Exhibit 10.1


 


AIA DOCUMENT A107-1997


 


Abbreviated Standard Form of Agreement Between Owner
and Contractor for Construction Projects of Limited Scope where the basis of
payment is a STIPULATED SUM


 


	
  AGREEMENT made as of the twenty fourth day of January in the year Two
  Thousand and Six

  (In words, indicate day, month and year)

  	
   

  	
  This
  document includes abbreviated General Conditions and should not be used with
  other general conditions.

  
	
   

  	
   

  	
   

  
	
  B E T W E E N the Owner:

  (Name, address and other information)

  	
   

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

  
	
  OMTOOL, LTD.

  	
   

  
	
  8 Industrial Way Salem,

  	
   

  
	
  NH 03079

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  and
  the Contractor:

  (Name, address and other information)

  	
   

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

  
	
  PRISM BUILDERS, INC.

  	
   

  
	
  107 Audubon Road

  	
   

  
	
  Building 1 - Suite 19

  	
   

  
	
  Wakefield, MA 01880

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  the
  Project is:

  	
   

  	
   

  
	
  (Name and
  location)

  	
   

  	
   

  
	
  INTERIOR RENOVATION

  	
   

  	
   

  
	
  6 Riverside Drive

  	
   

  	
   

  
	
  Andover, MA 01810

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  the
  Architect is:

  	
   

  
	
  (Name, address and other information)

  	
   

  
	
  DESIGN SCIENCE

  	
   

  
	
  200 Baker Avenue

  	
   

  
	
  Concord, MA
  01742

  	
   

  	
   

  
					



 

















 


The
Owner and Contractor agree as follows.


 


ARTICLE 1 THE WORK OF THIS CONTRACT


 


The
Contractor shall fully execute the Work described in the Contract Documents,
except to the extent specifically indicated in the Contract Documents to be the
responsibility of others.


 


ARTICLE 2 DATE OF COMMENCEMENT AND SUBSTANTIAL
COMPLETION


 


2.1
The date of commencement of the Work shall be the date of this Agreement unless
a different date is stated below or provision is made for the date to be fixed
in a notice to proceed issued by the Owner.


 


(Insert
the date of commencement, if it differs from the date of this Agreement or, if
applicable, state that the date will be
fixed in a notice to proceed.)


 


Within
three (3) days of a fully-executed contract and building permit.


 


2.2     The Contract Time shall be measured from the
date of commencement.


 


2.3     The Contractor shall achieve Substantial
Completion of the entire Work not later than seventy seven (77) days from the
date of commencement, or as follows: (Insert
number of calendar days. Alternatively, a calendar date may be used when
coordinated with the date of commencement. Unless stated elsewhere in the
Contract Documents, insert any requirements for earlier Substantial Completion
of certain portions of the Work.)


 


 


, subject
to adjustments of this Contract Time as provided in the Contract Documents.


 


(Insert provisions, if any, for
liquidated damages relating to failure to complete on time or for bonus payments for early completion of the Work.)


 


ARTICLE 3 CONTRACT SUM


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1   The
  Owner shall pay the Contractor the Contract Sum in current funds for the

  	
   

  	
   

  
	
  Contractor’s
  Performance of the Contract. The Contract Sum shall be FOUR HUNDRED 

  	
   

  	
   

  
	
  THIRTY
  FIVE THOUSAND FOUR HUNDRED THIRTY SEVEN AND 00/100
                Dollars
  ($435,437.00), Subject to additions and deletions as provided in the Contract
  Documents. 

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit ”A”
  – Schedule of Values dated 1/19/06

  	
   

  	
   

  
	
  Exhibit ”B:
  – General Conditions dated 1/24/06

  	
   

  	
   

  



 

















 


3.2     The Contract Sum is based upon the following
alternates, if any, which are described in the Contract Documents and are
hereby accepted by the Owner:


(State the numbers or other identification of accepted
alternates. If decisions on other alternates are to be made by the Owner
subsequent to the execution of this Agreement, attach a schedule of such
other alternates showing the amount for each and the date when that amount
expires.)


 


 


3.3     Unit prices, if any, are as follows:


 


 


ARTICLE 4 PAYMENTS


 


4.1    PROGRESS PAYMENTS


 


4.1.1
Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment
issued by the Architect, the Owner shall make progress payments on account of
the Contract Sum to the Contractor as provided below and elsewhere in the
Contract Documents. The period covered by each Application for Payment shall be
one calendar month ending on the last day of the month, or as follows:


 


4.1.2
Provided that an Application for Payment is received by the Architect not later
than the 30th day of a month, the Owner shall make payment to the Contractor
not later than the 30th day of the following month.  


 


If an Application for Payment is received by the
Architect after the date fixed above, payment shall be made by the Owner not
later than 30 days after the Architect receives the Application for Payment.


 


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4.1.3 Payments
due and unpaid under the Contract shall bear interest from the date payment is
due at the rate stated below, or in the absence thereof, at the legal rate
prevailing from time to time at the place where the Project is located.


(Insert rate of interest agreed upon, if any.)


 


 


(Usury laws and requirements under the Federal Truth in
Lending Act, similar state and local consumer credit laws and other regulations
at the Owner’s and Contractor’s principal places of business, the location of
the Project and elsewhere may affect the validity of this provision. Legal
advice should be obtained with respect to deletions or modifications, and also
regarding requirements such as written disclosures or waivers.)


 


4.2    FINAL PAYMENT


 


4.2.1
Final payment, constituting the entire unpaid balance of the Contract Sum,
shall be made by the Owner to the Contractor when:


 


.1 the Contractor has fully performed the Contract
except for the Contractor’s responsibility to correct Work as provided in
Paragraph 17.2, and to satisfy other requirements, if any, which extend beyond
final payment; and


 


.2
a final Certificate for Payment has been issued by the Architect.


 


4.2.2
The Owner’s final payment to the Contractor shall be made no later than 30 days
after the issuance of the Architect’s final Certificate for Payment, or as
follows:


 


 


ARTICLE 5 ENUMERATION OF CONTRACT DOCUMENTS


 


5.1     The Contract Documents are listed in Article 6
and, except for Modifications issued after execution of this Agreement, are
enumerated as follows:


 


5.1.1
The Agreement is this executed 1997 edition
of the Abbreviated Standard Form of Agreement Between Owner and
Contractor, AIA Document A107-1997.


 


5.1.2
The Supplementary and other Conditions of the Contract are those contained in
the Project Manual dated
                       
                                         ,
and are as follows:


 


	
  Document

  	
   

  	
  Title

  	
   

  	
  Pages

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


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5.1.3
The Specifications are those contained in the Project Manual dated as in
Subparagraph 5.1.2, and are as follows:


(Either list the Specifications here or refer to an exhibit
attached to this Agreement.)


 


	
  Section

  	
   

  	
  Title

  	
   

  	
  Pages

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


5.1.4
The Drawings are as follows, and are dated ____ unless a different date is
shown below:


(Either list the Drawings here or refer to an exhibit
attached to this Agreement.)


 


	
  Number

  	
   

  	
  Title

  	
   

  	
  Pages

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Refer
to Exhibit ”C” - List of Drawings


 


5.1.5
The Addenda, if any, are as follows:


 


	
  Number

  	
   

  	
  Date

  	
   

  	
  Pages

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Portions
of Addenda relating to bidding requirements are not part of the Contract
Documents unless the bidding requirements are also enumerated in this Article 5.


 


5.1.6 Other
documents, if any, forming part of the Contract Documents are as follows: 

(List any additional documents
which are intended to form part of the Contract Documents.)


 


In
accordance with Exhibit ”D” (see attachment), Prism Builders, Inc.
acknowledges that the premises being built out are leased, and Prism Builders, Inc.
acknowledges that the build-out must comply with all building rules and
regulations of the landlord and all requirements of the lease. 


 


Contractor
will indemnify Omtool, Ltd. for any lease default caused by the Contractor.


