**                                                                                      ORIGINAL                                                      OWNER’SCOPY**

1997 Edition - Electronic Format

**Exhibit 10.9**

 

AIA Document B141 - 1997

 

*Standard Form of Agreement Between Owner and Architect with StandardForm of Architect’s Services*

 

TABLE OF ARTICLES

** **

**19 June 2002 - ISSUED FOR EXECUTION**

 

1.1           INITIAL INFORMATION

 

1.2           RESPONSIBILITIES OF THE PARTIES

 

1.3           TERMS AND CONDITIONS

 

1.4           SCOPE OF SERVICES AND OTHER SPECIALTERMS AND CONDITIONS

 

1.5           COMPENSATION

 

AGREEMENT made as of the Fourteenthday of March in the year Two Thousand Two*(In words indicate day, month and year)*

 

BETWEEN the Architect’s clientidentified as the Owner:

*(Name, address and other information)*

WheelingIsland Gaming, Inc.

One SouthStone Street

Wheeling, WestVirginia 26003-2099

 

and the Architect:

*(Name, address and other information)*

Jeter, Cook& Jepson Architects, Inc.

450 ChurchStreet

Hartford,Connecticut 06103-1129

 

For the following Project:

*(Include detailed description of Project)*

Phase II ofthe Wheeling Downs Gaming and Entertainment Facility located at 1 South StoneStreet in Wheeling, West Virginia 26003. The Project phase consists ofapproximately 279,100 square feet (SF) including the following: hotel - 16,800SF x 5 floors; Mezzanine Level - 16,800 SF; Casino Level - 86,000 SF: Lobby -6,300 SF: and Garage - 86,000 SF.

 

The Owner and Architect agreeas follows.

 

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©  1917, 1926, 1948, 1951, 1953, 1958, 1961,1963, 1966, 1967, 1970, 1974, 1977, 1987, © 1997 by The American Institute ofArchitects.  Reproduction of thematerial herein or substantial quotation of its provisions without writtenpermission of the AIA violates the copyright laws of the United States and willsubject the violator to legal prosecution. WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.  This document was electronically producedwith permission of the AIA and can be reproduced in accordance with yourlicense without violation until the date of expiration as noted below.  expiration as noted below.  expiration as noted below.  expiration as noted below.  expiration as noted below.  expiration as noted below.  expiration as noted below.  expiration as noted below.  expiration as noted below.  expiration as noted below.  expiration as noted below.  expiration as noted below.  User Document:  wheeling downs b141-03142002-issued-for-execution06192002.aia —6/19/2002.  AIA License Number 1006422,which expires on 1/15/2003.

 
| *This document has important legal consequences. Consultation with an  attorney is encouraged with respect to its completion or modification.  AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY  USING AIA DOCUMENT D401.* |
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| © 1997 AIA®  AIA DOCUMENT B141 - 1997  STANDARD FORM AGREEMENT                                                                                                                                                                            |
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| The American  Institute of Architects  1735 New York Avenue N.W.  Washington, D.C. 20006-5292                                                                                                                                                       |

 

 

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ARTICLE 1.1         INITIAL INFORMATION

1.1.1        This Agreement is based on the followinginformation and assumptions.

*(Note the disposition for the following itemsby inserting the requested information or a statement such as “not applicable,”“unknown at time of execution” or “to be determined later by mutualagreement.”)*

N/A

 

1.1.2        PROJECT PARAMETERS

1.1.2.1     The objective or use is:*(Identify or describe, if appropriate,proposed use or goals.)*

This Phase of the Work is intended to provide an 86,000 SF parkinggarage, 86,000 SF of additional gaming space, two restaurants and two bars, a600 seat showroom, a 150 room hotel, and associated support spaces.

 

1.1.2.2     The physical parameters are:*(Identify or describe, if appropriate, size,location, dimensions, or other pertinent information, such as geotechnicalreports about the site.)*N/A

 

1.1.2.3     The Owner’s Program is:*(Identify documentation or state the mannerin which the program will be developed.)*

The program is based upon master plan progress drawings dated April 25,2001.

 

1.1.2.4     The legal parameters are:*(Identify pertinent legal information,including, if appropriate, land surveys and legal descriptions and restrictionsof the site.)*

N/A

 

1.1.2.5     The financial parameters are as follows.

.1                                       Amountof the Owner’s overall budget for the Project, including the Architect’scompensation, is: estimated to be approximately fifty five million and00/100 Dollars ($55,000,000.00).

.2                                       Amountof the Owner’s budget for the Cost of the Work, excluding the Architect’s compensation, is: estimated to beapproximately forty million five hundred thousand and 00/100($40,500,000.00).  Notwithstanding thefinal resulting financial parameters of the Project, Architect’s services asdescribed in this Agreement, excluding Reinbursable Expenses and Changes inServices of Architect which are authorized subsequent to the execution of thisAgreement, shall not exceed $3,500,000.00.

 

1.1.2.6       Thetime parameters are:*(Identify,if appropriate, milestone dates, durations or fast track scheduling.)*

The current targeted date for completion of construction of the Projectis August 2003.

 

1.1.2.7     The proposed procurement or delivery methodfor the Project is:

*(Identifymethod such as competitive bid, negotiated contract, or constructionmanagement.)*

The Owner shall engage the Louis P. Ciminelli Construction Company,Inc. of Buffalo, New York to provide construction management form of projectdelivery.

 

1.1.2.8     Other parameters are:

*(Identifyspecial characteristics or needs of the Project such as energy, environmentalor historic preservation requirements.)*

N/A

 

1.1.3        PROJECT TEAM

 

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1.1.3.1     The Owner’s Designated Representative is:

*(Listname, address and other information.)*

Roy Olsen, Senior Project Manager

Sportsystems Corporation

40 Fountain Plaza

Buffalo, New York 14202

 

1.1.3.2     The persons or entities, in addition to theOwner’s Designated Representative, who are required to review the Architect’ssubmittals to the Owner are:

*(List name, address and other information.)*

Scott Cooper, General Manager

Wheeling Island Gaming, Inc.

1 South Stone Street

Wheeling, West Virginia 26003-2099

 

1.1.3.3     The Owner’s other consultants andcontractors are:

*(Listdiscipline and, if known, identify them by name and address.)*

The Owner shall independently engage, at its own expense, the servicesof the following consultants (without limitation): Gaming Consultant; Security/SurveillanceConsultant; Construction Manager; Land Surveyor; Geotechnical EngineeringConsultant. At Owner’s election in its sole discretion, any one or more of suchconsultants may be engaged to work directly for the Construction Managerinstead of for the Owner; provided, however, that such engagement shall notalter the rights, duties and obligations of the parties to this Agreement.

 

11.3.4      The Architect’s Designated Representativeis:

*(Listname, address and other information.)*

Peter J. Fabian, Project Manager

Jeter, Cook & Jepson Architects, Inc.

450 Church Street

Hartford, Connecticut 06103

 

1.1.3.5     The consultants retained at the Architect’sexpense are:

*(List description and, if known, identifythem by name and address.)*

The Architect shall engage, at its own expense, the services ofMcKinley & Associates, 32 Twentieth Street, Wheeling, West Virginia toprovide consulting engineering services including: Structural; Civil; and,Landscape Architecture: M/E Engineering, Inc. to provide Mechanical;Electrical; Plumbing; Fire Protection; and, JEM Associates to provide FoodService consulting. Any other consultants that Architect desires to employ forthe Project shall be only those to which Owner has agreed in writing, and suchagreement shall not be unreasonably withheld.

 

1.1.4        Other important initial information is:

# N/A

 

1.1.5        ~~When the services under thisAgreement include contract administration services, the General Conditions ofthe Contract for Construction shall be the edition of AIA Document A201 currentas of the date of this Agreement, or as follows:~~

The services under this Agreement include contract administrationservices as is more fully set forth in the Standard Form of Architect’sServices: Design and Contract Administration AIA Document B141 - 1997Electronic Format attached hereto and made a part hereof. This Agreement shallalso include the General Conditions of the Contract for Construction (AIA FormA201) as modified by the Owner and Contractor, incorporated herein to theextent that said document is not inconsistent with this Agreement, attachedhereto as Attachment I.

 

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1.1.6        The information contained in thisArticle 1.1 may be reasonably relied upon by the Owner and Architect in determiningthe Architect’s compensation. Both parties, however, recognize that suchinformation may change and, in that event, the Owner and the Architect shallnegotiate appropriate adjustments in schedule, compensation and Change inServices in accordance with Paragraph 1.3.3.

 
| ARTICLE 1.2 |                                                                                                                   | RESPONSIBILITIES  OF THE PARTIES |
|-------------|------------------------------------------------------------------------------------------------------------------------|----------------------------------|
|        | 1.2.1                                                                                                                  |                             | The Owner  and the Architect shall cooperate with one another to fulfill their  respective obligations under this |
|        | Agreement.  Both parties shall endeavor to maintain good working relationships among all  members of the Project team. |
|             |                                                                                                                        |                                  |  |

 

1.2.2        OWNER

1.2.2.1     Unless otherwise provided under thisAgreement, the Owner shall provide full information in a timely mannerregarding requirements for and limitations on the Project. The Owner shallfurnish to the Architect, within 15 days after receipt of a writtenrequest  (or if such informationcannot be reasonably furnished in such time period then as soon thereafter asis commercially reasonable), information necessary and relevant for the Architectto evaluate, give notice of or enforce lien rights.

 

1.2.2.2     The Owner shall periodically update thebudget for the Project, including the portion allocated for the Cost of theWork. The Owner shall not significantly increase or decrease the overallbudget, the portion of the budget allocated for the Cost of the Work, orcontingencies included in the overall budget or a portion of the budget,without consulting~~the agreement of~~ the Architect so thatArchitect can determine and advise the Owner of any~~to a~~corresponding change in the Project scope and quality. The Owner’s failureto follow the Architect’s advice in such case shall be at the Owner’s solerisk.

 

1.2.2.3     The Owner’s Designated Representativeidentified in Paragraph 1.1.3 shall be authorized to act on the Owner’s behalfwith respect to the Project. The Owner or the Owner’s Designated Representativeshall render decisions in a timely manner pertaining to documents submitted bythe Architect in order to avoid unreasonable delay in the orderly andsequential progress of the Architect’s services.

 

1.2.2.4     The Owner shall furnish, or cause theConstruction Manager to furnish, the services of consultants other thanthose designated in Paragraph 1.1.3 or authorize the Architect to furnish themas a Change in Services when such services are requested by the Architect andare reasonably required by the scope of the Project, subject to mutualagreement between Owner, Construction Manager and Architect.

 

1.2.2.5     Unless otherwise provided in this Agreement,the Owner shall furnish, or cause the Construction Manager to furnish,tests, inspections and reports required by law or the Contract Documents, suchas structural, mechanical, and chemical tests, tests for air and waterpollution, and tests for hazardous materials.

 

1.2.2.6     Except as otherwise expressly providedin this Agreement, The Owner shall furnish ~~all~~its legal,insurance and accounting services, including auditing services, that may bereasonably necessary at any time for the Project to meet the Owner’s needs andinterests, including but not limited to those pertaining to the negotiationand drafting of this Agreement, and the Architect shall furnish its legal,insurance and accounting services, including auditing services, that may bereasonably necessary at any time for the Project to meet the Architect’s 

 

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needs and interests, including but not limited to those pertaining tothe negotiation and drafting of this Agreement. 

 

1.2.2.7     The Owner shall provide prompt writtennotice to the Architect if the Owner becomes aware of any fault or defect inthe Project, including any errors, omissions or inconsistencies in theArchitect’s Instruments of Service; provided, however, Owner is under noduty of examination, evaluation, analysis, or review of Architect’s Instrumentsof Service.  

 

1.2.3        ARCHITECT

1.2.3.1     The services performed by the Architect,Architect’s employees and Architect’s consultants shall be as enumerated inArticle 1.4.

 

1.2.3.2     The Architect’s services shall be performedas expeditiously and to the standard of care and skill as is consistentwith the professional skill and care of a licensed professionalArchitect and the orderly progress of the Project. The Architect shallsubmit for the Owner’s approval a schedule for the performance of theArchitect’s services which initially shall be consistent with the time periodsestablished in Subparagraph 1.1.2.6 and which shall be adjusted, if necessary,as the Project proceeds. This schedule shall include allowances for periods oftime required for the Owner’s review, for the performance of the Owner’s and/orthe Construction Manager’s consultants, and for approval of submissions byauthorities having jurisdiction over the Project. Time limits established bythis schedule approved by the Owner shall not, except for reasonable cause, beexceeded by the Architect or Owner, except as otherwise provided herein orin the Contract Documents.

 

1.2.3.3     The Architect’s Designated Representativeidentified in Paragraph 1.1.3 shall be authorized to act on the Architect’sbehalf with respect to the Project.

 

1.2.3.4     The Architect shall maintain theconfidentiality of information specifically designated as confidential by theOwner, unless withholding such information would violate the law, create therisk of significant harm to the public or prevent the Architect fromestablishing a claim or defense in an adjudicatory proceeding. The Architectshall require of the Architect’s consultants similar agreements to maintain theconfidentiality of information specifically designated as confidential by theOwner.

 

1.2.3.5     Except with the Owner’s knowledge and writtenconsent, the Architect shall not engage in any activity, or accept anyemployment, interest or contribution that would reasonably appear to compromisethe Architect’s professional judgment with respect to this Project.

 

1.2.3.6     The Architect shall review all laws,codes, and regulations applicable to the Architect’s services. The Architectshall respond in the design of the Project to requirements imposed bygovernmental authorities having jurisdiction over the Project.

 

1.2.3.7     The Architect shall be entitled to rely onthe accuracy and completeness of services and information furnished by theOwner. The Architect shall provide prompt written notice to the Owner if theArchitect becomes aware of any errors, omissions or inconsistencies in suchservices or information.

 

ARTICLE 1.3         TERMS AND CONDITIONS

1.3.1        COST OF THE WORK

 

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1.3.1.1     The Cost of the Work shall be the totalcost or, to the extent the Project is not completed, the estimated cost to theOwner of all elements of the Project designed or specified by the Architect.

 

1.3.1.2     The Cost of the Work shall include the costat current market rates of labor and materials furnished by the Owner andequipment designed, specified, selected or specially provided for by theArchitect, including the costs of management or supervision of construction orinstallation provided by a separate construction manager or contractor, plus areasonable allowance for their overhead and profit.  In addition, a reasonable allowance for contingencies shall beincluded for market conditions at the time of bidding and for changes in theWork.

 

1.3.1.3     The Cost of the Work does not include thecompensation of the Architect and the Architect’s consultants, the costs of theland, rights-of-way and financing or other costs that are the responsibility ofthe Owner.

 

1.3.2        INSTRUMENTS OF SERVICE

1.3.2.1     Drawings, specifications and otherdocuments, including those in electronic form, prepared by the Architect andthe Architect’s consultants are Instruments of Service for use solely withrespect to this Project.  The Architectand the Architect’s consultants shall be deemed the authors and owners of theirrespective Instruments of Service and shall retain all common law, statutoryand other reserved rights, including copyrights.

 

*1.3.2.2     Upon execution of this Agreement, theArchitect grants to the Owner a nonexclusive license to reproduce theArchitect’s Instruments of Service solely for purposes of constructing, usingand maintaining the Project, provided that the Owner shall comply with allobligations, including prompt payment of all sums when due, under thisAgreement.  The Architect shall obtainsimilar nonexclusive licenses from the Architect’s consultants consistent withthis Agreement.  Any termination of thisAgreement prior to completion of the Project shall terminate this license.  Upon such termination, the Owner shallrefrain from making further reproductions of Instruments of Service and shallreturn to the Architect within seven days of termination all originals andreproductions in the Owner’s possession or control.  If and upon the date the Architect is adjudged in default of thisAgreement, the foregoing license shall be deemed terminated and replaced by asecond, nonexclusive license permitting the Owner to authorize other similarlycredentialed design professionals to reproduce and, where permitted by law, tomake changes, corrections or additions to the Instruments of Service solely forpurposes of completing, using and maintaining the Project.*

 

1.3.2.3     Except for the licenses granted inSubparagraph 1.3.2.2, 1.3.2.5 and 1.6.1 of the General Conditions, noother license or right shall be deemed granted or implied under thisAgreement.  The Owner shall not assign,delegate, sublicense, pledge or otherwise transfer any license granted hereinto another party without the prior written agreement of the Architect.  However, the Owner shall be permitted toauthorize to the Contractor, Subcontractors, Sub-subcontractors and material orequipment suppliers to reproduce applicable portions of the Instruments ofService appropriate to and for use in their execution of the Work by licensegranted in Subparagraph 1.3.2.2. Submission or distribution of Instruments ofService to meet official regulatory requirements or for similar purposes inconnection with the Project is not to be construed as publication in derogationof the reserved rights of the Architect and the Architect’s consultants.  The Owner shall not use the Instruments ofService for future additions or alterations to this Project or for otherprojects, unless the Owner obtains the prior written agreement of the Architectand the Architect’s consultants.  Anyunauthorized use of the Instruments of Service shall be at the Owner’s solerisk and without liability to the Architect and the Architect’s consultants.

 

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1.3.2.4     Prior to the Architect providing to theOwner any Instruments of Service in electronic form or the Owner providing tothe Architect any electronic data for incorporation into the Instruments ofService, the Owner and the Architect shall by separate written agreement setforth the specific conditions governing the format of such Instruments ofService or electronic data, including any special limitations or licenses nototherwise provided in this Agreement.

 

1.3.2.5     Notwithstandinganything in this Agreement or in the General Conditions to the contrary, theOwner and Architect agree that each of the parties to this Agreement shall beentitled to utilize, as an owner of the Instruments of Service, at least oneset of original Instruments of Service from which each shall be permitted tomake and retain copies, subject, however, to the following:

 

1.3.2.5.1  Theuse of the Instruments of Service by Owner shall be limited to theconstructing, using, and maintaining the Project.  The Owner shall also have the right to use said Instruments ofService for future reference purposes in planning or design of any addition oralteration to this Project.  Any and allsuch rights to use the Instruments of Service by Owner shall survive thetermination or expiration of this Agreement for any reason, notwithstandinganything in this Agreement or the General Conditions to the contrary; provided,however, if the Instruments of Service are used by Owner at any time for anyreason without the participation of the Architect, such use shall be at Owner’ssole risk and without any responsibility on the part of Architect.

 

1.3.2.5.2  TheArchitect shall not for any purpose, without receiving the Owner’s priorwritten consent, which may be granted or withheld in Owner’s sole discretion,reuse any unique elements of the Project design that are: (a) developedexclusively for this Project;  (b) basedon unique specifications, designs or other data provided by Owner; or (c)developed by Owner.  In the eventArchitect requests and receives authorization from the Owner to use any of saidunique elements of the Project design in its Architectural practice, theArchitect agrees that such use shall be at Architect’s sole risk and withoutany responsibility on the part of the Owner. Notwithstanding anything in this Agreement or the General conditions tothe contrary, the Architect shall not use the name, logos, trade or servicemarks of the Owner.

 

1.3.2.5.3  Architect covenants and represents thatArchitect and the Architect’s consultants are the authors of the Instruments ofService and that they are the original work of the Architect and theArchitect’s consultants for which Architect and its consultants possess allcommon law and statutory copyrights and other applicable intellectual propertyrights.  Architect hereby indemnifiesand holds Owner harmless from all actions, proceedings, claims, injury,damages, costs and expenses, including reasonable attorney fees and courtcosts, from any third party for interference, infringement, impairment, theft,or other taking of such third party’s intellectual property rights, including,but not limited to such third party’s copyrights, arising out of the Owner’spossession, ownership or use of the Instruments of Service as permitted by thisAgreement.

 

1.3.3        CHANGE IN SERVICES

1.3.3.1     Change in Services of the Architect,including services required of the Architect’s consultants, may be accomplishedafter execution of this Agreement, without invalidating the Agreement, ifmutually agreed in writing, if required by circumstances beyond the Architect’scontrol, or if the Architect’s services are affected as described inSubparagraph 1.3.3.2.  In the absence ofmutual agreement in writing, the Architect shall notify the Owner prior toproviding such services.  If the Ownerdeems that all or a part of such Change in Services is not required, the Ownershall give prompt written notice to the Architect, and the Architect shall haveno

 

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obligation toprovide those services.  Except for achange due to the fault of the Architect, Change in Services of the Architectshall entitle the Architect to an adjustment in compensation pursuant toParagraph 1.5.2, and to any Reimbursable Expenses described in Subparagraph1.3.9.2 and Paragraph 1.5.5.

 

1.3.3.2     If any of the following circumstancesaffect the Architect’s services for the Project, the Architect shall beentitled to an appropriate adjustment in the Architect’s schedule and compensation:

.1                                       changein the instructions or approvals given by the Owner that necessitate revisionsin Instruments of Service;

.2                                       enactmentor revision of codes, laws or regulations or official interpretations whichnecessitate changes to previously prepared Instruments of Service;

.3                                       decisionsof the Owner not rendered in a timely manner;

.4                                       significantchange in the Project including, but not limited to, size, quality, complexity,the Owner’s schedule ~~or budget~~, or procurement method;

.5                                       failureof performance on the part of the Owner or the Owner’s consultants orcontractors;

.6                                       preparationfor and attendance at a public hearing, a dispute resolution proceeding or alegal proceeding except where the Architect is party thereto;

.7                                       changein the information contained in Article 1.1, which materially affectsArchitect or the services to be provided under this Agreement.

 

1.3.4        MEDIATION

1.3.4.1     Any claim, dispute or other matter inquestion arising out of or related to this Agreement shall be subject to mediationas a condition precedent to arbitration or the institution of legal orequitable proceedings by either party. If such matter relates to or is the subject of a lien arising out of theArchitect’s services, the Architect may proceed in accordance with applicablelaw to comply with the lien notice or filing deadlines prior to resolution ofthe matter by mediation or by arbitration.

 

1.3.4.2     The Owner and Architect shall endeavor toresolve claims, disputes and other matters in question between them by mediationwhich, unless the parties mutually agree otherwise, shall be in accordance withthe Construction Industry Mediation Rules of the American ArbitrationAssociation currently in effect. Request for mediation shall be filed in writing with the other party tothis Agreement and with the American Arbitration Association.  The request may be made concurrently withthe filing of a demand for arbitration but, in such event, mediation shallproceed in advance of arbitration or legal or equitable proceedings, whichshall be stayed pending mediation for a period of 60 days from the date offiling, unless stayed for a longer period by agreement of the parties or courtorder.

 

1.3.4.3     The parties shall share the mediator’s feesand any filing fees equally.  Themediation shall be held in the place where the Project is located, unlessanother location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlementagreements in any court having jurisdiction thereof.

 

1.3.5        ARBITRATION

1.3.5.1     Any claim, dispute or other matter inquestion arising out of or related to this Agreement shall be subject toarbitration.  Prior to arbitration, theparties shall endeavor to resolve disputes by mediation in accordance withParagraph 1.3.4.

 

1.3.5.2     Claims, disputes and other matters inquestion between the parties that are not resolved by mediation shall bedecided by arbitration which, unless the parties mutually agree

 

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*otherwise,shall be in accordance with the Construction Industry Arbitration Rules of theAmerican Arbitration Association currently in effect. The demand forarbitration shall be filed in writing with the other party to this Agreementand with the American Arbitration Association.*

* *

*1.3.5.3     A demand for arbitration shall be madewithin a reasonable time after the claim, dispute or other matter in questionhas arisen. In no event shall the demand for arbitration be made after the datewhen institution of legal or equitable proceedings based on such claim, disputeor other matter in question would be barred by the applicable statute oflimitations.*

* *

*1.3.5.4     No arbitration arising out of or relatingto this Agreement shall include, by consolidation or joinder or in any othermanner, an additional person or entity not a party to this Agreement, except bywritten consent containing a specific reference to this Agreement and signed bythe Owner, Architect, and any other person or entity sought to be joined.Consent to arbitration involving an additional person or entity shall notconstitute consent to arbitration of any claim, dispute or other matter inquestion not described in the written consent or with a person or entity notnamed or described therein. The foregoing agreement to arbitrate and otheragreements to arbitrate with an additional person or entity duly consented toby parties to this Agreement shall be specifically enforceable in accordancewith applicable law in any court having jurisdiction thereof.*

 

1.3.5.5     The award rendered by the arbitrator orarbitrators shall be final, and judgment may be entered upon it in accordancewith applicable law in any court having jurisdiction thereof.

 

1.3.6        CLAIMS FOR CONSEQUENTIAL DAMAGES

The Architect and the Ownerwaive consequential damages for claims, disputes or other matters in questionarising out of or relating to this Agreement. This mutual waiver is applicable,without limitation, to all consequential damages due to either party’stermination in accordance with Paragraph 1.3.8.

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1.3.7        MISCELLANEOUS PROVISIONS

1.3.7.1     This Agreement shall be governed by the lawwhere the Project is located, ~~of the principal place of business ofthe Architect, unless otherwise provided in Paragraph 1.4.2.~~

 

1.3.7.2     Terms in this Agreement shall have the samemeaning as those in the ~~edition of AIA Document A201~~, GeneralConditions, attached ~~of the Contract for Construction, current as ofthe date of this Agreement.~~

 

1.3.7.3     ~~Causes of action between the parties tothis Agreement pertaining to acts or failures to act shall be deemed to haveaccrued and the applicable statutes of limitations shall commence to run notlater than either the date of Substantial Completion for acts or failures toact occurring prior to Substantial Completion or the date of issuance of thefinal Certificate for Payment for acts or failures to act occurring afterSubstantial Completion. In no event shall such statutes of limitations commenceto run any later than the date when the Architect’s services are substantiallycompleted.~~

 

1.3.7.4     To the extent damages are covered byproperty insurance during construction, the Owner and the Architect waive allrights against each other and against the contractors, consultants, agents andemployees of the other for damages, except such rights as they may have to theproceeds of such insurance as set forth in the ~~edition of AIA Document A201,~~General Conditions.~~of the Contract for Construction, current as ofthe date of this Agreement.~~

 

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The Owner or the Architect, asappropriate, shall require of the contractors, consultants, agents andemployees of any of them similar waivers in favor of the other partiesenumerated herein.

 

1.3.7.5     Nothing contained in this Agreement shallcreate a contractual relationship with or a cause of action in favor of a thirdparty against either the Owner or Architect.

 

1.3.7.6     Unless otherwise provided in thisAgreement, the Architect and Architect’s consultants shall have noresponsibility for the discovery, presence, handling, removal or disposal of orexposure of persons to hazardous materials or toxic substances in any form atthe Project site.

 

1.3.7.7     The Architect shall have the right toinclude photographic or artistic representations of the design of that partof the Project visible to the general public among the Architect’spromotional and professional materials. The Architect shall be given reasonableaccess to the completed Project to make such representations. However, theArchitect’s materials shall not include the Owner’s confidential or proprietaryinformation.~~if the Owner has previously advised the Architect inwriting of the specific information considered by the Owner to be confidentialor proprietary. The Owner shall provide professional credit for the Architectin the Owner’s promotional materials for the Project.~~

 

1.3.7.8     If the Owner requests the Architect toexecute certificates, the proposed language of such certificates shall besubmitted to the Architect for review at least ~~14~~7 days prior tothe requested dates of execution. The Architect shall not be required toexecute certificates that would require knowledge, services or responsibilitiesbeyond the scope of this Agreement.

 

1.3.7.9     The Owner and Architect, respectively, bindthemselves, their partners, successors, assigns and legal representatives tothe other party to this Agreement and to the partners, successors, assigns andlegal representatives of such other party with respect to all covenants of thisAgreement. Neither the Owner nor the Architect shall assign this Agreementwithout the written consent of the other, except that the Owner may assign thisAgreement to an institutional lender providing financing for the Project. Insuch event, the lender shall assume the Owner’s rights and obligations underthis Agreement. The Architect shall execute all consents reasonably required tofacilitate such assignment. Notwithstanding the foregoing, there shall be nopersonal liability of the shareholders, investors, officers, directors or employeesof Owner under this Agreement.

** **

1.3.8        TERMINATION OR SUSPENSION

 

1.3.8.1     If the Owner fails to make payments to the Architect inaccordance with this Agreement, such failure shall be considered substantialnonperformance and cause for termination or, at the Architect’s option, causefor suspension of performance of services under this Agreement. If theArchitect elects to suspend services, prior to suspension of services, theArchitect shall give seven days’ written notice to the Owner. In the event of asuspension of services, the Architect shall have no liability to the Owner fordelay or damage caused the Owner because of such suspension of services. Beforeresuming services, the Architect shall be paid all sums due prior to suspensionand any expenses incurred in the interruption and resumption of the Architect’sservices. The Architect’s fees for the remaining services and the timeschedules shall be equitably adjusted.

 

1.3.8.2     If the Project is suspended by the Ownerfor more than 30 consecutive days, the Architect shall be compensated forservices performed prior to notice of such suspension.

 

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When theProject is resumed, the Architect shall be compensated for expenses incurred inthe interruption and resumption of the Architect’s services. The Architect’sfees for the remaining services and the time schedules shall be equitablyadjusted.

 

1.3.8.3     If the Project is suspended or theArchitect’s services are suspended for more than 90 consecutive days, theArchitect may terminate this Agreement by giving not less than seven days’written notice.

 

1.3.8.4     This Agreement may be terminated by eitherparty upon not less than 14~~seven~~ days’ written notice should theother party fail substantially to perform in accordance with the terms of thisAgreement through no fault of the party initiating the termination.

 

1.3.8.5     This Agreement may be terminated by theOwner upon not less than 14~~seven~~ days’ written notice to theArchitect for the Owner’s convenience and without cause.

 

1.3.8.6     In the event of termination not the faultof the Architect, the Architect shall be compensated for services performedprior to termination, together with Reimbursable Expenses then due and allTermination Expenses as defined in Subparagraph 1.3.8.7.

 

1.3.8.7     Termination Expenses are in addition tocompensation for the services of the Agreement and include expenses directlyattributable to termination for which the Architect is not otherwisecompensated, ~~plus an amount for the Architect’s anticipated profit on thevalue of the services not performed by the Architect.~~

 

1.3.9        PAYMENTS TO THE ARCHITECT

1.3.9.1     Payments on account of services renderedand for Reimbursable Expenses incurred shall be made monthly upon presentationof the Architect’s statement of services. No deductions shall be made from theArchitect’s compensation on account of penalty, liquidated damages or othersums withheld from payments to contractors, or on account of the cost ofchanges in the Work other than those for which the Architect has been adjudgedto be liable.

 

1.3.9.2     Reimbursable Expenses are in addition tocompensation for the Architect’s services and include expenses incurred by theArchitect and Architect’s employees and consultants directly related to theProject, as identified in the following Clauses:
|                                                                                                                    | .1     |   | transportation  in connection with the Project, authorized out-of-town travel and  subsistence, and electronic communications;                                                                                                                                   |
|-------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                    | .2     |   | fees paid  for securing approval of authorities having jurisdiction over the Project;                                                                                                                                                                            |
|                                                                                                                    | .3     |   | reproductions,  plots, standard form documents, postage, handling and delivery of Instruments  of Service;                                                                                                                                                       |
|                                                                                                                    | .4     |   | expense of  overtime work requiring higher than regular rates if authorized in advance by  the Owner;                                                                                                                                                            |
|                                                                                                                    | .5     |   | renderings,  models and mock-ups requested by the Owner;                                                                                                                                                                                                         |
|                                                                                                                    | .6     |   | expense of  professional liability insurance dedicated exclusively to this Project or the  expense of additional insurance coverage or limits requested by the Owner in  excess of that normally carried by the Architect and the Architect’s  consultants; |
|                                                                                                                    | .7     |   | reimbursable  expenses as designated in Paragraph 1.5.5;                                                                                                                                                                                                         |
|                                                                                                                    | .8     |   | other  similar direct Project-related expenditures.                                                                                                                                                                                                              |
|                                                                                                                    |   |   |
| Notwithstanding  .1-.8 above, Architect and Owner have agreed upon the Reimbursable Expense Budget  attached hereto and |
| made a part  hereof as Attachment II, which Architect agrees not to exceed until first  advising Owner                  |
|                                                                                                                         |        |        |                                                                                                                                                                                                                                                                  |  |  |

 

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that exceeding such budget is about to occur and the reasons for suchextra and/or unanticipated Reimbursable Expenses.

 

1.3.9.3     Records of Reimbursable Expenses, ofexpenses pertaining to a Change in Services, and of services performed on thebasis of hourly rates or a multiple of Direct Personnel Expense shall beavailable to the Owner or the Owner’s authorized representative at mutuallyconvenient times.

 

1.3.9.4     Direct Personnel Expense is defined as thedirect salaries of the Architect’s personnel engaged on the Project and theportion of the cost of their mandatory and customary contributions and benefitsrelated thereto, such as employment taxes and other statutory employeebenefits, insurance, sick leave, holidays, vacations, employee retirement plansand similar contributions.

 

ARTICLE 1.4         SCOPE OF SERVICES AND OTHER SPECIALTERMS AND CONDITIONS

1.4.1        *Enumeration of Parts ofthe Agreement.* ThisAgreement represents the entire and integrated agreement between the Owner andthe Architect and supersedes all prior negotiations, representations oragreements, either written or oral. This Agreement may be amended only by written instrument signed by bothOwner and Architect.  This Agreementcomprises the documents listed below.

 

1.4.1.1     Standard Form of Agreement Between Ownerand Architect.  AIA Document B141-1997.

 

1.4.1.2     Standard Form of Architect’s Services:  Design and Contract Administration, AIADocument B141-1997, ~~or as follows~~;

*(List other documents, if any, delineating Architect’s scopeof services.)*

 

1.4.1.3     Other documents as follows:

*(List other documents, if any, forming part of theAgreement.)*

AttachmentI - (54 pages) Modified AIA Document A201 - 1997 Edition - General Conditionsof the Contract for Construction (Note that the electronic file name for thedocument is “wheeling-generalconditions-final-06192002-with-font-corrected.aia)

 

AttachmentII - (1 page) Reimbursable Expenses Budget Worksheet dated 19 June 2002

 

AttachmentIII - (5 pages) Phase II A/E Design Cost Schedule dated 19 June 2002

 

AttachmentIV - (1 page) Hourly Billing Rates

 

1.4.2        *Special Terms andConditions:* Special terms and conditions that modify this Agreementare as follows:

N.A.

 

ARTICLE 1.5         COMPENSATION

1.5.1        For the Architect’s services as described under Article 1.4,compensation shall be computed as per ~~follows:~~

theattached document entitled “Wheeling Downs Racetrack & Gaming Center,  Phase II A/E Design Cost Schedule” dated 6March 2002, attached hereto and made a part hereof as Attachment III.

