EXHIBIT 10.13
Agreement Between Owner and Architect
With Descriptions of Designated Services
And Terms and Conditions
TABLE OF ARTICLES
PART 1 - FORM OF AGREEMENT
ARTICLE 1.1 SCHEDULE OF DESIGNATED SERVICES
ARTICLE 1.2 COMPENSATION
ARTICLE 1.3 PAYMENTS
ARTICLE 1.4 TIME AND COST
ARTICLE 1.5 ENUMERATION OF DOCUMENTS
ARTICLE 1.6 OTHER CONDITIONS OR SERVICES
PART 2 - DESCRIPTIONS OF DESIGNATED SERVICES
ARTICLE 2.1 DESIGNATED SERVICES
ARTICLE 2.2 PHASES OF DESIGNATED SERVICES
ARTICLE 2.3 DESCRIPTIONS OF DESIGNATED SERVICES
ARTICLE 2.4 DESCRIPTIONS OF SUPPLEMENTAL SERVICES
PART 3 - TERMS AND CONDITIONS
ARTICLE 3.1 ARCHITECT'S RESPONSIBILITIES
ARTICLE 3.2 OWNER'S RESPONSIBILITIES
ARTICLE 3.3 CONTRACT ADMINISTRATION
ARTICLE 3.4 USE OF PROJECT DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS
ARTICLE 3.5 COST OF THE WORK
ARTICLE 3.6 PAYMENTS TO THE ARCHITECT
ARTICLE 3.7 DISPUTE RESOLUTION
ARTICLE 3.8 MISCELLANEOUS PROVISIONS
ARTICLE 3.9 TERMINATION, SUSPENSION OR ABANDONMENT
PART 1
FORM OF AGREEMENT BETWEEN OWNER AND ARCHITECT FOR
DESIGNATED SERVICES
Made as of January 17, 2000
BETWEEN the Owner:
Chukchansi Economic Development Authority
46575 Road 417
Coarsegold, California 93614
and the Architect:
Morris & Brown Architects, Ltd.
1695 Meadow Wood Lane #220
Reno, NV 89502
For the following Project:
Chukchansi Gold Resort & Casino
Coarsegold, California
The Development Manager is:
Cascade Entertainment Group, LLC
7915 Folsom Boulevard
Sacramento, California 95826
The Owner and Architect agree as follows:
ARTICLE 1.1.
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1.1.1 SEE ATTACHED CHART
ARTICLE 1.2
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COMPENSATION
The Owner shall compensate the Architect as follows:
1.2.1 For Designated Services, as identified in the Schedule of Designated
Services, described in the Description of Designated Services, and any other
services included in Article 1.6, compensation shall be computed as follows:
FIXED AMOUNT IN THE TOTAL AMOUNT OF THREE MILLION FIVE HUNDRED
TWENTY ONE THOUSAND FIVE HUNDRED SEVENTY THREE DOLLARS ($3,521,573)
1.2.2 For Contingent Additional Services of the Architect, as described in the
Terms and Conditions, but excluding Contingent Additional Services of
Consultants, compensation shall be computed as follows:
RATES SHALL BE AN HOURLY RATE OR QUOTED FEE, EACH AS APPROVED IN
ADVANCE BY DEVELOPMENT MANAGER
1.2.3 For Contingent Additional Services of the Architect's Consultants,
including additional structural, mechanical and electrical engineering, and
those identified in Article 1.6 and in the Schedule of Designated Services or
as part of the Architect's Contingent Additional Services under the Terms and
Conditions, compensation shall be computed as a multiple of one (1) times the
amounts billed to the Architect for such services.
1.2.4 For Reimbursable Expenses, as described in Article 3.7 of the Terms and
Conditions, and any other items included in Article 1.6 as a Reimbursable
Expense, the compensations shall be computed as a multiple of one (1) times
the expense incurred by the Architect, the Architect's employees and
consultants in the interest of the Project.
1.2.5 If the Designated Services identified in the Schedule of Designated
Services have not been completed within forty eight (48) months of the date
hereof, through no fault of the Architect, extension of the Architect's
services beyond that time shall be compensated as provided in Paragraph 1.2.2.
1.2.6 The rates and multiples set forth for Contingent Additional Services
shall be adjusted in accordance with normal salary review practices of the
Architect but in no event prior to eighteen months after the date hereof.
ARTICLE 1.3
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PAYMENTS
1.3.1 An initial payment of zero dollars ($0) shall be made upon execution of
this Agreement and is the minimum payment under this Agreement. It shall be
credited to the Owner's account at final payment. Subsequent payments for
Designated Services 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 the Agreement.
1.3.2 Where compensation is based on a stipulated sum or percentage of
Construction Cost, progress payments for Designated Services in each phase
shall be made monthly and shall be in proportion to services performed within
each Phase of Services, so that Compensation for each Phase shall equal the
following amounts or percentages of the total compensation payable for such
Designated Services.
Phase Amount or Percentage
- ----- --------------------
Pre-Design Phase: 0%
Site Analysis Phase: 0%
Schematic Design Phase: 15%
Design Development Phase: 25%
Contract Documents Phase: 45%
Bidding or Negotiation Phase and
Contract Administration Phase (collectively): 15%
Post-Contract Phase: 0%
1.3.3 Payments are due and payable thirty (30) days from the date of the
Architect's invoice provided that Architect delivers an Application for
Payment and all required supporting certificates to the Development Manager
not later than the twenty-fifth (25th) day of a month, projected to the end of
such month, in which case the Owner shall make payment to the Architect not
later than the twenty-fifth (25th) day of the following month. Amounts unpaid
forty-five (45) 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 Architect.
(Insert rate of interest agreed upon.)
Interest shall be payable in the amount of the "Prime Rate". The Prime Rate
for any calendar month is the rate of interest quoted on the last business day
of the preceding calendar month in the "Money Rates" section of the West Coast
Edition of the Wall Street Journal as the "Prime Rate", which is the base rate
on corporate loans posted by at least 75% of the nation's 30 largest banks.
ARTICLE 1.4
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TIME AND COST
1.4.1 Unless otherwise indicated, the Owner and the Architect shall perform
their respective obligations as expeditiously as is consistent with normal
skill and care and the orderly progress of the Project. The Architect shall
perform its duties hereunder in accordance with the Project Schedule attached
hereto as Exhibit A, and shall include allowances for periods of time required
for the review of Development Manager and for approval of submissions by
authorities having jurisdiction over the Project. Time limits established by
the Project Schedule shall not, except for reasonable cause, be exceeded by
the Architect or Development Manager. If the Architect is delayed in the
performance of services under this Agreement by the Owner, the Owner's
Consultants, or any other cause not within the control of the Architect, the
Project Schedule shall be adjusted accordingly.
1.4.2 The Owner has established an overall budget for the Project, including
the Construction Cost, the Owner's other costs and contingencies related to
all of these costs (the "Project Budget").
1.4.3 Intentionally Deleted.
ARTICLE 1.5
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ENUMERATION OF DOCUMENTS
1.5.1 This Agreement represents the entire and integrated agreement between
the Owner and Architect 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 Architect.
1.5.2 The parts of this Agreement between the Owner and Architect, except for
amendments issued after execution of this Agreement, are enumerated as
follows:
1.5.2.1 Form of Agreement Between Owner and Architect For Designated
Services-Part 1;
1.5.2.2 Descriptions of Designated Services-Part 2;
1.5.2.3 Terms and Conditons-Part 3.
1.5.2.4 Other Documents, if any, forming a part of the contract are as
follows: NONE
(Insert any additional documents, but only if they are intended to be part of
the contract between the Owner and the Architect.)
ARTICLE 1.6
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OTHER CONDITIONS OR SERVICES
NONE
This Agreement entered into as of the day and year first written above.
THE CHUKCHANSI
ECONOMIC DEVELOPMENT
AUTHORITY
By: /s/ Dixie Jackson
Name: Dixie Jackson
Its: Chairperson
MORRIS & BROWN ARCHITECTS LTD.,
a Nevada corporation
By: /s/ William F. Morris
Name: William F. Morris
Its: President
PART 2
DESCRIPTIONS OF DESIGNATED SERVICES
for the Agreement
Between Owner and Architect
The General Conditions of the Contract for Construction attached hereto as
Exhibit B (the "General Conditions") is incorporated herein and shall be
binding upon Owner and Architect, notwithstanding anything in Paragraph 1.1.2
of the General Conditions to the contrary. "Construction Manager" shall mean
Walton Construction Company, Inc., or its successor with respect to the
Project. References to "Contractor" herein shall mean and apply to
Construction Manager.
ARTICLE 2.1
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DESIGNATED SERVICES
2.1.1 In accordance with the Schedule of Designated Services completed under
Part 1 of this Agreement, the Owner and Architect shall provide the phases and
services designated therein and described herein. Unless the responsibility
for a Project phase or service is specifically allocated in the Schedule of
Designated Services to the Owner, Development Manager or Construction Manager,
such phase or service shall be a requirement of Architect under this
Agreement; provided, that if the phrase "NOT PROVIDED" appears next to a
specific Service listed hereunder, such phase or service (and if applicable
all detailed services listed beneath such service) shall not be a requirement
of Owner or Architect under this Agreement.
ARTICLE 2.2
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PHASES OF DESIGNATED SERVICES
2.2.1 Pre-Design Phase. The Pre-Design Phase is the stage in which the Owner's
program, the financial and time requirements, and the scope of the Project are
established. NOT PROVIDED
2.2.2 Site Analysis Phase. The Site Analysis Phase is the stage in which
site-related limitations and requirements for the Project are established.
2.2.3 Schematic Design Phase. The Schematic Design Phase is the stage in which
the general scope, conceptual design, and the scale and relationship of
components of the Project are established.
2.2.4 Design Development Phase. The Design Development Phase is the stage in
which the size and character of the Project are further refined and described,
including architectural, structural, mechanical and electrical systems,
materials, and such other elements as may be appropriate.
2.2.5 Contract Documents Phase. The Contract Documents Phase is the stage in
which the requirements for the Work are set forth in detail.
2.2.6 Bidding or Negotiations Phase. The Bidding or Negotiation Phase is the
stage in which bids or negotiated proposals are solicited and obtained and in
which contracts are awarded.
2.2.7 Contract Administration Phase. The Contract Administration Phase is the
stage in which the Work is performed by one or more Contractors.
2.2.8 Post-Contract Phase. The Post-Contract Phase is the stage in which
assistance in the Owner's use and occupancy of the Project is provided. NOT
PROVIDED
2.2.9 Sequence of Phases. The services for the above phases are generally
performed in a chronological sequence following the order of phases shown in
Paragraphs 2.2.1 through 2.2.8. Notwithstanding the foregoing, Owner hereby
authorizes Work to commence prior to completion of the Architect's Contract
Documents Phase. Architect shall provide the services designated in an
overlapping manner rather than in the normal chronological sequence in order
to expedite the Owner's early occupancy of all or a portion of the Project.
The Owner shall furnish to the Architect in a timely manner information
obtained from Construction Manager and prospective contractors regarding
anticipated market conditions and construction cost, availability of labor,
materials and equipment, and their proposed methods, sequences and time
schedules for construction of the Work. The Architect shall prepare a schedule
for providing services in order to comply with the Project Schedule.
Supplemental Services may be provided, however, during a single phase or
several phases and may not necessarily follow the normal chronological
sequence.
ARTICLE 2.3
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DESCRIPTIONS OF DESIGNATED SERVICES
PROJECT ADMINISTRATION AND MANAGEMENT SERVICES
..1 Project Administration services consisting of administrative
functions including:
.01 Consultation
.02 Research
.03 Conferences
.04 Communications
.05 Travel time
.06 Progress reports
.07 Direction of the work of in-house architectural personnel
.08 Coordination of work by the Owner's forces.
..2 Disciplines Coordination/Document Checking consisting of:
.01 Coordination between the architectural work and the work of
engineering and other disciplines involved in the Project
.02 Review and checking of documents prepared for the
Project by the Architect and the Architect's Consultants.
..3 Agency Consulting/Review/Approval services, including:
.01 Agency consultations
.02 Research of critical applicable regulations
.03 Research of community attitudes NOT PROVIDED
.04 Preparation of written and graphic explanatory materials
.05 Appearances with Owner at Owner's request at agency and
community meetings.
The services below apply to applicable laws, statutes,
regulations and codes of regulating entities and to reviews
required of user or community groups with limited or no
statutory authority but significant influence on approving
agencies and individuals, including:
.06 Local political subdivisions NOT PROVIDED
.07 Planning boards (tribal only)
.08 County agencies
.09 Regional agencies
.10 Federal agencies
.11 tribal organizations
.12 Community organizations
.13 Consumer interest organizations
.14 Environmental interest groups.
..4 Owner-Supplied Data Coordination, including:
.01 Review and coordination of data furnished for the Project as
a responsibility of the Owner
.02 Assistance in establishing criteria
.03 Assistance in obtaining data, including, where applicable,
documentation of existing conditions.
..5 Schedule Development/Monitoring services, including:
.01 Establishment of initial schedule for Architect's services,
decision-making, design, documentation, contracting and
construction, based on determination of scope of Architect's
services
.02 Review and update of previously established schedules during
subsequent phases.
..6 Preliminary Estimate of the Cost of the Work, including:
.01 Preparation of a preliminary estimate of the Cost of the
Work--TO BE PROVIDED BY DEVELOPMENT MANAGER AND CONSTRUCTION
MANAGER
.02 Review and update the preliminary estimate of the Cost of
the Work during subsequent phases. --TO BE PROVIDED BY
DEVELOPMENT MANAGER AND CONSTRUCTION MANAGER
..7 Presentation services consisting of presentations and recommendations
by the Architect to the following client representatives:
.01 Owner
.02 Building committee(s)
.03 Staff committee(s)
.04 Tribal Council
.05 Board(s) of Directors of the Owner
.06 Financing entity (entities)
.07 Owner's consultant(s).
PRE-DESIGN SERVICES
..8 Programming services consisting of consultation to establish and
document the following detailed requirements for the Project:
NOT PROVIDED
.01 Design objectives, limitations and criteria
.02 Development of initial approximate gross facility areas and
space requirements
.03 Space relations
.04 Number of functional responsibilities personnel
.05 Flexibility and expandability
.06 Special equipment and systems
.07 Site requirements
.08 Development of a preliminary budget for the Work based on
programming and scheduling studies
.09 Operating procedures
.10 Security criteria
.11 Communications relationships
.12 Project schedule.
..9 Space Schematics/Flow Diagrams consisting of diagrammatic studies and
pertinent descriptive text for: NOT PROVIDED
.01 Conversion of programmed requirements to net area requirements
.02 Internal functions
.03 Human, vehicular and material flow patterns
.04 General space allocations
.05 Analysis of operating functions
.06 Adjacency
.07 Special facilities and equipment
.08 Flexibility and expandability.
..10 Existing Facilities Surveys consisting of researching, assembling,
reviewing and supplementing information for Projects involving
alterations and additions to existing facilities or determining new
space usage in conjunction with a new building program and including:
NOT PROVIDED
.01 Photography
.02 Field measurements
.03 Review of existing design data
.04 Analysis of existing structural capabilities
.05 Analysis of existing mechanical capabilities
.06 Analysis of existing electrical capabilities
.07 Review of existing drawings for critical inaccuracies, and
the development of required measured drawings.
..11 Marketing Studies relating to determination of social, economic and
political need for and acceptability of the Project and consisting
of: NOT PROVIDED
.01 Determination with Owner of the scope, parameters, schedule
and budget for marketing studies
.02 Identification, assembly, review and organization of existing
pertinent data
.03 Arrangement of clearances for use of existing data
.04 Mail survey studies
.05 Personal survey studies
.06 Analysis of data
.07 Assistance in obtaining computerized analysis and modeling
.08 Computerized analysis and modeling
.09 Preparation of interim reports
.10 Preparation of final report
.11 Assistance in production of final report.
..12 Economic Feasibility Studies consisting of the preparation of
economic analysis and feasibility evaluation of the Project based on
estimates of: NOT PROVIDED
.01 Total Project cost
.02 Operation and ownership cost
.03 Financing requirements
.04 Cash flow for design, construction and operation
.05 Return on investment studies
.06 Equity requirements.
..13 Project Financing services as required in connection with: NOT PROVIDED
.01 Assistance to Owner in preparing and submitting data,
supplementary drawings and documentation .02 Research of
financing availability . .03 Direct solicitation of
financing sources by the Architect.
Project financing services are required for:
.04 Development costs
.05 Site control and/or acquisition
.06 Predesign and site analysis services
.07 Planning, design, documentation and bidding services
.08 Interim or construction financing
.09 Permanent or long-term financing.
SITE DEVELOPMENT SERVICES
..14 Site Analysis and Selection consisting of: NOT PROVIDED
.01 Identification of potential site(s)
.02 On-site observations
.03 Movement systems, traffic and parking studies
.04 Topography analysis
.05 Analysis of deed, zoning and other legal restrictions
.06 Studies of availability of labor force to staff Owner's
facility
.07 Studies of availability of construction materials, equipment
and labor
.08 Studies of construction market
.09 Overall site analysis and evaluation
.10 Comparative site studies.
..15 Site Development Planning consisting of preliminary site analysis,
and preparation and comparative evaluation of conceptual site
development designs, based on:
.01 Land utilization
.02 Structures placement
.03 Facilities development
.04 Development phasing
.05 Movement systems, circulation and parking
.06 Utilities systems
.07 Surface and subsurface conditions
.08 Ecological requirements--TO BE PROVIDED BY OWNER
.09 Deeds, zoning and other legal restrictions--TO BE PROVIDED BY
OWNER WITH ARCHITECT'S ASSISTANCE
.10 Landscape concepts and forms.
..16 Detailed Site Utilization Studies consisting of detailed site
analyses, based on the approved conceptual site development design,
including:
.01 Land utilization
.02 Structures placement
.03 Facilities development
.04 Development phasing
.05 Movement systems, circulation and parking
.06 Utilities systems
.07 Surface and subsurface conditions
.08 Review of soils report
.09 Vegetation
.10 Slope analysis
.11 Ecological studies NOT PROVIDED
.12 Deeds, zoning and other legal restrictions--TO BE PROVIDED BY
OWNER WITH ARCHITECT'S ASSISTANCE
.13 Landscape forms and materials
..17 On-Site Utility Studies consisting of establishing requirements and
preparing initial designs for on-site:
.01 Electrical service and distribution
.02 Gas service and distribution
.03 Water supply and distribution
.04 Site drainage
.05 Sanitary sewer collection and disposal
.06 Process waste water treatment PERFORMANCE SPECIFICATION ONLY
.07 Storm water collection and disposal
.08 Central-plant mechanical systems
.09 Fire systems PERFORMANCE SPECIFICATION ONLY
.10 Emergency systems
.11 Security
.12 Pollution control
.13 Site illumination
.14 Communications systems.
..18 Off-Site Utility Studies consisting of: NOT PROVIDED
.01 Confirmation of location, size and adequacy of utilities
serving the site
.02 Determination of requirements for connections to utilities
.03 Planning for off-site utility extensions and facilities
.04 Design of off-site utility extensions and facilities.
..19 Environmental Studies and Reports consisting of: NOT PROVIDED
.01 Determination of need or requirements for environmental
monitoring, assessment and/or impact statements
.02 Ecological studies
.03 Preparation of environmental assessment reports
.04 Preparation of environmental impact reports
.05 Attendance at public meetings and hearings
.06 Presentations to governing authorities.
..20 Zoning Processing Assistance consisting of: NOT PROVIDED
.01 Assistance in preparing applications
.02 Development of supporting data
.03 Preparation of presentation materials
.04 Attendance at public meetings and hearings.
..21 Geotechnical Engineering services, including, but not limited to:
.01 Test borings, test pits, determinations of soil bearing
values, percolation tests, evaluations of hazardous
materials, ground corrosion and resistivity tests, including
necessary operations for anticipating subsoil conditions
.02 Reports and appropriate professional recommendations.
..22 Site Surveying services, to include:
.01 Furnishing a survey by a licensed surveyor, describing the
physical characteristics, legal limitations and utility
locations for the site of the Project, including a written
legal description of the site
.02 Include, as applicable, grades and lines of streets, alleys,
pavements and adjoining property and structures; adjacent
drainage; rights-of-way, restrictions, easements,
encroachments, zoning, deed restrictions, boundaries and
contours of the site; locations, dimensions and necessary
data pertaining to existing buildings, other improvements
and trees; and information concerning available utility
services and lines, both public and private, above and below
grade, including inverts and depths. All information shall
be referenced to a project benchmark.
DESIGN SERVICES
..23 Architectural Design/Documentation:
.01 During the Schematic Design Phase, responding to program
requirements and preparing:
.01 Review of Owner's Program and Budget
.02 Conceptual site and building plans
.03 Preliminary sections and elevations
.04 Preliminary selection of building systems and
materials
.05 Development of approximate dimensions, areas
and volumes
.06 Perspective sketch(es)--ONLY IF AUTHORIZED IN WRITING
BY OWNER; TO BE BILLED AS A REIMBURSABLE EXPENSE
.07 Study model(s). )--ONLY IF AUTHORIZED IN WRITING BY
OWNER; TO BE BILLED AS A REIMBURSABLE EXPENSE
.02 During the Design Development Phase consisting of continued
development and expansion of architectural Schematic Design
Documents to establish the final scope, relationships,
forms, size and appearance of the Project through:
.01 Plans, sections and elevations
.02 Typical construction details
.03 Three-dimensional sketch(es) )--ONLY IF AUTHORIZED IN
WRITING BY OWNER; TO BE BILLED AS A REIMBURSABLE
EXPENSE
.04 Study model(s) )--ONLY IF AUTHORIZED IN WRITING BY
OWNER; TO BE BILLED AS A REIMBURSABLE EXPENSE
.05 Final materials selection
.06 Equipment layouts.
.03 During the Contract Documents Phase consisting of
preparation of Drawings based on approved Design Development
Documents setting forth in detail the architectural
construction requirements for the Project.
