include the cost to DE-
26
SIGN/BUILDER (less any applicable trade dis-
countS) of materials and equipment requixed by the
allowances to be delivered at the Site, and all
applicable taxes; and
2. Except as set forth in the Cunt~act Documents,
DESIGN/BUILDER's costs for unloading and
handling on the Site, labor, installation costs,
overhead, profit and other expenses contemplated for
the allowances have been included in the Contract
Price and not in the allowances and no demand for
additional payment on account of any of the
foregoing will be valid.
B. Prior to final payment, an appropriate Change
Order will be issued to reflect actual amounts due
DESIGN/BUILDER on account of Work covered by
allowances, and the Contract Price shall be corm-
spondingly adjusted.
10.04 Unit Prices
A. Where the Contract Documents provide thai all or
part of the Work is to be Unit Price Work, initially the
Contract price will be deemed to include for all of Unit
Price Work an amount equal to the stun of the established
unit prices for each separately identified item of Unit
Price Work times the estimated quantity of each item as
indicated in the Agreement. The estimated quantities of
items of Unit Price Work are not guaranteed and are
solely for the puqx)se of comparison of Bids and
determining an initial Contract Price. Determinations of
the actual quantifies and classifications of Unit Price
Work peffom:ted by DESIGN/BUILDER will be made
by OWN'EIL
B. Each un/t price will be deemed to include an
amount considered by DESIGN/BUILDER to be
adequate to cover DESIGN/BUILDER's overhead and
profit for each separately identified item.
C. DESIGN/BUILDER or OWNER may make a
claim for an adjustraent in the Contract Price in
accorchnce with Article 9 if:
1. the quantity of any item of Unit Price Work
performed by DESIGN/BUILDER differs from the
estimated quantity of such item indicated in the
Contract Documents by more than the percentage
indicated in the Supplementary Conditions; and
2. there is no corresponding adjustment with respect
to any other item of Work; and
3. DESIGN/BUILDER believes that
DESIGN/BUILDER is entitled to an increase in
Contract Price as a result of having incurred
additional expense or OWNER believes the OWNER
is entitled to a decrease in Contract Price and the
parties are unable to agree as to the amount of any
such increase or decrease.
ARTICLE 11--CHANGE OF CONTItakCT TIN[ES
11.01 General
A. The Contract Times (or Milestones) may only be
changed by a Change Order or a Written Amendment.
Any claim for an adjnsUnent of tbe Contract Times (or
Milestones) shall be based on written notice pursuant to
paragraph 9.02.
B. All Contract Times and Milestones are of the
essence of the Agreement.
11.02 Time Extensions. 02 ~'rne Extenzions
A. Where DESIGN/BUILDER is prevented fi'om
cofi~pleting any part of the Work within the Contract
Times (or Milestones) due to delay beyond the control of
DESIGN/BUILDER, the Con~'act Times (or Milestones)
will be extended in an amount equal to the time lost due
to such delay if a claim is made therefor as provided in
Article 9. Delays beyond the control of
DESIGN/BUILDER shall include, but not be limited to,
acts or neglect by oWNER, governmental agencies, acts
or neglect of utility owners or other contractors
performing other construction work as contemplated by
Article 7, rues, floods, epidemics, abnormal weather
conditions or acts of God. Delays attributable to and
within the control of a Subcontractor or Supplier shall be
deemed to be delays within the consol of
DESIGN/BUILDER-
B. Nothing in this paragraph I 1.02 bars a change in
Con~xact Price pursuant to Article 10 to compensate for
the direct costs incurred by DESIGN/BUILDER due to
delay, interference, or disruption directly attaSbutable to
actions or inactions of OWNER or OWNER's
Consultants. However, OWNER shall not be liable to
DESIGN/BUILDER for costs or damages arising out of
or resulting from (i) delays caused by or within the
control of DESIGN/BUILDER, or (ii) delays beyond the
control of both parties including but not limited to fires,
floods, epidemics, abnormal weather conditions, acta of
God or acts or neglect by governmental agencies, utility
owners, or other contractors performing other work as
contemplated by Article 7.
ARTICLE 12-TESTS AND INSPECTIONS;
CORRECTION, REMOVAL OR ACCEPTANCE
OF DEFECTIVE CONSTRUCTION
12.01 Notice of Defects
A. Prompt written notice of all defective
Constxucfion of which OWNER has acthal knowledge
will be given to DESIGN/BUILDER by OWNER~ All
defective Construction may be rejected, corrected or
accepted as provided in this Article 12.