 

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1.5.2        If the services of the Architect arechanged as described in Subparagraph 1.3.3.1, the Architect’s compensationshall be adjusted.  Such adjustmentshall be calculated as described below or, if no method of adjustment isindicated in this Paragraph 1.5.2, in an equitable manner.

*(Insert basis of compensation, including rates and multiplesof Direct Personnel Expense for Principals and employees, and identifyPrincipals and classify employees, if required.  Identify specific services to which particular methods ofcompensation apply.)*

Principalsshall be charged at the fixed hourly rate of One Hundred Fifty Dollars($150.00) per hour.  For purposes ofthis Agreement, the Principals are David G. Jepson, Peter N. Stevens, Philip A.Pineo, Thomas F.  Dowling, Brian L.Davis, Robert J. Burling, James E. LaPosta, Bruce M. Kellogg, and Scott P.Celella.

 

Employeesshall be charged at an hourly rate based on a multiple of two point five (2.50)times their individual Direct Personnel Expense as described in subparagraph1.3.9.4.  The resultant hourly rates areas illustrated on Attachment IV, attached hereto and made a part hereof.  The hourly rates included in Attachment IVare total billing rates derived from the method of multiplying the DirectPersonnel Expense by 2.5.  The ratesincluded in Attachment IV will not be multiplied further.g

 

1.5.3        For a Change in Services of theArchitect’s consultants, compensation shall be computed as a multiple of onepoint one five (1.15) times the amounts billed to the Architect forsuch services.

 

1.5.4        For Reimbursable Expenses as describedin Subparagraph 1.3.9.2, and any other items included in Paragraph 1.5.5 asReimbursable Expenses, the compensation shall be computed as a multiple of onepoint one five (1.15) times the expenses incurred by the Architect,and the Architect’s employees and consultants.

 

1.5.5        Other Reimbursable Expenses, if any, areas follows:

Noneare anticipated nor will be charged without the prior authorization of theOwner.

 

1.5.6        The rates and multiples for services ofthe Architect and the Architect’s consultants as set forth in this Agreementshall be adjusted in accordance with their normal salary review practices.  The multiples set forth at 1.5.3 and1.5.4, and the fixed hourly billing rates (Principal, Project Director, DepartmentDirector, and Project Manager) included in Attachment IV to this Agreement,shall not be adjusted prior to the expiration of the time period set forth inparagraph 1.5.9 hereof.

 

1.5.7        An initial payment of N/A Dollars($ 0.00) shall be made upon execution of this Agreement and is theminimum payment under this Agreement. It shall be credited to the Owner’s account at final payment.  Subsequent payments for services shall bemade monthly, and where applicable, shall be in proportion to services performedon the basis set forth in this Agreement.

 

1.5.8        Payments are due and payable thirty(30) days from the date of the Architect’s invoice.  Amounts unpaid thirty (30)days after the invoice date shall bear interest at the rate entered below, orin the absence thereof at the legal rate prevailing from time to time at theprincipal place of business of the Architect.

*(Insert rate of interest agreed upon.)*

Interestshall accrue at the average prime rate of interest in effect from time to timeas reported in the Wall Street Journal. Owner shall also be responsible for any and all costs of collectionincluding, without limitation, reasonable agency fees and reasonable attorney’sfees.

 

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*(Usury laws and requirements under the Federal Truth inLending Act, similar state and local consumer credit laws and other regulationsat the Owner’s and Architect’s principal places of business, the location ofthe Project and elsewhere may affect the validity of this provision.  Specific legal advice should be obtainedwith respect to deletions or modifications, and also regarding requirementssuch as written disclosures or waivers.)*

 

1.5.9        If the services covered by thisAgreement have not been completed within seventeen (17) months ofthe date hereof, through no fault of the Architect, extension of theArchitect’s services beyond that time shall be compensated as provided inParagraph 1.5.2.

 

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

 

 
| /s/ Terry C. Burton                    |                       | /s/ Peter N. Stevens |   |
|----------------------------------------|----------------------------|----------------------|--------|
| OWNER *(Signature)*                    | ARCHITECT *(Signature)*    |
| Terry C. Burton, Asst. General Counsel | Peter N. Stevens           |
| Wheeling Island Gaming, Inc.           |                       | President            |   |
|                                   |                       |                 |   |
| *(Printed name and title)*             | *(Printed name and title)* |

 

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1997 Edition - Electronic Format

 

AIA Document B141 - 1997

***Standard Form of Architect’sServices:***

***Design and Contract Administration***

 

TABLEOF ARTICLES

 

2.1           PROJECT ADMINISTRATION SERVICES

 

2.2           SUPPORTING SERVICES

 

2.3           EVALUATION AND PLANNING SERVICES

 

2.4           DESIGN SERVICES

 

2.5           CONSTRUCTION PROCUREMENT SERVICES

 

2.6           CONTRACT ADMINISTRATION SERVICES

 

2.7           FACILITY OPERATION SERVICES

 

2.8           SCHEDULE OF SERVICES

 

2.9           MODIFICATIONS

 

ARTICLE 2.1         PROJECTADMINISTRATION SERVICES

2.1.1        The Architect shall manage theArchitect’s services and administer the Project.  The Architect shall consult with the Owner, research applicabledesign criteria, attend Project meetings, communicate with members of the Projectteam and issue progress reports.  TheArchitect shall coordinate the services provided by the Architect and theArchitect’s consultants with those services provided by the Owner and theOwner’s consultants.

 

2.1.2        When Project requirements have beensufficiently identified, the Architect shall prepare, and periodically update,a Project schedule that shall identify milestone dates for decisions requiredof the Owner, design services furnished by the Architect, completion ofdocumentation provided by the Architect, commencement of construction andSubstantial Completion of the Work.

 

2.1.3        The Architect shall consider the valueof alternative materials, building systems and equipment, together with otherconsiderations based on program, budget and aesthetics in developing the designfor the Project.

 

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2.1.4        Upon request of the Owner, the Architectshall make a presentation to explain the design of the Project torepresentatives of the Owner and Construction Manager.

 

2.1.5        The Architect shall submit designdocuments to the Owner at intervals appropriate to the design process forpurposes of evaluation and approval by the Owner.  The Architect shall be entitled to rely on approvals receivedfrom the Owner in the further development of the design.

 

2.1.6.       The Architect shall assist the Owner inconnection with the Owner’s responsibility for filing documents required forthe approval of governmental authorities having jurisdiction over the Project.

 

2.1.7        EVALUATION OF BUDGET AND COST OF THEWORK

2.1.7.1     When the Project requirements have beensufficiently identified, the Architect shall prepare a preliminary estimate ofthe Cost of the Work.  This estimate maybe based on current area, volume or similar conceptual estimatingtechniques.  As the design processprogresses through the end of the preparation of the Construction Documents,the Architect shall update and refine the preliminary estimate of the Cost ofthe Work. The Architect shall advise the Owner of any adjustments to previousestimates of the Cost of the Work indicated by changes in Project requirementsor general market conditions.  If at anytime the Architect’s estimate of the Cost of the Work exceeds the Owner’sbudget, the Architect shall make appropriate recommendations to the Owner toadjust the Project’s size, quality or budget, and the Owner shall cooperatewith the Architect in making such adjustments.

 

2.1.7.2     Evaluations of the Owner’s budget for theProject, the preliminary estimate of the Cost of the Work and updated estimatesof the Cost of the Work prepared by the Architect represent the Architect’sjudgment as a design professional familiar with the construction industry.  It is recognized, however, that neither theArchitect nor the Owner has control over the cost of labor, materials orequipment, over the Contractor’s methods of determining bid prices, or overcompetitive bidding, market or negotiating conditions.  Accordingly, the Architect cannot and doesnot warrant or represent that bids or negotiated prices will not vary from theOwner’s budget for the Project or from any estimate of the Cost of the Work orevaluation prepared or agreed to by the Architect.

 

2.1.7.3     In preparing estimatesof the Cost of the Work, the Architect shall be permitted to includecontingencies for design, bidding and price escalation; to determine whatmaterials, equipment, component systems and types of construction are to beincluded in the Contract Documents; to make reasonable adjustments in the scopeof the Project and to include in the Contract Documents alternate bids as maybe necessary to adjust the estimated Cost of the Work to meet the Owner’sbudget for the Cost of the Work.  If anincrease in the Contract Sum occurring after execution of the Contract betweenthe Owner and the Contractor causes the budget for the Cost of the Work to beexceeded, that budget shall be increased accordingly.

 

2.1.7.4     If bidding or negotiation has not commencedwithin 90 days after the Architect submits the Construction Documents to theOwner, the budget for the Cost of the Work shall be adjusted to reflect changesin the general level of prices in the construction industry.

 

2.1.7.5     If the budget for the Cost of the Work isexceeded by the lowest bona fide bid or negotiated proposal, the Owner shall:

.1                                       givewritten approval of an increase in the budget for the Cost of the Work;

.2                                       authorizerebidding or renegotiating of the Project within a reasonable time;

.3                                       terminatein accordance with Subparagraph 1.3.8.5; or

 

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.4                                       cooperatein revising the Project scope and quality as required to reduce the Cost of theWork.

 

2.1.7.6     If the Owner choosesto proceed under Clause 2.1.7.5.4, the Architect, without additionalcompensation, shall modify the documents for which the Architect is responsibleunder this Agreement as necessary to comply with the budget for the Cost of theWork.  The modification of suchdocuments shall be the limit of the Architect’s responsibility under thisParagraph 2.1.7.  The Architect shall beentitled to compensation in accordance with this Agreement for all servicesperformed whether or not construction is commenced.

 

ARTICLE 2.2         SUPPORTING SERVICES

2.2.1        Unless specifically designated inParagraph 2.8.3. the services in this Article 2.2 shall be provided by theOwner or the Owner’s consultants and contractors.

 

2.2.1.1     The Owner shall furnish a program settingforth the Owner’s objectives, schedule, constraints and criteria, includingspace requirements and relationships, special equipment, systems and siterequirements.

 

2.2.1.2     The Owner shall furnish surveys to describephysical characteristics, legal limitations and utility locations for the siteof the Project, and a written legal description of the site.  The surveys and legal information shallinclude, as applicable, grades and lines of streets, alleys, pavements andadjoining property and structures; adjacent drainage; rights-of-way,restrictions, easements, encroachments, zoning, deed restrictions, boundariesand contours of the site; locations, dimensions and necessary data with respectto 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 the information on the survey shall be referenced to a Projectbenchmark.

 

2.2.1.3     The Owner shall furnish services ofgeotechnical engineers which may include but are not limited to test borings,test pits, determinations of soil bearing values, percolation tests,evaluations of hazardous materials, ground corrosion tests and resistivitytests, including necessary operations for anticipating subsoil conditions, withreports and appropriate recommendations.

 

ARTICLE 2.3         EVALUATION AND PLANNING SERVICES

2.3.1        The Architect shall provide apreliminary evaluation of the information furnished by the Owner under thisAgreement, including the Owner’s program and schedule requirements and budgetfor the Cost of the Work, each in terms of the other.  The Architect shall review such information to ascertain that itis consistent with the requirements of the Project and shall notify the Ownerof any other information or consultant services that may be reasonably neededfor the Project.

 

2.3.2        The Architect shall provide apreliminary evaluation of the Owner’s site for the Project based on theinformation provided by the Owner of site conditions, and the Owner’s program,schedule and budget for the Cost of the Work.

 

2.3.3        The Architect shall review the Owner’sproposed method of contracting for construction services and shall notify theOwner of anticipated impacts that such method may have on the Owner’s program,financial and time requirements, and the scope of the Project.

 

ARTICLE 2.4         DESIGN SERVICES

 

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2.4.1        The Architect’s design services shall include normalstructural, mechanical and electrical engineering services.

 

2.4.2        SCHEMATIC DESIGN DOCUMENTS

2.4.2.1     The Architect shall provide SchematicDesign Documents based on the mutually agreed-upon program, schedule, andbudget for the Cost of the Work. The documents shall establish the conceptualdesign of the Project illustrating the scale and relationship of the Projectcomponents. The Schematic Design Documents shall include a conceptual siteplan, if appropriate, and preliminary building plans, sections and elevations.At the Architect’s option, the Schematic Design Documents may include studymodels, perspective sketches, electronic modeling or combinations of thesemedia. Preliminary selections of major building systems and constructionmaterials shall be noted on the drawings or described in writing.

 

2.4.3        DESIGN DEVELOPMENT DOCUMENTS

2.4.3.1     The Architect shall provide DesignDevelopment Documents based on the approved Schematic Design Documents andupdated budget for the Cost of the Work. The Design Development Documents shallillustrate and describe the refinement of the design of the Project,establishing the scope, relationships, forms, size and appearance of theProject by means of plans, sections and elevations, typical constructiondetails, and equipment layouts. The Design Development Documents shall includespecifications that identify major materials and systems and establish ingeneral their quality levels.

 

2.4.4        CONSTRUCTION DOCUMENTS

2.4.4.1     The Architect shall provide ConstructionDocuments based on the approved Design Development Documents and updated budgetfor the Cost of the Work. The Construction Documents shall set forth in detailthe requirements for construction of the Project. The Construction Documentsshall include Drawings and Specifications that establish in detail the qualitylevels of materials and systems required for the Project.

 

2.4.4.2     During the development of the ConstructionDocuments, the Architect shall assist the Owner Construction Manager inthe development and preparation of:  (1)bidding and procurement information which describes the time, place andconditions of bidding; and bidding or proposal forms ~~and the form ofagreement between the Owner and the Contractor;~~ and (2) ~~the Conditionsof the Contract for Construction (General Supplementary and other Conditions)~~~~.  T~~ the Architectalso shall assist the Construction Manager~~compile~~incompiling the Project Manual that includes the Conditions of the Contractfor Construction and Specifications and may include bidding requirements andsample forms.

 

ARTICLE 2.5         CONSTRUCTION PROCUREMENT SERVICES

2.5.1        The Architect shall assist the Owner andConstruction Manager in obtaining either competitive bids or negotiatedproposals and shall assist the Owner and Construction Manager inawarding and preparing contracts for construction.

 

2.5.2        The Architect shall assist the Owner andConstruction Manager in establishing a list of prospective bidders orcontractors.

 

2.5.3        The Architect shall assist the Owner inbid validation or proposal evaluation and determination of the successful bidor proposal, if any. If requested by the Owner, the Architect shall notify allprospective bidders or contractors of the bid or proposal results.

 

2.5.4        COMPETITIVE BIDDING

 

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2.5.4.1     Bidding Documents shall consist of biddingrequirements, proposed contract forms, General Conditions and Supplementary Conditions,Specifications and Drawings.

 

2.5.4.2     If requested by the Owner, the Architectshall arrange for procuring the reproduction of Bidding Documents fordistribution to prospective bidders. The Owner shall pay directly for the costof reproduction or shall reimburse the Architect for such expenses.

 

2.5.4.3     If requested by the Owner, the Architectshall distribute the Bidding Documents to prospective bidders and request theirreturn upon completion of the bidding process. The Architect shall maintain alog of distribution and retrieval, and the amounts of deposits, if any,received from and returned to prospective bidders.

 

2.5.4.4     The Architect shall consider requests forsubstitutions, if permitted by the Bidding Documents, and shall prepare and distributeaddenda identifying approved substitutions to all prospective bidders.

 

2.5.4.5     The Architect shall participate in or, atthe Owner’s direction, shall organize and conduct a pre-bid conference forprospective bidders.

 

2.5.4.6     The Architect shall prepare responses toquestions from prospective bidders and provide clarifications andinterpretations of the Bidding Documents to all prospective bidders in the formof addenda.

 

2.5.4.7     The Architect shall participate in or, atthe Owner’s direction, shall organize and conduct the opening of the bids. TheArchitect shall subsequently document and distribute the bidding results, ifand as directed by the Owner.

 

2.5.5        NEGOTIATED PROPOSALS

2.5.5.1     Proposal Documents shall consist ofproposal requirements, proposed contract forms, General Conditions andSupplementary Conditions, Specifications and Drawings.

 

2.5.5.2     If requested by the Owner, the Architectshall arrange for procuring the reproduction of Proposal Documents fordistribution to prospective contractors. The Owner shall pay directly for thecost of reproduction or shall reimburse the Architect for such expenses.

 

2.5.5.3     If requested by the Owner, the Architectshall organize and participate in selection interviews with prospectivecontractors.

 

2.5.5.4     The Architect shall consider requests forsubstitutions, if permitted by the Proposal Documents, and shall prepare anddistribute addenda identifying approved substitutions to all prospectivecontractors.

 

2.5.5.5     If requested by the Owner, the Architectshall assist the Owner during negotiations with prospective contractors. TheArchitect shall subsequently prepare a summary report of the negotiationresults, as directed by the Owner.

 

ARTICLE 2.6         CONTRACT ADMINISTRATION SERVICES

2.6.1        GENERAL ADMINISTRATION

2.6.1.1     The Architect shall provide administrationof the Contract between the Owner and the Contractor as set forth below and inthe ~~edition of AIA Document A201,~~ General Conditions,~~of theContract for Construction, current as of the date of this Agreement.~~

 

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Modifications made to the General Conditions,when adopted as part of the Contract Documents, shall be enforceable under thisAgreement only to the extent that they are consistent with this Agreement orapproved in writing by the Architect and Owner.

 

2.6.1.2     TheArchitect’s responsibility to provide the Contract Administration Servicesunder this Agreement commences with the award of the initial Contract forConstruction and terminates at the issuance to the Owner of the finalCertificate for Payment. However, the Architect shall be entitled to a Changein Services in accordance with Paragraph 2.8.2 when Contract AdministrationServices extend 60 days after the date of Substantial Completion of the Work.

 

2.6.1.3     TheArchitect shall be a representative of and shall advise and consult with theOwner during the provision of the Contract Administration Services. TheArchitect shall have authority to act on behalf of the Owner only to the extentprovided in this Agreement unless otherwise modified by written amendment.

 

2.6.1.4     Duties,responsibilities and limitations of authority of the Architect under thisArticle 2.6 shall not be restricted, modified or extended without writtenagreement of the Owner and Architect with consent of the Contractor, whichconsent will not be unreasonably withheld.

 

2.6.1.5     TheArchitect shall review properly prepared, timely requests by the Contractor foradditional information about the Contract Documents.  A properly prepared request for additional information about theContract Documents shall be in a form prepared or approved by the Architect andshall include a detailed written statement that indicates the specific Drawingsor Specifications in need of clarification and the nature of the clarificationrequested.

 

2.6.1.6     Ifdeemed appropriate by the Architect, the Architect shall on the Owner’s behalfprepare, reproduce and distribute supplemental Drawings and Specifications inresponse to requests for information by the Contractor.

 

2.6.1.7     TheArchitect shall interpret and decide matters concerning performance of theOwner and Contractor under, and requirements of, the Contract Documents onwritten request of either the Owner or Contractor. The Architect’s response tosuch requests shall be made in writing within any time limits agreed upon orotherwise with reasonable promptness.

 

2.6.1.8     Interpretationsand decisions of the Architect shall be consistent with the intent of andreasonably inferable from the Contract Documents and shall be in writing or inthe form of drawings. When making such interpretations and initial decisions,the Architect shall endeavor to secure faithful performance by both Owner andContractor, shall not show partiality to either, and shall not be liable forthe results of interpretations or decisions so rendered in good faith.

 

2.6.1.9     TheArchitect shall render initial decisions on claims, disputes or other mattersin question between the Owner and Contractor as provided in the Contract Documents.However, the ~~Architect’s~~Owner’s decisions on matters relating toaesthetic effect shall be final, ~~if consistent with the intent expressed inthe Contract Documents.~~

 

2.6.2        EVALUATIONSOF THE WORK

2.6.2.1     TheArchitect, as a representative of the Owner, shall visit the site at intervalsappropriate to the stage of the Contractor’s operations, or as otherwise agreedby the Owner and the Architect in Article 2.8, (1) to become generally familiarwith and to keep the Owner informed about the progress and quality of theportion of the Work completed, (2) to endeavor

 

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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 shall not berequired to make exhaustive or continuous on-site inspections to check thequality or quantity of the Work. The Architect shall neither have control overor charge of, nor be responsible for, the construction means, methods,techniques, sequences or procedures, or for safety precautions and programs inconnection with the Work, since these are solely the Contractor’s rights andresponsibilities under the Contract Documents.

 

2.6.2.2     TheArchitect shall report to the Owner known deviations from the ContractDocuments and from the most recent construction schedule submitted by theContractor.  However, the Architectshall not be responsible for the Contractor’s failure to perform the Work inaccordance with the requirements of the Contract Documents. The Architect shallbe responsible for the Architect’s negligent acts or omissions, but shall nothave control over or charge of and shall not be responsible for acts oromissions of the Contractor, Subcontractors, or their agents or employees, orof any other persons or entities performing portions of the Work.

 

2.6.2.3     TheArchitect shall at all times have access to the Work wherever it is inpreparation or progress.

 

2.6.2.4     Exceptas otherwise provided in this Agreement or when direct communications have beenspecially authorized, the Owner shall endeavor to communicate with theContractor through the Architect about matters arising out of or relating tothe Contract Documents. Communications by and with the Architect’s consultantsshall be through the Architect.

 

2.6.2.5     TheArchitect shall have authority to reject Work that does not conform to theContract Documents. Whenever the Architect considers it necessary or advisable,the Architect will have authority to require inspection or testing of the Workin accordance with the provisions of the Contract Documents, whether or notsuch Work is fabricated, installed or completed. 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 Architect to the Contractor, Subcontractors, material and equipment suppliers,their agents or employees or other persons or entities performing portions ofthe Work.

 

2.6.3        CERTIFICATIONOF PAYMENTS TO CONTRACTOR

2.6.3.1     TheArchitect shall review and certify the amounts due the Contractor and shallissue Certificates for Payment in such amounts. The Architect’s certificationfor payment shall constitute a representation to the Owner, based on theArchitect’s evaluation of the Work as provided in Paragraph 2.6.2 and on thedata comprising the Contractor’s Application for Payment, that the Work hasprogressed to the point indicated and that, to the best of the Architect’sknowledge, information and belief, the quality of the Work is in accordancewith the Contract Documents. The foregoing representations are subject (1) to anevaluation of the Work for conformance with the Contract Documents uponSubstantial Completion, (2) to results of subsequent tests and inspections, (3)to correction of minor deviations from the Contract Documents prior tocompletion, and (4) to specific qualifications expressed by the Architect.

 

2.6.3.2     Theissuance of a Certificate for Payment shall not be a representation that theArchitect has (1) made exhaustive or continuous on-site inspections to checkthe quality or quantity of the Work, (2) reviewed construction means, methods,techniques, sequences or procedures, (3) reviewed copies of requisitionsreceived from Subcontractors and material suppliers and other data requested bythe Owner to substantiate the Contractor’s right to

 

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payment, or (4) ascertained how or for whatpurpose the Contractor has used money previously paid on account of theContract Sum.

 

2.6.3.3     TheArchitect shall maintain a record of the Contractor’s Applications for Payment.

 

2.6.4        SUBMITTALS

2.6.4.1     TheArchitect shall review and approve or take other appropriate action upon theContractor’s submittals such as Shop Drawings, Product Data and Samples, butonly for the limited purpose of checking for conformance with information givenand the design concept expressed in the Contract Documents. The Architect’saction shall be taken with such reasonable promptness as to cause no delay inthe Work or in the activities of the Owner, Contractor or separate contractors,while allowing sufficient time in the Architect’s professional judgment topermit adequate review. Review of such submittals is not conducted for thepurpose of determining the accuracy and completeness of other details such asdimensions and quantities, or for substantiating instructions for installationor performance of equipment or systems, all of which remain the responsibilityof the Contractor as required by the Contract Documents. 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 specificitem shall not indicate approval of an assembly of which the item is acomponent.

 

2.6.4.2     TheArchitect shall maintain a record of submittals and copies of submittalssupplied by the Contractor in accordance with the requirements of the ContractDocuments.

 

2.6.4.3     Ifprofessional design services or certifications by a design professional relatedto systems, materials or equipment are specifically required of the Contractorby the Contract Documents, the Architect shall specify appropriate performanceand design criteria that such services must satisfy. Shop Drawings and othersubmittals related to the Work designed or certified by the design professionalretained by the Contractor shall bear such professional’s written approval whensubmitted to the Architect. The Architect shall be entitled to rely upon theadequacy, accuracy and completeness of the services, certifications orapprovals performed by such design professionals.

 

2.6.5        CHANGESIN THE WORK

2.6.5.1     TheArchitect shall prepare Change Orders and Construction Change Directives forthe Owner’s approval and execution in accordance with the Contract Documents.The Architect, after obtaining the Owner’s approval, may authorize minorchanges in the Work not involving an adjustment in Contract Sum or an extensionof the Contract Time which are consistent with the intent of the Contract Documents.If necessary, the Architect shall prepare, reproduce and distribute Drawingsand Specifications to describe Work to be added, deleted or modified, asprovided in Paragraph 2.8.2.

 

2.6.5.2     TheArchitect shall review properly prepared, timely requests by the Owner orContractor for changes in the Work, including adjustments to the Contract Sumor Contract Time. A properly prepared request for a change in the Work shall beaccompanied by sufficient supporting data and information to permit theArchitect to make a reasonable determination without extensive investigation orpreparation of additional drawings or specifications. If the Architectdetermines that requested changes in the Work are not materially different fromthe requirements of the Contract Documents, the Architect may issue an orderfor a minor change in the Work or recommend to the Owner that the requestedchange be denied.

 

2.6.5.3     Ifthe Architect determines that implementation of the requested changes wouldresult in a material change to the Contract that may cause an adjustment in theContract Time

 

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or Contract Sum, the Architect shall make arecommendation to the Owner, who may authorize further investigation of suchchange. Upon such authorization, and based upon information furnished by theContractor, if any, the Architect shall estimate the additional cost and timethat might result from such change, including any additional costs attributableto a Change in Services of the Architect. With the Owner’s approval, theArchitect shall incorporate those estimates into a Change Order or otherappropriate documentation for the Owner’s execution or negotiation with theContractor.

 

2.6.5.4     TheArchitect shall maintain records relative to changes in the Work.

 

2.6.6        PROJECTCOMPLETION

2.6.6.1     TheArchitect shall conduct inspections to determine the date or dates ofSubstantial Completion and the date of final completion, shall receive from theContractor and forward to the Owner, for the Owner’s review and records,written warranties and related documents required by the Contractor Documentsand assembled by the Contractor, and shall issue a final Certificate forPayment based upon a final inspection indicating the Work complies with therequirements of the Contract Documents.

 

2.6.6.2     TheArchitect’s inspection shall be conducted with the Owner’s DesignatedRepresentative to check conformance of the Work with the requirements of theContract Documents and to verify the accuracy and completeness of the listsubmitted by the Contractor of Work to be completed or corrected.

 

2.6.6.3     Whenthe Work is found to be substantially complete, the Architect shall inform theOwner about the balance of the Contract Sum remaining to be paid theContractor, including any amounts needed to pay for final completion orcorrection of the Work.

 

2.6.6.4     TheArchitect shall receive from the Contractor and forward to the Owner:  (1) consent of surety or sureties, if any,to reduction in or partial release of retainage or the making of final paymentand (2) affidavits, receipts, releases and waivers of liens or bondsindemnifying the Owner against liens.

 

ARTICLE 2.7         FACILITYOPERATION SERVICES

2.7.1        TheArchitect shall meet with the Owner or the Owner’s Designated Representativepromptly after Substantial Completion to review the need for facility operationservices.

 

2.7.2        Uponrequest of the Owner, and prior to the expiration of one year from the date ofSubstantial Completion, the Architect shall conduct a meeting with the Ownerand the Owner’s Designated Representative to review the facility operations andperformance and to make appropriate recommendations to the Owner.

 

ARTICLE 2.8         SCHEDULE OFSERVICES

2.8.1        Designand Contract Administration Services beyond the following limits shall beprovided by the Architect as a Change in Services in accordance with Paragraph1.3.3:

.1                                       up to two (2) reviewsof each Shop Drawing, Product Data item, sample and similar submittal of theContractor.

.2                                       up to thirty two (32)visits to the site by the Architect (aggregate total number of visits by theArchitect and all of the Architect’s consultants) over the duration of theProject during construction.

.3                                       up to four (4)inspections (aggregate total number of inspections by the Architect and allof the Architect’s consultants) for any portion of the Work to

 

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determine whether such portionof the Work is substantially complete in accordance with the requirements ofthe Contract Documents.

.4                                       upto four ( 4 ) inspections (aggregate total number ofinspections by the Architect and all of the Architect’s consultants) forany portion of the Work to determine final completion.

 

The quantities of reviews, visits and inspections set forth in thisparagraph 2.8.1 are the reasonable expectations of the parties, and theArchitect will be entitled to be compensated as a Change in Service only ifthere is a material change, as agreed in good faith between the parties, insuch numbers of reviews, visits or inspections.

 

2.8.2        The following Design and ContractAdministration Services shall be provided by the Architect as a Change inServices in accordance with Paragraph 1.3.3:

.1                                       reviewof a Contractor’s submittal out of sequence from the submittal schedule agreedto by the Architect (other than out of sequence submittals, which may berequested by Architect or required for architect to conduct its duties underthis Agreement);

.2                                       responsesto the Contractor’s requests for information where such information isavailable to the Contractor from a careful study and comparison of the ContractDocuments, field conditions, other Owner-provided information,Contractor-prepared coordination drawings, or prior Project correspondence ordocumentation;

.3                                       ChangeOrders and Construction Change Directives requiring evaluation of proposals,including the preparation or revision of Instruments of Service;

.4                                       providingconsultation concerning replacement of Work resulting from fire or other causeduring construction;

.5                                       evaluationof an extensive number of claims submitted by the Owner’s consultants, theContractor or others in connection with the Work;

.6                                       evaluationof substitutions proposed by the Owner’s consultants or contractors and makingsubsequent revisions to Instruments of Service resulting therefrom;

.7                                       preparationof design and documentation for alternate bid or proposal requests proposed bythe Owner; or

.8                                       ContractAdministration Services provided 60 days after the date of SubstantialCompletion of the Work.

2.8.3        The Architect shall furnish or providethe following services only if specifically designated:

 
| **Services** |   | **Responsibility  *(Architect, Owner or Not Provided)*** |   | **Location of Service Description** |
|--------------|--------|----------------------------------------------------------|--------|-------------------------------------|
| .1           |   | Programming                                              |   | Owner                               |   |   |
| .2           |   | Land Survey  Services                                    |   | Owner                               |   |   |
| .3           |   | Geotechnical  Services                                   |   | Owner                               |   |   |
| .4           |   | Space  Schematics/Flow Diagrams                          |   | Architect                           |   |   |
| .5           |   | Existing  Facilities Surveys                             |   | Architect                           |   |   |
| .6           |   | Economic  Feasibility Studies                            |   | N/A                                 |   |   |
| .7           |   | Site  Analysis and Selection                             |   | N/A                                 |   |   |
| .8           |   | Environmental  Studies and                               |   | Owner                               |   |   |
|         |   |  Reports                                            |   |                                |   |   |

 

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| .9  |   | Owner-Supplied  Data Coordination         |   | Architect                                   |   |   |
|-----|--------|-------------------------------------------|--------|---------------------------------------------|--------|--------|
| .10 |   | Schedule  Development and Monitoring      |   | Owner’s  Construction Manager          |   |   |
| .11 |   | Civil Design                              |   | Architect                                   |   |   |
| .12 |   | Landscape  Design                         |   | Architect                                   |   |   |
| .13 |   | Interior  Design                          |   | Architect                                   |   |   |
| .14 |   | Special  Bidding or Negotiation           |   | N/A                                         |   |   |
| .15 |   | Value  Analysis                           |   | Owner                                       |   |   |
| .16 |   | Detailed  Cost Estimating                 |   | Owner’s  Construction Manager          |   |   |
| .17 |   | Full Time  On-Site Project Representation |   | Architect - if engaged as Change in Service |   |   |
| .18 |   | Construction  Management                  |   | Owner’s  Construction Manager          |   |   |
| .19 |   | Start-up  Assistance                      |   | N/A                                         |   |   |
| .20 |   | Record  Drawings                          |   | Architect - if engaged as Change in Service |   |   |
| .21 |   | Post-Contract  Evaluation                 |   | N/A                                         |   |   |
| .22 |   | Tenant-Related  Services                  |   | N/A                                         |   |   |
| .23 |   | Acoustical  Consultant                    |   | Architect                                   |   |   |
| .24 |   | Food Service  Consultant                  |   | Architect                                   |   |   |
| .25 |   | Technology  Consultant - Infrastructure   |   | N/A                                         |   |   |
| .26 |   | Technology  Consultant - Equipment        |   | N/A                                         |   |   |

 

Description ofServices.

*(Insert descriptions of the servicesdesignated.)*

 

ARTICLE 2.9         MODIFICATIONS

2.9.1        Modifications to this Standard Form ofArchitect’s Services:  Design andContract Administration, if any, are as follows:

 

ARTICLE 3.0         OTHER TERMS AND CONDITIONS

 

3.1           These Standard Terms and Conditions are attached to and partof the Agreement between Wheeling Island Gaming, Inc. (the Owner) and Jeter,Cook & Jepson Architects, Inc. (the Architect) dated 14 March 2002.  These Standard Terms and Conditions shallmodify and supersede any and all provisions and terms of the Agreement only tothe extent that any such provisions or terms are inconsistent.

 

3.2           The Architect’s services under this Agreement shall beperformed in an orderly succession as described above.  The Architect shall submit statementsmonthly for time and expenses expended in the course of its work on the Projectduring the previous month.  TheArchitect reserves the right to stop all work and that of its consultants ifany payment of fees and expenses is thirty (30) days past due, which is sixty(60) days after the date of invoice.

 

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3.3           When the Architectcompletes the Design Services, the Architect shall not proceed with ContractAdministration Services without written approval by the Owner and payment in fullof all fees and expenses then due.

 

3.4           The Architect shall,at the written request of the Owner, engage consultants in addition to thoselisted above, and the services rendered by such consultants shall be considereda Change in Services and shall be paid for by the Owner as prescribed inArticle 1.5.