..24 Structural Design/Documentation:
.01 During the Schematic Design Phase consisting of
recommendations regarding basic structural materials and
systems, analyses, and development of conceptual design
solutions for:
.01 A predetermined structural system
.02 Alternate structural systems. NOT PROVIDED
.02 During the Design Development Phase consisting of continued
development of the specific structural system(s) and
Schematic Design Documents in sufficient detail to
establish:
.01 Basic structural system and dimensions
.02 Final structural designc criteria
.03 Foundation design criteria
.04 Preliminary sizing of major structural components
.05 Critical coordination clearances
.06 Outline Specifications or materials lists.
.03 During the Contract Documents Phase consisting of
preparation of final structural engineering calculations,
Drawings and Specifications based on approved Design
Development Documents, setting forth in detail the
structural construction requirements for the Project.
..25 Mechanical Design/Documentation:
.01 During the Schematic Design Phase consisting of
consideration of alternate materials, systems and equipment,
and development of conceptual design solutions for:
.01 Energy source(s)
.02 Energy conservation
.03 Heating and ventilating
.04 Air conditioning
.05 Plumbing
.06 Fire protection PERFORMANCE SPECIFICATION ONLY
.07 General space requirements.
.02 During the Design Development Phase consisting of continued
development and expansion of mechanical Schematic Design
Documents and development of outline Specifications or
materials lists to establish:
.01 Approximate equipment sizes and capacities
.02 Preliminary equipment layouts
.03 Required space for equipment
.04 Required chases and clearances
.05 Acoustical and vibration control
.06 Visual impacts
.07 Energy conservation measures.
.03 During the Contract Documents Phase consisting of
preparation of final mechanical engineering calculations,
Drawings and Specifications based on approved Design
Development Documents, setting forth in detail the
mechanical construction requirements for the Project.
..26 Electrical Design/Documentation:
.01 During the Schematic Design Phase consisting of
consideration of alternate systems, recommendations
regarding basic electrical materials, systems and equipment,
analyses, and development of conceptual solutions for:
.01 Power service and distribution
.02 Lighting
.03 Telephones
.04 Fire protection and alarms PERFORMANCE SPECIFICATION
ONLY
.05 Security systems
.06 Electronic communications
.07 Special electrical systems
.08 General space requirements.
.02 During the Design Development Phase consisting of continued
development and expansion of electrical Schematic Design
Documents and development of outline Specifications or
materials lists to establish:
.01 Criteria for lighting, electrical and communications
systems
.02 Approximate sizes and capacities of major components
.03 Preliminary equipment layouts
.04 Required spare for equipment
.05 Required chases and clearances.
.03 During the Contract Documents Phase consisting of
preparation of final electrical engineering calculations,
Drawings and Specifications based on approved Design
Development Documents, setting forth in detail the
electrical requirements for the Project.
..27 Civil Design/Documentation:
.01 During the Schematic Design Phase consisting of
consideration of alternate materials and systems and
development of conceptual design solutions for:
.01 On-site utility systems
.02 Fire protection systems
.03 Drainage systems
.04 Paving.
.02 During the Design Development Phase consisting of continued
development and expansion of civil Schematic Design
Documents and development of outline Specifications or
materials lists to establish the final scope of and
preliminary details for on-site and off-site civil
engineering work
.03 During the Contract Documents Phase consisting of
preparation of final civil engineering calculations,
Drawings and Specifications based on approved Design
Development Documents, setting forth in detail the civil
construction requirements for the Project.
..28 Landscape Design/Documentation:
.01 During the Schematic Design Phase consisting of
consideration of alternate materials, systems and equipment
and development of conceptual design solutions for land
forms, lawns and plantings based on program requirements,
physical site characteristics, design objectives and
environmental determinants
.02 During the Design Development Phase consisting of continued
development and expansion of landscape Schematic Design
Documents and development of outline Specifications or
materials lists to establish final scope and preliminary
details for landscape work
.03 During the Contract Documents Phase consisting of
preparation of Drawings and Specifications based on approved
Design Development Documents, setting forth in detail the
landscape requirements for the Project.
..29 Interior Design/Documentation:
.01 During the Schematic Design Phase consisting of spare
allocation and utilization plans based on functional
relationships, consideration of alternate materials, systems
and equipment and development of conceptual design solutions
for architectural, mechanical, electrical and equipment
requirements in order to establish:
.01 Partition locations
.02 Furniture and equipment layouts
.03 Types and qualities of finishes and materials for
furniture, furnishings and equipment.
.02 During the Design Development Phase consisting of continued
development and expansion of interior Schematic Design
Documents and development of outline Specifications or
materials lists to establish final scope and preliminary
details relative to:
.01 Interior construction of the Project.
.02 Special interior design features
.03 Furniture, furnishings and equipment selections
.04 Materials, finishes and colors.
.03 During the Contract Documents Phase consisting of
preparation of Drawings, Specifications and other documents
based on approved Design Development Documents, setting
forth in detail the requirements for interior construction,
furniture, furnishings and equipment, food facilities,
security and surveillance systems, data cabling and sound
system design for the Project, but excluding lighting and
sound for the theater.
..30 Special Design/Documentation, including:
.01 Preparation and coordination of special Drawings and
Specifications for obtaining bids or prices on alternate
subdivisions of the Work
.02 Preparation and coordination of special Drawings and
Specifications for obtaining alternate bids or prices on
changes in the scope of the Work
.03 Preparation and coordination of Drawings, Specifications,
Bidding Documents and schedules for out-of-sequence bidding
or pricing of subdivisions of the Work
.04 Preparation and coordination of Drawings, Specifications and
Bidding Documents for multiple prime contracts for
sub-divisions of the Work.
..31 Materials Research/Specifications:
.01 During the Schematic Design Phase consisting of:
.01 Identification of potential architectural materials,
systems and equipment and their criteria and quality
standards consistent with the conceptual design
.02 Investigation of availability and suitability of
alternative architectural materials, systems and
equipment
.03 Coordination of similar activities of other
disciplines.
.02 During the Design Development Phase consisting of activities
by in-house architectural personnel in:
.01 Presentation of proposed General and Supplementary
Conditions of the Contract for Owner's approval
.02 Development of architectural outline
Specifications or itemized lists and brief form
identification of significant architectural
materials, systems and equipment, including their
criteria and quality standards
.03 Coordination of similar activities of other
disciplines
.04 Production of design manual including design
criteria and outline Specifications or materials
lists.
.03 During the Contract Documents Phase consisting of activities
of in-house architectural personnel in:
.01 Assistance to the Owner in development and
preparation of bidding and procurement information
which describes the time, place and conditions of
bidding, bidding forms, and the form(s) of
Agreement between the Owner and Contractor(s)
.02 Assistance to the Owner in development and
preparation of the Conditions of the Contract
(General, Supplementary and other Conditions)
.03 Development and preparation of architectural
Specifications describing materials, systems and
equipment, workmanship, quality and performance
criteria required for the construction of the
Project
.04 Coordination of the development of Specifications
by other disciplines
.05 Compilation of Project Manual including Conditions
of the Contract, bidding and procurement
information and Specifications.
BIDDING OR NEGOTIATION SERVICES
..32 Bidding Materials services consisting of organizing and handling
Bidding Documents for:
.01 Coordination
.02 Reproduction--ONE SET OF REPRODUCIBLE DOCUMENTS TO BE
PROVIDED TO DEVELOPMENT MANAGER
.03 Completeness review
.04 Distribution--TO BE PROVIDED BY DEVELOPMENT MANAGER
.05 Distribution records--TO BE PROVIDED BY DEVELOPMENT MANAGER
.06 Retrieval--TO BE PROVIDED BY DEVELOPMENT MANAGER
.07 Receipt and return of document deposits--TO BE PROVIDED BY
DEVELOPMENT MANAGER
.08 Review, repair and reassembly of returned materials--TO BE
PROVIDED BY DEVELOPMENT MANAGER
..33 Addenda services consisting of preparation and distribution of
Addenda as may be required during bidding or negotiation and
including supplementary Drawings, Specifications, instructions and
notice(s) of changes in the bidding schedule and procedure.
..34 Bidding/Negotiation services consisting of:
.01 Assistance to Development Manager in establishing list of
Bidders or proposers
.02 Assistance to Development Manager in Prequalification of
Bidders or proposers
.03 Participation in pre-bid conferences
.04 Responses to questions from Bidders or proposers and
clarifications or interpretations of the Bidding Documents
.05 Attendance at bid opening(s)
.06 Assistance to Development Manager in Documentation and
distribution of bidding results.
..35 Analysis of Alternates/Substitutions consisting of consideration,
analyses, comparisons, and recommendations relative to alternates or
substitutions proposed by Bidders or proposers either prior or
subsequent to receipt of Bids or proposals.
..36 Special Bidding services consisting of:
.01 Attendance at bid openings, participation in negotiations,
and documentation of decisions for multiple contracts or
phased Work
.02 Technical evaluation of proposals for building systems
.03 Participation in detailed evaluation procedures for building
systems proposals.
..37 Bid Evaluation services consisting of assistance to Development
Manager with:
.01 Validation of bids or proposals
.02 Participation in reviews of bids or proposals
.03 Evaluation of bids or proposals
.04 Recommendation on award of Contract(s)
.05 Participation in negotiations prior to or following decisions
on award of the Contract(s).
..38 Contract Award services consisting of:
.01 Assistance to Development Manager with Notification of
Contract award(s)
.02 Assistance to Development Manager in preparation of
construction contract Agreement forms for approval by Owner
.03 Preparation and distribution of sets of Contract Documents
for execution by parties to the Contract(s) --TO BE PROVIDED
BY DEVELOPMENT MANAGER
.04 Receipt, distribution and processing, for Owner's approval,
of required certificates of insurance, bonds and similar
documents--TO BE PROVIDED BY DEVELOPMENT MANAGER
.05 Preparation, and distribution to Contractor(s), on behalf of
the Owner, of notice(s) to proceed with the Work--TO BE
PROVIDED BY DEVELOPMENT MANAGER
CONTRACT ADMINISTRATION SERVICES
..39 Submittal Services consisting of:
.01 Processing of submittals, including receipt, review of, and
appropriate action on Shop Drawings, Product Data, Samples
and other submittals required by the Contract Documents
.02 Distribution of submittals to Owner, Contractor and/or
Architect's field representative as required
.03 Maintenance of master file of submittals
.04 Related communications.
..40 Observation Services consisting of visits to the site at intervals
appropriate to the stage of the work or as otherwise agreed by the
Owner and Architect in writing to become generally familiar with the
progress and quality of the Work completed and to determine in
general if the Work when completed will be in accordance with
Contract Documents; preparing related reports and communications.
..41 Project Representation will consist of Randen L. Brown or William F.
Morris or other designated employee of Architect.
..42 Testing and Inspection Administration relating to independent
inspection and testing agencies, consisting of:
.01 Administration and coordination of field testing required by
the Contract Documents
.02 Recommending scope, standards, procedures and frequency of
testing and inspections
.03 Arranging for testing and inspection on Owner's behalf, only
if requested in writing by Development Manager
.04 Notifying inspection and testing agencies of status of Work
requiting testing and inspection
.05 Evaluating compliance by testing and inspection agencies
with required scope, standards, procedures and frequency
.06 Review of reports on inspections and tests and notifications
to Owner and Contractor(s) of observed deficiencies in the
Work.
..43 Supplemental Documentation services consisting of:
.01 Preparation of supplemental Drawings, Specifications and
interpretations in response to requests for clarification by
Contractor(s) or the Owner; REPRODUCTION AND DISTRIBUTION TO
BE PROVIDED BY DEVELOPMENT MANAGER
.02 Forwarding Owner's instructions and providing guidance to
the Contractor(s) on the Owner's behalf relative to changed
requirements and schedule revisions.
..44 Quotation Requests/Change Orders consisting of:
.01 Preparation of Drawings and Specifications to describe Work
to be added, deleted or modified; REPRODUCTION AND
DISTRIBUTION TO BE PROVIDED BY DEVELOPMENT MANAGER
.02 Review of proposals from Contractor(s) for reasonableness of
quantities and costs of labor and materials
.03 Review and recommendations relative to changes in time for
Substantial Completion
.04 Assistance to Development Manager in Negotiations with
Contractor(s) on Owner's behalf relative to costs of Work
proposed to be added, deleted or modified
.05 Assisting in the preparation of appropriate Modifications of
the Contract(s) for Construction
.06 Coordination of communications, approvals, notifications and
record-keeping relative to changes in the Work.
..45 Contract Cost Accounting services consisting of:
.01 Maintenance of records of payments on account of the
Contract Sum and all changes thereto NOT PROVIDED
.02 Evaluation of Applications for Payment and certification
thereof
.03 Review and evaluation of expense data submitted by the
Contractor(s) for Work performed under cost-plus-fee
arrangements. NOT PROVIDED
..46 Furniture, Furnishings and Equipment Installation Administration
consisting of:
.01 Assistance to the Owner in coordinating schedules for
delivery and installation of the Work, and assistance with
the actual installation of furniture, furnishings and
equipment.
.02 Review of final placement and inspection for damage,
quality, assembly and function to determine that furniture,
furnishings and equipment are in accordance with the
requirements of the Contract Documents.
..47 Interpretations and Decisions consisting of:
.01 Review of claims, disputes or other matters between the
Owner and Contractor relating to the execution or progress
of the Work as provided in the Contract Documents
.02 Rendering written decisions within a reasonable time and
following the procedures set forth in the General
Conditions, or the General Conditions of the Contract for
Furniture, Furnishings and Equipment, AIA Document A271,
current as of the date of this Agreement, for Resolution of
Claims and disputes.
..48 Project Closeout services initiated upon notice from the
Contractor(s) that the Work, or a designated portion thereof which is
acceptable to the Owner, is sufficiently complete, in accordance with
the Contract Documents, to permit occupancy or utilization for the
use for which it is intended, and consisting of:
.01 A detailed inspection with the Owner's representative for
conformity of the Work to the Contract Documents to verify
the list submitted by the Contractor(s) of items to be
completed or corrected
.02 Assistance to Development Manager with Determination of the
amounts to be withheld until final completion
.03 Assistance to Development Manager with Securing and receipt
of consent of surety or sureties, if any, to reduction in or
partial release of retainage or the making of final
payment(s)
.04 Issuance of Certificate(s) of Substantial Completion
.05 Inspection(s) upon notice by the Contractor(s) that the Work
is ready for final inspection and acceptance
.06 Notification to Owner and Contractor(s) of deficiencies
found in follow-up inspection(s), if any
.07 Final inspection with the Owner's representative to verify
final completion of the Work
.08 Assistance to Development Manager with Receipt and
transmittal of warranties, affidavits, receipts, releases
and waivers of liens or bonds indemnifying the Owner against
liens
.09 Assistance to Development Manager with Securing and receipt
of consent of surety or sureties, if any, to the making of
final payment(s)
.10 Issuance of final Certificate(s) for Payment.
.11 Assistance to Development Manager with Arranging for and
coordinating instructions on operations and maintenance of
equipment in conjunction with manufacturer's representatives
.12 Assistance to Development Manager with the preparation of
operations and maintenance manual(s) for the Owner's use.
.13 Assistance to Development Manager with transferring
Construction Manager's close out Drawings into reproducible
documents.
POST CONTRACT SERVICES
..49 Maintenance and Operational Programming services consisting of:
NOT PROVIDED
.01 Assistance in the establishment by the Owner of in-house or
contract program(s) of operation and maintenance of the
physical plant and equipment
.02 Arranging for and coordinating instructions on operations
and maintenance of equipment in conjunction with
manufacturer's representatives
.03 Assistance in the preparation operations and maintenance
manual(s) for the Owner's use.
..50 Start-Up Assistance consisting of NOT PROVIDED:
.01 On-site assistance in the operation of building systems
during initial occupancy
.02 Assistance in the training of the Owner's operation and
maintenance personnel in proper operations, schedules and
procedures
.03 Assistance to Development Manager with Administration and
coordination of remedial work by the Contractor(s) after
final completion.
..51 Record Drawing services consisting of: NOT PROVIDED
.01 Making arrangements for obtaining from Contractor(s)
information in the form of marked-up prints, drawings and
other data certified by them on changes made during
performance of the Work
.02 Review of general accuracy of information submitted and
certified by the Contractor(s)
.03 Preparation of record drawings based on certified
information furnished by the Contractor(s)
.04 Transmittal of record drawings and general data,
appropriately identified, to the Owner and others as
directed.
..52 Warranty Review consisting of: NOT PROVIDED
.01 Consultation with and recommendation to the Owner during the
duration of warranties in connection with inadequate
performance of materials, systems and equipment under
warranty
.02 Inspection(s) prior to expiration of the warranty period(s)
to ascertain adequacy of performance of materials, systems
and equipment
.03 Documenting defects or deficiencies and assisting the Owner
in preparing instructions to the Contractor(s) for
correction of noted defects.
..53 Post-Contract Evaluation consisting of a Project inspection at least
one year after completion of the Work; review with appropriate
supervisory, operating and maintenance personnel, and analysis of
operating costs and related data for evaluation of: NOT PROVIDED
.01 The initial Project programming versus actual facility use
.02 The functional effectiveness of planned spaces and
relationships
.03 The operational effectiveness of systems and materials
installed.
ARTICLE 2.4
-----------
DESCRIPTIONS OF SUPPLEMENTAL SERVICES
SUPPLEMENTAL SERVICES
..54 Special Studies consisting of investigation, research and analysis of
the Owner's special requirements for the Project and documentation of
findings, conclusions and recommendations for: NOT PROVIDED
.01 Master planning to provide design services relative to
future facilities, systems and equipment which are not
intended to be constructed as part of the Project during the
Construction Phase
.02 Providing special studies for the project such as analyzing
acoustical or lighting requirements, record retention,
communications and security systems.
..55 Tenant-Related Services consisting of design and documentation
services for tenants or potential tenants relating to: NOT PROVIDED
.01 Space planning, partition and furnishings locations, and
furniture and equipment layouts
.02 Material and color selections and coordination
.03 Adaptation of mechanical, electrical and other building
systems to meet tenant needs
.04 Preliminary estimate of Construction Cost.
..56 Special Furnishings Design services releasing to Architect-designed
special furnishings and/or equipment incorporated into or provided
for the Project and consisting of:
.01 Design and documentation
.02 Specifications or standards
.03 Management of procurement
.04 Coordination of installation
.05 Purchase on the Owner's behalf. NOT PROVIDED
..57 Furniture, Furnishings and Equipment Services relating to equipment
and furnishings not incorporated into the construction of the Project
and consisting of:
.01 Establishment of needs and criteria NOT PROVIDED
.02 Preparation of requirements, Specifications and bidding or
purchasing procedures NOT PROVIDED
.03 Management of procurement NOT PROVIDED
.04 Coordination of delivery and installation. NOT PROVIDED
.05 Assistance with the selection of furnishings.
..58 Special Disciplines Consultation, which entails retaining, directing
and coordinating the work of only those special disciplines
consultants identified IN BOLD from the following list and as more
specifically described in Article 1.6, whose specialized training,
experience and knowledge relative to specific elements and features
of the Project are required for the Project:
..01 Acoustics .14 Elevators/Escalators .27 Public Relations
(performance specification only
..02 Audio-Visual .15 Fallout Shelters .28 Radiation Shielding
..03 CPM Scheduling .16 Financial .29 Real Estate
..04 Code Interpretation .17 Fire Protection (performance .30 Reprographics
specification only)
..05 Communications .18 Food Service .31 Safety
..06 Computer Technology .19 Insurance .32 Sociology
..07 Concrete .20 Historic Preservation .33 Soils/Foundations
..08 Cost Estimating .21 Legal .34 Space Planning
..09 Demography .22 Life Safety .35 Specifications
..10 Display .23 Lightning .36 Traffic/Parking
..11 Ecology .24 Management .37 Transportation
..12 Economics .25 Materials Handling .38 Security and
Surveillance
..13 Editorial .26 Psychology .39 Record Retention
..59 Special Building Type Consultation, which entails retaining,
directing and coordinating the work of special building type
consultants whose specialized training, experience and knowledge
relative to the requirements, planning and design of the Project are
required for the Project.
..60 Fine Arts and Crafts services relating to acquisition of fine arts or
crafts to be a part of the Project and consisting of:
.01 Consultations on selection, commissioning and/or execution
.02 Design integration
.03 Assistance to Development Manager with Managing procurement
.04 Assistance to Development Manager with Purchasing fine arts
or crafts on the Owner's behalf.
..61 Graphic Design services consisting of the review of:
.01 Design and selection of interior and exterior signs and
identifying symbols
.02 Material and color selections and coordination
.03 Documentation of requirements for procurement of graphics
work
.04 Managing procurement of graphics work
.05 Coordination of delivery and installation.
..62 Renderings relating to graphic pictorial representations, as required
by the Development Manager upon written notice to Architect, of the
proposed Project and consisting of:
.01 Black and white elevation view(s)
.02 Black and white perspective view(s)
.03 Elevation view(s) in color
.04 Perspective view(s) in color.
Renderings authorized by Development Manager shall be a Reimbursable
Expense.
..63 Model Construction as required by the Development Manager upon written
notice to Architect, consisting of preparation of:
.01 Small-scale block model(s) showing relationship of
structure(s) to site
.02 Moderate-scale block model(s) of structure(s) designed for
the Project
.03 Moderate-scale detailed model(s) of structure(s) designed
for the Project showing both interior and exterior design
.04 Large-scale models of designated interior or exterior
components of the Project.
Model Construction authorized by Development Manager shall be a
Reimbursable Expense.
..64 Still Photography consisting of: NOT PROVIDED
.01 Documentation of existing conditions
.02 Aerial site photography
.03 Photographic recording for study purposes of facilities
similar to the Project
.04 Periscopic photography of models for the Project
.05 Presentation photography of renderings(s) and model(s) for
the Project
.06 Construction progress photography
.07 Architectural photography of the completed Project.
..65 Motion Picture and Videotape services relating to preparation of
promotional or explanatory presentations of the Project during the
design and/or construction phases. NOT PROVIDED
..66 Life Cycle Cost Analysis consisting of assessment, on the basis of
established relevant economic consequences over a given time period,
of: NOT PROVIDED
.01 A given planning and design solution for the Project
.02 Alternative planning and design solutions for the Project
.03 Selected systems, subsystems or building components proposed
for the Project.
