EXHIBIT 10.2


 


AGREEMENT BETWEEN


OWNER AND DESIGN-BUILDER


 


Agreement made as of the
23rd day of June in the year of 2005.


 


Between:
the OWNER,


BADGER STATE ETHANOL,
LLC.


820 W. 17th
Street


Monroe, Wisconsin 53566


 


And the DESIGN-BUILDER,


AMG/GCI,
LLC.


900 S. 12th
Avenue


Marshalltown, Iowa 50158


 


The Owner has made a Owner Contract with the Design-Builder dated:


 


For the following
Project:  Design and Construction of Modified Corn Milling Front-End Addition and Related Modifications


 


The Owner and Design-Builder
agree as follows:


 


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TABLE OF CONTENTS


 


	
  1. The Contract Documents

  
	
   

  
	
  2. Work of this Agreement

  
	
   

  
	
  3. Date of Commencement and
  Substantial Completion

  
	
   

  
	
  4. Contract Sum

  
	
   

  
	
  5. Payments

  
	
   

  
	
  6. Dispute Resolution

  
	
   

  
	
  7. Miscellaneous Provisions

  
	
   

  
	
  8. Enumeration of the
  Contract Documents

  



 


TABLE OF EXHIBITS


 


	
  A. Terms and Conditions

  	
   

  
	
   

  	
   

  
	
  B. Process
  Equipment List

  	
   

  
	
   

  	
   

  
	
  C.
  Design-Builder’s Scope of Work

  	
   

  
	
   

  	
   

  
	
  D. Determination
  of the Cost of the Work (Schedule of Values)

  	
   

  
	
   

  	
   

  
	
  E. Insurance

  	
   

  
	
   

  	
   

  
	
   

  	
  F.

  	
  Project Master
  Schedule

  	
   

  
				



 


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  G.

  	
  List of Permits

  	
   

  



 


ARTICLE 1:  THE
CONTRACT DOCUMENTS


 


§ 1.1                     The Contract
Documents form the Contract for the Design and Construction of the Project (the
“Contract”).  The Contract Documents
consist of this Agreement between Owner and Design-Builder and its attached
Exhibits (hereinafter, the “Agreement”); Supplementary and other Conditions;
Drawings, Specifications, Addenda issued prior to execution of the Agreement; other
documents listed in the Agreement and Modifications issued after the execution
of the Agreement.  Unless specifically
enumerated in 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). 
The Contract Documents shall not be construed to create a contractual
relationship of any kind between any persons or entities other than the Owner
and Design-Builder.  An enumeration of
the Contract Documents, other than Modifications, appears in Article 8.


 


§ 1.2                     The
Contract represents the entire and integrated agreement between the parties
hereto and supersedes prior negotiations, representations, or agreements,
either written or oral.


 


§ 1.3                     The Contract
may be amended or modified only by a Modification.  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 Design-Builder.


 


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ARTICLE 2:  THE WORK OF THIS AGREEMENT


 


§ 2.1                     The
Design-Builder 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. The Work includes the
architectural and engineering services (including the development and creation
of the Drawings and Specifications),  construction and management services
described in Exhibit C to this Agreement.  
Design-Builder shall design and construct the Work to achieve the
capacity and performance outputs as required by the Contract Documents and
including those contained in Exhibit C to this Agreement.


 


§ 2.2    Notwithstanding
anything to the contrary in the Contract Documents,  while Design-Builder
is responsible to design and construct the facility, equipment and
addition in accordance with the Contract Documents so that
the process and technology used in the Work that is provided by CVP, LLC
and licensed to Owner can be implemented and operational, Design-Builder does
not guarantee that the CVP, LLC process and technology, properly designed and
installed, will produce the capacity outputs required by the Contract
Documents.


 


ARTICLE 3: 
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION


 


§ 3.1                     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 issued by the Owner.  Date of Commencement shall be    June 23, 2005.


 


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§ 3.2                     The Contract
Time shall be measured from the date of commencement, subject to adjustments of
this Contract Time as provided in the Contract Documents.


 


§ 3.3                     The
Designer-Builder shall achieve Substantial Completion of the Work in accordance
with the master schedule as provided in Exhibit F:


 


	
  Portion
  of Work

  	
   

  	
  Substantial Completion Date

  
	
   

  	
   

  	
   

  
	
  1)

  	
   

  	
   

  



 


ARTICLE 4:  CONTRACT SUM


 


§ 4.1                     The Owner
shall pay the Design-Builder the Contract Sum in current funds for the
Design-Builder’s performance of this Agreement. 
The Contract Sum shall be one of the following:


 


ý  Stipulated Sum in accordance with Section 4.2
below. Also, See Addendum A, Price.


 


§ 4.2                     Stipulated
Sum


 


§ 4.2.1  The Contract
Sum shall be $23,020,000.00, subject to additions and deductions as provided in
the Contract Documents.


 


§ 4.2.2  Unit prices,
will be provided when required for work outside the scope of work:


 


	
  Description

  	
   

  	
  Units

  	
   

  	
  Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1)

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


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§ 4.2.3  Assumptions
or qualifications, if any, on which the Stipulated Sum is based, are in Exhibit C.


 


§ 4.3                     Changes in
the Work


 


§ 4.3.1  Adjustments of the Contract Sum on account of
changes in the Work may be determined by any of the methods listed in Article A.7
of Exhibit A., Terms and Conditions.


 


§ 4.3.2  Where the Contract Sum is the Cost of the
Work, with or without a Guaranteed Maximum Price, and no specific provision is
made in Sections 4.3.1 or 4.2.2 for adjustment of the Design-Builder’s Fee in
the case of Changes in the Work, or if the extent of such changes is such, in
the aggregate, that application of the adjustment will cause substantial
inequity to the Design-Builder or Owner, the Design-Builder’s shall be
equitably adjusted on the basis of the Fee established for the original Work,
and the Contract Sum shall be adjusted accordingly.


 


ARTICLE 5:  PAYMENTS


 


§ 5.1                     Progress
Payments


 


§ 5.1.1  Based upon Applications for Payment submitted
to the Owner by the Design-Builder, the Owner shall make progress payments on
the Contract Sum to Design-Builder as provided below and elsewhere in the
Contract Documents, including Article A.9 of Exhibit A, Terms and
Conditions.


 


§ 5.1.2  The period
covered by each Application for Payment shall be bi-weekly.


 


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§ 5.1.3  Provided that an Application for Payment is
received every other Thursday , the Owner shall make payment to the
Design-Builder not later than 10 days after these bi-weekly billings are
submitted to the Owner for payment.


 


§ 5.1.4  With each
Application for Payment, the Design-Builder shall submit the most recent schedule of
values in accordance with the Contract Documents.  The schedule of values shall allocate
the entire Contract Sum among the various portions of the Work.  Compensation for design services shall be
shown separately.  The schedule of
values shall be 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, shall be used as a basis for reviewing the Design-Builder’s
Applications for Payment.


 


§ 5.1.5  In taking action on the Design-Builder’s
Applications for Payment, the Owner shall be entitled to rely on the accuracy
and completeness of the information furnished by the Design-Builder and shall
not be deemed to have made a detailed examination, audit or arithmetic
verification of the documentation submitted in accordance with Sections 5.1.4
or 5.1.5, or other supporting data; to have made exhaustive or continuous
on-site inspections; or to have made examinations to ascertain how or for what
purposes the Design-Builder has used amounts previously paid on account of this
Agreement.  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.


 


§ 5.1.6 There shall be no front-loading of
payments and except with the Owner’s prior approval, the Design-Builder shall
not make advance payments to subcontractors or suppliers for materials or
equipment, of every tier, for work that has not been completed or materials or
equipment that have not been delivered and stored at the site.


 


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§
5.1.7   Owner shall
retain 5% from each approved Application for Payment.  This retainage shall be released upon final
completion of the Work, 
as more fully set forth in accordance with Article 9.10 of
Exhibit A, Terms and Conditions.


 


§ 5.2                     Progress
Payments – Stipulated Sum


 


§ 5.2.1  Applications for Payment where the Contract
Sum is based upon a Stipulated Sum shall indicate the percentage of completion
of each portion of the Work as of the end of the period covered by the
Application for Payment.


 


§ 5.2.2  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 Contract Sum
properly allocable to completed Work as determined by multiplying the
percentage completion of each portion of the Work by the share of the Contract
Sum allocated to that portion of the Work in the schedule of values, less
retainage of (5%).  Pending final
determination of cost to the Owner of Changes in the Work, amounts not in
dispute shall be included as provided in Section A.7.3.8 of Exhibit A.  Terms and Conditions;


 


2.  Add that portion of the Contract Sum properly
allocable to materials and equipment delivered and suitably stored at the site
for subsequent incorporation in the completed construction (or, if approved in
advance by the Owner, suitably stored off the site at a location agreed upon in
writing), less retainage of 5%.


 


3.  Subtract the aggregate of previous payments
made by the Owner; and


 


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4.  Subtract amounts, if any, for which the Owner
has withheld payment from or nullified an Application for Payment as provided
in Section A.9.5 of Exhibit A. Terms and Conditions.


 


§ 5.2.3  The progress payment
amount determined in accordance with Section 5.2.2 shall be further
modified under the following circumstances:


 


1.  Add upon Substantial Completion of Work, a
sum sufficient to increase the total payments to the full amount of the
Contract Sum, less retainage and any other amounts for which Owner has withheld
payment under Section A.9.5 of Exhibit A, Terms and Conditions. and


 


2.  Add, if final completion of the Work is
thereafter materially delayed through no fault of the Owner, any additional
amounts payable in accordance with Section A.9.10.3 of Exhibit A.
Terms and Conditions.


 


§ 5.3                     Final Payment


 


§ 5.3.1  Final payment, constituting the entire unpaid
balance of the Contract Sum, including retainage, shall be made by the Owner to
the Design-Builder not later than 30 days after the Design-Builder has fully
performed the Contract including the requirements of Section A.9.10 of Exhibit A.
Terms and Conditions has been fully satisfied, except for the Design-Builder’s
responsibility to correct non-conforming Work discovered after final payment or
to satisfy other requirements, if any, which extend beyond final payment.


 


ARTICLE 6:                            DISPUTE RESOLUTION


 


§ 6.1  The parties appoint the following individual to
serve as a Neutral pursuant to Section A.4.2.1 of Exhibit A. Terms
and Conditions.


 


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American
Arbitration Association – Construction Industry Division


 


§ 6.2  If the parities do not resolve their dispute
through mediation pursuant to Section A.4.3 of Exhibit A. Terms and
Conditions, the method of binding dispute resolution shall be the following:


 


ý 
Arbitration pursuant to Section A.4.4 of Exhibit A. Terms and
Conditions


 


o 
Litigation in a court of competent jurisdiction


 


o  Other
(specify)


 


§ 6.3                     Arbitration


 


§ 6.3.1  If arbitration is selected by the parties as
the method of binding dispute resolution, then any claim, dispute or other
matter in question arising out of or related to this Agreement shall be subject
to arbitration as provided in Section A.4.4. of Exhibit A.
Terms and Conditions.


 


ARTICLE 7:                            MISCELLANEOUS PROVISIONS


 


§ 7.1  Design professionals and consultants engaged by the
Design-Builder shall be persons or entities duly licensed to practice their
professions as required in the jurisdiction where the Project is located and
are listed as follows:


 


	
  Name and address

  	
   

  	
  License Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Youssef V. Baddour

  	
   

  	
  37166

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Beaver Creek, Ohio 45432

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Relationship to Design-Builder

  	
   

  	
  Other Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  AMG structural department manager

  	
   

  	
   

  	
   

  



 


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§ 7.2  Other design professionals and consultants, if any,
engaged directly by the Owner, their professions and responsibilities are
listed below:


 


	
  Name and address

  	
   

  	
  License Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  None.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Relationship to Owner

  	
   

  	
  Other Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  None.

  	
   

  	
   

  	
   

  



 


§ 7.3  The Owner’s Designated Representative is Dr. Gary
Kramer


 


§ 7.3.1  The Owner’s
Designated Representative identified above shall be authorized to act on the
Owner’s behalf with respect to the Project.


 


§ 7.4  The
Design-Builder’s Designated Representative is Mr. Cornell Gethmann and/or Mr. Alberto
Mendez.


 


§ 7.4.1  The Design-Builder’s Designated Representative
identified above shall be authorized to act on the Design-Builder’s behalf with
respect to the Project.


 


§ 7.5  Neither the Owner’s
nor the Designed-Builder’s Designated Representative shall be changed without
ten (10) days written notice to the other party.


 


§ 7.6  Other provisions:


 


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§ 7.6.1  Where reference is made in this Agreement to
a provision of another Contract Document, the reference refers to that provision (s) as amended or supplemented by other
provisions of the Contract Documents.


 


§ 7.6.2  Payments due and unpaid under this Agreement
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
Monroe, Wisconsin where the Project is located.