 

3.5           The Owner andArchitect acknowledge that the Construction Documents prepared by the Architectwill generally describe the intended scope of work for the Project, and thatthe Contractor (engaged by the Owner to construct the Project) shall berequired to provide only those services that are expressly required by theContract Documents or are reasonably inferable from such documents as beingnecessary to produce the intended results. Consequently, the need may arise during the course of construction toadjust the Contract for Construction to reflect the cost of items that are notconsistent with or reasonably inferable from the Contract Documents.  In accordance with subparagraph 1.2.2.2 andparagraph 2.1.7, the Owner shall maintain a reasonable amount of contingencymonies to pay for change orders to the Contract for Construction and othercontingencies which impact the Project cost including, without limitation, suchitems as changes to the program or scope of the Project, items of additionalvalue that are not included in or may not be reasonably inferable from theContract Documents, and adjustments to allowance cost items carried in theProject budget or the Contractor’s bid amount. If any required item or component of the Project is omitted from theConstruction Documents, the Architect shall not be responsible for the cost ofadding such item or component to the extent that such item or component wouldhave been otherwise necessary to the Project or adds betterment or value to theProject.  In no event will the Architectbe responsible for any cost or expense that provides betterment, upgrade orenhancement to the Project.

 

3.6           The following is added to subparagraph 1.2.3.6: “TheArchitect will use professional efforts to identify laws, rules, andregulations which apply to the Project, to interpret the same in a reasonablemanner, to seek the advice of governmental officials and/or the Owner’s legalcounsel when questions of interpretation and/or applicability arise, and toproduce reports, plans, and or other documents which are consistenttherewith.  Having done so in accordancewith normal standards of good professional practice, the Architect will have metits obligations hereunder, and will not be responsible for contraryinterpretations or determination by enforcement authorities or others.”

 

3.7           The Owneracknowledges and agrees, and the Architect warrants and represents, that theArchitect maintains professional liability insurance in the amount of FiveMillion Dollars ($5,000,000.00) on a per project basis, and that theArchitect’s liability for damages or loss of any kind and for any reason,including, without limitation, negligence and breach of contract, shall notexceed the greater of the Architect’s total compensation for the Project(excluding reimbursements), or Five Million Dollars ($5,000,000.00), and theOwner expressly and irrevocably waives its rights to seek damages from theArchitect in excess of such amount.

 

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3.8           It is intended bythe parties to this Agreement that the Architect’s services in connection withthe project shall not subject the Architect’s individual employees, officers,or directors to any personal legal exposure for the risks associated with thisProject.  Therefore, and notwithstandinganything to the contrary contained herein, the Owner agrees that as the Owner’ssole and exclusive remedy, any claim, demand or suit shall be directed and/orasserted only against the Architect, a Connecticut corporation, and not againstany of the Architect’s employees, officers or directors.

 

3.9           The Owner agrees toextend any and all liability limitations and indemnifications provided by theOwner to the Architect to those individuals and entities the Architect retainsfor performance of the services under this Agreement, including but not limitedto the Architect’s officers and employees and their heirs and assigns, as wellas the Architect’s consultants and their officers, employees, heirs andassigns.

 

3.10         All duties andobligations undertaken by the parties pursuant to this Agreement shall be forthe sole and exclusive benefit of the Owner and the Architect, and no thirdparty is intended, nor shall be deemed, an express or implied beneficiary ofthis Agreement.

 

3.11         No claim or action ofany kind, regardless of form, may be brought against the Architect beyond thefirst to occur of (a) one year from the date that the Owner discovered orshould have discovered the grounds for any such claim or action or (b) fouryears after the date of Substantial Completion of the Project.

 

3.12         Services to beprovided under this Agreement shall include services rendered in connectionwith the building shell and all interior construction elements of a “built-in”nature.  Any and all services relatingto furnishings, fixtures and loose equipment (FF&E) provided by theArchitect shall be considered as a Change in Services and shall be paid for bythe Owner as prescribed in Article 1.5.

 

3.13         The following isadded to the end of paragraph 2.8.1: “The limits set forth above insubparagraphs 2.8.1.1 through 2.8.1.4 represent the aggregate totals in eachcategory to be provided by the Architect and the Architect’s consultants.”

 

3.14         If the Architect orany of the Architect’s consultants are requested to perform services, thatotherwise would not be required by the terms of this Agreement, then theArchitect, if it shall elect to provide such services, shall, upon priorauthorization from the Owner, proceed to provide such services.  Such services shall be considered a Changein Services and shall be paid for by the Owner as prescribed in Article 1.5.

 

3.15         The Architect agrees, to the fullest extent permitted bylaw, to indemnify and hold the Owner harmless from any damage, liability orcost (including reasonable attorneys’ fees and costs of defense) to the extentcaused by the Architect’s negligent acts, errors or omissions in theperformance of professional services under this Agreement and those of theArchitect’s consultants or anyone for whom the Architect is legally liable andarising from the Project that is the subject of this Agreement.  The Owner agrees, to the fullest extentpermitted by law, to indemnify and hold the Architect harmless from any damage,liability, or cost (includingreasonable attorneys’fees and costs of defense) to the extent caused by the Owner’s negligent acts,errors or omissions and those for whom the Owner is legally liable, and arisingfrom the Project that is the subject of this Agreement.  The Architect is not obligated to indemnifythe Owner in any manner whatsoever for the

 

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Owner’s own negligence, nor is the Owner obligated to indemnify theArchitect in any manner whatsoever for the Architect’s own negligence.

 

3.16         (Not used) 

 

3.17         Other than actions ordamages arising from the gross negligence or willfull misconduct of Architect,in no event shall the Architect, nor any of its consultants, agents oremployees be liable to the Owner or to anyone claming through the Owner for anypunitive, consequential or exemplary damages arising out of or in connectionwith the performance of Architect’s services under this Agreement, even if oneor both of the parties have been advised that such damages may occur.

 

3.18         The Owner agrees thatthe Architect will include the following clause in the construction documents:“The Architect’s comments made on the shop drawings, samples and/or othersubmittal data (hereinafter referred to as shop drawings) during reviews do notrelieve the Contractor from compliance with requirements of the drawings andspecifications and other Contract Documents. Comments made which are construed by the Contractor as altering thecontract sum must be reported to the Architect and Owner immediately. No workaction may be taken until resolution and written consent of Owner.  Any work not shown on shop drawings which isshown in the Contract Documents remains part of the project requirements.  Comments made by the Architect upon the shopdrawings do not constitute authorship on the part of the Architect.  The Architect is not responsible forcompleteness of the shop drawings nor as such shall the shop drawings supersedethe requirements of the Contract Documents. The Architect’s review is fordetermining general design conformance with the information given in theContract Documents. The Contractor is responsible for: determining quantities;confirming and correlating dimensions; selecting fabrication processes andtechniques of construction; coordination of all of the work; overseeing safety;and executing the work in a satisfactory manner.

 

3.19         The Owner agrees thatthe Architect will include a requirement in the Construction Documents that theContractor will review any requests for information (RFIs) submitted bysubcontractors prior to submission to the Architect to ensure such RFIs are notalready clearly and unambiguously answered in the Contract Documents. It willalso be required in the construction documents that the Architect shall be paidbe the Contractor for the Architect’s time and expenses in reviewing RFIs whichare already clearly answered or inferable from the Contract Documents inaccordance with the Architect’s standard rates. The mechanism for such paymentsby the Contractor to the Architect will be through the Owner. In the event of adisagreement over such compensation, the judgment of the Owner’s representativeshall prevail.

 

3.20         The Owner may electto engage the services of third party to act as “Owner Representative” or“Clerk of the Works” during the Construction of the Project. In that event,such engagement shall not replace or otherwise usurp the Owner entitydesignated in subparagraph 1.1.3.1 and the Owner and the Architect agree thatappropriate protocol for communication shall be established so as to avoidconflict with subparagraph 2.6.2.4 of this Agreement or any provision of theContract Documents.

 

3.21         Engineering servicesas described elsewhere in this Agreement as being the 

 

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responsibility of the Architect shall be included as Basic Services.The Architect shall provide such Engineering services, which the Architectagrees shall be performed by a Registered Engineer licensed to practice in theState of West Virginia.  SuchEngineering services shall be consistent with the scope described in Articles2.1 through 2.9 of this Agreement.

 

3.22         With respect toproducts, materials or processes containing hazardous materials such as(without limitation) asbestos, asbestos products, polychlorinated biphenyl(PCB), or other toxic substances, the Owner hereby agrees that no claim orother action may be brought against the Architect, its principals, employees,agents or consultants if such claim or action is based on, relates to, orotherwise arises out of the Architect’s performance of or failure to performservices in connection with the investigation, detection, abatement,replacement or removal of such hazardous materials or processes unless itarises out of the gross negligence, intentional tort, or willful misconduct ofArchitect.  The Owner further agrees toindemnify and to hold the Architect and its principals, employees, agents and consultantsharmless from and against any and all manner of actions, suits, claims,liabilities, obligations, losses, damages, costs, and expenses (includingattorney’s fees) to which the Architect may be subject as a result of, inconnection with or arising out of any such claim or action brought by any thirdparty.

 

3.23         The Owner understandsand agrees that products or building materials which are permissible undercurrent building codes, practices and ordinances may, at some future date, bebanned or limited in use in the construction industry because of presentlyunknown hazardous or defective characteristics.  The Architect shall use professional efforts, during the term ofthis Agreement, to inform the Owner of any product or material specified for thisproject which the Architect becomes aware is a known or suspected health orsafety hazard, or is otherwise defective (“Potentially HazardousProducts”).  The Owner agrees that ifthe Owner directs the Architect to specify any product or material, after theArchitect has informed the Owner that such product or material may not besuitable or may embody characteristics that are suspected of causing or maycause the product or material to be considered a hazardous or defectivesubstance in the future, the Owner waives all claims as a result thereofagainst the Architect.  The Ownerfurther agrees that if any product or material specified for this Project bythe Architect shall, at any future date, after Architect has used itsprofessional efforts to identify such Potentially Hazardous Products, be suspectedor discovered to be a health or safety hazard, or otherwise defective, then theOwner shall waive all claims as a result thereof against the Architect.  In addition, the Owner agrees, to thefullest extent permitted by law, to indemnify and hold the Architect harmlessfrom any damage, liability or cost (including reasonable attorney’s fees anddefense costs) arising in any way from the specification or use of any productsor materials which, at any future date, after Architect has used its professionalefforts to identify such Potentially Hazardous Products, become known orsuspected health or safety hazards, or defective, whether unknown to theArchitect during the term of this Agreement or of which the Architect haswarned the Owner, excepting only those damages, liabilities or costattributable to the gross negligence, intentional tort or willful misconduct ofthe Architect.

 

3.24         Notwithstandinganything to the contrary in paragraphs 1.3.4 or 1.3.5, any mediation orarbitration proceeding arising out of or relating to this Agreement shall beheld at a site manually agreeable to the parties to this Agreement, and failingsuch Agreement, at a site

 

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chosen by the Mediator or 

Arbitrator, as the case may be.

 

3.25         Notwithstandinganything to the contrary in paragraph 1.2.2 if the Owner is either a general orlimited partnership, all of the Owner’s general partners shall be deemed aparty to this Agreement, and any or all of such general partners may be namedparties to any mediation or arbitration held pursuant to this Agreement.

 

3.26         Upon the Architect’srequest, the Owner shall provide proof of its authorization to enter into thisAgreement and proof of the authority of the undersigned to execute thisAgreement on behalf of the Owner, all in a form satisfactory to theArchitect.  Upon the Owner’s request,the Architect shall provide proof of its authorization to enter into thisAgreement and proof of the authority of the undersigned to execute thisAgreement on behalf of the Architect, all in a form satisfactory to the Owner.

 

3.27         Services provided bythe Architect under this Agreement will be performed in a manner consistentwith that degree of care and skill ordinarily exercised by members of the sameprofession currently practicing under similar circumstances.

 

3.28         The Architect is notresponsible for delays caused by factors beyond the Architect’s reasonablecontrol, including but not limited to delays because of strikes, lockouts, workslowdowns or stoppages, accidents, acts of God, failure of any governmental orother regulatory authority to act in a timely manner, failure of the Owner tofurnish timely information or approve or disapprove of the Architect’s servicesor work product promptly, or delays caused by faulty performance by the Owneror by contractors of any level. When such delays beyond the Architect’sreasonable control occur, the Owner agrees the Architect is not responsible fordamages other than those attributable to the gross negligence, intentionaltort, or willful misconduct of Architect, nor shall the Architect be deemed tobe in default of this Agreement.

 

3.29         In consideration ofthe benefits to the Owner of employing the fast track process (in which some ofthe Architect’s design services overlap the construction work and are out ofsequence with the traditional project delivery method), and in recognition ofthe inherent risks of fast tracking to the Architect, the Owner agrees tocompensate the Architect for all Changes in Services required to modify,correct, or adjust the Construction Documents and coordinate them in order tomeet the Owner’s program requirements resulting from the Owner’s to constructdecision, the Project in a fast track manner.

 

3.30         Neither the professionalactivities of the Architect, nor the presence of the Architect or theArchitect’s employees and consultants at a construction site, shall relieve theGeneral Contractor or Construction Manager and any other entity of theirobligations, duties and responsibilities including, but not limited toconstruction means, methods, sequence, techniques or coordinating all portionsof the Work of construction in accordance with the contract documents and anyhealth or safety precautions required by any regulatory agencies. The Architectand the Architect’s personnel have no authority to exercise any control overany construction contractor or other entity or their employees in connectionwith their work or any health or safety precautions. The Owner agrees that theGeneral Contractor or Construction Manager is solely responsible for jobsitesafety, and

 

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warrants that this intent shall be made evident in the Owner’sagreement with the General Contractor, or Construction Manager.  The Owner also agrees that the Owner, theArchitect and the Architect’s consultants shall be made additional insuredsunder the General Contractor’s or Construction Manager’s general liability insurancepolicy.

 

3.31         The Architect shall assistthe Owner in applying for those permits and approvals typically required by lawfor projects similar to the one for which the Architect’s services are beingengaged.  This assistance consists ofcompleting and submitting forms as to the results of certain work included inthe scope of services.  This assistancedoes not include, however, special studies, special research, attendance atmeetings with public authorities for more than the $12,000.00 allowance stipulatedin the attached exhibit entitled: “Wheeling Downs Racetrack & GamingCenter, Phase II A/E Design Cost Schedule” dated 6 March 2002, special testingor special documentation not normally required for this type of project.  The Architect will provide such specialservices as a Change in Service to be authorized by the Owner.

 

3.32         (Not used)

 

3.33         (Not used)

 

3.34         (Not used)

 

3.35         In the event theOwner consents to, allows, authorizes or approves of changes to any plans,specifications or other construction documents, and these changes are notapproved in writing by the Architect, the Owner recognizes that such changesand the results thereof are not the responsibility of the Architect.  Therefore, the Owner agrees to release theArchitect from any liability arising from the construction, use or result ofsuch changes. In addition, the Owner agrees to the fullest extent permitted bylaw, to indemnify and hold the Architect harmless from any damage, liability orcost (including reasonable attorney’s fees and costs of defense) arising fromsuch changes, except only those damages, liabilities and costs arising from thegross negligence, intentional tort or willful misconduct of the Architect.

 

3.36         If the Owner retainsthe services of a Value Engineer (VE) to review the Construction Documents preparedfor this project by the Architect, it shall be at the Owner’s sole expense andshall be performed in a timely manner so as not to delay the orderly progressof the Architect’s services. All recommendations of the VE shall be given tothe Architect for review, and adequate time will be provided for the Architectto respond to these recommendations. The architect shall be compensated as aChange in Service, as provided for herein, for all time spent to review therecommendations of the VE and to incorporate those accepted by both the Ownerand the Architect.  If the Architectobjects to any recommendations made by the VE, the Architect shall so state inwriting to the Owner, along with the Architect’s reasons for itsobjection.  If the Owner insists on incorporatingin the Construction Documents any changes to which the Architect has objectedin writing, the Owner agrees to the fullest extent permitted by law, toindemnify and hold the Architect harmless from any damage, liability or cost(including reasonable attorneys’ fees and costs of defense) which arise inconnection with or as a result of the incorporation of such design changesinsisted upon by the Owner.

 

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3.37         In accepting and utilizing any drawings or other data on anyform of electronic media generated and provided by the Architect, the Ownercovenants and agrees that all such drawings and data are instruments of serviceof the Architect, who shall be deemed the author of the drawings and data, andshall retain all common law, statutory law and other rights, includingcopyrights.  The electronic filessubmitted by the Architect to the Owner are submitted for an acceptance periodof seven (7) days.  Any defects theOwner discovers during this period will be reported to the Architect and willbe corrected as part of the Architect’s Basic Scope of Services.  Correction of defects detected and reportedafter the acceptance period will be compensated for as Additional Services.

 

The Owner further agrees not to use these drawings and data, in wholeor in part, for any purpose or project other than the Project which it is thesubject of this Agreement, except as permitted under Section 1.3.2.5hereof.  The Owner agrees to waive allclaims against the Architect resulting in any way from any unauthorized changesor reuse of the drawings and data for this Project or any other project byanyone other than the Architect.

 

In addition, the Owner agrees, to the fullest extent permitted by law,to indemnify and hold the Architect harmless from any damage, liability orcost, including reasonable attorney’s fees and costs of defense, arising fromany changes made by anyone other than the Architect or from any reuse of thedrawings and data without the prior written consent of the Architect.

 

Under no circumstances shall transfer of the drawings and otherinstruments of service on electronic media for use by the Owner be deemed asale by the Architect, and the Architect makes no warrants, either express orimplied of merchantability and fitness for any particular purpose.

 

Notwithstanding anything in this Agreement to the contrary, Owner mayrequest and Architect shall provide, the Instruments of Service in electronicmedia form (AutoCAD 2000), and unless otherwise agreed upon in writing betweenOwner and Architect, any Instruments of Service in electronic media form shallbe subject to paragraph 1.3.2.5 et seq. of this Agreement.

 

3.38         The Americans withDisabilities Act (ADA) provides that it is a violation of the ADA to design andconstruct a facility for first occupancy later than January 26, 1993, that doesnot meet the accessibility and usability requirements.  The Owner acknowledges that the requirementsof the ADA will be the subject to various and possibly contradictoryinterpretations.

 

ADA also requires the removal of architectural barriers in existingfacilities where such removal is readily achievable.  The Owner acknowledges that the definition of “readilyachievable” contained in the ADA is flexible and subject to interpretation on acase-by-case basis.

 

Further, ADA provides that alterations to a facility must be made insuch a manner that, to the maximum extent feasible, the altered portions of thefacility are readily accessible to and by individuals with disabilities.  The Owner acknowledges that the requirementsof the ADA will be subject to various and possibly contradictoryinterpretations.

 

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The Architect, therefore, will use reasonable professional efforts tointerpret applicable ADA requirements and other federal, state and local laws,rules, codes, ordinances and regulations as they apply to the project.  The Architect, however, cannot and does notwarrant or guarantee that the Owner’s project will comply with interpretationsof the ADA requirements and/or the requirements of other federal, state andlocal laws, rules, codes, ordinances and regulations as they apply to theProject.

 

It is recognized that the Ownerfaces certain obligations under the Americans with Disabilities Act (ADA) thatcould affect the design of this Project. It is further recognized that the ADA is federal civil rightslegislation that is not part of, or known to be compatible with, state or locallaw, codes, and regulations governing construction.  Consequently, the Architect will be unable to makerecommendations or professional determinations that will ensure compliance withthe ADA or guarantee that all design decisions will conform to the ADA standardof “reasonable accommodation.”  TheArchitect strongly advises the Owner to obtain appropriate legal counsel withrespect to compliance with the ADA.

 

The Architect will endeavor todesign for accessibility by the disabled in conformance with any applicableprovisions in or references by applicable state or local building codes.  The Architect further agrees to include inthe design such provisions for the disabled as the Owner may request inresponse to the ADA, provided such requests are timely made, technicallyachievable, and in conformance with all other pertinent codes and regulations.

 

3.39         (Not used)

 

3.40         If the Architect for any reason does not complete all theservices contemplated by this Agreement, the Architect shall not be responsiblefor the accuracy, completeness or workability of the Contract Documentsprepared by the Architect changed or completed by the Owner or by anotherparty.  Accordingly, the Owner agrees,to the fullest extent permitted by law, to indemnify and hold the Architectharmless from any claim, liability or cost (including reasonable attorneys'fees and defense costs) for injury or loss arising or allegedly arising fromsuch completion or any unauthorized changes made by any party to any contractdocuments prepared by the Architect.

 

3.41         Both parties acknowledge and agree that this Agreement hasbeen freely negotiated by both parties, and that, in any dispute over themeaning, interpretation, validity or enforceability of this Agreement or any ofits terms or conditions, there shall be no presumption whatsoever againsteither party by virtue of that party having drafted this Agreement or anyportion thereof.

 

33

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By its execution, this Standard Form ofArchitect’s Services:  Design andContract Administration and modifications hereto are incorporated into theStandard Form of Agreement Between the Owner and Architect, AIA DocumentB141-1997, that was entered into by the parties as of the date: 14 March2002.

 
| /s/ Terry C. Burton                                                 |                       | /s/ Peter N. Stevens |   |
|---------------------------------------------------------------------|----------------------------|----------------------|--------|
| OWNER *(Signature)*                                                 | ARCHITECT *(Signature)*    |
| Terry C. Burton, Asst. General CounselWheeling Island Gaming,  Inc. | Peter N. StevensPresident  |
| *(Printed name and title)*                                          | *(Printed name and title)* |

 

34

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**ATTACHMENT I**                                        1997Edition - Electronic Format

 

AIA Document A201 - 1997

 

***General Conditions of the Contract forConstruction***

 

**TABLEOF ARTICLES**

 

1.             GENERAL PROVISIONS

 

2.             OWNER

 

3.             CONTRACTOR

 

4.             ADMINISTRATION OF THE CONTRACT

 

5.             SUBCONTRACTORS

 

6.             CONSTRUCTION BY OWNER OR BYSEPARATE CONTRACTORS

 

7.             CHANGES IN THE WORK

 

8.             TIME

 

9.             PAYMENTS AND COMPLETION

 

10.           PROTECTION OF PERSONS AND PROPERTY

 

11.           INSURANCE AND BONDS

 

12.           UNCOVERING AND CORRECTION OF WORK

 

13.           MISCELLANEOUS PROVISIONS

 

14.           TERMINATION OR SUSPENSION OF THECONTRACT

 

**INDEX**
| Acceptance  of Nonconforming Work

        9.6.6, 9.9.3, 12.3                       |       9.5.1, 10.2.5, 13.4.2, 13.7, 14.1                               |
|------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------|
| Acceptance  of Work

        9.6.6, 9.8.2, 9.9.3, 9.10.1, 9.10.3, 12.3              | Addenda

      1.1.1, 3.11                                            |
| Access to  Work

        3.16, 6.2.1, 12.1                                          | Additional Costs, Claims for

      4.3.4, 4.3.5, 4.3.6,  6.1.1, 10.3 |
| Accident  Prevention

        4.2.3, 10                                             | Additional Inspections and Testing

      9.8.3, 12.2.1, 13.5         |
| 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, | 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 IMPORTANT LEGAL CONSEQUENCES.  CONSULTATION WITH AN ATTORNEY IS  ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION.  AUTHENTICATION OF THIS ELECTRONICALLY  DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401.* |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                                                                                                                                           |
| *This document has been approved and endorsed by The Associated  General Contractors of America.*                                                                                                                                                              |
|                                                                                                                                                                                                                                                           |
| **[LOGO]**                                                                                                                                                                                                                                                     |
|                                                                                                                                                                                                                                                           |
| © 1997 AIA®  AIA DOCUMENT A201 - 1997  GENERAL CONDITIONS OF THE  CONTRACT FOR CONSTRUCTION                                                                                                                                                          |
|                                                                                                                                                                                                                                                           |
| The American  Institute of Architects  1735 New York Avenue, N.W.  Washington, D.C. 20006-5292                                                                                                                                                                 |

 

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©  Copyright 1911, 1915, 1918, 1925, 1937,1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987, 1997 by The AmericanInstitute of Architects.  FifteenthEdition.  Reproduction of the materialherein or substantial quotation of its provisions without written permission ofthe AIA violates the copyright laws of the United States and will subject theviolate to legal prosecution.  WARNING:Unlicensed photocopying violates U.S. copyright laws and will subject theviolator to legal prosecution.  Thisdocument was electronically produced with permission of the AIA and can bereproduced in accordance with your license without violation until the date ofexpiration as noted below. expiration as noted below.  User Document:wheeling-generalconditions-final-06192002-with-font-corrected.aia —6/19/2002.  AIA License Number 1006422,which expires on 1/15/2003.

 

35

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| Advertisement  or Invitation to Bid

1.1.1

Aesthetic  Effect

4.2.13, 4.5.1

Allowances

3.8

All-risk  Insurance

11.4.1.1

Applications  for Payment

4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5,

9.10, 11.1.3, 14.2.4, 14.4.3

Approvals

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

13.5

Arbitration

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

Architect

4.1

Architect,  Definition of

4.1.1

Architect,  Extent of Authority

2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2, 7.3.6,

7.4, 9.2, 9.3.1, 9.4, 9.5, 9.8.3, 9.10.1, 9.10.3, 12.1,

12.2.1, 13.5.1, 13.5.2, 14.2.2, 14.2.4

Architect,  Limitations of Authority and

Responsibility

2.1.1, 3.3.3, 3.12.4, 3.12.8, 3.12.10, 4.1.2, 4.2.1,

4.2.2, 4.2.3, 4.2.6, 4.2.7, 4.2.10, 4.2.12, 4.2.13,   4.4, 5.2.1, 7.4, 9.4.2, 9.6.4, 9.6.6

Architect’s  Additional Services and Expenses

2.4, 11.4.1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4

Architect’s  Administration of the Contract

3.1.3, 4.2, 4.3.4, 4.4, 9.4, 9.5

Architect’s  Approvals

2.4, 3.1.3, 3.5.1, 3.10.2, 4.2.7

Architect’s  Authority to Reject Work

3.5.1, 4.2.6, 12.1.2, 12.2.1

Architect’s  Copyright

1.6

Architect’s  Decisions

4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1,

4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2,

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

Architect’s  Inspections

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

Architect’s  Instructions

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

Architect’s  Interpretations

4.2.11, 4.2.12, 4.3.6

Architect’s  Project Representative

4.2.10

Architect’s  Relationship with Contractor

1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.3, 3.4.2,

3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3,   4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, | 9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3,

11.4.7, 12, 13.4.2, 13.5

Architect’s  Relationship with Subcontractors

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

Architect’s  Representations

9.4.2, 9.5.1, 9.10.1

Architect’s  Site Visits

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

9.10.1, 13.5

Asbestos

10.3.1

Attorneys’  Fees

3.18.1, 9.10.2, 10.3.3

Award of  Separate Contracts

6.1.1, 6.1.2

Award of  Subcontracts and Other Contracts for

Portions of  the Work

5.2

Basic  Definitions

1.1

Bidding  Requirements

1.1.1, 1.1.7, 5.2.1, 11.5.1

Boiler and  Machinery Insurance

11.4.2

Bonds, Lien

9.10.2

Bonds,  Performance, and Payment

7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5

Building  Permit

3.7.1

Capitalization

1.3

Certificate  of Substantial Completion

9.8.3, 9.8.4, 9.8.5

Certificates  for Payment

4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1,

9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4

Certificates  of Inspection, Testing or Approval

13.5.4

Certificates  of Insurance

9.10.2, 11.1.3

Change  Orders

1.1.1, 2.4.1, 3.4.2, 3.8.2.3, 3.11.1, 3.12.8, 4.2.8,

4.3.4, 4.3.9, 5.2.3, 7.1, 7.2, 7.3, 8.3.1, 9.3.1.1,

9.10.3, 11.4.1.2, 11.4.4, 11.4.9, 12.1.2

Change  Orders, Definition of

7.2.1

CHANGES IN  THE WORK

3.11, 4.2.8, 7, 8.3.1, 9.3.1.1, 11.4.9

Claim,  Definition of

4.3.1

Claims and  Disputes

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

9.10.4, 10.3.3

Claims and  Timely Assertion of Claims |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

36

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| 4.6.5

Claims for  Additional Cost

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

Claims for  Additional Time

3.2.3, 4.3.4, 4.3.7, 6.1.1, 8.3.2, 10.3.2

Claims for  Concealed or Unknown Conditions

4.3.4

Claims for  Damages

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

Claims  Subject to Arbitration

4.4.1, 4.5.1, 4.6.1

Cleaning Up

3.15, 6.3

Commencement  of Statutory Limitation Period

13.7

Commencement  of the Work, Conditions

Relating to

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

Commencement  of the Work, Definition of

8.1.2

Communications  Facilitating Contract

Administration

3.9.1, 4.2.4

Completion,  Conditions Relating to

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

COMPLETION,  PAYMENTS AND

9

Completion,  Substantial

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

Compliance  with Laws

1.6.1, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8,

4.6.4, 4.6.6, 9.6.4, 10.2.2, 11.1, 11.4, 13.1, 13.4,

13.5.1, 13.5.2, 13.6, 14.1.1, 14.2.1.3

Concealed or  Unknown Conditions

4.3.4,  8.3.1, 10.3

Conditions  of the Contract

1.1.1,  1.1.7, 6.1.1, 6.1.4

Consent,  Written

1.6, 3.4.2,  3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2,

9.8.5,  9.9.1, 9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2

CONSTRUCTION  BY OWNER OR BY

SEPARATE  CONTRACTORS

1.1.4, 6

Construction  Change Directive, Definition of

7.3.1

Construction  Change Directives

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

Construction  Schedules, Contractor’s

1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3 | Contingent  Assignment of Subcontracts

5.4, 14.2.2.2

Continuing  Contract Performance

4.3.3

Contract,  Definition of

1.1.2

CONTRACT,  TERMINATION OR

SUSPENSION  OF THE

5.4.1.11, 11.4.9, 14

Contract  Administration

3.1.3, 4, 9.4, 9.5

Contract  Award and Execution, Conditions

Relating to

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

Contract  Documents, The

1.1, 1.2

Contract  Documents, Copies Furnished and Use

of

1.6, 2.2.5, 5.3

Contract  Documents, Definition of

1.1.1

Contract Sum

3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, 9.1,

9.4.2, 9.5.1.4, 9.6.7, 9.7, 10.3.2, 11.4.1, 14.2.4,

14.3.2

Contract  Sum, Definition of

9.1

Contract  Time

4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4, 8.1.1,

8.2, 8.3.1, 9.5.1, 9.7, 10.3.2, 12.1.1, 14.3.2

Contract  Time, Definition of

8.1.1

CONTRACTOR

3

Contractor,  Definition of

3.1, 6.1.2

Contractor’s  Construction Schedules

1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3

Contractor’s  Employees

3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2,

10.3, 11.1.1, 11.4.7, 14.1, 14.2.1.1

Contractor’s  Liability Insurance

11.1

Contractor’s  Relationship with Separate

Contractors  and Owner’s Forces

3.12.5, 3.14.2, 4.2.4, 6.11.4.7, 12.1.2, 12.2.4

Contractor’s  Relationship with Subcontractors

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

Contractor’s  Relationship with the Architect

1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2,

3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3,   4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2,   9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3,

  |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

37

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| 11.4.7, 12, 13.4.2, 13.5

Contractor’s  Representations

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

Contractor’s  Responsibility for Those

Performing  the Work

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

10

Contractor’s  Review of Contract Documents

1.5.2, 3.2, 3.7.3

Contractor’s  Right to Stop the Work

9.7

Contractor’s  Right to Terminate the Contract

4.3.10, 14.1

Contractor’s  Submittals

3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3,

9.8.2, 9.8.3, 9.9.1, 9.10.2, 9.10.3, 11.1.3, 11.5.2

Contractor’s  Superintendent

3.9, 10.2.6

Contractor’s  Supervision and Construction

Procedures

1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3,

6.2.4, 7.1.3, 7.3.4, 7.3.6, 8.2, 10, 12, 14

Contractual  Liability Insurance

11.1.1.8, 11.2, 11.3

Coordination  and Correlation

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

Copies  Furnished of Drawings and

Specifications

1.6, 2.2.5, 3.11

Copyrights

1.6, 3.17

Correction  of Work

2.3, 2.4, 3.7.4, 4.2.1, 9.4.2, 9.8.2, 9.8.3, 9.9.1,

12.1.2, 12.2, 13.7.1.3

Correlation  and Intent of the Contract

Documents

1.2

Cost,  Definition of

7.3.6

Costs

2.4, 3.2.3, 3.7.4, 3.8.2, 3.15.2, 4.3, 5.4.2, 6.1.1,

6.2.3, 7.3.3.3, 7.3.6, 7.3.7, 7.3.8, 9.10.2, 10.3.2,

10.5, 11.3, 11.4, 12.1, 12.2.1, 12.2.4, 13.5.14

Cutting and  Patching

6.2.5, 3.14

Damage to  Construction of Owner or Separate

Contractors

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

11.4, 12.2.4

Damage to  the Work

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

Damage,  Claims for

3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3,

11.1.1, 11.4.5, 11.4.7, 14.1.3, 14.2.4

Damages for  Delay

6.1.1, 8.3.3, 9.5, 1.6, 9.7, 10.3.2 | Date of  Commencement of the Work,

Definition  of

8.1.2

Date of  Substantial Completion, Definition of

8.1.3

Day,  Definition of

8.1.4

Decision of  the Architect

4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1,

4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2,

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

Decisions to  Withhold Certification

9.4.1, 9.5, 9.7, 14.1.1.3

Defective or  Nonconforming Work, Acceptance,

Rejection  and Correction of

2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.5.2, 9.6.6,

9.8.2, 9.9.3, 9.10.4, 12.2.1, 13.7.1.3

Defective  Work, Definition of

3.5.1

Definitions

1.1, 2.1.1, 3.1, 3.5.1, 3.12.1, 3.12.2, 3.12.3, 4.1.1,

4.3.1, 5.1, 6.1.2, 7.2.1, 7.3.1, 7.3.6, 8.1, 9.1, 9.8.1

Delays and  Extensions of Time

3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1,

7.4.1, 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 the Site

3.11

Drawings,  Definition of

1.1.5

Drawings and  Specifications, Use and

Ownership of

1.1.1, 1.3, 2.2.5, 3.11, 5.3

Effective  Date of Insurance

8.2.2, 11.1.2

Emergencies

4.3.5, 10.6, 14.1.1.2

Employees,  Contractor’s

3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2,

10.3, 11.1.1, 11.4.7, 14.1, 14.2.1.1

Equipment,  Labor, Materials and

1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1,

4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3,

9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2

Execution  and Progress of the Work

1.1.3, 1.2.1, 1.2.2, 2.2.3, 2.2.5, 3.1, 3.3, 3.4, 3.5, 3.7,

3.10, 3.12, 3.14, 4.2.2, 4.2.3, 4.3.3, 6.2.2, 7.1.3,

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

Extensions  of Time

3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3,

7.4.1, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2

Failure of  Payment

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

Faulty Work |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

38

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| (See Defective or Nonconforming Work)

