**Exhibit 10.7**

* *

*AIA Document A121/CMc and AGC Document 565*

Standard Form of Agreement BetweenOwner and Construction Manager

*where the Construction Manager is also*

*THE CONSTRUCTOR*

 

1991 Edition - Electronic Format

 

THIS DOCUMENT HAS IMPORTANTLEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TOITS COMPLETION OR MODIFICATION. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTEDAIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.

 

The 1987 Edition of AIADocument A201, General conditions of the contract for construction, is referredto herein. This agreement requires modification if other general conditions areutilized.

 

Portions of this document arederived from AIA Document A111, Standard Form of Agreement Between the Ownerand Contractor where the basis of payment is the Cost of the Work Plus a Fee,copyright 1920,1925,1951,1958,1961,1963,1967,1974,1978,© 1987 by The AmericanInstitute of Architects; other portions are derived from AGC Document 500.  Copyright 1980 by The Associated GeneralContractors of American.  Material inthis Document differing from that found in AIA Document A111 and AGC Document500 is copyrighted 1991 by The American Institute of Architects and TheAssociated General Contractors of America. Reproduction of the material herein or substantial quotation of itsprovisions without written permission of AIA and AGC violates the copyrightlaws of the United States and will subject the violator to legal prosecution.

 

AGREEMENT

made as of the first dayof September in the year of Two Thousand and one.

*(In words, indicate day, month and year)*

 

BETWEEN the owner:

*(Name and address)*

WheelingIsland Gaming. Inc.

One SouthStone Street 

Wheeling, WestVirginia 26003(“Owner”)

 

and the Construction Manager:

*(Name and Address)*

Louis P.Ciminelli Construction Company, Inc.

The CycloramaBuilding, 369 Franklin Street 

Buffalo, NewYork 14202 (“Construction Manager” or “Constructor”)

 

The Project is:

*(Name, address and brief description)*

The “Project”consists of preconstruction and construction services as hereinafter set forth;The preconstruction services shall consist of the evaluation of the Owner’sprogram, scheduling and construction budget formulation, and such additionalservices as are set forth in this Agreement, for the construction of anapproximately 279,100 square foot facility which will house a casino, gamingfacility, entertainment center, covered parking facility and hotel, located atOne South Stone Street, Wheeling, West Virginia (the “Site” or “site”), as ismore fully set forth in the Project Manual, Drawings and Specifications, whichare incorporated by reference herein. Construction consists of a conventionallyconstructed facility to house a gaming facility, restaurants, bar,entertainment area, covered parking facility, and hotel all as is more fullyset forth in the guaranteed maximum price proposal, including allqualifications and assumptions thereto, and together with all exhibits,schedules, riders, addenda and attachments thereto, which has or shall be signedby the Owner and Constructor once accepted, and incorporated herein asAmendment No.1 hereto (the “GMP Presentation”).  Included in the Project are all costs associated with developmentof the Site, and acquisition and installation of all steel, masonry, carpentry,electrical, plumbing and HVAC work, together with the costs associated withacquisition and installation of all improvements to complete the Project,including but not limited to, developing the casino theme. The Constructor willhereafter purchase all items associated with the Project directly, includingbut not limited to, construction materials. The Project does not include costsassociated with the purchase of furniture, furnishings, gaming machines,kitchen equipment and security & surveillance items, which shall be Owner’sresponsibility to acquire and install, and Constructor’s

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©1991 - THE AMERICAN INSTITUTEOF ARCHITECTS, 1735 NEW YORK AVENUE, N.W.; WASHINGTON; D.C. 20006-5292. AIADOCUMENT AIA121/CMC AND AGC DOCUMENT 565 - OWNER-CONSTRUCTION MANAGER AGREEMENT- 1991 EDITION - AIA® - AGC - © 1991 - THE ASSOCIATED GENERAL CONTRACTORS OFAMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006-5209.  WARNING: Unlicensed photocopying violatesU.S. copyright laws and is subject to legal prosecution. This document waselectronically produced with permission of the AIA and can be reproduced inaccordance with your license without violation until the date of expiration asnoted below, expiration as noted below, expiration as noted below, expirationas noted below.  User Document: RevisedMain Agreement.aia — 7/18/2002.  AIALicense Number 1135994, which expires on 6/30/2003.

 

Electronic Format A121/CMc-1991

 

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responsibilityto coordinate and schedule its installation.

 

The Architect is:

*(Name and address)*

Jeter, Cook& Jepson Architects, Inc.

450 ChurchStreet

Hartford,Connecticut 06103 (“Architect”)

 

The Owner and ConstructionManager agree as set forth below.

 

Table of Contents

 
| ARTICLE 1   GENERAL PROVISIONS                                            |
|--------------------------------------------------------------------------------|
|                                                                           | 1.1 | Relationship of Parties |
|                                                                           | 1.2 | General Conditions |
|                                                                           |   |   |
| ARTICLE 2   CONSTRUCTION MANAGER’S RESPONSIBILITIES                  |
|                                                                           | 2.1 | Preconstruction Phase |
|                                                                           | 2.2 | Guaranteed Maximum Price Proposal and  Contract Time |
|                                                                           | 2.3 | Construction Phase |
|                                                                           | 2.4 | Professional Services |
|                                                                           | 2.5 | Unsafe  Materials |
|                                                                           |   |   |
| ARTICLE 3   OWNER’S RESPONSIBILITIES                                 |
|                                                                           | 3.1 | Information and Services |
|                                                                           | 3.2 | Owner’s Designated Representative |
|                                                                           | 3.3 | Architect |
|                                                                           | 3.4 | Legal Requirements |
|                                                                           |   |   |
| ARTICLE 4   COMPENSATION AND PAYMENTS FOR PRE-CONSTRUCTION PHASE SERVICES |
|                                                                           | 4.1 | Compensation |
|                                                                           | 4.2 | Payments |
|                                                                           |   |   |
| ARTICLE 5   COMPENSATION FOR CONSTRUCTION PHASE SERVICES                  |
|                                                                           | 5.1 | Compensation |
|                                                                           | 5.2 | Guaranteed Maximum Price |
|                                                                           | 5.3 | Changes in the Work |
|                                                                           |   |   |
| ARTICLE 6   COST OF THE WORK FOR CONSTRUCTION PHASE                       |
|                                                                           | 6.1 | Costs To be Reimbursed |
|                                                                           | 6.2 | Costs Not To Be Reimbursed |
|                                                                           | 6.3 | Discounts, Rebates and Refunds |
|                                                                           | 6.4 | Accounting Records |
|                                                                           |   |   |
| ARTICLE 7   CONSTRUCTION PHASE                                            |
|                                                                           | 7.1 | Progress Payments |
|                                                                           | 7.2 | Final  Payment |
|                                                                           |   |   |
| ARTICLE 8   INSURANCE AND BONDS                                           |
|                                                                           | 8.1 | Insurance Required of the Construction  Manager |
|                                                                           | 8.2 | Insurance Required of the Owner |
|                                                                           | 8.3 | Performance Bond and Payment Bond |
|                                                                           |   |   |
| ARTICLE 9   MISCELLANEOUS PROVISIONS                                      |
|                                                                           | 9.1 | Dispute Resolution for the Preconstruction  Phase |
|                                                                           | 9.2 | Dispute Resolution for the Construction  Phase |
|                                                                           | 9.3 | Other  Provisions |
|                                                                           |   |   |
| ARTICLE 10   TERMINATION OR SUSPENSION                                    |
|                                                                           | 10.1 | Termination Prior to Establishing  Guaranteed Maximum Price |
|                                                                           | 10.2 | Termination Subsequent to Establishing  Guaranteed Maximum Price |
|                                                                           | 10.3 | Suspension |
|                                                                           |   |   |
| ARTICLE 11   OTHER CONDITIONS AND SERVICES                                |
|                                                                           |
| Attachments:                                                                   | AMENDMENT  NO. 1 to Agreement Between Owner and Construction Manager. |
|                                                                                |  |  |  |

 

 

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Standard Form of Agreement Between Owner and Construction

 

Manager Where the Construction Manager isalso the Constructor

 

ARTICLE1

GENERAL PROVISIONS

 

1.1        RELATIONSHIP OF PARTIES

 

TheConstruction Manager accepts the relationship of trust and confidenceestablished with the Owner by this Agreement, and covenants with the Owner tofurnish the Construction Manager’s reasonable skill and judgment and tocooperate with the Architect in furthering the interests of the Owner.  The Construction Manager shall furnishconstruction administration and management services and use the ConstructionManager’s best efforts to perform the Project in an expeditious and economicalmanner consistent with the interest of the Owner.  The Owner shall endeavor to promote harmony and cooperation amongthe Owner, Architect, Construction Manager and other persons or entitiesemployed by the Owner for the Project.

 

1.2        GENERAL CONDITIONS

 

Forthe Preconstruction Phase and Construction Phase, the General Conditionsof the Contract shall be the ~~1987~~1997 Edition of ALA DocumentA201, General Conditions of the Contract for Construction, which is attachedhereto and made a part hereof as Attachment 1,~~incorporated herein byreference.  For the PreconstructionPhase, or in the event that the Preconstruction and Construction Phases proceedconcurrently, AIA Document A201 shall apply to the Preconstruction Phase onlyas specifically provided in this Agreement~~.  The term “Contractor” as used in AIA Document A201, attachedhereto and made a part hereof as Attachment 1, shall mean the “ConstructionManager” or “Constructor”.

 

ARTICLE 2CONSTRUCTION MANAGER’SRESPONSIBILITIES

 

TheConstruction Manager shall perform the services described in this Article.  The services to be provided under Paragraphs2.1 and 2.2 constitute the Preconstruction Phase services.  If the Owner and Constitution Manager agree,after consultation with the Architect, the Construction Phase may commencebefore the Preconstruction Phase is completed, in which case both phases shallproceed concurrently.

 

2.1        PRECONSTRUCTION PHASE

 

2.1.1     PRELIMINARY EVALUATION

 

TheConstruction Manager shall provide a preliminary evaluation of  the Owner’s program and Project budgetrequirements, each in terms of the other.

 

2.1.2     CONSULTATION

 

TheConstruction Manager with the Architect shall jointly schedule and attendregular meetings with the Owner and Architect. The Construction Manager shall consult with the Owner and Architectregarding site use and improvements, and the selection of materials, buildingsystems and equipment.  The ConstructionManager shall provide recommendations on construction feasibility; actionsdesigned to minimize adverse effects of labor or material shortages; timerequirements for procurement, installation and construction completion; andfactors related to construction cost including estimates of alternative designsor materials, preliminary budgets and possible economies, and a cash flowschedule (“Cash Flow Schedule”), showing the timing and amounts of cash flownecessary from Owner for completion of the Project on time.  The Cash flow Schedule shall be updatedalong with any updates of the Project schedule or as may be otherwisereasonably requested by Owner.

 

2.1.3     PRELIMINARY PROJECT SCHEDULE

 

WhenProject requirements described in Subparagraph 3.1.1 have been sufficientlyidentified, the Construction manager shall prepare, and periodically update, apreliminary Project schedule for the Architect’s review and the Owner’sapproval.  The Construction Managershall obtain the Architect’s approval of the portion of the preliminary Projectschedule relating to the performance of the Architect’s services.  TheConstruction Manager shall coordinated and integrate the preliminary Projectschedule with the services and activities of the Owner, Architect andConstruction Manager.  As designproceeds, the preliminary Project schedule shall be updated to indicateproposed activity sequences and durations, milestone dates for receipt andapproval of pertinent information, submittal of a Guaranteed Maximum Priceproposal, preparation and processing of shop drawings and samples, delivery ofmaterials or equipment requiring long-lead time procurement, Owner’s occupancyrequirements showing portions of the Project having occupancy priority, and proposeddate of Substantial Completion.  Ifpreliminary Project schedule updates indicate that previously approvedschedules may not be met, the Construction Manager shall make appropriaterecommendations to the Owner and Architect.

 

2.1.4     PHASED CONSTRUCTION

 

TheConstruction Manager shall make recommendations to the Owner and Architectregarding the phased issuance of Drawings and Specifications to facilitatephased construction of the Work, if such phased construction is appropriate forthe

 

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Project,taking into consideration such factors as economies, time of performance,availability of labor and materials, and provisions for temporary facilities.

 

2.1.5     PRELIMINARY COST ESTIMATES

 

2.1.5.1  When the Owner has sufficiently identified the Project requirementsand the Architect has prepared other basic design criteria, the ConstructionManager shall prepare, for the review of the Architect and approval of theOwner, a ~~preliminary cost~~conceptual estimate utilizing area,volume or similar conceptual estimating techniques.

 

2.1.5.2  When Schematic Design Documents have been prepared by the Architectand approved by the Owner, the Construction Manager shall prepare for thereview of the Architect and approval of the Owner, a ~~more detailed~~schematicestimate with supporting data. During the preparation of the Design Development Documents, theConstruction Manager shall update and refine this estimate at appropriateintervals agreed to by the Owner, Architect and Construction Manager.

 

2.1.5.3  When Design Development Documents have been prepared by theArchitect and approved by the Owner, the Construction Manager shall prepare a ~~detailed~~design development estimate with supporting data for review by theArchitect and approval by the Owner. During the preparation of the ConstructionDocuments, the Construction Manager shall update and refine this estimate atappropriate intervals agreed to by the Owner, Architect and ConstructionManager.

 

2.1.5.4  If any estimate submitted to the Owner exceeds previously approvedestimate or the Owner’s budget, the Construction Manager shall make appropriaterecommendations to the Owner and Architect.

 

2.1.6     SUBCONTRACTORS AND SUPPLIERS

 

The Construction Manager shallseek to develop subcontractor interest in the Project and shall furnish to theOwner and Architect for their information a list of possible subcontractors,including suppliers who are to furnish materials or equipment fabricated to aspecial design, from whom proposals will be requested for each principalportion of the Work.  The Architect willpromptly reply in writing to the Construction Manager if the Architect or Ownerknow of any objection to such subcontractor or supplier.  The receipt of such list shall not requirethe Owner or Architect to investigate the qualifications of proposedsubcontractors or suppliers, nor shall it waive the right of the Owner orArchitect later to object to or reject any proposed subcontractor or supplier.

 

2.1.7     LONG-LEAD TIME ITEMS

 

The Construction Manager shallrecommend to the Owner and Architect a schedule for procurement of long-leadtime items which will constitute part of the Work as required to meet theProject schedule.  If such long-leadtime items are procured by the Owner, they shall be procured on terms andcondition acceptable to the Construction Manager.  Upon the Owner’s acceptance of the Construction Manager’sGuaranteed Maximum Price proposal, all contracts for such items shall be assignedby the Owner to the Construction Manager, who shall accept responsibility forsuch items as if procured by the Construction Manager.  The Construction Manager shall expedite thedelivery of long-lead time items.

 

2.1.8     EXTENT OF RESPONSIBILITY

 

The Construction Manager doesnot warrant or guarantee estimate and schedules except as may be included aspart  of the Guaranteed MaximumPrice.  Te recommendations and advice ofthe Construction Manager concerning design alternatives shall be subject to thereview and approval of the Owner and the Owner’s professional consultants.  It is not the Construction Manager’sresponsibility to ascertain that the Drawings and Specifications are inaccordance with applicable laws, statutes, ordinances, building codes, rulesand regulations.  However, if the ConstructionManager recognizes that portions of the Drawings and Specifications are atvariance therewith, the Construction Manager shall promptly notify theArchitect and Owner in writing.

 

2.1.9     EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION

 

The Construction Manager shallcomply with applicable laws, regulations and special requirements of theContract Documents regarding equal employment opportunity and affirmativeaction programs.

 

2.2        GUARANTEED MAXIMUM PRICE PROPOSAL ANDCONTRACT TIME

 

2.2.1                        ~~Whenthe Drawings and Specifications are sufficiently complete.~~When theconstruction drawings and specifications are 60% complete and the Owner’sintent is 100% identified, the Construction Manager shall propose aGuaranteed Maximum Price (“GMP”), which shall be the sum of theestimated Cost of the Work and the Construction Manager’s Fee.  As of the date execution hereof byConstruction Manager, which date is indicated on the signature page of thisAgreement the parties hereto agree that the GMP is $42,913,834.00.

 

2.2.2                        Asthe Drawings and Specifications may not be finished at the time the GuaranteedMaximum Price proposal is prepared, the Construction Manager shall provide inthe Guaranteed Maximum Price for further development of the Drawings andSpecifications by the Architect that is consistent with the Contract Documentsand reasonably inferable therefrom. Such further development does not include such things as changes inscope, systems, kinds and quality of materials, finishes or equipment, all ofwhich, if required, shall

 

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be incorporated by ChangeOrder; provided however, any charges to the Owner by the Architect, anysubcontractors or any consultants for additional labor services or materialscaused by or resulting from the act or omission of the Constructor, includingwithout limitation, charges for charges to the Work necessitated by any act oromission of the Constructor which do not meet the terms of the ContractDocuments, and any charges for remedial repairs which may be required as theresult thereof, or for excessive claims, or shop drawings or submittals beyondthe number reasonably anticipated on a project similar in scope shall be paidby the Constructor and not come from the Construction Manager’s Contingencyprovided that such claims shop drawings or submittals do not result from theArchitect’s errors and omissions.

 

2.2.3     The estimated Cost of the Work shall include the “ConstructionManager’s Contingency” which shall equal a sum equal to 5% of the GMPexcluding the Construction Manager’s Fee, and shall be for the ConstructionManager’s use to cover~~a~~~~sum established by the ConstructionManager for the Construction Manager’s exclusive use to cover costs arisingunder Subparagraph. 2.2.2 and other~~costs which are properly reimbursableas Cost of the Work but not the basis for a Change Order.  The use of any of the ConstructionManager’s Contingency shall be specifically set out in each monthly requisitionfor Owner’s and Architect’s review in accordance with the ContractDocuments.  Provided that theConstructor has given the Owner prior written notice of the Constructor’sIntent to take actions or to incur costs which will be charged to theConstruction Manager’s Contingency and the Owner has not objected to theproposed action or cost within seven (7) business days of receipt of theConstructor’s notice the Construction Manager’s Contingency may be applied inaccordance herewith and as proposed by the Construction Manager.

 

2.2.4     BASIS OF GUARANTEED MAXIMUM PRICE

 

The Construction Manager shallinclude with the Guaranteed Maximum Price proposal a written statement of itsbasis, which shall include:

 

.1               A list of Drawings and Specifications,including all addenda thereto and the Conditions of the Contract, which wereused in preparation of the Guaranteed Maximum Price proposal.

 

.2               A detailed list and description ofallowances and statement of their basis.

 

.3               A list of the clarifications andassumptions made by the Construction Manager in the preparation of theGuaranteed Maximum Price proposal to supplement the information contained inthe Drawings and Specifications.

 

.4               The proposed Guaranteed Maximum Price,including a statement of the estimated cost, consolidated and summarized bytrade categories, allowances contingency and other items (as well as thedetailed breakdown of the casino component of the Project and the hotelcomponent of the Project and the fees that comprise the Guaranteed MaximumPrice). ~~organized by trade categories, allowances, contingency, andother items and the fee that comprise the Guaranteed Maximum Price.~~

 

.5               The Date of Substantial Completion, aswell as all other dates,  upon whichthe proposed Guaranteed Maximum Price is based, and a schedule of theConstruction Documents issuance date upon which the date of substantialCompletion, and other benchmark dates are~~is~~ based.

 

2.2.5     The Construction Manager shall meet with the Owner and Architectto review the Guaranteed Maximum Price proposal and the written statement ofits basis. In the event that the Owner or Architect discovers anyinconsistencies or inaccuracies in the information presented, they shallpromptly notify the Construction Manager, who shall make appropriateadjustments to the Guaranteed Maximum Price proposal, its basis or both.

 

2.2.6     Unless the Owner accepts the Guaranteed Maximum Price proposalin writing on or before the date specified in the proposal for such acceptanceand so notifies the Construction Manager, the Guaranteed Maximum Price proposalshall not be effective without written acceptance by the Construction Manager.

 

2.2.7     Prior to the Owner’s acceptance of the Construction Manager’sGuaranteed Maximum Price proposal and issuance of a Notice to Proceed, theConstruction Manager shall not incur any cost to be reimbursed as part of theCost of the Work  except as the Ownermay specifically authorize in writing.

 

2.2.8     Upon acceptance by the Owner of the Guaranteed Maximum Priceproposal, the Guaranteed Maximum Price and its basis shall be set forth inAmendment No. 1.  The Guaranteed MaximumPrice shall be subject to additions and deductions by a change in the Work asprovided in the Contract Document and the date of Substantial Completion shallbe subject to adjustment as provided in the Contract Documents.

 

2.2.9     The Owner shall authorize and cause the Architect to

 

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revise the Drawings andSpecifications to the extent necessary to reflect the agreed-upon assumptionsand clarifications contained in Amendment No. 1.  Such revised Drawings and Specifications shall be furnished tothe Construction Manager in accordance with schedules agreed to by the Owner,Architect and Construction Manager.  TheConstruction Manager shall promptly notify the Architect and Owner if suchrevised Drawings and Specifications are inconsistent with agreed-uponassumptions and clarifications.

 

2.2.10   The Guaranteed Maximum Price shall include in the Cost of the Workonly those taxes which are enacted at the time the Guaranteed Maximum Price isestablished.

 

2.3        CONSTRUCTION PHASE

 

2.3.1     GENERAL

 

2.3.1.1  The Construction Phase shall commence on the earlier of :
| (1)    |   | the Owner’s  acceptance of the Construction Manager’s Guaranteed Maximum Price proposal  and issuance of a Notice to Proceed, or |   |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------|--------|
| (2)    |   | the Owner’s  first authorization to the Construction Manager to:                                                                      |   |
|   | (a)    | award a  subcontract, or                                                                                                                   |
|   | (b)    | undertake  construction Work with the Construction Manager’s own forces, or                                                           |
|   | (c)    | issue a  purchase order for material or equipment required for the work.                                                                   |
|        |        |                                                                                                                                            |        |  |

 

2.3.2     ADMINISTRATION

 

2.3.2.1  Those portions of the Work that the Construction Manager does notcustomarily perform with the Construction Manager’s own personnel shall beperformed under Manager’s own personnel shall be performed under subcontractsor by other appropriate agreements with the Construction Manager, asreviewed and approved by the Owner, in generally the form of subcontractannexed hereto and made a part hereof as Attachment II. For any contracts whichmay have been entered into by Owner prior to the execution hereof by Owner andConstruction Manager.  Owner shallassign such contracts to Construction Manager and Construction Manager shallassume such contracts in form of Assignment/Assumption Agreement annexed heretoand made made a part hereof as Attachment III.  ~~Construction Manager~~The Construction Manager shall obtainbids from Subcontractors and from suppliers of materials or equipmentfabricated to a special design for the Work from the list previously reviewedand, after analyzing such bids, shall deliver such bids to the Owner andArchitect.  The Owner shall thendetermine, with the advice and approval of the Construction Manager andsubject to the reasonable objection of the Architect, which bids will beaccepted.  The Owner may designatespecific persons or entities from whom the Construction Manager shall obtainbids; however, if the Guaranteed Maximum Price has been established, the Ownermay not prohibit the Construction Manager from obtaining bids from otherqualified bidders.  The ~~ConstructionManager~~Construction Manager shall not be required to~~be required to~~contractwith anyone to whom the Construction Manager has reasonable objection.  The Construction Manager understands andagrees that it must enter into such contracts with subcontractors and suppliersas is necessary to complete the Work. The Construction Manager may self-perform when competent qualifiedtrades are unavailable or their costs are such that it puts the GuaranteedMaximum Price in jeopardy.  In eithercase the Owner must approve any self performance by the ConstructionManager.  The Constructor shall beresponsible for the quality and quantities of its Work and the Work of allsubcontractors.  The Constructor shallmaintain a competent full-time staff at the Site for coordinating andinspecting the quality and quantity of the Work.  The Owner shall have the right to require the Constructor and anyof the subcontractors to replace any on-site personnel that it findsobjectionable with other staff available to the Constructor and approved by theOwner.

 

2.3.2.2  If the Guaranteed Maximum Price has been established and a specificbidder among those whose bids are delivered by the Construction Manager to theOwner and Architect (1) is recommended to the Owner by the ConstructionManager; (2) is qualified to perform that portion of the Work; (3) hassubmitted a bid which conforms to the requirements of the Contract Documentswithout reservations or exceptions, but the Owner requires that another bid beaccepted, then the Construction Manager may require that a change in the Workbe issued to adjust the Contract Time and the Guaranteed Maximum Price by thedifference between the bid of the person or entity recommended to the Owner bythe Construction Manager and the amount of the subcontract or other agreementactually signed with the person or entity designated by the Owner.

 

2.3.2.3  Subcontracts and agreements with suppliersfurnishing materials or equipment fabricated to a special design shall conformto the payment provisions of Subparagraphs 7.1.8 and 7.1.9 and shall not beawarded on the basis of cost plus a fee without the prior consent of the Owner.~~2.3.2.3  Subcontracts and agreementswith suppliers furnishing materials or equipment fabricated to a special designshall conform to the payment provisions of Subparagraphs 7.1.8 and 7.1.9 andshall not be awarded on the basis of cost plus a fee without the prior consentof the Owner~~

 

2.3.2.4  The Construction Manager shall schedule and conduct meeting atwhich the Owner, Architect, Construction Manager and appropriate Subcontractorscan discuss the status of the Work.  TheConstruction Manager shall prepare and promptly distribute meeting minutes whichshall not be

 

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distributed toany participant or third party until approved by the Owner.

 

2.3.2.5  Promptly after the Owner’s acceptance of the Guaranteed MaximumPrice proposal, the Construction Manager shall prepare a schedule in accordancewith Paragraph 3.10 of AIA Document A201, attached as Attachment I,including the Owner’s occupancy requirements.

 

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

 

2.3.2.7  The Construction Manager shall develop a system of cost control forthe Work, including regular monitoring of actual costs for activities inprogress and estimates for uncompleted tasks and proposed changes.  The Construction Manager shall identifyvariances between actual and estimated costs and report the variances to theOwner and Architect at regular intervals.

 

2.3.4     The Constructor shall perform the Work atthe most favorable cost to the Owner, but in no event shall it exceed the GMPapproved by the Owner and Constructor.

 

2.4        PROFESSIONAL SERVICES

 

The Construction Manager shallnot be required to provide professional services which constitute the practiceof architecture or engineering unless such services are specifically requiredby the Contract Documents for a portion of the Work or unless the ConstructionManager has specifically agreed in writing to provide such services.  In such event, the Construction Manager shallcause such services to be performed by appropriately licensed professionals.

 

2.5        UNSAFE MATERIALS

 

In addition to the provisionsof ~~Paragraph 10~~Article 10 in ALA Document A201, attached asAttachment 1, if reasonable precautions will be inadequate to preventforeseeable bodily injury or death to persons resulting from a material orsubstance encountered but not created on the site by the Construction Manager,the Construction Manager shall, upon recognizing the condition, immediatelystop Work in the affected in writing. The Owner, Construction Manager and Architect shall then proceed in thesame manner described in ~~Subparagraph 10.1.2~~ Article 10 ofAIA Document A201, attached as Attachment 1.  The Owner shall be responsible for obtaining the services of alicensed laboratory to verify the presence or absence of the material orsubstance reported by the Construction Manager and, in the event such materialor substance is found to be present, to verify that it has been renderedharmless.  Unless otherwise required bythe Contract Documents, the Owner shall furnish in writing to the ConstructionManager and Architect the names and qualifications of persons or entities whoare to perform tests verifying the presence or absence of such material orsubstance or who are to perform the task of removal or safe containment of suchmaterial or substance.  Such servicesshall be performed for the Construction Manager as a subcontractor thereofpursuant to a Change Order, if the Construction Manager has reasonableobjection to the persons or entities proposed by the Owner, Owner shall proposeanother to whom the Construction Manager has no reasonable objection.  ~~The Construction Manager andArchitect will promptly reply to the Owner in writing stating whether or noteither has reasonable objection to the persons or entities proposed by theOwner.  If either the ConstructionManager or Architect has an objection to a person or entity proposed by theOwner, the Owner shall propose another to whom the Construction Manager andArchitect have no reasonable objection.~~

 

ARTICLE 3

OWNER’S RESPONSIBILITIES

 

3.1        INFORMATION AND SERVICES

 

3.1.1     The Owner shall provide full information in a timely mannerregarding the requirements of the Project, including a program which sets forththe Owner’s objectives, constraints and criteria, including space requirementsand relationships, flexibility and expandability requirements, specialequipment and systems, and site requirements.

 

3.1.2     The Owner, upon written request from the Construction Manager,shall furnish evidence of Project financing prior to the start of theConstruction Phase and from time to time thereafter as the Construction Managermay request.  Furnishing of suchevidence shall be a condition precedent to commencement or continuation of theWork.

 

3.1.3     The Owner shall establish and the Owner shall update anoverall budget for the Project, and such budget for the Project shall bemaintained by the Owner, including but not limited to breakdowns in the budgetfor hard costs, soft costs, contingencies for changes in the Work, and othercosts which are the responsibility of Owner. The Construction Manager shall prepare and maintain a GMP budget, basedon consultation with the ~~Construction Manager~~Owner andArchitect. ~~which shall include contingencies for changes in the Work andother costs which are the responsibility of the Owner.~~

 

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3.1.4     STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS

 

In the Preconstruction Phase,the Owner shall furnish the following with reasonable promptness and at theOwner’s expense, and the Construction Manager shall be entitled to rely uponthe accuracy of any such information, reports, surveys, drawings and testsdescribed in Clauses 3.1.4.1 through 3.1.4.4, except to the extent that theConstruction Manager knows of any inaccuracy:

 

3.1.4.1  Reports, surveys, drawings and tests concerning the conditions ofthe site which are required by law.

 

3.1.4.2  Surveys describing physical characteristics, legal limitations andutility locations for the site of the Project, and a written legal descriptionof the site.  The surveys and legalinformation shall include, as applicable, grades and lines of streets, alleys,pavements and adjoining property and structures; adjacent drainage; right-of-way,restrictions, easements, encroachments, zoning, deed restrictions, boundariesand contours of the site; locations, dimensions and necessary data pertainingto existing buildings, other improvements and trees; and information concerningavailable utility services and lines, both public and private, above and belowgrade, including inverts and depths. All information on the survey shall be referenced to a projectbenchmark.

 

3.1.4.3  The services of geotechnical engineers when such services arerequested by the Construction Manager. Such services may include but are not limited to test borings, testpits, determinations of soil bearing values, percolation tests, evaluations ofhazardous materials, ground corrosion and resistivity tests, includingnecessary operations for anticipating subsoil conditions, with reports andappropriate professional recommendations.

 

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

 

3.1.4.5  The services of other consultants when such services are reasonablyrequired by the scope of the Project and are requested by the ConstructionManager.

 

3.2        OWNER’S DESIGNATED REPRESENTATIVE

 

The Owner shall designate inwriting a representative who shall have express authority to bind the Ownerwith respect to all matters requiring the Owner’s approval orauthorization.  This representativeshall have the authority to make decisions on behalf of the Owner concerningestimates and schedules, construction budgets, and changes in the Work, andshall render such decisions promptly and furnish information expeditiously, soas to avoid unreasonable delay in the services or Work of the Construction Manager.  The Owner’s Representative until andunless the Owner designates otherwise is hereby designated to be Roy Olsen,except for purposes of executing Change Orders or Amendments to this Agreementwhich Change Orders and Amendments shall be executed by Mr. Michael Corbinor any statutory officer of Owner.

 

3.3        ARCHITECT

 

The Owner shall retain anArchitect to provide the Basic Services, including normal structural,mechanical and electrical engineering services, other than cost estimatingservices, described in the editions of AIA Document B141 current as of the dateof this Agreement.  The Owner shallauthorize and cause the Architect to provide those Additional Servicesdescribed in AIA Document B141 requested by the Construction Manager which mustnecessarily be provided by the Architect for the Preconstruction andConstruction Phases of the Work.  Suchservices shall be provided in accordance with time schedules agreed to by theOwner, Architect and Construction Manager. Upon request of the Construction Manager, the Owner shall furnish to theConstruction Manager a copy of the Owner’s Agreement with the Architect, fromwhich compensation provision may be deleted.

 

3.4        LEGAL REQUIREMENTS

 

The Owner shall determine andadvise the Architect and Construction Manager if any special legal requirementsrelating specifically to the Project which differ from those generallyapplicable to construction in the jurisdiction of the Project.  The Owner shall furnish such legal servicesas are necessary to provide the information and services required underParagraph 3.1.

 

ARTICLE 4

COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES

 

The Owner shall compensate andmake payments to the Construction Manager for Preconstruction Phase services asfollows:

 

4.1        COMPENSATION

 

4.1.1     ~~For the services described in Paragraphs 2.1 and 2.2 theConstruction Manager’s compensation shall be calculated as follows~~: TheConstruction Manager will be compensated for the services described inParagraphs 2.1 and 2.3 which services include without limitation, thefollowing:

*(State basis of compensation, whether a stipulated sum, multiple ofDirect Personnel Expense, actual cost, etc., Include a statement ofreimbursable cost items as applicable.)*

 

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(i)      Preliminarily evaluation of the Owner’sprogram schedule and construction budget and requirements:

(ii)     Prepare preliminary costestimates:

(iii)    Provide cost evaluations,value engineering and use of alternative materials and systems:

(iv)   Prepare proposed Projectschedule:

(v)    Monitor the estimates ofthe costs as they relate to the Project budget and make recommendations formeeting budgetary restraints:

(vi)   Review and design documentsduring their development by the Architect and advise the Owner with respect toissues such as constructability, selection of materials, building systems andequipment and time and cost considerations:

(vii)  Prepare a job safetyprogram:

(viii) Coordinate requiredproperty surveys, testing and inspections necessary to properly plan theProject:

(ix)    Assist the Owner inselecting and retaining additional professional and consulting services wherenecessary or appropriate: and

(x)     Provide the Owner with theGuaranteed Maximum Price described in Paragraph 2.2 of this Agreement.

 

4.1.2     ~~Compensation for Preconstruction Phase services shall beequitably adjusted if such services extend beyond from the date of thisAgreement or if the originally contemplated scope of services is significantlymodified~~Compensation for Preconstruction Phase Services shall be as setforth in the GMP Presentation.

 

4.1.3     ~~If compensation is based on a multiple of Direct PersonalExpense, Direct Personnel Expense is defined as the direct salaries of theConstruction Manager’s personnel engaged in the Project and the portion of thecost of their mandatory and customary contributions and benefits relatedthereto, such as employment taxes and other statutory employee benefits,insurance, sick leave, holidays, vacations, pensions and similar contributionsand benefits~~ Preconstruction Phase Services shall be performed andbilled on a cost basis as set forth in the GMP Presentation.

 

4.1.4     The Owner will reimburse the Construction Manager for thefollowing expenses incurred to third parties: (i) up to a maximum of $15,000payable to Dick Baer Associates for consulting fees Incurred in preparing aparallel estimate and (ii) up to a maximum $25,000 payable to a casino costconsultant mutually aceptable to the Owner and the Construction Manager for thedevelopment of casino theme cost allowances. Such amounts shall be included in the GMP Presentation.

 

4.1.5     Reimbursable expenses to the Construction Manager forPreconstruction Phase Services, shall include long-distance telephone charges,out-of-town travel and out-of-town mileage (travel and mileage beyond a radiusof 25 miles from the Construction Manager’s main office), printing and otherout-of-pocket expenses, and shall be billed to Owner at cost to theConstruction Manager.  Such amountsshall be included in the GMP Presentation.

 

4.2        PAYMENTS

 

4.2.1     ~~Payments shall be made monthly following presentation of theConstruction Manager’s invoice and, where applicable, shall be in proportion toservices performed~~Payments shall be made within thirty (30) days afterinvoicing by the Construction Manager for Preconstruction Phase Services rendered in the manner reasonablyacceptable to Owner.  No retainage willbe withheld on Preconstruction Services.

 

4.2.2     Payments are due and payable forty-five (45) days formthe date the Construction Manager’s invoice is received by the Owner.  Amounts unpaid after the date on whichpayment is due shall bear interest at the rate entered below, or in the absencethereof, at the legal rate prevailing from time to time at the place where theProject is located.

*(Insert rate of interest agreed upon.)*

The “primerate” of interest as reported in the Wall Street Journal from time to time.

 

*(Usually laws and requirements under the Federal Truth in Lending Act,similar state and local consumer credit laws and other regulations at theOwner’s and Construction Manager’s principal places of business, the locationof the Project and elsewhere may affect the validity of this provision. Legaladvice should be obtained with respect to deletions or modifications, and alsoregarding requirements such as written disclosures or waivers)*

 

ARTICLE 5

COMPENSATION FOR CONSTRUCTION PHASE SERVICES

 

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

 

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5.1        COMPENSATION

 

5.1.1     For the Construction Manager’s performance of the Work asdescribed in Paragraph 2.3, the Owner shall pay the Construction Manager incurrent funds the Contract Sum consisting of the Cost of the Work as defined inArticle 7 and the Construction Manager’s Fee determined as follows:

*(State a lump sum, percentage of actual Cost of the Work or otherprovision for determining the Construction Manager’s Fee, and explain how theConstruction Manager’s Fee is to be adjusted for changes in the Work.)*

ConstructionManager’s Fee shall be Five Percent (5%) of the final adjusted “Cost of theWork” as defined in Article 6.

 

5.2        GUARANTEED MAXIMUM PRICE

 

5.2.1     The sum of the Cost of the Work and the Construction Manager’sFee are guaranteed by the Construction Manager not to exceed the amountprovided in Amendment No. 1, subject to additions and deductions by changes inthe Work as provided in the Contract Documents.  Such maximum sum as adjusted by approved changes in the Work isreferred to in the Contract Document as the Guaranteed Maximum Price or GMP. Costs which would cause theGuaranteed Maximum Price to be exceeded shall be paid by the ConstructionManager without reimbursement by the Owner.

*~~(Insert specific provisions if the Construction Manager is toparticipate in any savings.)~~*

 

5.3        CHANGES IN THE WORK

 

5.3.1     Adjustments to the Guaranteed Maximum Price on account ofchanges in the Work subsequent to the execution of Amendment No. 1 may be determinedby any of the methods listed in Subparagraph 7.3.3 of AIA Document A201 attachedas Attachment 1.

 

5.3.2     In calculating adjustments to subcontracts (except those awardedwith the ~~Owner’s~~Owner’s prior consent on the basis of cost plusa fee), the terms “cost” and “fee” as used in Clause 7.3.3.3 of AIA DocumentA201 attached as Attachment 1, and the terms “costs” and “a reasonableallowance for overhead and profit” as used in Subparagraph 7.3.6 of AIADocument A201, attached as Attachment I, shall have the meaningsassigned to them in that document and shall not be modified by this Article5.  Adjustments to subcontracts awardedwith the ~~Owner’s~~ Owner’s prior consent on the basis of cost plusa fee shall be calculated in accordance with the terms of those subcontracts.

 

5.3.3     In calculating adjustments to the Contract, the terms “cost” and“costs” as used in the above-referenced provisions of AIA Document A201 attachedas Attachment 1.  shall mean theCost of the Work as defined in Article 6 of this Agreement and the terms “and areasonable allowance for” overhead and profit” shall be limited to ~~mean~~the Construction Manager’s Fee of 5% of the Cost of the Work asdefined in subparagraph 5.1.1 of this Agreement.

 

5.3.4     If no specific provision is made in Subparagraph 5.1.1 foradjustment of the Construction Manager’s Fee in the case of changes in theWork, or if the extent of such changes is such, in the aggregate, thatapplication of the adjustment provisions of Subparagraph 5.1.1 will causesubstantial inequity to the Owner or Construction Manager, the ConstructionManager’s Fee shall be equitably adjusted on the basis of the fee establishedfor the original Work.

 

ARTICLE 6

COST OF THE WORK OF CONSTRUCTION PHASE

 

6.1        COSTS TO BE REIMBURSED

 

6.1.1     The term “Cost of the Work” shall mean costs necessarilyincurred by the ~~Construction Manager~~Constructor in the properperformance of the ~~Work.~~Work. Such costs shall be at rates nothigher than those customarily paid at the place of the Project except with priorconsent of the ~~Owner~~Owner.  The Cost of the Work shall include only the items set Forth inthis Article 6,  The Cost of the Workshall be subject to prior mutual agreement of the Owner and the Constructor.

