exv10w1



 






Exhibit 10.1




AIA® Document A121 TM  CMc — 2003 and AGC Document 565




Standard
Form of Agreement Between Owner and Construction Manager

Where the Construction Manager is Also the Constructor



AGREEMENT

made as of the
17th day
of January in the year of 2006.

(In words, indicate day, month and year)




BETWEEN the Owner:

(Name and address)




Genitope Corporation

525 Penobscot Drive

Redwood City, California 94063

Attention: Chief Financial Officer & General Counsel

Telephone: (650) 482-2000

Facsimile: (650) 482-2002




and the Construction Manager:

(Name and address)




XL Construction Corporation

1500 Berger Drive

San Jose, California 95112-2703

Attention: Mario Wijtman

Telephone: (408) 271-2425

Facsimile: (408) 271-2426




The Project is:

(Name, address and brief description)



Construction
of interior office improvements for Owner’s manufacturing
facility within that certain two-story
industrial building (which building is sometimes referred to in the Contract Documents as “Building
2” and referred to in the “Landlord/Tenant Construction Agreement” and “Lease Agreement” (as those
terms are defined in Sections 1.3 and 2.6 below, respectively)
as “Building 6”) containing
approximately 109,786 square feet of space and located at 6800 Dumbarton Circle, Fremont,
California, as is more particularly described in Construction Manager’s Proposal in the form
previously provided by Construction Manager to Owner.




The Architect is:

(Name and address)




Dowler-Gruman Architects

550 Ellis Street

Mountain View, California 94043

Attention: Mark L. Davis

Telephone: (650) 943-1660

Facsimile: (650) 943-1670




The Owner and Construction Manager agree as set forth below:




ADDITIONS AND DELETIONS:




The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed.


This document has important legal consequences.
Consultation with an attorney is encouraged with respect to its completion or modification.



The 1997 Edition of AIA® Document A201TM, General Conditions of the Contract for Construction, is referred to herein. This Agreement requires modification if other general conditions are utilized.




ELECTRONIC COPYING of any portion of this AIA® Document to another electronic file is prohibited and constitutes a violation of copyright laws as set forth in the footer of this document.




 




AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




	User Notes:
genitope-x1construction-a121	 	(1638431218)





1









 








	 
	TABLE OF CONTENTS

	ARTICLE 1 GENERAL PROVISIONS

	§ 1.1 Relationship of the Parties

	§ 1.2 General Conditions

	 

	ARTICLE 2 CONSTRUCTION MANAGER’S RESPONSIBILITIES

	§ 2.1 Preconstruction Phase

	§ 2.2 Guaranteed Maximum Price Proposal and Contract Time

	§ 2.3 Construction Phase

	§ 2.4 Professional Services

	§ 2.5 Hazardous Materials

	 

	ARTICLE 3 OWNER’S RESPONSIBILITIES

	§ 3.1 Information and Services

	§ 3.2 Owner’s Designated Representative

	§ 3.3 Architect

	§ 3.4 Legal Requirements

	 

	ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES

	§ 4.1 Compensation

	§ 4.2 Payments

	 

	ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES

	§ 5.1 Compensation

	§ 5.2 Guaranteed Maximum Price

	§ 5.3 Changes in the Work

	 

	ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE

	§ 6.1 Costs to Be Reimbursed

	§ 6.2 Costs Not to Be Reimbursed

	§ 6.3 Discounts, Rebates and Refunds

	§ 6.4 Accounting Records

	 

	ARTICLE 7 CONSTRUCTION PHASE

	§ 7.1 Progress Payments

	§ 7.2 Final Payment

	 

	ARTICLE 8 INSURANCE AND BONDS

	§ 8.1 Insurance Required of the Construction Manager

	§ 8.2 Insurance Required of the Owner

	§ 8.3 Performance Bond and Payment Bond

	 

	ARTICLE 9 MISCELLANEOUS PROVISIONS

	§ 9.1 Dispute Resolution

	§ 9.2 Other Provisions

	 

	ARTICLE 10 TERMINATION OR SUSPENSION

	§ 10.1 Termination Prior to Establishing Guaranteed Maximum Price

	§ 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price

	§ 10.3 Suspension

	 

	ARTICLE 11 OTHER CONDITIONS AND SERVICES






 




AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




	User Notes:
genitope-x1construction-a121	 	(1638431218)





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ARTICLE 1 GENERAL PROVISIONS



§ 1.1 RELATIONSHIP OF PARTIES



The Construction Manager accepts the relationship of trust and confidence established with the
Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager’s
reasonable skill and judgment and to cooperate with the Architect, the “Landlord” (as defined in
Section 1.3(iv), below) and any consultants and/or any separate contractors retained by Owner (the
“Owner Consultants”) in furthering the interests of the Owner and the Landlord. The Construction
Manager shall furnish construction administration and management services and use the Construction
Manager’s best efforts to perform the Project in an expeditious and economical manner consistent
with the interests of the Owner and the Landlord. The Owner shall endeavor to promote harmony and
cooperation among the Owner, Architect, Landlord, Construction Manager and other persons or
entities employed by the Owner for the Project.




§ 1.2 GENERAL CONDITIONS



For the Construction Phase, the General Conditions of the contract shall be the AIA®
Document A201TM-1997, General Conditions of the Contract for Construction (the “General
Conditions”), which is incorporated herein by reference. For the Preconstruction Phase, or in the
event that the Preconstruction and Construction Phases proceed concurrently, the General Conditions
shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The term
“Contractor” as used in the General Conditions shall mean the Construction Manager.




§ 1.3 CONTRACT DOCUMENTS



The Contract Documents consist of the following, which, together with Modifications made in the
manner provided therein and issued subsequent to the execution of this Agreement, form the
“Contract”:





	 	(i)	 	This Agreement;
	 
	 	(ii)	 	The Amendment to Standard Form of Agreement Between Owner and Construction
Manager where the Construction Manager is also the Constructor, AIA Document
A-121/CMc-a-1998 (“A121 Amendment”), the form of which has been agreed to by the
parties and is attached hereto. At the time that the “Guaranteed Maximum Price” and
“Contract Time” (as those terms are defined in the a1221 Amendment) are mutually and
reasonably agreed to by the parties, the A121 Amendment shall be modified to set forth
the agreed upon Guaranteed Maximum Price and Contract Time, and shall thereafter be
promptly executed by Owner and Construction Manager and attached hereto and
incorporated herein by this reference;
	 
	 	(iii)	 	The General Conditions;
	 
	 	(iv)	 	The “Construction Agreement Related to Lease Agreement dated May 16, 2005 for
Building 6” (the “Landlord/Tenant Construction Agreement”) between The John Arrillaga
Survivor’s Trust and the Richard T. Peery Separate Property Trust, as landlord
(“Landlord”), and Owner, as tenant, a copy of which Landlord/Tenant Construction
Agreement has previously been provided to Construction Manager by Owner; and
	 
	 	(v)	 	The “Construction Documents” which shall consist of the specifications
(“Specifications”) and the drawings (“Drawings”) prepared by the Architect in
connection with the Project, subject to any qualifications and exclusions relating
thereto.




In the event of any conflict between any of the documents described above, the terms and provisions
of this Agreement and/or the Amendment (once executed by the parties) shall control over those of
the General Conditions, the Landlord/ Tenant Construction Agreement and Construction Documents, and
the terms and provisions of the General Conditions shall control over those of the Landlord/Tenant
Construction Agreement and Construction Documents. In the event of a conflict between the
Specifications and the Drawings, regarding material, quality, size, shape or dimension, the
Architect (with the Owner’s approval) and/or the Owner, shall decide the correct intent and
instruct the Construction Manager how to proceed. Construction Manager agrees that in constructing
the “Work” (as defined in Section 1.1.3 of the General Conditions) in accordance with the
requirements of the Contract Documents, including, without limitation, the Landlord/Tenant
Construction Agreement, Construction Manager shall satisfy all obligations, duties, and
requirements of Owner thereunder relative to the physical construction of the Work.




ARTICLE 2 CONSTRUCTION MANAGER’S RESPONSIBILITIES



The Construction Manager shall perform the services described in the Contract Documents. The
Construction Manager shall provide sufficient organization, personnel and management to carry out
the requirements of this Agreement in an expeditious and economical manner consistent with the
interests of the Owner and the Landlord. The Construction Manager shall use first-rate efforts in
the performance of all Work and services rendered under this Agreement. The services to be
provided under Sections 2.1 and 2.2 of this Agreement constitute the Preconstruction Phase
services. If




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)






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the Owner and Construction Manager reasonably agree, after consultation with the
Architect, the
Construction Phase may commence before the Preconstruction Phase is completed, in which case both
phases will proceed concurrently.




§ 2.1 PRECONSTRUCTION PHASE



§ 2.1.1 PRELIMINARY EVALUATION



The Construction Manager shall review the program furnished by the Owner to ascertain the
requirements of the Project and shall arrive at a mutual understanding of such requirements with
the Owner. The Construction Manager shall provide a preliminary evaluation of the Owner’s program
and Project budget requirements, each in terms of the other.




§ 2.1.2 CONSULTATION



At the Owner’s request, the Construction Manager with the Architect shall jointly schedule and
attend regular meetings with the Owner. The Construction Manager shall regularly consult with the
Owner and Architect regarding site use and improvements and the selection of materials, building
systems and equipment. The Construction Manager shall provide recommendations on construction
feasibility; actions designed to minimize adverse effects of labor or material shortages; time
requirements for procurement, installation and construction completion; and factors related to
construction cost, including, without limitation, estimates of alternative designs or materials,
preliminary budgets and possible economies. The Construction Manager shall expeditiously review
design documents during their development and advise on proposed site use and improvements,
selection of materials, building systems and equipment, and methods of Project delivery. The
Construction Manager shall provide recommendations on relative feasibility of construction methods,
availability of materials and labor, time requirements for procurement, installation and
construction, and factors related to construction cost including, but not limited to, costs of
alternative designs or materials, preliminary budgets, and possible economies.




§ 2.1.3 PROJECT SCHEDULE



Owner and Construction Manager shall establish a detailed schedule governing the Project and the
performance of the Work (the “Project Schedule”). Construction Manager’s preliminary Project
Schedule for the Work has previously been provided by Construction Manager to Owner. As the
Construction Documents are developed, the Construction Manager shall periodically update such
preliminary Project Schedule and submit the same to Owner for approval. At the time of the
parties’ establishment of the Guaranteed Maximum Price, Construction Manager and Owner shall agree
on a final Project Schedule. The Construction Manager shall obtain the Architect’s approval of the
portion of the Project Schedule relating to the performance of the Architect’s services. The
Construction Manager shall coordinate and integrate the Project Schedule with the services and
activities of the Owner, Architect, Owner’s Consultants (if any), and Construction Manager. As the
Work proceeds, the Project Schedule shall be updated by Construction Manager (with the approval of
the Owner) as frequently as required to indicate proposed activity sequences and durations,
milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed
Maximum Price proposal, preparation and processing of shop drawings and samples, delivery of
materials or equipment requiring long-lead-time procurement, Owner’s occupancy requirements showing
portions of the Project having occupancy priority, and proposed date of Substantial Completion. If
any Project Schedule update indicates that previously approved schedules may not be met, the
Construction Manager shall promptly make appropriate recommendations to the Owner and Architect.




§ 2.1.4 PHASED CONSTRUCTION



The Construction Manager shall make recommendations to the Owner and Architect regarding the phased
issuance of Drawings and Specifications to facilitate phased construction of the Work, if the
Owner, Architect and Construction Manager reasonably agree that such phased construction is
appropriate for the Project, taking into consideration such factors as economies, time of
performance, availability of labor and materials, and provisions for temporary facilities.




§ 2.1.5 PRELIMINARY COST ESTIMATES



§ 2.1.5.1 When the Project requirements have been sufficiently identified and the Architect has
prepared other basic design criteria, as necessary, the Construction Manager shall prepare, for the
review of the Architect and written approval of the Owner, a preliminary cost estimate utilizing
area, volume or similar conceptual estimating techniques. In addition, the Construction Manager
shall provide cost evaluations of alternative materials and systems. The Construction Manager
shall prepare and review with the Owner and the Architect a construction budget (the “Budget”)
based on current area, volume, or other unit costs and allocated on a line-item. As a preliminary
Budget, the Owner and Construction Manager have established
Thirty-Eight Million Dollars ($38,000,000),
to be allocated on a line-item basis as determined by Owner from time to time. The Construction
Manager shall use its best efforts in consulting with the Architect and Owner regarding the design
of the Project to keep the total of all costs in connection with the Project



 




AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




	User Notes:
genitope-x1construction-a121	 	(1638431218)






4









 







within budget and the costs
of each line-item below the amounts allocated thereto in the then current Budget. Further, the
Budget shall be amended from time-to-time by Construction Manager to include Owner-approved
changes, if any.



§ 2.1.5.2 When Schematic Design Documents have been prepared by the Architect and approved by the
Owner, the Construction Manager shall prepare, for the review of the Architect and approval of the
Owner, a more detailed estimate of the total of the Cost of the Work, which detailed estimate shall
include supporting data and comparative analysis against the Budget and the line items set forth
therein. As required by the Owner at appropriate intervals in the progress of the Schematic Design
Phase, the Construction Manager shall cause the Architect to provide schematic design studies for
review and written approval by the Owner and Construction Manager. During the preparation of the
Design Development Documents, the Construction Manager shall update and refine such estimate at
appropriate intervals agreed to by the Owner, Architect and Construction Manager. Throughout the
development of the Schematic Design Documents, Construction Manager shall regularly update the
Budget and Project Schedule as mutually agreed upon by Owner and Construction Manager.



§ 2.1.5.3 When Design Development Documents have been prepared by the Architect and approved by the
Owner, the Construction Manager shall prepare a detailed estimate of the total of all costs in
connection with the Project, which detailed estimate shall include supporting data and comparative
analysis against the Budget and the line items set forth therein for review by the Architect and
written approval by the Owner. During the preparation of the Construction Documents, the
Construction Manager shall update and refine this estimate at appropriate intervals agreed to by
the Owner, Architect and Construction Manager. Throughout the development of the Design
Development Documents, Construction Manager shall regularly update the Budget and Project Schedule
as mutually agreed upon by Owner and Construction Manager.



§ 2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the
Budget, the Construction Manager shall promptly make appropriate recommendations to the Owner and
Architect.



§ 2.1.5.5 The Construction Manager shall assist the Owner and Architect during funding activities
in gathering and preparation of information on development costs, site analysis, interim and/or
construction funding, and permanent or long-term funding. Construction Manager’s services to
support funding would include preparation of conceptual and construction cost estimates, as
requested by the Owner.




§ 2.1.6 SUBCONTRACTORS AND SUPPLIERS



The Construction Manager shall develop subcontractor interest in the Project and shall furnish to
the Owner and Architect for their reasonable approval a list of possible subcontractors, including
suppliers who are to furnish materials or equipment fabricated to a special design, from whom
proposals will be requested for each principal portion of the Work. The Owner or Architect will
promptly reply in writing to the Construction Manager if the Architect, Owner or Landlord object to
any such subcontractor or supplier. The receipt and/or approval of such list shall not require the
Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor
shall it waive the right of the Owner, Landlord or Architect later to object to or reject any
proposed subcontractor or supplier.




§ 2.1.7 LONG-LEAD-TIME ITEMS



The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of
long-lead-time items which will constitute part of the Work as required to meet the Project
schedule. With the Owner’s prior written approval, the Construction Manager shall expedite the
delivery of all such long-lead-time items.




§ 2.1.8 EXTENT OF RESPONSIBILITY



The Construction Manager does not warrant or guarantee estimates and estimated schedules except as
may be included as part of the Guaranteed Maximum Price and the final approved Project Schedule.
The recommendations and advice of the Construction Manager concerning design alternatives shall be
subject to the review and written approval of the Owner and the Owner’s professional consultants.
It is not the Construction Manager’s responsibility to ascertain that the Drawings and
Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules
and regulations. However, if the Construction Manager recognizes that portions of the Drawings and
Specifications are at variance therewith, the Construction Manager shall promptly notify the
Architect and Owner in writing of any variance between the Drawings and Specifications and any
applicable laws, statutes, ordinances, building codes, rules and/or regulations (collectively, the
“Applicable Laws”) of which it is aware.



 




AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.





	User Notes:
genitope-x1construction-a121	 	(1638431218)





5









 








§ 2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION



The Construction Manager shall comply with Applicable Laws, regulations and special requirements of
the Contract Documents regarding equal employment opportunity and affirmative action programs.




§ 2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME



§ 2.2.1 The Construction Manager’s Guaranteed Maximum Price for the Work, including the estimated
Cost of the Work as defined in Article 6 of this Agreement and the Construction Manager’s Fee as
defined in Article 5 of this Agreement, shall be agreed to by the parties within twenty-one (21)
days after Construction Manager’s receipt of Construction Documents for the Work that are at least
ninety percent (90%) complete and have been approved by Owner, subject to additions and deductions
by Change Order as provided in the Contract Documents. The parties’ agreement upon the Guaranteed
Maximum Price (and the Contract Time) shall be set forth in the A121 Amendment which shall be
executed by the parties as required under Section 1.3(ii), above and shall be incorporated herein.



§ 2.2.2 If the Drawings and Specifications are not finished at the time the Guaranteed Maximum
Price proposal is prepared (and the A121 Amendment is executed), the Construction Manager may, with
the approval of Owner, reasonably provide in the Guaranteed Maximum Price for further development
of the Drawings and Specifications by the Architect that is materially consistent with the Contract
Documents and reasonably inferable therefrom. Such further development shall not include such
things as material changes in scope, systems, kinds and quality of materials, finishes or
equipment, all of which, if required, shall be incorporated by Change Order pursuant to the terms
of the Contract Documents.



§ 2.2.3 CONSTRUCTION MANAGER’S CONTINGENCY. The Construction Manager’s “Contingency” for
unforeseen items as of the establishment of the GMP, if any, shall not exceed four percent (4%) of
the Cost of the Work, the precise percentage of which shall be set at the time the GMP is
established subject to the foregoing limitation. The Construction Manager shall obtain Owner’s
reasonable approval in writing prior to any proposed single or cumulative allocation of Contingency
(which approval by Owner shall be given or denied within a reasonable time not to exceed five (5)
days) and shall supply Owner with detailed information and backup related to such proposed use of
the Contingency. Further, the Construction Manager shall provide Owner, on a weekly basis, an
updated summary report of all Contingency amounts expended for the Project. The Contingency may
not be used for (1) cost overruns where costs projected by Construction Manager for specified items
not otherwise added to the Work by Change Order prove to be inadequate; (3) items allowed under
Paragraph 7 (Changes) of the General Conditions; and (4) amounts in excess of the GMP. Subject to
Owner’s prior-written approval and the foregoing limitations, the Contactor may use the Contingency
for the following items:





(A) conditions or events not foreseen or known to the Construction Manager at the time the
GMP was agreed upon by the parties;




(B) gaps in the Construction Manager’s or Subcontractor’s Scope of Work which were not
foreseen or known to the Construction Manager during the performance of the pre-construction
services, if any, or at the time the GMP was agreed to by the parties;




(C) non-compensable delays which were not foreseen or known to the Construction Manager
during the performance of the pre-construction services, if any, or at the time the GMP was
agreed to by the parties (except the Construction Manager may not use Contingency for
Weather Days unless the number of Weather Days per year, as agreed to herein by the parties,
are exceeded). However, compensation for delays shall only include compensation for actual
delay costs and not consequential, estimated or speculative costs;




(D) omissions by the Construction Manager not caused by the willful misconduct of the
Construction Manager covering erroneous or omitted items that Owner would have paid for as a
Cost of the Work had such items been included in the Contract Documents or reasonably
inferable therein (“Missed Items”). The cost of each such Missed Item shall be the cost had
the Missed Item been competitively bid at the commencement of the Project rather than the
cost incurred when the Missed Item is undertaken during the construction phase which cost
shall be subject to adjustment as provided hereinbelow. The Construction Manager shall bear
the burden of demonstrating what the competitive cost of each such Missed Item would have
been at the commencement of the Project. Further, the cost of any Missed Item shall not
include consequential costs or damages, such as removal and replacement of work necessitated
by any Missed Item, changes in sequence or overtime; and



 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)







6









 









(E) cost overruns on Allowance Items otherwise includable in the Cost of the Work pursuant
to the Contract Documents.


Notwithstanding anything to the contrary contained herein, all Missed Items shall be performed in
sequence and timing necessary to maintain the Project Schedule and Owner and Construction Manager
shall discuss the use of any
remaining Contingency funds toward such costs on a case-by-case basis. In determining the
appropriate amount, if any, of remaining Contingency funds to be used toward the costs of Missed
Items determined pursuant to the method of calculation described in Paragraph (D) above, where
applicable, due consideration shall be given to the fact that, had the Owner been informed by
Construction Manager of certain Missed Items at the commencement of the Project, Owner may have
elected to choose an alternate course of action whereby the need for such items or certain portions
thereof may have been avoided or the costs of such items could have been reduced or mitigated
entirely.



The parties shall mutually agree upon a Contingency Allocation Form to allocate funds in and out of
the Construction Manager’s Contingency. All use of Contingency funds must be approved in writing
by Owner in advance. Any Contingency remaining upon Substantial Completion of the Work shall
accrue to Owner.




§ 2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE



The Construction Manager shall include with the Guaranteed Maximum Price proposal a written
statement of its basis, which shall include, in detail, the following:





	 	.1	 	A list of the Drawings and Specifications, including all addenda thereto and
the Conditions of the Contract, which were used in preparation of the Guaranteed
Maximum Price proposal.
	 
	 	.2	 	A list of allowances and a statement of their basis.
	 
	 	.3	 	A list of the clarifications and assumptions made by the Construction Manager
in the preparation of the Guaranteed Maximum Price proposal to supplement the
information contained in the Drawings and Specifications.
	 
	 	.4	 	The proposed Guaranteed Maximum Price, including a statement of the estimated
cost organized by trade categories, allowances, contingency, and other items and the
Fee that comprise the Guaranteed Maximum Price.
	 
	 	.5	 	The proposed Project Schedule will be increased on a day-for-day basis by
Change Order for any unforeseeable and actual time lost due to inclement weather in
excess of such anticipated number of days. In connection with the foregoing,
Construction Manager hereby acknowledges that the target date of substantial completion
of the Project is as provided in the Project Schedule and that such target date is a
reasonable date based on the facts presently known and Contract Documents provided to
Construction Manager to date.
	 
	 	.6	 	Such other information as Owner may reasonably require.




§ 2.2.5 If requested by the Owner, the Construction Manager shall meet with the Owner and Architect
to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the
event that the Owner or Architect discover any inconsistencies or inaccuracies in the information
presented, the Owner shall have the right to notify the Construction Manager and require the
Construction Manager to make appropriate adjustments to the Guaranteed Maximum Price proposal, its
basis, or both.



§ 2.2.6 If the proposal is acceptable, the Owner shall accept the Guaranteed Maximum Price proposal
and notify the Construction Manager of its acceptance.



§ 2.2.7 Prior to the Owner’s acceptance of the Construction Manager’s Guaranteed Maximum Price
proposal, the Construction Manager may commence with portions of the Work as authorized by Owner in
writing. The approved costs for such portions of the Work which are authorized by Owner to
commence prior to establishment of the GMP shall be guaranteed and shall be used in establishing
the GMP. Except pursuant to the foregoing, Construction Manager shall not incur any other costs to
be reimbursed as part of the Cost of the Work, except as the Owner may specifically authorize in
writing.



§ 2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed
Maximum Price and the Contract Time shall be set forth in the A121 Amendment, which will then be
executed by the parties and attached hereto and incorporate herein. The Guaranteed Maximum Price
shall be subject to additions and deductions by a change in the Work as provided in the Contract
Documents, and the Date of Substantial Completion shall be subject to adjustment as provided in the
Contract Documents.




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)







7









 







§ 2.2.9 The Owner shall authorize and require the Architect to revise the Drawings and
Specifications to the extent reasonably necessary to reflect the agreed-upon assumptions and
clarifications contained in or attached to the A121 Amendment. Such revised Drawings and
Specifications shall be furnished to the Construction Manager in accordance with schedules
reasonably agreed to by the Owner, Architect and Construction Manager. The Construction Manager
shall promptly notify the Architect and Owner if such revised Drawings and Specifications are
inconsistent with the agreed-upon assumptions and clarifications.



§ 2.2.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which
are enacted at the time the Guaranteed Maximum Price is established.




§ 2.3 CONSTRUCTION PHASE



§ 2.3.1 GENERAL



§ 2.3.1.1 The Construction Phase shall commence on the earlier of:





	 	(1)	 	the Owner’s written acceptance of the Construction Manager’s Guaranteed Maximum
Price proposal and issuance of a Notice to Proceed, or
	 
	 	(2)	 	the Owner’s first authorization in writing to the Construction Manager to:






	 	(a)	 	award a subcontract, or
	 
	 	(b)	 	undertake construction Work with the Construction Manager’s own
forces,
	 
	 	(c)	 	issue a purchase order for materials or equipment required for the
Work,
	 
	 	(d)	 	issuance by Owner of authorization for Construction Manager to
commence portions of the Work pursuant to Subparagraph 2.2.7, above.





§ 2.3.2 ADMINISTRATION



§ 2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform
with the Construction Manager’s own personnel shall be performed under subcontracts or by other
appropriate agreements with the Construction Manager, which subcontracts and/or agreements shall be
subject to Owner’s reasonable review and approval and shall fulfill Owner’s requirements
(specifically as it relates to insurance and indemnification). The Construction Manager shall
obtain bids from Subcontractors and from suppliers of materials or equipment fabricated to a
special design for the Work from the list previously reviewed and, after analyzing such bids, shall
deliver such bids to the Owner and Architect. The Owner will then determine, with the advice of
the Construction Manager and subject to the reasonable objection of the Architect, which bids will
be accepted. The Owner may designate specific persons or entities from whom the Construction
Manager shall obtain bids; however, if the Guaranteed Maximum Price has been established, the Owner
may not prohibit the Construction Manager from obtaining bids from other qualified bidders to which
Owner has not made a reasonable objection. The Construction Manager shall not be required to
contract with anyone to whom the Construction Manager has reasonable objection. Unless otherwise
agreed to in writing by Owner, Construction Manager shall competitively bid each trade to not less
than three (3) qualified Subcontractors.



Except as otherwise agreed in writing by both parties hereto, the Construction Manager must
competitively bid any trade Work that the Construction Manager wishes to perform with the
Construction Manager’s own forces, or through an Affiliate (as defined below), and shall obtain no
less than two (2) additional responsive bids from responsible Subcontractors acceptable to the
Owner. The Construction Manager, or an Affiliate, shall be permitted to perform such trade Work
only if (i) the Owner consents thereto in writing after full disclosure in writing by the
Construction Manager to the Owner of the affiliation or relationship of Affiliate to the
Construction Manager and (ii) the Owner approves in writing any subcontract, contract, purchase
order, agreement, or other arrangement between the Construction Manager and such Affiliate in form
and substance. The term “Affiliate” is hereby deemed to mean any entity related to or affiliated
with the Construction Manager or in which the Construction Manager has direct or indirect ownership
or control, including, without limitation, (i) any entity owned in whole or in part by the
Construction Manager; (ii) any entity with more than a fifty-one percent (51%) interest in the
Construction Manager; and (iii) any entity in which any officer, director, employee, partner, or
shareholder of the Construction Manager, or any Affiliate, has a direct or indirect interest.



§ 2.3.2.2 If the Guaranteed Maximum Price has been established and a specific bidder among those
whose bids are delivered by the Construction Manager to the Owner and Architect (1) is recommended
to the Owner by the Construction Manager; (2) is reasonably qualified to perform that portion of
the Work; and (3) has submitted a bid which conforms to all of the material requirements of the
Contract Documents, but the Owner requires that another bid be accepted, then the Construction
Manager may upon notice to Owner prior to the awarding of such subcontract, require that a change
in the Work be issued to adjust the Contract Time and the Guaranteed Maximum Price by the
difference, if




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)







8









 







any, between the bid of the person or entity recommended to the Owner by the
Construction Manager and the amount of the subcontract or other agreement actually signed with the
person or entity designated by the Owner; provided, however, upon receipt of notice of such
difference from Construction Manager, Owner shall have the option to reconsider and select,
instead, the prior bid recommended by Construction Manager however the Contract Time may be
adjusted to the extent of any delays caused by such actions by Owner pursuant to the foregoing.



§ 2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated
to a special design shall conform to the payment provisions of Sections 7.1.8 and 7.1.9 and shall
not be awarded on the basis of cost plus a fee without the prior written consent of the Owner.



§ 2.3.2.4 The Construction Manager shall schedule and conduct meetings at which the Owner,
Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work.
The Construction Manager shall prepare and promptly distribute meeting minutes.



§ 2.3.2.5 Promptly after the Owner’s acceptance of the Guaranteed Maximum Price proposal, the
Construction Manager shall prepare a schedule in accordance with Section 3.10 of the General
Conditions, including the Owner’s occupancy requirements.



§ 2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner and Architect
on the progress of the entire Work. The Construction Manager shall maintain a daily log containing
a record of weather, Subcontractors working on the site, number of workers, Work accomplished,
problems encountered and other relevant data as the Owner may reasonably require. The log shall be
reasonably and readily available to the Owner and Architect.



§ 2.3.2.7 The Construction Manager shall develop a system of cost control for the Work, including
regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks
and proposed changes. The Construction Manager shall identify variances between actual and
estimated costs and report the variances to the Owner and Architect at regular intervals or as more
frequently as may be required by Owner.




§ 2.4 PROFESSIONAL SERVICES



The Construction Manager shall not be required to provide professional services which constitute
the practice of architecture or engineering, unless such services are specifically required by the
Contract Documents for a portion of the Work or unless the Construction Manager has specifically
agreed in writing to provide such services. In such event, the Construction Manager shall cause
such services to be performed by appropriately licensed professionals reasonably approved in
advance and in writing by Owner.




§ 2.5 UNSAFE MATERIALS



In addition to the provisions of Paragraph 10.1 in the General Conditions, if reasonable
precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting
from a material or substance encountered but not created on the site by the Construction Manager, a
Subcontractor or anyone for whom either is responsible, the Construction Manager shall, upon
recognizing the condition, immediately stop Work in the affected area and promptly report the
condition to the Owner and Architect in writing. The Owner, Construction Manager and Architect
shall then proceed in the same manner described in Section 10.3 of the General Conditions.




§ 2.6 COORDINATION WITH LANDLORD



Construction Manager hereby acknowledges that pursuant to the Landlord/Tenant Construction
Agreement and that certain Lease Agreement dated May 16, 2005 (the “Lease Agreement”), between
Landlord and Owner (to which such Landlord/Tenant Construction Agreement relates), Landlord has
certain review, input and approval rights in connection with the design and construction of the
Project. Notwithstanding any contrary provisions contained in this Agreement, the A121 Amendment,
the General Conditions or any Construction Documents, the Contract Documents shall be subject to
the terms and conditions set forth in the Lease Agreement and the Landlord/Tenant Construction
Agreement and Landlord’s rights thereunder. In connection with the foregoing, Construction Manager
hereby agrees that Construction Manager shall cooperate with and assist the Owner and Architect in
obtaining any and all required Landlord approvals with respect the Project design and/or
construction. If required by Landlord, Construction Manager shall, after providing prior notice to
Owner, allow Landlord access to the Project site as needed for Landlord’s review and/or inspection
of the Work being performed therein. Landlord has designated John Arrillaga as its sole
representative with respect to the matters set forth in the Landlord/Tenant Construction Agreement,
and such representative (until further notice to




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)







9









 







Construction Manager) shall have full authority
and responsibility to act on behalf of the Landlord in connection with such matters.




ARTICLE 3 OWNER’S RESPONSIBILITIES



§ 3.1 INFORMATION AND SERVICES



§ 3.1.1 The Owner shall provide reasonably sufficient information in a timely manner regarding the
requirements of the Project, including a program which sets forth the Owner’s objectives,
constraints and criteria, including space requirements and relationships, flexibility and
expandability requirements, special equipment and systems, and site requirements.



§ 3.1.2 The Owner, upon reasonably prior written request from the Construction Manager, shall
furnish evidence of Project financing prior to the start of the Construction Phase and at
reasonable intervals thereafter as the Construction Manager may reasonably request.



§ 3.1.3 Intentionally deleted.




§ 3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS



The Owner has furnished Construction Manager with copies of the items listed below in Sections
3.1.4.1 through 3.1.4.4. Except to the extent that the Construction Manager knows of any
inaccuracy, the Construction Manager shall be entitled to reasonably
rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Sections 3.1.4.1 through
3.1.4.4, below, but shall exercise customary precautions relating to the performance of the Work.
Construction Manager shall inform Owner, in a timely manner, if any additional information,
reports, surveys, drawings or tests are required for the performance of the Work.



§ 3.1.4.1 Reports, surveys, drawings and tests, if any, concerning the conditions of the site which
are required by law.



§ 3.1.4.2 Surveys describing physical characteristics, legal limitations and utility locations for
the site of the Project, and a written legal description of the site. The surveys and legal
information shall include, as applicable, grades and lines of streets, alleys, pavements and
adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements,
encroachments, zoning, deed restrictions, boundaries and contours of the site; locations,
dimensions and necessary data pertaining to existing buildings, other improvements and trees; and
information concerning available utility services and lines, both public and private, above and
below grade, including inverts and depths. All information on the survey shall be referenced to a
project benchmark.



§ 3.1.4.3 Intentionally deleted..



§ 3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous
materials, and other laboratory and environmental tests, inspections and reports, if any, which are
required by law.



§ 3.1.4.5 The services of the Owner’s Consultants when such services are reasonably required by the
scope of the Project and are reasonably requested by the Construction Manager.




§ 3.2 OWNER’S DESIGNATED REPRESENTATIVE



The Owner has designated Claude Miller as the “Owner’s Representative”. The Owner’s Representative
is authorized to act on behalf of and in the name of Owner in connection with the Project, provided
that the Owner may from time to time designate a different Owner’s Representative. In addition,
the Owner’s Representative shall have the authority to make decisions on behalf of the Owner
concerning estimates and schedules, construction budgets, and changes in the Work, and shall render
such decisions in a timely manner and furnish information expeditiously, so as to avoid
unreasonable delay in the services or Work of the Construction Manager. Except as otherwise
provided in Section 4.2.1 of the General Conditions, the Architect does not have such authority.




§ 3.3 ARCHITECT



The Owner has retained the Architect to provide certain services in connection with the Project as
is further set forth in the Owner/Architect Agreement dated May 10, 2005 between Owner and
Architect. The Owner shall authorize and instruct the Architect to provide other services
reasonably requested by the Construction Manager which must necessarily be provided by the
Architect for the Preconstruction and Construction Phases of the Work. Such services shall be
provided in accordance with time schedules reasonably agreed to by the Owner, Architect and
Construction




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)







10









 







Manager.
If requested of the Construction Manager, the Owner shall furnish to the
Construction Manager a copy of the Owner’s Agreement with the Architect, from which compensation
provisions may be deleted.




ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES



The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase
services as follows:




§ 4.1 COMPENSATION



§ 4.1.1 For the services described in Sections 2.1 and 2.2, above, the Construction Manager’s
compensation shall be as approved by Owner per a separate written agreement.



§ 4.1.2 Intentionally Deleted.



§ 4.1.3 If compensation is based on a multiple of Direct Personnel Expense, Direct Personnel
Expense is defined as the direct salaries of the Construction Manager’s personnel engaged in the
Project and the portion of the cost of their mandatory and customary contributions and benefits
related thereto, such as employment taxes and other statutory employee benefits, insurance, sick
leave, holidays, vacations, pensions and similar contributions and benefits.



§ 4.2 PAYMENTS



§ 4.2.1 Payments shall be made monthly following presentation of the Construction Manager’s invoice
as further provided in Article 7, below.



§ 4.2.2 Amounts due, undisputed and unpaid under Article 7 below shall bear interest from and after
the date which is thirty (30) days from the date such amount is first overdue at the rate entered
below.



The lesser of (i) an interest rate initially equal to six percent (6%) per annum but adjusted
quarterly on a pro-rata basis to the extent of any net changes in the Union Bank stated “Prime”
interest rate over the same period, or (ii) the highest rate permitted by Applicable Law.




ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES



The Owner shall compensate the Construction Manager for Construction Phase services as follows:




§ 5.1 COMPENSATION



§ 5.1.1 For the Construction Manager’s performance of the Work as described in Section 2.3 of this
Agreement, the Owner shall pay the Construction Manager in current funds the Contract Sum
consisting of the Cost of the Work as defined in Article 7 and the Construction Manager’s Fee
determined as follows:



The Construction Manager’s Fee, except as it may be limited by the Guaranteed Maximum Price, shall
be equal to One and Nine-Tenths percent (1.9%) of that portion of the Cost of the Work that is
incurred by the Construction Manager. For changes in the Work, the rate of the Construction
Manager’s Fee shall not be adjusted and shall remain equal to One and Nine-Tenths percent (1.9%) of
the Cost of the Work directly attributable to any such change that is incurred or paid by the
Construction Manager during performance of the Work. Consequently, the total amount earned by the
Construction Manager as the Construction Manager’s Fee may increase or decrease depending upon the
nature of any changes in the Work but the basis of the Construction Manager’s Fee shall always
remain One and Nine-Tenths percent (1.9%).




§ 5.2 GUARANTEED MAXIMUM PRICE



§ 5.2.1 The sum of the Cost of the Work and the Construction Manager’s Fee are guaranteed by the
Construction Manager not to exceed the amount to be set forth in the executed A121 Amendment,
subject to additions and deductions by changes in the Work to the extent permitted in the Contract
Documents. Such maximum sum as adjusted by approved and permitted changes in the Work, if any, is
sometimes referred to in the Contract Documents as either the “Guaranteed Maximum Price” or the
“GMP”. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the
Construction Manager without reimbursement by the Owner.




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
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11









 








§ 5.3 CHANGES IN THE WORK



§ 5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to
the execution of A121 Amendment may be determined by any of the methods listed in Section 7.3.3 the
General Conditions.



§ 5.3.2 The Construction Managers’s Fee for changes in the Work shall be calculated in accordance
with the provisions of Subparagraph 5.1.1 of this Agreement. In calculating adjustments to
subcontracts (except those awarded with the Owner’s prior consent on the basis of cost plus a fee),
the terms “cost” and “fee” as used in Section 7.3.3.3 of the General Conditions and the terms
“costs” and “a reasonable allowance for overhead and profit” as used in Section 7.3.6 of the
General Conditions shall have the meanings assigned to them in the General Conditions and shall not
be modified by Articles 5 and 6 of this Agreement. Adjustments to subcontracts awarded with the
Owner’s prior consent on the basis of cost plus a fee shall be calculated in accordance with the
terms of this Agreement, unless the Owner has furnished the Construction Manager with prior written
approval of the form and substance of a subcontract, in which case such adjustments shall be
calculated in accordance with the terms and conditions of that subcontract.



§ 5.3.3 In calculating adjustments to the Contract, the terms “cost” and “costs” as used in the
above-referenced provisions of the General Conditions shall mean the actual Cost of the Work as
defined in Article 6 of this Agreement, and the term “and a reasonable allowance for overhead and
profit” shall mean the Construction Manager’s Fee as defined in Section 5.1.1 of this Agreement.



§ 5.3.4 Intentionally deleted.




ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE



§ 6.1 COSTS TO BE REIMBURSED



§ 6.1.1 The term “Cost of the Work” shall mean reasonable and actual costs necessarily incurred by
the Construction Manager in the proper performance of the Work. Such costs shall be at rates not
higher than those customarily paid at the place of the Project except with prior written consent of
the Owner. The Cost of the Work shall include only the items set forth in this Article 6. Costs
as defined herein shall be actual costs paid by the Construction Manager, less all discounts,
rebates, and salvages that shall be taken by the Construction Manager, subject to Paragraph 6.3 of
this Agreement. All payments made by the Owner pursuant to this Article 6, whether those payments
are actually made before or after the execution of the Contract, are included within the Guaranteed
Maximum Price. Notwithstanding the breakdown or categorization of any costs to be reimbursed in
this Article 6 or elsewhere in the Contract Documents, there shall be no duplication of payment in
the event any particular items for which payment is requested can be characterized as falling into
more than one of the types of compensable or reimbursable categories.




§ 6.1.2 LABOR COSTS





	 	.1	 	Wages of construction workers directly employed by the Construction Manager to
perform the construction of the Work at the site or, with the Owner’s agreement, at
off-site workshops. The hourly rates charged for such workers shall be as previously
provided by Construction Manager and approved by the Owner.
	 
	 	.2	 	Wages or salaries of the Construction Manager’s supervisory and administrative
personnel when stationed at the site or, not to exceed ten percent (10%) of the labor
cost for each individual working on the Project, in Construction Manager’s principal
office with the Owner’s prior approval (but only to the extent working in a material
manner on the Project).
	 
	 	.3	 	If approved in advance by the Owner, wages and salaries of the Construction
Manager’s supervisory or administrative personnel engaged, at factories, workshops or
on the road, in expediting the production or transportation of materials or equipment
required for the Work, but only for that portion of their time required for the Work.
	 
	 	.4	 	Costs paid or incurred by the Construction Manager for taxes, insurance,
contributions, assessments and benefits required by law or collective bargaining
agreements, and, for personnel not covered by such agreements, customary benefits such
as sick leave, medical and health benefits, holidays, vacations and pensions (but not
merit bonuses), provided that such costs are based on wages and salaries included in
the Cost of the Work under Subparagraphs 6.1.2.1 through 6.1.2.3 of this Agreement.





§ 6.1.3 SUBCONTRACT COSTS



Payments made by the Construction Manager to Subcontractors in accordance with the requirements of
the subcontracts properly entered into under this Agreement.




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
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§ 6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION





	 	.1	 	Costs, including transportation, of materials and equipment delivered to the
site and incorporated (or to be incorporated) in the completed construction.
	 
	 	.2	 	Costs of materials described in the preceding Subparagraph 6.1.4.1 of this
Agreement in excess of those actually installed but required to provide reasonable
allowance for waste and for spoilage. Unused excess materials, if any, shall be handed
over to the Owner at the completion of the Work and shall be properly stored at the
Project site in accordance with the Owner’s instructions or, at the Owner’s option,
shall be sold by the Construction Manager; amounts realized, if any, from such sales
shall be credited to the Owner as a deduction from the Cost of the Work.





§ 6.1.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS





	 	.1	 	Costs, including transportation, installation, maintenance, dismantling and
removal of materials, supplies, temporary facilities, machinery, equipment, and hand
tools not customarily owned by the construction workers, which are provided by the
Construction Manager at the site and fully consumed in the performance of the Work; and
cost less salvage value on such items if not fully consumed,
whether sold to others or retained by the Construction Manager. Cost for items
previously used by the Construction Manager shall mean fair market value.
	 
	 	.2	 	Rental charges of all necessary machinery and equipment, exclusive of hand
tools used at the site of the Work, whether rented from the Construction Manager or
others, including installation, minor repairs and replacements, dismantling, removal,
transportation, and delivery costs thereof. The aggregate amounts charged to the owner
for any such rental equipment shall not exceed seventy-five percent (75%) of the fair
market value. In the absence of any appropriate rental amount pursuant to the
foregoing, rental charges shall be consistent with those generally prevailing in the
location of the Project. The Construction Manager shall obtain bids for all machinery
and equipment to be rented from no less than two (2) responsible suppliers other than
the Construction Manager, determine which bid is to be accepted.
	 
	 	.3	 	Costs of removal of debris from the site.
	 
	 	.4	 	Reproduction costs, costs of telegrams, facsimile transmissions and
long-distance telephone calls, postage and express delivery charges, telephone at the
site and reasonable petty cash expenses of the site office.
	 
	 	.5	 	That portion of the reasonable travel and subsistence expenses of the
Construction Manager’s personnel incurred while traveling in discharge of duties
connected with the Work; provided, however, notwithstanding the foregoing, travel and
subsistence expenses for “out-of-the-area” travel and subsistence shall only be
included to the extent the same are approved in advance by the Owner.
	 
	 	.6	 	Costs of materials and equipment suitably stored at the site or off-site at a
mutually acceptable location, if approved in advance by the Owner.





§ 6.1.6 MISCELLANEOUS COSTS





	 	.1	 	That portion directly attributable to this Contract of (i) premiums for
insurance and bonds as required by the Contract and (ii) the fees payable to
Construction Manager for preconstruction services and/or work under Article 4;
provided, however, that such costs shall not be included in the cost of the Work for
purposes of calculating the Construction Manager’s Fee.
	 
	 	.2	 	Sales, use or similar taxes imposed by a governmental authority which are
related to the Work and for which the Construction Manager is liable.
	 
	 	.3	 	Fees and assessments for the building permit and for other permits, licenses
and inspections for which the Construction Manager is required by the Contract
Documents to pay.
	 
	 	.4	 	Fees of testing laboratories for tests required by the Contract Documents,
except those related to nonconforming Work other than that for which payment is
permitted by Subparagraph 6.1.8.2 of the General Conditions or other provisions of the
Contract Documents.
	 
	 	.5	 	Royalties and license fees paid for the use of a particular design, process or
product required by the Contract Documents; payments made in accordance with legal
judgments against the Construction Manager resulting therefrom ; provided, however,
that such costs of judgment and settlements shall not be included in the calculation of
the Construction Manager’s Fee or the Guaranteed Maximum Price and provided that such
royalties, fees and costs are not excluded by the last sentence of Section 3.17.1 of
General Conditions or other provisions of the Contract Documents.
	 
	 	.6	 	Data processing costs related to the Work.
	 
	 	.7	 	Deposits lost for causes other than the Construction Manager’s negligence or
failure to fulfill a specific responsibility to the Owner set forth in the Contract
Documents.





 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)






13









 









	 	.8	 	Legal, mediation and arbitration costs, including attorneys’ fees, other than
those arising from disputes between the Owner and Construction Manager, reasonably
incurred by the Construction Manager in the performance of the Work and with the
Owner’s written approval, which approval shall not be unreasonably withheld.
	 
	 	.9	 	Expenses incurred in accordance with Construction Manager’s standard personnel
policy for relocation and temporary living allowances of personnel required for the
Work, if approved in advance by the Owner.





§ 6.1.7 OTHER COSTS





	 	.1	 	Other costs incurred in the performance of the Work if and to the extent
approved in advance in writing by the Owner, to the extent not (i) caused by the
Construction Manager, a Subcontractor, or anyone for whom either is responsible or (ii)
capable of being prevented through timely notice of an unsafe condition to the Owner.
	 
	 	.2	 	The Guaranteed Maximum Price shall include a Construction Manager contingency
line item which is intended to cover gaps in the bidding process, including
bankruptcies of Subcontractors, claims by Subcontractors, and acceleration if the Work
falls behind schedule through no fault of the Owner,
overruns of the Construction Manager’s General Conditions, and errors or negligence of
the Construction Manager or any party for which Construction Manager is liable under
the Contract Documents. Utilization of the Construction Manager Contingency shall be
under the direction of the Construction Manager, provided the Construction Manager
gives notice to the Owner in the monthly pay applications of its utilization of such
contingency funds, and the monies so utilized fall within the definition of Cost of
Work items as described in Article 6 hereof.





§ 6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK



The Cost of the Work shall also include costs described in Section 6.1.1 which are incurred by the
Construction Manager:





	 	.1	 	Costs due to emergencies incurred in taking action to prevent threatened
damage, injury or loss in case of an emergency affecting the safety of persons and
property, as provided in Section 10.6 of the General Conditions.
	 
	 	.2	 	Costs of repairing or correcting damaged or nonconforming Work executed by the
Construction Manager or the Construction Manager’s Subcontractors or suppliers,
provided that such damaged or nonconforming Work was not caused by the negligence or
failure to fulfill a specific responsibility of the Construction Manager and only to
the extent that the cost of repair or correction is not recoverable by the Construction
Manager from insurance, Subcontractors or suppliers provided that any absence of
collectible insurance is not due to the Construction Manager’s breach of a Contract for
insurance.




§ 6.1.9 The costs described in Sections 6.1.1 through 6.1.8 shall be included in the Cost of the
Work notwithstanding any provision of the General Conditions or other express Conditions of the
Contract which may require the Construction Manager to pay such costs, unless such costs are
excluded by the provisions of Section 6.2, below.




§ 6.2 COSTS NOT TO BE REIMBURSED



§ 6.2.1 The Cost of the Work shall not include:





	 	.1	 	Salaries and other compensation of the Construction Manager’s personnel
stationed at the Construction Manager’s principal office or offices other than the site
office, except as specifically provided in Sections 6.1.2.2 and 6.1.2.3 of this
Agreement.
	 
	 	.2	 	Expenses of the Construction Manager’s principal office and offices other than
the site office, except as specifically provided in Section 6.1.
	 
	 	.3	 	Overhead and general expenses, except as may be expressly included in Section
6.1 of this Agreement.
	 
	 	.4	 	The Construction Manager’s capital expenses, including interest on the
Construction Manager’s capital employed for the Work.
	 
	 	.5	 	Rental costs of machinery and equipment, except as specifically provided in
Section 6.1.5.2 of this Agreement.
	 
	 	.6	 	Except as provided in Section 6.1.8.2 of this Agreement, costs due to the
negligence of the Construction Manager or to the failure of the Construction Manger,
Subcontractors or suppliers or anyone directly or indirectly employed by any of them or
for whose acts any of them may be liable.





 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
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14









 









	 	.7	 	Costs incurred in the performance of Preconstruction Phase Services (although
the parties acknowledge and agree that Construction Manager shall be paid for
Preconstruction Phase Services pursuant to the terms of Article 4 of this
Agreement).
	 
	 	.8	 	Except as provided in Section 6.1.7.1, any cost not specifically and expressly
described in Section 6.1.
	 
	 	.9	 	Costs, other than costs included in Change Orders approved by the Owner, which
would cause the Guaranteed Maximum Price to be exceeded.





§ 6.3 DISCOUNTS, REBATES AND REFUNDS



§ 6.3.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the
Owner if (1) before making the payment, the Construction Manager included them in an Application
for Payment and received payment therefor from the Owner, or (2) the Owner has deposited funds with
the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the
Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus
materials and equipment and rebates, dividends and retrospective adjustments on all insurance
policies shall accrue to the Owner, and the Construction Manager shall make provisions so that they
can be secured.



The Construction Manager shall not obtain for its own benefit any discounts, rebates, or refunds in
connection with the Work totaling $10,000.00 or more prior to providing the Owner with seven (7)
days’ prior written notice of the
potential discount, rebate, or refund and an opportunity to furnish funds necessary to obtain such
discount, rebate, or refund on behalf of the Owner in accordance with the requirements of this
Subparagraph 6.3.1. In the event of any such discounts, rebates or refunds, the Owner shall have
the right to require a proportionate reduction of the agreed upon GMP or to capitalize such amounts
for savings.



In addition, the Construction Manager shall endeavor to combine material and equipment requirements
and take such other steps as are necessary to permit the obtaining of all material and equipment at
the best possible prices through volume purchasing. All proceeds from the sale of surplus
materials and equipment, refunds of or credits on insurance premiums and all sums the Construction
Manager is permitted to retain from remittances to the State of California (hereinafter the
“State”) or any other governmental entity or agency, whether federal, state, or local, for sales
tax applicable to procurement of material and equipment shall accrue to the Owner’s account and
shall be credited to the Guaranteed Maximum Price. The Construction Manager shall make such
provisions and take such steps as are necessary so that such discounts, rebates, refunds, proceeds
and sums are secured to the fullest possible extent. The Construction Manager agrees to use all
commercially reasonable efforts to procure services and materials from local suppliers in the
locality of the project site, to the extent necessary to maximize tax relief and benefits from
local governmental entities.



§ 6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Section 6.3.1 of
this Agreement shall be credited to the Owner as a deduction from the Cost of the Work.




§ 6.4 ACCOUNTING RECORDS



§ 6.4.1 The Construction Manager 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 Construction Manager’s records, books, correspondence, instructions,
drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to
this Project, and the Construction Manager shall preserve these for a period of three years after
final payment, or for such longer period as may be required by law. All records shall be
maintained in accordance with generally accepted accounting procedures, consistently applied.
Subcontractors retained by the Construction Manager on a “cost-plus” basis shall have the same
obligations to retain records and cooperate with audits as are required of the Construction Manager
under this Subparagraph 6.4.1. If any inspection by the Owner of the Construction Manager’s
records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda, and any
other data relating to the Contract Documents reveals an overcharge, including, without limitation,
any untimely request for payment as described in Paragraph 7.1.1 below, the Construction Manager
shall pay the Owner upon demand an amount equal to one hundred fifteen percent (115%) of such
overcharge, as reimbursement for said overcharge and the administrative expenses incurred in
determining the overcharge. The requirements of this Subparagraph 6.4.1 shall not apply to any
portion of an overcharge that is the subject of a good-faith dispute between the Owner and the
Construction Manager.




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)





15









 









ARTICLE 7 CONSTRUCTION PHASE



§ 7.1 PROGRESS PAYMENTS



§ 7.1.1 The Construction Manager shall, by the fifth (5th) day of each month (“Current
Month”) deliver to the Owner an Application for Payment which shall (i) be on the AIA G702 form or
such other form acceptable to Owner and Owner’s construction lender, if any, (ii) be sworn to and
notarized, if required by Owner or Owner’s construction lender, and (iii) show in complete detail
(itemized by Subcontractor and Construction Manager’s own forces, if any) all monies paid out or
costs incurred by the Construction Manager on account of the Cost of the Work during the period
commencing on the first (1st) day of the month preceding the Current Month and ending on
the last day of said preceding month (“Payment Request Period”) for which the Construction Manager
is to be reimbursed under the terms of the Contract Documents and the amount of the Construction
Manager’s Fee due as provided in the Contract Documents, together with such supporting
documentation as may be required by the Owner, the Architect or any construction lender providing
financing in connection with the Work. Such supporting documentation shall include, without
limitation, copies of requisitions from Subcontractors, the items referred to in Paragraph 12.1.4
of this Agreement, and conditional waivers and releases of liens, stop notices and bond rights for
the current Application for Payment, from Construction Manager, all Subcontractors, and anyone
having liens rights, stop notice rights or rights against a bond for the Project, all of which
waivers and releases shall be in accordance with the provisions of California Civil Code Section
3262(d). The Application for Payment shall also be accompanied with any other information,
documentation, and materials as the Owner, Architect, construction lender or the title insurer may
require. In addition to the foregoing, each Application for Payment shall be accompanied by a duly
executed and acknowledged Construction Manager’s Sworn Statement showing all Subcontractors with
whom the Construction Manager has entered into subcontracts, the amount of each such subcontract,
the amount requested for any Subcontractor in the Application for Payment, and the amount to be
paid to the Construction Manager from such
progress payment, together with similar sworn statements from all Subcontractors and, where
appropriate, from lower tier subcontractor.



§ 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on
the last day of the month, or as follows:



§ 7.1.3 Provided an Application for Payment is received by the Architect not later than the 5th day
of a succeeding month, the Owner shall make payment to the Construction Manager not later than the
thirty (30) calendar days. If an Application for Payment is received by the Architect after the
application date fixed above, payment shall be made by the Owner not later than thirty-five (35)
days after the Architect receives the Application for Payment.



§ 7.1.4 With each Application for Payment, the Construction Manager shall submit payrolls, petty
cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence
required by the Owner to demonstrate that cash disbursements already made by the Construction
Manager on account of the Cost of the Work equal or exceed (1) progress payments already received
by the Construction Manager; less (2) that portion of those payments attributable to the
Construction Manager’s Fee; plus (3) payrolls for the period covered by the present Application for
Payment.



§ 7.1.5 Each Application for Payment shall be based upon the most recent schedule of values
submitted by the Construction Manager and approved by the Owner in accordance with the Contract
Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the
various portions of the Work, except that the Construction Manager’s Fee and costs of the Work
attributable to general conditions items shall be shown as a single separate item. The schedule of
values shall be prepared in such form and supported by such data to substantiate its accuracy as
the Owner may require. The schedule of values shall be used as a basis for reviewing the
Construction Manager’s Applications for Payment.



§ 7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work
as of the end of the period covered by the Application for Payment. The percentage completion
shall be the lesser of (1) the percentage of that portion of the Work which has actually been
completed or (2) the percentage obtained by dividing (a) the expense which has actually been
incurred by the Construction Manager on account of that portion of the Work for which the
Construction Manager has made or intends to make actual payment prior to the next Application for
Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in
the schedule of values.




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)





16









 







§ 7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment
shall be computed as follows:





	 	.1	 	Take that portion of the Guaranteed Maximum Price properly allocable to
completed Work as determined by multiplying the percentage completion of each portion
of the Work by the share of the Guaranteed Maximum Price allocated to that portion of
the Work in the schedule of values. Pending final determination of cost to the Owner
of changes in the Work, amounts not in dispute may be included as provided in Sections
7.37 and 7.3.8 of the General Conditions, even though the Guaranteed Maximum Price has
not yet been adjusted by Change Order.
	 
	 	.2	 	If approved by Owner, add that portion of the Guaranteed Maximum Price properly
allocable to materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work or, if approved in advance by the Owner, suitably
stored off the site at a location agreed upon in writing.
	 
	 	.3	 	Add the Construction Manager’s Fee. The Construction Manager’s Fee shall be
computed upon the Cost of the Work described in the two preceding Sections at the rate
stated in Section 5.1.1 or, if the Construction Manager’s Fee is stated as a fixed sum
in that Section, shall be an amount which bears the same ratio to that fixed-sum Fee as
the Cost of the Work in the two preceding Sections bears to a reasonable estimate of
the probable Cost of the Work upon its completion.
	 
	 	.4	 	Subtract the aggregate of previous payments made by the Owner.
	 
	 	.5	 	Subtract the shortfall, if any, indicated by the Construction Manager in the
documentation required by Section 7.1.4 of this Agreement to substantiate prior
Applications for Payment, or resulting from errors subsequently discovered by the
Owner’s accountants in such documentation.
	 
	 	.6	 	Subtract amounts, if any, for which the Architect or Owner has withheld or
nullified a Certificate for Payment as provided in Section 9.5 of the General
Conditions and other amounts properly held by the Owner at the time of each progress
payment.




The Owner will review the Application for Payment for each Payment Request Period that is received
from Construction Manager by the 5th day of each month and, subject to the following
provisions, payment shall be issued within thirty (30) calendar days of Owner’s receipt of each
Application for Payment based upon amounts approved in the applicable Certificate for Payment.
Approved payments shall be made only following issuance by Owner’s Representative or the Architect
of a certificate for payment (“Certificate for Payment”) for such amount as the Owner, Owner’s
Representative and/or Architect approve; provided, however, payment to the Construction Manager
must also be approved by Owner’s construction lender, if any, and in the event such lender does not
approve all or a portion of the Work completed during the Payment Request Period the Application
for Payment or the Certificate for Payment Owner shall only be obligated to pay to Construction
Manager that amount which Owner’s lender approves. Progress payments, at Owner’s option, may be
made in the form of checks made jointly payable to Construction Manager and any Subcontractor to
whom monies are owing. Within the ten (10) day period after Owner’s receipt of the Application for
Payment, the Owner shall notify the Construction Manager, in writing, of any reasons for
withholding a Certificate for Payment for any portion of the amount set forth in the Application
for Payment.



§ 7.1.8 Except with the Owner’s prior approval, all payments to Construction Manager and to
Subcontractors shall be subject to retention not to exceed ten percent (10%). No portion of the
sums retained by the Owner pursuant to this Subparagraph shall be payable until final payment is
made pursuant to Subparagraph 12.2 of this Agreement or in the case of defective Work until such
Work is remedied unless otherwise agreed by Owner. Owner may in its discretion, reduce the amount
of retention or release retained funds early during the course of the Project. The Owner and the
Construction Manager shall agree upon a mutually acceptable procedure for review and approval of
payments and retention for Subcontractors.



§ 7.1.9 Except with the Owner’s prior approval, the Construction Manager shall not make advance
payments to suppliers for materials or equipment which have not been delivered and stored at the
site.



§ 7.1.10 In taking action on the Construction Manager’s Applications for Payment, the Architect,
Owner (including Owner’s Representative) and its lender for the Project (if any) shall be entitled
to rely on the accuracy and completeness of the information furnished by the Construction Manager
and shall not be deemed to represent that the Architect, Owner (including Owner’s Representative)
and its lender for the Project (if any) has made a detailed examination, audit or arithmetic
verification of the documentation submitted in accordance with Section 7.1.4 of this Agreement or
other supporting data, that the Architect, Owner (including Owner’s Representative) and its lender
for the Project (if any) has made exhaustive or continuous on-site inspections or that the
Architect, Owner (including Owner’s Representative) and its lender for the Project (if any) has
made examinations to ascertain how or for what purposes the Construction Manager




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)





17









 







has used amounts
previously paid on account of the Contract. Such examinations, audits and verifications, if
required by the Owner, will be performed by the Owner’s accountants acting in the sole interest of
the Owner.




§ 7.2 FINAL PAYMENT



§ 7.2.1 Final payment constituting the unpaid balance of the Cost of the Work and Construction
Manager’s Fee (subject to any retention with respect to minor Work or defective Work) shall be due
and payable thirty-five (35) days following the recordation of a valid Notice of Completion with
respect to the Work; provided that as a condition to such payment, the Owner has approved such Work
and the Construction Manager has first delivered to the Owner such other evidences of the
Construction Manager’s full payment of Subcontractors (with the exception of retentions and final
payments which are to be paid out of the final payment of the Owner to the Construction Manager)
and the absence of any liens generated by the Work as may be required by the Owner, Owner’s
construction or permanent lender; and provided further, that (a) the Owner has first received the
final Certificate for Payment, which Certificate for Payment states that the evidences delivered by
Construction Manager are sufficient to indicate said payment of Subcontractors and absence of
liens, and (b) the Construction Manager has delivered to Owner (i) maintenance and operating
manuals for all equipment, (ii) all warranties and guaranties in connection with the Work, and
(iii) as-built drawings for the Project in Owner’s required format. At the Owner’s option, final
payment may be made in the form of checks made jointly payable to the Construction Manager and any
Subcontractor entitled to payment out of the funds provided by the final payment. Construction
Manager shall provide evidence satisfactory to Owner establishing the identities of such persons
and the amounts of the payments to which they are entitled. If there should remain minor punchlist
items to be completed after Substantial Completion, the Architect, the Construction Manager and the
Owner shall list such minor punchlist items and the Construction Manager shall deliver, in writing,
its unconditional promise to complete such minor punchlist items within a reasonable time following
Substantial Completion, which reasonable time shall be specified in said written promise and in no
event shall be greater than thirty (30) days unless otherwise agreed to, in writing, by the Owner.
The Owner may retain an amount equal to one and one-half (1 1/2) times of the cost to complete the
minor punchlist items, as reasonably


determined by Owner, until such time as the minor punchlist items are completed. Within seven (7)
days following the Construction Manager’s written notification to the Owner that the minor
punchlist items have been completed, the Owner shall determine whether such minor punchlist items
have, in fact, been completed. Owner shall make payment for these minor punchlist items within
twenty (20) days after the date on which the Owner determines such minor punchlist items have been
completed.




§ 7.2.2 Intentionally deleted.





	 	.1	 	Intentionally deleted.
	 
	 	.2	 	Intentionally deleted.
	 
	 	.3	 	Intentionally deleted.




§ 7.2.3 Intentionally deleted.



§ 7.2.4 Intentionally deleted.



§ 7.2.5 If, subsequent to final payment and at the Owner’s request, the Construction Manager incurs
costs described in Section 6.1 of this Agreement and not excluded by Section 6.2 of this Agreement
(1) to correct nonconforming Work or (2) arising from the resolution of disputes, the Owner shall
reimburse the Construction Manager such costs and the Construction Manager’s Fee, if any, related
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 the Construction Manager has participated in savings,
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 Construction Manager.




ARTICLE 8 INSURANCE AND BONDS



§ 8.1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER



During both phases of the Project, the Construction Manager shall purchase and maintain insurance
as set forth in Section 11.1 of the General Conditions.



§ 8.1.1 Intentionally deleted.



§ 8.1.2 Intentionally deleted.





	 	.1	 	Intentionally deleted.





 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)





18









 









	 	.2	 	Intentionally deleted.
	 
	 	.3	 	Intentionally deleted.




§ 8.1.3 Intentionally deleted.



§ 8.1.4 Intentionally deleted.




§ 8.2 INSURANCE REQUIRED OF THE OWNER



During both phases of the Project, the Owner shall purchase and maintain liability and property
insurance (which property insurance will be written on a builder’s risk “all-risk” or equivalent
policy form), including waivers of subrogation, as set forth in Sections 11.2 and 11.4 of the
General Conditions.



§ 8.2.1 Intentionally deleted.



§ 8.2.2 Intentionally deleted.



§ 8.3 PERFORMANCE BOND AND PAYMENT BOND 


§ 8.3.1 If required by Owner prior to the commencement of the work and subject to adjustment in the
Guaranteed Maximum Price if the clarifications and assumptions for the Project exclude the cost of
such bonds, the Construction Manager shall furnish bonds covering faithful performance of the
Contract and payment of obligations arising thereunder as required under Section 11.5 of the
General Conditions. Bonds may be obtained through the Construction Manager’s usual source
(provided such source meets the requirements set forth in Section 11.5 of the General Conditions),
and the cost thereof shall be included in the Cost of the Work. The amount of each bond shall be
equal to one hundred percent (100%) of the Budget or GMP (once established).



§ 8.3.2 The Construction Manager shall deliver the required bonds to the Owner at least three days
before the commencement of any Work at the Project site.




ARTICLE 9 MISCELLANEOUS PROVISIONS



§ 9.1 DISPUTE RESOLUTION



§ 9.1.1 During both the Preconstruction and Construction Phases, Claims, disputes or other matters
in question between the parties to this Agreement shall be resolved as provided in Sections 4.3
through 4.6 of General Conditions.




§ 9.2 DISPUTE RESOLUTION FOR THE CONSTRUCTION PHASE



§ 9.2.1 Refer to Paragraph 9.1.1, above..




§ 9.3 OTHER PROVISIONS



§ 9.3.1 Unless otherwise noted, the terms used in this Agreement shall have the same meaning as
those in the General Conditions.




§ 9.3.2 EXTENT OF CONTRACT



This Contract, which includes this Agreement and the other documents incorporated herein by
reference, represents the entire and integrated agreement between the Owner and the Construction
Manager and supersedes all prior negotiations, representations or agreements, either written or
oral. This Agreement may be amended only by written instrument signed by both the Owner and
Construction Manager. If anything in any document incorporated into this Agreement is inconsistent
with this Agreement, this Agreement shall govern. No addition to, deletion from or modification of
any term or provision of the Contract Documents shall be effective unless it is made in a writing
signed by the parties hereto.




§ 9.3.3 OWNERSHIP AND USE OF DOCUMENTS



See Subparagraph 1.6.1 of the General Conditions




§ 9.3.4 GOVERNING LAW



The Contract shall be governed by the State of California.




§ 9.3.5 ASSIGNMENT



The Owner and Construction Manager respectively bind themselves, their partners, successors,
assigns and legal representatives to the other party hereto and to partners, successors, assigns
and legal representatives of such other party




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)






19









 







in respect to covenants, agreements and obligations
contained in the Contract Documents. The Construction Manager shall not assign the Contract as a
whole or any part thereof without the prior written consent of the Owner, which consent may be
withheld in Owner’s sole and absolute discretion. If the Construction Manager attempts to make
such an assignment without such consent, the Construction Manager shall nevertheless remain legally
responsible for all obligations under the Contract.




ARTICLE 10 TERMINATION OR SUSPENSION



§ 10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE



§ 10.1.1 The Contract may be terminated as provided by Article 14 of the General Conditions.



§ 10.1.2 The Work may be suspended by the Owner as provided in Article 14 of the General Conditions.



§ 10.1.3 Intentionally deleted.





	 	.1	 	Intentionally deleted.
	 	.2	 	Intentionally deleted.
	 	.3	 	Intentionally deleted.





§ 10.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE



Subsequent to execution by both parties of A121 Amendment, the Contract may be terminated as
provided in Article 14 of the General Conditions.



§ 10.2.1 In the event of such termination by the Owner, the amount payable to the Construction
Manager pursuant to Section 14.1.3 of the General Conditions shall not exceed the amount the
Construction Manager would have been entitled to receive pursuant to Sections 10.1.2 and 10.1.3 of
this Agreement.



§ 10.2.2 In the event of such termination by the Construction Manager, the amount to be paid to the
Construction Manager under Section 14.1.2 of the General Conditions shall not exceed the amount the
Construction Manager would have been entitled to receive under Sections 10.1.2 and 10.1.3 above.



§
10.3 SUSPENSION



The Work may be suspended by the Owner as provided in Article 14 of the General Conditions; in such
case, the Guaranteed Maximum Price, if established, shall be increased as provided in Section
14.3.2 of the General Conditions except that the term “cost of performance of the Contract” in that
Section shall be understood to mean the Cost of the Work and the term “profit” shall be understood
to mean the Construction Manager’s Fee as described in Sections 5.1.1 and 5.3.4 of this Agreement.




ARTICLE 11 OTHER CONDITIONS AND SERVICES



§ 11.1 The Construction Manager’s representative is: Allen Laurlund (“Construction Manager’s
Representative”).



If approved by the Owner, the Construction Manager’s Representative is authorized to act on behalf
of and in the name of the Construction Manager in connection with the Project.



§ 11.2 Neither the Owner’s Representative nor the Construction Manager’s Representative shall be
changed without ten (10) days’ written notice to the other party; provided that Owner shall have
the right to approve the substitution of and the identify of any substitute Construction Manager’s
Representative.



§ 11.3 In the event of any dispute between the Owner and the Construction Manager, and provided the
Owner continues to pay all undisputed amounts in accordance with the provisions of the Contract
Documents, the Construction Manager shall proceed with the performance of its obligations under the
Contract Documents in accordance with the Project Schedules, with reservation of all rights and
remedies Construction Manager may have at law or in equity.



§11.4 Construction Manager shall immediately inform Owner and Architect of any defects, suspected
defects, and/or inconsistencies in the Drawings and Specifications which come to Construction
Manager’s attention. The Construction Manager shall not commence any corrective Work without
Owner’s written approval.




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
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20









 







§11.5 CONTRACTORS ARE REQUIRED BY LAW TO BE LICENSED AND REGULATED BY THE CONTRACTORS’ STATE
LICENSE BOARD WHICH HAS JURISDICTION TO INVESTIGATE COMPLAINTS AGAINST CONTRACTORS IF A COMPLAINT
REGARDING A PATENT ACT OR OMISSION IS FILED WITHIN FOUR YEARS OF THE DATE OF THE ALLEGED VIOLATION.
A COMPLAINT REGARDING A LATENT ACT OR OMISSION PERTAINING TO STRUCTURAL DEFECTS MUST BE FILED
WITHIN TEN YEARS OF THE DATE OF THE ALLEGED VIOLATION. ANY QUESTIONS CONCERNING A CONTRACTOR MAY
BE REFERRED TO THE REGISTRAR, CONTRACTORS’ STATE LICENSE BOARD,
P.O. BOX 26000, SACRAMENTO, CALIFORNIA 95826. The Construction Manager hereby warrants and
represents that it is a duly licensed contractor under the laws of the State of California and that
its contractor’s license number is 647480.



§11.6 In connection with the financing of the Project, Construction Manager and all subcontractors
must execute and deliver, and (if appropriate) acknowledge all reasonable instruments and documents
reasonably required by Owner or any lender for the Project, including, but not limited to, consents
to assignment of the Contract Documents, certificates relating to the completion of the Work and
subordinations of any rights, interests, and claims under the Contract Documents and subcontracts,
at law, or otherwise, to the liens, benefits, rights and privileges of any lender and filing the
Contract with the county recorder.



§11.7 The terms of the Contract Documents are intended by the parties to be a final expression of
their understanding with respect to such terms as are included in the Contract Documents and may
not be contradicted by evidence of any prior or contemporaneous statements, representations,
agreements or understandings. Additionally, the parties hereby expressly agree that no such
statements, representations, agreements or understandings exist. The parties further intend that
the Contract Documents constitute the complete and exclusive statement of their terms and that no
extrinsic evidence whatsoever may be introduced in any judicial proceeding involving the Contract
Documents. No addition to, deletion from or modification of any term or provision of the Contract
Documents shall be effective unless it is made in a writing signed by the parties hereto.



§11.8 If any provision of the Contract Documents, or any application of any such provision to any
party or circumstances, shall be determined by any court of competent jurisdiction to be invalid
and unenforceable to any extent, the remainder of the Contract Documents or the application of such
provision to such person or circumstances, other than the application as to which such provision is
determined to be invalid or unenforceable,
shall not be affected thereby, and each provision shall be valid and shall be enforced to the
fullest extent permitted by law.



§11.9 Time is of the essence with respect to the Contract Documents. Construction Manager
acknowledges and agrees that it has reviewed and negotiated the various time limits or periods set
forth in the Contract Documents and that any changes in such time limits or periods made in
accordance with the terms of the Contract Documents will be similarly reviewed and negotiated by
it. Construction Manager agrees to perform its obligations with due diligence within such time
limits and periods in accordance with the terms of the Contract Documents, acknowledging that in
the event it fails to do so Owner will suffer damages, costs and expenses by reason of such failure
of performance, including, without limitation, consequential damages.



