T H E A M E R I C A N I N S T I T U T E O F A R C H I T E C T S
[LOGO OF THE AMERICAN INSTITUTE OF ARCHITECTS]
EXHIBIT 10.45
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AIA Document A117
ABBREVIATED FORM OF AGREEMENT
BETWEEN OWNER AND CONTRACTOR
for
CONSTRUCTION PROJECTS OF LIMITED SCOPE
where the basis of payment is the
COST OF THE WORK PLUS A FEE
with or without a Guaranteed Maximum Price
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH
AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION.
This document includes abbreviated General Conditions and should not be used
with other general conditions. It has been approved and endorsed by
The Associated General Contractors of America.
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AGREEMENT
made as of the day of in the year of
Two Thousand Two
BETWEEN the Owner:
(Name and address)
Dominion Homes, Inc.
5501 Frantz Road
Dublin, Ohio 43017
and the Contractor:
(Name and address)
The Daimler Group, Inc.
1533 Lake Shore Drive
Columbus, Ohio 43204
The Project is:
(Name and location)
Dominion Homes Office Building
4800 Tuttle Crossing Blvd.
Dublin, Ohio 43017
The Architect is:
(Name and address)
Maddox-NBD Inc.
4945 Bradenton Avenue
Dublin, Ohio 43017
The Owner and Contractor agree as set forth below.
Copyright 1979, (C) 1987 by The American Institute of Architects, 1735 New
York Avenue, N.W., Washington, D.C. 20006. Portions of this document are
derived from AIA Document A111. Standard Form of Agreement Between Owner
and Contractor where the basis of payment is the Cost of the Work Plus a
Fee, copyright (C) 1987 and earlier years, and AIA Document A201, General
Conditions of the Contract for Construction, copyright (C) 1987 and earlier
years. Reproduction of the material herein of substantial quotation of its
provisions without written permission of the AIA violates the copyright
laws of the United States and will be subject to legal prosecution.
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
A117-1987 1
ARTICLE 1
THE WORK OF THIS CONTRACT
1.1 The Contractor shall execute the entire Work described in the Contract
Documents, except to the extent specifically indicated in the Contract Documents
to be the responsibility of others, or as follows:
The construction of a two-story, 35,000 +/- square foot office building with
related site work on a 2.96-acre site located at 4800 Tuttle Crossing Blvd.,
Dublin, Chio. Details of the work shall be as represented in the attached list
of Contract Documents (Exhibit A). The Work includes feasibility analysis,
budgeting, scheduling, coordination of the architects and consulting engineers,
value engineering, acquisition of building permits and payment of fees on the
Owner's behalf, management and administration of the construction process, cost
control and reporting, start up and Owner acceptance.
ARTICLE 2
RELATIONSHIP OF THE PARTIES
2.1 The Contractor accepts the relationship of trust and confidence
established by this Agreement and covenants with the Owner to cooperate with the
Architect and utilize the Contractor's best skill, efforts and judgment in
furthering the interests of the Owner; to furnish efficient business
administration and supervision; to make best efforts to furnish at all times an
adequate supply of workers and materials; and to perform the Work in the best
way and most expeditious and economical manner consistent with the interests of
the Owner. The Owner agrees to exercise best efforts to enable the Contractor to
perform the Work in the best way and most expeditious manner by furnishing and
approving in a timely way information required by the Contractor and making
payments to the Contractor in accordance with the requirements of the Contract
Documents.
ARTICLE 3
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 The date of commencement is the date from which the Contract Time of
Paragraph 3.2 is measured, and shall be the date of this Agreement, as first
written above, unless a different date is stated below or provision is made for
the date to be fixed in a notice to proceed issued by the Owner.
(Insert the date of commencement, if it differs from the date of this Agreement
or, if applicable, state that the date will be fixed in a notice to proceed.)
On or about December 10, 2002
3.2 The Contractor shall achieve Substantial Completion of the entire Work
not later than
(Insert the calendar date or number of calendar days after the date of
commencement. Also insert any requirements for earlier Substantial Completion of
certain portions of the Work, if not stated elsewhere in the Contract
Documents.)
On or about October 10, 2003 subject to start date of December 10, 2002 and
subject to start date and inclement weather.
subject to adjustments of this Contract Time as provided in the Contract
Documents.
(Insert provisions, if any, for liquidated damages relating to failure to
complete on time.)
See Exhibit B
ARTICLE 4
CONTRACT SUM
4.1 The Owner shall pay the Contractor in current funds for the
Contractor's performance of the Contract the Contract Sum consisting of the Cost
of the Work as defined in Article 5 and the Contractor's Fee determined as
follows:
(State a lump sum, percentage of Cost of the Work or other provision for
determining the Contractor's Fee, and explain how the Contractor's Fee is to be
adjusted for changes in the Work.)
