EXHIBIT 10.77
[AIA LOGO] DOCUMENT A191(TM)-1996 PART 2
STANDARD FORM OF AGREEMENT BETWEEN OWNER AND DESIGN/BUILDER
Part 2 Agreement
GYMBOREE - DIXON WAREHOUSE
EXPANSION (2006)
(2299 KIDS WAY, DIXON, CA)
TABLE OF ARTICLES
PART 2 AGREEMENT (CONSTRUCTION)
1. GENERAL PROVISIONS
2. OWNER
3. DESIGN/BUILDER
4. TIME
5. PAYMENTS
6. PROTECTION OF PERSONS AND PROPERTY
7. INSURANCE AND BONDS
8. CHANGES IN THE WORK
9. CORRECTION OF WORK
10. DISPUTE RESOLUTION - MEDIATION AND ARBITRATION
11. MISCELLANEOUS PROVISIONS
12. TERMINATION OF THE AGREEMENT
13. BASIS OF COMPENSATION
14. OTHER CONDITIONS AND SERVICES
AGREEMENT made as of the 11 day of Sept in the year of 2006.
(In words, indicate day, month and year.)
BETWEEN the Owner:
(Name and address)
The Gymboree Corporation
500 Howard Street
San Francisco CA 94105
Telephone No.: (415) 278-7000
Facsmile No.: (415) 278-7562
Attn: Dan Allison
E-mail Address for Applications for Payments:___________
and the Design/Builder:
(Name and address)
ADDITIONS AND DELETIONS:
The author of this document has added information needed for its completion. The
author may also have revised the text of the original AIA standard form. An
Additions and Deletions Report that notes added information as well as revisions
to the standard form text is available from the author and should be reviewed. A
vertical line in the left margin of this document indicates where the author has
added necessary information and where the author has added to or deleted from
the original AIA text.
This document has important legal consequences. Consultation with an attorney is
encouraged with respect to its completion or modification.
ELECTRONIC COPYING of any portion of this AIA(R) Document to another electronic
file is prohibited and constitutes a violation of copyright laws as set forth in
the footer of this document.
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AIA Document A191(TM) - 1996 Part 2, Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
1/11/2007, and is not for resale.
User Notes: (1848111543)
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Panattoni Construction; Inc.
8775 Folsom Blvd
Sacramento CA 95826
Telephone No.: (916) 340-2400
Facsimile No.: (916) 340-0565
Attn: Pat Hastie
For the following Project:
Construction of the Gymboree Dixon Warehouse Expansion as specified in the
Project Scope, EXHIBIT A attached hereto. The Project is the Work to be
performed by the Design/Builder and does not include any matters which are to be
performed by any separate contractors engaged or contracted directly by the
Owner, or the Owner itself with its own forces.
The architectural services described in Article 3 of this Part 2 Agreement will
be provided by the following person or entity who is lawfully licensed to
practice architecture in the State of California:
NAME AND ADDRESS REGISTRATION NUMBER RELATIONSHIP TO DESIGN/BUILDER
GBDH Design Group C34833 Architect
9806 Old Winery Place Suite 1
All engineering services described in Article 3 will be provided by the
following persons or entities who are lawfully licensed to practice engineering
in the State of California.
NAME, ADDRESS AND DISCIPLINE REGISTRATION NUMBER RELATIONSHIP TO DESIGN/BUILDER
GBDH Design Group C34833 Structural Engineer
9806 Old Winery Place Suite 1
Sacramento CA 95827
EXHIBITS:
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Exhibit A - Project Scope
Exhibit B - Gymboree Insurance Requirements
Exhibit C - Additional Final Payment Requirements
Exhibit D - Application for Payment
Exhibit E - Cash Flow Projections
The Owner and the Design/Builder agree as set forth below.
- -----------
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985,1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
1/11/2007, and is not for resale.
User Notes: (1848111543)
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TERMS AND CONDITIONS - PART 2 AGREEMENT
ARTICLE 1 GENERAL PROVISIONS
SECTION 1.1 BASIC DEFINITIONS
SECTION 1.1.1 The Contract Documents consist of the Part 1 Agreement to the
extent not modified by this Part 2 Agreement, this Part 2 Agreement, the
Design/Builder's Proposal and written addenda to the Proposal if any, the
Construction Documents approved by the Owner in accordance with Section 3.2.3 of
this Part 2 Agreement and Modifications issued after execution of this Part 2
Agreement. A Modification is a Change Order or a written amendment to this Part
2 Agreement signed by both parties, or a Construction Change Directive issued by
the Owner in accordance with Section 8.3 of this Part 2 Agreement.
SECTION 1.1.2 The term "Work" means the construction and services provided by
the Design/Builder to fulfill the Design/Builder's obligations.
SECTION 1.1.3 The Project is the Work to be performed by the Design/Builder and
includes the total construction of that portion of the Project described in the
Design Documents but does not include any matters which are to be performed by
any separate contractors engaged or directly contracted by the Owner, or the
Owner itself with its own forces.
SECTION 1.1.4 The Plans are the graphic and pictorial portions of the
Construction Documents whenever issued and by whomever prepared showing the
design, location and dimensions of the Work, generally; including drawings,
elevations, sections, details, schedules, and diagrams. Once approved by the
Owner, the Plans shall be identified by Change Order or an addendum to this Part
2 Agreement.
SECTION 1.1.5 The Specifications are that portion of the Construction Documents
consisting of the written requirements for materials, equipment, construction
systems, standards and workmanship for the Work and are contained in the Project
Manual.
SECTION 1.1.6 The Construction Documents are the Plans and Specifications
establishing the requirements of the Work to be performed by the
Design/Builder.
SECTION 1.1.7 The term "day" shall mean calendar day unless otherwise
specifically stated. The term "Business Day(s)" shall mean Mondays through
Fridays, excluding the following holidays: New Years Day, Martin Luther King,
Jr. Day, President's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day,
the Friday following Thanksgiving Day, and Christmas. If any of the foregoing
holidays falls on a Saturday, then the Friday before shall constitute the
holiday and if any of the foregoing holidays falls on a Sunday, then the Monday
following shall constitute the holiday.
SECTION 1.2 EXECUTION, CORRELATION AND INTENT
SECTION 1.2.1 It is the intent of the Owner and the Design/Builder that the
Contract Documents include those items which are reasonably necessary for proper
execution and completion of the Work. The Contract Documents are complementary,
and what is required by one shall be as binding as if required by all;
performance by the Design/Builder shall be required only to the extent
consistent with and reasonably inferable from the Contract Documents as being
necessary to produce the intended results. In the event of any conflict between
the terms or provisions of this Part 2 Agreement and the terms or provisions of
any of the other Contract-Documents,the terms or provisions of this Part 2
Agreement shall control. The organization of the Specifications into divisions,
sections and articles, and the arrangement of the Plans, shall not control the
Design/Builder in dividing the Work among subcontractors or in establishing the
extent of the Work to be performed by any subcontractor. Words that have
well-known technical or construction industry meanings are used in the Contract
Documents in accordance with such recognized meanings.
SECTION 1.2.2 If the Design/Builder believes or is advised by another design
professional retained to provide services on the Project that implementation of
any instruction received from the Owner would cause a violation of any
applicable law, the Design/Builder shall notify the Owner in writing. The
Design/Builder shall not be obligated to perform any act which it believes will
violate any applicable law, code, rule or regulation.
- ---------------
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
1/11/2007, and is not lor resale.
User Notes: (1848111543)
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SECTION 1.2.3 Nothing contained in this Part 2 Agreement shall create a
contractual relationship between the Owner and any person or entity other than
the Design/Builder.
SECTION 1.2.4 Execution of this Agreement by the Design/Builder is a
representation that the Design/Builder has thoroughly reviewed and inspected the
Construction Documents and all other Contract Documents and all other
information and documents provided by the Owner to the Design/Builder, has
visited the site, become familiar with local conditions under which the Work is
to be performed and correlated personal observations with requirements of the
Construction Documents and other Contract Documents.
SECTION 1.3 OWNERSHIP AND USE OF DOCUMENTS
SECTION 1.3.1 Drawings, specifications, and other documents and electronic data
furnished by the Design/Builder are instruments of service. The Construction
Documents and other documents furnished by the Design/Builder and prepared by
its subcontractors or design professionals engaged or employed by the
Design/Builder are the property of the Design/Builder. The Design/Builder shall
retain all common law, statutory and other reserved rights, including
copyright, in those instruments of service furnished by them. Drawings,
specifications, and other documents and electronic data are furnished for use
solely with respect to this Agreement. The Owner shall be permitted to retain
copies, including reproducible copies, of the drawings, specifications, and
other documents and electronic data furnished by the Design/Builder as provided
in Sections 1.3.2 and 1.3.3 of this Part 2 Agreement. The Design/Builder shall
deliver to the Owner one (1) copy of the final Project record documents,
including, without limitation, record specifications to indicate as-built
conditions and as-built AutoCad record drawings developed from redlined project
stick sets indicating actual as-built conditions.
SECTION 1.3.2 The Owner shall have a nonrevocable license to use the drawings,
specifications, other documents and electronic data furnished by the
Design/Builder, without the permission of the Design/Builder for completion of
the Project by the Owner in the event the Design/Builder is terminated.