 


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GENERAL CONDITIONS


 


ARTICLE 6 GENERAL PROVISIONS


 


6.1          THE CONTRACT DOCUMENTS


 


The
Contract Documents consist of this Agreement with Conditions of the Contract
(General,    Supplementary and other Conditions), Drawings, Specifications, Addenda
issued prior to the execution of this Agreement, other documents listed in this
Agreement and Modifications issued after execution of this Agreement. 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. 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 to the extent consistent with the Contract Documents and reasonably
inferable from them as being necessary to produce the indicated results.


 


6.2          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, (3) between the Owner and
Architect or (4) between any persons or entities other than the Owner and
Contractor.


 


6.3          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 may constitute the
whole or a part of the Project.


 


6.4          EXECUTION OF THE CONTRACT


 


Execution
of the Contract by the Contractor is a representation that the Contractor has
visited the site, become generally familiar with local conditions under which
the Work is to be performed and correlated personal observations with
requirements of the Contract Documents.


 


6.5      OWNERSHIP AND USE OF ARCHITECT’S DRAWINGS, SPECIFICATIONS AND
OTHER

INSTRUMENTS OF SERVICE


 


The
Drawings, Specifications and other documents, including those in electronic
form, prepared by the Architect and the Architect’s consultants are Instruments
of Service through which the Work to be executed by the Contractor is
described. The Contractor may retain one record set. 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 unless otherwise
indicated the Architect and the Architect’s consultants shall be deemed the
authors of them and will retain all common law, statutory and other reserved
rights, in addition to the copyrights. All copies of them,    except the Contractor’s record set, shall be
returned or suitably accounted for to the Architect, 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,
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, Architect and the Architect’s consultants. The
Contractor, Subcontractors,


 


4

















 


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 Architect’s
or Architect’s consultants’ copyrights or other reserved rights.


 


ARTICLE 7 OWNER


 


7.1    INFORMATION AND SERVICES
REQUIRED OF THE OWNER


 


7.1.1  The Owner shall furnish and pay for surveys
and a legal description of the site.


 


7.1.2
The Contractor shall be entitled to rely on the accuracy of information
furnished by the Owner but shall exercise proper precautions relating to the
safe performance of the Work.


 


7.1.3
Except for permits and fees which are the responsibility of the Contractor
under the Contract Documents, the Owner shall secure and pay for other
necessary approvals, easements, assessments and charges required for the
construction, use or occupancy of permanent structures or permanent changes in
existing facilities.


 


7.2    OWNER’S RIGHT TO STOP THE
WORK


 


If
the Contractor fails to correct Work which is not in accordance with the
requirements of the Contract Documents, or persistently fails to carry out the
Work in accordance with the Contract Documents, the Owner may issue a written
order to the Contractor to stop the Work, or any portion thereof, until the
cause for such order is 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.


 


7.3    OWNER’S RIGHT TO CARRY OUT
THE WORK


 


If
the Contractor defaults or persistently fails or neglects to carry out the Work
in accordance with the Contract Documents, or fails to perform a provision of
the Contract, the Owner, after io days’ written notice to the Contractor and
without prejudice to any other remedy the Owner may have, may make good such
deficiencies and may deduct the reasonable cost thereof, including Owner’s
expenses and compensation for the Architect’s services made necessary thereby,
from the payment then or thereafter due the Contractor.


 


ARTICLE 8 CONTRACTOR


 


8.1    REVIEW OF CONTRACT DOCUMENTS
AND FIELD CONDITIONS BY CONTRACTOR


 


8.1.1
Since the Contract Documents are complementary, before starting each portion of
the Work, the Contractor shall carefully study and compare the various Drawings
and other Contract Documents relative to that portion of the Work, as well as
the information furnished by the Owner pursuant to Subparagraph 7.1.1, 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, omissions or inconsistencies
discovered by the Contractor shall be reported promptly to the Architect as a
request for information in such form as the Architect may require.


 


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8.1.2
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.


 


8.2    SUPERVISION AND CONSTRUCTION
PROCEDURES


 


8.2.1
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 be
fully and solely responsible for the jobsite safety thereof unless the
Contractor gives timely written notice to the Owner and Architect that such
means, methods, techniques, sequences or procedures may not be safe.


 


8.2.2
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.


 


8.3    LABOR AND MATERIALS


 


8.3.1
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.


 


8.3.2
The Contractor shall enforce strict discipline and good order among the
Contractor’s employees and other persons carrying out the Contract. The
Contractor shall not permit employment of unfit persons or persons not skilled
in tasks assigned to them.


 


8.3.3
The Contractor shall deliver, handle, store and install materials in accordance
with manufacturers’ instructions.


 


8.3.4
The Contractor may make substitutions only with the consent of the Owner, after
evaluation by the Architect and in accordance with a Change Order.


 


8.4    WARRANTY


 


The
Contractor warrants to the Owner and Architect that materials and equipment
furnished under the Contract will be of good quality and new unless otherwise
required or permitted by the Contract Documents, that the Work will be free
from defects not inherent in the quality required or permitted, and that the Work
will conform with the requirements of the Contract Documents. Work not
conforming to these requirements, including substitutions not properly approved
and authorized, may be considered defective. The Contractor’s warranty excludes
remedy for damage or defect caused by abuse, modifications not executed by the
Contractor, improper or insufficient maintenance, improper operation or normal
wear and tear and normal usage.


 


8.5    TAXES


 


The
Contractor shall pay sales, consumer, use and other similar taxes which are
legally enacted when bids are received or negotiations concluded.


 


6

















 


8.6    PERMITS, FEES AND NOTICES


 


8.6.1
Unless otherwise provided in the Contract Documents, the Contractor shall
secure and pay for the building permit and other permits and governmental fees,
licenses and inspections necessary for proper execution and completion of the
Work.


 


8.6.2
The Contractor shall comply with and give notices required by laws, ordinances,
rules, regulations and lawful orders of public authorities applicable to
performance of the Work. The Contractor shall promptly notify the Architect and
Owner if the Drawings and Specifications are observed by the Contractor to be
at variance therewith. If the Contractor performs Work knowing it to be
contrary to laws, statutes, ordinances, building codes, and rules and
regulations without such notice to the Architect and Owner, the Contractor
shall assume appropriate responsibility for such Work and shall bear the costs
attributable to correction.


 


8.7    SUBMITTALS


 


8.7.1
The Contractor shall review for compliance with the Contract Documents, approve
in writing and submit to the Architect Shop Drawings, Product Data, Samples and
similar submittals required by the
Contract Documents with reasonable promptness. The Work shall be in accordance
with approved submittals.


 


8.7.2
Shop Drawings, Product Data, Samples and similar submittals are not Contract
Documents.


 


8.8    USE OF SITE


 


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


 


8.9    CUTTING AND PATCHING


 


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


 


8.10  CLEANING UP


 


The
Contractor shall keep the premises and surrounding area free from accumulation
of waste materials or rubbish caused by operations under the Contract. At
completion of the Work, the Contractor shall remove from and about the Project
waste materials, rubbish, the Contractor’s tools, construction equipment,
machinery and surplus material.


 


8.11  ROYALTIES, PATENTS AND
COPYRIGHTS


 


The
Contractor shall pay all royalties and license fees; 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, unless the Contractor
has reason to believe that there is an infringement of patent or copyright and
fails to promptly furnish such information to the Architect.


 


8.12  ACCESS TO WORK


 


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


 


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8.13  INDEMNIFICATION


 


8.13.1 To the fullest extent permitted by law and to the extent claims,
damages, losses or expenses are not covered by Project Management Protective
Liability insurance purchased by the Contractor in accordance with Paragraph
16.3, the Contractor shall indemnify and hold harmless the Owner, Architect,
Architect’s consultants and agents and employees of any of them from and
against claims, damages, losses and expenses, including but not limited to
attorneys’ fees, arising out of or resulting from performance of the Work,
provided that such claim, damage, loss or expense is attributable to bodily
injury, sickness, disease or death, or to injury to or destruction of tangible
property (other than the Work itself), but only to the extent caused by the
negligent acts or omissions of the Contractor, a Subcontractor, anyone directly
or indirectly employed by them or anyone for whose acts they may be liable,
regardless of whether or not such claim, damage, loss or expense is caused in
part by a party indemnified hereunder. Such obligation shall not be construed
to negate, abridge, or reduce other rights or obligations of indemnity which
would otherwise exist as to a party or person described in this Paragraph 8.13.


