1
Exhibit 10(A)
[LOGO]
STANDARD FORM OF AGREEMENT BETWEEN OWNER AND
CONSTRUCTION MANAGER WHERE THE CONSTRUCTION MANAGER
IS NOT A CONSTRUCTOR
AIA Document B801/CMa - Electronic Format
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THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION OF
THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.
This document is intended to be used in conjunction with the 1992 editions of
AIA Documents B141/CMa, A101/CMa and A201/CMa.
Copyright 1973, 1980, copyright 1992 by The American Institute of Architects,
1735 New York Avenue, N.W., Washington, D.C., 20006-5292. Reproduction of the
material herein or substantial quotation of its provisions without written
permission of the AIA violates the copyright laws of the United States and will
subject the violator to legal prosecution.
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AGREEMENT
made as of the 3rd day of November in the year of 1997.
(In words, indicate day, month and year)
BETWEEN the Owner:
(Name and address)
PROGRESSIVE CASUALTY INSURANCE CO., 6300 WILSON MILLS ROAD, MAYFIELD VILLAGE.
OHIO 44143
and the Construction Manager:
(Name and address)
HCB CONTRACTORS, 5100 WEST KENNEDY BLVD., SUITE 150, TAMPA, FLORIDA 33609
for the following Project:
(Include detailed description of Project, location, address and scope.)
THE PROJECT IS KNOWN AS THE "TAMPA CALL CENTER" - IT CONSISTS OF TWO (2) THREE
STORY BUILDINGS OF APPROXIMATELY 118,500 SF AND 120,600 SF RESPECTIVELY, ONE TWO
(2) STORY BUILDING CONSISTING OF APPROXIMATELY 60,000SF AND RELATED SURFACE
PARKING AND SITE IMPROVEMENTS.
The Architect is:
(Name and address)
HERMAN, GIBANS, FODOR, INC., 1304 WEST 6TH STREET, CLEVELAND, OHIO 44113
The Owner and Construction Manager agree as set forth below.
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AIA DOCUMENT B801/Cma - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. This document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
2
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Terms and Conditions of Agreement Between Owner and Construction Manager
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ARTICLE I
CONSTRUCTION MANAGER'S
RESPONSIBILITIES
1.1 CONSTRUCTION MANAGER'S SERVICES
1.1.1 The Construction Manager's services consist of those services performed by
the Construction Manager, Construction Manager's employees and Construction
Manager's consultants as enumerated in Articles 2 and 3 of this Agreement and
any other services included in Article 14.
1.1.2 The Construction Manager's services shall be provided in conjunction with
the services of an Architect as described in the edition of AIA Document
B141/CMa, Standard Form of Agreement Between Owner and Architect, Construction
Manager-Adviser Edition, current as of the date of this Agreement.
1.1.3 The Construction Manager shall provide sufficient organization, personnel
and management to carry out the requirements of this Agreement in an expeditious
and economical manner consistent with the interests of the Owner.
1.1.4 The services covered by this Agreement are subject to the time limitations
contained in Subparagraph 13.5.1.
ARTICLE 2
SCOPE OF CONSTRUCTION MANAGER'S
BASIC SERVICES
2.1 DEFINITION
2.1.1 The Construction Manager's Basic Services consist of those described in
Paragraphs 2.2 and 2.3 and any other services identified in Article 14 as part
of Basic Services.
2.2 PRE-CONSTRUCTION PHASE
2.2.1 The Construction Manager shall review the program furnished by the Owner
to ascertain the requirements of the Project and shall arrive at a mutual
understanding of such requirements with the Owner.
2.2.2 The Construction Manager shall provide a preliminary evaluation of the
Owner's program, schedule and construction budget requirements, each in terms of
the other.
2.2.3 Based on early schematic designs and other design criteria prepared by the
Architect, the Construction Manager shall prepare preliminary estimates of
Construction Cost for program requirements using area, volume or similar
conceptual estimating techniques. The Construction Manager shall provide cost
evaluations of alternative materials and systems.
2.2.4 The Construction Manager shall expeditiously review design documents
during their development and advise on proposed site use and improvements,
selection of materials, building systems and equipment, and methods of Project
delivery. The Construction Manager shall provide recommendations on relative
feasibility of construction methods, availability of materials and labor, time
requirements for procurement, installation and construction, and factors related
to construction cost including, but not limited to, costs of alternative designs
or materials, preliminary budgets, and possible economies.
2.2.5 The Construction Manager shall prepare and periodically update a Project
Schedule for the Architect's review and the Owner's acceptance. The Construction
Manager shall obtain the Architect's approval for the portion of the preliminary
project schedule relating to the performance of the Architect's services. In the
Project Schedule, the Construction Manager shall coordinate and integrate the
Construction Manager's services, the Architect's services and the Owner's
responsibilities with anticipated construction schedules, highlighting critical
and long-lead-time items.
2.2.6 As the Architect progress with the preparation of the Schematic, Design
Development and Construction Documents, the Construction Manager shall prepare
and update, at appropriate intervals agreed to by the Owner, Construction
Manager and Architect, estimates of Construction Cost of increasing detail and
refinement. The estimated cost of each Contract shall be indicated with
supporting detail. Such estimates shall be provided for the Architect's review
and the Owner's approval. The Construction Manager shall advise the Owner and
Architect if it appears that the Construction Cost may exceed the latest
approved Project budget and rake recommendations for corrective action.
2.2.7 The Construction Manager shall consult with the Owner and Architect
regarding the Construction Documents
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992- THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced without
violation until the date of expiration as noted below.
3
and make recommendations whenever design details adversely affect
constructibility, cost or schedules.
2.2.8 The Construction Manager shall provide recommendations and information to
the Owner and Architect regarding the assignment of responsibilities for
temporary Project facilities and equipment, materials and services for common
use of the Contractors. The Construction Manager shall verify that such
requirements and assignment of responsibilities are included in the proposed
Contract Documents.
2.2.9 The Construction Manager shall provide recommendations and information to
the Owner regarding the allocation of responsibilities for safety programs among
the Contractors.
2.2.10 The Construction Manager shall advise on the division of the Project into
individual Contracts for various categories of Work, including the method to be
used for selecting Contractors and awarding Contracts. If multiple Contracts are
to be awarded, the Construction Manager shall review the Construction Documents
and make recommendations as required to provide that (1) the Work of the
Contractors is coordinated, (2) all requirements for the Project have been
assigned to the appropriate Contract, (3) the likelihood of jurisdictional
disputes has been minimized, and (4) proper coordination has been provided for
phased construction.
2.2.11 The Construction Manager shall prepare a Project construction schedule
providing for the components of the Work, including phasing of construction,
times of commencement and completion required of each Contractor, ordering and
delivery of products requiring long lead time, and the occupancy requirements of
the Owner. The Construction Manager shall provide the current Project
construction schedule for each set of bidding documents.
2.2.12 The Construction Manager shall expedite and coordinate the ordering and
delivery of materials requiring long lead time.
2.2.13 The Construction Manager shall assist the Owner in selecting, retaining
and coordinating the professional services of surveyors, special consultants and
testing laboratories required for the Project.
2.2.14 The Construction Manager shall provide an analysis of the types and
quantities of labor required for the Project and review the availability of
appropriate categories of labor required for critical phases. The Construction
Manager shall make recommendations for actions designed to minimize adverse
effects of labor shortages.
2.2.15 The Construction Manager shall assist the Owner in obtaining information
regarding applicable requirements for equal employment opportunity programs for
inclusion in the Contract Documents.
2.2.16 Following the Owner's approval of the Construction Documents, the
Construction Manager shall update and submit the latest estimate of Construction
Cost and the Project construction schedule for the Architect's review and the
Owner's approval.
2.2.17 The Construction Manager shall submit the list of prospective bidders for
the Architect's review and the Owner's approval.
2.2.18 The Construction Manager shall develop bidders' interest in the Project
and establish bidding schedules. The Construction Manager, with the assistance
of the Architect, shall issue bidding documents to bidders and conduct prebid
conferences with prospective bidders. The Construction Manager shall assist the
Architect with regard to questions from bidders and with the issuance of
addenda.
2.2.19 The Construction Manager shall receive bids, prepare bid analyses and
make recommendations to the Owner for the Owner's award of Contracts or
rejection of bids.
2.2.20 The Construction Manager shall assist the Owner in preparing Construction
Contracts and advise the Owner on the acceptability of Subcontractors and
material suppliers proposed by Contractors.
2.2.21 The Construction Manager shall assist the Owner in obtaining building
permits and special permits for permanent improvements, except for permits
required to be obtained directly by the various Contractors. The Construction
Manager shall verify that the Owner has paid applicable fees and assessments.
The Construction Manager shall assist the Owner and Architect in connection with
the Owner's responsibility for filing documents required for the approvals of
governmental authorities having jurisdiction over the Project.
2.3 CONSTRUCTION PHASE -
ADMINISTRATION OF THE
CONSTRUCTION CONTRACT
2.3.1 The Construction Phase will commence with the award of the initial
Construction Contract or purchase order and, together with the Construction
Manager's obligation to provide Basic Services under this Agreement, will end 30
days after final payment to all Contractors is due.
AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992- THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates US.
copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced without
violation until the date of expiration as noted below.
4
2.3.2 The Construction Manager shall provide administration of the Contracts for
Construction in cooperation with the Architect as set forth below and in the
edition of AIA Document A201/CMa, General Conditions of the Contract for
Construction, Construction Manager-Adviser Edition, current as of the date of
this Agreement.
2.3.3 The Construction Manager shall provide administrative, management and
related services to coordinate scheduled activities and responsibilities of the
Contractors with each other and with those of the Construction Manager, the
Owner and the Architect to endeavor to manage the Project in accordance with the
latest approved estimate of Construction Cost, the Project Schedule and the
Contract Documents.
2.3.4 The Construction Manager shall schedule and conduct meetings to discuss
such matters as procedures, progress and scheduling. The Construction Manager
shall prepare and promptly distribute minutes to the Owner, Architect and
Contractors.
2.3.5 Utilizing the Construction Schedules provided by the Contractors, the
Construction Manager shall update the Project construction schedule
incorporating the activities of the Contractors on the Project, including
activity sequences and durations, allocation of labor and materials, processing
of Shop Drawings, Product Data and Samples, and delivery of products requiring
long lead time and procurement. The Project construction schedule shall include
the Owner's occupancy requirements showing portions of the Project having
occupancy priority. The Construction Manager shall update and reissue the
Project construction schedule as required to show current conditions. If an
update indicates that the previously approved Project construction schedule may
not be met, the Construction Manager shall recommend corrective action to the
Owner and Architect.
2.3.6 Consistent with the various bidding documents, and utilizing information
from the Contractors, the Construction Manager shall coordinate the sequence of
construction and assignment of space in areas where the Contractors are
performing Work.
2.3.7 The Construction Manager shall endeavor to obtain satisfactory performance
from each of the Contractors. The Construction Manager shall recommend courses
of action to the Owner when requirements of a Contract are not being fulfilled.
2.3.8 The Construction Manager shall monitor the approved estimate of
Construction Cost. The Construction Manager shall show actual costs for
activities in progress and estimates for uncompleted tasks by way of comparison
with such approved estimate.
2.3.9 The Construction Manager shall develop cash flow reports and forecasts for
the Project and advise the Owner and Architect as to variances between actual
and budgeted or estimated costs.
2.3.10 The Construction Manager shall maintain accounting records on authorized
Work performed under unit costs, additional Work performed on the basis of
actual costs of labor and materials, and other Work requiring accounting
records.
2.3.11 The Construction Manager shall develop and implement procedures for the
review and processing of applications by Contractors for progress and final
payments.
2.3.11.1 Based on the Construction Manager's observations and evaluations of
each Contractor's Application for Payment, the Construction Manager shall review
and certify the amounts due the respective Contractors.
2.3.11.2 The Construction Manager shall prepare a Project Application for
Payment based on the Contractors' Certificates for Payment.
2.3.11.3 The Construction Manager's certification for payment shall constitute a
representation to the Owner, based on the Construction Manager's determinations
at the site as provided in Subparagraph 2.3.13 and on the data comprising the
Contractors' Applications for Payment, that, to the best of the Construction
Manager's knowledge, information and belief, the Work has progressed to the
point indicated and the quality of the Work is in accordance with the Contract
Documents. The foregoing representations are subject to an evaluation of the
Work for conformance with the Contract Documents upon Substantial Completion, to
results of subsequent tests and inspections, to minor deviations from the
Contract Documents correctable prior to completion and to specific
qualifications expressed by the Construction Manager. The issuance of a
Certificate for Payment shall further constitute a representation that the
Contractor is entitled to payment in the amount certified.
2.3.11.4 The issuance of a Certificate for Payment shall be a representation
that the Construction Manager has made it's best efforts (1) to perform on-site
inspections to check the quality or quantity of the Work, (2) to review
construction means, methods, techniques, sequences for the Contractor's own
Work, or procedures, (3) to review copies of requisitions received from
Subcontractors and material suppliers and other data requested by the Owner to
substantiate the
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION.
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced without
violation until the date of expiration as noted below.
5
Contractor's right to payment and (4) to ascertain how or for what purpose the
Contractor has used money previously paid on account of the Contract Sum. In
taking these actions it shall not be interpreted that the Construction Manager
has made an audit to verify the documentation submitted by Contractors,
Subcontractors, and/or Material Vendors with respect to the Certificate for
Payment. Such audits, if required by the Owner, will be performed by the Owner's
accountants acting in the sole interest of the Owner.
2.3.12 The Construction Manager shall review the safety programs developed by
each of the Contractors for purposes of coordinating the safety programs with
those of the other Contractors.
2.3.13 The Construction Manager shall determine in general that the Work of each
Contractor is being performed in accordance with the requirements of the
Contract Documents, endeavoring to guard the Owner against defects and
deficiencies in the Work. As appropriate, the Construction Manager shall have
authority, upon written authorization from the Owner, to require additional
inspection or testing of the Work in accordance with the provisions of the
Contract Documents, whether or not such Work is fabricated, installed or
completed. The Construction Manager, in consultation with the Architect, may
reject Work which does not conform to the requirements of the Contract
Documents.
2.3.14 The Construction Manager shall schedule and coordinate the sequence of
construction in accordance with the Contract Documents and the latest approved
Project construction schedule.
2.3.15 With respect to each Contractor's own Work, the Construction Manager
shall have made it's best effort to ensure that reasonable construction means,
methods, techniques, sequences, procedures, and safety precautions and
programs have been undertaken by each of the Contractors in connection with the
Work under the Contract for Construction. The Construction Manager shall not be
monetarily responsible for a Contractor's failure to carry out the Work in
accordance with the respective Contract Documents. The Construction Manager
shall, however, use it's best efforts to ensure that each Contractor does carry
out the Work in accordance with the respective Contract Documents.
2.3.16 The Construction Manager shall transmit to the Architect requests for
interpretations of the meaning and intent of the Drawings and Specifications,
and assist in the resolution of questions that may arise.
2.3.17 The Construction Manager shall review requests for changes, assist in
negotiating Contractors' proposals, submit recommendations to the Architect and
Owner, and, if they are accepted, prepare Change Orders and Construction Change
Directives which incorporate the Architect's modifications to
the Documents.
2.3.18 The Construction Manager shall assist the Architect in the review,
evaluation and documentation of Claims.
2.3.19 The Construction Manager shall receive certificates of insurance from the
Contractors and forward them to the Owner with a copy to the Architect.
2.3.20 In collaboration with the Architect, the Construction Manager shall
establish and implement procedures for expediting the processing and approval of
Shop Drawings, Product Data, Samples and other submittals. The Construction
Manager shall review all Shop Drawings, Product Data, Samples and other
submittals from the Contractors. The Construction Manager shall coordinate
submittals with information contained in related documents and transmit to the
Architect those which have been approved by the Construction Manager. The
Construction Manager's actions shall be taken with such reasonable promptness as
to cause no delay in the Work or in the activities of the Owner or Contractors.
2.3.21 The Construction Manager shall record the progress of the Project. The
Construction Manager shall submit written progress reports to the Owner and
Architect including information on each Contractor and each Contractor's Work,
as well as the entire Project, showing percentages of completion. The
Construction Manager shall keep a daily log containing a record of weather, each
Contractor's Work on the site, number of workers, identification of equipment,
Work accomplished, problems encountered, and other similar relevant data as the
Owner may require.
2.3.22 The Construction Manager shall maintain at the Project site for the Owner
one record copy of all Contracts,
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AIA DOCUMENT B201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed
photocopying violates U.S. copyright laws and is subject to legal prosecution.
This document was electronically produced with permission of the AIA and can be
reproduced without violation until the date of expiration as noted below.
6
Drawings, Specifications, addenda, Change Orders and other Modifications, in
good order and marked currently to record changes and selections made during
construction, and in addition, approved Shop Drawings, Product Data, Samples and
similar required submittals. The Construction Manager shall maintain records, in
duplicate, of principal building layout lines, elevations of the bottom of
footings, floor levels and key site elevations certified by a qualified surveyor
or professional engineer. The Construction Manager shall make all such records
available to the Architect and upon completion of the Project shall deliver them
to the Owner.
2.3.23 The Construction Manager shall arrange for the delivery, storage,
protection and security of Owner-purchased materials, systems and equipment that
are a part of the Project until such items are incorporated into the Project.
2.3.24 With the Architect and the Owner's maintenance personnel, the
Construction Manager shall observe the Contractors' final testing and start-up
of utilities, operational systems and equipment.
2.3.25 When the Construction Manager considers each Contractor's Work or a
designated portion thereof substantially complete, the Construction Manager
shall, jointly with the Contractor, prepare for the Architect a list of
incomplete or unsatisfactory items and a schedule for their completion. The
Construction Manager shall assist the Architect in conducting inspections to
determine whether the Work or designated portion thereof is substantially
complete.
2.3.26 The Construction Manager shall coordinate the correction and completion
of the Work. Following issuance of a Certificate of Substantial Completion of
the Work or a designated portion thereof, the Construction Manager shall
evaluate the completion of the Work of the Contractors and make recommendations
to the Architect when Work is ready for final inspection. The Construction
Manager shall assist the Architect in conducting final inspections.
2.3.27 The Construction Manager shall secure and transmit to the Architect
warranties and similar submittals required by the Contract Documents for
delivery to the Owner and deliver all keys, manuals, record drawings and
maintenance stocks to the Owner. The Construction Manager shall forward to the
Architect a final Project Application for Payment upon compliance with the
requirements of the Contract Documents.
2.3.28 Duties, responsibilities and limitations of authority of the Construction
Manager as set forth in the Contract Documents shall not be restricted, modified
or extended without written consent of the Owner, Construction Manager,
Architect and Contractors. Consent shall not be unreasonably withheld.
ARTICLE 3
ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 The services described in this Article 3 are not included in Basic
Services unless so identified in Article 14, and they shall be paid for by the
Owner as provided in this Agreement, in addition to the compensation for Basic
Services. The Optional Additional Services described under Paragraph 3.3 shall
only be provided if authorized or confirmed in writing by the Owner. If services
described under Contingent Additional Services in Paragraph 3.2 are required due
to circumstances beyond the Construction Manager's control, the Construction
Manager shall notify the Owner prior to commencing such services. If the Owner
deems that such services described under Paragraph 3.2 are not required, the
Owner shall give prompt written notice to the Construction Manager. If the Owner
indicates in writing that all or part of such Contingent Additional Services are
not required, the Construction Manager shall have no obligation to provide those
services.
3.2 CONTINGENT ADDITIONAL SERVICES
3.2.1 Providing services required because of significant changes in the Project
including, but not limited to, changes in size, quality, complexity or the
Owner's schedule.
3.2.2 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.
3.2.3 Providing services made necessary by the termination or default of the
Architect or a Contractor, or by failure of performance of the Owner.
3.2.4 Providing services in evaluating an extensive number of claims submitted
by a Contractor or others in connection with the Work.
3.2.5 Providing services in connection with a public hearing, arbitration
proceeding or legal proceeding except where the Construction Manager is party
thereto.
3.3 OPTIONAL ADDITIONAL SERVICES
3.3.1 Providing services relative to future facilities,
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. The document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
7
systems and equipment.
3.3.2 Providing services to investigate existing conditions or facilities or to
provide measured drawings thereof.
3.3.3 Providing services to verify the accuracy of drawings or other information
furnished by the Owner.
3.3.4 Providing services required for or in connection with the Owner's
selection, procurement or installation of furniture, furnishings and related
equipment.
3.3.5
3.3.6 Providing any other services not otherwise included in this Agreement.
ARTICLE 4
OWNER'S RESPONSIBILITIES
4.1 The Owner shall provide full information regarding requirements for the
Project, including a program which shall set forth the Owner's objectives,
schedule, constraints and criteria, including space requirements and
relationships, flexibility, expandability, special equipment, systems, and site
requirements.
4.2 The Owner shall establish and update an overall budget for the Project based
on consultation with the Construction Manager and Architect, which shall include
the Construction Cost, the Owner's other costs and reasonable contingencies
related to all of these costs.
4.3 If requested by the Construction Manager, the Owner shall furnish evidence
that financial arrangements have been made to fulfill the Owner's obligations
under this Agreement.
4.4 The Owner shall designate a representative authorized to act on the Owner's
behalf with respect to the Project. The Owner, or such authorized
representative, shall render decisions in a timely manner pertaining to
documents submitted by the Construction Manager in order to avoid unreasonable
delay in the orderly and sequential progress the Construction Manager's
services.
4.5 The Owner shall retain an architect whose services, duties and
responsibilities are described in the edition of AIA Document B141/Cma, Standard
Form of Agreement Between Owner and Architect, Construction Manager-Adviser
Edition, current as of the date of this Agreement. The Terms and Conditions of
the Agreement Between the Owner and Architect shall be furnished to the
Construction Manager and shall not be modified without written consent of the
Construction Manager, which consent shall not be unreasonably withheld. The
Construction Manager shall not be responsible for actions taken by the
Architect.
4.6 The Owner shall furnish structural, mechanical, chemical, air and water
pollution tests, tests for hazardous materials, and other laboratory and
environmental tests, inspections and reports required by law or the Contract
Documents.
4.7 The Owner shall furnish all legal, accounting and insurance counseling
services as may be necessary at any time for the Project, including auditing
services the Owner may require to verify the Contractors' Applications for
Payment or to ascertain how or for what purposes the Contractors have used the
money paid by or on behalf of the Owner.
4.8 The Owner shall furnish the Construction Manager with a sufficient quantity
of Construction Documents.
4.9 The services, information and reports required by Paragraphs 4.5 through 4.8
shall be furnished at the Owner's expense, and the Construction Manager shall be
entitled to rely upon the accuracy and completeness thereof.
4.10 Prompt written notice shall be given by the Owner to the Construction
Manager and Architect if the Owner becomes aware of any fault or defect in the
Project or nonconformance with the Contract Documents.
4.11 The Owner reserves the right to perform construction and operations related
to the Project with the Owner's own forces, and to award contracts in connection
with the Project which are not part of the Construction Manager's
responsibilities under this Agreement. The Construction Manager shall notify the
Owner if any such independent action will interfere with the Construction
Manager's ability to perform the Construction Manager's responsibilities under
this Agreement. When performing construction or operations related to the
Project, the Owner agrees to be subject to the same obligations and to have the
same rights as the Contractors.
4.12 Information or services under the Owner's control shall be furnished by the
Owner with reasonable promptness to avoid delay in the orderly progress of the
Construction Manager's services and the progress of the Work.
ARTICLE 5
CONSTRUCTION COST
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. The document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
8
5.1 DEFINITION
5.1.1 The Construction Cost shall be the total cost to the Owner of all elements
of the Project designed or specified by the Architect.
5.1.2 The Construction Cost shall include the cost of labor and materials
furnished by the Owner and equipment designed, specified, selected or specially
provided for by the Architect. Except as provided in Subparagraph 5.1.3,
Construction Cost shall also include the compensation of the Construction
Manager and Construction Manager's consultants.
5.1.3 Construction Cost does not include the compensation of the Architect and
Architect's consultants, costs of the land, rights-of-way, financing or other
costs which are the responsibility of the Owner as provided in Article 4. If any
portion of the Construction Manager's compensation is based upon a percentage of
Construction Cost, then Construction Cost, for the purpose of determining such
portion, shall not include the compensation of the Construction Manager or
Construction Manager's consultants.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of
Construction Cost and detailed estimates of Construction Cost prepared by the
Construction Manager represent the Construction Manager's best judgment as a
person or entity familiar with the construction industry. It is recognized,
however, that neither the Construction Manager nor the Owner has control over
the cost of labor, materials or equipment, over Contractors' methods of
determining bid prices, or over competitive bidding, market or negotiating
conditions. Accordingly, the Construction Manager cannot and does not warrant or
represent that bids or negotiated prices will not vary from the Project budget
proposed, established or approved by the Owner, or from any cost estimate or
evaluation prepared by the Construction Manager.