 


ARTICLE 8:                            ENUMERATION OF THE CONTRACT
DOCUMENTS


 


§ 8.1  The Contract
Documents, except for Modifications issued after the execution of this
Agreement, are enumerated as follows:


 


§ 8.1.1  The Supplementary
and other Conditions of the Contract, if any, are as follows:


 


§ 8.1.2  The
Specifications are as follows:  [Insert
identification if existing as of time of execution]


 


§ 8.1.4  The Drawings are
as follows: [Insert identification if existing as of time of execution]


 


§ 8.1.5  The Addenda, if
any, are as follows:


 


§ 8.1.6  Exhibit A.
Terms and Conditions


 


§ 8.1.7  Exhibit B.  Process Equipment List


 


§ 8.1.8  Exhibit C.
Designer-Builder’s Scope of Work.


 


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§ 8.1.9  Exhibit D.
Determination of the Cost of the Work (Schedule of Values)


 


§ 8.1.10  Exhibit E.  Insurance, if applicable.


 


§ 8.1.11   Exhibit F.  Project Master Schedule


 


§ 8.1.12  Exhibit G.
Permits


 


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


 


This Agreement is entered into as of the day
and year first written above and is executed in at least two original copies,
of which one is to be delivered to the Designer-Builder, and one to the Owner.


 


	
  /s/ Gary L. Kramer

  	
   

  	
  /s/ Alberto Mendez

  	
   

  
	
  BADGER STATE ETHANOL,
  LLC.

  	
   

  	
  AMG/GCI, LLC.

  	
   

  
	
  DATE: June 23, 2005

  	
   

  	
  DATE: June 23, 2005

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Cornell W. Gethmann

  	
   

  
	
   

  	
   

  	
  AMG/GCI, LLC.

  	
   

  
	
   

  	
   

  	
  DATE: June 23, 2005

  	
   

  



 


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EXHIBIT A


 


TERMS AND CONDITIONS


 


For the following PROJECT:


 


OWNER,


BADGER STATE ETHANOL, LLC


820 W. 17th
Street


Monroe, Wisconsin 53566


 


And the DESIGN-BUILDER,


AMG/GCI, LLC


900 S. 12th
Avenue


Marshalltown, Iowa 50158


 


TABLE OF
ARTICLES


 


	
  A.1 GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  
	
  A.2 OWNER

  	
   

  
	
   

  	
   

  
	
  A.3 DESIGN-BUILDER

  	
   

  
	
   

  	
   

  
	
  A.4 DISPUTE RESOLUTION

  	
   

  
	
   

  	
   

  
	
  A.5 SUBCONTRACTORS

  	
   

  
	
   

  	
   

  
	
  A.6
  CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS

  	
   

  
	
   

  	
   

  
	
  A.7 CHANGES IN THE
  WORK

  	
   

  
	
   

  	
   

  
	
  A.8 TIME

  	
   

  



 


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  A.9 PAYMENTS
  AND COMPLETION

  	
   

  
	
   

  	
   

  
	
  A.10
  PROTECTION OF PERSONS AND PROPERTY

  	
   

  
	
   

  	
   

  
	
  A.11 INSURANCE
  AND BONDS

  	
   

  
	
   

  	
   

  
	
  A.12
  UNCOVERING AND CORRECTION OF WORK

  	
   

  
	
   

  	
   

  
	
  A.13
  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  
	
  A.14
  TERMINATION OR SUSPENSION OF THE AGREEMENT

  	
   

  



 


ARTICLE A.1 GENERAL
PROVISIONS


 


§ A1.1
BASIC DEFINITIONS


 


§ A.1.1.1  THE DESIGN-BUILD
DOCUMENTS


Deleted.


 


§ A1.1.2  THE CONTRACT
DOCUMENTS


The Contract Documents
are identified in Section 1.1 of the Agreement.


 


§ A.1.1.3  DESIGN-BUILDER


The Design-Builder is the
person lawfully licensed to practice engineering or an entity lawfully
practicing engineering identified as such in the Agreement and is referenced to
throughout the Contract Documents as if singular in number.  The term “Design-Builder” means the
Design-Builder or the Design-Builder’s authorized representative.


 


§ A.1.1.4  THE WORK


The term “Work” means the
design and construction and other 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
Design-Builder to fulfill the Design-Builder’s obligations.


 


§ A.1.1.5  THE PROJECT


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


 


§ A.1.1.6  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.


 


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§ A.1.1.7  THE
SPECIFICATIONS


The Specifications are
that portion of the Contract Documents consisting of the written requirements
for materials, equipment, systems, standards, workmanship for the Work, and
performance of related services.


 


§ A.1.1.8  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.


 


§ A.1.1.9  NEUTRAL


The Neutral is the
individual appointed by the parties to decide Claims and disputes pursuant to Section A.4.2.1.


 


§ A.1.2  CORRELATION AND
INTENT OF THE CONTRACT DOCUMENTS


 


§  A.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 Design-Builder.  The Contract
Documents are complementary and what is required by one shall be as binding as
if required by all; performance by the Design-Builder shall be required only to
the extent consistent with the Contract Documents and reasonably inferable from
them as being necessary to produce the indicated results.


 


§ A.1.2.2  Organization
of the specifications into divisions, sections and articles, an arrangement of
Drawings shall not control the Design-Builder in dividing the Work among
Subcontractors or in establishing the extent of Work to be performed by any
trade.


 


§ A.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.


 


§ A.1.3  COMPLIANCE WITH
APPLICABLE LAWS


 


§ A.1.3.1  If the Design-Builder believes that
implementation of any instruction received from the Owner would cause violation
of any applicable law, statute, ordinance, building code or rules or
regulations, the Design-Builder shall notify the Owner in writing.  The Design-Builder shall not be obligated to
perform any act which the Design-Builder believes will violate any applicable
law.


 


§ A.1.4  CAPITALIZATION


 


§ A.1.4.1  Terms
capitalized in these Terms and Conditions include (1) those which are
specifically defined, (2) the titles of numbered articles and identified
references to sections in the document, or (3) the titles of other
documents published by the American Institute of Architects.


 


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§ A.1.5  INTERPRETATION


 


§ A.1.5.1  In the interest of brevity the Agreement
frequently omits 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 statements.


 


§  A.1.6 
EXECUTION OF THE AGREEMENT


 


§  A.1.6.1  The Contract Documents shall be signed by the
Owner and Design-Builder


 


§ A.1.6.2  Execution of the Contract by the
Design-Builder is a representation that the Design-Builder 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.


 


§ A.1.7  OWNERSHIP AND
USE OF DOCUMENTS AND ELECTRONIC DATA


 


§ A.1.7.1  The Drawings, Specifications and other documents,
including those in electronic form, prepared by the Design-Builder or the
Design-Builder’s other design professionals are Instruments of Service through
which the Work to be executed by the Design-Builder is described.  The Owner may retain one record set.  Neither the Owner nor any Subcontractor,
Sub-Subcontractor or material or equipment supplier shall own or claim a
copyright in the Instruments of Service, and unless otherwise indicated the
Design-Builder and other design professionals 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 the Instruments of Service, except the Owner’s record set, shall be returned
or suitably accounted for to the Design-Builder or other design professionals,
on request, upon completion of the Work. 
The Instruments of Service are for use solely with respect to this
Project.  They are not to be used by the
Owner or any Subcontractor, Sub-Subcontractor or material or equipment supplier
for other projects or for additions to this Project outside the scope of the
Work without specific written consent of the Design-Builder and other design
professionals.  The Owner,
Subcontractors, Sub-Subcontractors and materials or equipment suppliers are
authorized to use and reproduce applicable portions of the Instruments of
Service 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 copied Instrument of Service 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 Design-Builder
or other design professionals’ copyrights or other reserved rights.


 


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§ A.1.7.2  The
Design-Builder and the Design-Builder’s consultants shall be deemed the authors
and owners of their respective Instruments of Service and shall retain all
common law, statutory and other reserved rights, including copyrights.  Upon execution of this Agreement, the
Design-Builder grants to the Owner a nonexclusive license to reproduce the
Instruments of Service solely for purposes of constructing, completing, using
and maintaining the Project, provided that the Owner shall comply with all
obligations, including prompt payment of all sums when due, under this
Agreement.  The Design-Builder shall
obtain similar nonexclusive licenses from the Design-Builder’s consultants
consistent with this Agreement.  Except
as provided in Sections A.1.7.4 and A.1.7.5, termination of this Agreement
prior to completion of the Work to be performed under this Agreement shall
terminate this license.


 


§ A.1.7.3  Prior to the Design-Builder providing to the
Owner any Instrument of Service in electronic form or the Owner providing the
Design-Builder any electronic data for incorporation into the Instrument of
Service, the Owner and the Design-Builder shall by separate written agreement
set forth the specific conditions governing the format of such Instruments of
Service or electronic data, including any special limitations or licenses not
otherwise provided in this Agreement and, if appropriate, adjustments in the
Contract Sum and Contract Time.


 


§ A.1.7.4  In the event
that this Agreement is terminated prior to completion of the Work, the license
provided in Section A.1.7.2 shall terminate, the Owner shall not make
further reproductions of Instruments of Service and the Owner shall return to
the Design-Builder within seven (7) days of termination all originals and
reproductions in the Owner’s possession or control, except as follows:


 


.1                                      In the event the
Owner terminates the Design-Builder for cause pursuant to Section A.14.2,
the foregoing license shall be deemed terminated and replaced by a second,
nonexclusive license permitting the Owner to authorize other appropriately
credentialed design professionals to reproduce and, where permitted by law, to
make changes, corrections or additions to the Instruments of Service solely for
purposes of completing, constructing, using and maintaining the Project;


 


.2                                      In the event the
Design-Builder terminates this Agreement with the Owner for cause pursuant to Section A.14.1, the Design-Builder shall assign the license to the
Owner in accordance with the provisions of Section a.1.7.5 of this
Agreement.


 


§ A.1.7.5  If the Agreement is terminated by
Design-Builder in accordance with A.1.7.4.2 or for Owner’s convenience, , the
Design-Builder, upon Owner’s request, shall convey and shall require its design
professionals to convey to the Owner a nonexclusive license to use the
Design-Builder’s Instruments of Service


 


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for the completion, use
and maintenance of the Project, conditioned upon (1) payment to the
Design-Builder of all amounts due to the Design-Builder, and (2) the
Design-Builder’s receipt of the Owner’s written notice to the Design-Builder of
the Owner’s assumption of the Design-Builder’s duties and obligations under
this Agreement; or if the Owner fails to provide such written notice, (1) payment
to the Design-Builder of all amounts due to the Design-Builder and the
Design-Builder’s design professionals, and (2) the Design-Builder’s
receipt of the Owner’s written assignment to indemnify and hold harmless the
Design-Builder and its design professionals from all claims, as well as any
expense, including legal fees, which the Design-Builder and its design professionals
shall thereafter incur by reason of the Owner’s use of such Instrument of
Service The Design-Builder shall incorporate the requirements of this Section A.1.7.5
in all agreements with its design professionals.


 


§ A.1.7.6  Except for
the licenses granted in Section A.1.7.2, A.1.7.4 and A.1.7.5, no other
license or right shall be deemed granted or implied under this Agreement.  The Owner shall not assign, delegate,
sublicense, pledge or otherwise transfer any license granted herein to another
party without the prior written agreement of the Design-Builder.  However, subject to its obligations under
this Contract, the Design-Builder is permitted to authorize the Subcontractors,
Sub-Subcontractors and material or equipment suppliers to reproduce applicable
portions of the Instrument of Service for the following purposes:  performing services; executing Work; and
coordinating services with those of the Design-Builder, the Design-Builder’s
consultants, and the Design-Builder’s other design professionals and consultants.  Submission or distribution of Instruments of
Service to meet official regulatory requirements or for similar purposes in
connection with the Project is not to be construed as publication in derogation
of the reserved rights of the respective copyright owners.  The Owner shall not use the Instruments of
Service for future additions or alterations to this Project or for other
projects, unless the Owner obtains the prior written agreement of the
Design-Builder and the Design-Builder’s consultants.  Any unauthorized use of the Instruments of
Service shall be at the Owner’s sole risk and without liability to the
Design-Builder and the Design-Builder’s consultants.


 


ARTICLE A.2  OWNER


 


§ A.2.1
GENERAL


 


§ A.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.  The Owner
shall designate in writing a representative who shall have express authority to
bind the Owner with respect to all Project matters requiring the


 


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Owner’s
approval or authorization. 
The Owner may also delegate in writing certain responsibilities of the
Owner to the Design-Builder or other design professionals.  The Owner shall render decisions in a timely
manner and in accordance with the Design-Builder’s schedule submitted to
the Owner.


 


§ A.2.1.2  The Owner
shall furnish to the Design-Builder within 15 days after receipt of a written
request information necessary and relevant for the Design-Builder to evaluate,
give notice of or enforce mechanic’s lien rights.  Such information shall include a correct
statement of the record legal title to the property on which the Project is
located, usually referred to as the site, and the
Owner’s interest therein.