Contractor's Fee shall be 6% of hard costs (categories 1-16 and 19 excluding
category 1910). Change orders for tenant work or changes in scope generated by
the Owner or Tenant shall be subject to a Contractor's Fee of 6% plus
reimbursement for contractor's personnel and other general conditions costs.
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
A117-1987 2
4.2 GUARANTEED MAXIMUM PRICE (IF APPLICABLE)
4.2.1 The sum of the Cost of the Work and the Contractor's Fee is guaranteed
by the Contractor not to exceed P.04.CW Dollars ($3,900,000.00), subject to
additions and deductions by Change Order as provided in the Contract Documents.
Such maximum sum is referred to in the Contract Documents as the Guaranteed
Maximum Price. Costs which would cause the Guaranteed Maximum Price to be
exceeded shall be paid by the Contractor without reimbursement by the Owner.
(Insert specific provisions if the Contractor is to participate in any savings.)
Not applicable.
4.2.2 The Guaranteed Maximum Price is based upon the following alternates,
if any, which are describe in the Contract Documents and are hereby accepted by
the Owner:
(State the numbers or other identification of any accepted alternates, but only
if a Guaranteed Maximum Price is inserted in Subparagraph 4.2.1 If decisions on
other alternates are to be made by the Owner subsequent to the execution of this
Agreement, attach a schedule of such other alternates showing the amount for
each and the date until which that amount is valid.)
Not applicable.
4.2.3 The amounts agreed to for unit prices, if any, are:
(State unit prices only if a Guaranteed Maximum Price is inserted in
Subparagraph 4.2.1)
Not applicable.
ARTICLE 5
COSTS TO BE REIMBURSED
5.1 The term "Cost of the Work" shall mean costs necessarily incurred by
the Contractor in the proper performance of the Work. Such costs shall be at
rates not higher than the standard paid at the place of the Project except with
prior consent of the Owner. The Cost of the Work shall include only the items
set forth in this Article 5.
5.1.1 Wages of construction workers directly employed by the Contractor to
perform the construction of the Work, including welfare, unemployment
compensation, social security and other benefits.
5.1.2. Costs, including transportation, of materials and equipment
incorporated or to be incorporated in the completed construction. All discounts
for cash or prompt payment shall accrue to the Contractor.
5.1.3 Payments made by the Contractor to Subcontractors in accordance with
the requirements of the subcontracts.
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
A117-1987 3
5.1.4 Cost of all materials, temporary facilities, equipment and hand tools
not customarily owned by the construction workers, which are provided by the
Contractor at the site and fully consumed in the performance of the Work.
5.1.5 Reasonable rental costs for necessary temporary facilities, machinery,
equipment, and hand tools used at the site of the Work, whether rented from the
Contractor or others.
5.1.6 That portion directly attributable to this Contract of premiums for
insurance and bonds.
5.1.7 Losses and expenses, not compensated by insurance or otherwise,
sustained by the Contractor in connection with the Work, provided they have
resulted from causes other than the fault or neglect of the Contractor.
5.1.8 Costs of removal of debris from the site.
5.1.9 Cost incurred in taking action to prevent threatened damage, injury or
loss in case of an emergency affecting the safety of persons and property.
5.1.10 Other costs incurred in the performance of the Work if and to the
extent approved in advance in writing by the Owner.
(Here insert modifications or limitations to any of the above subparagraphs.)
5.1.11 Contractor shall be reimbursed $71,500 for its Project Manager (who is
located at Contractor's main office), $89,500 for its Project Superintendent,
and $7,500 for its Project Engineer, and $45 per hour for its Construction
Technician in conjunction with Work asdociated with base building tenant finish
and sitework.
ARTICLE 6
COSTS NOT TO BE REIMBURSED
6.1 The Cost of the Work shall not include:
6.1.1 Salaries and other compensation of the Contractor's personnel
stationed at the Contractor's principal office or offices other than the site
office, except as provided in Article 5.1.11.
6.1.2 Expenses of the Contractor's principal office and offices other than
the site office.
6.1.3 Overhead and general expenses, except as may be expressly included in
Article 5.
6.1.4 The Contractor's capital expenses, including interest on the
Contractor's capital employed for the Work.
6.1.5 Rental costs of machinery and equipment, except as specifically
provided in Subparagraph 5.1.5.
6.1.6 Except as provided in Paragraph 10.2 of this Agreement, cost due to
the fault or negligence of the Contractor, Subcontractors, anyone directly or
indirectly employed by any of them, or for whose acts any of them may be liable,
including, but not limited to, costs for the correction of damaged, defective or
nonconforming Work, disposal and replacement of materials and equipment
incorrectly ordered or supplied, and making good damage to property not forming
part of the Work.