§11.10 If either party commences an action against the other to enforce any of the terms of the
Contract Documents or because of the breach by either party of any of the terms of the Contract
Documents, the losing or defaulting party, whether by out-of-court settlement or final judgment,
shall pay to the prevailing party the actual costs and expenses incurred in connection with the
prosecution or defense of such action and any appeals in connection therewith, including actual
attorneys’ fees and costs. Any judgment or order entered in any final judgment shall contain a
specific provision providing for the recovery of all costs and expenses of suit, including, without
limitation, actual attorneys’ fees and costs incurred in connection with: (i) enforcing,
perfecting and executing such judgment; (ii) post-judgment motions; (iii) contempt proceedings;
(iv) garnishment, levy, and debtor and third-party examinations; (v) discovery; and (vi) bankruptcy
litigation. Any such actions shall be conducted in the Courts of the county in which the Project
is located.



§11.11 The Owner shall have the right to terminate the agreements contained within the Contract
Documents at any time prior to the Commencement Date, or such later date prior to the actual
commencement of the construction if construction in the field does not actually commence by the
Commencement Date; and, in such event, the Owner shall pay to the Construction Manager all Costs of
the Work incurred up to the date of termination plus the Construction Manager’s Fee on such Costs
of the Work as full and final payment to Construction Manager.




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
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21









 







§11.12 The provisions of the Contract Documents may be and are hereby agreed to be superseded in
whole or in part by any conflicting provision of a loan agreement entered into in good faith by
Owner relative to the construction financing of the Project.



§11.13 Construction Manager agrees that it shall perform its obligations hereof in a manner
consistent with that of a first class, construction firm experienced in performing sophisticated
and complex work similar to the Work required for the Project. Subject to the terms of Article 3
of the General Conditions, the parties acknowledge and agree that Construction Manager is not a
designer and is not responsible for ensuring that the Construction Documents are completed in
accordance with applicable building codes.



§11.14 To the extent the same bear upon the performance of the Work, Construction Manager shall
observe and abide by and perform all of its obligations hereunder in accordance with applicable
laws, ordinances, rules and regulations of all governmental authorities having jurisdiction over
the Project (the “Legal Requirements”).



§11.15 The headings of the Contract Documents are used herein for reference purposes only and
should not govern, limit, or be used in construing the Contract Documents or any provision hereof.
Where the context of the Contract Documents so requires, the use of the neuter gender shall include
the masculine and feminine genders, the masculine gender shall include the feminine and neuter
genders, and the singular number shall include the plural and vice versa.



§11.16 Each party hereto acknowledges that (i) each party hereto is of equal bargaining strength;
(ii) each such party has actively participated in the preparation, and negotiation of the Contract
Documents; (iii) each such party has had the opportunity to consult with such party’s attorneys and
advisors relative to entering into the Contract Documents, and (iv) any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not apply in the
interpretation of the Contract Documents, any portion hereof, any amendments hereto, or any
exhibits attached hereto.



§11.17 The Contract Documents may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same instrument.



§11.18 All capitalized terms not otherwise defined herein shall have the meanings set forth in the
Contract Documents.



§11.19 Construction Manager agrees to minimize the levels of noise and dust and obstruction of
access to the Project site caused by the performance of the Work in accordance with applicable
local requirements and covenants, conditions and restrictions or other restrictive covenants
governing activities at the Project site.



§11.20 The Construction Manager represents and warrants the following to the Owner (in addition to
any other representations and warranties contained in the Contract Documents), as a material
inducement to the Owner to execute this Agreement, which representations and warranties shall
survive the execution and delivery of this Agreement, any termination of this Agreement, and the
final completion of the Work:





	 	1.	 	The Construction Manager and its Subcontractors are financially solvent, able
to pay all debts as they mature, and possessed of sufficient working capital to
complete the Work and perform all obligations hereunder;
	 
	 	2.	 	The Construction Manager is able to furnish the plant, tools, materials,
supplies, equipment, and labor required to complete the Work and perform its
obligations hereunder and has sufficient experience and competence to do so;
	 
	 	3.	 	The Construction Manager is authorized to do business in the state in which the
Project is located and is properly licensed by all necessary governmental and public
and quasi-public authorities having jurisdiction over the Construction Manager and over
the Work and the Project;
	 
	 	4.	 	The Construction Manager’s execution of this Agreement and performance thereof
is within the Construction Manager’s duly authorized powers;





 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



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	 	5.	 	The Construction Manager’s duly authorized representative has visited the site
of the Project, is familiar with the local conditions under which the Work is to be
performed, and has correlated observations with the requirements of the Contract
Documents; and
	 
	 	6.	 	The Construction Manager is a large, sophisticated contractor who possesses a
high level of experience and expertise in the business administration, construction,
construction management, and superintendence of projects of the size, complexity, and
nature of this particular Project, and will perform the Work with the care, skill, and
diligence of such a contractor.




§11.21 The Construction Manager acknowledges that the Owner may be financing the Work with a loan
from a lender (the “Lender”). In order to perform under the Contract Documents, the Owner may be
required to comply with certain terms and conditions embodied in the Lender’s construction loan
agreement. The Construction Manager agrees to use its best efforts to comply with the requirements
of the Lender that bear upon the performance of the Work. The Construction Manager shall also:





	 	1.	 	Make the site of the Work available at reasonable times for inspection by the
Lender or the Lender’s representatives;
	 
	 	2.	 	Consent to and execute all documents reasonably requested by the Owner in
connection with the assignment of this Agreement and the Drawings and Specifications to
the Lender for collateral purposes. Such assignment shall provide that the
Construction Manager agrees that notwithstanding a default by the Owner under the
provisions of this Agreement that would give the Construction Manager the right to
terminate this Agreement, the Construction Manager will continue to perform its
obligations hereunder (on the same terms and conditions as are set forth herein) for
and on account of the Lender if the Lender shall agree to pay the Construction Manager
all amounts due and owing the Construction Manager under the Agreement and shall agree
in writing to perform all obligations of the Owner hereunder accruing from and after
the date of such default by the Owner; and
	 
	 	3.	 	Promptly furnish the Owner with information, documents, and materials that the
Owner may reasonably request from time to time in order to comply with the requirements
of the Lender.




§11.22 If required by the Owner or the Owner’s Lender, if any, all payments to the Construction
Manager shall be made through a construction escrow (hereinafter referred to as the “Escrow”)
established with an entity (hereinafter referred to as the “Escrowee”) mutually acceptable to the
Owner, the Lender, and the Construction Manager. The Construction Manager hereby agrees to execute
an escrow agreement that shall be (1) consistent with the requirements of the Contract Documents
except as the standard procedures of the Escrowee may otherwise require,


 (2) structured to provide that the Escrowee may disburse funds directly to Subcontractors or the
Construction Manager and Subcontractors payable jointly, if so directed by the parties thereto
shall use best efforts to cooperate with the Escrowee. After full execution, the Escrow Agreement
shall be attached hereto and made part hereof as an additional Exhibit.



§11.23 Notwithstanding anything to the contrary contained in this Agreement or in any of the other
Contract Documents, no partner of the Owner, nor any person or entity holding any interest in the
Owner shall be personally liable, whether directly or indirectly, by reason of any default by the
Owner in the performance of any of the obligations of the Owner under this Agreement, including,
without limitation, the Owner’s failure to pay the Construction Manager as required hereunder.



§11.24 The following Exhibit is attached hereto and forms a part of the Contract Documents:




Exhibit “A” – Form of Amendment No. 1 to Agreement between Owner and Construction Manager




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
genitope-x1construction-a121	 	(1638431218)





23









 







This Agreement entered into as of the day and year first written above.




	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	 	 	CONSTRUCTION MANAGER
	/s/
Dan W. Denney Jr.
	 	 	 	/s/ Mario P. Wijtman
	 	 	 	 	 
	(Signature)	 	 	 	(Signature)
	GENITOPE CORPORATION,	 	 	 	XL CONSTRUCTION CORPORATION,
	a Delaware corporation	 	 	 	a California corporation
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Dan W. Denney Jr.	 	 	 	By:	 	/s/ Mario P. Wijtman
	 	 	 	 	 	 	 	 	 
	 

	 	Dan W. Denney, Jr., Ph.D, CEO
	 	 	 	 	 	Its:	 	Vice President
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Its:	 	 
	Dan W.
Denney, Jr.

	 	 	 	 	 	 	 	 
	 	 	 	 	 
	(Printed name and title)	 	 	 	(Printed name and title)
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Date	 	 	 	Date	 	 
	1/17/06	 	 	 	 	 	1/17/06	 	 
	 	 	 	 	 





 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
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24









 








EXHIBIT “A”




FORM OF AMENDMENT NO. 1

TO AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER



Pursuant to Section 2.2 of the Agreement, dated ___, 20___between Genitope
Corporation (Owner) and XL Construction Corporation (the Construction Manager), for the Genitope
Headquarters and Manufacturing Facilities (the Project), the Owner and Construction Manager
establish a Guaranteed Maximum Price and Contract Time for the Work as set forth below.




ARTICLE I GUARANTEED MAXIMUM PRICE



The Construction Manager’s Guaranteed Maximum Price for the Work, including the estimated Cost of
the Work as defined in Article 6 of the Agreement and the Construction Manager’s Fee as defined in
Article 5 of the Agreement, is ___($___) [TO BE INSERTED]. The Guaranteed
Maximum Price is for the performance and execution of the Work (and that work or those services
reasonably inferable therefrom to produce the results intended by the Contract Documents) in
accordance with the Contract Documents.




ARTICLE II CONTRACT TIME



The parties hereby acknowledge and agree that the date of commencement of the Work by Construction
Manager was ___[[DATE TO BE INSERTED]] (the “Commencement Date”). In connection with the
foregoing, the date of Substantial Completion of the Work established by this Amendment is hereby
agreed by the parties to be: ___[[DATE TO BE INSERTED]] (the “Completion Date”). The
period of time commencing on the Commencement Date and ending on the Completion Date is sometimes
be referred to in the Contract as the “Contract Time.”




ARTICLE III SCOPE VERIFICATION



§3.1 The Guaranteed Maximum Price has been calculated and Contract Time established on the basis of
the Construction Documents, which were at the time of such establishment, ninety percent (90%)
complete (the 90% complete set forth Construction Documents to be referred to herein as the “90%
Complete Documents”). In determining the Guaranteed Maximum Price and Contract Time, the
Construction Manager has taken into account the level of completeness of the 90% Complete Documents
and has exercised the best skill and efforts of the Construction Manager to make (i) appropriate
judgments and inferences in connection with the requirements of such Construction Documents and
(ii) all inquiries of the Owner to clarify the 90% Complete Documents as necessary to calculate and
establish both the Guaranteed Maximum Price and the Contract Time. Once the Construction Documents
are finalized, the Construction Manager shall be permitted to verify the Guaranteed Maximum Price
and Contract Time as set forth in this Article III (hereinafter referred to as the “Scope
Verification Process”).



§3.2 Within ten (10) days following Construction Manager’s receipt of the completed Construction
Documents, the Construction Manager shall notify the Owner in writing of any item in the completed
Construction Documents that, in the Construction Manager’s opinion, represents a Scope Change, as
defined in Subparagraph 3.4 below, setting forth, with particularity, the reasons the Construction
Manager contends that information or requirements of the completed Construction Documents represent
a Scope Change (such a notice referred to as “Scope Verification Request”). Construction Manager
acknowledges and agrees that (i) completed Construction Documents are not intended to change the
scope, quality, quantity, function, or design intent of information set forth in the 90% Complete
Documents, and (ii) not all differences between the 90% Complete Documents and completed
Construction Documents, or information first appearing in the completed Construction Documents,
constitute Scope Changes but rather are scope detailing. Each Scope Verification Request shall set
forth the reasonable increased costs that the Construction Manager attributes to the Work covered
by such Scope Verification Request and the estimated adjustment to any milestone date set forth in
the Project Schedule. Failure of the Construction Manager to so notify the Owner within ten (10)
days after the date of receipt by the Construction Manager of the completed Construction Documents
is hereby deemed to mean (a) such completed Construction Documents are consistent with the 90%
Complete Documents; (b) no Scope Changes exist; and (c) the Construction Manager is willing and
able to perform all of the Work for the Guaranteed Maximum Price and in accordance with all the
requirements of the then current Schedule of Values and Construction Schedule and all Contract
Documents.




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
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25









 







§3.3 If the Construction Manager timely submits to the Owner a Scope Verification Request, then the
Owner shall have the following options:





	 	(i)	 	Within ten (10) days of receipt of a Scope Verification Request, the Owner
shall direct the Architect in writing, with a copy to the Construction Manager, to
redesign that aspect of the completed Construction Documents to which the Construction
Manager objects. The Construction Manager shall cooperate with the Owner and the
Architect during the redesign effort and shall make recommendations appropriate to
correct such portions of the Construction Documents. The Architect shall submit to the
Construction Manager the revised Construction Documents as approved by the Owner. The
Construction Manager shall promptly reexamine and approve such revised Supplemental
Documents.
	 
	 	(ii)	 	If, upon review of a Scope Verification Request, the Owner believes that the
portion of the Work described therein does not constitute a Scope Change, the Owner
shall so advise the Construction Manager within ten (10) days of receipt of such Scope
Verification Request. The Owner and the Construction Manager will attempt to resolve
their disagreement and identify elements of the Scope Verification Request that can be
revised. If such disagreement is not resolved, the Work described in the Scope
Verification Request shall be identified in a schedule (the “Disputed Work Schedule”)
to be prepared and periodically updated by the Owner. Whenever possible, the Owner and
the Construction Manager shall resolve items set forth in the Disputed Work Schedule,
confirming such resolution in a written memorandum signed by both parties. An
appropriate Change Order, if necessary, will then be issued. All items remaining in
the Disputed Work Schedule shall be performed by the Construction Manager as required
by the Contract Documents and a tentative adjustment shall be made to the Guaranteed
Maximum Price of sixty percent (60%) of the amount of the disputed Scope Verification
Request. The Construction Manager shall keep a separate accounting of any Work covered
by a Scope Verification Request; and upon completion of such Work, any tentative
adjustment to the Guaranteed Maximum Price shall be reallocated based upon such
accounting and other materials as the Owner may reasonably request. Adjustments to the
Construction Schedule shall not be permitted on a tentative basis.
	 
	 	(iii)	 	If the Owner does not, within the above-referenced ten (10) day period, either
direct the Architect to redesign the applicable portion(s) of the completed
Construction Documents or advise the Construction Manager in writing of disapproval of
the Scope Verification Request, then such Scope Verification Request shall be deemed
approved by the Owner and a Change Order issued to cover such request.




§3.4 Upon identification of all items to be set forth in the Disputed Work Schedule, a Change Order
shall be issued covering the entire aggregate adjustment to the Guaranteed Maximum Price and
Contract Time caused by Scope Verification Requests that have been approved by the Owner. The
Scope Verification Process shall then be considered concluded except for the Disputed Work
Schedule. Any Change Orders issued thereafter not involving the Disputed Work Schedule shall be
deemed to relate to the Contract Documents as completed and under or pursuant to the procedures
contained in Article 7 of the General Conditions. Except as set forth in this Article 3, nothing
contained in this Article 3 relating to Scope Changes shall be deemed to limit the Change Order
procedures set forth in Article 7 applicable to final Drawings and Specifications.



§3.5 By executing this Agreement and furnishing the Owner with both a Schedule of Values and a
Construction Schedule, the Construction Manager represents and warrants that the Contract Documents
(including the 90% Complete Documents, if any), materials, and information furnished the
Construction Manager as of the date of this Amendment and the ongoing discussions and meetings
between the Construction Manager and both the Owner and the Architect have described the scope,
construction requirements, and design intent of the Work in detail sufficient to enable the
Construction Manager to establish firmly the Guaranteed Maximum Price and the Construction
Schedule. The Construction Manager shall not be permitted to claim any adjustment in either the
Guaranteed Maximum Price or Contract Time in connection with the completed Construction Documents,
except for Scope Changes as described below in Paragraph 3.6 of this Agreement.



§3.6 A “Scope Change” is hereby deemed to mean Work described in completed Construction Documents
that is not reasonably inferable from either the 90% Complete Documents or any other previously
furnished Contract Documents by a Construction Manager of similar skill, experience, and expertise
as necessary for the proper, timely, and orderly completion of the Work and is a material change in
the quantity, quality, programmatic requirements, or other substantial deviation in the then
current Contract Documents.




 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
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26









 








	 	 	 	 	 	 	 	 	 	 	 
	OWNER	 	 	 	CONSTRUCTION MANAGER
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	(Signature)	 	 	 	(Signature)
	GENITOPE CORPORATION,	 	 	 	XL CONSTRUCTION CORPORATION,
	a Delaware corporation	 	 	 	a California corporation
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Dan W. Denney, Jr., Ph.D, CEO
	 	 	 	 	 	Its:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Its:	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	(Printed name and title)	 	 	 	(Printed name and title)
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 
	Date	 	 	 	Date	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 





 



AIA
Document A121TMCMc — 2003 and AGC Document 565. Copyright
©
1991 and 2003 by The American Institute of Architects and The
Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
This draft was produced by AIA software at 11:16:45 on
12/30/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.



	User Notes:
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27










 








AIA® Document
A201TM — 1997




General
Conditions of the Contract for Construction




for the following PROJECT:

(Name and location or address):



Genitope
Headquarters and Manufacturing Facility at 6800 Dumbarton Circle, Fremont, California.




THE OWNER:

(Name and address):

Genitope Corporation

525 Penobscot Drive

Redwood City, California 94063

Attention: Chief Financial Officer & General Counsel

Telephone: (650) 482-2000

Facsimile: (650) 482-2002




THE ARCHITECT:

(Name and address):

Dowler-Gruman Architects

550 Ellis Street

Mountain View, California 94043

Attention: Mark L. Davis

Telephone: (650) 943-1660

Facsimile: (650) 943-1670




ADDITIONS AND DELETIONS:



The author of this document has added information needed
for its completion. The author may also have revised the
text of the original AIA standard form. An Additions and
Deletions Report that notes added information as well as
revisions to the standard form text is available from the
author and should be reviewed.



This document has important legal consequences.
Consultation with an attorney is encouraged with respect to
its completion or modification.



This document has been approved and endorsed by The
Associated General Contractors of America




TABLE OF ARTICLES




	 	 	 
	1

	 	GENERAL PROVISIONS
	 
	 	 
	2

	 	OWNER
	 
	 	 
	3

	 	CONTRACTOR
	 
	 	 
	4

	 	ADMINISTRATION OF THE CONTRACT
	 
	 	 
	5

	 	SUBCONTRACTORS
	 
	 	 
	6

	 	CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
	 
	 	 
	7

	 	CHANGES IN THE WORK
	 
	 	 
	8

	 	TIME
	 
	 	 
	9

	 	PAYMENTS AND COMPLETION
	 
	 	 
	10

	 	PROTECTION OF PERSONS AND PROPERTY
	 
	 	 
	11

	 	INSURANCE AND BONDS
	 
	 	 
	12

	 	UNCOVERING AND CORRECTION OF WORK
	 
	 	 
	13

	 	MISCELLANEOUS PROVISIONS





ELECTRONIC
COPYING of any portion of this AIA® Document to
another electronic file is prohibited and constitutes a
violation of copyright laws as set forth in the footer of this
document.



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



1









 






	 	 	 
	14

	 	TERMINATION OR SUSPENSION OF THE CONTRACT





 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



2









 





INDEX

(Numbers and Topics in Bold are Section Headings)




Acceptance of Nonconforming Work

9.6.6, 9.9.3, 12.3

Acceptance of Work

9.6.6, 9.8.2, 9.9.3, 9.10.1, 9.10.3, 12.3




Access to Work

3.16, 6.2.1, 12.1

Accident Prevention

4.2.3, 10

Acts and Omissions

3.2, 3.3.2, 3.12.8, 3.18, 4.2.3, 4.3.8, 4.4.1, 8.3.1, 9.5.1, 10.2.5, 13.4.2, 13.7, 14.1

Addenda

1.1.1, 3.11

Additional Costs, Claims for

4.3.4, 4.3.5, 4.3.6, 6.1.1, 10.3

Additional Inspections and Testing

9.8.3, 12.2.1, 13.5

Additional Time, Claims for

4.3.4, 4.3.7, 8.3.2




ADMINISTRATION OF THE CONTRACT

3.1.3, 4, 9.4, 9.5

Advertisement or Invitation to Bid

1.1.1

Aesthetic Effect

4.2.13, 4.5.1




Allowances

3.8

All-risk Insurance

11.4.1.1




Applications for Payment

4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5, 9.10, 11.1.3, 14.2.4, 14.4.3

Approvals

2.4, 3.1.3, 3.5, 3.10.2, 3.12, 4.2.7, 9.3.2, 13.4.2, 13.5




Arbitration

4.3.3, 4.4, 4.5.1, 4.5.2, 4.6, 8.3.1, 9.7.1, 11.4.9, 11.4.10




Architect

4.1

Architect, Definition of

4.1.1

Architect, Extent of Authority

2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2, 7.3.6, 7.4, 9.2, 9.3.1, 9.4, 9.5, 9.8.3, 9.10.1,

9.10.3, 12.1, 12.2.1, 13.5.1, 13.5.2, 14.2.2, 14.2.4

Architect, Limitations of Authority and Responsibility

2.1.1, 3.3.3, 3.12.4, 3.12.8, 3.12.10, 4.1.2, 4.2.1, 4.2.2, 4.2.3, 4.2.6, 4.2.7, 4.2.10, 4.2.12,

4.2.13, 4.4, 5.2.1, 7.4, 9.4.2, 9.6.4, 9.6.6

Architect’s Additional Services and Expenses

2.4, 11.4.1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4




Architect’s Administration of the Contract

3.1.3, 4.2, 4.3.4, 4.4, 9.4, 9.5

Architect’s Approvals

2.4, 3.1.3, 3.5.1, 3.10.2, 4.2.7

Architect’s Authority to Reject Work

3.5.1, 4.2.6, 12.1.2, 12.2.1

Architect’s Copyright

1.6

Architect’s Decisions

4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1, 4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3,

8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4

Architect’s Inspections

4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 13.5

Architect’s Instructions

3.2.3, 3.3.1, 4.2.6, 4.2.7, 4.2.8, 7.4.1, 12.1, 13.5.2

Architect’s Interpretations

4.2.11, 4.2.12, 4.3.6

Architect’s Project Representative

4.2.10

Architect’s Relationship with Contractor

1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18,

4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, 9.9,

10.2.6, 10.3, 11.3, 11.4.7, 12, 13.4.2, 13.5

Architect’s Relationship with Subcontractors

1.1.2, 4.2.3, 4.2.4, 4.2.6, 9.6.3, 9.6.4, 11.4.7

Architect’s Representations

9.4.2, 9.5.1, 9.10.1

Architect’s Site Visits

4.2.2, 4.2.5, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9.10.1, 13.5

Asbestos

10.3.1

Attorneys’ Fees

3.18.1, 9.10.2, 10.3.3

Award of Separate Contracts

6.1.1, 6.1.2




Award of Subcontracts and Other Contracts for Portions of the Work

5.2




Basic Definitions

1.1

Bidding Requirements

1.1.1, 1.1.7, 5.2.1, 11.5.1




Boiler and Machinery Insurance

11.4.2

Bonds, Lien

9.10.2

Bonds, Performance, and Payment

7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5

Building Permit

3.7.1




Capitalization

1.3

Certificate of Substantial Completion

9.8.3, 9.8.4, 9.8.5




Certificates for Payment

4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



3









 





Certificates of Inspection, Testing or Approval

13.5.4

Certificates of Insurance

9.10.2, 11.1.3




Change Orders

1.1.1, 2.4.1, 3.4.2, 3.8.2.3, 3.11.1, 3.12.8, 4.2.8, 4.3.4, 4.3.9, 5.2.3, 7.1, 7.2, 7.3, 8.3.1,

9.3.1.1, 9.10.3, 11.4.1.2, 11.4.4, 11.4.9, 12.1.2

Change Orders, Definition of

7.2.1




CHANGES IN THE WORK

3.11, 4.2.8, 7, 8.3.1, 9.3.1.1, 11.4.9




Claim, Definition of

4.3.1




Claims and Disputes

3.2.3, 4.3, 4.4, 4.5, 4.6, 6.1.1, 6.3, 7.3.8, 9.3.3, 9.10.4, 10.3.3




Claims and Timely Assertion of Claims

4.6.5




Claims for Additional Cost

3.2.3, 4.3.4, 4.3.5, 4.3.6, 6.1.1, 7.3.8, 10.3.2




Claims for Additional Time

3.2.3, 4.3.4, 4.3.7, 6.1.1, 8.3.2, 10.3.2




Claims for Concealed or Unknown Conditions

4.3.4

Claims for Damages

3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, 11.1.1, 11.4.5, 11.4.7, 14.1.3, 14.2.4

Claims Subject to Arbitration

4.4.1, 4.5.1, 4.6.1




Cleaning Up

3.15, 6.3




Commencement of Statutory Limitation Period

13.7

Commencement of the Work, Conditions Relating to

2.2.1, 3.2.1, 3.4.1, 3.7.1, 3.10.1, 3.12.6, 4.3.5, 5.2.1, 5.2.3, 6.2.2, 8.1.2, 8.2.2, 8.3.1, 11.1,

11.4.1, 11.4.6, 11.5.1

Commencement of the Work, Definition of

8.1.2




Communications Facilitating Contract Administration

3.9.1, 4.2.4

Completion, Conditions Relating to

1.6.1, 3.4.1, 3.11, 3.15, 4.2.2, 4.2.9, 8.2, 9.4.2, 9.8, 9.9.1, 9.10, 12.2, 13.7, 14.1.2




COMPLETION, PAYMENTS AND

9

Completion, Substantial

4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, 9.10.4.2, 12.2, 13.7

Compliance with Laws

1.6.1, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6.4, 4.6.6, 9.6.4, 10.2.2, 11.1, 11.4, 13.1,

13.4, 13.5.1, 13.5.2, 13.6, 14.1.1, 14.2.1.3

Concealed or Unknown Conditions

4.3.4, 8.3.1, 10.3

Conditions of the Contract

1.1.1, 1.1.7, 6.1.1, 6.1.4

Consent, Written

1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1,

13.2, 13.4.2




CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS

1.1.4, 6

Construction
Change Directive, Definition of



7.3.1

Construction
Change Directives

1.1.1, 3.12.8, 4.2.8, 4.3.9, 7.1, 7.3, 9.3.1.1

Construction Schedules, Contractor’s

1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3




Contingent Assignment of Subcontracts

5.4, 14.2.2.2




Continuing Contract Performance

4.3.3

Contract, Definition of

1.1.2




CONTRACT, TERMINATION OR SUSPENSION OF THE

5.4.1.1, 11.4.9, 14

Contract Administration

3.1.3, 4, 9.4, 9.5

Contract Award and Execution, Conditions Relating to

3.7.1, 3.10, 5.2, 6.1, 11.1.3, 11.4.6, 11.5.1




Contract Documents, The

1.1, 1.2

Contract Documents, Copies Furnished and Use of

1.6, 2.2.5, 5.3

Contract Documents, Definition of

1.1.1




Contract Sum

3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, 9.1, 9.4.2, 9.5.1.4, 9.6.7, 9.7, 10.3.2, 11.4.1,

14.2.4, 14.3.2

Contract Sum, Definition of

9.1

Contract Time

4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4, 8.1.1, 8.2, 8.3.1, 9.5.1, 9.7, 10.3.2, 12.1.1,

14.3.2

Contract Time, Definition of

8.1.1




CONTRACTOR

3

Contractor, Definition of

3.1, 6.1.2




Contractor’s Construction Schedules

1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3

Contractor’s Employees

3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, 11.1.1, 11.4.7, 14.1, 14.2.1.1,




Contractor’s Liability Insurance

11.1

Contractor’s Relationship with Separate Contractors and Owner’s Forces

3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2, 12.2.4



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



4







 





Contractor’s Relationship with Subcontractors

1.2.2, 3.3.2, 3.18.1, 3.18.2, 5, 9.6.2, 9.6.7, 9.10.2, 11.4.1.2, 11.4.7, 11.4.8

Contractor’s Relationship with the Architect

1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18,

4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4,

9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12, 13.4.2, 13.5

Contractor’s Representations

1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.8.2

Contractor’s Responsibility for Those Performing the Work

3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5.1, 10

Contractor’s Review of Contract Documents

1.5.2, 3.2, 3.7.3

Contractor’s Right to Stop the Work

9.7

Contractor’s Right to Terminate the Contract

4.3.10, 14.1

Contractor’s Submittals

3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8.2, 9.8.3, 9.9.1, 9.10.2, 9.10.3,

11.1.3, 11.5.2

Contractor’s Superintendent

3.9, 10.2.6

Contractor’s Supervision and Construction Procedures

1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, 6.2.4, 7.1.3, 7.3.4, 7.3.6, 8.2, 10, 12, 14

Contractual Liability Insurance

11.1.1.8, 11.2, 11.3

Coordination and Correlation

1.2, 1.5.2, 3.3.1, 3.10, 3.12.6, 6.1.3, 6.2.1

Copies Furnished of Drawings and Specifications

1.6, 2.2.5, 3.11

Copyrights

1.6, 3.17

Correction of Work

2.3, 2.4, 3.7.4, 4.2.1, 9.4.2, 9.8.2, 9.8.3, 9.9.1, 12.1.2, 12.2, 13.7.1.3




Correlation and Intent of the Contract Documents

1.2

Cost, Definition of

7.3.6

Costs

2.4, 3.2.3, 3.7.4, 3.8.2, 3.15.2, 4.3, 5.4.2, 6.1.1, 6.2.3, 7.3.3.3, 7.3.6, 7.3.7, 7.3.8, 9.10.2,

10.3.2, 10.5, 11.3, 11.4, 12.1, 12.2.1, 12.2.4, 13.5, 14




Cutting and Patching

6.2.5, 3.14

Damage to Construction of Owner or Separate Contractors

3.14.2, 6.2.4, 9.2.1.5, 10.2.1.2, 10.2.5, 10.6, 11.1, 11.4, 12.2.4

Damage to the Work

3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.6, 11.4, 12.2.4

Damages, Claims for

3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, 11.1.1, 11.4.5, 11.4.7, 14.1.3, 14.2.4

Damages for Delay

6.1.1, 8.3.3, 9.5.1.6, 9.7, 10.3.2

Date of Commencement of the Work, Definition of

8.1.2

Date of Substantial Completion, Definition of

8.1.3

Day, Definition of

8.1.4

Decisions of the Architect

4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1, 4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3,

8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4




Decisions to Withhold Certification

9.4.1, 9.5, 9.7, 14.1.1.3

Defective or Nonconforming Work, Acceptance, Rejection and Correction of

2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.5.2, 9.6.6, 9.8.2, 9.9.3, 9.10.4, 12.2.1, 13.7.1.3

Defective Work, Definition of

3.5.1

Definitions

1.1, 2.1.1, 3.1, 3.5.1, 3.12.1, 3.12.2, 3.12.3, 4.1.1, 4.3.1, 5.1, 6.1.2, 7.2.1, 7.3.1, 7.3.6, 8.1,

9.1, 9.8.1




Delays and Extensions of Time

3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1,

14.3.2

Disputes

4.1.4, 4.3, 4.4, 4.5, 4.6, 6.3, 7.3.8




Documents and Samples at the Site

3.11

Drawings, Definition of

1.1.5

Drawings and Specifications, Use and Ownership of

1.1.1, 1.3, 2.2.5, 3.11, 5.3

Effective Date of Insurance

8.2.2, 11.1.2




Emergencies

4.3.5, 10.6, 14.1.1.2

Employees, Contractor’s

3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, 11.1.1, 11.4.7, 14.1, 14.2.1.1

Equipment, Labor, Materials and

1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6,

9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2

Execution and Progress of the Work

1.1.3, 1.2.1, 1.2.2, 2.2.3, 2.2.5, 3.1, 3.3, 3.4, 3.5, 3.7, 3.10, 3.12, 3.14, 4.2.2, 4.2.3, 4.3.3,

6.2.2, 7.1.3, 7.3.4, 8.2, 9.5, 9.9.1, 10.2, 10.3, 12.2, 14.2, 14.3

Extensions of Time

3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3, 7.4.1, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2




Failure of Payment

4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6

Faulty Work

(See Defective or Nonconforming Work)



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



5









 





Final Completion and Final Payment

4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1, 11.4.5, 12.3.1, 13.7, 14.2.4, 14.4.3

Financial Arrangements, Owner’s

2.2.1, 13.2.2, 14.1.1.5

Fire and Extended Coverage Insurance

11.4




GENERAL PROVISIONS

1




Governing Law

13.1

Guarantees (See Warranty)

Hazardous Materials

10.2.4, 10.3, 10.5

Identification of Contract Documents

1.5.1

Identification of Subcontractors and Suppliers

5.2.1




Indemnification

3.17, 3.18, 9.10.2, 10.3.3, 10.5, 11.4.1.2, 11.4.7




Information and Services Required of the Owner

2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2,

9.10.3, 10.3.3, 11.2, 11.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4




Injury or Damage to Person or Property

4.3.8, 10.2, 10.6

Inspections

3.1.3, 3.3.3, 3.7.1, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.2, 9.8.3, 9.9.2, 9.10.1, 12.2.1, 13.5

Instructions to Bidders

1.1.1

Instructions to the Contractor

3.2.3, 3.3.1, 3.8.1, 4.2.8, 5.2.1, 7, 12, 8.2.2, 13.5.2

Insurance

3.18.1, 6.1.1, 7.3.6, 8.2.1, 9.3.2, 9.8.4, 9.9.1, 9.10.2, 9.10.5, 11




Insurance, Boiler and Machinery

11.4.2




Insurance, Contractor’s Liability

11.1

Insurance, Effective Date of

8.2.2, 11.1.2




Insurance, Loss of Use

11.4.3




Insurance, Owner’s Liability

11.2




Insurance, Project Management Protective Liability

11.3




Insurance, Property

10.2.5, 11.4

Insurance, Stored Materials

9.3.2, 11.4.1.4




INSURANCE AND BONDS

11

Insurance Companies, Consent to Partial Occupancy

9.9.1, 11.4.1.5

Insurance Companies, Settlement with

11.4.10

Intent of the Contract Documents

1.2.1, 4.2.7, 4.2.12, 4.2.13, 7.4




Interest

13.6




Interpretation

1.2.3, 1.4, 4.1.1, 4.3.1, 5.1, 6.1.2, 8.1.4

Interpretations, Written

4.2.11, 4.2.12, 4.3.6

Joinder and Consolidation of Claims Required

4.6.4




Judgment on Final Award

4.6.6




Labor and Materials, Equipment

1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 42.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6,

9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2

Labor Disputes

8.3.1

Laws and Regulations

1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, 9.9.1, 10.2.2, 11.1, 11.4, 13.1,

13.4, 13.5.1, 13.5.2, 13.6, 14

Liens

2.1.2, 4.4.8, 8.2.2, 9.3.3, 9.10




Limitation on Consolidation or Joinder

4.6.4

Limitations, Statutes of

4.6.3, 12.2.6, 13.7

Limitations of Liability

2.3, 3.2.1, 3.5.1, 3.7.3, 3.12.8, 3.12.10, 3.17, 3.18, 4.2.6, 4.2.7, 4.2.12, 6.2.2, 9.4.2, 9.6.4,

9.6.7, 9.10.4, 10.3.3, 10.2.5, 11.1.2, 11.2.1, 11.4.7, 12.2.5, 13.4.2

Limitations of Time

2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 4.2.7, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3,

5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 11.1.3,

11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5, 13.7, 14




Loss of Use Insurance

11.4.3

Material Suppliers

1.6, 3.12.1, 4.2.4, 4.2.6, 5.2.1, 9.3, 9.4.2, 9.6, 9.10.5

Materials, Hazardous

10.2.4, 10.3, 10.5

Materials, Labor, Equipment and

1.1.3, 1.1.6, 1.6.1, 3.4, 3.5.1, 3.8.2, 3.8.23, 3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1,

7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2

Means, Methods, Techniques, Sequences and Procedures of Construction

3.3.1, 3.12.10, 4.2.2, 4.2.7, 9.4.2

Mechanic’s Lien

4.4.8




Mediation

4.4.1, 4.4.5, 4.4.6, 4.4.8, 4.5, 4.6.1, 4.6.2, 8.3.1, 10.5



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



6









 