 


8.13.2 In claims against any person or entity indemnified under this Paragraph
8.13 by an employee of the Contractor, a Subcontractor, anyone directly or
indirectly employed by them or anyone for whose acts they may be liable, the
indemnification obligation under Subparagraph 8.13.1 shall not be limited by a
limitation on amount or type of damages, compensation or   benefits payable by or for the Contractor or Subcontractor under
workers’ compensation acts, disability benefit acts or other employee benefit
acts.


 


ARTICLE 9 ARCHITECT’S ADMINISTRATION OF THE CONTRACT


 


9.1
The Architect will provide administration of the Contract and will be an Owner’s
representative (1) during construction, (2) until final payment is
due and (3) with the Owner’s concurrence, from time to time during the
one-year period for correction of Work described in Paragraph 17.2.


 


9.2
The Architect, as a representative of the Owner, will visit the site at
intervals appropriate to the stage of the Contractor’s operations (i) to
become generally familiar with and to keep the Owner informed about the
progress and quality of the portion of the Work completed, (2) to endeavor
to guard the Owner against defects and deficiencies in the work, and (3) to
determine in general if the Work is being performed in a manner indicating that
the Work, when fully completed, will be in accordance with the Contract
Documents. However, the Architect will not be required to make exhaustive or
continuous on-site inspections to check the quality or quantity of the Work.
The Architect will neither have control over or charge of, nor be responsible
for, the construction means, methods, techniques, sequences or procedures, or
for safety precautions and programs in connection with the Work, since these
are solely the Contractor’s rights and responsibilities under the Contract
Documents, except as provided in Subparagraph 8.2.1.


 


9.3     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.


 


9.4
Based on the Architect’s evaluations of the Work and of the Contractor’s
Applications for Payment, the Architect will review and certify the amounts due
the Contractor and will issue Certificates for Payment in such amounts.


 


9.5     The Architect will have authority to reject
Work that does not conform to the Contract Documents.


 

















 


9.6
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.


 


9.7
The Architect will interpret and decide matters concerning performance under,
and requirements of, the Contract Documents on written request of either the
Owner or Contractor. The Architect will make initial decisions on all claims,
disputes and other matters in question between the Owner and Contractor but
will not be liable for results of any interpretations or decisions so rendered
in good faith.


 


9.8
The Architect’s decisions on matters relating to aesthetic effect will be final
if consistent with the intent expressed in the Contract Documents.


 


9.9
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, Contractor and Architect. Consent shall
not be unreasonably withheld.


 


9.10 CLAIMS AND DISPUTES


 


9.10.1
Claims, disputes and other matters in question arising out of or relating to
this Contract,   including those alleging an error or omission by the Architect but
excluding those arising under Paragraph 15.2, shall be referred initially to
the Architect for decision. Such matters, except those relating to aesthetic
effect and except those waived as provided for in Paragraph 9.11 and
Subparagraphs 14.5.3 and 14.5.4, shall, after initial decision by the Architect
or 30 days after submission of the matter to the Architect, be subject to
mediation as a condition precedent to arbitration or the institution of legal
or equitable proceedings by either party.


 


9.10.2 If a claim, dispute or
other matter in question relates to or is the subject of a mechanic’s lien, the
party asserting such matter may proceed in accordance with applicable law to
comply with the lien notice or filing deadlines prior to resolution of the
matter by the Architect, by mediation or by arbitration.


 


9.10.3
The parties shall endeavor to resolve their disputes 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 this Agreement 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.


 


9.10.4
Claims, disputes and other matters in question arising out of or relating to
the Contract that are not resolved by mediation, except matters relating to
aesthetic effect and except those waived as provided for in Paragraph 9.11 and
Subparagraphs 14.53 and 14.5.4, shall be decided by arbitration which, unless
the parties mutually agree otherwise, shall be in accordance with the
Construction Industry Arbitration Rules of the American Arbitration
Association currently in effect. The demand for arbitration shall be filed in
writing with the other party to this Agreement and with the American Arbitration
Association and shall be made within a reasonable time after the dispute has
arisen. The award rendered by the arbitrator or arbitrators shall be final, and
judgment may be entered upon it in accordance with applicable law in any court
having jurisdiction thereof. Except by written consent of the person or entity
sought to be joined, no arbitration arising out of or relating to the Contract
Documents shall include, by consolidation, joinder or in any other manner, any
person or entity not a party to the Agreement under which


 

















 


such
arbitration arises, unless it is shown at the time the demand for arbitration
is filed that (i) such person or entity is substantially involved in a
common question of fact or law, (2) the presence of such person or entity
is required if complete relief is to be accorded in the arbitration, (3) the
interest or responsibility of such person or entity in the matter is not
insubstantial, and (4) such person or entity is not the Architect or any
of the Architect’s employees or consultants. The agreement herein among the
parties to the Agreement and any other written agreement to arbitrate referred
to herein shall be specifically enforceable under applicable law in any court
having jurisdiction thereof.


 


9.11 CLAIMS FOR CONSEQUENTIAL DAMAGES


 


The
Contractor and Owner waive claims against each other for consequential damages
arising out of or relating to this Contract. This mutual waiver includes:


 


.1   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   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 19. Nothing
contained in this Paragraph 9.11 shall be deemed to preclude an award of
liquidated direct damages, when applicable, in accordance with the requirements
of the Contract Documents.


 


ARTICLE 10 SUBCONTRACTORS


 


10.1 A Subcontractor is a person or entity who has a direct contract
with the Contractor to perform a portion of the Work at the site.


 


10.2
Unless otherwise stated in the Contract Documents or the bidding requirements,
the Contractor, as soon as practicable after award of the Contract, shall
furnish in writing to the Owner through the Architect the names of the
Subcontractors for each of the principal portions of the Work. The Contractor
shall not contract with any Subcontractor to whom the Owner or Architect has
made reasonable and timely objection. If the proposed but rejected
Subcontractor was reasonably capable of performing the Work, the Contract Sum
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. The Contractor
shall not be required to contract with anyone to whom the Contractor has made
reasonable objection.


 


10.3
Contracts between the Contractor and Subcontractors shall (1) require each
Subcontractor, to the extent of the Work to be performed by the Subcontractor,
to be bound to the Contractor by the terms of the Contract Documents, and to
assume toward the Contractor all the obligations and responsibilities,
including the responsibility for safety of the Subcontractor’s Work, which the
Contractor, by the Contract Documents, assumes toward the Owner and Architect,
and (2) allow the Subcontractor the benefit of all rights, remedies and
redress afforded to the Contractor by these Contract Documents.


 


ARTICLE 11 OWNER’S RIGHT TO
PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS


 


11.1 The Owner reserves the right to perform construction or operations
related to the Project with the Owner’s own forces, and to award separate
contracts in connection with other portions


 

















 


of
the Project or other construction or operations on the site under conditions of
the contract identical or substantially similar to these, including those
portions related to insurance and waiver of subrogation. If the Contractor
claims that delay or additional cost is involved because of such action by the
Owner, the Contractor shall make such claim as provided in Paragraph 9.10.


 


11.2
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 activities with theirs as required by the Contract Documents.


 


11.3
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.


 


ARTICLE 12 CHANGES IN THE WORK


 


12.1
The Owner, without invalidating the Contract, may order changes in the Work
within the general scope of the Contract consisting of additions, deletions or
other revisions, the Contract Sum and Contract Time being adjusted accordingly.
Such changes in the Work shall be authorized by written Change Order signed by
the Owner, Contractor and Architect, or by written Construction Change
Directive signed by the Owner and
Architect.


 


12.2
The cost or credit to the Owner from a change in the Work shall be determined
by mutual agreement of the parties or, in the case of a Construction Change
Directive, by the Contractor’s cost of labor, material, equipment, and
reasonable overhead and profit.