Drawings, specifications, and other documents and electronic data ("Construction
Documents") shall not be used by the Owner on other projects but may be used for
alterations and additions to this Project except as prohibited by the Business
and Professions Code of the State of California.
SECTION 1.3.3 If the Design/Builder is terminated and the Owner uses the
Construction Documents for the completion of the Project, the Owner assumes all
risk for such use (including any losses, claims or damages suffered by the
Design/Builder resulting from such use), except with respect to design errors or
omissions that are the responsibility of the Design/Builder.
SECTION 1.3.4 Submission or distribution of the Design/Builder's documents to
meet official regulatory requirements or for similar purposes in connection with
the Project is not to be construed as publication in derogation of the rights
reserved in Section 1.3.1 of this Part 2 Agreement.
ARTICLE 2 OWNER
SECTION 2.1 The Owner shall designate a representative authorized to act on the
Owner's behalf with respect to the Project. The Owner's representative shall be
fully acquainted with the Project and shall have authority to issue and approve
changes in the Project and render decisions and furnish information
expeditiously. The Owner or such authorized representative shall examine
documents submitted by the Design/Builder and shall render decisions in a timely
manner. The Owner may obtain independent review of the Contract Documents by a
separate architect, engineer, contractor or cost estimator under contract to or
employed by the Owner. Such independent review shall be undertaken at the
Owner's expense in a timely manner and shall not delay the orderly progress of
the Work.
SECTION 2.2 The Owner may appoint an on-site Project representative to observe
the Work and to have such other responsibilities as the Owner and the
Design/Builder agree in writing.
SECTION 2.3 The Owner shall cooperate with the Design/Builder in securing
building and other permits, licenses and inspections related to and necessary
for the performance of the Project. The Design/Builder shall secure and pay for
all building and other permits, licenses and inspections required for
construction or occupancy of permanent structures.
SECTION 2.4 The Design/Builder is furnishing all engineering services required
for the Project.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
1/11/2007, and is not for resale.
User Notes: (1848111543)
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SECTION 2.5 The Owner has disclosed, to the extent known to the Owner, the
results and reports of prior tests, inspections or investigations conducted for
the Project involving: structural or mechanical systems; chemical, air and water
pollution; hazardous materials; or other environmental and subsurface
conditions. The Owner shall disclose all information known to the Owner
regarding the presence of pollutants at the Project's site.
SECTION 2.6 The Owner shall furnish all legal, accounting and insurance
counseling services as may be necessary at any time for the Project, including
such professional services as the Owner may require to verify the
Design/Builder's Applications for Payment.
SECTION 2.7 Those services, information, and reports required by Section 2.6
which are required by the Owner shall be furnished at the Owner's expense, and
the Design/Builder shall be entitled to rely upon the accuracy and completeness
of these items required and furnished by the Owner.
SECTION 2.8 If the Owner requires the Design/Builder to maintain any special
insurance coverage, policy, amendment, or rider, in excess of that required by
Article 7 of this Part 2 Agreement, the Owner shall pay the additional cost
thereof, except as otherwise stipulated in this Part 2 Agreement.
SECTION 2.9 If the Owner observes or otherwise becomes aware of a fault or
defect in the Work or nonconformity with the Construction Documents, the Owner
shall give prompt written notice thereof to the Design/Builder. In no event
shall the Owner's failure to observe or otherwise become aware of a fault or
defect in the Work or nonconformance with the Construction Documents preclude or
minimize the Design/Builder's obligation to perform all aspects of its Work in
compliance with the Construction Documents.
SECTION 2.10 The Owner shall, at the request of the Design/Builder, prior to
execution of this Part 2 Agreement and promptly upon request thereafter, furnish
to the Design/Builder reasonable evidence that financial arrangements have been
made to fulfill the Owner's obligations under the Contract.
SECTION 2.11 The Owner shall communicate with persons or entities employed or
retained by the Design/Builder through the Design/Builder, unless otherwise
directed by the Design/Builder.
ARTICLE 3 DESIGN/BUILDER
SECTION 3.1 SERVICES AND RESPONSIBILITIES
SECTION 3.1.1 Design services required by this Part 2 Agreement shall be
performed by qualified architects and other design professionals. The
contractual obligations of such professional persons or entities are undertaken
and performed in the interest of the Design/Builder.
SECTION 3.1.2 All agreements between the Design/Builder and any persons or
entities in any way connected with the Project, and any subsequent
modifications, shall be in writing.
SECTION 3.1.3 The Design/Builder shall be responsible to the Owner for acts and
omissions of the Design/Builder's employees, subcontractors and their agents
and employees, and other persons, including the Architect and other design
professionals, performing any portion of the Design/Builder's obligations under
this Agreement.
SECTION 3.2 BASIC SERVICES
SECTION 3.2.1 The Design/Builder's Basic Services are described below.
SECTION 3.2.2 The Design/Builder shall designate a representative authorized to
act on the Design/Builder's behalf with respect to the Project. The
Design/Builder's designated representative is ________________________________.
SECTION 3.2.3 Pursuant to the Part 1 Agreement, the Design/Builder shall submit
the Construction Documents for review and final approval by the Owner. The
Construction Documents shall include drawings, specifications, and other
documents and electronic data setting forth in detail the requirements for
construction of the Work, and shall:
.1 be consistent with the Preliminary Design Documents;
.2 provide information for the use of those in the building trades; and
.3 include documents customarily required for regulatory agency
approvals.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
1/11/2007, and is not for resale.
User Notes: (1848111543)
5
(Paragraph deleted)
SECTION 3.2.4 The Design/Builder, with the assistance of the Owner, shall file
documents required to obtain necessary approvals of governmental authorities
having jurisdiction over the Project.
SECTION 3.2.5 The Design/Builder shall provide or cause to be provided and shall
pay for all design services, labor, materials, equipment, tools, construction
equipment and machinery, transportation and other facilities and services
necessary for proper execution and completion of the Work specified in the
Contract Documents, whether temporary or permanent and whether or not
incorporated or to be incorporated in the Work, except the costs for water; heat
and utilities shall be at the Owner's expense.
SECTION 3.2.6 The Design/Builder shall be responsible for all safety measures,
construction means, methods, techniques, sequences and procedures, and for
coordinating all portions of the Work under this Part 2 Agreement.
SECTION 3.2.7 The Design/Builder shall keep the Owner informed of the progress
and quality of the Work, and, at the Owner's option, shall attend weekly
construction meetings with Owner's construction manager and consultants, and
Owner's own employees and agents.
SECTION 3.2.8 The Design/Builder shall be responsible for correcting Work which
does not conform to the Contract Documents.
SECTION 3.2.9 The Design/Builder warrants to the Owner that materials and
equipment furnished under the Contract Documents will be of good quality and new
unless otherwise required or permitted by the Contract Documents, that the
construction will be free from faults and defects, and that the construction
will conform to the requirements of the Contract Documents. Construction not
conforming to these requirements, including substitutions not properly approved
by the Owner, shall be subject to the limitations of, and corrected in
accordance with Article 9 of this Part 2 Agreement.
SECTION 3.2.10 The Design/Builder shall pay all sales, consumer, use and similar
taxes which are in effect as of the execution date of this Part 2 Agreement
(excluding real estate taxes). The Design/Builder is considered the ultimate
consumer/user of all materials purchased for incorporation or used in the
performance of the Work and will pay tax on its purchases and will not directly
bill the tax to the Owner. Based on the Scope of the Work, this Project will be
treated as an expansion to the existing warehouse in Dixon, California and the
reporting and payment of all sales, consumer, use and other similar taxes are
the responsibility of the Design/Builder. The Design/Builder shall indemnify and
hold Owner harmless from any sales and use tax liability as a result of the
performance of this Part 2 Agreement. The Design/Builder shall secure and pay
for building and other permits and governmental fees, licenses and inspections
necessary for the proper execution and completion of the Work which are either
customarily secured after execution of a contract for construction or are
legally required at the execution date of this Part 2 Agreement.
SECTION 3.2.11 The Design/Builder shall comply with and give notices required by
laws, ordinances rules, regulations and lawful orders of public authorities
relating to the Project. If the Design/Builder performs any Work contrary to
applicable laws, statutes, ordinances, building codes and rules and regulations,
the Design/Builder shall be responsible for such Work and for all attributable
costs and resulting damages incurred by the Owner.
SECTION 3.2.12 The Design/Builder shall pay royalties and license fees for
patented designs, processes or products. The Design/Builder shall defend suits
or claims for infringement of patent rights and shall hold the Owner harmless
from loss on account thereof, but shall not be responsible for such defense or
loss when a particular design, process or product of a particular manufacturer
is required by the Owner. However, if the Design/Builder has reason to believe
the use of a required design, process or product is an infringement of a patent,
the Design/Builder shall be responsible for such loss unless such information is
promptly furnished to the Owner.
SECTION 3.2.13 The Design/Builder shall keep the premises and surrounding area
reasonably free from accumulation of waste materials or rubbish caused by
operations under this Part 2 Agreement. At the completion of the Work, the
Design/Builder shall remove from the site waste materials, rubbish, the
Design/Builder's tools, construction equipment, machinery, and surplus
materials. Design/Builder shall utilize a staging area only in an area of the
site that has been mutually agreed upon by Design/Builder and Owner.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
1/11/2007, and is not for resale.