 


§ A.2.1.3


 


§ A.2.2  INFORMATION AND
SERVICES REQUIRED OF THE OWNER


 


§A.2.2.1  The Owner
shall be responsible to provide surveys, if not required by the Contract Documents
to be provided by the Design-Builder, 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 restriction, 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 an below grade, including inverts and
depths.  All the information on the survey
shall be referenced to a Project benchmark.


 


§ A.2.2.2  The Owner
shall provide, to the extent available to the Owner and if not required by the
Contract Document to be provided by the Design-Builder, the results and reports
of prior tests, inspections or investigations conducted for the Project,
involving structural or mechanical systems; chemical, air and water pollution;
hazardous materials or environmental and subsurface conditions; and information
regarding the presence of pollutants at the Project site.


 


§ A.2.2.3  The
Design-Builder shall cooperate with the Owner in securing building and other
permits, licenses and inspections for which Owner is required by the Contract
Documents to obtain.  The Design-Builder
shall not be required to pay the fees for such Owner required permits, licenses
and inspections.


 


§ A.2.2.4  The services, information, surveys and
reports required to be provided by the Owner under Section A.2.2 shall be
furnished at the Owner’s expense, and the Design-Builder shall be entitled to
rely upon the accuracy and completeness thereof, except as otherwise
specifically provided in the Contract


 


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Documents or to the
extent the Owner advises the Design-Builder to the contrary in writing.


 


§ A.2.2.5  If the Owner
observes or otherwise becomes aware of a fault or defect in the Work or
non-conformity with the Contract Documents, the Owner shall give prompt written
notice thereof to the Design-Builder.


 


§ A.2.2.6  The Owner
shall, at the request of the Design-Builder, prior to execution of the
Agreement and promptly upon request thereafter, furnish to the Design-Builder
reasonable and non-confidential evidence that financial arrangements have been
made to fulfill the Owner’s obligations under this Agreement.  The Owner shall promptly make available to
the Design-Builder non-confidential financial information of the Owner which
affects this Agreement and which becomes available to the Owner subsequent to execution
of this Agreement.


 


§ A.2.2.7  The Owner
shall communicate through the Design-Builder with persons or entities employed
or retained by the Design-Builder, unless otherwise directed by the
Design-Builder.


 


§ A.2.2.8  The Owner
shall furnish the services of geotechnical engineers or other consultants, if
not required by the Contract Documents to be provided by the Design-Builder,
for subsoil, air and water conditions when such services are deemed reasonably
necessary by the Design-Builder to properly carry out the design services, if
any, to be provided by the Design-Builder’s consultants.  Such services may include, but are not
limited to test borings, test pits, determinations of soil bearing values,
percolation tests, evaluations of hazardous materials, ground corrosions and
resistivity tests, and necessary operations for anticipating subsoil
conditions.  The services of geotechnical
engineer(s) or other consultants shall include preparation and submission of
all appropriate reports and professional recommendations.


 


§ A.2.2.9  The Owner
shall promptly obtain easements, zoning variances and legal authorizations
regarding site utilization where essential to the execution of the Owner’s
program.


 


§ A.2.3  OWNER REVIEW
AND INSPECTION


 


§ A.2.3.1  The Owner may
visit the site at intervals appropriate to the stage of the Design-Builder’s
operations to become generally familiar with and to keep informed about the
progress and quality of the portion of the Work completed.  However, the Owner shall not be required to
make exhaustive or continuous on-site inspections to check the quality or
quantity of the Work.  The Owner shall
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


 


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Design-Builder’s rights
and responsibilities under the Contract Documents, except as provided in
A.3.3.1.


 


§ A.2.3.2  The Owner
shall not be responsible for the Design-Builder’s failure to perform the Work
in accordance with the requirements of the Contract Documents.  The Owner shall not have control over or be
in charge of and will not be responsible for acts or omissions of the Design-Builder,
Subcontractors, Sun-Subcontractors or their agents or employees, or any other
persons or entities performing portions of the Work for the Design-Builder.


 


§ A.2.3.3  The Owner may
reject Work that does not conform to the Contract Documents.  Whenever the Owner considers it necessary or
advisable, the Owner shall have authority to require inspection or testing of
the Work in accordance with Section A.13.5.2, whether or not such Work is
fabricated, installed or completed. 
However, neither this authority of the Owner nor a decision made in good
faith either to exercise or not to exercise such authority shall give rise to a
duty or responsibility of the Owner to the Design-Builder, Subcontractors,
Sub-Subcontractors material or equipment suppliers, their agents or employees,
or other persons or entities performing portions of the Work.


 


§ A.2.3.4  The Owner may
appoint an on-site project representative to observe the Work and to have such
other responsibilities as the Owner and the Design-Builder agree to in writing.


 


§ A.2.3.5  The Owner
shall review and approve or take other appropriate action upon the
Design-Builder’s submittals required by the Contract Documents, but only for
the limited purpose of checking for conformance with information given and the
design concept expressed in the Contract Documents.  The Owner’s action shall be taken with such
reasonable promptness as to cause no delay in the Work or in the activities of
the Design-Builder or separate Contractors. 
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 Design-Builder as required by the Contract Documents.


 


§ A.2.3.6  The Owner’s
review and approval of the Design-Builder’s submittal required by the Contract
Documents shall not relieve the Design-Builder of responsibility for compliance
with the Contract Documents unless (a) the Design-Builder has notified the
Owner of the deviation prior to approval by the Owner, or (b) the Owner
has approved a change in work reflecting any deviations from the requirement of
the Contract Documents.


 


§ A.2.3.7  The Owner shall
conduct inspections to determine the date or dates of Mechanical Completion,
Substantial Completion and the date of final completion.


 


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§ A.2.3.8  The Owner
shall issue a final Certificate for Payment upon compliance with the
requirements of the Contract Documents.


 


§ A.2.4  OWNER’S RIGHT
TO STOP WORK


 


§ A.2.4.1  If the Design-Builder fails to correct Work
which is not in accordance with the requirements of the Contract Documents as
required by Section A.12.2 or persistently fails to carry out Work in
accordance with the Contract Documents, the Owner may issue a written order to
the Design-Builder 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 Design-Builder or any other person or entity,
except to the extent required by Section A.6.1.3.


 


§ A.2.5  OWNER’S RIGHT TO
CARRY OUT THE WORK 


 


§ A.2.5.1  If the
Design-Builder 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 after such
seven (7) day period give the Design-Builder a second written notice to
correct such deficiencies within a three (3) day period.  If the Design-Builder within such three (3) day
period after receipt of such second notice fails to commence and continue to
correct and deficiencies, 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 Design-Builder the reasonable cost of
correcting such deficiencies.  If
payments due to the Design-Builder are not sufficient to cover such amounts,
the Design-Builder shall pay the difference to the Owner.


 


ARTICLE A.3   DESIGN-BUILDER


 


§ A.3.1
GENERAL


 


§ A.3.1.1  The
Design-Builder 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 “Design-Builder” means the
Design-Builder or the Design-Builder’s authorized representative.  The Design-Builder’s representative is
authorized to act on the Design-Builder’s behalf with respect to the Project.


 


§ A.3.1.2  The
Design-Builder shall perform the Work in accordance with the Contract
Documents.


 


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


 


§ A.3.2  REVIEW OF
CONTRACT DOCUMENTS AND FIELD CONDITIONS BY DESIGN-BUILDER


 


§ A.3.2.1  Since the
Contract Documents are complementary, before starting each portion of the Work,
the Design-Builder shall carefully study and compare the various Drawings and
other Contract Documents relative to Section A.2.2.1, 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 Contract and discovering errors, omissions, or
inconsistencies in the Contract Documents. Any errors, inconsistencies or
omissions discovered by the Design-Builder shall be reported promptly to the
Owner.


 


§ A.3.2.2  The
Design-Builder is required to ascertain that the Contract Documents are in
accordance with applicable laws, statutes, ordinances, building codes and rules and
regulations.


 


§ A.3.2.3  The
Design-Builder shall be liable to the Owner for damages resulting from errors,
inconsistencies or omissions in the Contract Documents.


 


§ A.3.3  SUPERVISION AND
CONSTRUCTION PROCEDURES


 


§ A.3.3.1  The
Design-Builder shall supervise and direct the Work, using the Design-Builder’s
best skill and attention.  The
Design-Builder 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.


 


§ A.3.3.2  The Design-Builder shall be responsible to
the Owner for acts and omissions of the Design-Builder’s employees, design
professionals, engineers architects and other professional consultants,
Subcontractors, Sub-Subcontractors,  and
their respective agents and employees, and other persons or entities performing
portions of the Work for or on behalf of the Design-Builder or any of its
Subcontractors, Sub-Subcontractors or professional consultants.


 


§ A.3.3.3  The
Design-Builder shall be responsible for inspection of portions of Work already
performed to determine that such portions are in proper condition to receive
subsequent Work.


 


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§ A.3.4  LABOR AND
MATERIALS


 


§ A.3.4.1  Unless otherwise provided in the Contract
Documents, the Design-Builder 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.


 


§ A.3.4.2  The
Design-Builder may make substitutions only with the consent of the Owner, after
evaluation by the Owner and in accordance with a Change Order.


 


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


 


§ A.3.5  WARRANTY


 


§ A.3.5.1  The
Design-Builder warrants to the Owner 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 by law or
otherwise, 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, may
be considered defective.  The
Design-Builder’s warranty excludes remedy for damage or defect caused by abuse,
modifications not executed by the Design-Builder, improper or insufficient
maintenance, improper operation, or normal wear and tear usage.  If required by the Owner, the Design-Builder
shall furnish satisfactory evidence as to the kind and quality of materials and
equipment.


 


§ A.3.5.2
Design/Builder shall assign to the Owner all manufacturers’ and suppliers’ warranties, express or implied, respecting any part of the
Work which Design-Builder receives. The assignments, copies of all warranties
and all product operation manuals for proper use and maintenance of equipment
shall be conveyed to the Owner prior to Final Payment for the Work.


 


§ A.3.5.3
Owner has entered into a Services and Guarantee Agreement
with CVP, LLC, which document contains certain performance guarantees of the
completed Work.  Nothing in that Services
and Guarantee Agreement shall limit Design-Builder’s obligations under the
Contract Documents with respect to the design and completion of the Work in
accordance with the Contract Documents.


 


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§ A.3.6  TAXES


 


§ A.3.6.1  The Project
is exempt from sales, consumer, use and similar taxes and the Owner will
provide a Tax Exemption Certificate.  The
Design-Builder agrees to take such reasonable actions requested by the Owner to
assist the Owner with maintaining such tax exemption status, including
providing a “pass-through” letter to the subcontractors of the
Design-Builder.  These tax costs have
been removed from the bid proposal per the request of the Owner and the
Design-Builder shall not be responsible for these costs unless recompensed by
the Owner.


 


§ A.3.7  PERMITS, FEES
AND NOTICES


 


§ A.3.7.1  Design/Builder
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. Attached as Exhibit G to the Agreement is a
list of all permits, fees, licenses and inspections that are required for the
proper execution and completion of the Work.


 


§ A.3.7.2  The
Design-Builder shall comply with and give notices required by laws, ordinances,
codes, rules, regulations and lawful orders of public authorities applicable to
performance of the Work.


 


§ A.3.7.3  It is the Design-Builder’s responsibility to
ascertain that the Contract Documents, including the Drawings and
Specifications, are in accordance with applicable laws, statutes, ordinances,
building codes, and rules and regulations.


 


§ A.3.8  ALLOWANCES


 


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


 


§ A.3.8.2  Unless
otherwise provided in the Contract Documents:


 


.1                                      allowances shall
cover the cost to the Design-Builder of materials and equipment delivered at
the site and all required taxes, less applicable trade discounts;


 


.2                                      Design-Builder’s
costs for unloading and handling at the site, labor, installation costs,
overhead, profit and other expenses contemplated for stated allowance amounts
shall be included in the Contract Sum but not in the allowances; and


 


26





















 


.3                                      whenever costs are more than or less than allowances, the
Contract Sum shall be adjusted accordingly by Change Order. The amount of the
Change Order shall reflect (1) the difference between actual costs and the
allowances under Section A.3.8.2.1 and (2) changes in Design-Builder’s
costs under Section A.3.8.2.2.


 


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


 


§ A.3.9  SUPERINTENDENT


 


§ A.3.9.1  The
Design-Builder 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 Design-Builder, and communications given to the superintendent shall be as
binding as if given to the Design-Builder. 
Important communications shall be confirmed in writing.  Other communications shall be similarly
confirmed on written request in each case.


