THE AMERICAN INSTITUTE OF ARCHITECTS
[AIA LOGO]
AIA Document A191
Standard Form of Agreement Between
Owner and Design/Builder
1985 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES;
CONSULTATION WITH AN ATTORNEY IS ENCOURAGED.
This Document comprises two separate Agreements: Part 1 Agreement-Preliminary
Design and Budgeting and Part 2 Agreement-Final Design and Construction.
Hereinafter, the Part 1 Agreement is referred to as Part 1 and the Part 2
Agreement is referred to as Part 2.
PART 2 AGREEMENT-FINAL DESIGN AND CONSTRUCTION
AGREEMENT
made as of the ELEVENTH day Of NOVEMBER in the year of Nineteen
Hundred and NINETY-EIGHT.
BETWEEN the Owner: THE BILTMORE GROUP OF LOUISIANA, L.L.C.
(Name and address) 507 TRENTON STREET
WEST MONROE, LA 71291
and the Design/Builder:
(Name and address)
THE FORSYTHE GROUP, INC. SCENICLAND CONSTRUCTION, CO.
507 TRENTON STREET 131 SUNSET DR
WEST MONROE, LA 71291 WEST MONROE, LA 71291
For the following Project
(Include Project name, location and detailed description of scope.)
THE ARBOR RETIREMENT COMMUNITY IN BASTROP, LA (EXHIBIT A)
DESIGN AND COMPLETE CONSTRUCTION ACCORDING TO PLANS AND SPECIFICATIONS DESIGNED
BY THE FORSYTHE GROUP, INC.; WITH ASSISTANCE OF ENGINEER FIRM:
TAYLOR-WALLACE:CIVIC ENGINEER
The architectural services described in Article 2 will be provided by
the following person or entity who is lawfully licensed to practice
architecture:
(Name and address) Taylor-Wallace Designs, Inc.
Downsville, LA 71234
The Owner and the Design/Builder agree as set forth below.
Copyright (c) 1985 by The American Institute of Architects, 1735 New York
Avenue, N.W., Washington, D.C. 20006. Reproduction of the material herein or
substantial quotation of its provisions without written permission of the AIA
violates the copyright laws of the United States and will be subject to legal
prosecution.
AIA DOCUMENT A191, PART 2 OWNER-DESIGN/BUILDER AGREEMENT FIRST EDITION
AIA (C)1985 THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVENUE,
N.W., WASHINGTON, D.C. 20006
A191-1985
PART 2-PAGE 1
Terms and Conditions-Part 2 Agreement
ARTICLE I
GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 The Contract Documents consist of the Design/ Builder's Proposal
identified in Article 14, this Part 2, the Construction Documents approved by
the Owner in accordance with Subparagraph 2.2.2 below and Modifications
issued after execution of Part 2. A Modification is a Change Order or a
written amendment to Part 2 signed by both parties. These form the Contract,
and are as fully a part of the Contract as if attached to this Part 2 or
repeated herein.
1.1.2 The Project is the total design and construction for which the
Design/Builder is responsible under Part 2, including all professional design
services and all labor, materials and equipment used or incorporated in
such design and construction.
1.1.3 The Work comprises the completed construction designed under the
Project and includes labor necessary to produce such construction, and
materials and equipment incorporated or to be incorporated in such
construction.
1.2 EXECUTION, CORRELATION AND INTENT
1.2.1 This Part 2 shall be signed in not less than duplicate by the Owner
and Design/Builder.
1.2.2 lt is the intent of the Owner and Design/Builder that the Contract
Documents include all items necessary for proper execution and completion of
the Work. The Contract Documents are complementary, and what is required by
anyone shall be as binding as if required by all. Work not covered in the
Contract Documents will not be required unless it is consistent with and is
reasonably inferable from the Contract Documents as being necessary to
produce the intended results. Words and abbreviations which have well-known
technical or trade meanings are used in the Contract Documents in accordance
with such recognized meanings.
1.3 OWNERSHIP AND USE OF DOCUMENTS
1.3.1 The drawings, specifications and other documents furnished by the
Design/Builder are instruments of service and shall not become the property
of the Owner whether or not the Project for which they are made is commenced.
Drawings, specifications and other documents furnished by the Design/Builder
shall not be used by the Owner on other projects, for additions to this
Project or, unless the Design/Builder is in default under Part 2, for
completion of this Project by others, except by written agreement relating
to use, liability and compensation.
1.3.2 Submission or distribution of documents to meet official regulatory
requirements or for other purposes in connection with the Project is not to
be construed as publication in derogation of the Design/Builder's or the
Architect's common law copyrights or other reserved rights. The Owner shall
own neither the documents nor the copyrights.
ARTICLE 2
DESIGN/BUILDER
2.1 SERVICES AND RESPONSIBILITIES
2.1.1 Design services shall be performed by qualified architects, engineers
and other professionals selected and paid by the Design/Builder. The
professional obligations of such persons shall be undertaken and performed
in the interest of the Design/Builder. Construction services shall be
performed by qualified construction contractors and suppliers, selected and
paid by the Design/Builder and acting in the interest of the Design/Builder.
Nothing contained in Part 2 shall create any professional obligation or
contractual relationship between such persons and the Owner.
2.2 BASIC SERVICES
2.2.1 The Design/Builder's Basic Services are described below and in
Article 14.
2.2.2 Based on the Design/Builder's Proposal, the Design/Builder shall
submit Construction Documents for review and approval by the Owner.
Construction Documents shall include technical drawings, schedules,
diagrams and specifications, setting forth in detail the requirements
for construction of the Work, and shall:
.1 develop the intent of the Design/Builder's Proposal in greater
detail;
.2 provide information customarily necessary for the use of those in
the building trades; and
.3 include documents customarily required for regulatory agency
approvals.