5.2.2 No fixed limit of Construction Cost shall be established as a condition of
this Agreement by the furnishing, proposal or establishment of a Project budget
unless such fixed limit has been agreed upon in writing and signed by the
parties hereto. If such a fixed limit has been established, the Construction
Manager shall be permitted to include contingencies for design, bidding and
price escalation, and shall consult with the Architect to determine what
materials, equipment, component systems and types of construction are to be
included in the Contract Documents, to suggest reasonable adjustments in the
scope of the Project, and to suggest inclusion of alternate bids in the
Construction Documents to adjust the Construction Cost to the fixed limit. Fixed
limits, if any, shall be increased in the amount of any increase in the Contract
Sums occurring after execution of the Contracts for Construction.
5.2.3 If the Bidding or Negotiation Phase has not commenced within 90 days after
submittal of the Construction Documents to the Owner, any Project budget or
fixed limit of Construction Cost shall be adjusted to reflect changes in the
general level of prices in the construction industry between the date of
submission of the Construction Documents to the Owner and the date on which
proposals are sought.
5.2.4 If a fixed limit of Construction Cost (adjusted as provided in
Subparagraph 5.2.3) is exceeded by the sum of the lowest bona fide bids or
negotiated proposals plus the Construction Manager's estimate of other elements
of Construction Cost for the Project, the Owner shall:
.1 give written approval of an increase in such fixed limit;
.2 authorize rebidding or renegotiating of the Project within a
reasonable time;
.3 if the Project is abandoned, terminate in accordance with Paragraph
9.3; or
.4 cooperate in revising the Project scope and quality as required to
reduce the Construction Cost.
5.2.5 If the Owner chooses to proceed under Clause 5.2.4.4, the Construction
Manager, without additional charge, shall cooperate with the Owner and Architect
as necessary to bring the Construction Cost within the fixed limit, if
established as a condition of this Agreement.
ARTICLE 6
CONSTRUCTION SUPPORT ACTIVITIES
6.1 Construction support activities, if provided by the Construction Manager,
shall be governed by separate contractual agreements unless otherwise provided
in Article 14.
6.2 Reimbursable expenses listed in Article 14 for construction support
activities may be subject to trade
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. The document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
9
discounts, rebates, refunds and amounts received from sales of surplus materials
and equipment which shall accrue to the Owner, and the Construction Manager
shall make provisions so that they can be secured.
ARTICLE 7
OWNERSHIP AND USE OF
ARCHITECT'S DRAWINGS, SPECIFICATIONS
AND OTHER DOCUMENTS
7.1 The Drawings, Specifications and other documents prepared by the Architect
are instruments of the Architect's service through which the Work to be executed
by the Contractors is described. The Construction Manager may retain one record
set. The Construction Manager shall not own or claim a copyright in the
Drawings, Specifications and other documents prepared by the Architect, and
unless otherwise indicated the Architect shall be deemed the author of them and
will retain all common law, statutory and other reserved rights, in addition to
the copyright. All copies of them, except the Construction Manager's record set,
shall be returned or suitably accounted for to the Architect, on request, upon
completion of the Project. The Drawings, Specifications and other documents
prepared by the Architect, and copies thereof furnished to the Construction
Manager, are for use solely with respect to this Project. They are not to be
used by the Construction Manager on other projects or for additions to this
Project outside the scope of the Work without the specific written consent of
the Owner and Architect The Construction Manager is granted a limited license to
use and reproduce applicable portions of the Drawings, Specifications and other
documents prepared by the Architect appropriate to and for use in the
performance of the Construction Manager's services under this Agreement.
All copies made under this license shall bear the statutory copyright notice, if
any, shown on the Drawings, Specifications and other documents prepared by the
Architect. Submittal or distribution to meet official regulatory requirements or
for other purposes in connection with this Project is not to be construed as
publication in derogation of the Architect's copyright or other reserved rights.
ARTICLE 8
ARBITRATION
8.1 See Exhibit "A," dated August 20, 1997, to the Contract attached hereto.
Arbitraction is replaced by Mediation for 'Dispute Resolution'.
8.2
8.3
8.4
ARTICLE 9
TERMINATION, SUSPENSION OR
ABANDONMENT
9.1 This Agreement may be terminated by either party upon not less than thirty
days' written notice should the other party fail substantially to perform in
accordance with the terms of this Agreement through no fault of the party
initiating the termination.
9.2 If the Project is suspended by the Owner for more than 30 consecutive days,
the Construction Manager shall be compensated for services performed prior to
notice of such suspension. When the Project is resumed, the Construction
Manager's compensation shall be equitably adjusted to
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. The document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
10
provide for expenses incurred in the interruption and resumption of the
Construction Manager's services.
9.3 This Agreement may be terminated by the Owner upon not less than thirty
days' written notice to the Construction Manager in the event that the Project
is permanently abandoned. If the Project is abandoned by the Owner for more than
90 consecutive days, the Construction Manager may terminate this Agreement by
giving written notice.
9.4 Failure of the Owner to make payments to the Construction Manager in
accordance with this Agreement shall be considered substantial nonperformance
and cause for termination.
9.5 If the Owner fails to make payment when due the Construction Manager for
services and expenses, the Construction Manager may, upon seven days' written
notice to the Owner, suspend performance of services under this Agreement.
Unless payment in full is received by the Construction Manager within seven days
of the date of the notice, the suspension shall take effect without further
notice. In the event of a suspension of services, the Construction Manager shall
have no liability to the Owner for delay or damage caused to the Owner because
of such suspension of services.
9.6 In the event of termination not the fault of the Construction Manager, the
Construction Manager shall be compensated for services performed prior to
termination, together with Reimbursable Expenses then due and all Termination
Expenses as defined in Paragraph 9.7.
9.7 Termination Expenses are those costs directly attributable to termination
for which the Construction Manager is not otherwise compensated.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Unless otherwise provided, this Agreement shall be governed by the law of
the place where the Project is located.
10.2 Terms in this Agreement shall have the same meaning as those in the edition
of AIA Document A201/CMa, General Conditions of the Contract for Construction,
Construction Manager-Adviser Edition, current
as of the date of this Agreement.
10.3 Causes of action between the parties to this Agreement pertaining to acts
or failures to act shall be deemed to have accrued and the applicable statutes
of limitations shall commence to run not later than either the date of
Substantial Completion for acts or failures to act occurring prior to
Substantial Completion, or the date of issuance of the final Project Certificate
for Payment for acts or failures to act occurring after Substantial Completion.
10.4 Waivers of Subrogation. The Owner and Construction Manager waive all rights
against each other and against the Contractors, Architect, consultants, agents
and employees of any of them, for damages, but only to the extent covered by
property insurance during construction, except such rights as they may have to
the proceeds of such insurance as set forth in the edition of AlA Document
A201/CMa, General Conditions of the Contract for Construction, Construction
Manager-Adviser Edition, current as of the date of this Agreement. The Owner and
Construction Manager each shall require similar waivers from their Contractors,
Architect, consultants, agents, and persons or entities awarded separate
contracts administered under the Owner's own forces.
10.5 The Owner and Construction Manager, respectively, bind themselves, their
partners, successors, assigns and legal representatives to the other party to
this Agreement and to the partners, successors, assigns and legal
representatives of such other party with respect to all covenants of this
Agreement. Neither Owner nor Construction Manager shall assign this Agreement
without the written consent of the other.
10.6 This Agreement represents the entire and integrated agreement between the
Owner and Construction Manager and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be
amended only by written instrument signed by both Owner and Construction
Manager.
10.7 Nothing contained in this Agreement shall create a contractual relationship
with or a cause of action in favor of a third party against either the Owner or
Construction Manager.
10.8 Unless otherwise provided in this Agreement, the Construction Manager and
the Construction Manager's consultants shall have no responsibility for the
discovery, presence, handling, removal or disposal of or exposure of persons to
hazardous materials in any form at the Project site, including but not limited
to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic
substances.
Insert A: For the purpose of this Contract Agreement the following shall apply:
Insert B: "Construction Manager" shall mean HCB
Contractors.
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. The document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
11
Insert C: "Contractor" or "Contractors" shall mean the persons or entities who
perform the Work under the Construction Contract Agreements and shall include
all trade Contractors, Subcontractors, Sub-Subcontractors material vendors, and
equipment suppliers.
Insert D: "Owner" shall mean Progressive Casualty
Insurance Company.
Insert E: "Architect" shall mean Herman Gibans Fodor,
Inc.
Insert F: As Construction Manager, HCB Contractors will hold all the contracts
with the Contractors.
ARTICLE 11
INSURANCE
11.1 CONSTRUCTION MANAGER'S LIABILITY
INSURANCE
11.1.1 The Construction Manager 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 Construction Manager from
claims set forth below which may arise out of or result from the Construction
Manager's operations under this Agreement and for which the Construction Manager
may be legally liable.
.1 claims under workers compensation, disability benefit and other
similar employee benefit acts which are applicable to the operations
to be performed;
.2 claims for damages because of bodily injury, occupational sickness or
disease, or death of the Construction Manager's employees;
.3 claims for damages because of bodily injury, sickness or disease, or
death of any person other than the Construction Manager's employees;
.4 claims for damages insured 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 Construction
Manager, 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.
11.1.2 The insurance required by Subparagraph 11.1.1 shall be written for not
less than limits of liability specified in Article 14 or required by law,
whichever coverage is greater. Coverages, whether written on an occurrence or
claims-made basis, shall be maintained without interruption from date of
commencement of operations under this Agreement until date of final payment and
termination of any coverage required to be maintained after final payment.
Insert G: See Attachment A for modifications to Article 11 Insurance.
ARTICLE 12
PAYMENTS TO THE CONSTRUCTION MANAGER
12.1 DIRECT PERSONNEL EXPENSE
12.1.1 Direct Personnel Expense is defined as the direct salaries of the
Construction Manager's personnel engaged on the Project and the portion of the
cost of their mandatory and customary contributions and benefits related
thereto, such as employment taxes and other statutory employee benefits,
insurance, sick leave, holidays, vacations, pensions and similar contributions
and benefits.
12.2 REIMBURSABLE EXPENSES
12.2.1 Reimbursable Expense are in addition to compensation for Basic and
Additional Services and include expenses incurred by the Construction Manager
and Construction Manager's employees and consultants in the interest of the
Project, as identified in the following Clauses.
12.2.1.1 Expense of transportation in connection with the Project, expenses in
connection with authorized out-of-town travel; long-distance communications; and
fees paid for securing approval of authorities having jurisdiction over the
Project.
12.2.1.2 Expense of reproductions, postage, express deliveries, electronic
facsimile transmissions and handling of Drawings, Specifications and other
documents.
12.2.1.3 If authorized in advance by the Owner, expense of overtime work
requiring higher than regular rates.
12.2.1.4 Expense of additional insurance coverage or limits requested by the
Owner in excess of that normally carried by the Construction Manager.
12.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
12.3.1
12.3.2 Payments for Basic Services
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. The document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
12
shall be made monthly and, where applicable, shall be in proportion to services
performed within each phase of service, on the basis set forth in Subparagraph
13.2.1.
12.3.3 If and to the extent that the time initially established in Subparagraph
13.5.1 of this Agreement is exceeded or extended through no fault of the
Construction Manager, compensation for any services rendered during the
additional period of time shall be computed in the manner set forth in
Subparagraph 13.3.1.
12.3.4 When compensation is based on a percentage of Construction Cost and any
portions of the Project are deleted or otherwise not constructed, compensation
for those portions of the Project shall be payable to the extent services are
performed on those portions, in accordance with Subparagraph 13.2.1, based on
(1) the lowest bona fide bids or negotiated proposals, or (2) if no such bids or
proposals are received, the latest approved estimate of such portions of the
Project.
12.4 PAYMENTS ON ACCOUNT OF ADDITIONAL
SERVICES AND REIMBURSABLE
EXPENSES
12.4.1 Payments on account of the Construction Manager's Additional Services and
for Reimbursable Expenses shall be made monthly upon presentation of the
Construction Manager's statement of services rendered or expenses incurred.
12.5 PAYMENTS WITHHELD
12.5.1 No deductions shall be made from the Construction Manager's compensation
on account of penalty, liquidated damages or other sums withheld from payments
to Contractors, or on account of the cost of changes in Work other than those
for which the Construction Manager has been found to be liable.
12.6 CONSTRUCTION MANAGER'S
ACCOUNTING RECORDS
12.6.1 Records of Reimbursable Expenses and expenses pertaining to Additional
Services and services performed on the basis of a multiple of Direct Personnel
Expense shall be available to the Owner or the Owner's authorized representative
at mutually convenient times.
ARTICLE 13
BASIS OF COMPENSATION
The Owner shall compensate the Construction Manager as follows:
13.1 AN INITIAL PAYMENT of ZERO Dollars ($ 0.00) shall be made upon execution of
this Agreement and credited to the Owner's account at final payment.
13.2 BASIC COMPENSATION
13.2.1 FOR BASIC SERVICES, as described in Article 2, and any other services
included in Article 14 as part of Basic Services, Basic Compensation shall be
computed as follows:
For Pre-Construction Phase Services:
(Insert basis of compensation, including stipulated sums, multiples or
percentages.)
The Construction Manager shall be reimbursed for the actual cost of services he
performs during the pre-construction phase. Actual cost shall mean to include
salaries and burdens for all personnel while working on the project during
pre-construction, reproduction costs, expenses for traveling in conjunction with
this project, etc. The Construction Manager shall not bill for a fee for the
pre-construction phase.
For Construction Phase Services:
(Insert basis of compensation, including stipulated sums, multiples or
percentages.)
The Construction Manager's General Conditions Cost is considered a Cost of the
Work and is therefore reimbursable during this phase of Work. The Construction
Manager's Fee for the Construction Phase is Three hundred fifty one thousand one
hundred seventy seven and 00/100 Dollars ($351,177.00), which is a Lump Sum
Amount and is payable to the Construction Manager in equal installments over
this Phase. No retainage shall be held from any Sums due the Construction
Manager.
13.3 COMPENSATION FOR ADDITIONAL SERVICES
13.3.1 FOR ADDITIONAL SERVICES OF THE CONSTRUCTION MANAGER, as described in
Article 3, and any other services included in Article 14 as Additional Services,
compensation shall be computed as follows: The reimbursable costs associated
with
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. The document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
13
this paragraph, 13.3.1. shall be negotiated with the Owner prior to any
expenditures of same.
(Insert basis of compensation, including rates and/or multiples of Direct
Personnel Expense for Principals and employees, and identify Principals and
classify employees, if required. Identify specific services to which particular
methods of compensation apply, if necessary.)
13A REIMBURSABLE EXPENSES
13A.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph 12.2, and any other
items included in Article 14 as Reimbursable Expenses, a multiple of one (1.00)
times the expenses incurred by the Construction Manager and the Construction
Manager's employees and consultants in the interest of the Project. The
multiplier enumerated in this paragraph pertains to pre-construction services
only.
13.5 ADDITIONAL PROVISIONS
13.5.1 IF THE BASIC SERVICES covered by this Agreement have not been completed
within eighteen (18) months of the date hereof, through no fault of the
Construction Manager, extension of the Construction Manager's services beyond
that time shall be compensated as provided in Subparagraphs 12.3.3 and 13.3.1.
13.5.2 Payments are due and payable Fifteen (15) days from the date of the
Construction Manager's invoice. Amounts unpaid Thirty (30) days after the
invoice date shall bear interest at the rate entered below, or in the absence
thereof at the legal rate prevailing from time to time at the principal place of
business of the Construction Manager.
(Insert rate of interest agreed upon.)
Eight Percent (8%)
(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
Construction Manager's principal places of business, the location of the Project
and elsewhere may affect the validity of this provision. Specific legal advice
should be obtained with respect to deletions or modifications, and also
regarding requirements such as written disclosures or waivers.)
13.5.3 The rates and multiples set forth for Additional Services shall be
annually adjusted in accordance with normal salary review practices of the
Construction Manager.
ARTICLE 14
OTHER CONDITIONS OR SERVICES
(Insert descriptions of other services, identify Additional Services included
within Basic Compensation and modifications to the payment and compensation
terms included in this Agreement.)
14.1 LIMITS ON INSURANCE
The insurance required by Article 11 shall be written for not less than the
following limits, or greater if required by law:
(Insert the specific dollar amounts for the appropriate insurance limits of
liability.)
General Liability - $2,000,000.00; Automobile Liability - $1,000,000.00;
Umbrella Coverage - $15,000,000.00; Workman's Compensation Insurance -
Statutory; Employer's Liability - $1,000,000.00.
This Agreement entered into as of the day and year first written above.
OWNER CONSTRUCTION MANAGER
/s/ Charles B. Chokel /s/ C. Samuel Ellison
- -------------------------------- ---------------------------------
(Signature) (Signature)
Charles B. Chokel, Treasurer C. Samuel Ellison, Vice-President
(Printed name and title) (Printed name and title)
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. The document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
14
Exhibit "A" To The Contract between
Progressive Casualty Insurance Co. (the Owner)
and
HCB Contractors (the Construction Manager)
August 20, 1997
This Exhibit shall replace Article 8, Arbitration, of the Standard form of
Agreement Between Owner and Construction Manager where the Construction Manager
is NOT a Constructor, AIA Document B801/Cma, 1992 Edition.
Article 8 - DISPUTE RESOLUTION. Any dispute arising out of or relating to
this Agreement shall be resolved in accordance with the procedures
specified in this Article 8, which shall be the sole and exclusive
procedure for the resolution of any such dispute.
8.1 - NEGOTIATION BETWEEN EXECUTIVES. The parties shall attempt in good
faith to resolve any dispute arising out of or relating to this
Agreement promptly by direct negotiation between executives who have
authority to settle the controversy and who are at a higher level of
management than the persons with direct responsibility for
administration of this Agreement. Any party may give the other party
written notice of any dispute not resolved in the normal course of
business. Within fifteen (15) days after delivery of the notice, the
receiving party shall submit to the other a written response. The
notice and the response shall include (a) a statement of each party's
position and a summary of arguments supporting that position, and (b)
the name and title of the executive who.will represent that party and
of any other person who will accompany the executive. Within thirty
(30) days after the delivery of the disputing party's notice, the
executives of both parties shall meet at a mutually acceptable time
and place, and thereafter as often as they reasonably deem necessary,
to attempt to resolve the dispute. All reasonable requests for
information made by one party to the other will be honored. All
negotiations pursuant to this clause are confidential and shall be
treated as compromise and settlement negotiations for purposes of
applicable rules of evidence.
8.2 - MEDIATION WITH DESIGNATED NEUTRAL. If the dispute has not been
resolved by negotiation within forty-five (45) days of the disputing
party's notice, or if the parties fail to meet within twenty (20)
days, the parties shall endeavor to settle the dispute by mediation
using a mediator and mediation mutually agreeable to the parties. In
the event that the parties are unable or unwilling to agree on a
mediator or the mediation procedure to employ, then the parties shall
endeavor to settle the dispute by mediation under the then current
American Arbitration Association Commercial Mediation Rules. The cost
of the mediators s services incurred in conjunction with any mediation
conducted under this Article 8 shall be shared equally by the parties.
Page 1
15
Exhibit `A' continued
August 20, 1997
8.3 - If the dispute has not been resolved by non-binding means as
provided herein within ninety (90) days of the initiation of such
procedure, either party may initiate litigation upon ten (10) days
written notice to the other party; provided, however, that if one
party has requested the other to participate in a non-binding
procedure and the other has failed to participate, the requesting
party may initiate litigation before the expiration of the above
period.
8.4 - All applicable statutes of limitation and defenses upon the passage
of time shall be tolled while the procedures specified in this Article
8 are pending. The parties will take such action, if any, required to
effectuate such tolling.
8.5 - Each party is required to continue to perform its obligations under
this contract pending final resolution of any dispute arising out of
or related to this Agreements unless to do so would be impossible or
impracticable under the circumstances.
Page 2
16
ATTACHMENT A
The Insurance section of the Contract and/or General Conditions is herewith
modified by the following:
INSURANCE
---------
11.1 HCB CONTRACTOR'S LIABILITY INSURANCE
------------------------------------
11.1.1 The Construction Manager 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 him from
claims set forth below which may arise out of or result from the
Construction Manager's operations under the contract, whether such
operations be by himself or by any Subcontractor or by anyone directly
or indirectly employed by any of them, or by anyone for whose acts any
of them may be liable to cover:
A. Workers Compensation Insurance insuring the Construction
Manager's full liability under the Workers Compensation and
Occupational Disease Laws of the State where the Work is
performed and Employer's Liability with limits of liability of:
1. $500,000. Each accident for bodily injury by accident.
2. $500,000. Each employee for bodily injury by disease,
subject to a policy limit of $500,000 for bodily injury
by disease.
B. Commercial liability insurance. Coverage shall be on an
"occurrence" basis and shall insure Contractor for Work
performed under the contract against:
1. Claims for damages because of bodily injury, sickness or
disease, or death of any person other than his
employees;
2. Claims for damages insured by usual personal injury
liability coverage which are sustained (1) by any person
as a result of any offense directly or indirectly
related to the employment of such person by the
Contractor or (2) by any other person;
3. Claims for damages, other than to the Work itself,
because of injury to or destruction of tangible
property, including loss of use resulting therefrom; and
4. The Commercial Liability policy shall contain the
Personal Injury and Broad Form Property Damage
Endorsements modified as set forth below, and the policy
shall not contain any Property Damage Liability
exclusions pertaining to loss by explosion, collapse or
underground damage. The policy shall include coverage
for:
-1A-
17
ATTACHMENT A
a. Completed Operations Liability. With respect to
Completed Operations Liability, when the entire
Work has been determined complete by the
Architect and Construction Manager and accepted
by the Owner, Construction Manager agrees to
furnish evidence of such insurance coverage for
twenty-four (24) months following date of
acceptance by the Owner.
b. Construction Manager's Protective Liability to
cover Construction Manager's Liability arising
out of Work performed by its Subcontractors.
c. Blanket Contractual Liability, including
insurance for the Indemnification Agreement as
set forth in the applicable Article.
d. Personal Injury Liability with Exclusions (a) 4
contractual deleted.
e. Broad Form Property Damage extended to apply to
Completed Operations.
f. Limits of Liability shall not be less than:
Bodily Injury, Personal Injury and Property
Damage combined.
$1,000,000. Each occurrence
$1,000,000. Aggregate
C. Claims for damages because of bodily injury or death of any
person or property damage arising out of the ownership,
maintenance or use of any motor vehicle.
1. Coverage shall be for all owned, hired and non-owned
vehicles.
2. Limits of liability shall not be less than: Bodily
injury and property damage combined,
$1,000,000. Each occurrence.
D. "Umbrella" Excess Liability Policy shall insure the Construction
Manager for an amount of not less than $20,000,000 combined
single limit Bodily Injury/Property Damage excess of Primary
Employers' Liability and Commercial General Liability and
Automobile insurance as set forth in paragraphs 11.1.1A, 11.1.1B
and 11.1.1C.
11.1.2 The Insurance required by Subparagraph 11.1.1 shall be written for not
less than limits of liability required by law.
-2A-
18
ATTACHMENT A
11.1.3 Certificates of Insurance acceptable to the Owner shall be filed with
the Owner prior to commencement of the Work and during the term of the
Project. These Certificates shall contain a provision that coverage
afforded under the policies will not be canceled until at least 30 days
prior written notice has been given to the Owner.
11.2 OWNER'S LIABILITY INSURANCE
---------------------------
11.2.1 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 the-Contract. The Construction Manager
shall not be responsible for purchasing and maintaining this optional
Owner's liability insurance unless specifically required by the Contract
Documents.
11.2.2 Subject to the Construction Manager providing insurance as described in
Subparagraphs 11.1.1.B and 11.1.1.D, the Owner shall be included as an
additional insured.
11.3 PROPERTY INSURANCE
-------------------
11.3.1 Prior to commencement of the Work, the Owner shall purchase from and
maintain in a company or companies lawfully authorized to do business in
the jurisdiction in which the Project is located Property Insurance upon
the entire Work, (1) at the site, (2) portions of the Work stored off
the site, or (3) in transit, to the full insurable value thereof.
This insurance shall include the interests of the Owner, the
Construction Manager and its Subcontractors and Sub-subcontractors in
the Work and shall insure against the perils of Fire and Extended
Coverage and shall include "All Risk" insurance for physical loss or
damage including without duplication of coverage, Collapse, Theft,
Vandalism, Malicious Mischief, Debris Removal, Flood, Earthquake, Land
Movement.
Such insurance shall be in force until substantial completion and
acceptance of the Work by Owner, and the insurable interests of the
Construction Manager and Subcontractors has ceased, unless alternate and
equivalent coverage, as described in paragraph 11.6, is provided by
Owner, for the benefit of Owner, Construction Manager and all tiers of
Subcontractors. Coverage will include all materials that are intended
for specific installation in the Project while such materials are
located at the project site and while in transit or temporarily located
away from the Project Site for the purpose of repair, adjustment or
storage at the risk of one of the insured parties.
This insurance will not include any tools or clothing of workmen or any
tools, equipment, protective fencing, scaffolding, temporary structures,
temporary forms
-3A-
19
ATTACHMENT A
and equipment owned, rented or used by the Construction Manager or any
Subcontractor and used in the performance of the Work, unless the value
of such items is included in the cost of the Work.