 


§ A.3.10  DESIGN-BUILDER’S
DESIGN CONSTRUCTION SCHEDULES


 


§ A.3.10.1  The Design-Builder, promptly after being
awarded the Contract, shall prepare and submit for the Owner’s information the
Design-Builder’s design and construction schedule for the Work.  The schedule shall not exceed time
limits current under the Contract Documents, shall be revised at appropriate
intervals as 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 expeditions and practicable execution of the Work.  See Exhibit F


 


§ A.3.10.2  The
construction schedule shall indicate proposed Subcontractors, activity
sequences and durations, milestone dates for receipt and approval of pertinent
information, schedule of shop drawings and samples, procurement and
deliver or materials or equipment requiring long-lead time, and the Owner’s
occupancy requirements showing portions of the Project having occupancy
priority.  The Design-Builder shall keep
current, for the Owner’s approval, the schedule of submittals which is
coordinated with the Design-Builder’s construction schedule and allows the
Owner reasonable time to review submittals.


 


§ A.3.10.3  The
Design-Builder shall perform the Work in accordance with most recent schedules
submitted to the Owner.


 


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§ A.3.11  DOCUMENTS AND
SAMPLES AT THE SITE


 


§ A.3.11.1  The
Design-Builder 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 Owner and shall be delivered to the
Owner upon completion of the Work.


 


§ A.3.12  SHOP DRAWINGS,
PRODUCT DATA AND SAMPLES


 


§ A.3.12.1  Shop
Drawings, are drawings, diagrams, schedules and other data specifically
prepared for the Work by the Design-Builder or a Subcontractor, manufacturer,
supplier or distributor to illustrate some portion of the Work.


 


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


 


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


 


§ A.3.12.4  Shop
Drawings, Product Data, Samples and similar submittals are not Contract
Documents.  The purpose of their
submittals is to demonstrate for those portions of the Work for which
submittals are required by the Contract Documents the way by which the
Design-Builder proposes to conform to the information given and the design
concept expressed in the Contract Documents. 
Review by the Owner is subject to the limitations of Sections A.2.3.5
and A.3.13.1.  Informational submittals
upon which the Owner 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 Owner without action.


 


§ A.3.12.5  The Design-Builder
shall review for compliance with the Contract Documents, approve and submit to
the Owner Conceptual 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
approved by the Design-Builder may be returned by the Owner without action.


 


§ A.3.12.6  By approving and submitting Shop Drawings,
Product Data, Samples and similar submittals, the Design-Builder represents
that the Design-Builder 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.


 


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§ A.3.12.7  The
Design-Builder 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
Owner.


 


§ A.3.12.8  The Work shall be in accordance with approved
submittals except that the Design-Builder shall not be relieved of
responsibility for deviations from requirements of the Contract Documents by
the Owner’s approval of Shop Drawings, Product Data, Samples or similar
submittals unless the Design-Builder has specifically informed the Owner in
writing of such deviation at the time of submittal and (1) the Owner 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
Design-Builder shall not be relieved of responsibility for errors or omissions
in Shop Drawings, Product Data, Samples or similar submittals by the Owner’s
approval thereof.


 


§ A.3.12.9  The Design-Builder
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 Owner on previous submittals. 
In the absence of such written notice the Owner’s approval of a
resubmission shall not apply to such revisions.


 


§ A.3.13.  PROFESSIONAL SERVICES PROVIDED BY
DESIGN-BUILDER


 


§ A.3.13.1  The
Design-Builder is responsible for the creation of the Drawings and
Specifications and providing all professional services for the Project,
including the architectural, structural and engineering portions of the
Project, so that the completed Work will achieve the performance and capacity
requirements as required by Contract Documents. The Design-Builder shall cause
its professional services 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 by such
professional, if prepared by others, shall bear such professional’s written
approval when submitted to the Owner.


 


§ A.3.13.2  The Design-Builder shall obtain from each of
the Design-Builder’s and Subcontractor’s professionals and shall deliver to the
Owner certifications with respect to the documents and services provided by
such professionals (a) that the documents or services to which such
certifications relate (i) are consistent with the criteria provided by the
Owner (ii) comply with applicable professional practice standards, and (iii) comply
with applicable laws, ordinances, codes, rules and regulations governing
the design of the Project, and (b) that the Owner and its design
professionals shall be entitled to rely upon the representations and statements
contained in such certifications. Such certificates shall not relieve
Design-Builder of its obligations under the Contract Documents.


 


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§ A.3.13.3  If the Owner
requests the Design-Builder’s design professionals to execute certificates
other than those required by Section A.3.13.2, the proposed language of
such certificates shall be submitted to such design professionals for review
and negotiation at least 14 days prior to the requested dates of
execution.  Such design professionals
shall not be required to execute certificates that would require knowledge,
services or responsibilities beyond the scope of their services.


 


§ A.3.14  USE OF SITE


 


§ A.3.14.1  The Design-Builder 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.


 


§ A.3.15  CUTTING AND
PATCHING


 


§ A.3.15.1  The
Design-Builder shall be responsible for cutting, fitting or patching required
to complete the Work or to make its parts fit together properly.


 


§ A.3.15.2  The
Design-Builder 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 Design-Builder 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 Design-Builder shall not unreasonably withhold from the Owner or a
separate Contractor the Design-Builder’s consent to cutting or otherwise
altering the Work.


 


§ A.3.16
CLEANING UP


 


§ A.3.16.1  The
Design-Builder shall keep the premises and surrounding area free from
accumulation of waste materials or rubbish caused by operations performed under
this Agreement.  At completion of the
Work, the Design-Builder shall remove from and about the Project waste
materials, rubbish, the Design-Builder’s tools, construction equipment,
machinery and surplus materials.  The
Design-Builder shall not be held responsible for unclean conditions caused by
other Design-Builders.


 


§ A.3.16.2  If the
Design-Builder fails to clean up as provided in the Contract Documents, the
Owner may do so and the cost thereof shall be charged to the Design-Builder
within a reasonable period of time.


 


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§ A.3.17  ACCESS TO WORK


 


§ A.3.17.1  The
Design-Builder shall provide the Owner access to the Work in preparation and
progress wherever located.


 


§ A.3.18  ROYALTIES,
PATENTS AND COPYRIGHTS


 


§ A.3.18.1  No royalties
or license fees as applicable to the CVP LLC contract [Define/Identify “CVP LLC”
Contract] shall be assessed or charged to the Design-Builder.


 


§ A.3.19  INDEMNIFICATION


 


§ A.3.19.1  To the fullest extent permitted by law, the
Design-Builder shall indemnify and hold harmless the Owner, the Owner’s
consultants and agent and employees of any of them from and against claims,
damages, losses and expenses, including but not limited to attorney’s 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 Design-Builder, 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 obligations
shall not be construed to negate, abridge, or reduce other rights or
obligations of indemnity which would otherwise exist as to a party of person
described in this Section 3.19.


 


§ A.3.19.2  In claims
against any person or entity indemnified under this Section A.3.19 by an
employee of the Design-Builder, a Subcontractor, anyone directly or indirectly
employed by them or anyone else for whose acts they may be liable, the
indemnification obligation under Section A.3.19.1 shall not be limited by
a limitation on amount or type compensation acts, disability benefit acts or
other employee benefit acts.


 


ARTICLE A.4  DISPUTE RESOLUTIONS


 


§ A.4.1  CLAIMS AND
DISPUTES


 


§ A.4.1.1  Definition.  A Claim is a demand or ascertain 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 Design-Builder 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.


 


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§ A.4.1.2  Time Limits
on Claims.  Claims by
either party must be initiated within 14 days after occurrence of the event
giving rise to such Claim or within 14 days after the claimant first recognizes
the condition giving rise to the Claim, whichever is later.  Claims must be initiated in written notice to
the other party.


 


§ A.4.1.3  Continuing
Contract Performance. 
Pending final resolution of a Claim except as otherwise agreed in
writing or as provided in Section A.9.7.1 and Article A.14, the
Design-Builder shall proceed diligently with performance of the Contract and
the Design-Builder shall continue to make payments in accordance with the
Contract Documents.


 


§ A.4.1.4  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 Owner
will promptly investigate such conditions and, if they differ materially and
cause an increase or decrease in the Design-Builder’s cost of, or time required
for, performance of any party of the Work will make an equitable adjustment in
the Contract Sum or Contract Time, or both. 
If the Owner 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 Owner shall so notify the
Design-Builder in writing, stating the reasons. 
Claims by the Design-Builder in opposition to such determination must be
made within 21 days after the Owner has given notice of the decision. If the
conditions encountered are materially different, the Contract Sum and Contract
Time shall be equitably adjusted, but if the parties cannot agree on an
adjustment in the Contract Sum or Contract Time, the adjustment shall be
initially determined in accordance with Section A.4.2.


 


§ A.4.1.5  Claims for
Additional Cost.  If
the Design-Builder wishes to make Claim for an increase in the Contract Sum,
written notice as provided herein shall be given before proceeding to execute
the Work.  Prior notice is not required
for Claims relating to an emergency endangering life or property arising under Section A.10.6.


 


§ A.4.1.6  If the Design-Builder believes additional
cost is involved for reasons including but not limited to (1) a written
interpretation from the Owner, (2) an order by the Owner to stop the Work
where the Design-Builder was not at fault, (3) a written order for a minor
change in the Work issued by the Owner, (4) failure of payment by the
Owner (5) termination of the Contract by the Owner, (6) Owner’s
suspension or (7) other reasonable grounds, Claims should be filed in
accordance with this Section A.4.1.


 


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§ A.4.1.7  Claims for Additional Time.  


 


§ A.4.1.7.1  If
the Design-Builder wishes to make Claim for an increase in the Contract Time,
written notice as provided herein shall be given.  The Design-Builder’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.


 


§ A.4.1.7.2  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.


 


§ A.4.1.8  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.


 


§ A.4.1.9  If unit prices are states in the Contract
Documents or subsequently agreed upon, and if quantifies 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 Design-Builder, the
applicable unit prices shall be equitably adjusted.


 


§ A.4.1.10  Claims for Consequential Damages.  The Design-Builder and Owner waive Claims
against each other for consequential damages arising out of or relating to this
Contract.  This mutual waiver includes
damages incurred by either party 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 A.14.  Nothing contained in this Section A.4.1.10
shall be deemed to preclude an award of liquidated damaged, when applicable, in
accordance with the requirements of the Contract Documents.


 


§ A.4.1.11  If, after the execution of this Agreement,
the enactment or revisions of codes, laws or regulations or official
interpretations which govern the Project cause an increase or decrease of the
Design-Builder’s costs of, or time required for, performance of the Work, the
Design-Builder shall be entitled to an equitable adjustment in Contract Sum or
Contract Time.  If the Owner and
Design-Builder


 


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cannot agree upon
an adjustment in the Contract Sum or Contract Time, the Design-Builder shall
submit a Claim pursuant to Section A.4.1.


 


§ A.4.2  RESOLUTION OF CLAIMS AND DISPUTES


 


§ A.4.2.1  Decision by Neutral.  If the parties have identified a Neutral in Section 6.1
of the Agreement or elsewhere in the Contract Documents, then Claims, excluding
those arising under Sections A.10.3 through A.10.5, shall be referred initially
to the Neutral for decision.  An initial
decision by the Neutral shall be required as a condition precedent to mediation
of all Claims between the Owner and Design-Builder arising prior to the date
final payment is due, unless 30 days have passed after the Claim has been
referred to the Neutral with no decision having been rendered by the
Neutral.  Unless the Neutral and all
affected parties agree, the Neutral will not decide disputes between the
Design-Builder and persons or entities other than the Owner.


 


§ A.4.2.2  Decision by Owner-Designee.
(This Section is not applicable to this
Contract under any circumstances and is null and void to this Contract)  If the parties have not identified a Neutral
in Section 6.1 of the Agreement or elsewhere in the Contract Documents,
the Owner may appoint an Owner-Designee to resolve disputes between the Owner
and the Design-Builder, and Claims, including those alleging an error or
omission by the Design-Builder but excluding those arising under Section A.10.3
through A.10.5, shall be referred initially to the Owner-Designee for
decision.  An initial decision by the
Owner-Designee shall be required as a condition precedent to mediation of all
Claims between the Owner and Design-Builder arising prior to the date final
payment is due, unless 30 days have passed after the Claim has been referred to
the Owner-Designee with no decision having been rendered by the Owner-Designee.  The
Owner-Designee will not decide disputes between the Design-Builder and persons
or entities other than the Owner.


 


§ A.4.2.3  Decision by Owner.
(This Section is not applicable to this
Contract under any circumstances and is null and void to this Contract)  If the parties have not identified a Neutral
in Section 6.1 of the Agreement or elsewhere in the Contract Documents,
and if the Owner has not appointed the Owner-Designee to resolve disputes
between the Owner and Design-Builder, then, except for those Claims arising
under Section A.10.3 through A.10.5, the Owner shall provide an initial
decision.  An initial decision by the
Owner shall be required as a condition precedent to mediation of all Claims
between Owner and Design-Builder arising prior to the date final payment is
due, unless 30 days have passed after the Claim has been referred to the Owner
with no decision having been rendered by the Owner.