12.02 Access to Construction
A. OWNER, OWNER's Consultants, other
representatives and personnel of OWNER, independent
testing laboratories and govemmental agencies with
jurisdictional interests will have access to the
Construction at the Site at reasonable times for their
observation, inspecting and testing. DESIGN/BUILDER
shall provide them proper and safe conditions for such
access and advise them of DESIGN/BUILDER's Site
safety procedures and programs so that fl~cy may comply
therewith as applicable.
12.03 Tests and lnspections
A. If thc Contxact Documen~ or Laws or
Regulations of any public body having jurisdiction
require any part of the Construction specifically to be
inspected, tested or approved, DESIGN/BUILDER shall
assume full responsibility for arranging and obtaining
such haspecfions, tests or approvals, pay all costs in
connection therewitth and furnish OWNER the required
certificates of inspection or approval.
DESIGN/BUILDER shall also be responsible for
arranging and obtaining and shall pay all costs in
connection with any inspections, tests or approvals
required for OWNER's acceptance of materials or
equipment to be incorporated in the Construction or of
materials, mix designs, or equipment submitted for
approval prior to DESIGN/BUILDER% purchase thereof
for incorporation in the Construcuon.
B. DESIGN/BUILDER shall give OWNER
reasonable notice of the planned schedule for ail required
inspections, tests or approvals.
C. If any Construction (or the consmxction work of
others) that is requked to be inspected, tested or
approved is covered by DESIGN/BUILDER without
written concurrence of oWNER, it must, if requested by
OWNER, be uncovered for observation at
DESIGN/BUILDER's expense unless
DESIGN/BUILDER has given OWNER timely notice of
DESIGN/BUILDER's intention to cover the same and
OWNER has not acted with reasonable promptness in
response to such notice.
12.04 Uncovering Construction
A. If any Construction is covered contrary to the
written request of OWNER, it must, if requested by
OWNER, be tmcovered for OWNER's observation and
recovered at DESIGN/BUILDER's expense.
B. If OWNER considers it necessary or advisable
28
that covered Construction be observed by OWNER or
inspected or tested by others, DESIGN/BUILDER, at
OWNER's request, shall uncover, expose or otherwise
make available for observation, inspection or testing as
OWNER may require, that portion of thc Construction in
question, furnishing all necessary labor, material and
equipment. If it is found that such Construction is
defective, DESIGN/BUILDER shall pay all costs and
danmges caused by or resulting from such uncovering,
exposure, observation, inspection and testing and of
satisfactory replacement or rework, (including but not
limited to all fees and charges of engineers, architects,
attorneys and other professionals, all cour~ or arbitsafion
or other dispute resolution cosB, and all costs of repak or
replacement of work of others); and OWNER shall be
entitled to an appropriate decrease in the Contract Price,
and, if the parties are unable to agree as to the amount
thereof, may make a claim therefor as provided in
Article 9. If, however, such Constmcfiun is not found to
be defective, DESIGN/BUILDER shall be allowed an
increase in the Contract Price or an extension of the
Conlzact Times (or Milestones), or both, directly
attributable to such uncovering, exposure, observation,
inspection, testing, replacement and rework; and, if the
parties are unable to agree as to the amount or extent
thereof, DESIGN/BUILDER may make a claim therefor
as provided ia Article 9.
12.05 Owner May Stop the Construction
A. If the Construction is defective, or
DESIGN/BUILDER fails to supply sufficient skilled
workers or suitable materials or equipment, or fails to
furnish or perform the Construction in such a way that
the completed Construction will conform to the Contract
Documents, OWNER may order DESIGN/BUILDER to
stop Construction or any portion thereof, until the cause
for such order has been eliminated; however, this fight of
OWNER to stop Construction will not give rise to any
duty on the part of oWNER to exercise this fight for the
benefit of DESIGN/BUILDER or any other party.
12.06 Correction or Removal of Defective
Construction
A. OWNER will have authority to disapprove or
reject defective Construction and will have authority to
require special inspection or tcsth~g of thc Constraction
whether or not the Construction is fabricated, installed or
completed. If required by OX.X.q'4ER,
DESiGN/BUILDER shall promptly, as directed, either
correct all defective Construction, whether or not
fabricated, installed or completed, or, if thc Construction
has been rejected by O~SNER, remove it from the Site
and replace it with nondefective Construction.
DESIGN/BUILDER shall bear all direct, indirect and
cousequenfial costs of such correction or removal
(including but not limited to fees and charges of
engineers, architects, attorneys and other professionals)
made necessary thereby.