If it is the Owners responsibility to purchase the insurance required
by paragraph 11.3 and the Owner does not intend to purchase such
insurance for the full insurable value of the entire Work, he shall
inform the Construction Manager in writing prior to commencement of the
Work. The Construction Manager may then effect insurance which will
protect the interest of himself and his Subcontractors in the Work, and
by appropriate Change Order the cost thereof shall be charged to the
Owner. If the Construction Manager is damaged by failure of the Owner
to purchase or maintain such insurance and to so notify the
Construction Manager, then the Owner shall bear all reasonable costs
properly attributable thereto.
11.3.1.1 Should Owner elect to provide any materials, furniture, fixtures and/or
equipment, to be installed by Construction Manager, its Subcontractors
or Sub- subcontractors, the cost of which is not included in the
Contract Price, the value of such materials, furniture, fixtures and/or
equipment will be included in the amount of Builder's Risk limit of
liability if the Policy is to be purchased and maintained by the Owner.
If the Policy is to be purchased by the Construction Manager, Owner
shall notify Construction Manager in writing prior to their delivery at
the job site, the value of such materials, furniture, fixtures and/or
equipment, and same will be included in the amount of Builder's Risk
limit of liability as shown on the policy to be purchased and
maintained by the Construction Manager. Premiums for such insurance
provided under this subparagraph shall be borne by the Owner.
11.3.1.2 Should Owner elect to have separate Contractor or Contractors install
Owner furnished materials, furniture, fixtures and/or equipment, the
value of same plus installation will be covered under a policy written
for this project, and such insurance policy shall contain an
endorsement waiving the carrier's right of subrogation against all
parties to this contract, including but not limited to, Owner,
Construction Manager, its Subcontractors and Sub-subcontractors, in
accordance with Subparagraph 11.3.5 herein. (This Insurance is to cover
the insurable value of all separate contracts not included in the
property insurance policy(s) purchased in accordance with Article
11.3.1 herein.) The Owner shall file a copy of the Waiver of
Subrogation Endorsement, as set forth in this Subparagraph 11.3.1.2,
with the Construction Manager before an exposure to loss may occur.
Owner, their separate contractor, and all sub-tier subcontractors and
suppliers will be required to provide appropriate indemnification,
insurance, and waivers of subrogation as may be required by
Construction Manager.
11.3.2 The Owner shall purchase and maintain such Boiler and Machinery
(Heating, Ventilation, Air Conditioning Equipment and other Machinery)
insurance as may be required by the Contract Documents or by law. This
insurance shall include the interests of the Owner, the Construction
Manager, Subcontractors and Sub- subcontractors in the Work, and the
Owner and Construction Manager shall be named insureds.
-4A-
20
ATTACHMENT A
11.3.3 Any loss insured under Subparagraph 11.3.1 is to be adjusted by the
Owner and or Construction Manager and made payable to the Owner or
Construction Manager, as trustee for the insureds, subject to the
requirements of any applicable mortgagee clause. The Construction
Manager shall pay each Subcontractor a just share of any insurance
monies received by the Construction Manager, and by appropriate
agreement, written where legally required for validity, shall require
each Subcontractor to make payments to his Subcontractors in similar
manner.
11.3.4 Not withstanding any other contract provisions, any deductibles shall
be the responsibility of the Owner.
11.3.4.1 Before an exposure to loss may occur, the Owner or Construction Manager
as appropriate shall file with the other party a copy of each policy
that includes insurance coverage required by this Paragraph 11.3. 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 30 days' prior written notice has been given to
the Construction Manager.
11.3.5 The Owner and Construction Manager waive all rights against (1) each
other and the Subcontractors, Sub-subcontractors, agents and employees
each of the other, and separate contractors, if any, and their
Subcontractors, Sub-subcontractors, agents and employees, for damages
caused by fire or other perils to the extent covered by insurance
obtained pursuant to Paragraph 11.3 or any other property insurance
applicable to the site where the Work is performed, except such rights
as they may have to the proceeds of such insurance held by the Owner as
the trustee. The Owner or the Construction Manager as appropriate,
shall require of the separate Contractors, Subcontractors and
Sub-subcontractors by appropriate agreements, written where legally
required for validity, similar waivers each in favor of all other
parties enumerated in this Subparagraph 11.3.5. 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.
11.3.6 The Owner as trustee shall provide information or otherwise comply with
reasonable requests in writing by any party in interest regarding an
accounting of the payment and distribution of insurance proceeds.
11.3.7 If after such loss no other special agreement is made, replacement of
damaged Work shall be covered by an appropriate Change Order.
11.3.8 If the Owner finds it necessary to occupy or use a portion or portions
of the Work prior to Substantial Completion thereof, such occupancy
shall not commence prior to the time mutually agreed to by the Owner
and Construction Manager and to which the insurance company or
companies providing the property insurance have
-5A-
21
ATTACHMENT A
consented by endorsement to the policy or policies. This insurance
shall not be canceled or lapsed on account of such partial occupancy.
Consent of the Construction Manager and of the insurance company or
companies to such occupancy or use shall not be unreasonably withheld.
11.3.8.1 Upon occupation of a portion of the Work by Owner or any tenant of
Owner, Owner shall indemnify and hold harmless the Construction
Manager, its Subcontractors and Sub-subcontractors for any claims for
bodily injury and/or property damage resulting from such occupancy, and
not due to the negligence of the Construction Manager, its
Subcontractors or Sub-subcontractors.
11.3.9 Owner and Construction Manager shall define any Risks other than those
described in Subparagraph 11.3.1, 11.3.1.1, 11.3.1.2 and 11.3.2 or
other special hazards, and shall, if possible, include such coverage in
the Property Insurance Policy provided per Subparagraph 11.3.1, or
purchase and maintain available insurance. Such insurance shall
include, but not be limited to Ocean Open Cargo coverage. All such
policies shall insure the interests of the Owner, Construction Manager
and its Subcontractors in the Work, and shall insure for physical loss
or damage.
11.4 LOSS OF USE INSURANCE
---------------------
11.4.1 The Owner, at his option, may purchase and maintain, such insurance as
will insure Owner against loss of use of his property including, but
not limited to, loss of income, additional interim interest expense,
insurance premiums, or expenses pursuant to any agreement with tenants.
The Owner waives all rights of action against the Construction Manager
for loss of use of his property including consequential losses due to
fire or other hazards however caused, to the extent covered by
insurance under this Paragraph 11.4.
11.5 SUBCONTRACTORS INSURANCE
------------------------
11.5.1 The following forms of insurance are required to be furnished by all
Subcontractors:
A. WORKERS COMPENSATION INSURANCE - to cover full liability under
Workers Compensation Laws of the State where the Work is
performed and Employer's Liability coverage with limits of
liability of:
$500,000. Each accident for bodily injury by accident
$500,000. Each employee for bodily injury by disease, subject
to a policy limit of $500,000 for bodily injury by disease.
B. COMMERCIAL GENERAL LIABILITY INSURANCE. Coverage shall be on
an "Occurrence" basis and shall insure Subcontractor for Work
performed under the Contract against claims for Bodily Injury,
including death of any
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22
ATTACHMENT A
person other than Subcontractor's employees, and Property Damage for
injury to or destruction of tangible property, other than the Work
itself. The policy shall contain the Personal Injury and Broad Form
Property Damage Endorsements modified as set forth below, and the
policy shall not contain any Property Damage Liability exclusions
pertaining to loss by Explosion, Collapse or Underground Damage. The
policy shall include coverage for:
1. Completed Operations Liability
2. Construction Manager's Protective Liability to cover
Subcontractor's liability arising out of Work performed by its
Subcontractors.
3. Blanket Contractual Liability insuring the Indemnification
Agreement contained in the Subcontract.
4. Personal Injury Liability with exclusion (a) 4 contractual
deleted.
5. Broad Form Property Damage Extended to apply to Completed
Operations.
6. Automobile Liability insuring Subcontractor for operations of
all owned, hired and non-owned vehicles.
7. LIMITS OF LIABILITY shall not be less than:
a. Bodily Injury, Personal Injury and Property Damage
combined, except Automobile
$1,000,000. Each Occurrence
$1,000,000. Aggregate
b. Bodily Injury and Property Damage combined,
Automobile
$1,000,000. Each Occurrence
However, Construction Manager has the option to require
modified Limits of Liability from designated Subcontractors.
C. Certificates of Insurance shall be filed with the Construction
Manager prior to commencement of Subcontractor's work.
11.6 TRANSITION INSURANCE
--------------------
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23
ATTACHMENT A
11.6.1 When Owner, Construction Manager and Architect have certified that the
Work is substantially complete, Owner, shall purchase and maintain such
insurance as will insure him against loss of the Work due to fire or
other hazards, however caused.
11.6.2 Until such time as Construction Manager has received final payment from
Owner, said insurance purchased and maintained by Owner under
subparagraph 11.6.1, shall insure the interests of the Construction
Manager, its Subcontractors and Sub- subcontractors. The carrier
providing this insurance shall endorse the policy waiving the carrier's
right of recovery from the Owner, the Construction Manager, its
Subcontractors and Sub-subcontractors until such time as the
Construction Manager and all Subcontractors have been paid in full.
11.7 EXPANSION/RENOVATION WORK ON EXISTING STRUCTURES
------------------------------------------------
11.7.1 In recognition of any Work to be performed by Construction Manager, its
Subcontractors and Sub-subcontractors within or adjacent to existing
structure(s) for the purpose of renovation and/or expansion, Owner
shall waive any right of subrogation and cause all existing permanent
property insurance policies covering said structure(s) to be endorsed
as follows:
"It is understood and agreed that the policy is hereby amended
to include as additional insureds Construction Manager, its
Subcontractors and Sub- subcontractors, during the term of
construction with respect to renovation and/or expansion of
any property insured under this policy. It is further
understood and agreed that this Company waives all rights it
may have acquired by payment of loss hereunder against
Construction Manager, and all tiers of Subcontractors, their
agents and employees."
11.7.2 This paragraph 11.7.1 shall continue in full force and effect until all
Work to be performed by the Construction Manager and all tiers of
Subcontractors is determined to be one hundred (100%) complete,
accepted by the property owner, and the Construction Manager has been
paid in full for Work performed under The Construction Agreement.
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24
[LOGO]
GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCTION MANAGER-ADVISER EDITION
AIA DOCUMENT A201/CMA - ELECTRONIC FORMAT
- -------------------------------------------------------------------------------
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY IS
ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION OF
THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.
Copyright 1975, 1980, copyright 1992 by The American Institute of Architects,
1735 New York Avenue N.W., Washington D.C. 20006-5292. Reproduction of the
material herein or substantial quotation of its provisions without written
permission of the AIA violates the copyright laws of the United States and will
be subject to legal prosecution.
- -------------------------------------------------------------------------------
TABLE OF ARTICLES
1. GENERAL PROVISIONS
2. OWNER
3. CONTRACTOR
4. ADMINISTRATION OF THE CONTRACT
5. SUBCONTRACTORS
6. CONSTRUCTION BY OWNER OR BY
OTHER CONTRACTORS
7. CHANGES IN THE WORK
8. TIME
9. PAYMENTS AND COMPLETION
10. PROTECTION OF PERSONS AND
PROPERTY
11. INSURANCE AND BONDS
12. UNCOVERING AND CORRECTION OF
WORK
13. MISCELLANEOUS PROVISIONS
14. TERMINATION OR SUSPENSION
OF THE CONTRACT
- -------------------------------------------------------------------------------
AIA DOCUMENT B801/Cma - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. This document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
25
INDEX
Acceptance of Nonconforming Work 9.6.6, 9.9.3, 12.3
Acceptance of Work 9.6.6. 9.8.2. 9.9.3, 9.10.1, 9.10.3
Access to Work 3.16, 6.2.1, 12.1
Accident Prevention 4.6.6, 10
Acts and Omissions 3.2.1, 3.2.2, 3.3.2, 3.12.8, 3.18, 4.6.6,
4.6.2., 4.7.9, 8.3.1, 10.1.4, 10.2.5, 13.4.2, 13.7, 14.1
Addenda 1.1.1, 3.11
Additional Costs, Claims for 4.7.6, 4.7.7, 4.7.9, 6.1.1, 10.3
Additional Inspections and Testing 4.6.10, 9.8.2, 12.2.1, 13.5
Additional Time, Claims for 4.7.6, 4.7.8, 4.7.9, 8.3.2, 10.3
ADMINISTRATION OF THE CONTRACT 3.3.3, 4, 9.4, 9.5
Advertisement or Invitation to Bid 1.1.1
Aesthetic Effect 4.6.20, 4.9.1
Allowances 3.8
All-risk Insurance 11.3.1.1
Applications for Payment 4.6.9, 7.3.7, 9.2, 9.3, 9.4, 9.5.1,
9.6.3, 9.8.3, 9.10.1, 9.10.3, 9.10.4, 11.1.3, 14.2.4
Approvals 2.4, 3.3.3, 3.5, 3.10.3, 3.12.4 through 3.12.8,
3.18.3, 4.6.12, 9.3.2, 11.3.1.4, 13.4.2, 13.5
Arbitration 4.5, 4.7.4, 4.9,
8.3.1, 10.1.2, 11.3.9, 11.3.10
Architect 4.1
Architect, and Certificate of Payment 4.6.9
Architect, Definition of 4.1.1
Architect, Extent of Authority 2.4.1, 3.12.6, 4.6.6, 4.7.2,
5.2, 6.3, 7.1.2, 7.2.1, 7.4, 9.2, 9.3.1,
9.4, 9.5, 9.6.3, 9.8.2, 9.8.3, 9.10.1,
9.10.3, 12.1, 12.2.1, 13.5.1. 13.5.2,
14.2.2, 14.2.4
Architect, Limitations of Authority and Responsibility 3.3.3,
3.12.8, 3.12.11, 4.6.5, 4.6.6, 4.6.10, 4.6.12,
4.6.17,4.6.19,4.6.20,4.7.2,5.2.1,7.4,9.6.4
Architect's Additional Services and Expenses 2.4, 9.8.2
11.3.1.1, 12.2.1, 12.2.4, 13.5.2, 13.5.3, 14.2.4
Architect's Administration
of the Contract 4.6, 4.7.6, 4.7.7, 4.8, 9.4, 9.5
Architect's Approvals 2.4.1,3.5.1. 3.10.3,
3.12.6, 3.12.8, 3.18.3, 4.6.12
Architect's Authority to Reject Work 3.5.1, 4.6.10, 12.1.2, 12.2.1
Architect's Copyright 1.3
Architect's Decisions 4.6.10, 4.6.12, 4.6.18, 4.6.19,
4.6.20, 4.7.2, 4.7.6,
4.8.1, 4.8.4,4.9, 6.3, 8.1.3,8.3.1, 9.2,
9.4, 9.5.1, 9.8.2, 9.9.1, 10.1.2, 13.5.2,
14.2.2, 14.2.4
Architect's Inspections 4.6.5, 4.6.16, 4.7.6, 9.4.3,
9.8.2, 9.9.2, 9.10.1, 13.5
Architect's Instructions 4.6.10, 4.6.12, 7.4.1, 9.4.3, 12.1, 13.5.2
Architect's Interpretations 4.6.18, 4.6.19, 4.7.7
Architect's On-Site Observations 4.6.5, 4.6.9, 4.7.6,
9.4.3, 9.5.1, 9.10.1, 13.5
Architect's Project Representative 4.6.17
Architect's Relationship with Contractor 1.1.2, 3.2.1, 3.2.2, 3.3.3,
3.5.1, 3.7.3, 3.11, 3.12.8, 3.12.11, 3.16,
3.18, 4.6.6, 4.6.7, 4.6.10, 4.6.12,
4.6.19, 5.2, 6.2.2, 7.3.4, 9.8.2, 10.1.2,
10.1.4, 10.1.5,
11.3.7, 12.1, 13.5
Architect's Relationship with Construction Manager 1.1.2, 2.4.1,
3.12.6, 3.12.8, 4.6.8, 4.6.10,
4.6.14, 4.6.16, 4.6.18, 6.3.1, 9.7.1,
9.8, 9.9.1, 9.9.2, 9.10.1, 9.10.2,
9.10.3, 12.2.4, 13.5.1,
13.5.2, 13.5.4, 14.2.4
Architect's Relationship with Subcontractors 1.1.2, 4.6.6, 4.6.7,
4.6.10, 5.3.1, 9.6.3,9.6.4, 11.3.7
Architect's Representations 9.4.3, 9.5.1, 9.10.1
Architect's Site Visits 4.6.5, 4.6.9, 4.6.16, 4.7.6, 9.4.3,
9.5.1, 9.8.2, 9.9.2, 9.10.1, 13.5
Asbestos 10.1.2, 10.1.3, 10.1.4
Attorneys' Fees 3.18.1, 9.10.2, 10.1.4
Award of Separate Contracts 6.1.1
Award of Subcontracts and Other Contracts for
Portions of the Work 5.2
Basic Definitions 1.1
Bidding Requirements 1.1.1, 1.1.7, 5.2.1, 11.4.1
Boiler and Machinery Insurance 11.3.2
Bonds, Lien 9.10.2
Bonds, Performance, and Payment 7.3.6.4, 9.10.3, 11.3.9, 11.4
Building Permit 2.2.3, 3.7.1
Capitalization 1.4
Certificate of Substantial Completion 9.8.2
Certificates for Payment 4.6.8, 4.6.9, 9.3.3, 9.4, 9.5, 9.6.1,
9.6.6, 9.7.1, 9.8.3, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4
Certificates of Inspection, Testing or Approval 3.12.11, 13.5.4
Certificates of Insurance 9.3.2, 9.10.2, 11.1.3
Change Orders 1.1.1, 2.4.1, 3.8.2.4, 3.11.1, 4.6.13, 4.7.3,
5.2.3, 7.1, 7.2, 7.3.2, 8.3.1, 9.3.1.1, 9.10.3, 11.3.1.2,
11.3.4, 11.3.9, 12.1.2
Change Orders, Definition of 7.2.1
Changes 7.1
CHANGES IN THE WORK 3.11, 4.6.13, 4.6.14, 7,
8.3.1, 9.3.1.1, 10.1.3
Claim, Definition of 4.7.1
Claims and Disputes 4.7, 4.8, 4.9, 6.2.5, 8.3.2,
9.3.1.2, 9.3.3, 9.10.4, 10.1.4
Claims and Timely Assertion of Claims 4.9.6
Claims for Additional Cost 4.7.6, 4.7.7, 4.7.9, 6.1.1, 10.3
Claims for Additional Time 4.6.9, 4.7.6, 4.7.8, 4.7.9, 8.3.2
Claims for Concealed or Unknown Conditions 4.7.6
Claims for Damages 3.18, 4.7.9, 6.1.1, 6.2.5,
8.3.2, 9.5.1.2, 10.1.4
Claims Subject to Arbitration 4.7.2, 4.8.4, 4.6.1
Cleaning Up 3.15, 6.3
Commencement of Statutory Limitation Period 13.7
Commencement of the Work, Conditions Relating to 2.12 , 2.2.1,
3.2.1, 3.2.2, 3.7.1, 3.10.1, 3.12.6, 4.7.7, 5.2.1,
6.2.2, 8.1.2, 8.2.2, 9.2, 11.1.3, 11.3.6, 11.4.1
Commencement of the Work, Definition of 8.1.2
Communications, Owner to Architect 2.2.6
Communications, Owner to Construction Manager 2.2.6
Communications Facilitating Contract Administration , 4.6.7, 5.2.1
Completion, Conditions Relating to 3.11, 3.15, 4.6.5,
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AIA DOCUMENT B801/Cma - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. This document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
26
4.6.16, 4.7.2, 9.4.2, 9.8, 9.9.1,
9.10, 11.3.5, 12.2.2, 13.7.1
COMPLETION, PAYMENTS AND 9
Completion, Substantial 4.6.16, 4.7.5.2, 8.1.1,
8.1.3, 8.2.3, 9.8, 9.9.1, 12.2.2, 13.7
Compliance with Laws 1.3, 3.6, 3.7, 3.13, 4.1.1, 10.2.2,
11.1, 11.3, 13.1, 13.5.1, 13.5.2, 13.6, 14.1.1, 14.2.1.3
Concealed or Unknown Conditions 4.7.6
Conditions of the Contract 1.1.1, 1.1.7, 6.1.1
Consent, Written 1.3.1, 3.12.8, 3.14.2, 4.7.4. 4.9.5, 9.3.2,
9.8.2, 9.9.1, 9.10.2, 9.10.3, 10.12, 10.1.3, 11.3.1,
11.3.1.4, 11.3.11, 13.2, 13.4.2
CONSTRUCTION BY OWNER OR BY OTHER
CONTRACTORS 1.1.4, 6
Construction Change Directive, Definition of 7.3.1
Construction Change Directives 1.1.1, 4.6.13, 7.1, 7.3, 9.3.1.1
Construction Manager 4.2
Construction Manager, and Building Permits 2.2.3
Construction Manager, Claims against 4.7.2
Construction Manager, Communications through 4.6.7
Construction Manager, and Construction Schedule 3.10.1, 3.10.2
Construction Manager, Definition of 4.2.1
Construction Manager, and Documents and Samples at the