User Notes: (1848111543)
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SECTION 3.2.14 The Design/Builder shall notify the Owner when the Design/Builder
believes that the Work or an agreed upon portion thereof is substantially
completed. The Owner shall review the Work and the parties shall mutually agree
on a punch-list of items to be completed or corrected and shall fix the time
within which the Design/Builder shall complete items listed therein. Disputes
between the Owner and the Design/Builder regarding completion and the punch-list
items shall be resolved in accordance with provisions of Article 10 of this Part
2 Agreement.
SECTION 3.2.15 The Design/Builder shall maintain at the site for the Owner one
record copy of the drawings, specifications, product data, samples, shop
drawings, Change Orders and other modifications, in good order and regularly
updated to record the completed construction. These shall be delivered to the
Owner upon completion of construction and prior to final payment.
SECTION 3.2.16 Upon final completion of the Project, and as a condition
precedent to final acceptance and final payment for the Project, the
Design/Builder shall deliver to the Owner required certificates of inspection,
testing or other approvals and all written manufacturers' and special warranties
and equipment manuals, as-built drawings and operating manuals, together with
all final payment document items specified in EXHIBIT C attached hereto, as well
as Section 5.2.1.
SECTION 3.2.17 The Design/Builder shall provide initial training of the Owner
personnel in use of new equipment and systems prior to the Substantial
Completion Date.
SECTION 3.2.18 The Design/Builder shall cooperate with Sedlak, the Owner's
construction manager, and Other Owner consultants on the Project.
SECTION 3.2.19 Upon execution of this Part 2 Agreement, Design/Builder shall
provide Owner a Cash Flow Projections schedule to be attached hereto as
EXHIBIT E which will estimate Owner's schedule of payments during the entire
Project.
SECTION 3.3 ADDITIONAL SERVICES
SECTION 3.3.1 The services described in this Section 3.3 are not included in
Basic Services, and they shall be paid for by the Owner as provided in this
Agreement, in addition to the compensation for Basic Services. The services
described in this SECTION 3.3 shall be provided only if authorized and confirmed
in writing and in advance by the Owner.
SECTION 3.3.2 Making revisions in drawings, specifications, and other documents
or electronic data when such revisions are required by the enactment or revision
of codes, laws or regulations subsequent to the preparation of such documents or
electronic data.
SECTION 3.3.3 Providing consultation concerning replacement of Work damaged by
fire or other cause during construction, and furnishing services required in
connection with the replacement of such Work unless caused by Design/Builder's
negligence or breach of this Part 2 Agreement and not paid to Owner as insurance
proceeds pursuant to the provisions of Section 7.3.
SECTION 3.3.4 Providing services in connection with a public hearing,
arbitration proceeding or legal proceeding, except where the Design/Builder is
a party thereto or as expressly required by this Part 2 Agreement.
SECTION 3.3.5 Except as expressly provided by this Part 2 Agreement, providing
coordination of construction performed by the Owner's own forces or separate
contractors employed by the Owner, and coordination of services required in
connection with construction performed and equipment supplied by the Owner.
SECTION 3.3.6 Intentionally Deleted.
SECTION 3.3.7 Preparation of operation and maintenance manuals, training
personnel for operation and maintenance, and consultation during operation,
except initial training shall be a Basic Service.
ARTICLE 4 TIME
SECTION 4.1 Unless otherwise indicated, the Owner and the Design/Builder shall
perform their respective obligations as expeditiously as is consistent with
reasonable skill and care and the orderly progress of the Project.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
1/11/2007, and is not for resale.
User Notes: (1848111543)
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SECTION 4.2 Time limits stated in the Contract Documents are of the essence. The
Work to be performed under this Part 2 Agreement shall commence after necessary
governmental permits have been obtained and within ten (10) Business Days of the
Owner's notice to proceed, and, subject to authorized Modifications, Substantial
Completion of the entire Work shall be achieved as soon as reasonably possible
and commercially practicable thereafter, with Substantial Completion to be
achieved by the Substantial Completion Due Date specified in Article 14 of this
Part 2 Agreement.
SECTION 4.2.1 In addition to the Design/Builder's obligations under Sections 4.1
and 4.2 above the Owner and the Design/Builder agree that the entire Project
shall be completed by the Substantial Completion Due Date. In the event the
Design/Builder does not achieve Substantial Completion of the Project on or
before forty-five (45) days after the Substantial Completion Due Date, subject
to extension of the Substantial Completion Due Date for approved Design/Builder
delays, the Owner delays, or other adjustments specified in this Part 2
Agreement (the "Liquidated Damages Deadline"), the Design/Builder shall be
liable for and shall pay the Owner, upon demand, the sum of Three Thousand
Dollars ($3,000) as liquidated damages for each Business Day, occurring after
the Liquidated Damages Deadline that the Design/Builder has not achieved
Substantial Completion; however, in no event shall such liquidated damages
exceed One Hundred Twenty-Five Thousand Dollars ($125,000).
SECTION 4.2.2 The Owner and the Design/Builder agree that (a) the damages
suffered by the Owned in the event that the Design/Builder fails to achieve the
Liquidated Damages Deadline are difficult to ascertain and that the liquidated
damages specified in Section 4.2.1 of this Part 2 Agreement represent the
parties' best reasonable estimate of damages, and (b) such liquidated damages
shall be in lieu of all other damages recoverable by the Owner against the
Design/Builder for failing to achieve the Liquidated Damages Deadline. The
Owner, in addition to any rights at law or in equity under this Agreement, shall
have the right to deduct and off-set any amounts due for liquidated damages
under Section 4.2.1 from amounts due the Design/Builder. The Owner shall have
the right to retain the amount of One Hundred Twenty-Five Thousand Dollars
($125,000) as an additional final retention amount until the total amount of the
liquidated damages, if any, has been ascertained, pursuant to the provisions of
Section 4.2 of this Part 2 Agreement.
SECTION 4.3 "Substantial Completion" is the stage in the progress of the Work
when the Work or designated portion thereof is sufficiently complete in
accordance with the Contract Documents so that the Owner can occupy and utilize
the Work for its intended use.
SECTION 4.4 Based on the Design/Builder's Proposal, a detailed construction
schedule shall be provided consistent with Section 4.2 above.
SECTION 4.5 If the Design/Builder is delayed at any time in the progress of the
Work by an act or neglect of the Owner, the Owner's employees, or separate
contractors employed by the Owner, or by changes ordered in the Work, or by
labor disputes, fire, unusual delay in deliveries, adverse weather conditions
not reasonably anticpatable, unavoidable casualties or other causes beyond the
Design/Builder's control (including the failure of utility companies to connect
utilities), or by delay authorized by the Owner pending arbitration, or by other
causes which the Owner and the Design/Builder agree may justify delay, then the
Contract Time shall be reasonably extended and the Contract Sum shall be
adjusted by Change Order.
SECTION 4.6 Should a delay become apparent before the Work or any portion
thereof is started, the Design/Builder shall promptly notify the Owner in
writing of such delay, the approximate duration of such delay and the effect on
the Contract Time as estimated by the Design/Builder. Any claim for extension of
the Contract Time shall be delivered to the Owner by written notice of the delay
tendered within five (5) Business Days of the event giving rise to the claim or
the date the Design/Builder knew or should have known of the delay, whichever
first occurs. The Design/Builder shall promptly take all steps reasonably
possible to lessen the adverse impact of such delay.
SECTION 4.7 The failure on the part of the Design/Builder to give notices in a
timely manner as provided in Section 4.6 of this Part 2 Agreement shall
constitute a waiver on the part of the Design/Builder to make any claim in
regard to such matter of its effect, and claims for additional time and cost.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
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User Notes: (1848111543)
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ARTICLE 5 PAYMENTS
SECTION 5.1 PROGRESS PAYMENTS
SECTION 5.1.1 The Design/Builder shall send by regular mail and electronic
e-mail Application for Payment substantially in the form of EXHIBIT D attached
hereto.
SECTION 5.1.2 Based upon Applications for Payment submitted to the Owner by the
Design/Builder, the Owner shall make progress payments on account of the
Contract Sum to the Design/Builder as provided below, less the amount of
retainage and amounts withheld pursuant to Section 4.2.2 and Section 5.1.8 of
this Part 2 Agreement and elsewhere in the Contract Documents.
.1 The period covered by each Application for Payment shall be one (1)
calendar-month ending on the last day of the month.
.2 Provided that an Application for Payment is received by the Owner not
later than the tenth (10th) day of the month following the preceding calendar
month, the Owner shall make payment to the Design/Builder not later than the
thirtieth (30th) day following the date the Application was received. If an
Application for Payment is received after the application date fixed above,
payment shall be made by the Owner not later than forty-fifth (45) thereafter.
.3 The Owner shall hold retainage equal to ten percent (10%) of each
progress payment made to the Design/Builder for Basic Services provided by the
Design/Builder during construction.
SECTION 5.1.3 The Application for Payment shall constitute a representation by
the Design/Builder to the Owner that the design and construction have progressed
to the point indicated, the quality of the Work covered by the application is in
accordance with the Contract Documents, and the Design/Builder is entitled to
payment in the amount requested.
SECTION 5.1.4 Upon receipt of payment from the Owner, the Design/Builder shall
promptly pay the Architect, other design, professionals and each contractor the
amount to which each is entitled in accordance with the terms of their
respective contracts.
SECTION 5.1.5 The Owner shall have no obligation under this Part 2 Agreement to
pay or to be responsible in any way for payment to the Architect, another design
professional or a contractor performing portions of the Work.