12.07 Correction Period
A. If within one year after the date of Substantial
Completion or such longer period of time as may be
prescribed by Laws or Regulations or by the terms of any
applicable special guarantee required by the Contract
Documents or by any specific provision of the Contxact
Documents, any Construction is found to be defective,
DESIGN/BUILDER shall promptly, without cost to
oWNER and in accordance with oWNER's written
instmcfious, (i) correct such defective Construction, or, if
it has been rejected by oWNER, remove it fxom the Site
and replace it with Consh'uction that is not defective, and
(ii) satisfactorily correct or remove and replace any
damage to other Cousa'uction or the work of others
reaulfing therefi'om. If DESIGN/BUILDER does not
promptly comply with the terms of such instructions, or
in an emergency where delay would cause serious risk of
loss or damage, oWNER may have the defective
Constmchon corrected or the rejected Construction
removed and replaced, and all costs and damages caused
by or resulting fi~om such removal and replacement
(including but not limited to all fees and charges of
engineers, architects, attorneys and other professionals,
all court or arbitration or other dispute resolution costs,
and all costs of repair or replacement of work of others)
will be paid by DESIGN/BUILDER.
B. hi special ckcumstances where a particular item
of equipment is placed in continuous service before
Substantial Completion of all the Construction, the
correction period for that item may start to mn from an
earlier date if so provided in the Specifications or by
WrRten Amenchnent.
C. Where defective ConstrucUon (and damage to
other Construction resulting therefrom) has been
corrected, removed or replaced under this paragraph
12.07, the correction period hereunder with respect to
such Construction will be extended for an additional
period of one year after such correction or removal and
replacement has been satisfactorily completed.
12.08 Acceptance of Defective Const~ction
A. If, instead of requiring correction or removal
and replacement of defective Construction, OWNER
prefers to accept it, oWNER nmy do so.
DESIGN/BUILDER shall pay all costs allributable to
OWNER's evaluation of and detem~2nation to accept
such defective Construction (such costs to include but not
be limited to all fees and charges of engineers, architects,
attorneys and other professionals and all court or
arbitration or other dispute resolution costs). If any such
acceptance occurs prior to final payment, a Change Order
will be issued ineorpomting the neee~;sary revisions in. the
Contract Documents with respect to the ConstmcUon;
and OWNER shall be entided to an appropriate decrease
in the Contract Price, and, ff the parties are unable to
agree as to the amount thereof, OWNER may make a
claim thcrefor as provided in An/cie 9. If the acceptance
occurs after final payment, an appropriate amount will be
paid by DESIGN/BUILDER to OWNER.
12.09 0 WNER May Correct Defective Construction
A. If DESIGN/BUILDER fails within a reasonable
time after written notice from OWNER to correct
defective Consupuction or to remove and replace rejected
Consstruction as required by oWNER in accordance with
paragrap~ 12.06.A or 12.07.A- or if
DESIGN/BUILDER fails to perform the Construction m
accordance with the Conwact Documents. or if
DESIGN/BUILDER fails to comply with any other
provision of the Contract Documents, OWNER may,
after seven days' written notice to DESIGN/BUILDER,
correct and remedy any such deficiency. In exercising
the rights and remedies under tiffs paragraph OWNER
shall proceed expeditiously. In connection with such
corrective and remedial action, oWNER may exclude
DESIGN/BUILDER from all or part of the Site, take
possession of all or part of the Conslraction, and suspend
DESIGN/BUILDER's services related thereto, take
possession of DESIGN/BUILDER's tools, appliances,
cons'o:uction equipment and machinery at the Site and
incorporate in the Construction all materials and
equipment stored at the Site or for which OWNER has
paid DESIGN/BUILDER but which are stored
elsewhere. DESIGN/BUILDER shall allow OWNER,
oWNER's representatives, agents and employees,
oWNER's other contractors and Consultants access to
the Site to enable oWNER to exercise the rights and
remedies under this paragraph. All costs and damages
incurred er sustained by OWNER in exercising such
rights and remedies will be charged against
DESIGN/BUILDER and a Change Order will be issued
incorporating the necessary revisions in the Contract
Documents and oWNER shall be entitled to an
appropriate decrease in the Contract price, and, ff the
parties are unable to agree as to the amount thereof,
oWNER may make a claim therefor as provided in
Article 9. Such costs and damages will include but not
be limited to all fees and charges of engineers, architects,
attorneys and other professionals, all court or arbitration
or other dispute resolution costs and all costs of repair or
replacement of work of others destroyed or damaged by
correction, removal or replacement of
DESIGN/BUILDER% defective Consa'ucfion.
DESIGN/BUILDER shall not be allowed an extension of
the Contract Times (or Milestones) because of any delay
in the performance of the Construction atm'butable to the
exercise by oWNER of oWNER% rights and remedies
hereunder.
3O
ARTICLE 13-PAYlVIENTS TO DESIGN/BUILDER
AND COMPLETION
13.01 Schedule ofValues
A. The Schedule of Values established as provided
in paragraph 2.06.A will serve as the basis for progress
paymentS and will be incorporated into a form of
Application for Payment acceptable to OWNER.