Final  Completion and Final Payment

4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1

11.4.5, 12.3.1, 13.7, 14.2.4, 14.4.3

Financial  Arrangements, Owner’s

2.2.1, 13.2.2, 14.1.1.5

Fire and  Extended Coverage Insurance

11.4

GENERAL  PROVISIONS

1

Governing  Law

13.1

Guarantees  (See Warranty)

Hazardous  Materials

10.2.4, 10.3, 10.5

Identification  of Contract Documents

1.5.1

Identification  of Subcontractors and Suppliers

5.2.1

Indemnification

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

Information  and Services Required of the Owner

2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3,

6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3,

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

Injury or  Damage to Person or Property

4.3.8, 10.2, 10.6

Inspections

3.1.3, 3.3.3, 3.7.1, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.2,

9.8.3, 9.9.2, 9.10.1, 12.2.1, 13.5

Instructions  to Bidders

1.1.1

Instructions  to the Contractor

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

Insurance

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

9.10.2, 9.10.5, 11

Insurance,  Boiler and Machinery

11.4.2

Insurance,  Contractor’s Liability

11.1

Insurance,  Effective Date of

8.2.2, 11.1.2

Insurance,  Loss of Use

11.4.3

Insurance,  Owner’s Liability

11.2

Insurance,  Project Management Protective

Liability

11.3

Insurance,  Property

10.2.5, 11.4

Insurance,  Stored Materials

9.3.2, 11.4.1.4 | INSURANCE  AND BONDS

11

Insurance  Companies, Consent to Partial

Occupancy

9.9.1, 11.4.1.5

Insurance  Companies, Settlement with

11.4.10

Intent of  the Contract Documents

1.2.1, 4.2.7, 4.2.12, 4.2.13, 7.4

Interest

13.6

Interpretation

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

Interpretations,  Written

4.2.11, 4.2.12, 4.3.6

Joinder and  Consolidation of Claims Required

4.6.4

Judgment on  Final Award

4.6.6

Labor and  Materials, Equipment

1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13,

3.15.1, 42.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3,

9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14.2.1.2

Labor  Disputes

8.3.1

Laws and  Regulations

1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6,

9.6.4, 9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1,

13.5.2, 13.6, 14

Liens

2.1.2, 4.4.8, 8.2.2, 9.3.3, 9.10

Limitation  on Consolidation or Joinder

4.6.4

Limitations,  Statutes of

4.6.3, 12.2.6, 13.7

Limitations  of Liability

2.3, 3.2.1, 3.5.1, 3.7.3, 3.12.8, 3.12.10, 3.17, 3.18,   4.2.6, 4.2.7, 4.2.12, 6.2.2, 9.4.2, 9.6.4, 9.6.7,   9.10.4, 10.3.3, 10.2.5, 11.1.2, 11.2.1, 11.4.7, 12.2.5,   13.4.2

Limitations  of Time

*2.1.2,  2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1,   4.2.7, 4.3.4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3,   7.4, 8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8,   9.9, 9.10, 11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5,   13.7, 14*

Loss of Use  Insurance

11.4.3

Material  Suppliers

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

9.10.5

Materials  Hazardous

10.2.4, 10.3, 10.5

Materials,  Labor, Equipment and

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

 

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

Means,  Methods, Techniques, Sequences and Procedures of Construction

3.3.1, 3.12.10, 4.2.2, 4.2.7, 9.4.2

Mechanic’s  Lien

4.4.8

Mediation

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

Minor  Changes in the Work

1.1.1, 3.12.8, 4.2.8, 4.3.6, 7.1, 7.4

MISCELLANEOUS  PROVISIONS

13

Modifications,  Definition of

1.1.1

Modifications  to the Contract

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

Mutual  Responsibility

6.2

Nonconforming  Work, Acceptance of

9.6.6, 9.9.3, 12.3

Nonconforming  Work, Rejection and

Correction  of

2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.8.2, 9.9.3,

9.10.4, 12.2.1, 13.7.1.3

Notice

2.2.1, 2.3, 2.4, 3.2.3, 3.3.1, 3.7.2, 3.7.4, 3.12.9, 4.3,   4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 11.1.3,   11.4.6, 12.2.2, 12.2.4, 13.3, 13.5.1, 13.5.2, 14.1, 14.2

Notice,  Written

2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8,

4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3,

11.4.6, 12.2.2, 12.2.4, 13.3, 14

Notice of  Testing and Inspections

13.5.1, 13.5.2

Notice to  Proceed

8.2.2

Notices,  Permits, Fees and

2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2

Observations,  Contractor’s

1.5.2, 3.2, 3.7.3, 4.3.4

Occupancy

2.2.2, 9.6.6, 9.8, 11.4.1.5

Orders,  Written

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

13.5.2, 14.3.1

OWNER

2

Owner,  Definition of

2.1

Owner,  Information and Services Required of

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

Owner’s  Authority

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

Owner’s  Financial Capability

2.2.1, 13.2.2, 14.1.1.5

Owner’s  Liability Insurance

11.2

Owner’s Loss  of Use Insurance

11.4.3

Owner’s  Relationship with Subcontractors

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

Owner’s  Right to Carry Out the Work

2.4, 12.2.4, 14.2.2.2

Owner’s  Right to Clean Up

6.3

Owner’s  Right to Perform Construction and to

Award  Separate Contracts

6.1

Owner’s  Right to Stop the Work

2.3

Owner’s  Right to Suspend the Work

14.3

Owner’s  Right to Terminate the Contract

14.2

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

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

Partial  Occupancy or Use

9.6.6, 9.9, 11.4.1.5

Patching,  Cutting and

3.14, 6.2.5

Patents

3.17

Payment,  Applications for

4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1,

9.8.5, 9.10.1, 9.10.3, 9.10.5, 11.1.3, 14.2.4, 14.4.3

Payment,  Certificates for

4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1,

9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4

Payment,  Failure of

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

Payment,  Final

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

Payment  Bond, Performance Bond and

7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5

Payment,  Progress

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

  |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

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| PAYMENTS AND  COMPLETION

9

Payments to  Subcontractors

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

14.2.1.2

PCB

10.3.1

Performance  Bond and Payment Bond

7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5

Permits,  Fees and Notices

2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2

PERSONS AND  PROPERTY, PROTECTION

OF

10

Polychlorinated  Biphenyl

10.3.1

Product  Data, Definition of

3.12.2

Product Data  and Samples, Shop Drawings

3.11, 3.12, 4.2.7

Progress and  Completion

4.2.2, 4.3.3, 8.2, 9.8, 9.9.1, 14.1.4

Progress  Payments

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

Project,  Definition of the

1.1.4

Project  Management Protective Liability

Insurance

11.3

Project  Manual, Definition of the

1.1.7

Project Manuals

2.2.5

Project  Representatives

4.2.10

Property  Insurance

10.2.5, 11.4

PROTECTION  OF PERSONS AND

PROPERTY

10

Regulations  and Laws

1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6,

9.6.4, 9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1,

13.5.2, 13.6, 14

Rejection of  Work

3.5.1, 4.2.6, 12.2.1

Releases and  Waivers of Liens

9.10.2

Representations

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

Representatives

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

13.2.1 | Resolution  of Claims and Disputes

4.4, 4.5, 4.6

Responsibility  for Those Performing the Work

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

Retainage

9.3.1, 9.6.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3

Review of  Contract Documents and Field

Conditions  by Contractor

1.5.2, 3.2, 3.7.3, 3.12.7, 6.1.3

Review of  Contractor’s Submittals by Owner and Architect

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

Review of  Shop Drawings, Product Data and

Samples by  Contractor

3.12

Rights and  Remedies

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

Royalties,  Patents and Copyrights

3.17

Rules and  Notices for Arbitration

4.6.2

Safety of  Persons and Property

10.2, 10.6

Safety  Precautions and Programs

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

Samples,  Definition of

3.12.3

Samples,  Shop Drawings, Product Data and

3.11, 3.12, 4.2.7

Samples at  the Site, Documents and

3.11

Schedule of  Values

9.2, 9.3.1

Schedules,  Construction

1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3

Separate  Contracts and Contractors

1.1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6, 8.3.1,

11.4.7, 12.1.2, 12.2.5

Shop  Drawings, Definition of

3.12.1

Shop  Drawings, Product Data and Samples

3.11, 3.12, 4.2.7

Site, Use of

3.13, 6.1.1, 6.2.1

Site  Inspections

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

Site Visits,  Architect’s

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

Special  Inspections and Testing

4.2.6, 12.2.1, 13.5

Specifications,  Definition of the |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

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| 1.1.6

Specifications,  The

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

Statute of  Limitations

4.6.3, 12.2.6, 13.7

Stopping the  Work

2.3, 4.3.6, 9.7, 10.3, 14.1

Stored  Materials

6.2.1, 9.3.2, 10.2.1.2, 10.2.4, 11.4.1.4

Subcontractor,  Definition of

5.1.1

SUBCONTRACTORS

5

Subcontractors,  Work by

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

9.6.7

Subcontractual  Relations

5.3, 5.4, 9.3.1.2, 9.6, 9.10, 10.2.1, 11.4.7, 11.4.8,

14.1, 14.2.1, 14.3.2

Submittals

1.6, 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2,

9.3, 9.8, 9.9.1, 9.10.2, 9.10.3, 11.1.3

Subrogation,  Waivers of

6.1.1, 11.4.5, 11.4.7

Substantial  Completion

4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3,

9.10.4.2, 12.2, 13.7

Substantial  Completion, Definition of

9.8.1

Substitution  of Subcontractors

5.2.3, 5.2.4

Substitution  of Architect

4.1.3

Substitutions  of Materials

3.4.2, 3.5.1, 7.3.7

Sub-subcontractor,  Definition of

5.1.2

Subsurface  Conditions

4.3.4

Successors  and Assigns

13.2

Superintendent

3.9, 10.2.6

Supervision  and Construction Procedures

1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3,

6.2.4, 7.1.3, 7.3.6, 8.2, 8.3.1, 9.4.2, 10, 12, 14

Surety

4.4.7, 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2

Surety, Consent  of

9.10.2, 9.10.3

Surveys

2.2.3

Suspension  by the Owner for Convenience

14.4

Suspension  of the Work | 5.4.2, 14.3

Suspension  or Termination of the Contract

4.3.6, 5.4.1.1, 11.4.9, 14

Taxes

3.6, 3.8.2.1, 7.3.6.4

Termination  by the Contractor

4.3.10, 14.1

Termination  by the Owner for Cause

4.3.10, 5.4.1.1, 14.2

Termination  of the Architect

4.1.3

Termination  of the Contractor

14.2.2

TERMINATION  OR SUSPENSION OF THE CONTRACT

14

Tests and  Inspections

3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.3, 9.9.2,

9.10.1, 10.3.2, 11.4.1.1, 12.2.1, 13.5

TIME

8

Time, Delays  and Extensions of

3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1,

7.4.1, 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 OF

WORK

12

Uncovering  of Work

12.1

Unforeseen  Conditions

4.3.4, 8.3.1, 10.3

Unit Prices

4.3.9, 7.3.3.2

Use of  Documents

1.1.1, 1.6, 2.2.5, 3.12.6, 5.3

Use of Site

3.13, 6.1.1, 6.2.1

Values,  Schedule of

9.2, 9.3.1

Waiver of Claims  by the Architect

13.4.2

Waiver of  Claims by the Contractor

4.3.10, 9.10.5, 11.4.7, 13.4.2 |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

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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

6.1.1, 11.4.5, 11.4.7

Warranty

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

12.2.2, 13.7.1.3

Weather  Delays

4.3.7.2

Work,  Definition of

1.1.3 | Written  Consent

1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2,

9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2

Written  Interpretations

4.2.11, 4.2.12, 4.3.6

Written  Notice

2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8,

4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3,

11.4.6, 12.2.2, 12.2.4, 13.3, 14

Written  Orders

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

13.5.2, 14.3.1 |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 
| 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. A Modification is (1) a written amendment tothe 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 specifically enumerated in the Agreement, the ContractDocuments do not include other documents such as bidding requirements(advertisement or invitation to bid, Instructions to Ridders, sample forms, theContractor's bid or portions of Addenda relating to 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/Contractor Agreement**

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

**                                                Precedence]**

**Fourth Priority                    General Requirement**

**Fifth Priority                        Supplementary General Conditions of**

**                                                the Contract for Construction**

**Sixth Priority                       General Conditions 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 theentire and integrated agreement between the parties hereto and supersedes priornegotiations, representations or agreements, either written or oral. TheContract may be amended or

 

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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)between any persons or entities other than the Owner and Contractor. TheArchitect shall, however, be entitled to performance and enforcement ofobligations under the Contract intended to facilitate performance of theArchitect’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 apart 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

The Specificationsare that portion of the Contract Documents consisting of the writtenrequirements for materials, equipment, systems, standards and workmanship forthe 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 isto include all items necessary for the proper execution and completion of theWork by the Contractor. The Contract Documents are complementary, and what isrequired by one shall be as binding as if required by all; performance by theContractor shall be required only to the extent consistent with the ContractDocuments and reasonably inferable from them as being necessary to produce theindicated 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 all Subcontractors shall refer to all the Drawingsincluding those showing primarily the Work of the mechanical, electrical andother specialized trades and to all of the Sections of the Specifications, andshall perform all Work reasonably inferable therefrom as being necessary toproduce the indicated results.**

 

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.

 

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1.3           CAPITALIZATION

1.3.1        Terms capitalized in these GeneralConditions include those which are (1) specifically defined, (2) the titles ofnumbered articles and identified references to Paragraphs, Subparagraphs andClauses in the document or (3) the titles of other documents published by theAmerican Institute of Architects.

 

1.4           INTERPRETATION

1.4.1        In the interest of brevity the ContractDocuments frequently omit modifying words such as “all” and “any” and articlessuch as “the” and “an,” but the fact that a modifier or an article is absentfrom one statement and appears in another is not intended to affect theinterpretation of either statement.

 

1.5           EXECUTION OF CONTRACT DOCUMENTS

1.5.1        The Contract Documents shall be signedby the Owner and Contractor. If either the Owner or Contractor or both do notsign all the Contract Documents, the Architect shall identify such unsignedDocuments upon request.

 

1.5.2        Execution of the Contract by theContractor is a representation that the Contractor has visited the site, becomegenerally familiar with local conditions under which the Work is to beperformed and correlated personal observations with requirements of theContract Documents.

 

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

1.6.1        The Drawings, Specifications and otherdocuments, including those in electronic form, prepared by the Architect  and the Architect’s consultants areInstruments of Service through which the Work to be executed by the Contractoris described. The Contractor may retain one record set **from the commencement of construction to thecompletion of the Project, and for such period of time thereafter, to andincluding the date of the expiration of any and all warranty periods for anywarranties pertaining to the Work.**Neither the Contractor norany Subcontractor, Sub-subcontractor or material or equipment supplier shallown or claim a copyright in the Drawings, Specifications and other documentsprepared by the Architect or the Architect’s consultants, and unless otherwiseindicated the Architect and the Architect’s consultants shall be deemed theauthors of them and will retain all common law, statutory and other reservedrights, in addition to the copyrights. All copies of Instruments of Service,except the Contractor’s record set, shall be returned or suitably accounted forto the Architect, on request, upon completion 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 theContractor or any Subcontractor, Sub-subcontractor or material or equipmentsupplier on other projects or for additions to this Project outside the scopeof the Work without the specific written consent of the Owner, Architect andthe Architect’s consultants. The Contractor, Subcontractors, Sub-subcontractorsand material or equipment suppliers are authorized to use and reproduceapplicable portions of the Drawings. Specifications and other documentsprepared by the Architect and the Architect’s consultants appropriate to andfor use in the execution of their Work under the Contract Documents. All copiesmade under this authorization shall bear the statutory copyright notice, ifany, shown on the Drawings, Specifications and other documents prepared by theArchitect and the Architect’s consultants. Submittal or distribution to meetofficial regulatory requirements or for other purposes in connection with thisProject is not to be construed as publication in derogation of the Architect’sor Architect’s consultants' copyrights or other reserved rights.

 

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ARTICLE 2 OWNER

2.1           GENERAL

2.1.1        The Owner is the person or entityidentified as such in the Agreement and is referred to throughout the ContractDocuments 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 asotherwise provided in Subparagraph 4.2.1, the Architect does not have suchauthority. The term “Owner” means the Owner or the Owner’s authorizedrepresentative.

 

2.1.2        The Owner shall furnish to the Contractorwithin fifteen days after receipt of a written request, information necessaryand relevant for the Contractor to evaluate, give notice of or enforcemechanic’s lien rights. Such information shall include a correct statement ofthe record legal title to the property on which the Project is located, usuallyreferred to as the site, and the Owner’s interest therein.

 

2.2           INFORMATION AND SERVICES REQUIRED OFTHE OWNER

2.2.1        ~~The Owner shall, at the writtenrequest of the Contractor, prior to commencement of the Work and thereafter, furnishto the Contractor reasonable evidence that financial arrangements have beenmade to fulfill the Owner’s obligations under the Contract. Furnishing of suchevidence shall be a condition precedent to commencement or continuation of theWork. After such evidence has been furnished, the Owner shall not materiallyvary such financial arrangements without prior notice to the Contractor.~~

 

2.2.2        Except for permits and fees, includingthose required under Subparagraph 3.7.1, which are the responsibility of theContractor under the Contract Documents, the Owner shall secure and pay fornecessary approvals, easements, assessments and charges required forconstruction, use or occupancy of permanent structures or for permanent changesin existing facilities.

 

2.2.3        The Owner shall furnish surveysdescribing physical characteristics, legal limitations and utility locationsfor the site of the Project, and a legal description of the site. TheContractor shall be entitled to rely on the accuracy of information furnishedby the Owner but shall exercise proper precautions relating to the safeperformance of the Work.

 

2.2.4        Information or services required of theOwner by the Contract Documents shall be furnished by the Owner with reasonablepromptness. 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 otherwise provided in the ContractDocuments, the Contractor will be furnished, free of charge, such copies ofDrawings and Project Manuals as are reasonably necessary for execution of theWork.

 

2.3           OWNER’S RIGHT TO STOP THE WORK

2.3.1        If the Contractor fails to correct Workwhich is not in accordance with the requirements of the Contract Documents asrequired by Paragraph 12.2 or persistently fails to carry out Work inaccordance with the Contract Documents, the Owner may issue a written order tothe Contractor to stop the Work, or any portion thereof, until the cause forsuch order has been eliminated; however, the right of the Owner to stop theWork shall not give rise to a duty on the part of the Owner to exercise thisright for the benefit of the Contractor or any other person or entity, exceptto the extent required by Subparagraph 6.1.3.

 

2.4           OWNER’S RIGHT TO CARRY OUT THE WORK

 

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2.4.1        ~~If the Contractor defaults orneglects to carry out the Work in accordance with the Contract Documents andfails within a seven day period after receipt of written notice from the Ownerto commence and continue correction of such default or neglect with diligenceand promptness, the Owner may after such seven day period give the Contractor asecond written notice to correct such deficiencies within a three day period.If the Contractor within such three day period after receipt of such secondnotice fails to commence and continue to correct any deficiencies, the Ownermay without prejudice to other remedies the Owner may have, correct suchdeficiencies.~~**If the Contractor defaults or neglects to carry outthe Work in accordance with the Contract Documents and fails within a seven-dayperiod after receipt of written notice from the Owner to begin and prosecutecorrection of such default or neglect with diligence and promptness the Ownermay without prejudice to other remedies the Owner may have, correct suchdeficiencies.**In such case an appropriate Change Order shall beissued deducting from payments then or thereafter due the Contractor thereasonable cost of correcting such deficiencies, including Owner’s expenses andcompensation for the Architect’s additional services made necessary by suchdefault, neglect or failure.~~Such action by the Owner and amounts charged tothe Contractor are both subject to prior 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 the person or entity identified as such in the Agreement and is  referred to throughout the Contract |
|           |        |            |  |

Documents asif singular in number. The term “Contractor” means the Contractor or theContractor’s authorized representative.

 

3.1.2        The Contractor shall perform the Work inaccordance with the Contract Documents.

 

3.1.3        The Contractor shall not be relieved ofobligations to perform the Work in accordance with the Contract Documentseither by activities or duties of the Architect in the Architect’sadministration of the Contract, or by tests, inspections or approvals requiredor performed by persons other than the Contractor.

 

3.2           REVIEW OF CONTRACT DOCUMENTS ANDFIELD CONDITIONS BY CONTRACTOR

 

3.2.1        ~~Since the Contract Documents arecomplementary, before starting each portion of the Work.~~**Before starting the Work, and at frequent Intervalsduring the progress thereof**the Contractor shall carefully study and compare the ~~variousDrawings and other~~ Contract Documents ~~relative to that portion of the Work, as well as theinformation~~**with eachother and with the information** furnished by the Owner pursuantto Subparagraph 2.2.3, **and**shall **at once report to the Architect andOwner any error, inconsistency or omission the Contractor may discover. Anynecessary change shall be ordered as provided in Article 7 subject to therequirement of Paragraph 1.2 and other provisions of the Contract Documents. Ifthe Contractor proceeds with the Work without such notice to the Architect havingdiscovered and having thereby obtained actual knowledge of such errors,inconsistencies or omissions, the Contractor shall bear all the costs arisingtherefrom,**~~take~~

 

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~~field measurement of any existing conditions related to that portion ofthe Work and shall observe any conditions at the site affecting it. Theseobligations are for the purpose of facilitating construction by the Contractorand are not for the purpose of discovering errors, omissions, orinconsistencies in the Contract Documents; however, any errors, inconsistenciesor omissions discovered by the Contractor shall be reported promptly to theArchitect as a request for information in such form as the Architect mayrequire.~~

 

3.2.2        Any design errors or omissions noted bythe Contractor during this review shall be reported promptly to the Architect,but it is recognized that the Contractor’s review is made in the Contractor’scapacity as a contractor and not as a licensed design professional unlessotherwise specifically provided in the Contract Documents. The Contractor isnot required 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 Contractor believes thatadditional cost or time is involved because of clarifications or instructionsissued by the Architect in response to the Contractor’s notices or requests forinformation pursuant to Subparagraphs 3.2.1 and 3.2.2, the Contractor shallmake Claims as provided in Subparagraphs 4.3.6 and 4.3.7. If the Contractorfails to perform the obligations of Subparagraphs 3.2.1 and 3.2.2, theContractor shall pay such costs and damages to the Owner as would have beenavoided if the Contractor had performed such obligations. The Contractor shallnot be liable to the Owner or Architect for damages resulting from errors,inconsistencies or omissions in the Contract Documents or for differencesbetween field measurements or conditions and the Contract Documents unless theContractor recognized such error, inconsistency, omission or difference andknowingly 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 Contractor proceeds with Work that Contractor knowsis not clearly and consistently defined in detail in the Contract Documentswithout obtaining further Drawings, Specifications or instructions, theContractor shall correct Work incorrectly done at the Contractor’s own expense.**

 

3.3           SUPERVISION AND CONSTRUCTIONPROCEDURES

3.3.1        The Contractor shall supervise anddirect the Work, using the Contractor’s best skill and attention. TheContractor shall be solely responsible for and have control over constructionmeans, methods, techniques, sequences and procedures and for coordinating allportions of the Work under the Contract, unless the Contract Documents giveother specific instructions concerning these matters. If the Contract Documentsgive specific instructions concerning construction means, methods, techniques,sequences or procedures, the Contractor shall evaluate the jobsite safetythereof and, except as stated below, shall be fully and solely responsible forthe jobsite safety of such means, methods, techniques, sequences or procedures.If the Contractor determines that such means, methods, techniques, sequences orprocedures may not be safe, the Contractor shall give timely written notice tothe Owner and Architect and shall not proceed with that portion of the Workwithout further written instructions from the Architect. If the Contractor isthen instructed to proceed with 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 shall be responsible tothe Owner for acts and omissions of the Contractor’s employees, Subcontractorsand their agents and employees, and other persons or entities performingportions of the Work for or on behalf of the Contractor or any of itsSubcontractors.

 

3.3.3        The Contractor shall be responsible forinspection of portions of Work already performed to determine that suchportions are in proper condition to receive subsequent Work.

 

3.4           LABOR AND MATERIALS

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

 

3.4.2        The Contractor may make substitutionsonly with the consent of the Owner, after evaluation by the Architect and inaccordance with a Change Order.

 

3.4.3        The Contractor shall enforce strictdiscipline and good order among the Contractor’s employees and other personscarrying out the Contract. The Contractor shall not permit employment of unfitpersons or persons not skilled in tasks assigned to them.

 

3.5           WARRANTY

3.5.1        The Contractor warrants ~~to~~**that** the ~~Owner and Architect that~~ materialsand equipment furnished under the Contract will be ~~of good quality and~~**new and of recent manufacture** unlessotherwise **specified**~~required or permitted by theContract Documents, that the Work will be free from defects not inherent in thequality required or permitted,~~ and that ~~the~~**all** Work will ~~conform to the requirements of the Contract Documents,~~**be of good quality, free from faults anddefects and in conformance with Contract documents.** Work notconforming to these requirements, including substitutions not properly approvedand authorized, may be considered defective. The Contractor’s warranty excludesremedy for damage or defect caused by abuse, modifications not executed by theContractor, improper or insufficient maintenance, improper operation, or normalwear and tear and normal usage.~~If required by the Architect the Contractor shall furnish satisfactoryevidence as to the kind and quality of materials and equipment.~~

 

**3.5.2 The Contractor shall be responsible for determining that all materialsfurnished for the Work meet all requirements of the Contract Documents. TheArchitect may require the Contractor to produce reasonable evidence that amaterial meets such requirements such as certified reports of past tests byqualified testing laboratories reports of studies by qualified experts, orother evidence which, in the opinion of the Architect, would lead to areasonable certainty that all material used or proposed to be used in the Workmeets the requirements of the Contract Documents. All such data shall be furnishedat the Contractor’s expense.  Thisprovision shall 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 expenses.**

 

**3.5.3 In all cases in which a manufacturer’s name, trade name, or otherproprietary designation is used in connection with materials or articles to befurnished under this Contract, whether or not the phrase “or equal” is usedafter such name, the Contractor shall furnish the product of the namedmanufacturer(s) without substitution unless a written request for a substitutehas been submitted by the Contractor and approved in writing by the Architectas provided in Subparagraph 3.5.4.**

 

**3.5.4 If the Contractor proposes to use a material which while suitable forthe intended use deviates in any way from the detailed requirements of theContract Documents the Contractor shall inform the Architect in writing of thenature of such deviations at the time the material is submitted for approvaland shall request written approval of the deviation from the requirements ofthe Contract Documents.**

 

**3.5.5. In requesting approval of deviations or substitutions the Contractorshall provide upon request evidence leading to a reasonable certainty that theproposed substitution or deviation will provide a quality of result at leastequal to that otherwise attainable.  Ifin the opinion of the Architect, the evidence presented by the Contractor doesnot provide a sufficient basis for such reasonable certainty the Architect mayreject such substitutions or deviations without further investigation.**

 

**3.5.6 The Architect shall judge the design and the Owner shall judge theappearance of proposed substitutes on the basis of their suitability inrelation to the overall Project, as well as for their intrinsic merits,  in order to permit coordinated design ofcolor and finish texture or pattern which would have been available from themanufacturer originally specified, at no additional cost to the Owner.  Neither the Architect nor the Owner willapprove as equal to materials specified, proposed substitutes which in theOwner’s opinion, would be out of character, obtrusive or otherwise inconsistentwith the character or quality of the Project, or in which, in the Architect’sopinion, 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 form 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 shallconstitute the Contractor’s guarantee to the Owner that the warranty will beperformed in accordance with its terms and conditions.**

 

3.6           TAXES

3.6.1        The Contractor shall pay sales,consumer, use and similar taxes for the Work provided by the Contractor whichare legally enacted when bids are received or negotiations concluded, whetheror not yet effective or merely scheduled to go into effect.

 

3.7           PERMITS, FEES AND NOTICES

3.7.1        Unless otherwise provided in theContract Documents, the Contractor shall secure and pay for the building permitand other permits and governmental fees, licenses and inspections necessary forproper execution and completion of the Work which are customarily secured afterexecution of the Contract and which are legally required when bids are receivedor negotiations concluded.

 

3.7.2  The Contractor shall comply with and givenotices required by laws, ordinance, rules, regulations and lawful orders ofpublic authorities applicable to performance of the Work.

 

3.7.3  It is not the Contractor’s responsibility toascertain that the Contract Documents are in accordance with applicable laws,statutes, ordinances, building codes, and rules and regulations.  However, if the Contractor observes thatportions of the Contract Documents are at variance therewith, the Contractorshall promptly notify the Architect and Owner in writing, and necessary changesshall be accomplished by appropriate Modification.

 

3.7.4  If the Contractor performs Work knowing itto be contrary to laws, statutes, ordinances, building codes, and rules andregulations without such notice to the Architect and Owner, the Contractorshall assume appropriate responsibility for such Work and shall bear the costsattributable to correction

 

**3.7.5 The Contractor agrees that, unless otherwise agreed by the Owner allgovernmental permits, licenses, and notification with respect to the Work shallbe coordinated through the Owner and, where appropriate, the Architect inaccordance with any legal**

 

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**requirements attached to theSpecifications.  No application forpermits, licenses of any kind and no notifications to governmental authoritiesmay be made by Contractor without the prior written approval of the Owner andthe Architect.  All dealings withgovernmental officials with respect to the Work shall be coordinated with theOwner or its designated representative. The Owner and the Contractor shall agree upon a reasonable procedure tohandle normal and customary inspections of the Work by governmental officialsduring the progress thereof.**

 

3.8           ALLOWANCES

3.8.1        The Contractor shall include in theContract Sum all allowances stated in the Contract Documents.  Items covered by allowances shall besupplied for such amounts and by such persons or entities as the Owner maydirect, but the Contractor shall not be required to employ persons or entitiesto whom the Contractor has reasonable objection.

 

3.8.2        Unless otherwise provided in theContract Documents:

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

 

3.8.3        Materials and equipment under anallowance shall be selected by the Owner in sufficient time to avoid delay inthe Work.

 

3.9           SUPERINTENDENT

3.9.1        The Contractor shall employ a competentsuperintendent and necessary assistants who shall be in attendance at theProject site during performance of the Work. The superintendent shall represent the Contractor, and communicationsgiven to the superintendent shall be as binding as if given to theContractor.  Important communicationsshall be confirmed in writing.  Othercommunications shall be similarly confirmed 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 delay tothe general progress of the Work.  TheContractor and all Subcontractors shall at all times afford each trade, anyseparate contractor or the Owner every reasonable opportunity for theinstallation 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 authorizedrepresentative of any Subcontractor or Sub-subcontractor shall attend suchmeetings if the representative’s presence is requested by the Owner, Architector Contractor.  Such representativesshall be empowered to make binding commitments on all matters to be discussedat such meetings including costs, payment, change orders, time schedules andmanpower.  Any notices required underthe Contract may be served on such representatives.**

 

3.10         CONTRACTOR’S CONSTRUCTION SCHEDULES

3.10.1      The Contractor, promptly after beingawarded the Contract, shall prepare and submit for the Owner’s and Architect’sinformation a Contractor’s construction schedule for the Work.  The schedule shall not exceed time limitscurrent under the Contract Documents, shall be revised at appropriate intervalsas required by the conditions of the Work and Project, shall be related to theentire Project to the extent required by the Contract Documents, and shallprovide for expeditious and practicable execution of the Work.

 

3.10.2      The Contractor shall prepare and keepcurrent, for the Architect’s approval, a schedule of submittals which iscoordinated with the Contractor’s construction schedule and allows theArchitect reasonable time to review submittals.

 

3.10.3      The Contractor shall perform the Work ingeneral accordance with the most recent schedules submitted to the Owner andArchitect.

 

3.11         DOCUMENTS AND SAMPLES AT THE SITE

3.11.1      The Contractor shall maintain at the sitefor the Owner one record copy of the Drawings, Specifications, Addenda, ChangeOrders and other Modifications, in good order and marked currently to recordfield changes and selections made during construction, and one record copy ofapproved Shop Drawings, Product Data, Samples and similar requiredsubmittals.  These shall be available tothe Architect and shall be delivered to the Architect for submittal to the Ownerupon completion of the Work.

 

3.12         SHOP DRAWINGS, PRODUCT DATA AND SAMPLES

3.12.1      Shop Drawings are drawings, diagrams,schedules and other data specially prepared for the Work by the Contractor or aSubcontractor, Sub-subcontractor, manufacturer, supplier or distributor orillustrate some portion of the Work.

 

3.12.2      Product Data are illustrations, standardschedules, performance charts, instructions, brochures, diagrams and otherinformation furnished by the Contractor to illustrate materials or equipmentfor some portion of the Work.

 

3.12.3      Samples are physical examples whichillustrate materials, equipment or workmanship and establish standards by whichthe Work will be judged.

 

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3.12.4      Shop Drawings, Product Data, Samples andsimilar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions ofthe Work for which submittals are required by the Contract Documents the way bywhich the Contractor proposes to conform to the information given and thedesign concept expressed in the Contract Documents.  Review by the Architect is subject to the limitations ofSubparagraph 4.2.7.  Informationalsubmittals upon which the Architect is not expected to take responsive actionmay be so identified in the Contract Documents.  Submittals which are not required by the Contract Documents maybe returned by the Architect without action.

 

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

 

3.12.6      By approving and submitting Shop Drawings,Product Data, Samples and similar submittals, the Contractor **thereby** represents that the Contractorhas determined and verified **alldimensions, quantities, field dimensions, relations to existing work to beinstalled later, coordination with information on previously accepted ShopDrawing, Product Date, Samples, or similar submittals and verification ofcompliance with all the requirements of the Contract Documents,**~~materials,field measurements and field construction criteria related thereto, or will doso, and has checked and coordinated the information contained within suchsubmittals with the requirements of the Work and of the Contractor Documents~~.

 

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

 

3.12.8      The Work shall be in accordance withapproved submittals except that the Contractor shall not be relieved ofresponsibility for deviations from requirements of the Contract Documents bythe Architect’s approval of Shop Drawings, Product Data, Samples or similarsubmittals unless the Contractor has specifically informed the Architect inwriting of such deviation at the time of submittal and (1) the Architect, hasgiven written approval to the specific deviation as a minor change in the Work,or (2) a Change Order or Construction Change Directive has been issuedauthorizing 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 shall direct specificattention, in writing or on resubmitted Shop Drawings, Product Data, Samples orsimilar submittals, to revisions other than those requested by the Architect onprevious submittals.  In the absence ofsuch written notice the Architect’s approval of a resubmission shall not applyto such revisions.