SECTION 5.1.6 Neither a progress payment nor partial or entire use or occupancy
of the Project by the Owner shall constitute an acceptance of Work not in
accordance with the Contract Documents.
SECTION 5.1.7 The Design/Builder warrants that title to all construction covered
by an Application for Payment will pass to the Owner no later than the time of
payment. The Design/Builder further warrants that upon submittal of an
Application for Payment all construction for which payments have been received
from the Owner shall be free and clear of liens, claims, security interests or
encumbrances in favor of the Design/Builder or any other person or entity
performing construction at the site or furnishing materials or equipment
relating to the construction.
SECTION 5.1.8 At the time of Substantial Completion, the Owner shall pay the
Design/Builder the retainage, if any, less two hundred percent (200%) of the
reasonable cost to correct or complete incorrect or incomplete Work provided
that said items are listed separately and the estimated cost of correcting or
completing said items is likewise listed separately. Payment of such withheld
sums shall be made as said items are corrected or completed. "Substantial
Completion" is the stage in the progress of the Work when the Work or designated
portion thereof is sufficiently complete in accordance with the Contract
Documents so that the Owner can occupy and utilize the Work for the use
indicated on the Preliminary Design Documents.
.1 The Design/Builder shall notify the Owner in writing of Substantial
Completion ("Notice of Substantial Completion") and the Design/Builder shall
prepare and submit to the Owner a comprehensive list of items to be completed or
corrected prior to final payment. Failure to include an item on such list does
not alter the responsibility of the Design/Builder to complete all Work in
accordance with the Contract Documents.
.2 Upon receipt of the Design/Builder's list, the Owner will make an
inspection to determine whether it agrees that the Work or designated portion
thereof is substantially complete. If there exists any item, whether or
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
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User Notes: (1848111543)
9
not included on the Design/Builder's list, which is not sufficiently complete in
accordance with the Contract Documents so that the Owner can occupy and utilize
the Work or designated portion thereof for the use indicated by the Preliminary
Design Documents, the Design/Builder shall, before issuance of the Certificate
of Substantial Completion, complete or correct such item.
.3 When the Work or designated portion thereof is Substantially Complete,
the parties shall execute a Certificate of Substantial Completion which shall
establish the date of Substantial Completion, shall establish responsibilities
of the Owner and the Design/Builder for security, maintenance, heat, utilities
damage to the Work and insurance (except as otherwise provided in Section 2.8 of
this Part 2 Agreement), and shall fix the time within which the Design/Builder
shall finish all items on the list accompanying the Certificate. Warranties
required by the Contract Documents shall commence on the date of Substantial
Completion of the Work.
SECTION 5.2 FINAL PAYMENTS
SECTION 5.2.1 At the time final payment is invoiced, the Design/Builder shall,
as a condition to payment, also submit to the Owner: (1) evidence reasonably
satisfactory to the Owner that payrolls, bills for materials and equipment, and
other indebtedness connected with the Work for which the Owner or the Owner's
property might be responsible or encumbered (less amounts withheld by the
Owner), and for which the Design/Builder has received payment, have been paid or
otherwise satisfied; (2) a certificate evidencing that insurance, if any,
Required by the Contract Documents to remain in force after final payment is
currently in effect and will not be canceled or allowed to expire until at least
thirty (30) days' prior written notice has been given to the Owner; (3) a
written statement that the Design/Builder knows of no substantial reason that
the insurance, if any, will not be renewable to cover the period required by the
Contract Documents; (4) consent of surety, if any, to final payment; (5) the
Owner's Additional Final Payment Requirements specified in EXHIBIT C attached
hereto; and (6) if required by the Owner other reasonable data establishing
payment or satisfaction of obligations for which the Design/Builder has received
payment, such as receipts, releases and waivers of liens, claims, security
interests or encumbrances arising out of the Contract Documents and evidence
that full payment has been made for all fringe benefits, and all taxes and
insurance for which the Design/Builder is responsible, evidence that there have
been no liens recorded or filed against the Project which have not been
discharged, and the Design/Builder's Affidavit that there are no threats of any
claims or lawsuits against the Owner for alleged failure of the Design/Builder
to make any payment or to fulfill any indemnities provided for in this Part 2
Agreement. If a contractor or other person or entity entitled to assert a lien
against the Owner's property refuses to furnish a release or conditional waiver
required by the Owner, the Design/Builder may furnish a bond or other security
reasonably satisfactory to the Owner to indemnify the Owner against such lien.
If such lien remains unsatisfied after payments are made, the Design/Builder
shall defend and indemnify the Owner for all loss and cost, including reasonable
attorneys' fees incurred as a result of such lien. Notwithstanding the
foregoing, the Owner's obligation to make final payment to the Design/Builder
shall be conditioned upon the following: (1) that the Design/Builder has not
failed to fulfill any indemnity requirement provided for in this Agreement; (2)
dismissal of the Owner and the Project as a party from any lawsuit which may
exist to foreclose any mechanic's lien against the Project; (3) delivery by the
Design/Builder to the Owner of as- built drawings, a complete list of
subcontractors and principal vendors (including addresses and telephone
numbers), a complete set of all operation and maintenance manuals and
manufacturer's literature of equipment and materials used in the Work; and (4)
any and all other material items required by the Contract Documents. If the
Design/Builder fails to promptly accept the defense of a mechanic's lien
foreclosure action initiated against the Owner or the Owner's designee, the
Owner or the Owner's designee reserves the right, at the sole cost and expense
of the Design/Builder, to defend itself with separate counsel.
SECTION 5.2.2 When the Work has been completed and the contract fully performed,
the Design/Builder shall submit a final Application for Payment to the Owner.
The Owner shall make final payment to the Design/Builder not later than thirty
(30) days thereafter.
SECTION 5.2.3 The making of final payment shall constitute a waiver of claims by
the Owner except those arising from:
.1 liens, claims, security interests or encumbrances arising out of the
Contract and unsettled;
.2 failure of the Work to comply with the requirements of the Contract
Documents; or
.3 terms of special warranties required by the Contract Documents.
SECTION 5.2.4 Acceptance of final payment shall constitute a waiver of all
claims by the Design/Builder except those previously made in writing and
identified by the Design/Builder as unsettled at the time of the final
Application for Payment.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
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User Notes: (1848111543)
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SECTION 5.3 INTEREST PAYMENTS
SECTION 5.3.1 Payments due the Design/Builder under this Agreement which are not
paid when due shall bear interest from the date due at the rate specified in
Section 13.3.1 of this Part 2 Agreement.
SECTION 5.4 FAILURE OF PAYMENT
SECTION 5.4.1 If the Owner fails to pay the Design/Builder at the time payment
of any amount becomes due, then the Design/Builder may, at any time thereafter,
upon serving ten (10) Business Days' written notice to the Owner, stop the Work
until payment of the amount owing has been received. In the event of such Work
stoppage, the Contract Time shall be extended appropriately and the Contract Sum
shall be increased by the amount of the Design/Builder's reasonable costs of
shutdown, delay, and start-up. In the event the Owner shall fail to pay
the-Design/Builder after an additional thirty (30) business days' written notice
to the Owner, and the nonpayment is not the subject of mediation/arbitration as
specified in Article 10 of this Part 2 Agreement, the Design/Builder shall have
the right to terminate this Agreement upon written notice to the Owner at any
time prior to payment by the Owner to the Design/Builder.
ARTICLE 6 PROTECTION OF PERSONS AND PROPERTY
SECTION 6.1 The Design/Builder shall be responsible for initiating, maintaining
and providing supervision of all safety precautions and programs in connection
with the performance of this Part 2 Agreement.
SECTION 6.2 The Design/Builder shall take reasonable precautions for the safety
of, and shall provide reasonable protection to prevent, damage, injury or loss
to: (1) employees on the Work and other persons who may be affected thereby; (2)
the Work and materials and equipment to be incorporated therein, whether in
storage on or off the site, under care, custody, or control of the
Design/Builder or the Design/Builder's contractors; and (3) other property at or
adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways,
structures and utilities not designated for removal relocation or replacement in
the course of construction. It is understood and agreed, however, that the
Design/Builder shall have no responsibility for the elimination or abatement of
safety hazards created or otherwise resulting from the acts or omissions of
other persons or firms employed by or under the Owner, including separate
contractors, and the Owner agrees to cause any such other persons or firms to
abide by and adhere fully to all applicable provisions of federal, state and
municipal safety laws and regulations.
SECTION 6.3 The Design/Builder shall give notices and comply with applicable
laws, ordinances, rules, regulations and lawful orders of public authorities
bearing on the safety of persons or property or their protection from damage,
injury or loss.
SECTION 6.4 The Design/Builder shall promptly remedy damage and loss (other than
damage or loss insured under property insurance provided or required by the
Contract Documents) to property at the site caused in whole or in part by the
Design/Builder, a contractor of the Design/Builder or anyone directly or
indirectly employed by any of them, or by anyone for whose acts they may be
liable. The Design/Builder shall be responsible for any and all costs of testing
and remediation, and shall indemnify the Owner, and its successors and assigns,
and agrees to hold the Owner, and its successors and assigns, harmless from and
against any and all losses, liabilities, damages, injuries, penalties, fines,
costs, expenses and claims, including, without limitation, attorneys' and
consultant fees and costs, and the costs of cleanup and remediation of hazardous
materials, only to the extent caused by hazardous materials brought to the
Project site by the Design/Builder or its subcontractors and agents.