Progress payments on account of Unit Price Work will be
based on the number of units completed.
13.02 ApplicationforProgressPayment
A. At least twenty days before the date established
for each progress payment (but not more often than once
a month), DESIGN/BUILDER shall subtrdt to oWNER
for review an Application for Payment filled out and
signed by DESIGN/BUILDER covering the Work
completed as of the date of the Application and
accompanied by such supporting documentation as is
required by the Contract Documents. If payment is
requested on the basis of materials and equipment not
incorporated in the Work but delivered ~md suitably
stored at the Site or at another location agreed to in
writing, the AppLication for Payment shall also be
accompanied by a bill of sale, invoice or other
documentation warranting that OWNER has received the
materials and equipment flee and clear of ail Liens and
evidence that the materials and equipment are covered by
appropriate property insurance and other arrangements to
protect oWNER's interest therein, all of which will be
satisfactory to OWNER. The mount of retainage with
respect to progress payments will be as stipulated in the
Agreement.
13.03 DESIGN/BUILDER's Warranty ofTitle
A. DESIGN/BUILDER warrants and guarantees
that fille to all consUuction materials and equipment
covered by any Application for Payment, whether
incorporated in the Project or not, will pass to OWl'4~R
no later than thc thne of payment free and clear of all
Liens. This paragraph 13.03.A does not apply to any
documents covered by paragraph 3.04.A.
13.04 Progress Payments
A. Progress payments shall be made by the
OWNER to fl~e DESIGN/BUILDER according to the
following procedure:
1. OWNER will, within ten days of receipt of each
Application for payment, either indicate in writing its
acceptance of the Application and state that the
Application is being processed for payment, or remm
the Application to DESIGN/BUILDER indicating in
writing its reasons for refusing to aecx~t the
Application. Not more than ten days after accepting
such Application the amount will become due and
when due will be paid by OWNER to
DESIGN/BUILDER.
2. If the oWNER should fail to pay the
DESIGN/BUILDER at the time the payment of any
amount becomes due, then DESIGN/BUILDER may,
at any time thereafter, upon serving wriiten notice
that he will stop the Work within seven days after
receipt of the notice by the oWNER, and after such
seven day period, stop the Work until payment of the
amount owing has been received. Written notice
shall be deemed to have been duly served if sent by
certified mail to the last known business address of
the oWNEIL
3. Payments due but unpaid shall bear intereSt at
the rate specified in the Agreement.
4. No Progress payment nor any parhal or entire'
use or occupancy of the Project by the oWNER sh~ll
constitute an acceptance of any Work not m
accordance with the Contract Documents.
B. oWNER may refuse to make the whole or any
part of any such payment, or because of sfibseqUe~nilY
discovered evidence or the results of subsequent
inspections or tests, nullify any previous payment, to the
extent that is reasonably necessary to protect oWNER
from loss because:
31
I. The Work is defective, or completed Work has
been damaged requiring correction or replacement; or
2. The ConU-act Price has been reduced by Written
Amendment or Change Order; or
3. oWNER has been required to correct defective
Work or complete Work in accordance with
paragrap..h 12.09.A, or
4. oWNER has actual knowledge of the occurrence
of any of the events enumerated in paragraphs
14.02.A.1 through A.3 inclusive; or
5. Claims have been made against OWNER on
account of DESIGN/BUILDER's performance or
furnishing of the Work; or
6. Liens have been filed in connection will, the
Work, except where DESIGN/BUILDER has
delivered a specific Bond satisfactory to OWIqER to
secure the satisl~actim~ and discbarge of such Liens; or
7. There are other items entitling OWNER to a set
off against the amount for which application is
made.
15.05 Substantial Completion
A. When DESIGN/BUILDER considers the
Construction ready for its intended nsc
DESIGN/BUILDER shall notify oWNER in writing that
the Construction is substantially complete (except for
items specifically listed by DESIGN/BUILDER as
incomplete) and request that oWNER issue a certificate
of Substantial Completion. within a reasonable time
thereafter, oWNER and DESIGN/BUILDER shall make
an inspection of the Construction to determine the status
of completion. If oWNER does not consider the
Construction substantially complete, oWNER will notify
DESIGN/BUILDER in writing giving the reasons
therefor. If OWNER considers the Construction
substantially complete, oWNER will prepare and deliver
to DESIGN/BUILDER a certificate of Substantial
Completion whict~ shall fix the date of Substantial
Completion. There shall be attached to the certificate a
list of items to be completed or corrected before £mal
payment. At the time of delivery of the certificate of
Substantial Completion oWNER will deliver to
DESIGN/BUILDER a written determination as to
division of responsibilities pending final payment
between oWNER and DESIGN/BUILDER with respect
to security, operation, safety, maintenance, heat, utilities,
insurance and warranties and guarantees.