..67 Value Analysis consisting of the review during design phases of the
cost, quality and time influences of proposed building materials,
systems and constriction methods relative to design objectives in
order to identify options for obtaining value for the Owner. NOT
PROVIDED
..68 Energy Studies consisting of special analyses of mechanical systems,
fuel costs, on-site energy generation and energy conservation options
for the Owner's consideration. NOT PROVIDED
..69 Quantity Surveys consisting of: NOT PROVIDED
.01 A detailed determination of the quantities of materials to
be used in the Project to establish the basis for price
determination by bidding or negotiations
.02 Making investigations, inventories of materials or
furniture, furnishings and equipment, or valuations and
detailed appraisals of existing facilities, furniture,
furnishings and equipment, and the relocation thereof.
..70 Detailed Cost Estimating services consisting of: NOT PROVIDED
.01 Development, when the Contract Documents are approximately
90% complete, of a Detailed Estimate of the Cost of the Work
based on quantity take-offs and unit-cost pricing of
materials, labor, tools, equipment and services required for
the Work plus estimates for the Contractor's supervision
cost, Work required by General and Supplementary Conditions,
and an allowance for reasonable Contractor's overhead and
profit; or
.02 Continuous development during all phases of design and
documentation, of an Estimate of the Cost of the Work for
the purpose of greater cost control, culminating in a
Detailed Estimate of the Cost of the Work or detailed
quantity surveys or inventories of material, equipment and
labor.
..71 Environmental Monitoring services consisting of: NOT PROVIDED
.01 Monitoring of air, water and other designated components of
the environment to establish existing conditions, and the
preparation of related analyses and reports.
..72 Expert Witness services consisting of preparing to serve and/or
serving as an expert witness in connection with any public
hearing, arbitration proceeding or legal proceeding. NOT PROVIDED
..73 Materials and Systems Testing relating to testing of components of
the completed Project for conformance with Contract requirements and
consisting of:
.01 Establishment of requirements NOT PROVIDED
.02 Procurement of testing services NOT PROVIDED
.03 Monitoring testing NOT PROVIDED
.04 Review, analysis and reporting of test results.
..74 Demolition Services consisting of: NOT PROVIDED
.01 Preparation of Contract Documents for demolition of existing
structures
.02 Managing the bidding/negotiation/award process
.03 Providing field observation and general administration
services during demolition.
..75 Mock-Up Services relating to the construction of full-size details of
components of the Project for study and testing during
the design phases and consisting of: NOT PROVIDED
.01 Design and documentation for the required mock-up(s)
.02 Management and coordination of pricing and contracting for
mock-up services
.03 Construction administration of mock-up construction
activities
.04 Arrangements for testing and monitoring performance of
mock-up(s)
.05 Administration of testing and monitoring services
.06 Review, analysis and reporting of results of testing and
monitoring services.
..76 Coordination of Designated Services with those of non-design
professionals, such as economists, sociologists, attorneys and
accountants, consisting of: NOT PROVIDED
.01 Preparation of economic studies
.02 Condominium documentation
.03 Sociological impact studies.
..77 Furniture, Furnishings and Equipment Purchasing/Installation,
consisting of: NOT PROVIDED
.01 Purchasing furniture, furnishings and equipment on behalf of
the Owner with funds provided by the Owner
.02 Receipt, inspection and acceptance on behalf of the Owner of
furniture, furnishings and equipment at the time of their
delivery to the premises and installation
.03 Providing services including travel for the purpose of
evaluating materials, furniture, furnishings and equipment
proposed for the Project.
..78 Computer Applications consisting of computer program development
and/or computer program search and acquisition, plus on-line computer
time charges, for: NOT PROVIDED
..01 Programming .06 Detailed Project scheduling .10 Mechanical analysis and design
..02 Economic feasibility .07 Market analysis .11 Electrical analysis and design
..03 Financial analysis .08 Architectural analysis and design .12 Production of Drawings
..04 Site analysis .09 Structural analysis and design .13 Construction cost accounting
..05 Construction cost estimating
..79 Project Promotion/Public Relations relating to presentation of the
Project to the public or identified groups and consisting of: NOT
PROVIDED
.01 Preparation of press releases
.02 Preparation of special brochures and/or promotional pieces
.03 Assistance in production and distribution of promotional
materials
.04 Presentations at public relations and/or promotional meetings.
..80 Leasing Brochures, including preparation of special materials to
assist the Owner in leasing the Project and consisting of: NOT
PROVIDED
.01 Design
.02 Preparation of illustrations and text
.03 Arranging for and managing production.
..81 Pre-Contract Administration/Management, consisting of: NOT PROVIDED
.01 Evaluating feasibility of Owner's program, schedule and
budget for the Work, each in terms of the other
.02 Preparing, updating and monitoring Detailed Project
Schedule, including services and contract Work, identifying
critical and long-lead items
.03 Preparing, updating and monitoring Detailed Estimates of the
Cost of the Work prior to completion of each design phase
.04 Assisting the Owner in selecting, retaining and coordinating
the professional services of surveyors, testing labs and
other special consultants as designated
.05 Assisting the Owner in evaluating relative feasibility of
methods of executing the Work, methods of project delivery,
availability of materials and labor, time requirements for
procurement, installation and delivery, and utilization of
the site for mobilization and staging
.06 Assisting the Owner in determining the method of contracting
for the Work; evaluating single versus multiple contracts;
advising on categories of separate contracts and provisions
for coordinating responsibilities.
..82 Extended Bidding services, consisting of: NOT PROVIDED
.01 Developing Bidders' interest in the Project and establishing
bidding schedules
.02 Receiving and analyzing bids and providing recommendations
as to the Owner's acceptance or rejection of bids
.03 Advising the Owner on acceptance of Contractors
.04 Conducting pre-award conferences.
..83 Extended Contract Administration/Management, consisting of:
NOT PROVIDED
.01 Assisting Owner in obtaining building permits
.02 Updating and, monitoring actual costs against estimates of
final cost; assisting Owner in monitoring cash flow
.03 Providing a detailed schedule showing time periods for each
Contractor, including long-lead items and Owner's occupancy
requirements; updating and monitoring periodically;
recommending corrective action when required
.04 Endeavoring to achieve satisfactory performance of
Contractors through development and implementation of a
quality control program; assisting Owner in determining
compliance with schedule, cost and Contract Documents
.05 Scheduling and conducting periodic project meetings with the
Owner, Contractor and Subcontractors
.06 Assisting Owner in maintaining cost accounting records
.07 Maintaining a daily log including conditions at site and job
progress, periodically indicating percentage of completion
of each contract
.08 Assisting the Owner in coordinating and scheduling
activities of the separate Contractors.
.09 Maintaining and periodically updating a record of all
significant changes made during construction; maintaining
record copies of Contract Documents; maintaining samples and
lay-out drawings at the job site.
PART 3
TERMS AND CONDITIONS
of the Agreement Between Owner and Architect
for Designated Services
ARTICLE 3.1
-----------
ARCHITECT'S RESPONSIBILITIES
3.1.1 Designated Services. Unless otherwise provided, the Architect's
designated services consist of those services identified in the Schedule of
Designated Services as being performed by the Architect, Architect's employees
and Architect's consultants, and as described in the Descriptions of
Designated Services.
3.1.2 Contingent Additional Services. Contingent Additional Services described
in Subparagraphs 3.1.2.1 through 3.1.2.7 are not included in the Architect's
Designated Services, but may be required due to circumstances beyond the
Architect's control. The Architect shall notify the Development Manager prior
to commencing such services. If the Development Manager deems that such
services are not required, the Development Manager shall give prompt written
notice to the Architect. If the Development Manager indicates in writing that
all or part of such Contingent Additional Services are not required, the
Architect shall have no obligation to provide those services.
3.1.2.1 Document Revisions. Subject to Subparagraph 3.5.2.4 and Subparagraph
3.5.2.5 hereof, Services required to revise drawings, Specifications or other
documents when such revisions are:
..1 inconsistent with approvals or instructions previously given by the
Development Manager, including revisions made necessary by adjustments in the
Project Budget, excluding the addition of funds to the Project Budget which
does not materially alter the scope of the Project;
..2 required by the enactment or revision of codes, laws or regulations
subsequent to the preparation of such documents; or
..3 due to changes required as a result of the Owner's failure to render
decisions in a timely manner.
3.1.2.2 Changes In Project Scope. Services required because of significant
changes in the Project including, but not limited to, size, quality,
complexity, the Project Schedule, or method of bidding or negotiating and
contracting for construction, except for services required under Subparagraph
1.6.
3.1.2.3 Replacement of Damaged Work. 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.
3.1.2.4 Default by Others. Services made necessary by the default of the
Owner's consultants or the Construction Manager, by major defects or
deficiencies in their services or the Work, or by failure of performance of
any of them under their respective contracts.
3.1.2.5 Correction Period. Advice and consultation to the Owner during the
correction period described in the Contracts for Construction or for
Furniture, Furnishings and Equipment.
3.1.2.6 Intentionally Deleted.
3.1.2.7 Services Related to Separate Consultants. The Architect shall provide
information to and incorporate information received in a timely manner from
those separate consultants retained by the Owner and identified in this
Agreement whose activities directly relate to the Project.
ARTICLE 3.2
-----------
OWNER'S RESPONSIBILITIES
3.2.1 Representative. The Owner hereby designates Development Manager as its
sole representative who shall have express authority to bind the Owner with
respect to all matters requiring the Owner's approval or authorization
hereunder. Development Manager shall have the authority to make decisions on
behalf of the Owner concerning estimates and schedules, construction budgets,
and changes in the Work, and shall render such decisions promptly and furnish
information expeditiously, so as to avoid unreasonable delay in the Project.
All items required to be delivered to Owner by Architect under the Agreement
shall be delivered instead to Development Manager. The Development Manager
shall render decisions in a timely manner pertaining to documents submitted by
the Architect in order to avoid unreasonable delay in the orderly and
sequential progress of the Architect's services.
3.2.2 Notice. Prompt written notice shall be given by the Owner to the
Architect if the Owner becomes aware of any fault or defect in the Project or
nonconformance with the Contract Documents.
3.2.3 Designated Services. The Owner's responsibilities consist of those
services identified in the Schedule of Designated Services as being performed
by the Owner, Owner's employees and Owner's consultants.
3.2.4 Information. The Owner shall provide full information regarding
requirements for the Project.
3.2.5 Owner's Financial Arrangements. Architect acknowledges that Owner is
presently negotiating to obtain a loan to finance construction of the Project
(the "Construction Loan"). This Agreement, and the obligations of Owner and
Architect to perform hereunder, are contingent upon the receipt by the Owner,
by obtaining the Construction Loan from the lender thereunder ("Trustee"), of
all funds necessary to fully complete construction of the Project. If the
Development Manager or Owner notifies Architect on or before one hundred
twenty (120) days following the execution of this Agreement by Owner and
Architect (the "Financing Date") that, in Owner's sole judgment and
discretion, the foregoing contingency has occurred or has been satisfied (a
"Satisfaction Notice"), then this Agreement shall remain in full force and
effect. Owner shall provide reasonable evidence of receipt of sufficient funds
along with delivery of the Satisfaction Notice. In the absence of a
Satisfaction Notice by Owner on or before the Financing Date, the foregoing
contingency shall be deemed unsatisfied, and either Owner or Architect shall
have the right to terminate this Agreement at any time prior to delivery of a
Satisfaction Notice; provided, however, that upon such termination Owner shall
reimburse the Architect for those costs which have been reasonably incurred by
the Architect prior to the Financing Date for which Architect has received the
Owner's written consent prior to incurring such cost.
3.2.6 Tests, Inspections and Reports Furnished by Owner. 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, or unless
otherwise provided in this Agreement.
3.2.7 Legal, Accounting and Insurance Services Furnished by Owner. The Owner
shall furnish all legal, accounting and insurance counseling services required
for the Project, including auditing services the Owner may require to verify
the Construction Manager's Applications for Payment or to ascertain how or for
what purposes the Construction Manager has used the money paid by or on behalf
of the Owner.
3.2.8 Space Arrangements. The Owner shall provide suitable space for the
receipt, inspection and storage of materials, furniture, furnishings and
equipment.
3.2.9 Removal of Existing Facilities. The Owner shall be responsible for the
relocation or removal of existing facilities, furniture, furnishings and
equipment, and the contents thereof, unless otherwise provided by this
Agreement.
3.2.10 Responsibility for Services. The drawings, specifications, services,
information, surveys and reports required of the Owner under the Agreement
shall be furnished at the Owner's expense, and the Architect shall be entitled
to rely upon the accuracy and completeness thereof.
3.2.11 Certificates and Certifications. Architect acknowledges it has reviewed
the Cash Collateral and Disbursement Agreement ("Disbursement Agreement"),
including the certificates which Architect shall be asked to provide in the
forms attached to the Disbursement Agreement as (i) Exhibit 9 to Exhibit B-1,
(ii) Exhibit 4 to Exhibit C-1, (iii) Exhibit 4 to Exhibit E, (iv) Exhibit 4 to
Exhibit F and (v) Exhibit 4 to Exhibit J, and that so long as the factual
assertions of Architect required therein shall be true, Architect shall
deliver such certificates as and when required by Owner or Development Manager
in the manner and within the time periods required by the Disbursement
Agreement.
3.2.12 Communications and Security Systems. The owner shall contract for all
temporary and permanent telephone, communications and security systems
required for the Project so as not to delay the performance of the Architect's
services.
ARTICLE 3.3
-----------
CONTRACT ADMINISTRATION
3.3.1 Intentionally Deleted.
3.3.2 Duration of Contract Administration Phase. The Architect's
responsibility to provide services for the Contract Administration Phase under
this Agreement commences with the award of the initial Contract for
Construction or for Furniture, Furnishings and Equipment, and terminates at
the earlier of the issuance to the Owner of the final Certificate for Payment
or 60 days after the date of Final Completion of the Work.
3.3.3 Contract(s) for the Work. The Architect shall provide administration of
Contract(s) for Construction or Furniture, Furnishings and Equipment as set
forth below and in the General Conditions.
3.3.4 Modification of Responsibilities. Duties, responsibilities, and
limitations of authority of the Architect shall not be restricted, modified or
extended without written agreement of the Owner and Architect.
3.3.5 Authority of Architect. The Architect shall advise and consult with the
Owner (1) during the Contract Administration Phase, and (2) by an amendment to
this Agreement, from time to time during the correction period described in
the Contract for Construction. The Architect shall have authority to act on
behalf of the Owner only to the extent provided in this Agreement unless
otherwise modified by written instrument.
3.3.6 CONSTRUCTION OBSERVATION SERVICES
3.3.6.1 Architect's Responsibility for Observation. On the basis of onsite
observations as an architect, the Architect shall keep the Owner informed of
the progress and quality of the Work, and shall endeavor to guard the Owner
against defects and deficiencies in the Work. The Architect shall not be
required to make exhaustive or continuous on-site inspections to check the
quality or quantity of the Work.
3.3.6.2 Project Representation. The furnishing of Project representation
services shall not modify the rights, responsibilities or obligations of the
Architect as described elsewhere in this Agreement.
3.3.6.3 Means and Methods. The Architect shall not have control over or charge
of and shall not be responsible for construction means, methods, techniques,
sequences or procedures, or for safety precautions and programs in connection
with the Work, since these are solely the Construction Manager's
responsibility under the Contract for Construction and the Contract for
Furniture, Furnishings and Equipment. The Architect shall not be responsible
for the Construction Manager's schedules or failure to carry out the Work in
accordance with the Contract Documents. The Architect shall not have control
over or charge of acts or omissions of the Construction Manager,
Subcontractors, or their agents or employees, or of any other persons
performing portions of the Work.
3.3.6.4 Access to Work. The Architect shall at all times have access to the
Work wherever it is in preparation or progress.
3.3.6.5 Communications. The Architect shall communicate with Owner,
Construction Manager, any other contractors or subcontractors, Trustee and the
Independent Consultant through the Development Manager about matters arising
out of or related to the Project. Communications by and with the Architect's
consultants shall be through the Architect.
3.3.6.6 Minor Changes. The Architect may authorize minor changes in the Work
not involving an adjustment in Contract Sum or an extension of the Contract
Time which are not inconsistent with the intent of the Contract Documents.
3.3.6.7 Coordination of Furniture, Furnishings and Equipment Delivery and
Installation. When the Architect assists the Owner in coordinating schedules
for delivery and installation of furniture, furnishings and equipment, the
Architect shall not be responsible for malfeasance, neglect or failure of
Construction Manager, Subcontractor, Sub-subcontractor or material supplier to
meet their schedules for completion or to perform their respective duties and
responsibilities.
3.3.7 COST ACCOUNTING SERVICES
3.3.7.1 Certificates for Payment. If certification of the Construction
Manager's Applications for Payment is required by this Agreement, the
Architect's certification for payment shall constitute a representation to the
Owner, based on the Architect's observations at the site as provided in
Subparagraph 3.3.6.1 and on the data comprising the Construction Manager's
Application for Payment, that the Work has progressed to the point indicated
and that, to the best of the Architect's knowledge, information and belief,
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 Architect.
3.3.7.2 Limitations. The issuance of a Certificate for Payment shall not be a
representation that the Architect has (1) made exhaustive or continuous
on-site inspections to check the quality or on-site quantity of the Work, (2)
reviewed means, methods, techniques, sequences or procedures, (3) reviewed
copies of requisitions received from Subcontractors and material suppliers and
other data requested by the Owner to substantiate the Construction Manager's
right to payment or (4) ascertained how or for what purpose the Construction
Manager has used money previously paid on account of the Contract Sum.
3.3.8 INSPECTION AND TESTING ADMINISTRATION SERVICES
3.3.8.1 Rejection of Work. Except as provided in Subparagraph 3.3.8.3, the
Architect shall have authority to reject Work which does not conform to the
Contract Documents. Whenever the Architect considers it necessary or advisable
for implementation of the intent of the Contract Documents, the Architect will
have authority 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. However, neither this authority of
the Architect nor a decision made in good faith either to exercise or not to
exercise such authority shall give rise to a duty or responsibility of the
Architect to the Construction Manager, Subcontractors, material and equipment
suppliers, their agents or employees or other persons performing portions of
the Work.
3.3.8.2 Review and Inspection of Work. The Architect shall review final
placement and inspect for damage, quality, assembly and function in order to
determine that furniture, furnishings and equipment are in accordance with the
requirements of the Contract Documents.
3.3.8.3 Rejection of Work Involving Furniture, Furnishings and Equipment.
Unless otherwise designated, the Architect's duties shall not extend to the
receipt, inspection and acceptance on behalf of the Owner of furniture,
furnishings and equipment at the time of their delivery to the premises and
installation. The Architect is not authorized a reject nonconforming
furniture, furnishings and equipment, sign Change Orders on behalf of the
Owner, stop the Work, or terminate a Contract on behalf of the Owner. However,
the Architect shall recommend to the Owner rejection of furniture, furnishings
and equipment which does not conform to the Contract Documents. Whenever the
Architect considers it necessary or advisable for implementation of the intent
of the Contract Documents, the Architect will have authority to require
additional inspection or testing of furniture, furnishings and equipment in
accordance with the provisions of the Contract Documents, whether or not such
furniture, furnishings and equipment is fabricated, installed or completed.
3.3.9 SUBMITTAL SERVICES
3.3.9.1 Submittal Review. To the extent required by this Agreement, the
Architect shall review and approve or take other appropriate action upon
Construction Manager'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 shall be taken with such reasonable promptness as to
cause no delay in the Work or in the construction of the Owner or of separate
contractors, while allowing sufficient time in the Architect's professional
judgment to permit adequate review.
3.3.9.2 Limitations. 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 designed by the Construction Manager,
all of which remain the responsibility of the Construction Manager to the
extent required by the Contract Documents. The Architect's review shall not
constitute approval of safety precautions or, unless otherwise specifically
stated by the Architect, of 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.
3.3.10 Reliance on Professional Certification. When professional certification
of performance characteristics of materials, systems or equipment is required
by the Contract Documents, the Architect shall be entitled to rely upon such
certification to establish that the materials, systems or equipment will meet
the performance criteria required by the Contract Documents.
ARTICLE 3.4
-----------
USE OF PROJECT DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS
3.4.1 Ownership. Notwithstanding anything to the contrary set forth in Section
1.6.1 of the General Conditions, the Drawings, Specifications and other
documents prepared by the Architect for this Project are instruments of the
Architect's service for use solely with respect to this Project and, unless
otherwise provided, the Architect shall be deemed the author of these
documents and shall retain all common law, statutory and other reserved
rights, including the copyright.
3.4.2 Limitations on Use. The Owner shall be permitted to retain copies,
including reproducible copies, of the Project Drawings, Specifications and
other documents for information and reference in connection with the Owner's
use and occupancy of the Project. The Project Drawings, Specifications or
other documents shall not be used by the Owner or others on other projects,
for additions to this Project or for completion of this Project by others,
unless the Architect is in default under this Agreement, except by agreement
in writing and with appropriate compensation to the Architect. The Project
Drawings, Specifications or other documents shall not be used by the Architect
or others on other projects, except by agreement in writing and with
appropriate compensation to the Owner.
3.4.3 Unpublished Works. Submission or distribution of documents to meet
official regulatory requirements or for similar purposes in connection with
the Project is not to be construed as publication in derogation of the
Architect's reserved rights.
ARTICLE 3.5
-----------
COST OF WORK
3.5.1 DEFINITION
3.5.1.1 Total Cost. The Cost of the Work shall be the total cost or estimated
cost to the Owner of all elements of the Project to be included in the
Contract Documents as provided by the Development Manager.
3.5.1.2 Items Included. The Cost of the Work includes those items set forth in
the Project Budget.
3.5.1.3 Items Excluded. The Cost of the Work does not include the compensation
of the Architect and the Owner's or Architect's consultants, the costs of the
land, rights-of-way financing or other costs which are the responsibility of
the Owner.