 


§ A.4.2.4  The
initial decision pursuant to Sections A.4.2.1, A.4.2.2. or
A.4.2.3 shall be in writing, shall state the reasons therefore and shall notify
the parties of any change in the Contract Sum or Contract Time or both.  The initial decision


 


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shall be final
and binding on the parties but subject first to mediation under Section A.4.3
and thereafter to such other dispute resolution methods as provided in Section 6.2
of the Agreement.


 


§ A.4.2.5  In
the event of a Claim against the Design-Builder, 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 Design-Builder’s default, the Owner may, but is not obligated
to, notify the surety and request the surety’s assistance in resolving the
controversy.


 


§ A.4.2.6  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 initial resolution of the Claim.


 


§ A.4.3  MEDIATION


 


§ A.4.3.1  Any
Claim arising out of or related to the Contract, except those waived for in
Sections A.4.1.10, A.9.10.4 and A.9.10.5 shall, after initial decision of the
Claim or 30 days after submission of the Claim for initial decision, be subject
to mediation as a condition precedent to arbitration or the institution of
legal or equitable or other binding dispute resolution proceedings by either party.


 


§ A.4.3.2  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 at the time of the
mediation.  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 or other
binding dispute resolution proceedings but, in such event, mediation shall
proceed in advance thereof or of 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.


 


§ A.4.3.3  The
parties shall share the mediator’s fees and any filing fees equally.  The mediation shall be held in the Avenue
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.


 


§ A.4.4  ARBITRATION


 


§ A.4.4.1  Claims,
except those waive as provided in Section A.4.1.10, A.9.10.4 and A.9.10.5,
for which initial decisions have not become final and binding, and which have
not been resolved by mediation but which are subject to arbitration pursuant to
Sections 6.2 and 6.3 of the Agreement, shall be decided by


 


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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 at the time of the
arbitration.  The demand for arbitration
shall be filed in writing with the other party to the Contract and with the
American Arbitration Association.


 


§ A.4.4.2  A
demand for arbitration may be made no earlier than concurrently with the filing
of a request for mediation, but in no event shall it be made after the date
when institution of legal or equitable proceedings based on such Claim would be
barred by the applicable statute of limitations as determined pursuant to Section a.13.6.


 


§ A.4.4.3  An
arbitration pursuant to this Section A.4.4 may be joined with an
arbitration between the Owner or Design-Builder and any person or entity which
whom the Owner or Design-Builder has a contractual obligation to arbitrate
disputes which does not prohibit consolidation or joinder if such arbitration
involves common issues of law or fact relating to the performance of this
Agreement.  No other arbitration arising
out of or relating to the Agreement shall include, by consolidation, joinder or
in any other manner, an additional person or entity not a party to the
Agreement or not a party to an agreement with the Owner, except by written
consent containing a specific Consent to arbitration involving an additional
person or entity shall not constitute consent to arbitration of any or
described therein.  The foregoing
agreement to arbitrate and other agreements to arbitrate with an additional
person or entity duly consented to by the parties to the Agreement shall be
specifically enforceable in accordance with applicable law in any court having
jurisdiction thereof.


 


§ A.4.4.4  Claims and Timely Assertion of Claims.  The party filing a notice of demand for
arbitration must assert in the demand all Claims then known to that party on
which arbitration is permitted to be demanded.


 


§ A.4.4.5  Judgment on Final Award.  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.


 


ARTICLE A.5 SUBCONTRACTORS.


 


§ A.5.1 Definitions


 


§ A.5.1.1  A
Subcontractor is a person or entity who has a direct contract with the
Design-Builder to perform a portion of the Work, including material and
equipment suppliers..  The term “Subcontractor”
is referred to throughout the Contract Documents as if singular in number and
means a Subcontractor or an authorized representative of the
Subcontractor.  The term “Subcontractor”
does not include a separate Design-Builder or Subcontractors of a separate
Design-Builder.


 


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§ A.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, including material and
equipment suppliers.  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.


 


§ A.5.2  AWARD OF SUBCONTRACTORS AND OTHER
CONTRACTS FOR PORTIONS OF THE WORK


 


§ A.5.2.1  Unless otherwise stated in the Contract
Documents or the bidding requirements, the Design-Builder, as soon as
practicable after award of the Contract, shall furnish in writing to the Owner
the names of persons or entities (including those who are to furnish materials
or equipment fabricated to a special design) proposed for each principal
portion of the Work.  The Owner will
promptly reply to the Design-Builder in writing stating whether or not the
Owner, after due investigation, has reasonable objection to any such proposed
person or entity.  Failure of the Owner
to reply promptly shall constitute notice of no reasonable objection.


 


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


 


§ A.5.2.3  If
the Owner has reasonable objection to a person or entity proposed by the
Design-Builder, the Design-Builder shall propose another to whom the Owner has
no reasonable objection.  If the proposed
but rejected Subcontractor was reasonably capable of performing the Work, the
Contract Sum and Contact 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
Contract Sum or Contract Time shall be allowed for such change unless the
Design-Builder has acted promptly and responsively in submitting names as
required.


 


§ A.5.2.4  The
Design-Builder shall not change a Subcontractor, person or entity selected if
the Owner makes no reasonable objection to such substitute.


 


§ A.5.3  SUBCONTRACTUAL RELATIONS


 


§ A.5.3.1  By appropriate agreement, written where legally
required for validity, the Design-Builder shall require each Subcontractor, to
the extent of the Work to be performed by the Subcontractor, to be bound to the
Design-Builder by terms of the Contract Documents, and to assume toward the
Design-Builder all the


 


37





















 


obligations and
responsibilities, including the responsibility for safety of the Subcontractor’s
Work, which the Design-Builder by these Documents, assumes toward the
Owner.  Each Subcontractor agreement
shall preserve and protect the rights of the Design-Builder under the Contract
Documents with respect to the Work to be performed by the Subcontractor so that
subcontracting thereof will not prejudice such rights. Where appropriate, the
Design-Builder shall require each Subcontractor to enter into similar
agreements with Sub-Subcontractors.  The
Design-Builder shall make available to each proposed Subcontractor, prior to
the execution of the subcontract agreement, copies of the Contract Documents to
which the Subcontractor will be bound, and, upon written request of the
Subcontractor, identify to the Subcontractor terms and conditions of the
proposed Subcontractor agreement which may be at variance with the Contract
Documents.  Subcontractors will similarly
make copies of applicable portions of such documents available to their
respective proposed Sub-Subcontractors.


 


§ A.5.3.2  Owner
is an intended third-party beneficiary of all subcontracts and material supply
contracts of whatever tier, with the right to directly enforce, both during and
after the construction period, subcontractor and material supplier obligations
to meet prevailing standards or workmanship and to comply with the Contract
Documents including but not limited to all applicable express and implied
warranties. Design-Builder shall ensure that such third party status is
provided in all applicable subcontractor and material supply contracts.  During the construction period, that right
shall only be exercised in cooperation with Design-Builder.


 


§ A.5.4  CONTINGENT ASSIGNMENT OF SUBCONTRACTS


 


§ A.5.4.1  Each
subcontract agreement for a portion of the Work is assigned by the
Design-Builder to the Owner provided that”


 


.1                                      assignment
is effective only after termination of the Contract by the Owner for cause
pursuant to Section A.14.2 and only for those subcontract agreements which
the Owner accepts by Notifying the Subcontractor and Design-Builder in writing;
and


 


.2                                      assignment is subject to the prior rights of the surety, if
any, obligated under bond relating to the Contract.


 


§ A.5.4.2  Upon
such assignment, if the Work has been suspended for more than 30 days, the
Subcontractor’s compensation shall be equitably adjusted for increases in cost
resulting from the suspension.


 


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ARTICLE A.6  CONSTRUCTION BY OWNER OR BY SEPARATE
CONTRACTORS


 


§ A.6.1 OWNER’S RIGHT TO PERFORM CONSTRUCTION
AND TO AWARD SEPARATE CONTRACTS. (This Section is not applicable to this Contract under any
circumstances and is null and void to this Contract)


 


§ A.6.1.1  (This Section is not
applicable to this Contract under any circumstances and is null and void to
this Contract) The Owner reserves the right to perform construction
related to the Project with their own forces and to award separate contracts in
connection with other portions of the Project. 
The Design-Builder shall cooperate with the Owner, other Contractors and
the Owner’s own forces whose work might interfere with the Design-Builder’s
Work.  If the Design-Builder claims that
delay or additional cost is involved because of such action by the Owner, the
Design-Builder shall make such Claim as provided in Section A.4.1.


 


§ A.6.1.2 (This Section is not applicable to this Contract under any
circumstances and is null and void to this Contract) 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.


 


§ A.6.1.3 (This Section is not applicable to this Contract under any
circumstances and is null and void to this Contract) 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 Design-Builder shall
participate with other separate Contractors and the Owner in reviewing their
construction schedules when directed to do so. 
The Design-Builder 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 Design-Builder, separate Contractors
and the Owner until subsequently revised.


 


§ A.6.1.4 (This Section is not applicable to this Contract under any
circumstances and is null and void to this Contract) Unless
otherwise provided in the Contract Documents, when the Owner performs
construction or operations related to the Project with the Owner’s own forces,
the Owner shall be deemed to be subject to the same obligations and to have the
same rights which apply to the Design-Builder under the Terms and Conditions of
the Contract, including, without excluding others, those stated in Article A.3,
this Article A.6 and Articles A.10, A.11 and A.12.


 


§ A.6.2  MUTUAL RESPONSIBILITY


 


§ A.6.2.1  The
Design-Builder 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
Design-Builder’s construction and operations with theirs as required by the
Contract Documents.


 


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


 


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


 


§ A.6.2.4  The
Design-Builder shall promptly remedy damage wrongfully caused by the
Design-Builder to completed or partially completed construction or to property
of the Owner or separate Contractor.


 


§ A.6.2.5  The
Owner and each separate Contractor shall have the same responsibilities for
cutting and patching as are described in Section A.3.15.


 


§ A.6.3  OWNER’S RIGHT TO CLEAN UP


 


§ A.6.3.1  If
a dispute arises among the Design-Builder, 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 shall allocate the cost among those responsible.


 


ARTICLE A.7 
CHANGES IN WORK


 


§ A.7.1  GENERAL


 


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


 


§ A.7.1.2  A
Change Order shall be based upon agreement between the Owner and
Design-Builder.  A Construction Change
Directive may be issued by the


 


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Owner with out without agreement by the
Design-Builder. 
A minor change in the Work may be issued by the Owner alone.


 


§ A.7.1.3  Changes
in the Work shall be performed under applicable provisions of the Contract
Documents, and the Design-Builder shall proceed promptly, unless otherwise
provided in the Change Order, Construction Change Directive or in an order for
a minor change in the Work.


 


§ A.7.2  CHANGE ORDERS


 


§ A.7.2.1  A
Change Order is a written instrument signed by the Owner and Design-Builder
stating their agreement upon all of the following:


 


.1                                      a change in the Work;


 


.2                                      the amount of the adjustment, if any, in the Contract Sum;
and


 


.3                                      the extent of the adjustment, if any, in the Contract Time.


 


§ A.7.2.2  If
the Owner requests a proposal for a change in the Work from the Design-Builder
and subsequently elects not to proceed with the change, a Change Order shall be
issued to reimburse the Design-Builder for reasonable costs incurred, if any,
for design services provided in connection with preparation of proposed
revisions to the Contract Documents.


 


§ A.7.2.3  Methods
used in determining adjustments to the Contract Sum may include those listed in
Section A.7.3.3.


 


§ A.7.3  CONSTRUCTION CHANGE DIRECTIVES


 


§ A.7.3.1  A
Construction Change Directive is a written order signed by the Owner directing
a change in the Work prior to agreement on adjustment, if any, in the Contract
Sum 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 Contract Time
being adjusted accordingly.


 


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


 


§ A.7.3.3  If
the Construction Change Directive provides for an adjustment to the Contract
Sum, the adjustment shall be based on one of the following methods:


 


.1                                      mutual
acceptance of a lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation;


 


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.2                                      unit
prices stated in the Contract Documents or subsequently agreed upon, or
equitably adjusted as provided in Section A.4.1.9.


 


.3                                      cost
to be determined in a manner agreed upon by the parties and mutually acceptable
fixed percentage fee; or


 


.4                                      as provided in Section A.7.3.6


 


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


 


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


 


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


 


.1                                      additional
costs of professional services.


 


.2                                      costs
of labor, including social security, old age and unemployment insurance, fringe
benefits required by agreement or custom, and worker’s compensation insurance;


 


.3                                      costs
of materials, supplies and equipment, including costs of transportation,
whether incorporated or consumed;


 


.4                                      rental
costs of machinery and equipment, exclusive of hand tools, whether rented from
the Design-Builder or others;


 


.5                                      costs
of premiums for all bonds and insurance, permit fees, and sales, use or similar
taxes related to the Work; and


 


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.6                                      additional
costs of supervision and field office personnel directly attributable to the
change.