B. OWNER will have llie right to exclude
DESIGN/BUILDER from the Site after the date of
Substantial Completion, but OWNER will allow
DESIGN/BUILDER reasonable access to complete or
correct items on the list of items to be completed.
13.06 Partial Utilization
A. Use by oWNER at oWNER's option of any
substantially completed part of the Construction which (i)
has specifically been identified in the Contract
Documents, or (ii) oWNER and DESIGN/BUILDER
agree constitute a separately functioning and usable part
of the Construction that can be used by oWNER for its
intended purpose without significant interference with
DESIGN/BUILDER's performance of the remainder of
thc Construction, maY be accomphshed prior to
Substantial Completion of all the Construction subject to
the following:
1. oWNER at any time may request
DESIGN/BUILDER in ~'iting to permit oWNER to
use any such part of the Construction which oWNER
believes to be ready for its intended use and
substantially complete. If DESIGN/BLIILDER
agrees that such part of tbe Construction is
substantially complete, DESIGN/BUILDER will
certify to oWNER that such part of the Construction
is substantially complete and request oWNER to
issue a certificate of Substantial Completion for that
part of the Construction DESIGN/BLr[LDER at any
me may notify OWNER in writing that
DESIGN/BUILDER considers any such part of thc
Consm~cfion ready for its intended use and
substantially complete and request oWNER to issue
a certificate of Substantial Completion for that part of
32
the Construction. Within a reasonable time after
either such request, OWNER and
DESIGN/BUILDER shall make an inspection of that
part of the Construction to determine its status of
completion- If OWNER does not consider that part
of the Construction to be substantially complete,
OWNER will notify DESIGN/BUILDER in writing
giving the reasons therefor. If OWNER considers
that part of the Construction to be substantially
complete, the provisions of paragraph 13.05 will
apply with respect to certification of Substantial
Completion of that part of the Constcuction and the
division of responsibility in respect thereof and
access thereto.
2. No occupancy or separate opemtinn of part of the
Consmaction will be accomplished prior to
compliance wllh the requ3ementS of paragraph 5.08
hi respect of property insurance.
13.07 Final Inspection
A. Upon written notice from DESIGN/BUILDER
that the entire Construction or an agreed po/don
thereof is complete, oWNER will make a final
inspection with DESIGN/BUILDER and will
notify DESIGN/BUILDER in writing of all
particulars in which this inspection reveals that
the Constmctinn is incomplete or defective.
DESIGN/BUILDER shall immediately take such
measures as are necessary to complete such
Construction or remedy such deficiencies.
13.08 FinalApplicationforPayment
A. After DESIGN/BUILDER has completed all such
corrections to the satisfaction of OWNER and delivered
in accordance with the Contract Docuraents all
maintenance and operating instructions, schedules,
guarantees, Bonds, certificates or other evidence of
insurance requixed by paragraph 5.09.B, certificates of
inspection, marked-up record documents (as provided in
paragraph 6.11 ) and other documents,
DESIGN/BUILDER may make application for final
payment following the procedure for progress paymentS.
The £mal Application for Payment shall be accompanied
(unless previously delivered) by: ti) all documentation
called for in the Contract Documents, including but not
limited to the evidence of insurance required by
subparagraph 5.02.B.7, (ii) consent of the surety, if any,
to final payment, and (iii) complete and legally effective
releases or waivers (satisfactory to oWNER) of all Liens
arising out of or filed in connection with the Work. In
lieu of such releases or waivers of Liens and as approved
by oWNER, DESIGN/BUILDER may furnish receipts
or releases in full and an affidavit of DESIGN/BUILDER
that: ti)the releases and receipts include all labor,
services, material and equipment for wkich a Lien could
be filed, and (ii) all payrolls, material and equipment bills
and other indebtedness connected with the Work for
which oWNER or oWNER's property might in any way
be responsible have been paid or otherwise satisfied. If
any Subcon~zactur or Supplier fails to furnish such a
release or receipt in full, DESIGN/BUILDER may
furnish a Bond or other collateral satisfactory to OWNER
to indemnify OWNER against any Lien.
13.09 Final Payment and Acceptance
A. If OWNER is satisfied that the Work has been
completed and DESIGN/BUILDER's other obligations
under the Con~ract Documents have been fulfilled,
OV~NER will, within ten days after receipt of the final
Application for Payment, give written notice to
DESIGN/BUILDER that the Work is acceptable.