6.1.7 Any cost not specifically and expressly described in Article 5.
6.1.8 Costs which would cause the Guaranteed Maximum Price, if any, to be
exceeded.
ARTICLE 7
DISCOUNTS, REBATES AND REFUNDS
7.1 Cash discounts obtained on payments made by the Contractor shall
accrue to the Owner if (1) before making the payment, the Contractor included
them in an Application for Payment and received payment therefor from the Owner,
or (2) the Owner has deposited funds with the Contractor with which to make
payments; otherwise, cash discounts shall accrue to the Contractor. Trade
discounts, rebates, refunds amounts received from sales of surplus materials and
equipment shall accrue to the Owner, and the Contractor shall make provisions so
that they can be secured.
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
A117-1987 4
7.2 Amounts which accrue to the Owner in accordance with the provisions of
Paragraph 7.1 shall be credited to the Owner as a deduction from the Cost of the
Work.
ARTICLE 8
ACCOUNTING RECORDS
8.1 The Contractor shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this
Contract; the accounting and control systems shall be satisfactory to the Owner.
The Owner and the Owner's accountants shall be afforded access to the
Contractor's records relating to this Contract. The Contractor shall preserve
these records for a period of three years after final payment, or for such
longer period as may be required by law.
ARTICLE 9
PROGRESS PAYMENTS
9.1 Based upon Applications for Payment submitted to the Architect by the
Contractor and Certificates for Payment issued by the Architect, the Owner shall
make progress payments on account of the Contract Sum to the Contractor as
provided in the Contract Documents. The period covered by each Application for
Payment shall be one calendar month ending on the last day of the month, or as
follows:
9.2 Payments due and unpaid under the Contract shall bear interest from
the date payment is due at the rate stated below, or in the absence thereof, at
the legal rate prevailing from time to time at the place where the Project is
located.
(Insert any rate of interest agreed upon, if any.)
Prime Rate, as noted in The Wall Street Journal, plus 2%.
(Usury laws and requirements under the Federal Truth in Lending Act, similar
state and local consumer credit laws and other regulations at the Owner's and
Contractor's principal places of business, the location of the Project and
elsewhere may affect the validity of this provision. Legal advice should be
obtained with respect to deletions or modifications, and also regarding
requirements such as written disclosures or waivers.)
ARTICLE 10
FINAL PAYMENT
10.1 Final payment, constituting the entire unpaid balance of the Contract
Sum, shall be paid by the Owner to the Contractor when (1) the Contract has been
fully performed by the Contractor except for the Contractor's responsibility to
correct nonconfirming Work and to satisfy other requirements, if any, which
necessarily survive final payment, and (2) a final Certificate for Payment has
been issued by the Architect.
10.2 If, subsequent to final payment and at the Owner's request, the
Contractor incurs costs describe in Article 5 and not excluded by Article 6 to
correct defective or nonconforming Work, the Owner shall reimburse the
Contractor such costs and the Contractor's Fee applicable thereto on the same
basis as if such costs had been incurred prior to final payment, but not in
excess of the Guaranteed Maximum Price, if any. If the Contractor has
participated in savings as provided in Subparagraph 4.2.1, the amount of such
savings shall be recalculated and appropriate credit given to the Owner in
determining the net amount to be paid by the Owner to the Contractor.
ARTICLE 11
ENUMERATION OF CONTRACT DOCUMENTS
11.1 The Contract Documents are listed in Article 12 and, except for
Modifications issued after execution of this Agreement, are enumerated as
follows:
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
A117-1987 5
11.1.1 The Agreement is this executed Abbreviated Form of Agreement Between
Owner and Contractor, AIA Document A117, 1987 Edition.
11.1.2 The Supplementary and other Conditions of the Contract are those
contained in the Project Manual dated, and are as follows:
Document Title Pages
See Exhibit A
11.1.3 The Specifications are those contained in the Project Manual dated as
in Subparagraph 11.1.2, and are as follows:
(Either list the Specifications here or refer to an exhibit to this Agreement.)
Section Title Pages
See Exhibit A
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
A117-1987 6
11.1.4 The Drawings are as follows, and are dated ____________________
unless a different date is stated below:
(Either list the Drawings here or refer to an exhibit attached to this
Agreement.)
Number Title Date
See Exhibit A
11.1.5 The Addenda, if any, are as follows:
Number Date Pages
See Exhibit A
Portions of Addenda relating to bidding requirements are not part of the
Contract Documents unless the bidding requirements are also enumerated in this
Article 11.
11.1.6 Other documents, if any, forming part of the Contract Documents are as
follows:
(List here any additional documents which are intended to form part of the
Contract Documents.)