 


12.3
The Architect will have authority to order minor changes in the Work not
involving adjustment in the Contract Sum or extension of the Contract Time and
not inconsistent with the intent of the Contract Documents. Such changes shall
be effected by written order and shall be binding on the Owner and Contractor.
The Contractor shall carry out such written orders promptly.


 


12.4
If concealed or unknown physical conditions are encountered at the site that
differ materially from those indicated in the Contract Documents or from those
conditions ordinarily found to exist, the Contract Sum and Contract Time shall
be equitably adjusted.


 


ARTICLE 13 TIME


 


13.1
Time limits stated in the Contract Documents are of the essence of the
Contract. By executing the Agreement the Contractor confirms that the Contract
Time is a reasonable period for performing the Work.


 


13.2
The date of Substantial Completion is the date certified by the Architect in
accordance with Subparagraph 14.4.2.


 


13.3
If the Contractor is delayed at any time in the commencement or progress of the
Work by changes ordered in the Work, by labor disputes, fire, unusual delay in
deliveries, abnormal adverse weather conditions not reasonably anticipatable,
unavoidable casualties or any causes beyond the Contractor’s control, or by other causes which the Architect
determines may justify delay, then the Contract Time shall be extended by
Change Order for such reasonable time as the Architect may determine, subject
to the provisions of Paragraph 9.10.


 

















 


	
  ARTICLE 14

  	
  PAYMENTS AND COMPLETION 

  



 


14.1 APPLICATIONS FOR PAYMENT


 


14.1.1
Payments shall be made as provided in Article 4 of this Agreement.
Applications for Payment shall be in a form satisfactory to the Architect.


 


14.1.2
The Contractor warrants that title to all Work covered by an Application for
Payment will pass to the Owner no later than the time of payment. The
Contractor further warrants that upon submittal of an Application for Payment
all Work for which Certificates for Payment have been previously issued and
payments received from the Owner shall, to the best of the Contractor’s
knowledge, information and belief, be free and clear of liens, claims, security
interests or other encumbrances adverse to the Owner’s interests.


 


14.2 CERTIFICATES FOR PAYMENT


 


14.2.1
The Architect will, within seven days after receipt of the Contractor’s
Application for Payment, either issue to the Owner a Certificate for Payment,
with a copy to the Contractor, for such amount as the Architect determines is
properly due, or notify the Contractor and Owner in writing of the Architect’s reasons for withholding certification in whole or in part as provided
in Subparagraph 14.2.3.


 


14.2.2 The issuance of a Certificate for Payment will constitute a
representation by the Architect to the Owner, based on the Architect’s
evaluations of the Work and the data comprising the Application for Payment,
that the Work has progressed to the point indicated and that, to the best of
the Architect’s knowledge, information and belief, 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 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.


 


14.2.3 The Architect may withhold a Certificate for Payment in whole or in
part, to the extent reasonably necessary to protect the Owner, if in the
Architect’s opinion the representations to the Owner required by Subparagraph
14.2.2 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 Subparagraph 14.2.1. 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 Architect’s opinion to protect the Owner
from loss for which the Contractor is responsible, including loss resulting
from acts and omissions described in Subparagraph 8.2.2, because of:


 


.1           defective Work not remedied;


. 2        third party claims filed or reasonable
evidence indicating probable filing of such claims unless security acceptable
to the Owner is provided by the Contractor;


.3           failure of the Contractor to make payments
properly to Subcontractors or for labor,   

materials or equipment;


.4           reasonable evidence that the Work cannot be
completed for the unpaid balance of the Contract Sum;


.5           damage to the Owner or another contractor;


 


14

















 


.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.


 


14.2.4
When the above reasons for withholding certification are removed, certification
will be made for amounts previously withheld.


 


14.3 PAYMENTS TO THE CONTRACTOR


 


14.3.1
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 similar manner.


 


14.3.2
Neither the Owner nor Architect shall have an obligation to pay or see to the
payment of money to a Subcontractor except as may otherwise be required by law.


 


14.3.3
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.


 


14.4 SUBSTANTIAL COMPLETION


 


14.4.1
Substantial Completion is the stage in the progress of the Work when the Work or
designated portion thereof is sufficiently complete in accordance with the
Contract Documents so that the Owner can occupy or utilize the Work for its
intended use.


 


14.4.2 When the Architect determines that the Work or designated portion
thereof is substantially complete, the Architect will issue a Certificate of
Substantial Completion which shall establish the date of Substantial
Completion, establish responsibilities of the Owner and Contractor for
security, maintenance, heat, utilities, damage to the Work and insurance, and
fix the time within which the Contractor shall finish all items on the list
accompanying the Certificate. Warranties required by the Contract Documents
shall commence on the date of Substantial Completion of the Work or designated
portion thereof unless otherwise provided in the Certificate of Substantial
Completion. Upon the issuance of the Certificate of Substantial Completion, the
Architect will submit it to the Owner and Contractor for their written
acceptance of responsibilities assigned to them in such Certificate


 


14.5 FINAL COMPLETION AND FINAL PAYMENT


 


14.5.1
Upon receipt of written notice that the Work is ready for final inspection and
acceptance and upon receipt of a final Application for Payment, the Architect
will promptly make such inspection and, when the Architect finds the Work
acceptable under the Contract Documents and the Contract fully performed, the
Architect will promptly issue a final Certificate for Payment stating that to
the best of the Architect’s knowledge, information and belief, and on the basis
of the Architect’s on-site visits and inspections, the Work has been completed
in accordance with terms and conditions of the Contract Documents and that the
entire balance found to be due the Contractor and noted in the final
Certificate is due and payable. The Architect’s final Certificate for Payment
will constitute a further representation that conditions stated in Subparagraph
14.5.2 as precedent to the Contractor’s being entitled to final payment have
been fulfilled.


 


14.5.2
Final payment shall not become due until the Contractor has delivered to the
Owner a complete release of all liens arising out of this Contract or receipts
in full covering all labor,


 


15

















 


materials
and equipment for which a lien could be filed, or a bond satisfactory to the
Owner to indemnify the Owner against such lien. If such lien remains
unsatisfied after payments are made, the Contractor shall refund to the Owner
all money that the Owner may be compelled to pay in discharging such lien,
including costs and reasonable attorneys’ fees.


 


14.5.3 The making of final payment shall constitute a waiver of claims by the
Owner except those arising from:


 


.1    liens, claims, security interests or encumbrances
arising out of the Contract and unsettled;


.2    failure of the Work to comply with the
requirements of the Contract Documents; or


.3    terms of special warranties required by the
Contract Documents.


 


14.5.4 Acceptance of final payment by the Contractor, a Subcontractor or
material supplier shall constitute a waiver of claims by that payee except
those previously made in writing and identified by that payee as unsettled at
the time of final Application for Payment.


 


ARTICLE 15 PROTECTION OF
PERSONS AND PROPERTY 


 


15.1 SAFETY PRECAUTIONS AND PROGRAMS


 


The
Contractor shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the performance of the
Contract The Contractor shall take reasonable precautions for safety of, and
shall provide reasonable protection to prevent damage, injury or loss to:


 


.1    employees on the Work and other persons who
may be affected thereby;


.2    the Work and materials and equipment to be
incorporated therein; and


.3    other property at the site or adjacent
thereto.


 


The
Contractor shall give notices and comply with applicable laws, ordinances,
rules, regulations and lawful orders of public authorities bearing on safety of
persons and property and their protection from damage, injury or loss. The
Contractor shall promptly remedy damage and loss to property caused in whole or
in part by the Contractor, a Subcontractor, a sub-subcontractor, or anyone
directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the
Contractor is responsible under Subparagraphs 15.1.2 and 15.1.3, except for damage or loss attributable to
acts or omissions of the Owner or Architect or by anyone for whose acts either
of them may be liable, and not attributable to the fault or negligence of the
Contractor. The foregoing obligations of the Contractor are in addition to the
Contractor’s obligations under Paragraph 8.13.