2.2.3 The Design/Builder shall assist the Owner in filing documents
required to obtain necessary approvals of governmental authorities having
jurisdiction over the Project.
2.2.4 Unless otherwise provided in the Contract Documents, the
Design/Builder shall provide or cause to be provided and shall pay for design
services, 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.
2.2.5 The Design/Builder shall be responsible for and shall coordinate all
construction means, methods, techniques, sequences and procedures.
2.2.6 The Design/Builder shall keep the Owner informed of the progress and
quality of the Work.
2.2.7 If requested in writing by the Owner, the Design/ Builder, with
reasonable promptness and in accordance with time limits agreed upon, shall
interpret the requirements of the Contract Documents and initially shall
decide, subject to demand for arbitration, claims, disputes and other matters
in question relating to performance thereunder by both Owner and
Design/Builder. Such interpretations and decisions shall be in writing,
shall not be presumed to be correct and shall be given such weight as the
arbitrators or the court shall determine.
A191-1985 A191,Part2 OWNER-DESIGN/BUILDER ACREEMENT, FIRST EDITION
PART 2-PAGE 2 AIA* (c)1985, THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW
YORK AVENUE, N.W. WASHINCTON, D.C. 20006
2.2.8 The Design/Builder shall correct Work which does not conform to the
Construction Documents.
2.2.9 The Design/Builder warrants to the Owner that materials and equipment
incorporated in the Work will be new unless otherwise specified, and that the
Work will be of good quality, free from faults and defects, and in
conformance with the Contract Documents. Work not conforming to these
requirements shall be corrected in accordance with Article 9.
2.2.10 The Design/Builder shall pay all sales, consumer, use and similar
taxes which were in effect at the time the Design/Builder's Proposal was
first submitted to the Owner, and shall secure and pay for building and other
permits and governmental fees, licenses and inspections necessary for the
proper execution and completion of the Work which are either customarily
secured after execution of Part 2 or are legally required at the time the
Design/Builder's Proposal was first submitted to the Owner.
2.2.11 The Design/Builder shall give notices and comply with laws,
ordinances, rules, regulations and lawful orders of public authorities
relating to the Project.
2.2.12 The Design/Builder shall pay royalties and license fees. The
Design/Builder shall defend suits or claims for infringement of patent rights
and shall save the Owner harmless from loss on account thereof, except that
the Owner shall be responsible for such loss when a particular design,
process or product of a particular manufacturer is required by the Owner.
However, if the Design/Builder has reason to believe the use of a required
design, process or product is an infringement of a patent, the Design/Builder
shall be responsible for such loss unless such information is promptly given
to the Owner.
2.2.13 The Design/Builder shall be responsible to the Owner for acts and
omissions of the Design/Builder's employees and parties in privily of
contract with the Design/ Builder to perform a portion of the Work, including
their agents and employees.
2.2.14 The Design/Builder shall keep the premises free from accumulation of
waste materials or rubbish caused by the Design/Builder's operations. At the
completion of the Work, the Design/Builder shall remove from and about the
Project the Design/Builder's tools, construction equipment, machinery,
surplus materials, waste materials and rubbish.
2.2.15 The Design/Builder shall prepare Change Orders for the Owner's
approval and execution in accordance with Part 2 and shall have authority to
make minor changes in the design and construction consistent with the intent
of Part 2 not involving an adjustment in the contract sum or an extension of
the contract time. The Design/Builder shall promptly inform the Owner, in
writing, of minor changes in the design and construction. 2.2.16 The
Design/Builder shall notify the Owner when the Work or an agreed upon portion
thereof is substantially completed by issuing a Certificate of Substantial
Completion which shall establish the Date of Substantial Completion, shall
state the responsibility of each party for security, maintenance, heat,
utilities, damage to the Work and insurance, shall include a list of items to
be completed or corrected and shall fix the time within which the
Design/Builder shall complete items listed therein. Disputes between the
Owner and Design/Builder regarding the Certificate of Substantial Completion
shall be resolved by arbitration.
2.2.17 The Design/Builder shall maintain in good order at the site one
record copy of the drawings, specifications, product data, samples, shop
drawings, Change Orders and other Modifications, marked currently to record
changes made during construction. These shall be delivered to the Owner upon
completion of the design and construction and prior to final payment.
ARTICLE 3
OWNER
3.1 The Owner shall designate a representative authorized to act on the
Owner's behalf with respect to the Project. The Owner or such authorized
representative shall examine documents submitted by the Design/Builder and
shall promptly render decisions pertaining thereto to avoid delay in the
orderly progress of the Work.
3.2 The Owner may appoint an on-site project representative to observe
the Work and to have such other responsibilities as the Owner and
Design/Builder agree in writing prior to execution of Part 2.
3.3 The Owner shall cooperate with the Design/Builder in securing
building and other permits, licenses and inspections, and shall pay the fees
for such permits, licenses and inspections if the cost of such fees is not
identified as being included in the Design/Builder's Proposal.
3.4 The Owner shall furnish services by land surveyors, geotechnical
engineers and other consultants for subsoil, air and water conditions, in
addition to those provided under Part 1 when such services are deemed
necessary by the Design/Builder to carry out properly the design services
under this Part 2.
3.5 The Owner shall furnish structural, mechanical, chemical,
geotechnical and other laboratory or on-site tests, inspections and reports
as required by law or the Contract Documents.
3.6 The services, information, surveys and reports required by Paragraphs
3.4 and 3.5 shall be furnished at the Owner's expense, and the Design/Builder
shall be entitled to rely upon their accuracy and completeness.