None
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
A117-1987 7
GENERAL CONDITIONS
ARTICLE 12
CONTRACT DOCUMENTS
12.1 The Contract Documents consist of this Agreement with Conditions of
the Contract (General, Supplementary and other Conditions), Drawings,
Specifications, addenda issued prior to execution of this Agreement, other
documents listed in this Agreement and Modifications issued after execution of
this Agreement. The intent of the Contract Documents is to include all items
necessary for the proper execution and completion of the Work by the Contractor.
The Contract Documents are complementary, and what is required by one shall be
as binding as if required by all; performance by the Contractor shall be
required only to the extent consistent with the Contract Documents and
reasonably inferable from them as being necessary to produce the intended
results.
12.2 The Contract Documents shall not be construed to create a contractual
relationship of any kind (1) between the Architect and Contractor, (2) between
the Owner and a Subcontractor or Sub-subcontractor or (3) between any persons or
entities other than the Owner and Contractor.
12.3 Execution of the Contract by the Contractor is a representation that
the Contractor has visited the site and become familiar with the local
conditions under which the Work is to be performed.
12.4 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
Contractor to fulfill the Contractor's obligations. The Work may constitute the
whole or a part of the Project.
ARTICLE 13
OWNER
13.1 The Owner shall furnish surveys and a legal description of the site.
13.2 Except for permits and fees which are the responsibility of the
Contractor under the Contract Documents, the Owner shall secure and pay for
necessary approvals, casements, assessments and charges required for the
construction, use or occupancy of permanent structures or permanent changes in
existing facilities.
13.3 If the Contractor fails to correct Work which is not in accordance
with the requirements of the Contract Documents or persistently fails to carry
out the Work in accordance with the Contract Documents, the Owner, by a written
order, may order the Contractor to stop the Work, or any portion thereof, until
the cause for such order has been eliminated; however, the right of the Owner 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 Contractor or any other person or entity.
ARTICLE 14
CONTRACTOR
14.1 The Contractor shall supervise and direct the Work, using the
Contractor's best skill and attention. The Contractor 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, unless Contract Documents give other specific instructions concerning
these matters.
14.2 Unless otherwise provided in the Contract Documents, the Contractor
shall provide and pay for labor, materials, equipments, tools, construction
equipment and machinery, water, heat, utilities, transportation, and other
facilities and services necessary for the proper execution and completion of the
Work, whether temporary or permanent and whether or not incorporated or to be
incorporated in the Work
14.3 The Contractor shall enforce strict discipline and good order among
the Contractor's employees and other persons carrying out the Contract. The
Contractor shall not permit employment of unfit persons or persons not skilled
in tasks assigned to them.
14.4 The Contractor warrants to the Owner and Architect that materials and
equipment furnished under the Contract will be of good quality and new unless
otherwise required or permitted by the Contract Documents, that the Work will be
free from defects not inherent in the quality required or permitted, and that
the Work will conform with the requirements of the Contract Documents. Work not
conforming to these requirements, including substitutions not properly approved
and authorized, may be considered defective. The Contractor's warranty excludes
remedy for damage or defect caused by abuse, modifications not executed by the
Contractor, improper or insufficient maintenance, improper operation, or normal
wear and tear under normal usage. If required by the Architect, the Contract
shall furnish satisfactory evidence as to the kind and quality of materials and
equipment.
14.5 Unless otherwise provided in the Contract documents, the Contract
shall pay sales, consumer, use, and other similar taxes which are legally
enacted when bids are received or negotiations concluded, whether or not yet
effective or merely scheduled to go into effect, and 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.
14.6 The Contractor shall comply with and give notices required by laws,
ordinances, rules, regulations, and lawful orders of public authorities bearing
on performance of the Work. The Contractor shall promptly notify the Architect
and Owner if the Drawings and Specifications are observed by the Contractor to
be at variance therewith.
14.7 The Contractor shall be responsible to the Owner for the acts and
omissions of the Contractor's employees, Subcontractors and their agents and
employees, and other persons performing portions of the Work under a contract
with the Contractor.
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
A117-1987 8
14.8 The Contractor shall review, approve and submit to the Architect Shop
Drawings, Product Data, Samples and similar submittals required by the Contract
Documents with reasonable promptness. The Work shall be in accordance with
approved submittals. When professional certification of performance criteria of
materials, systems or equipment is required by the Contract Documents, the
Architect shall be entitled to rely upon the accuracy and completeness of such
certifications.
14.9 The Contractor shall keep the premises and surrounding area free
from accumulation of waste materials or rubbish caused by operations under
the Contract. At completion of the Work the Contractor shall remove from and
about the Project waste materials, rubbish, the Contractor's tools, construction
equipment, machinery and surplus materials.