Site 3.11.1
Construction Manager, Extent of Authority 3.12.6, 3.12.8, 4.3,
4.6.3, 4.6.11, 7.1.2, 7.2.1, 7.3.1, 8.3.1, 9.2.1, 9.3.1, 9.4.1,
9.4.3, 9.8.2, 9.8.3, 9.9.1, 12.1, 12.2.1, 12.2.4, 14.2.2, 14.2.4
Construction Manager, Limitations of Authority
and Responsibility 4.6.6, 4.6.10, 13.4.2
Construction Manager, and Submittals 3.10.3
Construction Managers Additional Services
and Expenses 12.2.1, 12.2.4
Construction Managers Administration of the Contract 4.6, 9.4,
9.5
Construction Managers Approval 2.4.1, 3.10.3
Construction Managers Authority to Reject Work 4.6.10, 12.2.1
Construction Managers Decisions 7.3.6, 7.3.7, 7.3.8,
9.3.1, 9.4.1, 9.5.1
Construction Manager's Inspections 4.6.10, 9.4.3, 9.8.2, 9.9.2,
12.1.1
Construction Manager's On-Site Observations 9.5.1
Construction Manager's Relationship with Architect 1.1.2,
4.6.8, 4.6.10, 4.6.11, 4.6.14, 4.6.16, 4.6.18, 6.3.1, 9.2.1,
9.4.2, 9.4.3, 9.6.1, 9.6.3, 9.8.2, 9.8.3, 9.9.1, 9.10.1, 9.10.2, 9.10.3,
11.1.3, 12.2.4, 13.5.1, 13.5.2, 13.5.4, 14.2.2, 14.2.4
Construction Manager's Relationship with Contractor 3.2.1, 3.2.2 3.3.1, 3.3.3, 3.5.1, 3.7.3,
3.10.1, 3.10.2, 3.10.3, 3.11.1, 3.12.5,
3.12.6, 3.12.8, 3.12.9, 3.12.10, 3.12.11,
3.13.2, 3.14.2, 3.15.2, 3.16.1, 3.17.1,
3.18.1, 3.18.3, 4.6.3, 4.6.4, 4.6.6,
4.6.11, 5.2, 6.2.1, 6.2.2, 7.1.2, 7.2.1, 7.3.4, 7.3.6, 7.3.9,
8.3.1, 9.2.1, 9.3.1, 9.4.1, 9.4.2, 9.4.3, 9.7.1, 9.8.2, 9.9.1, 9.10.1, 9.10.2,
9.10.3, 10.1.1, 10.1.2, 10.1.5, 10.2.6, 11.3.7, 12.1, 13.5.1, 13.5.2, 13.5.3, 13.5.4
Construction Manager's Relationship with Owner 2.2.3, 4.6.1,
4.6.2, 10.1.6
Construction Manager's Relationship with Other
Contractors and Owner's 4.6.3
Construction Managers Relationship with
Subcontractors 4.6.10, 5.3.1, 9.6.3, 9.6.4
Construction Managers Representations 9.4.3, 9.5.1
Construction Manager's Site Visits 9.4.4, 9.5.1
Construction Schedules, Contractor's 3.10, 4.6.3, 4.6.4
Contingent Assignment of Subcontracts 5.4
Continuing Contract Performance 4.7.4
Contract, Definition of 1.1.2
CONTRACT, TERMINATION OR
SUSPENSION OF THE 4.7.7, 5.4.1.1, 14
Contract Administration 3.3.3, 4, 9.4, 9.5
Contract Award and Execution, Conditions Relating to 3.7.1, 3.10,
5.2, 9.2, 11.1.3, 11.3.6, 11.4.1
Contract Documents, The 1.1, 1.2, 7
Contract Documents, Copies Furnished and Use of 1.3, 2.2.5, 5.3
Contract Documents, Definition of 1.1.1
Contract Performance During Arbitration 4.7.4, 4.9.3
Contract Sum 3.8, 4.7.6, 4.7.7, 4.8.4,
5.2.3, 7.2, 7.3, 9.1, 9.7, 11.3.1, 12.2.4, 12.3, 14.2.4
Contract Sum, Definition of 9.1.1
Contract Time 4.7.6, 4.7.8.1, 4.8.4,
7.2.1.3, 7.3, 8.2.1, 8.3.1, 9.7, 12.1.1
Contract Time, Definition of 8.1.1
CONTRACTOR 3
Contractor, Definition of 3.1.1, 6.1.2
Contractor's Bid 1.1.1
Contractor's Construction Schedules 3.10
Contractor's Employees 3.3.2, 3.4.2, 3.8.1,
3.9, 3.18, 4.6.6, 4.6.10, 8.1.2, 10.2, 10.3, 11.1.1, 14.2.1.1
Contractor's Liability Insurance 11.1, 11.3.1.5
Contractor's Relationship with Separate Contractors
and Owner's Forces 3.12.5, 3.14.2, 4.6.3, 4.6.7, 12.2.5
Contractor's Relationship with Subcontractors 1.2.4, 3.3.2,
3.18.1, 3.18.2, 5.2, 5.3, 5.4, 9.6.2, 11.3.7, 11.3.8, 14.2.1.2
Contractor's Relationship with the Architect 1.1.2, 3.2.1, 3.2.2, 3.3.3, 3.5.1,
3.7.3, 3.10.1, 3.10.3, 3.11.1, 3.12.6, 3.12.8,
3.12.9, 3.16.1, 3.18, 4.6.6, 4.6.7, 4.6.10, 4.6.12, 4.6.19, 5.2,
6.2.2, 7.3.4, 9.2, 9.3.1, 9.8.2, 9.10.3, 10.1.2, 10.1.5,
10.2.6, 11.3.7, 12.1, 13.5
Contractor's Relationship with the Construction
Manager 1.1.2, 3.2.1, 3.2.2, 3.3.1,
3.3.3, 3.5.1, 3.7.3, 3.7.4, 3.10.1,
3.10.2, 3.10.3, 3.11.1, 3.12.5, 3.12.6,
3.12.8, 3.12.9, 3.12.11, 3.13.2,
3.14.2, 3.15.2, 3.16.1, 3.17.1,
3.18.1, 3.18.3, 4.6.3,
4.6.4, 4.6.6, 5.2, 6.2.1, 6.2.2, 7.1.2,
7.2.1, 7.3.4, 7.3.6, 7.3.9, 8.3.1,
9.2.1, 9.3.1, 9.4.1, 9.4.2, 9.4.3,
9.7.1, 9.8.2, 9.9.1, 9.10.1, 9.10.2, 9.10.3,
10.1.1, 10.1.2, 10.1.5, 10.2.6, 11.3.7, 12.1,
13.5.1, 13.5.2, 13.5.3, 13.5.4
Contractor's Representations 1.2.2, 3.5.1, 3.12.7, 6.2.2, 8.2.1,
9.3.3
Contractor's Responsibility for Those
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AIA DOCUMENT B801/Cma - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. This document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
27
Performing 3.3.2, 3.18, 4.6.6, 10
Contractor's Review of Contract Documents 1.2.2, 3.2, 3.7.3
Contractor's Right to Stop the Work 9.7
Contractor's Right to Terminate the Contract 14.1
Contractor's Submittals 3.10, 3.11, 3.12, 4.6.12, 5.2.1, 5.2.3,
7.3.6, 9.2, 9.3.1, 9.8.2, 9.9.1, 9.10.2, 9.10.3, 10.1.2, 11.4.2
Contractor's Superintendent 3.9, 10.2.6
Contractor's Supervision and Construction Procedures 1.2.4, 3.3,
3.4, 4.6.6, 8.2.2, 8.2.3, 10
Contractual Liability Insurance 11.1.1.7, 11.2.1, 11.3.1.5
Coordination and Correlation 1.2.2, 1.2.4, 3.3.1, 3.10, 3.12.7,
62.1
Copies Furnished of Drawings and Specifications 1.3, 2.2.5, 3.11
Correction of Work 2.3, 2.4, 3.2.1, 4.6.1, 9.8.2, 9.9.1,
12.1.2, 12.2, 13.7.1.3
Cost, Definition of 7.3.6
Costs 2.4, 3.2.1, 3.7.4, 3.8.2, 3.15.2., 4.7.6, 4.7.7, 4.7.8.1, 5.2.3,
6.1.1, 6.2.3, 6.3.1, 7.3.3.3,
7.3.6, 7.3.7, 9.7, 9.8.2,
9.10.2, 11.3.1.2, 11.3.1.3, 11.3.4, 11.3.9,
12.1, 12.2.1, 12.2.4, 12.2.5, 13.5, 14
Cutting and Patching 3.14, 6.2.6
Damage to Construction of Owner or Separate
Contractors 3.14.2, 6.2.4, 9.5.1.5, 10.2.1.2,
10.2.5, 10.3, 11.1, 11.3, 12.2.5
Damage to the Work 3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.3, 11.3
Damages, Claims for 3.18, 4.6.9, 6.1.1, 6.2.5, 8.3.2, 9.5.1.2,
10.1.4
Damages for Delay 6.1.1, 8.3.3, 9.5.1.6, 9.7
Date of Commencement of the Work, Definition of 8.1.2
Date of Substantial Completion, Definition of 8.1.3
Day, Definition of 8.1.4
Decisions of the Architect 4.6, 4.7, 6.3, 8.1.3, 8.3.1,
9.2, 9.4, 9.5.1, 9.8.2, 9.9.1, 10.1.2, 13.5.2, 14.2.2, 14.2.4
Decisions of the Construction Manager 4.3, 7.3.6, 7.3.7, 7.3.8,
9.3.1, 9.4.1, 9.4.3, 9.5.1
Decisions to Withhold Certification 9.5, 9.7, 14.1.1.3
Defective or Nonconforming Work, Acceptance,
Rejection and Correction of 2.3, 2.4, 3.5.1, 4.6.1,
4.6.10, 4.7.5, 9.5, 9.8.2, 9.9.1, 10.2.5, 12, 13.7.1.3
Defective Work, Definition of 3.5.1
Definitions 1.1, 2.1.1, 3.1, 3.5.1, 3.12.1, 3.12.2, 3.12.3,
4.1.1, 4.2.1, 4.7.1, 5.1, 6.1.2, 7.2.1,
7.3.1, 7.3.6, 8.1, 9.1, 9.8.1
Delays and Extensions of Time 4.7.1, 4.7.8.1, 4.7.8.2,
6.1.1, 6.2.3, 7.2.1, 7.3.1.3, 7.3.4,
7.3.5, 7.3.8, 7.3.9, 8.1.1, 8.3, 10.3.1, 14.1.1.4
Disputes 4.7, 4.8, 4.9, 6.2.5, 6.3, 7.3.8, 9.3.1.2
Documents and Samples at the Site 3.11
Drawings, Definition of 1.1.5
Drawings and Specifications, Use and
Ownership of 1.1.1, 1.3, 2.2.5, 3.11, 5.3
Duty to Review Contract Documents
and Field Conditions 3.2
Effective Date of Insurance 8.2.2, 11.1.2
Emergencies 4.7.7, 10.3
Employees, Contractor's 3.3.2., 3.4.2, 3.8.1, 3.9,
3.18.1, 3.18.2, 4.6.6, 8.12, 10.2, 10.3, 11.1.1,
14.2.1.1
Equipment, Labor, Materials and 1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.12.2, 3.12.3,
3.12.7, 3.12.11, 3.13, 3.15.1, 4.6.12,
6.2.1, 7.3.6, 9.3.2, 9.3.3, 11.3, 12.2.4, 14.12, 14.2.1, 14.2.2
Execution and Progress of the Work 12.3, 3.4.1,
3.5.1, 4.6.5, 4.6.6, 4.7.4, 4.7.8, 6.2.2,
7.1.3, 8.2, 8.3, 9.5, 9.9.1, 10.2.3
Execution, Correlation and Intent of the
Contract Documents 1.2, 3.7.1
Extensions of Time 4.7.1, 4.7.8, 7.2.1.3, 8.3, 10.3.1
Failure of Payment by Contractor 9.5.1.3, 14.2.12
Failure of Payment by Owner 4.7.7, 9.7, 14.1.3
Faulty Work (See Defective or Nonconforming Work)
Final Completion and Final Payment 4.6.1, 4.6.16,
4.7.2, 4.7.5, 9.10, 11.1.2, 11.1.3, 11.3.5, 12.3.1, 13.7
Financial Arrangements, Owner's 2.2.1
Fire and Extended Coverage Insurance 11.3.1.1, 11.3.5, 11.3.7
GENERAL PROVISIONS 1
Governing Law 13.1
Guarantees (See Warranty and Warranties)
Hazardous Materials 10.1, 10.2.4
Identification of Contract Documents 1.2.1
Identification of Subcontractors and Suppliers 5.2.1
Indemnification 3.17, 3.18, 9.10.2, 10.1.4, 11.3.1.2, 11.3.7
Information and Services Required of the Owner 2.1.2,
2.2, 4.7.4, 6.2.6, 9.3.2, 9.6.1, 9.6.4, 9.8.3,
9.9.2, 9.10.3, 10.1.4, 11.2,
11.3, 13.5.1, 13.5.2
Injury or Damage to Person or Property 4.7.9
Inspections 3.3.3, 3.3.4, 3.7.1, 4.6.5, 4.6.6, 4.6.16,
4.7.6, 9.4.3, 9.8.2, 9.9.2, 9.10.1, 12.1.1, 13.5
Instructions to Bidders 1.1.1
Instructions to the Contractor 3.8.1, 4.6.13, 5.2.1, 7, 12.1, 13.5.2
Insurance 4.7.9, 6.1.1, 7.3.6.4, 9.3.2, 9.8.2, 9.9.1, 9.10.2, 11
Insurance, Boiler and Machinery 11.3.2
Insurance, Contractor's Liability 11.1, 11.3.1.13
Insurance, Effective Date of 8.2.2, 11.1.2
Insurance, Loss of Use 11.3.3
Insurance, Owner's Liability 11.2, 11.3.1.3
Insurance, Property 10.2.5, 11.3
Insurance, Stored Materials 9.3.2, 11.3.1.4
INSURANCE AND BONDS 11
Insurance Companies, Consent to Partial Occupancy 9.9.1,
11.3.11
Insurance Companies, Settlement with 11.3.10
Intent of the Contract Documents 1.2.3, 3.12.4, 4.6.10, 4.6.12, 4.6.19, 4.6.20, 7.4
Interest 13.6
Interpretation 1.2.5, 1.4, 1.5, 4.1.1,4.7.1, 5.1, 6.1.2, 8.1.4
Interpretations, Written 4.6.18, 4.6.19, 4.7.7
Joinder and Consolidation of Claims Required 4.9.5
Judgment on Final Award 4.9.1, 4.9.4.1, 4.9.7
Labor and Materials, Equipment 1.1.3, 1.1.6, 3.4, 3.5.1,
3.8.2, 3.12.2, 3.12.3, 3.12.7,
3.12.11, 3.13, 3.15.1, 4.6.12,
6.2.1, 7.3.6, 9.3.2, 9.3.3,
12.2.4, 14.1.2, 14.2.1, 14.2.2
Labor Disputes 8.3.1
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AIA DOCUMENT B801/Cma - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. This document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
28
Laws and Regulations 1.3, 3.6, 3.7, 3.13, 4.1.1, 4.9.5, 4.9.7, 9.9.1, 10.2.2,
11.1, 11.3, 13.1, 13.4.1, 13.5.1, 13.5.2, 13.6
Liens 2.1.2, 4.7.2 4.7.5.1, 8.2.2, 9.3.3, 9.10.2
Limitation on Consolidation or Joinder 4.9.5
Limitations, Statutes of 4.9.4.2, 12.2.6, 13.7
Limitations of Authority 3.3.1, 4.6.12, 4.6.17,
5.2.2, 5.2.4, 7.4, 11.3.10
Limitations of Liability 2.3, 3.2.1, 3.5.1, 3.7.3, 3.12.8, 3.12.11 3.17,
3.18, 4.6.10, 4.6.12, 4.6.19, 6.2.2, 9.4.4, 9.6.4,
9.10.4, 10.1.4, 10.2.5, 11.1.2, 11.2.1, 11.3.7, 13.4.2, 13.5.2
Limitations of Time, General 2.2.1, 2.2.4, 3.2.1, 3.7.3, 3.8.2, 3.10, 3.12.5, 3.15.1,
4.6.1, 4.6.12, 4.6.18, 4.7.2, 4.7.3, 4.7.4, 4.7.6, 4.7.9, 4.6.4.2,
5.2.1, 5.2.3, 6.2.4, 7.3.4, 7.4, 8.2, 9.2, 9.5, 9.6.2, 9.8,
9.10, 11.1.3, 11.3.1, 11.3.2, 11.3.5, 11.3.6, 12.2.1, 12.2.2, 13.5,
13.7, 14.3
Limitations of Time, Specific 2.1.2, 2.2.1, 2.4, 3.10, 3.11, 3.15.1, 4.6.1, 4.6.18, 4.7,
4.8, 4.9, 5.3, 5.4, 7.3.5, 7.3.9, 8.2, 9.3.1, 9.3.3, 9.4.1, 9.6.1,
9.7, 9.8.2, 9.10.2, 11.1.3, 11.3.6, 11.3.10,
11.3.11, 12.2.2, 12.2.4, 12.2.6, 13.7, 14.1, 14.2.2
Loss of Use Insurance 11.3.3.
Material Suppliers 1.3.1, 3.12.1, 4.6.7, 4.6.10,
5.2.1, 9.3.1, 9.3.1.2, 9.3.3, 9.4, 9.6.5, 9.10.4
Materials, Hazardous 10.1, 10.2.4
Materials, Labor, Equipment and 1.1.3, 1.1.6, 3.4.1, 3.5.1,
3.8.2, 3.12.2, 3.12.3, 3.12.7,
3.12.11, 3.13, 3.15.1, 4.6.12,
6.2.1, 7.3.6, 9.3.2, 9.3.3,
12.2.4, 14.1.2, 14.2.1, 14.2.2
Means, Methods, Techniques, Sequences and
Procedures of Construction 3.3.1, 4.6.6, 4.6.12, 9.4.3
Minor Changes In the Work 1.1.1, 4.6.13, 4.7.7, 7.1, 7.4
MISCELLANEOUS PROVISIONS 13
Modifications, Definition of 1.1.1
Modifications to the Contract 1.1.1, 1.1.2, 3.7.3,
3.11, 4.1.2, 4.6.1, 5.2.3, 7, 8.3.1, 9.7
Mutual Responsibility 6.2
Nonconforming Work, Acceptance of 12.3
Nonconforming Work, Rejection and Correction of 2.3.1,
4.7.5.2, 9.5.2, 9.8.2, 12, 13.7.1.3
Notice 2.3, 2.4, 3.2.1, 3.2.2, 3.7.3, 3.7.4,
3.9, 3.12.8, 3.12.9, 3.17, 4.7, 4.8.4,
4.9, 5.2.1, 5.3, 5.4.1.1, 8.2.2, 9.4.1,
9.5.1, 9.7, 9.10, 10.1.2, 10.2.6, 11.1.3, 11.3, 12.2.2, 12.2.4,
13.3, 13.5.2, 14,
Notice, Written 2.3,2.4, 3.9, 3.12.8, 3.12.9,4.7, 4.8.4, 4.9, 5.2.1, 5.3,
5.4.1.1, 8.2.2, 9.4.1, 9.5.1, 9.7, 9.10, 10.1.2,
10.2.6, 11.1.3, 11.3, 12.2.2, 12.2.4, 13.3, 13.5.2, 14
Notice of Testing and Inspections 13.5.1, 13.5.2
Notice to Proceed 8.2.2
Notices, Permits, Fees and 2.2.3, 3.7, 3.13, 7.3.6.4, 10.2.2
Observations, Architect's On-Site 4.6.5, 4.6.9, 4.6.10, 4.7.6,
9.4.4, 9.5.1, 9.10.1, 12.1.1, 13.5
Observations, Construction Manager's On-Site 9.4.4, 12.1.1
Observations, Contractor's 1.2.2, 3.2.2
Occupancy 9.6.6, 9.8.1, 9.9, 11.3.11
On-Site Inspections by the Architect 4.6.5, 4.6.16, 4.7.6,
9.4.4, 9.8.2, 9.9.2, 9.10.1
On-Site Observations by the Architect 4.6.5, 4.6.9, 4.7.6,
9.4.4, 9.5.1, 9.10.1, 13.5
On-Site Observations by the Construction Manager 9.4.4, 9.5.1
Orders, Written 2.3, 3.9, 4.7.7, 7, 8.2.2, 11.3.9, 12.1,
12.2, 13.5.2, 14.3.1
OWNER 2
Owner, Definition of 2.1
Owner, Information and Services
Required of the 2.1.2, 2.2, 4.6.2, 4.6.4, 6, 9,
10.1.4, 10.1.6, 11.2, 11.3, 13.5.1, 14.1.1.5, 14.1.3
Owner's Authority 3.8.1, 5.2.1, 5.2.4, 5.4.1,
7.3.1, 8.2.2, 9.3.1, 9.3.2, 11.4.1,
12.2.4, 13.5.2, 14.2, 14.3.1
Owner's Financial Capability 2.2.1, 14.1.1.5
Owner's Liability insurance 11.2
Owner's Loss of Use Insurance 11.3.3
Owner's Relationship with Subcontractors 1.1.2, 5.2.1, 5.4.1,
9.6.4
Owner's Right to Carry Out the Work 2.4, 12.2.4, 14.2.2.2
Owner's Right to Clean Up 6.3
Owner's Right to Perform Construction and to
Award Separate Contracts 6.1
Owner's Right to Stop the Work 2.3, 4.7.7
Owner's Right to Suspend the Work 14.3
Owner's Right to Terminate the Contract 14.2
Ownership and Use of Architect's Drawings,
Specifications and Other Documents 1.1.1, 1.3,
2.2.5, 5.3
Partial Occupancy or Use 9.6.6, 9.9, 11.3.11
Patching, Cutting and 3.14, 6.2.6
Patents, Royalties and 3.17
Payment, Applications for 4.6.9, 9.2, 9.3, 9.4, 9.5.1, 9.8.3,
9.10.1, 9.10.3, 9.10.4, 14.2.4
Payment, Certificates for 4.6.9, 4.6.16, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6,
9.7.1, 9.8.3, 9.10.1, 9.10.3, 13.7, 14.1.1.3,
14.2.4
Payment, Failure of 4.7.7, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2
Payment, Final 4.6.1, 4.6.16, 4.7.2, 4.7.5, 9.10, 11.1.2
11.19.3, 11.3.5, 12.3.1
Payment Bond, Performance
Bond and 7.3.6.4, 9.10.3, 11.3.9, 11.4
Payments, Progress 4.7.4, 9.3, 9.6, 9.8.3, 9.10.3, 13.6, 14.2.3
PAYMENTS AND COMPLETION 9, 14 Payments to
Subcontractors 5.4.2, 9.5.1.3, 9.6.2,
9.6.3, 9.6.4, 11.3.8, 14.2.1.2
PCB 10.1.2, 10.1.3, 10.1.4
Performance Bond and Payment Bond 7.3.6.4, 9.10.3, 11.3.9,
11.4
Permits, Fees and Notices 2.2.3, 3.7, 3.13, 7.3.6.4, 10.2.2
PERSONS AND PROPERTY, PROTECTION OF 10
Polychlorinated Biphenyl 10.1.2, 10.1.3, 10.1.4
Product Data, Definition of 3.12.2
Product Data and Samples, Shop Drawings 3.11, 3.12, 4.2.7
Progress and Completion 4.6.5, 4.7.4, 8.2
Progress Payments 4.7.4, 9.3, 9.6, 9.8.3, 9.10.3, 13.6, 14.2.3
Project, Definition of the 1.1.4
Project Manual, Definition of the 1.1.7
Project Manuals 2.2.5
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AIA DOCUMENT B801/Cma - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. This document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
29
Project Representatives 4.6.17
Property Insurance 10.2.5, 11.3
PROTECTION OF PERSONS AND PROPERTY 10
Regulations and Laws 1.3, 3.6, 3.7, 3.13, 4.1.1, 4.9.7
10.2.2, 11.1, 11.3. 13.1, 13.4, 13.5.1. 13.5.2, 13.6, 14
Rejection of Work 3.5.1, 4.6.10, 12.2.
Releases of Waivers and Liens 9.10.2
Representations 1.2.2, 3.5.1, 3.12.7, 6.2.2, 8.2.1, 9.3.3,
9.4.3, 9.5.1, 9.8.2, 9.10.1
Representatives 2.1.1, 3.1.1, 3.9, 4.1.1,
4.6.1, 4.6.17, 5.1.1, 5.1.2, 13.2.1
Resolution of Claims and Disputes 4.8, 4.9
Responsibility for Those Performing
the Work 3.3.2, 4.6.6, 6.2., 10
Retainage 9.3.1, 9.6.2, 9.8.3, 9.9.1, 9.10.2, 9.10.3
Review of Contract Documents and Field
Conditions by Contractor 1.2.2, 3.2, 3.7.3, 3.12.7
Review of Contractor's Submittals by
Owner, Construction Manager and Architect 3.10.1, 3.10.3,
3.11, 3.12, 4.6.12, 4.6.16, 5.2.1, 5.2.3, 9.2, 9.8.2
Review of Shop Drawings, Product Data
and Samples by Contractor 3.12.5
Rights and Remedies 1.1.2, 2.3, 2.4, 3.5.1, 3.15.2, 4.6.10,
4.7.6, 4.9, 5.3, 6.1, 6.3, 7.3.1, 8.3.1, 9.5.1, 9.7,
10.2.5, 10.3, 12.2.2, 12.2.4, 13.4, 14
Royalties and Patents 3.17
Rules and Notices for Arbitration 4.9.2
Safety of Persons and Property 10.2
Safety Precautions and Programs 4.6.6, 4.6.12, 10.1
Samples, Definition of 3.12.3
Samples, Shop Drawings, Product
Data and 3.11, 3.12, 4.6.12
Samples at the Site, Documents and 3.11
Schedule of Values 9.2, 9.3.1
Schedules, Construction 3.10
Separate Contracts and Contractors 1.1.4
Shop Drawings, Definition of 3.12.1
Shop Drawings, Product Data
and Samples 3.11, 3.12, 4.6.11, 4.6.12, 4.6.15
Site, Use of 3.13, 6.1.1, 6.2.1
Site Inspections 1.2.2, 3.3.4, 4.6.5, 4.6.16, 4.7.6, 9.8.2, 9.10.1,
13.5
Site Visits, Architect's 4.6.5, 4.6.9, 4.7.6,
9.4, 9.5.1, 9.8.2, 9.9.2, 9.10.1, 13.5
Special Inspections and Testing 4.6.10, 12.2.1, 13.5
Specifications, Definition of the 1.1.6
Specifications, The 1.1.1, 1.1.6, 1.1.7, 1.2.4, 1.3, 3.11
Statute of Limitations 4.9.4.2, 12.2.6, 13.7
Stopping the Work 2.3, 4.7.7, 9.7, 10.1.2, 10.3, 14.1
Stored Materials 6.2.1, 9.3.2, 10.2.1.2, 11.3.1.4, 12.2.4
Subcontractor, Definition of 5.1.1
SUBCONTRACTORS 5
Subcontractors, Work by 1.2.4, 3.3.2, 3.12.1, 4.6.6, 4.6.10, 5.3,
5.4
Subcontractual Relations 5.3, 5.4, 9.3.1.2, 9.6.2,
9.6.3, 9.6.4, 10.2.1, 11.3.7, 11.3.8, 14.1.1, 14.2.1.2, 14.1.3
Submittals 1.3, 3.2.3, 3.10, 3.11, 3.12, 4.6.12, 5.2.1,
5.2.3, 7.3.6, 9.2, 9.3.1, 9.8.2, 9.9.1, 9.10.2, 9.10.3. 11.1.3
Subrogation, Waivers of 6.1.1, 11.3.5, 11.3.7
Substantial Completion 4.6.16, 8.1.1, 8.1.3,
8.2.3, 9.9.1, 12.2.1, 12.2.2, 13.7
Substantial Completion, Definition of 9.8.1
Substitution of Subcontractors 5.2.3, 5.2.4
Substitution of Architect 4.4
Substitution of Construction Manager 4.4
Substitutions of Materials 3.5.1
Sub-subcontractor, Definition of 5.1.2
Subsurface Conditions 4.7.6
Successors and Assigns 13.2
Superintendent 3.9, 10.2.6
Supervision and Construction Procedures 1.2.4, 3.3,
3.4, 4.6.6, 4.7.4, 6.2.4, 7.1.3, 7.3.4, 8.2, 8.3.1. 10, 12, 14
Surety 4.8.1, 4.8.4, 5.4.1.2, 9.10.2, 9.10.3, 14.2.2
Surety, Consent of 9.10.2, 9.10.3
Surveys 2.2.2, 3.18.3
Suspension by the Owner for Convenience 14.3
Suspension of the Work 4.7.7, 5.4.2, 14.1.1.4, 14.3
Suspension or Termination of the Contract 4.7.7, 5.4.1.1, 14
Taxes 3.6, 7.3.6.4
Termination by the Contractor 14.1
Termination by the Owner for Cause 5.4.1.1, 14.2
Termination of the Architect 4.4
Termination of the Construction Manager 4.4
Termination of the Contractor 14.2.2
TERMINATION OR SUSPENSION OF THE CONTRACT 14
Tests and Inspections 3.3.3, 4.6.10, 4.6.16, 9.4.3, 12.2.1, 13.5
TIME 8
Time, Delays and Extensions of 4.7.8, 7.2.1, 8.3
Time Limits, Specific 2.1.2, 2.2.1, 2.4, 3.10,
4.6.18, 4.7, 4.8.1, 4.8.3, 4.8.4, 4.9.1,
4.9.4.1, 5.3, 5.4, 7.3.5, 7.3.9, 8.2,
9.2, 9.3.1, 9.3.3, 9.4.1, 9.6.1, 9.7, 9.8.2, 9.10.2,
11.1.3, 11.3.6, 11.3.10, 11.3.11, 12.2.2, 12.2.4, 12.2.6, 13.7,
14
Time Limits on Claims 4.7.2, 4.7.3, 4.7.6, 4.7.9, 4.8, 4.9
Title to Work 9.3.2, 9.3.3
UNCOVERING AND CORRECTION OF WORK 12
Uncovering of Work 12.1
Unforeseen Conditions 4.7.6, 8.3.1, 10.1
Unit Prices 7.1.4, 7.3.3.2
Use of Documents 1.1.1, 1.3, 2.2.5, 3.12.7, 5.3
Use of Site 3.13, 6.1.1, 6.2.1
Values, Schedule of 9.2, 9.3.1
Waiver of Claims: Final Payment 4.7.5, 4.9.1, 9.10.3
Waiver of Claims by the Architect 13.4.2
Waiver of Claims by the Contractor 9.10.4, 11.3.7, 13.4.2
Waiver of Claims by the Owner 4.7.5, 4.9.1, 9.9.3,
9.10.3, 11.3.3, 11.3.5, 11.3.7, 13.4.2
Waiver of Liens 9.10.2
Waivers of Subrogation 6.1.1, 11.3.5, 11.3.7
Warranty and Warranties 3.5, 4.6.16, 4.7.5
9.3.3, 9.8.2, 9.9.1, 12.2.2, 13.7.1.3
Weather Delays 4.7.8.2
When Arbitration May Be Demanded 4.9.4
Work, Definition of 1.1.3
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AIA DOCUMENT B801/CMa - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION.