3.7 If the Owner observes or otherwise becomes aware of a fault or defect
in the Work or nonconformity with the Design or Construction Documents, the
Owner shall give prompt written notice thereof to the Design/Builder.
3.8 The Owner shall furnish required information and services and shall
promptly render decisions pertaining thereto to avoid delay in the orderly
progress of the design and construction.
3.9 The Owner shall, at the request of the Design/Builder and upon
execution of Part 2, provide a certified or notarized statement of funds
available for the Project and their source.
3.10 The Owner shall communicate with contractors only through the
Design/Builder.
ARTICLE 4
TIME
4.1 The Design/Builder shall provide services as expeditiously as is
consistent with reasonable skill and care and the orderly progress of design
and construction.
4.2 Time limits stated in the Contract Documents are of the essence of
Part 2. The Work to be performed under Part
AIA DOCUMENT A191,Part 2, OWNER-DESIGN/BUILDER AGREEMENT A191-1985
FIRST EDITION AIA* (c)1985 * THE AMERICAN INSTITUTE OF PART 2-PAGE 3
ARCHITECTS 1735 NEW YORK AVENUE N.W., WASHINGTON,
D.C. 20006
2 shall commence upon execution of a notice to proceed unless otherwise
agreed and, subject to authorized Modifications, Substantial Completion shall
be achieved as indicated in Article 14.
4.3 The Date of Substantial Completion of the Work or an agreed upon
portion thereof is the date when construction or an agreed upon portion
thereof is sufficiently complete so the Owner can occupy and utilize the Work
or agreed upon portion thereof for its intended use.
4.4 The schedule provided in the Design/Builder's Proposal shall include
a construction schedule consistent with Paragraph 4.2 above.
4.3 If the Design/Builder is delayed in the progress of the Project by
acts or neglect of the Owner, Owner's employees, separate contractors
employed by the Owner, changes ordered in the Work not caused by the fault of
the Design/Builder, labor disputes, fire, unusual delay in transportation,
adverse weather conditions not reasonably anticipatable, unavoidable
casualties, or other causes beyond the Design/Builder's control, or by delay
authorized by the Owner's pending arbitration or another cause which the
Owner and Design/Builder agree is justifiable, the contract time shall be
reasonably extended by Change Order.
ARTICLE 5
PAYMENTS
5.1 PROGRESS PAYMENTS
5.1.1 The Design/Builder shall deliver to the Owner itemized Applications
for Payment in such detail as indicated in Article 14.
5.1.2 Within ten days of the Owner's receipt of a properly submitted and
correct Application for Payment, the Owner shall make payment to the
Design/Builder.
5.1.3 The Application for Payment shall constitute are presentation by the
Design/Builder to the Owner that, to the best of the Design/Builder's
knowledge, information and belief, the design and construction have
progressed to the point indicated; the quality of the Work covered by the
application is in accordance with the Contract Documents; and the
Design/Builder is entitled to payment in the amount requested.
5.1.4 The Design/Builder shall pay each contractor, upon receiptof payment
from the Owner, out of the amount paid to the Design/Builder on account of
such contractor's work, the amount to which said contractor is entitled in
accordance with the terms of the Design/Builder's contract with such
contractor. The Design/Builder shall, by appropriate agreement with each
contractor, require each contractor to make payments to subcontractors in
similar manner.
5.1.5 The Owner shall have no obligation to pay or to be responsible in any
way for payment to a contractor of the Design/Builder except as may otherwise
be required by law.
5.1.6 No progress payment or partial or entire use or occupancy of the
Project by the Owner shall constitute an acceptance of Work not in accordance
with the Contract Documents.
5.1.7 The Design/Builder warrants that: (1) title to Work, materials and
equipment covered by an Application for Payment will pass to the Owner either
by incorporation in construction or upon receipt of payment by the
Design/Builder, whichever occurs first; (2) Work, materials and equipment
covered by previous Applications for Payment are free and clear of liens,
claims, security interests or encumbrances, hereinafter referred to as
"liens"; and (3) no Work, materials or equipment covered by an Application
for Payment will have been acquired by the Design/ Builder, or any other
person performing work at the site or furnishing materials or equipment for
the Project, subject to an agreement under which an interest therein or an
encumbrance thereon is retained by the seller or otherwise imposed by the
Design/Builder or such other person.
5.1.8 If the Contract provides for retainage, then at the date of
Substantial Completion or occupancy of the Work or any agreed upon portion
thereof by the Owner, whichever occurs first, the Design/Builder may apply
for and the Owner, if the Design/Builder has satisfied the requirements of
Paragraph 5.2.1 and any other requirements of the Contract relating to
retainage, shall pay the Design/Builder the amount retained, if any, for the
Work or for the portion completed or occupied, less the reasonable value of
incorrect or incomplete Work. Final payment of such withheld sum shall be
made upon correction or completion of such Work.
5.2 FINAL PAYMENT
5.2.1 Neither final payment nor amounts retained,if any, shall become due
until the Design/Builder submits to the Owner (1) an affidavit that payrolls,
bills for materials and equipment, and other indebtedness connected with the
Project for which the Owner or Owner's property might be liable have been
paid or otherwise satisfied, (2) consent of surety, if any, to final payment,
(3) a certificate that insurance required by the Contract Documents is in
force following completion of the Work, and (4) if required by the Owner,
other data establishing payment or satisfaction of obligations, such as
receipts, releases and waivers of liens arising out of Part 2, to the extent
and in such form as may be designated by the Owner. If a contractor refuses
to furnish a release or waiver required by the Owner, the Design/Builder may
furnish a bond satisfactory to the Owner to indemnify the Owner against such
lien. If such lien remains unsatisfied after payments are made, the
Design/Builder shall reimburse the Owner for moneys the latter may be
compelled to pay in discharging such lien, including all costs and reasonable
attorneys' fees.