14.10 The Contractor shall provide the Owner and Architect access to the
Work in preparation and progress wherever located.
14.11 The Contractor shall pay all royalties and license fees; shall defend
suites or claims for infringement of patent rights and shall hold the Owner
harmless from loss on account thereof, but shall not be responsible for such
defense or loss when a particular design, process or product of a particular
manufacturer or manufacturers is required by the Contract Documents unless the
Contractor has reason to believe that there is an infringement of patent.
14.12 To the fullest extent permitted by law, the Contractor shall indemnify
and hold harmless the Owner, Architect, Architect's consultants, and agents and
employees of any of them from and against claims, damages, losses and expenses,
including but not limited to attorneys' fees, arising out of resulting from
performance of the Work, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or
destruction of tangible property (other than the Work itself) including loss of
use resulting therefrom, but only to the extent caused in whole or in part by
negligent acts or omissions of the Contractor, a Subcontractor, anyone directly
or indirectly employed by them or anyone for whose acts they may be liable,
regardless of whether or not such claim, damage, loss or expense is caused in
part by a party indemnified hereunder. Such obligation shall not be construed
to negate, abridge, or reduce other rights or obligations of indemnity which
would otherwise exist as to a party or person described in this Paragraph 14.12.
14.12.1 In claims against any person or entity indemnified under this
Paragraph 14.12 by an employee of the Contractor, a Subcontractor, anyone
directly or indirectly employed by them or anyone for whose acts they may be
liable, the indemnification obligation under this Paragraph 14.12 shall not be
limited by a limitation on amount or type of damages, compensation or benefits
payable by or for the Contractor or a Subcontractor under workers' or workmen's
compensation acts, disability benefit acts or other employee benefit acts.
14.12.2 The obligations of the Contractor under this Paragraph 14.12 shall not
extend to the liability of the Architect, the Architect's consultants, and
agents and employees of any of them arising out of (1) the preparation or
approval of maps, drawings, opinions, reports, surveys, Change Orders,
Construction Change Directives, designs or specifications, or (2) the giving of
or the failure to give directions or instructions by the Architect, the
Architect's consultants, and agents and employees of any of them provided such
giving or failure to give is the primary cause of the injury or damage.
ARTICLE 15
ADMINISTRATION OF THE CONTRACT
15.1 The Architect will provide administration of the Contract and will be
the Owner's representative (1) during construction, (2) until final payment is
due and (3) with the Owner's concurrence, from time to time during the
correction period described in Paragraph 23.1.
15.2 The Architect will visit the site at intervals appropriate to the
stage of construction to become generally familiar with the progress and quality
of the completed Work and to determine in general if the Work is being performed
in a manner indicating that the Work, when completed, will be in accordance with
the Contract Documents. However, the Architect will not be required to make
exhaustive or continuous on-site inspections to check quality or quantity of the
Work. On the basis of on-site observations as an architect, the Architect will
keep the Owner informed of progress of the Work and will endeavor to guard the
Owner against defects and deficiencies in the Work.
15.3 The Architect will not have control over or charge of and will 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 Contractor's responsibility as provided in
Paragraphs 14.1 and 21.1. The Architect will not be responsible for the
Contractor's failure to carry out the Work in accordance with the Contract
Documents.
15.4 Based on the Architect's observations and evaluations of the
Contractor's Applications for Payment, the Architect will review and certify the
amounts due the Contractor and will issue Certificates for Payment in such
amounts.
15.5 The Architect will interpret and decide matters concerning performance
under and requirements of the Contract Documents on written request of either
the Owner or Contractor. The Architect will make initial decisions on all
claims, disputes or other matters in question between the Owner and contractor,
but will not be liable for results of any interpretations or decisions rendered
in good faith. The Architect's decisions in matters relating to aesthetic effect
will be final if consistent with the intent expressed in the Contract Documents.
All other decisions of the Architect, except those which have been waived by
making or acceptance of final payments, shall be subject to arbitration upon the
written demand of either party.
15.6 The Architect will have authority to reject Work which does not
conform to the Contract Documents.
15.7. The Architect will review and approve or take other appropriate action
upon the Contractor's submittals such as Shop Drawings, Product Data and
Samples, but only for the limited purpose of checking for conformance with
information given and the design concept expressed in the Contract Documents.