AIA - COPYRIGHT 1992 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C., 20006-5292. Unlicensed photocopying violates
U.S. copyright laws and is subject to legal prosecution. This document was
electronically produced with permission of the AIA and can be reproduced without
violation until the date of expiration as noted below.
30
Written Consent 1.3.1, 3.12.8, 3.14.2, 4.7.4,
4.9.5, 9.3.2, 9.8.2, 9.9.1, 9.10.2, 9.10.3, 10.1.2. 10.1.3
11.3.1, 11.3.1.4, 11.3.11, 13.2, 13.4.2
Written Interpretations 4.6.18, 4.6.19, 4.7.7
Written Notice 2.3, 2.4, 3.9, 3.12.8, 3.12.9, 4.7.1, 4.7.6, 4.7.9,
4.8.4, 4.9.4.1, 5.2.1, 5.3, 5.4.1.1, 8.2.2.9.4, 9.5.1, 9.7,
9.10, 10.1.2, 10.2.6, 11.1.3, 11.3, 12.2.2, 12.2.4, 13.3,
13.5.2, 14
Written Orders 2.3, 3.9, 4.7.7,
8.2.2, 11.3.9, 12.1, 12.2, 13.5.2, 14.3.1
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AIA DOCUMENT B801/Cma - OWNER-CONSTRUCTION MANAGER AGREEMENT - 1992 EDITION -
AIA - COPYRIGHT 1992 - THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.,
20006-5292. Unlicensed photocopying violates U.S. copyright laws and is subject
to legal prosecution. This document was electronically produced with permission
of the AIA and can be reproduced without violation until the date of expiration
as noted below.
31
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GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
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ARTICLE I
GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 THE CONTRACT DOCUMENTS
The Contract Documents consist of the Agreement between Owner and Construction
Manager (hereinafter the Agreement), Conditions of the Contract (General,
Supplementary and other Conditions), Drawings, Specifications, addenda issued
prior to execution of the Contract, other documents listed in the Agreement and
Modifications issued after execution of the Contract. A Modification is (1) a
written amendment to the Contract signed by both parties, (2) a Change Order,
(3) a Construction Change Directive or (4) a written order for a minor change in
the Work issued by the Architect Unless specifically enumerated in the
Agreement, the Contract Documents do not include other documents such as bidding
requirements (advertisement or invitation to bid, Instructions to Bidders,
sample forms, the Contractor's bid or portions of addenda relating to bidding
requirements).
1.1.2 THE CONTRACT
The Contract Documents form the Contract for Construction. The Contract
represents the entire and integrated agreement between the parties hereto and
supersedes prior negotiations, representations or agreements, either written or
oral. The Contract may be amended or modified only by a Modification. The
Documents shall not be construed to create a contractual relationship of any
kind (1) between the Architect and a Subcontractor or Sub-subcontractor, (2) (3)
between the Architect and Construction Manager, (4) between the Owner and a
Subcontractor or Sub-subcontractor or (5) between any persons or entities other
than the Owner and Construction Manager. The Construction Manager and Architect
shall, however, be entitled to performance and enforcement of obligations under
the Contract intended to facilitate performance of their duties.
1.1.3 THE WORK
The term "Work" means the construction and services required by the Contract
Documents, whether completed or partially completed, and includes all other
labor, materials, equipment and services provided or to be provided by the
- - Subcontractors to fulfill the Subcontractors' obligations. The Work may
constitute the whole or a part of the Project.
1.1.4 THE PROJECT
The Project is the total construction of which the Work performed under the
Contract Documents may be the whole or a part and which may include construction
by other Contractors and by the Owner's own forces including persons or entities
under separate contracts not administered by the Construction Manager.
1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents,
wherever located and whenever issued, showing the design, location and
dimensions of the Work, generally including plans, elevations, sections,
details, schedules and diagrams.
1.1.6 THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the
written requirements for materials, equipment, construction systems, standards
and workmanship for the Work, and performance of related services.
1.1.7 THE PROJECT MANUAL
The Project Manual is the volume usually assembled for the Work which may
include the bidding requirements, sample forms, Conditions of the Contract and
Specifications.
1.2 EXECUTION, CORRELATION AND INTENT
1.2.1 The Contract Documents shall be signed by the Owner and Construction
Manager as provided in the Agreement. If either the Owner or Construction
Manager or both do not sign all the Contract Documents, the Architect shall
identify such unsigned Documents upon request.
1.2.2 Execution of the Contract by the Construction Manager is a representation
that the Construction Manager 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 Contract Documents.
1.2.3 The intent of the Contract Documents is to include all items necessary for
the proper execution and completion
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
32
of the Work under the supervision and direction of the Construction Manager. The
Contract Documents are complementary, and what is required by one shall be as
binding as if required by all; performance by a Subcontractor shall be required
only to the extent consistent with the Contract Documents and reasonably
inferable from them as being necessary to produce the intended results.
1.2.4 Organization of the Specifications into divisions, sections and articles,
and arrangement of Drawings shall not control the Construction Manager in
dividing the Work among Subcontractors or in establishing the extent of Work to
be performed by any trade.
1.2.5 Unless otherwise stated in the Contract Documents, words which have
well-known technical or construction industry meanings are used in the Contract
Documents in accordance with such recognized meanings.
1.3 OWNERSHIP AND USE OF ARCHITECT'S
DRAWINGS, SPECIFICATIONS AND
OTHER DOCUMENTS
1.3.1 The Drawings, Specifications and other documents prepared by the Architect
are instruments of the Architect's service through which the Work to be executed
by the Subcontractor's and supervised by the Construction Manager is described.
The Construction Manager may retain one contract record set. Neither a
Subcontractor, Sub-subcontractor or material or equipment supplier shall own or
claim a copyright in the Drawings, Specifications and other documents prepared
by the Architect, and unless otherwise indicated the Architect shall be deemed
the author of them and will retain all common law, statutory and other reserved
rights, in addition to the copyright. The Drawings, Specifications and other
documents prepared by the Architect, and copies thereof furnished to the
Construction Manager, are for use solely with respect to this Project. They are
not to be used by the Construction Manager or any Subcontractor,
Sub-subcontractor or material or equipment supplier on other projects or for
additions to this Project outside the scope of the Work without the specific
written consent of the Owner and Architect. The Construction Manager,
Subcontractors, Sub-subcontractors and material or equipment suppliers are
granted a limited license to use and reproduce applicable portions of the
Drawings, Specifications and other documents prepared by the Architect
appropriate to and for use in the execution of the Work under the Contract
Documents. All copies made under this license shall bear the statutory copyright
notice, if any, shown on the Drawings, Specifications and other documents
prepared by the Architect. Submittal or distribution to meet official regulatory
requirements or for other purposes in connection with this Project is not to be
construed as publication in derogation of the Architect's copyright or other
reserved rights.
1.4 CAPITALIZATION
1.4.1 Terms capitalized in these General Conditions include those which are (1)
specifically defined, (2) the titles of numbered articles and identified
references to Paragraphs, Subparagraphs and Clauses in the document or (3) the
titles of other documents published by the American Institute of Architects.
1.5 INTERPRETATION
1.5.1 In the interest of brevity the Contract Documents frequently omit
modifying words such as "all" and "any" and articles such as "the" and "an," but
the fact that a modifier or an article is absent from one statement and appears
in another is not intended to affect the interpretation of either statement.
ARTICLE 2
OWNER
2.1 DEFINITION
2.1.1 The Owner is the person or entity identified as such in the Agreement and
is referred to throughout the Contract Documents as if singular in number. The
term "Owner" means the Owner or the Owner's authorized representative.
2.1.2 The Owner upon reasonable written request shall furnish to the
Construction Manager in writing information which is necessary and relevant for
the Construction Manager to evaluate, give notice of or enforce mechanic's lien
rights. Such information shall include a correct statement of the record legal
title to the property on which the Project is located, usually referred to as
the site, and the Owner's interest therein at the time of execution of the
Agreement and, within five days after any change, information of such change in
title, recorded or unrecorded.
2.2 INFORMATION AND SERVICES
REQUIRED OF THE OWNER
2.2.1 The Owner shall, at the request of the Construction Manager, prior to
execution of the Agreement
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
33
and promptly from time to time thereafter, furnish to the Construction Manager
reasonable evidence that financial arrangements have been made to fulfill the
Owner's obligations under the Contract. [Note: Unless such reasonable evidence
were furnished on request prior to the execution of the Agreement, the
prospective contractor would not be required to execute the Agreement or to
commence the Work.]
2.2.2 The Owner shall furnish surveys describing physical characteristics, legal
limitations and utility locations for the site of the Project, and a legal
description of the site.
2.2.3 Except for permits and fees which are the responsibility of the
Subcontractors under the Contract Documents, the Owner shall secure and pay for
necessary approvals, easements, assessments and charges required for
construction, use or occupancy of permanent structures or for permanent changes
in existing facilities. The Owner, through the Construction Manager, shall
secure and pay for the building permit.
2.2.4 Information or services under the Owner's control shall be furnished by
the Owner with reasonable promptness to avoid delay in orderly progress of the
Work.
2.2.5 The Construction Manager will be furnished, free of charge, such copies of
Drawings and Project Manuals as are reasonably necessary for execution of the
Work.
2.2.6 The Owner shall forward all communications to the Subcontractors through
the Construction Manager and shall contemporaneously provide the same
communications to the Architect.
2.2.7 The foregoing are in addition to other duties and responsibilities of the
Owner enumerated herein and especially those in respect to Article 6
(Construction by Owner or by Other Contractors), Article 9 (Payments and
Completion) and Article 11 (Insurance and Bonds).
2.3 OWNER'S RIGHT TO STOP THE WORK
2.3.1 If a Subcontractor fails to correct Work which is not in accordance with
the requirements of the Contract Documents as required by Paragraph 12.2 or
persistently fails to carry out Work in accordance with the Contract Documents,
the Owner or the Construction Manager, by written order signed personally or by
an agent specifically so empowered by the Owner in writing, may order the
Subcontractor to stop the Work, or any portion thereof, until the cause for such
order has been eliminated; however, the right of the Owner or the Construction
Manager to stop the Work shall not give rise to a duty on the part of the Owner
or Construction Manager to exercise this right for the benefit of the
Subcontractor or any other person or entity.
2.4 OWNER'S RIGHT TO CARRY OUT THE
WORK
2.4.1 If a Subcontractor defaults or neglects to carry out the Work in
accordance with the Contract Documents and fails within a seven-day period after
receipt of written notice from the Owner or the Construction Manager to commence
and continue correction of such default or neglect with diligence and
promptness, the Owner or the Construction Manager may after such seven-day
period give the Subcontractor a second written notice to correct such
deficiencies within a second seven-day period. If the Subcontractor within such
second seven-day period after receipt of such second notice falls to commence
and continue to correct any deficiencies, the Owner or the Construction Manager
may, without prejudice to other remedies the Owner or Construction Manager may
have, correct such deficiencies. In such case an appropriate Change Order shall
be issued deducting from payments then or thereafter due the Subcontractor the
cost of correcting such deficiencies, including compensation for the
Construction Manager's and Architect's and their respective consultants'
additional services and expenses made necessary by such default, neglect or
failure. Such action by the Owner or Construction Manager and amounts charged to
the Subcontractor are both subject to prior approval of the Architect, after
consultation with the Construction Manager. If payments then or thereafter due
the Subcontractor are not sufficient to cover such amounts, the Subcontractor
shall pay the difference to the Owner.
ARTICLE 3
CONTRACTOR
3.1 DEFINITION
3.1.1 The Construction Manager is the person or entity identified as such in the
Agreement and is referred to throughout this Agreement as if singular in number.
The term "Contractor" means the Subcontractor or the Subcontractor's authorized
representative.
3.1.2 The plural term "Contractors" refers to persons, Subcontractors or
entities who perform construction under
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
34
Conditions of the Contract that are administered by the Construction Manager,
and that are identical or substantially similar to these Conditions.
3.2 REVIEW OF CONTRACT DOCUMENTS AND
FIELD CONDITIONS BY CONTRACTOR
3.2.1 The Contractor shall carefully study and compare the Contract Documents
with each other and with information furnished by the Owner pursuant to
Subparagraph 2.2.2 and shall at once report to the Construction Manager and
Architect errors, inconsistencies or omissions discovered. The Contractor shall
not be liable to the Owner, Construction Manager or Architect for damage
resulting from errors, inconsistencies or omissions in the Contract Documents
unless the Contractor recognized such error, inconsistency or omission and
knowingly failed to report it to the Construction Manager and Architect. If the
Contractor performs any construction activity knowing it involves a recognized
error, inconsistency or omission in the Contract Documents without such notice
to the Construction Manager and Architect, the Contractor shall assume
appropriate responsibility for such performance and shall bear an appropriate
amount of the attributable costs for correction.
3.2.2 The Contractor shall take field measurements and verify field conditions
and shall carefully compare such field measurements and conditions and other
information known to the Contractor with the Contract Documents before
commencing activities. Errors, inconsistencies or omissions discovered shall be
reported to the Construction Manager and Architect at once.
3.2.3 The Contractor shall perform the Work in accordance with the Contract
Documents and submittals approved pursuant to Paragraph 3.12.
3.3 SUPERVISION AND CONSTRUCTION
PROCEDURES
3.3.1 The Construction Manager shall supervise and direct the Work, using the
Contractor's Construction Manager's best skill and attention. The Construction
Manager shall have made its best efforts to ensure that reasonable construction
means, methods, techniques, sequences and procedures have been undertaken by
each Contractor in connection with the Work. The Construction Manager shall
Schedule and coordinate the sequence of construction in accordance with the
Contract Documents and the latest Project construction schedule.
3.3.2 The Contractor shall be responsible to the Owner and the Construction
Manager for acts and omissions of the Contractor's employees, and their agents
and employees, and other persons performing portions of the Work under a
contract with the Contractor.
3.3.3 The Contractor shall not be relieved of obligations to perform the Work in
accordance with the Contract Documents either by activities or duties of the
Construction Manager or Architect in their administration of the Contract, or by
tests, inspections or approvals required or performed by persons other than the
Contractor.
3.3.4 The Contractor shall inspect portions of the Project related to the
Contractor's Work in order to determine that such portions are in proper
condition to receive subsequent Work.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents, the Construction
Manager shall provide and the Owner shall pay for labor, materials, equipment,
tools, construction equipment and machinery, water, heat, utilities,
transportation, and other facilities and services necessary for proper execution
and completion of the Work, whether temporary or permanent and whether or not
incorporated or to be incorporated in the Work.
3.4.2 The Construction Manager shall enforce strict discipline and good order
among the Construction Manager's employees and other persons carrying out the
Contract. The Construction Manager shall not permit employment of unfit persons
or persons not skilled in tasks assigned to them.
3.5 WARRANTY
3.5.1 The Construction Manager shall cause Subcontractors to warrant to the
Owner, Construction Manager and Architect that materials and equipment furnished
under the Contract will be of good quality and new unless otherwise required or
permitted by the Contract Documents, that the Work will be free from defects not
inherent in the quality required or permitted, and that the Work will conform
with the requirements of the Contract Documents. Work not conforming to these
requirements, including substitutions not properly approved and authorized, may
be considered defective. The Contractor's warranty excludes remedy for damage or
defect caused by abuse, modifications not executed by the Contractor, improper
or
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
35
insufficient maintenance, improper operation, or normal wear and tear under
normal usage. If required by the Construction Manager or Architect, the
Contractor shall furnish satisfactory evidence as to the kind and quality of
materials and equipment.
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the
Work or portions thereof provided by the Contractor which are legally enacted
when bids are received or negotiations concluded, whether or not yet effective
or merely scheduled to go into effect.
3.7 PERMITS, FEES AND NOTICES
3.7.1 Unless otherwise provided in the Contract Documents, the Owner shall
secure and pay for the building permit and the Contractor shall secure and pay
for all other permits and governmental fees, licenses and inspections necessary
for proper execution and completion of the Work which are customarily secured
after execution of the Contract and which are legally required when bids are
received or negotiations concluded.
3.7.2 The Contractor shall comply with and give notices required by laws,
ordinances, rules and regulations and lawful orders of public authorities
bearing on performance of the Work.
3.7.3 It is not the Contractor's responsibility to ascertain that the Contract
Documents are in accordance with applicable laws, statutes, ordinances, building
codes, and rules and regulations. However, if the Contractor observes that
portions of the Contract Documents are at variance therewith, the Contractor
shall promptly notify the Construction Manager, Architect and Owner in writing,
and necessary changes shall be accomplished by appropriate Modification.
3.7.4 If the Contractor performs Work knowing it to be contrary to laws,
statutes, ordinances, building codes, and rules and regulations without such
notice to the Construction Manager, Architect and Owner, the Contractor shall
assume full responsibility for such Work and shall bear the attributable costs.
3.8 ALLOWANCES
3.8.1 The Contractor shall include in the Contract Sum all allowances stated in
the Contract Documents. Items covered by allowances shall be supplied for such
amounts and by such persons or entities as the Owner may direct, but the
Contractor shall not be required to employ persons or entities against which the
Contractor makes reasonable objection.
3.8.2 Unless otherwise provided in the Contract Documents:
.1 materials and equipment under an allowance
shall be selected promptly by the Owner to
avoid delay in the Work;
.2 allowances shall cover the cost to the Contractor
of materials and equipment delivered at the site
and all required taxes, less applicable trade
discounts;
.3 Contractor's costs for unloading and handling at the site, labor,
installation costs, overhead, profit and other expenses contemplated for
stated allowance amounts shall be included in the Contract Sum and not in
the allowances;
.4 whenever costs are more than or less than allowances, the Contract Sum
shall be adjusted accordingly by Change Order. The amount of the Change
Order shall reflect (1) the difference between actual costs and the
allowances under Clause 3.8.2.2 and (2) changes in Contractor's costs
under Clause 3.8.2.3.
3.9 SUPERINTENDENT
3.9.1 The Construction Manager shall employ a competent superintendent and
necessary assistants who shall be in attendance at the Project site during
performance of the Work. The superintendent shall represent the Construction
Manager and communications given to the superintendent shall be as binding as if
given to the Construction Manager. Important communications shall be confirmed
in writing. Other communications shall be similarly confirmed on written request
in each case.
3.10 CONTRACTOR'S CONSTRUCTION
SCHEDULE
3.10.1 The Construction Manager, as soon as possible, shall prepare and submit
for the Owner's and Architect's information a Construction Schedule for the
Work. Such schedule shall not exceed time limits current under the Contract
Documents, shall be revised at appropriate intervals as required by the
conditions of the Work and Project, shall be related to the entire Project
construction schedule to the extent required by the Contract Documents, and
shall provide for expeditious and practicable execution of the Work.
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
36
3.10.2 The Contractor, as they are known, shall cooperate with the Construction
Manager in scheduling and performing the Contractor's Work to avoid conflict,
delay in or interference with the Work of other Contractors or the construction
or operations of the Owner's own forces.
3.10.3 The Contractor shall prepare and keep current, for the Construction
Manager's and Architects approval, a schedule of submittals which is coordinated
with the Contractor's Construction Schedule and allows the Construction Manager
and Architect reasonable time to review submittals.
3.10.4 The Contractor shall conform to the most recent schedules.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
3.11.1 The Contractor(s) and the Construction Manager shall maintain at the site
for the Owner one record copy of the Drawings, Specifications, addenda, Change
Orders and other Modifications, in good order and marked currently to record
changes and selections made during construction, and in addition approved Shop
Drawings, Product Data, Samples and similar required submittals. These
documents, as assembled by the Contractor(s), shall be available to the
Construction Manager and Architect and shall be delivered to the Construction
Manager for incorporation into a concise submittal to the Owner upon completion
of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND
SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially
prepared for the Work by the Contractor or a Sub-subcontractor, manufacturer,
supplier or distributor to illustrate some portion of the Work.
3.12.2 Product Data are illustrations, standard schedules, performance charts,
instructions, brochures, diagrams and other information furnished by the
Contractor to illustrate materials or equipment for some portion of the Work.
3.12.3 Samples are physical examples which illustrate materials, equipment or
workmanship and establish standards by which the Work will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not
Contract Documents. The purpose of their submittal is to demonstrate for those
portions of the Work for which submittals are required the way the Contractor
proposes to conform to the information given and the design concept expressed in
the Contract Documents. Review by the Architect is subject to the limitations of
Subparagraph 4.6.12.
3.12.5 The Contractor shall review, approve and submit to the Construction
Manager, in accordance with the schedule and sequence approved by the
Construction Manager, Shop Drawings, Product Data, Samples and similar
submittals required by the Contract Documents. The Contractor shall cooperate
with the Construction Manager in the coordination of the Contractor's Shop
Drawings, Product Data, Samples and similar submittals with related documents
submitted by other Contractors. Submittals made by the Contractor which are not
required by the Contract Documents may be returned without action.
3.12.6 The Contractor shall perform no portion of the Work requiring submittal
and review of Shop Drawings, Product Data, Samples or similar submittals until
the respective submittal has been approved by the Construction Manager and
Architect. Such Work shall be in accordance with approved submittals.
3.12.7 By approving and submitting Shop Drawings, Product Data, Samples and
similar submittals, the Contractor represents that the Contractor has determined
and verified materials, field measurements and field construction criteria
related thereto, or will do so, and has checked and coordinated the information
contained within such submittals with the requirements of the Work and of the
Contract Documents.
3.12.8 The Contractor shall not be relieved of responsibility for deviations
from requirements of the Contract Documents by the Construction Manager's and
Architects approval of Shop Drawings, Product Data, Samples or similar
submittals unless the Contractor has specifically informed the Construction
Manager and Architect in writing of such deviation at the time of submittal and
the Construction Manager and Architect have given written approval to the
specific deviation. The Contractor shall not be relieved of responsibility for
errors or omissions in Shop Drawings, Product Data, Samples or similar
submittals by the Construction Manager's and Architect's approval thereof.
3.12.9 The Contractor shall direct specific attention, in writing or on
resubmitted Shop Drawings, Product Data, Samples or similar submittals, to
revisions other than those requested by the Construction Manager and Architect
on previous submittals.
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
37
3.12.10 Informational submittals upon which the Construction Manager and
Architect are not expected to take responsive action may be so identified in the
Contract Documents.
3.12.11 When professional certification of performance criteria of materials,
systems or equipment is required by the Contract Documents, the Construction
Manager and Architect shall be entitled to rely upon the accuracy and
completeness of such calculations and certifications.