5.2.2 Final payment constituting the entire unpaid balance due shall be
paid by the Owner to the Design/Builder upon the Owner's receipt of the
Design/Builder's final Application for Payment when the Work has been
completed and the Contract fully performed except for those responsibilities
of the Design/Builder which survive final payment.
5.2.3 The making of final payment shall constitute a waiver of all claims
by the Ownerexcept those arising from:
.1 unsettled liens;
.2 faulty or defective Work appearing after Substantial Completion;
.3 failure of the Work to comply with requirements of the Contract
Documents; or
.4 terms of special warranties required by the Contract Documents.
5.2.4 Acceptance of final payment shall constitute a waiver of all claims
by the Design/Builder except those previously made in writing and identified
by the Design/Builder as unsettled at the time of final Application for
Payment.
A191-1985 A191,Part2 OWNER-DESIGN/BUILDER ACREEMENT, FIRST EDITION
PART 2-PAGE 4 AIA* (c)1985, THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW
YORK AVENUE, N.W. WASHINCTON, D.C. 20006
5.3 INTEREST PAYMENTS
5.3.1 Payments due the Design/Builder under Part2 which are not paid when
due shall bear interest from the date due at the rate specified in Article
13, or in the absence of a specified rate, at the legal rate prevailing where
the principal improvements are to be located.
ARTICLE 6
PROTECTION OF PERSONS AND PROPERTY
6.1 The Design/Builder shall be responsible for initiating, maintaining
and providing Supervision of safety precautions and programs in connection
with the Work.
6.2 The Design/Builder 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 or adjacent to the site.
6.3 The Design/Builder shall give notices and comply with applicable
laws, ordinances, rules, regulations and orders of public authorities bearing
on the safety of persons and property and their protection from damage,
injury or loss.
6.4 The Design/Builder shall be liable for damage or loss (other than
damage or loss to property insured under the property insurance provided or
required by the Contract Documents to be provided by the Owner) to property
at the site caused in whole or in part by the Design/Builder, a contractor of
the Design/Builder or anyone directly or indirectly employed by either of
them, or by anyone for whose acts they may be liable, except damage or loss
attributable to the acts or omissions of the Owner, the Owner's separate
contractors or anyone directly or indirectly employed by them or by anyone
for whose acts they may be liable and not attributable to the fault or
negligence of the Design/ Builder.
ARTICLE 7
INSURANCE AND BONDS
7.1 DESIGN/BUILDER'S LIABILITY INSURANCE
7.1.1 The Design/Builder shall purchase and maintainin a company or
companies authorized to do business in the state in which the Work is located
such insurance as will protect the Design/Builder from claims set forth below
which may arise out of or result from operations under the Contract by the
Design/Builder or by a contractor of the Design/Builder, or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts
they may be liable:
.1 claims under workers' or workmen's compensation, disability
benefit and other similar employee benefit laws which are
applicable to the Work to be performed;
.2 claims for damages because of bodily injury, occupational
sickness or disease, or death of the Design/Builder's employees
under any applicable employer's liability law;
.3 claims for damages because of bodily injury, sickness or
disease, or death of persons other than the Design/Builder's
employees;
.4 claims for damages covered by usual personal injury liability
coverage which are sustained (1) by a person as a result of an
offense directly or indirectly related to employment of such
person by the Design/Builder or (2) by another person;
.5 claims for damages, other than to the Work at the site, because
of injury to or destruction of tangible property, including loss
of use; and
.6 claims for damages for bodily injury or death of a person or
property damage arising out of ownership, maintenance or use of
a motor vehicle.
7.1.2 The insurance required by the above Subparagraph
7.1.1 shall be written for not less than limits of liability specified in
the Contract Documents or required by law, whichever are greater.
7.1.3 The Design/Builder's liability insurance shall include contractual
liability insurance applicable to the Design/Builder's obligations under
Paragraph 11.7.
7.1.4 Certificates of Insurance, and copies of policies if requested,
acceptable to the Owner shall be delivered to the Owner prior to commencement
of design and construction. These Certificates as well as insurance policies
required by this Paragraph shall contain a provision that coverage will not
be cancelled or allowed to expire until at least thirty days' prior written
notice has been given to the Owner. If any of the foregoing insurance
coverages are required to remain in force after final payment, an additional
certificate evidencing continuation of such coverage shall be submitted along
with the application for final payment.
7.2 OWNER'S LIABILITY INSURANCE
7.2.1 The Owner shall be responsible for purchasing and maintaining, in a
company or companies authorized to do business in the state in which the
principal improvements are to be located, Owner's liability insurance to
protect the Owner against claims which may arise from operations under this
Project.
7.3 PROPERTY INSURANCE
7.3.1 Unless otherwise provided under this Part 2, the Owner shall purchase
and maintain, in a company or companies authorized to do business in the
state in which the principal improvements are to be located, property
insurance upon the Work at the site to the full insurable value thereof.
Property insurance shall include interests of the Owner, the Design/Builder,
and their respective contractors and subcontractors in the Work. It shall
insure against perils of fire and extended coverage and shall include all
risk insurance for physical loss or damage including, without duplication of
coverage, theft, vandalism and malicious mischief. If the Owner does not
intend to purchase such insurance for the full insurable value of the entire
Work, the Owner shall inform the Design/Builder in writing prior to
commencement of the Work. The Design/Builder may then effect insurance for
the Work at the site which will protect the interests of the Design/Builder
and the Design/Builder's contractors and subcontractors, and by appropriate
Change Order the cost thereof shall be charged to the Owner. If the
Design/Builder is damaged by failure of the Owner to purchase or maintain
such insurance without notice to the Design/Builder, then the Owner shall
bear all reasonable costs properly attributable thereto. if not covered under
the all risk insurance or not otherwise provided in the Contract Documents,
the Design/Builder shall effect and maintain similar property insurance on
portions of the Work stored off-site or in transit when such portions of the
Work are to be included in an Application for Payment.