15.8 All claims or disputes between the Contractor and the Owner arising
out of or relating to the Contract Documents, or the breach thereof, shall be
decided by arbitration in accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association currently in effect unless the
parties mutually agree otherwise and subject to an initial presentation of the
claim or dispute to the Architect as required under Paragraph 15.5. Notice of
the demand for arbitration shall be filed in writing with the other party to
this Agreement and with the American Arbitration Association and shall be made
within a reasonable time after the dispute has arisen. The
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
9 A117-1987
award rendered by the arbitrator or arbitrators shall be final, and judgment may
be entered upon it in accordance with applicable law in any court having
jurisdiction thereof. Except by written consent of the person or entity sought
to be joined, no arbitration arising out of or relating to the Contract
Documents shall include, by consolidation, joinder or in any other manner, any
person or entity not a party to the Agreement under which such arbitration
arises, unless it is shown at the time the demand for arbitration is filed that
(1) such person or entity is substantially involved in a common question of fact
or law, (2) the presence of such person or entity is required if complete relief
is to be accorded in the arbitration, (3) the interest or responsibility of such
person or entity in the matter is not insubstantial, and (4) such person or
entity is not the Architect or any of the Architect's employees or consultants.
The agreement herein among the parties to the Agreement and any other written
agreement to arbitrate referred to herein shall be specifically enforceable
under applicable law in any court having jurisdiction thereof.
ARTICLE 16
SUBCONTRACTS
16.1 A Subcontractor is a person or entity who has a direct contract with
the Contractor to perform a portion of the Work at the site.
16.2 Unless otherwise stated in the Contract Documents or the bidding
requirements, the Contractor, as soon as practicable after award of the
Contract, shall furnish in writing to the Owner through the Architect the names
of the Subcontractors for each of the principal portions of the Work. The
Contractor shall not contract with any Subcontractor to whom the Owner or
Architect has made reasonable and timely objection. The Contractors shall not be
required to contract with anyone to whom the Contractor has made reasonable
objection. Contracts between the Contractor and Subcontractors shall (1) require
each Subcontractor, to the extent of the Work to be performed by the
Subcontractor, to be bound to the Contractor by the terms of the Contract
Documents, and to assume toward the Contractor all the obligations and
responsibilities which the Contractor, by the Contract Documents, assumes toward
the Owner and Architect, and (2) allow to the Subcontractor the benefit of all
rights, remedies and redress afforded to the Contractor by these Contract
Documents.
ARTICLE 17
CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
17.1 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 under conditions of the contract identical or
substantially similar to these, including those portions related to insurance
and waiver of subrogation. If the Contractor claims that delay or additional
cost is involved because of such action by the Owner, the Contractor shall make
such claim as provided elsewhere in the Contract Documents.
17.2 The Contractor shall afford the Owner and separate contractors
reasonable opportunity for the introduction and storage of their materials and
equipment and performance of their activities, and shall connect and coordinate
the Contractor's construction and operations with theirs as required by the
Contract Documents.
17.3 Costs caused by delays, improperly timed activities or defective
construction shall be borne by the party responsible therefor.
ARTICLE 18
CHANGES IN THE WORK
18.1 The Owner, without invalidating the Contract, may order changes in the
Work consisting of additions, deletions or modifications, the Guaranteed Maximum
Cost, if any, and the Contract Time being adjusted accordingly. Such changes in
the Work shall be authorized by written Change Order signed by the Owner,
Contractor and Architect, or by written Construction Change Directive signed by
the Owner and Architect.
18.2 The Contract Sum and Contract Time shall be changed only by Change
Order.
18.3 The cost or credit to the Owner from a change in the Work shall be
determined by mutual agreement.
ARTICLE 19
TIME
19.1 Time limits stated in the Contract Documents are of the essence of the
Contract. By executing the Agreement the Contractor confirms that the Contract
Time is a reasonable period for performing the Work.
19.2 The date of Substantial Completion is the date certified by the
Architect in accordance with Paragraph 20.3.
19.3 If the Contractor is delayed at any time in progress of the Work by
changes ordered in the Work, by labor disputes, fire, unusual delay in
deliveries, abnormal adverse weather conditions not reasonably anticipatable,
unavoidable casualties or any causes beyond the Contractor's control, or by
other causes which the Architect determines may justify delay, then the Contract
Time shall be extended by Change Order for such reasonable time as the Architect
may determine.
ARTICLE 20
PAYMENTS AND COMPLETION
20.1 Payments shall be made as provided in Articles 9 and 10 of this
Agreement.
20.2 Payments may be withheld on account of (1) defective Work not
remedied, (2) claims filed by third parties, (3) failure of the Contractor 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 Guaranteed Maximum Price, if any, (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 of the Guaranteed Maximum Price,
if any, would not be adequate to cover actual or liquidated damages for the
anticipated delay, or (7) persistent failure to carry out the Work in accordance
with the Contract Documents.
20.3 When the Architect agrees that the Work is substantially complete, the
Architect will issue a Certificate of Substantial Completion.