Minor Changes in the Work

1.1.1, 3.12.8, 4.2.8, 4.3.6, 7.1, 7.4




MISCELLANEOUS PROVISIONS

13

Modifications, Definition of

1.1.1

Modifications to the Contract

1.1.1, 1.1.2, 3.7.3, 3.11, 4.1.2, 4.2.1, 5.2.3, 7, 8.3.1, 9.7, 10.3.2, 11.4.1




Mutual Responsibility

6.2




Nonconforming Work, Acceptance of

9.6.6, 9.9.3, 12.3

Nonconforming Work, Rejection and Correction of

2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.8.2, 9.9.3, 9.10.4, 12.2.1, 13.7.1.3

Notice

2.2.1, 2.3, 2.4, 3.2.3, 3.3.1, 3.7.2, 3.7.4, 3.12.9, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10,

10.2.2, 11.1.3, 11.4.6, 12.2.2, 12.2.4, 13.3, 13.5.1, 13.5.2, 14.1, 14.2




Notice, Written

2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3,

11.1.3, 11.4.6, 12.2.2, 12.2.4, 13.3, 14

Notice of Testing and Inspections

13.5.1, 13.5.2

Notice to Proceed

8.2.2




Notices, Permits, Fees and

2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2

Observations, Contractor’s

1.5.2, 3.2, 3.7.3, 4.3.4

Occupancy

2.2.2, 9.6.6, 9.8, 11.4.1.5

Orders, Written

1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2, 13.5.2, 14.3.1




OWNER

2

Owner, Definition of

2.1




Owner, Information and Services Required of the

2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2,

9.10.3, 10.3.3, 11.2, 11.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4

Owner’s Authority

1.6, 2.1.1, 2.3, 2.4, 3.4.2, 3.8.1, 3.12.10, 3.14.2, 4.1.2, 4.1.3, 4.2.4, 4.2.9, 4.3.6, 4.4.7,

5.2.1, 5.2.4, 5.4.1, 6.1, 6.3, 7.2.1, 7.3.1, 8.2.2, 8.3.1, 9.3.1, 9.3.2, 9.5.1, 9.9.1, 9.10.2,

10.3.2, 11.1.3, 11.3.1, 11.4.3, 11.4.10, 12.2.2, 12.3.1, 13.2.2, 14.3, 14.4

Owner’s Financial Capability

2.2.1, 13.2.2, 14.1.1.5




Owner’s Liability Insurance

11.2

Owner’s Loss of Use Insurance

11.4.3

Owner’s Relationship with Subcontractors

1.1.2, 5.2, 5.3, 5.4, 9.6.4, 9.10.2, 14.2.2




Owner’s Right to Carry Out the Work

2.4, 12.2.4. 14.2.2.2




Owner’s Right to Clean Up

6.3




Owner’s Right to Perform Construction and to Award Separate Contracts

6.1




Owner’s Right to Stop the Work

2.3

Owner’s Right to Suspend the Work

14.3

Owner’s Right to Terminate the Contract

14.2




Ownership and Use of Drawings, Specifications and Other Instruments of Service

1.1.1, 1.6, 2.2.5, 3.2.1, 3.11.1, 3.17.1, 4.2.12, 5.3




Partial Occupancy or Use

9.6.6, 9.9, 11.4.1.5




Patching, Cutting and

3.14, 6.2.5

Patents

3.17




Payment, Applications for

4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5, 9.10.1, 9.10.3, 9.10.5, 11.1.3, 14.2.4,

14.4.3




Payment, Certificates for

4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4




Payment, Failure of

4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6

Payment, Final

4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1, 11.4.5, 12.3.1, 13.7, 14.2.4, 14.4.3




Payment Bond, Performance Bond and

7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5

Payments, Progress

4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3




PAYMENTS AND COMPLETION

9

Payments to Subcontractors

5.4.2, 9.5.1.3, 9.6.2, 9.6.3, 9.6.4, 9.6.7, 11.4.8, 14.2.1.2

PCB

10.3.1




Performance Bond and Payment Bond

7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5




Permits, Fees and Notices

2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2




PERSONS AND PROPERTY, PROTECTION OF

10

Polychlorinated Biphenyl

10.3.1

Product Data, Definition of

3.12.2




Product Data and Samples, Shop Drawings

3.11, 3.12, 4.2.7



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



7









 








Progress and Completion

4.2.2, 4.3.3, 8.2, 9.8, 9.9.1, 14.1.4




Progress Payments

4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3

Project, Definition of the

1.1.4




Project Management Protective Liability Insurance

11.3

Project Manual, Definition of the

1.1.7

Project Manuals

2.2.5

Project Representatives

4.2.10




Property Insurance

10.2.5, 11.4




PROTECTION OF PERSONS AND PROPERTY

10

Regulations and Laws

1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, 9.9.1, 10.2.2, 11.1, 11.4, 13.1,

13.4, 13.5.1, 13.5.2, 13.6, 14

Rejection of Work

3.5.1, 4.2.6, 12.2.1

Releases and Waivers of Liens

9.10.2

Representations

1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.4.2, 9.5.1, 9.8.2, 9.10.1

Representatives

2.1.1, 3.1.1, 3.9, 4.1.1, 4.2.1, 4.2.10, 5.1.1, 5.1.2, 13.2.1




Resolution of Claims and Disputes

4.4, 4.5, 4.6

Responsibility for Those Performing the Work

3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5.1, 10

Retainage

9.3.1, 9.6.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3




Review of Contract Documents and Field Conditions by Contractor

1.5.2, 3.2, 3.7.3, 3.12.7, 6.1.3

Review of Contractor’s Submittals by Owner and Architect

3.10.1, 3.10.2, 3.11, 3.12, 4.2, 5.2, 6.1.3, 9.2, 9.8.2

Review of Shop Drawings, Product Data and Samples by Contractor

3.12




Rights and Remedies

1.1.2, 2.3, 2.4, 3.5.1, 3.15.2, 4.2.6, 4.3.4, 4.5, 4.6, 5.3, 5.4, 6.1, 6.3, 7.3.1, 8.3, 9.5.1, 9.7,

10.2.5, 10.3, 12.2.2, 12.2.4, 13.4, 14




Royalties, Patents and Copyrights

3.17

Rules and Notices for Arbitration

4.6.2




Safety of Persons and Property

10.2, 10.6




Safety Precautions and Programs

3.3.1, 4.2.2, 4.2.7, 5.3.1, 10.1, 10.2, 10.6

Samples, Definition of

3.12.3




Samples, Shop Drawings, Product Data and

3.11, 3.12, 4.2.7




Samples at the Site, Documents and

3.11




Schedule of Values

9.2, 9.3.1

Schedules, Construction

1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3

Separate Contracts and Contractors

1.1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6, 8.3.1, 11.4.7, 12.1.2, 12.2.5

Shop Drawings, Definition of

3.12.1




Shop Drawings, Product Data and Samples

3.11, 3.12, 4.2.7




Site, Use of

3.13, 6.1.1, 6.2.1

Site Inspections

1.2.2, 3.2.1, 3.3.3, 3.7.1, 4.2, 4.3.4, 9.4.2, 9.10.1, 13.5

Site Visits, Architect’s

4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9.10.1, 13.5

Special Inspections and Testing

4.2.6, 12.2.1, 13.5

Specifications, Definition of the

1.1.6




Specifications, The

1.1.1, 1.1.6, 1.1.7, 1.2.2, 1.6, 3.11, 3.12.10, 3.17

Statute of Limitations

4.6.3, 12.2.6, 13.7

Stopping the Work

2.3, 4.3.6, 9.7, 10.3, 14.1

Stored Materials

6.2.1, 9.3.2, 10.2.1.2, 10.2.4, 11.4.1.4

Subcontractor, Definition of

5.1.1




SUBCONTRACTORS

5

Subcontractors, Work by

1.2.2, 3.3.2, 3.12.1, 4.2.3, 5.2.3, 5.3, 5.4, 9.3.1.2, 9.6.7




Subcontractual Relations

5.3, 5.4, 9.3.1.2, 9.6, 9.10 10.2.1, 11.4.7, 11.4.8, 14.1, 14.2.1, 14.3.2

Submittals

1.6, 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8, 9.9.1, 9.10.2, 9.10.3, 11.1.3




Subrogation, Waivers of

6.1.1, 11.4.5, 11.4.7




Substantial Completion

4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, 9.10.4.2, 12.2, 13.7

Substantial Completion, Definition of

9.8.1



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



8









 








Substitution of Subcontractors

5.2.3, 5.2.4

Substitution of Architect

4.1.3

Substitutions of Materials

3.4.2, 3.5.1, 7.3.7

Sub-subcontractor, Definition of

5.1.2

Subsurface Conditions

4.3.4




Successors and Assigns

13.2




Superintendent

3.9, 10.2.6




Supervision and Construction Procedures

1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, 6.2.4, 7.1.3, 7.3.6, 8.2, 8.3.1, 9.4.2, 10,

12, 14

Surety

4.4.7, 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2

Surety, Consent of

9.10.2, 9.10.3

Surveys

2.2.3




Suspension by the Owner for Convenience

14.4

Suspension of the Work

5.4.2, 14.3

Suspension or Termination of the Contract

4.3.6, 5.4.1.1, 11.4.9, 14




Taxes

3.6, 3.8.2.1, 7.3.6.4




Termination by the Contractor

4.3.10, 14.1




Termination by the Owner for Cause

4.3.10, 5.4.1.1, 14.2

Termination of the Architect

4.1.3

Termination of the Contractor

14.2.2




TERMINATION OR SUSPENSION OF THE CONTRACT

14




Tests and Inspections

3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 10.3.2, 11.4.1.1, 12.2.1,13.5




TIME

8




Time, Delays and Extensions of

3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1,

14.3.2

Time Limits

2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4,

6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 11.1.3, 11.4.1.5,

11.4.6, 11.4.10, 12.2, 13.5, 13.7, 14




Time Limits on Claims

4.3.2, 4.3.4, 4.3.8, 4.4, 4.5, 4.6

Title to Work

9.3.2, 9.3.3




UNCOVERING AND CORRECTION OF WORK

12




Uncovering of Work

12.1

Unforeseen Conditions

4.3.4, 8.3.1, 10.3

Unit Prices

4.3.9, 7.3.3.2

Use of Documents

1.1.1, 1.6, 2.2.5, 3.12.6, 5.3




Use of Site

3.13, 6.1.1, 6.2.1




Values, Schedule of

9.2, 9.3.1

Waiver of Claims by the Architect

13.4.2

Waiver of Claims by the Contractor

4.3.10, 9.10.5, 11.4.7, 13.4.2

Waiver of Claims by the Owner

4.3.10, 9.9.3, 9.10.3, 9.10.4, 11.4.3, 11.4.5, 11.4.7, 12.2.2.1, 13.4.2, 14.2.4




Waiver of Consequential Damages

4.3.10, 14.2.4

Waiver of Liens

9.10.2, 9.10.4




Waivers of Subrogation

6.1.1, 11.4.5, 11.4.7




Warranty

3.5, 4.2.9, 4.3.5.3, 9.3.3, 9.8.4, 9.9.1, 9.10.4, 12.2.2, 13.7.1.3

Weather Delays

4.3.7.2

Work, Definition of

1.1.3

Written Consent

1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1,

13.2, 13.4.2

Written Interpretations

4.2.11, 4.2.12, 4.3.6




Written Notice

2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3,

11.1.3, 11.4.6, 12.2.2, 12.2.4, 13.3, 14

Written Orders

1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2, 13.5.2, 14.3.1



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



9









 








ARTICLE 1 GENERAL PROVISIONS



§ 1.1 BASIC DEFINITIONS



§ 1.1.1 THE CONTRACT DOCUMENTS



The Contract Documents consist of the Agreement between Owner and Contractor (hereinafter the
Agreement), Conditions of the Contract (General, Supplementary and other Conditions), Drawings,
Specifications, Addenda issued prior to execution of the Contract, other documents listed in the
Agreement and Modifications issued after execution of the Contract. A “Modification” is (1) a
written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction
Change Directive or (4) a written order for a minor change in the Work issued by the Architect or
Owner. The Agreement, the Contract Documents do not include other documents such as bidding
requirements (advertisement or invitation to bid, Instructions to Bidders, sample forms, the
Contractor’s bid or portions of Addenda relating to bidding requirements).




§ 1.1.2 THE CONTRACT



The Contract Documents form the Contract for Construction. The Contract represents the entire and
integrated agreement between the parties hereto and supersedes prior negotiations, representations
or agreements, either written or oral. The Contract may be amended or modified only by a
Modification. The 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 except as set forth in Paragraph 5.3 and Paragraph 5.4 of these General
Conditions, (3) between the Owner and Architect or (4) between any persons or entities other than
the Owner and Contractor. The Architect shall, however, be entitled to performance and enforcement
of obligations under the Contract intended to facilitate performance of the Architect’s duties.




§ 1.1.3 THE WORK



The term “Work” means the construction and services required by the Contract Documents, whether
completed or partially completed, and includes all other labor, materials, equipment and services
provided or to be provided by the Contractor to fulfill the Contractor’s obligations. The Work
constitutes a part of the Project.




§ 1.1.4 THE PROJECT



The “Project” is the total construction of which the Work performed under the Contract Documents
may be the whole or a part and which may include construction by the Owner or by separate
contractors.




§ 1.1.5 THE DRAWINGS



The “Drawings” are the graphic and pictorial portions of the Contract Documents showing the design,
location and dimensions of the Work, generally including plans, elevations, sections, details,
schedules and diagrams and are more particularly described in the Agreement.



§ 1.1.6 THE SPECIFICATIONS



The “Specifications” are that portion of the Contract Documents consisting of the written
requirements for materials, equipment, systems, standards and workmanship for the Work, and
performance of related services and are more particularly described in the Agreement.




§ 1.1.7 THE PROJECT MANUAL



The “Project Manual” is a volume assembled for the Work which may include the bidding requirements,
sample forms, Conditions of the Contract and Specifications.




§ 1.1.8 APPROVED



When the words “approved,” “satisfactory,” “proper” or “as directed” are used, approval by the
Owner shall be understood unless the Architect is specifically identified as the party whose action
is required.




§ 1.1.9 PROVIDE



When the word “provide” including derivatives thereof is used, it shall mean to properly fabricate,
complete, transport, deliver, install, erect, construct, test and furnish all labor, materials,
equipment, apparatus, appurtenances, and all items and expenses necessary to properly complete in
place, ready for operation or use under the terms of the Specifications.




§ 1.1.10 ADDENDA



Addenda are written or graphic instruments issued prior to the execution of the Contract which
modify or interpret the bidding documents, including the Drawings and Specifications, by additions,
deletions, clarifications or corrections.



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



10









 









§ 1.1.11 BULLETINS



Bulletins are written or graphic instruments issued by the Architect or the Owner after the
execution of the Contract which request a proposal from the Contractor that, if accepted by the
Owner, will cause the execution of a Change Order to modify the Contract Documents.




§ 1.1.12 KNOWLEDGE



The terms “knowledge,” “recognize,” and “discover,” their respective derivatives and similar terms
in the Contract Documents, as used in reference to the Contractor, shall be interpreted to mean
that which the Contractor knows (or should know), recognizes (or should recognize) and discovers
(or should discover) exercising reasonable care, skill, and diligence.




§ 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS



§ 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper
execution and completion of the Work by the 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. In the event
of inconsistencies within or between parts of the Contract Documents, or between the Contract
Documents and applicable standards, codes, and ordinances, the Contractor shall (i) provide the
better quality or greater quantity of Work or (ii) comply with the more stringent requirement;
either or both in accordance with the Architect’s interpretation. The terms and conditions of this
Subparagraph 1.2.1, however, shall not relieve the Contractor of any of the obligations set forth
in Subparagraphs 3.2 and 3.7.



§ 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement
of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in
establishing the extent of Work to be performed by any trade. Instructions and other information
furnished in the Specifications, including, without limitation, items in connection with
prefabricated or pre-finished items, are not intended to supersede work agreements between
employers and employees. Should the Specifications conflict with such work agreements, the work
agreements shall be followed, provided such items are provided and finished as specified. If
necessary, such Work shall be performed on the Project site, instead of at the shop, by appropriate
labor and in accordance with the requirements of the Drawings and Specifications.



§ 1.2.3 Unless otherwise stated in the Contract Documents, words which have well-known technical or
construction industry meanings are used in the Contract Documents in accordance with such
recognized meanings.





	 	.1	 	Whenever a product is specified in accordance with a Federal Specification, an
ASTM Standard, an American National Standards Institute Specification, or other
Association Standard, the Contractor unless the manufacturer has otherwise represented
compliances with said Standards or Specifications shall present an affidavit from the
manufacturer when requested by the Architect or the Owner, or required in the
Specifications, certifying that the product complies with the particular Standard or
Specification.
	 
	 	.2	 	Whenever a product is specified or shown by describing proprietary items, model
numbers, catalog numbers, manufacturer, trade names, or similar reference, no
substitutions may be made unless accepted in writing by the Owner. When two or more
products are shown or specified, the Contractor has the option to use either of those
shown or specified.




§ 1.2.4 The Contractor acknowledges that the Owner must comply with the requirements of the state
in which the Project is located and local jurisdictions. The Contractor agrees to use its best
efforts to assist the Owner in documenting compliance with such requirements, and shall furnish
materials, information, and data and execute documents and take other reasonable action requested
by the Owner to satisfy such obligations.




§ 1.3 CAPITALIZATION



§ 1.3.1 Terms capitalized in these General Conditions include those which are (1) specifically
defined in the Contract Documents, (2) the titles of numbered articles or (3) the titles of other
documents published by the American Institute of Architects.



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



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§ 1.4 INTERPRETATION



§ 1.4.1 In the interest of brevity the Contract Documents frequently omit modifying words such as
“all” and “any” and articles such as “the” and “an,” but the fact that a modifier or an article is
absent from one statement and appears in another is not intended to affect the interpretation of
either statement.




§ 1.5 EXECUTION OF CONTRACT DOCUMENTS



§ 1.5.1 The Contract Documents shall be signed or initialed by the Owner and Contractor.



§ 1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor has
visited the Project site, has performed thorough due diligence and satisfied itself as to the
nature of the Project site and with local conditions under which the Work is to be performed,
including, without limitation, traffic, transportation, handling and storage of materials,
availability of labor, water, power, roads, weather, above ground conditions at the Project site
and all other matters which can affect the Work or the cost thereof, which a reasonable examination
of the Project site should reveal and correlated personal observations with requirements of the
Contract Documents. The Contract Sum and GMP include payment for all Work that may be done to
overcome conditions that could have been foreseen by a fully qualified and experienced expert
general contracting firm performing thorough due diligence as described hereinabove, and no plea of
ignorance of conditions or limitations that exist or may arise affecting such Work or of
difficulties in performing the Work will be acceptable by Owner as an excuse for any failure or
omission by Contractor, or for a Change Order increasing the GMP, extra compensation, or as a basis
for an extension of the Contract Time. Prior to establishing the GMP, the Contractor and each
Subcontractor shall have evaluated and satisfied themselves as to the conditions and limitations
under which the Work is to be performed, including, without limitation, (i) the location,
condition, layout, and nature of the Project site and surrounding areas, (ii) generally prevailing
climatic conditions, (iii) anticipated labor supply and costs, (iv) availability and cost of
materials, tools, and equipment, and (v) other similar issues. The Owner assumes no responsibility
or liability for the physical condition or safety of the Project site or any improvements located
on the Project site. Except as set forth in Paragraph 10.3, the Contractor shall be solely
responsible for providing a safe place for the performance of the Work. The Owner shall not be
required to make any adjustment in either the GMP or the Contract Time in connection with any
failure by the Contractor or any Subcontractor to have complied with the requirements of this
Subparagraph 1.5.2. Notwithstanding the foregoing, claims for costs to be reimbursed relating to
items required or services performed by reason of the Contractor’s failure to familiarize itself
with the visible or apparent conditions at the site shall not increase the GMP.




§ 1.6 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE



§ 1.6.1 The Drawings, Specifications and other Contract Documents, including those in electronic
form, prepared by the Architect and the Architect’s consultants (“Work Product” and/or “Instruments
of Services”) shall be deemed the property of Owner. Neither the Contractor nor any Subcontractor,
Sub-subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings,
Specifications and other documents prepared by the Architect or the Architect’s consultants, and
the Owner shall be deemed to have been assigned and will retain all common law, statutory and other
reserved rights, in addition to the copyrights. All copies of the Work Product shall be returned
or suitably accounted for to the Owner, on request, upon completion of the Work. The Drawings,
Specifications and other documents prepared by the Architect and the Architect’s consultants, and
copies thereof furnished to the Contractor, are for use solely with respect to this Project. They
are not to be used by the Contractor or any Subcontractor (including, without limitation, any
Sub-subcontractor or material or equipment supplier) on other projects or for additions to this
Project outside the scope of the Work without the specific written consent of the Owner. The
Contractor and Subcontractors (including, without limitation, any Sub-subcontractors and material
or equipment suppliers) are authorized to use and reproduce applicable portions of the Drawings,
Specifications and other documents prepared by the Architect and the Architect’s consultants
appropriate to and for use in the execution of their Work under the Contract Documents. All copies
made under this authorization shall bear the statutory copyright notice, if any, shown on the
Drawings, Specifications and other documents prepared by the Architect and the Architect’s
consultants. Submittal or distribution to meet official regulatory requirements or for other
purposes in connection with this Project is not to be construed as publication in derogation of the
Owner’s copyrights or other reserved rights.



§ 1.6.2 CONTRACTOR-PROVIDED DOCUMENTS. Owner shall be granted an unlimited license to use
all documents (the “Contractor-Provided Documents”) provided by Contractor in connection with this
Agreement (as opposed to the Construction Documents which are to be prepared and provided by the
Architect). Such Contractor-Provided Documents shall include, but not be limited to, all
constructability studies, other design-assist documents and any other documents, reports, studies
and related items created through the Contractor’s performance of the Work (specifically including,
without limitation, the Preliminary Services and Procurement Services. Contractor shall furnish
Owner with



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



12








 







one complete set of reproductions of the Contractor-Provided Documents and a copy in
electronic format (if available). Except as follows, Owner may use the Contractor-Provided
Documents without further permission from Contractor for any purpose related to the Project.
Notwithstanding the foregoing, Owner acknowledges and agrees that Contractor’s estimates of
construction costs, if properly marked as confidential upon delivery, shall be treated as
confidential information and Owner shall use commercially reasonable efforts to safeguard such
confidentiality. The Owner shall nonetheless have the right without liability to show such
estimates of construction costs to the tenants of the Project and/or its design professionals
engaged in connection with the Project.




§ 1.7 CONFIDENTIALITY



§ 1.7.1 The Contractor warrants and represents that the Contractor shall not knowingly or
negligently communicate or disclose at any time to any person or entity any information in
connection with the Work or the Project other than those engaged by or through Contractor to
perform the Work, except (i) with prior written consent of the Owner, (ii) information that was in
the public domain prior to the date of this Agreement, (iii) information that becomes part of the
public domain by publication or otherwise not due to any unauthorized act or omission of the
Contractor, or (iv) as may be required to perform the Work or by any applicable law, including the
Record set of the Drawings, Specifications and other documents which the Contractor is permitted to
retain under Paragraph 1.6 above. Specific information shall not be deemed to fall within the
scope of the foregoing exceptions merely because it is embraced by more generic information which
falls within the scope of one or more of those exceptions. The Contractor shall not disclose to
others that specific information was received from the Owner even though it falls within the scope
of one or more of those exceptions. The Contractor acknowledges and agrees that the existence of
the Owner’s particular interests and plans in the geographical area of the Project is a type of
such specific information. In the event that the Contractor is required by any court of competent
jurisdiction or legally constituted authority to disclose any Owner Information, prior to any
disclosure thereof, the Contractor shall notify the Owner and shall give the Owner the opportunity
to challenge any such disclosure order or to seek protection for those portions that it regards as
confidential. The parties hereby acknowledge and agree that the terms and conditions set forth in
this Section 1.7 shall control over the terms and conditions of any prior confidentiality or
non-disclosure agreements entered into by the parties.



§ 1.7.2 The Contractor, at any time upon the request of the Owner, shall immediately return and
surrender to the Owner all copies of any materials, records, notices, memoranda, recordings,
drawings, specifications, and mock-ups and any other documents furnished by the Owner or the
Architect to the Contractor.



§ 1.7.3 The Contractor shall cause all Subcontractors or any other person or entity performing any
services, or furnishing any materials or equipment, for the Work to warrant and represent all items
set forth in this Paragraph 1.7.



§ 1.7.4 The representations and warranties contained in this Paragraph 1.7 shall survive the
complete performance of the Work or earlier termination of this Agreement.



§ 1.7.5 Any and all inventions and discoveries, whether or not patentable, conceived or made by the
Contractor as a result of the Contractor’s discussions with the Owner or performance of the Work
which are based substantially on the Owner’s proprietary information, shall be and shall become the
sole and exclusive property of the Owner. The Contractor agrees to disclose fully and promptly to
the Owner all such inventions and discoveries. Upon request by the Owner, the Contractor agrees to
assign such inventions and discoveries to the Owner, or cause them to be so assigned by its
personnel. Further, the Contractor shall execute, or cause to be executed by its personnel, all
applications, assignments or other instruments which the Owner may deem reasonably necessary in
order to enable the Owner at its expense, to apply for, prosecute and obtain patents in any country
for said inventions and discoveries, or in order to assign and transfer to the Owner the entire
right, title and interest thereto.




ARTICLE 2 OWNER



§ 2.1 GENERAL



§ 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to
throughout the Contract Documents as if singular in number. The term “Owner” means the Owner or
the Owner’s authorized representative, including, without limitation, Owner’s Representative.
Except as is expressly authorized in the Contract Documents, the Contractor has no right or
authority of any kind to act as the Owner’s Representative or otherwise on behalf of the Owner, and
is not an agent of Owner.



§ 2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written
request information necessary and relevant for the Contractor to give notice of or enforce
statutory mechanic’s lien rights, including, a correct



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



13








 







statement of the record legal title to the
property on which the Project is located and the Owner’s interest therein and the identity of any
lender’s providing construction financing to Owner with respect to the Project.




§ 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER



§ 2.2.1 The Owner shall not materially adversely vary financial arrangements to fulfill the Owner’s
obligations under the Contract without promptly notifying the Contractor.



§ 2.2.2 Except for permits and fees, including those required under Section 3.7.1 of these General
Conditions, which are the responsibility of the Contractor under the Contract Documents, the Owner
shall secure and pay for necessary approvals, easements, assessments and charges required for
development of real estate, use or occupancy of permanent structures or for permanent changes in
existing facilities; provided, however, that any approvals, easements, assessments, and charges
required in connection with the Contractor’s own internal operations are the responsibility of the
Contractor.



§ 2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations and
utility locations for the site of the Project, and a legal description of the site. The Contractor
shall be entitled to reasonably rely on the accuracy of information furnished by the Owner but
shall exercise proper precautions relating to the safe performance of the Work.



§ 2.2.4 Information or services required of the Owner by the Contract Documents shall be furnished
by the Owner with reasonable promptness. Any other information or services relevant to the
Contractor’s performance of the Work under the Owner’s control shall be furnished by the Owner
after receipt from the Contractor of a written request for such information or services.



§ 2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will be furnished, free
of charge, such copies of the Construction Documents and Project Manuals as are reasonably
necessary for execution of the Work.




§ 2.3 OWNER’S RIGHT TO STOP THE WORK



§ 2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of
the Contract Documents as required by Section 12.2 of these General Conditions or persistently
fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written
order to 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, except to the extent required by Section 6.1.3 of these General Conditions.




§ 2.4 OWNER’S RIGHT TO CARRY OUT THE WORK



§ 2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the
Contract Documents and fails within a seven-day period after receipt of written notice from the
Owner to commence and continue correction of such default or neglect with diligence and promptness,
the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies.
In such case an appropriate Change Order shall be issued deducting from payments then or thereafter
due the Contractor the reasonable cost of correcting such deficiencies, including Owner’s expenses
and compensation for the Architect’s additional services made necessary by such default, neglect or
failure. If payments then or thereafter due the Contractor are not sufficient to cover such
amounts, the Contractor shall pay the difference to the Owner.




§ 2.5 EXTENT OF OWNER RIGHTS



§ 2.5.1 The rights stated in this Article 2 and elsewhere in the Contract Documents are cumulative
and not in limitation of any rights of the Owner (1) granted in the Contract Documents, (2) at law
or (3) in equity.



§ 2.5.2 In no event shall the Owner have control over, charge of, or any responsibility for
construction means, methods, techniques, sequences or procedures, or for safety precautions and
programs in connection with the Work, notwithstanding any of the rights and authority granted the
Owner in the Contract Documents. Accordingly, Owner, Owner’s Representatives and other consultants
may provide information, suggestions, solutions and related assistance to the Contractor, but such
shall not relieve the Contractor of its obligations and duties hereunder including, but not limited
to, making and implementing the final decisions, having all charge of and responsibility for all
the means and methods for the Work and the Project.


 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



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ARTICLE 3 CONTRACTOR



§ 3.1 GENERAL



§ 3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred
to throughout the Contract Documents as if singular in number. The term “Contractor” means the
Contractor or the Contractor’s authorized representative, including, without limitation,
Contractor’s Representative.



§ 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents.



§ 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with
the Contract Documents either by activities or duties of the Architect in the Architect’s
administration of the Contract, or by tests, inspections or approvals required or performed by
persons other than the Contractor.




§ 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR



§ 3.2.1 Since the Contract Documents are complementary, before starting each portion of the Work,
the Contractor shall carefully study and compare the Contract Documents relative to that portion of
the Work, as well as the information furnished by the Owner pursuant to Section 2.2.3 of these
General Conditions, shall take field measurements of any existing conditions related to that
portion of the Work and shall observe any conditions at the site affecting it. These obligations
are for the purpose of facilitating construction by the Contractor and are not for the purpose of
discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors,
inconsistencies or omissions discovered by the Contractor shall be reported promptly to the
Architect as a request for information in the design information contained in such form as the
Architect may require.



§ 3.2.1.1 The exactness of grades, elevations, dimensions, or locations given on any Drawings
issued by the Architect, or the work installed by other contractors, is not guaranteed by the
Architect or the Owner. The Contractor shall, therefore, satisfy itself as to the accuracy of all
grades, elevations, dimensions, and locations. In all cases of interconnection of its Work with
existing or other work, it shall verify at the site all dimensions relating to such existing or
other work. Any errors due to the Contractor’s failure to so verify all such grades, elevations,
dimensions, or locations shall be promptly rectified by the Contractor without any additional cost
to the Owner. These obligations are for the purpose of facilitating construction by the Contractor
and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract
Documents; however, any errors, inconsistencies or omissions discovered by the Contractor shall be
reported promptly to the Architect as a request for information in the design information contained
in such form as the Architect may require.



§ 3.2.2 Any design errors or omissions noted by the Contractor during this review shall be reported
promptly to the Architect, but it is recognized that the Contractor’s review is made in the
Contractor’s capacity as a contractor and not as a licensed design professional unless otherwise
specifically provided in the Contract Documents. The Contractor is not required to discover
errors, omissions, or inconsistencies in the Contract Documents or to ascertain that the Contract
Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules
and regulations, but any nonconformity discovered by or made known to the Contractor shall be
reported promptly to the Architect.



§ 3.2.3 If the Contractor believes that additional cost or time is involved because of
clarifications or instructions issued by the Architect in response to the Contractor’s notices or
requests for information pursuant to Sections 3.2.1 and 3.2.2 of these General Conditions, the
Contractor shall make claims as provided in the Contract Documents. If the Contractor fails to
perform the obligations of Sections 3.2.1 and 3.2.2 of these General Conditions, the Contractor
shall pay such costs and damages to the Owner as would have been avoided if the Contractor had
performed such obligations. The Contractor shall not be liable to the Owner or Architect for
damages resulting from errors, inconsistencies or omissions in the Contract Documents or for
differences between field measurements or conditions and the Contract Documents unless the
Contractor recognized or should have recognized such error, inconsistency, omission or difference
and knowingly failed to report it to the Architect.




§ 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES



§ 3.3.1 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 the Contract Documents give other specific instructions concerning these
matters. If the Contract Documents give specific instructions concerning construction means,
methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety
thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety
of such means, methods,



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



15








 







techniques, sequences or procedures. If the Contractor determines that
such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give
timely written notice to the Owner and Architect and shall not proceed with that portion of the
Work without further written instructions from the Architect. If the Contractor is then instructed
to proceed with the required means, methods, techniques, sequences or procedures without acceptance
of changes proposed by the Contractor, the Owner shall be solely responsible for any resulting loss
or damage.



§ 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor’s
employees, Subcontractors and their agents and employees, and other persons or entities performing
portions of the Work for or on behalf of the Contractor or any of its Subcontractors.



§ 3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to
determine that such portions are in proper condition to receive subsequent Work. The Contractor
shall be responsible for locating the Work in accordance with property lines and elevations
established in the Contract Documents. Before commencing Work, Owner shall set all survey
monuments, the Contractor shall verify grades, lines, levels and dimensions indicated and report
errors or inconsistencies to the Architect and Owner. The Contractor shall not proceed until all
errors and inconsistencies, if any, are corrected. Should the Contractor proceed before all such
errors and inconsistencies are corrected, then, after the Contract Documents have been modified to
eliminate such errors and inconsistencies, the Contractor shall be obligated, at Contractor’s own
expense, to repair or remove and replace any portion of the Work that do not conform to such
modified Contract Documents.




§ 3.4 LABOR AND MATERIALS



§ 3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay
for labor, materials, equipment, tools, construction equipment and machinery, water, heat,
utilities, transportation, and other facilities and services necessary for proper execution and
completion of the Work, whether temporary or permanent and whether or not incorporated or to be
incorporated in the Work.



§ 3.4.2 The Contractor may make substitutions only with the written consent of the Owner, after
evaluation by the Architect and in accordance with a Change Order. If, the Contractor desires to
submit an alternate product or method in lieu of what has been specified or shown in the Contract
Documents, the following provisions shall apply:



§ 3.4.2.1 The Contractor must submit to the Architect and the Owner (i) a full explanation of the
proposed substitution and submittal of all supporting data, including technical information,
catalog cuts, warranties, test results, installation instructions, operating procedures, and other
like information necessary for a complete evaluation of the substitution; (ii) a written
explanation of the reasons the substitution is advantageous and necessary, including the benefits
to the Owner and the Work in the event the substitution is acceptable; (iii) the adjustment, if
any, in the Contract Sum and/or GMP, in the event the substitution is acceptable; (iv) the
adjustment, if any, in the time of completion of the Contract and the construction schedule in the
event the substitution is acceptable; and (v) an affidavit stating that (a) the proposed
substitution conforms to and meets all the requirements of the pertinent Specifications and the
requirements shown on the Drawings, and (b) the Contractor accepts the warranty and correction
obligations in connection with the proposed substitution as if originally specified by the
Architect. Proposals for substitutions shall be submitted in triplicate to the Architect in
sufficient time to allow the Architect no less than ten (10) business days for review. No
substitutions will be considered or allowed without the Contractor’s submittal of complete
substantiating data and information as stated hereinbefore.



§ 3.4.2.2 Substitutions and alternates may be rejected without explanation and will be considered
only under one or more of the following conditions: (i) the proposal is required for compliance
with interpretation of code requirements or insurance regulations then existing; (ii) specified
products are unavailable through no fault of the Contractor; (iii) subsequent information discloses
the inability of specified products to perform properly or to fit in the designated space; (iv) the
manufacturer/fabricator refuses to certify or guarantee the performance of the specified
product as required; and (v) when in the judgment of the Owner or the Architect, a substitution
would be substantially in the Owner’s best interests, in terms of cost, time, or other
considerations.



§ 3.4.2.3 Whether or not any proposed substitution is accepted by the Owner or the Architect, the
Contractor shall reimburse the Owner for any fees charged by the Architect or other consultants for
evaluating each proposed substitute.



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



16








 







§ 3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor’s
employees and other persons carrying out the obligations of the Contract Documents. The Contractor
shall not permit employment of unfit persons or persons not skilled in tasks assigned to them.



§ 3.4.4 The Contractor shall only employ labor on the Project or in connection with the Work
capable of working harmoniously with all trades, crafts and any other individuals associated with
the Project. The Contractor shall also use its best efforts to minimize the likelihood of any
strike, work stoppage or other labor disturbance. The Contractor shall comply with all
requirements of OSHA and shall defend, indemnify and hold the Owner harmless from any losses or
damages it may incur as a result of the Contractor’s failure to comply with OSHA requirements. In
case the progress of the Work is affected by any undue delay in furnishing or installing any items
or materials or equipment required under the Contract Documents because of such conflict involving
any such labor agreement or regulation, the Owner may require that other material or equipment of
equal kind and quality be provided pursuant to a Change Order or Construction Change Directive.




