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HomeMy WebLinkAboutCONSTRUCTION AGREEMENT1 ' _ONSTRUCTION AGREEMENT —(Cost Plus) THIS AGREEMENT ("Agreement"), is entered into and :,effective as of this _25_day of _August, 2011 ("Effective Date") by and between: _Jim Arrigo, Arrigo Dodge, 5851 S. US Highway 1, Fort Pierce,Florida_("0wner) and _Jacob Enacting & Construction, LLC, a Florida corporation with its principal office and place of business at 500 Maplewwod Drive, Jupiter, FL 33458_("Contractor"). Recital 1. Owner is the property owner of the following property: Recital 2. Owner desires to engage Contractor for construction services in connection with construction work at the development " Renovations to Dealership —"commonly referred to as the _Fort Pierce Dealership Project". 1. CONTRACT DOCUMENTS:The contract documents shall consist of this Agreement, all exhibits attached hereto, the final construction drawings and specifications and any other documents that are specifically incorporated herein by reference ('Contract Documents"). The terms of this Agreement shall control in the event of any inconsistencies or conflicts with other Contract Documents, including any conflicting commercial terms and/or provisions stated in the exhibits. 2. SCOPE OF WORK: Contractor is responsible for completion of the Project which shall be carried out in or around the development ("Site").Contractors work shall include the performance of all things necessary and reasonably inferable from the Contract Documents to fully complete the tasks described.("Work").Contractor's Work shall be in strict accordance with the requirements of the Contract Documents, including the drawings and specifications described in Exhibit "B". Contractor will contract with Architect, engineers, and other professional consultants. 3. CONTRACT PRICE: In consideration for the performance of the Work, Owner will pay Contractor a fixed fee of $00.00 for Pre -Construction Phase and for the Construction Phase a _g.0_ o above total 'cost to complete the Work. The anticipated fee is based off total project costs and fixed general requirements. The Contract Fee shall be Contractor's sole and total compensation for all profit Contractor reserves the right to bill for the above stated cost regarding Changes which is described in Paragraph 6 (Change Orders). 3. PROJECT SCHEDULE: as shown in Exhibit "E" SCANNED BY St. Lucie County 4. SCHEDULE OF VALUES: Owner has provided Contractor with a total construction budget for the Work. Contractor has submitted to Owner, and Owner has approved, a schedule of values for the Work, allocated by either trades or by CSI Division ("Schedule of Values"). The Schedule of Values will be used by the Owner to evaluate Contractor's Progress Payments, as described in Paragraph 27. The Schedule of Values is attached hereto as Exhibit"F". Contractor shall endeavor to perform all construction activities within the amounts stated in each line item of the Schedule of Values. Owner shall have the right at any time to reject any portion of the Schedule of Values that does not accurately define the Work in reasonable detail, or if the detail provided does not accurately reflect an appropriate cost, allocation or proportion of the Work. Contractor will be required to revise promptly any rejected portion of the Schedule of Values upon demand by Owner. 5. SCHEDULE OF SUBMITTALS: NIA 6. CHANGE ORDERS: Upon the Effective Date of this Agreement, any change involving the Work ("Additional Work") or an increase or decrease in the Contract Time may be accomplished only by a written order, submitted by the Contractor to the Owner and subject to Owner's approval ("Change Order"): No Change Order will be effective unless agreed to in advance and bearing the signature of both parties. .1 Initiation. Change Orders may be initiated either by an Owner Directive or a Change Order Request as each is hereinafter defined: .a Owner Directive. Owner may direct Contractor to increase, decrease, alter or clarify the Work by written notice ("Owner Directive"). Owner Directives may involve a change to the Contract Time. .b Change Order Request Contractor may provide written notice to Owner requesting Owners consideration of certain events that Contractor believes have or willresult in a change in Contractor's Work ("Change Order Request"). No Change Order Request, including requests which are based upon Owner Directives, RFI's, verbal directives and/or issues that are pursued as Change Order Claims,as hereinafter defined, will .be deemed complete until the Change Order Request has been finalized as an approved Change Order. .2 Change Order Claims and Disputes. Notwithstanding the dispute resolution terms of Paragraph 42, for any unresolved issue between the parties pertaining to Additional Work, the Contract Time, including issues where the parties are continuing negotiations on rejected Change Orders("Change Order Claim"), Contractor shall have the burden of establishing entitlement to any increases in the Contract Time Contractor shall submit a notice of claim("Notice