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
A117-1987 10
20.4 Final payment shall not become due until the Contractor has delivered
to the Owner a complete release of all liens arising out of this Contract or
receipts in full covering all labor, materials and equipment for which a lien
could be filed, or a bond satisfactory to the Owner to indemnify the Owner
against such lien. If such lien remains unsatisfied after payments are made, the
Contractor shall refund to the Owner all money the Owner may be compelled to pay
in discharging such lien, including all costs and reasonable attorneys' fees.
20.5 The making of final payment shall constitute a waiver of claims by the
Owner except those arising from:
.1 liens, claims, security interests or encumbrances arising out of
the Contract and unsettled;
.2 failure of the Work to comply with the requirements of the
Contract Documents; or
.3 terms of special warranties required by the Contract Documents.
Acceptance of final payment by the Contractor, a Subcontractor or material
supplier shall constitute a waiver of claims by that payee except those
previously made in writing and identified by that payee as unsettled at the time
of final Application for Payment.
ARTICLE 21
PROTECTION OF PERSONS AND PROPERTY
21.1 The Contractor shall be responsible for initiating, maintaining, and
supervising all safety precautions and programs in connection with the
performance of the Contract. The Contractor 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;
and
.3 other property at the site or adjacent thereto.
The Contractor shall give notices and comply with applicable laws, ordinances,
rules, regulations and lawful orders of public authorities bearing on safety of
persons and property and their protection from damage, injury or loss. The
Contractor shall promptly remedy damage and loss to property at the site caused
in whole or in part by the Contractor, 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 Contractor is responsible under
Subparagraphs 21.1.2 and 21.1.3, except for damage or loss attributable to acts
or omissions of the Owner or Architect or by anyone for whose acts either of
them may be liable, and not attributable to the fault or negligence of the
Contractor. The foregoing obligations of the Contractor are in addition to the
Contractor's obligations under Paragraph 14.12.
21.2 The Contractor shall not be required to perform without consent any
Work relating to asbestos or polychlorinated biphenyl (PCB).
ARTICLE 22
INSURANCE
22.1 The Contractor shall purchase from and maintain in a company or
companies lawfully authorized to do business in the jurisdiction in which the
Project is located insurance for protection from claims under workers' or
workmen's compensation acts and other employee benefit acts which are
applicable, claims for damages because of bodily injury, including death, and
from claims for damages, other than to the Work itself, to property which may
arise out of or result from the Contractor's operations under the Contract,
whether such operations be by the Contractor or by a Subcontractor or any-one
directly or indirectly employed by any of them. This insurance shall be written
for not less than limits of liability specified in the Contract Documents or
required by law, whichever coverage is greater, and shall include contractual
liability insurance applicable to the Contractor's obligations under Paragraph
14.12. Certificates of such insurance shall be filed with the Owner prior to the
commencement of the Work.
22.2 The Owner shall be responsible for purchasing and maintaining the
Owner's usual liability insurance. Optionally, the Owner may purchase and
maintain other insurance for self-protection against claims which may arise from
operations under the Contract. The Contractor shall not be responsible for
purchasing and maintaining this optional Owner's liability insurance unless
specifically required by the Contract Documents.
22.3 Unless otherwise provided, the Owner shall purchase and maintain, in a
company or companies lawfully authorized to do business in the jurisdiction in
which the Project is located, property insurance upon the entire Work at the
site to the full insurable value thereof. The insurance shall be on an all-risk
policy form and shall include interests of the Owner, the Contractor,
Subcontractors and Sub-subcontractors in the Work and shall insure against the
perils of fire and extended coverage and physical loss or damage including,
without duplication of coverage, theft, vandalism and malicious mischief.
22.4 A loss insured under Owner's property insurance shall be adjusted with
the Owner and made payable to the Owner as fiduciary for the insureds, as their
interests may appear, subject to the requirements of any applicable mortgagee
clause.
22.5 The Owner shall file a copy of each policy with the Contractor before
an exposure to loss may occur. Each policy shall contain a provision that the
policy will not be cancelled or allowed to expire until at least 30 days' prior
written notice has been given to the Contractor.
22.6 The Owner and Contractor waive all rights against each other and the
Architect, Architect's consultants, separate contractors described in Article
17, if any, and any of their subcontractors, sub-subcontractors, agents and
employees, for damages caused by fire or other perils to the extent covered by
property insurance obtained pursuant to this Article 22 or other property
insurance applicable to the Work, except such rights as they may have to the
proceeds of such insurance held by the Owner as fiduciary. The Contractor shall
require similar waivers in favor of the Owner and the Contractor by
Subcontractors and Sub-subcontractors. The Owner shall require similar waivers
in favor of the Owner and Contractor by the Architect, Architect's consultants,
separate contractors described in Article 17, if any, and the subcontractors,
sub-subcontractors, agents and employees of any of them.