 

6.1.2     LABOR COSTS

 

.1               Wages of construction workers directlyemployed by the Construction Manager to perform the construction of the Work atthe site or, with the Owner’s agreement, at off-site workshops.

 

.2               Wages or salaries of the ConstructionManager’s supervisory and administrative personnel when stationed at the sitewith

 

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the Owner’sagreement as identified in Paragraph 11.2 hereof.

*(If it is intended that the wages or salariesof certain personnel stationed at the Construction Manager’s Principal officeor offices other than the site office shall be included in the cost of theWork, such personnel shall be identified below.)*

 

~~.3~~            ~~Wages and salaries of the ConstructionManager’s supervisory or administrative personnel engaged, at factories, workshopsor on the road, in expediting the production or transportation of materials orequipment required for the Work, but only for that portion of their timerequired for the Work.~~

 

~~.4~~               ~~Costs paid or incurred by theConstruction Manager for taxes, insurance, contributions, assessments andbenefits required by law or collective bargaining agreements, and, forpersonnel not covered by such agreements, customary benefits such as sickleave, medical and health benefits, holidays, vacations and pensions, providedthat such costs are based on wages and salaries included in the Cost of theWork under Clauses 6.1.2.1 through 6.1.2.3.~~

 

6.1.3     SUBCONTRACT COSTS

 

Payments made by theConstruction Manager to Subcontractors shall be in accordance with therequirements of the Article 7 hereof ~~subcontracts.~~

 

6.1.4     COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETEDCONSTRUCTION

 

.1                Costs, including transportation, ofmaterials and equipment incorporated or to be incorporated in the completedconstruction.

 

.2                Costs of materials described in thepreceding, Clause 6.1.4.1 in excess of those actually installed but required toprovide reasonable allowance for waste and for spoilage. Unused excessmaterials, if any, shall be handed over to the Owner at the completion of theWork or, at the Owner’s option, shall be sold by the Construction Manager,amounts realized, if any from such sales shall be credited to the Owner as adeduction from the Cost of the Work.

 

6.1.5     COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES ANDRELATED ITEMS

 

.1               Costs, including transportation,installation, maintenance, dismantling and removal of materials, supplies,temporary facilities, machinery, equipment, and hand tools not customarilyowned by the construction workers, which are provided by the ConstructionManager at the site and fully consumed in the performance of the Work; and costless salvage value or such items if not fully consumed, whether sold to othersor retained by the Construction Manager. Cost for items previously used by theConstruction Manager shall mean fair market value.

 

.2               Rental charges for temporary facilities,machinery, equipment, and hand tools not customarily owned by the constructionworkers, which are provided by the Construction Manager at the site, whetherrented from the Construction Manager or others, and costs of transportation,installation, minor repairs and replacements, dismantling and removal thereof.Rates and quantities of equipments rented shall be subject to the Owner’s priorapproval.

 

.3               Costs of removal of debris from thesite.

 

.4               Reproduction costs, costs of telegrams,facsimile transmissions and long-distance telephone calls, postage and expressdelivery charges, telephone service at the site and reasonable petty cashexpenses of the site office.

 

.5               That portion of the reasonable traveland subsistence expenses of the Construction Manager’s personnel incurred whiletraveling in discharge of duties connected with the Work.

 

6.1.6     MISCELLANEOUS COSTS

 

.1               That portion directly attributable tothis Contract of premiums for insurance and bonds.

*(If charges for self insurance are to beincluded, specify the basis for reimbursement.)*

 

.2               Sales, use or similar taxes imposed by agovernmental authority which are related to the Work and for which theConstruction Manager is liable.

 

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.3               Fees and assessments for the buildingpermit and for other permits, licenses and inspections for which theConstruction Manager is required by the Contract Documents to pay.

 

.4               Fees of testing laboratories for testsrequired by the Contract Documents, except those related to nonconforming Workother than that for which payment is permitted by Clause 6.1.8.2.

 

.5               Royalties and license fees paid for theuse of a particular design, process or product required by the ContractDocuments; ~~the cost of defending suits or claims for infringement of patentor other intellectual property rights arising from such requirement by theContract Documents; payments made in accordance with the legal judgmentsagainst the Construction Manager resulting from such suits or claims andpayments of settlements made with the Owner’s consent;~~ provided, however,that such costs of legal defenses, judgments and settlements shall not be includedin the calculation of the Construction Manager’s Fee or the Guaranteed MaximumPrice and provided that such royalties, fees and costs are not excluded by thelast sentence of Subparagraph 3.17.1 of AIA Document A201, attached asAttachment I, or other provisions of the Contract Documents.

 

.6               Data processing costs related to theWork.

 

.7               Deposits lost for causes other than theConstruction Manager’s negligence or failure to fulfill a specificresponsibility to the Owner set forth in this Agreement.

 

.8               Legal, mediation and arbitration costs,other than those arising from disputes between the Owner and ConstructionManager, reasonably incurred by the Construction Manager in the performance ofthe Work and with the Owner’s written permission, which permission shall not beunreasonably withheld.

 

.9               Expenses incurred in accordance with theConstruction Manager’s standard personnel policy for relocation and temporaryliving allowances of personnel required for the Work, in case it is necessaryto relocate such personnel from distant locations.

 

6.1.7     OTHER COSTS

 

.1               Other costs incurred in the performanceof the Work if and to the extent approved in advance in writing by the Owner.

 

6.1.8     EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK

 

The cost of the Work shall alsoinclude costs described in Subparagraph 6.1.1 which are incurred by theConstruction Manager.

 

.1               In taking action to prevent threateneddamage, injury or loss in case of an emergency affecting the safety of personsand property, as provided in Paragraph ~~10.3~~ 10.6 of AIA DocumentA201 attached as Attachment I.

 

.2               In repairing or correcting damaged ornonconforming Work executed by the Construction Manager or the ConstructionManager’s Subcontractors or suppliers, provided that such damaged ornonconforming Work was not caused by the negligence or failure to fulfill aspecific responsibility to the Owner set forth in this Agreement of theConstruction Manager or the Construction Manager’s foremen, engineers orsuperintendents, or other supervisory, administrative or managerial personnelof the Construction Manager, or the failure of the Construction Manager’spersonnel to supervise adequately the Work of the Subcontractors or suppliers,and only to the extent that the cost of repair of correction is not recoverableby the Construction Manager from insurance, Subcontractors or suppliers.

 

6.1.9     The costs described in Subparagraphs 6.1.1 through 6.1.8 shallbe included in the Cost of the Work notwithstanding any provision of AIADocument A201, attached as Attachment I, or other Conditions of theContract which may require the Construction Manager to pay such costs, unlesssuch costs are excluded by the provisions of Paragraph 6.2.

 

6.2        COSTS NOT TO BE REIMBURSED

 

6.2.1     The Cost of the Work shall not include:

 

.1               Salaries and other compensation of theConstruction Manager’s personnel stationed at the Construction Manager’s

 

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principaloffice or offices other than the S~~s~~ite office, except as otherwiseincluded in the GMP Presentation.  ~~exceptas specifically provided in Clauses 6.1.2.2 and 6.1.2.3.~~

 

.2               Expenses of the Construction Manager’sprincipal office and offices other than the S~~s~~ite office exceptas specifically provided in Paragraph 6.1.

 

.3               Overhead and general expenses, except asmay be expressly included in Paragraph 6.1.

 

.4               The Construction Manager’s capitalexpenses, including interest on the Construction Manager’s capital employed forthe Work.

 

.5               Rental costs of machinery and equipment,except as specifically provided in Subparagraph 6.1.5.2.

 

.6               Except as provided in Clause 6.1.8.2,costs due to the negligence of the Construction Manager or to the failure ofthe Construction Manager to fulfill a specific responsibility to the Owner setforth in this Agreement.

 

.7               ~~Costs incurred in the performance ofPreconstruction Phase Services~~.

 

.8               Except as provided in Clause 6.1.7.1,any cost not specifically and expressly described in Paragraph 6.1.

 

.9               Costs which would cause the GuaranteedMaximum Price to be exceeded.

 

6.3        DISCOUNTS, REBATES,~~AND~~ REFUNDS, ANDSAVINGS.

 

6.3.1     Cash discounts obtained on payments by theConstruction Manager shall accrue to the Owner if (1) before making the paymentthe Construction Manager included them in an Application for Payment andreceived payment therefor from the Owner or (2) the Owner has deposited fundswith the Construction Manager with which to make payments: otherwise, cashdiscounts shall accrue to the Construction Manager, Savings on allowances whichare hereafter set forth in Amendment No. 1 hereto, trade discounts, rebates,refunds and amounts received from sales of surplus materials and equipmentsshall accrue 100% to the Owner, and the Construction Manager shall makeprovisions so that such savings can be secured.

 

~~6.3.1~~     ~~Cash discounts obtained on payments bythe Construction Manager shall accrue to the Owner if (1) before making thepayment, the Construction Manager included them in an Application for Paymentand received payment therefor from the Owner or (2) the Owner has depositedfunds with the Construction Manager with which to make payments; otherwise,cash discounts shall accrue to the Construction Manager, trade discounts,rebates, refunds and amounts received from sales of surplus materials andequipment shall accrue to the Owner, and the Construction Manager shall makeprovisions so that they can be secured.~~

 

6.3.2     Amounts which accrue to the Owner inaccordance with the provisions of Subparagraph 6.3.1 shall be credited to the Owneras a deduction from the Cost of the Work.

 

6.3.3     Owner and Construction Manager agree thatif the Project is completed for less than the GMP as finally determined afterall scope of Work changes, that the first $1,650,000.00 in savings shall bepaid, 75% to Owner and 25% to Construction Manager, and that all savings inexcess of $1,650,000.00 shall be paid 75% to Construction Manager and 25% toOwner. Additionally, as to furniture, fixtures, and equipment to be supplied byOwner (“FF&E”), which Owner instead elects to have Construction Managerprovide any savings compared to Owner’s budget attached hereto and made a parthereof as Attachment VII, will be shared on a per line item basis, 25% toConstruction Manager and 75% to Owner. No adjustments to the sharing formulafor such FF&E shall be made if the actual cost of such item of FF&Eexceeds such line item on the Owner’s budget attached as Attachment VII.

 

~~6.3.2~~     ~~Amounts which accrue to the Owner inaccordance with the provisions of Subparagraph 6.3.1 shall be credited to theOwner as a deduction from the Cost of the Work.~~

 

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6.4        ACCOUNTING RECORDS

 

6.4.1     The Construction Manager shall keep full and detailed accountsand exercise such controls as may be necessary for proper financial managementunder this Contract; the accounting and control systems shall be satisfactoryto the Owner. The Owner and the Owner’s accountants shall be afforded access tothe Construction Manager’s records, books, correspondence, instructions,drawings, receipts, subcontracts, purchase orders, vouchers, memoranda, andother data relating to this Project, and the Construction Manager shallpreserve these for a period of three years after final payment, or for suchlonger period as may be required by law.

 

ARTICLE 7

CONSTRUCTION PHASE

 

7.1        PROGRESS PAYMENTS

 

7.1.1     Based upon Application for Payment ~~submitted to~~ preparedfor the Architect and the Owner’s Representative by the ConstructionManager and Certificates for Payment issued by the Architect, upon approvalby the Owner’s Representative and receipt of lien waiversfrom subcontractorsand suppliers, the Owner shall make progress payments on account of theContract Sum to the Construction Manager as provided below and elsewhere in theContract Documents.

 

7.1.2     The period covered by each Application for Payment shall be onecalendar month ending on the last day of the month. ~~or as follows.~~

 

7.1.3     Provided an Application for Payment is received by the ~~Architect~~Owner’s Representative not later than the fifth (5th) day of amonth, the Owner shall make progress payments to the ConstructionManager~~to the Construction Manager~~not later than the fifteenth(15th) day of the month. If an Application for Payment is received by the ~~Architect~~Owner’s Representative after the application date fixed above,payment shall be made by the Owner not later than thirty (30) days afterthe ~~Architect~~Owner’s Representative receives the Application forPayment.

 

7.1.4     With each Application for Payment, the Construction Managershall submit payrolls, petty cash accounts, receipted invoices or invoices withcheck vouchers attached, and any other evidence required by the Owner orArchitect to demonstrate that cash disbursements already made by the ConstructionManager on account  of the Cost of theWork equal or exceed (1) progress payments already received by the ConstructionManager; less (2) that portion of those payments attributable to theConstruction Manager’s fees; plus (3) payrolls for the period covered by thepresent Application for Payment.

 

7.1.5     Each Application for Payment shall be based upon the mostrecent schedule of values submitted by the Construction Manager~~mostrecent schedule of values submitted by the Construction Manager~~ inaccordance with the Contract Documents. The Construction Manager shallinclude in such application for payment its General Conditions costs and feeearned during that period. The schedule of values shall allocate the entireGuaranteed Maximum Price among the various portions of the Work, except theConstruction Manager’s fee shall be shown as a separate item. The schedule ofvalues shall provide complete backup data to substantiate its accuracy, and bein such form as the Architect and Owner may require. Such schedule, unlessobjected to by the Architect or the Owner, shall be used as a basis forreviewing the Construction Manager’s applications for payment.  ~~The schedule of values shall allocate theentire Guaranteed Maximum Price among the various portions of the Work exceptthat the Construction Manager’s Fee shall be shown as a single separateitem.  The schedule of values shall beprepared in such form and supported by such data to substantiate its accuracyas the Architect may require.  Thisschedule, unless objected to by the Architect, shall be used as a basis forreviewing the Construction Manager’s Applications for Payment.~~

 

7.1.6     Applications for Payment shall show the percentage completion ofeach portion of the Work as of the end of the period covered by the Applicationfor Payment.  The percentage completionshall be the lesser of (1) the percentage of that portion of the Work which hasactually been completed or (2) the percentage obtained by dividing (a) theexpense which has actually been incurred by the ~~Construction Manager~~ConstructionManager on account of that portion of the Work,~~for which theConstruction Manager has made or intends to make actual payment prior to thenext Application for Payment~~ by (b) the share of the Guaranteed MaximumPrice allocated to that portion of the Work in the schedule of values.

 

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

 

.1               Take that portion of the GuaranteedMaximum Price properly allocable to completed Work as determined by multiplyingthe percentage completion of each portion of the Work by the share of theGuaranteed Maximum Price allocated to that portion of the Work in the scheduleof values.  Pending final determinationof cost to the Owner of changes in the Work,

 

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amounts not indispute may be included as provided in Subparagraph 7.3.7 of AIA Document A201,attached as Attachment I, even though the Guaranteed Maximum Price has notyet been adjusted by Change Order.

 

.2               Add that portion of the GuaranteedMaximum Price properly allocable to materials and equipment delivered andsuitably stored at the site for subsequent incorporation in the Work or, ifapproved in advance by the Owner, suitably stored off the site at a locationagreed upon in writing.

 

.3               Add the Construction Manager’s Fee, lessretainage of zero percent (0%). The Construction Manager’s Fee shall be computed upon the Cost of theWork described in the two preceding Clauses at the rate stated in Subparagraph5.1.1. ~~or, if the Construction Manager’s Fee is stated as a fixed sum inthat Subparagraph, shall be an amount which bears the same ratio to that fixedsum Fee as the Cost of the Work in the two preceding Clauses bears to areasonable estimate of the probable Cost of the Work upon its completion.~~

 

.4               Subtract the aggregate of previouspayments made by the Owner.

 

.5               Subtract the shortfall, if any,indicated by the Construction Manager in the documentation required bySubparagraph 7.1.4 to substantiate prior Applications for Payment, or resultingfrom errors subsequently discovered by the Owner’s accountants in suchdocumentation.

 

.6               Subtract amounts, if any, for which theArchitect has withheld or nullified a Certificate for Payment as provided inParagraph 9.5 of AIA Document A201 attached as Attachment I.

 

7.1.8     Except with the Owner’s prior approval, payments toSubcontractors shall be subject to retention of not less than tenpercent (10%) until Substantial Completion of each Subcontractor’srespective portion of the Work.  At thetime of Substantial Completion of a Subcontractor’s respective portion of theWork, the retainage may be reduced to five percent (5%), with such retainagebeing paid when such Subcontractor’s portion of the Work is fully completed.  The Owner and the Construction Manager shallagree upon a mutually acceptable procedure for review and approval of paymentsand retention for subcontracts.

 

7.1.9     Except with the Owner’s prior approval, the ConstructionManager shall not~~Except with the Owner’s prior approval theConstruction Manager shall not~~ make advance payments to suppliers formaterials or equipment which have not been delivered and stored at the site.

 

7.1.10   In taking action on the Construction Manager’s Applications forPayment, the Architect shall be entitled to rely on the accuracy andcompleteness of the information furnished by the Construction Manager and shallnot be deemed to represent that the Architect has made a detailed examination,audit or arithmetic verification of the documentation submitted in accordancewith Subparagraph 7.1.4 or other supporting data; that the Architect has madeexhaustive or continuous on-site inspections or that the Architect has madeexaminations to ascertain how or for what purposes the Construction Manager hasused amounts previously paid on account of the Contract.  Such examinations, audits and verifications,if required by the Owner, will be performed by the Owner’ accountants acting inthe sole interest of the Owner.

 

7.2        FINALPAYMENT

 

7.2.1     Final payment shall be made by the Owner to the ConstructionManager when: (1) the Contract has been fully performed by the ConstructionManager; ~~except for the Construction Manager’s responsibility to correctnonconforming Work, as provided in Subparagraph 12.2.2 of AIA Document A201,and to satisfy other requirements, if any, which necessarily survive finalpayment;~~ (2) a final Application for Payment and a final accounting for theCost of the Work have been submitted by the Construction Manager and reviewedby the Owner’s accountants; ~~and~~ (3) a final Certificate for Payment hasthen been issued by the Architect; (4) three sets of as-built drawings ofthe Project have been completed and furnished to the Owner: (5) a finalnon-contingent certificate of occupancy for the completion of the Project hasbeen issued by the municipalities having jurisdiction over the Project anddelivered to the Owner; (6) all operation and maintenance manuals andwarranties for any materials and improvements incorporated into the Projecthave been delivered to the Owner; and (7) final lien waivers and affidavits ofpayment have been delivered by all Subcontractors and by the ConstructionManager to the Owner, in form reasonably acceptable to Owner.  Such~~such~~final payment shall bemade by the Owner not more than 30 days after the receipt by Owner of thelast of through 7 above.~~issuance of the Architect’s final Certificatefor Payment or as follows:~~

 

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7.2.2     The amount of the final payment shall be calculated as follows:

 

.1               Take the sum of the Cost of the Worksubstantiated by the Construction Manager’s final accounting and theConstruction Manager’s Fee; but not more than the Guaranteed Maximum Price.

 

.2               Subtract amounts, if any, for which theArchitect withholds, in whole or in part, a final Certificate for Payment asprovided in Subparagraph 9.5.1 of AIA Document A201 or other provisions of theContract Documents.

 

.3               Subtract the aggregate of previouspayments made by the Owner.

 

If the aggregate of previouspayments made by the Owner exceeds the amount due the Construction Manager, theConstruction Manager shall reimburse the difference to the Owner withinthirty (30) days.

 

7.2.3     The Owner’s accountants will review and report in writing on theConstruction Manager’s final accounting within 30 days after delivery of thefinal accounting to the Architect by the Construction Manager.  Based upon such Cost of the Work as theOwner’s accountants report to be substantiated by the Construction Manager’sfinal accounting, and provided the other conditions of Subparagraph 7.2.1 havebeen met, the Architect will, within seven days after receipt of the writtenreport of the Owner’s accountants, either issue to the Owner a finalCertificate for Payment with a copy to the Construction Manager, or notify theConstruction Manager and Owner in writing of the Architect’s reasons forwithholding a certificate as provided in Subparagraph 9.5.1 of AIA DocumentA201, attached as Attachment I. The time periods stated in this Paragraph 7.2 supersede those stated inSubparagraph 9.4.1 of AIA Document A201, attached as Attachment I.

 

7.2.4     If the Owner’s accountants report the Cost of the Work assubstantiated by the Construction Manager’s final accounting to be less thanclaimed by the Construction Manager, the Construction Manager shall be entitledto proceed in accordance with Article 9 without a further decision of theArchitect.  Unless agreed to otherwise,a demand for mediation or arbitration of the disputed amount shall be made bythe Construction Manager within 60 days after the Construction Manager’sreceipt of a copy of the Architect’s final Certificate for Payment.  Failure to make such demand within this60-day period shall result in the substantiated amount reported by the Owner’saccountants becoming binding on the Construction Manager.  Pending a final resolution of the disputedamount, the Owner shall pay the Construction Manager the amount certified inthe Architect’s final Certificate for Payment.

 

7.2.5     If, subsequent to final payment and at the Owner’s request, theConstruction Manager incurs costs described in Paragraph 6.1 and not excludedby Paragraph 6.2 (1) to correct nonconforming Work, or (2) arising from theresolution of disputes, the Owner shall reimburse the Construction Manager suchcosts and the Construction Manager’s Fee, if any, related thereto on the samebasis as if such costs had been incurred prior to final payment, but not inexcess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings, the amount ofsuch savings shall be recalculated and appropriate credit given to the Owner indetermining the net amount to be paid by the Owner to the Construction Manager.

 

ARTICLE 8

INSURANCE AND BONDS

 

8.1        INSURANCE REQUIRED OF THE CONSTRUCTIONMANAGER

 

During both phases of theProject, the Construction Manager shall purchase and maintain insurance as setforth in ~~Paragraph 11.1~~Article 11 of AIA Documents A201 namingthe Owner, Architect and Arcitects as an additional insured with respect to allliability exposures.  Such insuranceshall be written for not less than the following limits, or greater if requiredby law:

 

8.1.1     Workers’ Compensation and Employers’ Liability meeting statutorylimits mandated by State and Federal laws. If (1) limits in excess of those required by statute are to be providedor (2) the employer is not statutorily bound to obtain such insurance coverageor (3) additional coverages are required, additional coverages and limits forsuch insurance shall be as follows:

 

8.1.2     Commercial General Liability including coverage forPremises-Operations, Independent Contractors’ Protective, Products-CompletedOperations, Contractual Liability, Personal Injury, and Broad Form PropertyDamage (including coverage for Explosion, Collapse and Underground hazards)

 

 

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| $      | 2,000,000 |      | Each Occurrence   |                                     |   |
|--------|-----------|-----------|-------------------|------------------------------------------|--------|
| $      | 6,000,000 |      | General Aggregate |                                     |   |
|   | $         | 2,000,000 |              | Personal and  Advertising Injury         |   |
|   | $         | 2,000,000 |              | Products-Completed  Operations Aggregate |   |
|        |           |           |                   |                                          |        |  |  |  |  |  |

 

.1   The policy shall be anoccurrence based form and be endorsed to have the General Aggregate applyto this Project only.

 

.2   Products and CompletedOperations insurance shall be maintained for a minimum period of at least one(1)year~~(s)~~ after either 90 days following Substantial Completion or finalpayment, whichever is earlier.

 

.3   The Contractual Liabilityinsurance shall include coverage sufficient to meet the obligations in AIADocument A201 under Paragraph 3.18.

 

8.1.3     Automobile Liability (owned, non-owned and hired vehicles) forbodily injury and property damage:

 

$ 2,000,000 Each Accident

 

8.1.4     Other coverage:

*(If Umbrella Excess Liability coverage is required over the primaryinsurance or retention, insert the coverage limits.  Commercial General Liability and Automobile Liability limits maybe attained by individual policies or by a combination of primary policies andUmbrella and/or Excess Liability policies.)*

 

Umbrellacoverage shall be equal to the GMP.

 

8.2        INSURANCE REQUIRED OF THE OWNER

During both phases of theProject, the Owner shall purchase and maintain liability and propertyinsurance, including waivers of subrogation, as set forth in ~~Paragraphs 11.2and 11.3~~Article 11 of AIA Document A201, attached as AttachmentI.  ~~Such insurance shall bewritten for not less than the following limits, or greater if required by law.~~

 

8.2.1     ~~Property Insurance~~See Section 11.8 of AIA DocumentA201, attached hereto as Attachmnet I. :

 

~~Deductible Per Occurrence~~

~~Aggregate Deductible~~

8.2.2     ~~Boiler and Machinery insurance with a limit of:~~

 

*(If not a blanket policy, list the objects to be insured.)*

 

8.3        PERFORMANCE BOND AND PAYMENT BOND

 

8.3.1     The Construction Manager shall be required to furnish a$10,000,000,00 payment and performance bond in form and with such obligees asis reasonably acceptable to Owner, and the construction Manager shall berequired to furnish from each of the Subcontractors, payment and performancebonds for 100% of the cost of each such Subcontractor's Work in such form andwith such obligees (in addition to the Construction Manager and its bondingcompnay), as is reasonably acceptable to Owner.  Owner shall be given originals or duplicate originals of allbonds obtained pursuant to this paragraph. *(Insert "shall" or"shall not")*~~furnish bonds covering faithfulperformance of the Contract and payment of obligation arising thereunder.  Bonds may be obtained through theConstruction Manager's usual source and the cost thereof shall be included inthe Cost of the Work.~~  The amount ofall such~~each~~ bonds shall be equal to at least 100%percent () of the Contract Sum.

 

8.3.2     The Construction Manager shall deliver the required bonds to theOwner at least three days before the commencement of any Work at the Projectsite.

 

ARTICLE 9

MISCELLANEOUS PROVISIONS

 

9.1        DISPUTE RESOLUTION FOR THEPRECONSTRUCTION PHASE

 

9.1.1     Claims, disputes or other matters in question between theparties to this Agreement which arise prior to the commencement of theConstruction Phase or which relate solely to the Preconstruction Phase servicesof the Construction

 

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Manager or to the Owner’sobligations to the Construction Manager during the Preconstruction Phase, shallbe resolved by mediation or by arbitration.

 

9.1.2     Any mediation conducted pursuant to this Paragraph 9.1 shall beheld in accordance with the Construction Industry Mediation Rules of theAmerican Arbitration Association currently in effect, unless the partiesmutually agree otherwise.  Demand formediation shall be filed in writing with the other party to this Agreement andwith the American Arbitration Association. Any demand for mediation shall be made within a reasonable time afterthe claim, dispute or other matter in question has arisen.  In no event shall the demand for mediationbe made after the date when institution of legal or equitable proceedings basedupon such claim, dispute or other matter in question would be barred by theapplicable statute of limitations.

 

9.1.3     Any claim, dispute or other matter in question not resolved bymediation shall be decided by arbitration in accordance with the ConstructionIndustry Arbitration Rules of the American Arbitration Association currently ineffect unless the parties mutually agree otherwise.

 

9.1.4     Demand for arbitration shall be filed in writing with the otherparty to this Agreement and with the American Arbitration Association.  A demand for arbitration may be madeconcurrently with a demand for mediation and shall be made within a reasonabletime after the claim, dispute or other matter in question has arisen.  In no event shall the demand for arbitrationbe made after the date when institution of legal or equitable proceedings basedupon such claim, dispute or other matter in question would be barred by theapplicable statute of limitations.

 

9.1.5     No arbitration arising out of or relating to the ContractDocuments shall include, by consolidation or joinder or in any other manner,the Architect, the Architect’s employees or consultants, except by writtenconsent containing specific reference to the Agreement and signed by theArchitect, Owner, Construction Manager and any other person or entity sought tobe joined.  No arbitration shallinclude, by consolidation or joinder or in any other manner, parties other thanthe Owner, Construction Manager, a separate contractor as described in Article6 of AIA Document A201, attached as Attachment I, and other personssubstantially involved in a common question of fact or law whose presence isrequired if complete relief is to be accorded in arbitration.  No person or entity other than the Owner orConstruction Manager or a separate contractor as described in Article 6 of AIADocument A201, attached as Attachment I, shall be included as anoriginal third party or additional third party to an arbitration whose interestor responsibility is insubstantial. Consent to arbitration involving an additional person or entity shallnot constitute agreement to arbitration of a dispute not described in suchconsent or with a person or entity not named or described therein.  The foregoing agreement to arbitrate andother agreements to arbitrate with an additional person or entity dulyconsented to by parties to this Agreement shall be specifically enforceableunder applicable law in any court having jurisdiction thereof.

 

9.1.6     The award rendered by the arbitrator or arbitrators shall befinal, and judgment may be entered upon it in accordance with applicable law inany court having jurisdiction thereof.

 

9.2        DISPUTE RESOLUTION FOR THECONSTRUCTION PHASE

 

9.2.1     Any other claim, dispute or other matter in question arising outof or related to this Agreement or breach thereof shall be settled inaccordance with Article 4 of AIA Document A201, attached as Attachment I,except that in addition to and prior to arbitration, the parties shall endeavorto settle disputes by mediation in accordance with the Construction IndustryMediation Rules of the American Arbitration Association currently in effectunless the parties mutually agree otherwise. Any mediation arising under this Paragraph shall be conducted inaccordance with the provisions of Subparagraphs 9.1.2 and 9.1.3.

 

9.3        OTHER PROVISIONS

 

9.3.1     Unless otherwise noted, the terms used in this Agreement shallhave the same meaning as those in the 1987 Edition of AIA Document A201,General Conditions of the Contract for Construction, attached hereto asAttachmnet I.

 

9.3.2     EXTENT OF CONTRACT

 

This Contract, which includesthis Agreement and the other documents incorporated herein by reference,represents the entire and integrated agreement between the Owner andConstruction Manager and supersedes all prior negotiations, representations oragreements, either written or oral. This Agreement may be amended only by written instrument signed by boththe Owner and Construction Manager.  Ifanything in any document incorporated into this Agreement is inconsistent withthis Agreement, this Agreement shall govern.

 

9.3.3     OWNERSHIP AND USE OF DOCUMENTS

 

The Drawings, Specificationsand other documents prepared by the Architect, and copies thereof furnished tothe Construction Manager, are owned by the Owner and are for use solelywith respect to this Project.  They arenot to be used by the Construction Manager, Subcontractors, Sub-subcontractorsor suppliers on other projects, or for additions to this Project outside thescope of the Work, without the specific written consent of the Owner and Architect.  The Construction Manager, Subcontractors,Sub-subcontractors and suppliers are granted a limited license to use andreproduce applicable portions of the Drawings, Specifications and otherdocuments prepared by the Architect appropriate to and for use in the executionof their Work under the Contract Documents.

 

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9.3.4     GOVERNING LAW

 

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

 

9.3.5     ASSIGNMENT

 

The Owner and ConstructionManager respectively bind themselves, their partners, successors, assigns andlegal 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.  Neither party to the Contract shall assignthe Contract as a whole without written consent of the other.  If either party attempts to make such anassignment without such consent, that party shall nevertheless remain legallyresponsible for all obligations under the Contract and in such event theother party shall have the right to terminate this Contract exercisable in itssole discretion upon seven (7) days advance written notice.

 

ARTICLE 10

TERMINATION OR SUSPENSION

 

10.1      TERMINATION PRIOR TO ESTABLISHINGGUARANTEED MAXIMUM PRICE

 

10.1.1   Prior to execution by both parties of Amendment No. 1 establishingthe Guaranteed Maximum Price, the Owner may terminate this Contract at any timewithout cause, and the Construction Manager may terminate this Contract for anyof the reasons described in Subparagraph 14.1.1 of AIA Document A201,attached as Attachment I.

 

10.1.2   If the Owner or Construction Manager terminates this Contractpursuant to this Paragraph 10.1 prior to commencement of the ConstructionPhase, the Construction Manager shall be equitably compensated forPreconstruction Phase services performed prior to receipt of notice oftermination; provided, however, that the compensation for such services shallnot exceed the compensation set forth in Subparagraph 4.1.1.

 

10.1.3   If the Owner or Construction Manager terminates this Contractpursuant to this Paragraph 10.1 after commencement of the Construction Phase,the Construction Manager shall, in addition to the compensation provided inSubparagraph 10.1.2, be paid an amount calculated as follows:

 

.1          Takethe Cost of the Work incurred by the Construction Manager.

 

.2          Addthe Construction Manager’s Fee computed upon the Cost of the Work to the dateof termination at the rate stated in Paragraph 5.1 or, if the ConstructionManager’s Fee is stated as a fixed sum in that Paragraph, an amount which bearsthe same ratio to that fixed-sum Fee as the Cost of Work at the time oftermination bears to a reasonable estimate of the probable Cost of the Workupon its completion.

 

.3          Subtractthe aggregate of previous payments made by the Owner on account of theConstruction Phase.

 

The Owner shall also pay theConstruction Manager fair compensation, either by purchase or rental at theelection of the Owner, for any equipment owned by the Construction Managerwhich the Owner elects to retain and which is not otherwise included in theCost of the Work under Clause 10.1.3.1. To the extent that the Owner elects to take legal assignment ofsubcontracts and purchase orders (including rental agreements), theConstruction Manager shall, as a condition of receiving the payments referredto in this Article 10, execute and deliver all such papers and take all suchsteps, including the legal assignment of such subcontracts and othercontractual rights of the Construction Manager, as the Owner may require forthe purpose of fully vesting in the Owner the rights and benefits of theConstruction Manager under such subcontracts or purchase orders.

 

Subcontracts, purchase ordersand rental agreements entered into by the Construction Manager with the Owner’swritten approval prior to the execution of Amendment No. 1 shall containprovisions permitting assignment to the Owner as described above.  If the Owner accepts such assignment, theOwner shall reimburse or indemnify the Construction Manager with respect to allcosts arising under the subcontract, purchase order or rental agreement exceptthose which would not have been reimbursable as Cost of the Work if thecontract had not been terminated.  Ifthe Owner elects not to accept the assignment of any subcontract, purchaseorder or rental agreement which would have constituted a Cost of the Work hadthis agreement not been terminated, the Construction Manager shall terminatesuch subcontract, purchase order or rental agreement and the Owner shall paythe Construction Manager the costs necessarily incurred by the ConstructionManager by reason of such termination.

 

10.1.4   Termination of Preconstruction PhaseServices.  The Preconstruction Servicesmay be terminated prior to commencement of the construction work by the Ownerupon fifteen (15) days written notice to the Construction  Manager, whereupon, the Construction Managershall be paid for all services satisfactorily performed and all other costs andexpenses incurred as contemplated by this Agreement up to and through theeffective date of termination.  In suchevent, the Construction Manager shall provide assistance and cooperation in returning,reselling, or otherwise disposing of any materials or services which werereasonably necessary to be ordered, but not ultimately used for the Project.

 

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10.2      TERMINATION SUBSEQUENT TO ESTABLISHINGGUARANTEED MAXIMUM PRICE

 

Subsequent to execution by bothparties of Amendment No. 1, the Contract may be terminated as provided inArticle 14 of AIA Document A201, attached as Attachment I.

 

10.2.1   In the event of such termination by the Owner, the amount payableto the Construction Manager pursuant to Subparagraph 14.1.2 of AIA DocumentA201, attached as Attachment I, shall not exceed the amount theConstruction Manager would have been entitled to receive pursuant toSubparagraphs 10.1.2 and 10.1.3 of this Agreement. In addition, the Ownermay terminate this contract without cause following seven (7) days advancewritten notice to the Construction Manager. In the event of such a termination without cause, the Owner shall reimbursethe Construction Manager for costs incurred for work then completed (providedthat the Owner receives all approprate lien waivers) and shall pay theConstruction Manager that portion of its fee earned through the date oftermination, based on the percentage of the work then completed, less feespreviously advanced by the Owner.

 

10.2.2   In the event of such termination by the Construction Manager, theamount to be paid to the Construction Manager under Subparagraph 14.1.2 of AIADocument A201, attached as Attachment I, shall not exceed the amount theConstruction Manager would be entitled to receive under Subparagraphs 10.1.2 or10.1.3 above, except that the Construction Manager’s Fee shall be calculated as~~if the Work had been fully completed by the Construction Manager including areasonable estimate of the Cost of the Work for Work not actually completed~~follows:  If construction has reacheda level of less than fifty percent (50%) completion as of the effective date oftermination, the Construction Manager shall be entitled to the fee payable asif fifty percent (50%) of the work had been completed.  If construction has reached a level of fiftypercent (50%) or greater as of the effective date of termination, theConstruction Manager shall be entitled to a fee based on the percentage of theWork in fact completed.  For purposes ofthe Contract commencement of construction occurs upon mutual execution of awritten notce to proceed.

 

10.3      SUSPENSION

The Work may be suspended bythe Owner as provided in Article 14 of AIA Document A201, attached asAttachment I; in such case, the Guaranteed Maximum Price, if established,shall be increased as provided in Subparagraph 14.3.2 of AIA Document A201, attachedas Attachment I, except that the term “cost of performance of the Contract”in that Subparagraph shall be understood to mean the Cost of the Work and theterm “profit” shall be understood to mean the Construction Manager’s Fee asdescribed in Subparagraphs 5.1.1 and 5.3.4 of this Agreement.

 

ARTICLE 11

OTHER CONDITIONS AND SERVICES

 

11.1      Not withstanding anything herein to thecontrary, all references herein to AIA Document A201 shall mean AIA DocumentA201-1997 Edition - Electronic Format and all supplemental provisions theretoin the form annexed hereto as Attachment I.

 

11.2      The hourly rates of the ConstructionManager’s supervisory and administrative personnel will be as set forth in theGMP Presentation, as approved by the Owner.

 

11.3      The following special provisions shallapply to any furnishings, fixtures and equipment (“FF&E”) at the existingfacility that must be removed and/or reinstalled and/or any new FF&Einstalled at the completed facility:

 

11.3.1   The Construction Manager shall coordinate theWork to receive the FF&E based on specifications and information providedby the Owner.  To the extent requestedby the Owner, the Construction Manager shall work with the Owner to establishan acceptable list of potential installers of the FF&E and will solicitbids from these installers.

 

11.3.2   Upon receipt of bids for the installation ofFF&E, the Construction Manager shall provide the Owner with an analysis ofthese bids, and the Owner and the Construction Manager shall mutually determinewhich of these bids to accept or reject.

 

11.3.3   The Construction Manager shall arrange for scheduling,delivery and installation of the FF&E purchased by the Owner, and shallsupervise the installation of the FF&E at the site.

 

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11.3.4   Notwithstanding anything in this Agreement tothe contrary, the Construction Manager shall be paid five percent (5%) of thecost of the installation contracted for by the Construction Manager pursuant tothis paragraph 11.3. with payment due on installation and final acceptance ofsuch FF&E by the Owner.

 

11.4      In an effort to obtain the best estimateof construction costs, the Construction Manager shall obtain at least three (3)price quotations for each major portion of the Work for the Project from eachmajor trade, provided there is sufficient design and construction informationavailable, and provided that the Owner does not direct otherwise. All bids andall documentation relied upon by the bidders to issue their bids shall bepresented to the Owner, for the Owner to choose the subcontractor for thatportion of the work for the Project.

 

11.5      To the extent permitted by the WestVirginia law, Contractors shall include pay-when-paid language in theirsubcontracts establishing that subcontractors shall not be entitled to paymentuntil payment has been received by the Contractors from the Owner.

 

11.6      Contractors shall provide conditionalsubcontractor lien waivers as part of their monthly periodic paymentapplication.

 

11.7      The GMP estimate established between theOwner and Construction Manager will be a part of the GMP Presentation, andshall be established as expeditiously as is practicable after the commencementof construction.

 

11.8      Construction Manager or the Contractorswill carry Builder’s Risk insurance, which shall be replacement value policiesand which will name the Owner as an additional insured. The policies shall bein an amount at least equal to the value of the completed Project and shallapply on a replacement cost basis. This insurance shall cover the entirety ofthe Work at the Project site, portions of the Work located away from the sitebut intended for incorporation into the Work at the site and also portions ofthe Work in transit. The Construction Manager shall be responsible for alldeductions. The cost of the Insurance shall be a Cost of the Work.

 

11.9      Construction Manager shall require thatall Subcontractors provide performance and payment bonds, as provided inparagraph 8.3.1 hereof.

 

11.10    Notwithstanding anything else herein to thecontrary, the Owner and the Constructor recognize and acknowledge that theoriginal GMP is based on the GMP Presentation, but that the Project Manual,Drawings and Specifications are not final. Upon receipt of the final ProjectManual, Drawings and Specifications from the Owner, the Constructor willre-price the GMP. To the extent that the revised GMP exceeds the original GMP,and the variance is due to additional work and/or materials which arereasonably inferrable from the GMP Presentation and the Project Manual,Drawings and Specifications as of the date of execution by all parties (the“Initial Project Manual, Drawings and Specifications”). Owner will have noobligation to increase the original GMP; however, the Owner will engage in goodfaith discussions with the Constructor to redesign the Project through ValueEngineering so as to reduce the revised GMP to the original GMP, but in noevent will the Owner be required to agree to any redesign which would, in theOwner’s sole discretion , compromise the integrity or quality of the Project.To the extent that the revised GMP exceeds the original GMP, and the varianceis due to additional work and/or materials which are NOT reasonably inferrablefrom the GMP Presentation, and the Initial Project, Manual Drawings andSpecifications, the Owner will elect to either issue a Change Order increasingthe original GMP to the amount of the revised GMP, or will engage in good faithdiscussions with the Constructor to redesign the Project through ValueEngineering so as to reduce the revised GMP to the original GMP.