3.13 USE OF SITE
3.13.1 The Contractor shall confine operations at the site to areas permitted by
law, ordinances, permits and the Contract Documents and shall not unreasonably
encumber the site with materials or equipment.
3.13.2 The Contractor shall coordinate the Contractor's operations with, and
secure the approval of, the Construction Manager before using any portion of the
site.
3.14 CUTTING AND PATCHING
3.14.1 The Contractor shall be responsible for cutting, fitting or patching
required to complete the Work or to make its parts fit together properly.
3.14.2 The Contractor shall not damage or endanger a portion of the Work or
fully or partially completed construction of the Owner's own forces or of other
Contractors by cutting, patching, excavating or otherwise altering such
construction. The Contractor shall not cut or otherwise alter such construction
by other Contractors or by the Owner's own forces except with written consent of
the Construction Manager, Owner and such other Contractors; such consent shall
not be unreasonably withheld. The Contractor shall not unreasonably withhold
from the other Contractors or the Owner the Contractor's consent to cutting or
otherwise altering the Work.
13.15 CLEANING UP
13.15.1 The Contractor in conjunction with the Construction Manager shall keep
the premises and surrounding area free from accumulation of waste materials or
rubbish caused by operations under the Contract The Construction Manager shall
provide, at the Owner's expense, trash dumpsters which shall be located on the
site. These dumpsters shall be used for placement of trash and other debris by
the Contractors. At completion of the Work the Contractor shall remove from and
about the Project their waste materials, rubbish, the Contractor's tools,
construction equipment, machinery and surplus materials.
3.15.2 If a Contractor fails to clean up as provided in the Contract
Documents, the Construction Manager may do so with the Owner's approval and the
cost thereof shall be charged to the Contractor.
3.16 ACCESS TO WORK
3.16.1 The Contractor shall provide the Owner, Construction Manager and
Architect access to the Work in preparation and progress wherever located.
3.17 ROYALTIES AND PATENTS
3.17.1 A Contractor shall pay all royalties and license fees associated with
his Work. A Contractor shall defend suits or claims for infringement of
patent rights on Work performed or materials furnished by said Contractor and
shall hold the Owner, Construction Manager and Architect 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 or
manufacturers is required by the Contract Documents. However, if the Contractor
has reason to believe that the required design, process or product is an
infringement of a patent, the Contractor shall be responsible for such loss
unless such information is promptly furnished to the Architect
3.18 INDEMNIFICATION
3.18.1 To the fullest extent permitted by law, the Contractor shall indemnify
and hold harmless the Owner, Construction Manager, Architect, Construction
Manager's and Architect'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 performance of the
Contractor's Work, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or
destruction of tangible property (other than the Work itself) including loss of
use resulting therefrom, but only to the extent caused in whole or in part by
negligent acts or omissions of the Contractor, anyone directly or indirectly
employed by them or anyone for whose acts they may be liable, regardless of
whether or not such claim, damage, loss or expense is caused in part by a party
indemnified hereunder. 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 Paragraph 3.18.
3.18.2 In claims against any person or entity indemnified under this Paragraph
3.18 by an employee of the Contractor, anyone directly or indirectly employed by
them or anyone for whose acts they may be liable, the
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
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38
indemnification obligation under this Paragraph 3.18 shall not be limited by a
limitation on amount or type of damages, compensation or benefits payable by or
for the Contractor or under workers' compensation acts, disability benefit acts
or other employee benefit acts.
3.18.3 The obligations of the Contractor under this Paragraph 3.18 shall not
extend to the liability of the Construction Manager, Architect, their
consultants, and agents and employees of any of them arising out of (1) the
preparation or approval of maps, drawings, opinions, reports, surveys, Change
Orders, designs or specifications, or (2) the giving of or the failure to give
directions or instructions by the Construction Manager, Architect, their
consultants, and agents and employees of any of them provided such giving or
failure to give is the primary cause of the injury or damage.
ARTICLE 4
ADMINISTRATION OF THE CONTRACT
4.1 ARCHITECT
4.1.1 The Architect is the person lawfully licensed to practice architecture or
an entity lawfully practicing architecture identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number.
The term "Architect" means the Architect or the Architect's authorized
representative.
4.2 CONSTRUCTION MANAGER
4.2.1 The Construction Manager is the person or entity identified as such in the
Agreement and is referred to throughout the Contract Documents as if singular in
number. The term "Construction Manager" means the Construction Manager or the
Construction Manager's authorized representative.
4.3 Duties, responsibilities and limitations of authority of the Construction
Manager and Architect as set forth in the Contract Documents shall not be
restricted, modified or extended without written consent of the Owner,
Construction Manager, Architect and Contractor. Consent shall not be
unreasonably withheld.
4.4 In case of termination of employment of the Construction Manager or
Architect, the Owner shall appoint a construction manager or architect against
whom the Contractor makes no reasonable objection and whose status under the
Contract Documents shall be that of the former construction manager or
architect, respectively.
4.5 Disputes arising under Paragraphs 4.3 and 4.4 shall be subject to
mediation.
4.6 ADMINISTRATION OF THE CONTRACT
4.6.1 The Construction Manager and Architect will provide administration of the
Contract as described in the Contract Documents, and will be the Owner's
representatives (1) during construction, (2) until final payment is due and (3)
with the Owner's concurrence, from time to time during the correction period
described in Paragraph 12.2. The Construction Manager and Architect will advise
and consult with the Owner and will have authority to act on behalf of the Owner
only to the extent provided in the Contract Documents, unless otherwise modified
by written instrument in accordance with other provisions of the Contract
4.6.2 The Construction Manager will determine in general that the Work is being
performed in accordance with the requirements of the Contract Documents, will
keep the Owner informed of the progress of the Work, and will endeavor to guard
the Owner against defects and deficiencies in the Work.
4.6.3 The Construction Manager will provide for coordination of the activities
of other Contractors and of the Owner's own forces with the Work of the
Contractor, who shall cooperate with them. A Contractor shall participate
with other Contractors and the Construction Manager and Owner in reviewing their
construction schedules when directed to do so. The Contractor shall make any
revisions to the construction schedule deemed necessary after a joint review and
mutual agreement. The construction schedules shall constitute the schedules to
be used by the Contractor, other Contractors, the Construction Manager and the
Owner until subsequently revised.
4.6.4 The Construction Manager will schedule and coordinate the activities of
the Contractors in accordance with the latest approved Project construction
schedule.
4.6.5 The Architect will visit the site at intervals appropriate to the stage of
construction to become generally familiar with the progress and quality of the
completed Work and to determine in general if the Work is being performed in a
manner indicating that the Work, when completed, will be in accordance with the
Contract Documents. However, the Architect will not be required to make
exhaustive or continuous on-site inspections to check quality or quantity of the
Work. On the basis of on-site observations as an architect, the Architect will
keep the Owner informed of progress of the Work, and will endeavor to guard the
Owner against defects and deficiencies in the Work.
4.6.6 The Construction Manager,
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
39
with respect to each Contractor's own Work, shall have made it's best effort to
ensure that reasonable construction means, methods, techniques, sequences,
procedures, and safety precautions and programs have been undertaken by each of
the Contractors in connection with the Work. The Construction Manager will not
be monetarily responsible for a Contractor's failure to carry out the Work in
accordance with the Contract Documents. The Construction Manager shall, however,
use its best efforts to ensure each Contractor does carry out the Work in
accordance with respective Contract Documents. The Architect will not have
control over or charge of or be responsible for acts or omissions of a
Contractor, or their agents or employees, or of any other persons performing
portions of the Work.
4.6.7 Communications Facilitating Contract Administration. Except as otherwise
provided in the Contract Documents or when direct communications have been
specially authorized, the Owner shall communicate through the Construction
Manager, and shall contemporaneously provide the same communications to the
Architect. Communications by and with the Architect's consultants shall be
through the Architect. Communications by and with Subcontractors and material
suppliers shall be through the Construction Manager. Communications by and with
other Contractors shall be through the Construction Manager and shall be
contemporaneously provided to the Architect.
4.6.8 The Construction Manager will review and certify all Applications for
Payment by the Contractors, including final payment. The Construction Manager
will assemble each of the Contractor's Applications for Payment with similar
Applications from other Contractors into a Project Application and Project
Certificate for Payment. After reviewing and certifying the amounts due the
Contractors, the Construction Manager will submit the Project Application and
Project Certificate for Payment, along with the applicable Contractors'
Applications and Certificates for Payment, to the Architect.
4.6.9 Based on the Architect's observations and evaluations of Contractors'
Applications for Payment, and the certifications of the Construction Manager,
the Architect will review and certify the amounts due the Contractors and will
issue a Project Certificate for Payment.
4.6.10 The Architect will have authority to reject Work which does not conform
to the Contract Documents, and to require additional inspection or testing, in
accordance with Subparagraphs 13.5.2 and 13.5.3, whether or not such Work is
fabricated, installed or completed, but will take such action only after
notifying the Construction Manager. Subject to review by the Architect, the
Construction Manager will have the authority to reject Work which does not
conform to the Contract Documents. Whenever the Construction Manager considers
it necessary or advisable for implementation of the intent of the Contract
Documents, the Construction Manager will have authority to require additional
inspection or testing of the Work in accordance with Subparagraphs 13.5.2 and
13.5.3, whether or not such Work is fabricated, installed or completed. The
foregoing authority of the Construction Manager will be subject to the
provisions of Subparagraphs 4.6.18 through 4.6.20 inclusive, with respect to
interpretations and decisions of the Architect. However, neither the Architect's
nor the Construction Manager's authority to act under this Subparagraph 4.6.10
nor a decision made by either of them in good faith either to exercise or not to
exercise such authority shall give rise to a duty or responsibility of the
Architect or the Construction Manager to a Contractor, material and
equipment suppliers, their agents or employees, or other persons performing any
of the Work.
4.6.11 The Construction Manager will receive from the Contractor and review and
approve all Shop Drawings, Product Data and Samples, coordinate them with
information received from other Contractors, and transmit to the Architect those
recommended for approval. The Construction Manager's actions will be taken with
such reasonable promptness as to cause no delay in the Work of the Contractor or
in the activities of other Contractors, the Owner, or the Architect.
4.6.12 The Architect will review and approve or take other appropriate action
upon the Contractor's submittals such as Shop Drawings, Product Data and
Samples, but only for the limited purpose of checking for conformance with
information given and the design concept expressed in the Contract Documents.
The Architect's action will be taken with such reasonable promptness as to cause
no delay in the Work of the Contractor or in the activities of the other
Contractors, the Owner, or the Construction Manager, while allowing sufficient
time in the Architect's professional judgment to permit adequate review. Review
of such submittals is not conducted for the purpose of determining the accuracy
and completeness of other details such as dimensions and quantities, or for
substantiating instructions for installation or performance of equipment or
systems, all of which remain the responsibility of the Contractor as required by
the Contract Documents. The Architect's review of the Contractor's submittals
shall not relieve the Contractor of the obligations under Paragraphs 3.3, 3.5
and 3.12. The Architect's review shall not constitute approval of safety
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
40
precautions or, unless otherwise specifically stated by the Architect, of any
construction means, methods, techniques, sequences or procedures. The
Architect's approval of a specific item shall not indicate approval of an
assembly of which the item is a component.
4.6.13 The Construction Manager will prepare Change Orders and Construction
Change Directives.
4.6.14 Following consultation with the Construction Manager, the Architect will
take appropriate action on Change Orders or Construction Change Directives in
accordance with Article 7 and will have authority to order minor changes in the
Work as provided in Paragraph 7.4.
4.6.15 The Construction Manager will maintain at the site for the Owner one
record copy of all Contracts, Drawings, Specifications, addenda, Change Orders
and other Modifications, in good order and marked currently to record all
changes and selections made during construction, and in addition approved Shop
Drawings, Product Data, Samples and similar required submittals. These will be
available to the Architect and the Contractor, and will be delivered to the
Owner upon completion of the Project.
4.6.16 The Construction Manager will assist the Architect in conducting
inspections to determine the dates of Substantial Completion and final
completion, and will receive and forward to the Architect written warranties and
related documents required by the Contract and assembled by the Contractor(s).
The Construction Manager will forward to the Architect a final Project
Application and Project Certificate for Payment upon compliance with the
requirements of the Contract Documents.
4.6.17 If the Owner and Architect agree, the Architect will provide one or more
project representatives to assist in carrying out the Architect's
responsibilities at the site. The duties, responsibilities and limitations of
authority of such project representatives shall be as set forth in an exhibit to
be incorporated in the Contract Documents.
4.6.18 The Architect will interpret and decide matters concerning performance
under and requirements of the Contract Documents on written request of the
Construction Manager, Owner or a Contractor. The Architect's response to such
requests will be made with reasonable promptness and within any time limits
agreed upon. If no agreement is made concerning the time within which
interpretations required of the Architect shall be furnished in compliance with
this Paragraph 4.6, then delay shall not be recognized on account of failure by
the Architect to furnish such interpretations until 15 days after written
request is made for them.
4.6.19 Interpretations and decisions of the Architect will be consistent with
the intent of and reasonably inferable from the Contract Documents and will be
in writing or in the form of drawings. When making such interpretations and
decisions, the Architect will endeavor to secure faithful performance by both
Owner and Contractor, will not show partiality to either and will not be liable
for results of interpretations or decisions so rendered in good faith.
4.6.20 The Architect's decisions on matters relating to aesthetic effect will be
final if consistent with the intent expressed in the Contract Documents.
4.7 CLAIMS AND DISPUTES
4.7.1 DEFINITION. A Claim is a demand or assertion by one of the parties
seeking, as a matter of right, adjustment or interpretation of Contract terms,
payment of money, extension of time or other relief with respect to the terms of
the Contract. The term "Claim" also includes other disputes and matters in
question between the Owner and Contractor arising out of or relating to the
Contract. Claims must be made by written notice. The responsibility to
substantiate Claims shall rest with the party making the Claim.
4.7.2 DECISION OF ARCHITECT. Claims, including those alleging an error or
omission by the Construction Manager or Architect, shall be referred initially
to the Architect for action as provided in Paragraph 4.8. A decision by the
Architect, as provided in Subparagraph 4.8.4, shall be required as a condition
precedent to mediation of a Claim between a Contractor and Owner as to all such
matters arising prior to the date final payment is due, regardless of (1)
whether such matters relate to execution and progress of the Work or (2) the
extent to which the Work has been completed. The decision by the Architect in
response to a Claim shall not be a condition precedent to mediation in the event
(1) the position of Architect is vacant, (2) the Architect has not received
evidence or has failed to render a decision within agreed time limits, (3) the
Architect has failed to take action required under Subparagraph 4.8.4 within 30
days after the Claim is made, (4) 45 days have passed after the Claim has been
referred to the Architect or (5) the Claim relates to a mechanic's lien.
4.7.3 TIME LIMITS ON CLAIMS. Claims by either party must be made within 21 days
after occurrence of the event giving rise to such Claim or within 21 days after
the claimant first recognizes the condition giving rise to the Claim, whichever
is later. Claims must be made by written notice. An additional Claim made after
the initial Claim has been implemented by Change Order will not be considered
unless submitted in a timely manner.
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
41
4.7.4 CONTINUING CONTRACT PERFORMANCE. Pending final resolution of a Claim
including mediation, unless otherwise agreed in writing the Contractor shall
proceed diligently with performance of the Contract and the Owner shall continue
to make payments in accordance with the Contract Documents.
4.7.5 WAIVER OF CLAIMS: FINAL PAYMENT. 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.
4.7.6 CLAIMS FOR CONCEALED OR UNKNOWN CONDITIONS. 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 of an unusual nature, 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 21 days after first
observance of the conditions. The Architect will promptly investigate such
conditions and, if they differ materially and cause an increase or decrease in
the Contractor's cost of, or time required for, performance of any part of the
Work, will recommend an equitable adjustment in the Contract Sum or Contract
Time, or both. If the Architect determines that the conditions at the site are
not materially different from those indicated in the Contract Documents and that
no change in the terms of the Contract is justified, the Architect shall so
notify the Owner and Contractor in writing, stating the reasons. Claims by
either party in opposition to such determination must be made within 21 days
after the Architect has given notice of the decision. If the Owner and a
Contractor cannot agree on an adjustment in the Contract Sum or Contract Time,
the adjustment shall be referred to the Architect for initial determination,
subject to further proceedings pursuant to Paragraph 4.8.
4.7.7 CLAIMS FOR ADDITIONAL COST. If a Contractor wishes to make Claim for an
increase in the Contract Sum, written notice as provided herein shall be given
before proceeding to execute the Work. Prior notice is not required for Claims
relating to an emergency endangering life or property arising under Paragraph
10.3. If the Contractor believes additional cost is involved for reasons
including but not limited to (1) a written interpretation from the Architect,
(2) an order by the Owner to stop the Work where the Contractor was not at
fault, (3) a written order for a minor change in the Work issued by the
Architect, (4) failure of payment by the Owner, (5) termination of the Contract
by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim
shall be filed in accordance with the procedure established herein.
4.7.8 CLAIMS FOR ADDITIONAL TIME.
4.7.8.1 If the Contractor wishes to make Claim for an increase in the Contract
Time, written notice as provided herein shall be given. The Contractor's Claim
shall include an estimate of cost and of probable effect of delay on progress of
the Work. In the case of a continuing delay only one Claim is necessary.
4.7.8.2 If adverse weather conditions are the basis for a Claim for additional
time, such Claim shall be documented by data substantiating that weather
conditions were abnormal for the period of time and could not have been
reasonably anticipated, and that weather conditions had an adverse effect on the
scheduled construction.
4.7.9 Injury or Damage to Person or Property. If either party to the Contract
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 21 days after first observance. The notice shall
provide sufficient detail to enable the other party to investigate the matter.
If a Claim for additional cost or time related to this Claim is to be asserted,
it shall be filed as provided in Subparagraphs 4.7.7 or 4.7.8.
4.8 RESOLUTION OF CLAIMS AND DISPUTES
4.8.1 The Architect will review Claims and take one or more of the following
preliminary actions within ten days of receipt of a Claim: (1) request
additional supporting data from the claimant, (2) submit a schedule to the
parties indicating when the Architect expects to take action, (3) reject the
Claim in whole or in part, stating reasons for rejection, (4) recommend approval
of the Claim by the other party or (5) suggest a compromise. The Architect may
also, but is not obligated to, notify the surety, if any, of the nature and
amount of the Claim.
4.8.2 If a Claim has been resolved, the Architect will
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.
42
prepare or obtain appropriate documentation.
4.8.3 If a Claim has not been resolved, the party making the Claim shall, within
ten days after the Architect's preliminary response, take one or more of the
following actions: (1) submit additional supporting data requested by the
Architect, (2) modify the initial Claim or (3) notify the Architect that the
initial Claim stands.
4.8.4 If a Claim has not been resolved after consideration of the foregoing and
of further evidence presented by the parties or requested by the Architect, the
Architect will notify the parties in writing that the Architect's decision will
be made within seven days, which decision shall be final and binding on the
parties but subject to mediation. Upon expiration of such time period, the
Architect will render to the parties the Architect's written decision relative
to the Claim, including any change in the Contract Sum or Contract Time or both.
If there is a surety and there appears to be a possibility of a Contractor's
default, the Architect may, but is not obligated to, notify the surety and
request the surety's assistance in resolving the controversy.
4.9 ARBITRATION
4.9.1 CONTROVERSIES AND CLAIMS SUBJECT TO ARBITRATION. See Exhibit "A", dated
August 20, 1997, to the Contract between the Owner and the Construction Manager.
Arbitration is replaced by Mediation for "Dispute Resolution".
4.9.2 RULES AND NOTICES FOR ARBITRATION.
4.9.3 CONTRACT PERFORMANCE DURING ARBITRATION.
4.9.4 WHEN ARBITRATION MAY BE DEMANDED.
4.9.4.1
4.9.4.2
4.9.5 LIMITATION ON CONSOLIDATION OR JOINDER.
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
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43
4.9.6 CLAIMS AND TIMELY ASSERTION OF CLAIMS.
4.9.7 JUDGMENT ON FINAL AWARD.
ARTICLE 5
SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract to perform
a portion of the Work at the site. The term "Subcontractor" is referred to
throughout the Contract Documents as if singular in number and means a
Contractor, a Subcontractor or an authorized representative of the Contractor or
the Subcontractor. The terms "Contractor" and "Subcontractor" are synonymous
with each other.
5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect
contract with a Subcontractor to perform a portion of the Work at the site. The
term "Sub-subcontractor" is referred to throughout the Contract Documents as if
singular in number and means a Sub-subcontractor or an authorized representative
of the Sub-subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER
CONTRACTS FOR PORTIONS OF THE
WORK
5.2.1 Unless otherwise stated in the Contract Documents or the bidding
requirements, the Contractor, as soon as practicable after award of the
Contract, shall furnish in writing to the Construction Manager for review by the
Owner, Construction Manager and Architect the names of persons or entities
(including those who are to furnish materials or equipment fabricated to a
special design) proposed as a Sub-subcontractor, if any, for each principal
portion of the Contractor's Work. The Construction Manager will promptly reply
to the Contractor in writing stating whether or not the Owner, Construction
Manager or Architect, after due investigation, has reasonable objection to any
such proposed person or entity. Failure of the Construction Manager to reply
promptly shall constitute notice of no reasonable objection.
5.2.2 The Contractor shall not contract with a proposed person or entity to whom
the Owner, Construction Manager or Architect has made reasonable and timely
objection. The Contractor shall not be required to contract with anyone to whom
the Contractor has made reasonable objection.
5.2.3 If the Owner, Construction Manager or Architect has reasonable objection
to a person or entity proposed by the Contractor, the Contractor shall propose
another to whom the Owner, Construction Manager or Architect has no reasonable
objection. The Contract Sum shall be increased or decreased by the difference in
cost occasioned by such change and an appropriate Change Order shall be issued.
However, no increase in the Contract Sum shall be allowed for such change unless
the Contractor has acted promptly and responsively in submitting names as
required.
5.2.4 The Construction Manager shall not change a Subcontractor, person or
entity previously selected if the Owner, or Architect makes reasonable objection
to such change.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 By appropriate agreement, written where legally required for validity, the
Construction Manager shall require each Subcontractor, to the extent of the Work
to be performed by the Subcontractor, to be bound to the Construction Manager by
terms of the Contract Documents, and to assume toward the Construction Manager
all the obligations and responsibilities which the Construction Manager, by
these Documents, assumes toward the Owner, and Architect. Each subcontract
agreement shall preserve and protect the rights of the Owner, Construction
Manager and Architect under the Contract Documents with respect to the Work to
be performed by the Subcontractor so that subcontracting thereof will not
prejudice such rights, and shall allow to the Subcontractor, unless specifically
provided otherwise in the subcontract agreement, the benefit of all
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
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rights, remedies and redress against the Owner that the Construction Manager, by
the Contract Documents, has against the Owner. Where appropriate, the
Construction Manager shall require each Subcontractor to enter into similar
agreements with Sub-subcontractors. The Construction Manager shall make
available to each proposed Subcontractor, prior to the execution of the
subcontract agreement, copies of the Contract Documents to which the
Subcontractor will be bound, and, upon written request of the Subcontractor,
identify to the Subcontractor terms and conditions of the proposed subcontract
agreement which may be at variance with the Contract Documents. Subcontractors
shall similarly make copies of applicable portions of such documents available
to their respective proposed Sub-subcontractors.
5.4 CONTINGENT ASSIGNMENT OF
SUBCONTRACTS
5.4.1 Each subcontract agreement for a portion of the Work is assigned by the
Construction Manager to the Owner provided that:
.1 assignment is effective only after termination of the Contract
by the Owner for cause pursuant to Paragraph 14.2 and only for
those subcontract agreements which the Owner accepts by
notifying the Subcontractor in writing; and
.2 assignment is subject to the prior rights of the surety, if
any, obligated under bond relating to the Contract.
5.4.2 If the Work has been suspended for more than 30 days, the Subcontractor's
compensation shall be equitably adjusted.
ARTICLE 6
CONSTRUCTION BY OWNER OR BY
OTHER CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM
CONSTRUCTION WITH OWN FORCES
AND TO AWARD OTHER CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations related
to the Project with the Owner's own forces, which include persons or entities
under separate contracts not administered by the Construction Manager. The Owner
further reserves the right to award other contracts in connection with other
portions of the Project or other construction or operations on the site under
Conditions of the Contract identical or substantially similar to these
including those portions related to insurance and waiver of subrogation. If the
Contractor claims that delay or additional cost is involved because of such
action by the Owner, the Contractor shall make such Claim as provided elsewhere
in the Contract Documents.
6.1.2 When the Owner performs construction or operations with the Owner's own
forces including persons or entities under separate contracts not administered
by the Construction Manager, the Owner shall provide for coordination of such
forces with the Work of the Contractor, who shall cooperate with them.