Otherwise, OWNER will return the Application to
DESIGN/BUILDER, indicating in writing the reasons for
refusing to process final payment, in which case
DESIGN/BUILDER shall make the necessary
corrections and resubmit the Application. Thirty days
after the presentation to oWNER of the acceptable
Application and accompanying documentation, in
appropriate form and substance and with oWNER's
notice of acceptability, the mount will become due and
will be paid by oWNER to DESIGN/BUILDER-
B. If, thiough no fault of DESIGN/BUILDER, final
completion of the Work is significantly delayed,
oWNER shall, upon receipt of DESIGN/BUILDER's
final Applicafon for payment, and without terminating
33
the Agreement, make payment of the balance due for that
portion of the Work fully completed and accepted. If the
remaining balance to be held by OWNER for Work not
fully completed or corrected is less than the retainage
stipulated in the Agreement, and if Bonds have been
furnished as required in paragraph 5.01.A, the written
consent of the surety to the payment of the balance due
for that portion of the Work fully completed and
accepted shall be submitted by DESIGN/BUILDER to
OWNER with the Application for such payment. Such
payment shall be made under the terms and conditions
governing final payment, except that it shall not
constitute a waiver of claims.
13.10 Waiver of Claims
A. The making and acceptance of final payment will
constitute:
1. A waiver of all claims by OWNER against
DESIGN/BUILDER, except claims arising from
m~settled Liens, from defective Constraction
appearing after fmal inspection pursuant to paragraph
13.07, from failure to comply with the Conlxact
Documents or the terms of any special gaarantees
specified therein, or from DESIGN/BUILDER's
continuing obligations under the Contract
Documents; and
2. A waiver of all claims by DESIGN/BUILDER
against OWNER other titan those previously made in
writhag and still unsettled.
ARTICLE 14-SUSPENSION OF WORK AND
TERMINATION
14.01 OwnerMaySuspe dllo k
A. At any time and without cause, OWNER may
suspend the Work or any portion thereof For a l~e?od of
not more than 90 days by notice m writing to
DESIGN/BUILDER which will fix the date on which
Work will be resumed. DESIGN/BUILDER shall
resume the Work on the date so fixed.
DESIGN/BUILDER shall be allowed an adjusm~ent in
the Conuact Price or an extension of the Contract Times,
or both, dkectly attributable to any such suspension if
DESIGN/BUILDER makes a claim therefor as provided
in Article 9.
14.02 Owner May Terntinate f°r Cause
A. The occurrence of any one or more of the
following events justifies termination for cause:
1. DESIGN/BUILDER persistently fails to perform
the Work in accordance with the Contract Documents
(including, but not limited to, failure to supply
sufficient skilled workers or suitable materials or
equipment or failure to adhere to the progress
schedule established under paragraph 2.06.A as
revised from time to t/me.
2. DESIGN/BUILDER disregards Laws or
Regulations of any public body having jurisdiction.
3 DESIGN/BUILDER otherwise violates in any
substantial way any provisions of the Contract
Documents.
B~ oWNER may, after giving DESIGN/BUILDER
(and the surety, if any) seven days' written notice and to
the extent perm/tted by Laws and Regulatmns, terminate
rite services of DESIGN/BUILDER~ exclude
DESIGN/BUILDER from the Site and take possession of
the Work and of all DESIGN/BUILDER's tools,
appliances, construction equipment and machinery at the
34
Site and use the same to the full extent they could be
used by D~ESIGN/BUILDER (without liability to
DESIGN/BUILDER for eespass or conversion),
incorporate hq the Work all materials and equipment
stored at the Site or for which OWNER has paid
DESIGN/BUILDER but which are stored elsewhere, and
finish the Work as OWNER. may deem expedient. In
such case DESIGN/BUILDER shall not be entitled to
receive any further payment until the Work is finished. If
the unpaid balance of the Contract Price exceeds all
costs, losses and damages sustained by OWNER arising
out of or resulting from completing the Work (including
but not limited to all fees and charges of engineers,
architects, attorneys and other professionals and all court
or arbitration or other dispute resolution costs) such
excess will be paid to DESIGN/BUILDER. If such costs,
losses and damages exceed such unpaid balance,
DESIGN/BUILDER shall pay the difference to OWNER.
Such costs, losse~ and damages incurred by OWNER
will be incorporated in a Change Order, provided that
when exercising any fights or remedies under this
paragraph OWNER shall not be required to obtain the
lowest price for the Work performed.
C. Where DESIGN/BUILDER's services have been
so terminated by OWNER. the termination will not affect
any rights or remedies of OWNER against
DESIGN/BUILDER then existing or which may
thereafter accrae. Any retention or payment of moneys
due DESIGN/BLIILDER by OWNER will not release
DESIGN/BUILDER from liability.