 


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


 


§ A.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
Application for Payment accompanied by a Change Order indicating the parties’
agreement with part or all of such costs. 
For any portion of such costs that remains in dispute, the Owner shall
make an interim determination for purposes of monthly payment for those costs.  The determination of cost shall adjust the
Contract Sum on the same basis as a Change Order, subject to the right of the
Design-Builder to disagree and assert a Claim in accordance with Article A.4.


 


§ A.7.3.9  When
the Owner and Design-Builder reach agreement concerning the adjustments in the
Contract Sum 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.


 


§ A.7.4  MINOR CHANGES IN THE WORK


 


§ A.7.4.1  The Owner shall have authority to order minor
changes and remove 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 Design-Builder.  The Design-Builder shall carry out such
written orders promptly.


 


ARTICLE A.8  TIME


 


§ A.8.1 DEFINITIONS


 


§ A.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.


 


§ A.8.1.2  The
date of commencement of the Work shall be the date stated in the Agreement
unless provision is made for the date to be fixed in a notice to proceed issued
by the Owner.


 


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§ A.8.1.3  The
date of Substantial Completion is the date determined by the Owner in
accordance with Section A.9.8.


 


§ A.8.1.4  The
term “day” as used in the Contract Documents shall mean calendar day unless
otherwise specifically defined.


 


§ A.8.1.5  The
date of Mechanical Completion is the date determined by the Owner in accordance
with Section A.9.8.


 


§ A.8.2 PROGRESS AN COMPLETION


 


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


 


§ A.8.2.2  The Design-Builder shall not knowingly,
except by agreement or instruction of the Owner in writing, prematurely
commence operations on the site or elsewhere prior to the effective date of
insurance required by Article A.11 to be furnished by the Design-Builder
and Owner.  The date of commencement of
the Work shall not be changed by the effective date of such insurance.  Unless the date of commencement is
established by the Contract Documents or a notice to proceed given by the
Owner, the Design-Builder shall notify the Owner in writing not less than 10
days or other agreed period before commencing the Work to permit the timely
filing of mortgages, mechanic’s liens and other security interests.


 


§ A.8.2.3  The
Design-Builder shall proceed expeditiously with adequate forces and shall
achieve Substantial Completion within the Contract Time.


 


§ A.8.3  DELAYS AND EXTENSION OF TIME


 


§ A.8.3.1  If the Design-Builder is delayed at any time
in the commencement or progress of the Work by an act or neglect of the Owner
or of a separate Contractor or other party 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 Design-Builder’s control, or
by delay authorized by the Owner pending resolution of disputes pursuant to the
Contract Documents, or by other causes which the Owner determines may justify
delay, then the Contract Time shall be extended by Change Order for such
reasonable time as the Owner may determine.


 


§ A.8.3.2  Claims
relating to time shall be made in accordance with applicable provisions in Section A.4.1.7.


 


§ A.8.3.3  This
Section A.8.3 does not preclude recovery of damages for delay by either
party under other provisions of the Contract Documents.


 


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ARTICLE A.9 
PAYMENTS AND COMPLETION


 


§ A.9.1  CONTRACT SUM


 


§ A.9.1.1  The
Contract Sum is stated in the Contract Documents and, including authorized
adjustments, is the total amount payable by the Owner to the Design-Builder for
performance of the Work under the Contract Documents.


 


§ A.9.2  SCHEDULE OF VALUES


 


§ A.9.2.1  Before the first Application for Payment, the
Design-Builder shall submit to the Owner an initial 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, unless objected to by the
Owner, shall be used as a basis for reviewing the Design-Builder’s Application
for Payment.  The schedule of value
may be updated periodically to reflect changes in the allocation of the Contract
Sum.


 


§ A.9.3  APPLICATIONS FOR PAYMENT


 


§ A.9.3.1  At
least ten days before the date established for each progress payment, the
Design-Builder shall submit to the Owner an itemized Application for Payment
for operations completed in accordance with the current schedule of
values.  Such application shall be
notarized and supported by such data substantiating the Design-Builder’s right
to and amount of payment as the Owner, or the Owner’s lender, may require, such
as copies of requisitions from Subcontractors and Sub-Subcontractors and
identifications of all Subcontractors, Sub-Subcontractors and professional
consultants who are to receive funds from the pending Application for Payment.


 


§ A.9.3.1.1  As
provided in Section A.7.3.8 such applications may include requests for
payment on account of Changes in the Work which have been properly authorized
by Construction Change Directives or by interim determinations of the Owner,
but not yet included in Change Orders.


 


§ A.9.3.1.2  Such
applications may not include requests for payment for portions of the Work for
which the Design-Builder does not intend to pay a Subcontractor or
Sub-Subcontractor or other parties providing services for the Design-Builder,
unless such Work has been performed by others whom the Design-Builder intends
to pay.


 


§ A.9.3.2  Unless otherwise provided in the Contract
Documents, payments shall be made on account of materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the
Work.  If approved in advance by the
Owner, payment may similarly be made for materials and equipment suitably


 


45





















 


stored off the
site at a location agreed upon in writing. 
Payments for materials and equipment stored on or off the site shall be
conditioned upon compliance by the Design-Builder with procedures satisfactory
to the Owner to establish the Owner’s title to such materials and equipment or
otherwise protect the Owner’s interests and shall include the costs of applicable
insurance, storage and transportation to the site for such materials and
equipment stored off the site.


 


§ A.9.3.3  The
Design-Builder warrants that title to all Work other than Instruments of
Service covered by an Application for Payment will pass to the Owner no later
than the time of payment.  The
Design-Builder further warrants that upon submittal of an Application for
Payment, all Work for which Certificates of Payment have been previously issued
and payments received from the Owner shall, to the best of the Design-Builder’s
knowledge, information and belief, be free and clear of liens, Claims, security
interests or encumbrances in favor of the Design-Builder, Subcontractors,
material suppliers, or other persons or entities making a claim by reason of
having provided labor, materials and equipment relating to the Work.


 


§ A.9.3.4  With
each Application for Payment, the Design-Builder shall provide to Owner a
partial lien waiver and release from Design-Builder and each Subcontractor,
Sub-Subcontractor and professional consultant who is to receive funds from the
pending Application for Payment. Each such lien waiver and release may be
conditioned on the receipt of the payment for which the waiver and release is
sought.


 


§ A.9.3.5  Provided that Owner shall make payment of
amounts due to Design-Builder, Design-Builder shall keep the Project Site free
from any liens by Design-Builder, its Subcontractors, Sub-Subcontractors and
professional consultants. If, because of any act or omission of Design-Builder
or anyone claiming through or under Design-Builder, any mechanic’s or other
lien, encumbrance or order is filed against Owner or the Project Site, then
Design-Builder shall, at Design-Builder’s own cost and expense, cause the same
to be canceled and discharged of record or bonded over within thirty (30) days
after receiving notice thereof, and shall indemnify and hold Owner harmless
from and against all costs, expenses, claims, losses or damages, including
reasonable attorneys’ fees, resulting therefrom or by reason thereof.


 


§ A.9.4  ACKNOWLEDGEMENT OF APPLICATION FOR
PAYMENT


 


§ A.9.4.1  The Owner shall, within seven days after
receipt of the Design-Builder’s Application for Payment, issue to the
Design-Builder a written acknowledgement of receipt of the Design-Builder’s
Application for Payment indicating the amount the Owner has determined to be
properly due and, if applicable, the reasons for withholding payment in whole
or in part.


 


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§ A.9.5  DECISIONS TO WITHHOLD PAYMENT


 


§ A.9.5.1  In
addition to retainage, the Owner may withhold approval of a payment in whole or
in part to the extent reasonably necessary to protect the Owner due to the
Owner’s determination that the Work has not progressed to the point indicated
in the Application for Payment or that the quality of Work is not in accordance
with the Contract Documents.  The Owner
may also withhold a payment or, because of subsequently discovered evidence,
may nullify the whole or a part of an Application for Payment previously issued
to such extent as may be necessary to protect the Owner from loss for which the
Design-Builder is responsible, including loss resulting from acts and
omissions, because of the following:


 


.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 Design-Builder;


 


.3                                      failure
of the Design-Builder to make payments properly to Subcontractors or for design
services 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 a separate Contractor;


 


.6                                      reasonable
evidence that the Work will not be completed within the Contract Time and the
unpaid balance would not be adequate to cover actual or liquidated damages for
the anticipated delay;


 


.7                                      persistent
failure to carry out the Work in accordance with the
Contract Documents


 


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


 


§ A.9.6 PROGRESS PAYMENTS


 


§ A.9.6.1  Within
10 days after the Owner has received billings from the Design-Builder on
account of Work performed by the Design-Builder and for which the Owner has
acknowledged to the due pursuant to Section A.9.4.1, the Owner shall make
payment of that amount to the Design-Builder. If the Design-Builder


 


47





















 


does not receive
such payment from the Owner for any cause which is not the fault of the
Design-Builder, the Owner shall pay the Design-Builder, on demand, that amount.


 


§ A.9.6.2  The Design-Builder shall promptly pay each
Subcontractor, upon receipt of payment from the Owner, out of the amount paid
to the Design-Builder 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 Design-Builder on account of the
Subcontractor’s portion of the Work. The Design-Builder shall, by appropriate
agreement with each Subcontractor require each Subcontractor to make payments
to Sub-Subcontractors in a similar manner.


 


§ A.9.6.3  The
Owner shall have no obligation to pay or to see to the payment of money to a
Subcontractor except as may be required by law. Owner, however, has the right,
but not the obligation, to pay a Subcontractor, Sub-Subcontractor or
professional consultant by joint party check or directly and deduct said
payment from the Contract Sum.


 


§ A.9.6.4  Payment
to material suppliers shall be treated in a manner similar to that provided in
Sections A.9.6.2 and A.9.6.3.


 


§ A.9.6.5  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.


 


§ A.9.6.6  Unless
the Design-Builder provides the Owner with a payment bond in the full penal sum
of the Contract Sum, payments received by the Design-Builder for Work properly
performed by Subcontractors and suppliers shall be held by the Design-Builder
for those Subcontractors or suppliers who performed Work or furnished
materials, or both, under contract with the Design-Builder for which payment
was made by the Owner.  Nothing contained
herein shall require money to be placed in a separate account and not be
commingled with money of the Design-Builder, shall create any fiduciary
liability or tort liability on the part of the Design-Builder for breach of the
requirements of this provision.


 


§ A.9.7 FAILURE OF PAYMENT


 


§ A.9.7.1  If
the Owner does not provide for payment to the Design-Builder’s Application for
Payment as approved by the Owner within ten days after the Owner’s receipt from
the Design-Builder, or does not issue payment within ten days after the Owner’s
receipt of approved amounts due to the Design-Builder, then the Design-Builder
may, upon seven additional days’ written notice to the Owner stop the Work
until payment of the amount owing has been received. The Contract Time shall be
extended appropriately and the Contract Sum shall be increased by the amount of
the Design-Builder’s reasonable costs of shutdown, delay and start-up, plus
interest as provided for in the Contract Documents.


 


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§ A.9.8 SUBSTANTIAL COMPLETION 


 


§ A.9.8.1
Substantial Completion is the stage in the progress of the Work when the Work,
or designated portion thereof, is sufficiently complete, and suitable for its
intended use, and all Project systems and equipment are inspected, tested and
ready for commissioning and implementation. When the Design-Builder considers
that the Work, or a portion thereof which the Owner agrees to accept
separately, is substantially or mechanically complete, whichever may apply, the
Design-Builder shall prepare and submit to the Owner 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 Design-Builder to complete all Work in
accordance with the Contract Documents.


 


§ A.9.8.2 Upon
receipt of the Design-Builder’s list, the Owner shall make an inspection,
including performance testing, to determine whether the Work or designated
portion thereof is Substantially or Mechanically
complete, whichever case may apply.  If
the Owner’s inspection or testing discloses any item, whether or not included
on the Design-Builder’s list, which is not substantially or mechanically
complete and in accordance with the requirements of the Contract Documents, the
Design-Builder shall then submit a request for another inspection by the Owner
to determine whether the Design-Builder’s Work is substantially complete.


 


§ A.9.8.3 In
the event of a dispute regarding whether the Design-Builder’s Work is
substantially or Mechanically complete, the dispute
shall be resolved pursuant to Article A.4.


 


§ A.9.8.4 When
the Owner determines that the Work is Substantially Complete, the Owner shall
issue a Certificate of Substantial Completion, which shall include a list of
items to be corrected or completed prior to final payment.  Upon the issuance of Owner’s Certificate of
Substantial Completion, Contractor shall be entitled to submit an Application
for Payment, requesting a sum sufficient to increase the total payments to the
full amount of the Contract Sum, less retainage and any other amounts for which
Owner has withheld payment under Section A.9.5 of Exhibit A, Terms
and Conditions.