6.1.3 Unless otherwise provided in the Contract Documents, when the Owner
performs construction or operations related to the Project with the Owner's own
forces, the Owner shall be deemed to be subject to the same obligations and to
have the same rights which apply to the Contractors under the Conditions of the
Contract, including, without excluding others, those stated in this Article 6
and in Articles 3,10,11 and 12.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner's own forces, Construction Manager
and other Contractors reasonable opportunity for introduction and storage of
their materials and equipment and performance of their activities, and shall
connect and coordinate the Contractor's construction and operations with theirs
as required by the Contract Documents.
6.2.2 If part of the Contractor's Work depends for proper execution or results
upon construction or operations by the Owner's own forces or other Contractors,
the Contractor shall, prior to proceeding with that portion of the Work,
promptly report to the Construction Manager and Architect apparent discrepancies
or defects in such other construction that would render it unsuitable for such
proper execution and results. Failure of the Contractor so to report shall
constitute an acknowledgment that the Owner's own forces or other Contractors'
completed or partially completed construction is fit and proper to receive the
Contractor's Work, except as to defects not then reasonably discoverable.
6.2.3 Costs caused by delays or by improperly timed activities or defective
construction shall be borne by the party responsible therefor.
6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the
Contractor to completed construction or partially completed construction or to
property of the Owner or other Contractors as provided in Subparagraph 10.2.5.
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
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45
6.2.5 Claims and other disputes and matters in question between the Contractor
and other Contractors shall be subject to the provisions of Paragraph 4.7
provided the other Contractors have reciprocal obligations.
6.2.6 The Owner and other Contractors shall have the same responsibilities for
cutting and patching as are described for the Contractor in Paragraph 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises among a Contractor, other Contractors and the Owner as
to the responsibility under their respective contracts for maintaining the
premises and surrounding area free from waste materials and rubbish as described
in Paragraph 3.15, the Owner may clean up and allocate the cost among those
responsible as the Construction Manager, in consultation with the Architect,
determines to be just.
ARTICLE 7
CHANGES IN THE WORK
7.1 CHANGES
7.1.1 Changes in the Work may be accomplished after execution of the Contract,
and without invalidating the Contract, by Change Order, Construction Change
Directive or order for a minor change in the Work, subject to the limitations
stated in this Article 7 and elsewhere in the
Contract Documents.
7.1.2 A Change Order shall be based upon agreement among the Owner, Construction
Manager, Architect and Contractor; a Construction Change Directive requires
agreement by the Owner, Construction Manager and Architect and may or may not be
agreed to by the Contractor; an order for a minor change in the Work may be
issued by the Architect alone.
7.1.3 Changes in the Work shall be performed under applicable provisions of the
Contract Documents, and Contractor shall proceed promptly, unless otherwise
provided in the Change Order, Construction Change Directive or order for a minor
change in the Work.
7.1.4 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 Contractor, the applicable unit prices shall be equitably adjusted.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared by the Construction
Manager and signed by the Owner, Construction Manager, Architect and Contractor,
stating their
agreement upon all of the following:
.1 a change in the Work;
.2 the amount of the adjustment in the Contract Sum, if
any; and
.3 the extent of the adjustment in the Contract Time, if
any.
7.2.2 Methods used in determining adjustments to the Contract Sum may include
those listed in Subparagraph 7.3.3.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written order prepared by the
Construction Manager and signed by the Owner, Construction Manager and
Architect, directing a change in the Work and stating a proposed basis for
adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may
by Construction Change Directive, without invalidating the Contract, order
changes in the Work within the general scope of the Contract consisting of
additions, deletions or other revisions, the Contract Sum and Contract Time
being adjusted accordingly.
7.3.2 A Construction Change Directive shall be used in the absence of total
agreement on the terms of a Change Order.
7.3.3 If the Construction Change Directive provides for an adjustment to the
Contract Sum, the adjustment shall be based on one of the following methods:
.1 mutual acceptance of a lump sum properly itemized and
supported by sufficient substantiating data to permit
evaluation;
.2 unit prices stated in the Contract Documents or subsequently
agreed upon;
.3 cost to be determined in a manner agreed upon by the parties
and a mutually acceptable fixed or percentage fee; or
.4 as provided in Subparagraph 7.3.6.
7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall
promptly proceed with the change in the
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
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46
Work involved and advise the Construction Manager and Architect of the
Contractor's agreement or disagreement with the method, if any, provided in the
Construction Change Directive for determining the proposed adjustment in the
Contract Sum or Contract Time.
7.3.5 A Construction Change Directive signed by the Contractor indicates the
agreement of the Contractor therewith, including adjustment in Contract Sum and
Contract Time or the method for determining them. Such agreement shall be
effective immediately and shall be recorded as a Change Order.
7.3.6 If the Contractor does not respond promptly or disagrees with the method
for adjustment in the Contract Sum, the method and the adjustment shall be
determined by the Construction Manager on the basis of reasonable expenditures
and savings of those performing the Work attributable to the change, including,
in case of an increase in the Contract Sum, a reasonable allowance for overhead
and profit. in such case, and also under Clause 7.3.3.3, the Contractor shall
keep and present, in such form as the Construction Manager may prescribe, an
itemized accounting together with appropriate supporting data. Unless otherwise
provided in the Contract Documents, costs for the purposes of this Subparagraph
7.3.6 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 Contractor or others;
.4 costs of premiums for all bonds and insurance, permit fees,
and sales, use or similar taxes related to the Work; and
.5 additional costs of supervision and field office personnel
directly attributable to the change.
7.3.7 Pending final determination of cost to the Owner, amounts not in dispute
may be included in Applications for Payment. The amount of credit to be allowed
by the Contractor to the Owner for a deletion or change which results in a net
decrease in the Contract Sum shall be actual net cost as confirmed by the
Construction Manager. When both additions and credits covering related Work or
substitutions are involved in a change, the allowance for overhead and profit
shall be figured on the basis of net increase, if any, with respect to that
change.
7.3.8 If the Owner and Contractor do not agree with the adjustment in Contract
Time or the method for determining it, the adjustment or the method shall be
referred to the Construction Manager for determination.
7.3.9 When the Owner and Contractor agree with the determination made by the
Construction Manager concerning the adjustments in the Contract Sum and Contract
Time, or otherwise reach agreement upon the adjustments, such agreement shall be
effective immediately issued through the Construction Manager and shall be
recorded by preparation and execution of an appropriate Change Order.
7.4 MINOR CHANGES IN THE WORK
7.4.1 The Architect will have authority to order minor changes in the Work not
involving adjustment in the Contract Sum or extension of the Contract Time and
not inconsistent with the intent of the Contract Documents. Such changes shall
be effected by written order issued through the Construction Manager and shall
be binding on the Owner and Contractor. The Contractor shall carry out such
written orders promptly.
ARTICLE 8
TIME
8.1 DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is the period of time, including
authorized adjustments, allotted in the Contract Documents for Substantial
Completion of the Work.
8.1.2 The date of commencement of the Work is the date established in the
Agreement. The date shall not be postponed by the failure to act of the
Contractor or of persons or entities for whom the Contractor is responsible.
8.1.3 The date of Substantial Completion is the date certified by the Architect
in accordance with Paragraph 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean calendar day
unless otherwise specifically defined.
8.2 PROGRESS AND COMPLETION
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
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8.2.1 Time limits stated in the Contract Documents are of the essence of the
Contract. By executing the Agreement the Contractor confirms that the Contract
Time is a reasonable period for performing the Work.
8.2.2 The Contractor shall not knowingly, except by agreement or instruction of
the Owner in writing, prematurely commence operations on the site or elsewhere
prior to the effective date of insurance required by Article 11 to be furnished
by the Contractor. The date of commencement of the Work shall not be changed by
the effective date of such insurance. Unless the date of commencement is
established by a notice to proceed given by the Owner, the Contractor shall
notify the Owner in writing not less than five days or other agreed period
before commencing the Work to permit the timely filing of mortgages, mechanic's
liens and other security interests.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall
ensure that his actions shall cause Substantial Completion within the Contract
Time to be achieved.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Contractor is delayed at any time in progress of the Work by an act
or neglect of the Owner's own forces, Construction Manager, Architect, any of
the other Contractors or an employee of any of them, or by changes ordered in
the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable
casualties or other causes beyond the Contractor's control, or by delay
authorized by the Owner pending mediation, or by other causes which the
Architect, based on the recommendation of the Construction Manager, determines
may justify delay, then the Contract Time shall be extended by Change Order for
such reasonable time as the Architect may determine.
8.3.2 Claims relating to time shall be made in accordance with applicable
provisions of Paragraph 4.7.
8.3.3 This Paragraph 8.3 does not preclude recovery of damages for delay by
either party under other provisions of the Contract Documents.
ARTICLE 9
PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
9.1.1 The Contract Sum is stated in the Agreement and, including authorized
adjustments, is the total amount payable by the Owner, through the Construction
Manager, to the Contractor for performance of the Work under the Contract
Documents.
9.2 SCHEDULE OF VALUES
9.2.1 Before the first Application for Payment, the Contractor shall submit to
the Architect, through the Construction Manager, a schedule of values allocated
to various portions of the Work, prepared in such form and supported by such
data to substantiate its accuracy as the Construction, Manager and Architect may
require. This schedule, unless objected to by the Construction Manager or
Architect, shall be used as a basis for reviewing the Contractor's Applications
for Payment.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 At least ten days before the date established for each progress payment,
the Contractor shall submit to the Construction Manager an itemized Application
for Payment for Work completed in accordance with the schedule of values. Such
application shall be notarized, if required, and supported by such data
substantiating the Contractor's right to payment as the Owner, Construction
Manager or Architect may require, such as copies of requisitions from
Sub-subcontractors and material suppliers, and reflecting retainage if provided
for elsewhere in the Contract Documents.
9.3.1.1 Such applications may include requests for payment on account of changes
in the Work which have been properly authorized by Construction Change
Directives but not yet included in Change Orders.
9.3.1.2 Such applications may not include requests for payment of amounts the
Contractor does not intend to pay to a Sub-subcontractor or material supplier
because of a dispute or other reason.
9.3.2 Unless otherwise provided in the Contract Documents, payments shall be
made on account of materials and equipment delivered and suitably stored at the
site for subsequent incorporation in the Work. If approved in advance by the
Owner, payment may similarly be made for materials and equipment suitably stored
off the site at a location agreed upon in writing. Payment for materials and
equipment stored on or off the site shall be conditioned upon compliance by the
Contractor with procedures satisfactory to the Owner to establish the Owner's
title to such materials and equipment or otherwise protect the Owner's interest,
and shall include applicable insurance, storage and transportation to the site
for such materials and equipment stored off the site.
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
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9.3.3 The Contractor warrants that title to all Work covered by an Application
for Payment will pass to the Owner no later than the time of payment. The
Contractor further warrants that upon submittal of an Application for Payment
all Work for which Certificates for Payment have been previously issued and
payments received from the Owner shall, to the best of the Contractor's
knowledge, information and belief, be free and clear of liens, claims, security
interests or encumbrances in favor of the Contractor, Subcontractors, material
suppliers, or other persons or entities making a claim by reason of having
provided labor, materials and equipment relating to the Work.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 The Construction Manager will assemble a Project Application for Payment
by combining the Contractor's applications with similar applications for
progress payments from other Contractors and, after certifying the amounts due
on such applications, forward them to the Architect within seven days.
9.4.2 Within seven days after the Architect's receipt of the Project Application
for Payment, the Construction Manager and Architect will either issue to the
Owner a Project Certificate for Payment, for such amount as the Construction
Manager and Architect determine is properly due, or notify the Contractor and
Owner in writing of the Construction Manager's and Architect's reasons for
withholding certification in whole or in part as provided in Subparagraph 9.5.1.
Such notification will be forwarded to the Contractor by the Construction
Manager.
9.4.3 The issuance of a separate Certificate for Payment or a Project
Certificate for Payment will constitute representations made separately by the
Construction Manager and Architect to the Owner, based on their individual
observations at the site and the data comprising the Application for Payment
submitted by the Contractor, that the Work has progressed to the point indicated
and that, to the best of the Construction Manager's and Architect's knowledge,
information and belief, quality of the Work is in accordance with the Contract
Documents. The foregoing representations are subject to an evaluation of the
Work for conformance with the Contract Documents upon Substantial Completion, to
results of subsequent tests and inspections, to minor deviations from the
Contract Documents correctable prior to completion and to specific
qualifications expressed by the Construction Manager or Architect. The issuance
of a separate Certificate for Payment or a Project Certificate for Payment will
further constitute a representation that the Contractor is entitled to payment
in the amount certified. However, the issuance of a separate Certificate for
Payment or a Project Certificate for Payment shall be a representation that the
Construction Manager has made it's best efforts (1) to perform on-site
inspections to check the quality or quantity of the Work, (2) to review the
Contractor's construction means, methods, techniques, sequences or procedures,
(3) to review copies of requisitions received from Subcontractors and material
suppliers and other data requested by the Owner to substantiate the Contractor's
right to payment or (4) to ascertain how or for what purpose the Contractor has
used money previously paid on account of the Contract Sum.
9.5 DECISIONS TO WITHHOLD
CERTIFICATION
9.5.1 The Construction Manager or Architect may decide not to certify payment
and may withhold a Certificate for Payment in whole or in part to the extent
reasonably necessary to protect the Owner, if in the Construction Manager's or
Architect's opinion the representations to the Owner required by Subparagraph
9.4.3 cannot be made. If the Construction Manager or Architect is unable to
certify payment in the amount of the Application, the Construction Manager or
Architect will notify the Contractor and Owner as provided in Subparagraph
9.4.2. If the Contractor, Construction Manager and Architect cannot agree on a
revised amount, the Construction Manager and Architect will promptly issue a
Certificate for Payment for the amount for which the Construction Manager and
Architect are able to make such representations to the Owner. The Construction
Manager or Architect may also decide not to certify payment or, because of
subsequently discovered evidence or subsequent observations, may nullify the
whole or a part of a Certificate for Payment previously issued, to such extent
as may be necessary in the Construction Manager's or Architect's opinion to
protect the Owner from loss because of:
.1 defective Work not remedied;
.2 third party claims filed or reasonable evidence indicating
probable filing of such claims;
.3 failure of the Contractor to make payments properly to
Sub-subcontractors or for labor, materials or
equipment;
.4 reasonable evidence that the Work cannot be completed for the
unpaid balance of the Contract Sum;
.5 damage to the Owner or another contractor;
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
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.6 reasonable evidence that the Work will not be completed within
the Contract Time, and that the unpaid balance would not be
adequate to cover actual or liquidated damages for the
anticipated delay; or
.7 persistent failure to carry out the Work in accordance with
the Contract Documents.
9.5.2 When the above reasons for withholding certification are removed,
certification will be made for amounts previously withheld.
9.6 PROGRESS PAYMENTS
9.6.1 After the Construction Manager and Architect have issued a Project
Certificate for Payment, the Owner shall make payment in the manner and within
the time provided in the Contract Documents, and shall so notify the
Construction Manager and Architect.
9.6.2 The Construction Manager shall promptly pay each Subcontractor, upon
receipt of payment from the Owner, out of the amount paid to the Construction
Manager on account of such Subcontractor's portion of the Work, the amount to
which said Subcontractor is entitled, reflecting percentages actually retained
from payments to the Construction Manager on account of such Subcontractor's
portion of the Work. The Construction Manager shall, by appropriate agreement
with each Subcontractor, require each Subcontractor to make payments to
Sub-subcontractors in similar manner.
9.6.3 The Construction Manager will, on request, furnish to a Subcontractor, if
practicable, information regarding percentages of completion or amounts applied
for and action taken thereon by the Owner, Construction Manager and Architect on
account of portions of the Work done by such Subcontractor.
9.6.4 Neither the Owner, Construction Manager nor Architect shall have an
obligation to pay or to see to the payment of money to a Subcontractor except as
may otherwise be required by law.
9.6.5 Payment to material suppliers shall be treated in a manner similar to that
provided in Subparagraphs 9.6.2, 9.6.3 and 9.6.4.
9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or
occupancy of the Project by the Owner shall not constitute acceptance of Work
not in accordance with the Contract Documents.
9.7 FAILURE OF PAYMENT
9.7.1 If, through no fault of the Contractor, 1) the Construction Manager and
Architect do not issue a Project Certificate for Payment within twenty-one days
after the Construction Manager's receipt of the Contractor's Application for
Payment or 2) the Owner does not pay the Construction Manager within fifteen
days after the date established in the Documents the amount certified by the
Construction, Manager and Architect or awarded by mediation, then the Contractor
may, upon seven additional days' written notice to the Owner, Construction,
Manager and Architect, stop the Work until payment of the amount owing has been
received. The Contract Time shall be extended appropriately and the Contract Sum
shall be increased by the amount of the Contractor's reasonable costs of
shut-down, delay and start-up, which shall be accomplished as provided in
Article 7.
9.8 SUBSTANTIAL COMPLETION
9.8.1 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 the Owner can occupy or utilize the Work for its
intended use.
9.8.2 When the Construction Manager considers that the Work, or a portion
thereof which the Owner agrees to accept separately, is substantially complete,
the Construction Manager shall prepare and submit to the Architect a
comprehensive list of items to be completed or corrected. The Construction
Manager shall proceed promptly to have the Contractors complete and correct
their respective items on the list. Failure to include an item on such list does
not alter the responsibility of a Contractor to complete all of his Work in
accordance with the Contract Documents. Upon receipt of the list, the Architect,
assisted by the Construction Manager, will make an inspection to determine
whether the Work or designated portion thereof is substantially complete. If the
Architect's inspection discloses any item, whether or not included on the list,
which is not in accordance with the requirements of the Contract Documents, the
responsible Contractor shall, before issuance of the Certificate of Substantial
Completion, complete or correct such item upon notification by the Architect.
The Contractor shall then submit a request for another inspection by the
Architect, assisted by the Construction Manager, to determine Substantial
Completion. When the Work or designated portion thereof is substantially
complete, the Architect will prepare a Certificate of Substantial Completion
which shall establish the date of Substantial Completion, shall establish
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
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responsibilities of the Owner and Contractor(s) for security, maintenance, heat.
utilities, damage to the Work and insurance, and shall fix the time within which
the Contractor(s) shall furnish 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 or designated portion, thereof unless
otherwise provided in the Certificate of Substantial Completion. The Certificate
of Substantial Completion shall be submitted to the Owner and Contractor(s) for
their written acceptance of responsibilities assigned to them in such
Certificate.
9.8.3 Upon Substantial Completion of the Work or designated portion thereof and
upon application by the Contractor and certification by the Construction Manager
and Architect, the Owner shall make payment, reflecting adjustment in retainage,
if any, for such Work or portion thereof as provided in the Contract Documents.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed or partially completed portion
of the Work at any stage when such portion is designated by separate agreement
with the Construction Manager provided such occupancy or use is consented to by
the insurer as required under Subparagraph 11.3.11 and authorized by public
authorities having jurisdiction over the Work. Such partial occupancy or use may
commence whether or not the portion is substantially complete, provided the
Owner and Construction Manager have accepted in writing the responsibilities
assigned to each of them for payments, retainage if any, security, maintenance,
heat, utilities, damage to the Work and insurance, and have agreed in writing
concerning the period for correction of the Work and commencement of warranties
required by the Contract Documents. When the Construction Manager considers a
portion substantially complete, the and Construction Manager shall jointly
prepare and submit a list to the Architect as provided under Subparagraph 9.8.2.
Consent of the Construction Manager to partial occupancy or use shall not be
unreasonably withheld. The stage of the progress of the Work shall be determined
by written agreement between the Owner and Contractor Construction Manager or,
if no agreement is reached, by decision of the Architect after consultation with
the Construction Manager.
9.9.2 Immediately prior to such partial occupancy or use, the Owner,
Construction Manager, Contractor(s) and Architect shall jointly inspect the area
to be occupied or portion of the Work to be used in order to determine and
record the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or
portion,s of the Work shall not constitute acceptance of Work not complying with
the requirements of the Contract Documents.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Upon completion of the Work, the Construction Manager shall forward to
the Architect a written notice that the Work is ready for final inspection and
acceptance and shall also forward to the Architect a final Contractor's
Application for Payment. Upon receipt, the Architect will promptly make such
inspection. When the Architect, based on the recommendation of the Construction
Manager, finds the Work acceptable under the Contract Documents and the Contract
fully performed, the Construction Manager and Architect will promptly issue a
final Certificate for Payment stating that to the best of their knowledge,
information and belief, and on the basis of their observations and inspections,
the Work has been completed in accordance with terms and conditions of the
Contract Documents and that the entire balance found to be due the Contractor
and noted in said final Certificate is due and payable. The Construction
Manager's and Architect's final Certificate for Payment will constitute a
further representation that conditions listed in Subparagraph 9.10.2 as
precedent to the Contractor's being entitled to final payment have been
fulfilled.
9.10.2 Neither final payment nor any remaining retained percentage shall become
due until the Contractor submits to the Architect through the Construction
Manager (1) an affidavit 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 Owner)
have been paid or other wise satisfied, (2) a certificate evidencing that
insurance 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 30 days' prior written notice has been given to the Owner, (3) a
written statement that the Contractor knows of no substantial reason that the
insurance will not be renewable to cover the period required by the Contract
Documents, (4) consent of surety, if any, to final payment and (5), if required
by the Owner, other data establishing payment or satisfaction of obligations,
such as receipts, releases and waivers of liens, claims, security interests or
encumbrances arising out of the Contract, to the extent and in such form as may
be designated by the Owner. If a Subcontractor refuses to furnish a release or
waiver required by the Owner, the Owner may cause to have furnished a bond
satisfactory to the Owner to
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
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51
indemnify the Owner against such lien. If such lien remains unsatisfied after
payments are made, the Contractor shall refund to the Owner all money that the
Owner may be compelled to pay in discharging such lien,, including all costs and
reasonable attorneys' fees.
9.10.3 If, after Substantial Completion of the Work, final completion, thereof
is materially delayed through no fault of the Contractor or by issuance of
Change Orders affecting final completion, and the Construction Manager and
Architect so confirm, the Owner shall, upon application by the Contractor and
certification by the Construction Manager and Architect, and without terminating
the Contract, make payment of the balance due for that portion of the Work fully
completed and accepted. If the remaining balance for Work not fully completed or
corrected is less than retainage stipulated in the Contract Documents, and if
bonds have been furnished, the written consent of surety to payment of the
balance due for that portion of the Work fully completed and accepted shall be
submitted by the Contractor to the Architect through the Construction Manager
prior to certification of such payment. Such payment shall be made under terms
and conditions governing final payment, except that it shall not constitute a
waiver of Claims. The making of final payment shall constitute a waiver of
Claims by the Owner as provided in Subparagraph 4.4.5.
9.10.4 Acceptance of final payment by a Subcontractor or material supplier
shall constitute a waiver of claims by that payee except those previously made
in writing and identified by that payee as unsettled at the time of final
Application for Payment. Such waivers shall be in addition to the waiver
described in Subparagraph 4.7.5.
ARTICLE 10
PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
10.1.1 The Construction Manager shall use it's best efforts in initiating,
maintaining and supervising all safety precautions and programs in connection
with the performance of the Contract. The Contractors shall submit their
respective Contractor's safety program to the Construction Manager for review
and coordination with the safety programs of other Contractors.
10.1.2 In the event a Contractor encounters on the site material reasonably
believed to be asbestos or polychlorinated biphenyl (PCB) which has not been
rendered harmless, the Contractor shall immediately stop Work in the area
affected and report the condition to the Owner, Construction Manager and
Architect in writing. The Work in the affected area shall not thereafter be
resumed except by written agreement of the Owner and Contractor if in fact the
material is asbestos or polychlorinated biphenyl (PCB) and has not been rendered
harmless. The Work in the affected area shall be resumed in the absence of
asbestos or polychlorinated biphenyl (PCB), or when it has been rendered
harmless, by written agreement of the Owner and Contractor, or in accordance
with final determination by the Architect on which mediation has not been
demanded, or by mediation under Article 4.
10.1.3 The Contractor shall not be required pursuant to Article 7 to perform
without consent any Work relating to asbestos or polychlorinated biphenyl (PCB)
10.1.4 To the fullest extent permitted by law, the Owner shall indemnify and
hold harmless the Contractor, Construction Manager, Architect, their
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 performance of the Work in the affected area if
in fact the material is asbestos or polychlorinated biphenyl (PCB) and has not
been rendered harmless, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or
destruction of tangible property (other than the Work itself) including loss of
use resulting therefrom, but only to the extent caused in whole or in part by
negligent acts or omissions of the Owner, anyone directly or indirectly employed
by the Owner or anyone for whose acts the Owner may be liable, regardless of
whether or not such claim, damage, loss or expense is caused in part by a patty
indemnified hereunder. 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 Subparagraph 10.1.4.
10.1.5 If reasonable precautions will be inadequate to prevent foreseeable
bodily injury or death to persons resulting from a material or substance
encountered on the site by a Contractor, the Contractor shall, upon recognizing
the condition, immediately stop Work in the affected area and report the
condition to the Owner, Construction Manager and Architect in writing. The
Owner, Contractor, Construction Manager and Architect shall then proceed in the
same manner described in Subparagraph 10.1.2.