AIA DOCUMENT A191,Part 2, OWNER-DESIGN/BUILDER AGREEMENT A191-1985
FIRST EDITION AIA* (c)1985 * THE AMERICAN INSTITUTE OF PART 2-PAGE 5
ARCHITECTS 1735 NEW YORK AVENUE N.W., WASHINGTON,
D.C. 20006
7.3.2 Unless otherwise provided under this Part 2, the Owner shall purchase
and maintain such boiler and machinery insurance as may be required by the
Contract Documents or by law and which shall specifically cover such insured
objects during installation and until final acceptance by the Owner. This
insurance shall cover interests of the Owner, the Design/Builder, and the
Design/Builder's contractors and subcontractors in the Work.
7.3.3 A loss insured under Owner's property insurance is to be adjusted
with the Owner and made payable to the Owner as trustee for the insureds, as
their interests may appear, subject to requirements of any applicable
mortgagee clause and of Subparagraph 7.3.8. The Design/ Builder shall pay
contractors their shares of insurance proceeds received by the
Design/Builder, and by appropriate agreement, written where legally required
for validity, shall require contractors to make payments to their
subcontractors in similar manner.
7.3.4 Before an exposure to loss may occur, the Owner shall file with the
Design/Builder a copy of each policy required by this Paragraph 7.3. Each
policy shall contain only those endorsements specifically related to this
Project. Each policy shall contain a provision that the policy will not be
cancelled or allowed to expire until at least thirty days' prior written
notice has been given the Design/ Builder.
7.3.5 If the Design/Builder requests in writing that insurance for risks
other than those described herein or for other special hazards be included
in the property insurance policy, the Owner shall, if possible, obtain such
insurance, and the cost thereof shall be charged to the Design/Builder by
appropriate Change Order.
7.3.6 The Owner and Design/Builder waive all rights against each other and
the contractors, subcontractors, agents and employees, each of the other,
for damages caused by fire or other perils to the extent covered by property
insurance obtained pursuant to this Paragraph 7.3 or other property insurance
applicable to the Work, except such rights as they may have to proceeds of
such insurance held by the Owner as trustee. The Owner or Design/Builder, as
appropriate, shall require from contractors and subcontractors by appropriate
agreements, written where legally required for validity, similar waivers each
in favor of other parties enumerated in this Paragraph 7.3. The policies
shall be endorsed to include such waivers of subrogation.
7.3.7 If required in writing by a party in interest, the Owner as trustee
shall provide, upon occurrence of an insured loss, a bond for proper
performance of the Owner's duties. The cost of required bonds shall be
charged against proceeds received as trustee. The Owner shall deposit
proceeds so received in a separate account and shall distribute them in
accordance with such agreement as the parties in interest may reach, or in
accordance with an arbitration award in which case the procedure shall be as
provided in Article 10. If after such loss no other special agreement is
made, replacement of damaged Work shall be covered by appropriate Change
Order.
7.3.8 The Owner, as trustee, shall have power to adjust and settle a loss
with insurers unless one of the parties in interest shall object, in writing,
within ten days after occurrence of loss, to the Owner's exercise of this
power. If such objection be made, the Owner as trustee shall make settlement
with the insurers in accordance with the decision of arbitration as provided
in Article 10. If distribution of insurance proceeds by arbitration is
required, the arbitrators will direct such distribution.
7.3.9 If the Owner finds it necessary to occupy or use a portion or
portions of the Work before Substantial Completion, such occupancy or use
shall not commence prior to a time agreed to by the Owner and Design/Builder
and to which the insurance company or companies providing property insurance
have consented by endorsement to the policy or policies. The property
insurance shall not lapse or be cancelled on account of such partial
occupancy or use. Consent of the Design/Builder and of the insurance company
or companies to such occupancy or use shall not be unreasonably withheld.
7.4 LOSS OF USE INSURANCE
7.4.1 The Owner, at the Owner's option, may purchase and maintain such
insurance as will insure the Owner against loss of use of the Owner's
property due to fire or other hazards, however caused. The Owner waives all
rights of action against the Design/Builder, and its contractors and their
agents and employees, for loss of use of the Owner's property, including
consequential losses due to fire or other hazards, however caused, to the
extent covered by insurance under this Paragraph 7.4.
7.5 PERFORMANCE BOND AND PAYMENT BOND
7.5.1 The Owner shall have the right to require the Design/Builder to
furnish bonds covering the faithful performance of the Contract and the
payment of all obligations arising thereunder if and as required in the
Contract Documents or in Article 14.
ARTICLE 8
CHANGES IN THE WORK
8.1 CHANGE ORDERS
8.1.1 A Change Order is a written order signed by the Owner and
Design/Builder, and issued after execution of Part 2, authorizing a change in
the Work or adjustment in the contract sum or contract time. The contract
sum and contract time may be changed only by Change Order.
8.1.2 The Owner, without invalidating Part 2, may order changes in the Work
within the general scope of Part 2 consisting of additions, deletions or
other revisions, and the contract sum and contract time shall be adjusted
accordingly. Such changes in the Work shall be authorized by Change Order,
and shall be performed under applicable conditions of the Contract Documents.