 

3.12.10    The Contractor shall not be required toprovide professional services which constitute the practice of architecture orengineering unless such services are specifically required by the ContractDocuments for a portion of the Work or unless the Contractor needs to providesuch services in order to carry out the Contractor’s responsibilities forconstruction means, methods, techniques, sequences and procedures. TheContractor shall not be required to provide professional services in violationof applicable law.  If professionaldesign services or certifications by a design professional related to systems,materials or equipment are specifically

 

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required ofthe Contractor by the Contract Documents, the Owner and the Architect will specifyall performance and design criteria that such services must satisfy.  The Contractor shall cause such services orcertifications to be provided by a properly licensed design professional, whosesignature and seal shall appear on all drawings, calculations, specifications,certifications, Shop Drawings and other submittals prepared by suchprofessional.  Shop Drawings and othersubmittals related to the Work designed or certified by such professional, ifprepared by others, shall bear such professional’s written approval whensubmitted to the Architect.  The Ownerand the Architect shall be entitled to rely upon the adequacy, accuracy andcompleteness of the services, certifications or approvals performed by suchdesign professionals, provided the Owner and Architect have specified to theContractor all performance and design criteria that such services mustsatisfy.  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 Contractor shall confine operationsat the site to areas permitted by law, ordinances, permits and the ContractDocuments and shall not unreasonably encumber the site with materials orequipment.~~** The right of possession of the premises and the improvements madethereon by the Contractor shall remain at all times in the Owner.  The Contractor’s right to entry and usethereof arises solely from the permission granted by the Owner under the ContractDocuments.  The Contractor shallconfined the Contractor’s apparatus the storage of materials and the operationsof the Contractor’s workmen to limits indicated by law, ordinances the ContractDocuments and permits and/or directions of the Architect and shall notunreasonably 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 shall be responsible forcutting, fitting or patching required to complete the Work or to make its partsfit together properly.

 

3.14.2      The Contractor shall not damage orendanger a portion of the Work or fully or partially completed construction ofthe Owner or separate contractors by cutting, patching or otherwise alteringsuch construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by theOwner or a separate contractor except with written consent of the Owner and ofsuch separate contractor; such consent shall not be unreasonably withheld.  The Contractor shall not unreasonablywithhold from the Owner or a separate contractor the Contractor’s consent tocutting or otherwise altering the Work.

 

3.15         CLEANING UP

3.15.1      The Contractor shall keep the premises andsurrounding area free from accumulation of waste materials or rubbish caused byoperations under the Contract.  Atcompletion of the Work, the Contractor shall remove from and about the Projectwaste materials, rubbish, the Contractor’s tools, construction equipment,machinery and surplus materials.

 

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3.15.2      Ifthe Contractor fails to clean up as provided in the Contact Documents, theOwner may do so and the cost thereof shall be charged to the Contractor.

 

3.16         ACCESSTO WORK

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

 

3.17         ROYALTIES, PATENTS AND COPYRIGHTS

3.17.1      The Contractor shall pay all royalties andlicense fees. The Contractor shall defend suits of claims for infringement ofcopyrights and patent rights and shall hold the Owner and Architect harmlessfrom loss on account thereof, but shall not be responsible for such defense orloss when a particular design, process or product of a particular manufactureror manufacturers is required by the Contract Documents or where the copyrightviolations are contained in Drawings, Specifications or other documentsprepared by the Owner or Architect. However, if the Contractor has reason tobelieve that the required design, process or product is an infringement of acopyright or a patent, the Contractor shall be responsible for such loss unlesssuch information is promptly furnished to the Architect.

 

3.18         INDEMNIFICATION

3.18.1      To the fullest extent permitted by law andto the extent claims, damages, losses or expenses are not covered by ProjectManagement Protective Liability insurance purchased by the Contractor inaccordance with Paragraph 11.3, the Contractor shall indemnify and holdharmless 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, affiliateand subsidiary companies and their respective directors, officers, partners,employees and agents from and against claims, damages, losses and expenses(direct or indirect including but not limited to consequential and specialdamages),** including but not limited to attorneys’ fees, arisingout of or resulting from performance of the Work, provided that such claim,damage, loss or expense is attributable to bodily injury, sickness, disease or death,or to injury to or destruction of tangible property (other than the Workitself),**including loss of use resultingtherefrom to the extent covered by insurance,** but only to theextent caused by the negligent acts or omissions of the Contractor, a Subcontractor,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 notbe construed 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 any person or entityindemnified under this Paragraph 3.18 by an employee of the Contractor, aSubcontractor, anyone directly or indirectly employed by them or anyone forwhose 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 aSubcontractor 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 the person lawfullylicensed to practice architecture or an entity lawfully practicing architectureidentified as such in the Agreement and is referred to throughout the ContractDocuments 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 limitationsof authority of the Architect as set forth in the Contract Documents shall notbe restricted, modified or extended without written consent of the Owner,Contractor and Architect, Consent shall not be unreasonably withheld.

 

4.1.3        If the employment of the architect isterminated, the Owner shall employ a new Architect ~~against whom theContractor has no reasonable objection and~~ whose status under the ContractDocuments shall be that of the former Architect.

 

4.2           ARCHITECT’S ADMINISTRATION OF THECONTRACT

4.2.1        The Architect will provideadministration of the Contract as described in the Contract Documents, and willbe an Owner’s representative (1) during construction, (2) until final paymentis due and (3) with the Owner’s concurrence, from time to time during theone-year period for correction of Work described in Paragraph 12.2. TheArchitect will have authority to act on behalf of the Owner only to the extentprovided in the Contract Documents, unless otherwise modified in writing inaccordance with other provisions of the Contract.

 

4.2.2        The Architect, as a representative ofthe Owner, will visit the site at intervals appropriate to the stage of theContactor’s operations (1) to become generally familiar with and to keep theOwner informed about the progress and quality of the portion of the Workcompleted, (2) to endeavor to guard the Owner against defects and deficienciesin the Work, and (3) to determine in general if the Work is being performed ina manner indicating that the Work, when fully completed, will be in accordancewith the Contract Documents. However, the Architect will not be required tomake exhaustive or continuous on-site inspections to check the quality orquantity of the Work. The Architect will neither have control over or chargeof, nor be responsible for, the construction means, methods, techniques,sequences or procedures, or for the safety precautions and programs inconnection with the Work, since these are solely the Contractor’s rights andresponsibilities under the Contract Documents, except as provided inSubparagraph 3.3.1.

 

4.2.3        The Architect will not be responsiblefor the Contractor’s failure to perform the Work in accordance with therequirements of the Contract Documents. The Architect will not have controlover or charge of and will not be responsible for acts or omissions of theContractor, Subcontractors, or their agents or employees, or any other personsor entities performing portions of the Work.

 

4.2.4        Communications Facilitating ContractAdministration. Except as otherwise provided in the Contract Documents or whendirect communications have been specially authorized, the Owner and Contractorshall endeavor to communicate with each other through the Architect aboutmatters arising out of or relating to the Contract.  Communications by and with the Architect’s consultants shall bethrough the Architect.  Communicationsby and with 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’s evaluations ofthe Contractor’s Applications for Payment, the Architect will review andcertify the amounts due the Contractor and will issue Certificates for Paymentin such amounts.

 

4.2.6        The Architect will have authority toreject Work that does not conform to the Contract Documents. Whenever theArchitect considers it necessary or advisable, the Architect will haveauthority to require inspection or testing of the Work in accordance withSubparagraphs 13.5.2 and 13.5.3, whether or not such Work is fabricated,installed or completed. However, neither this authority of the Architect nor adecision made in good faith either to exercise or not to exercise suchauthority shall give rise to a duty or responsibility of the

 

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Architect tothe Contractor, Subcontractors, material and equipment suppliers, their agentsor employees, or other persons or entities performing portions of the Work.

 

4.2.7        The Architect will review and approve ortake other appropriate action upon the Contractor’s submittals such as ShopDrawings, Product Data and Samples, but only for the limited purpose ofchecking for conformance with information given and the design conceptexpressed in the Contract Documents. The Architect’s action will be taken with such reasonable promptness asto cause no delay in the Work or in the activities of the Owner, Contractor orseparate contractors, while allowing sufficient time in the Architect’sprofessional judgment to permit adequate review. Review of such submittals isnot conducted for the purpose of determining the accuracy and completeness ofother details such as dimensions and quantities, or for substantiatinginstructions for installation or performance of equipment of systems, all ofwhich remain the responsibility of the Contractor as required by the ContractDocuments.  The Architect’s review ofthe Contractor’s submittals shall not relieve the Contractor of the obligationsunder Paragraphs 3.3, 3.5 and 3.12.  TheArchitect’s review shall not constitute approval of safety precautions or,unless otherwise specifically stated by the Architect, of any constructionmeans, methods, techniques, sequences or procedures.  The Architect’s approval of a specific item shall notindicate approval of an assembly of which the item is a component.

 

4.2.8        The Architect will prepare Change Ordersand Construction Change Directives, and may authorize minor changes in the Workas provided in Paragraph 7.4.

 

4.2.9        The Architect will conduct inspectionsto determine the date or dates of Substantial Completion and the date of finalcompletion, will receive and forward to the Owner, for the Owner’s review andrecords, written warranties and related documents required by the Contract andassembled by the Contractor, and will issue a final Certificate for Paymentupon compliance with the requirements of the Contract Documents.

 

4.2.10      If the Owner and Architect agree, theArchitect will provide one or more project representatives to assist incarrying out the Architect’s responsibilities at the site.  The duties, responsibilities and limitationsof authority of such project representatives shall be as set forth in anexhibit to be incorporated in the Contract Documents.

 

4.2.11      The Architect will interpret and decidematters concerning performance under and requirements of, the ContractDocuments on written request of either the Owner or Contractor.  The Architect’s response to such requestswill be made in writing within any time limits agreed upon or otherwise withreasonable promptness.  If no agreementis made concerning the time within which interpretations required of theArchitect shall be furnished in compliance with this Paragraph 4.2, then delayshall not be recognized on account of failure by the Architect to furnish suchinterpretations until 15 days after written request is made for them.

 

4.2.12      Interpretations and decisions of theArchitect will be consistent with the intent of and reasonably inferable fromthe Contract Documents and will be in writing or in the form of drawings. Whenmaking such interpretations and initial decisions, the Architect will endeavorto secure faithful performance by both Owner and Contractor, will not showpartiality to either and will not be liable for results of interpretations ordecisions so rendered in good faith.

 

4.2.13      The Architect’s decisions on mattersrelating to aesthetic effect will be final if consistent with the intentexpressed in the Contract Documents.

 

4.3           CLAIMS AND DISPUTES

4.3.1        Definition.  A Claim is a demand or assertion by one of the parties seeking,as a matter of right, adjustment or interpretation of Contract terms, paymentof money, extension of time or other relief with respect to the terms of theContract.  The term “Claim” alsoincludes

 

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other disputesand matters in question between the Owner and Contractor arising out of orrelating to the Contract.  Claims mustbe initiated by written notice.  Theresponsibility to substantiate Claims shall rest with the party making theClaim.

 

4.3.2        Time Limits on Claims.  Claims by either party must be initiatedwithin 21 days after occurrence of the event giving rise to such Claim orwithin 21 days after the claimant first recognizes the condition giving rise tothe Claim, whichever is later.  Claimsmust be initiated by written notice to the Architect and the other party.

 

4.3.3        Continuing Contract Performance. Pendingfinal resolution of a Claim except as otherwise agreed in writing or asprovided in Subparagraph 9.7.1 and Article 14, the Contractor shall proceeddiligently with performance of the Contract and the Owner shall continue tomake payments in accordance with the Contract Documents.

 

4.3.4        Claims for Concealed or UnknownConditions. If conditions are encountered at the site which are (1) substanceor otherwise concealed physical conditions which differ materially from thoseindicated in the Contract Documents or (2) unknown physical conditions of anunusual nature, which differ materially from those ordinarily found to existand generally recognized as inherent in construction activities of thecharacter provided for in the Contract Documents, then notice by the observingparty shall be given to the other party promptly before conditions aredisturbed and in no event later than 21 days after first observance of theconditions. The Architect will promptly investigate such conditions and, ifthey differ materially and cause an increase or decrease in the Contractor’scost of, or time required for, performance of any part of the Work, willrecommend an equitable adjustment in the Contract Sum or Contract Time, orboth. If the Architect determines that the conditions at the site are notmaterially different from those indicated in the Contract Documents and that nochange in the terms of the Contract is justified, the Architect shall so notifythe Owner and Contractor in writing, stating the reasons. Claims by eitherparty in opposition to such determination must be made within 21 days after theArchitect has given notice of the decision. If the conditions encountered arematerially different, the Contract Sum and Contract Time shall be equitablyadjusted, but if the Owner and Contractor cannot agree on an adjustment in theContract Sum or Contract Time, the adjustment shall be referred to theArchitect for initial determination, subject to further proceedings pursuant toParagraph 4.4.

 

4.3.5        Claims for Additional Cost. If theContractor wishes to make Claim for an increase in the Contract Sum, writtennotice as provided herein shall be given before proceeding to execute the Work.Prior notice is not required for Claims relating to an emergency endangeringlife or property arising under Paragraph 10.6.

 

4.3.6        If the Contractor believes additionalcost is involved for reasons including but not limited to (1) a writteninterpretation from the Architect, (2) an order by the Owner to stop the Workwhere the Contractor was not at fault, (3) a written order for a minor changein the Work issued by the Architect, (4) failure of payment by the Owner, (5)termination of the Contract by the Owner, (6) Owner’s suspension or (7) otherreasonable grounds, Claim shall be filed in accordance with this Paragraph 4.3.

 

4.3.7        Claims for Additional Time

4.3.7.1     If the Contractor wishes to make Claim foran increase in the Contract Time, written notice as provided herein shall begiven. The Contractor’s Claim shall include an estimate of cost and of probableeffect of delay on progress of the Work. In the case of a continuing delay onlyone Claim is necessary.

 

4.3.7.2     If adverse weather conditions are the basisfor a Claim for additional time, such Claim shall be documented by datasubstantiating that weather conditions were abnormal for the

 

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period oftime, could not have been reasonably anticipated and had an adverse effect onthe scheduled construction.

 

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

 

4.3.9        If unit prices are stated in theContract Documents or subsequently agreed upon, and if quantities originallycontemplated are materially changed in a proposed Change Order or ConstructionChange Directive so that application of such unit prices to quantities of Workproposed will cause substantial inequity to the Owner or Contractor, theapplicable unit prices shall be equitably adjusted.

 

4.3.10      Claims for Consequential Damages.  **Themaking of final payment by the Owner after its acceptance of the Work shallconstitute waiver of all Claims by the Contractor and Owner except thosearising from liens, claims, security interests or encumbrances arising out ofthe Contract and unsettled; failure of the Work to comply with the requirementof the Contract Documents; or the terms of special warranties required by theContract Documents. **~~TheContractor and Owner waive Claims against each other for consequential damagesarising out of or relating to this Contract. This mutual waiver includes:~~

.1             ~~damage incurredby the Owner for rental expenses, for losses of use, income, profit, financing,business and reputation, and for loss of management or employee productivity orof the services of such persons;~~and

.2             ~~damages incurredby the Contractor for principal office expenses including the compensation ofpersonnel stationed there, for losses of financing, business and reputation andfor loss of profit except anticipated profit arising directly 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 CLAIMS AND DISPUTES

4.4.1        Decision of Architect.  Claims, including those alleging an error oromission by the Architect but excluding those arising under Paragraphs 10.3through 10.5, shall be referred initially to the Architect for decision.  An initial decision by the Architect shallbe required as a condition precedent to mediation, arbitration or litigation ofall Claims between the Contractor and Owner arising prior to the date finalpayment is due, unless 30 days have passed after the Claim has been referred tothe Architect with no decision having been rendered by the Architect.  The Architect will not decide disputes betweenthe Contractor and persons or entities other than the Owner.

 

4.4.2        The Architect will review Claims andwithin ten days of the receipt of the Claim take one or more of the followingactions:  (1) request additionalsupporting data from the claimant or a response with supporting data from theother party, (2) reject the Claim in whole or in part, (3) approve the Claim,(4) suggest a compromise, or (5) advise the parties that the Architect isunable to resolve the Claim if the Architect lacks sufficient information toevaluate

 

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the merits ofthe Claim or if the Architect concludes that, in the Architect’s solediscretion, it would be inappropriate for the Architect to resolve the Claim.

 

4.4.3        In evaluating Claims, the Architect may,but shall not be obligated to, consult with or seek information from eitherparty or from persons with special knowledge or expertise who may assist theArchitect in rendering a decision.  TheArchitect may request the Owner to authorize retention of such persons at theOwner’s expense.

 

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

 

4.4.5        The Architect will approve or rejectClaims by written decision, which shall state the reasons therefor and whichshall notify the parties of any change in the Contract Sum or Contract Time orboth.  The approval or rejection of aClaim by the Architect shall be final and binding on the parties but subject tomediation and arbitration.

 

4.4.6        When a written decision of the Architectstates that (1) the decision is final but subject to mediation and arbitrationand (2) a demand for arbitration of a Claim covered by such decision must bemade within 30 days after the date on which the party making the demandreceives the final written decision, then failure to demand arbitration withinsaid 30 days’ period shall result in the Architect’s decision becoming finaland binding upon the Owner and Contractor. If the Architect renders a decision after arbitration proceedings havebeen initiated, such decision may be entered as evidence, but shall notsupersede arbitration proceedings unless the decision is acceptable to allparties concerned.

 

4.4.7        Upon receipt of a Claim against theContactor or at any time thereafter, the Architect or the Owner may, but is notobligated to, notify the surety, if any, of the nature and amount of theClaim.  If the Claim relates to apossibility of a Contractor’s default, the Architect or the Owner may, but isnot obligated to, notify the surety and request the surety’s assistance inresolving 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 out of or related tothe Contract, except Claims relating to aesthetic effect and except thosewaived as provided for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5 shall, afterinitial decision by the Architect or 30 days after submission of the Claim tothe Architect, be subject to mediation as a condition precedent to arbitrationor the institution of legal or equitable proceedings by either party.

 

4.5.2        The parties shall endeavor to resolvetheir Claims by mediation which, unless the parties mutually agree otherwise,shall be in accordance with the Construction Industry Mediation Rules of theAmerican Arbitration Association currently in effect.  Request for mediation shall be filed in writing with the otherparty to the Contract and with the American Arbitration Association.  The request may be made concurrently withthe filing of a demand for arbitration but, in such event, mediation shallproceed in advance of arbitration or legal or equitable proceedings, whichshall be stayed pending mediation for a period of 60 days from the date offiling, unless stayed for a longer period by agreement of the parties or courtorder.

 

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4.5.3        The parties shall share the mediator’sfee and any filing fees equally.  Themediation shall be held in the place where the Project is located, unlessanother location is mutually agreed upon.  Agreements reached in mediation shall be enforceable as settlementagreements in any court having jurisdiction thereof.

 

4.6           ARBITRATION

4.6.1        Any Claim arising out of or related tothe Contract, except Claims relating to aesthetic effect and except thosewaived as provided for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5, shall, afterdecision by the Architect or 30 days after submission of the Claim to theArchitect, 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 resolved by mediation shallbe decided by arbitration which, unless the parties mutually agree otherwise,shall be in accordance with the Construction Industry Arbitration Rules of theAmerican Arbitration Association currently in effect.  The demand for arbitration shall be filed in writing with theother party to the Contract and with the American Arbitration Association, anda copy shall be filed with the Architect.

 

4.6.3        A demand for arbitration shall be madewithin the time limits specified in Subparagraphs 4.4.6 and 4.6.1 asapplicable, and in other cases within a reasonable time after the Claim hasarisen, and in no event shall it be made after the date when institution oflegal or equitable proceedings based on such Claim would be barred by theapplicable statute of limitations as determined pursuant to Paragraph 13.7.

 

4.6.4        Limitation on Consolidation orJoinder.  No arbitration arising out ofor relating to the Contract shall include, by consolidation or joinder or inany other manner, the Architect, the Architect’s employees or consultants,except by written consent containing specific reference in the Agreement andsigned by the Architect, Owner, Contractor and any other person or entitysought to be joined.  No arbitrationshall include, by consolidation or joinder or in any other manner, partiesother than the Owner, Contractor, a separate contractor as described in Article6 and other persons substantially involved in a common question of fact or lawwhose presence is required if complete relief is to be accorded inarbitration.  No person or entity otherthan the Owner, Contractor or a separate contractor as described in Article 6shall be included as an original third party or additional third party to anarbitration 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 Timely Assertion of Claims.  The party filing a notice of demand forarbitration must assert in the demand all Claims then known to that party onwhich arbitration is permitted to be demanded.

 

4.6.6        Judgment on Final Award.  The award rendered by the arbitrator orarbitrators shall be final, and judgment may be entered upon it in accordancewith applicable law in any court having jurisdiction thereof.

 

ARTICLE 5 SUBCONTRACTORS

5.1           DEFINITIONS

5.1.1        A Subcontractor is a person or entitywho has a direct contract with the Contractor to perform a portion of the Workat the site.  The term “Subcontractor”is referred to throughout the Contract Documents as if singular in number andmeans a Subcontractor or an authorized

 

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representativeof the Subcontractor.  The term“Subcontractor” does not include a separate contractor or subcontractors of aseparate contractor.

 

5.1.2        A Sub-subcontractor is a person orentity who has a direct or indirect contract with a Subcontractor to perform aportion 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 OFSUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK

5.2.1        Unless otherwise stated in the ContractDocuments or the bidding requirements, the Contractor, as soon as practicableafter award of the Contract, shall furnish in writing to the Owner through theArchitect the names of persons or entities (including those who are to furnishmaterials or equipment fabricated to a special design) proposed for eachprincipal portion of the Work.  TheArchitect will promptly reply to the Contractor in writing stating whether ornot the Owner or the Architect, after due investigation, has reasonableobjection to any such proposed person or entity.  Failure of the Owner or Architect to reply promptly shallconstitute notice of no reasonable objection.

 

5.2.2        The Contractor shall not contract with aproposed person or entity to whom the Owner or Architect has made reasonableand timely objection.  The Contractorshall not be required to contract with anyone to whom the Contractor has madereasonable objection.

 

5.2.3        If the Owner or Architect has reasonableobjection to a person or entity proposed by the Contractor, the Contractorshall propose another to whom the Owner or Architect has no reasonableobjection.  If the proposed but rejectedSubcontractor was reasonably capable of performing the Work, the Contract Sumand Contract Time shall be increased or decreased by the difference, if any,occasioned by such change, and an appropriate Change Order shall be issuedbefore commencement of the substitute Subcontractor’s Work.  However, no increase in the Contract Sum orContract Time shall be allowed for such change unless the Contractor has actedpromptly and responsively in submitting names as required.

 

5.2.4        The Contractor shall not change aSubcontractor, person or entity previously selected if the Owner or Architectmakes 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           SUBCONTRACTUAL RELATIONS

5.3.1        By appropriate agreement, written wherelegally required for validity, the Contractor shall require each Subcontractor,to the extent of the Work to be performed by the Subcontractor, to be bound tothe Contractor by terms of the Contract Documents, and to assume toward theContractor all the obligations and responsibilities, including theresponsibility for safety of the Subcontractor’s Work, which the Contractor, bythese Documents, assumes toward the Owner and Architect.  Each subcontract agreement shall preserveand protect the rights of the Owner and Architect under the Contract Documentswith respect to the Work to be performed by the Subcontractor so thatsubcontracting thereof will not prejudice such rights, and shall allow to theSubcontractor, unless specifically provided otherwise in the subcontractagreement, the benefit of all rights, remedies and redress against theContractor that the Contractor, by the Contract Documents, has against theOwner.  Where

 

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appropriate,the Contractor shall require each Subcontractor to enter into similaragreements with Sub-subcontractors. The Contractor shall make available to eachproposed Subcontractor, prior to the execution of the subcontract agreement,copies of the Contract Documents to which the Subcontractor will be bound, and,upon written request of the Subcontractor, identify to the Subcontractor termsand conditions of the proposed subcontract agreement which may be at variancewith the Contract Documents. Subcontractors will similarly make copies ofapplicable portions of such documents available to their respective proposedSub-subcontractors.

 

5.4           CONTINGENT ASSIGNMENT OF SUBCONTRACTS

5.4.1        Each subcontract agreement for a portionof the Work is assigned by the Contractor to the Owner provided that:
| .1 |   | assignment  is effective only after termination of the Contract by the Owner for cause  pursuant to Paragraph 14.2 and only for those subcontract agreements which  the Owner accepts by notifying the Subcontractor and Contractor in writing;  and |
|----|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| .2 |   | assignment  is subject to the prior rights of the surety, if any, obligated under bond  relating to the Contract.                                                                                                                                    |

 

5.4.2        Upon such assignment, if the Work hasbeen suspended for more than 30 days, the Subcontractor’s compensation shall beequitably adjusted for increases in cost resulting from the suspension.

 
| ARTICLE 6 |   | CONSTRUCTION  BY OWNER OR BY SEPARATE CONTRACTORS |
|-----------|--------|---------------------------------------------------|
|      | 6.1    |                                              | OWNER’S  RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS |
|      | 6.1.1  |                                              | The Owner  reserves the right to perform construction or operations related to the  Project with the Owner’s own |
|           |        |                                                   |  |

forces, and toaward separate contracts in connection with other portions of the Project orother construction or operations on the site under Conditions of the Contractidentical or substantially similar to these including those portions related toinsurance 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 separate contracts are awarded fordifferent portions of the Project or other construction or operations on thesite, the term “Contractor” in the Contract Documents in each case shall meanthe Contractor who executes each separate Owner-Contractor Agreement.

 

6.1.3        The Owner shall provide for coordinationof the activities of the Owner’s own forces and of each separate contractorwith the Work of the Contractor, who shall cooperate with them. The Contractorshall participate with other separate contractors and the Owner in reviewingtheir construction schedules when directed to do so.  The Contractor shall make any revisions to the constructionschedule deemed necessary after a joint review and mutual agreement. Theconstruction schedules shall then constitute the schedules to be used by theContractor, separate contractors and the Other until subsequently revised.

 

6.1.4        Unless otherwise provided in theContract Documents, when the Owner performs construction or operations relatedto the Project with the Owner’s own forces, the Owner shall be deemed to besubject to the same obligations and to have the same rights which apply to theContractor under the Conditions of the Contract, including, without excludingothers, those stated in Article 3, this Article 6 and Articles 10, 11 and 12.

 

6.2           MUTUAL RESPONSIBILITY

 

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6.2.1        The Contractor shall afford the Ownerand separate contractors reasonable opportunity for introduction and storage oftheir materials and equipment and performance of their activities, and shallconnect and coordinate the Contractor’s construction and operations with theirsas required by the Contract Documents.

 

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

 

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

 

6.2.4        The Contractor shall promptly remedydamage wrongfully caused by the Contractor to completed or partially completedconstruction or to property of the Owner or separate contractors as provided inSubparagraph 10.2.5.  **If such separate contractor sues or initiatesmediation or an arbitration proceeding against the Owner on account of anydamage alleged to have been caused by the Contractor, the Owner shall notifythe Contractor who shall defend such proceedings at the Owner’s expense and ifany judgement or award against the Owner arises as a result of, but only to theextent of, Contractor’s fault, the Contractor shall pay or satisfy it and shallreimburse the Owner for all attorney’s fees, mediation fees and costs, courtfees and costs, and arbitration fees and costs which the Owner has incurred.**

 

6.2.5        The Owner and each separate contractorshall have the same responsibilities for cutting and patching as are describedfor the Contractor in Subparagraph 3.14.

 

6.3           OWNER’S RIGHT TO CLEAN UP

6.3.1        If a dispute arises among theContractor, separate contractors and the Owner as to the responsibility undertheir respective contracts for maintaining the premises and surrounding areafree from waste materials and rubbish, the Owner may clean up and the Architectwill allocate the cost among those responsible.

 

ARTICLE 7 CHANGES IN THE WORK

7.1           GENERAL

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

 

7.1.2        A Change Order shall be based uponagreement among the Owner, Contractor and Architect; a Construction ChangeDirective requires agreement by the Owner and Architect

 

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and may or maynot be agreed to by the Contractor, an order for a minor change in the Work maybe issued by the Architect alone.

 

7.1.3        Changes in the Work shall be performedunder applicable provisions of the Contract Documents, and the Contractor shallproceed promptly, unless otherwise provided in the Change Order, ConstructionChange Directive or order for a minor change in the Work.

 

7.2           CHANGE ORDERS

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

.1             change in the Work;

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

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

 

7.2.2        Methods used in determining adjustmentsto the Contract Sum may include those listed in Subparagraph 7.3.3.

 

7.3           CONSTRUCTION CHANGE DIRECTIVES

7.3.1        A Construction Change Directive is awritten order prepared by the Architect and signed by the Owner and Architect,directing a change in the Work prior to agreement on adjustment, if any, in theContract 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 Change Directive shall beused in the absence of total agreement on the terms of a Change Order.

 

7.3.3        If the Construction Change Directiveprovides for an adjustment to the Contract Sum, the adjustment shall be basedon one of the following methods:
| .1 |   | mutual  acceptance of a lump sum properly itemized and supported by sufficient  substantiating data to permit evaluation; |
|----|--------|---------------------------------------------------------------------------------------------------------------------------|
| .2 |   | unit prices  stated in the Contract Documents or subsequently agreed upon;                                                |
| .3 |   | cost to be  determined in a manner agreed upon by the parties and a mutually acceptable  fixed or percentage fee; or      |
| .4 |   | as provided  in Subparagraph 7.3.6.                                                                                       |

 

7.3.4        Upon receipt of a Construction ChangeDirective, the Contractor shall promptly proceed with the change in the Workinvolved and advise the Architect of the Contractor’s agreement or disagreementwith the method, if any, provided in the Construction Change Directive fordetermining the proposed adjustment in the Contract Sum or Contract Time.

 

7.3.5        A Construction Change Directive signedby the Contractor indicates agreement of the Contractor therewith, includingadjustment in Contract Sum and Contract Time or the method for determiningthem. Such agreement shall be effective immediately and shall be recorded as aChange Order.

 

7.3.6        If the Contractor does not respondpromptly or disagrees with the method for adjustment in the Contract Sum, themethod and the adjustment shall be determined by the Architect on the basis ofreasonable expenditures and savings of those performing the Work attributableto the change, including, in case of an increase in the Contract Sum, areasonable allowance for overhead and profit. In such case, and also underClause 7.3.3.3, the Contractor

 

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shall keep andpresent, in such form as the Architect may prescribe, an itemized accountingtogether with appropriate supporting data. Unless otherwise provided in theContract Documents, costs for the purposes of this Subparagraph 7.3.6 shall belimited to the following:
| .1 |   | costs of  labor, including social security, old age and unemployment insurance, fringe  benefits required by agreement or custom, and workers’ compensation  insurance; |
|----|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| .2 |   | costs of  materials, supplies and equipment, including cost of transportation, whether  incorporated or consumed;                                                            |
| .3 |   | rental costs  of machinery and equipment, exclusive of hand tools, whether rented from the  Contractor or others;                                                            |
| .4 |   | costs of  premiums for all bonds and insurance, permit fees, and sales, use or similar  taxes related to the Work; and                                                       |
| .5 |   | additional  costs of supervision and field office personnel directly attributable to the  change.                                                                            |

 

7.3.7        The amount of credit to be allowed byContractor to the Owner for a deletion or change which results in a netdecrease in Contract Sum shall be actual net cost as confirmed by theArchitect. When both additions and credits covering related Work orsubstitutions are involved in a change, the allowance for overhead and profitshall be figured on the basis of net increase, if any, with respect to thatchange.

 

7.3.8        Pending final determination of the totalcost of a Construction Change Directive to the Owner, amounts not in disputefor such changes in the Work shall be included in Applications for Paymentaccompanied by a Change Order indicating the parties’ agreement with part orall of such costs. For any portion of such cost that remains in dispute, theArchitect will make an interim determination for purposes of monthlycertification for payment for those costs. That determination of cost shalladjust the Contract Sum on the same basis as a Change Order, subject to theright of either party to disagree and assert a claim in accordance with Article4.

 

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

 

7.4           MINOR CHANGES IN THE WORK

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

 

ARTICLE 8 TIME

8.1           DEFINITIONS

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

 

8.1.2        The date of commencement of the Work isthe date established in the Agreement. **The date shall not be postponed by thefailure to act by the Contractor or by persons or entities for whom theContractor is responsible.**

 

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8.1.3        The date of Substantial Completion isthe date certified by the Architect in accordance with Paragraph 9.8.

 

8.1.4        The term “day” as used in the ContractDocuments shall mean calendar day unless otherwise specifically defined.

 

8.2           PROGRESS AND COMPLETION

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

 

8.2.2        The Contractor shall not knowingly,except by agreement or instruction of the Owner in writing, prematurelycommence operations on the site or elsewhere prior to the effective date ofinsurance required by Article II to be furnished by the Contractor and Owner.  The date of commencement of the Work shallnot 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 shall proceedexpeditiously with adequate forces and shall achieve Substantial Completionwithin the Contract Time.

 

8.3           DELAYS AND EXTENSIONS OF TIME

8.3.1        If the Contractor is delayed at any timein the commencement or progress of the Work by an act or neglect of the Owneror Architect, or of an employee of either, or of a separate contractor employedby the Owner, or by changes ordered in the Work, or by labor disputes, fire,unusual delay in deliveries, unavoidable casualties or other causes beyond theContractor’s control, or by delay authorized by the Owner pending mediation andarbitration, or by other causes which the Architect determines may justifydelay, then the Contract Time shall be extended by Change Order for suchreasonable time as the Architect may determine.

 

8.3.2        Claims relating to time shall be made inaccordance with applicable provisions of Paragraph 4.3.

 

8.3.3        ~~This Paragraph 8.3 does not precluderecovery of damages for delay by either party under other provisions of theContract Documents.~~  **No claim for delay shall be allowed on account offailure of the Architect to furnish Drawings, Specifications or instructions orto return Shop Drawings or Samples until five (5) days after receipt by theArchitect by registered or certified mail of written demand for suchinstructions, Drawings, or Samples, and not then unless such claim bereasonable.**

 

ARTICLE 9 PAYMENTS ANDCOMPLETION

9.1           CONTRACT SUM

9.1.1        The Contract Sum is stated in theAgreement and, including authorized adjustments, is the total amount payable bythe Owner to the Contractor for performance of the Work under the ContractDocuments.

 

9.2           SCHEDULE OF VALUES

9.2.1        Before the first Application forPayment, the Contractor shall submit to the Architect a schedule of valuesallocated to various portions of the Work, prepared in such form and

 

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supported bysuch data to substantiate its accuracy as the Architect may require.  This schedule, unless objected to by theArchitect, shall be used as a basis for reviewing the Contractor’s Applicationsfor Payment.