§ 3.5 WARRANTY



§ 3.5.1 The Contractor warrants to the Owner and Architect that materials and equipment furnished
under the Contract Documents will be of good quality and new unless otherwise required or permitted
by the Contract Documents, that the Work will be free from defects not inherent in the quality
required or permitted, and that the Work will conform to the requirements of the Contract
Documents. Work not conforming to these requirements, including substitutions not properly
approved and authorized, shall be considered defective. The 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 and normal usage. If
required by the Owner or Architect, the Contractor shall furnish satisfactory evidence as to the
kind and quality of materials and equipment. Notwithstanding anything in Subparagraph 4.3.2 to the
contrary, any Claim by the Owner against the Contractor, any Subcontractor, supplier, agent or
employee of any of them pursuant to this Paragraph 3.5.1 may be made at any time within the time
period specified in the applicable statute of limitations.



§ 3.5.2 As a condition precedent to final acceptance of the Work by the Owner and prior to
receiving final payment for the Work, the Contractor shall warrant in writing to the Owner that it
will repair or replace any or all Work, and each Subcontractor shall warrant in writing to the
Owner that it will repair or replace any or all of that portion of the Work performed by such
Subcontractor, together with any other Work which may be displaced, damaged or marred in so doing,
that may prove defective in materials or workmanship or fail to conform to the Contract Documents
or Legal Requirements, all without any additional expense to the Owner. All warranties shall be in
the form required by Section 3.5.4 or as otherwise approved by the Owner. The Contractor shall
warrant all Work in place as new Work. The Contractor shall use its best efforts to assist the
Owner in enforcing the warranties of Subcontractors, manufacturers and suppliers. The warranties
shall not be construed to modify or limit, in any way, any rights or actions which the Owner may
otherwise have against the Contractor by law or statute, or in equity. All warranties, including
all equipment warranties, will inure to the benefit of the Owner and the Owner’s successors and
assigns. The Contractor agrees to perform the Work in such manner so as to preserve any and all
such manufacturer’s warranties.



§ 3.5.2.1 The Contractor shall warrant its Work and provide forty-eight (48) hour call back service
for the equipment and materials provided by the Contractor for a period of a minimum of one (1)
year after Substantial Completion and acceptance of the Work and issuance of the Certificate of
Occupancy. Equipment or building systems/components may be warranted for a period in excess of one
(1) year by the manufacturer, as provided by the Contract Documents.



§ 3.5.2.2 Without limiting the other provisions of this Paragraph 3.5, the Contractor shall assign
to the Owner all warranties provided by those who furnish equipment, materials and/or services in
connection with the Work and all such warranties shall warrant all Work in place as new work.



§ 3.5.3 The Contractor, as condition of final payment, will submit to the Owner a minimum of three
(3) sets of hardbound notebooks each containing the following information:





	 	.1	 	All Subcontractor, Sub-subcontractor and supplier warranties fully executed in
the form provided in Subparagraph 3.5.4.
	 
	 	.2	 	The Contractor’s warranty, and
	 
	 	.3	 	A list of all Subcontractors, Sub-subcontractors and suppliers who performed
Work on the Project or who furnished materials for use in the Project, such list to
include the name, address, telephone number and responsible person at all such
entities.





 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



17








 







§ 3.5.4 Unless otherwise required by the Contract Documents, the following form of warranty shall
be used on this Project: (Contractor/Subcontractor/Sub-subcontractor or supplier letterhead) We,
the undersigned, hereby warrant that the (portion of the work guaranteed)
                                                                                                     work which we have performed on
the (Name of the Project)                                                                                  at (Project Address)
                                                                                                     has been performed
and the materials and equipment we have supplied to and/or installed in the Project have been
supplied or installed in accordance with the Contract Documents, all applicable laws, the
manufacturers’ recommendations and the warranty included in the Contract Documents (collectively,
the “Requirements”). We agree to repair or replace any or all of our work and/or materials and
equipment, together with any other work and/or materials and equipment that may be damaged,
displaced or marred in so doing or that may have been damaged, displaced or marred in connection
with the performance of that work or by reason of any defects in materials or equipment installed
as part of that work, that may prove to be defective in its workmanship or materials, or that may
fail to conform with the Requirements, without any expense whatsoever to the Owner, excluding
damage or defect caused by abuse, Modification not executed by the Contractor, improper or
insufficient maintenance, improper operation or normal wear and tear under normal usage unless
resulting from the negligence, act or omission of the Contractor, any Subcontractor,
Sub-subcontractor or supplier or the agent or employee of any of them.



If we fail to comply with the foregoing agreement within forty-eight (48) hours after being
requested to do so in writing by the Owner, we do hereby authorize the Owner to have the defective
or nonconforming work and/or materials and equipment repaired or replaced at our expense in which
event all costs and expenses incurred in connection therewith shall be payable by us on demand.
Our liability hereunder shall be joint and several.




	 	 	 	 	 
	 

	 	 	 	 
	Date:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Contractor/Subcontractor/Sub-subcontractor or supplier:	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	(Original signature)	 	 






	 	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 
	State License No.:
	 	 	 	 
	 

	 	 	 	 
	License Classification:
	 	 	 	 
	 

	 	 	 	 
	Address:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	Telephone No.
	 	 	 	 
	 

	 	 	 	 
	Telefax No.
	 	 	 	 
	 

	 	 	 	 




§ 3.5.5 If Contractor uses any portion of the Work or the Owner’s other property prior to the date
of Substantial Completion of the entire Work, such items shall be restored to their condition
existing immediately prior to such use, or as otherwise specified in the Contract Documents. The
Contractor’s warranty and agreement to correct defective Work shall specifically include the
Contractor’s obligations under this paragraph.



§ 3.5.6 All Work shall be guaranteed for a period of one (1) year after the date of Substantial
Completion of the Work unless otherwise agreed upon in writing by Owner and Contractor. The
Contractor shall secure and deliver to the Owner written warranties and guarantees from all
Subcontractors bearing the date of Substantial Completion, together with assignments thereof, if
necessary, and delivery of such items shall be a condition precedent to final payment.
Notwithstanding anything to the contrary contained in the Contract Documents, if requested by
Owner, Contractor shall use its best efforts to secure warranties from manufacturers, which
warranties extend beyond one (1) year from the date of Substantial Completion.




§ 3.6 TAXES



§ 3.6.1 The Contractor shall pay as a Cost of the Work all sales, consumer, use and similar taxes
for the Work provided by the Contractor which are legally enacted when expenses for the Work are
incurred, whether or not yet effective or merely scheduled to go into effect.




§ 3.7 PERMITS, FEES AND NOTICES



§ 3.7.1 Except as set forth in Subparagraph 2.2.2, the Contractor shall secure, pay for, and, as
soon as practicable, furnish the Owner with copies of all permits and fees, licenses, and
inspections necessary for the proper execution and



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



18








 







completion of the Work, including, without
limitation, all building permits, provided that all actual costs incurred by Contractor with
respect to the foregoing shall be reimbursed by Owner promptly following Contractor’s demand
therefor (which demand shall be accompanied by satisfactory evidence of Contractor’s payment of the
same). All connection charges, assessments, or inspection fees as may be imposed by any municipal
agency or utility company are included in the Contract Sum and the GMP and shall be the
Contractor’s responsibility.



§ 3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules,
regulations and lawful orders and all other requirements of public authorities applicable to
performance of the Work. The Contractor shall also obtain and pay all charges for all approvals
for street closings, parking meter removal, and other similar matters as may be necessary or
appropriate from time to time for the performance of the Work.



§ 3.7.3 It is not the Contractor’s responsibility to ascertain that the Contract Documents are in
accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations.
However, if the Contractor observes that portions of the Contract Documents are at variance
therewith, the Contractor shall promptly notify the Architect and Owner in writing, and necessary
changes shall be accomplished by appropriate Modification unless such laws, statutes, ordinances,
building codes, and rules and regulations bear upon the performance of the Work.



§ 3.7.4 If the Contractor performs Work it should have known or knows to be contrary to any Legal
Requirements, then the Contractor shall assume appropriate responsibility for such Work and shall
bear the costs attributable to correction.



§ 3.7.5 The Contractor shall make all necessary arrangements and perform all necessary services in
the care and maintenance of all public facilities during the construction period and until final
acceptance of the Work by the Owner. Should any permits or inspections be necessary for the use of
public streets, sidewalks or other facilities, the Contractor shall obtain all necessary permits,
post all necessary guarantees and bonds and be responsible for repair and correction of damage as
required by authorities having jurisdiction.




§ 3.8 ALLOWANCES



§ 3.8.1 The Contractor shall include in the GMP all allowances stated in the Contract Documents.
Items covered by allowances shall be supplied for such amounts and by such persons or entities as
the Owner may direct, but the Contractor shall not be required to employ persons or entities to
whom the Contractor has reasonable objection.



§ 3.8.2 Unless otherwise provided in the Contract Documents:





	 	.1	 	allowances shall cover the cost to the Contractor of materials and equipment
delivered at the site and all required taxes, less applicable trade discounts;
	 
	 	.2	 	Contractor’s costs for unloading and handling at the site, labor, installation
costs, overhead, profit and other expenses contemplated for stated allowance amounts
shall be included in the GMP but not in the allowances;
	 
	 	.3	 	whenever costs are more than or less than allowances, the GMP shall be adjusted
accordingly by Change Order. The amount of the Change Order shall reflect (1) the
difference between actual costs and the allowances under Section 3.8.2.1 of these
General Conditions and (2) changes in Contractor’s costs under Section 3.8.2.2 of these
General Conditions.




§ 3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient
time to avoid delay in the Work.




§ 3.9 SUPERINTENDENT



§ 3.9.1 In accordance with the requirements of the Contract Documents, the Contractor shall employ
a competent superintendent and necessary assistants who shall be in attendance at the Project site
during performance of the Work. The superintendent shall represent the Contractor, and
communications given to the superintendent shall be
as binding as if given to the Contractor. Important communications shall be confirmed in writing.
Other communications shall be similarly confirmed on written request in each case.




§ 3.10 CONTRACTOR’S CONSTRUCTION SCHEDULES



§ 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for
the Owner’s and Architect’s information a Contractor’s construction schedule for the entire Work
(the “Project Schedule”). The Project Schedule shall not exceed time limits current under the
Contract Documents, shall be revised at appropriate intervals as



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



19








 







required by the conditions of the
Work and Project, shall be related to the entire Project to the extent required by the Contract
Documents, and shall provide for expeditious and practicable execution of the Work.



§ 3.10.2 The Contractor shall prepare and keep current, for the Owner and Architect’s approval, a
schedule of submittals which is coordinated with the Project Schedule and allows the Owner and
Architect reasonable time to review submittals.



§ 3.10.3 The Contractor shall perform the Work in general accordance with the most recent progress
schedules and Project Schedule submitted to the Owner and Architect.



§ 3.10.4 The construction schedule shall (i) provide a graphic representation of all activities and
events that will occur during performance of the Work; (ii) identify each phase of construction and
occupancy; and (iii) set forth dates that are critical in ensuring the timely and orderly
completion of the Work in accordance with the requirements of the Contract Documents (hereinafter
referred to as “Milestone Dates”). The Contractor shall monitor the progress of the Work for
conformance with the requirements of the construction schedule and shall promptly advise the Owner
of any delays or potential delays. The accepted construction schedule shall be updated to reflect
actual conditions (sometimes referred to in these General Conditions as “progress reports”) as set
forth in Subparagraph 3.10.1 or if requested by either the Owner or the Architect. In the event
any progress report indicates any delays, the Contractor shall propose an affirmative plan to
correct the delay, including overtime and/or additional labor, if necessary. In no event shall any
progress report constitute an adjustment in the Contract Time, any Milestone Date, or the GMP
unless any such adjustment is agreed to by the Owner and authorized pursuant to Change Order.



§ 3.10.5 In the event the Owner determines that the performance of the Work, as of a Milestone
Date, has not progressed or reached the level of completion required by the Contract Documents, the
Owner shall have the right to order the Contractor to take corrective measures necessary to
expedite the progress of construction, including, without limitation, (i) working additional shifts
or overtime, (ii) supplying additional manpower, equipment, and facilities, and (iii) other similar
measures (hereinafter referred to collectively as “Extraordinary Measures”). Such Extraordinary
Measures shall continue until the progress of the Work complies with the stage of completion
required by the Contract Documents. The Owner’s right to require Extraordinary Measures is solely
for the purpose of ensuring the Contractor’s compliance with the construction schedule.



§ 3.10.5.1 The Contractor shall not be entitled to an adjustment in the GMP in connection with
Extraordinary Measures required by the Owner under or pursuant to this Subparagraph 3.10.5.



§ 3.10.5.2 The Owner may exercise the rights furnished the Owner under or pursuant to this
Subparagraph 3.10.5 as frequently as the Owner deems necessary to ensure that the Contractor’s
performance of the Work will comply with any Milestone Date or completion date set forth in the
Contract Documents.



§ 3.10.6 The Owner shall have the right to direct a postponement or rescheduling of any date or
time for the performance of any part of the Work that may interfere with the operation of the
Owner’s premises or any tenants or invitees thereof. The Contractor shall, upon the Owner’s
request, reschedule any portion of the Work affecting operation of the premises during hours when
the premises are not in operation. Any postponement, rescheduling, or performance of the Work
under this Subparagraph 3.10.6 may be grounds for an extension of the Contract Time, if permitted
under Subparagraph 8.3.1, and an equitable adjustment in the GMP if (i) the performance of the Work
was properly scheduled by the Contractor in compliance with the requirements of the Contract
Documents, and (ii) such rescheduling or postponement is required for the convenience of the Owner.




§ 3.11 DOCUMENTS AND SAMPLES AT THE SITE



§ 3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the Drawings,
Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently
to record field changes and
selections made during construction, and one record copy of approved Shop Drawings, Product Data,
Samples and similar required submittals. These shall be available to the Architect and the Owner
and shall be delivered to the Architect for submittal to the Owner upon completion of the Work.



§ 3.11.2 The Contractor shall maintain at the Project Site, and shall make available to Owner and
Architect, one record copy of the Drawings (the “Record Drawings”) in good order. The Record
Drawings shall be prepared and updated during the prosecution of the Work and shall be reviewed
monthly with Owner’s Representatives. The prints for Record



 


AIA
Document A201TM — 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987 and 1997 by
The American Institute of Architects. All rights reserved.
WARNING: This AIA® Document is protected by U.S. Copyright Law and
International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe
civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA
software at 13:17:02 on 12/14/2004 under Order No.1000135790_1 which
expires on 8/31/2005, and is not for resale.



	User Notes: A201 Form	(2166203743)



20








 





Drawing use will be a set of blackline
prints provided by the Architect to the Contractor at the start of construction. The Contractor
shall maintain the set of blackline prints in good condition and shall use colored pencils to mark
up said set with “record information” in a legible manner to show: (i) deviations from the
Drawings made during construction; (ii) details in the Work not previously shown; (iii) changes to
existing conditions or existing conditions found to differ from those shown on any existing
Drawings; (iv) the actual installed position of equipment, piping, conduits, light switches,
electric fixtures, circuiting, ducts, dampers, access panels, control valves, drains, openings, and
stub outs; and (v) such other information as Owner or Architect may reasonably request. At the
completion of the Work, the Contractor shall deliver all Record Drawings to Owner. Final payment
and any retainage shall not be due and owing to the Contractor until the final Record Drawings
marked by the Contractor as required above are delivered to Owner.




§ 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES



§ 3.12.1 “Shop Drawings” are drawings, diagrams, schedules and other data specially prepared for
the Work by the Contractor or a Subcontractor, including, without limitation, a Sub-subcontractor,
manufacturer, supplier or distributor, to illustrate some portion of the Work.



§ 3.12.2 “Product Data” are illustrations, standard schedules, performance charts, instructions,
brochures, diagrams and other information furnished by the Contractor to illustrate materials or
equipment for some portion of the Work.



§ 3.12.3 “Samples” are physical examples which illustrate materials, equipment or workmanship and
establish standards by which the Work will be judged.



§ 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents.
The purpose of their submittal is to demonstrate for those portions of the Work for which
submittals are required by the Contract Documents the way by which the Contractor proposes to
conform to the information given and the design concept expressed in the Contract Documents.
Review by the Architect is subject to the limitations of Section 4.2.7 of these General Conditions.
Informational submittals upon which the Architect is not expected to take responsive action may be
so identified in the Contract Documents. Submittals which are not required by the Contract
Documents may be returned by the Architect without action.



§ 3.12.5 The Contractor shall review for compliance with the Contract Documents, approve and submit
to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the
Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work
or in the activities of the Owner or of separate contractors. Submittals which are not marked as
reviewed for compliance with the Contract Documents and are approved by the Contractor may be
returned by the Architect without action.



§ 3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals,
the Contractor represents that the Contractor has determined and verified materials, field
measurements and field construction criteria related thereto, or will do so, and has checked and
coordinated the information contained within such submittals with the requirements of the Work and
of the Contract Documents.



§ 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents
require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until
the respective submittal has been approved by the Architect.



§ 3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall
not be relieved of responsibility for deviations from requirements of the Contract Documents by the
Architect’s approval of Shop Drawings, Product Data, Samples or similar submittals unless the
Contractor has specifically informed the Architect in writing of such deviation at the time of
submittal and (1) the Architect has given written approval to the specific deviation as a minor
change in the Work, or (2) a Change Order or Construction Change Directive has been issued
authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or
omissions in Shop Drawings, Product Data, Samples or similar submittals by the Architect’s approval
thereof.



§ 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop
Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by
the Architect on previous submittals. In the absence of such written notice the Architect’s
approval of a resubmission shall not apply to such revisions.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)






21









 







§ 3.12.10 The Contractor shall not be required to provide professional services which constitute
the practice of architecture or engineering unless such services are specifically required by the
Contract Documents for a portion of the Work such as design/build portions of the Work, if any, or
unless the Contractor needs to provide such services in order to carry out the Contractor’s
responsibilities for construction means, methods, techniques, sequences and procedures. All shop
drawings for any architectural, structural, mechanical or electrical work must be submitted to, and
approved by, the Architect. The Contractor represents and warrants that all Shop Drawings shall be
prepared by persons and entities possessing expertise and experience in the trade for which the
Shop Drawing is prepared and, if required by Architect or applicable law, by a licensed engineer.
All Documents, Samples, Product Data and Shop Drawings which are required to be delivered to, or
available for, any party pursuant to Paragraph 3.10 or 3.11 shall be delivered to or available for
Owner. The Contractor shall not be required to provide professional services in violation of
applicable law. If professional design services or certifications by a design professional related
to systems, materials or equipment are specifically required of the Contractor by the Contract
Documents, the Owner and the Architect will specify all performance and design criteria that such
services must satisfy. The Contractor shall cause such services or certifications to be provided
by a properly licensed design professional, whose signature and seal shall appear on all drawings,
calculations, specifications, certifications, Shop Drawings and other submittals prepared by such
professional. Shop Drawings and other submittals related to the Work designed or certified by such
professional and who shall comply with reasonable requirements of the Owner regarding
qualifications and insurance, if prepared by others, shall bear such professional’s written
approval when submitted to the Architect. The Owner and the Architect shall be entitled to rely
upon the adequacy, accuracy and completeness of the services, certifications or approvals performed
by such design professionals. Pursuant to this Section 3.12.10, the Architect will review, approve
or take other appropriate action on submittals only for the limited purpose of checking for
conformance with information given and the design concept expressed in the Contract Documents. The
Contractor shall not be responsible for the adequacy of the performance or design criteria required
by the Contract Documents.



§ 3.12.11 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals,
the Contractor represents that the Contractor has determined and verified materials, filed
measurements and field construction criteria related thereto, or will do so, and has checked and
coordinated the information contained within such submittals with the requirements of the Work and
of the Contract Documents.




§ 3.13 USE OF SITE



§ 3.13.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances,
permits and the Contract Documents and shall not unreasonably encumber the Project site with
materials or equipment.



§ 3.13.2 Only materials and equipment which are to be used directly in the Work shall be brought to
and stored on the Project Site by the Contractor. After equipment is no longer required for the
Work, it shall be promptly removed from the Project Site. Protection of construction materials and
equipment stored at the Project Site from weather, theft, damage and all other adversity is solely
the responsibility of the Contractor.



§ 3.13.3 The Contractor and any entity for whom the Contractor is responsible shall not erect any
sign on the Project Site without the prior written consent of the Owner.



§ 3.13.4 The Contractor shall ensure that the Work, at all times, is performed in a manner that
affords reasonable access, both vehicular and pedestrian, to the Project Site and all adjacent
areas. The Work shall be performed, to the fullest extent reasonably possible, in such a manner
that public areas adjacent to the Project Site shall be free from all debris, building materials
and equipment likely to cause hazardous conditions. Without limitation of any other provision of
the Contract Documents, the Contractor shall use its best efforts to minimize any interference with
the occupancy or beneficial use of the Project in the event of partial occupancy, as more
specifically described in Paragraph 9.9 of these General Conditions.




§ 3.14 CUTTING AND PATCHING



§ 3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete
the Work or to make its parts fit together properly.



§ 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially
completed construction of the Owner or separate contractors by cutting, patching or otherwise
altering such construction, or by excavation. The



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)








22









 







Contractor shall not cut or otherwise alter such
construction by the Owner or a separate contractor except with written consent of the Owner and of
such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall
not unreasonably withhold from the Owner or a separate contractor the Contractor’s consent to
cutting or otherwise altering the Work.




§ 3.15 CLEANING UP



§ 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of
waste materials or rubbish caused by operations under the Contract. During the Construction and 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, in a
manner consistent with all provisions, including, but not limited to the Legal Requirements, and
shall leave all floor services in a broom-clean condition and clean all other surfaces.



§ 3.15.2 If the Contractor fails to clean up at the completion of the Work, the Owner may do so as
provided in the Contract Documents, and the cost thereof shall be deducted from the Contract Sum.



§ 3.15.3 Unless otherwise required in the Contract Documents, during the course of the construction
of the Project and as the Contractor completes the Project, the Contractor shall clean all streets
within the Project area, and the Contractor shall maintain construction fencing and screening,
security, insurance, a construction trailer with a working telephone, and a project representative
(although such project representative is not required to be officed on site) until the Date of
Final Completion or such later date as is required elsewhere in the Contract. The Contractor
hereby acknowledges and agrees that the Contractor shall not disassemble and/or remove the
construction fencing, the on-site construction trailer and the Project security for which
Contractor is responsible until the earlier of (a) the date on which the Contractor has completed
the last portion of the Work and has submitted its certificate of Final Completion to the Owner and
Lender for the Work, or (b) the date the Contractor receives written direction or permission from
the Owner and the Owner’s Lender to disassemble and remove such items.



§ 3.15.4 The Contractor’s clean-up responsibilities shall include, without limitation, the
following: remove stains, spots, marks and dirt; remove paint, spots and smears from all surfaces;
and leave the Work clean of dirt, smattering of paint, plaster, concrete, mortar, fingerprints and
foreign matter. Further, the Contractor shall clean fixtures, cabinet work and equipment, removing
stains, paint, dirt and dust, and leave same in undamaged, new condition; clean aluminum in
accordance with recommendations of the manufacturer; and clean resilient floors thoroughly with a
well rinsed mop containing only enough moisture to clean off an surface dirt or dust and buff dry
by machine to bring the surfaces to sheen.



§ 3.15.5 If there is any conflict between these requirements for clean-up and the Specifications,
the more stringent requirements shall be complied with by the Contractor.




§ 3.16 ACCESS TO WORK



§ 3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and
progress wherever located.



§ 3.16.2 Owner’s insurance company, construction or project managers, Owner’s Representatives,
Architect, engineers, and consultants will have access to the Project at all times for the purpose
of inspecting the Work provided such parties comply with the Contractor’s reasonable safety
procedures.




§ 3.17 ROYALTIES, PATENTS AND COPYRIGHTS



§ 3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend
suits or claims for infringement of copyrights and patent rights and shall hold the Owner and
Architect harmless from loss on account thereof, but shall not be responsible for such defense or
loss when a particular design, process or product of a particular manufacturer or manufacturers is
required by the Contract Documents or where the copyright violations are contained in Drawings,
Specifications or other documents prepared by the Owner or Architect. However, if the Contractor
has reason to believe that the required design, process or product is an infringement of a
copyright or a patent, the Contractor shall be responsible for such loss unless such information is
promptly furnished to the Architect.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
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§ 3.18 INDEMNIFICATION



§ 3.18.1 To the fullest extent permitted by law, and in addition to all other indemnities provided
at law, in equity, or in the Contract Documents, Contractor shall indemnify, defend, protect and
hold harmless Owner, any lenders for the Project and each of their respective parents,
subsidiaries, shareholders, partners, members, affiliates, agents, officers and directors, at every
tier, and all of the respective heirs, executors, successors and assigns of all of the foregoing
(collectively, the “Owner Parties”), and the Architect and the Project (the Owner Parties and the
Architect shall be collectively referred to as the “Indemnities”) from and against all claims,
demands, debts, causes of action, liabilities, losses, penalties, fines, judgments, awards,
damages, costs, and expenses, including, without limitation, actual attorneys’ fees and costs
(collectively, “Claims” and individually, a “Claim”) resulting or arising from or related to the
performance of the Work, caused in whole or in part by breach of the Contract Documents by
Contractor or the negligent acts or omissions of the Contractor, any Subcontractor, including
without limitation, any Sub-subcontractor or material supplier, or anyone employed directly or
indirectly by any of the foregoing or for whose acts any of the foregoing may be liable regardless
of whether or not such Claim is caused in part by a party indemnified hereunder. Such obligation
shall not be construed as to negate, abridge or otherwise reduce any other right or obligation of
indemnity which would otherwise exist under the Contract Documents and/or under the law as to any
party described in this Paragraph 3.18. The Contractor shall, upon receipt of notice of any claim,
promptly take all action necessary to make a claim under any applicable insurance policy or
policies the Contractor is carrying and maintaining; however, if the Contractor fails to take such
action as is necessary to make a claim under any such insurance policy, the Contractor shall
indemnify and save harmless the Indemnitees from any and all costs, charges, expenses and
liabilities incurred by the Owner in making any claim on behalf of the Contractor under any
insurance policy or policies required pursuant to Paragraph 11.1. The obligations described in
this Subparagraph 3.18.1 shall survive the termination of this Contract.




§ 3.18.2 The provisions of this Paragraph 3.18 shall survive the termination of the Contract
Documents and shall not be limited in any way by the amount or type of insurance, including,
without limitation, benefits payable by or for the Contractor, or any Subcontractor under any
workers’ compensation act, disability benefit acts, or other employee benefit acts.




§ 3.18.3 The Contractor’s indemnity obligations under this Paragraph shall, but not by way of
limitation, specifically include all claims and judgments which may be made against the Indemnitees
under any “safe place to work” or similar-type statute, similar laws of a state or other
governmental body having jurisdiction, and further, against claims and judgments arising from
violation of public ordinances and requirements of governing authorities due to the Contractor’s or
Subcontractor’s method of execution of the Work.




§ 3.18.4 The indemnification obligations of the Contractor under this Contract shall be limited
only to the extent required by the laws of the State of California.




ARTICLE 4 ADMINISTRATION OF THE CONTRACT



§ 4.1 ARCHITECT



§ 4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity
lawfully practicing architecture identified as such in the Agreement and is referred to throughout
the Contract Documents as if singular in number. The term “Architect” means the Architect or the
Architect’s authorized representative. The term Architect refers to the Architect identified in
the Agreement. Any reference in the Contract Documents to the Architect’s taking action or
rendering a decision within a “reasonable time” is
understood to mean no more than two (2) weeks.



§ 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the
Contract Documents shall not be restricted, modified or extended without written consent of the
Owner.



§ 4.1.3 If the employment of the Architect is terminated, the Owner shall employ a new Architect
and the Architect’s status under the Contract Documents shall be that of the former Architect.




§ 4.2 ARCHITECT’S ADMINISTRATION OF THE CONTRACT



§ 4.2.1 The Architect will provide administration of the Contract as described in the Contract
Documents. The Architect will have authority to act on behalf of the Owner only to the extent
provided in the Contract Documents, unless otherwise modified in writing in accordance with other
provisions of the Contract.



§ 4.2.2 The Architect, as a representative of the Owner, will visit the Project site at intervals
appropriate to the stage of the Contractor’s operations (1) to become generally familiar with and
to keep the Owner informed about the progress and



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
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quality of the portion of the Work completed, (2)
to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine
in general if the Work is being performed in a manner indicating that the Work, when fully
completed, will be in accordance with the Contract Documents. However, the Architect will not be
required to make exhaustive or continuous on-site inspections to check the quality or quantity of
the Work. The Architect will neither have control over or charge of, nor be responsible for, the
construction means, methods, techniques, sequences or procedures, or for the safety precautions and
programs in connection with the Work, since these are solely the Contractor’s rights and
responsibilities under the Contract Documents, except as provided in Section 3.3.1 of these General
Conditions.



§ 4.2.3 The Architect will not be responsible for the Contractor’s failure to perform the Work in
accordance with the requirements of the Contract Documents. The Architect will not have control
over or charge of and will not be responsible for acts or omissions of the Contractor,
Subcontractors, or their agents or employees, or any other persons or entities performing portions
of the Work.



§ 4.2.4 Communications Facilitating Contract Administration. Unless otherwise directed by Owner,
Owner and Contractor shall provide Architect with the substance of their material communications
about matters arising out of or relating to the Contract Documents. Communications by and with the
Architect’s consultants shall be through the Architect. Communications by and with Subcontractors
and material suppliers shall be through the Contractor. Communications by and with separate
contractors shall be through the Owner.



§ 4.2.5 Except as elsewhere provided in the Agreement, based on the Architect’s evaluations of the
Contractor’s Applications for Payment, the Architect will review and certify the amounts due the
Contractor and, with Owner’s approval, will issue Certificates for Payment in such amounts.



§ 4.2.6 The Architect will advise the Owner to reject Work that does not conform to the Contract
Documents. Whenever the Architect considers it necessary or advisable, the Architect will advise
the Owner to require inspection or testing of the Work in accordance with Sections 13.5.2 and
13.5.3 of these General Conditions, whether or not such Work is fabricated, installed or completed.



§ 4.2.7 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. The Architect’s action will be taken with such reasonable promptness as to
cause no delay in the Work or in the activities of the Owner, Contractor or separate contractors,
while allowing sufficient time in the Architect’s professional judgment to permit adequate review.
Review of such submittals is not conducted for the purpose of determining the accuracy and
completeness of other details such as dimensions and quantities, or for substantiating instructions
for installation or performance of equipment or systems, all of which remain the responsibility of
the Contractor as required by the Contract Documents. The Architect’s review of the Contractor’s
submittals shall not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12 of
these General Conditions. The Architect’s review shall not constitute approval of safety
precautions or, unless otherwise specifically stated by the Architect, of any construction means,
methods, techniques, sequences or procedures. The Architect’s approval of a specific item shall
not indicate approval of an assembly of which the item is a component.



§ 4.2.8 The Architect, with the approval of Owner, will prepare Change Orders and Construction
Change Directives.



§ 4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial
Completion and the date of final completion, will receive and forward to the Owner, for the Owner’s
review and records, written warranties and related documents required by the Contract and assembled
by the Contractor, and with the approval of Owner, will issue a final Certificate for Payment upon
compliance with the requirements of the Contract Documents.



§ 4.2.10 If the Owner and Architect agree, the Architect will provide one or more Project
representatives to assist in carrying out the Architect’s responsibilities at the site. The
duties, responsibilities and limitations of authority of such Project representatives shall be as
is mutually and reasonably agreed upon by the parties.



§ 4.2.11 The Architect will interpret and decide matters concerning performance under and
requirements of, the Contract Documents. The Architect’s response to such requests will be made in
writing and with reasonable promptness.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
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§ 4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and
reasonably inferable from the Contract Documents and will be in writing or in the form of drawings.
When making such interpretations and initial decisions, the Architect will endeavor to secure
faithful performance by both Owner and Contractor, will not show partiality to either and will not
be liable for results of interpretations or decisions so rendered in good faith.



§ 4.2.13 The Owner’s decisions on matters relating to aesthetic effect will be final.




§ 4.3 CLAIMS AND DISPUTES



§ 4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of
right, adjustment or interpretation of Contract terms, payment of money, extension of time or other
relief with respect to the terms of the Contract. The term “Claim” also includes other disputes
and matters in question between the Owner and Contractor arising out of or relating to the
Contract. Claims must be initiated by written notice. The responsibility to substantiate Claims
shall rest with the party making the Claim.



§ 4.3.2 Time Limits on Claims. Claims by either party must be initiated within 21 days after
occurrence of the event giving rise to such Claim or within 21 days after the claimant first
recognizes the condition giving rise to the Claim, whichever is later; provided, however, that the
claimant shall use its best efforts to furnish the other party, as expeditiously as possible, with
notice of any Claim including, without limitation, those in connection with concealed or unknown
conditions, once such claim is recognized, and shall cooperate with the party against whom the
claim is made in any effort to mitigate the alleged or potential damages, delay, or other adverse
consequences arising out of the condition that is the cause of such a Claim. Claims must be
initiated by written notice to the other party. Claims may also be reserved in writing within the
time limits set forth in this Subparagraph 4.3.2. If a Claim is reserved, the Resolution of Claims
and Disputes procedures described in Paragraph 4.4 of the Agreement shall not commence until a
written notice from the claimant is received by the other party. Any notice of Claim or
reservation of Claim must clearly identify the alleged cause and the nature of the Claim and
include data and information then available to the claimant that will facilitate prompt
verification and evaluation of the Claim.



§ 4.3.3 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise
agreed in writing or as provided in Section 9.7.1 and Article 14, the Contractor shall proceed
diligently with performance of the Contract and the Owner shall continue to make undisputed
payments in accordance with the Contract Documents.



§ 4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site
which are (1) subsurface or otherwise concealed physical conditions which differ materially from
those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature,
which differ materially from those ordinarily found to exist and generally recognized as inherent
in construction activities of the character provided for in the Contract Documents, then notice by
the observing party shall be given to the other party promptly before conditions are disturbed and
in no event later than 21 days after first observance of the conditions. The Architect will
promptly investigate such conditions and, if they differ materially and cause an increase or
decrease in the Contractor’s cost of, or time required for, performance of any part of the Work,
will recommend an equitable adjustment in the GMP or Contract Time, or both. If the Architect
determines that the conditions at the site are not materially different from those indicated in the
Contract Documents and that no change in the terms of the Contract is justified, the Architect
shall so notify the Owner and Contractor in writing, stating the reasons. Claims by either party
in opposition to such determination must be made within 21 days after the Architect has given
notice of the decision. If the conditions encountered are materially different, the GMP and
Contract Time shall be equitably adjusted, but if the Owner and Contractor cannot agree on an
adjustment in the GMP or Contract Time, the adjustment shall be referred to the Architect for
initial determination, subject to further proceedings pursuant to Section 4.4. No adjustment in
the GMP or Contract Sum shall be permitted, however, in connection with a concealed or unknown
condition that does not differ materially from those conditions disclosed or that reasonably should
have been disclosed by the Contractor’s (i) prior inspections, tests, reviews, and preconstruction
services for the Project, or (ii) inspections, tests, reviews, and preconstruction services that
the Contractor had the opportunity to make or should have performed in connection with the Project
pursuant to Subparagraph 1.5.4 of these General Conditions.



§ 4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the
GMP and/or Contract Sum, written notice as provided herein shall be given before proceeding to
execute the Work. Prior notice is not required for Claims relating to an emergency endangering
life or property arising under Section 10.6.



§ 4.3.6 If the Contractor believes additional cost is involved for reasons including but not
limited to (1) a written interpretation from the Architect, (2) an order by the Owner to stop the
Work where the Contractor was not at fault, (3) a




 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
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written order for a minor change in the Work
issued by the Architect, (4) failure of payment by the Owner, (5) termination of the Contract by
the Owner, (6) Owner’s suspension or (7) other reasonable grounds, Claim shall be filed in
accordance with this Section 4.3.




§ 4.3.7 Claims for Additional Time



§ 4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written
notice as provided herein shall be given. The Contractor’s Claim shall include an estimate of cost
and of probable effect of delay on progress of the Work. In the case of a continuing delay only
one Claim is necessary.



§ 4.3.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim
shall be documented by data substantiating that weather conditions were abnormal for the period of
time, could not have been reasonably anticipated and had an adverse effect on the scheduled
construction.



§ 4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers injury or
damage to person or property because of an act or omission of the other party, or of others for
whose acts such party is legally responsible, written notice of such injury or damage, whether or
not insured, shall be given to the other party within a reasonable time not exceeding 21 days after
discovery. The notice shall provide sufficient detail to enable the other party to investigate the
matter.



§ 4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if
quantities originally contemplated are materially changed in a proposed Change Order or
Construction Change Directive so that application of such unit prices to quantities of Work
proposed will cause substantial inequity to the Owner or Contractor, the applicable unit prices
shall be equitably adjusted.