 

11.11    The GMP, as finally established, shall beincreased or decreased, as the case may be, if there is a change in the scopeof the Work as hereinbefore provided, resulting in additional Costs or reducedCosts from those Costs set forth in the GMP Presentation (which “Costs” forpurposes of this Section 11.11, shall include the Construction Manager’s Feeand the Cost of the Work), actually to be incurred by the Constructor as theresult of:

 

a.             Damage caused byfire or other casualties, not caused by the Constructor or anyone for whom theConstructor is responsible or liable, such as and including, withoutlimitation, all Subcontractors:

 

b.            Material default ofthe Owner or Architect after written notice to each such party and theexpiration of ten (10) business days during which such default remains uncured(or in the event such default will take longer than 10-day period, then forsuch reasonable period of time necessary to effect such cure with duediligence):

 

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c.             Uncovering Work atthe direction of the Owner or the Architect if such Work upon the uncoveringthereof is found by the Owner and the Architect to be in conformity with theContract Documents:

 

d.            Requirements of theOwner to use Subcontractors other than those first recommended by theConstructor:

 

e.             The amount by whichthe actual Cost of the Work for each element of the Work listed as allowancesin the GMP Presentation exceeds (or is less than) the amount of the allowancelisted thereon with respect to such element, except to the extent that theincrease in the Cost of the Work for such allowance item relating to temporaryheat or temporary power is the result of a delay caused by the Constructor: or

 

f. A material change, addition toor deletion of the Work, but excluding such items as cutting, patching,repairing or inclusion of items implied but not shown in the Project Manual,Drawings and Specifications.  Suchchange shall not be deemed to be “material” unless.  (i)  such change in theWork involves a change in the quantity of the Work required to be performedhereunder; (ii) such change in the Work involves a significant or substantialchange in the quality of the Work required to be performed hereunder, in theopinion of a person experienced in construction industry practices and mutuallyagreeable to the Owner and the Constructor (“Construction Expert”); and (iii)such Construction Expert would reasonably determine that such change in eitherquantity or quality was not reasonably implied or inferred from theConstruction Documents, whether or not actually shown therein.  The Constructor specifically acknowledgesand agrees that any change in the Contract Documents based on the finalizationof the Initial Project Manual, Drawings and Specifications, which change isreasonably inferrable from the Initial Project Manual, Drawings andSpecifications, shall not cause an increase in the GMP.  The Constructor is hereby acknowledging thatthe Contract Documents, including the Initial Project Manual, Plans andSpecifications, were sufficiently complete to enable Constructor to provide toOwner, Constructor’s Guaranteed Maximum Price, to which the Constructor agreesto be bound, notwithstanding any changes to the Work as the result of thecompletion of the Initial Project Manual, Plans and Specifications by theArchitect thereafter, except for material changes in the Work, as set forthabove, or as approved by the Owner.

 

11.12    Notwithstanding anything in the Generalconditions, attached hereto as Attachment I, to the contrary.  If Architect is late in providing theConstruction Manager design documnets for a bid package that causes a delay tothe overall Project schedule, Construction Manager reserves its rights to associatedadditional costs and/or schedule relief.

 

11.13    Attached hereto and made a part hereof asAttachment IV is the project labor agreement between Owner and the Upper ValleyBuilding and Construction Trades Council (the “Project Labor Agreement”), whichby its terms expires on December 31, 2002. Construction Manager agrees to abide by its terms, and both Owner andConstruction Manager agree to use their best efforts to extend such agreementfor the duration of the Project: provided, however, should there be any strike,delay or dispute caused by expiration of the Project Labor Agreement, afterConstruction Manager’s failed good faith efforts to extend it.  Construction Manager shall not be liable forconsequential damages, delay damages, or special damages to Owner as a resultthereof.

 

11.14    Attached hereto and made a part hereof asAttachment V is the legal description that Owner warrants and represents isthat of the Site.

 

11.15    Attached hereto and made a part hereof aAttachment VI is a narrative provided by Owner to Construction Manager from aprospectus for a public offering by Owner, which Owner warrants and representsis the financing Owner has for the Project.

 

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

 
| OWNER  | CONSTRUCTION  MANAGER              |
|--------|------------------------------------|
|   |                               |
| BY:    |  WHEELING ISLAND GAMING, INC. |   | BY: | LOUIS P.  CIMINELLI CONSTRUCTION COMPANY, INC, |
|   | /s/ Michael  Corbin                |   |   |   |
|   |                               |
|   |                               |
| DATE   | 7/17/02                            |   | DATE | 7/17/02 |
|   |                               |
| ATTEST |                               |   | ATTEST | /s/  [ILLEGIBLE] |
|        |                                    |  |  |  |  |  |  |  |  |  |

 

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**ATTACHMENT I                                                  **1997Edition - Electronic Format

 

AIA Document A201 - 1997

 

*General Conditions of the Contract for Construction*

 

TABLE OF ARTICLES

 

1.      GENERAL PROVISIONS

 

2.      OWNER

 

3.      CONTRACTOR

 

4.      ADMINISTRATION OF THE CONTRACT

 

5.      SUBCONTRACTORS

 

6.      CONSTRUCTION BY OWNER OR BY SEPARATECONTRACTORS

 

7.      CHANGES IN THE WORK

 

8.      TIME

 

9.      PAYMENTS AND COMPLETION

 

10.    PROTECTION OF PERSONS AND PROPERTY

 

11.    INSURANCE AND BONDS

 

12.    UNCOVERING AND CORRECTION OF WORK

 

13.    MISCELLANEOUS PROVISIONS

 

14.    TERMINATION OR SUSPENSION OF THE CONTRACT

 

INDEX

Acceptance of NonconformingWork

9.6.6, 9.9.3,12.3

Acceptance of Work

9.6.6, 9.8.2,9.9.3, 9.10.1, 9.10.3, 12.3

Access to Work

3.16, 6.2.1,12.1

Accident Prevention

4.2.3, 10

Acts and Omissions

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

Addenda

1.1.1, 3.11

Additional Costs, Claims for

4.3.4, 4.3.5,4.3.6, 6.11, 10.3

 

Additional Inspections andTesting

9.8.3, 12.2.1,13.5

Additional Time, Claims for

4.3.4, 4.3.7,8.3.2

ADMINISTRATION OF THE CONTRACT

3.1.3, 4.9.4,9.5

 

THIS DOCUMENT HAS IMPORTANTLEGAL CONSEQUENCES. CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TOITS COMPLETION OR MODIFICATION. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTEDAIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.

 

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

 

[LOGO]

 

© 1997 AIA®

AIA DOCUMENT A201 - 1997GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION

 

The American Institute ofArchitects 1735 New York Avenue, N.W. Washington, D.C. 20006-5292

 

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**ATTACHMENT I**

 

Advertisement or Invitation toBid

1.1.1

Aesthetic Effect

4.2.13, 4.5.1

Allowances

3.8

All-risk Insurance

11.4.1.1

Application for Payment

4.2.5, 7.3.8,9.2, 9.3, 9.4, 9.5.1, 9.36.3, 9.7.1, 9.8.5, 9.10, 11.1.3, 14.2.4, 14.4.3

Approvals

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

Arbitration

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

Architect

4.1

Architect, Definition of

4.1.1

Architect, Extent of Authority

2.4, 3.12.7,4.2, 4.336, 4.4, 5.2, 6.3, 7.1.2, 7.3.6, 7.4, 9.2, 9.3.1, 9.4, 9.5, 9.8,9.10.1, 9.10.3, 12.1, 12.2.1, 13.5.1, 13.5.2, 14.2.2, 14.2.4

Architect, Limitations ofAuthority and Responsibility

2.1.1, 3.3.3,3.12.4, 3.12.8, 3.12.10, 4.1.2, 4.2.1, 4.2.2, 4.2.3, 4.2.6, 4.2.7, 4.2.10, 4.2.12,4.2.13, 4.4, 5.2.1, 7.4, 9.4.2, 9.6.4, 9.6.6

Architect’s Additional Servicesand Expenses

2.4, 11.4.1.1,12.2.1, 13.5.2, 13.5.3,  14.2.4

Architect’s Administration ofthe Contract

3.1.3, 4.2,4.3.4, 4.4, 9.4, 9.5

Architect’s Approvals

2.4, 3.1.3,3.5.1, 3.10.2, 4.2.7

Architect’s Authority to RejectWork

3.5.1, 4.2.6,12.1.2, 12.2.1

Architect’s Copyright

1.6

Architect’s Decisions

4.2.6, 4.2.7,4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1, 4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8,8.1.3, 8.3.1,9.2, 9.4, 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4

Architect’s Inspection

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

Architect’s Instructions

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

Architect’s Interpretations

4.2.11,4.2.12, 4.3.6

Architect’s ProjectRepresentative

4.2.10

Architect’s Relationship withContractor

1.1.2, 1.6,3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16,3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7, 5.2 6.2.2, 7.8.3.1, 9.2, 9.3,9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12, 13.4.2, 13.5

Architect’s Relationship withSubcontractors

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

Architect’s Representations

9.4.2, 9.5.1,9.10.1

Architect’s Site Visits

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

Asbestos

10.3.1

Attorneys’ Fees

3.18.1,9.10.2, 10.3.3

Award of Separate Contract

6.1.1, 6.1.2

Award of Subcontracts and OtherContracts for Portions of the Work

5.2

Basic Definitions

1.1

Bidding Requirements

1.1.1, 1.1.7,5.2.1, 11.5.1

Boiler and Machinery Insurance

11.4.2

Bonds, Lien

9.10.2

Bonds, Performance, and Payment

7.3.6.4,9.6.7, 9.10.3, 11.4.9, 11.5

Building Permit

3.7.1

Capitalization

1.3

Certificate of SubstantialCompletion

9.8.3, 9.8.4,9.8.5

Certificates for Payment

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

Certificates of Inspection,Testing or Approval

13.5.4

Certificates of Insurance9.10.2, 11.1.3

Change Order

1.1.1, 2.4.1,3.4.2, 3.8.2.3, 3.11.1, 3.12.8, 4.2.8, 4.3.4, 4.3.9, 5.2.3, 7.1, 7.2, 7.3,8.3.1, 9.3.1.1, 9.10.3, 11.4.1.2, 11.4.4, 11.4.9, 12.1.2

Change Orders, Definitions of

7.2.1

CHANGES IN THE WORK

3.11, 4.2.8,7, 8.3.1, 9.3.1.1, 11.4.9

Claim, Definition of

4.3.1

Claims and Disputes

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

Claims and Timely Assertion ofClaims

4.6.5

 

2

----

 

Claims for Additional Cost

3.2.3, 4.3.4,4.3.5, 4.3.6, 7.3.8, 10.3.2

Claims for Additional Cost

3.2.3, 4.3.4,4.3.7, 6.1.1, 8.3.2, 10.3.2

Claims for Concealed or UnknownConditions

4.3.4

Claims for Damages

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

Claims Subject to Arbitration

4.4.1, 4.5.1,4.6.1

Cleaning Up

3.15, 6.3

Commencement of StatutoryLimitation Period

13.7

Commencement of the Work,Conditions Relating to

2.2.1, 3.2.1,3.4.1, 3.7.1, 3.10.1, 3.12.6, 4.3.5, 5.2.1, 5.2.3, 6.2.2, 8.1.2, 8.2.2, 8.3.1,11.1, 11.4.1, 11.4.6, 11.5.1

Commencement of the Work,Definition of

8.1.2

Communications FacilitatingContract Administration

3.9.1, 4.2.4

Completion, Conditions Relatingto

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

COMPLETION, PAYMENTS AND

9

Completion, Substantial

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

Compliance with Laws

1.6.1, 3.2.2,3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6.4, 4.6.6, 9.6.4, 10.2.2, 11.1, 11.4,13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14.1.1, 14.2.1.3

Concealed or Unknown Conditions

4.3.4, 8.3.1,10.3

Conditions of the Contract

1.1.1, 1.1.7,6.1.1, 6.1.4

Consent, Written

1.6, 3.4.2,3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3,11.4.1, 13.2, 13.4.2

CONSTRUCTION BY OWNER OR BYSEPARATE CONTRACTORS

1.1.4, 6

Construction Changed Directive,Definition of

7.3.1

Construction Change Directives

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

Construction Schedules,Contractor’s

1.4.1.2, 3.10,3.12.1, 3.12.2, 4.3.7.2, 6.1.3

Contingent Assignment of Subcontracts

5.4, 14.2.2.2

Continuing Contract Performance

4.3.3

Contract, Definition of

1.1.2

CONTRACT, TERMINATION ORSUSPENSION OF THE

5.4.1.1,11.4.9, 14

Contract Administration

3.1.3, 4, 9.4,9.5

Contract Award and Execution,Conditions Relating to

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

Contract Documents, The

1.1, 1.2

Contract Documents, CopiesFurnished and Use of

1.6, 2.2.5,5.3

Contract Documents, Definitionsof

1.1.1

Contract Sum

3.8, 4.3.4,4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, 9.1, 9.4.2, 9.5.1.4, 9.6.7, 9.7, 10.3.2,11.4.1, 14.2.4, 14.3.2

Contract Sum, Definition of

9.1

Contract Time

4.3.4, 4.3.7,4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4, 8.1.1, 8.2, 8.3.1, 9.5.1, 9.7, 10.3.2, 12.1.1,14.3.2

Contract Time, Definition of

8.1.1

CONTRACTOR

3

Contractor, Definition of

3.1, 6.1.2

Contractor’s ConstructionSchedules

1.4.1.2, 3.10,3.12.1, 3.12.2, 4.3.7.2, 6.1.3

Contractor’s Employees

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

Contractor’s LiabilityInsurance

11.1

Contractor’s Relationship withSeparate

Contractors and Owner’s Forces

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

Contractor’s Relationship withSubcontractors

1.2.2, 3.3.2,3.18.1, 3.18.2, 5.9.6.2, 9.6.7, 9.10.2, 11.4.1.2, 11.4.7, 11.4.8

Contractor’s Relationship withthe Architect

1.1.2, 1.6,3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16,3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3,9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3,

11.4.7, 12,13.4.2, 13.5

 

3

----

 

Contractor’s Representations

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

Contractor’s Responsibility forThose Performing the Work

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

Contractor’s Review of ContractDocuments

1.5.2, 3.2,3.7.3

Contractor’s Right to Stop theWork

9.7

Contractor’s Right to Terminatethe Contract

4.3.10, 14.1

Contractor’s Submittals

3.10, 3.11,3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8.2, 9.8.3, 9.9.1, 9.10.2,9.10.3, 11.1.3, 11.5.2

Contractor’s Superintendent

3.9, 10.2.6

Contractor’s Supervision andConstruction Procedures

1.2.2, 3.3,3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, 6.2.4, 7.1.3, 7.3.4, 7.3, 6, 8.2, 10,12, 14

Contractual Liability Insurance

11.1.1.8,11.2, 11.3

Coordination and Correlation

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

Copies Furnished or Drawingsand Specifications

1.6, 2.2.5,3.11

Copyrights

1.6, 3.17

Correction of Work

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

Correlation and Intent of theContract Documents

1.2

Cost, Definition of

7.3.6

Costs

2.4, 3.2.3,3.7.4, 3.8.2, 3.15.2, 4.3, 5.4.2, 6.1.1, 6.2.3, 7.3.3.3, 7.3.6, 7.3.7, 7.3.8,9.10.2, 10.3.2, 10.5, 11.3, 11.4, 12.1, 12.2.1, 12.2.4, 13.5, 14

Cutting andPatching

6.2.5, 3.14

Damage to Construction of Owneror Separate Contractors

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

Damage to the Work

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

Damages, Claims for

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

Damages for Delay

6.1.1, 8.3.3,9.5.1.6, 9.7, 10.3.2

Date of Commencement of theWork, Definition of

8.1.2

Date of Substantial Completion,Definition of

8.1.3

Day, Definition of

8.1.4

Decisions of the Architect

4.2.6, 4.2.7,4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1, 4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8,8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4

Decisions to WithholdCertification

9.4.1, 9.5,9.7, 14.1.1.3

Defective or NonconformingWork, Acceptance, Rejection and Correction of

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

Defective Work, Definition of

3.5.1

Definitions

1.1, 2.1.1,3.1, 3.5.1, 3.12.1, 3.12.2, 3.12.3, 4.1.1, 4.3.1, 5.1, 6.1.2, 7.2.1, 7.3.1,7.3.6, 8.1, 9.1, 9.8.1

Delays and Extension of Time

3.2.3, 4.3.1,4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1, 7.5.1, 8.3, 9.5.1, 9.7.1,10.3.2, 10.6.1, 14.3.2

Disputes

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

Documents and Samples at theSite

3.11

Drawings, Definition of

1.1.5

Drawings and Specifications,Use and Ownership of

1.1.1, 1.3,2.2.5, 3.11, 5.3

Effective Date of Insurance

8.2.2, 11.1.2

Emergencies

4.3.5, 10.6,14.1.1.2

Employees, Contractor’s

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

Equipment, Labor, Materials and

1.1.3, 1.1.6,3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1,7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2

Execution and Progress of theWork

1.1.3, 1.2.1,1.2.2, 2.2.3, 2.2.5, 3.1, 3.3, 3.4, 3.5, 3.7, 3.10, 3.12, 3.14, 4.2.2, 4.2.3,4.3.3, 6.2.2, 7.1.3, 7.3.4, 8.2, 9.5, 9.9.1, 10.2, 10.3, 12.2, 14.2, 14.3

Extensions of Time

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

Failure of Payment

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

Faulty Work

(See Defectiveor Nonconforming Work)

 

4

----

 

Final Completion and FinalPayment

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

Financial Arrangements, Owner’s

2.2.1, 13.2.2,14.1.1.5

Fire and Extended CoverageInsurance 

11.4

GENERAL PROVISIONS

1

Governing Law

13.1

Guarantees (See Warranty)

Hazardous Materials

10.2.4,10.3,10.5

Identification of ContractDocuments

1.5.1

Identification ofSubcontractors and Suppliers 

5.2.1

Indemnification

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

Information and ServicesRequired of the Owner

2.12, 2.2,3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 6.14, 6.2.5, 9.3.2, 9.6.1, 9.6.4,9.9.2, 9.1.0.3, 10.3.3, 11.2, 11.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4

Injury or Damage to Person orProperty

4.3.8, 10.2,10.6

Inspections

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

Instruction to Bidders

1.1.1

Instruction to the Contractor 

3.2.3, 3.3.1,3.8.1, 4.2.8, 5.2.1, 7.12, 8.2.2, 13.5.2

Insurance

3.18.1, 6.1.1,7.3.6, 8.2.1, 9.3.2, 9.8.4, 9.9.1,

9.10.2,9.10.5, 11

Insurance, Boiler and Machinery

11.4.2

Insurance, Contractor’sLiability

11.1

Insurance, Effective Date of 

8.2.2, 11.1.2

Insurance, Loss of Use

11.4.3

Insurance, Owner’s Liability

11.2

Insurance, Project ManagementProtective

Liability

11.3

Insurance, Property

10.25, 11.4

Insurance, Stored Materials

9.3.2,11.4.1.4

 

INSURANCE AND BONDS

11

Insurance Companies, Consent toPartial 

Occupancy

9.9.1,11.4.1.5

Insurance Companies, Settlementwith

11.4.10

Indent of the ContractDocuments

1.2.1,4.2.7,4.2.12,4.2.13,7.4

Interest

13.6

Interpretation

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

Interpretations, Written

4.2.11,4.2.12, 4.3.6

Joinder and Consolidation ofClaims Required 

4.6.4

Judgment on Final Award

4.6.6

Labor and Materials, Equipment

1.1.3, 1.1.6,3.4, 3.5.1, 3.8.2, 3.8.3, 3.12.3.13. 3.15.1, 42.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6,9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2

Labor Disputes

8.31

Laws  and Regulations

1.6, 3.2.2,3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, 9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14

Liens

2.12, 4.4.8,8.2.2, 9.3.3, 9.10

Limitation on Consolidation orJoinder

4.6.4

Limitations, Statutes of

4.6.3,12.2.6,13.7

Limitations of Liability

2.3, 3.2.1,3.5.1, 3.73, 3.12, 8, 3.12.10,  3.17,3.18. 4.2.6.4.2.7, 4.2.12, 6.2.2, 9.4.2, 9.6.4, 9.6.7, 9.10.4, 10.3.3, 10.2.5,11.1.2, 11.2.1, 11.4.7, 12.2.5, 13.4.2

Limitations of Time

2.1.2, 2.2,2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 4.27, 4.3, 4.4, 4.5, 4.6,5.2.5.3, 5.4, 6.2.4, 7.3 7.4, 8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7.9.8.9.9, .9.10, 11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5, 13.7.14

Loss of Use Insurance

11.4.3

Material Suppliers

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

Materials, Hazardous

10.2.4, 10.3,10.5

Materials, Labor, Equipment and

1.1.3, 1.1.6,1.6.1, 3.4, 3.5.1, 3.8.2, 3.8.23, 3.12, 3.13

3.15.1, 4.2.6,4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4,14.2.1.2

 

5

----

 

Means, Methods, Techniques,Sequences and Procedures of Construction

3.3.1,3.12.10, 4.2.2, 4.2.7, 9.4.2

Mechanic’s Lien

4.4.8

Mediation

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

Minor Changes in the Work

1.1.1, 3.12.8,4.2.8, 4.3.6, 7.1, 7.4

MISCELLANEOUS PROVISIONS

13

Modifications, Definitions of

1.1.1

Modification to the Contract

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

Mutual Responsibility

6.2

Nonconforming Work, Acceptanceof

9.6.6, 9.9.3,12.3

Nonconforming Work, Rejectionand Correction of

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

Notice

2.2.1, 2.3,2.4, 3.2.3, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7,9.10, 10.2.2, 10.3, 11.1.3, 11.4.6, 12.2.2, 12.2.4, 13.3, 14

Notice of Testing andInspections

13.5.1, 13.5.2

Notice to Proceed

8.2.2

Notices, Permits, Fees and

2.2.2, 3.7,3.13, 7.3.6.4, 10.2.2

Observations, Contractor’s

1.5.2, 3.2,3.7.3, 4.3.4

Occupancy

2.2.2, 9.6.6,9.8, 11.4.1.5

Orders, Written

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

OWNER

2

Owner, Definition of

2.1

Owner, Information and ServicesRequired of the

2.1.2, 2.2,3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4,9.9.2, 9.10.3, 10.3.3, 11.2, 11.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4

Owner’s Authority

1.6, 2.1.1,2.3, 2.4, 3.4.2, 3.8.1, 3.12.10, 3.14.2, 4.1.2, 4.1.3, 4.2.4, 4.2.9, 4.3.6,4.4.7, 5.2.1, 5.2.4, 5.4.1, 6.1, 6.3, 7.2.1, 7.3.1, 8.2.2, 8.3.1, 9.3.1, 9.3.2,9.5.1, 9.9.1, 9.10.2, 10.3.2, 11.1.3, 11.3.1, 11.4.3, 11.4.10, 12.2.2, 12.3.1,13.2.2, 14.3, 14.4

Owner’s Financial Capability

2.2.1, 13.2.2,14.1.1.5

Owner’s Liability Insurance

11.2

Owner’s Loss of Use Insurance

11.4.3

Owner’s Relationship withSubcontractor

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

Owner’s Right to Carry Out theWork

2.4, 12.2.4,14.2.2.2

Owner’s Right to Clean up

6.3

Owner’s Right to PerformConstruction and to Award Separate Contracts

6.1

Owner’s Right to Stop the Work

2.3

Owner’s Right to Suspend theWork

14.3

Owner’s Right to Terminate theContract

14.2

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

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

PartialOccupancy or Use

9.6.6, 9.9,11.4.1.5

Patching, Cutting and

3.14, 6.2.5

Patents

3.17

Payment, Application for

4.2.5, 7.3.8,9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5, 9.10.1, 9.10.3, 9.10.5, 11.1.3,14.2.4, 14.4.3

Payment, Certificates for

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

Payment, Failure of

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

Payment, Final

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

Payment Bond, Performance Bondand

7.3.6.4,9.6.7, 9.10.3, 11.4.9, 11.5

Payments, Progress

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

 

6

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PAYMENTS AND COMPLETION

9

Payments to Subcontractors

5.42, 9.5.1.3,9.6.2, 9.6.3, 9.6.4, 9.6.7, 11.4.8, 14.2.1.2

PCB

10.3.1

Performance Bond and PaymentBond

7.3.6.4,9.6.7, 9.10.3, 11.4.9, 11.5

Permits, Fees and Notices

2.2.2, 3.7,3.13, 7.3.6.4, 10.2.2

PERSONS AND PROPERTY,PROTECTION OF

10

Polychlorinated Biphenyl

10.3.1

Product Data, Definition of

3.12.2

Product Data and Samples, ShopDrawings

3.11, 3.12,4.2.7

Progress and Completion

4.2.2, 4.3.3,8.2, 9.8, 9.9.1, 14.1.4

Progress Payments

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

Project, Definition of the

1.1.4

Project Management ProtectiveLiability Insurance

11.3

Project Manual, Definition ofthe

1.1.7

Project Manuals

2.2.5

Project Representatives

4.2.10

Property Insurance

10.2.5, 11.4

PROTECTION OF PERSONS ANDPROPERTY

10

Regulations and Laws

1.6, 3.2.2,3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, 9.9.1, 10.2.2, 11.1, 11.4,13.1, 13.4, 13.5.1, 13.5.2, 13.4, 14

Rejection of Work

3.5.1, 4.2.6,12.2.1

Releases and Waivers of Liens

9.10.2

Representations

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

Representatives

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

Resolution of Claims andDisputes

4.4, 4.5, 4.6

Responsibility for ThosePerforming the Work

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

Retainage

9.3.1, 9.6.2,9.8.5, 9.9.1, 9.10.2, 9.10.3

Review of Contract Documentsand Field Conditions by Contractor

1.5.2, 3.2,3.7.3, 3.12.7, 6.1.3

Review of Contractor’sSubmittals by Owner and Architect

3.10.1,3.10.2, 3.11, 3.12, 4.2, 5.2, 6.1.3, 9.5, 9.8.2

Review of Shop Drawings,Product Data and Samples by Contractor

3.12

Rights and Remedies

1.1.2, 2.3,2.4, 3.5.1, 3.15.2, 4.2.6, 4.3.4, 4.5, 4.6, 5.3, 5.4, 6.1, 6.3, 7.3.1, 8.3,9.5.1, 9.7, 10.2.5, 10.3, 12.2.2, 12.2.4, 13.4, 14

Royalties, Patents andCopyrights

3.17

Rules and Notices forArbitration

4.6.2

Safety or Persons and Property

10.2, 10.6

Safety Precautions and Programs

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

Samples, Definition of

3.12.3

Samples, Shop Drawings, ProductData and

3.11, 3.12,4.2.7

Samples at the Site, Documentsand

3.11

Schedule of Values

9.2, 9.3.1

Schedules, Construction

1.4.1.2, 3.10,3.12.1, 3.12.2, 4.3.7.2, 6.1.3

Separate Contracts andContractors

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

Shop Drawings, Definition of

3.12.1

Shop Drawings, Product Data andSamples

3.11, 3.12,4.2.7

Site, Use of

3.13, 6.1.1,6.2.1

Site Inspections

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

Site Visits, Architect’s

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

Special Inspections and Testing

4.2.6, 12.2.1,13.5

Specifications, Definition ofthe

1.1.6

 

7

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Specifications, The

1.1.1, 1.1.6,1.1.7, 1.2.2, 1.6, 3.1.1, 3.12.10, 3.17

Statute of Limitations

4.6.3, 12.2.6,13.7

Stopping the Work

2.3, 4.3.4,9.7, 10.3, 14.1

Stored Materials

6.2.1, 9.3.2,10.2.1.2, 10.2.4, 11.4.1.4

Subcontractor, Definition of

5.1.1

SUBCONTRACTORS

5

Subcontractors, Work by

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

Subcontractual Relations

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

Submittals

1.6, 3.10,3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.5, 9.3, 9.8, 9.9.1, 9.10.2, 9.10.3,11.1.3

Subrogation, Waivers of

6.1.1, 11.4.5,11.4.7

Substantial Completion

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

Substantial Completion,Definition of

9.8.1

Substitution of Subcontractors

5.2.3, 5.2.4

Substitution of Architect

4.1.3

Substitutions of Materials

3.4.2, 3.5.1,7.3.7

Sub-subcontractor, Definitionof

5.1.2

Subsurface Conditions

4.3.4

Successors and Assigns

13.2

Superintendent

3.9, 10.2.6

Supervision and ConstructionProcedures

1.2.2, 3.3,3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, 6.2.4, 7.1.3, 7.3.6, 8.2, 8.3.1,9.4.2, 10, 12, 14

Surety

4.4.7,5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2

Surety, Consent of

9.10.2, 9.10.3

Surveys

2.2.3

Suspension by the Owner forConvenience

14.4

Suspension of the Work

5.4.2, 14.3

Suspension or Termination ofthe Contract

5.3.6, 5.4.1.1,11.4.9, 14

Taxes

3.6, 3.8.2.1,7.3.6.4

Termination by the Contractor

4.3.10, 14.1

Termination by the Owner forCause

4.3.10,5.4.1.1, 14.2

Termination of the Architect

4.1.3

Termination of the Contractor

14.2.2

TERMINATION OR SUSPENSION OFTHE CONTRACT

14

Tests and Inspections

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

TIME

8

Time, Delays and Extensions of

3.2.3, 4.3.1,4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1, 7.5.1, 8.3, 9.5.1, 9.7.1,10.3.2, 10.6.1, 14.3.2

Time Limits

2.1.2, 2.2,2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.2,5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8,9.9, 9.10, 11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5, 13.7.14

Time Limits on Claims

4.3.2, 4.3.4,4.3.8, 4.4, 4.5, 4.6

Title to Work

9.3.2, 9.3.3

UNCOVERING AND CORRECTION OFWORK

12

Uncovering of Work

12.1

Unforeseen Conditions

4.3.4, 8.3.1,10.3

Unit Prices

4.3.9, 7.3.3.2

Use of Documents

1.1.1, 1.6,2.2.5, 3.12.6, 5.3

Use of Site

3.13, 6.1.1,6.2.1

Values, Schedule of

9.2, 9.3.1

Waiver of Claims by theArchitect

13.4.2

Waiver of Claims by theContractor

4.3.10,9.10.5, 11.4.7, 13.4.2

 

8

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Waiver of Claims by the Owner

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

Waiver of Consequential Damages

4.3, 10,14.2.4

Waiver of Liens

9.10.2, 9.10.4

Waivers of Subrogation

6.14.1,11.4.5, 11.4.7

Warranty

3.5, 4.2.9,4.3, 5.3, 9.3.3, 9.8.4, 9.9.1, 9.10.4, 12.2.2, 13.7.1.3

Weather Delays

4.3.7.2

Work, Definition of

1.1.3

Written Consent

1.6, 3.4.2,3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3,11.4.1, 13.2, 13.4.2

Written Interpretations

4.2.11,4.2.12, 4.3.6

Written Notice

2.3, 2.4,3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10,10.2.2, 10.3, 11.1.3, 11.4.6, 12.2.2, 12.2.4, 13.3.14

Written Orders

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

 

ARTICLE 1  GENERAL PROVISIONS

1.1    BASIC DEFINITIONS

1.1.1 THE CONTRACT DOCUMENTS

The ContractDocuments consist of the Agreement between Owner and Contractor (hereinafterthe Agreement), Conditions of the Contract (General, Supplementary and otherConditions), Drawings, Specifications, Addenda issued prior to execution of theContract, other documents listed in the Agreement and Modifications issuedafter execution of the Contract.  AModification is (1) a written amendment to the Contract signed by both parties,(2) a  Change Order, (3) a ConstructionChange Directive or (4) a written order for a minor change in the Work issuedby the Architect.  Unless specificallyenumerated in the Agreement, the Contract Documents do not include other documentssuch as bidding requirements (advertisement or invitation to bid, instructionsto Bidders, sample forms, the Contractor’s bid or portions of Addenda relatingto bidding requirements).  **In the event of any conflict among the ContractDocument, the Documents shall be constructed according to the followingpriorities:**

**Highest Priority****                                                      Modifications**

**Second Priority****                                                          Owner/ContractorAgreement**

**Third Priority****                                                                  Addenda[later date to take Precedence]**

**Fourth Priority****                                                            GeneralRequirement**

**Fifth Priority****                                                                       SupplementaryGeneral Conditions of the Contract for Construction**

**Sixth Priority****                                                                    GeneralConditions of the Contract for Construction Drawings**

**Seventh Priority****                                                      Drawings**

**Eighth Priority****                                                             Specifications**

 

1.1.2 THE CONTRACT

The ContractDocuments form the Contract for Construction. The Contract represents the entire and integrated agreement between theparties hereto and supersedes prior negotiations, representations oragreements, either written or oral.  TheContract may be amended or

 

9

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modified onlyby a Modification.  The ContractDocuments shall not be construed to create a contractual relationship of anykind (1) between the Architect and Contractor, (2) between the Owner and aSubcontractor or Sub-subcontractor, (3) between the Owner and Architect or (4) betweenany persons or entities other than the Owner and Contractor.  The Architect shall, however, be entitled toperformance and enforcement of obligations under the Contract intended tofacilitate performance of the Architect’s duties.

 

1.1.3 THE WORK

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

 

1.1.4 THE PROJECT

The Project isthe total construction of which the Work performed under the Contract Documentsmay be the whole or a part and which may include construction by the Owner orby separate contractors.

 

1.1.5 THE DRAWINGS

The Drawingsare the graphic and pictorial portions of the Contract Documents showing thedesign, location and dimensions of the Work, generally including plans,elevations, sections, details, schedules and diagrams.

 

1.1.6 THE SPECIFICATIONS

TheSpecifications are that portion of the Contract Documents consisting of thewritten requirements for materials, equipment, systems, standards andworkmanship for the Work, and performance of related services.

 

1.1.7 THE PROJECT MANUAL

The ProjectManual is a volume assembled for the Work which may include the biddingrequirements, sample forms, Conditions of the Contract and Specifications.

 

1.2    CORRELATION AND INTENT OF THE CONTRACTDOCUMENTS

1.2.1 The intent of the Contract Documents is toinclude all items necessary for the proper execution and completion of the Workby the Contractor.  The ContractDocuments are complementary, and what is required by one shall be as binding asif required by all; performance by the Contractor shall be required only to theextent consistent with the Contract Documents and reasonably inferable fromthem as being necessary to produce the indicated results.

 

1.2.2 Organization of the Specifications intodivisions, sections and articles, and arrangement of Drawings shall not controlthe Contractor in dividing the Work among Subcontractors or in establishing theextent of Work to be performed by any trade. **The Contractor and allSubcontractors shall refer to all the Drawings including those showingprimarily the Work of the mechanical, electrical and other specialized tradesand to all of the Sections of the Specifications, and shall perform all Workreasonably Inferable therefrom as being necessary to produce the Indicatedresults.**

 

1.2.3 Unless otherwise stated in the ContractDocuments, words which have well-known technical or construction industrymeanings are used in the Contract Documents in accordance with such recognizedmeanings.

 

 

10

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1.3           CAPITALIZATION

1.3.1        Terms capitalized inthese General Conditions include those which are (1) specifically defined, (2)the titles of numbered articles and identified references to Paragraphs,Subparagraphs and Clauses in the document or (3) the titles of other documentspublished by the American Institute of Architects.

 

1.4           INTERPRETATION

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

 

1.5                                 EXECUTION OF CONTRACTDOCUMENTS

1.5.1        The ContractDocuments shall be signed by the Owner and Contractor.  If either the Owner or Contractor or both donot sign all the Contract Documents, the Architect shall identify such unsignedDocuments upon request.

 

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

 

1.6                                 OWNERSHIP AND USE OFDRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE

1.6.1        The Drawings,Specifications and other documents, including those in electronic form,prepared by the Architect and the Architect’s consultants are Instruments ofService through which the Work to be executed by the Contractor isdescribed.  The Contractor may retainone record set **from the commencement ofconstruction to the completion of the Project, and for such period of timethereafter, to and including the date of the expiration of any and all warrantyperiods for any warranties pertaining to the Work**.  Neither the Contractor nor anySubcontractor, Sub-contractor or material or equipment supplier shall own orclaim a copyright in the Drawings, Specifications and other documents preparedby the Architect or the Architect’s Consultants, and unless otherwise indicatedthe Architect and the Architect’s consultants shall be deemed the authors ofthem and will retain all common law, statutory and other reserved rights, inaddition to the copyrights.  All copiesof Instruments of Service, except the Contractor’s record set, shall bereturned or suitably accounted for to the Architect, on request, uponcompletion of the Work.  The Drawings,Specifications and other documents prepared by the Architect and theArchitect’s consultants, and copies thereof furnished to the Contractor, arefor use solely with respect to this Project. They are not to be used by the Contractor or any Subcontractor,Sub-subcontractor or material or equipment supplier on other projects or foradditions to this Project outside the scope of the Work without the specificwritten consent of the Owner, Architect and the Architect’s consultants.  The Contractor, Subcontractors,Sub-subcontractors and material or equipment suppliers are authorized to useand reproduce applicable portions of the Drawings, Specifications and otherdocuments prepared by the Architect and the Architect’s consultants appropriateto and for use in the execution of their Work under the Contract Documents.  All copies made under this authorizationshall bear the statutory copyright notice, if any, shown on the Drawings,Specifications and other documents prepared by the Architect and theArchitect’s consultants, Submittal or distribution to meet official regulatoryrequirements or for other purposes in connection with this Project is not to beconstrued as publication in derogation of the Architect’s or Architect’sconsultants’ copyrights or other reserved rights.

 

11

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ARTICLE 2     OWNER

2.1                                 GENERAL

2.1.1        The Owner is theperson or entity identified as such in the Agreement and is referred tothroughout the Contract Documents as if singular in number.  The Owner shall designate in writing arepresentative who shall have express authority to bind the Owner with respectto all matters requiring the Owner’s approval or authorization.  Except as otherwise provided in Subparagraph4.2.1, the Architect does not have such authority.  The term “Owner” means the Owner or the Owner’s authorized representative.

 

2.1.2        The Owner shallfurnish to the Contractor within fifteen days after receipt of a writtenrequest, information necessary and relevant for the Contractor to evaluate,give notice of or enforce mechanic’s lien rights.  Such information shall include a correct statement of the recordlegal title to the property on which the Project is located, usually referredto as the site, and the Owner’s interest therein.

 

2.2                                 INFORMATION ANDSERVICES REQUIRED OF THE OWNER

2.2.1        ~~The Owner shall,at the written request of the Contractor, prior to commencement of the Work andthereafter furnish to the Contractor reasonable evidence that financialarrangements have been made to fulfill the Owner’s obligations under theContract.  Furnishing of such evidenceshall be a condition precedent to commencement or continuation of theWork.  After such evidence has beenfurnished, the Owner shall not materially vary such financial arrangementswithout prior notice to the Contractor.~~

 

2.2.2        Except for permitsand fees, including those required under Subparagraph 3.7.1, which are theresponsibility of the Contractor under the Contract Documents, the Owner shallsecure and pay for necessary approvals, easements, assessments and chargesrequired for construction, use or occupancy of permanent structures or forpermanent changes in existing facilities.

 

2.2.3        The Owner shallfurnish surveys describing physical characteristics, legal limitations andutility locations for the site of the Project, and a legal description of thesite.  The Contractor shall be entitledto rely on the accuracy of information furnished by the Owner but shallexercise proper precautions relating to the safe performance of the Work.

 

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

 

2.2.5        Unless otherwiseprovided in the Contract Documents, the Contractor will be furnished, free ofcharge, such copies of Drawings and Project Manuals as are reasonably necessaryfor execution of the Work.