 

9.3           APPLICATIONS FOR PAYMENT

9.3.1        ~~At least ten days before the dateestablished for each progress payment.~~ **At the time or times established inthe Contract,** the Contractor shall submit to the Architect anitemized Application for Payment for operations completed in accordance withthe schedule of values.  **The format and number of copies of such Applicationsfor Payment shall be as directed by the Owner.**  Such application shall be notarized, ifrequired, and supported by such data substantiating the Contractor’s right topayment as the Owner or Architect may require, such as copies of requisitionsfrom Subcontractors and material suppliers, and reflecting retainage ifprovided for in the Contract Documents.

 

~~9.3.1.1~~     ~~Asprovided in Subparagraph 7.3.8, such applications may include requests forpayment on account of changes in the Work which have been properly authorizedby Construction Change Directives, or by interim determinations of theArchitect, but not yet included in Change Orders.~~

 

9.3.1.2     Such applications may not include requestsfor payment for portions of the Work for which the Contractor does not intendto pay to a Subcontractor or material supplier, unless such Work has beenperformed by others whom the Contractor intends to pay.

 

9.3.2        Unless otherwise provided in theContract Documents, payments shall be made on account of materials andequipment delivered and suitably stored at the site for subsequentincorporation in the Work.  If approvedin advance by the Owner **(including suchevidence of insurance and title as Owner shall request of Contractor and/orSubcontractor**), payment may similarly be made for materials andequipment suitably stored off the site at a location agreed upon inwriting.  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 Contractor warrants that title toall Work covered by an Application for Payment will pass to 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 all Work for whichCertificates for Payment have been previously issued and payments received fromthe Owner shall, to the best of the Contractor’s knowledge, information and belief,be free and clear of liens, claims, security interests or encumbrances in favorof the Contractor, Subcontractors, material suppliers, or other persons orentities making a claim by reason of having provided labor materials andequipment 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 each subcontractor or (ii) a certificate fromeach**

 

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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 or certificate shall be in formacceptable 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 the Contractor shall fail to so remove ordischarge the same within five (5) days after notice from the Owner (but in noevent later than the date on which the next payment on an Application forPayment becomes due) the Owner shall have the right to remove or discharge thesame by bonding payment or otherwise for the account of the Contractor and theamount of any payment, cost and expenses made or incurred by the Owner inconnection with the removal or discharge thereof may be withheld from anypayment thereafter becoming due or shall be reimbursed promptly to the Owner bythe Contractor.**

 

9.4           CERTIFICATES FOR PAYMENT

9.4.1        The Architect will, within seven daysafter receipt of the Contractor’s Application for Payment, either issue to theOwner a Certificate for Payment, with a copy to the Contractor, for such amountas the Architect determines is properly due, or notify the Contractor and Ownerin writing of the Architect’s reasons for withholding certification in whole orin part as provided in Subparagraph 9.5.1.

 

9.4.2        The issuance of a Certificate forPayment will constitute a representation by the Architect to the Owner, basedon the Architect’s evaluation of the Work and the data comprising theApplication for Payment, that the Work has progressed to the point indicatedand that, to the best of the Architect’s knowledge, information and belief, thequality of the Work is in accordance with the Contract Documents.  The foregoing representations are subject toan evaluation of the Work for conformance with the Contract Documents uponSubstantial Completion, to results of subsequent tests and inspections, tocorrection of minor deviations from the Contract Documents prior to completionand to specific qualifications expressed by the Architect.  The issuance of a Certificate for Paymentwill further constitute a representation that the Contractor is entitled topayment in the amount certified. However, the issuance of a

 

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Certificatefor Payment will not be a representation that the Architect has (1) madeexhaustive or continuous on-site inspections to check the quality or quantityof the Work, (2) reviewed construction means, methods, techniques, sequences orprocedures, (3) reviewed copies of requisitions received from Subcontractorsand material suppliers and other data requested by the Owner to substantiatethe Contractor’s right to payment, or (4) made examination to ascertain how orfor what purpose the Contractor has used money previously paid on account ofthe Contract Sum.

 

9.5           DECISIONS TO WITHHOLD CERTIFICATION

9.5.1        The Architect may withhold a Certificatefor Payment in whole or in part, to the extent reasonably necessary to protectthe Owner, if in the Architect’s opinion the representations to the Ownerrequired by Subparagraph 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of theApplication, the Architect will notify the Contractor and Owner as provided inSubparagraph 9.4.1.  If the Contractorand Architect cannot agree on a revised amount, the Architect will promptlyissue a Certificate for Payment for the amount for which the Architect is ableto make such representations to the Owner. The Architect 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 |   | defective  Work not remedied;                                                                                                                                                                              |
|----|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| .2 |   | third party  claims filed or reasonable evidence indicating probable filing of such claims  unless security acceptable to the Owner is provided by the Contractor;                                         |
| .3 |   | failure of  the Contractor to make payments properly to Subcontractors or for labor,  materials or equipment;                                                                                              |
| .4 |   | reasonable  evidence that the Work cannot be completed for the unpaid balance of the  Contract Sum;                                                                                                        |
| .5 |   | damage to  the Owner or another contractor;                                                                                                                                                                |
| .6 |   | reasonable  evidence that the Work will not be completed within the Contract Time, and  that the unpaid balance would not be adequate to cover actual or liquidated  damages for the anticipated delay; or |
| .7 |   | persistent  failure to carry out the Work in accordance with the Contract Documents.                                                                                                                       |

 

**.8             Alien or attachment is filed in violation of this Agreement.**

 

9.5.2        When the above reasons for withholdingcertification are removed, certification will be made for amounts previouslywithheld.

 

9.6           PROGRESS PAYMENTS

9.6.1        After the Architect has issued aCertificate for Payment, the Owner shall make payment in the manner and withinthe time provided in the Contract Documents, and shall so notify the Architect.

 

9.6.2        The Contractor shall promptly pay eachSubcontractor, upon receipt of payment from the Owner, out of the amount paidto the Contractor on account of such Subcontractor’s portion of the Work, theamount to which said Subcontractor is entitled, reflecting percentages actuallyretained from payments to the Contractor on account of such Subcontractor’sportion of the Work.  The Contractorshall, by appropriate agreement with each Subcontractor, require eachSubcontractor to make payments to Sub-subcontractors in a similar manner.

 

9.6.3        ~~The Architect will, on request,furnish to a Subcontractor, if practicable, information regarding percentagesof completion of amounts applied for by the Contractor and action~~

 

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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 nor Architect shallhave an obligation to pay or to see to the payment of money to a Subcontractor **Sub-subcontractor of material supplier,**except as may otherwise be required by law.

 

9.6.5        Payment to material suppliers shall betreated in a manner similar to that provided in Subparagraphs 9.6.2, 9.6.3 and9.6.4.

 

9.6.6        A Certificate for Payment, a progresspayment, or partial or entire use or occupancy of the Project by the Ownershall not constitute acceptance of Work not in accordance with the ContractDocuments.

 

9.6.7        Unless the Contractor provides the Ownerwith a payment bond in the full penal sum of the Contract Sum, paymentsreceived by the Contractor for Work properly performed by Subcontractors andsuppliers shall be held by the Contractor for those Subcontractors or supplierswho performed Work or furnished materials, or both, under contract with theContractor for which payment was made by the Owner.  ~~Nothing contained herein shall require money to be placed in aseparate account and not commingled with money of the Contractor, shall createany fiduciary liability or tort liability on the part of the Contractor forbreach of trust or shall entitle any person or entity to an award of punitivedamages against the Contractor for breach of the requirements of thisprovision.~~

 

9.7           FAILURE OF PAYMENT

9.7.1        If the Architect does not issue aCertificate for Payment, through no fault of the Contractor, within seven daysafter receipt of the Contractor’s Application for Payment, or if the Owner doesnot pay the Contractor within seven days after the date established in theContract Documents the amount certified by the Architect ~~or awarded byarbitration~~, then the Contractor may, upon seven additional days’ writtennotice to the Owner and Architect, stop the Work until payment of the amountowing has been received.  The ContractTime shall be extended appropriately and the Contract Sum shall be increased bythe amount of the Contractor’s reasonable costs of shut-down, delay andstart-up, plus interest as provided for in the Contract Documents.

 

9.8           SUBSTANTIAL COMPLETION

9.8.1        Substantial Completion is the stage inthe progress of the Work when the Work or designated portion thereof issufficiently complete in accordance with the Contract Documents so that theOwner can occupy or utilize the Work for its intended use **and only minor items which can be corrected orcompleted without any material interference with the Owner’s use of the Workremain to be corrected or completed.**

 

9.8.2        When the Contractor considers that theWork, or a portion thereof which the Owner agrees to accept separately, issubstantially complete, the Contractor shall prepare and submit to theArchitect a comprehensive list of items to be completed or corrected prior tofinal payment.  Failure to include anitem on such list does not alter the responsibility of the Contractor tocomplete all Work in accordance with the Contract Documents.

 

9.8.3        Upon receipt of the Contractor’s list,the Architect will make an inspection to determine whether the Work ordesignated portion thereof is substantially complete.  If the Architect’s inspection discloses any item, whether or notincluded on the Contractor’s list, which is not sufficiently complete inaccordance with the Contract Documents so that the

 

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Owner canoccupy or utilize the Work or designated portion thereof for its intended use,the Contractor shall, before issuance of the Certificate of SubstantialCompletion, complete or correct such item upon notification by the Architect.  In such case, the Contractor shall thensubmit a request for another inspection by the Architect to determineSubstantial Completion.

 

9.8.4        When the Work or designated portionthereof is substantially complete, the Architect will prepare a Certificate ofSubstantial Completion which shall establish the date of SubstantialCompletion, shall establish responsibilities of the Owner and Contractor forsecurity, maintenance, heat, utilities, damage to the Work and insurance, andshall fix the time within which the Contractor shall finish all items on thelist accompanying the Certificate. Warranties required by the Contract Documents shall commence on the dateof Substantial Completion of the Work or designated portion thereof unlessotherwise provided in the Certificate of Substantial Completion.

 

9.8.5        The Certificate of SubstantialCompletion shall be submitted to the Owner and Contractor for their writtenacceptance of responsibilities assigned to them in such Certificate.  Upon such acceptance and consent of surety,if any, the Owner shall make payment of retainage applying to such Work ordesignated portion thereof.  Suchpayment shall be adjusted for Work that is incomplete or not in accordance withthe requirements of the Contract Documents.

 

9.9           PARTIAL OCCUPANCY OR USE

9.9.1        The Owner may occupy or use anycompleted or partially completed portion of the Work at any stage ~~when suchportion is designated by separate agreement with the Contractor, provided suchoccupancy or use is consented to by the insurer as required under Clause11.4.1.5 and authorized by public authorities having jurisdiction over theWork.~~  Such partial occupancy or usemay ~~commence~~**begin**whetheror not the portion is substantially complete, provided **that**the **respective responsibilities of the**Owner and Contractor **with respect to**~~have accepted inwriting the responsibilities assigned to each of them for~~payments,retainage, if any, security, maintenance, heat, utilities, damage to the Work, ~~and~~ insurance, **correction of the Work and warranties shall beestablished by agreement of the Owner and Contractor or, absent such agreementshall be determined by the Architect subject to the right of either party tocontest such determination as provided in Paragraph 4.5.**~~andhave agreed in writing concerning the period for correction of the Work andcommencement 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 theArchitect.~~

 

9.9.2        Immediately prior to such partialoccupancy or use, the Owner, Contractor and Architect shall jointly inspect thearea to be occupied or portion of the Work to be used in order to determine andrecord the condition of the Work.

 

9.9.3        Unless otherwise agreed upon, partialoccupancy or use of a portion or portions of the Work shall not constituteacceptance of Work not complying with the requirements of the ContractDocuments.

 

9.10         FINAL COMPLETION AND FINAL PAYMENT

 

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9.10.1      Upon receipt of written notice that theWork is ready for final inspection and acceptance and upon receipt of a finalApplication for Payment, the Architect will promptly make such inspection and,when the Architect finds the Work acceptable under the Contract Documents andthe Contract fully performed, the Architect will promptly issue a finalCertificate for Payment stating that to the best of the Architect’s knowledge,information and belief, and on the basis of the Architect’s on-site visits andinspections, the Work has been completed in accordance with terms andconditions of the Contract Documents and that the entire balance found to bedue the Contractor and noted in the final Certificate is due and payable.  The Architect’s final Certificate forPayment will constitute a further representation that conditions listed inSubparagraph 9.10.2 as precedent to the Contractor’s being entitled to finalpayment have been fulfilled.

 

9.10.2      Neither final payment nor any remainingretained percentage shall become due until the Contractor submits to theArchitect (1) an affidavit that payrolls, bills for materials and equipment,and other indebtedness connected with the Work for which the Owner or theOwner’s property might be responsible or encumbered (less amounts withheld byOwner) have been paid or otherwise satisfied, (2) a certificate evidencing thatinsurance required by the Contract Documents to remain in force after finalpayment is currently in effect and will not be canceled or allowed to expireuntil at least 30 days’ prior written notice has been given to the Owner, (3) awritten statement that the Contractor knows of no substantial reason that theinsurance will not be renewable to cover the period required by the ContractDocuments, (4) consent of surety, if any, to final payment and (5), if requiredby the Owner, other data establishing payment or satisfaction of obligations,such as receipts, releases and waivers of liens, claims, security interests orencumbrances arising out of the Contract, to the extent and in such form as maybe designated by the Owner.  ~~If aSubcontractor refuses to furnish a release or waiver required by the Owner, theContractor may furnish a bond satisfactory to the Owner to indemnify the Owneragainst such lien. ~~**Provided Owner is not in breach of its paymentobligations under the Contract, if the Contractor fails to furnish suchreleases or waivers as the Owner reasonably requires to satisfy the Owner thatthere are no outstanding liens, the Owner may require the Contractor as acondition of final payment and at the Contractor’s expense to furnish a bondsatisfactory to the Owner to indemnify the Owner against any such liens. **If such lien remainsunsatisfied after payments are made, the Contractor shall refund to the Ownerall money that the Owner may be compelled to pay in discharging such lien,including all costs and reasonable attorneys’ fees.

 

9.10.3      If, after Substantial Completion of theWork, final completion thereof is materially delayed through no fault of theContractor or by issuance of Change Orders affecting final completion, and theArchitect so confirms, the Owner shall, upon application by the Contractor andcertification by the Architect, and without terminating the Contract, makepayment 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 final payment shallconstitute a waiver of Claims by the Owner except those arising from:

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

 

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

.3             terms of specialwarranties required by the Contract Documents.

 

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

 
| ARTICLE 10 |   | PROTECTION  OF PERSONS AND PROPERTY |
|------------|--------|-------------------------------------|
|       | 10.1   |                                | SAFETY  PRECAUTIONS AND PROGRAMS |
|       | 10.1.1 |                                | The  Contractor shall be responsible for initiating, maintaining and supervising  all safety precautions and programs |
|            |        |                                     |  |

in connectionwith the performance of the Contract.

 

10.2         SAFETY OF PERSONS AND PROPERTY

10.2.1      The Contractor shall take reasonableprecautions for safety of, and shall provide reasonable protection to preventdamage, injury or loss to:
| .1 |   | employees on  the Work and other persons who may be affected thereby;                                                                                                                                                          |
|----|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| .2 |   | the Work and  materials and equipment to be incorporated therein, whether in storage on or  off the site, under care, custody or control of the Contractor or the  Contractor’s Subcontractors or Sub-subcontractors; and |
| .3 |   | other  property 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 shall give notices andcomply with applicable laws, ordinances, rules, regulations and lawful ordersof public authorities bearing on safety of persons or property or theirprotection from damage, injury or loss.

 

10.2.3      The Contractor shall erect and maintain,as required by existing conditions and performance of the Contract, reasonablesafeguards for safety and protection, including posting danger signs and otherwarnings against hazards, promulgating safety regulations and notifying ownersand users of adjacent sites and utilities.

 

10.2.4      When use or storage of explosives or otherhazardous materials or equipment or unusual methods are necessary for executionof the Work, the Contractor shall exercise utmost care and carry on suchactivities under supervision of properly qualified personnel.

 

10.2.5      The Contractor shall promptly remedydamage and loss (other than damage or loss insured under property insurancerequired by the Contract Documents) to property referred to in Clauses 10.2.1.2and 10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, aSub-subcontractor, or anyone directly or indirectly employed by any of them, orby anyone for whose acts they may be liable and for which the Contractor isresponsible under Clauses 10.2.1.2 and 10.2.1.3, except damage or lossattributable to acts or omissions of the Owner or Architect or anyone directlyor indirectly employed by either of them, or by anyone for whose acts either ofthem may be liable, and not attributable to the fault or negligence of theContractor.  The foregoing obligationsof the Contractor are in addition to the Contractor’s obligations underParagraph 3.18.

 

10.2.6      The Contractor shall designate aresponsible member of the Contractor’s organization at the site whose dutyshall be the prevention of accidents. This person shall be the Contractor’s superintendent unless otherwisedesignated by the Contractor in writing to the Owner and Architect.

 

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

** **

10.3         HAZARDOUS MATERIALS

10.3.1      If reasonable precautions will beinadequate to prevent foreseeable bodily injury or death to persons resultingfrom a material or substance, including but not limited to asbestos orpolychlorinated biphenyl (PCB), encountered on the site by the Contractor, theContractor shall, upon recognizing the condition, immediately stop work in theaffected areas and report the condition to the Owner and Architect in writing.

 

10.3.2      The Owner shall obtain the services of alicensed laboratory to verify the presence or absence of the material orsubstance reported by the Contractor and, in the event such material orsubstance 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 of safe containment of such materialor substance.  The Contractor and theArchitect 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 Contractor orArchitect has an objection to a person or entity proposed by the Owner, theOwner shall propose another to whom the Contractor and the Architect have noreasonable objection.  When the materialor substance has been rendered harmless, Work in the affected area shall resumeupon written agreement of the Owner and Contractor.  The Contract time shall be extended appropriately and theContract Sum shall be increased in the amount of the Contractor’s reasonableadditional costs of shut-down, delay and start-up, which adjustments shall beaccomplished as provided in Article 7.

 

10.3.3      To the fullest extent permitted by law,the Owner shall indemnify and hold harmless the Contractor, Subcontractors,Architect, Architect’s consultants and agents and employees of any of them fromand against claims, damages, losses and expenses, including but not limited toattorney’s fees, arising out of or resulting from performance of the Work inthe affected area if in fact the material or substance presents the risk ofbodily injury or death as described in Subparagraph 10.3.1 and has not beenrendered harmless, provided that such claim, damage, loss or expense isattributable to bodily injury, sickness, disease or death, or to injury to ordestruction of tangible property (other than the Work itself) and provided thatsuch damage, loss or expense is not due to the sole negligence of a partyseeking indemnity.

 

10.4         The Owner shall not be responsibleunder Paragraph 10.3 for materials and substances brought to the site by theContractor unless such materials or substances were required by the ContractDocuments.

 

10.5         If, without negligence on the part ofthe Contractor, the Contractor is held liable for the cost of remediation of ahazardous material or substance solely by reason of performing Work as requiredby the Contract Documents, the Owner shall indemnify the Contractor for allcost and expense thereby incurred.

 

10.6         EMERGENCIES

10.6.1      In an emergency affecting safety ofpersons or property, the Contractor shall act, at the Contractor’s discretion,to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractoror account of an emergency shall be determined as provided in Paragraph 4.3 andArticle 7.

 

ARTICLE 11 INSURANCE AND BONDS

11.1         CONTRACTOR’S LIABILITY INSURANCE

 

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11.1.1      The Contractor shall purchase from andmaintain in a company or companies lawfully authorized to do business in thejurisdiction in which the Project is located such insurance as will protect theContractor from claims set forth below which may arise out of or result fromthe Contractor’s operations under the Contract and for which the Contractor maybe legally liable, whether such operations be by the Contractor or by aSubcontractor or by anyone directly or indirectly employed by any of them, orby anyone for whose acts any of them may be liable:
| .1 |   | claims under workers’ compensation,  disability benefit and other similar employee benefit acts which are  applicable to the Work to be performed;   |
|----|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------|
| .2 |   | claims for damages because of bodily  injury, occupational sickness or disease, or death of the Contractor’s employees;                              |
| .3 |   | claims for damages because of bodily  injury, sickness or disease, or death of any person other than the  Contractor’s employees;                    |
| .4 |   | claims for damages insured by usual  personal injury liability coverage;                                                                                  |
| .5 |   | claims for damages, other than to the Work  itself, because of injury to or destruction of tangible property, including  loss of use resulting therefrom; |
| .6 |   | claims for damages because of bodily  injury, death of a person or property damage arising out of ownership,  maintenance or use of a motor vehicle;      |
| .7 |   | claims for bodily injury or property damage  arising out of completed operations; and                                                                     |
| .8 |   | claims involving contractual liability  insurance applicable to the Contractor’s obligations under Paragraph 3.18                                    |

 

11.1.2      The insurance required by Subparagraph11.1.1 shall ~~be written for not less than limits of liability specified inthe Contract Documents or required by law, whichever coverage is greater.  Coverages, whether written on an occurrenceor claims made basis, shall be maintained without interruption from date ofcommencement of the Work until date of final payment and termination of anycoverage required to be maintained after final payment~~- **include all major divisions of coverage, and shall beon a comprehensive general basis including Premises and Operations (includingX-C-U), Owner’s and Contractor’s Protective, Products and Completed Operations,and Owner non-owned, and Hired Motor Vehicles. Such insurance shall be writtenfor not less than any limits of liability required by law or those set forth inContract Documents, whichever is greater.**

 

**All insurance shall be written on anoccurrence basis, unless the Owner approves in writing coverage on aclaims-made basis. Coverages, whether written on an occurrence or claims-madebasis, shall be maintained maintained without interruption from date ofcommencement of the Work until date of final payment and termination of anycoverage required to be maintained after final payment. 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 of insurance acceptable tothe Owner shall be filed with the Owner prior to commencement of the Work.  These certificates and the insurancepolicies required by this Paragraph 11.1 shall contain a provision thatcoverges afforded under the policies will not be canceled or allowed to expireuntil at least 30 days’ prior written notice has been given to the Owner.  **Thesecertificates shall set forth evidence of all coverage required by 11.1.1. and11.1.2.  The form of certificate shallbe substantially - 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, Itsemployees, officers, partners, directors, shareholders, agents, successors, andassigns 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 inforce after final payment and are reasonably available, an additionalcertificate evidencing continuation of such coverage shall be submitted withthe final Application 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 be responsible forpurchasing and maintaining the Owner’s usual liability insurance.

 

11.3         PROJECT MANAGEMENT PROTECTIVE LIABILITYINSURANCE

11.3.1      Optionally, the Owner may require theContractor to purchase and maintain Project Management Protective Liabilityinsurance from the Contractor’s usual sources as primary coverage for theOwner’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 theOwner.  The minimum limits of liabilitypurchased with such coverage shall be equal to the aggregate of the limitsrequired for Contractor’s Liability Insurance under Clauses 11.1.1.2 through11.1.1.5.

 

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11.3.2      To the extent damages are covered byProject Management Protective Liability insurance, the Owner, Contractor andArchitect waive all rights against each other for damages, except such rightsas they may have to the proceeds of such insurance.  The policy shall provide for such waivers of subrogation byendorsement or otherwise.

 

11.3.3      The Owner shall not require the Contractorto include the Owner, Architect or other persons or entities as additionalinsureds on the Contractor’s Liability Insurance coverage under Paragraph 11.1.

 

11.4         PROPERTY INSURANCE

11.4.1      Unless otherwise provided, the Owner shallpurchase and maintain, in a company or companies lawfully authorized to dobusiness in the jurisdiction in which the Project is located, propertyinsurance written on a builder’s risk “all-risk” or equivalent policy form inthe amount of the initial Contract Sum, plus value of subsequent Contractmodifications and cost of materials supplied or installed by others, comprisingtotal value for the entire Project at the site on a replacement cost basiswithout optional deductibles. Such property insurance shall be maintained,unless otherwise provided in the Contract Documents or otherwise agreed inwriting by all persons and entities who are beneficiaries of such insurance,until final payment has been made as provided in Paragraph 9.10 or until noperson or entity other than the Owner has an insurable interest in the propertyrequired by this Paragraph 11.4 to be covered, whichever is later.  This insurance shall include interests ofthe Owner, the Contractor, Subcontractors and Sub-subcontractors in theProject.

 

11.4.1.1  Property insurance shall be on an “all-risk”or equivalent policy form and shall include, without limitation, insuranceagainst the perils of fire (with extended coverage) and physical loss or damageincluding, without duplication of coverage, theft, vandalism, maliciousmischief, collapse, earthquake, flood, windstorm, falsework, testing and startup,temporary buildings and debris removal including demolition occasioned byenforcement of any applicable legal requirements, and shall cover reasonablecompensation for Architect’s and Contractor’s services and expenses required asa result of such insured loss.

 

11.4.1.2  ~~If the Owner does not intend to purchasesuch property insurance required by the Contract and with all of the coveragesin the amount described above, the Owner shall so inform the Contractor inwriting prior to commencement of the Work. The Contractor may then effect insurance which will protect theinterests of the Contractor, Subcontractors and Sub-subcontractors in the Work,and by appropriate Change Order the cost thereof shall be charged to theOwner.  If the Contractor is damaged bythe failure or neglect of the Owner to purchase or maintain insurance asdescribed above, without so notifying the Contractor in writing, then the Ownershall bear all reasonable costs properly attributable there.~~  **If theproperty insurance requires minimum deductibles and such deductibles areidentified in the Contract Documents, the Contractor shall pay insurancerequired minimum deductibles and such deductibles are identified in theContract Documents, the Contractor shall pay costs not covered because of suchdeductibles.  If the Owner or insurerincreases the required minimum deductibles above the amount so identified or ifthe Owner elects to purchase this insurance with voluntary deductible amounts,the Owner shall be responsible for payment of the additional costs not coveredbecause of such increased or voluntary deductibles.**

 

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11.4.1.3  ~~If the property insurance requiresdeductibles, the Owner shall pay costs not covered because of such deductibles.~~

 

11.4.1.4  This property insurance shall cover portionsof the Work stored off the site, and also portions of the Work in transit.

 

11.4.1.5  Partial occupancy or use in accordance withParagraph 9.9 shall not commence until the insurance company or companiesproviding property insurance have consented to such partial occupancy or use byendorsement or otherwise.  The Owner andthe Contractor shall take reasonable steps to obtain consent of the insurancecompany or companies and shall, without mutual written consent, take no actionwith respect to partial occupancy or use that would cause cancellation, lapseor reduction of insurance.

 

11.4.2      Boiler and Machinery Insurance.  The Owner shall purchase and maintain boilerand machinery insurance required by the Contract Document or by law, whichshall specifically cover such insured objects during installation and untilfinal acceptance by the Owner; this insurance shall include interests of theOwner, Contractor, Subcontractors and Sub-subcontractors in the Work, and theOwner and Contractor shall be named insureds.

 

11.4.3      Loss of Use Insurance.  The Owner, at the Owner’s option, maypurchase and maintain such insurance as will insure the Owner against loss ofuse of the Owner’s property due to fire or other hazards, however caused.  The Owner waives all rights of actionagainst the Contractor for loss of use of the Owner’s property, includingconsequential losses due to fire or other hazards however caused.

 

11.4.4      If the Contractor requests in writing thatinsurance for risks other than those described herein or other special causesof loss be included in the property insurance policy, the Owner shall, ifpossible, include such insurance, and the cost thereof shall be charged to theContractor by appropriate Change Order.

 

11.4.5      If during the Project construction periodthe Owner insures properties, real or personal or both, at or adjacent to thesite by property insurance under policies separate from those insuring theProject, or if after final payment property insurance is to be provided on thecompleted Project through a policy or policies other than those insuring theProject during the construction period, the Owner shall waive all rights inaccordance with the terms of Subparagraph 11.4.7 for damages caused by fire orother causes of loss covered by this separate property insurance.  All separate policies shall provide thiswaiver of subrogation by endorsement or otherwise.

 

11.4.6      Before an exposure to loss may occur, theOwner shall file with the Contractor a copy of each policy that includesinsurance coverages required by this Paragraph 11.4.  Each policy shall contain all generally applicable conditions,definitions, exclusions and endorsements related to this Project.  Each policy shall contain a provision thatthe policy will not be cancelled or allowed to expire, and that its limits willnot be reduced, until at least 30 days’ prior written notice has been given tothe Contractor.

 

11.4.7      Waivers of Subrogation.  The Owner and Contractor waive all rightsagainst (1) each other and any of their subcontractors, sub-subcontractors,agents and employees, each of the other, and (2) the Architect, Architect’sconsultants, separate contractors described in Article 6, if any, and any oftheir subcontractors, sub-subcontractors, agents and employees, for damagescaused by fire or other causes of loss to the extent covered by propertyinsurance obtained pursuant to this Paragraph 11.4 or other property insuranceapplicable to the Work, except such rights as they have to proceeds of suchinsurance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall require of the Architect,Architect’s consultants, separate contractors described in Article 6, if any,and the subcontractors, sub-subcontractors,

 

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agents andemployees of any of them, by appropriate agreements, written where legallyrequired for validity, similar waivers each in favor of other partiesenumerated herein.  The policies shallprovide 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~~the insurance premium **has**directly or indirectly **been paid,**~~and whether or not the person or entity had on insurable interest in theproperty damaged~~.

 

11.4.8      A loss insured under Owner’s propertyinsurance shall be adjusted by the Owner as fiduciary and made payable to theOwner as fiduciary for the insureds, as their interests may appear, subject torequirements of any applicable mortgage clause and of Subparagraph11.4.10.  The Contractor shall paySubcontractors their just shares of insurance proceeds received by theContractor, and by appropriate agreements, written where legally required forvalidity, shall require Subcontractors to make payments to theirsub-contractors in similar manner.

 

11.4.9      If required in writing by a party ininterest, the Owner as fiduciary shall, upon occurrence of an insured 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,which the Owner shall distribute in accordance with such agreement as theparties in interest may reach, or in accordance with an arbitration award inwhich case the procedure shall be as provided in Paragraph 4.6.  If after such loss no other specialagreement is made and unless the Owner terminates the Contract for convenience,replacement of damaged property shall be performed by the Contractor afternotification of a Change in the Work in accordance with Article 7.

 

11.4.10    The Owner as fiduciary shall have power toadjust and settle a loss with insurers unless one of the parties in interestshall object in writing within five days after occurrence of loss to theOwner’s exercise of this power, if such objection is made, the dispute shall beresolved as provided in Paragraphs 4.5 and 4.6.  The Owner as fiduciary shall, in the case of arbitration, makesettlement with insurers in accordance with directions of the arbitrators.  If distribution of insurance proceeds byarbitration is required, the arbitrators will direct such distribution.

 

11.5         PERFORMANCE BOND AND PAYMENT BOND

11.5.1      The Owner shall have the right to requirethe Contractor to furnish bonds covering faithful performance of the Contractand payment of obligations arising hereunder as stipulated in biddingrequirements or specifically required in the Contract Documents on the date ofexecution of the Contract.

 

11.5.2      Upon the request of any person or entityappearing to be a potential beneficiary of bonds covering payment ofobligations arising under the Contract, the Contractor shall promptly furnish acopy of the bonds or shall permit a copy to be made.

 

ARTICLE 12          UNCOVERING AND CORRECTION OF WORK

12.1         UNCOVERING OF WORK

12.1.1      If a portion of the Work is coveredcontrary to the Architect’s request or to requirements specifically expressedin the Contract Documents, it must, if required in writing by the Architect, beuncovered for the Architect’s examination and be replaced at the Contractor’sexpense without change in the Contract Time.

 

12.1.2      If a portion of the Work has been coveredwhich the Architect has not specifically requested to examine prior to itsbeing covered, the Architect may request to see such Work and it shall beuncovered by the Contractor.  If suchWork is in accordance with the Contract Documents, costs of uncovering andreplacement shall, by appropriate Change Order, be at the Owner’s expense.  If such Work is not in accordance with theContract Documents, correction

 

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shall be atthe Contractor’s expense unless the condition was caused by the Owner or aseparate contractor in which event the Owner shall be responsible for paymentof such costs.

 

12.2         CORRECTION OF WORK

12.2.1      BEFORE OR AFTER SUBSTANTIAL COMPLETION

12.2.1.1   The Contractor shall promptly correct Workrejected by the Architect or failing to conform to the requirements of theContract Documents, whether discovered before or after Substantial Completionand whether or not fabricated, installed or completed. Costs of correction suchrejected Work, including additional testing and inspections and compensationfor the Architect’s services and expenses made necessary thereby, shall be atthe Contractor’s expense.

 

12.2.2      AFTER SUBSTANTIAL COMPLETION

12.2.2.1   In addition to the Contractor’s obligationsunder Paragraph 3.5, if, within one year after the date of SubstantialCompletion of the Work or designated portion thereof or after the date forcommencement of warranties established under Subparagraph 9.9.1, or by terms ofan applicable special warranty required by the Contract Documents, any of theWork is found to be not in accordance with the requirements of the ContractDocuments, the Contractor shall correct it promptly after receipt of writtennotice from the Owner to do so unless the Owner has previously given theContractor a written acceptance of such condition. The Owner shall give suchnotice promptly after discovery of the condition. During the one-year periodfor correction of Work, if the Owner fails to notify the Contractor and givethe Contractor an opportunity to make the correction, the Owner waives therights to require correction by the Contractor and to make a claim for breachof warranty. If the Contractor fails to correct nonconforming Work within areasonable time during that period after receipt of notice from the Owner orArchitect, the Owner may correct it in accordance with Paragraph 2.4.

 

12.2.2.2  The one-year period for correction of Workshall be extended with respect to portions of Work first performed afterSubstantial Completion by the period of time between Substantial Completion andthe actual performance of the Work.

 

12.2.2.3  The one-year period for correction of Workshall not be extended by corrective Work performed by the Contractor pursuantto this Paragraph 12.2.

 

12.2.3      The Contractor shall remove from the siteportions of the Work which are not in accordance with the requirements of theContract Documents and are neither corrected by the Contractor nor accepted bythe 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 in this Paragraph 12.2shall be construed to establish a period of limitation with respect to otherobligations which the Contractor might have under the Contract Documents.Establishment of the one-year period for correction of Work as described inSubparagraph 12.2.2 relates only to the specific obligation of the Contractorto correct the Work, and has no relationship to the time within which theobligation to comply with the Contract Documents may be sought to be enforced,nor to the time within which proceedings may be commenced to establish theContractor’s liability with respect to the Contractor’s obligations other thanspecially to correct the Work.