 


15.2 HAZARDOUS MATERIALS


 


15.2.1 If reasonable precautions will be inadequate to prevent foreseeable
bodily injury or death to persons resulting from a material or substance,
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. 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 Contract Sum shall be increased in the amount of
the Contractor’s reasonable additional costs of shutdown, delay and start-up,
which adjustments shall be accomplished as provided in Article 12 of this
Agreement.


 


15.2.2 To the fullest extent permitted by law, the Owner shall indemnify and
hold harmless the Contractor, Subcontractors, Architect, Architect’s
consultants and agents and employees of any of them from and against claims,
damages, losses and expenses, including but not limited to attorneys’ fees,
arising out of or resulting from performance of the Work in the affected area
if in fact the material or substance presents the risk of bodily injury or
death as described in


 

















 


Subparagraph
15.2.1 and has not been rendered harmless, provided that such claim, damage,
loss or expense is attributable to bodily injury, sickness, disease or death,
or to injury to or destruction of tangible property (other than the Work
itself), and provided that such damage, loss or expense is not due to the sole
negligence of a party seeking indemnity.


 


15.2.3 If, without negligence on
the part of the Contractor, the Contractor is held liable for the cost of
remediation of a hazardous material or substance 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.


 


ARTICLE 16 INSURANCE


 


16.1
The Contractor shall purchase from and maintain in a company or companies
lawfully authorized to do business in the jurisdiction in which the Project is
located insurance for protection from claims under workers’ compensation acts
and other employee benefit acts which are applicable, claims for damages
because of bodily injury, including death, and claims for damages, other than
to the Work itself, to property which may arise out of or result from the
Contractor’s operations under the Contract, whether such operations be by the Contractor or by a Subcontractor or
anyone directly or indirectly employed by any of them. This insurance shall be written for not less than limits of
liability specified in the Contract Documents or required by law, whichever
coverage is greater, and shall include contractual liability insurance
applicable to the Contractor’s obligations. Certificates of Insurance
acceptable to the Owner shall be filed with the Owner prior to commencement of
the Work. Each policy shall contain a provision that the policy will not be
canceled or allowed to expire until at least 3o days’ prior written notice has
been given to the Owner.


 


16.2 OWNER’S LIABILITY INSURANCE


 


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


 


16.3 PROJECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE


 


16.3.1
Optionally, the Owner may require the Contractor to purchase and maintain
Project Management Protective Liability insurance from the Contractor’s usual
sources as primary coverage for the Owner’s, Contractor’s and Architect’s
vicarious liability for construction operations under the Contract. Unless
otherwise required by the Contract Documents, the Owner shall reimburse the
Contractor by increasing the Contract Sum to pay the cost of purchasing and
maintaining such optional insurance coverage, and the Contractor shall not be
responsible for purchasing any other liability insurance on behalf of the
Owner. The minimum limits of liability purchased with such coverage shall be
equal to the aggregate of the limits required for Contractor’s Liability
insurance under Paragraph 16.1.


 


16.3.2 To the extent damages are covered by Project Management Protective
Liability insurance, the Owner, Contractor and Architect waive all rights
against each other for damages, except such rights as they may have to the
proceeds of such insurance. The policy shall provide for such waivers of
subrogation by endorsement or otherwise.


 


16.3.3 The Owner shall not require the Contractor to include the Owner,
Architect or other persons or entities as additional insureds on the Contractor’s
Liability insurance under Paragraph 16.1.


 


16.4 PROPERTY INSURANCE


 


16.4.1
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 on an “all-risk” policy form, including builder’s risk, in the amount
of the initial Contract Sum, plus the value of subsequent modifications and
cost of materials supplied and 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 Paragraph 14.5 or until no person or
entity other than the Owner has an insurable interest in the property required
by this Paragraph 16.4 to be covered, whichever is later. This insurance shall  include interests of the Owner, the
Contractor, Subcontractors and sub-subcontractors in the Project.


 


16.4.2 The Owner shall file a copy of each policy with the Contractor before
an exposure to loss may occur. Each policy shall contain a provision that the
policy will not be canceled or allowed to expire, and that its limits will not
be reduced, until at least 3o days’ prior written notice has been given to the
Contractor.


 


16.5 WAIVERS OF SUBROGATION


 


16.5.1
The Owner and Contractor waive all rights against (i) each other and any
of their subcontractors, sub-subcontractors, agents and employees, each of the
other, and (2) the Architect; Architect’s consultants, separate
contractors described in Article 11, 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 covered by property insurance
obtained pursuant to Paragraph 16.4 or other property insurance applicable to
the Work, except such rights as they have to proceeds of such insurance held by
the Owner as fiduciary. The Owner or Contractor, as appropriate, shall require
of the Architect, Architect’s consultants, separate contractors described in Article 11,
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.


 


16.5.2 A loss insured under the Owner’s property insurance shall be adjusted
by the Owner as fiduciary and made payable to the Owner as fiduciary for the
insureds, as their interests may appear, subject to requirements of any
applicable mortgagee clause. 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.


 


ARTICLE 17 CORRECTION OF WORK


 


17.1  The Contractor shall promptly correct Work rejected by the 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.


 


17.2 In
addition to the Contractor’s obligations under Paragraph 8.4, if, within one
year after the date of Substantial Completion of the ‘Work or designated
portion thereof or after the date for commencement of warranties established
under Subparagraph 14.4.2, 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. During
the one-year period for correction of Work, if the Owner fails to notify the
Contractor and give the Contractor an opportunity to make the correction, the
Owner waives the rights to require correction by the Contractor and to make a
claim for breach of warranty.


 


17.3  If the Contractor fails to correct
nonconforming Work within a reasonable time, the Owner may correct it in
accordance with Paragraph 7.3.


 


17.4  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.


 


17.5  The one-year period for correction of Work shall not be extended by
corrective Work performed by the Contractor pursuant to this Article 17.


 


ARTICLE 18 MISCELLANEOUS PROVISIONS


 


18.1  ASSIGNMENT OF CONTRACT


 


Neither
party to the Contract shall assign the Contract without written consent of the
other.


 


18.2 GOVERNING LAW


 


The
Contract shall be governed by the law of the place where the Project is
located.


 


18.3  TESTS AND INSPECTIONS


 


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.


 


18.4 COMMENCEMENT OF STATUTORY LIMITATION PERIOD


 


As
between Owner and Contractor, any applicable statute of limitations shall
commence to run and any alleged cause of action shall be deemed to have
accrued:


 


.1   not later than the date of Substantial
Completion for acts or failures to act occurring prior to the relevant date of
Substantial Completion;


 


.2   not later than the date of issuance of the
final Certificate for Payment for acts or failures to act occurring subsequent
to the relevant date of Substantial Completion and prior to the issuance of the
final Certificate for Payment; and


 


.3   not later than the date of the relevant act
or failure to act by the Contractor for acts or failures to act occurring after
the date of the final Certificate for Payment.


 


ARTICLE 19 TERMINATION OF THE
CONTRACT


 


19.1  TERMINATION BY THE
CONTRACTOR


 


If
the Architect fails to recommend payment for a period of 3o days through no
fault of the Contractor, or if the Owner fails to make payment thereon for a
period of 3o days, the Contractor may, upon seven additional days’ written
notice to the Owner and the Architect, terminate the


 

















 


Contract
and recover from the Owner payment for Work executed and for proven loss with
respect to materials, equipment, tools, and construction equipment and
machinery, including reasonable overhead, profit and damages applicable to the
Project.


 


19.2 TERMINATION BY THE OWNER


 


19.2.1 The Owner may terminate the Contract 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.


 


19.2.2
When any of the above reasons exists, the Owner, upon certification by the
Architect that sufficient cause exists to justify such action, may, without
prejudice to any other remedy the Owner may have and after giving the
Contractor seven days’ written notice, terminate the Contract and take
possession of the site and of all materials, equipment, tools, and construction
equipment and machinery thereon owned by the Contractor and may finish the Work
by whatever 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.


 


19.2.3
When the Owner terminates the Contract for one of the reasons stated in
Subparagraph 19.2.1, the Contractor shall not be entitled to receive further
payment until the Work is finished.