8.1.3 If the Owner requests the Design/Builder to submit a proposal for a
change in the Work and then elects not to proceed with the change, a Change
Order shall be issued to reimburse the Design/Builder for any costs incurred
for Design Services or proposed revisions to the Contract Documents.
8.1.4 Cost or credit to the Owner resulting from a change in the Work shall
be determined in one or more of the following ways:
.1 by mutual acceptance of a lump sum properly itemized and supported
by sufficient substantiating data to permit evaluation;
.2 by unit prices stated in the Contract Documents or subsequently
agreed upon;
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.3 by cost to be determined in a manner agreed upon by the parties and
a mutually acceptable fixed or percentage fee; or
.4 by the method provided below.
8.1.5 If none of the methods set forth in Clauses 8.1.4.1, 8.1.4.2 or
8.1.4.3 is agreed upon, the Design/Builder, provided a written order signed
by the Owner is received, shall promptly proceed with the Work involved.
The cost of such Work shall then be determined on the basis of reasonable
expenditures and savings of those performing the Work attributable to the
change, including the expenditures for design services and revisions to the
Contract Documents. In case of an increase in the contract sum, the cost
shall include a reasonable allowance for overhead and profit. In case of the
methods set forth in Clauses 8.1.4.3 and 8.1.4.4, the Design/Builder shall
keep and present an itemized accounting together with appropriate supporting
data for inclusion in a Change Order. Unless otherwise provided in the
Contract Documents, cost shall be limited to the following: cost of
materials, including sales tax and cost of delivery; cost of labor, including
social security, old age and unemployment insurance, and fringe benefits
required by agreement or custom; workers' or workmen's compensation
insurance; bond premiums; rental value of equipment and machinery; additional
costs of supervision and field office personnel directly attributable to the
change; and fees paid to architects, engineers and other professionals.
Pending final determination of cost to the Owner, payments on account shall
be made on the Application for Payment. The amount of credit to be allowed
by the Design/ Builder to the Owner for deletion or change which results in a
net decrease in the contract sum will be actual net cost. When both
additions and credits covering related Work or substitutions are involved in
a change, the allowance for overhead and profit shall be figured on the
basis of the net increase, if any, with respect to that change.
8.1.6 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 that application of agreed unit prices to quantities
proposed will cause substantial inequity to the Owner or Design/Builder,
applicable unit prices shall be equitably adjusted.
8.2 CONCEALED CONDITIONS
8.2.1 If concealed or unknown conditions of an unusual nature that affect
the performance of the Work and vary from those indicated by the Contract
Documents are encountered below ground or in an existing structure other than
the Work, which conditions are not ordinarily found to exist or which differ
materially from those generally recognized as inherent in work of the
character provided for in this Part 2, notice by the observing party shall
be given promptly to the other party and, if possible, before conditions are
disturbed and in no event later than twenty-one days after first observance
of the conditions. The contract sum shall be equitably adjusted for such
concealed or unknown conditions by Change Order upon claim by either party
made within twenty-one days after the claimant becomes aware of the
conditions.
8.3 REGULATORY CHANGES
8.3.1 The Design/Builder shall be compensated for changes in the Work
necessitated by the enactment or revision of codes, laws or regulations
subsequent to the submission of the Design/Builder's Proposal under Part 1.
ARTICLE 9
CORRECTION OF WORK
9.1 The Design/Builder shall promptly correct Work rejected by the Owner
or known by the Design/Builder to be defective or failing to conform to the
Construction Documents, whether observed before or after Substantial
Completion and whether or not fabricated, installed or completed, and shall
correct Work under this Part 2 found to be defective or nonconforming within
a period of one year from the date of Substantial Completion of the Work or
designated portion thereof, or within such longer period provided by any
applicable special warranty in the Contract Documents.
9.2 Nothing contained in this Article 9 shall be construed to establish a
period of limitation with respect to other obligations of the Design/Builder
under this Part 2. Paragraph 9.1 relates only to the specific obligation of
the Design/Builder to correct the Work, and has no relationship to the time
within which the obligation to comply with the Contract Documents may be
sought to be enforced, nor to the time within which proceedings may be
commenced to establish the Design/Builder's liability with respect to the
Design/Builder's obligations other than correction of the Work.
9.3 If the Design/Builder fails to correct defective Work as required or
persistently fails to carry out Work in accordance with the Contract
Documents, the Owner, by written order signed personally or by an agent
specifically so empowered by the Owner in writing, may order the
Design/Builder to stop the Work, or any portion thereof, until the cause for
such order has been eliminated; however, the Owner's right to stop the Work
shall not give rise to a duty on the part of the Owner to exercise the right
for benefit of the Design/Builder or other persons or entities.
9.4 If the Design/Builder defaults or neglects to carry out the Work in
accordance with the Contract Documents and fails within seven days after
receipt of written notice from the Owner to commence and continue correction
of such default or neglect with diligence and promptness, the Owner may give
a second written notice to the Design/ Builder and, seven days following
receipt by the Design/ Builder of that second written notice and without
prejudice to other remedies the Owner may have, correct such deficiencies.
In such case an appropriate Change Order shall be issued deducting from
payments then or thereafter due the Design/Builder costs of correcting such
deficiencies. If the payments then or thereafter due the Design/Builder are
not sufficient to cover the amount of the deduction, the Design/Builder shall
pay the difference to the Owner. Such action by the Owner shall be subject
to arbitration.