ARTICLE 23
CORRECTION OF WORK
23.1 The Contractors shall promptly correct Work rejected by the Architect
or failing to conform to the requirements, of the
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
11 A117-1987
Contract Documents, whether observed before or after Substantial Completion and
whether or not fabricated, installed or completed, and shall correct any Work
found to be not in accordance with the requirements of the Contract Documents
within a period of one year from the date of Substantial Completion of the
Contract or by terms of an applicable special warranty required by the Contract
Documents. The provisions of this Article 23 apply to Work done by
Subcontractors as well as to Work done by direct employees of the Contractor.
23.2 Nothing contained in this Article 23 shall be construed to establish a
period of limitation with respect to other obligations which the Contractor
might have under the Contract Documents. Establishment of the time period of one
year as described in Paragraph 23.1 relates only to the specific obligation of
the Contractor to correct the Work, and has no relationship to the time within
which the obligation to comply with the Contract Documents may be sought to be
enforced, nor to the time within which proceedings may be commenced to establish
the Contractor's liability with respect to the Contractor's obligations other
than specifically to correct the Work.
ARTICLE 24
MISCELLANEOUS PROVISIONS
24.1 The Contract shall be governed by the law of the place where the
Project is located.
24.2 As between the Owner and the Contractor, any applicable statue of
limitations shall commence to run and any alleged cause of action shall be
deemed to have accrued:
.1 not later than the date of Substantial Completion for acts or
failures to act occurring prior to the relevant date of
Substantial Completion;
.2 not later than the date of issuance of the final Certificate for
Payment for acts or failures to act occurring subsequent to the
relevant date of Substantial Completion and prior to issuance of
the final Certificate for Payment; and
.3 not later than the date of the relevant act or failure to act by
the Contractor for acts or failures to act occurring after the
date of the final Certificate for Payment.
ARTICLE 25
TERMINATION OF THE CONTRACT
25.1 If the Architect fails to recommend payment for a period of 30 days
through no fault of the Contractor, or if the Owner fails to make payment
thereon for a period of 30 days, the Contractor may, upon seven additional days'
written notice to the Owner and the Architect, terminate the Contract and
recover from the Owner payment for all Work executed and for proven loss with
respect to materials, equipment, tools, and construction equipment and
machinery, including reasonable overhead, profit and damages applicable to the
Project, provided that in no event shall such payment cause the Guaranteed
Maximum Price to be exceeded.
25.2 If the Contractor defaults or persistently fails or neglects to carry
out the Work in accordance with the Contract Documents or fails to perform a
provision of the Contract, the Owner, after seven days' written notice to the
Contractor and without prejudice to any other remedy the Owner may have, may
make good such deficiencies and may deduct the cost thereof, including
compensation for the Architect's services and expenses made necessary thereby,
form the payment then or thereafter due the Contractor. Alternatively, at the
Owner's option, and upon certification by the Architect that sufficient cause
exists to justify such action, the Owner may terminate the Contract and take
possession of the site and of all materials, equipment, tools, and construction
equipment and machinery thereon owned by the Contractor and may finish the Work
by whatever method the Owner may deem expedient. 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, such excess shall be
paid to the Contractor, but if such costs exceed such unpaid balance, the
Contractor shall pay the difference to the Owner, provided that in no event
shall such payment cause the Guaranteed Maximum Price, if any, to be exceeded.
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
A117-1987 12
ARTICLE 26
OTHER CONDITIONS OR PROVISIONS
26.1 The attached Development Budget (Exhibit B) is to be used as the basis
for anticipated costs.
26.2 The Owner shall reimburse Contractor for any out-of-pocket expenses
Contractor pays on the Owner's behalf relative to cost categories 18,
19, 20, 21, 22 & 23 of the Development Budget.
26.3 This Agreement includes Work associated with the building shell and
sitework.
26.4 It is agreed and understood that this Agreement excludes Work
associated with tenant finish work. Documents for tenant finish work
are expected to be complete and available for bidding on or about
January 21, 2003. Cost associated with tenant finish work will be
handled by way of a change order to this Agreement.
This Agreement entered into as of the day and year first written above.
OWNER DOMINION HOMES, INC CONTRACTOR THE DIAMLER GROUP, INC.
/s/ Peter J. O'Hanlon /s/ Conrad Wisinger
- ----------------------------------- ---------------------------------------
(Signature) (Signature)
Peter J. O'Hanlon Conrad Wisinger
Chief Financial Officer CEO
- ----------------------------------- ---------------------------------------
(Printed name and title) (Printed name and title)
AIA DOCUMENT A117 . ABBREVIATED COST-PLUS OWNER-CONTRACTOR AGREEMENT . SECOND
EDITION . AIA(R) (C) 1987 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK
AVENUE, N.W., WASHINGTON, D.C. 20006
13 A117-1987