of Claim") to Owner within ten (10) days of Contractor's receipt of Owner's rejection of a Change Order. Contractor shall submit all such documentation required by Owner in support of such Change Order Claim within twenty (20) days of Contractor's submittal of the corresponding Notice of Claim. Contractors failure to submit a Notice of Claim within the required time frame shall constitute a waiver of Contractors Change Order Claim. Contractor shall substantiate any Change Order Claim for a change in the Contract Time with a CPM delay analysis. Any Change Order Claim not resolved by the parties within thirty (30) days after Owners receipt of the Notice of Claim shall be set aside pending completion of the Work or earlier termination of this Agreement and the provisions of Paragraph 42 shall apply. However, both parties expressly acknowledge and agree that the requirements and limitations set forth in this Paragraph 6.2 exclusively govern the final determination of the extent of Contractors damages for any Change Order Claim during any legal proceeding. 7. CONTRACTOR'S REPRESENTATIONS: Contractor is being engaged by Owner in reliance upon Contractors: (1) possession of all licenses and/or certifications as required in the local jurisdiction; (ii) representations of professional expertise in the specific area of construction called for by this Agreement; and (iii) ability to provide the required Work independently without substantial direction by Owner. Contractor shall comply with all applicable laws, codes, regulations, ordinances and rules, whether local, regional or national, with respect to the Work to be performed and the equipment or materials to be fumished hereunder and shall cause the Work to be constructed in compliance with this Agreement. 8. CONTRACTOR'S WARRANTY: Contractor warrants that the Work performed hereunder shall be performed in a first-class workmanlike manner and the materials and equipment provided shall be new and free from defects in workmanship and/or materials and equipment and agrees that any damage arising from any breach of this representation and warranty shall be promptly remedied by Contractor at its sole expense. If Contractor defaults or neglects to correct defective Work within a five (5) day period after receipt of written notice from Owner, Ownermay, without prejudice to other remedies, correct such deficiencies at Contractors expense. Contractors warranty shall apply during performance of the Work and shall extend for the later of: (i) a period of one (1) Year after the issucance of Certificate of occunpancy; or (ii) the period of such manufacturers warranties provided for materials and equipment ("Warranty Period"). During the Warranty Period, Contractor shall be responsible for correcting any and all defects in workmanship, materials or equipment or other damages arising from a breach of this warranty at Contractor's sole cost and expense. 9. COOPERATION: Contractor acknowledges that Owner may engage other contractors to provide work or services relating to the Project which may be carded out concurrently with Contractors Work and that some interference from other contractors is anticipated. The Contractor shall coordinate its Work with the'Owner" and other contractors as follows: .1 Contractor shall schedule and conduct progress meetings on a weekly basis at which its subcontractors, the Project Architect, Project Director, Owner and Owners other contractors and consultants may jointly discuss such matters as Work procedures, progress, scheduling and coordination. Owner shall require that its other contractors be subject to the same coordination and cooperation requirements that Contractor is subject to as set forth in this section. .2 If any part of Contractors Work depends upon the proper execution of work and services performed by another contractor, Contractor shall, prior to proceeding with its Work, inspect such other work and promptly report to the Project Director any apparent discrepancies or defects in such other work. By said inspection Contractor doesn't take responsibility nor warranties the other contractors work, including but not limited to labor and material. .3 Contractor shall coordinate its construction activities with the activities of the other contractors, including installers of FFBE (Model) and "Owner" supplied and installed items. Contractor shall provide the necessary personnel to connect and coordinate its Work with others at the proper time and in a manner not to delay others or increase costs. .4 Contractor shall remedy promptly damage wrongfully caused by Contractor to completed or partially completed construction work performed by other contractors as long a contractor takes necessary precautions to protect their work. Owner shall require its other contractors to likewise remedy any damage they may cause to Contractors Work. 10. SITE CONDITIONS: Contractor has examined the Site and the Contract Documents and has familiarized itself fully with the conditions under which the Work shall be performed. Contractor assumes the risk of such conditions and shall complete fully the Work within the Contract Time. Any information about the Site that is furnished by Owner shall be for the convenience of Contractor and without any guarantee by Owner. Contractor shall not be responsible for latent defects or hidden conditions which are not reasonably discoverable by means of due diligence. However, Contractor must notify Owner in writing within ten (10) days after the first observance ofsuch latent defects or hidden conditions. 