ARTICLE 10
ARBITRATION
10.1 Claims, disputes and other matters in question between the parties to
this Part 2 arising out of or relating to Part 2 shall be decided by
arbitration in accordance with the Construction Industry Arbitration Rules of
the American Arbitration Association then in effect unless the parties agree
otherwise. No arbitration arising out of or relat-
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FIRST EDITION AIA* (c)1985 * THE AMERICAN INSTITUTE OF PART 2-PAGE 7
ARCHITECTS 1735 NEW YORK AVENUE N.W., WASHINGTON,
D.C. 20006
ing to this Part 2 shall include, by consolidation or joinder or in any other
manner, an additional person not a party to Part I except by written consent
containing specific reference to Part 2 and signed by the Owner,
Design/Builder and any other person sought to be joined. Consent to
arbitration involving an additional person or persons shall not constitute
consent to arbitration of a dispute not described or with a person not named
therein. This provision shall be specifically enforceable in any court of
competent jurisdiction.
10.2 Notice of demand for arbitration shall be filed in writing with the
other party to this Part 2 and with the American Arbitration Association.
The demand shall be made within a reasonable time after the claim, dispute or
other matter in question has arisen. In no event shall the demand for
arbitration be made after the date when the applicable statute of limitations
would bar institution of a legal or equitable proceeding based on such claim,
dispute or other matter in question.
10.3 The award rendered by arbitrators shall be final, and judgment may be
entered upon it in accordance with applicable law in any court having
jurisdiction.
10.4 Unless otherwise agreed in writing, the Design/Builder shall carry on
the Work and maintain its progress during any arbitration proceedings, and
the Owner shall continue to make payments to the Design/Builder in accordance
with the Contract Documents.
10.5 This Article 1O shall survive completion or termination of Part 2.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 This Part 2 shall be governed by the law of the place where the Work
is located.
11.2 The table of contents and the headings of articles and paragraphs are
for convenience only and shall not modify rights and obligations created by
this Part 2.
11.3 In case a provision of Part 2 is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not be affected.
11.4 SUBCONTRACTS
11.4.1 The Design/Builder, as soon as practicable after execution of Part 2,
shall furnish to the Owner in writing the names of the persons or entities
the Design/Builder will engage as contractors for the Project.
11.4.2 Nothing contained in the Design/Builder Contract Documents shall
create a professional obligation or contractual relationship between the
Owner and any third party.
11.5 WORK BY OWNER OR OWNER'S CONTRACTORS
11.5.1 The Owner reserves the right to perform work related to, but not part
of, the Project and to award separate contracts in connection with other work
at the site. If the Design/Builder claims that delay or additional cost is
involved because of such action by the Owner, the Design/ Builder shall make
such claims as provided in Subparagraph 11.6.
11.5.2 The Design/Builder shall afford the Owner's separate contractors
reasonable opportunity for introduction and storage of their materials and
equipment for execution of their work. The Design/Builder shall incorporate
and coordinate the Design/Builder's Work with work of the Owner's separate
contractors as required by the Contract Documents.
11.5.3 Costs caused by defective or ill-timed work shall be borne by the
party responsible.
11.6 CLAIMS FOR DAMAGES
11.6.1 Should either party to Part2 suffer injury or damage to person or
property because of an act or omission of the other party, the other party's
employees or agents, or another for whose acts the other party is legally
liable, claim shall be made in writing to the other party within a reasonable
time after such injury or damage is or should have been first observed.
11.7 INDEMNIFICATION
11.7.1 To the fullest extent permitted by law, the Design/Builder shall
indemnify and hold harmless the Owner and the Owner's consultants and
separate contractors, any of their subcontractors, sub-subcontractors,
agents and employees from and against claims, damages, losses and expenses,
including but not limited to attorneys' fees, arising out of or resulting
from performance of the Work. These indemnification obligations shall be
limited to claims, damages, losses or expenses (1) that are 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, and (2) to the extent such claims, damages, losses or
expenses are caused in whole or in part by negligent acts or omissions of the
Design/Builder, the Design/Builder's contractors, anyone directly or
indirectly employed by either or anyone for whose acts either may be liable,
regardless of whether or not they are caused in part by a party indemnified
hereunder. Such obligation shall not be construed to negate, abridge or
otherwise reduce other rights or obligations of indemnity which would
otherwise exist as to a party or person described in this Paragraph 11.7.
11.7.2 ln claims against the Owner or its consultants and its contractors,
any of their subcontractors, sub-subcontractors, agents or employees by an
employee of the Design/Builder, its contractors, anyone directly or
indirectly employed by them or anyone for whose acts they may be liable,
the indemnification obligation under this Paragraph 11.7 shall not be limited
by a limitation on amount or type of damages, compensation or benefits
payable by or for the Design/Builder, or a Design/Builder's contractor, under
workers' or workmen's compensation acts, disability benefit acts or other
employee benefit acts.
11.8 SUCCESSORS AND ASSIGNS
11.8.1 This Part2 shall be binding on successors, assigns, and legal
representatives of and persons in privity of contract with the Owner or
Design/Builder. Neither party shall assign, sublet or transfer an interest
in Part 2 without the written consent of the other.
11.8.2 This Paragraph 11.8 shall survive completion or termination of
Part 2.
11.9 In case of termination of the Architect, the Design/Builder shall
provide the services of another lawfully licensed person or entity against
whom the Owner makes no reasonable objection.
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11.10 EXTENT OF AGREEMENT
11.10.1 Part 2 represents the entire agreement between the Owner and
Design/Builder and supersedes Part 1 and prior negotiations, representations
or agreements. Part 2 may be amended only by written instrument signed by
both Owner and Design/Builder.
ARTICLE 12
TERMINATION OF THE AGREEMENT
12.1 TERMINATION BY THE OWNER
12.1.1 This Part 2 may be terminated by the Owner upon fourteen days'
written notice to the Design/Builder in the event that the Project is
abandoned. If such termination occurs, the Owner shall pay the
Design/Builder for Work completed and for proven loss sustained upon
materials, equipment, tools, and construction equipment and machinery,
including reasonable profit and applicable damages.