 


19.2.4
If the unpaid balance of the Contract Sum exceeds costs of finishing the Work,
including compensation for the Architect’s services and expenses made necessary
thereby, and other damages incurred by the Owner and not expressly waived, such
excess shall be paid to the 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, as the case may be, shall be
certified by the Architect, upon application, and this obligation for payment
shall survive termination of the Contract.


 

















 


ARTICLE 20 OTHER CONDITIONS OR PROVISIONS


 


 


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


 


 


	
  /s/
  Dan Coccoluto

  	
   

  	
  /s/
  Robert Waxman

  	
   

  
	
  OWNER
  (Signature)

  	
  CONTRACTOR
  (Signature)

  
	
   

  	
   

  
	
  Dan
  Coccoluto , CFO

  	
   

  	
  Robert Waxman, President

  	
   

  
	
  (Printed name and title)

  	
  (Printed name
  and title)

  
							



 


21

















 


	
  Prism
  Builders Inc.

  	
   

  	
  Omtool-6 Riverside Dr.

  	
   

  	
  1//24/06

  
	
   

  	
   

  	
  Andover, MA

  	
   

  	
   

  



 


 


Exhibit A - Schedule of Values


 


	
  Item #

  	
   

  	
  Description

  	
   

  	
  1st
  Floor

  	
   

  	
  2nd
  Floor

  	
   

  	
  Remark

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  Demolition

  	
   

  	
  N/A

  	
   

  	
  3,100

  	
   

  	
  includes
  misc. selective demolition

  
	
  2

  	
   

  	
  Concrete

  	
   

  	
  N/A

  	
   

  	
  2,000

  	
  (a)

  	
  modify
  exterior pad for generator

  
	
  3

  	
   

  	
  Steel

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  none
  indicated on drwgs. for new HVAC equip.

  
	
  4

  	
   

  	
  Roofing

  	
   

  	
  N/A

  	
   

  	
  1,600

  	
   

  	
  cut &
  patch for new HVAC equipment

  
	
  5

  	
   

  	
  Carpentry

  	
   

  	
  3,300

  	
   

  	
  5,850

  	
   

  	
  incl.
  in-wall blocking, cabinets & door installation

  
	
  6

  	
   

  	
  Doors, Frames & Hardware

  	
   

  	
  4,101

  	
   

  	
  15,018

  	
   

  	
   

  
	
  7

  	
   

  	
  Glazing

  	
   

  	
  N/A

  	
   

  	
  700

  	
   

  	
  incl.
  sidelites at (3) doors

  
	
  8

  	
   

  	
  Drywall & Metal Framing

  	
   

  	
  9,310

  	
   

  	
  48,600

  	
   

  	
  includes
  temp. floor protection

  
	
  9

  	
   

  	
  Misc. Drywall patching

  	
   

  	
  500

  	
  (a)

  	
  1,500

  	
  (x)

  	
  scope
  to be determined

  
	
  10

  	
   

  	
  Acoustical

  	
   

  	
  3,100

  	
   

  	
  8,400

  	
   

  	
  incl.
  remove & replace for M/E/P trades

  
	
  11

  	
   

  	
  Finish Flooring

  	
   

  	
  1,700

  	
   

  	
  43,236

  	
   

  	
  includes
  carpet, vct & vinyl base

  
	
  12

  	
   

  	
  Painting

  	
   

  	
  7,000

  	
   

  	
  38,800

  	
   

  	
   

  
	
  13

  	
   

  	
  Specialties

  	
   

  	
  300

  	
   

  	
  600

  	
   

  	
  fire
  extinguishers as required

  
	
  14

  	
   

  	
  Sprinkler

  	
   

  	
  1,480

  	
   

  	
  7,000

  	
   

  	
   

  
	
  15

  	
   

  	
  Plumbing

  	
   

  	
  3,000

  	
  (a)

  	
  N/A

  	
   

  	
  need
  information for 1 st floor sink.

  
	
  16

  	
   

  	
  HVAC

  	
   

  	
  2,500 

  	
  (a)

  	
  54,700

  	
   

  	
   

  
	
  17

  	
   

  	
  HVAC Balancing

  	
   

  	
  500

  	
  (x)

  	
  1,000

  	
  (a)

  	
  scope
  to be determined

  
	
  18

  	
   

  	
  Electrical

  	
   

  	
  6,000 

  	
  (a)

  	
  91,000

  	
   

  	
   

  
	
  19

  	
   

  	
  Generator

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  supplied
  by owner with transfer switch

  
	
  20

  	
   

  	
  Final Cleaning

  	
   

  	
  100

  	
   

  	
  1,100

  	
   

  	
   

  
	
  21

  	
   

  	
  Building Permit

  	
   

  	
  300

  	
   

  	
  4,000

  	
   

  	
   

  
	
  22

  	
   

  	
  General Requirements

  	
   

  	
  N/A

  	
   

  	
  31,787

  	
   

  	
  11
  week schedule-see attached itemization

  
	
  23

  	
   

  	
  GC Fee (8%)

  	
   

  	
  3,456

  	
   

  	
  28,799

  	
   

  	
   

  
	
  24

  	
   

  	
  Total

  	
   

  	
  46,647

  	
   

  	
  388,790

  	
   

  	
   

  



 


	
   

  	
   

  	
  Clarifications:

  
	
  1.

  	
   

  	
  (a)=allowance
  as more information is needed to accuaretely price.

  
	
  2.

  	
   

  	
  Existing
  vct to remain at areas to receive new carpet.

  
	
  3.

  	
   

  	
  Providing
  window treatments is not included.

  
	
  4.

  	
   

  	
  Providing
  projection screens & whiteboards are not included.

  



 

















 


	
  Prism Builders, Inc.

  	
   

  	
  1124/06

  



 


Exhibit B - General Conditions Itemization


 


Omtool-6 Riverside Drive, Andover, MA


 


	
  Item

  	
   

  	
  Value

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  On-Site Superintendent: 11 weeks @ $1,750. (including fringe):

  	
   

  	
  $

  	
  19,250.

  	
   

  
	
  Project Manager: 11 weeks @ $450. (including fringe):

  	
   

  	
  $

  	
  4,950.

  	
   

  
	
  Temporary Laborer for General Cleaning: 11 weeks @ $280. (including
  fringe): 

  	
   

  	
  $

  	
  3,080.

  	
   

  
	
  Temporary Telephone: 11 weeks @ $25:

  	
   

  	
  $

  	
  275.

  	
   

  
	
  Dumpsters for Trash Removal: 6 loads @ $577:

  	
   

  	
  $

  	
  3,462.

  	
   

  
	
  Temporary Toilets: 11 weeks @ $70:

  	
   

  	
  $

  	
  770.

  	
   

  
	
  Total:

  	
   

  	
  $

  	
  31,787

  	
   

  



 

















 


	
  Prism
  Builders, Inc.