 

12.3         ACCEPTANCE OF NONCONFORMING WORK

 

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

 

ARTICLE 13          MISCELLANEOUS PROVISIONS

13.1         GOVERNING LAW

13.1.1      The Contract shall be governed by the lawof the place where the Project is located.

 

13.2         SUCCESSORS AND ASSIGNS

13.2.1      The Owner and Contractor respectively bindthemselves, their partners, successors, assigns and legal representatives tothe other party hereto and to partners, successors, assigns and legalrepresentatives of such other party in respect to covenants, agreements andobligations contained in the Contract Documents. ~~Except as provided inSubparagraph 13.2.2, neither party to the Contract shall assign the Contract asa whole without written consent of the other.~~**Except as hereinafter provided, neither party to the Contract shallassign the Contract or sublet it as a whole without the written consent of theother nor shall be Contractor assign any moneys due or to become due to himhereunder, without the previous written consent of the Owner excepts as may berequired by Contractor’s Surety. Upon reasonable written notice to Contractor,the Owner may assign the Contract to any institutional lender providingconstruction or permanent financing for the Project or to any person acquiringthe Owner’s interest in the Project and the contractor agrees to execute allconsents certificates and other documents required by such lender or otherperson in connection with such assignment**. 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 theContractor, assign the Contract to an institutional lender providingconstruction financing for the Project. In such event, the lender shall assumethe Owner’s rights and obligations under the Contract Documents. The Contractorshall execute all consents reasonably required to facilitate such assignment.~~**If the Owner conveys its interest in theProject to a third party, any rights which the Owner may have against theContractor arising from this Agreement including without limitation Claimsunder Article 12, or Claims which, under the terms of subparagraph 4.3.10, arereserved to the Owner after the making and acceptance of final payment, shallautomatically transfer to such third party.**

 

13.3         WRITTEN NOTICE

13.3.1      Written notice shall be deemed to havebeen duly served if delivered in person to the individual or a member of thefirm or entity or to an officer of the corporation for which it was intended,or if delivered at or sent by registered or certified mail to the last businessaddress known to the party giving notice.

 

13.4         RIGHTS AND REMEDIES

 

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13.4.1      Duties and obligations imposed by theContract Documents and rights and remedies available thereunder shall be inaddition to and not a limitation of duties, obligations, rights and remediesotherwise imposed or available by law.

 

13.4.2      No action or failure to act by the Owner,Architect or Contractor shall constitute a waiver of a right or duty affordedthem under the Contract, nor shall such action or failure to act constituteapproval of or acquiescence in a breach thereunder, except as may bespecifically agreed in writing.

 

13.5         TESTS AND INSPECTIONS

13.5.1      Tests, inspections and approvals ofportions of the Work required by the Contract Documents or by laws, ordinances,rules, regulations or orders of public authorities having jurisdiction shall bemade at an appropriate time. Unless otherwise provided, the Contractor shallmake arrangements for such tests, inspections and approvals with an independenttesting laboratory or entity acceptable to the Owner, or with the appropriatepublic authority, and shall bear all related costs of tests, inspections andapprovals. The Contractor shall give the Architect timely notice of when andwhere tests and inspections are to be made so that the Architect may be presentfor such procedures. The Owner shall bear costs of tests, inspections orapprovals which do not become requirements until after bids are received ornegotiations concluded.

 

13.5.2      If the Architect, Owner or publicauthorities having jurisdiction determine that portions of the Work requireadditional testing, inspection or approval not included under Subparagraph13.5.1, the Architect will, upon written authorization from the Owner, instructthe Contractor to make arrangements for such additional testing, inspection orapproval by an entity acceptable to the Owner, and the Contractor shall givetimely notice to the Architect of when and where tests and inspections are tobe made so that the Architect may be present for such procedures. Such costs,except as provided in Subparagraph 13.5.3, shall be at the Owners’ expense.

 

13.5.3      If such procedures for testing, inspectionor approval under Subparagraphs 13.5.1 and 13.5.2 reveal failure of theportions of the Work to comply with requirements established by the ContactDocuments, all costs made necessary by such failure including those of repeatedprocedures and compensation for the Architect’s services and expenses shall beat the Contractor’s expense.

 

13.5.4      Required certificates of testing,inspection or approval shall, unless otherwise required by the ContractDocuments, be secured by the Contractor and promptly delivered to theArchitect.

 

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

 

13.5.6      Tests or inspections conducted pursuant tothe Contract Document shall be made promptly to avoid unreasonable delay in theWork.

 

13.6         INTEREST

13.6.1      Payments due and unpaid under the ContractDocuments shall bear interest ~~from the date payment is due at such rate asthe parties may agree upon in writing or, in the absence thereof, at the legalrate prevailing from time to time at the place where the Project is located~~**beginning on the tenth (10th) day afterthe date payment is due at the so-called Prime Rate of interest published bythe Wall Street Journal (and if there is more than one such rate the lowestthereof).**

 

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13.7         COMMENCEMENT OFSTATUTORY LIMITATION PERIOD

13.7.1      ~~As between the Owner and Contractor:~~

.1            ~~Before Substantial Completion. As toacts or failures to act occurring prior to the relevant date of Substantial Completion,any applicable statute of limitations shall commence to run and any allegedcause of action shall be deemed to have accrued in any and all events not laterthan such date of Substantial Completion.~~

.2            ~~Between Substantial Completion andFinal Certificate for Payment. As to acts or failures to act occurringsubsequent to the relevant date of Substantial Completion and prior to issuanceof the final Certificate for Payment, any applicable statute of limitationsshall commence to run and any alleged cause of action shall be deemed to haveaccrued in any and all events not later than the date of issuance of the finalCertificate for Payment; and~~

.3            ~~After Final Certificate for Payment.As to acts or failures to act occurring after the relevant date of issuance ofthe final 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 of the Work by theContractor under Paragraph 12.2, or the date of actual commission of any otheract or failure to perform any duly or obligation by the Contractor or Owner,whichever occurs last.~~

 

13.8 LIMITATION OF LIABILITY

 

13.8.1 No officer, shareholder,director, partner, partner agent or employee of the Owner (or any partner of apartner or any agent or employee of a partner) shall ever be personally orindividually liable under this Contract. Each subcontract shall include the foregoing limitation, which shall beeffective if the Owner ever succeeds to the Contractor’s rights and obligationsunder a Subcontract.

 

ARTICLE 14          TERMINATION OR SUSPENSION OF THECONTRACT

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-subcontractoror their agents or employees or any other persons entities performing portionsof the Work under direct or indirect contract with the Contractor, for any ofthe following reasons:

.1             issuance of anorder of a court or other public authority having jurisdiction which requiresall Work to be stopped;

.2             an act ofgovernment, such as a declaration of national emergency which requires all Workto be stopped;

.3            because theArchitect 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            ~~the Owner has failed to furnish tothe Contractor promptly, upon the Contractor’s request, reasonable evidence asrequired by Subparagraph 2.2.1.~~

 

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14.1.2      The Contractor may terminate the Contract if, through no act orfault of the Contractor or a Subcontractor, Sub-subcontractor or their agentsor employees or any other persons or entities performing portions of the Workunder direct or indirect contract with the Contractor, repeated suspensions,delays or interruptions of the entire Work by the Owner as described inParagraph 14.3 constitute in the aggregate more than 100 percent of the totalnumber of days scheduled for completion, or 120 days in any 365-day period,whichever is less.

 

14.1.3      If one of the reasons described in Subparagraph 14.1.1 or14.1.2 exists, the Contractor may, upon seven days’ written notice to the Ownerand Architect, terminate the Contract and recover from the Owner payment forWork executed and for proven loss with respect to materials, equipment, tools,and construction equipment and machinery, including reasonable overhead, profitand damages.

 

14.1.4      If the Work is stopped for a period of 60 consecutive daysthrough no act or fault of the Contractor or a Subcontractor or their agents oremployees or any other persons performing portions of the Work under contractwith the Contractor because the Owner has persistently failed to fulfill theOwner’s obligations under the Contract Documents with respect to mattersimportant to the progress of the Work, the Contractor may, upon sevenadditional days’ written notice to the Owner and the Architect, terminate theContract and recover from the Owner as provided in Subparagraph 14.1.3.

 

14.2         TERMINATION BY THE OWNER FOR CAUSE

14.2.1      **If the Contractor isadjudged a bankrupt or if the Contractor makes a general assignment for thebenefit of the Contractor;’s creditors or if a receiver is appointed on accountof the Contractor’s Insolvency or if the Contractor persistently or repeatedlyrefuses or fails except in the case for which extension of time is provided, tosupply enough properly skilled workmen or proper materials for the Project orif the Contractor fails to make prompt payment to Subcontractors for materialsor labor, or if the Contractor persistently disregards the laws ordinances,rules, regulations or orders of any public authority having jurisdiction ordisregards an instruction, order or decision of the Architect or if theContractor otherwise is guilty of a substantial violation of any provision ofthe Contract then the Contractor shall be in default and the Owner may withoutprejudice to any other right or remedy and upon written notice to theContractor take possession of all materials, appliances equipment and machineryon the Project site, intended as a part of or for Work, but only to the extentpaid for by Owner wherever stored and seven (7) days after such notice amyterminate the employment of the Contractor, accept assignment of any or allsubcontracts pursuant to Paragraph 5.4, and finish the Work by whatever methodthe Owner may deem expedient. The Owner shall be entitled to collect form theContractor all direct indirect and consequential damages suffered by the Owner.The Owner shall be entitled to hold**

 

86

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**sufficientamounts due the Contractor at the date of termination to offset all of the Owner’s damages.**
|   | ~~The Owner may  terminate the Contract if the Contractor:~~ |                                                                                                                                                             |
|--------|--------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   | ~~.1~~                                                       | ~~persistently or  repeatedly refuses or fails to supply enough properly skilled workers or  proper materials~~                                                  |
|   | ~~.2~~                                                       | ~~fails to make  payment to Subcontractors for materials or labor in accordance with the  respective agreements between the Contractor and the Subcontractors;~~ |
|   | ~~.3~~                                                       | ~~persistently  disregards laws, ordinance, or rules, regulations or orders of a public  authority having jurisdiction; or~~                                     |
|   | ~~.4~~                                                       | ~~otherwise is  guilty of substantial breach of a provision of the Contract Documents.~~                                                                         |
|        |                                                              |                                                                                                                                                                  |  |

 

14.2.2      When any of the above reasons exist, the Owner, uponcertification by the Architect that sufficient cause exists to justify suchaction, may without prejudice to any other rights or remedies of the Owner andafter giving the Contractor and the Contractor’s surety, if any, seven days’written notice, terminate employment of the Contractor and may, subject to anyprior rights of the surety:
| .1 | take  possession of the site and of all materials, equipment, tools, and  construction equipment and machinery thereon owned by the Contractor;                                                                                       |
|----|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| .2 | accept  assignment of subcontracts pursuant to Paragraph 5.4; and                                                                                                                                                                     |
| .3 | finish the  Work by whatever reasonable method the Owner may deem expedient. Upon request  of the Contractor, the Owner shall furnish to the Contractor a detailed  accounting of the costs incurred by the Owner finishing the Work. |

 

14.2.3      When the Owner terminates the Contract for one of the reasonsstated in Subparagraph 14.2.1, the Contractor shall not be entitled to receivefurther payment until the Work is finished.

 

14.2.4      If the unpaid balance of the Contract Sum exceeds costs offinishing the Work, including compensation for the Architect’s services andexpenses made necessary thereby, and other damages incurred by the Owner andnot expressly waived, such excess shall be paid to the Contractor. If suchcosts and damage exceed the unpaid balance, the Contractor shall pay the differenceto the Owner. The amount to be paid to the Contractor or Owner, as the case maybe, shall be certified by the Architect, upon application, and this obligationfor payment shall survive termination of the Contract.

 

14.3         SUSPENSION BY THE OWNER FOR CONVENIENCE

14.3.1      The Owner may, without cause, order the Contractor in writingto suspend, delay or interrupt the Work in whole or in part for such period oftime as the Owner may determine.

 

14.3.2      The Contract Sum and Contract Time shall be adjusted for increasesin the cost and time caused by suspension, delay or interruption as describedin Subparagraph 14.3.1. Adjustment of the Contract Sum shall include profit. Noadjustment shall be made to the extent:
| .1 | that  performance is, was or would have been so suspended, delayed or interrupted  by another cause for which the Contractor is responsible; or |
|----|-------------------------------------------------------------------------------------------------------------------------------------------------|
| .2 | that an  equitable adjustment is made or denied under another provision of the  Contract.                                                       |

 

14.4         TERMINATION BY THE OWNER FOR CONVENIENCE

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

 

87

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14.4.2      Upon receipt of written notice from theOwner of such termination for the Owner’s convenience, the Contractor shall:
| .1 |   | cease  operations as directed by the Owner in the notice;                                                                                                                                                                        |
|----|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| .2 |   | take actions  necessary, or that the Owner may direct, for the protection and preservation  of the Work; and                                                                                                                     |
| .3 |   | except for  Work directed to be performed prior to the effective date of termination  stated in the notice, terminate all existing subcontracts and purchase orders  and enter into no further subcontracts and purchase orders. |

 

14.4.3      In case of such termination for theOwner’s convenience, the Contractor shall be entitled to receive payment forWork executed, and costs incurred by reason of such termination, along withreasonable overhead and profit on the Work not executed.

**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.**

 

88

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| **ATTACHMENT II** |   | **Wheeling Downs Racetrack & Gaming  Center** |
|-------------------|--------|---------------------------------------------------|
| **June 19,2002**  |   | **Reimbursable Expenses Budget Worksheet**        |

 

 

**DesignPhase (based on 6 month duration)**

** **
| **Travel Expenses**                                      |   | **Costs per Person** |   |                 |   | **Costs per Trip** |       |      |   |               |   |                  |   |
|----------------------------------------------------------|--------|----------------------|--------|----------------------|--------|--------------------|------------|-----------|--------|--------------------|--------|-----------------------|--------|
| **Firm**                                                 |   | **Destination**      |   | **Travel (Airfare)** |   | **Lodging**        |       | **Meals** |   | **Misc. *  Costs** |   | **Number of Persons** |   | **Travel (Mileage)** |   | **Car Rental** |   | **Subtotal  Costs / Trip** |   | **Number of  Trips** |   | **Sub - Total** |   |
| JCJ                                                      |   | Buffalo              |   | $                    | 400    |               |       |      | $      | 20                 |   | $                     | 30     |   | 3 |   |   |   |   |   | $ | 1,350 |   | 8 |   | $ | 10,800 |   |
| JCJ                                                      |   | Buffalo              |   | $                    | 400    |               | $          | 145       |   | $                  | 40     |                  | $      | 30 |   | 3 |   |   |   |   |   | $ | 1,845 |   | 4 |   | $ | 7,380 |   |
| JCJ                                                      |   | Wheeling             |   | $                    | 985    |               | $          | 95        |   | $                  | 40     |                  | $      | 30 |   | 3 |   |   |   | $ | 100 |   | $ | 3,550 |   | 4 |   | $ | 14,200 |   |
|                                                     |   |                 |   |                 |   |               |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| McKinley                                                 |   | Buffalo              |   | $                    | 600    |               | $          | 145       |   | $                  | 40     |                  | $      | 40 |   | 2 |   |   |   |   |   | $ | 1,650 |   | 2 |   | $ | 3,300 |   |
| McKinley                                                 |   | Buffalo              |   |                 |   |               | $          | 145       |   | $                  | 40     |                  | $      | 40 |   | 2 |   | $ | 180 |   |   |   | $ | 630 |   | 1 |   | $ | 5,040 |   |
| McKinley                                                 |   | Hartford             |   | $                    | 985    |               | $          | 145       |   | $                  | 40     |                  | $      | 40 |   | 2 |   |   |   | $ | 100 |   | $ | 2,520 |   | 2 |   | $ | 5,040 |   |
|                                                     |   |                 |   |                 |   |               |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| M/E                                                      |   | Wheeling             |   |                 |   |               |       | $         | 40     |               | $      | 40                    |   | 3 |   | $ | 180 |   |   |   | $ | 420 |   | 4 |   | $ | 1,680 |   |
| M/E                                                      |   | Hartford             |   | $                    | 400    |               | $          | 145       |   | $                  | 40     |                  | $      | 40 |   | 3 |   |   |   |   |   | $ | 1,875 |   | 2 |   | $ | 3,750 |   |
|                                                     |   |                 |   |                 |   |               |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| JEM                                                      |   | Buffalo              |   | $                    | 450    |               |       |      | $      | 40                 |   | $                     | 40     |   | 1 |   |   |   |   |   | $ | 530 |   | 2 |   | $ | 1,060 |   |
| JEM                                                      |   | Wheeling             |   | $                    | 400    |               | $          | 100       |   | $                  | 40     |                  | $      | 20 |   | 1 |   |   |   | $ | 100 |   | $ | 660 |   | 4 |   | $ | 2,640 |   |
| JEM                                                      |   | Hartford             |   | $                    | 450    |               | $          | 145       |   | $                  | 40     |                  | $      | 50 |   | 1 |   |   |   |   |   | $ | 685 |   | 2 |   | $ | 1,370 |   |
|                                                     |   |                 |   |                 |   |               |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| Acoustic                                                 |   | Buffalo              |   | $                    | 450    |               |       |      | $      | 40                 |   | $                     | 40     |   | 1 |   |   |   |   |   | $ | 530 |   | 2 |   | $ | 1,060 |   |
| Acoustic                                                 |   | Wheeling             |   | $                    | 400    |               | $          | 95        |   | $                  | 40     |                  | $      | 20 |   | 1 |   |   |   | $ | 100 |   | $ | 655 |   | 2 |   | $ | 1,130 |   |
|                                                     |   |                 |   |                 |   |               |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| Lighting                                                 |   | Buffalo              |   | $                    | 450    |               |       |      | $      | 40                 |   | $                     | 40     |   | 1 |   |   |   |   |   | $ | 530 |   | 2 |   | $ | 1,060 |   |
| Lighting                                                 |   | Wheeling             |   | $                    | 400    |               | $          | 95        |   | $                  | 40     |                  | $      | 20 |   | 1 |   |   |   | $ | 100 |   | $ | 655 |   | 2 |   | $ | 1,310 |   |
| Lighting                                                 |   | Hartford             |   |                 |   |               |       | $         | 40     |               | $      | 20                    |   | 1 |   | $ | 100 |   |   |   | $ | 160 |   | 2 |   | $ | 320 |   |
|                                                     |   |                 |   |                 |   |               |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| Other Expenses                                           |   |                 |   |                 |   |               |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| Printing Costs                                           |   |                 |   | $                    | 1,250  |               | per  month |      |   | @                  | 8      |                  | Months |   |   |   |   |   |   |   |   |   | $ | 10,000 |   |
| Mileage Charges                                          |   |                 |   | $                    | 200    |               | per  month |      |   | @                  | 8      |                  | Months |   |   |   |   |   |   |   |   |   | $ | 1,600 |   |
| Delivery Charges                                         |   |                 |   | $                    | 200    |               | per  month |      |   | @                  | 8      |                  | Months |   |   |   |   |   |   |   |   |   | $ | 1,600 |   |
| Fax Cost                                                 |   |                 |   | $                    | 200    |               | per  month |      |   | @                  | 8      |                  | Months |   |   |   |   |   |   |   |   |   | $ | 1,600 |   |
| Misc. Costs                                              |   |                 |   | $                    | 200    |               | per  month |      |   | @                  | 8      |                  | Months |   |   |   |   |   |   |   |   |   | $ | 1,600 |   |
|                                                     |   |                 |   |                 |   |               |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |   |   |
| Design Phase Anticipated Reimbursable Expenses Sub-Total |   |                 |   |                 |   |               |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   | $ | 77,700 |   |
|                                                          |        |                      |        |                      |        |                    |            |           |        |                    |        |                       |        |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |

** **

----

*Parking,Cabfares, Airport Parking, Tolls

** **

**ConstructionPhase (Based on 16 month duration)**

 
| **Travel Expenses**                                                              |        | **Costs per Person** |   |                 |   | **Cost per Trip** |       |      |   |               |   |                  |   |
|----------------------------------------------------------------------------------|-------------|----------------------|--------|----------------------|--------|-------------------|------------|-----------|--------|--------------------|--------|-----------------------|--------|
| **Firm**                                                                         |        | **Destination**      |   | **Travel (Airfare)** |   | **Lodging**       |       | **Meals** |   | **Misc. *  Costs** |   | **Number of Persons** |   | **Travel  (Mileage)** |   | **Car  Rental** |   | **Subtotal  Costs / Trip** |   | **Number of  Trips** |   | **Sub-Total** |   |
| JCJ                                                                              |        | Buffalo              |   | $                    | 400    |              |       |      | $      | 20                 |   | $                     | 40     |   | 2 |   |   |   |   |   | $ | 920 |   | 4 |   | $ | 3,680 |   |
| JCJ                                                                              |        | Buffalo              |   | $                    | 400    |              | $          | 150       |   | $                  | 40     |                  | $      | 40 |   | 2 |   |   |   |   |   | $ | 1,260 |   | 2 |   | $ | 2,520 |   |
| JCJ                                                                              |        | Wheeling             |   | $                    | 985    |              | $          | 100       |   | $                  | 40     |                  | $      | 20 |   | 2 |   |   |   | $ | 100 |   | $ | 2,390 |   | 16 |   | $ | 38,240 |   |
|                                                                             |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| McKinley                                                                         |        | Buffalo              |   | $                    | 600    |              | $          | 150       |   | $                  | 40     |                  | $      | 40 |   | 2 |   |   |   |   |   | $ | 1,660 |   | 2 |   | $ | 3,320 |   |
| McKinley                                                                         |        | Buffalo              |   |                 |   | $                 | 150        |      | $      | 40                 |   | $                     | 40     |   | 2 |   | $ | 180 |   |   |   | $ | 640 |   | 2 |   | $ | 1,280 |   |
| McKinley                                                                         |        | Hartford             |   | $                    | 980    |              | $          | 150       |   | $                  | 40     |                  | $      | 20 |   | 2 |   |   |   | $ | 100 |   | $ | 2,480 |   | 2 |   | $ | 4,960 |   |
|                                                                             |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| M/E                                                                              |        | Wheeling             |   |                 |   |              |       | $         | 40     |               | $      | 40                    |   | 3 |   | $ | 180 |   |   |   | $ | 420 |   | 14 |   | $ | 5,880 |   |
| M/E                                                                              |        | Hartford             |   | $                    | 400    |              | $          | 150       |   | $                  | 40     |                  | $      | 40 |   | 3 |   |   |   |   |   | $ | 1,890 |   | 2 |   | $ | 3,780 |   |
|                                                                             |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| JEM                                                                              |        | Buffalo              |   | $                    | 450    |              | $          | 40        |   |               |   | $                     | 40     |   | 1 |   |   |   |   |   | $ | 530 |   | 2 |   | $ | 1,060 |   |
| JEM                                                                              |        | Wheeling             |   | $                    | 400    |              | $          | 100       |   | $                  | 40     |                  | $      | 20 |   | 1 |   |   |   | $ | 100 |   | $ | 660 |   | 8 |   | $ | 5,280 |   |
| JEM                                                                              |        | Hartford             |   | $                    | 500    |              | $          | 150       |   | $                  | 40     |                  | $      | 50 |   | 1 |   |   |   |   |   | $ | 740 |   | 1 |   | $ | 740 |   |
|                                                                             |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| Acoustic                                                                         |        | Buffalo              |   | $                    | 450    |              | $          | 40        |   |               |   | $                     | 40     |   | 1 |   |   |   |   |   | $ | 530 |   | 1 |   | $ | 530 |   |
| Acoustic                                                                         |        | Wheeling             |   | $                    | 400    |              | $          | 100       |   | $                  | 40     |                  | $      | 20 |   | 1 |   |   |   | $ | 100 |   | $ | 660 |   | 2 |   | $ | 1,320 |   |
|                                                                             |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| Lighting                                                                         |        | Buffalo              |   | $                    | 450    |              |       |      | $      | 40                 |   | $                     | 40     |   | 1 |   |   |   |   |   | $ | 530 |   | 1 |   | $ | 530 |   |
| Lighting                                                                         |        | Wheeling             |   | $                    | 400    |              | $          | 100       |   | $                  | 40     |                  | $      | 20 |   | 1 |   |   |   | $ | 100 |   | $ | 660 |   | 3 |   | $ | 1,980 |   |
|                                                                             |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| Other Expenses                                                                   |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| Printing Costs                                                                   |        |                 |   | $                    | 600    |              | per  month |      |   | @                  | 16     |                  | Months |   |   |   |   |   |   |   |   |   | $ | 9,600 |   |
| Mileage Charges                                                                  |        |                 |   | $                    | 100    |              | per  month |      |   | @                  | 16     |                  | Months |   |   |   |   |   |   |   |   |   | $ | 1,600 |   |
| Delivery Charges                                                                 |        |                 |   | $                    | 400    |              | per  month |      |   | @                  | 16     |                  | Months |   |   |   |   |   |   |   |   |   | $ | 6,400 |   |
| Fax Cost                                                                         |        |                 |   | $                    | 400    |              | per  month |      |   | @                  | 16     |                  | Months |   |   |   |   |   |   |   |   |   | $ | 6,400 |   |
| Misc. Costs                                                                      |        |                 |   | $                    | 200    |              | per  month |      |   | @                  | 16     |                  | Months |   |   |   |   |   |   |   |   |   | $ | 3,200 |   |
|                                                                             |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |   |   |
| Construction Phase Anticipated Reimbursable Expenses Sub -Total                  |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   | $ | 102,300 |   |
| Design Phase Anticipated Reimbursable Expenses Sub - Total (from  previous page) |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   | $ | 77,700 |   |
|                                                                             |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |
| Total Anticipated Reimbursable Expenses                                          |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   | $ | 180,000 |   |
| Reimbursable Expenses Contingency                                                |        |                 |   |                 |   |              |       |      | @      | 10                 | %      |                  |   |   |   |   |   |   |   |   |   | $ | 18,000 |   |
|                                                                             |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   |   |   |   |
| Design Phase Anticipated Reimbursable Expenses Sub-Total                         |        |                 |   |                 |   |              |       |      |   |               |   |                  |   |   |   |   |   |   |   |   |   | **$** |   |   |
| ** Total Project Reimbursable Expenses Budget**                             | **198,000** |                 |
|                                                                                  |             |                      |        |                      |        |                   |            |           |        |                    |        |                       |        |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

----

* Parking, Cabfares, Airport Parking, Tolls

 

89

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| [JETER COOK  & JEPSON ARCHITECTS, INC. LOGO] |   | **Wheeling Downs Racetrack & Gaming  Center** |
|--------------------------------------------------|--------|---------------------------------------------------|
|                                             |   | **Wheeling, West Virginia**                       |
|                                             |   |                                              |
| **June 19, 2002**                                |   | **PHASE II A / E DESIGN COSTS SCHEDULE**          |

 

**ATTACHMENT III**

 

**Assumptions**

 

The following Schedule ofDesign Costs for Architect / Engineer Basic Services and Additional ConsultingServices is prepared in accordance with the Standard Form of Agreement BetweenOwner and Architect (ALA Document B141) with JCJ Standard Terms and Conditions,and reflects the scope of services described therein. The construction costsshown are extracted form the most current Construction Budget prepared by LouisP. Ciminelli Construction Co., Inc. dated January 9, 2002, and adjusted per DNCdirectives. In the event that the scope and/or value of the proposed project isadjusted upwards in the future, the Schedule of Design Costs shall be revisedaccordingly. JCJ proposes to adjust (if required) and confirm the budget / feeschedule at the conclusion of the Design Development phase and at the time ofGMP Submission by the Construction Manager.

 
| Total Project Construction Budget   Deductions        |   | $  $  $ | 40,690,000  -516,500  -200,000 |   | Per LPCCC  Budget: 1/9/02  Use & Occupancy Tax  Sales Tax Recovery Staff |   |
|-------------------------------------------------------|--------|---------|--------------------------------|--------|------------------------------------------------------------------------------|--------|
|                                                  |   |    |                           |   |                                                                         |
| Total Project Construction Budget -  Adjusted         |   | $       | 39,973,500                     |   | Per LPCCC  Budget: 1/9/02                                                    |   |
|                                                  |   |    |                           |   |                                                                         |
| Hotel and Related Spaces Construction  Budget         |   | $       | 7,420,300                      |   | Per LPCCC  Budget: 1/9/02                                                    |   |
|                                                  |   |    |                           |   |                                                                         |
| Parking Level and Related Spaces  Construction Budget |   | $       | 5,911,500                      |   | Per LPCCC  Budget: 1/9/02                                                    |   |
|                                                  |   |    |                           |   |                                                                         |
| Casino & Related Spaces Construction  Budget      |   | $       | 26,641,700                     |   | Per LPCCC  Budget: 1/9/02                                                    |   |

 

90

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| **Scope Item**                                  |   | **Construction  Value** |       | **Design  Cost  Factor** |   | **Design  Cost  Value** |   | **JCJ Team  Design Costs** |          | **Remarks** |                                    |
|-------------------------------------------------|--------|-------------------------|------------|--------------------------|--------|-------------------------|--------|----------------------------|---------------|-------------|-----------------------------------------|
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |
| **Basic Services**                              |   |                    |       |                     |   |                    |   |                       |          |        |                                    |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |
| Casino & Related Spaces                     |   | $                       | 26,641,700 |                     | 7.50   | %                       | $      | 1,998,128                  |          | $           | 1,998,128                               |   | Basic  Services |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |   |   |
| Parking Level and Related Spaces                |   | $                       | 5,911,500  |                     | 4.50   | %                       | $      | 266,018                    |          | $           | 266,018                                 |   | Basic  Services |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |   |   |
| Hotel and Related Spaces                        |   | $                       | 7,620,000  |                     | 6.50   | %                       | $      | 495,300                    |          | $           | 495,300                                 |   | Basic  Services |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |
| **Total A/E Basic Services Design Costs**       |   |                    |       |                     |   |                    |   | **$**                      | **2,759,445** |        |                                    |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |
| **Additional Services**                         |   |                    |       |                     |   |                    |   |                       |          |        |                                    |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |
| Masterplanning - Original agreement:            |   | $                       | 32,000     |                     |   |                    | $      | 43,182                     |          | $           | 11,182                                  |   | For work  previously completed |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |   |
| Alternate Schematic Design                      |   |                    |       |                     |   | $                       | 10,000 |                       | $             | 10,000      |                                    | Schemes B, C  & D schematic designs |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |   |
| Scheme E Redesign - Architectural               |   |                    |       |                     |   | $                       | 50,627 |                       | $             | 50,627      |                                    | Scheme E -  SD / DD / CD |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |   |
| Scheme E Redesign - MEP                         |   |                    |       |                     |   | $                       | 27,500 |                       | $             | 27,500      |                                    | Scheme E -  SD / DD / CD |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |   |
| Scheme E Redesign - Structural / Civil          |   |                    |       |                     |   | $                       | 39,206 |                       | $             | 39,206      |                                    | Scheme E -  SD / DD / CD |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |   |
| Programming / Space Schematics / Flow  Diagrams |   |                    |       |                     |   |                    |   | $                          | 0             |        | Included as  part of Basic Services     |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |
| Land Survey Services                            |   |                    |       |                     |   | $                       | 10,000 |                       | $             | 0           |                                    | Provided by  DNC |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |   |
| Geotechnical Services                           |   |                    |       |                     |   | $                       | 55,180 |                       | $             | 0           |                                    | Provided by  DNC |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |   |
| Existing Facilities Surveys                     |   |                    |       |                     |   | $                       | 3,000  |                       | $             | 3,000       |                                    | Allowance |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |   |
| Economic Feasibility Study                      |   |                    |       |                     |   |                    |   | $                          | 0             |        | Conducted /  Provided by DNC            |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |
| Environmental Studies and Reports               |   |                    |       |                     |   |                    |   | $                          | 0             |        | DNC may  authorize as Change in Service |   |
| Owner Supplied Data Coordination                |   |                    |       |                     |   |                    |   | $                          | 0             |        | See Below                               |   |
|                                            |   |                    |       |                     |   |                    |   |                       |          |        |                                    |   |
| Schedule Development and Monitoring             |   |                    |       |                     |   |                    |   | $                          | 0             |        | Provided by  Construction Manager       |   |

 

91

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| **Scope Item**                                             |   | **Construction  Value** |      | **Design  Cost  Factor** |   | **Design  Cost  Value** |    | **JCJ Team  Design Costs** |   | **Remarks** |                                    |
|------------------------------------------------------------|--------|-------------------------|-----------|--------------------------|--------|-------------------------|---------|----------------------------|--------|-------------|-----------------------------------------|
| Civil Design                                               |   |                    |      |                     |   |                    |    | $                          | 0      |        | Included as  part of Basic Services     |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |
| Landscape Design                                           |   |                    |      |                     |   |                    |    | $                          | 0      |        | Included as  part of Basic Services     |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |
| Interior Design                                            |   |                    |      |                     |   |                    |    | $                          | 0      |        | Included as  part of Basic Services     |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |
| Special Bidding or Negotiation                             |   |                    |      |                     |   | $                       | 5,000   |                       | $      | 0           |                                    | DNC may  authorize as Change in Service |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |   |
| Value Analysis                                             |   |                    |      |                     |   |                    |    | $                          | 0      |        | Provided by  Construction Manager       |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |
| Detailed Cost Estimating                                   |   |                    |      |                     |   |                    |    | $                          | 0      |        | Provided by  Construction Manager       |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |
| On-Site Representation ($15,500/ mo. x 2  staff x 12 mos.) |   |                    |      |                     |   | $                       | 372,000 |                       | $      | 372,000     |                                    | To be  adjusted per w/ CM / Owner req’s |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |   |
| Field office overhead / equipment                          |   |                    |      |                     |   | $                       | 10,000  |                       | $      | 10,000      |                                    |   |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |   |
| Construction Management                                    |   |                    |      |                     |   |                    |    | $                          | 0      |        | Provided by  Construction Manager       |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |
| Start-up Assistance                                        |   |                    |      |                     |   |                    |    | $                          | 0      |        | DNC may  authorize as Change in Service |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |
| Record Drawings                                            |   |                    |      |                     |   | $                       | 0       |                       | $      | 0           |                                    | Contracter  supplied As-builts only |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |   |
| Post-contract Evaluation                                   |   |                    |      |                     |   |                    |    | $                          | 0      |        | DNC may  authorize as Change in Service |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |
| Tenant-related Services                                    |   | ($/ hr x hrs)           |      | $                        | 135    |                    | 0       |                       | $      | 0           |                                    | Coordination  with Restaurant #3 tenent |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |   |
| Acoustics Consultant                                       |   |                    |      |                     |   | $                       | 12,000  |                       | $      | 12,000      |                                    | Allowance |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |   |
| Signage                                                    |   | $                       | 250,000   |                     | 3      | %                       | $       | 7,500                      |   | $           | 7,500                                   |   | Concepts,  locations & performance specs |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |   |   |
| Professional Renderings(4)                                 |   |                    |      |                     |   | $                       | 0       |                       | $      | 0           |                                    | Presentation  materials may be authorized as an additional service outside of this project  scope. |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |   |
| Scale Model                                                |   |                    |      |                     |   | $                       | 0       |                       | $      | 0           |                                    |   |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |   |
| IT Systems                                                 |   | $                       | 1,052,122 |                     | 10     | %                       | $       | 105,212                    |   | $           | 0                                       |   | Provided by  DNC |   |
|                                                       |   |                    |      |                     |   |                    |    |                       |   |        |                                    |   |   |   |
| IT Systems Coordination                                    |   | ($/ hr x hrs)           |      | $                        | 135    |                    | 160     |                       | $      | 21,600      |                                    | Owner  Supplied Data Coordination |   |