 

2.3                                 OWNER’S RIGHT TO STOPTHE WORK

2.3.1        If the Contractorfails to correct Work which is not in accordance with the requirements of theContract Documents as required by Paragraph 12.2 or persistently fails to carryout Work in accordance with the Contract Documents, the Owner may issue awritten order to the Contractor to stop the Work, or any portion thereof, untilthe cause for such order has been eliminated; however, the right of the Ownerto stop the Work shall not give rise to a duty on the part of the Owner toexercise this right for the benefit of the Contractor or any other person orentity, except to the extent required by Subparagraph 6.1.3.

 

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2.4                                 OWNER’S RIGHT TO CARRYOUT THE WORK

2.4.1        ~~If the Contractordefaults or neglects to carry out the Work in accordance with the ContractDocuments and fails within a seven day period after receipt of written noticefrom the Owner to commence and continue correction of such default or neglectwith diligence and promptness, the Owner may after such seven day period givethe Contractor a second written notice to correct such deficiencies within athree day period.  If the Contractorwithin such three day period after receipt of such second notice fails tocommence and continue to correct any deficiencies, the Owner may, withoutprejudice to other remedies the Owner may have, correct such deficiencies.~~  **If theContractor defaults or neglects to carry out the Work in accordance with theContract Documents and fails within a seven-day period after receipt of writtennotice from the Owner to begin and prosecute correction of such default orneglect with diligence and promptness the Owner may without prejudice to otherremedies the Owner may have, correct such deficiencies**.  In such case an appropriate Change Ordershall be issued deducting from payments then or thereafter due the Contractorthe reasonable cost of correcting such deficiencies, including Owner’s expensesand compensation for the Architect’s additional services made necessary by suchdefault, neglect or failure.  ~~Suchaction by the Owner and amounts charged to the Contractor are both subject toprior approval of the Architect.~~  Ifpayments then or thereafter due the Contractor are not sufficient to cover suchamounts, the Contractor shall pay the difference to the Owner.

 

ARTICLE 3     CONTRACTOR

3.1                                 GENERAL

3.1.1        The Contractor is theperson or entity identified as such in the Agreement and is referred tothroughout the Contract Documents as if singular in number.  The term “Contractor” means the Contractoror the Contractor’s authorized representative.

 

3.1.2        The Contractor shallperform the Work in accordance with the Contract Documents.

 

3.1.3        The Contractor shallnot be relieved of obligations to perform the Work in accordance with theContract Documents either by activities or duties of the Architect in theArchitect’s administration of the Contract, or by tests, inspections orapprovals required or performed by persons other than the Contractor.

 

3.2                                 REVIEW OF CONTRACTDOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR

3.2.1        ~~Since the ContractDocuments are complementary before starting each portion of the Work~~**Before starting the Work, and at frequent intervalsduring the progress thereof** the Contractor shall carefully studyand compare the ~~various Drawings and other~~Contract Documents ~~relativeto that portion of the Work, as well as the information~~**with each other and with the information**furnished by the Owner pursuant to Subparagraph 2.2.3, **and**shall **at once report to the Architect and Owner any error,inconsistency or omission the Contractor may discover.  Any necessary change shall be ordered asprovided in Article 7 subject to the requirement of Paragraph 1.2 and otherprovisions of the Contract Documents. If the Contractor proceeds with the Work without such notice to theArchitect having discovered and having thereby obtained actual knowledge ofsuch errors, inconsistencies or omissions, the Contractor shall bear all costsarising therefrom**, ~~take~~

 

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~~field measurements of any existing conditions related to that portionof the Work and shall observe any conditions at the site affecting it.  These obligations are for the purpose offacilitating construction by the Contractor and are not for the purpose ofdiscovering errors, omissions, or inconsistencies in the Contract Documents;however, any errors, inconsistencies or omissions discovered by the Contractorshall be reported promptly to the Architect as a request for information insuch form as the Architect may require.~~

 

3.2.2        Any design errors oromissions noted by the Contractor during this review shall be reported promptlyto the Architect, but it is recognized that the Contractor’s review is made inthe Contractor’s capacity as a contractor and not as a licensed designprofessional unless otherwise specifically provided in the ContractDocuments.  The Contractor is notrequired to ascertain that the Contract Documents are in accordance withapplicable laws, statutes, ordinances, building codes, and rules andregulations, but any nonconformity discovered by or made known to theContractor shall be reported promptly to the Architect.

 

3.2.3        If the Contractorbelieves that additional cost or time is involved because of clarifications orinstructions issued by the Architect in response to the Contractor’s notices orrequest for information pursuant to Subparagraphs 3.2.1 and 3.2.2, theContractor shall make Claims as provided in Subparagraphs 4.3.6 and 4.3.7.  If the Contractor fails to perform theobligations of Subparagraphs 3.2.1 and 3.2.2, the Contractor shall pay suchcosts and damages to the Owner as would have been avoided if the Contractor hadperformed such obligations.  TheContractor shall not be liable to the Owner or Architect for damages resultingfrom errors, inconsistencies or omissions in the Contract Documents or fordifferences between field measurements or conditions and the Contract Documentsunless the Contractor recognized such error, inconsistency, omission ordifference and knowingly failed to report it to the Architect.

 

**3.2.4       TheContractor shall not proceed with any Work that Contractor knows is not clearlyand consistently defined in detail in the Contract Documents, but shall requestadditional drawings or instructions from the Architect as provided inSubparagraph 3.2.3.  If the Contractorproceeds with Work that Contractor knows is not clearly and consistentlydefined in detail in the Contract Documents without obtaining further Drawings,Specifications or Instructions, the Contractor shall correct Work incorrectlydone at the Contractor’s own expense.**

 

3.3                                 SUPERVISION ANDCONSTRUCTION PROCEDURES

3.3.1        The Contractor shallsupervise and direct the Work, using the Contractor’s best skill andattention.  The Contractor shall besolely responsible for and have control over construction means, methods,techniques, sequences and procedures and for coordinating all portions of theWork under the Contract, unless the Contract Documents give other specificinstructions concerning these matters. If the Contract Documents give specific instructions concerningconstruction means, methods, techniques, sequences or procedures, theContractor shall evaluate the jobsite safety thereof and, except as statedbelow, shall be fully and solely responsible for the jobsite safety of suchmeans, methods, techniques, sequences or procedures.  If the Contractor determines that such means, methods,techniques, sequences or procedures may not be safe, the Contractor shall givetimely written notice to the Owner and Architect and shall not proceed withthat portion of the Work without further written instructions from theArchitect.  If the Contractor is theninstructed to proceed with the required means, methods, techniques, sequencesor procedures without acceptance of changes proposed by the Contractor, theOwner shall be solely responsible for any resulting loss or damage.

 

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3.3.2        The Contractor shallbe responsible to the Owner for acts and omissions of the Contractor’semployees, Subcontractors and their agents and employees, and other persons orentities performing portions of the Work for or on behalf of the Contractor orany of its Subcontractors.

 

3.3.3        The Contractor shallbe responsible for inspection of portions of Work already performed todetermine that such portions are in proper condition to receive subsequentWork.

 

3.4                                 LABOR AND MATERIALS

3.4.1        Unless otherwiseprovided in the Contract Documents, the Contractor shall provide and pay forlabor, materials, equipment, tools, construction equipment and machinery,water, heat, utilities, transportation, and other facilities and servicesnecessary for proper execution and completion of the Work, whether temporary orpermanent and whether or not incorporated or to be incorporated in the Work.

 

3.4.2        The Contractor maymake substitutions only with the consent of the Owner, after evaluation by theArchitect and in accordance with a Change Order.

 

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

 

3.5                                 WARRANTY

3.5.1        The Contractorwarrants ~~to~~**that** the~~Owner and Architect that~~ materials and equipment furnished under theContract will be ~~of good quality and new~~**new and of recent manufacture** unless otherwise **specified**~~required or permitted bythe Contract Documents, that the Work will be free from defects not inherent inthe quality required or permitted,~~and that ~~the~~**all** Work will ~~conform to therequirements of the Contract Documents~~**beof good quality, free from faults and defects and in conformance with theContract Documents**. Work not conforming to these requirements, including substitutions notproperly approved and authorized, may be considered defective.  The Contractor’s warranty excludes remedyfor damage or defect caused by abuse, modifications not executed by theContractor, improper or insufficient maintenance, improper operation, or normalwear and tear and normal usage.  ~~Ifrequired by the Architect, the Contractor shall furnish satisfactory evidenceas to the kind and quality of materials and equipment.~~

 

**3.5.2       TheContractor shall be responsible for determining that all materials furnishedfor the Work meet all requirements of the Contract Documents.  The Architect may require the Contractor toproduce reasonable evidence that a material meets such requirements such ascertified reports of past tests by qualified testing laboratories reports ofstudies by qualified experts, or other evidence which, in the opinion of theArchitect, would lead to a reasonable certainty that all material used or proposedto be used in the Work meets the requirements of the Contract Documents.  All such data shall be furnished at theContractor’s expense.  This provisionshall not require the Contractor to pay for periodic testing**

 

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**of different batches of the same materialunless such testing is specifically required by the Contract Documents to beperformed at the Contractor’s expense.**

** **

**3.5.3       Inall cases in which a manufacturer’s name, trade name, or other proprietarydesignation is used in connection with materials or articles to be furnishedunder this Contract, whether or not the phrase “or equal” is used after suchname, the Contractor shall furnish the product of the named manufacturer(s)without substitution unless a written request for a substitute has beensubmitted by the Contractor and approved in writing by the Architect asprovided in Subparagraph 3.5.4.**

** **

**3.5.4       Ifthe Contractor proposes to use a material which while suitable for the intendeduse deviates in any way from the detailed requirements of the ContractDocuments the Contractor shall inform the Architect in writing of the nature ofsuch deviations at the time the material is submitted for approval and shallrequest written approval of the deviation from the requirements of the ContractDocuments.**

** **

**3.5.5       Inrequesting approval of deviations or substitutions the Contractor shall provideupon request evidence leading to a reasonable certainty that the proposedsubstitution or deviation will provide a quality of result at least equal tothat otherwise attainable.  If in theopinion of the Architect, the evidence presented by the Contractor does notprovide a sufficient basis for such reasonable certainty the Architect mayreject such substitutions or deviations without further investigation.**

** **

**3.5.6       TheArchitect shall judge the design and the Owner shall judge the appearance ofproposed substitutes on the basis of their suitability in relation to theoverall Project, as well as for their intrinsic merits, in order to permitcoordinated design of color and finish texture or pattern which would have beenavailable from the manufacturer originally specified, at no additional cost tothe Owner.  Neither the Architect northe Owner will approve as equal to materials specified, proposed substituteswhich in the Owner’s opinion, would be out of character, obtrusive or otherwiseinconsistent with the character or quality of the Project, or in which, in theArchitect’s opinion, would not be appropriate to the design of the Project.**

 

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**3.5.7       Anyadditional cost, or any loss or damage arising from the substitution of anymaterial or any method for those originally specified shall be borne by theContractor notwithstanding approval or acceptance of such substitution by theOwner or the Architect, unless such substitution was made at the writtenrequest or direction of the Owner or the Architect.**

** **

**3.5.8       Thewarranty provided in this Paragraph 3.5 shall be in addition to and not inlimitation of any other warranty required by the Contract Documents orotherwise prescribed or permitted by law.**

** **

**3.5.9       TheContractor shall procure and deliver to the Architect, no later than the dateclaimed by the Contractor as the date of Substantial Completion, all specialwarranties required by the Contract Documents. Delivery by the Contractor shall constitute the Contractor’s guaranteeto the Owner that the warranty will be performed in accordance with its termsand conditions.**

 

3.6                                 TAXES

3.6.1        The Contractor shallpay sales, consumer, use and similar taxes for the Work provided by theContractor which are legally enacted when bids are received or negotiationsconcluded, whether or not yet effective or merely scheduled to go into effect.

 

3.7                                 PERMITS, FEES ANDNOTICES

3.7.1        Unless otherwiseprovided in the Contract Documents, the Contractor shall secure and pay for thebuilding permit and other permits and governmental fees, licenses andinspections necessary for proper execution and completion of the Work which arecustomarily secured after execution of the Contract and which are legallyrequired when bids are received or negotiations concluded.

 

3.7.2        The Contractor shallcomply with and give notices required by laws, ordinances, rules, regulationsand lawful orders of public authorities applicable to performance of the Work.

 

3.7.3        It is not theContractor’s responsibility to ascertain that the Contract Documents are inaccordance with applicable laws, statutes, ordinances, building codes, andrules and regulations.  However, if theContractor observes that portions of the Contract Documents are at variancetherewith, the Contractor shall promptly notify the Architect and Owner inwriting, and necessary changes shall be accomplished by appropriateModification.

 

3.7.4        If the Contractorperforms Work knowing it to be contrary to laws, statutes, ordinances, buildingcodes, and rules and regulations without such notice to the Architect andOwner, the Contractor shall assume appropriate responsibility for such Work andshall bear the costs attributable to correction.

 

**3.7.5       TheContractor agrees that, unless otherwise agreed by the Owner all governmentalpermits, licenses, and notification with respect to the Work shall becoordinated through the Owner and, where appropriate, the Architect inaccordance with any legal**

 

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**requirements attached to the Specifications.No application for permits, licenses of any kind and no notifications togovernmental authorities may be made by Contractor without the prior writtenapproval of the Owner and the Architect. All dealings with governmental officials with respect to the Work shallbe coordinated with the Owner or its designated representative.  The Owner and the Contractor shall agreeupon a reasonable procedure to handle normal and customary inspections of theWork by governmental officials during the progress thereof.**

 

3.8                                 ALLOWANCES

3.8.1        The Contractor shallinclude in the Contract Sum all allowances stated in the ContractDocuments.  Items covered by allowancesshall be supplied for such amounts and by such persons or entities as the Ownermay direct, but the Contractor shall not be required to employ persons orentities to whom the Contractor has reasonable objection.

 

3.8.2        Unless otherwiseprovided in the Contract Documents:

 

.1               allowancesshall cover the cost to the Contractor of materials and equipment delivered atthe site and all required taxes, less applicable trade discounts;

.2               Contractor’scosts for unloading and handling at the site, labor, installation costs,overhead, profit and other expenses contemplated for stated allowance amountsshall be included in the Contract Sum but not in the allowances;

.3               whenevercosts are more than or less than allowances, the Contract Sum shall be adjustedaccordingly by Change Order.  The amountof the Change Order shall reflect (1) the difference between actual costs andthe allowances under Clause 3.8.2.1 and (2) changes in Contractor’s costs underClause 3.8.2.2.

 

3.8.3        Materials andequipment under an allowance shall be selected by the Owner in sufficient timeto avoid delay in the Work.

 

3.9                                 SUPERINTENDENT

3.9.1        The Contractor shallemploy a competent superintendent and necessary assistants who shall be inattendance at the Project site during performance of the Work.  The superintendent shall represent theContractor, and communications given to the superintendent shall be as bindingas if given to the Contractor. Important communications shall be confirmed in writing.  Other communications shall be similarlyconfirmed on written request in each case.

 

**3.9.2       TheContractor shall be totally responsible for and shall coordinate and supervisethe Work performed by Subcontractors to the end that the Work is carried outwithout conflict between trades and so that no trade at any time causes delayto the general progress of the Work. The Contractor and all Subcontractors shall at all times afford eachtrade, any separate contractor or the Owner every reasonable opportunity forthe installation of Work and the storage of materials.**

 

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**3.9.3       TheContractor shall arrange for and attend job meetings with the Architect andsuch other persons as the Architect may from time-to-time wish to havepresent.  The Contractor shall berepresented by a principal the project manager, general superintendent of otherauthorized main office representative, as well as by the Contractor’s ownsuperintendent.  An authorized representativeof any Subcontractor or Sub-subcontractor shall attend such meetings if therepresentative’s presence is requested by the Owner, Architect orContractor.  Such representatives shallbe empowered to make binding commitments on all matters to be discussed at suchmeetings including costs, payment, change orders, time schedules andmanpower.  Any notices required underthe Contract may be served on such representatives.**

 

3.10                           CONTRACTOR’S CONSTRUCTIONSCHEDULES

3.10.1      The Contractor,promptly after being awarded the Contract, shall prepare and submit for theOwner’s and Architect’s information a Contractor’s construction schedule forthe Work.  The schedule shall not exceedtime limits current under the Contract Documents, shall be revised atappropriate intervals as required by the conditions of the Work and Project,shall be related to the entire Project to the extent required by the ContractDocuments, and shall provide for expeditious and practicable execution of theWork.

 

3.10.2      The Contractor shallprepare and keep current, for the Architect’s approval, a schedule ofsubmittals which is coordinated with the Contractor’s construction schedule andallows the Architect reasonable time to review submittals.

 

3.10.3      The Contractor shallperform the Work in general accordance with the most recent schedules submittedto the Owner and Architect.

 

3.11                           DOCUMENTS AND SAMPLES AT THESITE

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

 

3.12                           SHOP DRAWINGS, PRODUCT DATAAND SAMPLES

3.12.1      Shop Drawings aredrawings, diagrams, schedules and other data specially prepared for the Work bythe Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier ordistributor to illustrate some portion of the Work.

 

3.12.2      Product Data areillustrations, standard schedules, performance charts, instructions, brochures,diagrams and other information furnished by the Contractor to illustratematerials or equipment for some portion of the Work.

 

3.12.3      Samples are physicalexamples which illustrate materials, equipment or workmanship and establishstandards by which the Work will be judged.

 

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3.12.4      Shop Drawings, ProductData, Samples and similar submittals are not Contract Documents.  The purpose of their submittal is todemonstrate for those portions of the Work for which submittals are required bythe Contract Documents the way by which the Contractor proposes to conform tothe information given and the design concept expressed in the ContractDocuments.  Review by the Architect is subjectto the limitations of Subparagraph 4.27. Informational submittals upon which the Architect is not expected totake responsive action may be so identified in the Contract Documents.  Submittals which are not required by theContract Documents may be returned by the Architect without action.

 

3.12.5      The Contractor shallreview for compliance with the Contract Documents, approve and submit to theArchitect Shop Drawings, Product Data, Samples and similar submittals requiredby the Contract Documents with reasonable promptness and in such sequence as tocause no delay in the Work or in the activities of the Owner or of separatecontractors.  Submittals which are notmarked as reviewed for compliance with the Contract Documents and approved bythe Contractor may be returned by the Architect without action.

 

3.12.6      By approving andsubmitting Shop Drawings, Product Data, Samples and similar submittals, theContractor **thereby**represents that the Contractor has determined and verified **all dimensions, quantities, field dimensions,relations to existing work to be installed later, coordination with informationon previously accepted Shop Drawing, Product Date, Samples, or similarsubmittals and verification of compliance with all the requirements of theContract Documents**. ~~materials, field measurements and field construction criteria relatedthereto or will do so, and has checked and coordinated the informationcontained within such submittals with the requirements of the Work and of theContract-Documents.~~

 

3.12.7      The Contractor shallperform no portion of the Work for which the Contract Documents requiresubmittal and review of Shop Drawings, Product Data, Samples or similarsubmittals until the respective submittal has been approved by the Architect.

 

3.12.8      The Work shall be inaccordance with approved submittals except that the Contractor shall not berelieved of responsibility for deviations from requirements of the ContractDocuments by the Architect’s approval of Shop Drawings, Product Data, Samplesor similar submittals unless the Contractor has specifically informed theArchitect in writing of such deviation at the time of submittal and (1) theArchitect has given written approval to the specific deviation as a minorchange in the Work, or (2) a Change Order or Construction Change Directive has beenissued authorizing the deviation.  TheContractor shall not be relieved of responsibility for errors or omissions inShop Drawings, Product Data, Samples or similar submittals by the Architect’sapproval thereof.

 

3.12.9      The Contractor shalldirect specific attention, in writing or on resubmitted Shop Drawings, ProductData, Samples or similar submittals, to revisions other than those requested bythe Architect on previous submittals. In the absence of such written notice the Architect’s approval of aresubmission shall not apply to such revisions.

 

3.12.10    The Contractor shallnot be required to provide professional services which constitute the practiceof architecture or engineering unless such services are specifically requiredby the Contract Documents for a portion of the Work or unless the Contractorneeds to provide such services in order to carry out the Contractor’sresponsibilities for construction means, methods, techniques, sequences andprocedures.  The Contractor shall not berequired to provide professional services in violation of applicable law.  If professional design services orcertifications by a design professional related to systems, materials orequipment are specifically

 

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required of the Contractor by the Contract Documents, the Owner and theArchitect will specify all performance and design criteria that such servicesmust satisfy.  The Contractor shallcause such services or certifications to be provided by a properly licenseddesign professional, whose signature and seal shall appear on all drawings,calculations, specifications, certifications, Shop Drawings and othersubmittals prepared by such professional. Shop Drawings and other submittals related to the Work designed orcertified by such professional, if prepared by others, shall bear suchprofessional’s written approval when submitted to the Architect.  The Owner and the Architect shall beentitled to rely upon the adequacy, accuracy and completeness of the services,certifications or approvals performed by such design professionals, providedthe Owner and Architect have specified to the Contractor all performance anddesign criteria that such services must satisfy. Pursuant to this Subparagraph3.12.10, the Architect will review, approve or take other appropriate action onsubmittals only for the limited purpose of checking for conformance withinformation given and the design concept expressed in the ContractDocuments.  The Contractor shall not beresponsible for the adequacy of the performance or design criteria required bythe Contract Documents.

 

3.13                           USE OF SITE

3.13.1      ~~The Contractorshall confine operations of the site to areas permitted by laws, ordinances,permits and the Contract Documents and shall not unreasonably encumber the sitewith materials or equipment.~~  **The right of possession of the premises and theimprovements made thereon by the Contractor shall remain at all times in theOwner.  The Contractor’s right to entryand use thereof arises solely from the permission granted by the Owner underthe Contract Documents.  The Contractorshall confined the Contractor’s apparatus the storage of materials and theoperations of the Contractor’s workmen to limits indicated by law, ordinancesthe Contract Documents and permits and/or directions of the Architect and shallnot unreasonably encumber the premises with the Contractor’s materials.  The Owner shall not be liable to theContractor, the Subcontractors, their employees or anyone else with respect tothe conditions of the premises, except only for a condition caused directly andsolely by the negligence of the Owner.**

 

3.14                           CUTTING AND PATCHING

3.14.1      The Contractor shallbe responsible for cutting, fitting or patching required to complete the Workor to make its parts fit together properly.

 

3.14.2      The Contractor shallnot damage or endanger a portion of the Work or fully or partially completedconstruction of the Owner or separate contractors by cutting, patching orotherwise altering such construction, or by excavation.  The Contractor shall not cut or otherwisealter such construction by the Owner or a separate contractor except withwritten consent of the Owner and of such separate contractor, such consentshall not be unreasonably withheld.  TheContractor shall not unreasonably withhold from the Owner or a separatecontractor the Contractor’s consent to cutting or otherwise altering the Work.

 

3.15                           CLEANING UP

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

 

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3.15.2      If the Contract failsto clean up as provided in the Contract Documents, the Owner may do so and thecost thereof shall be charged to the Contractor.

 

3.16                           ACCESS TO WORK

3.16.1      The Contractor shall providethe Owner and Architect access to the Work in preparation and progress whereverlocated.

 

3.17                           ROYALTIES, PATENTS ANDCOPYRIGHTS

3.17.1      The Contractor shallpay all royalties and license fees.  TheContractor shall defend suits or claims for infringement of copyrights andpatent rights and shall hold the Owner and Architect harmless from loss onaccount thereof, but shall not be responsible for such defense or loss when aparticular design, process or product of a particular manufacturer or manufacturersis required by the Contract Documents or where the copyright violations arecontained in Drawings, Specifications or other documents prepared by the Owneror Architect.  However, if theContractor has reason to believe that the required design, process or productis an infringement of a copyright or a patent, the Contractor shall beresponsible for such loss unless such information is promptly furnished to theArchitect.

 

3.18                           INDEMNIFICATION

3.18.1      To the fullest extentpermitted by law and to the claims, damages, losses or expense are not coveredby Project Management Protective Liability insurance purchased by theContractor in accordance with Paragraph 11.3, the Contractor shall indemnifyand hold harmless the Owner, Architect, Architect’s consultants, and agents andemployees of any of them from and against claims, damages, losses and expenses,**including their respective parent,affiliate and subsidiary companies and their respective directors, officers,partners, employees and agents from and against claims, damages, losses andexpenses (direct or indirect including but not limited to consequential andspecial damages),**including but not limited to attorney’sfees, arising out of or resulting from performance of the Work, provided thatsuch claim, damage, loss or expense is attributable to bodily injury, sickness,disease or death, or to injury to or destruction of tangible property (otherthan the Work itself),**including loss ofuse resulting therefrom to the extent covered by insurance**,but only to the extent caused by the negligent acts or omissions of theContractor, a Subcontractor, anyone directly or indirectly employed by them oranyone for whose acts they may be liable, regardless of whether or not suchclaim, damage, loss or expense is caused in part by a party indemnifiedhereunder.  Such obligation shall not beconstrued to negate, abridge, or reduce other rights or obligations ofindemnity which would otherwise exist as to a party or person described in thisParagraph 3.18.

 

3.18.2      In claims against anyperson or entity indemnified under this Paragraph 3.18 by an employee of theContractor, a Subcontractor, anyone directly or indirectly employed by them oranyone for whose acts they may be liable, the indemnification obligation underSubparagraph 3.18.1 shall not be limited by a limitation on amount or type ofdamages, compensation or benefits payable by or for the Contractor or sSubcontractor under workers’ compensation acts, disability benefit acts orother employee benefit acts.

 

ARTICLE 4     ADMINISTRATION OF THE CONTRACT

4.1                                 ARCHITECT

4.1.1        The Architect is theperson lawfully licensed to practice architecture or an entity lawfullypracticing architecture identified as such in the Agreement and is referred tothroughout the Contract Documents as if singular in number.  The term “Architect” means the Architect orthe Architect’s authorized representative.

 

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4.1.2        Duties,responsibilities and limitations of authority of the Architect as set forth inthe Contract Documents shall not be restricted, modified or extended withoutwritten consent of the Owner, Contractor and Architect.  Consent shall not be unreasonably withheld.

 

4.1.3        If the employment ofthe Architect is terminated, the Owner shall employ a new Architect ~~againstwhom the Contractor has no reasonable objection and~~whose status under theContract Documents shall be that of the former Architect.

 

4.2                                 ARCHITECTSADMINISTRATION OF THE CONTRACT

4.2.1        The Architect willprovide administration of the Contractor as described in the ContractDocuments, and will be an Owner’s representative (1) during construction, (2)until final payment is due and (3) with the Owner’s concurrence, from time totime during the one-year period for correction of Work described in Paragraph12.2.  The Architect will have authorityto act on behalf of the Owner only to the extent provided in the ContractDocuments, unless otherwise modified in writing in accordance with otherprovisions of the Contract.

 

4.2.2        The Architect, as arepresentative of the Owner, will visit the site at intervals appropriate tothe stage of the Contractor’s operations (1) to become generally familiar withand to keep the Owner informed about the progress and quality of the portion ofthe Work completed, (2) to endeavor to guard the Owner against defects anddeficiencies in the Work, and (3) to determine in general if the Work is beingperformed in a manner indicating that the Work, when fully completed, will bein accordance with the Contract Documents. However, the Architect will not be required to make exhaustive orcontinuous on-site inspections to check the quantity or quantity of theWork.  The Architect will neither havecontrol over or charge of, not be responsible for, the construction means,methods, techniques, sequences or procedures, or for the safety precautions andprograms in connection with the Work, since these are solely the Contractor’srights and responsibilities under the Contract Documents, except as provided inSubparagraph 3.3.1.

 

4.2.3        The Architect willnot be responsible for the Contractor’s failure to perform the Work inaccordance with the requirements of the Contract Documents.  The Architect will not have control over orcharge of and will not be responsible for acts or omissions of the Contractor,Subcontractors, or their agents or employees, or any other persons or entitiesperforming portions of the Work.

 

4.2.4        CommunicationsFacilitating Contract Administration. Except as otherwise provided in the Contract Documents or when directcommunications have been specially authorized, the Owner and Contractor shallendeavor to communicate with each other through the Architect about mattersarising out of or relating to the Contract. Communications by and with the Architect’s consultants shall be throughthe Architect.  Communications by andwith Subcontractors and material suppliers shall be through theContractor.  Communications by and withseparate contractors shall be through the Owner.

 

4.2.5        Based on the Architect’sevaluations of the Contractor’s Applications for Payment, the Architect willreview and certify the amounts due the Contractor and will issue Certificatesfor Payment in such amounts.

 

4.2.6        The Architect willhave authority to reject Work that does not conform to the ContractDocuments.  Whenever the Architectconsiders it necessary or advisable, the Architect will have authority torequire inspection or testing of the Work in accordance with Subparagraphs3.5.2 and 13.5.3, whether or not such Work is fabricated, installed orcompleted.  However, neither thisauthority of the Architect nor a decision made in good faith either to exerciseor not to exercise such authority shall give rise to a duty or responsibilityof the

 

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Architect to the Contractor, Subcontractors, material and equipmentsuppliers, their agents or employees, or other persons or entities performingportions of the Work.

 

4.2.7        The Architect willreview and approve or take other appropriate action upon the Contractor’ssubmittals such as Shop Drawings, Product Data and Samples, but only for thelimited purpose of checking for conformance with information given and thedesign concept expressed in the Contract Documents.  The Architect’s action will be taken with such reasonablepromptness as to cause no delay in the Work or in the activities of the Owner,Contractor or separate contractors, while allowing sufficient time in theArchitect’s professional judgment to permit adequate review.  Review of such submittals is not conductedfor the purpose of determining the accuracy and completeness of other detailssuch as dimensions and quantities, or for substantiating instructions forinstallation or performance of equipment or systems, all of which remain theresponsibility of the Contractor as required by the Contract Documents.  The Architect’s review of the Contractor’ssubmittals shall not relieve the Contractor of the obligations under Paragraphs3.3, 3.5 and 3.12.  The Architect’s reviewshall not constitute approval of safety precautions or, unless otherwisespecifically stated by the Architect, of any construction means, methods,techniques, sequences or procedures. The Architect’s approval of a specific item shall not indicate approvalof an assembly of which the item is a component.

 

4.2.8        The Architect willprepare Change Orders and Construction Change Directives, and may authorizeminor changes in the Work as provided in Paragraph 7.4.

 

4.2.9        The Architect willconduct inspections to determine the date or dates of Substantial Completionand the date of final completion, will receive and forward to the Owner, forthe Owner’s review and records, written warranties and related documentsrequired by the Contract and assembled by the Contractor, and will issue afinal Certificate for Payment upon compliance with the requirements of theContract Documents.

 

4.2.10       If the Owner and Architect agree, theArchitect will provide one or more project representative to assist in carryingout the Architect’s responsibilities at the site. The duties, responsibilitiesand limitations of authority of the such project representative shall be as setforth in an exhibit to be incorporated in the Contract Documents.

 

4.2.11      The Architect willinterpret and decide matters concerning performance under and requirements ofthe Contract Documents on written request of either the Owner orContractor.  The Architect’s response tosuch requests will be made in writing within any time limits agreed upon orotherwise with reasonable promptness. If no agreement is made concerning the time within which interpretationsrequired of the Architect shall be furnished in compliance with this Paragraph4.2, then delay shall not be recognized on account of failure by the Architectto furnish such interpretations until 15 days after written request is made forthem.

 

4.2.12      Interpretations anddecisions of the Architect will be consistent with the intent of and reasonablyinferable from the Contract Documents and will be in writing or in the form ofdrawings.  When making suchinterpretations and initial decisions, the Architect will endeavor to securefaithful performance by both Owner and Contractor, will not show partiality toeither and will not be liable for results of interpretations or decisions sorendered in good faith.

 

4.2.13      The Architect’sdecisions on matters relating to aesthetic effect will be final if consistentwith the intent expressed in the Contract Documents.

 

4.3                                 CLAIMS AND DISPUTES

4.3.1        Definition.  A Claim is a demand or assertion by one ofthe parties seeking, as a matter of right, adjustment or interpretation ofContract terms, payment of money, extension of time or other relief withrespect to the terms of the Contract. The term “Claim” also includes

 

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other disputes and matters in question between the Owner and Contractorarising out of or relating to the Contract. Claims must be initiated by written notice.  The responsibility to substantiate Claims shall rest with theparty making the Claim.

 

4.3.2        Time Limits onClaims.  Claims by either party must beinitiated within 21 days after occurrence of the event giving rise to suchClaim or within 21 days after the claimant first recognizes the conditiongiving rise to the Claim, whichever is later. Claims must be initiated by written notice to the Architect and theother party.

 

4.3.3        Continuing ContractPerformance.  Pending final resolutionof a Claim except as otherwise agreed in writing or as provided in Subparagraph9.7.1 and Article 14, the Contractor shall proceed diligently with performanceof the Contract and the Owner shall continue to make payments in accordancewith the Contract Documents.

 

4.3.4        Claims for Concealedor Unknown Conditions.  If conditionsare encountered at the site which are (1) subsurface or otherwise concealedphysical conditions which differ materially from those indicated in theContract Documents or (2) unknown physical conditions of an unusual nature,which differ materially from those ordinarily found to exist and generallyrecognized as inherent in construction activities of the character provided forin the Contract Documents, then notice by the observing party shall be given tothe other party promptly before conditions are disturbed and in no event laterthan 21 days after first observance of the conditions.  The Architect will promptly investigate suchconditions and, if they differ materially and cause an increase or decrease inthe Contractor’s cost of, or time required for, performance of any part of theWork, will recommend an equitable adjustment in the Contract Sum or ContractTime, or both.  If the Architectdetermines that the conditions at the site are not materially different fromthose indicated in the Contract Documents and that no change in the terms ofthe Contract is justified, the Architect shall so notify the Owner andContractor in writing, stating the reasons. Claims by either party in opposition to such determination must be madewithin 21 days after the Architect has given notice of the decision.  If the conditions encountered are materiallydifferent, the Contract Sum and Contract Time shall be equitably adjusted, butif the Owner and Contractor cannot agree on an adjustment in the Contract Sum orContract Time, the adjustment shall be referred to the Architect for initialdetermination, subject to further proceedings pursuant to Paragraph 4.4.

 

4.3.5        Claims for AdditionalCost.  If the Contractor wishes to makeClaim for an increase in the Contract Sum, written notice as provided hereinshall be given before proceeding to execute the Work.  Prior notice is not required for Claims relating to an emergencyendangering life or property arising under Paragraph 10.6.

 

4.3.6        If the Contractorbelieves additional cost is involved for reasons including but not limited to(1) a written interpretation from the Architect, (2) an order by the Owner tostop the Work where the Contractor was not at fault, (3) a written order for aminor change in the Work issued by the Architect, (4) failure of payment by theOwner, (5) termination of the Contract by the Owner, (6) Owner’s suspension or(7) other reasonable grounds, Claim shall be filed in accordance with thisParagraph 4.3.

 

4.3.7                        Claims for Additional Time

4.3.7.1     If the Contractorwishes to make Claim for an increase in the Contract Time, written notice asprovided herein shall be given.  TheContractor’s Claim shall include an estimate of cost and of probable effect ofdelay on progress of the Work.  In the caseof a continuing delay only one Claim is necessary.

 

4.3.7.2     If adverse weatherconditions are the basis for a Claim for additional time, such Claim shall bedocumented by data substantiating that weather conditions were abnormal for the

 

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period of time, could not have been reasonably anticipated and had anadverse effect on the scheduled constructions.

 

4.3.8        Injury or Damage toPerson or Property.  If either party tothe Contract suffers injury or damage to person or property because of an actor omission of the other party, or of others for whose acts such party islegally responsible, written notice of such injury or damage, whether or notinsured, shall be given to the other party within a reasonable time notexceeding 21 days after discovery.  Thenotice shall provide sufficient detail to enable the other party to investigatethe matter.

 

4.3.9        If unit prices arestated in the Contract Documents or subsequently agreed upon, and if quantitiesoriginally contemplated are materially changed in a proposed Change Order orConstruction Change Directive so that application of such unit prices toquantities of Work proposed will cause substantial inequity to the Owner orContractor, the applicable unit prices shall be equitably adjusted.

 

4.3.10      Claims forConsequential Damages.  **The making of final payment by the Owner after itsacceptance of the Work shall constitute waiver of all Claims by the Contractorand Owner except those arising from liens, claims, security interests orencumbrances arising out of the Contract and unsettled; failure of the Work tocomply with the requirement of the Contract Documents; or the terms of specialwarranties required by the Contract Documents**.  ~~The Contractor and Owner waive Claimsagainst each other for consequential damages arising out of or relating to thisContract.  This mutual waiver includes:~~

 

.1               ~~damagesincurred by the Owner for rental expenses, for losses of use, income, profit,financing, business and reputation, and for loss of management or employeeproductivity or of the services of such persons: and~~

.2               ~~damageincurred by the Contractor for principal office expenses including thecompensation of personnel stationed there, for losses of financing, businessand reputation and for loss of profit except anticipated profit arisingdirectly from the Work~~

 

~~This mutual waiver is applicable, without limitation, to allconsequential damages due to either party’s termination in accordance withArticle 14.  Nothing contained in thisSubparagraph 4.3.10 shall be deemed to preclude an award of liquidated directdamages, when applicable, in accordance with the requirements of the ContractDocuments.~~

 

4.4                                 RESOLUTION OF CLAIMSAND DISPUTES

4.4.1        Decision ofArchitect. Claims, including those alleging an error or omission by theArchitect but excluding those arising under Paragraphs 10.3 through 10.5, shallbe referred initially to the Architect for decision. An initial decision by theArchitect shall be required as a condition precedent to mediation, arbitrationor litigation of all Claims between the Contractor and Owner arising prior tothe date final payment is due, unless 30 days have passed after the Claim hasbeen referred to the Architect with no decision having been rendered by theArchitect.  The Architect will notdecide disputes between the Contractor and persons or entities other than theOwner.

 

4.4.2        The Architect willreview Claims and within ten days of the receipt of the Claim take one or moreof the following actions: (1) request additional supporting data from theclaimant or a response with supporting data from the other party, (2) rejectthe Claim in whole or in part, (3) approve the Claim, (4) suggest a compromise,or (5) advise the parties that the Architect is unable to resolve the Claim ifthe Architect lacks sufficient information to evaluate

 

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the merits of the Claim or if the Architect concludes that, in theArchitect’s sole discretion, it would be inappropriate for the Architect toresolve the Claim.

 

4.4.3        In evaluating Claims,the Architect may, but shall not be obligated to, consult with or seekinformation from either party or from persons with special knowledge orexpertise who may assist the Architect in rendering a decision.  The Architect may request the Owner toauthorize retention of such persons at the Owner’s expense.

 

4.4.4        If the Architectrequests a party to provide a response to a Claim or to furnish additionalsupporting data, such party shall respond, within ten days after receipt ofsuch request, and shall either provide a response on the requested supportingdata, advise the Architect when the response or supporting data will befurnished or advise the Architect that no supporting data will befurnished.  Upon receipt of the responseor supporting data, if any, the Architect will either reject or approve theClaim in whole or in part.

 

4.4.5        The Architect willapprove or reject Claims by written decision, which shall state the reasonstherefor and which shall notify the parties of any change in the Contract Sumor Contract Time or both.  The approvalor rejection of a Claim by the Architect shall be final and binding on theparties but subject to mediation and arbitration.

 

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

 

4.4.7        Upon receipt of aClaim against the Contractor or at any time thereafter, the Architect or theOwner may, but is not obligated to, notify the surety, if any, of the natureand amount of the Claim.  If the Claimrelates to a possibility of a Contractor’s default, the Architect or the Ownermay, but is not obligated to, notify the surety and request the surety’sassistance in resolving the controversy.

 

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

 

4.5                                 MEDIATION

4.5.1        Any Claim arising outof or related to the Contract, except Claims relating to aesthetic effect andexcept those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5shall, after initial decision by the Architect or 30 days after submission ofthe Claim to the Architect, be subject to mediation as a condition precedent toarbitration or the institution of legal or equitable proceedings by eitherparty.

 

4.5.2        The parties shallendeavor to resolve their Claims by mediation which, unless the partiesmutually agree otherwise, shall be in accordance with the Construction IndustryMediation Rules of the American Arbitration Association currently ineffect.  Request for mediation shall befiled in writing with the other party to the Contract and with the AmericanArbitration Association.  The requestmay be made concurrently with the filing of a demand for arbitration but, in suchevent, mediation shall proceed in advance of arbitration or legal or equitableproceedings, which shall be stayed pending mediation for a period of 60 daysfrom the date of filing, unless stayed for a longer period by agreement of theparties or court order.