10.1.6 The Owner shall be responsible for obtaining the services of a licensed
laboratory to verify a presence or absence of the material or substance reported
by the Contractor and, in the event such material or substance is found to be
present, to verify that it has been rendered harmless. Unless otherwise required
by the Contract
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
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AIA and can be reproduced without violation until the date of expiration as
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52
Documents, the Owner shall furnish in writing to the Construction Manager and
Architect the names and qualifications of persons or entities who are to perform
tests verifying the presence or absence of such material or substance or who are
to perform the task of removal or safe containment of such material or
substance. The Construction Manager and the Architect will promptly reply to the
Owner in writing stating whether or not any of them has reasonable objection to
the persons or entities proposed by the Owner. If the Construction Manager or
Architect has an objection to a person or entity proposed by the Owner, the
Owner shall propose another to whom the Construction Manager and the Architect
have no reasonable objection.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Construction Manager shall take reasonable precautions for safety of,
and shall provide or cause to have provided reasonable protection to prevent
damage, injury or loss to:
.1 employees on the Work of 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 Contractor or Sub-subcontractors;
.3 other property at the site 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; and
.4 construction or operations by the Owner or other Contractors.
10.2.2 The Construction Manager shall give notices and comply with applicable
laws, ordinances, rules, regulations and lawful orders of public authorities
bearing on safety of persons or property or their protection from damage, injury
or loss.
10.2.3 The Construction Manager shall erect and maintain, as required by
existing conditions and performance of the Contract, reasonable safeguards for
safety and protection, including posting danger signs and other warnings against
hazards, promulgating safety regulations and notifying owners and users of
adjacent sites and utilities.
10.2.4 When use for storage of explosives or other hazardous materials or
equipment or unusual methods are necessary for execution of the Work, the
Construction Manager shall exercise utmost care and carry on such activities
under supervision of properly qualified personnel.
10.2.5 The Construction Manager shall use it's best efforts to promptly remedy
damage and loss (other than damage or loss insured under property insurance
required by the Contract Documents) to property referred to in Clauses 10.2.1.2,
10.2.1.3 and 10.2.1.4 caused in whole or in part by a Subcontractor, a
Sub-subcontractor, or anyone directly or indirectly employed by any of them, or
by anyone for whose acts they may be liable and for which the Construction
Manager is responsible under Clauses 10.2.1.2, 10.2.1.3 and 10.2.1.4, except
damage or loss attributable to acts or omissions of the Owner, or Architect or
anyone directly or indirectly employed by any of them, or by anyone for whose
acts any of them may be liable, and not attributable to the fault or negligence
of the Construction Manager. The foregoing obligations of the Construction
Manager are in addition to the Construction Manager's obligations under
Paragraph 3.18.
10.2.6 The Construction Manager shall designate a responsible member of the
Construction Manager's organization at the site whose duty shall be the
prevention of accidents.
10.2.7 The Construction Manager shall use it's best efforts to ensure that no
part of the construction or site is loaded so as to endanger its safety.
10.3 EMERGENCIES
10.3.1 In an emergency affecting safety or persons or property, the Construction
Manager shall act, at the Construction Manager's discretion, to prevent
threatened damage, injury or loss. Additional compensation or extension of time
claimed by the Construction Manager on account of an emergency shall be
determined as provided in Paragraph 4.7 and Article 7.
ARTICLE 11
INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 The Construction Manager shall purchase
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
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53
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 Construction Manager from claims set forth below which may arise out
of or result from the Construction Manager's operations under the Contract and
for which the Construction Manager may be legally liable, whether such
operations be by the Construction Manager or by a Subcontractor 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 acts which are applicable to the Work to be
performed;
.2 claims for damages because of bodily injury, occupational sickness
or disease, or death of the Construction Manager's employees;
.3 claims for damages because of bodily injury, sickness or disease, or
death of any person other than the Construction Manager's employees;
.4 claims for damages insured 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 Construction Manager, 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
Construction Manager's obligations under Paragraph 3.1 8.
11.1.2 The insurance required by Subparagraph 11.1.1 shall be written for not
less than limits of liability specified in the Contract Documents or required by
law, whichever coverage is greater. 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.
11.1.3 Certificates of insurance acceptable to the Owner shall be submitted to
the Owner with a copy to the Architect prior to commencement of the Work. These
certificates and the insurance policies required by this Paragraph 11.1 shall
contain a provision that coverages afforded under the policies will not be
canceled or allowed to expire until at least 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 and are reasonably available, an
additional certificate evidencing continuation of such coverage shall be
submitted with the final Application for Payment as required by Subparagraph
9.10.2. Information concerning reduction of coverage shall be furnished by the
Construction Manager with reasonable promptness in accordance with the
Construction Manager's information and belief.
11.2 OWNER'S LIABILITY INSURANCE
11.2.1 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 the Contract. The Construction Manager shall not be responsible for
purchasing and maintaining this optional Owner's liability insurance unless
specifically required by the Contract Documents.
11.3 PROPERTY INSURANCE
11.3.1 Unless otherwise provided, the Owner shall purchase and maintain, in a
company or companies lawfully authorized to do business in the jurisdiction in
which the Project is located, property insurance in the amount of the initial
estimated Contract Sum as well as subsequent modifications thereto for the
entire Work at the site on a replacement cost basis without voluntary
deductibles. 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 as provided in Paragraph 9.10 or until no person or entity other than
the Owner has an insurable interest in the property required by this Paragraph
11.3 to be covered, whichever is earlier. This insurance shall include interests
of the Owner, the Construction Manager, Subcontractors and Sub-subcontractors in
the Work.
11.3.1.1 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,
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
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AIA and can be reproduced without violation until the date of expiration as
noted below.
54
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 Architect's services and expenses required as a
result of such insured loss. Coverage for other perils shall not be required
unless otherwise provided in the Contract Documents.
11.3.1.2 If the Owner does not intend to purchase such property insurance
required by the Contract and with all of the coverages in the amount described
above, the Owner shall so inform the Construction Manager in writing prior to
commencement of the Work. The Construction Manager may then effect insurance
which will protect the interests of the Construction Manager, Subcontractors and
Sub-subcontractors in the Work, and by appropriate Change Order the cost thereof
shall be charged to the Owner. If the Construction Manager is damaged by the
failure or neglect of the Owner to purchase or maintain insurance as described
above, without so notifying the Construction Manager, then the Owner shall bear
all reasonable costs properly attributable thereto.
11.3.1.3 If the property insurance requires minimum deductibles and such
deductibles are identified in the Contract Documents, the Owner shall pay costs
not covered because of such deductibles. If the Owner or insurer increases the
required minimum deductibles above the amounts so identified or if the Owner
elects to purchase this insurance with voluntary deductible amounts, the Owner
shall be responsible for payment of the additional costs not covered because of
such increased or voluntary deductibles.
11.3.1.4 Unless otherwise provided in the Contract Documents, this property
insurance shall cover portions of the Work stored off the site after written
approval of the Owner at the value established in the approval, and also
portions of the Work in transit.
11.3.1.5 The insurance required by this Paragraph 11.3 is not intended to cover
machinery, tools or equipment owned or rented by the Construction Manager or the
Contractors which are utilized in the performance of the Work but not
incorporated into the permanent improvements. The Construction Manager shall, at
the Construction Manager's own expense, provide insurance coverage for owned or
rented machinery, tools or equipment which shall be subject to the provisions of
Subparagraph 11.3.7.
11.3.2 BOILER AND MACHINERY INSURANCE. The Owner shall purchase and maintain
boiler and machinery insurance required by the Contract Documents or by law,
which shall specifically cover such insured objects during installation and
until final acceptance by the Owner; this insurance shall include interests of
the Owner, Construction Manager, Subcontractors and Sub-subcontractors in the
Work, and the Owner and Construction Manager shall be named insureds.
11.3.3 LOSS OF USE INSURANCE. 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 fife or other hazards, however caused. The Owner waives
all rights of action against the Construction Manager, for loss of use of the
Owner's property, including consequential losses due to fife or other hazards
however caused.
11.3.4 If the Construction Manager 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, include such
insurance.
11.3.5 If during the Project construction period the Owner insures properties,
real or personal or both, adjoining or adjacent to the site by property
insurance under policies separate from those insuring the Project, or if after
final payment property insurance is to be provided on the completed Project
through a policy or policies other than those insuring the Project during the
construction period, the Owner shall waive all rights in accordance with the
terms of Subparagraph 11.3.7 for damages caused by fife or other perils covered
by this separate property insurance. All separate policies shall provide this
waiver of subrogation by endorsement or otherwise.
11.3.6 Before an exposure to loss may occur, the Owner shall file with the
Construction Manager, a copy of each policy that includes insurance coverages
required by this Paragraph 11.3. Each policy shall contain all generally
applicable conditions, definitions, exclusions and endorsements related to this
Project. Bach policy shall contain a provision that the policy will not be
canceled or allowed to expire until at least 30 days' prior written notice has
been given to the Contractor.
11.3.7 Waivers of Subrogation. The Owner and Construction Manager waive all
rights against each other and against the Architect, Owner's other Contractors
and own forces described in Article 6, if any, and the subcontractors,
sub-subcontractors, consultants, agents and employees of any of them, for
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
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55
damages caused by fife or other perils to the extent covered by property
insurance obtained pursuant to this Paragraph 11.3 or other property insurance
applicable to the Work, except such rights as the Owner and Construction Manager
may have to the proceeds of such insurance held by the Owner as fiduciary. The
Owner or Construction Manager, Construction Manager's consultants, as
appropriate, shall require of the Architect, Architect's consultants, Owner's
separate contractors described in Article 6, if any, and the subcontractors,
sub-subcontractors, agents and employees of any of them, by appropriate
agreements, written where legally required for validity, similar waivers each in
favor of other parties enumerated herein. 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.
11.3.8 A loss insured under 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 Subparagraph 11.3.10. The Construction Manager shall pay
Subcontractors their just shares of insurance proceeds received by the
Construction Manager and by appropriate agreements, written where legally
required for validity, shall require Subcontractors to make payments to their
Sub-subcontractors in similar manner.
11.3.9 If required in writing by a party in interest, the Owner as fiduciary
shall, upon occurrence of an insured loss, give bond for proper performance of
the Owner's duties. The cost of required bonds shall be charged against proceeds
received as fiduciary. The Owner shall deposit in a separate account proceeds so
received, which the Owner shall distribute in accordance with such agreement as
the parties in interest may reach, or in accordance with a mediation award in
which case the procedure shall be as provided in Paragraph 4.9. If after such
loss no other special agreement is made, replacement of damaged property shall
be covered by appropriate Change Order.
11.3.10 The Owner as fiduciary shall have power to adjust and settle a loss with
insurers unless one of the parties in interest shall object in writing within
five days after occurrence of loss to the Owner's exercise of this power if such
objection be made, mediators shall be chosen as provided in Paragraph 4.9. The
Owner, as fiduciary shall, in that case, make settlement with insurers in
accordance with directions of such mediators. If distribution of insurance
proceeds by mediation is required, the mediators will direct such distribution.
11.3.11 Partial occupancy or use in accordance with Paragraph 9.9 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 Construction Manager, shall take reasonable steps to obtain
consent of the insurance company or, companies and shall, without mutual written
consent, take no action with respect to partial occupancy or use that would
cause cancellation, lapse or reduction of insurance.
11.4 PERFORMANCE BOND AND PAYMENT
BOND
11.4.1 The Owner shall have the right to require the Contractor(s) to furnish
bonds covering faithful performance of the Contract and payment of obligations
arising thereunder as stipulated in bidding requirements or specifically
required in the Contract Documents on the date of execution of the Contract.
11.4.2 Upon the request of any person or entity appearing to be a potential
beneficiary of bonds covering payment of obligations arising under, the
Contract, the Contractor(s) shall promptly furnish a copy of the bonds or shall
permit a copy to be made.
ARTICLE 12
UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to the Construction
Manager's or Architect's request or to requirements specifically expressed in
the Contract Documents, it must, if required in writing by either, be uncovered
for their observation and be replaced at the Contractor's expense without change
in the Contract Time.
12.1.2 If a portion of the Work has been covered which the Construction Manager
or Architect has not specifically requested to observe prior to its being
covered, the Construction Manager or Architect may request to see such Work and
it shall be uncovered by the Contractor. If such Work is in accordance with the
Contract Documents, costs of uncovering and replacement shall, by appropriate
Change Order, be charged to the Owner. If such Work is not in
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
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56
accordance with the Contract Documents, the Contractor shall pay such costs
unless the condition was caused by the Owner or one of the other Contractors in
which event the Owner, shall be responsible for payment of such costs.
12.2 CORRECTION OF WORK
12.2.1 A Contractor shall promptly correct Work rejected by the Construction
Manager or Architect 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 Contractor shall bear costs of
correcting such rejected Work, including additional testing and inspections and
compensation for the Construction Manager's and Architect's services and
expenses made necessary thereby.
12.2.2 If, within one year after the date of Substantial Completion of the Work
or designated portion thereof, or after the date for, commencement of warranties
established under Subparagraph 9.9.1, or, by terms of an 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 Contractor
shall correct it promptly after receipt of written notice from the Owner or the
Construction Manager to do so unless the Owner has previously given the
Contractor a written acceptance of such condition. This period of one year shall
be extended with respect to portions of Work first performed after Substantial
Completion by the period of time between Substantial Completion and the actual
performance of the Work. This obligation under this Subparagraph 12.2.2 shall
survive acceptance of the Work under the Contract and termination of the
Contract. The Owner shall give such notice promptly after discovery of the
condition.
12.2.3 The Contractor shall remove from the site portions of the Work which are
not in accordance with the requirements of the Contract Documents and are
neither corrected by the Contractor nor accepted by the Owner.
12.2.4 If the Contractor fails to correct nonconforming Work within a reasonable
time, the Owner may correct it in accordance with Paragraph 2.4. If the
Contractor does not proceed with correction of such nonconforming Work within a
reasonable time fixed by written notice from the Architect issued through the
Construction Manager, the Owner may remove it and store the salvable materials
or equipment at the Contractor's expense. If the Contractor does not pay costs
of such removal and storage within ten days after written notice, the Owner may
upon ten additional days' written notice sell such materials and equipment at
auction or at private sale and shall account for the proceeds thereof, after
deducting costs and damages that should have been borne by the Contractor,,
including compensation for the Construction Manager's and Architect's services
and expenses made necessary thereby. If such proceeds of sale do not cover costs
which the Contractor, should have borne, the Contract Sum shall be reduced by
the deficiency. If payments then or thereafter due the Contractor are not
sufficient to cover such amount, the Contractor shall pay the difference to the
Owner.
12.2.5 The Contractor shall bear the cost of correcting destroyed or, damaged
construction, whether completed or partially completed, of the Owner, or other
Contractors caused by the Contractor's correction or removal of Work which is
not in accordance with the requirements of the Contract Documents.
12.2.6 Nothing contained in this Paragraph 12.2 shall be construed to establish
a period of limitation with respect to other obligations which the Contractor
might have under the Contract Documents. Establishment of the time period of one
year as described in Subparagraph 12.2.2 relates only to the specific obligation
of the Contractor 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 Contractor's liability with respect to the Contractor's
obligations other than specifically to correct the Work.
12.3 ACCEPTANCE OF NONCONFORMING
WORK
12.3.1 If the Owner prefers to accept Work which is not in accordance with the
requirements of the Contract Documents, the Owner may do so instead of requiring
its removal and correction, in which case the Contract Sum will be reduced as
appropriate and equitable. Such adjustment shall be effected whether or not
final payment has been made.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 GOVERNING LAW
13.1.1 The Contract shall be governed by the law of the place where the Project
is located.
13.2 SUCCESSORS AND ASSIGNS
13.2.1 The Owner and Construction Manager respectively bind themselves, their
partners, successors, assigns and legal representatives to the other party
hereto and to partners, successors, assigns and legal representatives of
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
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57
such other party in respect to covenants, agreements and obligations contained
in the Contract Documents. Neither party to the Contract shall assign the
Contract as a whole without written consent of the other. If either, patty
attempts to make such an assignment without such consent, that patty shall
nevertheless remain legally responsible for, all obligations under the Contract.
13.3 WRITTEN NOTICE
13.3.1 Written notice shall be deemed to have been duly served if delivered in
person to the individual or a member of the firm or entity or to an officer, of
the corporation for, which it was intended, or, if delivered at or sent by
registered or certified mail to the last business address known to the patty
giving notice.
13.4 RIGHTS AND REMEDIES
13.4.1 Duties and obligations imposed by the Contract Documents and rights and
remedies available thereunder shall be in addition to and not a limitation of
duties, obligations, rights and remedies otherwise imposed or, available by law.
13.4.2 No action or failure to act by the Owner, Construction Manager, Architect
or Contractor shall constitute a waiver of a right or, duty afforded them under
the Contract, nor shall such action or failure to act constitute approval of or
acquiescence in a breach thereunder, except as may be specifically agreed in
writing.
13.5 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the Work required by the
Contract Documents or by laws, ordinances, rules, regulations or orders of
public authorities having jurisdiction shall be made at an appropriate time.
Unless otherwise provided, the Construction Manager shall make arrangements for
such tests, inspections and approvals with an independent testing laboratory or
entity acceptable to the Owner, or with the appropriate public authority and the
Owner shall bear all related costs of tests, inspections and approvals through
which the Construction Manager, has been directed by the Owner to contract
directly with those agencies to perform such tests, inspections, and/or
approvals. This does not apply to those tests normally performed by the
governmental agencies in which the project is constructed and is compensated by
the fees normally paid by the respective subcontractors; (i.e. The fee for the
Electrical Permit is paid by the electrical subcontractor and inspections by the
respective governmental agency of the electrical work is performed at no other
costs to the Owner.) The Construction Manager shall give the Architect timely
notice of when and where tests and inspections are to be made so the Architect
may observe such procedures if he so desires. The Owner shall bear, costs of
tests, inspections or approvals which do not become requirements until after
bids are received or negotiations concluded.
13.5.2 If the Construction Manager,, Architect, Owner or, public authorities
having jurisdiction determine that portions of the Work require additional
testing, inspection or, approval not included under Subparagraph 13.5.1, the
Construction Manager and Architect will, upon written authorization from the
Owner, instruct the Contractor to make arrangements for such additional testing,
inspection or approval by an entity acceptable to the Owner, and the Contractor
shall give timely notice to the Construction Manager and Architect of when and
where tests and inspections are to be made so the Construction Manager and
Architect may observe such procedures. The Owner shall bear such costs except as
provided in Subparagraph 13.5.3.
13.5.3 If such procedures for testing, inspection or, approval under
Subparagraphs 13.5.1 and 13.5.2 reveal failure of the portions of the Work to
comply with requirements established by the Contract Documents, the Contractor
shall bear all costs made necessary by such failure including those of repeated
procedures and compensation for, the Construction Manager's and Architect's
services and expenses.
13.5.4 Required certificates of testing, inspection or approval shall, unless
otherwise required by the Contract Documents, be secured by the Contractor and
promptly delivered to the Construction Manager for transmittal to the Architect.
13.5.5 If the Construction Manager or Architect is to observe tests, inspections
or approvals required by the Contract Documents, the Construction Manager or
Architect will do so promptly and, where practicable, at the normal
place of testing.
13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall
be made promptly to avoid unreasonable delay in the Work.
13.6 INTEREST
13.6.1 Payments due and unpaid under the Contract Documents shall bear interest
from the date payment is due at such rate as the parties may agree upon in
writing or, in the absence thereof, at the legal rate prevailing from time to
time at the place where the Project is located.
13.7 COMMENCEMENT OF STATUTORY
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
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58
LIMITATION PERIOD
13.7.1 As between the Owner and Construction Manager:
.1 Before Substantial Completion. As to acts or failures to act
occurring prior to the relevant date of Substantial Completion, any
applicable statute of limitations shall commence to run and any
alleged cause of action shall be deemed to have accrued in any and
all events not later than such date of Substantial Completion;
.2 Between Substantial Completion and Final Certificate for Payment. As
to acts or failures to act occurring subsequent to the relevant date
of Substantial Completion and prior to issuance of the final
Certificate for Payment, any applicable statute of limitations shall
commence to run and any alleged cause of action shall be deemed to
have accrued in any and all events not later than the date of
issuance of the final Certificate for, Payment; and
.3 After Final Certificate for Payment. As to acts or failures to act
occurring after the relevant date of issuance of the final
Certificate for Payment, any applicable statute of limitations shall
commence to run and any alleged cause of action shall be deemed to
have accrued in any and all events not later than the date of any
act or failure to act by the Contractor pursuant to any warranty
provided under Paragraph 3.5, the date of any correction of the Work
or failure to correct the Work by the Contractor under Paragraph
12.2, or the date of actual commission of any other act or failure
to perform any duty or obligation by the Contractor or Owner,
whichever occurs last.
ARTICLE 14
TERMINATION OR SUSPENSION
OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Construction Manager, may terminate the Contract if the Work is
stopped for a period of 30 days through no act or fault of the Construction
Manager or a Subcontractor, Sub-subcontractor or their agents or, employees or
any other persons performing portions of the Work under contract with the
Construction Manager, for any of the following reasons:
.1 issuance of an order of a court or other public authority having
jurisdiction;
.2 an act of government, such as a declaration of national emergency,
making material unavailable;
.3 because the Architect has not issued a Certificate for Payment and
has not notified the Construction Manager of the reason for
withholding certification as provided in Subparagraph 9.4.2, or
because the Owner has not made payment on a Certificate for Payment
within the time stated in the Contract Documents;
.4 if repeated suspensions, delays or interruptions by the Owner, as
described in Paragraph 14.3 constitute in the aggregate more than
100 percent of the total number of days scheduled for, completion,
or 120 days in any 365-day period, whichever is less; or
.5 the Owner has failed to furnish to the Construction Manager
promptly, upon the Construction Manager's request, reasonable
evidence as required by Subparagraph 2.2.1.
14.1.2 If one of the above reasons exists, the Construction Manager may, upon
seven additional days' written notice to the Owner, and Architect, terminate the
Contract and recover from the Owner payment for Work executed and for proven
loss with respect to materials, equipment, tools, and construction equipment and
machinery, including reasonable overhead, profit and damages.
14.1.3 If the Work is stopped for a period of 30 days through no act or fault of
the Construction Manager or a Subcontractor or their agents or employees or any
other persons performing portions of the Work under contract with the
Construction Manager because the Owner has persistently failed to fulfill the
Owner's obligations under the Contract Documents with respect to matters
important to the progress of the Work, the Construction Manager, upon seven
additional days' written notice to the Owner, and Architect, terminate the
Contract and recover from the Owner as provided in Subparagraph 14.1.2.
14.2 TERMINATION BY THE OWNER FOR
CAUSE
14.2.1 The Owner may terminate the Contract if the Construction Manager:
.1
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
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59
.2 fails to make payment to Subcontractors for materials or labor, in
accordance with the respective agreements between the Construction
Manager and the Subcontractors;
.3 persistently disregards laws, ordinances, or rules, regulations or,
orders of a public authority having jurisdiction; or
.4 otherwise is guilty of substantial breach of a provision of the
Contract Documents.
14.2.2 When any of the above reasons exist, the Owner, after consultation with
the Architect, and upon certification by the Architect that sufficient cause
exists to justify such action, may without prejudice to any other rights or
remedies of the Owner and after giving the Construction Manager and the
Construction Manager's surety, if any, seven days' written notice, terminate
employment of the Construction Manager and may, subject to any prior rights of
the surety:
.1 take possession of the site and of all materials, equipment, tools,
and construction equipment and machinery thereon owned by the
Construction Manager;
.2 accept assignment of subcontracts pursuant to Paragraph 5.4; and
.3 furnish the Work by whatever reasonable method the Owner may deem
expedient.
14.2.3 When the Owner terminates the Contract for one of the reasons stated in
Subparagraph 14.2.1, the Construction Manager shall not be entitled to receive
further payment until the Work is finished. However, the Construction Manager
shall be reimbursed for his costs through the date of termination.
14.2.4
14.3 SUSPENSION BY THE OWNER FOR
CONVENIENCE
14.3.1 The Owner may, without cause, order the Construction Manager in writing
to suspend, delay or interrupt the Work in whole or in part for such period of
time as the Owner may determine.
14.3.2 An adjustment shall be made for increases in the cost of performance of
the Contract, including profit on the increased cost of performance, caused by
suspension, delay or interruption. No adjustment shall be made to the extent:
.1 that performance is, was or would have been so suspended, delayed or
interrupted by another cause for which the Construction Manager is
responsible; or
.2 that an equitable adjustment is made or denied under another
provision of this Contract.
14.3.3 Adjustments made in the cost of performance may have a mutually agreed
fixed or percentage fee.
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AIA DOCUMENT A201/CMa - GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION -
CONSTRUCTION MANAGER-ADVISER EDITION AIA(R) - (c) 1992 THE AMERICAN INSTITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C., 20006-5292. WARNING -
Unlicensed photocopying violates U.S. copyright laws and is subject to legal
prosecution. This document was electronically produced with permission of the
AIA and can be reproduced without violation until the date of expiration as
noted below.