ARTICLE 7 INSURANCE AND BONDS
SECTION 7.1 DESIGN/BUILDER'S LIABILITY INSURANCE
SECTION 7.1.1 The Design/Builder shall purchase from and maintain, in a company
or companies lawfully authorized to do business in the jurisdiction in which the
Project is located, such insurance as will protect the Design/Builder from
claims set forth below which may arise out of or result from operations under
this Agreement by the Design/Builder or by a contractor of the Design/Builder,
or by anyone directly or indirectly employed by any of them, or by anyone for
whose acts any of them may be liable:
.1 claims under workers' compensation, disability benefit and other
similar employee benefit laws that are applicable to the Work to be
performed;
.2 claims for damages because of bodily injury, occupational sickness
or disease, or death of the Design/Builder's employees;
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
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.3 claims for damages because of bodily injury, sickness or disease, or
death of persons other than the Design/Builder's employees;
.4 claims for damages covered by usual personal injury liability
coverage which are sustained (1) by a person as a result of an
offense directly or indirectly related to employment of such person
by the Design/Builder or (2) by another person;
.5 claims for damages, other than to the Work itself, because of injury
to or destruction of tangible property, including loss of use
resulting therefrom;
.6 claims for damages because of bodily injury, death of a person or
property damage arising out of ownership, maintenance or use of a
motor vehicle; and
.7 claims involving contractual liability insurance applicable to the
Design/Builder's obligations under Section 11.5 of this Part 2
Agreement.
SECTION 7.1.2 The insurance required by Section 7.1.1 of this Part 2 Agreement
shall be written for not less than limits of liability required by law or the
minimum limits set forth in the Gymboree Insurance Requirements attached hereto
as EXHIBIT B, whichever is greater. The Comprehensive General Liability
Insurance may be arranged under a single policy for the full limits required or
by a combination of underlying policies with the balance provided by an excess
or Umbrella Liability Policy (in accordance with the terms of the Gymboree
Insurance Requirements). Coverages, whether written on an occurrence or
claims-made basis, shall be maintained without interruption from date of
commencement of the Work until date of final payment and termination of any
coverage required to be maintained after final payment.
SECTION 7.1.3 The Design/Builder shall provide for itself and all of its design
professionals (as an all-inclusive policy) a policy of Professional Liability
Insurance with limits of not less than ONE MILLION DOLLARS ($ 1,000,000) per
occurrence and TWO MILLION DOLLARS ($2,000,000) in the aggregate. Proof of
insurance shall be required.
SECTION 7.1.4 Certificates of Insurance acceptable to the Owner shall be
delivered to the Owner in compliance with the Gymboree Insurance Requirements.
Where available under the policies of insurance, the Certificates of Insurance
shall name the Owner as an additional insured as required pursuant to the
Gymboree Insurance Requirements. The Design/Builder shall require that all
subcontractors supply Certificates of Insurance evidencing liability insurance
that complies with the requirements of Sections 7.1.1, 7.1.2, 7.1.3 and this
Section 7.1.4 with the Design/Builder's policies as primary. These Certificates
and the insurance policies required by this Section 7.1 shall contain a
provision that coverages afforded under the policies will not be cancelled or
allowed to expire until at least thirty (30) days' prior written notice has been
given to the Owner. If any of the foregoing insurance coverages are required to
remain in force after final payment, an additional certificate evidencing
continuation of such coverage shall be submitted with the application for final
payment. Information concerning reduction of coverage shall be furnished by the
Design/Builder with reasonable promptness in accordance with the
Design/Builder's information and belief.
SECTION 7.2 OWNER'S LIABILITY INSURANCE
SECTION 7.2.1 Subject to the provisions of Section 7.7 hereafter, the Owner
shall be responsible for purchasing and maintaining the Owner's usual liability
insurance. Optionally, the Owner may purchase and maintain other insurance for
self-protection against claims which may arise from operations under this
Agreement. The Design/Builder shall not be responsible for purchasing and
maintaining this optional Owner's liability insurance unless specifically
required by the Contract Documents, in which event all costs associated
therewith shall be an additional expense to the Owner.
SECTION 7.3 PROPERTY INSURANCE
SECTION 7.3.1 Subject to the provisions of Section 7.7 hereafter, and except if
the Owner requests that the Design/Builder obtain such insurance, the Owner
shall purchase and maintain, in a company or companies authorized to do business
in the jurisdiction in which the principal improvements are to be located,
"Builder's Risk" property insurance. Such property insurance shall be
maintained, unless otherwise provided in the Contract Documents or otherwise
agreed in writing by all persons and entities who are beneficiaries of such
insurance, until final payment has been made or until no person or entity other
than the Owner has an insurable interest in the property required by this
Section 7.3 to be insured, whichever is earlier. This insurance shall include
interests of the Owner, the Design/Builder, and their respective contractors and
subcontractors in the Work as additional insureds as their interests may appear.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
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SECTION 7.3.2 Property insurance shall be on an all-risk policy form and shall
insure against the perils of fire and extended coverage and physical loss or
damage including, without duplication of coverage, theft, vandalism, malicious
mischief, collapse, falsework, temporary buildings and debris removal including
demolition occasioned by enforcement of any applicable legal requirements, and
shall cover reasonable compensation for the services and expenses of the
Design/Builder's Architect and other professionals required as a result of such
insured loss. Coverage for other perils shall not be required unless
otherwise provided in the Contract Documents.
SECTION 7.3.3 If the Owner does not intend to purchase the property insurance
required by this Section 7.3 and with all of the coverages in the amount
described above, the Owner shall so inform the Design/Builder prior to
commencement of the construction. The Design/Builder may then effect insurance
which will protect the interests of the Design/Builder and the Design/Builder's
contractors in the construction, and by appropriate Change Order the cost
thereof shall be charged to the Owner. If the Design/Builder is damaged by the
failure or neglect of the Owner to purchase or maintain insurance as described
above, then the Owner shall bear all reasonable costs properly attributable
thereto.
SECTION 7.3.4 Intentionally Deleted.
SECTION 7.3.5 A loss insured under the Owner's property insurance shall be
adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary
for the insureds, as their interests may appear, subject to requirements of any
applicable mortgagee clause and of Section 7.3.10 hereafter. The Design/Builder
shall pay contractors their shares of insurance proceeds received by the
Design/Builder, and by appropriate agreement, written where legally required for
validity, shall require contractors to make payments to their subcontractors in
similar manner.
SECTION 7.3.6 Before an exposure to loss may occur, the Owner shall file with
the Design/Builder a copy of each policy that includes insurance coverages
required by this Section 7.3. Each policy shall contain all generally applicable
conditions, definitions, exclusions and endorsements related to this Project.
Each policy shall contain a provision that the policy will not be canceled or
allowed to expire until at least thirty (30) days' prior written notice has been
given to the Design/Builder.
SECTION 7.3.7 If the Design/Builder requests in writing that insurance for risks
other than those described herein or for other special hazards be included in
the property insurance policy, the Owner shall, if possible, obtain such
insurance, and the cost thereof shall be charged to the Design/Builder by
appropriate Change Order.
SECTION 7.3.8 The Owner and the Design/Builder waive all rights against each
other and the Architect and other design professionals, contractors,
subcontractors, agents and employees, each of the other, for damages caused by
fire or other perils to the extent covered by property insurance obtained
pursuant to this Section 7.3 or other property insurance applicable to the Work,
except such rights as they may have to proceeds of such insurance field by the
Owner as trustee. The Owner or the Design/Builder, as appropriate, shall require
from contractors and subcontractors by appropriate agreements, written where
legally required for validity, similar waivers each in favor of other parties
enumerated in this Section 7.3. The policies shall provide such waivers of
subrogation by endorsement or otherwise. A waiver of subrogation shall be
effective as to a person or entity even though that person or entity would
otherwise have a duty of indemnification, contractual or otherwise, did not pay
the insurance premium directly or indirectly, and whether or not the person or
entity had an insurable interest in the property damaged. The Owner waives
subrogation against the Design/Builder and its design professionals,
subcontractors and sub-subcontractors on all property and consequential loss
policies carried by the Owner on property and consequential loss policies
purchased for the Project after its completion. If the policies of insurance
referred to in this Article 7 require an endorsement to provide for continued
coverage where there is a waiver of subrogation, the owners of such policies
will cause them to be so endorsed.
SECTION 7.3.9 Intentionally Deleted.
SECTION 7.3.10 The Owner as trustee shall have power to adjust and settle a loss
with insurers unless one of the parties in interest shall object in writing,
within five (5) days after occurrence of loss to the Owner's exercise of this
power; if such objection be made, the parties shall enter into dispute
resolution under procedures provided in Article 10 of this Part 2 Agreement. If
distribution of insurance proceeds by arbitration is required, the arbitrators
will direct such distribution.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
1/11/2007, and is not for resale.
User Notes: (1848111543)
13
SECTION 7.3.11 Partial occupancy or use prior to Substantial Completion shall
not commence until the insurance company or companies providing property
insurance have consented to such partial occupancy or use by endorsement or
otherwise. The Owner and the Design/Builder shall take reasonable steps to
obtain consent of the insurance company or companies and shall not, without
mutual written consent, take any action with respect to partial occupancy or use
that would cause cancellation, lapse or reduction of coverage.