 

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4.5.3         The parties shallshare the mediator’s fee and any filing fees equally.  The mediation shall be held in the place where the Project islocated, unless another location is mutually agreed upon.  Agreements reached in mediation shall beenforceable as settlement agreements in any court having jurisdiction thereof.

 

4.6                                 ARBITRATION

4.6.1        Any Claim arising outof or related to the Contract, except Claims relating to aesthetic effect andexcept those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5,shall, after decision by the Architect or 30 days after submission of the Claimto the Architect, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes bymediation in accordance with the provisions of Paragraph 4.5.

 

4.6.2        Claims not resolvedby mediation shall be decided by arbitration which, unless the parties mutuallyagree otherwise, shall be in accordance with the Construction Industry ArbitrationRules of the American Arbitration Association currently in effect.  The demand for arbitration shall be filed inwriting with the other party to the Contract and with the American ArbitrationAssociation, and copy shall be filed with the Architect.

 

4.6.3        A demand forarbitration shall be made within the time limits specified in Subparagraphs4.4.6 and 4.6.1 as applicable, and in other cases within a reasonable timeafter the Claim has arisen, and in no event shall it be made after the datewhen institution of legal or equitable proceedings based on such Claim would bebarred by the applicable statute of limitations as determined pursuant toParagraph 13.7.

 

4.6.4        Limitation onConsolidation or Joinder.  Noarbitration arising out of or relating to the Contract shall include, byconsolidation or joinder or in any other manner, the Architect, the Architect’semployees or consultants, except by written consent containing specificreference to the Agreement and signed by the Architect, Owner, Contractor andany other person or entity sought to be joined.  No arbitration shall include, by consolidation or joinder or inany other manner, parties other than Owner, Contractor, a separate contractoras described in Article 6 and other persons substantially involved in a commonquestion of fact or law whose presence is required if complete relief is to beaccorded in arbitration.  No person orentity other than the Owner, Contractor or a separate contractor as describedin Article 6 shall be included as an original third party or additional thirdparty to an arbitration whose interest or responsibility is insubstantial.  Consent to arbitration involving anadditional person or entity shall not constitute consent to arbitration of aClaim not described therein or with a person or entity not named or describedtherein.  The foregoing agreement toarbitrate and other agreements to arbitrate with an additional person or entityduly consented to by parties to the Agreement shall be specifically enforceableunder applicable law in any court having jurisdiction thereof.

 

4.6.5        Claims and TimelyAssertion of Claims.  The party filing anotice of demand for arbitration must assert in the demand all Claims thenknown to that party on which arbitration is permitted to be demanded.

 

4.6.6        Judgment on FinalAward.  The award rendered by thearbitrator or arbitrators shall be final, and judgment may be entered upon itin accordance with applicable law in any court having jurisdiction thereof.

 

ARTICLE 5 SUBCONTRACTORS

5.1                                 DEFINITIONS

5.1.1        A Subcontractor is aperson or entity who has a direct contract with the Contractor to perform aportion of the Work at the site.  Theterm “Subcontractor” is referred to throughout the Contract Documents as ifsingular in number and means a Subcontractor or an authorized

 

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representative of the Subcontractor. The term “Subcontractor” does not include a separate contractor orsubcontractors of a separate contractor.

 

5.1.2        A Sub-subcontractoris a person or entity who has a direct or indirect contract with aSubcontractor to perform a portion of the Work at the site.  The term “Sub-subcontractor” is referred tothroughout the Contract Documents as if singular in number and means aSub-subcontractor or an authorized representative of the Sub-subcontractor.

 

5.2                                 AWARD OF SUBCONTRACTSAND OTHER CONTRACTS FOR PORTIONS OF THE WORK

5.2.1        Unless otherwisestated in the Contract Documents or the bidding requirements, the Contractor,as soon as practicable after award of the Contract, shall furnish in writing tothe Owner through the Architect the names of person or entities (includingthose who are to furnish materials or equipment fabricated to a special design)proposed for each principal portion of the Work. The Architect will promptlyreply to the Contractor in writing stating whether or not the Owner or theArchitect, after due investigation, has reasonable objection to any suchproposed person or entity. Failure of the Owner or Architect to reply promptlyshall constitute notice of no reasonable objection.

 

5.2.2        The Contractor shallnot contract with a proposed person or entity to whom the Owner or Architecthas made reasonable and timely objection. The Contractor shall not6 be required to contract with anyone to whomthe Contractor has made reasonable objection.

 

5.2.3        If the Owner orArchitect has reasonable objection to a person or entity proposed by theContractor, the Contractor shall propose another to whom the Owner or Architecthas no reasonable objection.  If theproposed but rejected Subcontractor was reasonably capable of performing theWork, the Contract Sum and Contract Time shall be increased or decreased by thedifference, if any, occasioned by such change, and an appropriate Change Ordershall be issued before commencement of the substitute Subcontractor’sWork.  However, no increase in theContract Sum or Contract Time shall be allowed for such change unless theContractor has acted promptly and responsively in submitting names as required.

 

5.2.4        The Contractor shallnot change a Subcontractor, person or entity previously selected if the Owneror Architect makes reasonable objection to such substitute.

 

**5.2.5**       **Ifrequested by the Owner the form of each subcontract shall be submitted to theOwner for its approval, which shall not be unreasonably withheld ordelayed.  Each subcontract shallexpressly provide for the contingent assignment referred to in Subparagraph5.4.1.**

 

5.3                                 SUBCONTRACTUALRELATIONS

5.3.1        By appropriateagreement, written where legally required for validity, the Contractor shallrequire each Subcontractor, to the extent of the Work to be performed by theSubcontractor, to be bound to the Contractor by terms of the ContractDocuments, and to assume toward the Contractor all the obligations andresponsibilities, including the responsibility for safety of theSubcontractor’s Work, which the Contractor, by these Documents, assumes towardthe Owner and Architect.  Eachsubcontract agreement shall preserve and protect the rights of the Owner andArchitect.  Each subcontract agreementshall preserve and protect the rights of the Owner and Architect under theContract Documents with respect to the Work to be performed by theSubcontractor so that subcontracting thereof will not prejudice such rights,and shall allow to the Subcontractor, unless specifically provided otherwise inthe subcontract agreement, the benefit of all rights, remedies and redressagainst the Contractor that the Contractor, by the Contract Documents, has againstthe Owner.  Where

 

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appropriate, the Contractor shall require each Subcontractor to enterinto similar agreements with Sub-subcontractors.  The Contractor shall make available to each proposed Subcontractor,prior to the execution of the subcontract agreement, copies of the ContractDocuments to which the Subcontractor will be bound, and, upon written requestof the Subcontractor, identify to the Subcontractor terms and conditions of theproposed subcontract agreement which may be at variance with the ContractDocuments.  Subcontractors willsimilarly make copies of applicable portions of such documents available totheir respective proposed Sub-subcontractors.

 

5.4                                 CONTINGENT ASSIGNMENTOF SUBCONTRACTS

5.4.1        Each subcontractagreement for a portion of the Work is assigned by the Contractor to the Ownerprovided that:

.1               assignmentis effective only after termination of the Contract by the Owner for causepursuant to Paragraph 14.2 and only for those subcontract agreements which theOwner accepts by notifying the Subcontractor and Contractor in writing; and

.2               assignmentis subject to the prior rights of the surety, if any, obligated under bondrelating to the Contract.

 

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

 

ARTICLE 6 CONSTRUCTION BY OWNEROR BY SEPARATE CONTRACTORS

6.1                                 OWNERS RIGHT TOPERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACT

6.1.1        The Owner reservesthe right to perform construction or operations related to the Project with theOwner’s own forces, and to award separate contracts in connection with otherportions of the Project or other constructions or operations on the site underConditions of the Contract identical or substantially similar to theseincluding those portions related to insurance and waiver of subrogation.  If the Contractor claims that delay oradditional cost is involved because of such action by the Owner, the Contractorshall make such Claim as provided in Paragraph 4.3.

 

6.1.2        When separatecontracts are awarded for different portions of the Project or otherconstruction or operations on the site, the term “Contractor” in the ContractDocuments in each case shall mean the Contractor who executes each separateOwner-Contractor Agreement.

 

6.1.3        The Owner shallprovide for coordination of the activities of the Owner’s own forces and ofeach separate contractor with the Work of the Contractor, who shall cooperatewith them.  The Contractor shallparticipate with other separate contractors and the Owner in reviewing theirconstruction schedules when directed to do so. The Contractor shall make any revisions to the construction scheduledeemed necessary after a joint review and mutual agreement.  The construction schedules shall thenconstitute the schedules to be used by the Contractor, separate contractors andthe Other until subsequently revise.

 

6.1.4        Unless otherwiseprovided in the Contract Documents, when the Owner performs construction oroperations related to the Project with the Owner’s own forces, the Owner shallbe deemed to be subject to the same obligations and to have the same rightswhich apply to the Contractor under the Conditions of the Contract, including,without excluding others, those stated in Articles 3, this Article 6 andArticles 10, 11 and 12.

 

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6.2                                 MUTUAL RESPONSIBILITY

6.2.1        The Contractor shallafford the Owner and separate contractors reasonable opportunity forintroduction and storage of their materials and equipment and performance oftheir activities, and shall connect and coordinate the Contractor’sconstruction and operations with theirs as required by the Contract Documents.

 

6.2.2        If part of theContractor’s Work depends for proper execution or results upon construction oroperations by the Owner or a separate contractor, the Contractor shall, priorto proceeding with that portion of the Work, promptly report to the Architectapparent discrepancies or defects in such other construction that would renderit unsuitable for such proper execution and results.  Failure of the Contractor so to report shall constitute anacknowledgement that the Owner’s or separate contractor’s completed orpartially completed construction is fit and proper to receive the Contractor’sWork, except as to defects not then reasonably discoverable.

 

6.2.3        The Owner shall bereimbursed by the Contractor for costs incurred by the Owner which are payableto a separate contractor because of delays, improperly timed activities ordefective construction of the Contractor. The Owner shall be responsible to the Contractor for costs incurred bythe Contractor because of delays, improperly timed activities, damage to theWork or defective construction of a separate contractor.

 

6.2.4        The Contractor shallpromptly remedy damage wrongfully caused by the Contractor to completed orpartially completed construction or to property of the Owner or separatecontractors as provided in Subparagraph 10.2.5.  **If such separate contractorsues or initiates mediation or an arbitration proceeding against the Owner onaccount of any damage alleged to have been caused by the Contractor, the Ownershall notify the Contractor who shall defend such proceedings at the Owner’sexpense and if any judgement or award against the Owner arises as a result of,but only to the extent of, Contractor’s fault, the Contractor shall pay orsatisfy it and shall reimburse the Owner for all attorney’s fees, mediationfees and costs, court fees and costs, and arbitration fees and costs which theOwner has incurred.**

 

6.2.5        The Owner and eachseparate contractor shall have the same responsibilities for cutting andpatching as are described for the Contractor in Subparagraph 3.14.

 

6.3                                 OWNER’S RIGHT TO CLEANUP

6.3.1        If a dispute arisesamong the Contractor, separate contractors and the Owner as to theresponsibility under their respective contracts for maintaining the premises andsurrounding area free from waste materials and rubbish, the Owner may clean upand the Architect will allocate the cost among those responsible.

 

ARTICLE 7 CHANGES IN THE WORK

7.1.                              GENERAL

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

 

7.1.2        A Change Order shallbe based upon agreement among the Owner, Contractor and Architect; aConstruction Change Directive requires agreement by the Owner and Architect

 

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and may or may not be agreed to by the Contractor, an order for a minorchange in the Work may be issued by the Architect alone.

 

7.1.3        Changes in the Workshall be performed under applicable provisions of the Contract Documents, andthe Contractor shall proceed promptly, unless otherwise provided in the ChangeOrder, Construction Change Directive or order for a minor change in the Work.

 

7.2                                 CHANGE ORDERS

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

 

.1               changein the Work;

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

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

 

7.2.2        Methods used indetermining adjustments to the Contract Sum may include those listed in Subparagraph 7.3.3.

 

7.3                                 CONSTRUCTION CHANGEDIRECTIVES

7.3.1        A Construction ChangeDirective is a written order prepared by the Architect and signed by the Ownerand Architect, 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 ChangeDirective, without invalidating the Contract, order changes in the Work withinthe general scope of the Contract consisting of additions, deletions or otherrevisions, the Contract Sum and Contract Time being adjusted accordingly.

 

7.3.2        A Construction ChangeDirective shall be used in the absence of total agreement on the terms of aChange Order.

 

7.3.3        If the ConstructionChange Directive provides for an adjustment to the Contract Sum, the adjustmentshall be based on one of the following methods:

.1               mutualacceptance of a lump sum properly itemized and supported by sufficientsubstantiating data to permit evaluation;

.2               unitprices stated in the Contract Documents or subsequently agreed upon;

.3               costto be determined in a manner agreed upon by the parties and a mutuallyacceptable fixed or percentage fee; or

.4               asprovided in Subparagraph 7.3.6.

 

7.3.4        Upon receipt of aConstruction Change Directive, the Contractor shall promptly proceed with thechange in the Work involved and advise the Architect of the Contractor’sagreement or disagreement with the method, if any, provided in the ConstructionChange Directive for determining the proposed adjustment in the Contract Sum orContract Time.

 

7.3.5        A Construction ChangeDirective signed by the Contractor indicates the agreement of the Contractortherewith, including adjustment in Contract Sum and Contract Time or the methodfor determining them.  Such agreementshall be effective immediately and shall be recorded as a Change Order.

 

7.3.6        If the Contractordoes not respond promptly or disagrees with the method for adjustment in theContract Sum, the method and the adjustment shall be determined by theArchitect on the basis of reasonable expenditures and savings of thoseperforming the Work attributable to the change, including, in case of anincrease in the Contract Sum, a reasonable allowance for overhead andprofit.  In such case, and also underClause 7.3.3.3, the Contractor

 

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shall keep and present, in such form as the Architect may prescribe, anitemized accounting together with appropriate supporting data.  Unless otherwise provided in the ContractDocuments, costs for the purposes of this Subparagraph 7.3.6 shall be limitedto the following:

.1               costsof labor, including social security, old age and unemployment insurance, fringebenefits required by agreement or custom, and workers’ compensation insurance;

.2               costsof materials, supplies and equipment, including cost of transportation, whetherincorporated or consumed;

.3               rentalcosts of machinery and equipment, exclusive of hand tools, whether rented fromthe Contractor or others;

.4               costsof premiums for all bonds and insurance, permit fees, and sales, use or similartaxes related to the Work; and

.5               additionalcosts of supervision and field office personnel directly attributable to thechange.

 

7.3.7        The amount of creditto be allowed by the Contractor to the Owner for a deletion or change whichresults in a net decrease in the Contract Sum shall be actual net cost asconfirmed by the Architect.  When bothadditions and credits covering related Work or substitutions are involved in achange, the allowance for overhead and profit shall be figured on the basis ofnet increase, if any, with respect to that change.

 

7.3.8        Pending finaldetermination of the total cost of a Construction Change Directive to theOwner, amounts not in dispute for such changes in the Work shall be included inApplications for Payment accompanied by a Change Order indicating the parties’agreement with part or all of such costs. For any portion of such cost that remains in dispute, the Architect willmake an interim determination for purposes of monthly certification for paymentfor those costs.  That determination ofcost shall adjust the Contract Sum on the same basis as a Change Order, subjectto the right of either party to disagree and assert a claim in accordance withArticle 4.

 

7.3.9        When the Owner andContractor agree with the determination made by the Architect concerning theadjustments in the Contract Sum and Contract Time, or otherwise reach agreementupon the adjustments, such agreement shall be effective immediately and shall berecorded by preparation and execution of an appropriate Change Order.

 

7.4                                 MINOR CHANGES IN THEWORK

7.4.1        The Architect willhave authority to order minor changes in the Work not involving adjustment inthe Contract Sum or extension of the Contract Time and not inconsistent withthe intent of the Contract Documents. Such changes shall be effected by writtenorder and shall be binding on the Owner and Contractor.  The Contractor shall carry out such writtenorders promptly.

 

ARTICLE 8 TIME

8.1                                 DEFINITIONS

8.1.1        Unless otherwiseprovided, Contract Time is the period of time, including authorizedadjustments, allotted in the Contract Documents for Substantial Completion ofthe Work.

 

8.1.2        The date ofcommencement of the Work is the date established in the Agreement.  **Thedate shall not be postponed by the failure to act by the Contractor or bypersons or entities for whom the Contractor is responsible.**

 

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8.1.3        The date ofSubstantial Completion is the date certified by the Architect in accordancewith Paragraph 9.8.

 

8.1.4        The term “day” asused in the Contract Documents shall mean calendar day unless otherwisespecifically defined.

 

8.2                                 PROGRESS ANDCOMPLETION

8.2.1        Time limits stated inthe Contract Documents are of the essence of the Contract.  By executing the Agreement the Contractorconfirms that the Contract Time is a reasonable period for performing the Work.

 

8.2.2        The Contractor shallnot knowingly, except by agreement or instruction of the Owner in writing,prematurely commence operations on the site or elsewhere prior to the effectivedate of insurance required by Article 11 to be furnished by the Contractor andOwner.  The date of commencement of theWork shall not be changed by the effective date of such insurance.  Unless the date of commencement isestablished by the Contract Documents or a notice to proceed given by theOwner, the Contractor shall notify the Owner in writing not less than five daysor other agreed period before commencing the Work to permit the timely filingof mortgages, mechanic’s liens and other security interests.

 

8.2.3        The Contractor shallproceed expeditiously with adequate forces and shall achieve SubstantialCompletion within the Contract Time.

 

8.3                                 DELAYS AND EXTENSIONSOF TIME

8.3.1        If the Contractor isdelayed at any time in the commencement or progress of the Work by an act orneglect of the Owner or Architect, or of an employee of either, or of aseparate contractor employed by the Owner, or by changes ordered in the Work,or by labor disputes, fire, unusual delay in deliveries, unavoidable casualtiesor other causes beyond the Contractor’s control, or by delay authorized by theOwner pending mediation and arbitration, or by other causes which the Architectdetermines may justify delay, then the Contract Time shall be extended byChange Order for such reasonable time as the Architect may determine.

 

8.3.2        Claims relating totime shall be made in accordance with applicable provisions of Paragraph 4.3.

 

8.3.3        ~~This Paragraph 8.3does not preclude recovery of damages for delay by either party under otherprovisions of the Contract Documents.~~ **No claim for delay shall be allowedon account of failure of the Architect to furnish Drawings, Specifications orInstructions or to return Shop Drawings or Samples until five (5) days afterreceipt by the Architect by registered or certified mail of written demand forsuch Instructions, Drawings, or Samples, and not then unless such claim bereasonable.**

 

ARTICLE 9 PAYMENTS AND COMPLETION

9.1                                 CONTRACT SUM

9.1.1        The Contract Sum isstated in the Agreement and, including authorized adjustments, is the totalamount payable by the Owner to the Contractor for performance of the Work underthe Contract Documents.

 

9.2                                 SCHEDULE OF VALUES

9.2.1        Before the firstapplication for Payment, the Contractor shall submit to the Architect aschedule of values allocated to various portions of the Work, prepared in suchform and

 

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supported by such data to substantiate its accuracy as the Architectmay require.  This schedule, unlessobjected to by the Architect, shall be used as a basis for reviewing theContractor’s Applications for Payment.

 

9.3                                 APPLICATIONS FORPAYMENT

9.3.1        ~~At least ten daysbefore the date established for each progress payment,~~**At the time or times established in the Contract,**the Contractor shall submit to the Architect an itemized Application forPayment for operations completed in accordance with the schedule ofvalues.  **The format and number of copies of such Applications for Payment shall beas directed by the Owner,** Such application shall be notarized,if required, and supported by such data substantiating the Contractor’s rightto payment as the Owner or Architect may require, such as copies ofrequisitions from Subcontractors and material suppliers, and reflectingretainage if provided for in the Contract Documents.

 

~~9.3.1.1     As provided inSubparagraph 7.3.8, such applications may include requests for payment onaccount of changes in the Work which have been properly authorized byConstruction Change Directives, or by interim determinations of the Architect,but not yet included in Change Orders.~~

 

9.3.1.2     Such applications maynot include requests for payment for portions of the Work for which theContractor does not intend to pay to a Subcontractor or material supplier,unless such Work has been performed by others whom the Contractor intends topay.

 

9.3.2        Unless otherwiseprovided in the Contract Documents, payments shall be made on account ofmaterials and equipment delivered and suitably stored at the site forsubsequent incorporation in the Work. If approved in advance by the Owner **(includingsuch evidence of insurance and title as Owner shall request of Contractorand/or Subcontractor),** payment may similarly be made formaterials and equipment suitably stored off the site at a location agreed uponin writing.  Payment for materials andequipment stored on or off the site shall be conditioned upon compliance by theContractor with procedures satisfactory to the Owner to establish the Owner’stitle to such materials and equipment or otherwise protect the Owner’sinterest, and shall include the costs of applicable insurance, storage andtransportation to the site for such materials and equipment stored off thesite.

 

9.3.3        The Contractorwarrants that title to all Work covered by an Application for Payment will passto the  Owner **either by Incorporation in the construction or uponthe receipt of payment by the Contractor, whichever occurs first, free andclear from all liens, claims, security interests and encumbrances, hereinafterreferred to in this Article 9 as “liens”,**~~no later than thetime of payment.  The Contractor furtherwarrants that upon submittal of an Application for Payment. The Contractorfurther warrants that upon submittal of an Application for Payment all work forwhich Certificates for Payment have been previously issued and paymentsreceived from the Owner shall, to the best of the Contractor’s Knowledge, informationand belief, be free and clear of liens, claims, security interests ofencumbrances in favor of the Contractor, Subcontractors, material suppliers, orother persons or entities making a claim by reason of having provided labor,materials and equipment relating to the Work.~~

 

**9.3.4       EachApplication for Payment or periodic estimate requesting payment shall beaccompanied at the Owner’s option by: (i) a waiver of liens from eachsubcontractor or; (ii) a certificate from each**

 

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**Subcontractor stating that the Subcontractorhas been paid all amounts due the Subcontractor on the basis of the previousperiodic payment to the Contractor, or else stating the amount not so paid andthe reason for the discrepancy.  In theevent of such discrepancy, the Contractor shall furnish the Contractor’s ownwritten explanation to the Owner through the Architect. Such waiver orcertificate shall be in form acceptable to the Owner.**

** **

**In the event that any lien security interestchattel mortgage or conditional bill of sale shall be filed by any partyclaiming by, through or under the Contractor, the Contractor shall promptlyremove or discharge such lien, security interest chattel mortgage orconditional bill of sale by bonding payment, or otherwise provided that theOwner has discharged its payment obligations to the Contractor relating to anysuch lien and shall indemnify the Owner against the loss, damage or expenses(including reasonable attorneys’ fees and expenses) caused by any such lien,security interest, chattel mortgage or conditional bill of sale. If theContractor shall fail to so remove or discharge the same within five (5) daysafter notice from the Owner (but in no event later than the date on which thenext payment on an Application for Payment becomes due) the Owner shall havethe right to remove or discharge the same by bonding payment or otherwise forthe account of the Contractor and the amount of any payment, cost and expensesmade or incurred by the Owner in connection with the removal or discharge thereofmay be withheld from any payment thereafter becoming due or shall be reimbursedpromptly to the Owner by the Contractor.**

 

9.4                                 CERTIFICATES FORPAYMENT

9.4.1        The Architect will,within seven days after receipt of the Contractor’s Application for Payment,either issue to the Owner a Certificate for Payment, with a copy to theContractor, for such amount as the Architect determines is properly due, ornotify the Contractor and Owner in writing of the Architect’s reasons forwithholding certification in whole or in part as provided in Subparagraph9.5.1.

 

9.4.2        The issuance of aCertificate for Payment will constitute a representation by the Architect tothe Owner, based on the Architect’s evaluation of the Work and the datacomprising the Application for Payment, that the Work has progressed to thepoint indicated and that, to the best of the Architect’s knowledge, informationand belief, the quality of the Work is in accordance with the ContractDocuments.  The foregoingrepresentations are subject to an evaluation of the Work for conformance withthe Contract Documents upon Substantial Completion, to results of subsequenttests and inspections, to correction of minor deviations from the ContractDocuments prior to completion and to specific qualification expressed by theArchitect.  The issuance of aCertificate for Payment will further constitute a representation that theContractor is entitled to payment in the amount certified.  However, the issuance of a

 

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Certificate for Payment will not be a representation that the Architecthas (1) made exhaustive or continuous on-site inspections to check the qualityor quantity of the Work, (2) reviewed construction means, methods, techniques,sequences or procedures, (3) reviewed copies of requisitions received fromSubcontractors and material suppliers and other data requested by the Owner tosubstantiate the Contractor’s right to payment, or (4) made examination to ascertainhow or for what purpose the Contractor has used money previously paid onaccount of the Contract Sum.

 

9.5                                 DECISIONS TO WITHHOLDCERTIFICATION

9.5.1        The Architect maywithhold a Certificate for Payment in whole or in part, to the extentreasonably necessary to protect the Owner, if in the Architect’s opinion therepresentations to the Owner required by Subparagraph 9.4.2 cannot bemade.  If the Architect is unable tocertify payment in the amount of the Application, the Architect will notify theContractor and Owner as provided in Subparagraph 9.4.1.  If the Contractor and Architect cannot agreeon a revised amount, the Architect will promptly issue a Certificate forPayment for the amount for which the Architect is able to make suchrepresentations to the Owner.  TheArchitect may also withhold a Certificate for Payment or, because ofsubsequently discovered evidence, may nullify the whole or a part of aCertificate for Payment previously issued, to such extent as may be necessaryin the Architect’s opinion to protect the Owner from loss for which theContractor is responsible, including loss resulting from acts and omissionsdescribed in Subparagraph 3.3.2, because of:

.1               defectiveWork not remedied;

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

.3               failureof the Contractor to make payments properly to Subcontractors or for labor,materials or equipment;

.4               reasonableevidence that the Work cannot be completed for the unpaid balance of theContract Sum;

.5               damageto the Owner or another contractor;

.6               reasonableevidence that the Work will not be completed within the Contract Time, and thatthe unpaid balance would not be adequate to cover actual or liquidated damagesfor the anticipated delay; or

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

 

**.8****              A lien or attachmentis filed in violation of this Agreement.**

 

9.5.2        When the abovereasons for withholding certification are removed, certification will be madefor amounts previously withheld.

 

9.6                                 PROGRESS PAYMENTS

9.6.1        After the Architecthas issued a Certificate for Payment, the Owner shall make payment in themanner and within the time provided in the Contract Documents, and shall sonotify the Architect.

 

9.6.2        The Contractor shallpromptly pay each Subcontractor, upon receipt of payment from the Owner, out ofthe amount paid to the Contractor on account of such Subcontractor’s portion ofthe Work, the amount to which said Subcontractor is entitled, reflectingpercentages actually retained from payments to the Contractor on account ofsuch Subcontractor’s portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor,require each Subcontractor to make payments to Sub-subcontractors in a similarmanner.

 

9.6.3        ~~The Architectwill, on request, furnish to a Subcontractor, if practicable, informationregarding percentages of completion or amounts applied for by the Contractor andaction~~

 

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~~taken thereon by the Architect and Owner on account of portions of theWork done by such Subcontractor.~~

 

9.6.4        Neither the Owner norArchitect shall have an obligation to pay or to see to the payment of money toa Subcontractor **Sub-subcontractor ofmaterial supplier,** except as may otherwise be required by law.

 

9.6.5        Payment to materialsuppliers shall be treated in a manner similar to that provided inSubparagraphs 9.6.2, 9.6.3 and 9.6.4.

 

9.6.6        A Certificate forPayment, a progress payment, or partial or entire use or occupancy of theProject by the Owner shall not constitute acceptance of Work not in accordancewith the Contract Documents.

 

9.6.7        Unless the Contractorprovides the Owner with a payment bond in the full penal sum of the ContractSum, payments received by the Contractor for Work properly performed bySubcontractors and suppliers shall be held by the Contractor for thoseSubcontractors or suppliers who performed Work or furnished materials, or both,under contract with the Contractor for which payment was made by theOwner.  ~~Nothing contained hereinshall require money to be placed in a separate account and not commingled withmoney of the Contractor, shall create any fiduciary liability or tort liabilityon the part of the Contractor for breach of trust or shall entitle any personor entity to an award of punitive damages against the Contractor for breach ofthe requirements of this provision.~~

 

9.7                                 FAILURE OF PAYMENT

9.7.1        If the Architect doesnot issue a Certificate for Payment, through no fault of the Contractor, withinseven days after receipt of the Contractor’s Application for Payment, or if theOwner does not pay the Contractor within seven days after the date establishedin the Contract Documents the amount certified by the Architect ~~or awardedby arbitration,~~then the Contractor may, upon sevenadditional days’ written notice to the Owner and Architect, stop the Work untilpayment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sumshall be increased by the amount of the Contractor’s reasonable costs ofshut-down, delay and start-up, plus interest as provided for in the ContractDocuments.

 

9.8                                 SUBSTANTIAL COMPLETION

9.8.1        SubstantialCompletion is the stage in the progress of the Work when the Work or designatedportion thereof is sufficiently complete in accordance with the ContractDocuments so that the Owner can occupy or utilize the Work for its intended use**and only minor items which can becorrected or completed without any material Interference with the Owner’s useof the Work remain to be corrected or completed.**

 

9.8.2        When the Contractorconsiders that the Work, or a portion thereof which the Owner agrees to acceptseparately, is substantially complete, the Contractor shall prepare and submitto the Architect a comprehensive list of items to be completed or correctedprior to final payment.  Failure toinclude an item on such list does not alter the responsibility of theContractor to complete all Work in accordance with the Contract Documents.

 

9.8.3        Upon receipt of theContractor’s list, the Architect will make an inspection to determine whetherthe Work or designated portion thereof is substantially complete.  If the Architect’s inspection discloses anyitem, whether or not included on the Contractor’s list, which is notsufficiently complete in accordance with the Contract Documents so that the

 

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Owner can occupy or utilize the Work or designated portion thereof forits intended use, the Contractor shall, before issuance of the Certificate ofSubstantial Completion, complete or correct such item upon notification by theArchitect.  In such case, the Contractorshall then submit a request for another inspection by the Architect todetermine Substantial Completion.

 

9.8.4        When the Work ordesignated portion thereof is substantially complete, the Architect willprepare a Certificate of Substantial Completion which shall establish the dateof Substantial Completion, shall establish responsibilities of the Owner andContractor for security, maintenance, heat, utilities, damage to the Work andinsurance, and shall fix the time within which the Contractor shall finish allitems on the list accompanying the Certificate.  Warranties required by the Contract Documents shall commence onthe date of Substantial Completion of the Work or designated portion thereofunless otherwise provided in the Certificate of Substantial Completion.

 

9.8.5        The Certificate ofSubstantial Completion shall be submitted to the Owner and Contractor for theirwritten acceptance of responsibilities assigned to them in suchCertificate.  Upon such acceptance andconsent of surety, if any, the Owner shall make payment of retainage applyingto such Work or designated portion thereof. Such payment shall be adjusted forWork that is incomplete or not in accordance with the requirements of theContract Documents.

 

9.9                                 PARTIAL OCCUPANCY ORUSE

9.9.1        The Owner may occupyor use any completed or partially completed portion of the Work at any stage ~~whensuch portion is designated by separate agreement with the Contractor, providedsuch occupancy or use is consented to by the insurer as required under Clause 11.4.1.5and authorized public authorities by having jurisdiction over the Work.~~  Such partial occupancy or use may ~~commence~~**begin** whether or not the portion is substantiallycomplete, provided **that**the**respective responsibilities of the** Owner and Contractor **with respect to**~~have acceptedin writing the responsibilities assigned to each of them for~~payments,retainage, if any, security, maintenance, heat, utilities, damage to the Work,insurance, **correction of the Work andwarranties shall be established by agreement of the Owner and Contractor or,absent such agreement shall be determined by the Architect subject to the rightof either party to contest such determination as provided in Paragraph 4.5.**~~and have agreed in writing, concerning the period for correction of theWork and commencement of warranties required by the Contract Documents.  When the Contractor considers a portionsubstantially complete, the Contractor shall prepare and submit a list to theArchitect as provided under Subparagraph 9.8.2.  Consent of the Contractor to partial occupancy or use shall notbe unreasonably withheld.  The stage ofthe progress of the Work shall be determined by written agreement between theOwner and Contractor or, if no agreement is reached, by decision of the Architect.~~

 

9.9.2        Immediately prior tosuch partial occupancy or use, the Owner, Contractor and Architect shalljointly inspect the area to be occupied or portion of the Work to be use inorder to determine and record the condition of the Work.

 

9.9.3        Unless otherwiseagreed upon, partial occupancy or use of a portion or portions of the Workshall not constitute acceptance of Work not complying with the requirements ofthe Contract Documents.

 

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9.10                           FINAL COMPLETION AND FINALPAYMENT

9.10.1      Upon receipt ofwritten notice that the Work is ready for final inspection and acceptance andupon receipt of a final Application for Payment, the Architect will promptlymake such inspection and, when the Architect finds the Work acceptable underthe Contract Documents and the Contract fully performed, the Architect willpromptly issue a final Certificate for Payment stating that to the best of theArchitect’s knowledge, information and belief, and on the basis of the Architect’son-site visits and inspections, the Work has been completed in accordance withterms and conditions of the Contract Documents and that the entire balancefound to be due the Contractor and noted in the final Certificate is due andpayable.  The Architect’s finalCertificate for Payment will constitute a further representation thatconditions listed in Subparagraph 9.10.2 as precedent to the Contractor’s beingentitled to final payment have been fulfilled.

 

9.10.2      Neither final paymentnor any remaining retained percentage shall become due until the Contractorsubmits to the Architect (1) an affidavit that payrolls, bills for materialsand equipment, and other indebtedness connected with the Work for which theOwner or the Owner’s property might be responsible or encumbered (less amountswithheld by Owner) have been paid or otherwise satisfied, (2) a certificateevidencing that insurance required by the Contract Documents to remain in forceafter final payment is currently in effect and will not be canceled or allowedto expire until at least 30 days’ prior written notice has been given to theOwner, (3) a written statement that the Contractor knows of no substantialreason that the insurance will not be renewable to cover the period required bythe Contract Documents, (4) consent of surety, if any, to final payment and (5)if required by the Owner, other data establishing payment or satisfaction ofobligations, such as receipts, releases and waivers of liens, claims, securityinterests or encumbrances arising out of the Contract, to the extent and insuch form as may be designated by the Owner. ~~If a Subcontractor refuses to furnish a release or waiver required bythe Owner, the Contractor may furnish a bond satisfactory to the Owner toindemnify the Owner against such lien.~~**ProvidedOwner is not in breach of its payment obligations under the Contract, If theContractor fails to furnish such releases or waivers as the Owner reasonablyrequires to satisfy the Owner that there are no outstanding liens, the Ownermay require the Contractor as a condition of final payment and at theContractor’s expense to furnish a bond satisfactory to the Owner to Indemnifythe Owner against any such liens.**  If such lien remains unsatisfied after payments are made, theContractor shall refund to the Owner all money that the Owner may be compelledto pay in discharging such lien, including all costs and reasonable attorneys’fees.

 

9.10.3      If, after SubstantialCompletion of the Work, final completion thereof is materially delayed throughno fault of the Contractor or by issuance of Change Orders affecting finalcompletion, and the Architect so confirms, the Owner shall, upon application bythe Contractor and certification by the Architect, and without terminating theContract, make payment of the balance due for that portion  of the Work fully completed andaccepted.  If the remaining balance forWork not fully completed or corrected is less than retainage stipulated in theContract Documents, and if bonds have been furnished, the written consent ofsurety to payment of the balance due for that portion of the Work fullycompleted and accepted shall be submitted by the Contractor to the Architectprior to certification of such payment. Such payment shall be made under terms and conditions governing finalpayment, except that it shall not constitute a waiver of claims.

 

9.10.4      The making of finalpayment shall constitute a waiver of Claims by the Owner except those arisingfrom:

.1               liens,Claims, security interests or encumbrances arising out of the Contract andunsettled;

 

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

.3               termsof special warranties required by the Contract Documents.

 

9.10.5      Acceptance of finalpayment by the Contractor, a Subcontractor or material supplier shallconstitute a waiver of claims by that payee except those previously made inwriting and identified by that payee as unsettled at the time of finalApplication for Payment.

 

ARTICLE 10 PROTECTION OFPERSONS AND PROPERTY

10.1                           SAFETY PRECAUTIONS ANDPROGRAMS

10.1.1      The Contractor shallbe responsible for initiating, maintaining and supervising all safetyprecautions and programs in connection with the performance of the Contract.

 

10.2                           SAFETY OF PERSONS ANDPROPERTY

10.2.1      The Contractor shalltake reasonable precautions for safety of, and shall provide reasonableprotection to prevent damage, injury or loss to:

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

.2               theWork and materials and equipment to be incorporated therein, whether in storageon or off the site, under care, custody or control of the Contractor or theContractor’s Subcontractors or Sub-subcontractors; and

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

 

10.2.2      The Contractor shallgive notices and comply with applicable laws, ordinances, rules, regulationsand lawful orders of public authorities bearing on safety of persons orproperty or their protection from damage, injury or loss.

 

10.2.3      The Contractor shallerect and maintain, as required by existing conditions and performance of theContract, reasonable safeguards for safety and protection, including postingdanger signs and other warnings against hazards, promulgating safetyregulations and notifying owners and users of adjacent sites and utilities.

 

10.2.4      When use or storage ofexplosives or other hazardous materials or equipment or unusual methods arenecessary for execution of the Work, the Contractor shall exercise utmost careand carry on such activities under supervision of properly qualified personnel.

 

10.2.5      The Contractor shallpromptly remedy damage and loss (other than damage or loss insured underproperty insurance required by the Contract Documents) to property referred toin Clause 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, aSubcontractor, a Sub-subcontractor, or anyone directly or indirectly employedby any of them, or by anyone for whose acts they may be liable and for whichthe Contractor is responsible under Clauses 10.2.1.2 and 10.2.1.3, exceptdamage or loss attributable to acts or omissions of the Owner or Architect oranyone directly or indirectly employed by either of them, or by anyone forwhose acts either of them may be liable, and not attributable to the fault ornegligence of the Contractor. The foregoing obligations of the Contractor arein addition to the Contractor’s obligations under Paragraph 3.18.

 

10.2.6      The Contractor shalldesignate a responsible member of the Contractor’s organization at the sitewhose duty shall be the prevention of accidents. This person shall be theContractor’s superintendent unless otherwise designated by the Contractor inwriting to the Owner and Architect.

 

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10.2.7      The Contractor shallnot load or permit any part of the construction or site to be loaded so as toendanger its safety.

 

10.3                           HAZARDOUS MATERIALS

10.3.1      If reasonableprecautions will be inadequate to prevent foreseeable bodily injury or death topersons resulting from a material or substance, including but not limited toasbestos or polychlorinated biphenyl (PCB), encountered on the site by theContractor, the Contractor shall, upon recognizing the condition, immediatelystop Work in the affected area and report the condition to the Owner andArchitect in writing.

 

10.3.2      The Owner shall obtainthe services of a licensed laboratory to verify the presence or absence of thematerial or substance reported by the Contractor and, in the event suchmaterial or substance is found to be present, to verify that it has been renderedharmless.  Unless otherwise required bythe Contract Documents, the Owner shall furnish in writing to the Contractorand Architect the names and qualifications of persons or entities who are toperform tests verifying the presence or absence of such material or substanceor who are to perform the task of removal or safe containment of such materialor substance.  The Contractor and theArchitect will promptly reply to the Owner in writing stating whether or not eitherhas reasonable objection to the persons or entities proposed by the Owner. Ifeither the Contractor or Architect has an Objection to a persons or entityproposed by the Owned, the Owner shall proposed another to whom the Contractorand the Architect have no reasonable objection.  When the material or substance has been rendered harmless, Workin the affected area shall resume upon written agreement of the Owner andContractor.  The Contract Time shall beextended appropriately and the Contract Sum shall be increased in the amount ofthe Contractor’s reasonable additional costs of shut-down, delay and start-up,which adjustments shall be accomplished as provided in Article 7.