14.03 Owner May Terminate for Convenience
A. Upon seven days' written notice to
DESIGN/BUILDER. OWNER may, without cause and
without prejudice to any other right or remedy of
OWNER, elect to terminate the Agreement. Lq such
case, DESIGN/BUILDER shall be paid (without
duplication of any iterm) for:
1. Completed and acceptable Work executed in
accordance with the Contract Documents prior to the
effective date of termination, including fair and
reasonable sums for overhead and profit on such
Work;
2. Expenses sustained prior to the effective date of
terminatinn in performing services and furnishing
labor, materials or equipment as required by the
Contract Documents hq counection with uncompleted
Work, plus fair and reasonable sums for oved~ead
and profit on such expenses;
3. Amounts paid in settlement of terminated
contracts with Subcon'a-actors, Engineers, Suppliers
and others (including but not limited to all fees and
charges of engineers, architects, attorneys and other
professionals and all court or arbiS-ation or other
dispute resolution costs incttrred in commcfion with
termination of contracts with Subcontractors,
Engineers and Suppliers); and
4. Reasonable expenses directly attxibutable to
termination.
B. DESIGN/BUILDER shall not be paid on account
of loss of anticipated profits or revenue or other
ecot~.oxnic loss arising out of or resulting from such
termination.
14.04 DESIGN/BUILDER May Stop Work or Terminate
A. If, through no act or fault of
DESIGN/BUILDER, the Work is suspended for a period
of more than ninety days by oWNER or under an order
of court or other public authority, or OWNER fails to act
on any Application for Payment within thirty days after it
is submitted or OWNER fails for thirty days to pay
DESIGN/BUll,DER any sum finally determined to be
due, then DESIGN/BUILDER may, upon seven days'
written notice to OWNER. and provided oWNER does
not remedy such suspension or failure within that time,
terminate the Agreement and recover from OX~NER
payment on the same terms as provided in paragraph
14.03.A. In lieu of termLnating the Agreement and
without prejudice to any other right or remedy, or
OWNER has failed for thirty days to pay
DESIGN/BUILDER any sum finally determined to be
due, DESIGN/BUILDER may upon seven day's written
notice to OWNER stop file Work until payment is made
of all such amounts due D ~ESIGN/BUILDER, including
interest thereon. The provisions of this paragraph
14.04.A are not intended to preclude
DESIGN/BUILDER from making claim under Article 9
for an increase ha Contract Price or Contract Times or
other,vise for expenses or damage dLrectly attributable to
DESIGN/BUILDER's slopping Work as permitted by
this paragraph.
ARTICLE 1S--DISPUTE RESOLUTION
If and to the extent that OWNER and
DESIGN/BUILDER have agreed on the method and
procedure for resolving disputes between them that may
arise under this Agreement, such dispute resolution
method and procedure, if any, shall be as set forth hi
Exhibit CrC-A, "Dispute Resolution Agreement", to be
attached hereto and ~nade a par~ hereof. If no such
agreement on the method and procedure for resolving
such disputes has been reached, OWNER and
DESIGN/BUILDER may exercise such rights or
remedies as either nuty otherwise have under the
Contract Documents or by Laws or Regulations in
respect of any' dispute.
ARTICLE 16-MISCELLANEOUS
16.01 Giving Notice
A. Whenever any provision of the Contract
Documents requires the giving of written notice, it will
be deemed to have been validly given.
1. If delivered ha person to the individual or to a
member of the fmrn or to an officer of the corporation
for whom it is intended;
2. If delivered at or sent by registered or certified
mail. postage prepaid, to the last business address
knoval to the giver of the notice: or
3. If transmitted by facsimile, the time at which a
machine generated conftrmation states the notice was
received at die facsimile telephone number of the
intended recipient last known by the sender.
1602 Computation of Times
A. When any period of time is referred to in the
Contract Documents by days, it will be computed to
exclude the fn:st and include the last day of such period.
If the last day of any such period fails on a Saturday or
Sunday or on a day made a legal holiday by the law of
the applicable jurisdiction, such day will be omitled from
the computation~
B. A calendar day of twenty-four hours measured
from midnight to the next midnight will constitute a day.
1603 Notice of Claim
A. Should OWNER or DESIGN/BUILDER suffer
injury' or damage to person or property because of any
error, omission or act of the other parly or of any of the
other party's employees or agents or others for whose
acts the other pan~y is legally liable, claim will be made ha
writing to the other parly within a reasonable time of the
frrst observance of such injury or damage. The
provisions of this paragraph 16.03.A shall not be
construed as a substitute for or a waiver of the provisions
of any applicable statute of limitations or repose.