3.5.2 RESPONSIBILITY FOR THE COST OF THE WORK
3.5.2.1 Limitation of Responsibility. It is recognized, however, that neither
the Architect nor the Owner has control over the cost of labor materials or
equipment, over the Construction Manager's methods of determining bid prices,
or over competitive bidding, market or negotiating conditions. Accordingly,
the Architect cannot and does not warrant or represent that bids or negotiated
price will not vary from the Owner's Project Budget or from any estimate of
the Cost of the Work.
3.5.2.2 Completion of the Drawings. As the Drawings and Specifications are not
finished at the time the Guaranteed Maximum Price has been agreed upon
pursuant to Amendment No. 1 of the Contract for Construction, the Construction
Manager has provided in the Guaranteed Maximum Price for further development
of the Drawings and Specifications by the Architect that is consistent with
the Contract Documents and the Project Budget and reasonably inferable
therefrom. Architect acknowledges and represents that it shall complete the
Drawings consistent with the Contract Documents and the Project Budget and
reasonably inferable therefrom such that the Work can be completed in
accordance with Owner's Project program and design intent and the Project
Budget for an amount less than or equal to the Guaranteed Maximum Price.
Architect shall revise the Drawings and Specifications, with the assistance of
Construction Manager and Development Manager, to the extent necessary to
reflect Owner's Project program and design intent and the agreed-upon
assumptions and clarifications contained in Amendment No. 1.
3.5.2.3 Adjustments. If the Bidding or Negotiation Phase has not commenced
within 90 days after the Contract Documents are submitted to the Owner, the
Project Budget or fixed limit of the Cost of the Work shall be adjusted to
reflect changes in the general level of prices in the construction industry
between the date of submission of the Contract Documents to the Owner and the
date on which bids or negotiated proposals are sought.
3.5.2.4 Owner's Responsibility to Meet Project Budget. If the Project Budget
for the Cost of the Work (adjusted as provided in Subparagraph 3.5.2.3) is
exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall
in its sole and absolute discretion:
..1 give written approval of an increase in such Project Budget;
..2 authorize rebidding or renegotiation of the Project within a
reasonable time;
..3 terminate in accordance with Paragraph 3.9; or
..4 request Architect to revise the Drawings and Specifications to reduce
the Construction Cost.
3.5.2.5 Architect's Responsibility to Meet Fixed Limit.
If the Development Manager chooses to proceed under Clause 3.5.2.4, the
Architect, with additional compensation, shall modify the documents for which
the Architect is responsible under this Agreement as necessary to comply with
the Project Budget, including any additional funds which Owner is willing to
commit to the Project in its sole and absolute discretion. The modification of
such documents shall be the limit of the Architect's responsibility under this
Subparagraph 3.5.2.5. The Architect shall be entitled to compensation in
accordance with this Agreement for all services performed whether or not the
Construction Phase is commenced.
ARTICLE 3.6
-----------
PAYMENTS TO THE ARCHITECT
3.6.1 Intentionally Deleted.
3.6.2 Reimbursable Expenses. Reimbursable Expenses are in addition to
compensation for the Architect's services and include expenses incurred by the
Architect and Architect's employees and consultants in the interest of the
Project, as identified in the following Clauses:
..1 transportation in connection with the Project, authorized out-of-town
travel, and fees paid for securing approval of authorities having
jurisdiction over the Project;
..2 reproductions, postage and handling of Drawings, Specifications and
other documents;
..3 intentionally deleted;
..4 intentionally deleted;
..5 renderings, models and mock-ups requested by the Owner;
..6 additional insurance coverage or limits, including professional
liability insurance, requested by the Owner in excess of that
normally carried by the Architect and Architect's consultants; and
..7 intentionally deleted.
3.6.3 Payments for Contingent Additional Services and Reimbursable Expenses.
Payments on account of the Architect's Contingent Additional Services and for
Reimbursable Expenses shall be made monthly upon presentation of the
Architect's statement of services rendered or expenses incurred.
3.6.4 Extended Time. If and to the extent that the time initially established
in this Agreement is exceeded or extended through no fault of the Architect,
compensation for any services rendered during the additional period of time
shall be computed in the manner set forth in Article 1.6.
3.6.5 Intentionally Deleted.
3.6.6 Payments Withheld. No deductions shall be made from the Architect'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 the Work
other than those for which the Architect has been found to be liable.
3.6.7 Architect's Accounting Records. Records of Reimbursable Expenses, of
expenses pertaining to Contingent Additional Services, and of services
performed on the basis of multiple of Direct Personnel Expense shall be
available to the Owner or the Owner's authorized representative at mutually
convenient times.
ARTICLE 3.7
-----------
DISPUTE RESOLUTION
3.7.1 In the event that Architect or Owner believes that the other is in
breach of this Agreement, it may request in writing that the parties meet and
confer in good faith for the purpose of attempting to reach a mutually
satisfactory resolution of the issue within fifteen (15) days of the date of
service of said request.
3.7.2 If the complaining party is not satisfied with the result of the meet
and confer process, the complaining party may provide written notice to the
other identifying and describing any alleged breach of this Agreement ("Notice
of Disagreement"), with particularity, if available, and setting forth the
action required to remedy the alleged breach.
3.7.3 Within fifteen (15) days of service of a Notice of Disagreement, the
recipient shall provide a written response either denying or admitting the
allegations set forth in the Notice of Disagreement, and, if the truth of the
allegations is admitted, setting forth in detail the steps it has taken and/or
will take to cure the violations. Failure to serve a timely response shall
entitle the complaining party to proceed directly to arbitration, as provided
in Subparagraph 3.7.4 below.
3.7.4 Subject to prior compliance with the processes set forth above in
Subparagraphs 3.7.1, 3.7.2 and 3.7.3, either party has the right to initiate
binding arbitration to resolve any dispute arising under this Agreement. The
arbitration shall be conducted in accordance with the following procedures:
3.7.4.1 The arbitration shall be administered by the American Arbitration
Association in accordance with its Commercial Arbitration Rules. The
arbitrator shall be selected pursuant to such rules; provided that he/she must
be a licensed attorney, knowledgeable in construction law. The parties and the
arbitrator shall maintain strict confidentiality with respect to the
arbitration.
3.7.4.2 The arbitration shall be held in either Fresno County or Sacramento
County, California, at Owner's election, unless otherwise agreed by the
parties. The arbitrator shall be empowered to grant equitable and injunctive
relief and specific performance of the terms and conditions of the Agreement
to the extent permitted by applicable law. The arbitrator shall not have the
power to award punitive damages. The provisions of California Code of Civil
Procedure Section 1283.05 are incorporated into, and made a part of the
Agreement; provided, that no discovery authorized by said section may be
conducted without leave of the arbitrator, who shall decide to grant leave
based on the need of the requesting party and the burden of such discovery in
light of the nature and complexity of the dispute.
3.7.4.3 If either party requests a hearing, the arbitrator shall set the
matter for hearing. Otherwise, the arbitrator shall decide whether to set the
matter for hearing.
3.7.4.4 The resulting award shall be in writing and give the reasons for the
decision. Judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. The costs and expenses of the American
Arbitration Association and the arbitrator shall be shared equally by and
between the parties unless the arbitrator rules otherwise.
3.7.5 Any award in an arbitration held pursuant to Subparagraph 3.7.4 may be
enforced by bringing an action in the United States District Court for the
Eastern District of California, or, if that court finds that it lacks
jurisdiction after the Architect has made reasonable efforts to argue for the
jurisdiction of the federal court, an action may be brought in the Superior
Court for Madera County.
3.7.5.1 Owner expressly and irrevocably waives its immunity from suit as
provided for and limited by this paragraph. This waiver is limited to all
arbitration proceedings brought pursuant to Subparagraph 3.7.4 and all actions
to compel such arbitration brought pursuant to Subparagraph 3.7.5. The waiver
granted herein shall commence as of the date of this Agreement and shall
continue for one year following the expiration, termination or cancellation
hereof, or for the duration of any litigation or dispute resolution proceeding
then pending, all appeals therefrom, and the satisfaction of any awards or
judgment that may issue from such proceedings, whichever is later.
3.7.5.2 This waiver is granted only to the Architect and not to any other
individual or entity.
3.7.6 Notwithstanding any other provision set forth in this Agreement or in
this article, Owner expressly and irrevocably waives its immunity from any
cross suits or third party suits by Architect against Owner arising from any
indemnification obligation to Architect by Owner or any allegation by
Architect of Owner's breach of performance of any obligation set forth under
the terms of this Agreement and Owner recognizes that the waiver of this
sovereign immunity constitutes a significant part of the consideration by
Architect for the performance of Architect's obligations herein. The waiver of
sovereign immunity is intended to cover circumstances and issues that arise by
reason of the filing of any legal proceeding by any party against Architect in
connection with the performance of its obligations herein so as to afford only
the Architect a vehicle by which only the Architect can secure recovery
against Owner for any and all harm suffered to the Plaintiff commencing said
legal proceeding by reason of the actions of Owner.
ARTICLE 3.8
-----------
MISCELLANEOUS PROVISIONS
3.8.1 Governing Law. This Agreement shall be governed by the law of the State
of California.
3.8.2 Definitions. Terms in this Agreement shall have the same meaning as
those in the General Conditions, and AIA Document A271, General Conditions of
the Contract for Furniture, Furnishings and Equipment current as of the date
of this Agreement.
3.8.3 Statutes of Repose or Limitations. 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
in accordance with Section 13.7 of the General Conditions.
3.8.4 Waivers Of Subrogation. To the extent damages are covered by property
insurance during construction, the Owner and Architect waive all rights
against each other and against the contractors, consultants, agents and
employees of the other for damages, except such rights as they may have to the
proceeds of such insurance as set forth in the General Conditions. The Owner
or the Architect, as appropriate, shall require of the contractors,
consultants, agents and employees of any of them similar waivers in favor of
the other parties enumerated herein.
3.8.5 Successors and Assigns. The Owner and Architect, 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 Architect shall assign this Agreement
without the written consent of the other.
3.8.6 Titles and Headings. The titles and headings in this Agreement are for
convenience and shall not be interpreted as supplementing or superseding the
intent of the parties expressed in the body of this Agreement.
3.8.7 Third Parties. 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 Architect.
3.8.8 Hazardous Materials. Unless otherwise provide this Agreement, the
Architect and Architect's consultants have no responsibility for the
discovery, presence, hand removal or disposal of or exposure of persons to
hazardous materials or toxic substances in any form at the Project site. If
the Architect is required to perform services related to hazardous materials,
the Owner agrees to indemnify and hold harmless the Architect, the Architect's
consultants and their agents and employees from and against any and all
claims, damages, losses and expenses, including but not limited attorneys'
fees, arising out of or resulting from performance of services by the
Architect, the Architect's consultants or agents or employees related to such
services, except where such liability arises from the sole negligence or
willful misconduct of the person or entity seeking indemnification.
3.8.9 Publicity. The Architect shall have the right to include photographic or
artistic representations of the design of the Project among the Architect's
promotional and professional materials. The Architect shall be given
reasonable access to the completed Project to make such representations.
However, the Architect's materials shall not include the Owner's confidential
or proprietary information.
3.8.10 Conflict of Interest. Except with the Owner's knowledge and consent,
the Architect shall not (1) accept trade discounts, (2) have a substantial
direct or indirect financial interest in the Project, or (3) undertake any
activity or employment or accept any contribution, if it would reasonably
appear that such activity, employment, interest or contribution could
compromise the Architect's professional judgment or prevent the Architect from
serving the best interest of the Owner.
3.8.11 Disbursement Agreement. Architect expressly understands, acknowledges
and agrees that payment to the Architect for the Designated Services,
Contingent Additional Services and Reimbursable Expenses by Owner shall be
made from a Construction Disbursement Account to be established pursuant to
the Disbursement Agreement, a copy of which shall be delivered to Architect by
Owner following execution thereof, utilizing proceeds from the Construction
Loan. Professional Associates Construction Services, Inc. (the "Independent
Consultant") has been appointed by the Trustee to review and inspect the Work,
review payment applications, and control and authorize disbursements from the
Construction Disbursement Account and all other tasks set forth for the
Independent Consultant in the Disbursement Agreement. In connection with the
foregoing, from and after the Financing Date:
3.8.11.1 If requested by the Development Manager or the Trustee, Architect
shall acknowledge Architect's agreement to the terms of the Disbursement
Agreement. Architect agrees to execute and deliver to Trustee the "Contracting
Party's Consent to Assignment" in the form of Exhibit H to the Disbursement
Agreement.
3.8.11.2 Notwithstanding the terms and provisions of this Agreement, the terms
and provisions of the Disbursement Agreement shall prevail in all respects in
relation to matters dealing with the Project, including without limitation,
matters relevant to progress payments, retainage, Change Orders, change to the
Contract Documents, and inspection and approval of the Work by the Independent
Consultant, and provided that Owner and Development Manager are acting in
accordance with the terms and conditions of the Disbursement Agreement, Owner
shall not be deemed to be in default under this Agreement in the event of any
conflict between the terms of the Agreement and the Disbursement Agreement.
Any consents, approvals or other actions required or permitted by Owner or
Development Manager hereunder shall be subject to and conditioned upon the
consent, approval or other action by the Independent Consultant to the extent
so provided in the Disbursement Agreement.
3.8.11.3 All reimbursements or payments made by Architect to Owner shall be
deposited directly in to the Construction Disbursement Account established by
the Disbursement Agreement to the extent required by the Disbursement
Agreement.
3.8.11.4 All indemnities contained in this Agreement which run in favor of
Owner or Development Manager shall also run in favor of Trustee and no action
by any of the parties indemnified shall affect the continuing obligation of
the Architect to indemnify the other indemnified parties.
3.8.12 Intentionally Deleted.
3.8.13 Deliveries to Development Manager. All information, documentation and
notes delivered or to be delivered by Architect to Construction Manager shall
also be delivered to Development Manager. All consents and modifications
authorized hereunder to be made by the Architect or Construction Manager are
specifically conditioned upon the prior written approval of Development
Manager.
3.8.14 Exclusivity. Neither Architect nor any parent, affiliate or subsidiary
of Architect, directly or indirectly, shall perform any work on, whether as an
architect, construction manager, contractor, subcontractor, adviser or in any
other capacity, or have any ownership interest in, any casino or hotel project
within the "Prohibited Area" from and after the date of this Agreement except
with the written approval of Development Manager and Owner to be granted or
withheld in each of Owner's and Development Manager's sole and absolute
discretion. The preceding prohibition shall expire upon the earlier of (i) the
first anniversary of Substantial Completion of the Project and (ii) the hiring
by Owner of another architect for the Project after the termination of this
Agreement by Owner without cause. The "Prohibited Area" shall be a fifty (50)
mile radius emanating from the site of the Project. Owner and Architect
acknowledge that the foregoing restriction is reasonable in light of
Architect's particular skill in designing gaming facilities and Architect's
extensive reputation for designing projects such as the Project in a manner of
the highest quality coupled with Owner's need to establish its business at the
Project free of competition to the extent possible. Architect and Owner
further acknowledge that the prohibited area reasonably approximates the
geographic area of Owner's anticipated clientele.
3.8.14.1 Without limiting Owner's remedies, if Architect should violate the
covenant contained in this Subparagraph 3.8.14, Owner may, at its option,
elect to seek injunctive relief to prevent violation of Architect's covenant
or to require Architect to cease any such violation. Whether or not Owner
elects to pursue injunctive relief with respect to any violation by Architect
of its covenant pursuant to this Paragraph, Owner may treat such violation as
a default under this Agreement and, after notice and opportunity to cure, may
seek all remedies available to Owner by virtue of Architect's breach,
including termination of this Agreement. Neither exercise nor failure to
exercise any of the foregoing remedies shall defeat or limit Owner's right to
recover from Architect all damages which Owner may establish as the result of
Architect's violation of its covenant contained in this Subparagraph.
3.8.14.2 Architect acknowledges that Architect's continuing compliance with
the obligations of this Subparagraph 3.8.14 constitutes a material economic
consideration for Owner's agreement to enter into this Agreement. As a further
consideration to Owner, Architect agrees to confirm its continued compliance
with this Subparagraph 3.8.14 during such time as compliance is required by
executing and delivering to Owner a statement of compliance within ten (10)
days after Architect's receipt of Owner's or Development Manager's written
request therefore.
3.8.14.3 By its execution of this Agreement, Architect represents and warrants
that the execution and delivery by Architect of this Agreement upon the terms
described herein will not violate the terms and provisions of any agreement to
which Architect is a party or by which Architect or any of its properties are
bound, including without limitation the provisions of any radius restriction.
3.8.14.4 Development Manager shall be entitled to enforce the provisions of
this Subparagraph 3.8.14 independently of Owner as an intended Third Party
Beneficiary.
ARTICLE 3.9
-----------
TERMINATION, SUSPENSION OR ABANDONMENT
3.9.1 Termination for Breach. This Agreement may be terminated by either party
upon not less than seven 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. Failure of the Owner
to make payments to the Architect in accordance with this Agreement shall be
considered substantial nonperformance and cause for termination.
3.9.2 Suspension. If the Project is suspended by the Owner for more than 30
consecutive days, the Architect shall be compensated for services performed
prior to notice of such pension. When the Project is resumed, the Architects
compensation shall be equitably adjusted to provide for expenses incurred in
the interruption and resumption of Architect's services.
3.9.3 Termination on Abandonment. This Agreement may be terminated by the
Owner upon not less than seven days' written notice to the Architect in the
event that the Project is permanently abandoned. If the Project is abandoned
by the Owner for more than 90 consecutive days, the Architect may terminate
this Agreement by giving written notice to the Owner.
3.9.4 Failure of the Owner to make payments to the Architect in accordance
with this Agreement shall be considered substantial nonperformance and cause
for termination.
3.9.5 Suspension by Architect. If the Owner fails to make payment when due the
Architect for services and expenses, the Architect may, upon seven days'
written notice to the Owner, suspend performance of services under this
Agreement. Unless payment in full is received by the Architect 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 Architect shall
have no liability to the Owner for delay or damage caused the Owner because of
such suspension of services.
3.9.6 Compensation of Architect. In the event of termination not the fault of
the Architect, the Architect shall be compensated for services performed prior
to termination together with Reimbursable Expenses then due and all
Termination Expenses as defined in Subparagraph 3.9.7.
3.9.7 Termination Expenses. Termination expenses an addition to compensation
for the Architect's services, and include expenses which are directly
attributable to termination. Termination Expenses shall be the total
compensation for all services earned to the time of termination.
EXHIBIT A
PROJECT SCHEDULE
- -----------------------------------------------------------------------------------------------------
Task Name | Start | Finish |
- ---------------------------------------|------------------------------|------------------------------|
Chukchansi Casino Development | 31-Jul-02 | July-2003 |
- ---------------------------------------|------------------------------|------------------------------|
Notice to Proceed | 31-Jul-02 | July-2002 |
- ---------------------------------------|------------------------------|------------------------------|
Mobilization | 31-Jul-02 | July-2002 |
- ---------------------------------------|------------------------------|------------------------------|
Sitework | | |
- ---------------------------------------|------------------------------|------------------------------|
Mass Grading | August-2002 | September-2002 |
- ---------------------------------------|------------------------------|------------------------------|
Balance of Sitework | August-2002 | April-2003 |
- ---------------------------------------|------------------------------|------------------------------|
Foundations | | |
- ---------------------------------------|------------------------------|------------------------------|
Hotel | October-2002 | November-2002 |
- ---------------------------------------|------------------------------|------------------------------|
Casino | October-2002 | November-2002 |
- ---------------------------------------|------------------------------|------------------------------|
Superstructures | | |
- ---------------------------------------|------------------------------|------------------------------|
Hotel First Floor | November-2002 | April-2003 |
- ---------------------------------------|------------------------------|------------------------------|
Casino Structural Columns | October-2002 | December-2002 |
- ---------------------------------------|------------------------------|------------------------------|
Enclosures | | |
- ---------------------------------------|------------------------------|------------------------------|
Hotel | January-2003 | April-2003 |
- ---------------------------------------|------------------------------|------------------------------|
Casino | January-2003 | March-2003 |
- ---------------------------------------|------------------------------|------------------------------|
Interiors | | |
- ---------------------------------------|------------------------------|------------------------------|
Hotel | February-2003 | May-2003 |
- ---------------------------------------|------------------------------|------------------------------|
Casino | February-2003 | June-2003 |
- ---------------------------------------|------------------------------|------------------------------|
Slot Machine Installation | May-2003 | June-2003 |
- ---------------------------------------|------------------------------|------------------------------|
WWTP | July-2002 | June-2003 |
- ---------------------------------------|------------------------------|------------------------------|
Commission Buildings | June-2003 | June-2003 |
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Grand Opening | June-2003 | June-2003 |
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EXHIBIT B
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| GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION |
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ARTICLE 1. 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), GMP Schedule of Values, Drawings,
Specifications, Addenda issued prior to execution of the Contract, OCIP
Manuals, other documents listed in the Agreement and Modifications issued
after execution of the Contract. A Modification is (l) a written amendment to
the Contract signed by both parties, (2) a Change Order or (3) a Construction
Change Directive. Unless specifically enumerated in or attached to 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 Construction Manager'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
Contract Documents shall not be construed to create a contractual relationship
of any kind (l) between the Architect and Construction Manager, (2) between
the Owner and a Subcontractor or Sub-subcontractor, (3) between the Owner and
Architect, (4) between the Development Manager and Construction Manager, (5)
between Development Manager and Architect or (6) between any persons or
entities other than the Owner and Construction Manager. The Architect shall,
however, be entitled to performance and enforcement of obligations under the
Contract intended to facilitate performance of the Architect's 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
Construction Manager to fulfill the Contractor's obligations. The Work may
constitute the whole or a part of the Project. Construction Manager
acknowledges and agrees that the Contract Documents shall be adequate and
sufficient to provide for the completion of the Work, and shall include all
work, whether or not shown or described, which reasonably may be inferred to
be required for the completion of the Work in accordance with all applicable
laws, codes and professional standards.
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 the Owner or by separate contractors.