 

10.3.3      To the fullest extentpermitted by law, the Owner shall indemnify and hold harmless the Contractor,Subcontractors, Architect, Architect’s consultants and agents and employees ofany of them from and against claims, damages, losses and expenses, includingbut not limited to attorneys’ fees, arising out of or resulting fromperformance of the Work in the affected area if in fact the material orsubstance presents the risk of bodily injury or death as described inSubparagraph 10.3.1 and has not been rendered harmless, provided that suchclaim, damage, loss or expense is attributable to bodily injury, sickness, diseaseor death, or to injury to or destruction of tangible property (other than theWork itself) and provided that such damage, loss or expense is not due to thesole negligence of a party seeking indemnity.

 

10.4         The Owner shall notbe responsible under Paragraph 10.3 for materials and substances brought to thesite by the Contractor unless such materials or substances were required by theContract Documents.

 

10.5         If, withoutnegligence on the part of the Contractor, the Contractor is held liable for thecost of remediation of a hazardous material or substance solely by reason ofperforming Work as required by the Contract Documents, the Owner shallindemnify the Contractor for all cost and expense thereby incurred.

 

10.6                           EMERGENCIES

10.6.1      In an emergency affectingsafety of persons or property, the Contractor shall act, at the Contractor’sdiscretion, to prevent threatened damage, injury or loss. Additionalcompensation or extension of time claimed by the Contractor on account of anemergency shall be determined as provide in Paragraph 4.3 and Article 7.

 

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ARTICLE 11 INSURANCE AND BONDS

11.1                           CONTRACTOR’S LIABILITYINSURANCE

11.1.1      The Contractor shallpurchase from and maintain in a company or companies lawfully authorized to dobusiness in the jurisdiction in which the Project is located such insurance aswill protect the Contractor from claims set forth below which may arise out ofor result from the Contractor’s operations under the Contract and for which theContractor may be legally liable, whether such operations be by the Contractoror by a Subcontractor or by anyone directly or indirectly employed by any ofthem, or by anyone for whose acts any of them may be liable:

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

.2               claimsfor damages because of bodily injury, occupational sickness or disease, ordeath of the Contractor’s employees;

.3               claimsfor damages because of bodily injury, sickness or disease, or death of anyperson other than the Contractor’s employees;

.4               claimsfor damages insured by usual personal injury liability coverage;

.5               claimsfor damages, other than to the Work itself, because of injury to or destructionof tangible property, including loss of use resulting there  from;

.6               claimsfor damages because of bodily injury, death of a person or property damagearising out of ownership, maintenance or use of a motor vehicle;

.7               claimsfor bodily injury or property damage arising out of completed operations; and

.8               claimsinvolving contractual liability insurance applicable to the Contractor’sobligations under Paragraph 3.18.

 

11.1.2      The insurance requiredby Subparagraph 11.1.1 shall ~~be~~~~written for not less than limits ofliability specified in the Contract Documents or required by law, whichevercoverage is greater, Coverages, whether written on an occurrence or claims madebasis, shall be maintained without interruption from date of commencement ofthe Work until date of final payment and termination of any coverage requiredto be maintained after final payment.~~**includeall major divisions of coverage, and shall be on a comprehensive general basisincluding Premises and Operations (including X-C-U). Owner’s and Contractor’sProtective, Products and Completed Operations, and Owner non-owned, and HiredMotor Vehicles. Such insurance shall be written for not less than any limits ofliability required by law or those set forth in the Contract Documents,whichever is greater.**

 

**All insurance shall be written on anoccurrence basis, unless the Owner approves in writing coverage on aclaims-made basis.  Coverages, whetherwritten on an occurrence or claims-made basis, shall be maintained maintainedwithout interruption from date of commencement of the Work until date of finalpayment and termination of any coverage required to be maintained after finalpayment.  The Owner, Architect,Architect’s consultants and their respective officers, employees, partners,directors, shareholders, agents, successors and assigns shall be added as anAdditional Insureds on all policies.**

 

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**The insurance afforded by this policy isprimary insurance except when stated to apply in excess of or contingent uponthe absence of other insurance.  Whenthis insurance is primary, and the Insured has other insurance which is statedto be applicable to the loss on an excess or contingent basis the amount of thecompany’s liability under this policy shall not be reduced by the existence ofsuch other Insurance.**

 

11.1.3      Certificates ofinsurance acceptable to the Owner shall be filed with the Owner prior tocommencement of the Work.  Thesecertificates and the insurance policies required by this Paragraph 11.1 shallcontain a provision that coverages afforded under the policies will not becanceled or allowed to expire until at least 30 days’ prior written notice hasbeen given to the Owner.  **These certificates shall set forth evidence of allcoverage required by 11.1.1 and 11.1.2. The form of certificate shall besubstantially similar to AIA Document G715. Certificates to be delivered shall name the Owner, Architect.Architect’s consultants and their respective officers, employees, partners,directors, shareholders, agents, successors and assigns as Additional insuredson all policies, and the following additional insured:**

 

**Delaware North Companies Incorporated,Its  employees, officers, partners,directors, shareholders, agents, successors, and assigns**

**40 Fountain Plaza, Buffalo, New York 14202**

**The Contractor shall furnish to the Ownercopies of any endorsements that are subsequently issued amending limits ofcoverage.** If any of the foregoing insurance coverages are required to remain in forceafter final payment and are reasonably available, an additional certificateevidencing continuation of such coverage shall be submitted with the finalApplication for Payment as required by Subparagraph 9.10.2.  Information concerning reduction of coverageon account of revised limits or claims paid under the General Aggregate, orboth, shall be furnished by the Contractor with reasonable promptness inaccordance with the Contractor’s information and belief.

 

11.2                           OWNER’S LIABILITY INSURANCE

11.2.1      The Owner shall beresponsible for purchasing and maintaining the Owner’s usual liabilityinsurance.

 

11.3                           PROJECT MANAGEMENTPROTECTIVE LIABILITY INSURANCE

11.3.1      Optionally, the Ownermay require the Contractor to purchase and maintain Project Management ProtectiveLiability insurance from the Contractor’s usual sources as primary coverage forthe Owner’s, Contractor’s and Architect’s vicarious liability for constructionoperations under the Contract.  Unlessotherwise required by the Contract Documents, the Owner shall reimburse theContractor by increasing the Contract Sum to pay the cost of purchasing andmaintaining such optional insurance coverage, and the Contractor shall not beresponsible for purchasing any other liability insurance on behalf of the Owner.  The minimum limits of liability purchasedwith such coverage shall be equal to the aggregate of the limits required forContractor’s Liability Insurance under Clauses 11.1.1.2 through 11.1.1.5.

 

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

 

11.3.3      The Owner shall notrequired the Contractor to include the Owner, Architect or other persons orentities as additional insureds on the Contractor’s Liability Insurancecoverage under Paragraph 11.1.

 

11.4                           PROPERTY INSURANCE

11.4.1      Unless otherwiseprovided, the Owner shall purchase and maintain, in a company or companieslawfully authorized to do business in the jurisdiction in which the Project islocated, property insurance written on a builder’s risk “all-risk” orequivalent policy form in the amount of the initial Contract Sum, plus value ofsubsequent Contract modifications and cost of materials supplied or installedby others, comprising total value for the entire Project at the site on areplacement cost basis without optional deductibles.  Such property insurance shall be maintained, unless otherwiseprovided in the Contract Documents or otherwise agreed in writing by all personsand entities who are beneficiaries of such insurance, until final payment hasbeen made as provided in Paragraph 9.10 or until no person or entity other thanthe Owner has an insurable interest in the property required by this Paragraph11.4 to be covered, whichever is later. This insurance shall include interests of the Owner, the Contractor,Subcontractors and Sub-subcontractors in the Project.

 

11.4.1.1   Property insuranceshall be on an “all-risk” or equivalent policy form and shall include, withoutlimitation, insurance against the perils of fire (with extended coverage) andphysical loss or damage including, without duplication of coverage, theft,vandalism, malicious mischief, collapse, earthquake, flood, windstorm,falsework, testing and startup, temporary buildings and debris removalincluding demolition occasioned by enforcement of any applicable legalrequirements, and shall cover reasonable compensation for Architect’s andContractor’s services and expenses required as a result of such insured loss.

 

11.4.1.2   ~~If the Owner does notintend to purchase such property insurance required by the Contract and withall of the coverages in the amount described above, the Owner shall be informthe Contractor in writing prior to commencement of the Work.  The Contractor may then effect insurancewhich will protect the interests of the Contractor, Subcontractors andSub-subcontractors in the Work, and by appropriate Change Order the costthereof shall be charged to the Owner. If the Contractor is damaged by the failure or neglect of the Owner topurchase or maintain insurance as described above, without so notifying theContractor in writing, then the Owner shall bear all reasonable costs propertyattributable thereto.~~**If the propertyinsurance requires minimum deductibles and such deductibles are identified inthe Contract Documents, the Contractor shall pay insurance required minimumdeductibles and such deductibles are identified in the Contract Documents, theContractor shall pay costs not covered because of such deductibles.  If the Owner or insurer increases therequired minimum deductibles above the amount so identified or if the Ownerelects to purchase this insurance with voluntary deductible amounts, the Ownershall be responsible for payment of the additional costs not covered because ofsuch increased or voluntary deductibles.**

 

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11.4.1.3   ~~If the propertyinsurance requires deductibles, the Owner shall pay costs not covered becauseof such deductibles.~~

 

11.4.1.4   This property insuranceshall cover portions of the Work stored off the site, and also portions of theWork in transit.

 

11.4.1.5   Partial occupancy oruse in accordance with Paragraph 9.9 shall not commence until the insurancecompany or companies providing property insurance have consented to suchpartial occupancy or use by endorsement or otherwise.  The Owner and the Contractor shall take reasonable steps toobtain consent of the insurance company or companies and shall, without mutualwritten consent, take no action with respect to partial occupancy or use thatwould cause cancellation, lapse or reduction of insurance.

 

11.4.2      Boiler and MachineryInsurance.  The Owner shall purchase andmaintain boiler and machinery insurance required by the Contract Documents orby law, which shall specifically cover such insured objects during installationand until final acceptance by the Owner; this insurance shall include interestsof the Owner, Contractor, Subcontractors and Sub-subcontractors in the Work,and the Owner and Contractor shall be named insureds.

 

11.4.3      Loss of UseInsurance.  The Owner, at the Owner’soption, may purchase and maintain such insurance as will insure the Owneragainst loss of use of the Owner’s property due to fire or other hazards,however caused.  The Owner waives allrights of action against the Contractor for loss of use-of the Owner’sproperty, including consequential losses due to fire or other hazards howevercaused.

 

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

 

11.4.5      If during the Projectconstruction period the Owner insures properties, real or personal or both, ator adjacent to the site by property insurance under policies separate fromthose insuring the Project, or if after final payment property insurance is tobe provided on the completed Project through a policy or policies other thanthose insuring the Project during the construction period, the Owner shallwaive all rights in accordance with the terms of Subparagraph 11.4.7 fordamages caused by fire or other causes of loss covered by this separateproperty insurance.  All separatepolicies shall provide this waiver of subrogation by endorsement or otherwise.

 

11.4.6      Before an exposure toloss may occur, the Owner shall file with the Contractor a copy of each policythat includes insurance coverages required by this Paragraph 11.4.  Each policy shall contain all generallyapplicable conditions, definitions, exclusions and endorsements related to thisProject.  Each policy shall contain aprovision that the policy will not be canceled or allowed to expire, and thatits limits will not be reduced, until at least 30 days’ prior written noticehas been given to the Contractor.

 

11.4.7      Walvers ofSubrogation.  The Owner and Contractorwaive all rights against (1) each other and any of their subcontractors,sub-subcontractors, agents and employees, each of the other, and (2) theArchitect, Architect’s consultants, separate contractors described in Article6, if any, and any of their subcontractors, sub-subcontractors, agents and employees,for damages caused by fire or other causes of loss to the extent covered byproperty insurance obtained pursuant to this Paragraph 11.4 or other propertyinsurance applicable to the Work, except such rights as they have to proceedsof such insurance held by the Owner as fiduciary.  The Owner or Contractor, as appropriate, shall require of theArchitect, Architect’s consultants, separate contractors described in Article6, if any, and the subcontractors, sub-subcontractors,

 

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agents and employees of any of them, by appropriate agreements, writtenwhere legally required for validity, similar waivers each in favor of otherparties enumerated herein.  The policiesshall provide such waivers of subrogation by endorsement or otherwise.  A waiver of subrogation shall be effectiveas to a person or entity even though that person or entity would otherwise havea duty of indemnification, contractual or otherwise, **and whether or not**~~did not pay~~theinsurance premium **has**directlyand indirectly **been paid,**~~and whether or not the person or entity had an insurable interest in theproperty damaged.~~

 

11.4.8      A loss insured underOwner’s property insurance shall be adjusted by the Owner as fiduciary and madepayable to the Owner as fiduciary for the insureds, as their interests mayappear, subject to requirements of any applicable mortgagee clause and ofSubparagraph 11.4.10.  The Contractorshall pay Subcontractors their just shares of insurance proceeds received bythe Contractor, and by appropriate agreements, written where legally requiredfor validity, shall require Subcontractors to make payments to theirSub-subcontractors in similar manner.

 

11.4.9      If required in writingby a party in interest, the Owner as fiduciary shall, upon occurrence of aninsured loss, give bond for proper performance of the Owner’s duties.  The cost of required bonds shall be chargedagainst proceeds received as fiduciary. The Owner shall deposit in a separate account proceeds so received, whichthe Owner shall distribute in accordance with such agreement as the parties ininterest may reach, or in accordance with an arbitration award in which casethe procedure shall be as provided in Paragraph 4.6.  If after such loss no other special agreement is made and unlessthe Owner terminates the Contract for convenience, replacement of damagedproperty shall be performed by the Contractor after notification of a Change inthe Work in accordance with Article 7.

 

11.4.10    The Owner as fiduciaryshall have power to adjust and settle a loss with insurers unless one of theparties in interest shall object in writing within five days after occurrenceof loss to the Owner’s exercise of this power, if such objection is made, thedispute shall be resolved as provided in Paragraph 4.5 and 4.6.  The Owner as fiduciary shall, in the case orarbitration, make settlement with insurers in accordance with directions of thearbitrators. If distribution of insurance proceeds by arbitration is required,the arbitrators will direct such distribution.

 

11.5                           PERFORMANCE BOND AND PAYMENTBOND

11.5.1      The Owner shall havethe right to require the Contractor to furnish bonds covering faithfulperformance of the Contract and payment of obligations arising thereunder asstipulated in bidding requirements or specifically required in the ContractDocuments on the date of execution of the Contract.

 

11.5.2      Upon the request ofany person or entity appearing to be a potential beneficiary of bonds coveringpayment of obligations arising under the Contract, the Contractor shallpromptly furnish a copy of the bonds or shall permit a copy to be made.

 

ARTICLE 12 UNCOVERING ANDCORRECTION OF WORK

12.1                           UNCOVERING OF WORK

12.1.1      If a portion of theWork is covered contrary to the Architect’s request or to requirementsspecifically expressed in the Contract Documents, it must, if required inwriting by the Architect, be uncovered for the Architect’s examination and bereplaced at the Contractor’s expense without change in the Contract Time.

 

12.1.2      If a portion of theWork has been covered which the Architect has not specifically requested toexamine prior to its being covered, the Architect may request to see such Workand it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs ofuncovering and replacement shall, by appropriate Change Order, be at theOwner’s expense.  If such Work is not inaccordance with the Contract Documents, correction

 

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shall be at the Contractor’s expense unless the condition was caused bythe Owner or a separate contractor in which even the Owner shall be responsiblefor payment of such costs.

 

12.2                           CORRECTION OF WORK

12.2.1                  BEFORE OR AFTER SUBSTANTIALCOMPLETION

12.2.1.1   The Contractor shallpromptly correct Work rejected by the Architect or failing to conform to therequirements of the Contract Documents, whether discovered before or afterSubstantial Completion and whether or not fabricated, installed or completed.Costs of correcting such rejected Work, including additional testing andinspections and compensation for the Architect’s services and expenses madenecessary thereby, shall be at the Contractor’s expense.

 

12.2.2                  AFTER SUBSTANTIAL COMPLETION

12.2.2.1   In addition to theContractor’s obligations under Paragraph 3.5, if, within one year after thedate of Substantial Completion of the Work or designated portion thereof orafter the date for commencement of warranties established under Subparagraph9.9.1, or by terms of an applicable special warranty required by the ContractDocuments, any of the Work is found to be not in accordance with therequirements of the Contract Documents, the Contractor shall correct itpromptly after receipt of written notice from the Owner to do so unless theOwner has previously given the Contractor a written acceptance of suchcondition.  The Owner shall give suchnotice promptly after discovery of the condition.  During the one-year period for correction of Work, if the Ownerfails to notify the Contractor and give the Contractor an opportunity to makethe correction, the Owner waives the rights to require correction by theContractor and to make a claim for breach of warranty.  If the Contractor fails to correctnonconforming Work within a reasonable time during that period after receipt ofnotice from the Owner or Architect, the Owner may correct it in accordance withParagraph 2.4.

 

12.2.2.2   The one-year period forcorrection of Work shall be extended with respect to portions of Work firstperformed after Substantial Completion by the period of time betweenSubstantial Completion and the actual performance of the Work.

 

12.2.2.3   The one-year period forcorrection of Work shall not be extended by corrective Work performed by theContractor pursuant to this Paragraph 12.2.

 

12.2.3      The Contractor shallremove from the site portions of the Work which are not in accordance with therequirements of the Contract Documents and are neither corrected by theContractor nor accepted by the Owner.

 

12.2.4       The Contractor shall bear the cost ofcorrecting destroyed or damaged construction, whether completed or partiallycompleted, of the Owner or separate contractors caused by the Contractor’scorrection or removal of Work which is not in accordance with the requirementsof the Contract Documents.

 

12.2.5      Nothing contained inthis Paragraph 12.2 shall be construed to establish a period of limitation withrespect to other obligations which the Contractor might have under the ContractDocuments. Establishment of the one-year period for correction of Work asdescribed in Subparagraph 12.2.2 relates only to the specific obligation of theContractor to correct the Work, and has no relationship to the time withinwhich the obligation to comply with the Contract Documents may be sought to beenforced, nor to the time within which proceedings may be commenced toestablish the Contractor’s liability with respect to the Contractor’sobligations other than specially to correct the Work.

 

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12.3                           ACCEPTANCE OF NONCONFORMINGWORK

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

 

ARTICLE 13 MISCELLANEOUSPROVISIONS

13.1                           GOVERNING LAW

13.1.1      The Contract shall begoverned by the law of the place where the Project is located.

 

13.2                           SUCCESSORS AND ASSIGNS

13.2.1      The Owner andContractor respectively bind themselves, their partners, successors, assignsand legal representatives to the other party hereto and to partners,successors, assigns and legal representatives of such other party in respect tocovenants, agreements and obligations contained in the Contract Documents. ~~ Except as provided in Subparagraph 13.2.2neither party to the Contract shall assign the Contract as a whole without writtenconsent of the other.~~  **Except as hereinafter provided, neither party to theContract shall assign the Contract or sublet it as a whole without the writtenconsent of the other nor shall be Contractor assign any moneys due or to becomedue to him hereunder, without the previous written consent of the Owner exceptsas may be required by Contractor’s Surety. Upon reasonable written notice to Contractor, the Owner may assign theContract to any Institutional lender providing construction or permanent financingfor the Project or to any person acquiring the Owner’s interest in the Projectand the contractor agrees to execute all consents certificates and otherdocuments required by such lender or other person in connection with suchassignment.**  If either partyattempts to make such an assignment without such consent, that party shallnevertheless remain legally responsible for all obligations under the Contract.

 

13.2.2      ~~The Owner may,without consent of the Contractor, assign the Contract to an institutionallender providing construction financing for the Project.  In such event, the lender shall assume theOwner’s rights and obligations under the Contract Documents.  The Contractor shall execute all consentsreasonably required to facilitate such assignment.~~  **If theOwner conveys its interest in the Project to a third party, any rights whichthe Owner may have against the Contractor arising from this Agreement includingwithout limitation Claims under Article 12, or Claims which, under the terms ofsubparagraph 4.3.10, are reserved to the Owner after the making and acceptanceof final payment, shall automatically transfer to such third party.**

 

13.3                           WRITTEN NOTICE

13.3.1      Written notice shallbe deemed to have been duly served if delivered in person to the individual ora member of the firm or entity or to an officer of the corporation for which itwas intended, or if delivered at or sent by registered or certified mail to thelast business address known to the party giving notice.

 

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13.4                           RIGHTS AND REMEDIES

13.4.1      Duties and obligationsimposed by the Contract Documents and rights and remedies available thereundershall be in addition to and not a limitation of duties, obligations, rights andremedies otherwise imposed or available by law.

 

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

 

13.5                           TESTS AND INSPECTIONS

13.5.1      Tests, inspections andapproval of portions of the Work required by the Contract Documents or by laws,ordinances, rules, regulations or order of public authorities havingjurisdiction shall be made at an appropriate time.  Unless otherwise provided, the Contractor shall make arrangementsfor such tests, inspections and approvals with an independent testinglaboratory or entity acceptable to the Owner, or with the appropriate publicauthority, and shall bear all related costs of tests, inspections andapprovals.  The Contractor shall givethe Architect timely notice of when and where tests and inspections are to bemade so that the Architect may be present for such procedures.  The Owner shall bear costs of tests,inspections or approvals which do not become requirements until after bids arereceived or negotiations concluded.

 

13.5.2      If the Architect,Owner or public authorities having jurisdiction determine that portions of theWork require additional testing, inspection or approval not included underSubparagraph 13.5.1, the Architect will, upon written authorization from theOwner, instruct the Contractor to make arrangements for such additionaltesting, inspection or approval by an entity acceptable to the Owner, and theContractor shall give timely notice to the Architect of when and where testsand inspections are to be made so that the Architect may be present for suchprocedures.  Such costs, except asprovided in Subparagraph 13.5.3, shall be at the Owner’s expense.

 

13.5.3      If such procedures fortesting, inspection or approval under Subparagraphs 13.5.1 and 13.5.2 revealfailure of the portions of the Work to comply with requirements established bythe Contract Documents, all costs made necessary by such failure includingthose of repeated procedures and compensation for the Architect’s services andexpenses shall be at the Contractor’s expense.

 

13.5.4      Required certificatesof testing, inspection or approval shall, unless otherwise required by theContract Documents, be secured by the Contractor and promptly delivered to theArchitect.

 

13.5.5      ~~If the Architect isto observe tests, inspections or approvals required by the Contract Documents,the Architect will do so promptly and, where practicable, at the normal placeof testing.~~

 

13.5.6      Tests or inspectionsconducted pursuant to the Contract Documents shall be made promptly to avoidunreasonable delay in the Work.

 

13.6                           INTEREST

13.6.1      Payments due andunpaid under the Contract Documents shall bear interest ~~from the datepayment is due at such rate as the parties may agree upon in writing or, in theabsence thereof, at the legal rate prevailing from time to time at the placewhere the Project is located~~**beginningon the tenth (10th) day after the date payment is due at the so-called PrimeRate of Interest published by the Wall Street Journal (and if there is morethan one such rate the lowest thereof).**

 

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13.7                           COMMENCEMENT OF STATUTORYLIMITATION PERIOD

13.7.1      ~~As between theOwner and Contractor:~~

~~.1~~~~               Before Substantial Completion.  As to acts or failures to act occurringprior to the relevant date of Substantial Completion; any applicable statute oflimitations shall commence to run and any alleged cause of action shall bedeemed to have accrued in any all events not later than such date ofSubstantial Completion;~~

~~.2~~~~               Between Substantial Completion and FinalCertificate for Payment. As to acts or failures to act occurring subsequent tothe relevant date of Substantial Completion and prior to issuance of the finalCertificate for Payment, any -applicable statute of limitations shall commenceto run and any alleged cause of action shall be deemed to have accrued in anyand all events not later than the date of issuance of the final Certificate forPayment; and~~

~~.3~~~~               After Final Certificate for Payment. Asto acts or failures to act occurring after the relevant date of issuance of thefinal Certificate for Payment, any applicable statute of limitations shallcommence to run and any alleged cause of action shall be deemed to have accruedin any and all events not later than the date of any act or failure to act bythe Contractor pursuant to any Warranty provided under Paragraph 3.5, the dateof any correction of the Work or failure to correct the Work by the Contractorunder Paragraph 12.2, or the date of actual commission of any other act orfailure to perform any duty or obligation by the Contractor or Owner, whicheveroccurs last.~~

 

**13.8****                        LIMITATIONOF LIABILITY**

 

**13.8.1    Noofficer, shareholder, director, partner, partner agent or employee of the Owner(or any partner of a partner or any agent or employee of a partner) shall everbe personally or individually liable under this Contract.  Each subcontract shall include the foregoinglimitation, which shall be effective if the Owner ever succeeds to theContractor’s rights and obligations under a Subcontract.**

 

ARTICLE 14   TERMINATION OR SUSPENSION OF THE CONTRACT

14.1                           TERMINATION BY THECONTRACTOR

14.1.1      The Contractor mayterminate the Contract if the Work is stopped for a period of 30 consecutivedays through no act or fault of the Contractor or a Subcontractor,Sub-subcontractor or their agents or employees or any other persons or entitiesperforming portions of the work under direct or indirect contract with theContractor, for any of the following reasons:

.1               issuanceof an order of a court or other public authority having jurisdiction whichrequires all Work to be stopped;

.2               anact of government, such as a declaration of national emergency which requiresall Work to be stopped;

.3               becausethe Architect has not issued a Certificate for Payment and has not notified theContractor of the reason for withholding certification as provided inSubparagraph 9.4.1, or because the Owner has not made payment on a Certificatefor Payment within the time stated in the Contract Documents; or

.4               ~~theOwner has failed to furnish to the Contractor promptly; upon the Contractor’srequest, reasonable evidence as required by Subparagraph 2.2.1.~~

 

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14.1.2      The Contractor mayterminate the Contract if, through no act or fault of the Contractor or aSubcontractor, Sub-subcontractor or their agents or employees or any otherpersons or entities performing portions of the Work under direct or indirectcontract with the Contractor, repeated suspensions, delays or interruptions ofthe entire Work by the Owner as described in Paragraph 14.3 constitute in theaggregate more than 100 percent of the total number of days scheduled forcompletion, or 120 days in any 365-day period, whichever is less.

 

14.1.3      If one of the reasonsdescribed in Subparagraph 14.1.1 or 14.1.2 exists, the Contractor may, uponseven days’ written notice to the Owner and Architect, terminate the Contractand recover from the Owner payment for Work executed and for proven loss withrespect to materials, equipment, tools, and construction equipment andmachinery, including reasonable overhead, profit and damages.

 

14.1.4      If the Work is stoppedfor a period of 60 consecutive days through no act or fault of the Contractoror a Subcontractor or their agents or employees or any other persons performingportions of the Work under contract with the Contractor because the Owner haspersistently failed to fulfill the Owner’s obligations under the ContractorDocuments with respect to matters important to the progress of the Work, theContractor may, upon seven additional days, written notice to the Owner and theArchitect, terminate the Contract and recover from the Owner as provided inSubparagraph 14.1.3.

 

14.2                           TERMINATION BY THE OWNER FORCAUSE

**14.2.1     Ifthe Contractor is adjudged a bankrupt or if the Contractor makes a generalassignment for the benefit of the Contractor’s; creditors or if a receiver isappointed on account of the Contractor’s insolvency or if the Contractorpersistently or repeatedly refuses or fails except in the case for whichextension of time is provided, to supply enough properly skilled workmen orproper materials for the Project or if the Contractor fails to make promptpayment to Subcontractors for materials or labor, or If the Contractorpersistently disregards the laws ordinances, rules, regulations or orders ofany public authority having jurisdiction or disregards an Instruction, order ordecision of the Architect or if the Contractor otherwise is guilty of asubstantial violation of any provision of the Contract then the Contractorshall be in default and the Owner may without prejudice to any other right orremedy and upon written notice to the Contractor take possession of allmaterials, appliances equipment and machinery on the Project site, Intended aspart of or for Work, but only to the extent paid for by Owner wherever storedand seven (7) days after such notice amy terminate the employment of theContractor, accept assignment of any or all subcontracts pursuant to Paragraph5.4, and finish the Work by whatever method the Owner may deem expedient.  The Owner shall be entitled to collect formthe Contractor all direct indirect and consequential damages suffered by theOwner.  The Owner shall be entitled tohold**

 

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**sufficient amounts due the Contractor at thedate of termination to offset all of the Owner’s damages.**

~~The Owner may terminate the Contract if the Contractor:~~

~~.1~~~~               persistently or repeatedly refuses orfails to supply enough properly skilled -workers or proper materials,~~

~~.2~~~~               fails to make payment to Subcontractorsfor materials or labor in accordance with the respective agreements between theContractor and the Subcontractors;~~

~~.3~~~~               persistently disregards laws,ordinances, or rules, regulations or orders of a provision of the Contractpublic authority having jurisdication; or~~

~~.4~~~~               otherwise is guiltyof substantial breachof a provision of the Contract-Documents.~~

 

14.2.2      When any of the abovereasons exist, the Owner, upon certification by the Architect that sufficientcause exists to justify such action may without prejudice to any other rightsor remedies of the Owner and after giving the Contractor and the Contractor’ssurety, if any, seven days’ written notice, terminate employment of theContractor and may, subject to any prior rights of the Surety: —

.1               take possession of the site and of allmaterials, equipment, tools, and construction equipment and machinery thereonowned by the Contractor;

.2               accept assignment of subcontractspursuant to Paragraph 5.4; and

.3               finish the Work by whatever reasonablemethod the Owner may deem expedient. Upon request of the Contractor, the Ownershall furnish to the Contractor a detailed accounting of the costs incurred bythe Owner in finishing the Work.

 

14.2.3      When the Ownerterminates the Contract for one of the reasons stated in subparagraph 14.2.1,the Contractor shall not be entitled to receive further payment until the Workis finished.

 

14.2.4      If the unpaid balanceof the Contract Sum exceeds costs of finishing the Work , includingcompensation for the Architect’s services and expenses made necessary thereby,and other damages incurred by the Owner and not expressly waived, such excessshall be paid to the Contractor. If such costs and damages exceed the unpaidbalance, the Contractor shall pay the difference to the Owner. The amount to bepaid to the Contractor or Owner, as the case may be, shall be certified by theArchitect, upon application, and this obligation for payment shall survivetermination of the Contract.

 

14.3                           SUSPENSION BY THE OWNER FORCONVENIENCE

14.3.1      The Owner may, withoutcause, order the Contractor in writing to suspend, delay or interrupt the Workin whole or in part for such period of time as the Owner may determine.

 

14.3.2      The Contract Sum andContract Time shall be adjusted for increases in the cost and time caused bysuspension, delay or interruption as described in Subparagraph 14.3.1.Adjustment of the Contract Sum shall include profit. No adjustment shall bemade to the extent:

.1               that performance is, was or would havebeen so suspended, delayed or interrupted by another cause for which theContactor is responsible; or

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

 

14.4                           TERMINATION BY THE OWNER FORCONVENIENCE

14.4.1      The Owner may, at anytime, terminate the Contract for the Owner’s convenience and without cause.

 

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14.4.2      Upon receipt ofwritten notice from the Owner of such termination for the Owner’s convenience,the Contractor shall:

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

.2               take actions necessary, or that theOwner may direct, for the protection and preservation of the Work; and

.3               except for Work directed to be performedprior to the effective date of termination stated in the notice, terminate allexisting subcontracts and purchase orders and enter into no furthersubcontracts and purchase orders.

 

14.4.3      In case of suchtermination for the Owner’s convenience, the Contractor shall be entitled toreceive payment for Work executed, and costs incurred by reason of suchtermination, along with reasonable overhead and profit on the Work notexecuted.

 

**14.4.4     Uponany termination of the Contract by Owner for convenience under 14.4 hereof,Owner shall give Contractor fifteen (15) days written notice prior to suchtermination becoming effective.**

 

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1997 Edition - Electronic Format

 

AIA Document A401 - 1997

 

*Standard Form of Agreement Between Contractorand Subcontractor*

 

AGREEMENTmade as of the day of in the year

*(In words, indicate day, month and year)*

 

BETWEENthe Contractor:*(Name, address and other information)*Louis P, Ciminelli Contruction Company, Inc.The Cyclorama Building,369 Franklin StreetBuffalo, New York 14202

 

andthe Subcontractor:

*(Name, address and other information)*

 

TheContractor has made a contract for construction dated: September 1, 2001

 

Withthe Owner:*(Name, address and other information)*Wheeling Island Gaming, Inc.One South Stone StreetWheeling, West Virginia 26003

 

Forthe following Project:

*(Include detailed description of Project,location and address)*

The “Project” consists of preconstruction and constructionservices.  The preconstruction servicesconsist of the evaluation of the Owner’s program, scheduling and constructionbudget formulation, and such additional services as are set forth in theagreement between Construction Manager and Owner.  AIA Document A121/CMc 1991 Edition” Electronic Format datedSeptember 1, 2001 (the “Prime Contract”), with General Conditions of theContract for Construction, annexed thereto and made a part thereof, being AIADocument A201-1997 - Electronic Format, as amended (the “General Conditions”),for the construction of an approximately 279,100 square ft. conventionallyconstructed facility which will house a casino, gaming facility, entertainmentcenter covered parking facility and hotel, located at One South Stone Street,Wheeling, West Virginia (the “Site” or “site”), as is more fully set forth in theProject Manual, Drawings and Specifications, which are incorporated byreference into the Prime Contract. Included in the Project are all costsassociated with development of the Site, and acquisition and installation ofall steel, masonry, carpentry, electrical, plumbing and HVAC work, togetherwith the costs associated with the acquisition and installation of allImprovements to complete the Project, Including but not limited to, developingthe casino theme.

 

**ATTACHMENT II**

 

THIS DOCUMENT HAS IMPORTANT LEGALCONSEQUENCES, CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITSCOMPLETION OR MODIFICATION. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED A/A DOCUMENT MAY BE MADEBY USING A/A DOCUMENT D401.

 

This document has been approvedand endorsed by the American Subcontractors Association and the AssociatedSpecialty Contractors, Inc.

 

[LOGO]

 

©1997 A/A®

A/A DOCUMENT A401 - 1997

CONTRACTOR - SUBCONTRACTORAGREEMENT

 

The American Institute ofArchitects

1735 New York Avenue, N.W.

Washington, D.C. 20006-5292

** **

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which Contract ~~is~~~~hereinafter~~~~referred~~~~to~~~~as~~~~the~~~~Prime~~~~Contract~~~~and~~~~which~~ provides for the furnishing of labor, materials, equipment andservices in connection with the construction of the Project.  A copy of the Prime Contract, consisting ofthe Agreement Between Owner and Contractor (from which compensation amounts maybe deleted) and the other Contract Documents enumerated therein has been madeavailable to the Subcontractor.

 

TheArchitect for the Project is:

*(Name, address and other information)*

 

TheContractor and the Subcontractor agree as follows.

 

ARTICLE 1       THE SUBCONTRACTDOCUMENTS

1.1                                 The Subcontract Documents consist of (1) thisAgreement; (2) the Prime Contract, consisting of the Agreement between theOwner and Contractor and the other Contract Documents enumerated therein; (3)Modifications issued subsequent to the execution of the Agreement between theOwner and Contractor, whether before or after the execution of this Agreement;(4) other documents listed in Article 16 of this Agreement; and (5)Modifications to this Subcontract issued after execution of this Agreement.These form the Subcontract, and are as fully a part of the Subcontract as ifattached to this Agreement or repeated herein. The Subcontract represents the entire and integrated agreement betweenthe parties hereto and supersedes prior negotiations, representations oragreements, either written or oral.  Anenumeration of the Subcontract Documents, other than Modifications issuedsubsequent to the execution of this Agreement, appears in Article 16.

 

1.2                                 Except to the extent of a conflict with aspecific term or condition contained in the Subcontract Documents, the GeneralConditions governing this Subcontract shall be the edition of AIA DocumentA201, General Conditions of the Contract for Construction, ~~current as of thedate of this Agreement,~~attached to the Prime Contract, but as modifiedherein by Schedule A attached hereto and made a part hereof.  Every time a reference is made herein to anyGeneral Conditions.  It shall mean theones attached to the Prime Contract as modified by ScheduleA hereto.

 

1.3                                 The Subcontract may be amended or modifiedonly by a Modification.  The SubcontractDocuments shall not be construed to created a contractual relationship of any kind(1) between the Architect and the Subcontractor, (2) between the Owner and theSubcontractor, or (3) between any persons or entities other than the Contractorand Subcontractor.

 

1.4                                 The Subcontractor shall be furnished copiesof the Subcontract Documents upon request, but the Contractor may charge theSubcontractor for the reasonable cost of reproduction.

 

ARTICLE 2       MUTUAL RIGHTS ANDRESPONSIBILITIES

2.1                                 The Contractor and Subcontractor shall bemutually bound by the terms of this Agreement and, to the ~~extent that theprovisions of the edition of AIA Document A201 current as of the date of thisAgreement~~ General Conditions that apply to this Agreement pursuantto Paragraph 1.2 and provisions of the Prime Contract apply to the Work of theSubcontractor, the Contractor shall assume toward the Subcontractor allobligations and responsibilities that the Owner, under such documents, assumestoward the Contractor, and the Subcontractor shall assume toward the Contractorall obligations and responsibilities which the Contractor, under suchdocuments, assumes toward the Owner and the Architect.  The Contractor shall have the benefit of allrights, remedies and redress against the Subcontractor which the Owner, undersuch documents, has against the Contractor, and the Subcontractor shall havethe benefit of all rights, remedies and redress against the Contractor whichthe Contractor, under such documents, has against the Owner, insofar asapplicable to this Subcontract.  Where aprovision

 

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of such documents is inconsistent with aprovision of this Agreement, this Agreement shall govern.

 

2.2                                 The Contractor may require the Subcontractorto enter into agreements with Sub-subcontractors performing portions of the Workof this Subcontract by which the Subcontractor and the Sub-subcontractor aremutually bound, to the extent of the Work to be performed by theSub-subcontractor, assuming toward each other all obligations andresponsibilities which the Contractor and Subcontractor assume toward eachother and having the benefit of all rights, remedies and redress each againstthe other which the Contractor and Subcontractor have by virtue of theprovisions of this Agreement.

 

ARTICLE 3       CONTRACTOR

3.1                                 SERVICES PROVIDED BY THE CONTRACTOR

3.1.1                        The Contractor shall cooperate with theSubcontractor in scheduling and performing the Contractor’s Work to avoidconflicts or interference in the Subcontractor’s Work and shall expeditewritten responses to submittals made by the Subcontractor in accordance withParagraph 4.1 and Article 5. As soon as practicable after execution of thisAgreement, the Contractor shall provide the Subcontractor copies of theContractor’s construction schedule and schedule of submittals, together with suchadditional scheduling details as will enable the Subcontractor to plan andperform the Subcontractor’s Work properly. The Subcontractor shall be notified promptly of subsequent changes inthe construction and submittal schedules and additional scheduling details.

 

3.1.2                        The Contractor shall provide suitable areasfor storage of the Subcontractor’s materials and equipment during the course ofthe Work. Additional costs to the Subcontractor resulting from relocation ofsuch facilities at the direction of the Contractor, except as previously agreedupon, shall be reimbursed by the Contractor.

 

3.1.3                        Except as provided in Article 14, theContractor’s equipment will be available to the Subcontractor only at theContractor’s discretion and on mutually satisfactory terms.

 

3.2                                 COMMUNICATIONS

3.2.1                        The Contractor shall promptly make availableto the Subcontractor information, including information received from theOwner, which affects this Subcontract and which becomes available to theContractor subsequent to execution of this Subcontract.

 

3.2.2                        The Contractor shall not give instructions ororders directly to the Subcontractor’s employees or to the Subcontractor’sSub-subcontractors or material suppliers unless such persons are designated asauthorized representatives of the Subcontractor.

 

3.2.3                        The Contractor shall permit the Subcontractorto request directly from the Architect information regarding the percentages ofcompletion and the amount certified on account of Work done by theSubcontractor.

 

3.2.4                        If hazardous substances of a type of which anemployer is required by law to notify its employees are being used on the siteby the Contractor, a subcontractor or anyone directly or indirectly employed bythem (other than the Subcontractor), the Contractor shall, prior to harmfulexposure of the Subcontractor’s employees to such substance, give writtennotice of the chemical composition thereof to the Subcontractor in sufficientdetail and time to permit the Subcontractor's compliance with such laws.