12.1.2 lf the Design/Builder defaults or persistently fails or neglects to
carry out the Work in accordance with the Contract Documents or fails to
perform the provisions of Part 2, the Owner may give written notice that the
Owner intends to terminate Part 2. If the Design/Builder fails to correct the
defaults, failure or neglect within seven days after being given notice, the
Owner may then give a second written notice and, after an additional seven
days, the Owner may without prejudice to any other remedy make good such
deficiencies and may deduct the cost thereof from the payment due the
Design/Builder or at the Owner's option, may terminate the employment of the
Design/Builder and take possession of the site and of all materials,
equipment, tools and construction equipment and machinery thereon owned by
the Design/Builder and finish the Work by whatever method the Owner may deem
expedient. If the unpaid balance of the contract sum exceeds the expense of
finishing the Work, the excess shall be paid to the Design/Builder, but if
the expense exceeds the unpaid balance, the Design/Builder shall pay the
difference to the Owner.
12.2 TERMINATION BY THE DESIGN/BUILDER
12.2.1 If the Owner fails to make payment when due, the Design/Builder may
give written notice of the Design/Builder's intention to terminate Part 2.
If the Design/Builder fails to receive payment within seven days after
receipt of such notice by the Owner, the Design/Builder may give a second
written notice and, seven days after receipt of such second written notice by
the Owner, may terminate Part 2 and recover from the Owner payment for Work
executed and for proven losses sustained upon materials, equipment, tools,
and construction equipment and machinery, including reasonable profit and
applicable damages.
AIA DOCUMENT A191,Part 2, OWNER-DESIGN/BUILDER AGREEMENT A191-1985
FIRST EDITION AIA* (c)1985 * THE AMERICAN INSTITUTE OF PART 2-PAGE 9
ARCHITECTS 1735 NEW YORK AVENUE N.W., WASHINGTON,
D.C. 20006
ARTICLE 13
BASIS OF COMPENSATION
The Owner shall compensate the Design/Builder in accordance with Article
5, Payments, and the other provisions of this Part 2 as described below.
13.1 COMPENSATION
13.1.1 FOR BASIC SERVICES, as described in Paragraphs 2.2.2 through 2.2.17,
and for any other services included in Article l4 as part of Basic
Services, Basic Compensation shall be as follows:
FOUR HUNDRED TWENTY FIVE THOUSAND AND NO/100 (425,000.00) DOLLARS, WHICH
HAS BEEN PAID BY THE ISSUANCE OF LIMITED INTEREST IN THE BILTMORE GROUP,
OF LOUISIANA L.L.C.
13.2 REIMBURSABLE EXPENSES
13.2.1 Reimbursable Expenses are in addition to the compensation for Basic
and Additional Services and include actual expenditures made by the
Design/Builder in the interest of the Project for the expenses listed as
follows:
CONSTRUCTION OF THE ARBOR RETIREMENT COMMUNITY LOCATED AT:
FOR THE FIXED SUM OF ONE MILLION, THREE HUNDRED FIFTY TWO
THOUSAND AND NO/100 (1,352,000.00). ANY AND ALL, CHANGE(S) ORDERS WILL BE IN
WRITING.
13.2.2 FOR REIMBURSABLE EXPENSES, compensation shall be a multiple of N/A
( ) times the amounts expended.
13.3 INTEREST PAYMENTS
13.3.1 The rate of interest for past due payments shall be as follows: N/A
(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 Design/Builder's principal places of business, at the
location of the Project and elsewhere may affect the validity of this
provision. Specific legal advice should be obtained with respect to
deletion, modification or other requirements, such as written
disclosures or waivers.)
A191-1985 AIA DOCUMENT A191, PART 2 OWNER-DESIGN/BUILDER AGREEMENT
PART 2-PAGE 10 FIRST EDITION AIA (c)1985 THE AMERICAN INSITITUTE OF
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C.
20006
ARTICLE 14
OTHER PROVISIONS
14.1 The Basic Services to be performed shall be commenced on
and, subject to authorized adjustments and to delays not caused
by the Design/Builder, Substantial Completion shall be achieved in
calendar days.
14.2 The Basic Services beyond those described in Article 2 are:
NONE
14.3 The Design/Builder shall submit an Application for Payment on
the of each month.
14.4 The Design/Builder's Proposal includes:
(List below: this Part 2, Supplementary and other Conditions, the
drawings, the specifications, and Modifications, showing page or
sheet numbers in all cases and dates where applicable to define the
scope of Work.)
This Part 2 entered into as of the day and year first written above.
OWNER DESIGN/BUILDER
THE BILTMORE GROUP OF LOUISIANA L.L.C. THE FORSYTHE GROUP, INC.
- ------------------------------------- --------------------------------
/S/SONYA KILE, V.P.
- ------------------------------------- --------------------------------
SCENICLAND CONSTRUCTION, CO.
- ------------------------------------- --------------------------------
BY /S/SUNSHINE GANTT BY /S/FRED M BAYLES
----------------------------- -----------------------------
*APPLICATION FOR PAYMENT, APPROVED BY KARL MIKE WALLACE, P.E. ARE DUE AND
PAYABLE BEFORE THE 1ST DAY OF THE MONTH FOLLOWING.
AIA DOCUMENT A191, PART 2 OWNER-DESIGN/BUILDER AGREEMENT A191-1985
FIRST EDITION AIA 1985 THE AMERICAN INSTITUTE OF PART 2-PAGE 11
ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006