 

92

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| **Scope Item**                  |   | **Construction  Value** |      | **Design  Cost  Factor** |   | **Design  Cost  Value** |   | **JCJ Team  Design Costs** |   | **Remarks** |   |
|---------------------------------|--------|-------------------------|-----------|--------------------------|--------|-------------------------|--------|----------------------------|--------|-------------|--------|
| Tele - Comm Systems             |   | $                       | 97,500    |                     | 10     | %                       | $      | 9,750                      |   | $           | 0      |   | Provided by  DNC |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |   |   |
| Tele - Comm Systems Coord.      |   | ($/ hr x hrs)           |      | $                        | 135    |                    | 40     |                       | $      | 5,400       |   | Owner  Supplied Data Coordination |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |   |
| PA / Sound Systems              |   | $                       | 93,376    |                     | 10     | %                       | $      | 9,338                      |   | $           | 0      |   | Provided by  DNC |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |   |   |
| PA / Sound Systems Coordination |   | ($/ hr x hrs)           |      | $                        | 135    |                    | 40     |                       | $      | 5,400       |   | Owner  Supplied Data Coordination |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |   |
| Security Systems                |   | $                       | 1,100,000 |                     | 10     | %                       | $      | 110,000                    |   | $           | 0      |   | Provided by  DNC |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |   |   |
| Security Systems Coordination   |   | ($/ hr x hrs)           |      | $                        | 135    |                    | 120    |                       | $      | 16,200      |   | Owner  Supplied Data Coordination |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |   |
| P.O.S. Systems                  |   | $                       | 125,827   |                     | 10     | %                       | $      | 12,583                     |   | $           | 0      |   | Provided by  DNC |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |   |   |
| P.O.S. Systems Coordination     |   | ($/ hr x hrs)           |      | $                        | 135    |                    | 40     |                       | $      | 5,400       |   | Owner  Supplied Data Coordination |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |   |
| Food Service                    |   |                    |      |                     |   |                    |   |                       |   |        |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |
| Food Service Equipment          |   | $                       | 425,000   |                     |   |                    |   |                       |   |        |   |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |
| Bar Equipment                   |   |                    |      |                     |   |                    |   |                       |   |        |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |
| Laundry Equipment               |   | $                       | 100,000   |                     |   |                    | $      | 3,600                      |   | $           | 3,600  |   | Schematics  only |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |   |   |
| Food Service Equipment Total    |   | $                       | 525,000   |                     | 10     | %                       | $      | 39,600                     |   | $           | 39,600 |   |   |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |   |   |
| Non-Gaming FF&E             |   |                    |      |                     |   |                    |   |                       |   |        |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |
| Artwork                         |   | $                       | 25,000    |                     |   |                    |   |                       |   |        |   |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |
| Banquet Room Furnishings        |   | $                       | 100,000   |                     |   |                    |   |                       |   |        |   |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |
| Bar Furnishings                 |   | $                       | 100,000   |                     |   |                    |   |                       |   |        |   |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |
| Conference Rooms Furnishings    |   | $                       | 0         |                     |   |                    |   |                       |   |        |   |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |
| Food Service Furnishings        |   | $                       | 200,000   |                     |   |                    |   |                       |   |        |   |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |
| Hotel Furnishings               |   | $                       | 1,046,800 |                     |   |                    |   |                       |   |        |   |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |
| Office Furnishings              |   | $                       | 178,700   |                     |   |                    |   |                       |   |        |   |   |
|                            |   |                    |      |                     |   |                    |   |                       |   |        |   |   |
| Non-Gaming FF&E Total       |   | $                       | 1,650,500 |                     | 4      | %                       | $      | 66,000                     |   | $           | 66,000 |   |   |   |

 

93

----

 
| **Scope Item**                                                  |   | **Construction  Value** |    | **Design  Cost  Factor** |   | **Design  Cost  Value** |   | **JCJ Design  Team Costs** |          | **Remarks** |                                  |
|-----------------------------------------------------------------|--------|-------------------------|---------|--------------------------|--------|-------------------------|--------|----------------------------|---------------|-------------|---------------------------------------|
| Cage Equipment                                                  |   | $                       | 130,750 |                     | 10     | %                       | $      | 13,075                     |          | $           | 0                                     |   | Provided by  DNC |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |   |   |
| Cage Equipment Coordination                                     |   | ($/ hr x hrs)           |    | $                        | 135    |                    | 32     |                       | $             | 4,320       |                                  | Owner  Supplied Data Coordination |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |   |
| Exercise Equipment                                              |   | $                       | 25,000  |                     |   |                    |   |                       | $             | 0           |                                  | Provided by  DNC |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |   |
| Bar Small Wares                                                 |   | $                       | 10,000  |                     |   |                    |   |                       | $             | 0           |                                  | Provided by  DNC |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |   |
| Food Service Small Wares                                        |   | $                       | 100,000 |                     |   |                    |   |                       | $             | 0           |                                  | Provided by  DNC |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |   |
| Specialty Lighting Consultant                                   |   |                    |    |                     |   | $                       | 8,000  |                       | $             | 8,000       |                                  | Allowance |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |   |
| Showroom Consultant                                             |   |                    |    |                     |   | $                       | 10,000 |                       | $             | 10,000      |                                  | Allowance |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |   |
| Structural Peer Review                                          |   |                    |    |                     |   | $                       | 25,000 |                       | $             | 0           |                                  | Change in  Service if Required |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |   |
| MEP Peer Review                                                 |   |                    |    |                     |   | $                       | 35,000 |                       | $             | 0           |                                  | Change in  Service if Required |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |   |
| Code Consultant                                                 |   |                    |    |                     |   | $                       | 25,000 |                       | $             | 0           |                                  | Change in  Service if Required |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |   |
| Governmental Authorities Approvals -  zoning, planning, appeals |   |                    |    |                     |   | $                       | 12,000 |                       | $             | 12,000      |                                  | Provided by  Mckinley & Assoc. |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |
| **Total JCJ Team Additional Services Design  Costs**            |   |                    |    |                     |   |                    |   | **$**                      | **740,535**   |        | 1.85% of Construction Costs           |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |   |
| **Total A / E Basic Services Design Costs**                     |   |                    |    |                     |   |                    |   | **$**                      | **2,759,445** |        | 6.90% of Construction Costs           |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |
| **Total JCJ Team Design and Services Costs**                    |   |                    |    |                     |   |                    |   | **$**                      | **3,499,980** |        | 8.76% of  Construction Costs          |   |
|                                                            |   |                    |    |                     |   |                    |   |                       |          |        |                                  |
| Projected Reimbursable Expenses                                 |   |                    |    |                     |   |                    |   | $                          | 198,000       |        | See Reimb.  Expenses Budget Worksheet |   |

 

NOTE:  Reimbursable expenses shown are projected estimates for budgetpurposes only.  Actual expenses shallinvoiced based upon actual requirements, and expendetures incurred plusadministrative costs.

 

94

----

 

[JETER COOK & JEPSONARCHITECTS, INC. LETTERHEAD]

 

ATTACHMENT IV

 

This Attachment IV is attachedto and part of the Agreement dated 14 March 2002 between Wheeling IslandGarning, Inc. and Jeter, Cook & Jepson Architects, Inc.

 

Hourly Rates

 

| Principal                  |   | $ 150.00             |   |
|----------------------------|--------|----------------------|--------|
|                       |   |                 |   |
| Project Director           |   | $ 135.00             |   |
|                       |   |                 |   |
| Department Director        |   | $ 125.00             |   |
|                       |   |                 |   |
| Project Manager            |   | $ 120.00             |   |
|                       |   |                 |   |
| Senior Designer            |   | $ 80.00 to  $120.00  |   |
|                       |   |                 |   |
| Designer                   |   | $ 65.00 to  $80.00   |   |
|                       |   |                 |   |
| Job Captain                |   | $ 76.00 to  $120.00  |   |
|                       |   |                 |   |
| Drafters                   |   | $ 49.00 to  $88.00   |   |
|                       |   |                 |   |
| Senior Interior Designer   |   | $ 75.00 to  $120.00  |   |
|                       |   |                 |   |
| Interior Designer          |   | $ 50.00 to  $75.00   |   |
|                       |   |                 |   |
| Specifier                  |   | $ 100.00 to  $125.00 |   |
|                       |   |                 |   |
| Construction Administrator |   | $ 70.00 to  $100.00  |   |
|                       |   |                 |   |
| Cost Estimator             |   | $ 100.00             |   |
|                       |   |                 |   |
| Other staff positions      |   | (See Note  #2)       |   |

 

1.                                       Principals,Project Directors, Department Directors and Project Managers are charged atfixed hourly rates.

 

2.                                       Allother job classifications that are not at a fixed rate are charged a totalhourly rate, based on the specific employee, computed by a multiple oftwo and one-half (2.50) times the Direct Personnel Expense (DPE).  DPE is defined in subparagraph 1.3.9.4 ofthe AIA Standard Form of Agreement Between Owner and Architect (Document#B141-1997).

 

3.                                       Allrates are subject to periodic adjustment during the year based on standardsalary review practices in accordance with paragraph 1.5.6 of the B141-1997Document.

 

March, 2002

 

95

----

 

**NESPER, FERBER & DIGIACOMO, LLP**

 

ATTORNEYS-AT-LAW

 
| GABRIEL. J. FERBER                                                  | ONE TOWNE CENTRE, SUITE 300           |
|---------------------------------------------------------------------|---------------------------------------|
| RICHARD F. DIGIACOMO                                                | 501 JOHN JAMES AUDUBON PKWY           |
| PAUL T. NESPER                                                      | AMHERST, NEW YORK 14228               |
| WILLIAM P. JOHNSON                                                  | FAX (716) 688-3891                    |
|                                                                | Firm E-Mail:  mail@nesferdig.com |
|                                                                |                                  |   |
|                                                                | JAMES M. NESPER, of Counsel           |
| SCOTT A. BYLEWSKI**                                                 |                                  |
|                                                                | JOHN W. DORN, of Counsel              |
| Also Member Florida Bar                                             |                                  |   |
| Also Member District of Columbia Bar                                |                                  |
|                                                                | MARY JANE KELM,                       |
|                                                                | Legal Assistant                       |
| Writer’s  Direct E-mail Address:  *pnesper@nesfardig.com* |                                  |
|                                                                     |                                       |  |  |

 

June 24, 2002

 

Brian Donnell, Esq.

Halloran & Sage, LLP

One Goodwin Square

Hartford, CT 06103-4303

 

RE:          Architect’sAgreement between Wheeling Island Gaming, Inc.

and Jeter, Cook & Jepson Architects, Inc.dated March 14, 2002

 

Dear Brian:

 

*This will confirm that the references in paragraph1.5.1 and 3.31 in the above captioned Agreement, whereby the date of attachmentno.3 as set forth as “6 March 2002”, shall mean the date, “June 19, 2002”.*

 

Additionally, this will confirm that the“notwithstanding” provision in paragraph 1.1.2.5(.2) of the above captionedAgreement, is intended to cover all of the financial parameters set forth inparagraph 1.1.2.5(.1) and 1.1.2.5(.2).

 

I ask that you have your client sign theconfirmation of these clarifications below, and return at least two (2)originals of the confirmation to me for my records.

 
|                         | Very truly yours,                          |
|------------------------------|--------------------------------------------|
|                         |                                       |
|                         | NESPER, FERBER & DIGIACOMO, LLP        |
|                         |                                       |
|                         | By                                         | /s/ Paul T. Nespar |   |
|                         |                                       | Paul T. Nespar |   |
|                         |                                       |
| Agreed to:                   | Agreed to:                                 |
|                         |                                       |
| WHEELING ISLAND GAMING, INC. | JETER, COOK & JEPSON  ARCHITECTS, INC. |
|                         |                                       |
| By                           | /s/ Roy Olsen                              |   | By | /s/ Peter N. Stevens |   |
|                         | Roy Olsen, Project  Representative         |   |   | Peter N. Stevens, President |   |
|                         |                                       |   |
|                              |                                            |  |  |  |  |  |  |

 

96

----

 

[Illegible] Companies

Committed CostStatus Report

(With InvoiceDetail)

TIMBERLINE\GOLDACCOUNTING\TIMBERLINE\REPORT\JC COMMITTED COST STATUS WITH INVOICE DETA

 
| **Job**                                                                              |   | **Cost Code** |   | **Cat**           |   | **Amount**              |   | **Approved Changes** |   | **Revised Contract** |   | **Amount  Invoiced** |   | **Retained** |   | **Amount  Paid** |   | **Balance** |   |
|--------------------------------------------------------------------------------------|--------|---------------|--------|-------------------|--------|-------------------------|--------|----------------------|--------|----------------------|--------|----------------------|--------|--------------|--------|------------------|--------|-------------|--------|
|                                                                                 |   |          |   |              |   |                    |   |                 |   |
| Contract:  05121-ARCH Jeter Cook - Whel - Jeter Cook & Jepson, Architect         |   |          |   |              |   |                    |   |                 |   |
| 05121                                                                                |   | 1-1-1100      |   | 2                 |   | 328,731.13              |   | 800,328.06           |   | 1,129,059.19         |   | 1,129,059.19         |   |         |   | 592,544.04       |   |        |   |
|                                                                                 |   | Invoices:     |   | 22702-340231      |   | A&E  & Reimb    |   |                 |   |                 |   | 328,731.13           |   |         |   | 328,731.13       |   |        |   |
|                                                                                 |   |          |   | 32602-263812      |   | A&E  FEES           |   |                 |   |                 |   | 263,812.91           |   |         |   | 263,812.91       |   |        |   |
|                                                                                 |   |          |   | 42502-0054-0      |   | A&E  FEES           |   |                 |   |                 |   | 337,833.50           |   |         |   | .00              |   |        |   |
|                                                                                 |   |          |   | 53102198681       |   | A&E  FEES           |   |                 |   |                 |   | 198,681.65           |   |         |   | .00              |   |        |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| 05121                                                                                |   | 1-1-1100      |   | 2                 |   | 11,500.00               |   |                 |   | 11,500.00            |   | 11,500.00            |   |         |   | 11,500.00        |   |        |   |
|                                                                                 |   | Invoices:     |   | 22702-340231      |   | A&E  & Reimb    |   |                 |   |                 |   | 11,500.00            |   |         |   | 11,500.00        |   |        |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract:  05121-CM Ciminelli Const.Mangr.-Wheel 2 - Louis P Ciminelli Const. Co., I |   |          |   |              |   |                    |   |                 |   |
| 05121                                                                                |   | 1-7-1710      |   | 2                 |   | 140,421.00              |   |                 |   | 140,421.00           |   | 111,874.88           |   |         |   | 111,874.88       |   | 28,546.12   |   |
|                                                                                 |   | Invoices:     |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract:  05121-CONS WHEL-MISC - Louis P Ciminelli Const. Co., I                    |   |          |   |              |   |                    |   |                 |   |
| 05121                                                                                |   | 1-4-1400      |   | 2                 |   | 1,391,219.00            |   | 1391,219.00          | -      |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                 |   | Invoices:     |   | 0054-00-01        |   | CONSTRUCTION            |   |                 |   | 528,830.00           |   |                 |   | 528,830.00   |   |             |   |
|                                                                                 |   |          |   | 4                 |   | Construction            |   |                 |   |                 |   | 225,431.00           |   |         |   | 225,431.00       |   |        |   |
|                                                                                 |   |          |   | ad0054.00-01      |   | Adj  Entry              |   |                 |   |                 |   | 528,830.00           | -      |         |   | 528,830.00       |   |        |   |
|                                                                                 |   |          |   | adj4              |   | Adj  Entry              |   |                 |   |                 |   | 225,431.00           | -      |         |   | 225,431.00       |   |        |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| 05121                                                                                |   | 1-7-1700      |   | 2                 |   |                    |   | 2205,270.00          |   | 2,205,270.00         |   | 2,263,656.00         |   |         |   | 925,071.00       |   | 58,386.00   | -      |
|                                                                                 |   | Invoices:     |   | ad0054.00-01      |   | Adj  Entry              |   |                 |   |                 |   | 528,830.00           |   |         |   | 528,830.00       |   |        |   |
|                                                                                 |   |          |   | adj4              |   | Adj  Entry              |   |                 |   |                 |   | 225,431.00           |   |         |   | 225,431.00       |   |        |   |
|                                                                                 |   |          |   | 5                 |   | Construction            |   |                 |   |                 |   | 170,810.00           |   |         |   | 170,810.00       |   |        |   |
|                                                                                 |   |          |   | 33010001.7        |   | CONSTRUCTION            |   |                 |   | 814,051.00           |   |                 |   | .00          |   |             |   |
|                                                                                 |   |          |   | 005100-7          |   | Construction            |   |                 |   | 524,534.00           |   |                 |   | .00          |   |             |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract:  05121-ENG1 Stegman&Schellhase Phase II - Stegman & Schellhase     |   |          |   |              |   |                    |   |
| 05121                                                                                |   | 1-7-1701      |   | 2                 |   | 10,000.00               |   |                 |   | 10,000.00            |   | 10,000.00            |   |         |   | 10,000.00        |   |        |   |
|                                                                                 |   | Invoices:     |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract:  05121-ENG2 Stegman&Schellhase Phase II - Stegman & Schellhase     |   |          |   |              |   |                    |   |
| 05121                                                                                |   | 1-7-1701      |   | 2                 |   | 1,665.0                 |   | 900.00               |   | 2,565.00             |   | 2,565.00             |   |         |   | 1,665.00         |   |        |   |
|                                                                                 |   | Invoices:     |   | 6-1517115    |   | Erosion  Control Permit |   |                 |   | 900.00               |   |                 |   | .00          |   |             |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract:  05121-GCON Whel-Cast & Baker - Cast & Baker Corporation           |   |          |   |              |   |                    |   |
| 05121                                                                                |   | 1-7-1700      |   | 2                 |   | 236,000.00              |   |                 |   | 236,000.00           |   |                 |   |         |   |             |   | 236,000.00  |   |
|                                                                                 |   | Invoices:     |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract:  05121-METZ METZGER-WIIED - Metzger, Inc.                                  |   |          |   |              |   |                    |   |
| 05121                                                                                |   | 1-1-1100      |   | 2                 |   | 529.49                  |   |                 |   | 529.49               |   | 529.49               |   |         |   | 529.49           |   |        |   |
|                                                                                 |   | Invoices:     |   | 2670              |   | Reimbursement           |   |                 |   | 529.49               |   |                 |   | 529.49       |   |             |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract:  05121-PSI Wheeling Downs Casino-PSI - Professional Service Indus. In      |   |          |   |              |   |                    |   |
| 05121                                                                                |   | 1-1-1100      |   | 2                 |   | 55,180.00               |   |                 |   | 55,180.00            |   | 50,700.00            |   |         |   | 50,700.00        |   | 4,480.00    |   |
|                                                                                 |   | Invoices:     |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract:  05121-WHEL CIMINELLI-WHELHOTEL - Louis P Ciminelli Const. Co., I          |   |          |   |              |   |                    |   |
| 05121                                                                                |   | 1-4-1400      |   | 2                 |   | 1,615,415.00            |   | 1,615,415.00         | -      |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                 |   | Invoices:     |   | 0054.00-02        |   | CONSTRUCTION            |   |                 |   | 862,389.00           |   |                 |   | 862,389.00   |   |             |   |
|                                                                                 |   |          |   | 3                 |   | Construction            |   |                 |   |                 |   | 620,940.00           |   |         |   | 620,940.00       |   |        |   |
|                                                                                 |   |          |   | ad0054.00-02      |   | Adj  Entry              |   |                 |   |                 |   | 862,389.00           | -      |         |   | 862,389.00       |   |        |   |
|                                                                                 |   |          |   | adj3              |   | Adj  Entry              |   |                 |   |                 |   | 620,940.00           | -      |         |   | 620,940.00       |   |        |   |
|                                                                                 |   |          |   |              |   |                    |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| 05121                                                                                |   | 1-7-1700      |   | 2                 |   |                    |   | 2234,837.00          |   | 2,234,837.00         |   | 2,102,751.00         |   |         |   | 2,102,751.00     |   | 132,086.00  |   |
|                                                                                 |   | Invoices:     |   | ad0054.00-2  |   | Adj  Entry              |   |                 |   |                 |   | 862,389.00           |   |         |   | 862,389.00       |   |        |   |
|                                                                                 |   |          |   | adj3              |   | Adj  Entry              |   |                 |   |                 |   | 620,940.00           |   |         |   | 620,940.00       |   |        |   |
|                                                                                 |   |          |   | 05121-6           |   | Construction            |   |                 |   |                 |   | 619,422.00           |   |         |   | 619,422.00       |   |        |   |

 

97

----

 

[Illegible] Companies

Committed CostStatus Report

(With InvoiceDetail)

TIMBERLINE\GOLDACCOUNTING\TIMBERLINE\REPORT\JC COMMITTED COST STATUS WITH INVOICE DETA

 
| **Job**                                                                                         |   | **Cost Code** |   | **Cat**      |   | **Amount**                       |   | **Approved Changes** |   | **Revised Contract** |   | **Amount  Invoiced** |   | **Retained** |   | **Amount  Paid** |   | **Balance** |   |
|-------------------------------------------------------------------------------------------------|--------|---------------|--------|--------------|--------|----------------------------------|--------|----------------------|--------|----------------------|--------|----------------------|--------|--------------|--------|------------------|--------|-------------|--------|
|                                                                                            |   |          |   |         |   |                             |   |                 |   |
| Contract: 05121-4082  Davison Electric-Relocated Fib - Davison Electric Co., Inc.               |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-4-1400      |   | 1            |   | 726.48                           |   |                 |   | 726.48               |   | 726.48               |   |         |   | 726.48           |   |        |   |
|                                                                                            |   | Invoices:     |   | 8105         |   | Electrical Service               |   |                 |   | 726.48               |   |                 |   | 726.48       |   |             |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |
| Contract: 05121-4087 Rite  Carpet-Edging-Cove Base - Rite Carpet                                |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-4-1400      |   | 1            |   | 67.96                            |   |                 |   | 67.96                |   | 67.69                |   |         |   | 67.69            |   | .27         |   |
|                                                                                            |   | Invoices:     |   | 15799        |   | Cover Base Adhesive              |   |                 |   | 40.69                |   |                 |   | 40.69        |   |             |   |
|                                                                                            |   |          |   | 16321        |   | Black Edging                     |   |                 |   |                 |   | 27.00                |   |         |   | 27.00            |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract: 05121-4087  Staples-Office Supplies - Staples Credit Plan                             |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-4-1400      |   | 2            |   | 561.28                           |   |                 |   | 561.28               |   | 561.28               |   |         |   | 561.28           |   |        |   |
|                                                                                            |   | Invoices:     |   | 33202-961    |   | Office Supplies                  |   |                 |   |                 |   | 561.28               |   |         |   | 561.28           |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract: 05121-4093  Davidson Electric-Relocation C - Davidson Electric Co., Inc.              |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-4-1400      |   | 1            |   | 1,548.76                         |   |                 |   | 1,548.76             |   | 1,548.76             |   |         |   | 1,548.76         |   |        |   |
|                                                                                            |   | Invoices:     |   | 8171         |   | Electrical Service -  Relocation |   |                 |   | 1,548.76             |   |                 |   | 1,548.76     |   |             |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |
| Contract: 05121-4093 GE  Capital-Skirt Complex - GE Capital Modular Space                       |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-4-1400      |   | 1            |   | 7,571.64                         |   |                 |   | 7,571.64             |   | 7,571.64             |   |         |   | 7,571.64         |   |        |   |
|                                                                                            |   | Invoices:     |   | 102287224    |   | Skirt Complex                    |   |                 |   |                 |   | 6,781.64             |   |         |   | 6,781.64         |   |        |   |
|                                                                                            |   |          |   | 102303514    |   | Skirt Complex                    |   |                 |   |                 |   | 790.00               |   |         |   | 790.00           |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract: 05121-7098  WheelingDwns_CPSINV - Convenient Phone Service, Inc.                      |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 2-3-2300      |   | 1            |   | 76,705.40                        |   |                 |   | 76,705.40            |   | 76,705.40            |   |         |   |             |   |        |   |
|                                                                                            |   | Invoices:     |   | 4783         |   | TELECOMM LABOR/ MATERIALS        |   | 76,705.40            |   |                 |   | .00                  |   |         |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |
| Contract: 05121-ARCH Jeter  Cook & Jepson - Wheeling - Jeter Cook & Jepson, Architect   |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   | 175,839.02                       |   |                 |   | 175,839.02           |   | 175,839.02           |   |         |   | 175,839.02       |   |        |   |
|                                                                                            |   | Invoices:     |   | 0054-00-1125 |   | A&E Fees                     |   |                 |   |                 |   | 175,839.02           |   |         |   | 175,839.02       |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract:  05121-ARCH Wheeling PH2 - Jeter Cook Jeps  - Jeter Cook & Jepson, Architect |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   | 16,000.00                        |   | 16,000.00-           |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   | Invoices:     |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   | Invoices:     |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   |                             |   | 17,792.31            |   | 17,792.31            |   | 17,792.31            |   |         |   | 17,792.31        |   |        |   |
|                                                                                            |   | Invoices:     |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract:  05121-ARCH Wheeling PH2 - Jeter Cook Jeps  - Jeter Cook & Jepson, Architect |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   | 16,000.00                        |   | 16,000.00-           |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   | Invoices:     |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   | Invoices:     |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   |                             |   | 17,736.72            |   | 17,736.72            |   | 17,736.72            |   |         |   | 17.736.72        |   |        |   |
|                                                                                            |   | Invoices:     |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract: 05121-ARCH Jeter  Cook Jepson-Wheel 2 - Jeter Cook & Jepson, Architect            |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   | 15,000.00                        |   | 25,000.00            |   | 40,000.00            |   | 37,513.97            |   |         |   | 37,513.97        |   | 2,486.03    |   |
|                                                                                            |   | Invoices:     |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract: 05121-ARCH Jeter  Cook Jepson - Wheeling - Jeter Cook & Jepson, Architect         |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   | 160,620.02                       |   |                 |   | 160,620.02           |   | 160,620.02           |   |         |   | 160,620.02       |   |        |   |
|                                                                                            |   | Invoices:     |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract: 05121-ARCH PHASE  II - WHEELING - Jeter Cook & Jepson, Architect                  |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   | 389,089.67                       |   |                 |   | 389,089.67           |   | 389,089.67           |   |         |   | 389,089.67       |   |        |   |
|                                                                                            |   | Invoices:     |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |        |   |
| Contract: 05121-ARCH Jeter  Cook & Jepson-Whel - Jeter Cook & Jepson, Architect         |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   | 104,810.52                       |   |                 |   | 104,810.52           |   | 104,810.52           |   |         |   | 104,810.52       |   |        |   |
|                                                                                            |   | Invoices:     |   | 122001-00540 |   | Architectural Services           |   |                 |   | 104,810.52           |   |                 |   | 104,810.52   |   |             |   |
|                                                                                            |   |          |   |         |   |                             |   |                 |   |                 |   |                 |   |         |   |             |   |
| Contract: 05121-ARCH JETER-WHEL  - Jeter Cook & Jepson, Architect                           |   |          |   |         |   |                             |   |
| 05121                                                                                           |   | 1-1-1100      |   | 2            |   | 195,232.10                       |   |                 |   | 195,232.10           |   | 195,232.10           |   |         |   | 195,232.10       |   |        |   |
|                                                                                            |   | Invoices:     |   | 12902-195232 |   | Architectural Services           |   |                 |   | 195,232.10           |   |                 |   | 195,232.10   |   |             |   |

 

98

----

 
| Delaware  North Companies | Job Cost  Commitment CO Journal |
|---------------------------|---------------------------------|

 

Entries from JC Entercommitment CO 7-10-02

 
| **Commitment** |   | **Commt CO** |   | **Job** |   | **Location** |   | **Cost Code** |   | **Transaction  Type**   |   | **Cost** |   | **Units** |   | **Unit cost** |   | **Amount** |   |
|----------------|--------|--------------|--------|---------|--------|--------------|--------|---------------|--------|-------------------------|--------|----------|--------|-----------|--------|---------------|--------|------------|--------|
|           |   |         |   |    |   |         |   |          |   |                    |   |     |   |      |   |          |   |       |   |
| 05121-A RCHB   |   | 4            |   | 05121   |   | W HED-HOTEL  |   | 1-1-1100      |   | A prvd cm m tt cst chng |   | 2        |   | .0000     |   | .0000         |   | 286,133.90 |   |

 
| Description | Architectural/Engineering  Fees |
|-------------|---------------------------------|

 

ENTRY TOTALS

 
| Number of entries       |   | 1          |   |
|-------------------------|--------|------------|--------|
| Total amount of entries |   | 286,133.90 |   |

 

99

----

 

ADDITIONAL INFORMATIONS

 

ADDED — ITEM — commitment 05121-A RCHcommitment CO 4 job 05121 location W HED-HOTEL cost code 1-1-1100 category 2Architectural/Engineering Fees

ADDED — SUBCONTRACT COMMITMENTCO Approved

 

100

----

 

on from JCEnter commitment CO 7-10-02

 
|              |   | **Posted** |   | **Rejected** |   |
|-------------------|--------|------------|--------|--------------|--------|
| Number of Entries |   | 1          |   | 0            |   |
| Amount of Entries |   | 286,133.90 |   | .00          |   |

 

101

----

 
| Delaware  North Companies | Job Cost Commitment  CO Journal |
|---------------------------|---------------------------------|

 

POST ENTRIES TOTALS

 
|              |   | **Posted** |   | **Rejected** |   |
|-------------------|--------|------------|--------|--------------|--------|
| Number of Entries |   | 1          |   | 0            |   |
| Amount of Entries |   | 286,133.90 |   | .00          |   |

 
| **Entry**                       |   | **Amount** |   |
|---------------------------------|--------|------------|--------|
|                            |   |       |   |
| Approved Committed cost Changes |   | 286,133.90 |   |
|                            |   |       |   |
| Total Amount Posted             |   | 286,133.90 |   |

 

102

----

 

Entries from JC EnterCommitment CO 7-10-02

 
| **Commitment** |   | **Commt CO** |   | **Job** |   | **Location** |   | **Cost Code** |   | **Transaction  Type** |   | **Cat** |   | **Units** |   | **Unit Cost** |   | **Amount** |   |
|----------------|--------|--------------|--------|---------|--------|--------------|--------|---------------|--------|-----------------------|--------|---------|--------|-----------|--------|---------------|--------|------------|--------|
|           |   |         |   |    |   |         |   |          |   |                  |   |    |   |      |   |          |   |       |   |
| 05121-ARCH6    |   | 5            |   | 05121   |   | WHED-HOTEL   |   | 1-3-1100      |   | Aprvd Commitment chng |   | 2       |   | .0000     |   | .0000         |   | 982,186.37 |   |

 

DescriptionArchitectural/Engineering Fees

 

ENTRY TOTALS

 
| Number of Entries       |   | 1          |   |
|-------------------------|--------|------------|--------|
| Total amount of Entries |   | 982,186.37 |   |

 

103

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ADDITIONALINFORMATION

 

ADDED — ITEM — Commitment 05121-A RCHcommitment co 5 job 05121 location WHED-HOTEL cost code 1-1-1100 category 2Architectural/Engineering Fees

ADDED —SUBCONTRACT COMMITMENT CO Approved

 

104

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?? From JCEnter Commitment Co 7-10-02

 
|              |   | **Posted** |   | **Rejected** |   |
|-------------------|--------|------------|--------|--------------|--------|
| Number of Entries |   | 1          |   | 0            |   |
| Amount of Entries |   | 982,186.37 |   | .00          |   |

 

105

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| Delaware  North Companies | Job Cost  Commitment Co Journal |
|---------------------------|---------------------------------|

 

POST ENTRIESTOTALS

 
|              |   | **Posted** |   | **Rejected** |   |
|-------------------|--------|------------|--------|--------------|--------|
| Number of Entries |   | 1          |   | 0            |   |
| Amount of Entries |   | 982,186.37 |   | .00          |   |

 
| **Entry**                       |   | **Amount** |   |
|---------------------------------|--------|------------|--------|
|                            |   |       |   |
| Approved Committed Cost Changes |   | 982,186.37 |   |
|                            |   |       |   |
| Total Amount Posted             |   | 982,186.37 |   |

 

106

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ADDITIONALINFORMATIONS

 

ADDED — Job 05162 W HEL-PA DK1 cost code 1-7-1700 category 2Subcontractors

ADDED — ITEM — commitment 05162-CONS Job 05162 location W HEL PA DK1cost code 1-7-1700 category 2 Build Out

ADDED — SUBCONTRACT COMMITMENT Committed

 

107

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es from JC Enter Commitment 2-15-02

 
|              |   | **Posted** |   | **Rejected** |   |
|-------------------|--------|------------|--------|--------------|--------|
| Number of Entries |   | 1          |   | 0            |   |
| Amount of Entries |   | 20,038.00  |   | .00          |   |

 

108

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| Delaware  North Companies | Job Cost  Commitment Journal |
|---------------------------|------------------------------|

 

POST ENTRIESTOTALS

 
|              |   | **Posted** |   | **Rejected** |   |
|-------------------|--------|------------|--------|--------------|--------|
| Number of Entries |   | 1          |   | 0            |   |
| Amount of Entries |   | 20,038.00  |   | .00          |   |

 
| **Entry**           |   | **Amount** |   |
|---------------------|--------|------------|--------|
|                |   |       |   |
| Committed Cost      |   | 20,038.00  |   |
|                |   |       |   |
| Total Amount Posted |   | 20,038.00  |   |

 

109

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