 

3.2.5                        The Contractor shall furnish to theSubcontractor within 30 days after receipt of a written request, or earlier ifso required by law, information necessary and relevant for the Subcontractor toevaluate, give notice of or enforce mechanic’s lien rights.  Such information

 

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shall include a correct statement of therecord legal title to the property, usually referred to as the site, on whichthe Project is located and the Owner’s interest therein.

 

3.2.6                        If the Contractor asserts or defends a claimagainst the Owner which relates to the Work of the Subcontractor, theContractor shall make available to the Subcontractor information relating tothat portion of the claim which relates to the Work of the Subcontractor.

 

3.3                                 CLAIMSBY THE CONTRACTOR

3.3.1                        Liquidateddamages for delay, if provided for in Paragraph 9.3 of this Agreement, shall beassessed against the Subcontractor only to the extent caused by theSubcontractor or any person or entity for whose acts the Subcontractor may beliable, and in no case for delays or causes arising outside the scope of thisSubcontract.

 

3.3.2                        TheContractor's claims for services or materials provided the Subcontractor shallrequire:

.1               seven days' prior written notice exceptin an emergency;

.2               written compilations to theSubcontractor of services and materials provided and charges for such servicesand materials no later than the fifteenth day of the following month.

 

3.4                                 CONTRACTOR’S REMEDIES

3.4.1                        If the Subcontractor defaults or neglects tocarry out the Work in accordance with this Agreement and fails within threeworking days after receipt of written notice from the Contractor to commenceand continue correction of such default or neglect with diligence andpromptness, the Contractor may, after three days following receipt by theSubcontractor of an additional written notice, and without prejudice to anyother remedy the Contractor may have, make good such deficiencies and maydeduct the reasonable cost thereof from the payments then or thereafter due theSubcontractor.

 

ARTICLE 4                     SUBCONTRACTOR

4.1                                 EXECUTION AND PROGRESS OF THE WORK

4.1.1                        The Subcontractor shall supervise and directthe Subcontractor’s Work, and shall cooperate with the Contractor in schedulingand performing the Subcontractor’s Work to avoid conflict, delay in orinterference with the Work of the Contractor, other subcontractors or Owner’sown forces.

 

4.1.2                        The Subcontractor shall promptly submit ShopDrawings, Product Data, Samples and similar submittals required by theSubcontract Documents with reasonable promptness and in such sequence as tocause no delay in the Work or in the activities of the Contractor or othersubcontractors.

 

4.1.3                        The Subcontractor shall submit to theContractor a schedule of values allocated to the various parts of the Work ofthis Subcontract, aggregating the Subcontract Sum, made out in such detail asthe Contractor and Subcontractor may agree upon or as required by the Owner,and supported by such evidence as the Contractor may require.  In applying for payment, the Subcontractorshall submit statements based upon this schedule.

 

4.1.4                        The Subcontractor shall furnish to theContractor periodic progress reports on the Work of this Subcontract asmutually agreed, including information on the status of materials and equipmentwhich may be in the course of preparation, manufacture or transit.

 

4.1.5                        The Subcontractor agrees that the Contractorand the Architect will each have the authority to reject Work of theSubcontractor which does not conform to the Prime Contract.

 

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The Architect’s decisions on matters relating to aesthetic effect shallbe final and binding on the Subcontractor if consistent with the intentexpressed in the Prime Contract.

 

4.1.6                        TheSubcontractor shall pay for all materials, equipment and labor used inconnection with the performance of this Subcontract through the period coveredby previous payments received from the Contractor, and shall furnishsatisfactory evidence, when requested by the Contractor, to verify compliancewith the above requirements.

 

4.1.7                        TheSubcontractor shall take necessary precautions to protect properly the Work ofother subcontractors from damage caused by operations under this Subcontract.

 

4.1.8                        TheSubcontractor shall cooperate with the Contractor, other subcontractors and theOwner’s own forces whose Work might interfere with the Subcontractor’sWork.  The Subcontractor shallparticipate in the preparation of coordinated drawings in areas of congestion,if required by the Prime Contract, specifically noting and advising theContractor of potential conflicts between the Work of the Subcontractor andthat of the Contractor, other subcontractors or the Owner’s own forces.

 

4.2                                 LAWS, PERMITS, FEESAND NOTICES

4.2.1                        TheSubcontractor shall give notices and comply with laws, ordinances, rules,regulations and orders of public authorities bearing on performance of the Workof this Subcontract. The Subcontractor shall secure and pay for permits andgovernmental fees, licenses and inspections necessary for proper execution andcompletion of the Subcontractor’s Work, the furnishing of which is required ofthe Contractor by the Prime Contract.

 

4.2.2                        TheSubcontractor shall comply with Federal, state and local tax laws, socialsecurity acts, unemployment compensation acts and workers’ compensation actsinsofar as applicable to the performance of this Subcontract.

 

4.3                                 SAFETY PRECAUTIONS ANDPROCEDURES

4.3.1                        TheSubcontractor shall take reasonable safety precautions with respect toperformance of this Subcontract, shall comply with safety measures initiated bythe Contractor and with applicable laws, ordinances, rules, regulations andorders of public authorities for the safety of persons and property inaccordance with the requirements of the Prime Contract.  The Subcontractor shall report to theContractor within three days an injury to an employee or agent of theSubcontractor which occurred at the site.

 

4.3.2                        Ifhazardous substances of a type of which an employer is required by law tonotify its employees are being used on the site by the Subcontractor, theSubcontractor’s Sub-subcontractors or anyone directly or indirectly employed bythem, the Subcontractor shall, prior to harmful exposure of any employees onthe site to such substance, give written notice of the chemical compositionthereof to the Contractor in sufficient detail and time to permit compliancewith such laws by the Contractor, other subcontractors and other employers onthe site.

 

4.3.3                        Ifreasonable precautions will be inadequate to prevent foreseeable bodily injuryor death to persons resulting from a material or substance, including but notlimited to asbestos or polychlorinated biphenyl (PCB), encountered on the siteby the Subcontractor, the Subcontractor shall, upon recognizing the condition,immediately stop Work in the affected area and report the condition to theContractor in writing. When the material or substance has been renderedharmless, the Subcontractor’s Work in the affected area shall resume uponwritten agreement of the Contractor and Subcontractor.  The Subcontract Time shall be extendedappropriately and the Subcontract Sum shall be increased in the amount of theSubcontractor’s reasonable additional costs of demobilization, delay andremobilization, which adjustments shall be accomplished as provided in Article5 of this Agreement.

 

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4.3.4                        Tothe fullest extent permitted by law, the Contractor shall indemnify and holdharmless the Subcontractor, the Subcontractor’s Sub-subcontractors, and agentsand employees of any of them from and against claims, damages, losses andexpenses, including but not limited to attorneys’ fees, arising out of orresulting from performance of the Work in the affected area if in fact thematerial or substance presents the risk of bodily injury or death as describedin Subparagraph 4.3.3 and has not been rendered harmless, provided that suchclaim, damage, loss or expense is attributable to bodily injury, sickness,disease or death, or to injury to or destruction of tangible property (otherthan the Work itself) including loss of use resulting therefrom and providedthat such damage, loss or expense is not due to the sole negligence of a partyseeking indemnity.

 

4.4                                 CLEANING UP

4.4.1                        TheSubcontractor shall keep the premises and surrounding area free fromaccumulation of waste materials or rubbish caused by operations performed underthis Subcontract.  The Subcontractorshall not be held responsible for unclean conditions caused by othercontractors or subcontractors.

 

4.4.2                        Asprovided under Subparagraph 3.3.2, if the Subcontractor fails to clean up asprovided in the Subcontract Documents, the Contractor may charge theSubcontractor for the Subcontractor’s appropriate share of cleanup costs.

 

4.5                                 WARRANTY

4.5.1                        TheSubcontractor warrants to the Owner, Architect and Contractor that materialsand equipment furnished under this Subcontract will be of good quality and newunless otherwise required or permitted by the Subcontract Documents, that theWork of this Subcontract will be free from defects not inherent in the qualityrequired or permitted, and that the Work will conform to the requirements ofthe Subcontract Documents and will be performed in a good and workmanlikemanner and with the degree of skill and care as would be expected of othercontractors performing similar work in the locale of the Project. Work notconforming to these requirements, including substitutions not properly approvedand authorized, may be considered defective. The Subcontractor’s warranty excludes remedy for damage or defect causedby abuse, modifications not executed by the Subcontractor, improper ofinsufficient maintenance, improper operation, or normal wear and tear undernormal usage.  This Warranty shall be inaddition to and not in limitation of any other warranty or remedy required bylaw or by the Subcontract Documents.

 

4.6                                 INDEMNIFICATION

4.6.1                        Tothe fullest extent permitted by law, the Subcontractor shall indemnify and holdharmless the Owner, Contractor, Architect, Architect’s consultants, and agentsand employees of any of them from and against claims, damages, losses andexpenses, including but not limited to attorney’s fees, arising out of or resultingfrom performance of the Subcontractor’s Work under this Subcontract, providedthat any 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 negligentacts or omissions of the Subcontractor, the Subcontractor’s Sub-subcontractors,anyone directly or indirectly employed by them or anyone for whose acts theymay be liable, regardless of whether or not such claim, damage, loss or expenseis caused in part by a party indemnified hereunder.  Such obligation shall not be construed to negate, abridge, orotherwise reduce other rights or obligations of indemnity which would otherwiseexist as to a party or person described in this Paragraph 4.6.

 

4.6.2                        Inclaims against any person or entity indemnified under this Paragraph 4.6 by anemployee of the Subcontractor, the Subcontractor’s Sub-subcontractors, anyonedirectly or indirectly employed by them or anyone for whose acts they may beliable, the indemnification obligation under Subparagraph 4.6.1 shall not belimited by a limitation on the amount or type

 

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of damages, compensation or benefits payable by or for theSubcontractor or the Subcontractor's Sub-subcontractors under worker’scompensation acts, disability benefit acts or other employee benefit acts.

 

4.7                                 REMEDIES FORNONPAYMENT

4.7.1                        If the Contractor does not pay the Subcontractor through no fault of theSubcontractor, within seven days from the time payment should be made asprovided in this Agreement, the Subcontractor may, without prejudice to anyother available remedies, upon seven additional days’ written notice to theContractor, stop the Work of this Subcontract until payment of the amount owinghas been received.  The Subcontract Sumshall, by appropriate adjustment, be increased by the amount of theSubcontractor’s reasonable costs of demobilization, delay and remobilization.

 

ARTICLE 5       CHANGES IN THE WORK

5.1                                 TheOwner may make changes in the Work by issuing Modifications to the PrimeContract.  Upon receipt of such aModification issued subsequent to the execution of the Subcontract Agreement,the Contract shall promptly notify the Subcontractor of the Modification.  Unless, otherwise directed by theContractor, the Subcontractor shall not thereafter order materials or performWork which would be inconsistent with the changes made by the Modifications tothe Prime Contract.

 

5.2                                 TheSubcontractor may be ordered in writing by the Contractor, without invalidatingthis Subcontract, to make changes in the Work within the general scope of thisSubcontract consisting of additions, deletions or other revisions, includingthose required by Modifications to the Prime Contract issued subsequent to theexecution of this Agreement, the Subcontract Sum and the Subcontract Time beingadjusted accordingly.  TheSubcontractor, prior to the commencement of such changed or revised Work, shallsubmit promptly to the Contractor written copies of a claim for adjustment tothe Subcontract Sum and Subcontract Time for such revised Work in a mannerconsistent with requirements of the Subcontract Documents.

 

5.3                                 TheSubcontractor shall make all claims promptly to the Contractor for additionalcost, extensions of time and damages for delays or other causes in accordancewith the Subcontract Documents. A claim which will affect or become part of aclaim which the Contractor is required to make under the Prime Contract withina specified time period or in a specified manner shall be made in sufficienttime to permit the Contractor to satisfy the requirements of the PrimeContract.  Such claims shall be receivedby the Contractor not less than two working days preceding the time by whichthe Contractor’s claim must be made. Failure of the Subcontractor to make sucha timely claim shall bind the Subcontractor to the same consequences as thoseto which the Contractor is bound.

 

ARTICLE 6                     MEDIATION ANDARBITRATION

6.1                                 MEDIATION

6.1.1                        Anyclaim arising out of or related to this Subcontract, except claims as otherwiseprovided in Subparagraph 4.1.5 and except those waived in this Subcontract,shall be subject to mediation as a condition precedent to arbitration or theinstitution of legal or equitable proceedings by either party.

 

6.1.2                        Theparties shall endeavor to resolve their claims by mediation which, unless theparties mutually agree otherwise, shall be in accordance with the ConstructionIndustry Mediation Rules of the American Arbitration Association currently ineffect.  Request for mediation shall befiled in writing with the other party to this Subcontract and the AmericanArbitration Association.  The requestmay be made concurrently with the filing of a demand for arbitration but, insuch event, mediation shall proceed in advance of arbitration or legal orequitable proceedings, which shall be stayed pending mediation for a period of60 days from the date of filing, unless stayed for a longer period by agreementof the parties or court order.

 

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6.1.3                        Theparties shall share the mediator’s fee and any filing fees equally.  The mediation shall be held in the placewhere the Project is located, unless another location is mutually agreedupon.  Agreements reached in mediationshall be enforceable as settlement agreements in any court having jurisdictionthereof.

 

6.2                                 ARBITRATION

6.2.1                        Anyclaim arising out of or related to this Subcontract, except claims as otherwiseprovided in Subparagraph 4.1.5 and except those waived in this Subcontract,shall be subject to arbitration.  Priorto arbitration, the parties shall endeavor to resolve disputes by mediation inaccordance with the provisions of Paragraph 6.1.

 

6.2.2                        Claimsnot resolved by mediation shall be decided by arbitration which, unless theparties mutually agree otherwise, shall be in accordance with the ConstructionIndustry Arbitration Rules of the American Arbitration Association currently ineffect.  Demand for arbitration shall befiled in writing with the other party to this Subcontract and with the AmericanArbitration Association, and a copy shall be filed with the Architect.

 

6.2.3                        Ademand for arbitration shall be made within the time limits specified in the conditionsof the Prime Contract as applicable, and in other cases within a reasonabletime after the claim has arisen, and in no event shall it be made after thedate when institution of legal or equitable proceedings based on such claimwould be barred by the applicable statute of limitations

 

6.2.4                        *Limitation on Consolidation or Joinder*.Except by written consent of the person or entity sought to be joined, noarbitration arising out of or relating to the Subcontract shall include, byconsolidation or joinder or in any other manner, any person or entity not aparty to the Subcontract under which such arbitration arises, unless it isshown at the time the demand for arbitration is filed that (1) such person orentity is substantially involved in a common question of fact or law, (2) thepresence of such person or entity is required if completed relief is to beaccorded in the arbitration, (3) the interest or responsibility of such personor entity in the matter is not insubstantial, and (4)such person or entity isnot the Architect, the Architect’s employee, the Architect’s consultant, or anemployee or agent of any of them. This agreement to arbitrate and any otherwritten agreement to arbitrate with an additional person or persons referred toherein shall be specifically enforceable under applicable law in any courthaving jurisdiction thereof.

 

6.2.5                        *Claims and Timely Assertion of Claims*. Theparty filing a notice of demand for arbitration must assert in the demand allclaims then known to that party on which arbitration is permitted to bedemanded.

 

6.2.6                        *Judgment on Final Award*. The awardrendered by the arbitrator or arbitrators shall be final, and judgment may beentered upon it in accordance with applicable law in any court havingjurisdiction thereof.

 

ARTICLE 7       TERMINATION, SUSPENSION OR ASSIGNMENT OFTHE SUBCONTRACT

7.1                                 TERMINATIONBY THE SUBCONTRACTOR

7.1.1                        TheSubcontractor may terminate the Subcontract for the same reasons and under thesame circumstances and procedures with respect to the Contractor as theContractor may terminate with respect to the Owner under the Prime Contract, orfor nonpayment of amounts due under this Subcontract for 60 days orlonger.  In the event of suchtermination by the Subcontractor for any reason which is not the fault of theSubcontractor, Sub-subcontractors or their agents or employees or other personsperforming portions of the Work under contract with the Subcontractor, theSubcontractor shall be entitled to recover from the Contractor payment for Workexecuted and for proven loss with respect to materials, equipment, tools,

 

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and construction equipment and machinery, including reasonableoverhead, profit and damages.

 

7.2                                 TERMINATION BY THECONTRACTOR

7.2.1                        Ifthe Subcontractor persistently or repeatedly fails or neglects to carry out theWork in accordance with the Subcontract Documents or otherwise to perform inaccordance with this Subcontract and fails within seven days after receipt ofwritten notice to commence and continue correction of such default or neglectwith diligence and promptness, the Contractor may, after seven days followingreceipt by the Subcontractor of an additional written notice and withoutprejudice to any other remedy the Contractor may have, terminate theSubcontract and finish the Subcontractor’s Work by whatever method theContractor may deem expedient. If the unpaid balance of the Subcontract Sumexceeds the expense of finishing the Subcontractor’s Work and other damagesincurred by the Contractor and not expressly waived, such excess shall be paidto the Subcontractor.  If such expenseand damages exceed such unpaid balance, the Subcontractor shall pay thedifference to the Contractor.

 

7.2.2                        Ifthe Owner terminates the Contract for the Owner’s convenience, the Contractorshall deliver written notice to the Subcontractor.

 

7.2.3                        Uponreceipt of written notice of termination, the Subcontractor shall:

.1               ceaseoperations as directed by the Contractor in the notice;

.2               takeactions necessary, or that the Contractor may direct, for the protection andpreservation of the Work; and

.3               exceptfor work directed to be performed prior to the effective date of terminationstated in the notice, terminate all existing Sub-subcontracts and purchase ordersand enter into no further Sub-subcontracts and purchase orders.

 

7.2.4                        Incase of such termination for the Owner’s convenience, the Subcontractor shallbe entitled to receive payment for Work executed, and costs incurred by reasonof such termination, along with reasonable overhead and profit on the Work ~~notexecuted,~~completed.

 

7.3                                 SUSPENSION BY THECONTRACTOR FOR CONVENIENCE

7.3.1                        TheContractor may, without cause, order the Subcontractor in writing to suspend,delay or interrupt the Work of this Subcontract in whole or in part for suchperiod of time as the Contractor may determine.  In the event of suspension ordered by the Contractor, theSubcontractor shall be entitled to an equitable adjustment of the SubcontractTime and Subcontract Sum.

 

7.3.2                        Anadjustment shall be made for increases in the Subcontract Time and SubcontractSum, including profit on the increased cost of performance, caused bysuspension, delay or interruption.  Noadjustment shall be made to the extent:

.1               thatperformance is, was or would have been so suspended, delayed or interrupted byanother cause for which the Subcontractor is responsible;

.2               thatan equitable adjustment is made or denied under another provision of thisSubcontract.

 

7.4                                 ASSIGNMENT OF THESUBCONTRACT

7.4.1                        Inthe event of termination of the Prime Contract by the Owner, the Contractor mayassign this Subcontractor to the owner, with the Owner’s agreement, subject tothe provisions of the Prime Contract and to the prior rights of the surety, ifany, obligated under bonds relating to the Prime Contract. In such event, theOwner shall assume the Contractor’s rights and obligations under theSubcontract Documents.  If the Work ofthe Prime Contract has been suspended for more than 30 days, theSubcontractor’s compensation shall be equitably adjusted.

 

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7.4.2                        TheSubcontractor shall not assign the Work of this Subcontract without the writtenconsent of the Contractor, nor Subcontract the whole of this Subcontract withoutthe written consent of the Contractor, nor further subcontract portions of thisSubcontract without written notification to the Contractor when suchnotification is requested by the Contractor.

 

ARTICLE 8                     THE WORK OFTHIS SUBCONTRACT

8.1                                 TheSubcontractor shall execute the following portion of the Work described in theSubcontract Documents, including all labor, materials, equipment, services andother items required to complete such portion of the Work, except to the extentspecifically indicated in the Subcontract Documents to be the responsibility ofothers:                                                                 .

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*(Insert a precise description of the Work ofthis Subcontract, referring where appropriate to numbers of Drawings, sectionsof Specifications and pages of Addenda, Modifications and accepted Alternates.)*

 

ARTICLE 9                     DATE OFCOMMENCEMENT AND SUBSTANTIAL COMPLETION

9.1                                 TheSubcontractor’s date of commencement is the date from which the Contract Timeof Paragraph 9.3 is measured; it shall be the date of this Agreement, as firstwritten above, unless a different date is stated below or provision is made forthe date to be fixed in a notice to proceed issued by the Contractor.

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

 

9.2                                 Unlessthe date of commencement is established by a notice to proceed issued by theContractor, or the Contractor has commenced visible Work at the site under thePrime Contract, the Subcontractor shall notify the Contractor in writing notless than five days before commencing the Subcontractor’s Work to permit thetimely filing of mortgages, mechanic’s liens and other security interests.

 

9.3                                 TheWork of this Subcontract shall be substantially completed not later than

*(Insert the calendar date or number ofcalendar days after the Subcontractor’s date of commencement. Also insert anyrequirements for earlier Substantial Completion of certain portions of theSubcontractor’s Work, if not stated elsewhere in the Subcontract Documents.)*

 

, subject to adjustments of this Subcontract Time as provided in theSubcontract Documents.

*(Insert provisions, if any, for liquidateddamages relating to failure to complete on time.)*

 

9.4                                 Withrespect to the Obligations of both the Contractor and the Subcontractor, timeis of the essence of this Subcontract.

 

9.5                                 Noextension of time will be valid without the Contractor’s written consent afterclaim made by the Subcontractor in accordance with Paragraph 5.3.

 

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ARTICLE 10     SUBCONTRACT SUM

10.1                           TheContractor shall pay the Subcontractor in current funds for performance of theSubcontract the Subcontract Sum of Dollars ($    ), subjectto additions and deduction as provided in the Subcontract Documents.

 

10.2                           TheSubcontract Sum is based upon the following alternates, if any, which aredescribed in the Subcontract Documents and have been accepted by the Owner andthe Contractor:

*(Insert the numbers or other identificationof accepted alternates)*

 

10.3                           Unitprices, if any, are as follows:

 

ARTICLE 11               PROGRESS PAYMENTS

11.1                           Basedupon applications for payment submitted to the Contractor by the Subcontractor,corresponding to applications for payment submitted by the Contractor to theArchitect, and certificates for payment issued by the Architect, the Contractorshall make progress payments on account of the Subcontract Sum to theSubcontractor as provided below and elsewhere in the Subcontract Documents.Unless the Contractor provides the Owner with a payment bond in the full penalsum of the Contract Sum, payments received by the Contractor and Subcontractorfor work properly performed by their contractors and suppliers shall be held bythe Contractor and Subcontractor for those contractors or suppliers whoperformed Work or furnished materials, or both, under contract with theContractor or Subcontractor for which payment was made to the Contractor by theOwner or to the Subcontractor by the Contractor, as applicable.  Nothing contained herein shall require moneyto be placed in a separate account and not commingled with money of theContractor or Subcontractor, shall create any fiduciary liability of tortliability on the part of the Contractor or Subcontractor for breach of trust orshall entitle any person or entity to an award of punitive damages against theContractor or Subcontractor for breach of the requirements of this provision.

 

11.2                           Theperiod covered by each application for payment shall be one calendar monthending on the last day of the month, or as follows:

 

11.3                           Providedan application for payment is received by the Contractor not later than the dayof a month, the Contractor shall include the Subcontractor’s Work covered bythat application in the next application for payment which the Contractor isentitled to submit to the Architect. The Contractor shall pay the Subcontractoreach progress payment within three working days after the Contractor receivespayment from the Owner. ~~If the Architect does not issue a certificate forpayment or the Contractor does not receive payment for any cause which is notthe fault of the Subcontractor, the Contractor shall pay the Subcontractor, ondemand, a progress payment computed as provided in Paragraphs 11.7,11.8,11.9.~~

 

11.4                           Ifan application for payment is received by the Contractor after the applicationdate fixed above, the Subcontractor’s Work covered by it shall be included bythe Contractor in the next application for payment submitted to the Architect.

 

11.5                           Eachapplication for payment shall be based upon the most recent schedule of valuessubmitted by the Subcontractor in accordance with the Subcontractor Documents.The schedule of values shall allocate the entire Subcontract Sum along thevarious portions of the Subcontractor’s Work and be prepared in such form andsupported by such data to substantiate its accuracy as the Contractor mayrequire. This schedule, unless objected to by the Contractor, shall be used as abasis for reviewing the Subcontractor’s applications for payment.

 

11.6                           Applicationsfor payment submitted by the Subcontractor shall indicate the percentage ofcompletion of each portion of the Subcontractor’s Work as of the end of theperiod covered by the application for payment.

 

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11.7                           Subjectto the provisions of the Subcontract Documents, the amount of each progresspayment shall be computed as follows:

 

11.7.1                  Takethat portion of the Subcontract Sum properly allocable to completed Work asdetermined by multiplying the percentage completion of each portion of theSubcontractor’s Work by the share of the total Subcontract Sum allocated tothat portion of the Subcontractor’s Work in the schedule of values, less thatpercentage actually retained, if any, from payments to the Contractor onaccount of the Work of the Subcontractor. Pending final determination of costto the Contractor of changes in the Work which have been properly authorized bythe Contractor, amounts not in dispute shall be included to the same extentprovided in the Prime Contract, even though the Subcontract Sum has not yetbeen adjusted;

 

11.7.2                  Addthat portion of the Subcontract Sum properly allocable to materials andequipment delivered and suitably stored at the site by the Subcontractor forsubsequent incorporation in the Subcontractor’s Work or, if approved by theContractor, suitably stored off the site at a location agreed upon in writing,less the same percentage retainage required by the Prime Contract to be appliedto such materials and equipment in the Contractor’s application for payment;

 

11.7.3                  Subtractthe aggregate of previous payments made by the Contractor; and

 

11.7.4                  Subtractamounts, if any, calculated under Subparagraph 11.7.1 or 11.7.2 which arerelated to Work of the Subcontractor for which the Architect has withheld ornullified, in whole or in part, a certificate of payment for a cause which isthe fault of the Subcontractor.

 

11.8                           Uponthe partial or entire disapproval by the Contractor of the Subcontractor’sapplication for payment, the Contractor shall provide written notice to theSubcontractor. When the basis for the disapproval has been remedied, theSubcontractor shall be paid the amounts withheld.

 

11.9                           SUBSTANTIAL COMPLETION

11.9.1                  Whenthe Subcontractor’s Work or a designated portion thereof is substantiallycomplete and in accordance with the requirements of the Prime Contract, theContractor shall, upon application by the Subcontractor, make prompt applicationfor payment for such Work. Within 30 days following issuance by the Architectof the certificate for payment covering such substantially completed Work, theContractor shall, to the full extent allowed in the Prime Contract, makepayment to the Subcontractor, deducting any portion of the funds for theSubcontractor’s Work withheld in accordance with the certificate to cover costsof items to be completed or corrected by the Subcontractor. Such payment to theSubcontractor shall be the entire unpaid balance of the Subcontract Sum if afull release of retainage is allowed under the Prime Contract for theSubcontractor’s Work prior to the completion of the entire project.  If the Prime Contract does not allow for afull release of retainage, then such payment shall be an amount which, whenadded to previous payments to the Subcontractor, will reduce the retainage onthe Subcontractor’s substantially completed Work to the same percentage ofretainage as that on the Contractor’s Work covered by the certificate.

 

ARTICLE 12               FINAL PAYMENT

12.1                           Finalpayment, constituting the entire unpaid balance of the Subcontract Sum, shallbe made by the Contractor to the Subcontractor when the Subcontractor’s Work isfully performed in accordance with the requirements of the SubcontractDocuments, the Architect has issued a certificate for payment covering theSubcontractor’s completed Work and the Contractor has received payment from theOwner.  If, for any cause which is notthe fault of the Subcontractor, a certificate for payment is not issued or theContractor does not receive timely payment or does not pay the Subcontractorwithin three working days after receipt of payment from the Owner, finalpayment to the Subcontractor shall be made upon demand.

*(Insert provisions for earlier final paymentto the Subcontractor, if applicable)*

 

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12.2                           Beforeissuance of the final payment, the Subcontractor, if required, shall submitevidence satisfactory to the Contractor that all payrolls, bills for materialsand equipment, and all known indebtedness connected with the Subcontractor’sWork have been satisfied.

 

ARTICLE 13               INSURANCE AND BONDS

13.1                           TheSubcontractor shall purchase and maintain insurance of the following types ofcoverage and limits of liability:  ASPER SCHEDULE A ANNEXED

 

13.2                           Coverages,whether written on an occurrence or claims-made basis, shall be maintainedwithout interruption from date of commencement of the Subcontractor’s Workuntil date of final payment and termination of any coverage required to bemaintained after final payment to the Subcontractor.

 

13.3                           Certificatesof insurance acceptable to both the Contractor and the Ownershall be filed with the Contractor prior to commencement of the Subcontractor’sWork.  These certificates and theinsurance policies required by this Article 13 shall contain a provision thatcoverages afforded under the policies will not be canceled or allowed to expireuntil at least 30 days’ prior written notice has been given to the Contractor.If any of the foregoing insurance coverages are required to remain in forceafter final payment and are reasonably available, an additional certificateevidencing continuation of such coverage shall be submitted with the finalapplication for payment as required in Article 12. If any informationconcerning reduction of coverage is not furnished by the insurer, it shall befurnished by the Subcontractor with reasonable promptness according to theSubcontractor’s information and belief.

 

13.4                           TheContractor shall furnish to the Subcontractor satisfactory evidence ofinsurance required of the Contractor under the Prime Contract.

 

13.5                           TheContractor shall promptly, upon request of the Subcontractor, furnish a copy orpermit a copy to be made of any bond covering payment of obligations arisingunder the Subcontract.

 

13.6                           PerformanceBond and Payment Bond:

*(If the Subcontractor is to furnish bonds,insert the specific requirements here)*

Subcontractor shall provide a payment and performance bond in theamount of 100% of the amount of Subcontractor’s Work under this Subcontractwith such bonding company, such bond provisions, and naming such obligees asare reasonably satisfactory to both Owner and Contractor. Both Contractor andOwner shall receive original or duplicate original bonds.

 

13.7                           PROPERTYINSURANCE

13.7.1                  Whenrequested in writing, the Contractor shall provide the Subcontractor withcopies of the property and equipment policies in effect for the Project. TheContractor shall notify the Subcontractor if the required property insurancepolicies are not in effect.

 

13.7.2                  Ifthe required property insurance is not in effect for the full value of theSubcontractor’s Work, then the Subcontractor shall purchase insurance for thevalue of the Subcontractor’s Work, and the Subcontractor shall be reimbursedfor the cost of the insurance by an adjustment in the Subcontract Sum.

 

13.7.3                  Propertyinsurance for the Subcontractor's materials and equipment required for theSubcontractor's Work, stored off site or in transit and not covered by thePolicy property insurance, shall be paid for through the application forpayment process.

 

13.8                           WAIVERSOF SUBROGATION

13.8.1                  TheContractor and Subcontractor waive all rights against (1) each other and any oftheir Subcontractors, sub-subcontractors, agents and employees, each of theother, and (2) the

 

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Owner, the Architect, the Architect’s consultants, separatecontractors, and any of their subcontractors, sub-subcontractors, agents andemployees for damages caused by fire or other causes of loss to the extentcovered by property insurance provided under the Prime Contract or otherproperty insurance applicable to the Work, except such rights as they may haveto proceeds of such insurance held by the Owner as a fiduciary. TheSubcontractor shall require of the Subcontractor’s Sub-subcontractors, agentsand employees, by appropriate agreements, written where legally required forvalidity, similar waivers in favor of the parties enumerated herein. Thepolicies shall provide such waivers of subrogation by endorsement orotherwise.  A waiver of subrogationshall be effective as to a person or entity even though that person or entitywould otherwise have a duty of indemnification, contractual or otherwise, didnot pay the insurance premium directly or indirectly, and whether or not theperson or entity had an insurable interest in the property damaged.

 

ARTICLE 14               TEMPORARYFACILITIES AND WORKING CONDITIONS

14.1                           TheContractor shall furnish and make available to the Subcontractor the followingtemporary facilities, equipments and services; these shall be furnished at notcost to the Subcontractor unless otherwise indicated below:

 

14.2                           Specificworking conditions:

*(Insert any applicable arrangementsconcerning working conditions and labor matters for the Project)*

 

ARTICLE 15               MISCELLANEOUSPROVISIONS

15.1                           Wherereference is made in this Subcontract to a provision of another SubcontractDocument, the reference refers to that provision as amended or supplemented byother provisions of the Subcontract Documents.

 

15.2                           Paymentsdue and unpaid under this Subcontract shall bear interest from the date paymentis due at such rate as the parties may agree upon in writing or, in the absencethereof, at the ~~legal rate prevailing from time to time at the place wherethe Project is located.~~

*(Insert rate of interest agreed upon, ifany.)*

“prime rate” of interest published from time to time in the Wall StreetJournal.

 

*(Usury laws and requirements under theFederal Truth in Lending Act, similar state and local consumer credit laws andother regulations at the Owner’s, Contractor’s and Subcontractor’s principalplaces of business, the location of the Project and elsewhere may affect thevalidity of this provision. Legal advice should be obtained with respect todeletions or modifications, and also regarding requirements such as writtendisclosures or waivers.)*

 

15.3                           Retainageand any reduction thereto is as follows:

10% of each progress payment shall be retained from Subcontractor untilthe Contractor’s Work is fully completed, at which time Subcontractor shall bepaid all funds so retained.

 

15.4                           TheContractor and Subcontractor waive claims against each other for consequentialdamages arising out of or relating to this Subcontract, including withoutlimitation, any consequential damages due to either party’s termination inaccordance with Article 7.

 

ARTICLE 16               ENUMERATION OFSUBCONTRACT DOCUMENTS

16.1                           TheSubcontract Documents, except for Modifications issued after execution of thisSubcontract, are enumerated as follows:

 

16.1.1                  Thisexecuted 1997 edition of the Standard Form of Agreement Between Contractor andSubcontractor, AIA Document A401-1997;

 

16.1.2                  ThePrime Contract, consisting of the Agreement between the Owner and Contractordated as first entered above and the other Contract Documents enumerated in theOwner-Contractor Agreement;

 

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16.1.3                  Thefollowing Modifications to the Prime Contract, if any, issued subsequent to theexecution of the Owner-Contractor Agreement but prior to the execution of thisAgreement:

 
| Modification |   | Date |
|--------------|--------|------|

 

16.1.4                  OtherDocuments, if any, forming part of the Subcontract Documents are as follows:

*(Lists any additional documents that areintended to form part of the Subcontract Documents Requests for proposal andthe Subcontractor’s bid or proposal should be listed here only if intended tobe part of the Subcontract Documents.)*

 

This Agreement entered into as ofthe day and year first written above

 
|                       |   |                       |
|----------------------------|--------|----------------------------|
| CONTRACTOR *(Signature)*   |   | SUBCONTRACTOR*(Signature)* |
|                       |   |                       |
|                       |   |                       |
| *(Printed name and title)* |   | *(Printed name and title)* |

 

15

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Wheeling Island Gaming, Inc.

 

**DOCUMENT 00450**

 

**SUPPLEMENTARY CONDITIONS**

 

The following supplements,modify the “General Conditions of the Contract for Construction”, “AIA DocumentA201, 1997 Edition. Where a portion of the General Conditions is modified ordeleted by these Supplementary Conditions, the unaltered portions of theGeneral Conditions shall remain in effect. These modify the General conditionsto the Prime Contract which are a part of the Subcontract by reference.

 

**ARTICLE1; GENERAL PROVISONS**

 

1.1                       BasicDefinitions

 

Add to 1.1 the followingSubparagraph 1.1.8:

 

1.1.8              MiscellaneousDefinitions

 

.1                                       Indicated:Shown on drawings by notes, graphics or schedules, or written into otherportions of contract documents. Terms such as “shown”, “noted”, “scheduled” and“specified” have same meanings as “indicated”, and are used to assist thereader in locating particular information.

 

.2                                       Directed,Requested, Approved, Accepted, etc.: These terms imply by the Architect and/orConstruction Manager, unless otherwise indicated.

 

.3                                       Approvedby Architect and/or Construction Manager: In no case releases Subcontractorfrom the responsibility to fulfill requirements of Contract Documents.

 

.4                                       Project Site: Space available to Subcontractor at location of project, eitherexclusively or to be shared with separate contractors, for performance of thework.

 

.5                                       Furnish:Supply and deliver to project site, ready for unloading, unpacking, assembly,installation and similar subsequent requirements.

 

.6                                       Install:Operations at project site, including unloading, unpacking assembly, erection,placing, anchoring, applying working to dimension, finishing, curing,protecting, cleaning and similar requirements.

 

.7                                       Provide:Furnish and install, complete and ready for intended use.

 

.8                                       Installer:Entity (firm or person) engaged to install work by Subcontractor orsubsubcontractor. Installers are required to be skilled experts in work theyare engaged to install.

 

| Louis P.  Ciminelli    |   | 00450-1 |   | February 22,2002 |
|------------------------|--------|---------|--------|------------------|
| Consrtuction  Co., Inc |   |    |   |             |

 

**SCHEDULE A TO SUBCONTRACT**

 

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.9                                       OrEqual Approved By Architect and/or Construction Manager.  Where products named in specifications arefollowed by this clause or by other language of similar effect, comply withprovisions of this project manual concerning substitutions and for obtainingArchitect and/or Construction Manager approval to provide an unnamed product.

 

1.1.8.10                                                         Contractor:Where the term “Contractor” is used in the General Conditions and elsewherethroughout the Contract Documents, it shall mean the Contractors who have beenengaged by the Construction Manager for the work.  The terms “Contractor” and “Subcontractor” may be usedinterchangeably throughout the Contract Documents.

 

1.1.8.11                                                         ConstructionManager: The Owner has retained Louis P. Ciminelli Construction Co., Inc. asConstruction Manager for the project. Sometimes referred to herein as “Construction Manager” and sometimes as“CM”.

 

1.2                       Execution,Correlation and Intent

 

Add to 1.2.3 the followingSubparagraph 1.2.3.1:

 

1.2.3.1               Inthe case of overlapping or conflicting requirements, the most stringent(generally most costly) applies and will be enforced, unless more detailedlanguage written directly into Contract Documents clearly indicates that a lessstringent requirement is acceptable. Refer uncertainties to Architect and/or Construction Manager fordecision before proceeding.

 

Add to 1.2 the followingSubparagraphs 1.2.4, 1.2.5, 1.2.6 and 1.2.6.1:

 

1.2.4                        GeneralRequirements: Sections of Division 1 – General Requirements, govern theexecution of all Sections of the Specifications.  All Sections are subject to the administrative and proceduralrequirements as specified in Division 1 as well as the broader requirements ofthe General Conditions of the Contract.

 

1.2.5                        MinimumRequirements: Indicated requirements are for a specific minimum acceptablelevel of quality, as recognized in the industry.  Actual work must comply (within specified tolerances), or mayexceed minimums within reasonable limits. Refer uncertainties to Architect and/or Construction Manager beforeproceeding.

 

1.2.6                        Abbreviations,Plural Words: Abbreviations, where not defined in Contract Documents, will beinterpreted to mean the normal construction industry terminology, determined byrecognized grammatical rules, by the Architect and/or ConstructionManager.  Plural words will beinterpreted as singular, and singular

 

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words will beinterpreted as plural where applicable for context of Contract Documents.

 

1.2.6.1               Whereabbreviations or acronyms are used in Contract Documents, they mean the wellrecognized name of entity in building construction industry; referuncertainties to Architect and/or Construction Manager before proceeding, orconsult Encyclopedia of Associations by Gale Research Co.

 

**ARTICLE2; OWNER**

 

2.1                       Definition

 

2.1.1                        Addthe following to Paragraph 2.1.1: The Owner shall be defined as Wheeling IslandGaming, Inc., One South Stone Street, Wheeling, West Virginia 26003.

 

2.2                                 Informationand Services Required of the Owner.

 

2.2.2                        Addthe following clause to subparagraph 2.2.2: “2.2.2.1 Data concerning site,size, access to site, staging and storing, present obstructions on or near thesite, conditions of existing adjacent structures, locations and depths ofsewers.  Conduits or pipes, gas lines,position of sidewalks, curbs and pavements, and other data concerning siteconditions, has been obtained from sources Owner believes reliable.  Accuracy of such data, however, is notguaranteed and is furnished solely for accommodation of Contractor.  Use of such data is made at Contractor’ssole risk and expense.”