  	
   

  	
  Omtool - 6 Riverside Drive

  	
   

  	
  1/23/06

  
	
   

  	
   

  	
  Andover, MA

  	
   

  	
   

  



 


Exhibit C - List of Drawings




 


DESIGN SCIENCE


 


	
  Sheet Number

  	
   

  	
  Dated

  	
   

  	
  Titled

  
	
  A2

  	
   

  	
  10-Jan

  	
   

  	
  DEMO
  PLAN

  
	
  A3

  	
   

  	
  10-Jan

  	
   

  	
  CONSTRUCTION
  PLAN

  
	
  A3.1

  	
   

  	
  1/11/2006

  	
   

  	
  FLOOR
  PLAN

  
	
  A4

  	
   

  	
  10-Jan

  	
   

  	
  REFLECTED
  CEILING PLAN

  
	
   

  	
   

  	
   

  	
   

  	
  LIFE
  SAFETY PLAN

  
	
  A6

  	
   

  	
  23-Dec

  	
   

  	
  ARCHITECTURAL
  DETAILS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COLLABORATIVE
  ENGINEERS

  	
   

  	
   

  
	
  FP1

  	
   

  	
  6-Jan

  	
   

  	
  FIRE
  PROTECTION NOTES

  
	
  FP2

  	
   

  	
  6-Jan

  	
   

  	
  FIRE
  PROTECTION PLAN

  
	
  M1

  	
   

  	
  6-Jan

  	
   

  	
  HVAC
  LEGEND, NOTES & SCHEDULE

  
	
  M2

  	
   

  	
  6-Jan

  	
   

  	
  HVAC
  NEW WORK PLAN

  
	
  M3

  	
   

  	
  6-Jan

  	
   

  	
  HVAC
  DEMO PLAN

  
	
  M4

  	
   

  	
  6-Jan

  	
   

  	
  HVAC
  DETAILS

  
	
  ED1

  	
   

  	
  6-Jan

  	
   

  	
  ELECTRICAL
  DEMO PLAN

  
	
  E1

  	
   

  	
  6-Jan

  	
   

  	
  ELECTRICAL
  LEGEND & NOTES

  
	
  E2

  	
   

  	
  6-Jan

  	
   

  	
  ELECTRICAL
  LIGHTING PLAN

  
	
  E3

  	
   

  	
  6-Jan

  	
   

  	
  ELECTRICAL
  POWER PLAN

  
	
  E4

  	
   

  	
  6-Jan

  	
   

  	
  ELECTRICAL
  POWER RISER PLAN

  
	
  FP1

  	
   

  	
  6-Jan

  	
   

  	
  FIRE
  PROTECTION LEGEND, DETAIL, NOTES

  
	
  FP2

  	
   

  	
  6-Jan

  	
   

  	
  FIRE
  PROTECTION PLAN

  



 

















 


EXHIBIT D


 


TENANT FINISH-WORK: ALLOWANCE

(Tenant Performs the
Work)


 


1.             Acceptance of Premises. Except as set forth in this Exhibit, Tenant
accepts the Premises in their “AS-IS” condition on the date that this Lease is
entered into.


 


2.             Space Plans.


 


(a)           Preparation and Delivery On or before the earlier of (1) __________________,
2005, or (2) the tenth day following the date of this Lease (such earlier
date is referred to herein as the “Space Plans Delivery Deadline”), Tenant
shall deliver to Landlord a space plan prepared by _____________________ or
another design consultant reasonably acceptable to Landlord (the “Architect”) depicting improvements to be installed in the Premises (the “Space Plans”).


 


(b)           Approval Process. Landlord shall notify Tenant whether it
approves of the submitted Space Plans within five business days after Tenant’s
submission thereof. If Landlord disapproves of such Space Plans, then Landlord
shall notify Tenant thereof specifying in reasonable detail the reasons for
such disapproval, in which case Tenant shall, within three business days after
such notice, revise such Space Plans in accordance with Landlord’s objections
and submit to Landlord for its review and approval. Landlord shall notify
Tenant in writing whether it approves of the resubmitted Space Plans within
three business days after its receipt thereof. This process shall be repeated until
the Space Plans have been finally approved by Landlord and Tenant. If Landlord
fails to notify Tenant that it disapproves of the initial Space Plans within
five business days (or, in the case of resubmitted Space Plans, within three
business days) after the submission thereof, then Landlord shall be deemed to
have approved the Space Plans in question.


 


3.             Working Drawings.


 


(a)          Preparation and Delivery. On or before the earlier of (1), __________________
2005, or (2) the tenth day following the date on which the Space Plans are
approved (or deemed approved) by Landlord and Tenant (such earlier date is
referred to herein as the “Working.
Drawings Delivery Deadline”), Tenant shall provide to Landlord
for its approval final working drawings, prepared by the Architect, of all
improvements that Tenant proposes to install in the Premises; such working
drawings shall include the partition layout, ceiling plan, electrical outlets
and switches, telephone outlets, drawings for any modifications to the
mechanical and plumbing systems of the Building, and detailed plans and specifications
for the construction of the improvements called for under this Exhibit in
accordance with all applicable Laws.


 


(b)         Approval Process. Landlord shall notify Tenant whether it
approves of the submitted working drawings within ten business days after
Tenant’s submission thereof. If Landlord disapproves of such working drawings,
then Landlord shall notify Tenant thereof specifying in reasonable detail the
reasons for such disapproval, in which case Tenant shall, within three business
days after such notice, revise such working drawings in accordance with
Landlord’s objections and submit the revised working drawings to Landlord for
its review and approval. Landlord shall notify Tenant in writing whether it
approves of the resubmitted working drawings within five business days after
its receipt thereof. This process shall be repeated until the working drawings
have been finally approved by Tenant and Landlord. If Landlord fails to notify
Tenant that it disapproves of the initial working drawings within ten business
days (or, in the case of resubmitted working drawings, within five business
days) after the submission thereof, then Landlord shall be deemed to have approved
the working drawings in question.


 


(c)          Landlord’s Approval;
Performance of Work. If
any of Tenant’s proposed construction work will affect the Building’s Structure
or the Building’s Systems, then the working drawings pertaining thereto must be
approved by the Building’s engineer of record. Landlord’s approval of such


 

















 


working
drawings shall not be unreasonably withheld, provided that (1) they comply
with all Laws, (2) the improvements depicted thereon do not adversely
affect (in the reasonable discretion of Landlord) the Building’s Structure or
the Building’s Systems (including the Building’s restrooms or mechanical
rooms), the exterior appearance of the Building, or the appearance of the
Building’s common areas or elevator lobby areas, (3) such working drawings
are sufficiently detailed to allow construction of the improvements in a good
and workmanlike manner, and (4) the improvements depicted thereon conform
to the rules and regulations promulgated from time to time by Landlord for
the construction of tenant improvements (a copy of which has been delivered to
Tenant). As used herein, “Working Drawings” means the final working drawings approved
by Landlord, as amended from time to time by any approved changes thereto, and “Work” means all improvements to be
constructed in accordance with and as indicated on the Working Drawings,
together with any work required by governmental authorities to be made to other
areas of the Building as a result of the improvements indicated by the Working
Drawings. Landlord’s approval of the Working Drawings shall not be a
representation or warranty of Landlord that such drawings are adequate for any
use or comply with any Law, but shall merely be the consent of Landlord
thereto. Tenant shall, at Landlord’s request, sign the Working Drawings to
evidence its review and approval thereof. After the Working Drawings have been
approved, Tenant shall cause the Work to be performed in accordance with the
Working Drawings.


 


4.             Contractors, Performance of
Work. The Work shall be performed only by licensed
contractors and subcontractors approved in writing by Landlord, which approval
shall not be unreasonably withheld. All contractors and subcontractors shall be
required to procure and maintain insurance against such risks, in such amounts,
and with such companies as Landlord may reasonably require. Certificates of
such insurance, with paid receipts therefor, must be received by Landlord
before the Work is commenced. The Work shall be performed in a good and
workmanlike manner free of defects, shall conform strictly with the Working
Drawings, and shall be performed in such a manner and at such times as and not
to interfere with or delay Landlord’s other contractors, the operation of the
Building, and the occupancy thereof by other tenants. All contractors and
subcontractors shall contact Landlord and schedule  time periods during
which they may use Building facilities in connection with the Work (e.g.,
elevators, excess electricity, etc.).


 


5.             Construction Contracts.


 


(a)           Tenant’s General Contractor. Tenant shall enter into a construction
contract with a general contractor selected by Tenant and approved by Landlord
in a form acceptable to Tenant’s representative for the Work, which shall
comply with the provisions of this Section 5 and provide for, among other
things, (1) a one-year warranty for all defective Work; (2) a
requirement that Tenant’s Contractor maintain general commercial liability
insurance of not less than a combined single limit of $5,000,000, naming
Landlord, Landlord’s property management company, Landlord’s asset management
company, Landlord’s Mortgagee, Tenant, and each of their respective Affiliates
as additional insureds; (3) a requirement that the contractor perform the
Work in substantial accordance with the Space Plans and the Working Drawings
and in a good and workmanlike manner; (4) a requirement that the
contractor is responsible for daily cleanup work and final clean up (including
removal of debris); and (5) those items described in Section 5(b) (collectively,
the “Approval Criteria”). Landlord shall have three business days to
notify Tenant whether it approves the proposed construction agreements. If
Landlord disapproves of the proposed construction agreements, then it shall
specify in reasonable detail the reasons for such disapproval, in which case
Tenant shall revise the proposed construction agreements to correct the
objections and resubmit them to Landlord within two business days after
Landlord notifies Tenant of its objections thereto, following which Landlord
shall have two business days to notify Tenant whether it approves the revised
construction agreements. If Landlord fails to notify Tenant that it disapproves
of the construction agreements within three business days after the initial
construction agreements or two business days after the revised construction
agreements (as the case may be) are delivered to Landlord, then Landlord shall
be deemed to have approved the construction agreements.