1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents
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, systems, standards and
workmanship for the Work, and performance of related services.
1.1.7 THE PROJECT MANUAL
The Project Manual is a volume assembled for the Work which may include the
bidding requirements, sample forms, Conditions of the Contract and
Specifications.
1.1.8 THE OCIP MANUALS
All OCIP Manuals provided by or through Owner or Development Manager shall be
incorporated herein as a portion of the Contract Documents.
1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
1.2.1 The intent of the Contract Documents is to include all items necessary
for the proper execution and completion of the Work by 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 the Construction
Manager shall be required only to the extent consistent with the Contract
Documents and reasonably inferable from them as being necessary to produce the
indicated results.
1.2.2 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.
1.2.3 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.
1.2.4 Conflicts or discrepancies among the Contract Documents shall be
resolved in the following order:
1. The Agreement;
2. The Supplementary General Conditions, if any;
3. The General Conditions;
4. Drawings and Specifications; Drawings govern Specifications
of quantity and location, and Specifications govern Drawings
for quality and performance. In the event of ambiguity in
quantity or quality, the greater quantity and the better
quality shall govern;
5. Figured dimensions govern scale dimensions and large scale
Drawings govern small scale Drawings; and
6. Submittals.
Modifications and revisions of the foregoing of a later date take precedence
over those of earlier date.
1.3 CAPITALIZATION
1.3.1 Terms capitalized in these General Conditions include those which are
(1) specifically defined in the Contract or herein, (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.
1.4 INTERPRETATION
1.4.1 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.
1.5 EXECUTION OF CONTRACT DOCUMENTS
1.5.1 The Contract Documents shall be signed by the Owner and Construction
Manager. If either the Owner or Construction Manager or both do not sign all
the Contract Documents, the Development Manager shall identify such unsigned
Documents upon request.
1.5.2 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.
The Construction Manager and each Subcontractor shall evaluate and satisfy
themselves as to the conditions and limitations under which the Work is to be
performed, including, without limitation (1) the location, condition, layout
and nature of the Project site and surrounding areas, (2) generally prevailing
climatic conditions, (3) labor supply and costs, (4) availability and cost of
materials, tools and equipment and (5) other similar issues. The Owner assumes
no responsibility or liability for the physical condition or safety of the
Project site or any improvements located on the Project site. The Owner shall
not be required to make any adjustment in the Contract Sum or Contract Time in
connection with any failure by the Construction Manager or any Subcontractor
to comply with the requirements of this Paragraph 1.5.2.
1.6 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS
OF SERVICE
1.6.1 All Drawings, Specifications and other documents prepared by the
Architect and the Architect's consultants are and shall remain the property of
the Architect, and Architect shall retain all common law, statutory and other
reserved rights with respect thereto. The Owner shall be permitted to retain
copies, including reproducible copies, of the Project Drawings, Specifications
and other documents for information and reference in connection with the
Owner's use and occupancy of the Project. The Project Drawings, Specifications
or other documents shall not be used by the Owner or others on other projects,
for additions to this Project or for completion of this Project by others,
unless the Architect is in default under this Agreement, except by agreement
in writing and with appropriate compensation to the Architect. Owner shall
take such action as may be necessary to prevent their use on any other project
or for additions to the Project outside the scope of the Work by Construction
Manager, any Subcontractor, Sub-subcontractor or material or equipment
supplier. The Development Manager, Construction Manager, Subcontractors,
Sub-subcontractors and material and equipment suppliers are granted a limited
license to use and reproduce applicable portions of the Drawings,
Specifications and other documents prepared by the Architect and the
Architect's consultants appropriate to and for use in the execution of their
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 and the
Architect's consultants. Submittals or distributions necessary to meet
official regulatory requirements or for other purposes relating to completion
of the Project are not to be construed as a publication in derogation of the
Owner's copyright or other reserved rights.
ARTICLE 2. OWNER
2.1 GENERAL
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 Development Manager has express authority to bind the Owner with respect
to all matters requiring the Owner's approval or authorization, solely
excluding approval of Change Orders and amendments or modifications to the
Contract. The Architect does not have such authority. The term "Owner" means
the Owner or the Development Manager.
2.1.2 The Development Manager shall furnish to the Construction Manager within
15 days after receipt of a written request, 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.
2.1.3 Owner shall provide Construction Manager with reasonable evidence of
receipt of sufficient funds to complete construction of the Project in
accordance with Section 3.1.1 of the Agreement.
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2.1 Except for permits and fees, including those required under Subparagraph
3.7.1, which are the responsibility of the Construction Manager under the
Contract Documents, the Development Manager shall secure and the Owner shall
pay for necessary approvals, easements, assessments and charges required for
construction, use or occupancy of permanent structures or for permanent
changes in existing facilities.
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. The Construction Manager shall be entitled to
rely on the accuracy of information furnished by the Owner but shall exercise
proper precautions relating to the safe performance of the Work.
2.2.3 Information or services required of the Owner by the Contract Documents
shall be furnished by the Development Manager with reasonable promptness.
2.2.4 Unless otherwise provided in the Contract Documents, 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.
2.3 OWNER'S RIGHT TO STOP THE WORK
2.3.1 If the Construction Manager fails to correct Work which is not in
accordance with the requirements of the Contract Documents as required by
Paragraph 12.2 or fails to carry out Work in accordance with the Contract
Documents, the Development Manager may issue a written order to the
Construction Manager to stop the Work, or any portion thereof, until the cause
for such order has been eliminated; however, the right of the Development
Manager to stop the Work shall not give rise to a duty on the part of the
Owner to exercise this right for the benefit of the Construction Manager or
any other person or entity. This right shall be in addition to, and not in
restriction of, Owner's rights under Subparagraph 12.2.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
2.4.1 If the Construction Manager defaults or neglects to carry out the Work
in accordance with the Contract Documents and fails within a five business day
period after receipt of written notice from the Development Manager to
commence and continue correction of such default or neglect with diligence and
promptness, the Owner may, without prejudice to other remedies the Owner may
have, commence and continue to carry out the Work. In such case an appropriate
Change Order shall be issued deducting from payments then or thereafter due
the Construction Manager the reasonable cost of correcting such deficiencies
or otherwise performing the Work, including Owner's expenses and compensation
for the Architect's and Development Manager's additional services made
necessary by such default, neglect or failure. If payments then or thereafter
due the Construction Manager are not sufficient to cover such amounts, the
Construction Manager shall promptly pay the difference to the Owner. The right
of the Development Manager to stop the Work shall not give rise to a duty on
the part of the Owner to exercise this right for the benefit of the
Construction Manager or any other person or entity.
ARTICLE 3. CONSTRUCTION MANAGER
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 the Contract Documents as if
singular in number. The term "Construction Manager" includes the Construction
Manager's authorized representative.
3.1.2 The Construction Manager shall perform the Work in accordance with the
Contract Documents.
3.1.3 The Construction Manager shall not be relieved of obligations to perform
the Work in accordance with the Contract Documents either by activities or
duties of the Architect or Development Manager in their administration of the
Contract, or by tests, inspections or approvals required or performed by
persons other than the Construction Manager.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONSTRUCTION MANAGER
3.2.1 Since the Contract Documents are complementary, before starting each
portion of the Work, the Construction Manager shall carefully study and
compare the various Drawings and other Contract Documents relative to that
portion of the Work, shall take field measurements of any existing conditions
related to that portion of the Work and shall observe any conditions at the
site affecting it. These obligations are for the purpose of facilitating
construction by the Construction Manager and are not for the purpose of
discovering errors, omissions, or inconsistencies in the Contract Documents;
however, any errors, inconsistencies or omissions discovered by the
Construction Manager shall be reported promptly to the Development Manager and
Architect as a request for information in such form as each may require. In
addition, if the Construction Manager performs any construction activity and,
in the Construction Manager's capacity as a contractor and not as a licensed
design professional, if it knows or reasonably should have known that any of
the Contract Documents contains a recognized error, inconsistency or omission,
the Construction Manager shall be responsible for such performance and shall
bear the cost for correction thereof.
3.2.2 Any design errors or omissions noted by the Construction Manager during
this review shall be reported promptly to the Development Manager and
Architect, but it is recognized that the Construction Manager's review is made
in the Construction Manager's capacity as a contractor and not as a licensed
design professional unless otherwise specifically provided in the Contract
Documents. The Construction Manager is not required to ascertain that the
Contract Documents are in accordance with applicable laws, statues,
ordinances, building codes, and rules and regulations, but any nonconformity
discovered by or made known to the Construction Manager shall be reported
promptly to the Development Manager and Architect.
3.2.3 If the Construction Manager believes that additional cost or time is
involved because of clarifications or instructions issued by the Architect in
response to the Construction Manager's notices or requests for information
pursuant to Subparagraphs 3.2.1 and 3.2.2, the Construction Manager shall make
Claims as provided in Subparagraphs 4.3.6 and 4.3.7. If the Construction
Manager fails to perform the obligations of Subparagraphs 3.2.1 and 3.2.2, the
Construction Manager shall pay such costs and damages to the Owner as would
have been avoided if the Construction Manager had performed such obligations.
3.2.4 Except as to any reported errors, inconsistencies or omissions, and to
concealed or unknown conditions defined in Paragraph 4.3.4, by executing the
Agreement, the Construction Manager represents the following:
..1 The Contract Documents are sufficiently complete and detailed for the
Construction Manager to (1) perform the Work required to produce the
results intended by the Contract Documents and (2) comply with all the
requirements of the Contract Documents.
..2 The Work required by the Contract Documents including, without
limitation, all construction details, construction means, methods,
procedures and techniques necessary to perform the Works, use of
materials, selection of equipment and requirements of product
manufacturers shall be consistent with (1) good and sound practices
within the construction industry, (2) generally prevailing and accepted
industry standards applicable to Work; (3) requirements of any warranties
applicable to the work; and (4) all laws, ordinances and regulations,
rules and orders which bear upon the Construction Manager's performance
of the Work.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Construction Manager shall supervise and direct the Work, using the
Construction Manager's best skill and attention. The Construction Manager
shall be solely responsible for and have control over construction means,
methods, techniques, sequences and procedures and for coordinating all
portions of the Work under the Contract, including coordination of the duties
of all trades, unless the Contract Documents give other specific instructions
concerning these matters. If the Contract Documents give specific instructions
concerning construction means, methods, techniques, sequences or procedures,
the Construction Manager shall evaluate the jobsite safety thereof and, except
as stated below, shall be fully and solely responsible for the jobsite safety
of such means, methods, techniques, sequences or procedures. If the
Construction Manager determines that such means, methods, techniques,
sequences or procedures may not be safe, the Construction Manager shall give
timely written notice to the Development Manager and Architect and shall not
proceed with that portion of the Work without further written instructions
from the Development Manager. If the Construction Manager is then instructed
to proceed with the required means, methods, techniques, sequences or
procedures without acceptance of changes proposed by the Construction Manager,
the Construction Manager shall not be responsible for any resulting loss or
damage.
3.3.2 The Construction Manager shall be responsible to the Owner for acts and
omissions of the Construction Manager's employees, Subcontractors and their
agents and employees, and other persons or entities performing portions of the
Work for or on behalf of the Construction Manager or any of its
Subcontractors.
3.3.3 The Construction Manager shall be responsible for inspection of portions
of Work already performed to determine that such portions are in accordance
with the Drawings and in proper condition to receive subsequent Work.
3.3.4 The Construction Manager acknowledges that it is the Construction
Manager's responsibility to hire all personnel for the proper and diligent
prosecution of the Work and the Construction Manager shall use its best
efforts to maintain labor peace for the duration of the Project. In the event
of any labor dispute with respect to the Work or the Project, the Construction
Manager shall not be entitled to any increase in the Contract Sum. Labor
disputes other than with respect to labor at the Project site shall be
governed by Paragraph 8.3.1 hereof.
3.3.5 The Construction Manger shall be responsible for coordination of Owner's
other contractors to the extent set forth in the Agreement.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents, the Construction
Manager shall provide and 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 may make substitutions only with the consent of
the Development Manager, after evaluation by the Architect and pursuant to a
Change Order.
3.4.3 The Construction Manager shall enforce strict discipline and good order
among the Construction Manager's employees, Subcontractors, 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 warrants to the Owner, Development 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 to the requirements of
the Contract Documents. Work not conforming to these requirements, including
substitutions not properly approved and authorized, shall be considered
defective. The Construction Manager's warranty excludes remedy for damage or
defect caused by abuse, modifications not executed by the Construction
Manager, improper or insufficient maintenance, improper operation, or normal
wear and tear and normal usage. If required by the Development Manager, the
Construction Manager shall furnish satisfactory evidence as to the kind and
quality of materials and equipment.
3.6 TAXES
3.6.1 The Construction Manager shall pay sales, consumer, use and similar
taxes for the Work provided by the Construction Manager which are legally
enacted when bids are received or negotiations concluded, whether or not yet
effective or merely scheduled to go into effect. Such taxes shall not be a
Cost of the Work except to the extent permitted by Paragraphs 6.1.6.1 and
6.2.1.12 of the Agreement.
3.7 PERMITS, FEES AND NOTICES
3.7.1 Unless otherwise provided in the Contract Documents, the Construction
Manager shall secure and pay for the building permit and 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 Construction Manager shall comply with and give notices required by
laws, regulations and lawful orders of public authorities applicable to
performance of the Work.
3.7.3 It shall be the obligation of the Construction Manager to review the
Contract Documents to determine and to notify the Development Manager and the
Architect of any discrepancy between building codes and regulations of which
the Construction Manager has knowledge or should be reasonably able to
determine. The Construction Manager shall not violate any zoning, setback or
other locational requirements of applicable laws, codes and ordinances, or of
any recorded covenants of which the Construction Manager has knowledge. If the
Construction Manager observes that portions of the Contract Documents are at
variance with applicable laws, statutes, ordinances, building codes, rules or
regulations, the Construction Manager promptly shall notify the Development
Manager and Architect in writing, and necessary changes shall be accomplished
by appropriate Modification.
3.7.4 If the Construction Manager or any of its Subcontractors at any tier
performs Work knowing it to be, or where it should have known it to be,
contrary to laws, statutes, ordinances, building codes, and rules and
regulations, including laws related to the presence and/or protection of
archeological artifacts or remnants or endangered species without prior
written notice to the Architect and Development Manager, the Construction
Manager shall assume full responsibility for such Work and shall bear the
costs attributable to correction as well as all actual and consequential
damages of Owner and Development Manager resulting therefrom.
3.8 ALLOWANCES
3.8.1 The Construction Manager 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
Development Manager may direct, but the Construction Manager shall not be
required to employ persons or entities to whom the Construction Manager has
reasonable objection.
3.8.2 Unless otherwise provided in the Contract Documents:
..1 allowances shall cover the cost to the Construction Manager of materials
and equipment delivered at the site and all required and reimbursable
taxes, less applicable trade discounts;
..2 Construction Manager'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 but not in the allowances, except as may be set forth in the
Budget;
..3 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 (l) the difference between actual costs and the
allowances under Clause 3.8.2.1 and (2) changes in Construction Manager's
costs under Clause 3.8.2.2.
3.8.3 Materials and equipment under an allowance shall be selected by the
Owner in sufficient time to avoid delay in the Work.
3.9 SUPERINTENDENT
3.9.1 The Construction Manager shall employ a competent project manager and a
competent superintendent and necessary assistants who shall be in attendance
at the project site during performance of the Work. The project manager and
the superintendent shall be persons acceptable to Development Manager, and
these persons shall not be replaced without, and all replacements shall be
subject to, Development Manager's reasonable approval. The project manager
shall represent the Construction Manager, and communications given to the
project manager 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 or as required by
the Contract Documents.
3.10 CONSTRUCTION MANAGER'S CONSTRUCTION SCHEDULES
3.10.1 The Project Schedule is attached hereto as Exhibit A. The construction
schedule shall be updated and revised at appropriate intervals as required by
the conditions of the Work and Project, shall be related to the entire
Project, shall provide for expeditious and practicable execution of the Work
and shall not be modified or extended without the prior approval of the
Development Manager in each instance. The construction schedule shall be in a
detailed precedence-style critical path method (CPM) or other format
reasonably satisfactory to the Development Manager which (a) provides graphic
representation of all activities and events that will occur during the
performance of the Work; (b) identifies each phase of construction and
occupancy; and (c) sets forth dates (hereinafter referred to as "Milestone
Dates") that are critical in ensuring the timely and orderly completion of the
Work in accordance with the requirements of the Contract Documents.
3.10.2 The Construction Manager shall prepare and keep current, for the
Architect's and Development Manager's approval, a schedule of submittals which
is coordinated with the Construction Manager's construction schedule and
allows the Architect and Development Manager reasonable time to review
submittals.
3.10.3 The Construction Manager shall perform the Work in accordance with the
schedule attached to the Contract Documents, including all Milestone Dates set
forth therein, and shall cause Substantial Completion and Final Completion to
occur on or before the dates stated therefore in the Project schedule.
3.10.4 The Construction Manager shall monitor the progress of the Work for
conformance with the requirements of the construction schedule and shall
promptly advise the Development Manager of any delays or potential delays. The
accepted construction schedule shall be updated to reflect actual conditions
if requested by the Development Manager. In the event any updated construction
schedule indicates any delays, the Construction Manager shall propose an
affirmative plan to correct the delay, including overtime and/or additional
labor, if necessary. In no event shall any updated construction schedule
constitute an adjustment in the Contract Time, any Milestone Date or the
Contract Sum unless any such adjustment is agreed to by the Development
Manager and authorized pursuant to a Change Order.
3.10.5 In the event Development Manager determines that the performance of the
Work (i) as of any Milestone Date or (ii) as of the end of two consecutive
weeks, has not reached the level of completion required by the Project
schedule, and within three (3) business days thereafter Construction has not
provided Development Manager with an alternative schedule reasonably
acceptable to Development Manager which shows the Work being completed before
the Outside Substantial Completion Date, the Development Manager shall have
the right to order the Construction Manager to take corrective measures
necessary to expedite the progress of construction, including, without
limitation, (1) working additional shifts or overtime, (2) supplying
additional manpower, equipment and facilities and (3) other similar measures
hereinafter referred to collectively as Extraordinary Measures solely for the
purpose of ensuring the Construction Manager's compliance with the
construction schedule.
3.10.5.1 Cost of such Extraordinary Measures shall not be included in the
Cost of the Work and all such costs shall be borne solely by Construction
Manager as a part of Construction Manager's Fee.
3.10.5.2 Development Manager may exercise its rights under or pursuant to
this paragraph 3.10.5 as frequently as the Development Manager reasonably
deems necessary to ensure that the Construction Manager's performance of the
Work will comply with any Milestone Date or completion date set forth in the
Contract Documents.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
3.11.1 The Construction Manager shall maintain at the site for the Development
Manager one record copy of the Drawings, Specifications, Addenda, Change
Orders and other Modifications, in good order and marked currently to record
field changes and selections made during construction, and one record copy of
approved Shop Drawings, Product Data, Samples and similar required submittals.
These shall be available to the Development Manager and Architect and shall be
delivered to the Development Manager for submittal to the Owner upon
completion of the Work, signed by the Construction Manager, certifying that
they show complete and exact "as-built" conditions, stating sizes, kind of
materials, vital piping, conduit locations and similar matters.
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 Construction Manager or a
Subcontractor, 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
Construction Manager 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 by the Contract
Documents the way by which the Construction Manager 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 4.2.7.
Informational submittals upon which the Architect is not expected to take
responsive action may be so identified in the Contract Documents. Submittals
which are not required by the Contract Documents may be returned by the
Architect without action.
3.12.5 The Construction Manager shall review for compliance with the Contract
Documents, approve and submit to the Architect Shop Drawings, Product Data,
Samples and similar submittals required by the Contract Documents with
reasonable promptness and in such sequence as to cause no delay in the Work or
in the activities of the Owner or of separate Construction Managers.
Submittals which are not marked as reviewed for compliance with the Contract
Documents and approved by the Construction Manager may be returned by the
Architect without action.
3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and
similar submittals, the Construction Manager represents that the Construction
Manager 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.
3.12.7 The Construction Manager shall perform no portion of the Work for which
the Contract Documents require submittal and review of Shop Drawings, Product
Data, Samples or similar submittals until the respective submittal has been
approved by the Architect. Construction Manager shall not be responsible for
any delay in performing the Work to the extent resulting from failure of
Architect to perform its obligations within the time period set forth in
Paragraph 4.2.7, and any such material delay shall result in one or both of an
extension of the Outside Substantial Completion Date or an increase in the
Contract Sum to account for the required acceleration of the Work. Whether to
extend the Outside Substantial Completion Date or increase in the Contract
Sum, or to undertake a combination of both, shall be determined by Development
Manager in its sole and absolute discretion.
3.12.8 The Work shall be in accordance with approved submittals; except that
the Construction Manager shall not be relieved of responsibility for
deviations from requirements of the Contract Documents by the Architect's
approval of Shop Drawings, Product Data, Samples or similar submittals unless
the Construction Manager has specifically informed the Architect in writing of
such deviation at the time of submittal and a Change Order or Construction
Change Directive has been issued authorizing the deviation. The Construction
Manager shall not be relieved of responsibility for errors or omissions in
Shop Drawings, Product Data, Samples or similar submittals by the Architect's
approval thereof.
3.12.9 The Construction Manager 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 Architect on previous submittals.
In the absence of such written notice the Architect's approval of a
resubmission shall not apply to such revisions.