11. ALTERNATES AND SUBSTITUTIONS:The following terms and conditions shall apply to any Contractor request for alternates or substitutions ("Substitutions"): .1 By requesting a Substitution, Contractor represents that the Substitution meets or exceeds the specifications and warranty of the originally specified item. .2 All requests for Substitutions shall be made through a written Change Order Request allowing sufficient time for evaluation and written response by Owner without jeopardizing the Contract Time. .3 The acceptance of any Substitution shall be at Owner's sole discretion. .4 All Substitutions shall be evidenced by a Change Order as described in Paragraph 6. 12. TOOLS, EQUIPMENT, MATERIALS AND SUPPLIES: .1 Tools and Equipment.Contractor shall provide all equipment, materials, tools, construction equipment, machinery and supplies necessary to complete the Work in accordance with this Agreement. .2 Materials and Supplies.Title to all Work, materials and equipment shall pass to Owner upon Contractor's receipt of payment for the same. Owner may enter upon the location where any material or equipment is manufactured or stored for purposes of inspection, checking, testing or for any other purpose Owner deems reasonably necessary. In the event of a hurricane warning, the Contractor shall: (i) inspect the Site and place all materials possible in a protected location; (ii) tie down, or identify and store, all outside equipment and materials; (iii) clear all surrounding areas and roofs of buildings, or tie down loose material, equipment, debris, and any other objects that could otherwise be blown away or blown against existing buildings: and (iv) ensure that temporary erosion controls are adequate. 13. SUBCONTRACTORS AND VENDORS: Contractor may engage subcontractors and vendors to perform all or any portion of the Work, provided that Contractor shall be responsible for payment to any and all such subcontractors and vendors. Contractor shall be responsible for the performance of its subcontractors and vendors of every tier to the same extent as if such subcontracted work was performed by Contractor directly. 14. FACILITIES AND TEMPORARY CONTROLS:Contractor shall be responsible solely for the design, transport, erection, inspection and maintenance of all temporary supports and structures, including but not limited to: electricity and lighting, heat, telephone and fax, water, sanitary facilities, fire protection, hoisting equipment and machinery, staging and scaffolding, temporary equipment and materials, all shoring and bracing, all cranes, hoists, derricks and supports, barriers and fencing, water control, field office, storage facilities and all other types of temporary supports and structures required for the Work and provided by Contractor or its subcontractors of every tier while performing the Work. 15. INDEPENDENT CONTRACTOR: Contractor shall act as an independent contractor in providing the Work. The means and methods Contractor employs to provide the Work are matters entirely within its discretion and control in accordance with accepted industry practices. Contractor has no authority to act as an agent of Owner. Contractor acknowledges and agrees that as an independent contractor, it is solely responsible and liable for performance of all duties, obligations and responsibilities as an employer of individuals hired or retained by Contractor to provide services to the Owner hereunder. Those duties, obligations and responsibilities shall include, but are not limited to, recruitment, interviewing, hiring, maintenance of personnel records, compliance with Form 1-9 Employment Eligibility Verifications, drug testing, payment of wages, setting wage rates and supervision. 16. EMPLOYEES: Owner may, from time to time; establish reasonable rules and regulations relating to standards to be met by Contractor regarding the appearance or conduct of employees or agents, including all subcontractors and vendors performing Work at the Site. Contractor shall be responsible at all times for the conduct of all such persons. Contractor will remove, or cause to be removed, from the Site any persons to whom Owner may reasonably object and will ensure that such person(s) shall not thereafter be employed by Contractor in connection with the Work hereunder. Contractor shall not be required by Owner to engage in any personnel action which is, or may be deemed to be, against public policy or contrary to local, state or federal ordinance, rule or statute or to any collective bargaining agreement or other labor or employment contract. 