 


(b)           All Construction Contracts. Unless otherwise agreed in writing by
Landlord and Tenant, each of Tenant’s construction contracts shall: (1) provide
a schedule and sequence of construction activities and completion
reasonably acceptable to Landlord, (2) be in a contract form that


 

















 


satisfies
the Approval Criteria, (3) require the contractor and each subcontractor
to name Landlord, Landlord’s property management company, Landlord’s asset
management company, and Tenant as additional insured on such contractor’s
insurance maintained in connection with the construction of the Work, (4) be
assignable following an Event of Default by Tenant under this Lease to Landlord
and Landlord’s Mortgagees, and (5) contain at least a one-year warranty
for all workmanship and materials.


 


6.             Change Orders. Tenant may initiate changes in the Work.
Each such change must receive the prior written approval of Landlord, such
approval not to be unreasonably withheld or delayed; however, (a) if such
requested change would adversely affect (in the reasonable discretion of
Landlord) (1) the Building’s Structure or the Building’s Systems
(including the Building’s restrooms or mechanical rooms), (2) the exterior
appearance of the Building, or (3) the appearance of the Building’s common
areas or elevator lobby areas, or (b) if any such requested change might
delay the Commencement Date, Landlord may withhold its consent in its sole and
absolute discretion. Tenant shall, upon completion of the Work, furnish
Landlord with an accurate architectural “as-built” plan of the Work as
constructed, which plan shall be incorporated into this EXHIBIT D by
this reference for all purposes. If Tenant requests any changes to the Work
described in the Space Plans or the Working Drawings, then such increased costs
and any additional design costs incurred in connection therewith as the result
of any such change shall be added to the Total Construction Costs.


 


7.             Definitions. As used herein “Substantial Completion,” “Substantially Completed,” and
any derivations thereof mean the Work in the Premises is substantially completed
in accordance with the Working Drawings so as to allow Tenant to lawfully occupy the Premises, as evidenced by a
temporary certificate of occupancy issued by the applicable governmental
authority. Substantial Completion shall have occurred even though minor details
of construction, decoration, landscaping and mechanicaladjustments remain to be
completed.


 


8.             Walk-Through; Punchlist. When Tenant considers the Work in the
Premises to be Substantially Completed, Tenant will notify Landlord and within
three business days thereafter, Landlord’s representative and Tenant’s
representative shall conduct a walk-through of the Premises and identify any
necessary touch-up work, repairs and minor completion items that are necessary
for final completion of the Work. Neither Landlord’s representative nor Tenants
representative shall unreasonably withhold his or her agreement on punchlist
items. Tenant shall use reasonable efforts to cause the contractor performing
the Work to complete all punchlist items within 30 days after agreement
thereon.


 


9.             Excess Costs. The entire cost of performing the Work
(including design of and space planning for the Work and preparation of the
Working Drawings, costs of construction labor and materials, electrical usage
during construction, additional janitorial services, general tenant signage,
related taxes and insurance costs, licenses, permits, certifications, surveys
and other approvals required by Law, and the construction supervision fee
referenced in Section 11 of this Exhibit, all of which costs are herein
collectively called the “Total
Construction Costs”) in excess of the Construction Allowance
(hereinafter defined) shall be paid by Tenant. Upon approval of the Working
Drawings and selection of a contractor, Tenant shall promptly execute a work
order agreement which identifies such drawings and itemizes the Total
Construction Costs and sets forth the Construction Allowance.


 


10.           Construction Allowance. Landlord shall provide to Tenant a
construction allowance not to exceed $7.00 per rentable square foot in the
Premises (the “Construction Allowance”) to be applied toward the Total Construction Costs, as adjusted for any
changes to the Work. No advance of the Construction Allowance shall be made by
Landlord until Tenant has first paid to the contractor from its own funds (and
provided reasonable evidence thereof to Landlord) the anticipated amount by
which the projected Total Construction Costs exceed the amount of the
Construction Allowance. Thereafter, Landlord shall pay to Tenant the
Construction Allowance in multiple disbursements (but not more than once in any
calendar month) following the receipt by Landlord of the following items: (a) a
request for payment, (b) final or partial lien waivers, as the case may
be, from all persons performing work or supplying or fabricating materials for
the Work, fully executed, acknowledged and in recordable form, and (c) the
Architect’s certification that the Work for which reimbursement has been
requested has been finally completed, including (with respect to the last
application for payment only) any punch-list items, on the


 

















 


appropriate
AIA form. or another form approved by Landlord, and, with respect to the
disbursement of the last 20% of the Construction Allowance, (1) the
permanent certificate of occupancy issued for the Premises, (2) Tenant’s
occupancy of the Premises, (3) delivery of the architectural “as-built”
plan for the Work as constructed (as set forth above) to Landlord’s
construction representative (set forth below), and (4) an estoppel
certificate confirming such factual matters as Landlord or Landlord’s Mortgagee
may reasonably request (collectively, a “Completed
Application for Payment”). Landlord shall pay the amount
requested in the applicable Completed Application for Payment to Tenant within
30 days following Tenant’s submission of the Completed Application for Payment.
If, however, the Completed Application for Payment is incomplete or incorrect,
Landlord’s payment of such request shall be deferred until 30 days following
Landlord’s receipt of the Completed Application for Payment. Notwithstanding
anything to the contrary contained in this Exhibit, Landlord shall not be
obligated to make any disbursement of the Construction Allowance during the
pendency of any of the following: (A) Landlord has received written notice
of any unpaid claims relating to any portion of the Work or materials in
connection therewith, other than claims which will be paid in full from such
disbursement, (B) there is an unbonded lien outstanding against the
Building or the Premises or Tenant’s interest therein by reason of work done,
or claimed to have been done, or materials supplied or specifically fabricated,
claimed to have been supplied or specifically fabricated, to or for Tenant or
the Premises, (C) the conditions to the advance of the Construction
Allowance are not satisfied, or (D) an Event of Default by Tenant exists.
The Construction Allowance must be used (that is, the Work must be fully
complete and the Construction Allowance disbursed) within twelve (12) months
following the Commencement Date or shall be deemed forfeited with no further
obligation by Landlord with respect thereto.


 


11.           Construction Management. Landlord or its Affiliate or agent shall have
the right to supervise the Work and coordinate the relationship between the
Work, the Building and the Building’s Systems. In consideration for Landlord’s
construction supervision services, Tenant shall pay to Landlord a construction
supervision fee equal to $.20 per rentable square foot of the Premises.


 


12.           Construction Representatives. Landlord’s and Tenant’s representatives for
coordination of construction and approval of change orders will be as follows,
provided that either party may change its representative upon written notice to
the other:


 


 


	
  Landlord’s
  Representative:

  	
   

  	
   

  
	
   

  	
   

  	
  c/o

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:

  	
   

  
	
   

  	
   

  	
  Telecopy:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Tenant’s
  Representative:

  	
   

  	
   

  
	
   

  	
   

  	
  c/o

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:

  	
   

  
	
   

  	
   

  	
  Telecopy:

  	
   

  
					



 


13.           Miscellaneous. To the extent not inconsistent with this
Exhibit, Sections 8(a) and 22 of this Lease shall govern the performance
of the Work and Landlord’s and Tenant’s respective rights and obligations
regarding the improvements installed pursuant thereto.