SECTION 7.4 LOSS OF USE OF INSURANCE
SECTION 7.4.1 The Owner, at the Owner's option, may purchase and maintain such
insurance as will insure the Owner against loss of use of the Owner's property
due to fire or other hazards, however caused, including coverage for expediting
expenses of materials, continuing overhead of the Owner, necessary labor expense
including overtime, loss of income by the Owner and other determined exposures.
Exposures of the Owner and the Design/Builder shall be determined by mutual
agreement and separate limits of coverage fixed for each item. The Owner waives
all rights of action against the Design/Builder for loss of use of the Owner's
property, including consequential losses due to fire or other hazards, however
caused, to the extent covered by such loss of use insurance.
SECTION 7.5 CERTIFICATES
SECTION 7.5.1 Certificates of insurance showing such coverages to be in force
shall be delivered to the Owner and the Design/Builder prior to the commencement
of construction.
SECTION 7.6 BONDS
SECTION 7.6.1 At the option of the Owner, the Design/Builder shall provide
performance and/or payment bonds for the Work in the amount of the Contract Sum.
The Design/Builder's premium cost for such bond(s) shall be an added cost
payable by the Owner.
SECTION 7.7 OWNER SELF-INSURANCE
SECTION 7.7.1 Notwithstanding anything to the contrary contained in this
Agreement, provided the Owner is a public company registered on a national
securities exchange and maintains a net worth of at least ONE HUNDRED MILLION
DOLLARS ($100,000,000), the Owner may self-insure any insurance required of the
Owner under this Part 2 Agreement.
ARTICLE 8 CHANGES IN THE WORK
SECTION 8.1 CHANGES
SECTION 8.1.1 Changes in the Work may be accomplished after execution of this
Part 2 Agreement, without invalidating this Part 2 Agreement, by Change Order,
Construction Change Directive, subject to the limitations stated in the Contract
Documents.
SECTION 8.1.2 A Change Order shall be based upon agreement between the Owner and
the Design/Builder; a Construction Change Directive may be issued by the Owner
without the agreement of the Design/Builder; an order for Work may be issued by
the Design/Builder alone.
SECTION 8.1.3 Changes in the Work shall be performed under applicable provisions
of the Contract Documents, and the Design/Builder shall proceed promptly, unless
otherwise provided in the Change Order, Construction Change Directive.
SECTION 8.1.4 If unit prices are stated in the Contract Documents or
subsequently agreed upon, and if quantities originally contemplated are so
changed in a proposed Change Order or Construction Change Directive that
application of such unit prices to quantities of Work proposed will cause
substantial inequity to the Owner or the Design/Builder, the applicable unit
prices shall be equitably adjusted.
SECTION 8.1.5 If the Design/Builder wishes to make a claim for an increase in
the Contract Sum or the Contract Time, it shall give the Owner written notice
thereof within five (5) Business Days after the Design/Builder learns of the
event giving rise to such claim. This notice shall be given by the
Design/Builder if reasonably possible before proceeding to execute the Work,
except in an emergency endangering life or property in which case the
Design/Builder shall act, at its discretion, to prevent threatened damage,
injury or loss in a reasonable manner.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
1/11/2007, and is not for resale.
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SECTION 8.2 CHANGE ORDERS
SECTION 8.2.1 A Change Order is a written instrument prepared by the
Design/Builder and signed by the Owner and the Design/Builder, stating their
agreement upon all of the following:
.1 a change in the Work;
.2 the amount of the adjustment, if any, in the Contract Sum; and
.3 the extent of the adjustment, if any, in the Contract Time.
SECTION 8.2.2 If the Owner requests a proposal for a change in the Work from the
Design/Builder and subsequently elects not to proceed with the change, a Change
Order shall be issued to reimburse the Design/Builder for any costs incurred for
estimating services, design services or preparation of proposed revisions to the
Contract Documents.
SECTION 8.2.3 Notwithstanding any other provision of the Contract Documents, no
change in the Work, whether by way of alteration or addition to the Work, shall
be the basis of an addition to the Contract Sum or a change in the Contract Time
unless and until such alteration or addition has been authorized by a Change
Order in strict compliance with the requirements of the Contract Documents. This
requirement is of the essence of the Contract Documents. Accordingly, no course
of conduct or dealings between the parties, nor express or implied acceptance of
alterations or additions to the Work, and no claim that the Owner has been
unjustly enriched by any alteration or addition to the Work, whether or not
there is, in fact, any such unjust enrichment, shall be the basis for any claim
to an increase in the Contract Sum or change in the Contract Time.
SECTION 8.2.4 Notwithstanding any other provision of the Contract Documents, no
increase in the Contract Sum for a Change Order shall include an allowance of
more than five percent (5%) as compensation for overhead and profit, plus
seventy-five hundredths of one percent (.75%) as a net insurance cost
adjustment. In the event of a Change Order resulting in a reduction in the
Contract Price, the Contract Price shall be reduced by the cost of the Change
Order, plus an allowance of five percent (5%) for overhead and profit, plus
seventy-five hundredths of one percent (.75%) as a net insurance cost
adjustment.
SECTION 8.3 CONSTRUCTION CHANGE DIRECTIVES
SECTION 8.3.1 A Construction Change Directive is a written order prepared and
signed by the Owner, directing a change in the Work prior to agreement on
adjustment, if any, in the Contract Sum or Contract Time, or both.
SECTION 8.3.2 The adjustment to the Contract Sum for Construction Change
Directives and Change Orders shall be based upon a lump sum agreed to by the
parties or shall be determined on the basis of the reasonable Cost of the Work
attributable to the change, including the expenditures for design services and
revisions to the Contract Documents, if required. In case of an increase in the
Contract Sum based on the Cost of the Work, the Cost of the Work shall be based
on cost, plus an allowance of five percent (5%) for overhead and profit, plus
seventy-five hundredths of one percent (.75%) as a net insurance cost
adjustment. In such case, the Design/Builder shall keep and present an itemized
accounting together with appropriate supporting data for inclusion in a Change
Order. Unless otherwise provided in the Contract Documents, costs for these
purposes shall be limited to the following:
.1 costs of labor, including social security, old age and unemployment
insurance, fringe benefits required by agreement or custom, and
workers' compensation insurance;
.2 costs of materials, supplies and equipment, including cost of
transportation, whether incorporated or consumed;
.3 rental costs of machinery and equipment exclusive of hand tools,
whether rented from the Design/Builder or others;
.4 costs of premiums for all bonds and insurance permit fees, and
sales, use or similar taxes;
.5 additional costs of supervision and field office personnel directly
attributable to the change, and fees paid to the Architect,
engineers and other professionals.
SECTION 8.3.3 Pending final determination of the actual cost to the Owner,
amounts not in dispute may be included in Applications for Payment. The amount
of credit to be allowed by the Design/Builder to the Owner for a Change
Directive resulting in a net decrease in the Contract Sum will be the actual
cost, plus an allowance of five percent (5%) For overhead and profit, plus
seventy-five hundredths of one percent (.75%) as a net insurance cost
adjustment.
SECTION 8.3.4 When the Owner and the Design/Builder ultimately agree upon the
adjustments in the Contract Sum and Contract Time, such agreement shall be
effective immediately and shall be recorded by preparation and execution of an
appropriate Change Order.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
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SECTION 8.4 MINOR CHANGES IN THE WORK
SECTION 8.4.1 Intentionally Deleted.
SECTION 8.5 CONCEALED CONDITIONS
SECTION 8.5.1 If conditions are encountered at the site which are (1) subsurface
or otherwise concealed physical conditions which differ materially from those
indicated in the Contract Documents, or (2) unknown physical conditions which
differ materially from those ordinarily found to exist and generally recognized
as inherent in construction activities of the character provided for in the
Contract Documents, then notice by the observing party shall be given to the
other party promptly before conditions are disturbed and in no event later than
five (5) Business Days after first observance of the conditions. The Contract
Sum and Contract Time shall be equitably adjusted for such concealed or unknown
conditions by Change Order upon claim by either party made within ten (10)
Business Days after the claimant becomes aware of the conditions. Any claim for
equitable adjustment of the Contract Sum and/or the Contract Time which is not
included in such notice shall be deemed to have been waived by the
Design/Builder. If the Owner and the Design/Builder cannot agree on an
adjustment in the Contract Sum or Contract Time, the adjustment shall be subject
to further proceedings pursuant to Article 10 of this Part 2 Agreement.
SECTION 8.6 REGULATORY CHANGES
SECTION 8.6.1 The Design/Builder shall be compensated for changes in the
construction necessitated by the enactment or revisions of codes, laws or
regulations subsequent to execution of this Agreement, with an allowance of five
percent (5%) for overhead and profit, plus seventy-five hundredths of one
percent (.75%) as a net insurance cost adjustment.
ARTICLE 9 CORRECTION OF WORK
SECTION 9.1 The Design/Builder shall promptly correct defective or
non-conforming Work rejected by the Owner or known by the Design/Builder to be
defective or failing to conform to the requirements of the Contract Documents,
whether observed before or after Substantial Completion and whether or not
fabricated, installed or completed. The Design/Builder shall bear all costs of
correcting such defective or non-conforming Work, including additional testing
and inspections.