 


§ A.9.9 PARTIAL OCCUPANY OR USE


 


§ A.9.9.1 The
Owner may occupy or use any completed portion of the Work at any stage when
such portion is designated by separate agreement with Design-Builder, provided
such occupancy or use is consented to the by the insurer, if so required by the
insurer, 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 Design-Builder have accepted in writing the responsibilities assigned
to each of them for payments, retainage , if any security, maintenance, heat,
utilities, damage to the


 


49





















 


Work and insurance, and have agreed in writing concerning the period
for completion or correction of the Work and commencement of warranties
required by the Contract Documents. When the Design-Builder considers a portion
substantially complete, the Design-Builder shall prepare and submit a list to
the Owner as provided under Section A.9.8.1. Consent of the Design-Builder
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 Design-Builder.


 


§ A.9.9.2
Immediately prior to such partial occupancy or use, the Owner and Design-Builder
shall jointly inspect the area to be occupied or portion of the Work to be used
to determine and record the condition of the Work.


 


§ A.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.


 


§ A.9.10 FINALCOMPLETION AND FINAL
PAYMENT


 


§ A9.10.1 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 Owner shall
promptly make such inspection and when the Owner finds the Work acceptable and
fully performed in accordance with the Contract Documents, and all necessary
component parts, systems and equipment of the Work have been tested, started-up
and are operational, meeting the performance and capacity requirements of the
Contract Documents, the Owner shall, subject to Section A.9.10.2 promptly
make final payment to the Design-Builder.


 


§ A.9.10.2
Final payment, including the retainage, will not become due until the Owner has
received the Design-Builder’s final Application for Payment and until the
Design-Builder submits to the Owner (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 Design-Builder knows of no
substantial reason that the insurance will not be renewable to cover the period
required by the Contract Documents, (4)consent of surety, if any, to final
payment, (5) a marked-up version of all Drawings and Specifications
showing the record condition of the Work; (6) a final lien waiver and
release from Design/Builder and from all Subcontractors, Sub-Subcontractors and
professional consultants (conditioned only on the receipt of payment for which
a wavier and release is sought) that provided any labor, materials, equipment or
services to the Work; (7) all warranties, manuals and all other items
Design-


 


50





















 


Builder is required by the Contract Documents to provide prior to Final
Payment, and (8) and if required by the Owner or Owner’s lender, other
data establishing payment or satisfaction of obligations, such as receipts,
releases and waivers of liens, claims, security interests or encumbrances
arising out of the Contract Documents, to the extent and in such form as may be
designated by the Owner.  If a
Design-Builder refuses to furnish a release or waiver required by the Owner,
the Design-Builder may furnish a bond satisfactory to the Owner to indemnify
the Owner against such lien. If such lien remains unsatisfied after payments are
made, the Design-Builder shall refund to the Owner all money that the Owner may
be liable to pay in connection with the discharge of such lien, including all
costs and reasonable attorneys’ fees. If, for any cause which is not the fault
of the Design-Builder, the Owner does not receive timely payment or does not
pay the Design-Builder within seven days after receipt of payment from the
Owner, final payment to the Design-Builder shall be made upon demand.


 


§ A.9.10.3 If,
after the Owner determines that the Design-Builder’s Work or designated portion
thereof is substantially completed, final completion thereof is materially
delayed through no fault of the Design-Builder or by issuance of a Change Order
or a Construction Change Directive affecting final completion, the Owner shall,
upon application by the Design-Builder for payment from the Owner on account of
such application, 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
Design-Builder. Such payment shall be made under terms and conditions governing
final payment, except that it shall not constitute a waiver of claims.


 


§ A.9.10.4 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 Documents 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.


 


§ A.9.10.5
Acceptance of final payment by the Design-Builder, a Subcontractor or material
supplier shall constitute a waiver of claims by the payee except those
previously made in writing and identified by that payee as unsettled at the
time of final Application for Payment.


 


51





















 


ARTICLE A.10 PROTECTION OF PERSONS AND
PROPERTY


 


§ A.10.1 SAFETY PRECAUTIONS AND PROGRAMS


 


§ A.10.1.1  The Design-Builder shall comply with all safety precautions
and programs initiated and maintained by the Owner in connection with the
Project and the Design-Builder’s performance of the Work. In accordance with
such safety precautions and programs, except to the extent specifically
indicated in the Contract Documents to be the responsibility of others, the
Design-Builder shall assume the duties and responsibilities set forth in
Sections A.10.2 through A.10.6, below.


 


§ A.10.2 SAFETY OF PERSONS AND PROPERTY


 


§ A.10.2.1  The Design-Builder shall take reasonable precautions for the
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 of the site or under the care, custody or
control of the Design-Builder or the Design-Builder’s Subcontractors; and


 


.3                                      other
property at the site or adjacent thereto, such as trees, shrubs, lawns, walks,
pavements, roadways, structure and utilities not designated for removal,
relocation or replanting in the course of construction.


 


§ A.10.2.2  The
Design-Builder 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.


 


§ A.10.2.3  The Design-Builder
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 Owner and owners and users of adjacent sites
and utilities.


 


§ A.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
Design-Builder shall exercise utmost care and carry on such activities under
supervision of properly qualified personnel.


 


§ A.10.2.5  The
Design-Builder shall promptly remedy damage and loss (other than damage or loss
insured under property insurance required by the Contract


 


52





















 


Documents) to property referred to in Clauses A.10.2.1.2 A.10.2.1.3
caused in whole or in part by the Design-Builder, a 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 Design-Builder is responsible under Clauses
A.10.2.1.2 and A.10.2.1.3, except damage or loss attributable to acts or
omissions of the Owner or anyone directly or indirectly employed by the Owner
or by anyone for whose acts the Owner may be liable, and not attributable to
the fault or negligence of the Design-Builder. 
The foregoing obligations of the Design-Builder are in addition to the
Design-Builder’s obligations under Section A.3.19.


 


§ A.10.2.6  The Design-Builder shall designate in writing to the Owner a
responsible individual whose duty shall be the prevention of accidents.


 


§ A.10.2.7  The Design-Builder shall not load or permit any part of the
construction or site to be loaded so as to endanger its safety.


 


§ A.10.3 HAZARDOUS MATERIALS


 


§ A.10.3.1 If
reasonable precautions will be in adequate 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 Design-Builder shall, upon recognizing the condition, immediately stop
Work in the affected area and report the condition to the Owner.


 


§ A.10.3.2  The Owner shall obtain the services of a licensed laboratory
to verify the presence of absence of the material or substance reported by the
Design-Builder 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 Design-Builder
the names and qualifications of persons or entities who are to perform tests
verifying the presence or absence of such material or substance or whoa re to
perform the task of removal or safe containment of such material or substance.
The Design-Builder will promptly reply to the Owner in writing stating whether
or not the Design-Builder has reasonable objection to the persons or entities
proposed by the Owner. If the Design-Builder has an objection to a person or
entity proposed by the Owner, the Owner shall propose another to whom the
Design-Builder has 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 Design-Builder. 
The Contract Time shall be extended appropriately, and the Contract Sum
shall be increased in the amount of the Design-Builder’s reasonable additional
costs of shutdown, delay and start-up, which adjustments shall be accomplished
as provided in Article A.7.


 


§ A.10.3.3 To
the fullest extent permitted by law, the Owner shall indemnify and hold
harmless the Design-Builder, Subcontractors, Design-Builder, Design-Builder’s
consultants and the agents and employees of any of them from and


 


53





















 


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 of substance exists on site as of the
date of execution of the Agreement, is not disclosed in the Contract Documents
and presents the risk of bodily injury or death as described in Section A.10.3.1
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) to
the extent that such damage, loss or expense is not due to the active
negligence of the Design-Builders, Subcontractors, Design-Builder,
Design-Builder’s consultants and their agents and employees.


 


§ A.10.4  The
Owner shall not be responsible under Section A.10.3 for materials and
substances brought to the site by the Design-Builder unless such materials or
substances were required by the Contract Documents.


 


§ A.10.5  If,
without negligence on the part of the Design-Builder, the Design-Builder 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 Design-Builder for all cost and expense thereby
incurred.


 


§ A.10.6 EMERGENCIES


 


§ A.10.6.1 In
an emergency affecting safety of persons or property, the Design-Builder shall
act, at the Design-Builder’s discretion, to prevent threatened damage, injury
or loss. Additional compensation or extension of time claimed by the
Design-Builder on account of an emergency shall be determined as provided in Section A.4.1.7
and Article A.7.


 


ARTICLE A.11 INSURANCE AND BONDS


 


§ A.11.1  The Owner and Design-Builder shall purchase and maintain
insurance of the types, with limits of liability, containing such endorsements
and subject to such terms and conditions as would normally be used for a
project of this type. In addition, Design-Builder shall obtain and maintain the
following types and amounts of insurance:


 


§ 11.1.2  Workers’ Compensation and Employers’
Liability:  Design-Builder shall comply
with all statutes and law with regard to Workers’ Compensation/Occupational
Disease applying to employees or their beneficiaries.  Minimum limits shall be:


 


	
  .1

  	
   

  	
  Workers’ Compensation-Statutory Limits

  
	
   

  	
   

  	
   

  
	
  .2

  	
   

  	
  Employers’ Liability

  	
  Not Less Than:

  
	
   

  	
   

  	
  Bodily Injury by Accident

  	
  $100,000 Each Accident

  



 


54





















 


	
   

  	
   

  	
  Bodily Injury by Disease

  	
  $100,000 Each Employee

  
	
   

  	
   

  	
   

  	
  $500,000 Policy Limit

  
					



 


This insurance shall contain
provisions waiving each underwriter’s rights of subrogation against Owner.


 


§ 11.1.3
Other insurance required is as follows:


 


	
  .1

  	
   

  	
  Commercial General Liability

  	
   

  	
   

  
	
   

  	
   

  	
  Limits not less than:

  	
   

  	
   

  
	
   

  	
   

  	
  Bodily Injury and Property

  	
   

  	
  $1,000,000 Each Occurrence

  
	
   

  	
   

  	
  Damage Combined Single Limit:

  	
   

  	
  $1,000,000 Annual General

  
	
   

  	
   

  	
   

  	
  Aggregate – Per Policy

  
	
   

  	
   

  	
   

  	
  $1,000,000 Products Liability/

  
	
   

  	
   

  	
   

  	
  Completed Operations

  
	
   

  	
   

  	
  Fire Damage

  	
   

  	
  $50,000

  
	
   

  	
   

  	
  Medical Payment

  	
   

  	
  $5,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commercial General Liability coverage must
  provide:

  
	
   

  	
   

  	
  General Aggregate Limit must apply per
  project

  
	
   

  	
   

  	
  Premises and Operations

  
	
   

  	
   

  	
  Contractor’s Liability/Completed Operations
  Liability Contractual Liability

  
	
   

  	
   

  	
  XCU Coverage (explosion, collapse and
  underground property damage)

  
	
   

  	
   

  	
  Personal Injury and Advertising Injury

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Note: The Commercial General Liability
  policy and the endorsements thereto shall be maintained on an occurrence
  basis.

  
	
   

  	
   

  	
   

  
	
  .2

  	
   

  	
  Auto

  
	
   

  	
   

  	
  Limits not less than:

  
	
   

  	
   

  	
  Bodily injury and Property Damage

  
	
   

  	
   

  	
  Combined Single Limit Policy must be intended
  to cover all owned,

  
	
   

  	
   

  	
  Non-owned and hired vehicles:

  	
   

  	
   

  	
  $1,000,000 Each Accident

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  .3

  	
   

  	
  Umbrella Liability

  	
   

  	
   

  
	
   

  	
   

  	
  Not less than:

  	
   

  	
   

  
	
   

  	
   

  	
  Bodily Injury and Property Damage

  	
   

  	
  $4,000,000 Each Occurrence

  
	
   

  	
   

  	
  Combined Single Limit

  	
  $4,000,000 Annual

  



 


§ 11.1.4  AMG shall also obtain and maintain
professional liability insurance (including contractual liability coverage
retroactive to the earlier date of the Agreement or the commencement of the
Work in an amount of not less than two million dollars ($2,000,000.00) per
occurrence and in the aggregate covering person injury, bodily injury and
property damage, including the loss of the use


 


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thereof.  This insurance shall be maintained for a
period of three (3) years after Substantial Completion and shall provide “errors
and omissions” coverage covering negligent acts, errors and omissions in
Design-Builder’s, and its consultants, professional obligations under the
Contract Documents.


 


§ 11.2   Certificates of insurance acceptable to the
Owner shall be filed with the Owner prior to commencement of the Work.  The Owner shall be named as an additional
insured, on a primary and non-contributory basis, on the liability coverages.


 


§ 11.3  Design-Builder shall require Subcontractors
and professional consultants to maintain and obtain workers compensation,
commercial general liability, automobile and professional liability (provided
the Subcontractor or professional consultant is providing professional
services) containing the same types and amounts of insurance required herein,
except that the amounts thereof may be reduced if approved by Owner.  Architect shall provide Owner, prior to the
commencement of Services and thereafter upon Owner’s request, with certificates
of insurance evidencing such Subcontractor and professional consultant
insurance.