3.12.10 The Construction Manager shall not be required to provide professional
services which constitute the practice of architecture or engineering unless
such services are specifically required by the Contract Documents for a
portion of the Work or unless the Construction Manager needs to provide such
services in order to carry out the Construction Manager's responsibilities for
construction means, methods, techniques, sequences and procedures. The
Construction Manager shall not be required to provide professional services in
violation of applicable law. If professional design services or certification
by a design professional related to systems, materials or equipment are
specifically required of the Construction Manager by the Contract Documents,
the Development Manager and the Architect will specify all performance and
design criteria that such services must satisfy. The Construction Manager
shall cause such services or certifications to be provided by a properly
licensed design professional, whose signature and seal shall appear on all
drawings, calculations, specifications, certifications, Shop Drawings and
other submittals prepared by such professional. Shop Drawings and other
submittals related to the Work designed or certified by such professional, if
prepared by others, shall bear such professional's written approval when
submitted to the Architect. The Owner, Development Manager and the Architect
shall be entitled to rely upon the adequacy, accuracy and completeness of the
services, certifications and approvals performed by such design professionals,
provided the Development Manager and Architect have specified to the
Construction Manager all performance and design criteria that such services
must satisfy. Pursuant to this Subparagraph 3.12.10, the Architect will
review, approve or take other appropriate action on submittals only for the
limited purpose of checking for conformance with information given and the
design concept expressed in the Contract Documents. The Construction Manager
shall not be responsible for the adequacy of the performance or design
criteria required by the Contract Documents.
3.12.11 All shop drawings for any architectural, structural, mechanical or
electrical work must be submitted to, and approved by, the Architect. The
Construction Manager represents and warrants that all shop drawings shall be
prepared by persons and entities possessing experience and expertise in the
trade for which the shop drawing is prepared and, if reasonably required by
the Architect or by applicable law, by a licensed engineer.
3.13 USE OF SITE
3.13.1 The Construction Manager 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.
3.14 CUTTING AND PATCHING
3.14.1 The Construction Manager 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 Construction Manager shall not damage or endanger a portion of the
Work or fully or partially completed construction of the Owner or separate
contractors by cutting, patching or otherwise altering such construction, or
by excavation. The Construction Manager shall not cut or otherwise alter such
construction by the Owner or a separate contractor except with written consent
of the Development Manager and of such separate contractor; such consent not
to be unreasonably withheld. The Construction Manager shall not unreasonably
withhold from the Owner or a separate contractor the Construction Manager's
consent to cutting or, otherwise altering the Work.
3.15 CLEANING UP
3.15.1 The Construction Manager shall keep and maintain the site and
surrounding area free from accumulation of waste materials or rubbish caused
by operations under the Contract on a daily basis to the reasonable
satisfaction of Development Manager. At completion of the Work the
Construction Manager shall remove from and about the Project waste materials,
rubbish, the Construction Manager's tools, construction equipment, machinery
and surplus materials.
3.15.2 If the Construction Manager fails to clean up as provided in the
Contract Documents, the Owner may do so and the cost thereof shall be charged
to the Construction Manager.
3.16 ACCESS TO WORK
3.16.1 The Construction Manager shall provide the Owner, Development Manager,
Independent Consultant and Architect access to the Work in preparation and
progress wherever located.
3.17 ROYALTIES AND PATENTS AND COPYRIGHTS
3.17.1 The Construction Manager shall pay all royalties and license fees. The
Construction Manager shall defend suits or claims for infringement of
copyrights and patent rights and shall hold the Owner, Development 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
or where the copyright violations are contained in Drawings, Specifications or
other documents prepared by the Owner or Architect. However, if the
Construction Manager has reason to believe that the required design, process
or product is an infringement of a copyright or a patent, the Construction
Manager 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, Construction Manager shall
indemnify, defend and hold harmless Owner, Development Manager, Architect,
Trustee, and each and every of their respective contractors, consultants,
officers, directors, partners, members, agents and employees (each, an
"Indemnified Party") from and against all claims, demands, suits, damages,
losses and expenses, including consequential damages, to the extent arising
out of or resulting from the performance of the Work by Construction Manager,
or any Subcontractor, person or organization for whose acts the Construction
Manager is liable, provided that such claim, demand, suit, damage, loss or
expense is attributable to bodily injury or damage to property.
3.18.2 In any and all claims against an Indemnified Party by any employee of
the Construction Manager, any Subcontractor or any person or organization
employed by any of them to perform or furnish any of the Work, or anyone for
whose acts any of them may be liable, the indemnification obligation under
Subparagraph 3.18.1 shall not be limited by any limitation on amount or type
of damages, compensation or benefits payable by or for the Construction
Manager or a Subcontractor under any laws regulating worker's compensation,
disability benefit acts or other employee benefits.
3.18.3 The Construction Manager shall defend each Indemnified Party, through
counsel reasonably approved by such Indemnified Party, in any action,
proceeding or arbitration brought against the Indemnified Party by reason of
any such claim described in this Paragraph 3.18. The Construction Manager's
obligation to defend an Indemnified Party shall not extend to any action,
proceeding or arbitration which asserts or alleges only that the injury to the
claimant resulted solely from the negligence or misconduct of the Indemnified
Party and from no other cause or if a final judgment is obtained establishing
that such injury to the claimant resulted solely from the negligence or
misconduct of the Indemnified Party and from no other cause in which latter
event Construction Manager's obligation to defend such Indemnified Party shall
cease upon the date such judgment becomes final, and such Indemnified Party
shall thereupon reimburse Construction Manager for its reasonable attorneys'
fees and the court costs in so defending such Indemnified Party.
3.18.4 If any claim or lien or stop-notice or any other demand for payment or
security therefor, including claims or demands upon performance and payment
bond sureties for this Contract, is made or filed with the Owner or against
the Project by any person claiming that Construction Manager or any
Subcontractor or supplier or any other person claiming under any of them has
failed to perform its contractual obligations or to make payment for any
labor, services, trust fund contribution, materials, equipment, taxes or other
item furnished or obligation incurred for or in connection with the Work, or
if at any time there shall be evidence of such nonperformance or nonpayment of
any claim or lien or stop-notice or other demand for which, if established,
the Owner or the Project might become liable, and if the Construction Manager
fails to issue a bond under Subparagraph 3.18.5, then the Owner shall have the
right to retain from any payment then due or thereafter to become due under
the Contract, or to be reimbursed by Construction Manager of, any amount
sufficient to (i) satisfy, discharge and defend against any such claim of lien
or stop-notice or other demand, or any action or proceeding thereon which may
be brought to judgment or award; (ii) make good any such nonpayment,
nonperformance, damage, failure or default; and (iii) compensate the Owner for
any and all loss, liability, damage, cost and expense (including attorneys'
and consultants' fees and costs) which may be sustained or incurred in
connection therewith. The foregoing shall not apply to the extent such claim,
lien or stop-notice or other demand for payment results from any failure of
Owner to make payment under the Contract Documents in breach of the Contract
Documents.
3.18.5 Should any Subcontractor, supplier or other person for which the
Construction Manager is responsible or any of them, make, record or file, or
maintain any action on or respecting a claim of mechanic's lien, stop-notice,
equitable lien, payment or performance bond, or a lis pendens, relating to the
Work, the Construction Manager shall immediately and at its own expense
procure, furnish and record appropriate statutory release bonds which will
extinguish or expunge said claim, stop-notice or lis pendens.
3.18.6 Notwithstanding any other provision of the Agreement to the contrary,
an Indemnified Party shall be entitled to recovery of all attorney's fees
associated with the enforcement of this Section 3.18.
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.
4.1.2 Duties, responsibilities and limitations of authority of the Architect
as set forth in the Contract Documents shall not be restricted, modified or
extended without written consent of the Development Manager, Construction
Manager and Architect.
4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT
4.2.1 The Architect will provide administration of the Contract as described
in the Contract Documents, and will be an Owner's representative (1) during
construction, (2) until final payment is due and (3) with the Owner's
concurrence, from time to time in accordance with the Agreement. The Architect
will have authority to act on behalf of the Owner only to the extent provided
in the Contract Documents, unless otherwise modified in writing in accordance
with other provisions of the Contract.
4.2.2 The Architect, as a representative of the Owner, will visit the site at
intervals appropriate to the stage of the Construction Manager's operations
(1) to become generally familiar with and to keep the Development Manager
informed about the progress and quality of the portion of the Work completed,
(2) to endeavor to guard the Owner against defects and deficiencies in the
Work, and (3) to determine in general if the Work is being performed in a
manner indicating that the Work, when fully 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 the quality or
quantity of the Work. The Architect will neither have control over or charge
of, nor be responsible for, the construction means, methods, techniques,
sequences or procedures, or for safety precautions and programs in connection
with the Work, since these are solely the Construction Manager's rights and
responsibilities under the Contract Documents, except as provided in
Subparagraph 3.3.1.
4.2.3 The Architect will not be responsible for the Construction Manager's
failure to perform the Work in accordance with the requirements of the
Contract Documents. The Architect will not have control over or charge of and
will not be responsible for acts or omissions of the Construction Manager,
Subcontractors, or their agents or employees, or of any other persons
performing portions or entities of the Work.
4.2.4 Communications Facilitating Contract Administration. The Architect and
Construction Manager shall communicate with Owner through the Development
Manager about matters arising out of or related to the Contract.
Communications by and with Subcontractors and material suppliers shall be
through the Construction Manager. Communications by and with separate
contractors shall be through the Development Manager.
4.2.5 Based on evaluations of the Work by Architect and Development Manager
and of the Construction Manager's Applications for Payment, the Architect and
Development Manager will each review and certify the amounts due the
Construction Manager and will issue Certificates for Payment in such amounts.
4.2.6 The Architect and Development Manager will each have authority to reject
Work that does not conform to the Contract Documents. Whenever the Architect
or Development Manager considers it necessary or advisable, they each will
have authority to require 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. However, neither this authority of the Architect and
Development Manager nor a decision made in good faith either to exercise or
not to exercise such authority shall give rise to a duty or responsibility of
the Architect or Development Manager to the Construction Manager,
Subcontractors, material and equipment suppliers, their agents or employees,
or other persons or entities performing portions of the Work.
4.2.7 The Architect will review and approve or take other appropriate action
upon the Construction Manager'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 or in the activities of the Owner, Construction
Manager or separate contractors, but in no event longer than five (5) days
after receipt by Architect, except to the extent that such action cannot
reasonably be completed in a professional manner within such period as
reasonably agreed to by Development Manager and Construction Manager. 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
Construction Manager as required by the Contract Documents. The Architect's
review of the Construction Manager's submittals shall not relieve the
Construction Manager of the obligations under Paragraphs 3.3, 3.5 and 3.12.
The Architect's review shall not constitute approval of safety 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.
4.2.8 The Architect and Development Manager shall have authority to prepare
Change Orders and Construction Change Directives.
4.2.9 The Architect and Development Manager will conduct inspections to
determine the date or dates of Substantial Completion and the date of Final
Completion. Architect will receive from the Construction Manager and forward
to the Development Manager for the Development Manager's review and records
written warranties and related documents required by the Contract and
assembled by the Construction Manager. Architect and Development Manager will
each issue a final Certificate for Payment upon compliance with the
requirements of the Contract Documents.
4.2.10 If the Development Manager and Architect agree pursuant to a separate
written amendment, the Architect will provide one or more project
representatives to assist in carrying out the Architect's responsibilities at
the site.
4.2.11 The Architect will interpret and decide matters concerning performance
under and requirements of the Contract Documents on written request of either
the Development Manager or Construction Manager. The Architect's response to
such requests will be made in writing within any time limits agreed upon or
otherwise with reasonable promptness. If no agreement is made concerning the
time within which interpretations required of the Architect shall be furnished
in compliance with this Paragraph 4.2, then delay shall not be recognized on
account of failure by the Architect to furnish such interpretations until 10
days after written request is made for them.
4.2.12 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
initial decisions, the Architect will endeavor to secure faithful performance
by both Owner and Construction Manager, will not show partiality to either,
and will not be liable for results of interpretations or decisions so rendered
in good faith.
4.2.13 The Architect's decisions on matters relating to aesthetic effect will
be final if consistent with the intent expressed in the Contract Documents.
4.3 CLAIMS AND DISPUTES
4.3.1 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 Construction Manager arising out of or relating
to the Contract. Claims must be initiated by written notice. The
responsibility to substantiate Claims shall rest with the party making the
Claim.
4.3.2 Time Limits on Claims. Claims by either party must be initiated 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 initiated by written notice
containing a brief description thereof to the Architect and the other party.
4.3.3 Continuing Contract Performance. Pending final resolution of a Claim,
except as otherwise agreed in writing or as provided in Subparagraph 9.7.1 and
Article 14, the Construction Manager shall proceed diligently with performance
of the Contract and the Owner shall continue to make payments in accordance
with the Contract Documents.
4.3.4 Claims for Concealed or Unknown Conditions. If conditions not reasonably
discoverable by Construction Manager or the applicable Subcontractor are
encountered at the site which are (l) 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 three (3) 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 Construction Manager'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, but not in the amount of Construction Manager's Fee. If the Architect
determines that the conditions at the site are not materially different from
those indicated in the Contract Documents or that such differences were
reasonably discoverable by Construction Manager or the applicable
Subcontractor and that no change in the terms of the Contract is justified,
the Architect shall so notify the Owner and Construction Manager in writing,
stating the reasons. Claims by either party in opposition to such
determination must be made within seven (7) days after the Architect has given
notice of the decision. Subject to Sections 1.1.3 and 3.2.4 hereof, if the
conditions encountered are materially different, the Contract Sum and Contract
Time shall be equitably adjusted, but if the Owner and Contractor cannot agree
on an adjustment in the Contract Sum or Contract Time, the adjustment shall be
subject to further proceedings pursuant to the Agreement.
4.3.5 Claims for Additional cost. If the Construction Manager 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 10.5.
4.3.6 If the Construction Manager believes additional cost of the Work is
involved for reasons including but not limited to (l) a written interpretation
from the Architect, (2) an order by the Development Manager to stop the Work
where the Construction Manager was not at fault, (3) failure of payment by the
Owner, (4) termination of the Contract by the Owner, (5) Owner's suspension or
(6) other reasonable grounds, Claim shall be filed in accordance with this
Paragraph 4.3.
4.3.7 Claims for Additional Time
4.3.7.1 If the Construction Manager wishes to make Claim for an increase in
the Contract Time, written notice as provided herein shall be given. The
Construction Manager'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.
4.3.7.2 Claims for adverse weather conditions shall be determined on the basis
of an entire calendar quarter (i.e. January 1-March 31, April 1-June 30, July
1-September 30 and October 1-December 31). Adverse weather conditions shall be
a basis for a Claim for additional time only if such Claim shall be documented
by data substantiating that adverse weather conditions for any applicable
calendar quarter at the nearest National Weather Service location to the site
exceeded the "Quartlerly Rainfall Threshold" for the applicable calendar
quarter and had an adverse effect on the critical path of the construction
schedule. The "Quarterly Rainfall Threshold" shall equal the average of (i)
the median rainfall recorded in the past ten years for such calendar quarter
and (ii) the heaviest rainfall recorded in the past ten years for such
calendar quarter.
4.3.8 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, or of others for whose acts such party is legally
responsible, written notice of such injury or damage, whether or not insured,
shall be given to the other party within a reasonable time not exceeding 7
days after discovery. The notice shall provide sufficient detail to enable the
other party to investigate the matter.
4.3.9 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 Construction Manager, the applicable unit prices
shall be equitably adjusted.
ARTICLE 5. SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract with the
Construction Manager 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 Subcontractor or an authorized representative
of the Subcontractor. The term "Subcontractor" does not include a separate
contractor who has a direct contract with Owner or subcontractors of a
separate contractor.
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 The Construction Manager shall develop Subcontractor interest in the
Project and shall use its best efforts to furnish to the Development Manager
and Architect for their information a list of at least five (5) pre-qualified
Subcontractors, including suppliers who are to furnish materials or equipment
fabricated to a special design, from whom proposals will be requested for each
principal portion of the Work. All Subcontractors who bid on any portion of
the Work shall have been pre-qualified by Construction Manager as satisfying
each of the requirements set forth on Exhibit B to the Contract, unless waived
in writing by Development Manager. The Development Manager will promptly reply
in writing to the Construction Manager if the Development Manager or Architect
has any objection to such Subcontractor or supplier. The receipt of such list
shall not require the Development Manager to investigate the qualifications of
proposed Subcontractors or suppliers, nor shall it waive the right of the
Development Manager later to object to or reject any proposed Subcontractor or
supplier. The Subcontractor's bid list shall be approved by Development
Manager.
5.2.2 The Construction Manager shall obtain sealed bids from Subcontractors
and from suppliers of materials or equipment fabricated to a special design
for the Work from the list previously approved by Development Manager.
Construction Manager shall deliver such sealed bids to the Development Manager
from such Subcontractors and shall open them in the presence of the
Development Manager. The Development Manager shall then determine which bids
will be accepted, after receiving from the Construction Manager a detailed
review of the completeness and scope of each bid and an analysis of each
Subcontractor's ability to perform the subcontract financially and on
schedule, as well as a written recommendation as to which Subcontractor should
be selected. Development Manager shall reasonably approve the form and process
of Construction Manager's review, analysis and recommendation. The Development
Manager may designate specific persons or entities from whom the Construction
Manager shall obtain bids; however, the Development Manager may not prohibit
the Construction Manager from obtaining bids from other qualified bidders. The
Construction Manager shall not be required to contract with anyone to whom the
Construction Manager has reasonable objection.
5.2.3 If a specific bidder among those whose bids are delivered by the
Construction Manager to the Development Manager (1) is recommended to the
Development Manager by the Construction Manager; (2) is qualified to perform
that portion of the Work as reasonably determined by Development Manager; and
(3) has submitted a bid which conforms to the requirements of the Contract
Documents without reservations or exceptions, but the Development Manager
requires that a higher bid be accepted, then the Construction Manager may
require that a Change Order be issued to adjust the Guaranteed Maximum Price
by the difference between the bid of the person or entity recommended to the
Development Manager by the Construction Manager and the amount of the
subcontract or other agreement actually signed with the person or entity
designated by the Development Manager; provided that Construction Manager's
Fee shall not be increased as a result thereof.
5.2.4 The Construction Manager shall not change a Subcontractor, person or
entity previously selected if the Development Manager or Architect makes
reasonable objection to such substitute.
5.2.5 Construction Manager shall cause all subcontracts to include a clause
prohibiting Construction Manager from receiving any discount, refunds,
inducement, benefit or payment which is not to or for the benefit of Owner and
which is not reflected in the terms of the applicable subcontract. Each
Subcontractor shall certify as to such statement upon request of Owner,
Development Manager or Trustee.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 By appropriate written agreement, 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, including responsibility for safety of the
Subcontractor's Work, which the Construction Manager, by these Contract
Documents, assumes toward the Owner, Development Manager and Architect. Each
subcontract agreement shall preserve and protect the rights of the Owner,
Development 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 rights, remedies and redress against the Construction Manager 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 will similarly make copies of applicable portions of
such documents available to their respective proposed Sub-subcontractors.
5.3.2 Notwithstanding any provision of Subparagraph 5.3.1, any part of the
Work performed for the Construction Manager by a Subcontractor or its
Sub-subcontractor shall be pursuant to a written Subcontract between the
Construction Manager and such Subcontractor (or the Subcontractor and its
Subcontractor at any tier), which shall be prepared on a form of subcontract
satisfactory to the Development Manager in all respects. Each subcontract
shall contain provisions that:
1. require that such Work be performed in accordance with the
requirements of the Contract Documents;
2. waive all rights the contracting parties may have against
one another or that the Subcontractor may have against the
Owner for damages caused by fire or other perils covered by
the insurance described in the Contract Documents;
3. require the Subcontractor to carry and maintain insurance
coverage in accordance with the Contract Documents, and to
file certificates of such coverage with the Construction
Manager;
4. require the Subcontractor to submit certificates and waivers
of liens for work completed by it and by its
Sub-subcontractors as a condition to the disbursement of the
progress payment next due and owing;
5. require submission to Construction Manager or Subcontractor,
as the case may be, of applications for payment in a form
approved by the Owner, together with clearly defined
invoices and billings supporting all such applications under
each subcontract to which the Construction Manager is a
party;
6. report, so far as practicable, unit prices and any other
feasible formula for use in the determination of costs of
changes in the Work;
7. require each Subcontractor to furnish to the Construction
Manager in a timely fashion all information necessary for
the preparation and submission of the reports required
herein;
8. require that each Subcontractor continue to perform under
its subcontract in the event the Contract is terminated and
the Owner shall take an assignment of said subcontract and
request such Subcontractor to continue such performance;
9. require each Subcontractor to remove all debris created by
its activities;
10. prohibit Construction Manager from receiving any discount,
refund, inducement, benefit or payment which is not to or
for the benefit of Owner and which is not reflected in the
terms of the applicable subcontract;
11. require Subcontractor to certify upon request of Owner,
Development Manager, or Trustee that no discount, refund,
inducement, benefit or payment described in subparagraph 10
above has been paid to Construction Manager by such
Subcontractor, or to its knowledge, any other Subcontractor;
12. acknowledge that Development Manager has express authority
to bind Owner with respect to all matters requiring Owner's
approval or authorization, excluding approval of Change
Orders and amendments or modifications to the Contract; and
13. require the Subcontractor to adhere to such Native American
hiring preferences as may affect the Project from time to
time.
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 in accordance with the terms of the
Contract Documents or stoppage of the Work by Owner under
Section 2.3.1, and only for those subcontract agreements
which the Owner accepts by notifying the Subcontractor and
Construction Manager 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 Upon such assignment, if the Work has been suspended for more than 30
days, the Subcontractor's compensation shall be equitably adjusted for
increases in cost (if any) resulting from the suspension.
ARTICLE 6. CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations
related to the Project with the Owner's own forces, and to award separate
contracts in connection with other portions of the Project or other
construction or operations on the site.
6.1.2 When separate contracts are awarded for different portions of the
Project or other construction or operations on the site, the term
"Construction Manager" in the Contract Documents in each case shall mean the
Contractor who executes each separate Owner-Contractor Agreement.
6.1.3 The Construction Manager shall provide for coordination of the
activities of the Owner's own forces and of each separate contractor with the
Work of the Construction Manager, who shall cooperate with them. The
Construction Manager shall participate with other separate contractors and the
Development Manager in reviewing their construction schedules when directed to
do so. The Construction Manager shall make any revisions to the construction
schedule deemed necessary after a joint review and mutual agreement. The
construction schedules shall then constitute the schedules to be used by the
Construction Manager, separate contractors and the Owner until subsequently
revised. Owner's contracts with such other contractors shall delegate such
coordination responsibility to Construction Manager. In addition, any such
separate contract to be assigned to Construction Manager shall be in
accordance with Section 2.5 of the Agreement.