§ 4.3.10 Claims for Consequential Damages. Notwithstanding any contrary provision of this
Contract, the Contractor agrees that up to twenty-five percent (25%) of the Contractor’s Fee earned
pursuant to the terms of the Contract Documents shall be at risk for consequential damages of Owner
arising out of or relating to this Contract. Except for the foregoing, the Contractor and Owner
waive Claims against each other for consequential damages arising out of or relating to this
Contract except to the extent covered by applicable insurance. This mutual waiver includes:





	 	.1	 	uninsured damages incurred by the Owner for rental expenses, for losses of use,
income, profit, financing, business and reputation, and for loss of management or
employee productivity or of the services of such persons; and
	 
	 	.2	 	uninsured damages incurred by the Contractor for principal office expenses
including the compensation of personnel stationed there, for losses of financing,
business and reputation, and for loss of profit except anticipated profit arising
directly from the Work.





     This mutual waiver is applicable, without limitation, to all consequential damages due to
either party’s termination in accordance with Article 14. Nothing contained in this Section 4.3.10
shall be deemed to preclude an award of liquidated direct damages, when applicable, in accordance
with the requirements of the Contract Documents.



§ 4.4 RESOLUTION OF CLAIMS AND DISPUTES



§ 4.4.1 Decision of Architect. Claims, including those alleging an error or omission by the
Architect but excluding those arising under Sections 10.3 through 10.5, shall be referred initially
to the Architect for decision if the claimant first recognizes the claim prior to the date of final
payment. An initial decision by the Architect shall be required as a condition precedent to
mediation, arbitration or litigation of all Claims between the Contractor and Owner arising prior
to the date final payment is due, unless 30 days have passed after the Claim has been referred to
the Architect with no decision having been rendered by the Architect. The Architect will not
decide disputes between the Contractor and persons or entities other than the Owner.



§ 4.4.2 The Architect will review Claims and within ten days of the receipt of the Claim take one
or more of the following actions: (1) request additional supporting data from the claimant or a
response with supporting data from the other party, (2) reject the Claim in whole or in part, (3)
approve the Claim, (4) suggest a compromise, or (5) advise the parties that the Architect is unable
to resolve the Claim if the Architect lacks sufficient information to evaluate the merits of the
Claim or if the Architect concludes that, in the Architect’s sole discretion, it would be
inappropriate for the Architect to resolve the Claim.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
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§ 4.4.3 In evaluating Claims, the Architect may, but shall not be obligated to, consult with or
seek information from either party or from persons with special knowledge or expertise who may
assist the Architect in rendering a decision. The Architect may request the Owner to authorize
retention of such persons at the Owner’s expense.



§ 4.4.4 If the Architect requests a party to provide a response to a Claim or to furnish additional
supporting data, such party shall respond, within ten days after receipt of such request, and shall
either provide a response on the requested supporting data, advise the Architect when the response
or supporting data will be furnished or advise the Architect that no supporting data will be
furnished. Upon receipt of the response or supporting data, if any, the Architect will either
reject or approve the Claim in whole or in part.



§ 4.4.5 The Architect will approve or reject Claims by written decision, which shall state the
reasons therefor and which shall notify the parties of any change in the Contract Sum or Contract
Time or both. The approval or rejection of a Claim by the Architect shall be final and binding on
the parties but subject to mediation and arbitration.



§ 4.4.6 When a written decision of the Architect states that (1) the decision is final but subject
to mediation and arbitration and (2) a demand for arbitration of a Claim covered by such decision
must be made within 30 days after the date on which the party making the demand receives the final
written decision, then failure to demand arbitration within said 30 days’ period shall result in
the Architect’s decision becoming final and binding upon the Owner and Contractor. If the
Architect renders a decision after arbitration proceedings have been initiated, such decision may
be entered as evidence, but shall not supersede arbitration proceedings unless the decision is
acceptable to all parties concerned.



§ 4.4.7 Upon receipt of a Claim against the Contractor or at any time thereafter, the Architect or
the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the
Claim. If the Claim relates to a possibility of a Contractor’s default, the Architect or the Owner
may, but is not obligated to, notify the surety and request the surety’s assistance in resolving
the controversy.



§ 4.4.8 If a Claim relates to or is the subject of a mechanic’s lien, the party asserting such
Claim may proceed in accordance with applicable law to comply with the lien notice or filing
deadlines prior to resolution of the Claim by the Architect, by mediation or by arbitration.




§ 4.5 MEDIATION



§ 4.5.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic
effect and except those waived as provided for in Sections 4.3.10, 9.10.4 and 9.10.5 shall, after
initial decision by the Architect or 30 days after submission of the Claim to the Architect, be
subject to mediation as a condition precedent to arbitration or the institution of legal or
equitable proceedings by either party.



§ 4.5.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties
mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of
the American Arbitration Association currently in effect. Request for mediation shall be filed in
writing with the other party to the Contract and with the American Arbitration Association. The
request may be made concurrently with the filing of a demand for arbitration but, in such event,
mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be
stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a
longer period by agreement of the parties or court order.



§ 4.5.3 The parties shall share the mediator’s fee and any filing fees equally. The mediation
shall be held in the place where the Project is located, unless another location is mutually agreed
upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court
having jurisdiction thereof. In no event shall any mediator in connection with a Claim be
permitted to serve as an arbitrator for that, or any other, Claim that is not resolved pursuant to
mediation.




§ 4.6 ARBITRATION



§ 4.6.1 All claims, counterclaims, disputes, and other matters in question (hereinafter referred to
as a “controversy”) between the parties to this Agreement arising out of or relating to the
following items, which are not resolved by the Architect under or pursuant to Article 4 or under
Paragraph 4.5, shall be decided by arbitration in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Association then in effect, subject to the
limitations and restrictions stated in this Paragraph 4.6.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
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28









 







§ 4.6.2 This consent to arbitrate and any other agreement or consent to arbitrate entered into in
accordance herewith as provided in Paragraph 4.6 will be specifically enforceable under the
prevailing arbitration law of any court having jurisdiction.



§ 4.6.3 Notice of demand for arbitration shall be filed in writing with the other party to this
Agreement and with the American Arbitration Association. In no event may the demand for
arbitration be made if the institution of legal or equitable proceedings arising out of such
controversy would be barred by the applicable statute of limitations.



§ 4.6.4 All demands for arbitration and all answering statements thereto, which include any
monetary claim, must contain a statement that the total sum or value in controversy as alleged by
the party making such demand or answering statement is not more than Two Hundred Fifty Thousand
Dollars ($250,000.00) (exclusive of interest and arbitration fees and costs). The arbitrators will
not have jurisdiction, power, or authority to consider or make findings (except in denial of their
own jurisdiction) concerning any controversy where the amount at issue is more than Two Hundred
Fifty Thousand Dollars ($250,000.00)(exclusive of interest and arbitration fees and costs) or to
render a monetary award in response thereto against any party that totals more than Two Hundred
Fifty Thousand Dollars ($250,000.00) (exclusive of interest and arbitration fees and costs). Any
matter which exceeds this amount should be filed in the Superior Court in and for the County in
which the Project is located.



§ 4.6.5 The arbitrator shall be mutually and reasonably agreed upon by Owner and Contractor.



§ 4.6.6 Intentionally deleted.



§ 4.6.7 Prehearings. If there is an arbitration proceeding, there shall be a prehearing meeting
between the parties at which each party shall present a memorandum disclosing the factual basis of
its claim and defenses and disclosing legal issues raised. The memorandum shall also disclose the
names of any expert a party intends to present as a witness during the proceedings. At the
prehearing meeting, the arbitrators shall make rulings and set schedules for hearings consistent
with their powers as set forth in this paragraph. All hearings shall be held on consecutive
weekdays until five (5) hearings have been held and shall be recommenced within seven (7) days of
the last prior day of hearings. If requested by either party to this Agreement, any individual or
number of sessions shall take place at the site of the Project.



§ 4.6.8 Joinder. Notwithstanding any other provision of the Agreement, the American Arbitration
Association may join to any arbitration under this Agreement an entity not a party to this
Agreement or other arbitrations involving this Project if such joinder is necessary to a complete
resolution of any common issues of law or fact. The award rendered by the arbitrators will be
final, not subject to appeal, and judgment may be entered upon it in any court having jurisdiction
thereof.



§ 4.6.9 Discovery. Notwithstanding any other provision in this Agreement, the parties shall be
entitled to discover all documents and information reasonably necessary for a full understanding of
any legitimate issue raised in the arbitration. The parties may use all methods of discovery
available under the California Rules of Civil Procedure and shall be governed thereby. Prior to
the deposition of any expert witness, the party proposing to call such a witness shall provide a
full and complete report by the expert, together with the expert’s calculations and other data by
which the expert reached any opinions concerning the subject matter of the arbitration. The report
shall be provided no less than ten (10) days prior to the date set for the expert witness’
deposition. The California Rules of Evidence shall be applied by the arbitrators but liberally
construed to allow for the admission of evidence that is helpful in resolving the controversy.




ARTICLE 5 SUBCONTRACTORS



§ 5.1 DEFINITIONS



§ 5.1.1 A Subcontractor is a person or entity who has a contract through the Contractor to perform
a portion of the Work at the site. The term “Subcontractor” is referred to throughout the Contract
Documents as if singular in number and means a Subcontractor or an authorized representative of the
Subcontractor. The term “Subcontractor” includes Subcontractors at every tier, including material
suppliers, vendors and Sub-subcontractors, but does not include a separate contractor or
subcontractors of a separate contractor.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
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§ 5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a
Subcontractor to perform a portion of the Work at the site. The term “Sub-subcontractor” is
referred to throughout the Contract Documents as if singular in number and means a
Sub-subcontractor or an authorized representative of the Sub-subcontractor.




§ 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK



§ 5.2.1 Concurrently with the execution of the Agreement, the Contractor shall furnish the Owner
and the Architect or Consultant selected by the Owner, in writing, with (1) the trade, and
subcontract amount of each Subcontractor and (2) the names of all persons or entities proposed as
manufacturers of the products identified in the Specifications (including those who are to furnish
materials or equipment fabricated to a special design) and, if known, the name of the installing
Subcontractor. The name of each Subcontractor shall be provided not less than five (5) days before
execution of the applicable subcontract. It is understood that the information set forth above may
be revised from time to time with Owner’s consent but any such revision shall not be the basis for
an increase in the Contract Sum or GMP or an extension of the Contract Time. At the same time, the
Contractor shall provide in writing a list of those portions of the Work which the Contractor
proposes to perform with its own forces, and the amount the Contractor shall receive as a Cost of
the Work for performing such Work. Unless the Contractor has obtained prior consent from the Owner
in writing, all Subcontractors, Sub-subcontractors and suppliers contracts shall be entered by the
Contractor on a lump sum basis. All Work performed by the Contractor with its own forces shall be
deemed to be performed by the Contractor as a Subcontractor on a lump sum basis at the price so
specified by the Contractor pursuant to this Paragraph. Such lump sum amount shall be based upon
at least three (3) competitive bids obtained by the Contractor and approved by Owner. However, the
Contractor shall only be allowed one mark up and/or fee for such self performed work consistent
with the provisions contained in the Agreement. Owner will reply to the Contractor in writing
within thirty (30) days after written request stating whether or not Owner or the Architect, after
due investigation, has reasonable objection to any such proposed person or entity.



§ 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or
Architect has made reasonable and timely objection. The Contractor shall not be required to
contract with anyone to whom the Contractor has made reasonable objection.



§ 5.2.3 If the Owner or Architect has reasonable objection to a Subcontractor selected by the
Contractor, which Subcontractor was previously approved by Owner and Architect (“Selected
Subcontractor”), then the Contractor shall propose another to whom the Owner or Architect has no
reasonable objection. If the Selected Subcontractor is later rejected but such Selected
Subcontractor was reasonably capable of performing the Work, the GMP and Contract Time shall be
increased or decreased by the difference, if any, occasioned by such change, and an appropriate
Change Order shall be issued before commencement of the substitute Subcontractor’s Work. However,
no increase in the GMP or Contract Time shall be allowed for such change unless the Contractor has
acted promptly and responsively in submitting names as required.



§ 5.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if
the Owner or Architect makes reasonable objection to such substitute.




§ 5.3 SUBCONTRACTUAL RELATIONS



§ 5.3.1 All Work performed for the Contractor by a Subcontractor shall be pursuant to an
appropriate written agreement, between the Contractor and the Subcontractor (and, as applicable
between Subcontractors and Sub-subcontractors), which agreements shall contain provisions that:





	 	.1	 	preserve and protect the rights of the Owner under the Contract Documents with
respect to the Work to be performed under the subcontract so that the subcontracting
thereof will not prejudice such rights;
	 
	 	.2	 	require that such Work be performed in accordance with the requirements of the
Contract Documents;
	 
	 	.3	 	subject to the provisions of Subparagraph 5.4.1 of the General Conditions
require the Subcontractor to consent to assignment of the Contractor’s interest in each
subcontract to which Contractor is a party to Owner or Owner’s designee, which
assignment shall become effective upon Contractor’s default under the Contract
Documents and Subcontractor’s receipt of notification from Owner that (a) Contractor is
in default under the Contract Documents, and (b) the assignment is effective;
	 
	 	.4	 	require submission to the Contractor of applications for payment under each
subcontract to which the Contractor is a party, in reasonable time to enable the
Contractor to apply for payment in accordance with the provisions of the Contract
Documents;
	 
	 	.5	 	require that all claims for additional costs, extensions of time, damages for
delays or otherwise with respect to subcontracted portions of the Work shall be
submitted to the Contractor (via any Subcontractor






 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
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	 	 	 	or Sub-subcontractor where
appropriate) in sufficient time so that the Contractor may comply in the manner
provided in the Contract Documents for like claims by the Contractor upon the Owner;
	 
	 	.6	 	waive all rights the Contractor and Subcontractor may have against one another
for damages caused by fire or other perils covered by the property insurance described
in Paragraph 11.4 of the General Conditions, except such rights as they may have to the
proceeds of such insurance held by the Owner under Paragraph 11.4 of the General
Conditions;
	 
	 	.7	 	prohibit Subcontractor from assigning its rights and/or obligations under the
subcontract or from subcontracting the performance of any of its services under the
subcontract except as agreed in writing by Owner and Contractor; provided that no
assignment or subcontracting by the Subcontractor shall relieve Subcontractor of its
duties and obligations under its agreement with the Contractor;
	 
	 	.8	 	incorporate those insurance requirements of Article 11 of these General
Conditions applicable to Subcontractors;
	 
	 	.9	 	name the Owner Parties as additional insureds;
	 
	 	.10	 	name the Indemnitees as indemnified parties under any indemnities given in
favor of Contractor in the subcontract;
	 
	 	.11	 	provide that the Owner owns all drawings, specifications, computations,
sketches, test data, survey results, models, photographs, renderings and other work
product prepared by the Subcontractor;
	 
	 	.12	 	contain any confidentiality provisions set forth in the Contract Documents; and
	 
	 	.13	 	obligate each Subcontractor specifically to consent to the provisions of this
Subparagraph 5.3.1. The Contractor shall make available to each proposed
Subcontractor, prior to the execution of the subcontract, copies of the Contract
Documents to which Subcontractor will be bound by this Subparagraph 5.3.1, and identify
to the Subcontractor any terms or conditions of the proposed subcontract which may be
at variance with the Contract Documents. Each Subcontractor shall similarly make
copies of such Contract Documents available to its Sub-subcontractors.




§ 5.3.2 All subcontracts shall specifically provide that the Owner is an intended third-party
beneficiary of such subcontract.




§ 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS



§ 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the
Owner provided that:





	 	.1	 	assignment is effective only after termination of the Contract by the Owner and
only for those subcontract agreements which the Owner accepts by notifying the
Subcontractor and Contractor in writing; and
	 
	 	.2	 	assignment is subject to the prior rights of the surety, if any, obligated
under bond relating to the Contract.




The contingent assignment provided for above shall also be for the benefit of the Owner’s Lender
and each subcontract shall also contain such provision as the Owner’s Lender shall require to
create such assignment.



§ 5.4.2 If the Work in connection with a subcontract has been suspended for more than thirty (30)
days after termination of the Contract by the Owner pursuant to Paragraph 14.2 and the Owner or
Owner’s Lender accepts assignment of such subcontract, the Subcontractor’s compensation shall be
equitably adjusted for any reasonable increase in direct costs incurred by such Subcontractor as a
result of the suspension.



§ 5.4.3 Each subcontract shall specifically provide that the Owner or Owner’s Lender shall only be
responsible to the Subcontractor for those obligations of the Contractor that accrue subsequent to
the Owner’s exercise of any rights under this conditional assignment.




ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS



§ 6.1 OWNER’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS



§ 6.1.1 The Owner reserves the right to perform construction or operations related to the Project
with the Owner’s own forces, and to award separate contracts in connection with other portions of
the Project or other construction or operations on the Project 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 may make a claim.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
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31









 







§ 6.1.2 When separate contracts are awarded for different portions of the Project or other
construction or operations on the site, the term “Contractor” in the Contract Documents in each
case shall mean the Contractor who executes each separate Owner-Contractor Agreement.



§ 6.1.3 The Owner shall provide for coordination of the activities of the Owner’s own forces and of
each separate contractor with the Work of the Contractor, who shall cooperate with them. The
Contractor shall participate with other separate contractors and the Owner in reviewing their
construction schedules when directed to do so. The Contractor shall make any revisions to the
construction schedule deemed necessary after a joint review and mutual agreement. The construction
schedules shall then constitute the schedules to be used by the Contractor, separate contractors
and the Owner until subsequently revised.



§ 6.1.4 Intentionally deleted.



§ 6.1.5 The Contractor accepts assignment of, and liability for, all purchase orders and other
agreements for procurement of materials and equipment that are identified as part of the Contract
Documents. The Contractor shall be responsible for such prepurchased items, if any, as if the
Contractor were the original purchaser. The GMP includes, without limitation, all costs and
expenses in connection with delivery, storage, insurance, installation, and testing of items
covered in any assigned purchase orders or agreements. All warranty and correction of the Work
obligations under the Contract Documents shall also apply to any prepurchased items, unless the
Contract Documents specifically provide otherwise.




§ 6.2 MUTUAL RESPONSIBILITY



§ 6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for
introduction and storage of their materials and equipment and performance of their activities, and
shall connect and coordinate the Contractor’s construction and operations with theirs as required
by the Contract Documents.



§ 6.2.2 If part of the Contractor’s Work depends for proper execution or results upon construction
or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with
that portion of the Work, promptly report to the Architect apparent discrepancies or defects in
such other construction that would render it unsuitable for such proper execution and results.
Failure of the Contractor so to report shall constitute an acknowledgment that the Owner’s or
separate contractor’s completed or partially completed construction is fit and proper to receive
the Contractor’s Work, except as to defects not then reasonably discoverable.



§ 6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are
payable to a separate contractor because of delays, improperly timed activities or defective
construction of the Contractor. The Owner shall be responsible to the Contractor for costs
incurred by the Contractor because of delays, improperly timed activities, damage to the Work or
defective construction of a separate contractor.



§ 6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to
completed or partially completed construction or to property of the Owner or separate contractors
as provided in Section 10.2.5 of these General Conditions.



§ 6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and
patching as are described for the Contractor in Section 3.14 of these General Conditions.



§ 6.2.6 Claims and other disputes and matters in question between the Contractor and a separate
contractor shall be subject to the provisions of Paragraph 4.3 provided the separate contractor has
reciprocal obligations.




§ 6.3 OWNER’S RIGHT TO CLEAN UP



§ 6.3.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the
responsibility under their respective contracts for maintaining the premises and surrounding area
free from waste materials and rubbish, the Owner may clean up and the Owner will allocate the cost
among those responsible.




ARTICLE 7 CHANGES IN THE WORK



§ 7.1 GENERAL



§ 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without
invalidating the Contract, by Change Order, Construction Change Directive or order for a minor
change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the
Contract Documents.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
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§ 7.1.2 The Owner, without invalidating this Agreement, may order changes in the Work consisting of
additions, deletions or modifications to the services contemplated hereby. Such changes shall be
authorized by written Change Order signed by the Owner, Contractor, or by written Construction
Change Directive signed by the Owner. With regard to any Change Order or Construction Change
Directive, Contractor shall initially provide a “Change Proposal” detailing the anticipated cost
changes, but the actual cost or credit to the Owner from a change shall be determined by mutual
agreement prior to commencement of such change and shall be invoiced by Contractor and paid by
Owner pursuant to the terms set forth in Section 12 of this Agreement. Except as otherwise agreed
between Owner and Contractor, costs associated with changes shall be charged at actual cost with
previously agreed upon and documented mark-up for Contractor’s overhead and profit as a percentage
of actual cost. Where Owner and Contractor are not able to agree regarding the adjustment to cost
and/or time for any Change Order or Construction Change Directive within 10 days after submission
by the Contractor of the applicable Change Proposal the matter shall be resolved pursuant to the
procedures provided in Section 7.6. Contractor and Owner shall mutually and reasonably agree upon
forms for Change Orders and Construction Change Directives in connection with the Work for this
Project.



§ 7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract
Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change
Order, Construction Change Directive or order for a minor change in the Work. Except as permitted
in Paragraph 7.3 and Subparagraph 9.7.2, a change in the Contract Sum, the GMP or the Contract Time
shall be accomplished only by Change Order. Accordingly, no course of conduct or dealings between
the parties, nor express or implied acceptance of alterations or additions to the Work, and no
claim that Owner has been unjustly enriched by any alteration of or addition to the Work, whether
or not there is, in fact, any unjust enrichment to the Work, shall be the basis of any claim to an
increase in any amounts due under the Contract Documents or a change in any time period provided
for in the Contract Documents.




§ 7.2 CHANGE ORDERS



§ 7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner
and Contractor, stating their agreement upon all of the following:





	 	.1	 	change in the Work;
	 
	 	.2	 	the amount of the adjustment, if any, in the Contract Sum and/or GMP; and
	 
	 	.3	 	the extent of the adjustment, if any, in the Contract Time.




§ 7.2.2 Methods used in determining adjustments to the Contract Sum and GMP may include those
listed in Section 7.3.3 of these General Conditions.



§ 7.2.3 Agreement on any Change Order shall constitute a final settlement, accord and satisfaction,
of all matters relating to the change in the Work that is the subject of the Change Order,
including, but not limited to, all direct and indirect costs associated with such change and any
and all adjustments to the Contract Sum and/or GMP and the construction schedule. In the event a
Change Order increases the GMP, the Contractor shall include the Work covered by such Change Orders
in Applications for Payment as if such Work were originally part of the Contract Documents. The
Contractor shall have no right to base a claim on the cumulative effect of Change Orders.



§ 7.2.4 As set forth in Subparagraph 5.1.2 of the Agreement and Subparagraph 7.5 of these General
Conditions, the Contractor’s Fee shall be increased or decreased, as applicable, as a result of
additive or deductive Change Order.




§ 7.3 CONSTRUCTION CHANGE DIRECTIVES



§ 7.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by
the Owner, directing a change in the Work prior to agreement on adjustment, if any, in the Contract
Sum and/or GMP or Contract Time, or both. The Owner may by Construction Change Directive, without
invalidating the Contract, order changes in the Work within the general scope of the Contract
consisting of additions, deletions or other revisions, the Contract Sum and/or GMP and Contract
Time being adjusted accordingly.



§ 7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the
terms of a Change Order.



§ 7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum and/or
GMP, the adjustment shall be based on one of the following methods chosen by Owner:





	 	.1	 	mutual acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation;
	 
	 	.2	 	unit prices stated in the Contract Documents or subsequently agreed upon;





 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
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	User Notes: A201 Form	(2166203743)







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	 	.3	 	cost to be determined in a manner agreed upon by the parties and a mutually
acceptable fixed or percentage fee; or
	 
	 	.4	 	as provided in Section 7.3.6 of these General Conditions.




§ 7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with
the change in the Work involved and advise the Owner of the Contractor’s agreement or disagreement
with the method, if any, provided in the Construction Change Directive for determining the proposed
adjustment in the Contract Sum and/or GMP or Contract Time.



§ 7.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the
Contractor therewith, including adjustment in Contract Sum and/or GMP and Contract Time or the
method for determining them. Such agreement shall be effective immediately and shall be recorded
as a Change Order.



§ 7.3.6 If the Contractor does not respond to a Construction Change Directive promptly or disagrees
with the method for adjustment in the Contract Sum and/or GMP, the method and the adjustment shall
be determined on the basis of reasonable expenditures and savings of those performing the Work
attributable to the change, including, in case of an increase in the GMP, a reasonable allowance
for overhead and profit. In such case, and also under Section 7.3.3.3 of these General Conditions,
the Contractor shall keep and present, in such form as the Architect may prescribe, an itemized
accounting together with appropriate supporting data. Unless otherwise provided in the Contract
Documents, costs for the purposes of this Section 7.3.6 shall be limited to the following:





	 	.1	 	costs of labor, including social security, old age and unemployment insurance,
fringe benefits required by agreement or custom, and workers’ compensation insurance;
	 
	 	.2	 	costs of materials, supplies and equipment, including cost of transportation,
whether incorporated or consumed;
	 
	 	.3	 	rental costs of machinery and equipment, exclusive of hand tools, whether
rented from the Contractor or others;
	 
	 	.4	 	costs of premiums for all bonds and insurance, permit fees, and sales, use or
similar taxes related to the Work; and
	 
	 	.5	 	additional costs of supervision and field office personnel directly
attributable to the change.




§ 7.3.7 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change
which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the
Architect and approved by Owner. When both additions and credits covering related Work or
substitutions are involved in a change, the allowance for overhead and profit shall be figured on
the basis of net increase, if any, with respect to that change.



§ 7.3.8 Pending final determination of the total cost of a Construction Change Directive to the
Owner, amounts not in dispute for such changes in the Work shall be included in Applications for
Payment accompanied by a Change Order indicating the parties’ agreement with part or all of such
costs.



§ 7.3.9 When the Owner and Contractor agree with the adjustments in the Contract Sum and/or GMP and
Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective
immediately and shall be recorded by preparation and execution of an appropriate Change Order.




§ 7.4 MINOR CHANGES IN THE WORK



§ 7.4.1 The Owner or Architect will have authority to order minor changes in the Work not involving
adjustment in the Contract Sum and/or GMP or extension of the Contract Time and not inconsistent
with the intent of the Contract Documents. Such changes shall be effected by written order and
shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders
promptly.




ARTICLE 8 TIME



§ 8.1 DEFINITIONS



§ 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized
adjustments, allotted in the Contract Documents for Substantial Completion of the Work.



§ 8.1.2 The date of commencement of the Work is the date established in the Agreement.



§ 8.1.3 The date of Substantial Completion is in Subparagraph 9.8.1 of these General Conditions.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
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§ 8.1.4 The term “day” as used in the Contract Documents shall mean calendar day unless otherwise
specifically defined.




§ 8.2 PROGRESS AND COMPLETION



§ 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract Documents.
By executing the Agreement the Contractor confirms that the Contract Time is a reasonable period
for performing the Work.



§ 8.2.2 The Contractor shall not, except by agreement or instruction of the Owner in writing,
commence operations on the Project site or elsewhere prior to the effective date of insurance
required by Article 11 to be furnished by the Contractor and Owner. The date of commencement of
the Work shall not be changed by the effective date of such insurance.



§ 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve
Substantial Completion within the Contract Time.




§ 8.3 DELAYS AND EXTENSIONS OF TIME



§ 8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by an
act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor
employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay
in deliveries, unavoidable casualties or other causes beyond the Contractor’s reasonable control,
or by delay authorized by the Owner pending resolution of a dispute, or by other causes beyond the
reasonable control of the Contractor, excluding financial inability, the Contractor shall promptly
submit to the Owner, in writing, its proposal indicating the means and methods of overcoming such
delay and demonstrating how the then current contract completion date may be achieved and
identifying any additional costs attributable to such means and methods.



Notwithstanding anything to the contrary in Subparagraph 8.3.1 or any other provision of the
Contract Documents, Owner’s implementation of Owner-Elected Acceleration or extension of the
Completion Date and an increase in the Contract Sum equal to the actual increase in general
conditions costs (which general conditions costs shall be in accordance with pricing for such items
set forth in the most recent Schedule of Values approved by Owner), incurred by Contractor which
are directly attributable to the period of time by which the Contract Time is extended, shall be
Contractor’s sole remedy for delay unless the same shall have been caused by acts constituting
willful negligence or intentional interference by the Owner with Contractor’s performance of the
Work and where and to the extent that such acts continue after Contractor’s notice to Owner of such
interference. Owner’s exercise of any of its rights under Article 7, Changes in the Work,
regardless of the extent or number of such Changes, Owner’s exercise of any of its remedies of
suspension of the Work or Owner’s requirement of correction or re-execution of any defective Work
shall not under any circumstances be construed as intentional interference with Contractor’s
performance of the Work.



§ 8.3.2 All claims for extension of time shall be made in writing to the Architect and copied to
the Owner no more than ten (10) working days after the occurrence of the delay; otherwise they
shall be waived. The Contractor shall provide an estimate of the probable effect of such delay on
the progress of the Work. In the case of a continuing course of delay only one claim is necessary.



§ 8.3.3 Notwithstanding any other provisions in the Contract Documents, any delays incurred by the
Contractor, which are the fault of the Owner in excess of five (5) working days on a cumulative
basis will afford compensation to the Contractor in the amount of the additional direct job-site
costs actually incurred by the Contractor, provided written notice of such delay has been provided
to the Owner within five (5) days after the Contractor becomes aware of any such delay. If such
notice is not so provided then the Contractor shall be deemed to have waived any such compensation.
Other than as provided herein, the sole remedy for the Contractor for delay, hindrance, or their
impact shall be an extension of time.



§ 8.3.4 If the Contractor submits a progress report indicating, or otherwise expresses an intention
to achieve completion of the Work prior to any completion date required by the Contract Documents
or expiration of the Contract Time, no liability of the Owner to the Contractor for any failure of
the Contractor to so complete the Work shall be created or implied. Under the terms and conditions
of this Agreement, the Owner is and will remain the sole beneficiary of any float time in the
schedule.



§ 8.3.5 Notwithstanding any of the foregoing, the Contractor shall use all reasonable efforts and
take all reasonable steps to avoid entirely or mitigate any delay hereunder and the Contractor’s
failure to do so shall constitute a waiver of its right to claim that any delay that could have
been avoided or mitigated has resulted in an extension of the Contract Time.




 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)






35









 








ARTICLE 9 PAYMENTS AND COMPLETION



§ 9.1 GMP



§ 9.1.1 The GMP is stated in the Agreement and, including authorized adjustments, is the maximum
amount payable by the Owner to the Contractor for performance of the Work under the Contract
Documents.




§ 9.2 SCHEDULE OF VALUES



§ 9.2.1 Upon full execution of the Agreement, the Contractor shall submit to the Architect and
Owner an updated schedule of values allocated to various portions of the Work, prepared in such
form and supported by such data to substantiate its accuracy as the Owner may require. This
Schedule of Values, unless objected to by the Owner or Architect, shall be used as a basis for
reviewing the Contractor’s Applications for Payment. The Contractor shall revise its original
Schedule of Values or cost breakdown from time to time at the request of the Owner as circumstances
may require. Such Schedule of Values and any supplements or amendments thereto shall be subject to
the prior written approval of the Owner, the Consultant and the Lenders. Unless otherwise agreed
by the Owner, in writing, the Schedule of Values shall be on AIA Document G703 or such other form
as may be required or approved, in writing, by the Owner and the Lenders and shall contain such
other information as the Owner may require including a detailed breakdown of that portion of the
Cost of the Work to be performed by the Contractor using its own forces and a breakdown from at
least three (3) competitive bidders for that portion of the Work the Contractor proposes to be
performed by the Contractor’s own forces.



§ 9.2.2 The Contractor and each Subcontractor shall prepare a trade payment breakdown for the Work
for which each is responsible, such breakdown being submitted on a uniform standardized form
approved by the Architect and Owner. The form shall be divided in detail sufficient to exhibit
areas, floors, and/or sections of the Work, and/or by convenient units and shall be updated as
required by either the Owner or the Architect as necessary to reflect (i) description of Work
(listing labor and material separately), (ii) total value, (iii) percent of the Work completed to
date, (iv) value of Work completed to date, (v) percent of previous amount billed, (vi) previous
amount billed, (vii) current percent completed, and (viii) value of Work completed to date. Any
trade breakdown that fails to include sufficient detail, is unbalanced, or exhibits “front-loading”
of the value of the Work shall be rejected. If trade breakdown had been initially approved and
subsequently used but later was found improper for any reason, sufficient funds shall be withheld
from future Applications for Payment to ensure an adequate reserve (exclusive of normal retainage)
to complete the Work.




§ 9.3 APPLICATIONS FOR PAYMENT



§ 9.3.1 Contractor’s submission of an Application for Payment shall be governed by the terms of
Article 12 of the Agreement and further supplemented by the terms set forth in this Section 9.3
below.



§ 9.3.1.1 As provided in Section 7.3.8 of these General Conditions, such applications for payment
may include requests for payment on account of changes in the Work which have been properly
authorized by Construction Change Directives but not yet included in Change Orders.



§ 9.3.1.2 Applications for payment shall not include requests for payment for portions of the Work
for which the Contractor does not intend to pay to a Subcontractor, unless such Work has been
performed by others whom the Contractor intends to pay.



§ 9.3.2 If approved in advanced by Owner, payments shall be made on account of materials and
equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If
approved in advance by the Owner, payment may similarly be made for materials and equipment
suitably stored off the site at a location agreed upon in writing. Payment for materials and
equipment stored on or off the site shall be conditioned upon compliance by the Contractor with
procedures satisfactory to the Owner to establish the Owner’s title to such materials and equipment
or otherwise protect the Owner’s interest, and shall include the costs of applicable insurance,
storage and transportation to the Project site for such materials and equipment stored off the site
at a bonded and insured warehouse. The Contractor shall also comply with the following specific
requirements:





	 	.1	 	The aggregate cost of materials stored off site shall not exceed Twenty-Five
Thousand Dollars ($25,000.00) at any time without written approval of the Owner.
	 
	 	.2	 	Title to such materials shall be vested in the Owner, as evidenced by
documentation satisfactory in form and substance to the Owner and the Owner’s
Construction Lender, including, without limitation, recorded financing statements, UCC
filings and UCC searches.
	 
	 	.3	 	With each Application for Payment, the Contractor shall submit to the Owner a
written list identifying each location where materials are stored off the Project site
and the value of materials at each location.





 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)







36









 









	 	 	 	The Contractor shall procure insurance
satisfactory to the Owner for materials stored off the Project site in an amount not
less than the total value thereof.
	 
	 	.4	 	The consent of any surety shall be obtained to the extent required prior to
payment for any materials stored off the Project site.
	 
	 	.5	 	Representatives of the Owner and the Lender shall have the right to make
inspections of the storage areas at any time.
	 
	 	.6	 	Such materials shall be (1) protected from diversion, destruction, theft and
damage to the satisfaction of the Owner and the Lender, (2) specifically marked for use
on the Project, and (3) segregated from other materials at the storage facility.




§ 9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will
pass to the Owner no later than the earlier of incorporation into the work or the time of payment.
The Contractor further warrants that upon submittal of an Application for Payment all Work for
which Certificates for Payment have been previously issued and payments received from the Owner
shall be free and clear of liens, claims, security interests or encumbrances in favor of the
Contractor and Subcontractors, including, without limitation, any material suppliers, or other
persons or entities making a claim by reason of having provided labor, materials and equipment
relating to the Work.




§
9.3.4 No payment will be made to the Contractor until the Contractor has delivered originals
to the Owner of mechanic’s lien waivers and releases in such form as is required by the
Lenders and in substance satisfactory to the Owner and the Lenders and signed by all
Subcontractors, Sub-subcontractors and material suppliers, including all consultants, who have
performed Work on or furnished materials to the Project. Each monthly Application for Payment
shall be accompanied by mechanic’s lien waivers and releases conditioned only upon receipt of
payment with respect to the previous month’s Application for Payment. Unconditional
mechanic’s lien waivers and releases with respect to the full amount paid to the Contractor
pursuant to, or otherwise paid by the Owner on account of, the previous month’s Application
for Payment shall be signed by the Contractor, Subcontractors, Sub-subcontractors and material
suppliers, including all Architects and Consultants, and delivered by the Contractor to the
Owner (with copies to the Lenders) within thirty (30) days after Contractor’s request of such
Payment.