 


§ A.11.3 (This Section is not applicable to this Contract under any
circumstances and is null and void to this Contract) The
Design-Builder shall provide surety bonds of the types, for such penal sums and
subject to such terms and conditions as described in Exhibit E, Insurance
and Bonds, or elsewhere in the Contract Documents.


 


ARTICLE A.12 UNCOVERING AND CORRECTION
OF WORK


 


§ A.12.1 UNCOVERING OF WORK


 


§ A.12.1.1  If a portion of the Work is covered contrary to requirements
specifically expressed in the Contract Documents, it must be uncovered for the
Owner’s examination and be recovered at the Design-Builder’s expense without
change in the Contract Time.


 


§ A.12.1.2  If a portion of the Work has been covered which the Owner
has not specifically requested to examine prior to being covered, the Owner may
request to see such Work and it shall be uncovered by the Design-Builder.  If such Work is in accordance with the
Contract Documents, costs of uncovering and recovering 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 Design-Builder’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.


 


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§ A.12.2 CORRECTION OF WORK


 


§ A.12.2.1 BEFORE OR AFTER SUBSTANTIAL
COMPLETION OF THE DESIGN-BUILDER’S WORK


 


The Design-Builder shall promptly correct Work rejected by the Owner or
failing to conform to the requirements of the Contract Documents, whether
discovered before or after the Owner’s determination that the Design-Builder’s
Work or designated portion thereof is substantially complete and whether or not
fabricated, installed or completed. 
Costs of correcting such rejected Work, including additional testing
shall be at the Design-Builder’s expense.


 


§ A.12.2.2 AFTER SUBSTANTIAL COMPLETION
OF THE DESIGN-BUILDER’S WORK


 


§ A.12.2.2.1 In
addition to the Design-Builder’s obligations under Section A.3.5, if,
within one year after the date of the Owner’s determination that the
Design-Builder’s Work or designated portion thereof is substantially complete
or after the date for commencement of warranties established under Section A.9.9.1
or by terms of an applicable special warranty required by the Contract
Documents, any of the Work is found to be not in accordance with the
requirements of the Contract Documents, the Design-Builder shall correct it
promptly after receipt of written notice from the Owner to do so unless the
Owner has previously given the Design-Builder a written acceptance of such
condition.  The Owner shall give such
notice promptly after discovery of the condition. If the Design-Builder fails
to correct nonconforming Work within a reasonable time during that period after
receipt of notice from the Owner, the Owner may correct it in accordance with Section A.2.5.


 


§ A.12.2.2.2  The
one-year period for correction of Work shall be extended with respect to
portions of Work first performed after the Owner’s determination that the
Design-Builder’s Work is substantially complete by the period of time between
such determination and the actual performance of the Work.


 


§ A.12.2.2.3  The
one-year period for correction of Work shall not be extended by corrective Work
performed by the Design-Builder pursuant to this Section A.12.2.


 


§ A.12.2.3  The
Design-Builder 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 Design-Builder nor accepted by the Owner.


 


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


 


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§ A.12.2.5  Nothing contained in this Section A.12.2 shall be
constructed to establish a period of limitation with respect to other
obligations the Design-Builder might have under the Contract Documents.  Establishment of the one-year period for
correction of Work as described in Section A.12.2.2 relates only to the
specific obligation of the Design-Builder to correct for Work, and has no
relationship to the time within which the obligation to comply with the
Contract Documents may be sought to be enforced, nor to the time within which
proceedings may be commenced to establish the Design-Builder’s liability with
respect to the Design-Builder’s obligations other than specifically to correct
the Work.


 


§ A.12.3 ACCEPTANCE OF NONCONFORMING
WORK


 


§ A.12.3.1 If
the Owner prefers to accept Work 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 equitably adjusted by Change
Order.  Such adjustment shall be effected
whether or not final payment has been made.


 


ARTICLE A.13 MISCELLANEOUS PROVISIONS


 


§ A.13.1 GOVERNING LAW


 


§ A.13.1.1  The Contract shall be governed by the law of the place where
the Project is located.


 


§ A.13.2 SUCCESSORS AND ASSIGNS


 


§ A.13.2.1 The
Owner and Design-Builder respectively bind themselves, their partners,
successors, assigns and legal representatives to the other party hereto and to
partners, successors, assigns and legal representatives of such other party in
respect to covenants, agreements and obligations contained in the Contract
Documents. Except as provided in Section A.13.2.2, neither party to the
Contract Documents shall assign the Contract Documents as a whole without
written consent of the other. If either party attempts to make such an
assignment without such consent, that party shall nevertheless remain legally
responsible for all obligations under the Contract Documents.


 


§ A.13.2.2 This
Agreement may be assigned by the Owner provided that:


 


.1                                      assignment
is effective only after termination of the Design-Build Contract by the Owner
for cause and only if the Owner accepts this Agreement by notifying the
Design-Builder in writing; and


 


.2                                      assignment is subject to the prior rights of the Owner’s surety,
if any, obligated under bond relating to the Design-Build


 


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Contract.


 


§ A.13.3 WRITTEN NOTICE


 


§ A.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 sent by registered or certified
mail to the last business address known to the party giving notice.


 


§ A.13.4 RIGHTS AND REMEDIES


 


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


 


§ A.13.4.2 No
action or failure to act by the Owner or Design-Builder shall constitute a
waiver of a right or duty afforded them under the Contract Documents, 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.


 


§ A.13.5 TESTS AND INSPECTIONS


 


§ A.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 Design-Builder 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 Design-Builder shall give timely notice
of when and where tests and inspections are to be made so that the Owner may be
present for such procedures.


 


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


 


§ A.13.5.3  If such procedures for testing, inspection or approval under
Sections A.13.5.1 and A.13.5.2 reveal failure of the portions of the Work to
comply with requirements established by the Contract Documents, all costs made
necessary


 


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by such failure,
including those of repeated procedures, shall be at the Design-Builder’s
expense.


 


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


 


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


 


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


 


§ A.13.5.7  Unless otherwise
provided for in the Contract Documents, The Owner shall furnish all utilities,
facilities, products of any kind or nature and such Owner’s representatives as
may be reasonably required for testing, implementation, start-up and operation
of construction systems.


 


§ A.13.6 COMMENCEMENT OF STATUTORY
LIMITATION PERIOD


 


§ A.13.6.1  As
between the Owner and Design-Builder:


 


.1                                      Before
Substantial Completion of the Design-Builder’s Work.  As to acts or failures to act occurring prior
to the relevant date of the Owner’s determination that the Design-Builder’s
Work or designated portion is substantially complete, any applicable statute of
limitations shall commence to run and any alleged cause of action shall be
deemed to have accrued in any and all events not later than such date of such
determination;


 


.2                                      Between
Substantial Completion of the Design-Builder’s Work and Final Application for
Payment.  As to acts or failures
to act occurring subsequent to the relevant date of the Owner’s determination
that the Design-Builder’s Work or designated portion is substantially complete
and prior to issuance of the final Application for Payment, any applicable
statute of limitations shall commence to run and any alleged cause of action
shall be deemed to have accrued in any and all events not later than the date
of issuance of the final Application for Payment; and


 


.3                                      After
Final Application for Payment. As to acts or failures to act occurring
after the relevant date of issuance of the final Application for Payment, any
applicable statute of limitations shall commence to run and any alleged cause
of action shall be deemed to have accrued in any and all events not later than
the date of any act or


 


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failure
to act by the Design-Builder pursuant to any Warranty provided under Section A.3.5,
the date of any correction of the Work or failure to correct the Work by the
Design-Builder under Section A.12.2, or the date of actual commission of
any other act or failure to perform any duty or obligation by the
Design-Builder or Owner, whichever occurs last.


 


ARTICLE A.14 TERMINATION OR SUSPENSION
OF THE AGREEMENT


 


§ A.14.1 TEMINATION BY THE
DESIGN-BUILDER


 


§ A.14 1.1 The
Design-Builder may terminate the Contract if the work is stopped for a period
of 30 consecutive days through no act of fault of the Design-Builder or a
Subcontractor or their agents or employees or any other persons or entities
performing portions of the Work under direct or indirect contract with the
Design-Builder, for any of the following reasons:


 


.1                                      issuance
of a order of a court or public authority having
jurisdiction which requires all Work to be stopped;


 


.2                                      an act of government, such as a declaration of national
emergency which requires all Work to be stopped;


 


.3                                      because the Owner has not made a payment to the
Design-Builder as required in the Contract Documents; or


 


.4                                      the Owner has failed to furnish to the Design-Builder
promptly, upon the Design-Builder’s request, reasonable evidence as required by
Section A.2.2.6


 


§ A.14.1.2 The
Design-Builder may terminate the Contract if, through no act or fault of the
Design-Builder or a Subcontractor, Sub-Subcontractor or their agents or
employees or any other persons or entities performing portions of the Work
under direct contract with the Design-Builder, repeated suspensions, delays or
interruptions of the entire Work by the Owner, as described in Section A.14.3,
constitute in the aggregate more than 100 percent of the total number of days scheduled
for completion, or 120 days in any 365-day period, whichever is less.


 


§ A.14.1.3 If
one of the reasons described in Section A.14.1.1 or A.14.1.2 exists, the
Design-Builder may, upon seven days’ written notice to the Owner, terminate the
Contract and recover from the Owner payment for Work executed and for proven
loss with respect to materials, equipments, tools, and construction equipment
and machinery, including reasonable overhead, profit and damages.


 


§ A.14.1.4  If the work is stopped for a period of 60 consecutive days
through no act of the Design-Builder or a Subcontractor, Sub-Subcontractor or
their agents


 


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or employees or any other persons performing portions of the Work under
a direct or indirect contract with the Design-Builder because the Owner has
persistently failed to fulfill the Owner’s obligations under the Contact
Documents with respect to matters important to the progress of the Work, the
Design-Builder may, upon seven additional days’ written notice to the Owner,
terminate the Contract and recover from the Owner as provided in Section A.14.1.3


 


§ A.14.2 TERMINATION BY THE OWNER FOR
CAUSE 


 


§ A.14.2.1  The Owner may terminate the Contact if the Design-Builder:


 


.1                                      persistently
or repeatedly refuses or fails to supply enough properly skilled workers or
proper materials.


 


.2                                      fails
to make payment to Subcontractors for services, materials or labor in
accordance with the respective agreements between the Design-Builder 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.


 


§ A.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
Design-Builder and the Design-Builders surety, if any, seven days’ written
notice, terminate employment of the Design-Builder 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 Design-Builder;


 


.2                                      accept
assignment of Subcontracts pursuant to Section A.5.4.1; and


 


.3                                      finish the Work by whatever reasonable method the Owner may
deem expedient. Upon request of the Owner, the Design-Builder shall furnish to
the Design-Builder a detailed accounting of the costs incurred by the Owner in
finishing the work.


 


§ A.14.2.3 When
the Owner terminates the Contract for one of the reasons stated in Section A.14.2.1,
the Design-Builder shall not be entitled to receive further payment until the
Work is finished.


 


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§ A.14.2.4  If the unpaid balance of the Contract Sum exceeds costs of
finishing the Work and other damages incurred by the Owner and not expressly
waived, such excess shall be paid to the Design-Builder. If such costs and
damages exceed the unpaid balance, the Design-Builder shall pay the difference
to the Owner.


 


§ A.14.3 SUSPENSION BY THE OWNER FOR
CONVENIENCE


 


§ A.14.3.1  The Owner may, without cause, order the Design-Builder in
writing to suspend, delay, or interrupt the Work in whole or in part for such
period of time as the Owner may determine.


 


§ A.14.3.2  The Contract Sum and the Contract Time shall be adjusted for
increases in the cost and time caused by suspension, delay or interruption as
described in Section A.14.3.1. Adjustment of the Contract Sum shall
include profit. No adjustment shall be made to the extent:


 


.1                                      that performance is, was or would have been suspended,
delayed or interrupted by another cause for which the Design-Builder is
responsible; or


 


.2                                      that an equitable adjustment is made or denied under another
provision of the Contract.


 


§ A.14.4 TERMINATION BY THE OWNER FOR
CONVENIENCE


 


§ A.14.4.1  The Owner may, at any time, terminate the Contract for the
Owner’s convenience and without cause.


 


§ A.14.4.2 Upon
receipt of written notice from the Owner of such termination for the Owner’s
convenience, the Design-Builder shall:


 


.1                                      cease operations as directed by the Owner in the notice;


.2                                      take
actions necessary, or that the Owner may direct, for the protection and
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, terminate all existing subcontracts and purchase orders
and enter into no further subcontracts and purchase orders.


 


§ A.14.4.3 In
case of such termination for the Owner’s convenience, the Design-Builder shall
be entitled to receive payment for Work executed and costs incurred by reason
of such termination, along with reasonable overhead and profit on the Work not
executed.


 


§ A.15. 
 [Moved
to Testing Section]


 


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OTHER
EXHIBITS OMITTED


 


64