17. SAFETY: Contractor shall be responsible at all times for the safety of its employees, the employees of its subcontractors and vendors of any tier, and their respective representatives and agents who are engaged in providing Work at the Site. Contractor shall fulfill all notice and reporting requirements and otherwise strictly comply with, and shall require all of its subcontractors and vendors to likewise comply with, all local, municipal, state and Federal laws and regulations of public authorities pertaining to health and safety. Further, 18. SITE CLEAN UP:Work performed under this Agreement shall comply with all laws, ordinances and regulations, whether local, regional or national, governing applicable noise, dust and pollution control requirements. Contractor shall at all times and on a daily basis during the course of the Work keep all Work areas in a clean and safe condition by removing promptly and disposing properly of all debris and rubbish generated by Contractor's operations and by all other contractors on the Project. 19. AUTHORIZED REPRESENTATIVES: .1 Architect.The architect for the Project is:("Project Architect"). Borglund Associates, Jupiter, FL .2 Owner's Project Director. Owner has designated as its project director Don Perry ("Project Director) authorized to represent Owner with respect to the Project. .3 Contractor's Project Representative. Contractor has appointed_Don Perryto be its representative, who is assigned solely to this Project, and is authorized to act on Contractors behalf with respect to the Project and whose decisions, notices and directives shall be binding upon Contractor with respect to this Agreement 20. TIME OF THE ESSENCE: The Parties acknowledge that TIME IS OF THE ESSENCE of this Agreement. In this regard, Contractor hereby accepts and confirms that the time allowed in the Project Schedule is reasonable for completing the Work and hereby agrees to dedicate such personnel and other resources as may be necessary to guarantee that the Work is continuously managed and performed in a diligent, skilled and workmanlike manner in accordance with Owners objectives of cost, time and quality. Likewise, Owner shall cooperate with Contractor with regard to satisfying Owners obligations hereunder. 21. COMPLETION GUARANTY: Subject to any approved Change Order authorizing an extension to the Project Schedule, Contractor hereby guarantees to achieve Substantial Completion of the Work, as defined in Paragraph 32.2,within the Contract Time. Contractors failure to achieve Substantial Completion within the Contract Time, except pursuant to a mutually agreed Change Order, shall constitute a breach of this Agreement. In the event that Contractor falls significantly behind the interim milestone dates or the Contract Time, Owner shall be entitled to require Contractor to implement a recovery schedule ("Recovery Schedule°) within ten (10) days. 22. EXTENSIONS OF TIME: If Contractor is delayed at any time in the progress of the Work by an act or omission of Owner, Owner's employees, or separate contractors employed by Owner, or by changes ordered in the Work, or by Force Majeure, as defined in Paragraph 23, or by other causes which Owner and Contractor agree may justify delay ("Excusable Delay'), and Contractor has provided written notice to Owner within twenty (20) days of the event causing the delay, then the Contract Time shall be reasonably extended by Change Order if such Change Order is approved by Owner in accordance with Paragraph 7 of this Agreement. 23. FORCE MAJEURE: In the event that Contractor is prevented from performing the Work hereunder by reason of any labor disputes, fire, unusual delay in deliveries, adverse weather conditions not reasonably anticipatable, unavoidable casualties or other causes beyond Contractor's and Owners control ("Force Majeure"), resulting in delays to the Project Schedule, Contractor shall be entitled to an extension of time as provided in Paragraph 22. 24. LIMITED DAMAGES FOR OWNER DELAYS: To the extent that any delay is caused solely by Owner, its agents, consultants or separate contractors, which independently affects the critical path of the Project, it shall be deemed a compensable delay ("Compensable Delay").Contractor agrees that any compensation for Compensable Delay shall be documented in a Change Order in accordance with Paragraph 7 of this Agreement. 25. CONTRACTOR DELAYS: Any delay in the Work caused by any act or omission of Contractor or any subcontractor or vendor of any tier during the Construction Phase, which independently affects the Contract Time will not entitle the Contractor to an extension of time as provided in Paragraph 23 ("Contractor Delay). A delay in schedule caused by the owner, city, county, or independent contractor will not be the responsibility of the contractor and will extend the projected scheduled commencement and substantial completion date. The anticipated construction phase of the Dealership is to commence on September 1, 2011 and to be substantially completed on October 31, 2011 the schedule in Exhibit "E". 