6.1.4 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 Construction Manager under the
Conditions of the Contract, including, without excluding others, those stated
in Article 3, this Article 6 and Articles 10, 11 and 12.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Construction Manager shall afford the Owner and separate contractors
reasonable opportunity for introduction and storage of their materials and
equipment and performance of their activities and shall connect and coordinate
the Construction Manager's construction and operations with theirs as required
by the Contract Documents.
6.2.2 If part of the Construction Manager's Work depends for proper execution
or results upon construction or operations by the Owner or a separate
contractor, the Construction Manager shall, prior to proceeding with that
portion of the Work, promptly report to the Architect and Development Manager
apparent discrepancies or defects in such other construction that would render
it unsuitable for such proper execution and results. Failure of the
Construction Manager to so report shall constitute an acknowledgment that the
Owner's or separate contractor's completed or partially completed construction
is fit and proper to receive the Construction Manager's Work, except as to
defects not then reasonably discoverable.
6.2.3 The Owner shall be reimbursed by the Construction Manager for costs
incurred by the Owner which are payable to a separate contractor because of
delays, improperly timed activities or defective construction of the
Construction Manager.
6.2.4 The Construction Manager shall promptly remedy damage wrongfully caused
by the Construction Manager to completed or partially completed construction
or to property of the Owner or separate contractors as provided in
Subparagraph 10.2.5.
6.2.5 The Owner and each separate contractor shall have the same
responsibilities for cutting and patching as are described for the
Construction Manager in Paragraph 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises among the Construction Manager, separate 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, the Owner may clean up and the Architect will allocate the cost among
those responsible.
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 or Construction Change
Directive, 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,
Development Manager, Construction Manager and Architect; a Construction Change
Directive requires agreement by the Development Manager and Architect and may
or may not be agreed to by the Construction Manager.
7.1.3 Changes in the Work shall be performed under applicable provisions of
the Contract Documents, and the Construction Manager shall proceed promptly,
unless otherwise provided in the Change Order or Construction Change
Directive.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared by the Architect and
signed by the Development Manager, Construction Manager and Architect, stating
their agreement upon all of the following:
..1 a change in the Work;
..2 the amount of the adjustment, if any, in the Cost of the Work ; and
..3 the extent of the adjustment, if any, in the Contract Time.
..4 Methods used in determining adjustments to the Cost of the Work 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
Architect and signed by the Development Manager and Architect, directing a
change in the Work prior to agreement on adjustment, if any, in the Cost of
the Work or Contract Time, or both. The Development Manager 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 Cost of the Work
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
Cost of the Work, 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 Construction
Manager shall promptly proceed with the change in the Work involved and advise
the Architect of the Construction Manager's agreement or disagreement with the
method, if any, provided in the Construction Change Directive for determining
the proposed adjustment in the Cost of the Work or Contract Time.
7.3.5 A Construction Change Directive signed by the Construction Manager
indicates the agreement of the Construction Manager therewith, including
adjustment in Cost of the Work 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 Construction Manager does not respond promptly or disagrees with
the method for adjustment in the Cost of the Work, the method and the
adjustment shall be determined by the Architect on the basis of reasonable
expenditures and savings of those performing the Work attributable to the
change. The Construction Manager's Fee shall only be adjusted if and to the
extent set forth in the Agreement. In such case, and also under Clause
7.3.3.3, the Construction Manager shall keep and present, in such form as the
Architect 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 types of
costs set forth in Section 6.1 of the Agreement.
7.3.7 The amount of credit to be allowed by the Construction Manager 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 Architect.
7.3.8 Pending final determination of the total cost of a Construction Change
Directive to the Owner, amounts not in dispute for such changes in the Work
shall be included in Applications for Payment accompanied by a Change Order
indicating the parties' agreement with part or all of such costs. For any
portion of such cost that remains in dispute, the Architect will make an
interim determination for purposes of monthly certification for payment for
those costs. That determination of cost shall adjust the Contract Sum on the
same basis as a Change Order, subject to the right of either party to disagree
and assert a Claim in accordance with Article 4.
7.3.9 When the Development Manager and Construction Manager agree with the
determination made by the Architect concerning the adjustments in the Cost of
the Work and Contract Time, or otherwise reach agreement upon the adjustments,
such agreement shall be effective immediately and shall be-recorded by
preparation and execution of an appropriate Change Order.
7.4 CHANGE ORDER REQUIRED.
No change in the Work shall be the basis of an addition to the Contract Sum or
a change in the Contract Time unless and until such change has been
specifically authorized by a Change Order executed and issued in accordance
with the Contract Documents. Changes in the Work may be made without notice to
Construction Manager's sureties, and absence of such notice shall not relieve
such sureties of any of their obligations to Owner.
7.4.1 If a change in the Work is to be ordered, a preliminary request
("'Change Order Request"') shall be issued by Development Manager to
Construction Manager describing the change and requesting the submission of a
Change Order. Subject to the provisions of the Disbursement Agreement, when
time does not permit the processing of a Change Order in advance of commencing
the change in the Work, upon receipt of a written authorization from
Development Manager, Construction Manager shall proceed with a change in the
Work and Construction Manager shall concurrently proceed with submission of a
Change Order. Such written authorization shall constitute a commitment by
Owner and Development Manager to subsequently issue a Change Order providing
for an addition to the Contract Time to complete the Work and/or an increase
in the Contract Sum
7.4.2 Within three (3) days of its receipt of a Change Order Request,
Construction Manager shall provide a preliminary estimate of any change in the
Cost of the Work or Contract Time associated with the change described in the
Change Order Request. Within ten (10) days following receipt of a Change Order
Request, Construction Manager shall submit a Change Order Request to
Development Manager together with the revised or new documents which, if
approved by Owner, will become part of the Contract Documents setting forth
any adjustment in the Cost of the Work or the Contract Time, and including an
itemization of all costs of material and labor with extensions listing
quantities and total costs, and a substantiation of any Claim for an extension
of the Contract Time. If no Change Order request is submitted by Construction
Manager within such period, it shall be conclusively presumed that the change
described in the Change Order Request does not call for any Work that results
in an increase in the Cost of the Work or the Contract Time, and such change
shall be performed by Construction Manager without any such increase. If
Construction Manager is unable to submit the above information within the time
limit it shall notify Development Manager in writing, setting forth for
Development Manager's approval a date by which Construction Manager will
submit the information as well as schedule for the performance of the Work for
which a Change Order will be forthcoming.
7.4.3 If Development Manager accepts a Change Order submitted by Construction
Manager, upon execution by Owner the Cost of the Work and the Contract Time
shall be adjusted as provided in the Change Order.
7.4.4 Nothing contained herein shall limit the right of the Development
Manager to order changes in Work by Change Orders that have not been signed by
Construction Manager, and Construction Manager shall promptly perform all Work
required under the Contract Documents or a Change Order. Any disputes as to
the amount of change to the Contract Time or the Contract Amount with respect
to a Change Order which is not executed by Construction Manager shall be
resolved in the manner set forth in the Agreement.
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.
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
8.2.1 Time limits stated in the Contract Documents are of the essence of the
Contract. By executing the Agreement the Construction Manager confirms that
the Contract Time is a reasonable period for performing the Work.
8.2.2 The Construction Manager shall not knowingly, except by agreement or
instruction of the Development Manager 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 Construction Manager and Owner.
The date of commencement of the Work shall not be changed by the effective
date of such insurance.
8.2.3 The Construction Manager shall proceed expeditiously with adequate
forces and shall achieve Substantial Completion within the Contract Time.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Construction Manager is materially delayed at any time in the
commencement or progress of the Work by an act or neglect of the Owner or
Architect, or of an employee of either, or of a separate contractor employed
by the Owner, or by changes ordered in the Work, as reflected in the Change
Orders approved by Development Manager that provide for the Contract Time to
be extended, or Project related strikes which cause delays to the Work in
excess of seven (7) days in the aggregate, fire, unanticipated significant
delay in deliveries or unavoidable casualties, all of which are beyond the
Construction Manager's or any Subcontractor's control (other than weather,
which shall be governed by Paragraph 4.3.7.2), and not reasonably foreseeable
by Construction Manager or any Subcontractor, or by delay authorized by the
Development Manager pending mediation and arbitration, then the Contract Time
shall be extended by Change Order for such reasonable time as the Development
Manager may determine. A time extension shall be Construction Manager's sole
remedy for all such delays other than those resulting from the actions or
neglect of Owner, the Architect or Owner's separate contractors, and no
increase in the Contract Sum shall result therefrom except as specified in the
Contract Documents.
8.3.2 Claims relating to time shall be made in accordance with applicable
provisions of Paragraph 4.3.
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 INTENTIONALLY DELETED
9.2 SCHEDULE OF VALUES
9.2.1 Before the first Application for Payment, the Construction Manager shall
submit to the Development Manager for its approval a detailed 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 Development Manager
may reasonably require. This schedule, unless objected to by the Development
Manager, shall be used as a, but not the only, basis for reviewing the
Construction Manager's Applications for Payment.
9.2.2 The Construction Manager and each Subcontractor shall prepare a trade
payment breakdown for the Work for which each is responsible, such breakdown
being submitted on a uniform standardized form approved by the Development
Manager. The form shall be divided in detail sufficient to exhibit areas,
floors and/or sections of the Work, and/or by convenient units and shall be
updated as required by the Development Manager as necessary to reflect (a)
description of Work (listing labor and material separately), (b) total value,
(c) percent of the Work completed to date, (d) value of Work completed to
date, (e) percent of previous amount billed, and (f) previous amount billed.
Any trade breakdown that fails to provide sufficient detail, is unbalanced or
exhibits front-end loading of the value of the Work shall be rejected. If a
trade breakdown had been initially approved and subsequently used, but was
later found to be in error, sufficient funds shall be withheld from future
Applications for Payment to ensure an adequate reserve (exclusive of normal
retainage) to complete the Work.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 Construction Manager shall submit to the Development Manager and
Architect an itemized Application for Payment for operations completed in
accordance with the schedule of values at the times set forth in the
Agreement. Such application shall be notarized, if required, and supported by
such data substantiating the Construction Manager's right to payment as the
Development Manager, Trustee or Architect may require, such as copies of
requisitions from Subcontractors and material suppliers, and reflecting
retainage if provided for in the Contract Documents. Construction Manager
shall provide with each Application for Payment unconditional lien waivers and
releases in statutory form with respect to the period covered by the prior
Application for Payment and conditional lien waivers and releases in statutory
form covering the period related to the current Application for Payment.
9.3.1.1 As provided for in Subparagraph 7.3.8, 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 portions of the Work
for which the Construction Manager does not intend to pay to a Subcontractor
or material supplier, unless such Work has been performed by others whom the
Construction Manager intends to pay.
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 Construction Manager with procedures satisfactory to the
Development Manager to establish the Owner's title to such materials and
equipment or otherwise protect the Owner's interest, and shall include the
costs of applicable insurance, storage and transportation to the site for such
materials and equipment stored off the site.
9.3.3 The Construction Manager 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 Construction Manager 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 be free and clear
of liens, claims, security interests or encumbrances in favor of the
Construction Manager, 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 Architect will, within seven days after receipt of the Construction
Manager's Application for Payment, either issue to the Development Manager a
Certificate for Payment, with a copy to the Construction Manager, for such
amount as the Architect determines is properly due, or notify the Construction
Manager and Development Manager in writing of the Architect's reasons for
withholding certification in whole or in part as provided in Subparagraph
9.5.1.
9.4.2 The issuance of a Certificate for Payment will constitute a
representation by the Architect to the Owner, based on the Architect's
evaluations of the Work and the data comprising the Application for Payment,
that the Work has progressed to the point indicated and that, to the best of
the 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 correction of minor deviations from the Contract Documents
prior to completion and to specific qualifications expressed by the Architect.
The issuance of a Certificate for Payment will further constitute a
representation that the Construction Manager is entitled to payment in the
amount certified. However, the issuance of a Certificate for Payment will not
be a representation that the Architect has (1) made exhaustive or continuous
on-site inspections to check the quality or quantity of the Work, (2) reviewed
construction means, methods, techniques, sequences or procedures, (3) reviewed
copies of requisitions received from Subcontractors and material suppliers and
other data requested by the Development Manager to substantiate the
Construction Manager's right to payment or (4) made examination to ascertain
how or for what purpose the Construction Manager has used money previously
paid on account of the Contract Sum.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
9.5.1 The Architect may withhold a Certificate for Payment in whole or in
part, to the extent reasonably necessary to protect the Owner, if in the
Architect's opinion the representations to the Owner required by Subparagraph
9.4.2 cannot be made. If the Architect is unable to certify payment in the
amount of the Application, the Architect will notify the Construction Manager
and Development Manager as provided in Subparagraph 9.4.l. If the Construction
Manager and Architect cannot agree on a revised amount, the Architect will
promptly issue a Certificate for Payment for the amount for which the
Architect is able to make such representations to the Owner. The Architect may
also withhold a Certificate for 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 Architect's opinion to protect the Owner from loss for which the
Construction Manager is responsible, including loss resulting from acts and
omissions described in Subparagraph 3.3.2, because of:
.1 defective Work not remedied;
.2 third party claims filed or reasonable evidence indicating probable
filing of such claims unless security acceptable to the Development
Manager is provided by the Construction Manager;
.3 failure of the Construction Manager to make payments properly to
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;
.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 liquidated damages for the anticipated delay; or
.7 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.
9.5.3 If the Construction Manager disputes any determination by the Architect
with regard to any Certificate of Payment, the Construction Manager
nevertheless shall expeditiously continue to prosecute the Work provided all
amounts not in dispute have been properly paid to Construction Manager in
accordance with the Contract Documents.
9.6 PROGRESS PAYMENTS
9.6.1 After the Architect and Development Manager have each issued a
Certificate for Payment, subject to any additional requirements of the
Contract Documents, the Owner shall make payment in the manner and within the
time provided in the Contract Documents, and the Development Manager shall so
notify the 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 Development Manager will, on request, furnish to a Subcontractor, if
practicable, information regarding percentages of completion or amounts
applied for by the Construction Manager and action taken thereon by the
Architect, Development Manager and Owner on account of portions of the Work
done by such Subcontractor.
9.6.4 Neither the Owner, Development 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.
9.6.7 Unless the Construction Manager provides the Owner with a payment bond
in the full penal sum of the Contract Sum, payments received by the
Construction Manager for Work properly performed by Subcontractors and
suppliers shall be held by the Construction Manager for those Subcontractors
or suppliers who performed Work or furnished materials, or both, under
contract with the Construction Manager for which payment was made by the
Owner. Nothing contained herein shall require money to be placed in a separate
account and not commingled with money of the Construction Manager, shall
create any fiduciary duty or tort liability on the part of the Construction
Manager for breach of trust or shall entitle any person or entity to an award
of punitive damages against the Construction Manager for breach of the
requirements of this provision.
9.6.8 Unless Construction Manager is not in default and otherwise requests
Owner not to do so as a result of Construction Manager's good faith dispute
with a Subcontractor or supplier, Owner may make payments jointly to the order
of Construction Manager and its Subcontractor or supplier.
9.7 FAILURE OF PAYMENT
9.7.1 Except to the extent set forth in the Contract Documents, if the
Architect does not issue a Certificate for Payment, through no fault of the
Construction Manager, within ten (10) days after receipt of the Construction
Manager's Application for Payment, or if the Owner does not pay the
Construction Manager within seven days after the date established in the
Contract Documents the amount certified by the Architect or awarded by
arbitration, then the Construction Manager may, upon seven additional days'
written notice to the Owner and Architect, stop the Work until payment of the
amount owing has been received. The Contract Time shall be extended
appropriately and the Cost of the Work shall be increased by the amount of the
Construction Manager's reasonable costs of shut-down, delay and start-up, plus
interest as provided for in the Contract Documents.
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, and when all required occupancy permits, if any, have
been issued, so the Owner can occupy or utilize the Work for its intended use
and all Work contemplated to be performed under the Contract is completed
other than "punch list" items. Material aesthetic details, as determined by
Development Manager in its reasonable discretion, which have not been
completed shall not be deemed "punch list" items and must be completed prior
to Substantial Completion being deemed to have occurred. The Construction
Manager shall secure and deliver to the Owner written warranties and
guarantees from all of its Subcontractors, Sub-subcontractor and suppliers
bearing the date of Substantial Completion or some other date as may be agreed
by the Owner and stating the period of warranty as required by the Contract
Documents. The Construction Manager is responsible for the warranty of all
Work, whether performed by it or by its Subcontractors at any tier.
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 prior to final
payment. Failure to include an item on such list does not alter the
responsibility of the Construction Manager to complete all Work in accordance
with the Contract Documents.
9.8.3 Upon receipt of the Construction Manager's list, the Architect 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 Construction Manager's list, which is not
sufficiently complete in accordance with the requirements of the Contract
Documents, so that the Owner can occupy or utilize the Work or designated
portion thereof for its intended use, the Construction Manager shall, before
issuance of the Certificate of Substantial Completion, complete or correct
such item upon notification by the Architect. In such case, the Construction
Manager shall then submit a request for another inspection by the Architect to
determine Substantial Completion.
9.8.4 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 responsibilities
of the Owner and Construction Manager for security, maintenance, heat,
utilities, damage to the Work and insurance, and shall fix the time within
which the Construction Manager shall finish all items on the list accompanying
the Certificate. Warranties required by the Contract Documents shall commence
on the date of Substantial Completion of the Work or designated portion
thereof unless otherwise provided in the Certificate of Substantial
Completion.
9.8.5 The Certificate of Substantial Completion shall be submitted to the
Development Manager and Construction Manager for their written acceptance of
responsibilities assigned to them in such Certificate. Upon such acceptance
and consent of surety, if any, the Owner shall make payment of retainage
applying to such Work or designated portion thereof. Such payment shall be
adjusted for Work that is incomplete or not in accordance with the
requirements of 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 or in accordance with the Contract Documents,
provided such occupancy or use is consented to by the insurer under the OCIP
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 Construction Manager shall prepare and submit a list to the
Architect as provided under Subparagraph 9.8.2. The stage of the progress of
the Work shall be determined by written agreement between the Owner and
Construction Manager or, if no agreement is reached, by decision of the
Architect.
9.9.2 Immediately prior to such partial occupancy or use, the Development
Manager, Construction Manager 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
portions 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 receipt of written notice that the Work is ready for final
inspection and acceptance and upon receipt of a final Application for Payment,
the Architect will promptly make such inspection and, when the Architect finds
the Work acceptable under the Contract Documents and the Contract fully
performed, the Architect will promptly issue a final Certificate for Payment
stating that to the best of the Architect's knowledge, information and belief,
and on the basis of the Architect's on-site visits 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 Construction Manager
and noted in the final Certificate is due and payable. The Architect's final
Certificate for Payment will constitute a further representation that
conditions listed in Subparagraph 9.10.2 as precedent to the Construction
Manager'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 Construction Manager submits to the Architect and
Development 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 otherwise 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 Development Manager, (3) a written statement that the Construction
Manager 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, (5) all warranties and guarantees
described in Section 9.8.1 and (6), if required by the Development Manager,
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 Development Manager. If a Subcontractor refuses to
furnish a release or waiver required by the Development Manager, the
Construction Manager may furnish a bond satisfactory to the Development
Manager to indemnify the Owner against such lien. If such lien remains
unsatisfied after payments are made, the Construction Manager 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 Construction Manager or by
issuance of Change Orders affecting final completion, and the Architect so
confirms, the Owner shall, upon application by the Construction Manager and
certification by the 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 Construction Manager to the Architect 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.
9.10.4 Except to the extent specifically set forth to the contrary in the
Contract Documents, the making of final payment shall constitute a waiver of
Claims by the Owner except those arising from (i) liens, Claims, security
interests or encumbrances arising out of the Contract and unsettled; (ii)
failure of the Work to comply with the requirements of the Contract Documents;
or (iii) terms of special warranties required by the Contract Documents.
9.10.5 Acceptance of final payment by the Construction Manager, a
Subcontractor or material supplier shall constitute a waiver of Claims by that
payee, except those Claims that have previously been properly and timely
asserted by such party in the manner set forth in the Contract Documents.
ARTICLE 10. PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
10.1.1 The Construction Manager shall be responsible for initiating,
maintaining and supervising all safety precautions and programs in connection
with the performance of the Contract in accordance with Subparagraph 2.3.3 of
the Contract.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Construction Manager shall take reasonable precautions for safety
of, and shall provide reasonable protection to prevent damage, injury or loss
to:
.1 employees on the Work and other persons who may be affected thereby;
.2 the Work and materials and equipment to be incorporated therein,
whether in storage on or off the site, under care, custody or control
of the Construction Manager or Subcontractors or Sub-subcontractors;
and
.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.
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 or 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 promptly remedy damage and loss (other
than damage or loss insured under the OCIP to property referred to in Clauses
10.2.1.2 and 10.2.1.3) caused in whole or in part by the Construction Manager,
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 and
10.2.1.3, except damage or loss attributable to acts or omissions of the Owner
or Architect or anyone directly or indirectly employed by either of them, or
by anyone for whose acts either 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. This person shall be the Construction Manager's
superintendent unless otherwise designated by the Construction Manager in
writing to the Development Manager and Architect.
10.2.7 The Construction Manager shall not load or permit any part of the
construction or site to be loaded so as to endanger its safety.
10.2.8 Construction Manager shall maintain Work, materials and apparatus free
from injury or damage from rain wind, storms, frost or heat. If adverse
weather makes it impossible to continue operations safely in spite of weather
precautions, the Construction Manager shall cease Work and notify the
Development Manager and the Architect of such cessation. The Construction
Manager shall not permit fires on the Project site.
10.2.9 In addition to its other obligations pursuant to this Article 10, the
Construction Manager shall, at its sole cost and expense, promptly repair any
damage or disturbance to walls, utilities sidewalks, curbs and the property of
third parties (including municipalities) resulting from the performance of the
Work, whether by it or by its Subcontractors at any tier. The Construction
Manager shall maintain streets in good repair and traversable condition.