SECTION 9.2 If, within one (1) year after the date of Substantial Completion of
the Work or, after the date for commencement of warranties established in a
written agreement between the Owner and the Design/Builder, or by the terms of
any applicable special warranty required by the Contract Documents, any of the
Work is found to be not in accordance with the requirements of the Contract
Documents, the Design/Builder shall correct it promptly after receipt of a
written notice from the Owner to do so unless the Owner has previously given the
Design/Builder a written acceptance of such condition.
SECTION 9.3 Nothing contained in this Article 9 shall be construed to establish
a period of limitation with respect to other obligations which the
Design/Builder might have under the Contract Documents or law. Establishment of
the time period of one (1) year as described in Section 9.2 relates only to the
specific obligation of the Design/Builder to correct the Work, and has no
relationship to the time within which the obligation to comply with the Contract
Documents may be sought to be enforced, nor to the time within which proceedings
may be commenced to establish the Design/Builder's liability with respect to the
Design/Builder's obligations other than specifically to correct the Work.
SECTION 9.4 If the Design/Builder fails to correct nonconforming Work as
required or fails to carry out Work in accordance with the Contract Documents,
the Owner, by written order signed personally or by an agent specifically so
empowered by the Owner in writing, may order the Design/Builder to stop the
Work, or any portion thereof, until the cause for such order has been
eliminated; however, the Owner's right to stop the Work shall not give rise to a
duty on the part of the Owner to exercise the right for the benefit of the
Design/Builder or other persons or entities.
SECTION 9.5 If the Design/Builder defaults or neglects to carry out the Work in
accordance with the Contract Documents and fails within five (5) Business Days
after receipt of written notice from the Owner to commence and continue
correction of such default or neglect with diligence and promptness, the Owner
may give a second written notice to the Design/Builder and, five (5) Business
Days following receipt by the Design/Builder of that second written notice and
without prejudice to other remedies the Owner may have, correct such
deficiencies. In such case an appropriate Change Order shall be issued deducting
from payments then or thereafter due to the Design/Builder, the costs of
correcting such deficiencies. If the payments then or thereafter due to the
Design/Builder are not sufficient to cover
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Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
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the amount of the deduction, the Design/Builder shall pay the difference to the
Owner. Such action by the Owner shall be subject to dispute resolution
procedures as provided in Article 10 of this Part 2 Agreement.
ARTICLE 10 DISPUTE RESOLUTION - MEDIATION AND ARBITRATION
SECTION 10.1 Claims, disputes or other matters in question between the parties
to this Part 2 Agreement arising out of or relating to this Agreement or breach
thereof shall be subject to attempts to conclude disputes by meetings of senior
corporate executives of each party and only thereafter shall be decided first by
mediation and then by arbitration. Such mediation or arbitration shall be
conducted in accordance with the Construction Industry Mediation or Arbitration
Rules of the American Arbitration Association currently in effect. All
subcontracts between the Design/Builder and subcontractors shall include a
provision equivalent to this Section 10.1.
SECTION 10.2 Prior to arbitration, the parties shall first endeavor to settle
disputes by mediation. Demand for mediation shall be filed in writing with the
other party to this Part 2 Agreement and with the American Arbitration
Association. A demand for mediation shall be made within a reasonable time after
the claim, dispute or other matter in question has arisen. In no event shall the
demand for mediation 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 statutes of repose or limitations.
SECTION 10.3 Demand for arbitration shall be filed in writing with the other
party to this Part 2 Agreement and with the American Arbitration Association. A
demand for arbitration shall be made within a reasonable time after the claim,
dispute or other matter in question has arisen. In no event shall the demand for
arbitration 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 statutes of repose or limitations.
SECTION 10.4 An arbitration pursuant to this Article 10 shall be joined with an
arbitration involving common issues of law or fact between the Design/Builder
and any person or entity with whom the Design/Builder has a contractual
obligation to arbitrate disputes, including subcontractors, or with whom either
the Owner or the Design/Builder has a contractual obligation to arbitrate
disputes. No other arbitration arising out of or relating to this Part 2
Agreement shall include, by consolidation, joinder or in any other manner, an
additional person or entity not a party to this Part 2 Agreement or not a party
to an agreement with the Design/Builder or the Owner, except by written consent
containing a specific reference to this Part 2 Agreement signed by the Owner,
the Design/Builder and any other person or entities sought to be joined. Consent
to arbitration involving an additional person or entity shall not constitute
consent to arbitration of any claim, dispute or other matter in question not
described in the written consent or with a person or entity not named or
described therein. The foregoing agreement to arbitrate and other agreements to
arbitrate with an additional person or entity duly consented to by the parties
to this Agreement shall be specifically enforceable in accordance with
applicable law in any court having jurisdiction thereof.
SECTION 10.5 The award rendered by the arbitrator or arbitrators shall be final,
and judgment may be entered upon it in accordance with applicable law in any
court having jurisdiction thereof.
SECTION 10.6 Notwithstanding the foregoing, the arbitrator shall resolve the
controversy in accordance with applicable law and the terms and conditions of
the Contract Documents. The arbitrator shall allow the parties reasonable
opportunities for pre-hearing document exchange and other pre-hearing discovery
of evidence as determined by the arbitrator in his or her discretion. The cost
of the arbitrator shall be shared equally between the parties, provided,
however, that such costs along with all other costs and expenses, including
attorneys' fees, shall be subject to award in full or in part by the arbitrator,
in the arbitrator's discretion, to the prevailing party.
ARTICLE 11 MISCELLANEOUS PROVISIONS
SECTION 11.1.1 This Part 2 Agreement shall be governed by the law of the State
of California.
SECTION 11.1.2 Written notice shall be deemed to have been duly served if
delivered in person or by registered or certified mail, or by express overnight
mail by a company with a national reputation and capacity to provide evidence of
delivery, to the address shown on the first (title) page of this Part 2
Agreement.
SECTION 11.2 SUBCONTRACTS
SECTION 11.2.1 The Design/Builder, at least thirty (30) days prior to
commencement of construction services under this Agreement, shall furnish to the
Owner in writing the names of the persons or entities the Design/Builder will
engage
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
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as contractors for the Project. The Owner shall have the right to approve or
disapprove any contractor with a contract exceeding One Hundred Thousand Dollars
($100,000) ("Major Contractor"), which approval shall not be unreasonably
withheld.
SECTION 11.3 WORK BY OWNER OR OWNER'S CONTRACTORS
SECTION 11.3.1 The Owner reserves the right to perform construction or
operations related to the Project with the Owner's own forces, and to award
separate contracts in connection with other portions of the Project on other
construction or operations on the site subject to safety, insurance and waiver
of subrogation conditions identical to the provisions of this Part 2 Agreement.
If the Design/Builder claims that delay or additional cost is involved because
of such action by the Owner, the Design/Builder shall assert such claims as
provided in Section 11.4.
SECTION 11.3.2 The Design/Builder shall afford the Owner's separate contractors
reasonable opportunity for introduction and storage of their materials and
equipment and performance of their activities. The Owned shall provide for the
coordination of the Owner's own forces and of each separate contractor with the
Work of the Design/Builder, who shall reasonably cooperate with them.
SECTION 11.3.3 If the Work is delayed, disrupted or interfered with by the
Owner's own forces or separate contractors, or if the Design/Builder incurs
additional costs from their acts or omissions, the Design/Builder shall be
entitled to an increase in the Contract Sum or Contract Time, or both, which
increase shall be reflected by Change Order.
SECTION 11.4 CLAIMS FOR DAMAGES
SECTION 11.4.1 If either party to this Part 2 Agreement suffers injury or damage
to person or property because of an act or omission of the other party, of any
of the other party's employees or agents, or of others for whose acts such party
is legally liable, written notice of such injury or damage, whether or not
insured, shall be given to the other party within a reasonable time not
exceeding ten (10) Business Days after first observance. The notice shall
provide sufficient detail to enable the other party to investigate the matter.
If a claim of additional cost or time related to this claim is to be asserted,
it shall be filed in writing.
SECTION 11.5 INDEMNIFICATION
SECTION 11.5.1 Subject to the waiver of subrogation provisions of Sections 7.3.8
and 7.4.1 of this Part 2 Agreement, to the fullest extent permitted by law, the
Design/Builder shall indemnify and hold harmless the Owner, the Owner's
consultants, and agents and employees of any of them from and against claims,
damages, losses and expenses, including but not limited to attorneys' fees,
arising out of or resulting from the Design/Builder's performance of the Work.
Such obligation shall not be construed to negate, abridge, or reduce other
rights or obligations of indemnity which would otherwise exist as to a party or
person described in this Section 11.5.
SECTION 11.5.2 In claims against any person or entity indemnified under this
Section 11.5 by an employee of the Design/Builder, anyone directly or indirectly
employed by the Design/Builder or anyone for whose acts the Design/Builder may
be liable, the indemnification obligation under this Section 11.5 shall not be
limited by a limitation on amount or type of damages, compensation or benefits
payable by or for the Design/Builder under workers' compensation acts,
disability benefit acts or other employee benefit acts.