26. ACCELERATION: In the event Owner desires to accelerate the Project Schedule, or any revisions thereof, for reasons other than delays caused by Contractor, Owner shall notify Contractor in writing. Upon receipt of such written notification, Contractor shall require its personnel and its subcontractors and vendors to work such overtime hours and/or to increase their respective work forces as may be reasonably necessary to meet Owner's acceleration goals. Should the contractor find the request for acceleration to unreasonable the contractor must notify Owner within 5 days of written request to accelerate. 27. APPLICATIONS FOR PAYMENT: Contractor will be paid monthly, based upon the progress of the Work ('Progress Payment') and within thirty (30) days of Final Completion, as defined in Paragraph 32.2 (°Final Payment'). On or before the (5th) day of each month, Contractor shall submit its application for payment for the preceding month rApplication for Payment") to the Project Director in a format acceptable to Owner and supported by such documentation to verify entitlement, including lien waivers. Each such monthly Application for Payment shall be based upon the approved Schedule of Values and shall identify clearly, itemize and attribute all cost items in a manner that facilitates review by Owner. Each Application for Payment shall itemize separately the following: (i) the amount of Allowable Costs related to the Work performed during the preceding month for' Project"; (ii) the General Conditions, "Project" and (III) the relevant portion of the Fee based on the Schedule of Values. Progress Payments shall be paid within ten (10) days after Owner's receipt of Contractors approved Application for Payment. Five percent (5%) of the approved value of all Progress Payments shall be retained by Owner. Retention will be reduced to two and a half percent (2-1121/6) upon fifty percent (50%) completion of the Work under this Agreement. Such retention shall be released as part of the Final Payment. Contractor will be entitled to any damages and interest in accordance with all local, state and federal laws should payment not be received within the 30 day period. 28. JOINT PAYEE CHECKS: Intentionally Omitted 29. OWNER'S RIGHT TO WITHHOLD: Notwithstanding anything to the contrary herein, Owner may withhold from any Progress Payment or the Final Payment, up to one hundred percent (100%) of the amount which, in Owners reasonable opinion, is necessary to protect Owner from any overpayment, claims, damages, lawsuits or losses which may result from Contractors failure to perform the Work in accordance with the requirements of this Agreement or under any other circumstances that Owner deems such withholding necessary, including but not limited to the following situations: .1 The overall percentage of Work satisfactorily completed by Contractor is less than the overall percentage of payments determined by adding: (a) all amounts previously paid by Owner, and (b) the pending invoice to be paid; .2 Contractor has failed to perform the Work in accordance with the Contract Documents and the non -conforming Work has not been remedied in a timely manner after receipt of notice from Owner; .3 Ownerhas reasonable evidence that Contractor has not made timely or proper payments to subcontractors or vendors; .4 Contractor has failed to submit lien waivers as required by Paragraph 34 of this Agreement; .5 Contractor or any of its subcontractors or vendors of any tier have filed a mechanic's lien against the Project and Owner is not in default of its obligations to make payments to Contractor of undisputed amounts; .6 Contractor has failed to expeditiously take steps to post a bond or otherwise remove any mechanic's lien filed against the Project by any subcontractor or vendor of any tier; .7 Contractor has failed to provide timely access to Contractor's books and records for audit purposes to the extent described in Paragraph 43. 30. DISPUTED PAYMENTS: In the event of a .dispute with respect to amounts payable under an Application for Payment, Owner shall pay all undisputed amounts and Contractor shall continue performing any remaining Work hereunder. Any amounts in dispute withheld by Owner shall be promptly paid after the eadier of: (i) settlement of the dispute by execution of a Change Order pursuant to Paragraph 7; or (ii) a resolution of the dispute pursuant to Paragraph 42. It is provided, however, that the payment of any undisputed amounts shall not waive or otherwise limit Owner's rights with respect to any failure of the Work to comply with the requirements of the Contract Documents or Owner's audit rights as set forth in Paragraph 40. 