§ 9.3.5 Each monthly Application for Payment shall show the percentage of Work in place, as
estimated by the Contractor and approved by the Owner and if Owner requests, the Architect or
Consultant, opposite the cost of each item of Work listed in the approved Schedule of Values
referred to in Subparagraph 9.2.1 and the name of each Subcontractor, Sub-subcontractor, material
supplier, including all Architects and Consultants, or other person to whom payment is to be made
out of the payment applied for. Change Orders and Construction Change Directives shall be listed
by order and amount below the totals in the itemized listing. The percentage and Cost of Work
completed are to be shown in the same manner as for the basic contract segregation, credit Change
Orders being shown as one hundred percent (100%) complete when formally accepted by the Owner. If
payments for materials or equipment not incorporated in the Work are allowed by the Owner in
writing, they shall be listed separately below the Work and change items. At the bottom of the
Application for Payment, the Contractor shall total the Cost of the Work, Change Order work,
Construction Change Directive work and materials and equipment incorporated in the Work or allowed
by the Owner as hereinabove provided as of the date of the Application. From the total shall be
deducted the retainage provided for in the Agreement and all previous payments made by the Owner to
the Contractor under the Contract and any disputed amounts. The balance will then be the net
amount due the Contractor for the period covered by the Application. The Owner reserves the right
to issue payment by joint check to the Contractor and to any Subcontractor, laborer or material
supplier to whom payment is to be made out of such net amount due, including all Architects and
Consultants.



§ 9.3.6 The Owner’s obligation to make any progress payment shall be subject to the Owner or its
agents having determined to their satisfaction that all Subcontractors, Sub-subcontractors and
suppliers, have been paid in full for all Work and materials covered by the Owner’s previous
payments or otherwise satisfied in a manner mutually acceptable to the Owner and the Contractor and
to the delivery to the Owner by the Contractor of mechanic’s lien waivers and releases as provided
in Subparagraph 9.3.4 for all Subcontractors and Sub-subcontractors including all Architects and
Consultants. In addition to an disputed portion of a progress payment, the Owner may withhold
beyond the date for payment under this Contract that undisputed portion of a progress payment which
is otherwise due and payable hereunder for which the Owner has not received satisfactory lien
waivers and releases.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)







37









 







§ 9.3.7 On all Applications for Payment subsequent to the initial application, the following
statement shall also appear:



The Contractor hereby certifies that all obligations for which the previous Application for Payment
were issued and paid have been paid or otherwise satisfied in a manner mutually acceptable to the
Owner and the Contractor. Each Application for Payment with this statement shall be signed at the
bottom by an officer of the Contractor or the Contractor’s authorized designee as follows:




	 	 	 	 	 
	By:

	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	Name:
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	Title:
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 
	Date Signed:
	 	 	 	 
	 	 	 	 	 




§ 9.3.8 The Contractor shall indemnify, protect, defend, with counsel approved by the Owner, which
approval shall not be withheld unreasonably, and hold harmless the Indemnitees, at the Contractor’s
own cost and expense and not as a Cost of the Work, from and against any and all loss, damage,
liability or expense, including costs and attorneys’ fees, to which the Indemnitees, or any of
them, may be put or may incur by reason of or in connection with the assertion or filing of a
mechanic’s lien or stop notice arising out of or in connection with the Work or the Project, but
only to the extent that Owner has made payment to Contractor for the portion or portions of the
Work which are the subject of any such lien or liens or related encumbrance.



§ 9.3.9 The Owner shall release any payments withheld due to a lien, stop notice or claim if the
Contractor obtains security acceptable to the Owner or a lien release bond which is: (1) issued by
a surety acceptable to the Owner and Lender, (2) in form and substance satisfactory to the Owner
and Lender, (3) in an amount not less than one hundred fifty percent (150%) of such lien claim, and
(4) otherwise in compliance with California law. By posting a lien release bond or other
acceptable security, however, the Contractor shall not be relieved of any responsibilities or
obligations under this Paragraph 9.3, including, without limitation, the duty to defend and
indemnify the Indemnitees. The cost of any premiums incurred in connection with such lien release
bonds and security shall be the responsibility of the Contractor and shall not be part of, or cause
any adjustment to, the Contract Sum and/or GMP.



§ 9.3.10 In the event that Contractor fails to provide security for any liens pursuant to
Subparagraph 9.3.9, above, Owner reserves the right to settle any disputed mechanic’s or material
supplier’s lien claim by payments to the lien claimant or by such other means as the Owner, in the
Owner’s sole discretion, determines is the most economical or advantageous method of settling the
dispute. The Contractor shall promptly reimburse the Owner, upon demand, for any payments so made.




§ 9.4 CERTIFICATES FOR PAYMENT



§ 9.4.1 The Owner or Architect will, within seven days after receipt of the Contractor’s
Application for Payment, either issue a Certificate for Payment, with a copy to the Contractor, for
such amount as the Owner or Architect determines is properly due, or notify the Contractor and
Owner in writing of the reasons for withholding certification in whole or in part as provided in
Section 9.5.1.



§ 9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect
to the Owner, based on the Architect’s evaluation of the Work and the data comprising the
Application for Payment, that the Work has progressed to the point indicated and that, to the best
of the Architect’s knowledge, information and belief, the quality of the Work is in accordance with
the Contract Documents. The foregoing representations are subject to an evaluation of the Work for
conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests
and inspections, to correction of minor deviations from the Contract Documents prior to completion
and to specific qualifications expressed by the Architect. The issuance of a Certificate for
Payment will further constitute a representation of the Architect that the Contractor is entitled
to payment in the amount certified. However, the issuance of a Certificate for Payment will not be
a representation that the Architect has (1) made exhaustive or continuous on-site inspections to
check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques,
sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and
material suppliers and other data requested by the Owner to substantiate the Contractor’s right to
payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money
previously paid on account of the Contract Sum.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)






38









 







§ 9.4.3 The Contractor understands and agrees that the Architect’s final Certificate for Payment
will constitute a further representation by the Contractor that the conditions precedent to the
Contractor’s being entitled to a final payment as set forth in Subparagraph 9.10.2 of these General
Conditions have been fulfilled.




§ 9.5 DECISIONS TO WITHHOLD CERTIFICATION



§ 9.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent
reasonably necessary to protect the Owner or, if in the Architect’s opinion the representations to
the Owner required by Section 9.4.2 of these General Conditions cannot be made. If the Architect
is unable to certify payment in the amount of the Application, the Architect will notify the
Contractor and Owner as provided in the Contract Documents. If the Contractor and Architect (with
the Owner’s Approval) cannot agree on a revised amount, the Architect will promptly issue a
Certificate for Payment for the amount for which the Architect is able to make such representations
to the Owner. The Architect may also withhold a Certificate for Payment or, because of
subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment
previously issued, to such extent as may be necessary in the Owner’s or Architect’s opinion to
protect the Owner from loss for which the Contractor is responsible, including loss resulting from
acts and omissions described in Section 3.3.2 of these General Conditions, because of:





	 	.1	 	defective Work not remedied, missing materials not furnished, clean up not
performed;
	 
	 	.2	 	third party claims filed or reasonable evidence indicating probable filing of
such claims unless security acceptable to the Owner is provided by the Contractor;
	 
	 	.3	 	failure of the Contractor to make payments properly to Subcontractors or for
labor, materials or equipment, transportation or shipping costs, taxes, fees or other
obligations incurred in connection with the Work;
	 
	 	.4	 	reasonable evidence that the Work cannot be completed for the unpaid balance of
the GMP;
	 
	 	.5	 	damage to the Owner or another contractor;
	 
	 	.6	 	reasonable evidence that the Work will not be completed within the Contract
Time, and that the unpaid balance would not be adequate to cover actual or liquidated
damages for the anticipated delay; or
	 
	 	.7	 	persistent failure to carry out the Work in accordance with the Contract
Documents.
	 
	 	.8	 	With respect to the final request for payment, failure to deliver two (2) sets
to each Lender and one (1) set each to the Owner and Consultant of “as-built” drawings
in Owner’s required format, written guarantees or warranties, or operating instructions
and maintenance manuals when requested but in any event prior to the earlier of (a) one
(1) month after the issuance of the temporary certificate of occupancy or (b) receiving
the final payment; or
	 
	 	.9	 	Failure to obtain the approvals, permits, certificates of occupancies, and
related items required by any authority having jurisdiction over the Project.




§ 9.5.2 When the above reasons for withholding certification are removed, certification will be
made for amounts previously withheld.




§ 9.6 PROGRESS PAYMENTS



§ 9.6.1 After the Architect has issued a Certificate for Payment, the Owner shall make payment in
the manner and within the time provided in the Contract Documents.



§ 9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the
Owner, out of the amount paid to the Contractor on account of such Subcontractor’s portion of the
Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained
from payments to the Contractor on account of such Subcontractor’s portion of the Work. The
Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to
make payments to Sub-subcontractors in a similar manner. Notwithstanding anything in this
Subparagraph 9.6.2 to the contrary, the Owner may elect, in the Owner’s sole discretion, to make
any payment requested by the Contractor on behalf of a Subcontractor of any tier jointly payable to
the Contractor and such subcontractor. The Contractor and such subcontractor shall be responsible
for the allocation and disbursement of funds included as part of any such joint payment. In no
event shall any joint payment be construed to create any (i) contract between the Owner and a
Subcontractor of any tier, (ii) obligations from the Owner to such Subcontractor, or (iii) rights
in such Subcontractor against the Owner.



§ 9.6.3 The Architect will, on request, furnish to a Subcontractor, if practicable, information
regarding percentages of completion or amounts applied for by the Contractor and action taken
thereon by the Architect and Owner on account of portions of the Work done by such Subcontractor.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)






39









 







§ 9.6.4 Neither the Owner nor Architect shall have an obligation to pay or to see to the payment of
money to a Subcontractor except as may otherwise be required by law.



§ 9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in
Sections 9.6.2, 9.6.3 and 9.6.4 of these General Conditions.



§ 9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the
Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract
Documents.



§ 9.6.7 Payments received by the Contractor for Work properly performed by Subcontractors shall be
held by the Contractor and promptly paid to those Subcontractors who performed Work or furnished
materials, or both, under contract with the Contractor for which payment was made by the Owner.
Nothing contained herein shall require money to be placed in a separate account and not commingled
with money of the Contractor, shall create any fiduciary liability or tort liability on the part of
the Contractor for breach of trust or shall entitle any person or entity to an award of punitive
damages against the Contractor for breach of the requirements of this provision.




§ 9.7 FAILURE OF PAYMENT



§ 9.7.1 If, through no fault of the Contractor, the Architect should fail to issue any Certificate
for Payment within ten (10) days after receipt of the Contractor’s Application for Payment, or if,
through no fault of the Contractor, the Owner should fail to timely pay the Contractor any amount
approved by the Owner, then the Contractor may, upon fourteen (14) additional days’ written notice
to the Owner and the Architect, stop the Work until said Certificate for Payment has been issued or
payment of the amount owing has been received.



§ 9.7.2 If the Owner is entitled to reimbursement or payment from the Contractor under or pursuant
to the Contract Documents, such payment shall be made upon demand by the Owner within the same time
frame as the Contractor is paid by the Owner. Notwithstanding anything contained in the Contract
Documents to the contrary, if the Contractor fails to promptly make any payment due the Owner, or
the Owner incurs any costs and expenses to cure any default of the Contractor or to correct
defective Work, the Owner shall have an absolute right to offset such amount against the GMP and
may, in the Owner’s sole discretion, elect to deduct an amount equal to that which the Owner is
entitled from any payment then or thereafter due the Contractor from the Owner.




§ 9.8 SUBSTANTIAL COMPLETION



§ 9.8.1 “Substantial Completion” shall be deemed to have occurred when (i) the Work has been
completed in accordance with the Contract Documents except for punchlist work (as detailed herein),
(ii) the regulatory authorities having jurisdiction over the Project shall have issued and the
Contractor shall have delivered the original of the Temporary Certificate of Occupancy to the Owner
and a copy to the Lenders of all other necessary permits, licenses and governmental approvals
required in order for the Project to be occupied and (iii) Contractor has recorded a valid Notice
of Completion with respect to the Work; provided, however, Substantial Completion shall not precede
the day on which the Owner receives a Certificate of Occupancy or Temporary Certificate of
Occupancy (or either of their equivalents in a form acceptable to Owner) from the city where the
Project is located with respect to the Work or designated portion thereof; and provided, further,
in no event shall Substantial Completion be deemed to have occurred while more than One Hundred
Thousand Dollars ($100,000.00) of minor Work (as described Paragraph 12.2 of the Agreement and in
Subparagraphs 9.8.2 through 9.8.5 of the General Conditions) for the Work or designated portion
thereof remains to be completed. “Substantially Complete” means the status of Substantial
Completion.



§ 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to
accept separately, is Substantially Complete, the Contractor shall prepare and submit to the
Architect a comprehensive list of items to be completed or corrected prior to final payment.
Failure to include an item on such list does not alter the responsibility of the Contractor to
complete all Work in accordance with the Contract Documents.



§ 9.8.3 Upon receipt of the Contractor’s list, the Architect will make an inspection to determine
whether the Work or designated portion thereof is Substantially Complete. If the Architect’s
inspection discloses any item, whether or not included on the Contractor’s list, which is not
sufficiently complete in accordance with the Contract Documents so that the Work may be deemed
Substantially Complete, then the Contractor shall, before issuance of the Certificate of
Substantial Completion, complete or correct such item upon receipt of notification regarding the
insufficient items. In such case, the Contractor shall then submit a request for another
inspection by the Architect to determine Substantial Completion.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)






40









 







§ 9.8.4 When the Work or designated portion thereof is Substantially Complete, the Architect will
prepare a “Certificate of Substantial Completion” which shall establish the date of Substantial
Completion, shall establish responsibilities of the Owner and Contractor for security, maintenance,
heat, utilities, damage to the Work and insurance, and shall fix the time within which the
Contractor shall finish all items on the list accompanying the Certificate of Substantial
Completion. Warranties required by the Contract Documents shall commence on the date of
Substantial Completion of the Work or designated portion thereof unless otherwise provided in the
Certificate of Substantial Completion.



§ 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor
for their written acceptance of responsibilities assigned to them in such Certificate of
Substantial Completion. Upon such acceptance and consent of surety, if any, the Owner shall make
payment of retainage applying to such Work or designated portion thereof. Such payment shall be
adjusted for Work that is incomplete or not in accordance with the requirements of the Contract
Documents.




§ 9.9 PARTIAL OCCUPANCY OR USE



§ 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any
stage when such portion is designated by separate agreement with the Contractor, provided such
occupancy or use is consented to by the insurer as required under Section 11.4.1.5 of these General
Conditions and authorized by public authorities having jurisdiction over the Work. Such partial
occupancy or use may commence whether or not the portion is substantially complete, provided the
Owner and Contractor have accepted in writing the responsibilities assigned to each of them for
payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and
insurance, and have agreed in writing concerning the period for correction of the Work and
commencement of warranties required by the Contract Documents. When the Contractor considers a
portion Substantially Complete, the Contractor shall prepare and submit a list to the Architect as
provided under Section 9.8.2 of these General Conditions. Consent of the Contractor to partial
occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall
be determined by written agreement between the Owner and Contractor or, if no agreement is reached,
by decision of the Architect.



§ 9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect
shall jointly inspect the area to be occupied or portion of the Work to be used in order to
determine and record the condition of the Work.



§ 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work
shall not constitute acceptance of Work not complying with the requirements of the Contract
Documents.




§ 9.10 FINAL COMPLETION AND FINAL PAYMENT



§ 9.10.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance
and upon receipt of a final Application for Payment, the Architect will promptly make such
inspection and, when the Architect finds the Work acceptable under the Contract Documents and the
Contract fully performed except for minor punchlist items, the Architect, if approved by Owner,
will promptly issue a final Certificate for Payment stating that to the best of the Architect’s
knowledge, information and belief, and on the basis of the Architect’s on-site visits and
inspections, except for minor punchlist items, the Work has been completed in accordance with terms
and conditions of the Contract Documents and that the entire balance found to be due the Contractor
and noted in the final Certificate is due and payable. The Architect’s final Certificate, except
for retention for minor punchlist items as permitted under the Contract Documents, for Payment will
constitute a further representation by Architect that conditions listed in Section 9.10.2 as
precedent to the Contractor’s being entitled to final payment have been fulfilled. All warranties
and guarantees required under or pursuant to the Contract Documents shall be assembled and
delivered by the Contractor to the Architect as part of the final Application for Payment. The
final Certificate for Payment will not be issued by the Architect until all warranties and
guarantees have been received and accepted by the Owner.



§ 9.10.1.1 A list will be made of any items of the Work determined by the Owner and Architect to be
unacceptable. Such items shall be corrected and will be reinspected for final acceptance upon
written notification by the Contractor to the Owner and Architect and the Owner that such items
have been corrected. Failure to complete satisfactorily the items on the list will necessitate
further reinspections by the Owner and the Architect which shall be paid for by the Contractor.



§ 9.10.1.2 Prior to the final payment, the Contractor shall furnish to the Owner and the Lenders a
certificate of Final Completion and assurance, satisfactory to the Owner and the Lenders, that the
Project is free of mechanic’s lien claims suffered by or under the Contractor or its
Subcontractors, Sub-subcontractors, laborers or material suppliers, including Architects and
Consultants. Such assurance will be in the form of receipts and mechanic’s lien waivers and
releases in the form required by Subparagraph 9.3.4 and in substance satisfactory to the Owner and
the Lenders. The Owner will



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)






41









 







accept mechanic’s lien waivers and releases upon final payment that
are conditioned only on such final payment, provided that the Contractor furnishes evidence and
security satisfactory to the Owner that payment has been made or will be made out of such final
payment.



§ 9.10.2 Neither final payment nor any remaining retained percentage shall become due until the
Contractor submits to the Architect (1) an affidavit that payrolls, bills for materials and
equipment, and other indebtedness connected with the Work for which the Owner or the Owner’s
property might be responsible or encumbered (less amounts withheld by Owner) have been paid or
otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract Documents
to remain in force after final payment is currently in effect and will not be canceled or allowed
to expire until at least 30 days’ prior written notice has been given to the Owner, (3) a written
statement that the Contractor knows of no substantial reason that the insurance will not be
renewable to cover the period required by the Contract Documents, (4) consent of surety, if any, to
final payment, and (5) other data establishing payment or satisfaction of obligations, such as
receipts, releases and waivers of liens, stop notices, claims, security interests or encumbrances
arising out of the Contract Documents, to the extent and in such form as may be designated by the
Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the
Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien or
stop notice. If such lien or stop notice remains unsatisfied after payments are made, the
Contractor shall refund to the Owner all money that the Owner may be compelled to pay in
discharging such lien or stop notice, including, without limitation, all costs and reasonable
attorneys’ fees.



§ 9.10.3 If, after Substantial Completion of the Work, final completion thereof is materially
delayed through no fault of the Contractor or by issuance of Change Orders affecting final
completion, and the Architect so confirms, the Owner shall, upon application by the Contractor and
certification by the Architect, with the approval of Owner, and without terminating the Contract,
make payment of the balance due for that portion of the Work fully completed and accepted. If the
remaining balance for Work not fully completed or corrected is less than retainage stipulated in
the Contract Documents, and if bonds have been furnished, the written consent of surety to payment
of the balance due for that portion of the Work fully completed and accepted shall be submitted by
the Contractor to the Architect and Owner prior to certification of such payment. Such payment
shall be made under terms and conditions governing final payment, except that it shall not
constitute a waiver of claims by Owner.




§ 9.10.4 Intentionally deleted.





	 	.1	 	Intentionally deleted.
	 
	 	.2	 	Intentionally deleted.
	 
	 	.3	 	Intentionally deleted.




§ 9.10.5 Acceptance of final payment by the Contractor or Subcontractor 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 10 PROTECTION OF PERSONS AND PROPERTY



§ 10.1 SAFETY PRECAUTIONS AND PROGRAMS



§ 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the performance of the Contract Documents. The
Contractor and each Subcontractor shall create a site specific safety plan. Such safety plan must
be kept at the Project office and be available for review upon request.




§ 10.2 SAFETY OF PERSONS AND PROPERTY



§ 10.2.1 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, whether in
storage on or off the Project site, under care, custody or control of the Contractor or
the Subcontractors, including, without limitation, the Sub-subcontractors; and
	 
	 	.3	 	other property at the Project site or adjacent thereto, such as trees, shrubs,
lawns, walks, pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.






 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)








42









 







§ 10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules,
regulations and lawful orders of public authorities bearing on safety of persons or property or
their protection from damage, injury or loss.



§ 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and
performance of the Contract Documents, reasonable safeguards for safety and protection, including
posting danger signs and other warnings against hazards, promulgating safety regulations and
notifying owners and users of adjacent sites and utilities. The Contractor shall also be
responsible for all measures necessary to protect any property adjacent to the Project and
improvements therein. Any damage to such property or improvements shall be promptly repaired by
the Contractor.



§ 10.2.4 When use or storage of explosives or other Hazardous Materials or equipment or unusual
methods are necessary for execution of the Work, the Contractor shall exercise utmost care and
carry on such activities under supervision of properly qualified personnel. When use or storage of
explosives or other hazardous materials or equipment or unusual construction methods are necessary,
the Contractor shall give the Owner and the Architect reasonable advance notice.



§ 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured
under property insurance required by the Contract Documents) to property referred to in Sections
10.2.1.2 and 10.2.1.3 of these General Conditions caused in whole or in part by the Contractor, a
Subcontractor (including, without limitation) a Sub-subcontractor, or anyone directly or indirectly
employed by any of the foregoing, or by anyone for whose acts any of the foregoing may be liable
and for which the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3 of these General
Conditions, except damage or loss attributable to acts or omissions of the Owner or Architect or
anyone directly or indirectly employed by either of them, or by anyone for whose acts either of
them may be liable, and not attributable to the fault or negligence of the Contractor. The
foregoing obligations of the Contractor are in addition to the Contractor’s obligations under
Section 3.18 of these General Conditions and shall survive termination of the Contract Documents.



§ 10.2.6 The Contractor shall designate a responsible member of the Contractor’s organization at
the Project site whose duty shall be the prevention of accidents. This person shall be the
Contractor’s superintendent unless otherwise designated by the Contractor in writing to the Owner
and Architect.



§ 10.2.7 The Contractor shall not load or permit any part of the construction or Project site to be
loaded so as to endanger its safety.



§ 10.2.8 When all or a portion of the Work is suspended for any reason, the Contractor shall
securely fasten down all coverings and protect the Work, as necessary, from injury by any cause.



§ 10.2.9 In addition to reporting to OSHA and all governmental and insurance agencies, the
Contractor shall promptly report in writing to the Owner and Architect all accidents arising out of
or in connection with the Work which cause death, personal injury, or property damage, giving full
details and statements of any witnesses. In addition, if death, serious personal injuries, or
serious property damages are caused, the accident shall be reported immediately by telephone or
messenger to the Owner and Consultant.



§ 10.2.10 The Contractor will comply with and enforce all requirements of OSHA and other governing
regulatory agencies which pertain to the safety and protection of persons on the Project site. The
Contractor shall comply with and enforce all of the Owner’s regulations pertaining to the use of
the Project Site or the safety and protection of persons and property and all instructions of the
Owner including but not limited to instructions relating to signs, advertisements, fires, smoking
and hazardous materials.



§ 10.2.11 The Contractor shall create a crisis management plan. Such plan must be kept at the
Project office and be available for review upon request.




§ 10.3 HAZARDOUS MATERIALS



§ 10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death
to persons resulting from concealed and undisclosed “Hazardous Materials” (as that term is defined
in Section 10.3.2 below), including but not limited to asbestos or polychlorinated biphenyl (PCB),
encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition,
immediately stop Work in the affected area and report the condition to the Owner and Architect in
writing. The Work in the affected area shall not thereafter be resumed except by written agreement
of Owner and Contractor if in fact the material is a Hazardous Material as defined in Section
10.3.2 below and has not been



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)







43









 







rendered harmless. The Work in the affected area shall be resumed in
the absence of Hazardous Material(s), or when it has been rendered harmless.



§ 10.3.2 “Hazardous Materials” means any hazardous or toxic substance, material or waste which is
(i) defined as a “hazardous waste,” “extremely hazardous waste” or “restricted hazardous waste”
under Sections 25115, 25117 or 25112.7, or listed pursuant to Section 25140, of the California
Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a
“hazardous substance” under Section 25136 of the California Health and Safety Code, Division 20,
Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a
“hazardous material”, “hazardous substance” or “hazardous waste” under Section 25501 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response
Plans and Inventory), (iv) defined as a “hazardous substance” under Section 25281 of the California
Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage or Hazardous Substances), (v)
listed under Article 9 or defined as hazardous or extremely hazardous pursuant to Article 11 of
Title 22 of the California Code of Regulations, Division 4, Chapter 20, (vi) designated as a
“hazardous substance” pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.
Section 1317), (viii) defined as a “hazardous waste” pursuant to Section 1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903),
(ix) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601),
(x) defined as a hazardous waste, hazardous material, hazardous substance, toxic chemical, toxic
air contaminant, or hazardous air pollutant under the Clean Water Act, 33 U.S.C. Section 1251 et
seq., the Clean Air Act, 42 U.S.C. Section 7901 et seq., the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq., the Porter-Cologne Water Quality Control Act, California Water Code
Section 13000 et seq., or listed as a substance known to cause cancer or reproductive toxicity
pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), California
Health & Safety Code Section 25249.5 et seq., Chapter 3.5, Division 26, California Health and
Safety Code (Toxic Air Contaminants), Superfund Amendments and Reauthorization Act of 1986,
Occupational Safety and Health Act of 1970, or California Occupational Safety and Health Act of
1973, (xi) defined as a hazardous waste, hazardous material or hazardous substance under any
regulations promulgated under any of the foregoing laws; (xii) asbestos; (xiii) petroleum; (xiv)
polychlorinated biphenyl (PCB); (xv) any other hazardous or toxic substance, material or waste
which is or becomes regulated by any local governmental authority, the state in which the Project
is located and the United States Government; or (xvi) any hazardous or toxic material, substance,
chemical, waste, contaminant, emission, discharge or pollutant or comparable material listed,
identified, or regulated pursuant to any federal, state or local law, ordinance or regulation which
has as a purpose the protection of health, safety or the environment, including but not limited to
petroleum, petroleum products and wastes derived therefrom. Each reference to a statute, law or
regulation herein shall be deemed to include any amendments thereto which are enacted from time to
time and which are in effect at the time that the act or omission occurs which gives rise to the
liability of the indemnifying party. The Owner shall obtain the services of a licensed laboratory
to verify the presence or absence of the material or substance reported by the Contractor and, in
the event such material or substance is found to be present, to verify that it has been rendered
harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing
to the Contractor and Architect the names and qualifications of persons or entities who are to
perform tests verifying the presence or absence of such material or substance or who are to perform
the task of removal or safe containment of such material or substance. The Contractor and the
Architect will promptly reply to the Owner in writing stating whether or not either has reasonable
objection to the persons or entities proposed by the Owner. If either the Contractor or Architect
has an objection to a person or entity proposed by the Owner, the Owner shall propose another to
whom the Contractor and the Architect have no reasonable objection. When the material or substance
has been rendered harmless, Work in the affected area shall resume upon written agreement of the
Owner and Contractor. The Contract Time shall be extended appropriately and the GMP shall be
increased in the amount of the Contractor’s reasonable additional costs of shut-down, delay and
start-up, which adjustments shall be accomplished as provided in Article 7. The term “rendered
harmless” shall be interpreted to mean that levels of asbestos and polychlorinated biphenyls are
less than any applicable exposure standards set forth in OSHA regulations. In no event, however,
shall the Owner have any responsibility for any substance or material that is brought to the
Project site by the Contractor, any Subcontractor, any material supplier, or any entity for whom
any of them is responsible. The Contractor agrees not to use any fill or other materials to be
incorporated into the Work that are hazardous, toxic, or made up of any items that are hazardous or
toxic.



§ 10.4 The Owner shall not be responsible under Section 10.3 of these General Conditions for
materials and substances brought to the Project site by the Contractor unless such materials or
substances were required by the Contract Documents.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)





44









 







§ 10.5 If, without negligence on the part of the Contractor, the Contractor is held liable for the
cost of remediation of a Hazardous Material solely by reason of performing Work as required by the
Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby
incurred.




§ 10.6 EMERGENCIES



§ 10.6.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the
Contractor’s discretion, to prevent threatened damage, injury or loss. Additional compensation or
extension of time claimed by the Contractor on account of an emergency shall be determined as
provided in Article 7.




§ 10.7 SECURITY MEASURES



§ 10.7.1 The Contractor hereby acknowledges that the nature of the Owner’s operations may require
strict security measures. The Contractor, Subcontractors, and all Sub-subcontractors and anyone
and any party for whom any of them may be liable, shall cooperate with the Owner’s security
personnel and shall comply with all security requirements of the Owner’s security personnel. The
foregoing, however, shall not relieve the Contractor of any obligation to provide a safe and secure
workplace for all parties, materials, equipment and personal items entering the Project Site.



§ 10.7.2 The Owner reserves the right to bar access to any individual for reasonable security
reasons. Furthermore, the Owner reserves the right to limit the location of entries to the Project
which may be used by the Contractor, Subcontractors, Sub-subcontractors, or any party for whom any
of them may be responsible.




ARTICLE 11 INSURANCE AND BONDS



§ 11.1 CONTRACTOR’S LIABILITY INSURANCE



§ 11.1.1 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 and maintaining
during the policy term a “General Policyholders” Rating of at least A.X, as set forth in the then
most current issue of “Best’s Insurance Guide”, such insurance as will protect the Contractor from
claims set forth below which may arise out of or result from the Contractor’s operations under the
Contract and for which the Contractor may be legally liable, whether such operations be by the
Contractor or by a Subcontractor, Sub-subcontractor or supplier, or by anyone directly or
indirectly employed by any of them, or by anyone for whose acts any of them may be liable. All
policies of such insurance shall include, in addition to the Contractor’s interest, the respective
interests of the Owner and any other persons and entities in the Project designated, in writing, by
the Owner by naming them as additional insured under all coverages described below except workers’
compensation, employer’s liability, automobile liability insurance, and professional liability:




     .1 claims under workers’ compensation, disability benefit and other similar employee benefit
acts which are applicable to the Work to be performed;



     .2 claims for damages because of bodily injury, occupational sickness or disease, or death of
the Contractor’s employees;



     .3 claims for damages because of bodily injury, sickness or disease, or death of any person
other than the Contractor’s employees;



     .4 claims for damages insured by usual personal injury liability coverage;



     .5 claims for damages, other than to the Work itself, because of injury to or destruction of
tangible property, including loss of use resulting therefrom;



     .6 claims for damages because of bodily injury, death of a person or property damage arising
out of ownership, maintenance or use of a motor vehicle;



     .7 claims for bodily injury or property damage arising out of completed operations;



     .8 claims involving contractual liability insurance applicable to the Contractor’s
obligations under the Contract Documents, including, without limitation, those indemnity
obligations set forth in Section 3.18 of these General Conditions; and




 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)







45









 








     .9 claims on account of design errors and/or omissions provided by Subcontractors and
consultants, if any.


§ 11.1.1.1 Workers’ Compensation (including Voluntary Compensation) and Employer’s Liability
Insurance providing coverage for the Contractor in accordance with the workers’ compensation and
occupational disease laws of the state where the Work is performed. Evidence of such shall include
waiver of subrogation by insurer. Employer’s liability insurance shall be provided in amounts not
less than:




     $1,000,000 each accident for bodily injury by accident



     $1,000,000 policy limit for bodily injury by disease



     $1,000,000 each employee for bodily injury by disease


§ 11.1.1.2 Comprehensive/Commercial General Liability Insurance coverage shall be on an
“occurrence” (not “claims made”) policy form covering all operations by and on behalf of Contractor
providing insurance for bodily injury, property damage and personal injury liability for the limits
of liability indicated below and including coverage for claims defined in 11.1.1, and shall include
“broad form” coverage for:



§ 11.1.1.2.1 Claims for damages because of bodily injury, sickness, disease or death of any person
other than the Contractor’s employees;



§ 11.1.1.2.2 Claims for property damage, other than to the Work itself, due to injury to or
destruction of tangible property, including loss of use resulting therefrom;



§ 11.1.1.2.3 The following broadening extensions:



a. Products and Completed Operations/Premises liability for a period of ten (10) years from the
date of Substantial Completion of the Work (including X, C and U coverages as applicable).



b. Contractor’s protective liability to cover the Contractor’s liability arising out of Work
performed by Subcontractors, Sub-subcontractors and suppliers in connection with the Project.



c. Blanket contractual liability sufficient in scope to cover the Contractor’s indemnity
obligations under Paragraphs 3.18, 10.3.3 and elsewhere in the Contract Documents.



d. Personal injury liability with exclusions relating to contractual and employees deleted.



e. Broad form property damage including completed operations.



f. All exclusions pertaining to explosion, collapse and underground hazards are deleted.



Limits of liability shall be not less than:



$10,000,000
— bodily injury and property damage — applicable to each occurrence.



$10,000,000
— bodily injury and property damage — separate annual aggregate Products and Completed
Operations.



$10,000,000
— bodily injury and property damage — annual general aggregate on a Project specific
basis.



The limits of liability may be a combination of Commercial General Liability and Excess or Umbrella
Liability insurance policies.



§
11.1.1.3 Automobile Liability Insurance — providing coverage for all owned, hired and non-owned
automobiles used by or on behalf of the Contractor against:



§ 11.1.1.3.1 Claims for damages because of bodily injury, sickness, disease or death of any person.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)







46









 







§ 11.1.1.3.2 Claims for damages because of property damage due to injury to or destruction of
tangible property, including loss of use resulting therefrom.



Limits of liability shall be not less than:



$5,000,000
— bodily injury and property damage each occurrence.



The limits of liability may be a combination of automotive liability insurance and Excess or
Umbrella Liability policies.



If Contractor or its subcontractors haul hazardous waste or contaminated materials, they must carry
automobile liability insurance with coverage for pollution events arising from such cargo by
vehicular accidents, leaks, releases or loading and unloading.



§
11.1.1.4 Professional Liability Insurance — providing coverage for errors and omissions on a
“claims made” basis in any engineering, designing, architectural and design-build aspects of the
Work performed by the Contractor or its Subcontractors, Sub-subcontractors, Architects and
Consultants.



Limits of Liability shall not be less than: $1,000,000 per occurrence and in the annual aggregate.



All insurance policies described in Paragraphs 11.1.1.2, 11.1.1.3 and 11.1.1.4 shall be primary and
non-contributing to the insurance of the Owner, and shall include a blanket waiver of subrogation.



§ 11.1.2 The Contractor shall, for the protection and benefit of the Indemnitees as defined in
Paragraphs 3.18 and elsewhere in the Contract and the Contractor and as part of the Contractor’s
efforts to satisfy the obligations set forth in Paragraph 11.1.1, procure, pay for and maintain in
full force and effect, at all times during the performance of the Work until final acceptance of
the Work or for such duration thereafter as required, policies of insurance issued by a responsible
carrier or carriers acceptable to the Owner, and in form and substance satisfactory to the Owner,
which afford the coverages specified by this Contract. All such insurance shall be written on an
occurrence basis unless indicated otherwise herein. The Contractor hereby agrees to deliver to the
Owner, within ten (10) days of the date of this Contract and prior to any equipment or personnel
being brought onto the site of the Work or the Project site, original or certified copies of all
insurance policies procured by the Contractor under or pursuant to this Paragraph 11.1 and
Certificates of Insurance and applicable additional insured endorsements in form and substance
satisfactory to the Owner evidencing the required coverages with limits not less than those
specified by this Contract. The coverage afforded under any insurance policy obtained under or
pursuant to this Paragraph 11.1 shall be primary to any valid and collectible insurance carried
separately by any of the Indemnitees. Further, all policies and Certificates of Insurance shall
expressly provide that no less than thirty (30) days’ prior written notice shall be given the Owner
in the event of material alteration, cancellation, non-renewal or expiration of the coverage
contained in such policy or evidenced by such certified copy or Certificate of Insurance.



§ 11.1.3 Prior to commencement of the Work certificates of insurance and applicable additional
insured endorsements acceptable to the Owner shall be filed with the Owner at the address set forth
on the first page of these General Conditions. Contractor’s insurance policies shall include a
severability of interest or cross-liability endorsement and provide that an act or omission of one
of the named or additional insureds shall not reduce or avoid coverage to another named or
additional insured and shall afford coverage for all claims based on any act, omission, injury or
damage from which claim occurred or arose (or the onset of which occurred or arose) in whole or in
part during the policy period. Contractor’s insurance policies shall also contain endorsements:
(i) deleting any employee exclusion on personal injury coverage, (ii) including employees as
additional insureds and (iii) providing host liquor liability coverage.




     11.1.3.1 List of Additional Insureds



     Owner shall provide Contractor with a listing of parties who have interest in the Project and
are required to be named as additional insureds.