10.3 HAZARDOUS MATERIALS
10.3.1 For the purposes of the Contract Documents the term "Haz Mat" shall
mean any hazardous or toxic chemicals, materials, substances or any other
regulated pollutants, irritants or contaminants, including but not limited to
asbestos, PCBs, petroleum, hazardous waste or radioactive materials.
10.3.2 As between the Owner and Construction Manager, the Owner shall be
responsible for any Haz Mat uncovered or revealed at the site which was not
shown or identified in the Contract Documents to be within the scope of the
Work and which may present a substantial danger to persons or property exposed
thereto in connection with the Work at the site or which is required to be
removed in accordance with any law or regulatory order (a "Hazardous
Condition").
10.3.3 The Owner and Development Manager shall not be responsible for any Haz
Mat brought to site by the Construction Manager or its Subcontractors,
subconsultants or suppliers of any tier or anyone else for whom the
Construction Manager is responsible unless such Haz Mat was required by the
Contract Documents.
10.3.4 The Construction Manager shall immediately (i) stop all work in
connection with such Hazardous Condition in only the area of the site affected
thereby, and (ii) notify the Development Manager (and thereafter promptly
confirm such notice to same in writing).
10.3.5 The Development Manager shall promptly determine the necessity of
retaining a qualified expert to evaluate such Hazardous Condition or take
corrective action, if any. The Construction Manager shall not be required to
resume work in connection with such Haz Mat or Hazardous Condition in any such
area of the site until after the Development Manager has obtained any required
permits related thereto and delivered to the Construction Manager special
written notice (i) specifying that such condition and any affected area is or
has been rendered safe for the resumption of Work, or (ii) specifying any
special conditions under which such Work may be resumed safely. If the
Development Manager and the Construction Manager cannot agree as to
entitlement to, or the amount or extent of, an adjustment, if any, to the
Contract Price as a result of such work stoppage or such special conditions
under which Work is agreed by the Construction Manager to be resumed, an
adjustment, if requested by the Construction Manager, shall be made therefore
as provided in Subparagraph 5.4 of the Agreement.
10.3.6 If after the receipt of such special written notice the Construction
Manager does not agree to resume such Work based on a reasonable belief that
it is unsafe, or does not agree to resume such work under such special
conditions, then the Development Manager may order such portion of the Work
that is in connection with Haz Mat or Hazardous Condition in such affected
area to be deleted from the Work. If the Development Manager and Construction
Manager cannot agree as to entitlement to or the amount or extent of an
adjustment, if any, in the Contract Price as a result of deleting such portion
of the Work, then the dispute shall be referred as provided for in
subparagraph 9.2 of the Agreement. Notwithstanding any other provisions of the
Contract to the contrary, the Owner reserves the right to have such deleted
portion of the Work performed by its own or other forces.
10.3.7 The Owner shall indemnify and hold harmless the Construction Manager,
its directors, employees, agents, subconsultants and Subcontractors of any
tier and each and any of them from and against all claims, costs, losses and
damages (including reasonable attorneys' fees, and all court or arbitration or
other dispute resolution costs) arising out of or resulting from Hazardous
Conditions, provided that any such claim, loss, cost or damage is attributable
to bodily injury, sickness, disease or death, or to injury to or destruction
of tangible property (other than the Work itself), except to the extent such
claims, costs, losses or damages result from the negligence or willful
misconduct of the Construction Manager, its Subcontractors, subconsultants or
suppliers of any tier.
10.3.8 The Construction Manager shall indemnify and hold harmless the Owner
and Development Manager, their directors, employees, agents, and consultants
and each and any of them from and against all claims, costs, losses and
damages (including reasonable attorneys' fees, and all court or arbitration or
other dispute resolution costs) arising out of or resulting from the
negligence or willful misconduct of the Construction Manager, its directors,
employees, agents, subconsultants and Subcontractors of any tier and each and
any of them relating to any Haz Mat.
10.4 PROTECTION OF ENDANGERED SPECIES AND ARTIFACTS
10.4.1 Construction Manager shall use its best efforts to avoid any damage or
disturbance to archeological artifacts or remnants or endangered species
located at the site, and shall conduct the Work in accordance with all
applicable laws and regulations of any public body having jurisdiction for the
protection of such archeological artifacts or remnants or endangered species
and shall take all necessary actions to protect such archeological artifacts
or remnants or endangered species.
10.4.2 Upon encountering any such archeological artifacts or remnants or
endangered species at the site, Construction Manager shall immediately (i)
stop all work only in the area of the site affected thereby, and (ii)
immediately notify the Development Manager (and thereafter promptly confirm
such notice to same in writing).
10.4.3 The Development Manager shall promptly determine the necessity of
retaining a qualified expert to evaluate such archeological artifacts or
remnants or endangered species at the site. The Construction Manager shall not
be required to resume work in any affected area of the site until after the
Development Manager has obtained any required permits related thereto and
delivered to the Construction Manager special written notice (i) specifying
that such condition and any affected area is or has been rendered ready for
the resumption of Work, or (ii) specifying any special conditions under which
such Work may be resumed in accordance with all applicable laws. If the
Development Manager and the Construction Manager cannot agree as to
entitlement to, or the amount or extent of, an adjustment, if any, to the
Contract Price as a result of such work stoppage or such special conditions
under which Work is agreed by the Construction Manager to be resumed, an
adjustment, if requested by the Construction Manager, shall be made therefore
as provided in Subparagraph 5.3 of the Agreement.
10.5 EMERGENCIES
10.5.1 In an emergency affecting safety of 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 4.3 and Article 7.
ARTICLE 11. INSURANCE AND BONDS
11.1 CONSTRUCTION MANAGER'S INSURANCE
11.1.1 The Construction Manager shall purchase, pay for and maintain in full
force and effect from a company or companies lawfully authorized by the
California Insurance Commissioner to do business of the State of California
and from such insurers as are reasonably acceptable to Development Manager the
policies of insurance set forth on Exhibit 11.1.1 hereto. All insurance
policies required under this Section 11.1 shall be carried by insurance
companies with at least an "A" and "V" rating by the A. M. Best Company.
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. All coverages shall be maintained
without interruption from date of commencement of the Work until date of final
payment or termination of any coverage required to be maintained after final
payment as required by this Agreement.
11.1.3 Certificates of Insurance in conformance with all provisions of this
Agreement and otherwise acceptable to the Development Manager shall be filed
with the Development Manager prior to commencement of any of the Work. In
addition to the requirements specified in Exhibit 11.1.1, 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 Development Manager. If any of the foregoing insurance coverages are
required to remain in force after final payment, an additional certificate
evidencing continuation of such coverage shall be submitted with the final
Application for Payment as required by Subparagraph 9.10.2. Information
concerning reduction of coverage on account of revised limits or claims paid
under the General Aggregate, or both, shall be furnished by the Construction
Manager with reasonable promptness in accordance with the Construction
Manager's information and belief.
11.1.4 The amount and types of insurance coverages required herein shall not
be construed to be a limitation of the liability on the part of the
Construction Manager, any contractor, or any of their Subcontractors. Any type
of insurance or any increase of limits of liability not described above which
the Construction Manager requires for its own protection or on account of
statute shall be its own responsibility and at its own expense. The carrying
of the insurance described shall in no way be interpreted as relieving the
Construction Manager of any responsibility or liability under the Contract
Documents.
11.1.5 The Construction Manager shall file certificates of such insurance with
Development Manager, which shall be subject to the Development Manager's
approval for adequacy of protection, including the satisfactory character of
any Insurer. If requested of the Construction Manager, a certified copy of the
actual policy(s) with appropriate endorsement(s) and other documents shall be
provided to the Development Manager.
11.1.6 In the event of failure of the Construction Manager to furnish and
maintain said insurance and to furnish satisfactory evidence thereof, the
Owner shall have the right to take out and maintain same coverages for all
parties on behalf of the Construction Manager who also agrees to furnish all
necessary information thereof and to pay the cost thereof to the Owner
immediately upon presentation of a premium invoice.
11.1.7 The same conditions and requirements of this Section 11.1 will apply
under the Contract Documents to each Subcontractor of every tier. Copies of
certificates of insurance for Subcontractors and Sub-subcontractors must be
filed with Development Manager within five (5) business days after a
Subcontractor is on site. Failure to provide evidence of such insurance can
result in the Subcontractor being removed from the site until proper coverage
is verified. Any cost of resulting delay will be to the account of the
Construction Manager.
11.2 OWNER'S CONTROLLED INSURANCE PROGRAM
11.2.1 Notwithstanding anything to the contrary in the Contract Documents,
unless specified otherwise by the Development Manager, Construction Manager
and all Subcontractors of every tier will be insured under "Owner-furnished
insurance coverages," herein referred to as an "OCIP." Construction Manager,
all contractors, and Subcontractors will be enrolled under the OCIP upon
completion and acceptance of forms included in the Special Bidding
instructions regarding insurance furnished by the broker appointed by the
Owner. All insurance, underwriting, payroll, rating, or loss history
information requested of the Construction Manager, any contractor or
Subcontractor by the Owner or Development Manager must be provided within five
(5) business days of the request. Construction Manager, contractor(s) or
Subcontractor(s) shall not be permitted to work on the Project until they are
acknowledged to be enrolled in the OCIP by the Development Manager. At all
times, Construction Manager, contractor(s), or Subcontractor(s) shall
cooperate with the OCIP and its administrative broker. The coverages to be
provided by Owner under the OCIP are set forth on Exhibit 11.2.1 hereof.
11.2.2 Except for completed operations coverage, it is intended the insurance
furnished by the Owner under the OCIP will discontinue for Construction
Manager, contractors and Subcontractors upon certified completion of their
respective Work and final acceptance by either the next tier contractor, the
Construction Manager, or the Development Manager, whichever has ultimate
responsibility for the applicable party's Work. The OCIP may also be
discontinued in the event the Project is substantially delayed for an extended
period of time, or the Project is permanently terminated for any cause.
11.2.3 Under the OCIP Program, the Development Manager will issue the
following coverage documents to the Construction Manager and to each insured
contractor and Subcontractor:
.1 A Worker's Compensation insurance policy;
.2 A certificate of insurance for Comprehensive General Liability
Coverage;
.3 Subject to any named insured rights under any other policy procured
within the OCIP Program, and upon written request by such an insured, a
certificate of any the following coverages: Builder's Risk, General
Liability, and Excess Liability Coverage.
Construction Manager agrees not to duplicate or include any portion of its
normal insurance cost, including that of its Subcontractors, in its bid
process or change orders (if any) for the coverages provided by the Owner.
11.2.4 Construction Manager further agrees to cooperate fully with the
Development Manager to provide the necessary insurance data and information as
required in the bid specifications and associated documents furnished by the
Owner and/or Development Manager during the duration of the Project or until
the OCIP is terminated.
11.3 REPORTING OF CLAIMS
All potential claims for damage or loss which may be recoverable under the
OCIP shall be promptly reported to the Development Manager. Development
Manager shall be the sole party with authority to report and resolve claims to
any insurer under the OCIP.
11.4 WAIVER OF SUBROGATION
The Owner and Construction Manager waive all rights against each other for all
losses and damages caused by any perils but only to the extent covered by the
policies of insurance provided under the OCIP and also waive all such rights
against the Development Manager, Architect and their subconsultants of any
tier, and Construction Manager's subconsultants and Subcontractors of any tier
and all other parties so named as insureds in such policies for losses or
damages so caused. None of the above waivers shall extend to the rights that
any of the insured parties may have to any to the proceeds of insurance held
by the Owner as trustee or otherwise payable under any policy so issued. 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.
11.5 PERFORMANCE BOND AND PAYMENT BOND
11.5.1 The Owner shall have the right to require the Construction Manager 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.
11.5.2 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 Construction Manager 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 Architect's request
or to requirements specifically expressed in the Contract Documents, it must,
if required in writing by the Architect, be uncovered for the Architect's
observation and be replaced at the Construction Manager's expense without
change in the Contract Time or increase in the Contract Sum.
12.1.2 If a portion of the Work has been covered which the Architect has not
specifically requested to observe prior to its being covered, the Architect,
subject to prior written approval of the Development Manager, may request to
see such Work and it shall be uncovered by the Construction Manager. If such
Work is in accordance with the Contract Documents, cost of uncovering and
replacement shall, by appropriate Change Order, be at the Owner's expense. If
such Work is not in accordance with the Contract Documents, correction shall
promptly be made at the Construction Manager's expense unless the condition
was caused by the Owner or a separate Contractor in which event the Owner
shall be responsible for payment of such costs.
12.2 CORRECTION OF WORK
12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
12.2.1.1 The Construction Manager shall promptly correct Work rejected by the
Architect, the Development Manager or any governmental authority or failing to
conform to the requirements of the Contract Documents, whether discovered
before or after Substantial Completion and whether or not fabricated,
installed or completed. Costs of correcting such rejected Work, including
additional testing and inspections and compensation for the Architect's
services and expenses made necessary thereby, shall be at the Construction
Manager's sole cost and expense.
12.2.2 AFTER SUBSTANTIAL COMPLETION
12.2.2.1 In addition to the Construction Manager's obligations under
Paragraph 3.5, 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
Construction Manager shall correct it promptly after receipt of written notice
from the Development Manager to do so unless the Development Manager has
previously given the Construction Manager a written acceptance of such
condition. During the one-year period for correction of Work, if the
Development Manager fails to notify the Construction Manager and give the
Construction Manager an opportunity to make the correction, the Owner waives
the right to require correction by the Construction Manager or to make a claim
for breach of warranty. If the Construction Manager fails to correct
nonconforming Work within the time period set forth in Paragraph 2.4, the
Owner may correct it in accordance with Paragraph 2.4.
12.2.2.2 The one-year period for correction of Work shall be extended
with respect to portions of Work first performed or for corrective Work
completed after Substantial Completion by the period of time between
Substantial Completion and the actual performance of the Work.
12.2.2.3 The one-year period for correction of Work shall not be extended
for Work which does not require corrective Work performed by the Construction
Manager pursuant to this Paragraph 12.2.
12.2.3 The Construction Manager shall promptly 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 Construction Manager nor
accepted by the Owner.
12.2.4 The Construction Manager shall bear the cost of correcting destroyed or
damaged construction, whether completed or partially completed, of the Owner
or separate Contractors caused by the Contractors correction or removal of
Work which is not in accordance with the requirements of the Contract
Documents.
12.2.5 Nothing contained in this Paragraph 12.2 shall be construed to
establish a period of limitation with respect to other obligations which the
Construction Manager might have under the Contract Documents. Establishment of
the one-year period for correction of Work as described in Subparagraph 12.2.2
relates only to the specific obligation of the Construction Manager 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 Construction
Manager's liability with respect to the Construction Manager'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 State of California.
13.1.2 Historical lack of enforcement of any local law shall not constitute a
waiver of Construction Manager's responsibility for compliance with such law
in a manner consistent with the Contract Documents unless and until the
Construction Manager has received written consent for the waiver of such
compliance from the Owner and the agency responsible for the local law
enforcement.
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 such
other party in respect to covenants, agreements and obligations contained in
the Contract Documents. Except as provided in Subparagraph 13.2.2, neither
party to the Contract shall assign the Contract in whole or in part without
written consent of the other. If either party attempts to make such an
assignment without such consent, that party shall nevertheless remain legally
responsible for all obligations under the Contract.
13.2.2 The Owner may, without consent of the Construction Manager,
collaterally assign the Contract to Trustee. The Construction Manager shall
execute all consents reasonably required to facilitate such collateral
assignment.
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 party
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, Development Manager,
Architect or Construction Manager 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 selected by the Development Manager, or with the
appropriate public authority, and Construction Manager shall bear all related
costs of tests, inspections and approvals. The Construction Manager shall give
the Architect and Development Manager timely notice of when and where tests
and inspections are to be made so that the Architect and Development Manager
may be present for such procedures. 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 Architect, Development Manager 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 Development
Manager will instruct the Construction Manager to make arrangements for such
additional testing, inspection or approval by an entity acceptable to the
Owner, and the Construction Manager shall give timely notice to the Architect
and Development Manager of when and where tests and inspections are to be made
so that the Architect and Development Manager may be present for such
procedures. Such costs, except as provided in Sub-paragraph 13.5.3, shall be
at the Owner's expense.
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, all costs made
necessary by such failure including, but not limited to, the additional
testing, inspection and approval costs provided for in Subparagraph 13.5.2 and
compensation for the Architect's and Development Manager's services and
expenses shall be at the Construction Manager's expense.
13.5.4 Required certificates of testing, inspection or approval shall, unless
otherwise required by the Contract Documents, be secured by the Construction
Manager and promptly delivered to the Architect and Development Manager.
13.5.5 If the Architect or Development Manager is to observe tests,
inspections or approvals required by the Contract Documents, each 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 the then current discount rate of the
Federal Reserve Bank of San Francisco plus two percent (2%). In no event shall
any interest be due and payable by the Owner to the Construction Manager, any
Subcontractor or any other party on any of the sums payable by the Owner under
this Contract which the Owner is authorized to retain or prior to the time
payment is due pursuant to the Contract Documents.
13.7 COMMENCEMENT OF STATUTORY 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 on the 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 on 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 Construction
Manager 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 Construction
Manager under Paragraph 12.2, or the date of actual commission of any other
act or failure to perform any duty or obligation by the Construction Manager
or Owner. whichever occurs last.
13.7.2 Notwithstanding any provision of Subparagraph 13.7.1 to the contrary,
no applicable statute of limitations shall be deemed to have commenced with
respect to any portion of the Work which is not in accordance with the
requirements of the Contract Documents, which would not be visible or apparent
upon conducting a reasonable investigation, and which is not discovered by the
Owner until after the date which, but for this Subparagraph 13.7.2, would be
the date of commencement of the applicable statute of limitations. The
applicable statute of limitations instead shall be deemed to have been
commenced on the earlier of (i) date of such discovery by the Owner and (ii)
the date which is fifteen (15) years after the date of issuance of the final
Certificate of Payment.
ARTICLE 14. TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION BY THE CONSTRUCTION MANAGER
14.1.1 The Construction Manager may terminate the Contract if the Work is
stopped for a period of sixty (60) consecutive days through no act or fault of
the Construction Manager or a Subcontractor, Sub-subcontractor or their agents
or employees or any other persons or entities performing portions of the Work
under direct or indirect 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 which requires all Work to be stopped;
.2 an act of government, such as a declaration of national emergency,
which requires all Work to be stopped;
.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 9.4.1, or because the Owner has
not made payment on a Certificate for Payment within the time stated in the
Contract Documents.
14.1.2 The Construction Manager may terminate the Contract if, through no act
or fault of the Construction Manager or a Subcontractor, Sub-sub-contractor or
their agents or employees or any other persons performing portions of the Work
under direct or indirect contract with the Construction Manager, repeated
suspensions, delays or interruptions of the entire Work 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.
14.1.3 If one of the reasons described in Subparagraph 14.1.1 or 14.1.2
exists, the Construction Manager may, upon seven (7) days' written notice to
the Development Manager 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 an equitable portion of Construction Manager's Fee less amounts
necessary for Owner to complete any corrective Work and outstanding disputed
Work.
14.1.4 If the Work is stopped for a period of 90 consecutive 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 may,
upon seven (7) additional days' written notice to the Development Manager and
the Architect, terminate the Contract and recover from the Owner as provided
in Subparagraph 14.1.3.
14.2 TERMINATION BY THE OWNER FOR CAUSE
14.2.1 The Owner may terminate the Contract if the Construction Manager:
.1 refuses or fails to supply enough properly skilled workers or proper
materials;
.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;
.4 otherwise is guilty of substantial breach of a provision of the
Contract Documents; or
.5 has failed to timely achieve any Milestone Date and within three (3)
business days thereafter has not provided Development Manager with an
alternative schedule reasonably acceptable to Development Manager which
shows the Work being completed before the Outside Substantial Completion
Date, provided such right to terminate shall lapse at such time as the
Milestone Date is achieved or an alternative schedule is approved by
Development Manager.
14.2.2 When any of the above reasons exist, the Owner 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 finish the Work by whatever reasonable method the Owner may deem
expedient. Upon request of the Construction Manager, the Development
Manager shall furnish to the Construction Manager a detailed accounting of
the costs incurred by the Owner in finishing the Work.
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.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing
the Work, including compensation for the Architect's services and expenses
made necessary thereby, and other damages incurred by the Owner and not
expressly waived, such excess shall be paid to the Construction Manager. If
such costs and damages exceed the unpaid balance, the Construction Manager
shall pay the difference to the Owner. The amount to be paid to the
Construction Manager or Owner, as the case may be, shall be certified by the
Architect, upon application, and this obligation for payment shall survive
termination of the Contract.
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 Development Manager may determine.
14.3.2 The Cost of the Work and the Contract Time shall be adjusted for
increases in the cost and time caused by suspension, delay or interruption as
described in Subparagraph 14.1.3. 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 to the extent for which the Construction
Manager is responsible; or
.2 that an equitable adjustment is made or denied under another
provision of the Contract.
14.4 TERMINATION BY THE OWNER FOR CONVENIENCE
14.4.1 The Owner may, at any time, terminate the Contract for the Owner's
convenience and without cause.
14.4.2 Upon receipt of written notice from the Owner of such termination for
the Owner's convenience, the Construction Manager shall:
..1 cease operations as directed by the Owner in the notice;
..2 take actions necessary, or that the Owner may direct, for the
protection and preservation of the Work; and
..3 except for Work directed to be performed prior to the effective of
termination stated in the notice, terminate all existing subcontracts
and purchase orders and enter into no further subcontracts and
purchase orders.
14.4.3 In case of such termination for the Owner's convenience, the
Construction Manager shall be entitled to receive payment for Work executed,
and costs incurred by reason of such termination, along with Construction
Manager's Fee on the Work not executed less amounts reasonably necessary for
Owner to complete any corrective Work and outstanding disputed Work, less
amounts reasonably necessary for Owner to complete any corrective Work and
outstanding disputed Work.