 

**ARTICLE3; CONTRACTOR**

 

3.3                                 Supervisionand Construction Procedures

 

3.3.1                        Addthe following to the end of Paragraph 3.3.1: “Each Contractor agrees that itwill be solely responsible for the organization, supervision, safety practicesand equipment employed in executing its work for the Project.  Each Contractor therefore agrees that itshall defend and hold the Owner, Construction Manager and Architect/Engineerharmless from any claim including all attorney’s fees asserted by any ofContractor’s agents or employees and will pay any defense cost of the Owner,Construction Manager or Architect/Engineer, if a suit is brought against them.”

 

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3.3.4                        Addthe following Paragraph 3.3.4: “The Contractor shall ensure that theContractors’ employees and subcontractors, and their agents and employees,conform to project requirements for proper conduct, safety practices, laborharmony and protection of the Owner’s property.”

 

3.4                       Labor andMaterials

 

Add to 3.4 the followingSubparagraphs 3.4.4, 3.4.5, 3.4.6, 3.4.7, 3.4.8, 3.4.9, 3.4.10, 3.4.10.1,3.4.10.2, 3.4.10.3 & 3.4.10.4:

 

3.4.4                        Contractorsshall not employ men, means, materials, or equipments that may cause strikes,work stoppages, or any disturbances by workmen employed by the Contractor, orother Contractors or Subcontractors, on or in connection with the work of theproject, or the location thereof.  Contractorsagree that all disputes regarding jurisdiction of trades shall be adjusted inaccordance with any plan for the settlement of jurisdictional disputes that maybe in effect either nationally or in the locality in which the work is beingdone and that it shall be bound and abide by all such adjustments andsettlements of jurisdictional disputes, provided that the provisions of thisarticle shall not be in violation of or in conflict with any provisions of lawapplicable to the settlement of such disputes.

 

3.4.5                        Contractorsshall make every reasonable effort to avoid labor disputes and to insulate theOwner, Construction Manager and other Contractors from the effects of labordisputes should any arise.

 

3.4.6                        Addthe following Paragraph 3.4.6: “Contractors shall be advised the Owner issignatory to a Project Labor Agreement. A copy of that agreement is attached to the Prime Contract.

 

3.4.7                        Addthe following Paragraph 3.4.7: “Not later than 10 days from the Contract date,the Contractor shall provide a list showing the name of the manufacturer’sproposed to be used for each of the products identified in the Specificationsand, where applicable, the name of the installing Subcontractor:”

 

3.4.8                        Addthe following Paragraph 3.4.8: “The Construction Manager will promptly reply inwriting to the Contractor stating whether the Owner or the ConstructionManager, after due investigation, has reasonable objection to any suchproposal.  If adequate data on anyproposed manufacturer or installer is not available, the Construction Managermay state that action will be deferred until the Contractor provide furtherdata.  Failure of the Owner or theArchitect to promptly advise the Construction Manager of any reasonableobjection or failure shall constitute notice of no reasonable objection.Failure to object to a manufacturer shall not constitute a waiver of any of therequirements of the Contract Documents, and all products furnished by thelisted manufacturer must conform to such requirements.”

 

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3.4.9                        Addthe following Paragraph 3.4.9: “After the Contract has been executed, theOwner, the Architect and the Construction Manager will consider a formalrequest for the substitution of products in place of those specified only underthe conditions set forth in the General Requirements, Division 1.”

 

3.4.10                  Addthe following Paragraph 3.4.10: “By making requests for substitutions based onSubparagraph 3.4.8 above, the Contractor.”

 

3.4.10.1         Addthe following Subparagraph 3.4.10.1: “represents that the Contractor haspersonally investigated the proposed substitute product and determined that itis equal or superior in all respects to that specified;”

 

3.4.10.2         Addthe following Subparagraph 3.4.10.2: “represents that the Contract will providethe same warranty for the substitution that the Contractor would for thatspecified;”

 

3.4.10.3         Addthe following Subparagraph 3.4.10.3: “certified that the cost date presented iscomplete and includes all related costs under this Contract except theArchitect's redesign costs, and waives all claims for additional costs relatedto the substitution which subsequently become apparent, and”

 

3.4.10.4         Addthe following Subparagraph 3.4.10.4: “shall coordinate the installation of theaccepted substitution, making such changes as may be required for the work tobe complete in all respects.”

 

3.7                       Permits,Fees and Notices

 

3.7                                 DeleteParagraph 3.7.1 in its entirety and substitute the following:

 

“3.7.1 TheConstruction Manager will obtain required building permits.  This action will not relieve any Contractorfrom other fees and permit requirements.

 

Other tradepermits, required by the City of Wheeling, West Virginia, will be theresponsibility of the respective Contractors.

 

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EachContractor, in securing other permits for construction or any other aspect ofthe work associated with this project which requires a permit, notwithstandinglanguage in the agreement, shall at his own cost and expense, make thenecessary arrangements to complete, file and have sealed by a ProfessionalEngineer licensed in the jurisdiction, any and all preliminary affidavits ofcertification that may be required by the governing agency or agencies havingjurisdiction for issuing permits for construction for this project, prior tostating construction.”

 

3.7.6              Add the followingSubparagraph:

 

“3.7.6 EachContractor shall secure approval of and comply with requirements of allauthorities and deliver certificates of approval to the Architect, and shallprepare all documents, including Drawings, necessary to secure approval.”

 

3.7.7              Add the followingSubparagraph:

 

“3.7.7 In theevent any violations are placed upon the premises by the public authority as aresult of the Contractor’s fault, in connection with the work, said Contractorshall be solely responsible therefore and shall bear all costs attributablethereto.”

 

3.9                       Superintendent

 

3.9.2              Add the following ofthe end of Paragraph:

 

“3.9.2 The Contractor’s site representative(s) shall be satisfactory toCM and Owner, based upon credentials to be submitted by Contractor, and suchrepresentatives shall be changed only with consent of/CM and Owner.  If, for any reason, Contractor’s representativesand unsatisfactory, and upon request of /CM or Owner, other qualifiedrepresentatives shall be substituted.”

 

3.10                 ContractorsConstruction Schedules

 

3.10.3                  Afterthe word “schedules”, delete the Period (.) and insert “, but shall not exceedthe time limits under the Contract Documents.”

 

3.17                 Royalties,Patents and Copyrights

 

3.17.1                  Addthe following to the end of subparagraph 3.17.1:

 

“...In theevent of legal action arising out of such infringement for which the Contractoris responsible and which action has the effect of stopping the work, the CM orOwner may require the Contractor to substitute other products of like kinds aswill makes it possible to pursue and complete the work.  Costs and expenses caused thereby shall beborne by Contractor”.

 

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3.18                 Indemnification:

 

Add the following to the end ofParagraph 3.18.1:

 

“3.18.1 Inaddition to the obligations of the Contractor set forth in paragraph 3.18.1, tothe fullest extent permitted by laws and regulations, and Contractor shall indemnifyand hold harmless Owner, Construction Manager, agents and employees for allclaims, damages, losses and expenses, direct, indirect or consequential(including but not limited to fees and charges of engineers, architects,attorneys and other professionals and court and mediation costs) arising outof, or resulting from, the act or omissions of the Subcontractors, Suppliersand other persons and organizations performing or furnishing any of the workunder a direct or indirect contract with Contractor.”

 

Add the following newSubparagraphs 3.18.3 and 3.18.4

 

“3.18.3 Unlessotherwise stated in the Agreement, each Contractor shall, before commencingwork, take out and pay for such insurance as may be required to complete withthe indemnification and hold harmless provisions outlined under Articles 3.18.1and 3.18.2. Such insurance shall be with such companies as may be satisfactoryto the Owner and Architect.  Insuranceshall be so written as to prevent cancellation without at least 30 days writtennotice to Owner, Architect and Construction Manager.”

 

“3.18.4 Acertificate of the required insurance naming the Architect, Engineer,, Owner,Construction manager, Consultants or any such other professional parties shallbe submitted prior to start of work.  Saidinsurance shall be maintained through the entire project life.”

 

**ARTICLE4; ADMINISTRATION OF THE CONTRACT**

 

4.2                       Architect’sAdministration of the Contract

 

Add to 4.2.7 the followingClause 4.2.7.1:

 

4.2.7.1               Ingeneral, allow 15 calendar days for Architect review of submittals.  Review time begins on the day that theArchitect actually receives and submittals and does not includes mailingtimes.  The Architect reserves the rightto require longer review times for major items and for large volumes of submittals.

 

**ARTICLE7; CHANGES IN THE WORK**

 

7.3                       ConstructionChange Directives

 

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“The allowancefor overhead and profit for all changes in the work shall be calculated basedon the following:

 

For workperformed by a Contractor’s or Subcontractor’s own forces, the Contractor orSubcontractor shall add 10% for overhead and profit.  For work performed by a Subcontractor, the Prime Contractor shalladd 5% for overhead and profit to the total value of the Subcontractor’sprice.  The allowance for overhead andprofit shall include supervision, field office and general expenses, overheadand profit.”

 

**ARTICLE8; TIME**

 

8.1                       Definitions

 

Add the following clause toSubparagraph 8.1.3:

 

8.1.3.1               “Pursuantto Subparagraph 8.1.3: as supplemented hereinafter as between the Owner and theContractor: as to all acts or failures to act occurring prior to the relevantDate of Substantial Completion, any applicable statute of limitations shallcommence to run and any alleged cause of action shall be deemed to have accruedin any event and all events not later than the date of issuance of the finalCertificate of Payment.”

 

**ARTICLE9; PAYMENTS AND COMPLETION**

 

9.3                       Applicationsfor Payment

 

9.3.1                        Addthe following to the end of Article 9.3.1: Until final completion, the Ownershall pay 90% of the amount due to the Contractor on account of each progresspayment, less an amount necessary to satisfy any claims, liens or judgmentsagainst Contractor which have not been suitably discharged.

 

9.6                       ProgressPayments

 

Change Paragraph 9.6.1 to readas follows:

 

9.6.1                        Afterthe Architect has signed a Project Certificate for Payment, the Owner shallmake payment in the following manner:

 

The Ownershall make payment to CM within 30 days following receipt of the Certificatefor Payment.  Payment by CM to theContractors will be made within 10 days of such receipt from Owner.

 

Add the following to the end ofParagraph 9.6.2:

 

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9.6.2                        Tothe extent permitted by West Virginia law, Contractors shall include pay whenpaid language in their subcontracts establishing the subcontractors shall notbe entitled to payments until payment has been received by the CM from theOwner

 

**ARTICLE10; PROTECTION OF PERSON AND PROPERTY**

 

10.1                 SafetyPrecautions and Programs

 

10.1.1.1                                     AddSubparagraph 10.1.1.1:

 

“10.1.1.1 Ifso directed by the Construction Manager, the Contractor shall immediatelycorrect any unsafe conditions and shall implement continued correctionalmeasures to the unsafe conditions identified by the Construction Manager.”

 

10.3                 HazardousMaterials

 

10.3.4        Add the followingSubparagraphs 10.3.4 and 10.3.5:

 

“10.3.4 TheContractor, when providing, using, storing, delivering or disposing of anytoxic, hazardous or potentially dangerous materials, shall advise the Owner andCM in writing of the condition of such hazardous materials in advance ofconducting any work and is responsible for protecting their own employees, theOwner, and CM and all agents from the hazards associated with suchmaterials.  The contractor shall furnishwritten directions, precautions, or training, provided or made available fromthe supplier of the materials, or other acceptable source, for use by allpersons who may be subject to the hazard. The Contractors shall comply with all applicable regulations andlaws.  The Contractor shall dispose ofany hazardous or toxic substances in accordance with all applicable regulationsor laws, including E.P.A and D.O.T., and shall provide the Owner and CM withthe appropriate generator E.P.A. number. The Contractor shall perform all required procedures necessary to insurethat there will be no discharge, spillage, uncontrolled loss, seepage, orfiltration of any hazardous or toxic waste on the site caused by theiroperations.  Contractor is responsiblefor any and all costs and liabilities associated with the clean-up of any suchspillage etc., or as required by regulating authorities having jurisdiction,and holds the /CM Owner and its agents, harmless against any current or futureliabilities resulting from such incidents.”

 

“10.3.5 Allmaterial and equipment furnished under the Contract shall be free of asbestosand polychlorinated biphenyl (PBC).  Anymaterials or equipments containing these hazardous materials shall beconsidered effective and shall be removed by the Contractor at their ownexpense.”

 

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**ARTICLE11; INSURANCE AND BONDS**

 

11.1                 ContractorsLiability Insurance

 

11.1.2        Add the followingSubparagraphs 11.1.2.1, 11.1.2.2 and 11.1.2.3 to 11.1.2:

 

11.1.2.1         Itis understood and agreed that the insurance coverage and limits, requiredbelow, shall not limit the extent of the Contractor’s responsibilities andliability specified within the Contract Documents or by law.

 

11.1.2.2         Theinsurance required by Subparagraph 11.1.1 shall be written for not less thanthe following or greater if required by law.

 
| (1)    |   | Worker’s  Compensation and Employer’s Liability Insurance                                                                                                                                     |   | As required  by Statute.  No exclusions for  partners, proprietors or executive officers. |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|------------------------------------------------------------------------------------------------|
| (2)    |   | Comprehensive  Automobile Liability (including owned, non-owned, leased and hired  automobiles)                                                                                                         |   | Limit not  less than $2 million combined single limit for bodily injury or property  damage.   |
| (3)    |   | Commercial  General Liability:  Insurance for liability due to personal injury, bodily injury or property  damage sustained or alleged to have been sustained by any person with the  following limits: |   |                                                                                           |
|   |   |                                                                                                                                                                                                    |   |                                                                                           |
|   |   | (a) General  Aggregate                                                                                                                                                                                  |   | $66,000,000                                                                                    |
|   |   |                                                                                                                                                                                                    |   |                                                                                           |
|   |   | (b) Products  and Completed Operations and Aggregate                                                                                                                                                    |   | $2,000,000                                                                                     |
|   |   |                                                                                                                                                                                                    |   |                                                                                           |
|   |   | (c) Personal  and Advertising Injury                                                                                                                                                                    |   | $2,000,000                                                                                     |
|   |   |                                                                                                                                                                                                    |   |                                                                                           |
|   |   | (d) Each  Occurrence                                                                                                                                                                                    |   | $2,000,000                                                                                     |
|   |   |                                                                                                                                                                                                    |   |                                                                                           |
|   |   | All coverage  shall be on an Occurrence Form.   Claims-made coverage is not acceptable.  General Aggregate limit to apply separately to each project  (per project aggregate endorsements).   |
|   |   |                                                                                                                                                                                                    |   |                                                                                           |
| (4)    |   | Umbrella  Liability                                                                                                                                                                                     |   | $5,000,000  each occurrence and aggregate.                                                     |

 

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11.1.2.3         Inaddition to the above coverage’s, Contractors performing asbestos abatement,lead abatement and/or other environmental work shall provide PollutionLiability Insurance to cover their operations with a limit of $2,000,000 peroccurrence and aggregate coverage.

 

11.1.3        Add the following clause11.1.3.1:

 

11.1.3.1         “Allpolicies shall name Owner and also name Louis P.  Ciminelli Construction Co., Inc. and the Architect/Engineer andtheir consultants as Additional Insured (Form B) and providing that suchinsurance is Primary insurance as respects the interest of the /Owner and theConstruction Manager and that any other insurance maintained by the Ownerand/or Construction Manager in excess.”

 

11.4                 PropertyInsurance

 

11.4.1                  Firstline, delete the word “Contractor” and substitute “Construction Manager”.

 

11.4.2.1         Addthe following sentence to Subparagraph 11.4.2.1:

 

“The propertyinsurance is written with a deductible of $25,000 and each Contractor isresponsible to pay costs not covered because of such deductible.”

 

11.5                 Performance Bondand Payment Bond

 

11.5.1        Add the following to theend of Paragraph 11.5.1:

 

“EachContractor shall provide a 100% Performance Bond and a 100% Labor and MaterialPayment Bond on Forma A312.  The totalcost of such bonds shall be included in the Contract price.  Bonds are to be issued as Dual ObligeeBonds, naming Wheeling Island Gaming, Inc. and Louis P. Ciminelli ConstructionCo., Inc. as Obligees.”

 

**ARTICLE12; UNCOVERING AND CORRECTION OF WORK**

 

12.2.2.2                                     Addthe following to the end of Paragraph 12.2.2.2:

 

“12.2.22Contractors’ warranties shall commence on the date of final completion andacceptance of the Project in Prime Contract. In the event that systems and/or equipment are started and operated, orareas and materials on the Project are utilized prior to the date of finalcompletion of the Project, the warranty for said items shall be appropriatelyextended at no additional costs to the owner, in order that the specifiedduration of the warranty will be in full force and effect upon completion of theProject.”

 

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**ARTICLE13; MISCELLANEOUS PROVISIONS**

 

13.5                 Tests andInspections

 

Add to 13.5 the followingSubparagraph 13.5.7:

 

13.5.7                  “Providefor Tests and Inspections under the provisions of the General Requirements(Division 1 of the Specifications).”

 

**ARTICLE14; TERMINATION OF SUSPENSION OF THE CONTRACT**

 

14.1.3                  Afterthe word “profit”, insert a period (.) and delete the remainder of thesentence.

 

**ENDOF DOCUMENT**

 

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**ASSIGNMENT AND ASSUMPTION AGREEMENT**

 

**OWNER:**                                   Wheeling IslandGaming, Inc., One South Stone Street, Wheeling, WV 26003

 
| **CONSTRUCTION MANAGER:** | Louis  P.  Ciminelli Construction Company,  Inc. |
|---------------------------|-------------------------------------------------------|
|                      | The  Cyclorama Building, Buffalo, NY 14202            |

 

**PROJECT:The “Project” consists of the construction of an approximately 279,100square ft. conventionally constructed facility as is more fully set forth inthe agreement between Construction Manager and Owner, AIA Document A121/CMc1991 Edition - Electronic Format dated September 1, 2001 (the “PrimeContract”), with General Conditions of the Contract for Construction, annexedthereto and made a part thereof, being AIA Document A201-1997 - ElectronicFormat, as amended (the “General Conditions”), which will house a casino,gaming facility, entertainment center, covered parking facility and hotel,located at One South Stone Street, Wheeling, West Virginia.  Included in the Project are all costsassociated with development of the site, and acquisition and installation ofall steel, masonry, carpentry, electrical, plumbing and HVAC work, togetherwith the costs associated with the acquisition and installation of allimprovements to complete the Project, including but not limited to, developingthe casino theme.**

 

**SUBCONTRACT:**                             Theattached contract between the Owner and other party to the attached contract(“Subcontractor”), for the construction and/or supply of labor and/or materialsfor some or all of the Project.

 

**DATE:                                          **

 

**IN CONSIDRATION**ofthe agreements contained herein, and other good and valuable considerationexchanged between Owner and Construction Manager, the receipt and sufficiencythereof being hereby acknowledged, it is agreed as follows:

 

1.                             Assignment.Owner hereby assigns all of its rights and obligations under the Subcontract toConstruction Manager such that Subcontractor is now deemed to have performedall of its duties and obligations under the Subcontract for ConstructionManager in furtherance of Construction Manager’s duties and obligations toOwner to complete the Project pursuant to the Prime Contract as supplemented bythe General Conditions.

 

2.                             Assumption.Construction Manager hereby assumes all of Owner’s obligations and duties underthe Subcontract as if Construction Manager were the original signatory thereto,subject, however, to the provisions of the Prime Contract as supplemented bythe General Conditions.

 

IN WITNESSWHEREOF, this Agreement has been executed effective the day and year firstabove written.

 
| Wheeling  Island Gaming, Inc., Owner |   | Louis P.  Ciminelli Construction Company, Inc.,  Construction Manager |
|--------------------------------------|--------|-----------------------------------------------------------------------|
| By                                   |   | By                                                                    |
|                                 |   |                                                                  |

 

**ATTACHMENT III**

 

----

 
|                                                               | **Upper Ohio Valley Building  and Construction Trades Council**       |
|--------------------------------------------------------------------|-----------------------------------------------------------------------|
| [Upper Ohio Valley Building  and Construction Trades Council LOGO] | **President: Bill Dean  Secy-Treas: Gary Kosky  Vice-Pres: Tom Gray** | **304-232-2660  304-232-2540  304-243-7000** | **329 North 4th Street  Steubenville, Ohio 43952  740-283-1429  Fax 304-232-7241** |

 

[SEAL]

 

August 22, 2001

 

Mr. Gary Bichler President& COOLouis P. Ciminelli Constr. Co. Inc.369 Franklin St.Buffalo, NY. 142020-1790

 

RE: Wheeling Downs GamingComplex, Phase II

 

Dear Mr. Bichler:

 

I want to thank you on behalfof the Upper Ohio Valley Building Trades Council for the brief overview of theproposed phase II expansion at the Wheeling Downs Gaming Complex.  The Council is looking forward too workingwith Louis P. Ciminelli Constr. Co. Inc. in making this dream of Delaware NorthCompanies a reality.  All affiliatedLocals, except Plumbers Local #83 and Elevator Constructors Local #6, havesigned the Project Labor Agreement and agree to work on the Phase II expansionunder the terms and conditions of the agreement for the duration of the projector until the expiration date of December 31, 2002, whichever comes first.

 

If you have any questions orconcerns please call.

 

 

Sincerely

 
| /s/ Gary  Kosky                                                            |   |
|----------------------------------------------------------------------------|--------|
| Gary Kosky  Secretary/Treasurer  Upper Ohio Valley Building Trades Council |

 
| cc: | Roy Olsen,  Delaware North Companies  Scott Cooper, Wheeling Downs  Tom Cerra, O.V.C.E.C.  File |
|-----|-------------------------------------------------------------------------------------------------|

 

**ATTACHMENT IV**

 

----

 

WHEELING DOWNS GAMING COMPLEX

*Wheeling, West Virginia*

 

**ProjectLabor Agreement**

 

The Owner will require theConstruction Manager [Louis P. Ciminelli Construction Co., Inc.] to use onlyTrade Contractors who are signatory to the Trades Council’s current collectivebargaining agreements (“Agreements”) for the on-site construction of theProject.  This commitment will apply toall trades performing work on the Project, except for landscaping work and anyspecialty work that will be performed by other separate contractors underdirect contract to the Owner, such as delivery, handling and installation offurniture, fixtures and equipment which includes, but is not limited to, gamingand security equipment, telephone and computer/date, equipment, food serviceand bar equipment and specialty stage and lighting equipment.  As agreed, these items are excluded to theextent they involve sensitive security matters and specialty, theme-related orproprietary systems work.

 

In consideration for thiscommitment by the Owner, the Trades Council and its member unions agree to thefollowing:

 

1.               Therewill be no strike or picketing whatsoever by the Trades Council, its memberunions or their members for the duration of the Project.

 

2.               Thewage rates stipulated for journeyman in each and every current and/or futureAgreements will be reduced by ten (10) percent.  This 10% wage reduction will stay in force for the duration ofthe Project or until December 31, 2002, whichever comes first.

 

3.               Ifwork on the Project is to be suspended, all Trade Contractors shall beresponsible for providing workers employed by them with actual notice of thework suspension.  If a worker does notreceive actual notice of the work suspension prior to arriving at the Project,the workers shall receive one hour of show-up time.  If work is suspended after worker has commenced a shift on theProject, workers shall be paid for all time actually spent on the shift.

 

4.               TheTrade Contractors and/or Construction Manager may schedule four (4) ten (10)hour shifts during the work week, using Friday as a voluntary make-up daybecause of inclement weather only, Saturday will be paid time-and-a-half, andall Sunday work shall be paid double-time. The Trade Contractors and/or Construction Manager may schedule five (5)eight (8) hour shifts during the work week, using Saturday as a voluntarymake-up day because of inclement weather only, and all Sunday work be paiddouble-time.

 

5.               Theapprenticeship ratio in Agreements will be increased to allow for additionalapprentices at the Trade Contractors’ discretion.

 

----

 

6.               Shiftdifferentials will be eliminated in all Agreements.

 

In order to construct theProject, the Owner requires assurances that value pricing will be obtained throughcompetitive bidding.  The ConstructionManager shall be required to obtain, in a timely fashion, a minimum of threebona fide bids from Trade Contractors who are signatory to the Agreements foreach segment of work that is bid as a separate bid package, and, the amount ofsubmitted bid(s) for each segment of work must be considered acceptable by theConstruction Manager and the Owner.  Ifthe Construction Manager experiences a lack of bona fide bids or unacceptablepricing, the Trade Council and its member unions will cooperate with theConstruction Manager and the Owner in an effort to obtain additional bids fromcompetent Trade Contractors and/or reduced bids from Trade Contractors who havealready tendered bids by taking various steps that might include such measuresas making further contractual modifications in the Agreements and/or allowingTrade Contractors to become signatory to collective bargaining agreements on asingle project basis.

 

The terms established in thisagreement shall be incorporated by reference in the agreement between Owner andConstruction Manager, such that Construction Manager will be bound to the Ownerin accordance with this agreement. Similarly, the bids and subcontracts on the Project will necessarilyrefer to, and incorporate, the requirements of this agreement.

 

----

 

[ILLEGIBLE]

 

DEED

 

THIS DEED,made this 18th day of April, 2000, by and between THE OHIO COUNTYCOMMISSION, Ohio County, West Virginia, party of the first part, and WHEELINGDOWNS RACING ASSOCIATION, INC., a West Virginia corporation, with its principaloffice and place of business in Wheeling, Ohio County, West Virginia, party ofthe second part.

 

WITNESSETH:That for and in consideration of the sum of Ten Dollars ($10.00) and other goodand valuable consideration, the receipt of which is hereby acknowledged, theparty of the first part hereby grants and conveys to the party of the secondpart, with covenant of special warranty, the following described parcels ofreal estate, together with all improvements situate thereon and appurtenancesthereunto belonging, situate in the City of Wheeling, County of Ohio, State ofWest Virginia, that is to say:

 

A parcel ofland situate in Wheeling-Madison District, City of Wheeling, Ohio County, WestVirginia, the boundaries of which are the exterior wall lines and exteriorstairs of a Clubhouse Addition to the Graridstand of Wheeling Downs RacingAssociation, being more particularly described as follows

 

Beginning atthe easternmost corner of the exterior block wall of said Clubhouse Addition,said corner was found to bear S. 25° 14’07” W., 888.95 feet from across (+) In a concrete sidewalk and found in the westerly line of South PennStreet, Said cross (+) was found to bear N. 06° 35’W., 454.20 feet along thewesterly line of South Penn Street, from its intersection with the southerlyline of Stone Street. Said cross (+) was also found to bearS. 69° 49’08” E., 877.81 feet from a 1” pipe found at theintersection of the westerly line of Lane N and the northerly property line ofWheeling Downs Racing Association, Inc. (Deed Book 434, at page 371).

 

Thence fromsaid point of beginning and with the exterior wall lines and the perimeters ofexterior concrete stairs, the following twenty-four (24) courses:

 

(01)                                    S. 30° 31’ 43” W., 36.00feet;

(02)                                    S. 59° 28’ 17” E., 9.65feet;

(03)                                    S. 30° 31’ 43” W., 7.87feet;

(04)                                    N. 59° 28’ 17” W., 9.65feet;

(05)                                    S. 30° 31’ 43” W., 28.38feet;

(06)                                    S.59° 28’ 17” E., 8.72 feet;

(07)                                    S. 30° 31’ 43” W., 7.65feet;

(08)                                    N. 59° 28’ 17” W., 8.72feet;

(09)                                    S. 30° 31’ 43” W., 52.70feet;

(10)                                    S 59° 28’ 17” E., 5.90feet;

(11)                                    S. 30° 31’ 43” W., 7.76feet;

(12)                                    N. 59° 28’ 17” W., 5.90feet;

(13)                                    S. 30° 31’ 43” W., 18.28feet;

(14)                                    N.59° 28’ 17” W., 4.01 feet;

(15)                                    S. 32° 00’ 55” E., 4.65feet;

(16)                                    N. 75° 10’ 01” W., 96.49feet;

(17)                                    N.15° 08’ 09” E., 112.00 feet;

 

**ATTACHMENT V**

** **

----

 

(18)                                    S. 75° 37’ 33” E., 0.80 feet;

(19)                                    N. 15° 40’ 09” E., 73.11 feet;

(20)                                    S. 74° 35’ 03” E., 23.88 feet;

(21)                                    S. 15° 41’ 45” W., 73.03 feet;

(22)                                    S. 78° 37’ 33” E., 1.04 feet;

(23)                                    N. 30° 28’ 48” E., 73.99 feet;and

(24)                            S. 59° 28’ 08” E., 101.07 feetto the point of beginning containing 20,893.77 square feet, more or less, assurveyed in June of 1981 by Michael T. Stahl, WV LLS #613.

 

Being the sameproperty conveyed by Wheeling Downs Racing Association, a West Virginiacorporation, to the Ohio County Commission, Ohio County, West Virginia, by Deeddated June 17, 1981, and recorded in the Office of the Clerk of CountyCommission of Ohio County, West Virginia, in Deed Book 502, at Page 146.

 

IN WITNESSWHEREOF, the party of the first part has caused these presents to be signed,and its seal to be hereto affixed and attested, by authority duly given, as ofthe date aforesaid,

 
|             | THE OHIO  COUNTY COMMISSION |
|------------------|-----------------------------|
|             |                        |
|             | By                          | /s/ David J.  Sims |
|             |                        |   |
|             | Its                         | President |
|             |
| ATTEST:          |                        |
|             |                        |
| /s/  [ILLEGIBLE] |                        |
| Title:           | Administrator               |   |
|                  |                             |  |  |  |

 

STATE OF WEST VIRGINIA,

 

COUNTY OF OHIO, To-wit:

 

The foregoinginstruments was acknowledged before me this 18th day of April 2000,by David J. Sims of The Ohio County Commission, Ohio County, West Virginia, onbehalf of said Commission.

 
|                    | /s/ Sara J.  Bowman |
|-------------------------|---------------------|
|                    | Notary  Public      |
|                    |
| My  Commission Expires: |
| March 25,  2007         |                |
|                         |                     |  |

 

2

----

 

Liquidity and Capital Resources

 

As of December31, 2001, we had cash and cash equivalents of $9.9 million.  Our principal source of liquidity during theyear ended December 31, 2001 consisted of cash from operating activities andthe proceeds from the Offering.  As ofDecember 31, 2000, we had cash and cash equivalents of $5.0 million.  Our principal source of liquidity during theyear ended December 31, 2000 consisted of borrowings under our originalrevolving credit facility which was repaid upon the closing of the Offering,Cash provided by operating activities was $12.2 million for the year endedDecember 31, 2001 as compared to $0.5 million for the year ended December 31,2000.  The $11,7 million increase wasdue primarily to the timing of payments of management fees to shareholders aswell as the impact of higher net income and non-cash depreciation for the yearended December 31, 2001.

 

Cash used ininvesting activities for the years ended December 31, 2001 and 2000 was $111.8million and $17.1 million, respectively. The $94.7 million increase in cash used for investing activities was dueto the $105.0 million stock purchase transaction consummated on December19,2001 offset partially by a $10.3 million decrease in capital expendituresdue to the capital expenditures made in 2000 for the Island Room expansion.

 

Cash providedby financing activities for the year ended December 31, 2001 and December 31,2000 was $104.5 million and $14.2 million, respectively.  The $90.3 million increase in cash providedby financing activities was due primarily to the $125.0 million in proceedsfrom the Offering offset partially by the June 30, 2000 closing of our originalrevolving credit facility.  At the timeof the closing of the original revolving credit facility, we borrowed $16.5million which was reduced to $14.5 million by December 31, 2000. During 2001,we made further repayments of $2.5 million against the original revolvingcredit facility reducing the balance to $12.0 million. We repaid the remaining$12.0 million balance of the original revolving credit facility from a portionof the net proceeds from the Offering. The increase in cash provided byfinancing activities was offset further by $5.9 million in debt issuance costsrelating to the Offering and the new $40.0 million revolving credit facility.  We had no debt outstanding during the fiscalyear ended December 31, 1999.

 

We used partof the proceeds from the Offering to purchase all of the shares of our commonstock owned by WHX Entertainment Corp. Of the $105.0 million totalconsideration paid for the repurchase, $90.0 million is attributable to thepurchase price for the shares and $150.0 million is attributable to anon-compete agreement entered into WHX. As a result of the stock purchase, the management services agreementswith WHX and Sportsystems Corporation terminated and we no longer incurmanagement and administrative services fee expenses under such agreements.  We have entered into an administrativeservices agreement with Sportsystems and Delaware North, which became effectiveupon the closing of the Offering. Pursuant to this administrative servicesagreement, Sportsystems receives an annual administrative services fee that isequal to the greater of 1.5% of preceding year total operating revenues or $1.2million for certain administrative support services provided to us bySportsystems and Delaware North.  Inaddition, at the closing of the Offering we paid a one-time advisory fee of$1.3 million to Delaware North, pursuant to an advisory services agreement, foradvisory services provided in connection with the negotiation, structuring andfinancing of the stock purchase transaction.

 

Simultaneouslywith the consummation of the Offering, we entered into a new revolving creditfacility.  The total commitment underthe new revolving credit facility is $40.0 million.  As of the date of this prospectus, we have approximately $37.3million available to be drawn down under the new revolving credit facility, nonof which has been drawn down.  Thestated maturity date of the new revolving credit facility, none of which hasbeen drawn down.  The stated maturitydate of the new revolving credit facility is five years from the closing, and commencing on December 31,2003, the commitment will be reduced by $2.5 million at the end of each quarteruntil the commitment is reduced to $20.0 million.  The new revolving credit facility is secured by all of ourassets, including a first mortgage on our property, and is guaranteed by ourwholly owned subsidiaries.  See thesection “Description of Certain Indebtedness.”

 

**ATTACHMENT VI**

** **

----

 

**WHEELING DOWNS GAMING CENTER**

**OWNER BUDGETED ITEMS**

**7/17/02**

 
|   |   |                         |   |      |   | **BUDGET AS  OF:** |       |
|--------|--------|------------------------------|--------|-----------|--------|--------------------|------------|
| **#**  |   | **ITEM**                     |   | **OWNER** |   | **8/20/01**        |       | **9/10/01** |   | **10/28/01** |   | **11/28/01** |   | **3/13/02** |   |
| 1      |   | Artwork                      |   | SC        |   | 25,000             |       | 25,000 |   | 25,000 |   | 25,000 |   | 25,000 |   |
| 2      |   | Banquet/Meeting Rooms        |   | RO        |   | 300,000            |       | 150,000 |   | 150,000 |   | 100,000 |   | 100,000 |   |
| 3      |   | Bar Equipment                |   | MS        |   | 120,000            |       | 120,000 |   | 120,000 |   | 100,000 |   | 119,950 |   |
| 4      |   | Bar Furniture                |   | MS        |   | 75,000             |       | 125,000 |   | 125,000 |   | 100,000 |   | 31,700 |   |
| 5      |   | Bar Smallwares               |   | MS        |   | 10,000             |       | 10,000 |   | 10,000 |   | 10,000 |   | 10,000 |   |
| 6      |   | Bus Lobby Furniture          |   | RO        |   |               |       |   |   |   |   |   |   | 10,000 |   |
| 7      |   | Cage Equipment               |   | SC        |   | 130,750            |       | 130,750 |   | 130,750 |   | 130,750 |   | 130,750 |   |
| 8      |   | Conference Rooms             |   | RO        |   | 35,000             |       | 35,000 |   | 35,000 |   | 0 |   | 0 |   |
| 9      |   | Drapes, Linens, etc.         |   | RO        |   |               |       |   |   |   |   |   |   | 151,000 |   |
| 10     |   | Exercise Equipment           |   | RO        |   |               |       | 25,000 |   | 25,000 |   | 0 |   | 25,000 |   |
| 11     |   | Foodservice Equipment        |   | MS        |   | 656,790            |       | 656,790 |   | 656,790 |   | 425,000 |   | 700,195 |   |
| 12     |   | Foodservice Furniture        |   | MS        |   | 143,750            |       | 143,750 |   | 143,750 |   | 100,000 |   | 110,350 |   |
| 13     |   | Foodservice Installation     |   | RO        |   | 216,831            |       | 218,831 |   | 218,831 |   | 125,000 |   | 164,000 |   |
| 14     |   | Foodservice Smallwares       |   | MS        |   | 150,000            |       | 150,000 |   | 150,000 |   | 100,000 |   | 100,000 |   |
| 15     |   | Freight                      |   | MS        |   | 101,188            |       | 51,188 |   | 51,188 |   | 30,000 |   | In Each Item |   |
| 16     |   | Hotel Equipment              |   | RO        |   |               |       |   |   |   |   |   |   |   |   |
| 17     |   | Hotel Furniture              |   | MS        |   | 1,196,800          |       | 1,048,800 |   | 1,048,800 |   | 1,046,800 |   | 397,640 |   |
| 18     |   | Hotel Furniture Installation |   | RO        |   |               |       |   |   |   |   |   |   | 105,700 |   |
| 19     |   | Hotel Smallwares             |   | MS        |   | In Furniture       |       | In Furniture |   | In Furniture |   | In Furniture |   | In Furniture |   |
| 20     |   | Housekeeping Equipment       |   | SC        |   | 15,000             |       | 15,000 |   | 15,000 |   | 15,000 |   | 15,000 |   |
| 21     |   | IT systems                   |   | WC        |   | 2,126,890          |       | 1,126,890 |   | 1,452,122 |   | 1,052,122 |   | 1,241,200 |   |
| 22     |   | Man lift                     |   | RO        |   | 15,000             |       | 16,000 |   | 16,000 |   | 16,000 |   | 16,000 |   |
| 23     |   | Misc. Gaming Equipment       |   | SC        |   | 200,000            |       | 2,00,000 |   | 200,000 |   | 100,000 |   | 100,000 |   |
| 24     |   | Office Equipment             |   | RO        |   | 89,445             |       | 89,445 |   | 88,770 |   | 68,770 |   | 72,184 |   |
| 25     |   | Office Furniture             |   | RO        |   | 188,000            |       | 178,700 |   | 178,700 |   | 53,700 |   | 173,800 |   |
| 26     |   | POS System                   |   | WC        |   | 166,827            |       | 125,827 |   | 125,727 |   | 125,727 |   | 134,527 |   |
| 27     |   | Public Address/Sound System  |   | RO        |   | 93,376             |       | 93,376 |   | 93,376 |   | 93,376 |   | 93,378 |   |
| 28     |   | Retail Fixturing             |   | RO        |   |               |       |   |   |   |   |   |   | 50,000 |   |
| 29     |   | Satellite System Rework      |   | WC        |   |               |       |   |   |   |   |   |   | 30,000 |   |
| 30     |   | Security Systems             |   | MF        |   | 1,974,123          |       | 1,500,000 |   | 1,500,000 |   | 1,100,000 |   | 1,292,152 |   |
| 31     |   | Signage                      |   | SC        |   | 250,000            |       | 250,000 |   | 250,000 |   | 200,000 |   | 200,000 |   |
| 32     |   | Slot Machines                |   | SC        |   | 10,270,000         |       | 10,270,000 |   | 10,270,000 |   | 7,000,000 |   | 5,500,000 |   |
| 33     |   | Spending through 8-20-01     |   | RO        |   | 397,811            |       | 397,911 |   | 397,911 |   | 397,911 |   | 397,917 |   |
| 34     |   | Stage Equipment              |   | SC        |   |               |       |   |   |   |   |   |   | 300,000 |   |
| 35     |   | Telephone System             |   | WC        |   | 262,175            |       | 97,500 |   | 122,720 |   | 122,720 |   | 158,595 |   |
| 36     |   | Temporary Relocations        |   | SC        |   | 50,000             |       | 50,000 |   | 50,000 |   | 50,000 |   | 50,000 |   |
| 37     |   | TV/Video Systems             |   | WC        |   |               |       |   |   |   |   |   |   | 160,500 |   |
| 38     |   | **TOTAL BUDGETED ITEMS**     |   |      |   | $                  | 19,260,856 |   | $ | 17,296,758 |   | $ | 17,626,835 |   | $ | 12,687,876 |   | $ | 12,188,530 |   |
|        |        |                              |        |           |        |                    |            |  |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

**ATTACHMENT VII**

----