SECTION 11.6 SUCCESSORS AND ASSIGNS
SECTION 11.6.1 The Owner and the Design/Builder, respectively, bind themselves,
their partners, successors, assigns and legal representatives to the other party
to this Part 2 Agreement and to the partners, successors and assigns of such
other party with respect to all covenants of this Agreement. Except as provided
in Section 11.6.2 below, neither the Owner nor the Design/Builder shall assign
this Agreement without the written consent of the other. If either party makes
such an assignment, that party shall nevertheless remain legally responsible for
all obligations under this Agreement, unless otherwise agreed by the other
party.
SECTION 11.6.2 The Owner may, without consent of the Design/Builder, assign this
Agreement to a construction agent, lender, successor-in-interest, ground lessee,
mezzanine financing or leasing entity, or sale/leaseback intermediary which is
providing financing for the Project; provided, however, in such event the Owner
shall remain liable for performance under this Part 2 Agreement and the other
Contract Documents.
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
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SECTION 11.7 TERMINATION OF PROFESSIONAL DESIGN SERVICES
SECTION 11.7.1 Prior to the termination of the services of the Architect or any
other design professional designated in this Part 2 Agreement, the
Design/Builder shall identify to the Owner in writing another architect or other
design professional with respect to whom the Owner has no reasonable objection,
who will provide the services originally to have been provided by the Architect
or other design professional whose services are being terminated.
SECTION 11.8 EXTENT OF AGREEMENT
SECTION 11.8.1 This Part 2 Agreement represents the entire agreement between the
Owner and the Design/Builder and supersedes prior negotiations, representations
or agreements, either written or oral. This Part 2 Agreement may be amended only
by written instrument and signed by both the Owner and the Design/Builder.
ARTICLE 12 TERMINATION OF THE AGREEMENT
SECTION 12.1 TERMINATION BY THE OWNER
SECTION 12.1.1 This Part 2 Agreement may be terminated by the Owner upon ten
(10) Business Days written notice to the Design/Builder in the event that the
Project is abandoned, or for the Owner's convenience, with or without cause, in
the Owner's sole discretion. If such termination occurs, the Owner shall pay the
Design/Builder for Work completed, including the Design/Builder's five percent
(5%) overhead and profit fee, and for proven loss sustained upon materials,
equipment, tools, and construction equipment and machinery, including reasonable
profit and applicable damages.
.1 Upon receipt of any such notice of termination, the Design/Builder
shall unless the notice directs otherwise, immediately discontinue the Work on
that date and to the extent specified in the notice, place no further orders or
subcontracts for materials, equipment, services or facilities, except as may be
necessary for completion of such portion of the Work as is not discontinued;
promptly make every reasonable effort to procure cancellation upon terms
satisfactory to the Owner of all orders and subcontracts to the extent they
relate to the performance of the discontinued portion of the Work; and shall
thereafter do only such Work as may be necessary to preserve and protect Work
already in progress and to protect materials, plant and equipment on the Project
site or in transit. thereto.
.2 If at the date of such termination, the Design/Builder has properly
prepared or fabricated off the site any goods for subsequent incorporation in
the Work, and if the Design/Builder delivers such goods to the site or to such
other place as the Owner shall reasonably direct, the Design/Builder shall be
paid for such goods tor materials.
.3 Upon termination, the obligations of this Part 2 Agreement shall
continue as to portions of the Work already performed and as to bona fide
obligations assumed by the Design/Builder prior to the date of termination.
SECTION 12.1.2
1. If the Design/Builder defaults or persistently fails or neglects to
carry out the Work in accordance with the Contract Documents or fails to perform
the provisions of this Part 2 Agreement, the Owner, may give written notice that
the Owner intends to terminate this Part 2 Agreement. If the Design/Builder
fails or neglects to correct the defaults within ten (10) Business Days after
being given notice, the Owner may then give a second written notice and, after
an additional ten (10) Business Days, the Owner may without prejudice to any
other remedy terminate the employment of the Design/Builder and take possession
of the site and of all materials, equipment, tools and construction equipment
and machinery thereon owned by the Design/Builder and finish the Work by
whatever reasonable method the Owner may deem expedient. If the unpaid balance
of the Contract Sum exceeds the expense of finishing the Work and all damages
incurred by the Owner, such excess shall be paid to the Design/Builder. If the
expense of completing the Work and all damages incurred by the Owner exceeds the
unpaid balance, the Design/Builder shall pay the difference to the Owner. This
obligation for payment shall survive termination of this Part 2 Agreement.
.2 The Design/Builder shall include in each of its subcontracts (and
require as to each subcontract on a lower level) a provision requiring that, in
the event the Owner terminates this Part 2 Agreement pursuant to the provisions
of Section 12.1.2.1 above, the Owner, at the Owner's option, may succeed to the
interest of the
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
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Design/Builder under each subcontract and require performance of each
subcontractor in accordance with the terms of such subcontract.
SECTION 12.2 TERMINATION BY THE DESIGN/BUILDER
SECTION 12.2.1 If the Owner fails to make payment when due, the Design/Builder
may give written notice of the Design/Builder's intention to terminate this Part
2 Agreement. If the Design/Builder fails to receive payment within ten (10)
Business Days after receipt of such notice by the Owner, the Design/Builder may
give a second written notice and, ten (10) Business Days after receipt of such
second written notice by the Owner, may terminate this Part 2 Agreement and
recover from the Owner payment for Work executed and for proven losses sustained
upon materials, equipment, tools, and construction equipment and machinery, and
other liabilities, obligations, damages, commitments and/or claims that the
Design/Builder incurred in good faith, plus lost anticipated profits (for
overhead and profit).
ARTICLE 13 BASIS OF COMPENSATION
The Owner shall compensate the Design/Builder in accordance with Article 5 of
this Part 2 Agreement, and the other provisions of this Part 2 Agreement as
described below.
SECTION 13.1 COMPENSATION
SECTION 13.1.1 As compensation for the Design/Builder's performance of the Work
as described in this Part 2 Agreement (including Part 1 Agreement services) with
respect to the specific Project Scope attached hereto as EXHIBIT A, and
including any other services which are a part of Basic Services, the Owner shall
pay the Design/Builder in current funds the total Contract Sum of Nine Million
Five Hundred Ten Thousand Ten Dollars ($9,510,010). In the event the Project
Scope changes prior to the execution of this Part 2 Agreement, the Contract Sum
shall be increased or decreased by the cost of such changes, plus an allowance
of five percent (5%) for overhead and profit, plus seventy-five hundredths of
one percent (.75%) as a net insurance cost adjustment.
Applications for Payment shall be based on the portions of the
preconstruction, design and construction Work completed to date, including
materials stored at the Project or at locations approved by the Owner. Such
Applications shall include additional sums due or Additional Services rendered
and for Change Orders. Progress payments shall be made as specified in Section
5.1.2.
SECTION 13.1.2 For Additional Services, as described in Section 3.3,
compensation shall be as follows:
The amount of compensation for Additional Services and the specific nature and
extent of any Additional Service requested by the Owner shall be confirmed by a
written agreement or Change Order.
SECTION 13.2 REIMBURSABLE EXPENSES
SECTION 13.2.1 Reimbursable Expenses are in addition to the compensation for
Basic and Additional Services, and include actual expenditures made by the
Design/Builder and the Design/Builder's employees and contractors in the
interest of the Project which are not within the Project Scope. All Reimbursable
Expenses shall be authorized in advance by Owner. Owner shall not be obligated
to pay Design/Builder for Reimbursable Expenses.
SECTION 13.2.2 For Reimbursable Expenses, compensation shall be a multiple of
1.0 times the amounts expended
SECTION 13.3 INTEREST PAYMENT
SECTION 13.3.1 The rate of interest for past due payments shall be the greater
of (a) ten percent (10%) per annum, or (b) the then current prime rale of Wells
Fargo Bank charged to its customers, plus one percent (1%).
(Paragraph deleted)
(Usury laws and requirements under the Federal Truth in Lending Act, similar
state and local consumer credit laws and other regulations at the Owner's and
the Design/Builder's principal places of business, at the location of the
Project and elsewhere may affect the validity of this provision. Specific legal
advice should be obtained with respect to deletion, modification or other
requirements, such as written disclosures or waivers.)
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
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ARTICLE 14 OTHER CONDITIONS AND SERVICES
SECTION 14.1 The Basic Services to be performed shall be commenced within ten
(10) Business Days of the Owner's notice to proceed and shall be completed
within one hundred ninety-one (191) Business Days thereafter (the "Substantial
Completion Due Date").
SECTION 14.2 Intentionally Deleted.
SECTION 14.3 Intentionally Deleted.
SECTION 14.4 Intentionally Deleted.
SECTION 14.5 Intentionally Deleted.
(Paragraphs deleted)
This Agreement entered into as of the day and year first written above.
OWNER DESIGN/BUILDER
THE GYMBOREE CORPORATION PANATTONI CONSTRUCTION, INC.
By /s/ Blair Lambert By /s/ Denny Boom
------------------------------ ---------------------------------
Blair Lambert Name Denny Boom
Title CFO/COO Title Executive Director
Date 10-6-06 Date 9.11.06
AIA Document A191(TM) - 1996 Part 2. Copyright (C) 1985, 1996 by The American
Institute of Architects. All rights reserved. WARNING: This AIA(R) Document is
protected by U.S. Copyright Law and International Treaties. Unauthorized
reproduction or distribution of this AIA(R) Document, or any portion of it, may
result in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft was produced by AIA software
at 10:41:56 on 09/05/2006 under Order No. 1000214866_1 which expires on
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User Notes: (1848111543)
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