31. SUBSTANTIAL COMPLETION: .1 Substantial Completion Punchlist Procedures. Contractor's required punchlist procedures prior to substantial completion shall be as follows: .a Prior to any request by Contractor for a certificate of substantial completion, Contractor and Owner shall develop a proposed list of punchlist items for purposes of determining substantial completion ('Substantial Completion Punchlist'). Contractor shall be responsible for completing, or causing to be completed, all items on the Substantial Completion Punchlist .b Contractor shall notify Owner in writing when the items on the Substantial Completion Puchlist have been completed so that Owner may inspect the items to determine full completion. If Owner disagrees that the Substantial Completion Punchlisthas been completed, Owner shall provide Contractor with a directive of the items that should be completed or corrected for purposes of substantial completion within two (2) days.("Owner's List"). Owners failure to advise Contractor of any items specified in the Contract Documents shall not alter Contractors responsibility to complete all Work necessary for substantial completion in accordance with the Contract Documents. .c Upon receipt of Owners List, Contractor shall complete and/or correct all listed items. Contractor shall then submit its request to Owner for another inspection to determine whether the Substantial Completion Punchlist has been completed. Such subsequent inspections or re -inspections shall be made jointly by Owner and Contractor. A Following completion of the Substantial Completion Punchlist, but prior to the issuance of a certificate of substantial completion, the parties shall develop a completion list that must be completed prior to Final Completion, as defined in Paragraph 32.2 ("Completion List"). Owners review and written acceptance of the Completion List shall be a condition precedent to the issuance of the certificate of substantial completion. .2 Substantial Completion. In order for Owner to consider whether substantial completion has been accomplished, the following conditions must be met("Substantial Completion"): .a But for the items listed on the Completion List, the Agreement has been fully performed and completed consistent with the terms of the Contract Documents; .b Contractor has obtained all necessary certificates of compliance from the appropriate jurisdiction; .c Omitted A Contractor has filed and published notice of completion consistent with the requirements of the applicable laws of the jurisdiction. .e Notwithstanding anything in the Contract Documents which may indicate otherwise and unless waived by Owner in writing, Substantial Completion of either the Work in its entirety or a designated portion thereof shall not occur earlier than the date of issuance of a Certificate of Occupancy ("CO") by the relevant governmental authority. However, issuance of the CO does not, in and of itself, meet the requirements of Substantial Completion. .f When a CO has been obtained therefore, Owner shall prepare and issue a certificate of Substantial Completion, which shall certify the date of Substantial Completion. .g At all times prior to Final Completion, Owner shall be entitled to withhold from Contractor funds equal to 50% of the reasonable value of all outstanding Substantial Completion Punchlist items and the Final Punchlist Items. 32. FINAL COMPLETION: .1 Final Completion Punchlist Procedures. Contractors required punchlist procedures prior to final completion shall be as follows: .a After Contractor satisfies all remaining items on the Completion List developed prior to obtaining Substantial Completion, Contractor may submit written notice to Owner stating that the Work is ready for inspection. .b In the event that Owner disagrees with Contractors claim that all items on the Completion List have been completed and that final completion has been achieved, Owner shall promptly advise Contractor in writing of the remaining items to be completed for purposes of final completionAll re -inspections to determine if the Work is acceptable for purposes of final completion shall be made jointly by Owner and Contractor. c. Assignment to Owner of all documentation for any all warranties and guarantees pertaining to the Work. Contractor shall ensure that all such warranties and guarantees contain language which sets forth Owners right to assign such warranties and guarantees to a third party. .2 Final Completion. The Contractor has achieved final completion for all purposes when the following conditions are met ("Final Completion"): .a Issuance of Final Payment by the Project Director; .b Completion of all items on the Substantial Completion Punchlist and the Completion List by Contractor and acceptance by Owner; .c Submittal of satisfactory proof by Contractor that all claims or liens previously filed or recorded, including those for taxes, arising out of the Work have been released or bonded or funds have been retained by Owner to cover the same; .d As -built drawings have been submitted to Owner in accordance with Paragraph 40 of this Agreement; .e Contractor and all subcontractors have delivered to Owner complete and final unconditional lien waivers in a form acceptable to Owner and its lender (if any); and .g Owner shall have the final decision as to whether or not Contractor has achieved Final Completion. When Owner agrees that the Work and all items on the Completion List have been completed, Owner shall prepare and issue a certificate of Final Completion, which shall set forth the date of Final Completion. 