§ 11.1.4 In no event shall any failure of the Owner to receive original or certified copies and
certificates of the policies required under this Article 11 or to demand receipt of such originals,
copies and certificates prior to the Contractor commencing the Work be construed as a waiver by the
Owner of the Contractor’s obligations to obtain insurance pursuant to this Article 11. The
obligation to procure and maintain any insurance required by this Article 11 is a separate



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)






47









 







responsibility of the Contractor and independent of the duty to furnish originals, copies and
certificates of such insurance policies.



§ 11.1.5 If the Contractor fails to purchase and maintain, or require to be purchased and
maintained, any insurance required under this Paragraph 11.1, the Owner may, but shall not be
obligated to, upon five (5) days’ written notice to the Contractor, purchase such insurance on
behalf of the Contractor and shall be entitled to be reimbursed by the Contractor upon demand.



§ 11.1.6 When any required insurance, due to the attainment of a normal expiration date or renewal
date shall expire, the Contractor shall supply the Owner with Certificates of Insurance and
amendatory riders or endorsements that clearly evidence the continuation of all coverage in the
same manner, limits of protection, and scope of coverage as was provided by the previous policy.
In the event any renewal or replacement policy, for whatever reason obtained or required, is
written by a carrier other than that with whom the coverage was previously placed, or the
subsequent policy differs in any way from the previous policy, the Contractor shall also furnish
the Owner with an original or certified copy of the renewal or replacement policy unless the Owner
provides the Contractor with prior written consent to submit only a Certificate of Insurance and
applicable additional insured endorsements for any such policy. All renewal and replacement
policies shall be in form and substance satisfactory to the Owner and written by carriers
acceptable to the Owner.



§ 11.1.7 The aggregate limit under the Contractor’s Comprehensive/Commercial General Liability
insurance shall, by endorsement, be reserved as Project specific coverage and apply to this Project
separately.



§ 11.1.8 The Contractor shall cause each Subcontractor to (1) procure insurance that complies to
the applicable provisions contained in this Contract; (2) procure insurance reasonably satisfactory
to the Owner, and (3) name the Contractor, Landlord, Owner and any lender providing financing in
connection with the Project (as designated by Owner) as additional insureds under the
Subcontractor’s comprehensive/commercial general liability policy and umbrella/excess policy. The
additional insured endorsement included on the Subcontractor’s comprehensive/commercial general
liability policy and umbrella/excess policy shall state that coverage is afforded the additional
insureds with respect to claims arising out of operations performed by or on behalf of the
Contractor. If the additional insureds have other insurance which is applicable to the loss, such
other insurance shall be on an excess or contingent basis. The amount of the insurer’s liability
under this insurance policy shall not be reduced by the existence of such other insurance.




§ 11.1.9



(a) The Contractor shall, upon receipt of notice of any claim, promptly take all action necessary
to make a claim under any applicable insurance policy or policies the Contractor is carrying and
maintaining; however, if the Contractor fails to take such action as is necessary to make a claim
under any such insurance policy, the Contractor shall indemnify and save harmless the Owner from
any and all costs, charges, expenses and liabilities incurred by the Owner in making any claim on
behalf of the Contractor under any insurance policy or policies required pursuant to Sections
11.1.1 and 11.6.



(b) The obligations described in Subparagraph 11.1.9(a) shall not be construed to negate, abridge
or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to
any party or person indemnified pursuant to this Contract.



(c) In any and all claims against the Owner or any of the Owner’s agents or employees by any
employee of the Contractor, its consultants, subcontractors and anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable, the indemnification
obligation under this Subparagraph 11.1.9 shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable by or for the Contractor or its
Architects, Consultants or Subcontractors under workers’ or workmen’s compensation acts, disability
benefit acts or other employee benefit acts.



(d) The obligations described in this Article 11 shall survive the termination of this Contract.




§ 11.2 OWNER’S LIABILITY INSURANCE



§ 11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner’s usual liability
insurance.




§ 11.3 PROJECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE



§ 11.3.1 Intentionally deleted.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
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48









 







§ 11.3.2 Intentionally deleted.



§ 11.3.3 Intentionally deleted.




§ 11.4 PROPERTY INSURANCE



§ 11.4.1 Unless otherwise provided, the Owner shall purchase and maintain, in a company or
companies lawfully authorized to do business in the jurisdiction in which the Project is located,
property insurance written on a builder’s risk “all-risk” or equivalent policy form in the amount
of the GMP, plus value of subsequent Contract modifications and cost of materials supplied or
installed by others, comprising total value for the entire Project at the site on a replacement
cost basis without optional deductibles. Such property insurance shall be maintained, unless
otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and
entities who are beneficiaries of such insurance, until final payment has been made as provided in
Section 9.10 of these General Conditions or until no person or entity other than the Owner has an
insurable interest in the property required by this Section 11.4 to be covered, whichever is later.
This insurance shall include interests of the Owner, the Contractor and Subcontractors of all
tiers performing work at the Project.



§ 11.4.1.1 Property insurance shall be on an “all-risk” or equivalent policy form and shall
include, without limitation, insurance against the perils of fire (with extended coverage) and
physical loss or damage including, without duplication of coverage, theft, vandalism, malicious
mischief, collapse, flood, windstorm, falsework, testing and startup, temporary buildings and
debris removal including demolition occasioned by enforcement of any applicable legal requirements,
and shall cover reasonable compensation for Architect’s and Contractor’s services and expenses
required as a result of such insured loss. Permission is hereby granted to provide coverage on a
blanket basis with a single limit applicable to all insured locations, subject to including the
full GMP. The Owner’s obligation to provide property insurance shall be limited by the definition
of the Work contained in the Contract and shall not include the Contractor’s owned or leased
construction equipment, or other machinery, equipment, tools, sheds, trailers, material or supplies
unless incorporated or intended to be incorporated as part of the completed construction. The
Contractor shall make its own arrangements for any insurance it may require on such construction
equipment. Any such policy obtained by the Contractor under this Paragraph 11.4.1.1 shall include
a waiver of subrogation in accordance with the requirements of Paragraph 11.4.7.



§ 11.4.1.2 If the Owner does not intend to purchase such property insurance required by the
Contract and with all of the coverages in the amount described above, the Owner shall endeavor to
so inform the Contractor in writing prior to commencement of the Work. The Contractor may then
effect insurance which will protect the interests of the Contractor, Subcontractors and
Sub-subcontractors of all tiers, in the Work, and by appropriate Change Order the cost thereof
shall be charged to the Owner. If the Contractor is damaged by the failure or neglect of the Owner
to purchase or maintain insurance as described above, without so notifying the Contractor in
writing, then the Owner shall bear all reasonable costs properly attributable thereto.



§ 11.4.1.3 If the property insurance requires deductibles, the Owner shall pay costs not covered
because of such deductibles. Notwithstanding, if the cause of any loss payment under such
insurance is the fault of the Contractor, then the Contractor shall pay such deductible.



§ 11.4.1.4 This property insurance shall cover portions of the Work stored off the site, and also
portions of the Work in transit up to $250,000 per occurrence.



§ 11.4.1.5 Partial occupancy or use in accordance with Section 9.9 of these General Conditions
shall not commence until the insurance company or companies providing property insurance have
consented to such partial occupancy or use by endorsement or otherwise. The Owner and the
Contractor shall take reasonable steps to obtain consent of the insurance company or companies and
shall, without mutual written consent, take no action with respect to partial occupancy or use that
would cause cancellation, lapse or reduction of insurance.



§ 11.4.2 Boiler and Machinery Insurance. The Owner shall purchase and maintain boiler and
machinery insurance required by the Contract Documents or by law, which shall specifically cover
such insured objects during installation and until final acceptance by the Owner; this insurance
shall include interests of the Owner, Contractor and Subcontractors, including, without limitation,
the Sub-subcontractors in the Work, and the Owner and Contractor shall be named insureds.




 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)







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§ 11.4.3 Loss of Use Insurance. The Owner, at the Owner’s option, may purchase and maintain such
insurance as will insure the Owner against loss of use of the Owner’s property due to fire or other
hazards, however caused. The Owner waives all rights of action against the Contractor for loss of
use of the Owner’s property, including consequential losses due to fire or other hazards however
caused to the extent (i) of actual recovery of any insurance proceeds under polices obtained
pursuant this Subparagraph 11.4.3 and (ii) permitted by the applicable policies of insurance.



§ 11.4.4 If the Contractor requests in writing that insurance for risks other than those described
herein or other special causes of loss be included in the property insurance policy, the Owner
shall, if possible, include such insurance, and the cost thereof shall be charged to the Contractor
by appropriate Change Order.



§ 11.4.5 If during the Project construction period the Owner insures properties, real or personal
or both, at or adjacent to the site by property insurance under policies separate from those
insuring the Project, or if after final payment property insurance is to be provided on the
completed Project through a policy or policies other than those insuring the Project during the
construction period, the Owner shall waive all rights in accordance with the terms of Section
11.4.7 of these General Conditions for damages caused by fire or other causes of loss covered by
this separate property insurance to the extent of actual recovery from such policy. All separate
policies shall provide this waiver of subrogation by endorsement or otherwise.



§ 11.4.6 Before an exposure to loss may occur, the Owner shall provide the Contractor a copy of
each policy with copies of certificates of insurance evidencing such insurance coverages required
by this Article 11. Each policy shall contain all generally applicable conditions, definitions,
exclusions and endorsements related to this Project. Each policy shall contain a provision that
the policy will not be canceled or allowed to expire, and that its limits will not be reduced,
until at least 30 days’ prior written notice has been given to the Contractor.



§ 11.4.7 Waivers of Subrogation. If permitted by the Owner’s and Contractor’s insurance companies,
without penalties, the Owner and Contractor waive all rights against (1) each other and any of
their subcontractors, sub-subcontractors, agents and employees, each of the other including,
without limitation, the Subcontractors, and (2) the Architect, Architect’s consultants, separate
contractors described in Article 6, if any, and any of their subcontractors, sub-subcontractors,
agents and employees, for damages caused by fire or other causes of loss to the extent of actual
recovery of any insurance proceeds under any property insurance obtained pursuant to this Article
11 or other property insurance applicable to the Work, except such rights as they have to proceeds
of such insurance held by the Owner. The Owner or Contractor, as appropriate, shall require of the
Architect, Architect’s consultants, separate contractors described in Article 6 of these General
Conditions, if any, and the subcontractors, sub-subcontractors, agents and employees of any of
them, by appropriate agreements, written where legally required for validity, similar waivers each
in favor of other parties enumerated herein. The policies shall provide such waivers of
subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person
or entity even though that person or entity would otherwise have a duty of indemnification,
contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or
not the person or entity had an insurable interest in the property damaged.



§ 11.4.8 A loss insured under Owner’s property insurance shall be adjusted by the Owner and made
payable to the Owner for the insureds, as their interests may appear, subject to requirements of
any applicable mortgagee clause. The Contractor shall pay Subcontractors their just shares of
insurance proceeds received by the Contractor, and by appropriate agreements, written where legally
required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in
similar manner.



§ 11.4.9 Intentionally deleted.



§ 11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers.




§ 11.4.11 GENERAL INSURANCE REQUIREMENTS



§ 11.4.11.1 Contractor’s comprehensive/commercial general liability insurance policy shall be
endorsed using an ISO form CG2010 11/85, or subject to the Owner’s approval, a manuscript
endorsement comparable to the CG2010 11/85, naming the Owner, the Owner’s Lender and the Owner’s
members, managers, partners, officers, agents and employees as additional insureds (the
“Indemnitees”). In addition, all such policies required under the terms of Paragraphs 11.1, 11.4.3
and 11.6 of these General Conditions and shall be primary and non-contributing. The Contractor
shall provide the Owner with originals of the endorsements to all policies of insurance required
under the terms of this Article 11 whereby the insurers agree that in the event of cancellation of
the policy in whole or in part, or a reduction as



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
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50









 







to coverage or amount thereunder whether
initiated by the insurer or any insured, the insurer shall not give less than thirty (30) days
advance written notice by registered or certified mail to the Owner.



§ 11.4.11.2 All insurance required by Sections 11.1 and 11.7 shall be written on an “occurrence”
basis if available. If any insurance required by this Article 11 is not available on an
“occurrence” basis and such policy is written on a “claims made” basis, such policy shall be
subject to the Owner’s prior written approval and must be written so that the effective (or
retroactive or prior acts) date of the policy is prior to the date of commencement of any of the
Contractor’s Work or services hereunder. Any such “claims made” basis insurance shall be
maintained for the benefit of the Owner, with evidence thereof provided at each renewal of such
insurance until the expiration of any applicable statute of limitations, but in any event for a
period of not less that ten (10) years following completion by the Contractor of all of its Work
and services under this Agreement and the Owner’s approval and acceptance of the Work.



§ 11.4.11.3 All policies required by this Article 11 shall have reasonable and customary deductible
amounts, provided that in no event shall such deductible amounts exceed $50,000 per occurrence.
Completed Operations Insurance shall be maintained by Contractor for a period of ten (10) years
after Substantial Completion of the Work. The cost of defending any claims made against the
policies required by Paragraphs 11.1 and 11.6 shall not be included in any of the limits for such
policies. All deductibles or self-insured retentions shall be at the sole responsibility of the
Contractor.



§ 11.4.11.4 The acceptance of delivery by the Owner of any certificate of insurance and policy
evidencing the required insurance coverages and limits does not constitute approval or agreement by
the Owner that the insurance requirements have been met or that the insurance policies shown in the
certificates of insurance are in compliance with the requirements of this Contract.



§ 11.4.11.5 Upon renewal of any such insurance that expires before the termination of the
Contractor’s obligation to carry such insurance pursuant to this Agreement, the Owner shall be
provided with renewal certificates or binders within ten (10) days after such expiration.



§ 11.4.11.6 The Contractor shall immediately report to the Owner and applicable insurance carrier,
and promptly thereafter confirm in writing, the occurrence of any injury, loss or damage incurred
by the Contractor or its Architects, Consultants or Subcontractors, or the Contractor’s receipt of
notice or knowledge of any claim by a third party or any occurrence that might give rise to such a
claim. Upon completion of the Work, the Contractor shall submit to the Owner a written summary of
all such injuries, losses, damage, notice or third party claims and occurrences that might give
rise to such claims.



§ 11.4.11.7 If any of the insurance required to be maintained by the Contractor pursuant to this
Article 11 contains aggregate limits which apply to operations of the Contractor other than those
operations which are the subject of this Agreement, and such limits are diminished by more than
Five Hundred Thousand Dollars ($500,000) after any one (1) or more incidents, occurrences, claims,
settlements or judgments against such insurance, the Contractor shall take immediate steps to
restore aggregate limits or shall maintain other insurance protection for such aggregate limits.



§ 11.4.11.8 In the event the Contractor wishes to make any claim for recovery under the builder’s
risk insurance policy required hereunder, the Contractor shall give timely notification to the
Owner of the event giving rise to the claim, cooperate with the Owner, and do all things required
of it as an insured under such policy, so as to permit the policy to be complied with and a claim
to be made thereunder. The Contractor further agrees that to the extent required under such policy
(except property policies), the Contractor shall permit and authorize full subrogation in favor of
the insurers of any rights, as against any other person, firm or corporation (other than the Owner,
the Owner’s Representative, if any, Lenders and their respective members, managers, partners,
officers, agents and employees).



§ 11.4.11.9 It shall be the responsibility of the Contractor not to violate nor knowingly permit to
be violated any condition of the policies required under this Agreement, and it shall be the
Contractor’s duty and responsibility to impose upon each consultant and Subcontractor employed by
the Contractor to perform any of the Work described in this Agreement the same responsibilities and
obligations imposed upon the Contractor under this Article 11.




§ 11.5 PERFORMANCE BOND AND PAYMENT BOND



§ 11.5.1 The Owner shall have the right, in its sole discretion, to require the Contractor to
furnish a payment and performance bond and a payment bond (collectively, the “Bonds”), each in an
amount not less than 100% of the GMP, covering faithful performance of the Contract and payment of
obligations arising thereunder as stipulated in bidding



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)





51









 







requirements or specifically required in
the Contract Documents on the date of execution of the Contract. The Bonds shall be in form and
substance satisfactory to Owner and Owner’s lenders, if any, in their sole judgment and, without
limiting the generality of the foregoing, such Bonds shall be written by a corporate surety
licensed in California and listed on the U.S. Treasury List (Circular 570) (the “Treasury List”) as
an acceptable surety for bonds in favor of the federal government. Owner may require, in its sole
discretion, that its lenders, if any, be named as dual-obligees under such Bonds.



§ 11.5.2 Following the filing and approval of the Bonds and Contractor’s submittal of a Change
Order to Owner for the actual costs incurred by Contractor for such Bonds, the Owner shall
reimburse Contractor for such costs provided the same do not exceed 2% of the GMP. If during the
Contract Time, the surety that issued the Bonds ceases to be listed on the Treasury List, the Owner
shall have the right to require the Contractor to replace all Bonds issued by such surety with
similar Bonds issued by another surety acceptable to Owner. Notwithstanding the foregoing or any
other provision of the Contract Documents to the contrary, in no event shall Owner be responsible
for any costs incurred by Contractor in connection with the replacement of any Bonds during the
Contract Time, whether or not the same is required by Owner pursuant to this Section 11.5.2.



§ 11.6 If the Owner is damaged by the failure of the Contractor to purchase or maintain insurance
required under Article 11, then the Contractor shall bear all reasonable costs (including
attorneys’ fees and court and settlement expenses) properly attributable thereto.




§ 11.7 SUBCONTRACTORS INSURANCE



All Subcontractors shall be required to provide substantially the same insurance as described in
Paragraph 11.1 except that the insurance to be maintained by Subcontractors pursuant to Paragraph
11.1.1.5 (Excess) shall have a limit of not less than $1,000,000 per occurrence and $2,000,000 in
the aggregate, unless the Owner specifically, in writing, approves a lower liability limit for a
specific Subcontractor. Such insurance shall conform to the requirements of this Article 11. If
the Contractor permits one or more Subcontractors to maintain insurance with liability limits lower
than those required herein, then the Contractor and its insurance carrier shall be responsible for
any acts of such Subcontractor to the extent such acts are not insured against by such
Subcontractor.




ARTICLE 12 UNCOVERING AND CORRECTION OF WORK



§ 12.1 UNCOVERING OF WORK



§ 12.1.1 If a portion of the Work is covered contrary to the Architect’s request or to requirements
specifically expressed in the Contract Documents, it must, if required in writing by the Owner or
Architect, be uncovered for the Owner’s or Architect’s examination and be replaced at the
Contractor’s expense without change in the Contract Time.



§ 12.1.2 If a portion of the Work has been covered which the Owner or Architect has not
specifically requested to examine prior to its being covered, the Owner or Architect may request to
see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the
Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at
the Owner’s expense. If such Work is not in accordance with the Contract Documents, correction
shall be at the Contractor’s expense unless the condition was caused by the Owner or a separate
contractor in which event the Owner shall be responsible for payment of such costs.




§ 12.2 CORRECTION OF WORK



§ 12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION



§ 12.2.1.1 The Contractor shall promptly correct Work rejected by the Owner or Architect or failing
to conform to the requirements of the Contract Documents, whether discovered before or after
Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting
such rejected Work, including additional testing and inspections and compensation for the
Architect’s services and expenses made necessary thereby, shall be at the Contractor’s expense. If
prior to the date of Substantial Completion the Contractor, a Subcontractor, or anyone for whom
either is responsible uses or damages any portion of the Work, including, without limitation,
mechanical, electrical, plumbing, and other building systems, machinery, equipment, or other
mechanical device, the Contractor shall cause such item to be restored to “like new” condition at
no expense to the Owner.




§ 12.2.2 AFTER SUBSTANTIAL COMPLETION



§ 12.2.2.1 In addition to the Contractor’s obligations under Section 3.5 of these General
Conditions and any express or implied warranties or guaranties applicable to the Work, if, within
one (1) year after the date of Substantial Completion



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
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of the Work or designated portion thereof or
after the date for commencement of warranties established under Section 9.9.1 of these General
Conditions, or by terms of an applicable special warranty required by the Contract Documents, any
of the Work is found to be not in accordance with the requirements of the Contract Documents, the
Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless
the Owner has previously given the Contractor a written acceptance of such condition. The Owner
shall give such notice promptly after discovery of the condition. If the Contractor fails to
correct nonconforming Work within seven (7) days after receipt of notice from the Owner or
Architect, the Owner may correct it and Contractor shall bear the costs relating thereto in
accordance with Section 2.4; provided that no further notice to Contractor shall be required. This
obligation shall survive any termination of the Contract Documents.



§ 12.2.2.2 If the Contractor fails to correct nonconforming Work within a reasonable time, the
Owner may correct it in accordance with Paragraph 2.4. If the Contractor does not proceed with
correction of such nonconforming Work within a reasonable time fixed by written notice from the
Owner, the Owner may remove it and store the salvageable materials or equipment at the Contractor’s
expense. If the Contractor does not pay costs of such removal and storage within ten (10) days
after written notice, the Owner may upon ten (10) additional days’ written notice sell such
materials and equipment at auction or at private sale and shall account for the proceeds thereof,
after deducting costs and damages that should have been borne by the Contractor, including
compensation for the Consultant’s, Architect’s or Owner’s services and expenses made necessary
thereby. If such proceeds of sale do not cover costs which the Contractor should have borne, the
Contract Sum shall be reduced by the deficiency. If payments then or thereafter due the Contractor
are not sufficient to cover such amount, the Contract shall pay the difference to the Owner. The
one-year period for correction of Work shall be extended with respect to portions of Work first
performed after Substantial Completion by the period of time between Substantial Completion and the
actual performance of the Work.



§ 12.2.2.3 Upon completion of any Work under or pursuant to this Paragraph 12.2, the one (1)-year
correction period in connection with the Work requiring correction shall be renewed and recommence.
The obligations under Paragraph 12.2 shall cover any repairs and replacement to any part of the
Work or other property that is damaged by the defective Work.



§ 12.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance
with the requirements of the Contract Documents and are neither corrected by the Contractor nor
accepted by the Owner.



§ 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction,
whether completed or partially completed, of the Owner or separate contractors caused by the
Contractor’s correction or removal of Work which is not in accordance with the requirements of the
Contract Documents.



§ 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of
limitation with respect to other obligations which the Contractor might have under the Contract
Documents. Establishment of the one (1)-year period for correction of Work as described in Section
12.2.2 of these General Conditions 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 construction defects and the
Contractor’s obligations other than specifically to correct the Work.




§ 12.3 ACCEPTANCE OF NONCONFORMING WORK



§ 12.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of
the Contract Documents, the Owner may do so instead of requiring its removal and correction, in
which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be
effected whether or not final payment has been made.




ARTICLE 13 MISCELLANEOUS PROVISIONS



§ 13.1 GOVERNING LAW



§ 13.1.1 The Contract shall be governed by the law of the place where the Project is located,
without regard to principles of conflicts of laws.




§ 13.2 SUCCESSORS AND ASSIGNS



§ 13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors, assigns
and legal representatives to the other party hereto and to partners, successors, assigns and legal
representatives of such other party in respect to covenants, agreements and obligations contained
in the Contract Documents. Contract shall not assign the Contract as a whole without prior-written
consent of the Owner, which consent may be withheld in Owner’s sole



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)






53









 







discretion. If Contractor
attempts to make such an assignment without such prior-written consent, such assignment shall be
void. In the event of any assignment by Contractor, Contractor shall not be released from its
obligations under the Contract Documents. Should Owner consent to any such assignment, such
consent shall not constitute a waiver of any of the restrictions of this Subparagraph 13.2.1 and
the same shall apply to each successive assignment hereunder, if any.



§ 13.2.2 The Owner may, without consent of the Contractor, assign the Contract to another entity or
person, including, without limitation, an institutional lender providing construction financing for
the Project. The Contractor shall execute all consents reasonably required to facilitate any
assignment by Owner. In the event of Owner’s assignment to a third party (other than a lender
providing construction financing), Owner shall be released from its executory obligations under the
Contract Documents.




§ 13.3 WRITTEN NOTICE



§ 13.3.1 Written notice shall be deemed to have been duly served if delivered in person to the
individual or a member of the firm or entity or to an officer of the corporation for which it was
intended, or if delivered at or sent by registered or certified mail or messenger or overnight
delivery service to the last business address known to the party giving notice or by facsimile to
the facsimile number last given to the other party.




§ 13.4 RIGHTS AND REMEDIES



§ 13.4.1 Except as expressly provided in the Contract Documents, duties and obligations imposed by
the Contract Documents and rights and remedies available thereunder shall be in addition to and not
a limitation of duties, obligations, rights and remedies otherwise imposed or available by law.



§ 13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a
waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act
constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed
in writing.




§ 13.5 TESTS AND INSPECTIONS



§ 13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract
Documents or by laws, ordinances, rules, regulations or orders of public authorities having
jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Contractor shall
make arrangements for such tests, inspections and approvals with an independent testing laboratory
or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all
related costs of tests, inspections and approvals. The Contractor shall give the Architect timely
notice of when and where tests and inspections are to be made so that the Architect may be present
for such procedures. The Owner shall bear costs of tests, inspections or approvals which do not
become requirements until after bids are received or negotiations concluded.



§ 13.5.2 If the Architect, Owner or public authorities having jurisdiction determine that portions
of the Work require additional testing, inspection or approval not included under Section 13.5.1 of
these General Conditions, the Architect will, upon written authorization from the Owner, instruct
the Contractor to make arrangements for such additional testing, inspection or approval by an
entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect of
when and where tests and inspections are to be made so that the Architect may be present for such
procedures. Such costs, except as provided in Section 13.5.3 of these General Conditions, shall be
at the Owner’s expense.



§ 13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 of
these General Conditions reveal failure of the portions of the Work to comply with requirements
established by the Contract Documents, all costs made necessary by such failure including those of
repeated procedures and compensation for the Architect’s services and expenses shall be at the
Contractor’s expense. The Contractor also agrees that the cost of testing services required for
the convenience of the Contractor in his scheduling and performance of the Work, and the cost of
testing services related to remedial operations performed to correct deficiencies in the Work,
shall be borne by the Contractor.



§ 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required
by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect.



§ 13.5.5 If the Architect is to observe tests, inspections or approvals required by the Contract
Documents, the Architect will do so promptly and, where practicable, at the normal place of
testing.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
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54









 







§ 13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly
to avoid unreasonable delay in the Work.



§ 13.5.7 Neither the observations of the Architect or Owner or Owner’s Representatives in their
administration of the Contract nor inspections, tests or approvals by persons other than the
Contractor shall relieve the Contractor from the Contractor’s obligations to perform the Work in
accordance with the Contract Documents.




§ 13.6 INTEREST



§ 13.6.1 Intentionally Deleted.




§ 13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD



§ 13.7.1 Intentionally Deleted.



§ 13.8 GENERAL PROVISIONS



§ 13.8.1 All personal pronouns used in this Contract, whether used in the masculine, feminine, or
neuter gender, shall include all other genders; and the singular shall include the plural and vice
versa. Titles of articles, paragraphs, and subparagraphs are for convenience only and neither
limit nor amplify the provisions of this Contract in itself. The use herein of the word
“including,” when following any general statement, term, or matter, shall not be construed to limit
such statement, term, or matter to the specific items or matters set forth immediately following
such word or to similar items or matters, whether or not non-limiting language (such words as
“without limitation,” or “but not limited to,” or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that could reasonably
fall within the broadest possible scope of such general statement, term, or matter.



§ 13.8.2 Wherever possible, each provision of this Agreement shall be interpreted in a manner as to
be effective and valid under applicable law. If, however, any provision of this Agreement, or
portion thereof, is prohibited by law or found invalid under any law, only such provision or
portion thereof shall be ineffective, without in any manner invalidating or affecting the remaining
provisions of this Agreement or valid portions of such provision, which are hereby deemed
severable.



§ 13.8.3 Each party hereto agrees to do all acts and things and to make, execute and deliver such
written instruments, as shall from time to time be reasonably required to carry out the terms and
provisions of the Contract Documents.



§ 13.8.4 Any specific requirement in this Contract that the responsibilities or obligations of the
Contractor also apply to a Subcontractor is added for emphasis and is also hereby deemed to include
a Subcontractor of any tier. The omission of a reference to a Subcontractor in connection with any
of the Contractor’s responsibilities or obligations shall not be construed to diminish, abrogate,
or limit any responsibilities or obligations of a Subcontractor of any tier under the Contract
Documents or the applicable subcontract.




ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT



§ 14.1 TERMINATION BY THE CONTRACTOR



§ 14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30
consecutive days through no act or fault of the Contractor or a Subcontractor, including, without
limitation, a Sub-subcontractor or their agents or employees or any other persons or entities
performing portions of the Work under direct or indirect contract with the Contractor, for any of
the following reasons:





	 	.1	 	issuance of an order of a court or other public authority having jurisdiction
which requires all Work to be stopped;
	 
	 	.2	 	an act of government, such as a declaration of national emergency which
requires all Work to be stopped; or
	 
	 	.3	 	because a Certificate for Payment has not been issued and Contractor has not
been notified of the reason for withholding certification as provided in Section 9.4.1,
or because the Owner has not made payment on a Certificate for Payment within the time
stated in the Contract Documents.
	 
	 	.4	 	Intentionally deleted.




§ 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or
a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities
performing portions of the Work under direct



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)





55









 







or indirect contract with the Contractor, repeated
suspensions, delays or interruptions of the entire Work by the Owner as described in Section 14.3
of these General Conditions constitute in the aggregate more than 100 percent of the total number
of days scheduled for completion, or 120 days in any 365-day period, whichever is less.



§ 14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 of these General Conditions
exists, the Contractor may, upon seven days’ written notice to the Owner and Architect, terminate
the Contract Documents and recover from the Owner payment for Work executed in accordance with the
schedule of values and for proven loss with respect to materials, equipment, tools, and
construction equipment and machinery including Contractor’s Fee on the Cost of the Work for the
portions of the Work executed.



§ 14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the
Contractor or a Subcontractor or their agents or employees or any other persons performing portions
of the Work under contract with the Contractor because the Owner has persistently failed to fulfill
the Owner’s obligations under the Contract Documents with respect to matters material to the
progress of the critical path of the Work, then the Contractor may, upon seven additional days’
written notice to the Owner and the Architect, terminate the Contract and recover from the Owner as
provided in Section 14.1.3 of the General Conditions.




§ 14.2 TERMINATION BY THE OWNER FOR CAUSE



§ 14.2.1 In addition to any other rights of Owner to terminate the Contract Documents, the Owner
may terminate the Contract in whole or in part if the Contractor:





	 	.1	 	persistently or repeatedly refuses or fails to supply enough properly skilled
workers or proper materials;
	 
	 	.2	 	fails to make payment to Subcontractors for materials or labor in accordance
with the respective agreements between the Contractor and the Subcontractors;
	 
	 	.3	 	persistently disregards laws, ordinances, or rules, regulations or orders of a
public authority having jurisdiction; or
	 
	 	.4	 	otherwise is guilty of substantial breach of a provision of the Contract
Documents, including, without limitation Contractor’s failure to satisfy Owner’s
schedule requirements as described in Article 4 of the Agreement.
	 
	 	.5	 	breaches any warranty made by the Contractor under or pursuant to the Contract
Documents.
	 
	 	.6	 	fails to furnish the Owner with assurances satisfactory to the Owner evidencing
the Contractor’s ability to complete the Work in compliance with all the requirements
of the Contract Documents.
	 
	 	.7	 	fails after commencement of the Work to proceed continuously with the
construction and completion of the Work for more than ten (10) days for reasons other
than force majeure, strikes, or weather, except as permitted under the Contract
Documents.




§ 14.2.2 When any of the above reasons exist, the Owner may without prejudice to any other rights
or remedies of the Owner and after giving the Contractor and the Contractor’s surety, if any, seven
days’ written notice, terminate employment of the Contractor in whole or in part and may, subject
to any prior rights of the surety:





	 	.1	 	take possession of the site and of all materials, equipment, tools, and
construction equipment and machinery thereon owned by the Contractor;
	 
	 	.2	 	accept assignment of subcontracts pursuant to Section 5.4 of these General
Conditions; and
	 
	 	.3	 	finish the Work by whatever reasonable method the Owner may deem expedient.
Upon request of the Contractor, the Owner shall furnish to the Contractor a detailed
accounting of the costs incurred by the Owner in finishing the Work.




§ 14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1 of
these General Conditions, except due to an Owner-Elected Acceleration, the Contractor shall not be
entitled to receive further payment until the Work is completed in accordance with the Contract
Documents. When the Owner terminates the Contract in whole or in part due to an Owner-Elected
Acceleration, Contractor shall be entitled to payment in accordance with the provisions of
Subparagraph 14.4.3 of these General Conditions.



§ 14.2.4 In the event of termination pursuant to this Paragraph 14.2 of the General Conditions, but
excluding termination due to Owner-Elected Acceleration, if the unpaid balance of the Contract Sum
exceeds costs of completing the Work in accordance with the Contract Documents, except due to an
Owner-Elected Acceleration, including, without limitation, compensation for the Architect’s
services and expenses made necessary thereby, and other damages incurred by the Owner and not
expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed
the unpaid balance, the Contractor shall pay the difference to the Owner. The amount to be paid to
the Contractor or Owner,



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
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56









 







as the case may be, shall be certified by the Architect, upon application,
and this obligation for payment shall survive termination of the Contract.




§ 14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE



§ 14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or
interrupt the Work in whole or in part for such period of time as the Owner may determine. In such
event, the actual and reasonable costs of such suspension incurred by Contractor plus
Owner-approved general conditions costs during the period of suspension (if such suspension is
implemented with the intention by Owner to resume the Work within a reasonable time period) shall
accrue as a Cost of Work for which Contractor shall receive the Contractor’s Fee as provided in the
Contract Documents.



§ 14.3.2 The Contract Sum, the GMP and the Contract Time shall be adjusted for increases in the
cost and time caused by suspension, delay or interruption as described in Section 14.3.1 of these
General Conditions. No adjustment shall be made to the extent:





	 	.1	 	that performance is, was or would have been so suspended, delayed or
interrupted by another cause for which the Contractor is responsible; or
	 
	 	.2	 	that an equitable adjustment is made or denied under another provision of the
Contract.





§ 14.4 TERMINATION BY THE OWNER FOR CONVENIENCE



§ 14.4.1 The Owner may, at any time, terminate the Contract for the Owner’s convenience and without
cause. Termination by the Owner under this Paragraph shall be by a notice of termination delivered
to the Contractor specifying the extent of termination and the effective date.



§ 14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner’s
convenience, the Contractor shall immediately, in accordance with instructions from the Owner,
proceed with performance of the following duties regardless of delay in determining or adjusting
amounts due under this Paragraph:





	 	.1	 	cease operations as directed by the Owner in the notice, vacate the Project
site, and remove all equipment and materials therefrom;
	 
	 	.2	 	take actions necessary, or that the Owner may direct, for the protection and
preservation of the Work; and
	 
	 	.3	 	except for Work directed to be performed prior to the effective date of
termination stated in the notice or Work not terminated, terminate all existing
subcontracts and purchase orders and enter into no further subcontracts and purchase
orders with respect to terminated Work.
	 
	 	.4	 	place no further orders and enter into no further subcontracts for materials,
labor, services or facilities except as necessary to complete continued portions of the
Contract;
	 
	 	.5	 	terminate all subcontracts and orders to the extent they relate to the Work
terminated; and
	 
	 	.6	 	proceed to complete the performance of Work not terminated.




§ 14.4.3 Upon such termination, the Contractor shall recover as its sole remedy payment for Work
properly performed in connection with the terminated portion of the Work prior to the effective
date of termination, and thereafter for work required to effect termination, and for items properly
and timely fabricated off the Project site, delivered and stored in accordance with the Owner’s
instructions, reasonable costs to effect the termination required by Owner and Contractor’s
applicable general conditions, insurance and Contractor’s Fee. The Contractor hereby waives and
forfeits all other claims for payment and damages, including, without limitation, anticipated
profits and Contractor Fees on any portions of the Work not executed (except as allowed pursuant to
the foregoing).



§ 14.4.4 The Owner shall be credited for (1) payments previously made to the Contractor for the
terminated portion of the Work, (2) claims which the Owner has against the Contractor under the
Contract and (3) the value of the materials, supplies, equipment or other items that are to be
disposed of by the Contractor that are part of the Contract Sum.



§ 14.5 In no event shall Contractor have a claim for damages, lost profits or otherwise on account
of the termination of the agreements contained within the Contract Documents by Owner or
Contractor.



 



AIA
Document A201TM — 1997. Copyright
© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966,
1967, 1970, 1976, 1987 and 1997 by The American Institute of
Architects. All rights reserved. WARNING:
This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction
or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties,
and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at
13:17:02 on 12/14/2004 under Order No.1000135790_1 which expires on 8/31/2005, and is not for resale.




		
	User Notes: A201 Form	(2166203743)






57