36
16.04 Cumulative Remedies
A. The duties and obligauons imposed by these
General Conditions and the rights and re~ned~es available
hereunder to the parties hereto, and. /al particular bul
without limitation, any general or specific warranties.
guarantees and mdemnitie~ maposcd upon
DESIGN/BUILDER and all of the righls and re~nedies
available to OWNER thereunder, are tn addition to, and
are not to be construed in any way as a limitation of, any
fights and remedies available to any or all of them whJ. ch
are otherwise maposed or available by Laws or
Regulations, by special warranty or guarantee or by other
provisions of the Contract Doctnnents, and the provtsions
of this paragraph will be as effective as if repeated
specifically kn the Contract Doctm~ents in connection
with each pari. icular duty, obligation, right and remedy to
which they apply.
16.05 Survival of Obligations
A All representations, tndenmifications, warranties
and guarantees made m. required by or given m
accordance with the Conuact Documents. as well as all
continuing obligatinns indicated in the Contract
Documents, will survive final payment, completion and
acceptance of the Work and termination or completion of -
the Agreement.
37
EXHIBIT GC-A to GENERAL CONDITIONS OF
THE AGREEMENT BE'I%VEEN OWNER AND
DESIGN/BUILDER DATED
EXHIBIT GC-A to GENERAL
CONDITIONS OF THE AGREEMENT BETWEEN
OWNER AND DESIGN/BUILDER DATED
For use with EJCDC No. 1910-40 (1994 ed.)
15.01 Dispute Resolution Agreement
A. Article 15 of the General Conditions of the
Contract between OWNER and DESIGN/BUILDER is
amended to include paragraphs 15.01.B45.01.F.
B. OWNER and DESIGN/BUILDER agree that
they will fo-st submit any and all unsealed claims,
counterclaims, disputes and other matters in question
between them arising out of or relating to the Contract
Doctmaents or the breach thereof C'disputes"), to
mediation by
prior to either of them initiating against thc other a
demand for arbilration pursuant to paragraph 15.01.C
through 15.61.F, unless delay in inithfing arbitration
would irrevocably prejudice one of the parties. Any time
limits within which to file a demand for arbitration shall
be suspended with respect to a dispute submitted to
mediation within those same applicable time limits and
shall remain suspended until 10 days after the
termination of the mediation. The mediator of any
dispute submined to mediation under this Agreement
shall not serve ~s arbitrator of such dispute unless
otherwise agreed.
C. All claims, disputes and other matters in
question between OWNER and DESIGN/BUILDER
arising out of or relating to the Contract Documents or
the breach thereof (except for claims which have been
waived by the making or acceptance of f'mal payment as
provided by paragraph 13.10) will be decided by binding
arbitration in accordance with _
subject to the limitations of this paragraph 15.01. This
agreement so to arbitrate and any other agreement or
consent to arbitrate entered into in accordance herewith
as provided in this paragraph 15.01 wilI be specifically
enforceable under the prevailing law of any court having
jurisdiction.
D. Notice of the demand for arbitration will be filed
in writing with the other party to the Agreement and with
the designated arbitration entity. The demand for
arbiu-afion will be nude within a reasonable tinm after
the claim, dispute or other matter ha question has arisen,
and ha no event shall any such demand be made after the
date when institution of legal or equitable proceedings
based on such claim, dispute or other matter in question
would be barred by the applicable statute of limitations.
E. Except as provided in paragraph 15.01.F below,
no arbitration arising out of or relating to the Contract
Documents shall include by consolidation, joinder or in
any other manner any other individual or entity who is
not a party to this contract mfless:
1. the inclusion of such other individual or entity is
necessary if complete relief is to be afforded among
those who are akeady parties to the arbitration, and
2. such other individual or entity is substantially
involved in a question of law or fact which is
common to those who are already parties to the
arbitration and which will arise in such proceedings,
and
3. the written consent of the other individual or
entity sought to be included and of OWNER and
DESIGN/BUILDER has been obtained for such
inclusion, which consent shall make specific
reference to this paragraph; but no such coment shall
constitute consent to arbitration of any dispute not
specifically described in such consent or to
arbitration with any paroy not specifically identified
ha such consent.
F. Notwithstanding paragraph 15.01.E, if a claim,
38
dispute or other matter in question between OWNER and
DESIGN/BUILDER involves the Work of a
Subcontractor, Supplier or Engineer either OWNER or
DESIGN/BUILDER may join such entity as a party to
the arb~tratmn between OWNER and
DESIGN/BUILDER hereunder. DESIGN/BUILDER
shall include in all subcontracts required by paragraph
&05.D a specific provision whereby the Subconh~actor
consents to being joined tn an arbitration between
OWNER and DESIGN/BUILDER revolving the Work
of such Subcontractor. Nothh~g in this paragraph 15.01.F
nor m file provtslon of such subconu'act cot~sentmg to
joinder shall create any claim, fight or cause of action in
favor of Subcontractor, Supplier or Engineer against
OWNER.