33. LIENS: Contractor covenants and agrees to keep the equipment and property of Owner and the premises of the facility free and clear from any and all liens for Work performed or materials and equipment furnished hereunder and Contractor agrees to indemnify Owner against any and all costs, expenses, losses and all damage resulting from the filing of any such liens against Owner or the School. If a lien is filed by a subcontractor or vendor of Contractor, Contractor will immediately take whatever action is necessary to remove such lien at Contractor's expense. Contractor shall, upon request by Owner, furnish waivers of such liens or receipts in full for all claims for such Work or materials and equipment and an affidavit that all such claims have been fully satisfied. Contractor's obligations under this Paragraph 34 shall apply unless Owner has failed to pay Contractor 34. INSURANCE: Contractor shall procure and maintain at its expense policies of insurance of the types and in amounts no less than the minimum coverages specified. Contractor shall maintain such policies of insurance for the duration of the Work and for a period of six (6) months thereafter if no other time period is specified herein. 35. PERFORMANCE AND PAYMENT BONDS: Intentionally omitted. 36. TERMINATION, SUSPENSION AND STOP WORK ORDERS: .1 General. Owner shall have the right to terminate this Agreement as follows: .a Termination for Cause. Owner may terminate this Agreement if Contractor. (i) violates or breaches any of the terms, conditions or covenants hereof and does not remedy such violation or breach within twenty (20) days after written notice by Owner to Contractor of such violation or breach ("Default Noticel; or (ii) makes an assignment for the benefit of creditors or is a party to a voluntary or involuntary bankruptcy proceeding ("Termination for Cause"). .b Intentionally omitted. .2 Owner's Rights Upon Termination. If all or a portion of Contractor's Work is terminated pursuant to Paragraph 36.1.a, Contractor shall be entitled to receive payment of any undisputed amounts, balance paid after Final Completion is achieved by others and. Upon any termination, Contractor shall immediately undertake all necessary steps to mitigate Owner's damages, including but not limited to the following: .a Cease operations and vacate the Site to the extent specified in the Default Notice, unless said fault notice is disputed then refer to Paragraph 42 for remedies. .b Upon Owner's request, terminate all subcontracts and purchase orders which relate to the terminated Work; .c Upon request and as directed by Owner, assign all Contractor's right, title and interest to all subcontracts, purchase orders, rental agreements, materials, supplies and equipment using forms satisfactory to Owner and Contractor and otherwise assist Owner in the orderly and expeditious transfer of such rights; A Turn over to Owner the originals of all documents that may be needed to facilitate completion of the Work by others; .e Proceed to complete the performance of all Work not terminated; .f Take such actions that may be necessary, or that Owner may direct, for the protection and preservation of the terminated Work; .g Remove all of Contractors property from Owners premises. Any property not so removed may be removed by Owner at Contractors expense. 37. ASSIGNMENT: The Work to be provided by Contractor hereunder is personal in nature and accordingly, Contractor may not assign or encumber this Agreement or any rights or obligations of Contractor hereunder. Owner may assign this Agreement to its lender upon written notice to the Contractor. 38. PROJECT DOCUMENTS: Contractor shall maintain the following documents at the Site during the course of the Work: (i) one (1) record copy of all drawings, specifications and revisions thereto;(ii) the Project Schedule (inclusive of any updates or revisions thereto);(iii) Change Orders and other modifications;(iv) Change Order logs;(v) approved material lists, brochures, technical data submissions and RFI's;(vi) RFI responses; (vii) RFI logs;(vir) Owner Directives;(N) a daily log of events affecting the current Project Schedule, including the actual start/finish dates of all critical path schedule activities;(x) all correspondence and transmittals pertaining to the Work; and (xi) all other records relating to the status of all Work - related materials, equipment and construction activities. Prior to Final Completion Contractor shall be responsible for providing Owner with (2 ) fully completed and accurate sets of all as -built drawings. The completed sets of all as -built drawings shall be submitted to Owner as Contract Documents for Owners permanent records upon receipt of Final Payment. 39. PROPRIETARY INFORMATION: Owner considers all information pertaining to the Work or the Project to be confidential and proprietary unless otherwise stated to Contractor in writing. Contractor shall refrain from disclosing any such information without Owners prior written consent, including any information which is prepared or developed by or through Contractor, other contractors, Owner, architects or other consultants. Contractor will have the right to list this project in his marketing material. 40. Intentionally Omitted 41. Intentionally Omitted 42. CLAIMS AND DISPUTES: .1 General. The validity, interpretation and effect of this Agreement shall be governed by laws of the State where the facility is located. The existence of any claim, any unresolved Change Order Claim, any dispute or any legal proceeding ("Claim") shall not relieve Contractor from its obligation to properly perform its Work as set forth herein. In the event of a dispute with respect to amounts payable under a request for payment from the Contractor, Owner shall pay all undisputed amounts and Contractor shall continue performing any remaining Work hereunder. Neither party shall initiate a legal proceeding and the applicable statute of limitations shall not commence to run until the Work is fully performed or until this Agreement is terminated, whichever occurs first. .2 Mediation. In the event of any claim, dispute or other matter arising out of or relating to this Agreement, the parties shall attempt to resolve any dispute amicably at a meeting to be attended by persons with decision -making authority. If, within fifteen (15) days after such meeting, the parties have not resolved the dispute, they shall submit the dispute to mediation by written demand in accordance with the Construction Industry Mediation Procedures of the American Arbitration Association (°AAA°) and bear equally the costs of the mediation. .3 Arbitration.lf, within thirty (30) days after mediation is initiated, the mediation does not result in settlement of the dispute, then the same shall be settled by arbitration administered by the AAA in accordance with its Construction Industry Arbitration Rules ("AAA Rules'), and not by litigation. Either party may submit such unresolved dispute to arbitration, which shall be conducted by a sole arbitrator. The arbitrator shall be selected in accordance with the AAA Rules, provided, however, that the arbitrator must have experience in construction disputes and must not have any conflict of interest. The arbitrators compensation and all related expenses shall be borne equally by the parties, unless otherwise awarded by the arbitrator. Unless otherwise agreed, the arbitration shall be conducted in the state where the School is located. The prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and disbursements in any action brought to enforce its rights under this Agreement. .4 WAIVER OF JURY TRIAL. THE PARTIES HERETO, AFTER CONSULTING WITH COUNSEL, HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO TRIAL BY JURY, AND ACKNOWLEDGE THAT THEY UNDERSTAND AND ACCEPT THE DISPUTE RESOLUTION PROCEDURE SET FORTH IN THIS AGREEMENT. 43. Intentionally Omitted 44. NO THIRD PARTY BENEFICIARY: Except as may be expressly provided otherwise herein, this Agreement and the obligations of the parties are intended for the sole benefit of the parties and shall not create any rights in any other person or entity whatsoever except Owner and Contractor. 45. NOTICES: All notices and other communication to be given hereunder shall be in writing and be deemed to have been received either. (i) immediately upon personal delivery or confirmed fax receipt; (ii) one (1) business day after having been sent by confirmed ovemight courier, or (iii) three (3) days after mailing, if mailed by certified mail, return receipt requested, postage prepaid: If to Owner: Contractor shall concurrently provide copies as follows: If to Contractor: The parties hereto shall be responsible for notifying each other of any change of address or facsimile number in accordance with this Paragraph 48. 46. SEVERABILITY: The invalidity or unenforceability of any one of the terms, conditions, covenants or provisions of this Agreement, or any portion thereof, shall not affect the remaining portions thereof, and the Agreement shall be construed and enforced as if such invalid term, condition, covenant or provision had not been included herein. 47. DAYS: For the purposes of this Agreement and unless stated to the contrary, the term "days" shall refer to calendar days. 48. COUNTERPARTS: This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 49. ENTIRETY OF THE AGREEMENT: This Agreement contains the full and complete understanding of the parties as to the subjects contained herein and supersedes any and all prior written or oral agreements or understandings between the parties. This Agreement may not be modified except by a subsequent writing executed by both parties. Waiver from time to time of any provision hereunder will not be deemed to be a full waiver of such provision or a waiver of any other provisions hereunder. The terms of this Agreement are mutually agreed to be clear and unambiguous, shall be considered the workmanship of all of the parties and shall not be construed against the drafting party. IN WITNES , t@RE�F he parties ha duly executed this Agre nt as of the day and year first written ove. Name: