HomeMy WebLinkAboutCONSTRUCTION CONTRACTDocuSign Envelope ID: 4FFlAA4C-2C78-4CD7-AD 1417CF5D316
ContractNo. R19-76709-003
I CONSTRUCTION CONTRACT (LUMP SUM)
This Construction Contract (referred to herein as the "Agreement" and consisting of this document and all Exhibits attached hereto
and/or incorporated herein by reference) made and entered into as of June 7, 2019 by and between:
The Owner (the 'Owner'):
Beach Club Property Owners' Association, Inc.
9002 San Marco Court
Building 1000
Orlando, Florida 32819 SCAIW�D
And the Contractor (the "Contractor): 8 Y
Blue Coast Construction St Lucie
2587 SE Monroe Stree cotir7tv
Stuart. FIL 34997
The Project is (the "Projectl: Balcony Concrete Restoration, R1 9-76709-73109-1701-0
The Architect is:
N/A
NOW THEREFORE, for and in consideration of the mutual covenants herein contained, Owner and Contractor agree as set forth
below.
I The Contract Documents consist of (a) this Construction Contract (the "Agreement"); (b) the Scope of Work Description set
forth in Exhibit A hereto and any related clarifications, qualifications and exclusions; (c) the Specifications as listed on Exhibit
A hereto; (d) the Drav,4ngs as listed on Exhibit A hereto; (a) all other Exhibits attached hereto; (f) any Addenda to the
Drawings or Specifications issued by the Architect with respect to the Work and (g) any Modifications issued in connection
with the Work for the Project. The Contract Documents forrn the Contract for Construction and may be collectively referred
to herein as the "Contract", the "Contract Documents" and/or the "Agreement". All Contract Documents and Exhibits to this
Agreement are fully incorporated into this Agreement by reference and are as fully a part of this Agreement as if repeated
in their entirety in this Agreement. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a
Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the
Architect. In the event of a conflict among any of the Contract Documents, the Contract Documents shall take precedence
in the order in which they are listed in this paragraph, except that a Modification shall take precedence over that portion of
any other Contract Document which is modified by the applicable Modification.
The Contract represents the entire and integrated agreement between the parties hereto and supersedes the Request for
Proposal, all other solicitations or requests for qualifications andfor bids and any responses thereto and all pdor negotiations,
representations or agreements� either written or oral (including the Contractor's responses to, andfor submissions in
connection with the Omer's requests for proposal or other solicitations), all of which are hereby rendered null and void and
of no effect. To the extent any portion of the Contractors proposal or responses to Owner's solicitations are attached or
referenced in this Agreement, such attachment or reference is intended only to identify the specific, limited items as set
forth therein. No other terms or conditions in any such document are incorporated into or part of this Agreement or any
other Contract Document, but rather all such terms and conditions are null and void and are superseded and rendered of
no effect by the terms of this Agreement. The Contract Documents shall not be construed to create a contractual relationship
of any kind (1) between the Architect and Contractor, (2) between the Omer and a Subcontractor or Sub -subcontractor or
(3) between any persons or entities other than the Owner and Contractor. The Architect shall, however, be entitled to
performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect's duties.
3. As used herein the terms "Work* or"work" shall mean, and the Contractor shall be required to perform or provide, all labor,
supervision, construction, materials, equipment, special facilities and "built-ins", construction documentation, construction
management services, fixtures, tools, supplies, taxes, permits (including general building and occupancy permits) and all
other property and services necessary to timely and fully perform all construction or other obligations or services set forth
in or reasonably inferable from the Contract Documents, in a good and workmanlike manner and in accordance with the
requirements of the Contract Documents, and all labor, services, materials or other items necessary to produce fully
connected, complete, operational and functional systems and finishes. In determining what is reasonably inferable from
the Contract Documents. all such documents shall be construed together, and shall not be read by separate trade areas or
design divisions. With respect to the services required of the Contractor herein, the Contractors services shall be performed
in (and measured according to) a manner consistent with those standards of professional skill, care and diligence applicable
to a Contractor of comparable experience and knowledge in similar circumstances. With respect to duplications,
inconsistencies, conflicts or ambiguities as to the nature and extent of the Work to be performed, all labor, materials, services
or other items, necessary for the execution of the Work and any labor, materials, services or other items which are
reasonably inferable as necessary to complete the Work within the limits established by the Contract Documents, shall be
considered as part of the Contract Documents and shall be executed by the Contractor in the same manner and with the
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same character and quality of matenal as other portions of the Work, without increase in the Contract Sum or extension of
the Completion Dates. In this regard, the Contractor acknowledges that Contractor has made representations to the Owner
in Contractor's proposal and subsequent negotiations that Contractor has substantial experience in the construction of
improvements substantially similar to the Project and that the Owner has reasonably relied on such representations in
entering into this Agreement with the Contractor.
The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a
part and which may include construction by the Omer or by separate contractors. References herein to the "Site" shall
mean the location of the Project and any areas therein or adjacent thereto where the Work is to be performed and/or the
Contractor is permitted to store or stage the Work and/or any matedals, equipment or tools. All terms and phrases defined
in this Agreement shall the respective meanings as are specified herein. Unless otherwise defined in the Contract
Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents
in accordance with such recognized meanings. The Article, Section and paragraph headings, and other titles and captions
used in the Contract Documents, are inserted only for convenience of reference, and are not intended to and shall in no
way define, limit, enlarge or prescribe the rights or obligations of the parties, or affect the meaning, construction, scope or
extent of any provisions of the Contract Documents.
Contractor also acknowledges that in connection with the administration and coordination of the Work and the activities of
the various participants on the Project, various documents, correspondence, charts and related materials may be created
and circulated discussing or identifying certain of the respective roles and responsibilities of the Contractor and the various
Project participants. Contractor agrees that no such document is a Contract Document, unless so defined herein, and that
the purpose of all such documents is only to coordinate and administer the communications required among the Project
participants. The Contractors obligations with respect to the performance of the Work shall be as set forth in the Contract
Documents, not in any other document or correspondence circulated among the Project participants, unless and only to the
extent provided otherwise in a written Modification to this Agreement that is signed by the Owner. The Contractor
acknowledges that this Agreement and various documents and correspondence issued by the parties in connection with
the Agreement, such as Change Orders, CCDs, related proposals and communications, may be translated from English
into another language, and vim versa, and that the parties may execute this Agreement and any such related documents
or correspondence in both an English version and a version in another language. The Contractor agrees, however, that
notwithstanding the issuance or translation of any such document in any other language, in the event of any conflict,
ambiguity or inconsistency between the English version of the Contract andlor such other documents and the version of the
Contract or such documents in another language, then the English version will control, and all disputes between the parties
shall be decided by reference to the English version of the Contract and such other documents only.
6. The Contractor is independently responsible for obtaining, reviewing and coordinating the provsions of all of the Contract
Documents, whether or not such documents have been delivered to the Contractor in connection with the request for bid,
have been individually signed by the Contractor and Omer or have been physically attached to the Contract. The failure
to review or obtain any such document shall not relieve or excuse the Contractor from compliance with the terms of such
document or the terms of any other Contract Document. By execution of the Agreement, Contractor represents that
Contractor has read and understands all of the Contract Documents and that Contractor can and will comply with all of the
provisions therein. Execution of the Agreement by the Contractor is a representation that the Contractor has visited the Site,
become familiar with local conditions under which the Work is to be performed and correlated personal observations with
requirements of the Contract Documents. Organization of the Specifications into divisions, sections and articles, and the
arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the
extent of Work to be performed by any trade. In addition, the Contractor acknowledges that the Specifications may be
provided in a format that is embedded in the Drawings. In such event, the Contractor shall be responsible to review the
Drawings for the Work and notify the Omer and the Architect if the Contractor believes that any aspect of the Work does
not have sufficiently detailed Specifications necessary for the proper and complete execution of the Work and shall obtain
the direction of the Owner or Architect Sefore proceeding with any affected Work.
Drawings are intended to show general arrangement, design and extent of the Work and are partly diagrammatic. As such,
they are not intended to be scaled for measurements or to serve as Shop Drawings, the responsibility for preparation of
which shall be entirely the Contractors. Large scale Drawings shall take precedence over small scale Drawings and figures,
dimensions and noted materials shall take precedence over graphic representations. Architectural Drawings shall take
precedence in regard to dimensions when in coriffictwith mechanical/electrical orstructural Drawings except forthe size of
the structural members. Before beginning any Work involving dimensions that depend upon or are affected by existing
conditions, the exiisting conditions shall be verified and shall take precedence over the Drawings with regard to dimensions.
The Contractor shall carefully study and compare the Contract Documents with each other and with the information
furnished by the Omer and shall take field conditions and shall carefully compare such field measurements and conditions
and other information known to the Contractor with the Contract Documents before commencing activities.
8. All Drawings, Specifications and other documents prepared by the Owner, Architect, or any interior designer or other design
or engineering consultant involved with the Project or by any of the Omer's Consultants, or through which the Work to be
executed by the Contractor is described, are the property of the Owner, and shall not be used by any person other than the
Omer on projects other than the Project unless expressly authorized in writing by the Omer. The Contractor may retain
one (1) record set of the Contract Documents. All copies of such Drawings, Specifications and other documents, except
the Contractors record set, shall be returned or suitably accounted for to the Omer on request, or upon completion of the
Work. All Drawings, Specifications and other documents relating to the Project, and any copies thereof furnished to the
Contractor, are for use solely with respect to this Project. They am not to be used by the Contractor or any Subcontractor,
on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the
Omer. The Contractor and Subcontractors are granted a limited license to use and reproduce applicable portions of the
Drawings, Specifications and other documents prepared for the Project but only to the extent appropriate to and necessary
for use in the execution of their Work under the Contract Documents. Submittal or distribution to meet official regulatory
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requirements or for other purposes in connection with this Project shall not be construed to be a publication or derogation
of the Omer's rights with respect to such Drawings, Specifications and other documents. To the extent any drawings
issued by the Architect concerning clarifications, proposed changes (in the form of "bulletins� or changes are in the fort n of
a reproducible print, the Contractor shall do all printing or duplication and distdbution of such reproducible prints as
necessary for the proper performance of the Work.
9. The Omer shall also own and have the right to use all drawings, designs, specifications, notes and other design works
developed directly by the Contractor or any Subcontractors in the performance of the Work and the ideas and designs
contained therein (including Shop Drawings, wiring diagrams, process control and instrumentation drawings and equipment
drawings) in connection with the Owner's occupancy, use, maintenance and repair of the Project and for additions,
alterations or future construction to the Project. Notwithstanding the foregoing, however, the Omer agrees that the
Contractor and any Subcontractors or suppliers, as applicable, shall continue to own the underlying technical design
concepts set forth in such drawings, designs, specifications, notes and other documents, and shall have the right to use
such concepts in connection with the design and construction of other projects without the Omer's consent. The Contractor
agrees to furnish the original or copies of all such documents at Omer's request and without additional compensation.
Owner agrees that the Contractor shall have no responsibility for any claims, losses or damages arising out of the Owners
use of such drawings, designs, specifications, notes and other design documents developed directly by the Contractor or
any Subcontractors pursuant to this Agreement in connection with other projects or future alterations or additions to the
construction of this Project, unless the Contractor or applicable Subcontractor is retained to perform the necessary work
(including design work) relating to such use.
10. As used herein the term "Proprietary Information" shall mean all information (including the Contract Documents and any
documents created pursuant to this Agreement) which the Contractor acquires (whether directly from the Omer or through
the performance of the Work on the Project) concerning the present and future plans of the Owner, the operations of the
Owner's business, or the use of the Project or the Projears design, construction, features, appearance, marketing, layout
or d6cor (including the Contract Documents), and any information concerning the Project Site or the Omer's business,
activities or property at the Project Site. The Contractor represents to the Owner that Contractor has and employs policies
and procedures, including but not limited to notices to Subcontractors and their respective employees, to protect Proprietary
Information and to prevent the unauthorized publication and disclosure of Proprietary Information. The Contractor agrees
that the Owner's Proprietary Information shall be subject to such policies and procedures. Specifically, and in addition, the
Contractor agrees that Contractor will not disclose any Proprietary Information to any person, either internally or externally,
(except as directly necessary for the performance of the Work) without the prior and mitten consent of Omer, and will not
use, copy or distribute any Proprietary Information (or any document containing Proprietary Information) except to the extent
directly necessary for the performance of the Work and/or as necessary to complywith the Contractor's obligations under
applicable law (including but not limited to reporting requirements to OSHA and other governmental agencies with
jurisdiction over the Work or the Contractor). The Contractor agrees, upon completion of the Work, to return to the Omer
or destroy all documents containing Proprietary Information (except for the Contractor's record set of the Contract
Documents). Further, Contractor acknowledges and agrees that all public relations matters arising out of or in connection
with the Project shall be the responsibility of and be handled by the Omer. The Contractor shall not make any
announcement or publication, either internal or external, with respect to or in connection with the Project, (including but not
limited to any public announcement, website mention, advertising, publicity or comment about the Project or Contractors
participation in the Project) without the Owners prior and mitten approval, except as directly necessary for the performance
of the Work or as otherwise permitted above. Contractor shall not permit any of its employees or any of its Subcontractors
or their employees to publicize, email, distribute, or otherwise post photographs of the Work or the Site, or any other
Proprietary Information, onthe Internet, on social media sites (including but not limited to Facebook, Twitter, Pinterest, etc.),
or in any other public or private forum.
If. Contractor acknovdedges that certain of the Drawings, Specifications and other Contract Documents may be provided to
Contractor in electronic format, including CAD or Revit versions of the Drawings for use in connection with the creation and
maintenance of as -built documents and/or for coordination purposes Wth respect to Design/Build Work and the submission
of Shop Drawings and other Submittals (all of which documents are collectively referred to herein as "Electronic
Documents'). In this regard, Contractor acknowledges that the Electronic Documents are in a form that is susceptible to
manipulation, degradation and inconsistency due to, among other things, operator error, computer viruses, machine
malfunctions, software imperfections'and similar causes. Contractor acknowledges and agrees that the Electronic
Documents are not intended to, and shall not, be used to construct the Project but instead are provided only for the reference
and convenience of the Contractor in connection with the Contractor's performance of its responsibilities and obligations
relating to the Project (including the preparation of as -built drawings, Shop Drawings and other Submittals). For purposes
of constructing the Project, onlythe hard, paper blueprint orvellurn copies ofthe Drawings, Specifications and other Contract
Documents (collectively the "Paper Documents') shall be used. The Electronic Documents do not replace or supplement
the Paper Documents, and the Paper Documents shall not be deemed to have been modified by any Electronic Documents
fumished to Contractor. Contractor and its Subcontractors shall be solely and completely responsible to compare the
Electronic Documents to the Paper Documents in order to identify and resolve any discrepancies, inconsistencies,
ambiguities or conflicts between the Electronic Documents and the Paper Documents and shall be independently and solely
responsible to obtain any required clarification, resolution or direction from the Omer and Architect and then to integrate,
coordinate and account for the accurate information as required in connection with the Work.
12. Contractor shall carefully review and compare the Contract Documents and assess existing conditions, as required by the
Contract Documents, and shall notify and obtain the direction of the Owner and/or Architect with respect to any inadequate
information, conflicts, inconsistencies, errors, omissions, duplications, variances with codes or existing conditions, failure to
comply with legal requirements arid/or any similar issues or problems discovered by Contractor that require further detail,
information, decision or direction from the Owner, Architect or other persons or entities involved with the Project in order for
the Contractor to perform the Work fully, property and in accordance with the requirements of the Contract Documents and
applicable codes and lam. The Contractor shall provide such notice promptly and in such time as to avoid any delay to the
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critical path and prior to performing any Work affected by the discovered condition. If the Contractor performs any
construction activity when Contractor knows such activity requires such further detail, information, decision or direction,
without giving prior notice to and obtaining the instructions of the Owner with respect to such activity, the Contractor shall
be responsible for such performance and shall be liable for any attributable costs, and shall not be enfitled to any increase
in the Contract Sum or extension of the Completion Dates on account thereof.
The Owner is the person or enfity identified as such in this Agreement and is referred to throughout the Contract Documents
as if singular in number. The term "Owner" means the Owner or the Omer's authorized representative. The Contractor
shall provide the Owner, Omer's Consultants, Owners lenders and invitees, and Architect access to the Work in
preparation and progress wherever located. Information or services under the Omer's control which are reasonably
necessary for the Project and requested in writing by the Contractor shall be furnished by the Omer with reasonable
promptness to avoid delay in orderly progress of the Work. Unless otherwise provided in the Contract Documents, the
Contractor will be furnished, free of charge, two (2) copies of the Drawings and Specifications. AJI other copies required by
Contractor shall be reproduced at Contractors sole cost and expense.
Contractor acknowledges and agrees that the Omer, Owners Consultants, and Architect are under no obligation to inspect
the Work or to discover defects or deficiencies in the Work. The discovery of or failure to discover any defects, deficiencies
or other problems in the Work by the Owner, Omer's Consultants, or Architect, shall not in any way constitute a waiver or
acceptance of any such defect, deficiency or other problem or in any way affect or reduce the Contractor's responsibilities
to perform the Work in conformance with the terms of the Contract Documents and free of defects, deficiencies or other
problems in materials or workmanship. Contractor shall be solely responsible for all construction means, methods,
techniques, sequences or procedures and for all safety requirements, programs, measures and precautions in connection
with the Work. In this regard, Contractor acknowledges and agrees that any review, discussion, observation, inspection,
approval or comment by Architect, Owners Consultants, or Omer with respect to such matters and any review, approval
or comment by Architect, Omer's Consultants or Owner with respect to any shop drawing or other design detail,
specification or engineering calculation shall relate to and reflect only the Architect's, Omer's Consultants' and/or Omer's
general information as to the nature and status of the Work being performed and shall not constitute a technical approval
or acceptance of (or any assumption of liability or responsibility with respect to) any such drawing, design specification or
calculation or any means, methods, techniques, sequences or procedures or safety requirements, programs, measures and
precautions, and shall not relieve, affect or diminish in any way Contractors obligations and responsibilities for such matters
as set forth in the Contract Documents.
3. If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents, as
required by Article 12 of this Agreement, or fails to carry out Work in accordance with the Contract Documents, the Omer,
by written order signed personally or by an agent specifically so empowered by the Omer in witting, may order the
Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right
of the Omer to stop the Work shall not give rise to a duty on the part of the Omer to exercise this right for the benefit of
the Contractor or any other person or entity. This right shall be in addition to and not in restriction or derogation of Omer's
rights under Article 12 hereof, nor shall the exercise of this right by Omer relieve Contractor of any responsibilities and
obligations under or pursuant to the Contract Documents. If the Contractor, in Contractor's reasonable judgment, believes
that a suspension is warranted by reason of unforeseen circumstances which may adversely affect the quality of the Work
if the Work were continued, the Contractor shall immediately notify the Owner and Architect of such belief and describe with
particularity the reasons therefor.
4. If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a
seven-day period after receipt of w6tten notice from the Omer to commence and continue correction of such default or
neglect with diligence and promptness, the Omer may immediately and without prejudice to other remedies the Omer may
have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then
orthereafter due the Contractorthe cost of correcting such deficiencies, including compensation forthe Architect's additional
services and any other expenses made necessary by such default, neglect or failure. If payments then or thereafter due
the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Omer. The rights
stated in this paragraph shall be in addition to and not in limitation of any of the rights of Owner granted in the Contract
Documents or at law or in equity.
5. The Owner hereby designates Matt Dean, as the Omer's representative authorized to act on the Omer's behalf with
respect to this Agreement (hereinafter the "Owner's Representativel. In the event Contractor receives any instructions or
approvals, either in writing or orally, from any property or facilities managers or other personnel of the property where the
construction is being performed or from any persons other than the Owner's Representative designated pursuant to this
paragraph or any Project Manager designated pursuant to this Agreement, (which Project Manager's authority shall be
subject to the limitations set forth herein), then Contractor shall notify the Owners Representative of such instructions or
approvals and shall not act upon such instructions or approvals until provided with directions from the Omer's
Representative. The Contractor shall not accept requests for work or services or other directions in connection with the
performance of the Work pursuant to this Agreement unless such request or direction is issued by the Owners
Representative (or, subject to the limitations set forth herein, from any Project Manager designated pursuant to this
Agreement). A new representative may be designated by the Omer pursuant to this paragraph by providing the Contractor
with three (3) days' prior, written notice.
6. Contractor acknowledges that, in addition to the Architect, the Owner may retain a project manager on the Project (the
"Project Manager) and that the Omer may retain other persons or entities (including but not limited to third -party auditors,
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engineering consultants and others) to act as consultants to the Owner and to assist the Owner, as and when authorized,
in the evaluation and observation of certain aspects of the design and constructon of the Project (the Project Manager and
any other consultants retained by Owner with respect to the Project are referred to herein as the "Omer's Consultants"). If
the Omer has retained a Project Manager or other Owner's Consultants, such entities or persons are identified in Exhibit
B. (The Owner reserves the right to designate any other or different person or entity to act as the Project Manager or an
Omer's Consultant, in addition to or in replacement of any entity or person so designated in Exhibit B, in a later, written
directive issued by the Owner's Representative). Contractor agrees to maintain appropriate communication and to
coordinate its activities with the Project Manager and Owner's Consultants, as necessary to facilitate the full, timely and
proper performance of the Contractor's obligations under the Contract Documents and the completion of all Work within the
applicable Completion Dates established by this Agreement. The Project Manager shall have authority to observe, evaluate,
administer, monitor and direct the Work, subject to the limitations set forth in this Agreement, including those set forth in
this paragraph below, and Contractor shall provide the Project Manager with all information requested by the Project
Manager in this regard and shall abide by all directions of the Project Manager, again subject to the limitations set forth in
this Agreement, including those set forth in this paragraph below. Communications on the Project shall be directed to and
include both the Owners Representative and the Project Manager. In all events, copies of all written communications with
the Project Manager shall be copied by Contractor directly to the Omer, through the Omer's Representative identified in
this Agreement, and all significant issues with respect to the Project and/or this Agreement shall be communicated by
Contractor direcfly to the Omer through the Omer's Representative. Contractor acknowledges that the Project Manager
and the Owners Consultants are solely advisors to the Omer and do not have authority to act generally as the Owner's
agents, or to act otherwise on behalf of the Omer in connection with the Project, unless expressly so stated in this
Agreement or the Contract Documents or later so indicated to the Contractor by the Owner in writing. Contractor specifically
understands and agrees that the Project Manager and Owners Consultants do not have authority to authorize any change
in the scope of the Work, increase in the Contract Sum, revision to the Completion Dates or schedule or any additional
compensation or payment to the Contractor, without the prior and written approval of the Omer through the Omer's
Representative.
The Owner, Omer's Representafive and Omer's Consultants shall at all times have access to the Work wherever the
Work is in preparation and progress. The Contractor shall provide facilifies for such access. Contractor hereby
acknowledges that the Owners Representative (either directly or through specific authority given by the Omer's
Representative to the Architect) shall have authority to (I) reject Work which does not conform to the Contract Documents;
(ii) stop the Work in order to require the proper execution of the Work or to order the correction of Work which the Omer's
Representative determines is defective, substandard or not in conformance with the applicable Contract Documents: and
(III) require special inspection or testing of the Work in accordance with the provisions of the Contract Documents whether
or not such Work be then fabricated, installed or complete.
1 The Contractor is the person or entity identified as such in this Agreement and is referred to throughout the Contract
Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized
representative. The Contractor will be responsible for insudng that the Work of the Subcontractors is being performed in
accordance with the Contract Documents, and will guard the Owner against defects and deficiencies in the Work of the
Subcontractors. The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The
Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and
procedures and for coordinating all portions of the Work under this Agreement. The Contractor shall be responsible to the
Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other
persons performing portions of the Work under a contractwith the Contractor or claiming by, through or under the Contractor
and for any damages, losses, costs and expenses resulting from such acts or omissions.
2. The Contractor acknowledges that the Project involves the design and construction of facilities that are "public
accommodations" under the Americans with Disabilities Act, and that the Project must comply with the current and
applicable physical accessibility requirements set forth therein, the related accessibility guidelines and the Uniform Federal
Accessibility Standards as published in the Federal Register and applicable State or local laws (collectively, the "ADA").
The Contractor shall promptly report to the Owner and Architect any variance observed by Contractor from the ADA or other
applicable lam, statutes, ordinances, building codes, rules, regulations or any lawful orders of any governmental body, or
public or quasi -public authority and shall secure wriften instructions from the Omer prior to proceeding with any Work
affected by or involving such variance. The Contractor shall also keep the Omer informed of any changes of which
Contractor becomes aware in applicable laws, statutes, ordinances, rules or regulations or any approvals or permits required
for the Work.
3. The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either
by activities or duties of the Architect or by tests, inspections or approvals required or performed by persons other than the
Contractor. The Contractor shall be responsible for inspection of portions of Work already performed under this Agreement
to determine that such portions are in proper condifion to receive subsequent Work. If any of the Work is required to be
inspected or approved by any public authority, the Contractor shall cause such inspection to be performed or such approval
to be obtained. No inspections performed or failed to be performed by the Owner hereunder shall be a waiver of any of the
Contractors obligations hereunder or shall be construed as an approval or acceptance of the Work or any part thereof.
4. The Contractor shall take such steps as are necessary in Contractor's reasonable judgment during emergencies, without
requiring the prior approval of Omer, to protect life and property. In connection with such emergency, Contractor shall
arrange for the taking of photographs and the preparation of reports and make recommendations to Omer in writing for the
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engagement of such consultants and inspection services as are prudent to record the facts, and cooperate and assist in
obtaining insurance recoveries. As soon as possible, Owner is to be notified by Contractor of the emergency and the actions
taken by the Contractor in connection herewith. Unless otherwise provided in the Contract Documents, the Contractor shall
provide and pay for all labor, materials (except any Owner Supplied Items provided directly by Omer pursuant to this
Contract), equipment, tools, construction equipment and machinery, transportation, and other facilities and services
necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not
incorporated or to be incorporated in the Work.
5. The Contractor shall secure and deliver to Omer all required guarantees, affidavits, releases of liens, waivers, certificates,
consent of any surety to Final Payment and other documents required to be delivered in connection with the Work under
the Contract Documents. Contractor shall provide installation, maintenance and operation manuals on all equipment.
Contractor shall familiarize the Owner's operations staff with the operation of systems installed. Subsequent to Substantial
Completion of the Work and during the Ownerjs initial occupancy and use of thereof, the Contractor shall schedule and
conduct with the Omer and Architect a complete review, commissioning, demonstration, start-up and operational
shakedown of all equipment and mechanical and electrical systems installed by the Contractor or any Subcontractors in
connection with the Work, and shall also review the operation and maintenance of such systems with the Owner's
maintenance contractors. Subsequent to this review, the Contractor, with reasonable promptness and at no cost to the
Omer, shall make all adjustments or corrections required by the Owner or Architect and shall balance all systems in order
to make all equipment and systems perform as required by the Contract Documents. If necessary or requested by the
Architect or Omer, the Contractor shall require the Subcontractor responsible for any such equipment or system to
participate in the review and/or to perform the adjustments, corrections or balancing required by this paragraph.
6. The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying
out the Work. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them.
The Contractor shall confine operations at the Site to the areas permitted by the Omer and shall not encumber the other
portions of the Site With any materials or equipment. The Contractor shall comply with any directions or restrictions issued
by the Omer regarding protecting and securing materials or equipment stored on the Site and shall be responsible for such
protection and security. The duty of the Contractor to maintain discipline and good order and compliance with the Omer's
policies, rules and regulations pursuant to the Contract Documents shall apply to the Contractor's employees and to all
Subcontractors and their respective employees. The Contractor shall require all persons performing Work to comply with
any and all policies and rules established by the Omer relating to access or behavior at the Site and any policies or rules
regulating parking, access to the Site, ingress, egress, noise, smoking, hygiene, food services, restricted areas, elevator
use, and guest privacy and confidentiality, including any House Rules attached to this Agreement as Exhibit F. In this
regard, if the Project involves renovation of an existing facility being used by the Omer, the Contractor acknowledges that
the Omer's facilities will remain in operation while the Work is performed, and agrees to comply with all directions and
instructions of the Owner regarding the use of the Site in order to avoid unnecessary or excessive interference with the
Omer's operations, and will take all reasonable actions needed to provide clean, unencumbered, well defined and safe
access to the Omer's facilities for vehicles, guests, visitors and employees.
The Contractor (I) shall assure that Contractor's employees and Subcontractors work in harmony and do not interfere with
Owner or Omer's other contractors and (ii) shall use Contractor's best efforts to avoid any work stoppage, picketing, labor
disruption or dispute involving the employees, contractors, subcontractors, laborers, or materialmen of Omer or any tenant
or occupant of the Project and any unreasonable interference with the business of Omer or any tenant or occupant of the
Project. In the event of a labor dispute, the Contractor shall not be entitled to any increase in the Contract Sum. Inaddition,
Excused Delays shall not include delays or interruptions to the Work caused by labor disputes arising from the decision of
the Contractor or any Subcontractors to use non -union labor or to schedule concurrent work by non -union and union labor
crews or arising from jurisdictional labor disputes.
Contractor shall be responsible to assure compliance with all United States immigration lam and requirements, including
but not limited to regulations of the United States Immigration and Naturalization Service ("INS") and the United States
Department of Homeland Security and all applicable State and local lam with respect to all employees of Contractor and
its Subcontractors who will be performing Work in connection with the Project. In this regard, Contractor shall comply with
all visa laws and related regulations and shall obtain and maintain all 1-9 forms, 1-797 forms and related backup
documentation as required by applicable law. Additionally, Contractor shall maintain all records required by the INS,
including records of any posting requirements under H-1 visa regulations. Contractor shall make such documentation
available to Owner for review promptly upon request.
Contractor cerrifies that: (i) neither it nor its officers, directors or controlling owners is acting, directly or indirectly, for or on
behalf of any person, group, entity, or nation named by any Executive Order, the United States Department of Justice, or
the United States Treasury Department as a terrorist, "Specially Designated National or Blocked Person," or other banned
or blocked person, entity, nation, ortransaction pursuant to any law, order, rule, or regulation that is enforced or administered
by the Office of Foreign Assets Control ("SDN�; (ii) neither it nor its officers, directors or controlling owners is engaged in
this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf
of, any such person, group, entity or nation; and (III) neither it nor its officers, directors or controlling owners is in Violation
of Presidential Executive Order 13224, the USA Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act or
any regulations promulgated pursuant thereto. In the event that Contractor, during the term of this Agreement, is designated
an SDN, the Owner, in addition to any other remedies that may be available under this Agreement or applicable law, may
terminate this Agreement for cause pursuant to Article 14 herein.
10. The Contractor warrants to the Omer and Architect that materials and equipment furnished under this Agreement will be
of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from
defects not inherent in the quality required or permitted, and that the Work will conform with the requirements of the Contract
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Documents (including any provisions in the Specifications or other Contract Documents requiring that the Work be
guaranteed against failure for a specific period or establishing specific performance parameters or durations). Work not
conforming to these requirements, including substitutions not properly approved and authorized, may be considered
defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed
by the Contractor, improper or insufficient maintenance or improper operation. If required by the Owner or Architect, the
Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not
limited by the provisions of Article 12.
11. All Owner Supplied Items and all other manufactured articles, materials, and equipment shall be stored, applied, inspected,
tested, connected, erected, used, cleaned and conditioned by the Contractor as directed by the applicable manufacturer
and/or vendor unless otherwise specified. Contractor shall promptly notify Owner in wiling if Contractor believes that any
defect or deficiency in the Work is attributable to a defect or deficiency in any Owner Supplied Item for which Contractor is
not responsible pursuant to the terms of this Agreement. Such written notice shall specify the nature of the defect or
deficiency and the Contractor's recommendation as to how it should be repaired. If so requested by Omer, Contractor
shall Gease performing any corrective work in connection wth the defect or deficiency in the Owner Supplied Item and shall
provide appropriate access for, and cooperate with, the vendor of the Owner Supplied item so that the vendor can repair,
replace or correct the Owner Supplied Item, as necessary. However, notwithstanding any such notice, the Contractor
agrees, that if so requested by Omer, Contractor shall correct or repair any defect or deficiency in any Omer Supplied
Item promptly upon notice of such direction or request and irrespective of any dispute as to the Contractor's responsibility
for such corrective work, subject to the Contractor's right to make claim for additional compensation andfor an extension of
the Completion Date(s) resulting therefrom pursuant to the terms of this Agreement.
12. The Contract Sum established pursuant to this Agreement includes, and the Contractor shall pay all Federal, State,
Provincial or local taxes and all sales, consumer, use and similar taxes applicable to the Work (or relating to the performance
of any services, furnishing of any materials or ownership, use, or transfer of any property in connection Wth the Work) which
are legally enacted when the Agreement is signed, whether or not yet effective or merely scheduled to go into effect (except
for sales and/or use taxes with respect to Owner Supplied Items, which shall be paid for directly by Omer as part of the
procurement of the Omer Supplied Items), and all taxes measured by the wages of all employees of Contractor or any
Subcontractors as required by law. Contractor shall be solely , responsible and liable for payment of said taxes.
13. Unless otherwise provided in the Contract Documents, or agreed by the Omer in writing, the Contractor shall secure and
pay for the building permit and other permits and governniental fees, licenses and inspections necessary for proper
execution and completion of the Work. AM Work performed hereunder by Contractor shall comply in every respect with the
current and applicable versions (as of the date when the Work is performed) of all laws, ordinances and regulations of duly
constituted authorities in force in the locality in which the Work is performed (including, but not limited to, all safety and
health regulations applicable to the Work [including the Federal Occupational Safety and Health Act, as amended, if
applicable], and all applicable environmental, energy conservation and/or green building regulations governing the Work
and related means, methods and procedures such as dust control, noise mitigation, waste disposal, access restrictions,
etc.) and if any licenses, permits, or bonds are required in connection therewith, the same shall be furnished by Contractor
at Contractor's sole cost and expense. If the Project is registered as a National Historic site on the U.S. National Historic
Register or has otherwise been declared a historic property under applicable local, State, Provincial or Federal law, the
Contractor shall perform the Work in such fashion as complies with the applicable requirements and regulations relating to
the construction and renovation of such historic structures. If the Work involves demolition (interior or exterior) and/or any
possible removal, remediation or repair of existing conditions and structures that may contain asbestos, water damage or
other hazardous materials, then the Contractor shall be responsible to assure that all approvals, permits, licenses and
surveys (including pre -demolition surveys or assessments of the existing conditions and the potential presence of asbestos,
water damage and other hazardous materials) have been requested, issued, reviewed and obtained prior to commencing
the Work.
14. The Contract Sum includes those specific allowances that are identified in Exhibit C hereto. Items covered by allowances
shall be supplied for such amounts and by such persons or entities as the Omer may direct, but the Contractor shall not
be required to employ persons or entities against which the Contractor makes reasonable objection. The Contract Sum
shall be adjusted accordingly if the actual costs for allowance items are more or less than the allowances specified in the
Contract Documents. Unless otheniinse provided in Exhibit C, allowances shall cover the cost to the Contractor of materials
and equipment delivered at the Site and all required taxes, less applicable trade discounts. The Contractor's costs for
unloading and handling at the Site, labor, Installation costs, overhead, profit and other expenses relating to stated allowance
items shall be included in the Contract Sum and not in the allowances. Unless otherwise provided in the Contract
Documents, materials and equipment under an allowance shall be selected with reasonable promptness by the Owner to
avoid delay in the Work.
15. The Contractor shall employ a competent superintendent, project manager and necessary assistants who shall be in
attendance at the Project Site on each day du(ing performance of the Work. The Contractor's project manager shall
represent the Contractor, and communications given to the Contractors project manager shall be as binding as if given to
the Contractor. The list of all supervisory personnel, including the Contractors project manager and superintendent, that
the Contractor intends to use for the Work and a chain of command organizational chart shall be submitted to the Owner
forapproval. Upon such submittal, the Owner shall have the right to review the qualifications of and conduct interviews with
such persons and shall have the right to disapprove of any person selected by the Contractor. The Contractor shall not
assign or change supervisory personnel or utilize any organizational chain of command to the extent disapproved by the
Owner. The Contractor's superintendent and project manager shall not be discontinued and the Contractor shall not replace
the Contractors superintendent or project manager without the prior written consent of the Omer, which such consent shall
not be unreasonably withheld.
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16. No later than fourteen (14) days after the execution of this Agreement by the Contractor and the Owner, the Contractor shall
prepare and submit for the Owner a baseline construction schedule (the "Baseline Construction Schedule') for all of the
Work using the Critical Path Method. The Baseline Construction Schedule shall be related to the entire Work to the extent
required by the Contract Documents, and shall provide for the expeditious and practical execution of the Work and for
Substantial Completion of the Work and completion of any interim milestones no later than the Completion Dates identified
in Exhibit D to this Agreement (except as such dates may be modified hereafter pursuant to a Change Order signed by the
Owner or the applicable provisions of this Agreement). The Baseline Construction Schedule shall set forth the time for
perfor-mance and the dates for commencement and completion of each significant aspect of the Work, shall set forth the
anticipated purchase and delivery dates for all major materials and equipment to be employed in the performance of the
Work, shall set forth the estimated man hours to complete each aspect of the Work identified in the Baseline Construction
Schedule, shall set forth a weekly projected head count of manpower by trade, for each week beginning with
commencement of the Work through to Substantial Completion, and shall identify (by noting the number of personnel
assigned to each task, the interaction between tasks, etc.) the assignment and coordination of manpower with respect to
each aspect of the Work identified in the Baseline Constmction Schedule. The Baseline Construction Schedule shall be
coordinated with the Owner and Architect so that all activities connected Wth the construction of the Project shall be
performed in an orderly and timely fashion. The Baseline Constmetion Schedule shall include reasonable allowances for
periods of time required for the Owners and/or Architecfs review and approval and for inspections and approvals by the
various governmental authorities having jurisdiction over the Work, which periods shall be consistent with the provisions of
Article 8 herein.
17. The Contractor shall prepare a Materials Status Report not later than fifteen (15) calendar days after subcontracts are
awarded for each separate aspect of the Work. The Materials Status Report shall include a complete list of suppliers, items
to be purchased from the suppliers or fabricators, time required for fabrication, and the scheduled delivery dates for each
item relevant to each aspect of the Work. Whenever the Contractor leams of an event or circumstance that may delay a
scheduled delivery date shown on the Materials Status Report, Contractor shall: (I) promptly notify the Owner of such event
or circumstance, including the effect of such event on the Construction Schedule; and (H) if requested by Omer, consult
with the Owner and/or the Architect to develop and implement procedures that mitigate the effect of such event on the
Construction Schedule. From commencement of the Work through to Final Completion, Contractor shall also maintain an
RFI Report, identifying (by number and in sequence) each Request for Information ("RFI") submitted by the Contractor or
any Subcontractor, the date Men the RFI was submitted to the Architect and Owner, the general nature of the RFl, the
date when a response was given to the Contractor relating to the RFI and the nature of the response. In addition, from
commencement of theWork through to Final Completion, Contractor shall maintain a Change Order Request Log identifying
each Change Order Request ("COR� submitted by the Contractor (by number and in sequence), the date when the COR
was submitted to the Architect and Omer, the general nature of the COR, the date when a response was given to the
Contractor relating to the COR and the nature of the response.
18. Subsequent to the commencement of the Work on the Project, the Contractor shall prepare and submit every thirty (30)
days a schedule report in such form, detail and character as approved by the Omer and including an updated construction
schedule, referenced to the Baseline Construction Schedule and shoWng all delays, impacts or changes thereto (which
such updated schedule is referred to herein as the "Construction Schedule") and reflecting and accounting for all events
and occurrences encountered in or associated with the performance of the Work which may delay Substantial Completion
of the Work and/or preclude the Owner from using and occupying ail, or any portion of the Work, for its intended purpose
on or before the applicable Completion Dates (hereinafter referred to as a "Delaying Event). The monthly Construction
Schedule shall be accompanied by a narrative recap of the month's activities Win appropriate reference to the Contractor's
daily logs or other records for purposes of reflecting actual or projected manpower allocation. Accompanying this schedule
report shall be an updated, current Construction Schedule, an updated Materials Status Report, an updated RFI Report, an
updated Change Order Request Log, and a listing and status report with respect to all Change Orders, CCDs, and
Modificatlons. The Contractor shall also deliver with this schedule report a certification by the Contractor that the Architect
has inspected and reviewed the Record Draw[ngs for the Work and found the maintenance of such documents to be in a
current state and shall deliver a concise, written summary prepared by the Contractor's superintendent idenfifying and
discussing all significant achievements, problems or other events affecting or relating to the Work during the preceding thirty
(30) days. This schedule report shall contain a statement by the Contractor's superintendent as to the progress of the
Project, and the status of conformance with such Construction Schedule and the Contractors expectation of completion as
compared to the Construction Schedule.
19. The Contractor shall notify the Owner with reasonable promptness if and when any Delaying Event takes place. Further,
should a Delaying Event take piece the Contractor shall meet with the Owner and Architect, as and when requested, to
discuss the situation and identify responses and alternatives which will reduce or eliminate the impact of the Delaying Event
and shall modify, revise and adjust the Construction Schedule accordingly, pursuant to the direction of the Owner.
Specific -ally, the Contractor shall (as directed by the Owner and subject to the Contractor's right to make a claim pursuant
to the applicable provisions herein) modify the Construction Schedule, in response to any Delaying Event, and prioritize the
Work in such a fashion so as to allow the Owner to use and occupy as much of the Work as possible for its intended purpose
on or before the applicable Compleflon Dates. At all times, the Contractor shall cause the Work to be performed in
accordance with the most recent revisions and modifications to the Construction Schedule.
20. Contractor acknowledges and agrees that the Owners receipt, review, approval or comment with respect to any schedule
prepared by Contractor and/or furnished to Omer pursuant to this Agreement (including the Baseline Construction
Schedule and any subsequent Construction Schedules) does not constitute any representafton, warranty or acceptance by
Owner of the reasonableness of the schedule or its logic, nor of any specific sequencing, phasing or scheduling of the
individual aspects of the Work, and does not constitute a representation by Owner that the Work can be performed within
the time or in the manner set forth in any such schedule. By executing this Agreement, Contractor agrees that Contractor
has independently assessed the Completion Dates established in Exhibit D to this Agreement and determined that they are
adequate to allow the Contractor to complete the Work, fully and properly, within the times established and that the
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Contractor has available and will supply sufficient manpower, personnel and resources to complete the Work within the
Completion Dates established in Exhibit D to this Agreement (except as later modified pursuant to the applicable provision
of this Agreement). The Completion Dates established in Exhibit D to this Agreement are not based upon any representation
by the Omer to the Contractor as to how the Work will be sequenced, when or for how long any area at the Site will be
available for the performance of theWork or when, for how long, or in what sequence any manpower assignments or levels
will be necessary to perform and complete the Work in accordance with the Completion Dates. All of these determinations
and decisions shall be the responsibility of the Contractor. The Baseline Constnuction Schedule and any Construction
Schedules prepared by and/or submitted by the Contractor are information tools only, for use by Omer in evaluating
Contractor's performance in relation to the Completion Dates established in Exhibit D to this Agreement (as later modified
pursuant to the applicable provisions of this Agreement). The inclusion of dates or assumptions in any such schedule for
action by the Omer, availability of certain areas, or other circumstances or conditions is not a promise or representation by
the Omer of such dates and/or assumptions and shall not be deemed accepted or agreed to by Omer merely by Owner's
acceptance, review or use of such schedule to evaluate Contractor's performance and shall not entitle Contractor to any
claim for costs or damages based on the failure of such dates or assumptions to be met or satisfied.
21. The Contractor shall hold weekly progress meetings at the Site, or at such other time and frequency'as the Omer requests
and shall give the Architect and Omer advance written notice of the time of said meetings. Progress of the Work shall be
reported in detail with reference to the then current Construction Schedule. Each interested Subcontractor shall have
present a competent representative to report the condition of the Work being performed by such Subcontractor and to
receive information. The Contractor shall maintain at the Site for the Omer one (1) record copy of the Drawings,
Specifications, Addenda, Change Orders, CCDs, RFIs, CORs, Modifications and other records relating to the Work
performed, in good order and marked currently to record changes and selections made during construction, and in addition
shall maintain approved Shop Drawings, Product Data, Samples and similarly required submittals (the "Record Drawings�.
These Record Drawings shall reflect (I) all deviations from the Contract Documents made during construction; (ii) details in
the Work not previously shown on the Contract Documents; (iii) changes to existing conditions or existing conditions found
to differ from those shown on the Contract Documents or related existing drawings; and (iv) the actual installed position of
equipment, piping, control valves, drawings, openings and stub -outs. These Record Drawings shall be made available to
the Omer and the Architect for inspection and review during the course of construction of theWork, as requested by them.
At the conclusion of the Work, these Record Drawings shall be used by the Contractor to produce a coordinated set of as -
built drawings, showing all construction Work as set in place during construction and revised to show the foregoing
information and all changes made during construction from the original drawings. The Contractor shall be responsible and
liable to the Omer for accurately and completely recording all of the information required by this paragraph on the as -built
set of drawings. In addition, the Contractor shall compile and submit to the Omer, upon Substantial Completion of the
Work, one (1) set of permit drawings and specifications. These permit drawings and specifications shall bear all stamps,
signatures, notations, changes, approval, etc. by the appropriate governmental agencies and a copy of the building permit(s)
shall be included.
22. Shop Drawings shall show the design, dimension, connections and other details necessary to insure that the Shop Drawings
accurately interpret the Contract Documents and shall also show adjoining Work in such detail as required to provide proper
connections with said adjoining Work. Where adjoining connected Work requires Shop Drawings, such Shop Drawings
shall be submitted to Architect (with a copy to the Project Manager) for review so that connections can be checked. The
Contractor shall submit Product Data to the Owner, Project Manager and/or Architect when necessary or requested by the
Omer, Project Manager and/or Architect to explain fully apparatus or equipment required by the Work. The Product Data
shall be treated as Shop Drawings. Manufacturers' catalogue numbers alone are not acceptable as sufficilent information
or compliance with this requirement. Samples shall be accompanied by a letter of transmittal to the Architect, with a copy
to the Project Manager and the Owner. The Contractor shall number transmittals. Data and/or manufacturers' certificates
shall be referenced and forwarded with the letter of transmittal. Samples without accompanying test data or certificates will
be returned without action. In the event that a range of variations in textures, graining, color or other characteristics may
be anticipated in finished materials, assemblies or elements of the Work, a sufficient number of Samples of such materials
or product shall be submitted to indicate the full range of characteristics which will be present in the materials or products
proposed for the Work. Any such materials or products delivered or erected prior to approval of full range Samples shall be
subject to rejection. Samples shall be submitted from the same source which shall actually supply the applicable Work, and
shall be of adequate size to show quality, type, color, range, finish, texture and other specified characteristics. Samples of
materials or products which are normally furnished in containers or packages which bear descriptive labels and/or
application or installation instructions shall be submitted with such labels and/or instructions.
23. Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal
is to demonstrate, for those portions of the Work for which submittals are required, the manner in which the Contractor
proposes to conform to the information and design concepts expressed in the Contract Documents. Any review by the
Omer, Project Manager, Architect, or Omer's Consultants of Shop Drawings, Product Data, Samples and similar
submittals is for the limited purpose of checking for conformance with the information and design concepts expressed in the
Contract Documents and is subject to the limitations set forth in herein. Review of such submittals is not conducted for the
purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for
substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of
the Contractor as required by the Contract Documents. The review of submittals shall not relieve the Contractor of the
obligations under the Contract Documents and shall not constitute approval of safety precautions or of any construction
means, methods, techniques, sequences or procedures. The approval of a specific item shall not indicate approval of an
assembly of which the items is a component. The Contractor shall obtain, review, approve and submit to the Architect, with
copies to the Omer and Project Manager, Shop Drawings, Product Data, Samples and similar submittals required by the
Contract Documents within the times required by the Baseline Construction Schedule (or if no such time is established with
reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Omer or of
separate contractors). The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings,
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Product Data, Samples, or similar submittals until the respective submittal has been approved by the Omer. Such Work
shall be in accordance with approved submittals.
24. By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that
the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, and
that Contractor has checked to insure that Work contiguous with and having bearing on the Work shown on the Shop
Dravvings is accurately and clearly shown, that Contractor has checked the Shop Drawings against the composite drawings,
that the Work has been coordinated, that the equipment will fit into the assigned spaces and that Contractor has checked
and coordinated the information contained within such submittals with the requirements of the Work and of the Contract
Documents. The Contractor shall number transmittals consecutively and indicate, miere the Shop Drawing is a resubmittal,
the file number of the original submittal. Each Shop Drawing or sample and letter of transmittal shall contain the following
information: (1) the name of the Project; (2) the name of the Contractor; (3) the names of the firm or organization
and the person or persons preparing the Drawing; (4) the date of submittal; (5) the number of the Shop Drawing and the
number and date of each revision, if any; (6) the applicable section of the Specifications; (7) the applicable number of the
Drawing and detail; (8) the name of subcontractor and/or supplier, manufacturer, fabricator or processor; (9) the trade
designation and the grade or quality of the material or product; and (10) the specific Identification of each Sample.
25. The Omer and/or Architect shall have no obligation to review any submittal from the Contractor unless the actions required
by this Article above have been taken and the submittal has been reviewed and marked by the Contractor to indicate field
conditions, proposed deviations from the Contract Documents and any other matters affecting design intent. The Contractor
shall be responsible to the Omer for delays caused by the Contractor's failure to comply with the provisions of this Article
above. The Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents
by the Omer's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has
specifically informed the Owner in writing of such deviation at the time of submittal and the Omer has given written approval
to the specific deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,
Product Data, Samples or similar submittals by the Omer's approval thereof. The Contractor shall direct specific attention,
in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those
requested by the Architect on previous submittals. When professional certification of performance criteria of materials,
systems or equipment is required by the Contract Documents, the Owner and Architect shall be entitled to rely upon the
accuracy and completeness of such calculations and certifications.
26. Following the Owner's and/or Architect's review of each Shop Drawing, Product Data and Sample submission, the Owner
and/or Architect will retain a copy and return the reViemd submission to the Contractor, with a stamp (if applicable) and
signature affixed thereto, noting the Shop Drawing, Product Data or Sample Submission as: (1) "APPROVED"; (2)
APPROVED AS NOTED" (meaning Contractor must comply with all annotations andfor corrections indicated on the
reproducible print and with the requirements of the Contract Documents); (3) "RESUBMIT" (meaning a corrected submittal
of the dravring is required); or (4) "DISAPPROVED" (meaning that major deviations from the requirements of the Contract
Documents exist in the submittal). No work shall be constructed, fabricated or manufactured until the Contractor has revised
the applicable submittal in compliance with any annotations and pursuant to all requirements of the Contract Documents
and has resubmitted and obtained approval of the applicable submittal).
27. The Contractor shall confine operations at the Site to areas pemnifted by law, ordinances, 'permits and the Contract
Documents and shall not unreasonably encumber the Site with materials or equipment. Up to the date of Final Completion,
the Contractor shall be solely responsible for all material or equipment stored by Contractor or by any Subcontractors on
the Site, and for the security of the Site and for the care and protection of all property pertaining to the Work, including all
tools, materials, equipment and completed Work on the Site and all facilities which are employed at, or stored at the Site or
incorporated into the Work. The Contractor, without any increase in the Contract Sum, shall take such actions as may be
necessary to maintain such security. The Contractor shall properly safeguard and store any combustible materials
necessary to the Work so as to protect against the possibility of fire or other damage. The Contractor shall be solely
responsible for all damage, cost or expense caused by the use or storage of combustible materials at the Site. except and
only to the extent that such damages, costs or expenses are actually paid by applicable insurance. The Contractor shall
provide temporary mathertight enclosures for all exterior openings to the extent necessary to protect the Work from weather
conditions and at the end of each day shall close all temporary enclosures. In the event the Contractor encounters any
materials at the Site which are hazardous (including but not limited to asbestos, PCBs, etc.) or other materials or substances
which the Contractor knows will require special handling, disposal or treatment. the Contractor shall immediately stop Work
in the affected area and shall immediately report the condition to the Omer. All Work involving or affected by the condition
shall not thereafter be resumed until such time as the material has been disposed of, abated, or otherMse removed,
remediated or handled as required by applicable law and Omer directs Contractor (in writing) to proceed voth the Work.
28. The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit
together properly. The Contractor shall not damage or endanger a portion of the Work or fully or partially completed
construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by
excavation. The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except
with mitten consent of the Owner and of such separate contractor, which such consent shall not be unreasonably withheld.
The Contractor shall not unreasonably withhold from the Omer or a separate contractor the Contractors consent to cutting
or otherwise altering the Work. The Contractor, if required by the Contract Documents, shall make connections to matedals
or equipment fumished, set, and/or installed by other contractors. No Work connecting to such materials or equipment
provided by other contractors shall be done without giving such contractors a reasonable length of time to complete their
work or until permission to proceed has been obtained from the Owner. The Contractor shall secure the shop detail drawings
from other contractors for such of their work as is to be built into Contractors Work, or to which Contractors Work must
make connection, and shall also measure for (and notify Omer oo any discrepancy or unsuitability relative to Contractors
Work. Contractor shall promde all openings and chases in the Work, necessary for the installation of process equipment,
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and shall fill in around the same afterwards. If the Work is damaged or interfered with by the negligence of Omer's separate
contractors, Contractor shall have the rights and remedies provided in Article 6 hereof.
29. The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused
by operations under this Agreement. For the Work to be considered Substantially Complete, the Contractor shall remove
from and about the Site all waste materials and rubbish (and shall remove the Contractors and all Subcontractors' tools,
construction equipment, machinery and all surplus materials except to the extent such items are needed to perform any
punch list or otherWork that Contractor is permitted to complete after Substantial Completion pursuant to the provisions of
this Agreement). In addition to general broom cleaning, for the Work to be considered Substantially Complete, the
Contractor shall perform, or insure performance of, the following final cleaning for all trades: (a) remove temporary
protections; (b) remove marks, stains, fingerprints and other soil or dirt from painted, decorated and natural -finished
woodwork and other Work; (c) remove spots, plaster, soil and paint from ceramic tile, marble and other finished materials,
and wash or wipe clean; (d) clean tubs, toilets and other fixtures, cabinet work and equipment, removing stains, paint, dirt
and dust, and leave same in undamaged, new condition; (e) clean all metal finishes in accordance with recommendations
of the manufacturer and accepted industry standards; (f) clean resilient floors thoroughly with a well rinsed mop containing
only enough moisture to clean off any surface dirt or dust and buff dry by machine to bring the surfaces to sheen; and (g)
thoroughly clean all interior glass and mirror surfaces. If the Contractor falls to clean up as required by the Contract
Documents within forty-eight (48) hours after written notice, the Omer may do so and the cost thereof shall be charged to
the Contractor who shall pay such costs either as a deductive change order or immediately upon demand, at the election
of Omer.
30. All waste, rubbish, surplus materials and other items generated in connection with the Work or for which the Contractor is
responsible (including but not lim[tedto any paints, glues, oils orhazardous substances) shall bedisposed of in such manner
and in accordance with such procedures, certifications and approvals as required by applicable law. To the extent the Work
includes the liquidation and/or salvage of any materials or items at the Project Site and/or involves the handling, use,
demolition and/or abatement of hazardous materials, the Contractor shall be responsible to handle, transport, remove and
dispose of all such items in accordance Wth all applicable EPA, OSHA and other local, municipal, State, Federal or
Provincial requirements (using property licensed and certified personnel as necessary) and shall maintain (and provide to
the Owner upon request) all documents, manifests and other information reflecting the use, handling and disposal of such
materials in accordance with such laws and requirements.
31. Contractor acknowledges that the Work may require Contractor to make penetrations through, connect with, gain access
over, stage operations in or store equipment and materials around or near the Omer's existing property and facilities,
adjacent property and/or other work that has been or is being constructed by other contractors. Contractor shall be
responsible to take all appropriate precautions and measures to properly safeguard and prevent damage to the Omer's
existing property, any adjacent property or to the work of other contractors. Contractor, without any increase in the Contract
Sum, extension of time or any other cost to Omer, shall promptly repair or replace any such property or other work that is
damaged by the Contractor or its Subcontractors (including repairing all cutting, fitting, patching or penetrations) and shall
return all such damaged property or other work to the same condition as existed prior to the damage occurring. In this
regard, Contractor acknowledges and agrees that Omer makes no representation or warranty to Contractor regarding the
condition of any of the Owner's existing property, any adjacent property or facilities or the work of any other contractor or
the suitability or adequacy of such property or other work for use or reference by Contractor or as fit and proper for
Contractors Work or any purpose associated therewith. Contractor shall be solely responsible for any investigation,
assessment, reinforcement, or other actions necessary to make such property or other work fit and proper for, or otherwise
adequate or suitable to accommodate, swept or integrate with, Contractor's Work,
32. In connection with the Work, Contractor shall develop and implement a moisture intrusion prevention plan, which plan shall
stay in effect until Final Completion. The moisture intrusion plan shall include procedures to prevent and manage the
intrusion of water and vapor caused by the Contractor's performance of the Work so that such conditions do not cause mold
or other damage to the Work and shall include procedures for responding and remediating actual water intrusion or mold
conditions caused by the Contractor's performance of the Work. The moisture intrusion plan shall require that all window
openings be boarded up or otherwise properly closed as appropriate. If Contractor discovers water intrusion or mold during
construction of the Work, Contractor shall notify the Owner in writing of such condition within forty-eight (48) hours of its
discovery and shall provide Omer all inspection reports, testing data, photographs, samples or other materiials associated
Wth the investigation or remedlation of the water intrusion incident or mold condition. Any such condition encountered shall
be remediated in accordance with the requirements and standards set forth in the moisture intrusion prevention plan and
applicable law, including the mold remediation guidelines adopted by the United States Environmental Protection Agency
for Schools and Commercial Buildings and the American Industrial Hygiene Association, and all OSHA requirements
concerning the required remediation, The remediation shall be fully documented Win respect to the conditions prior to
remediation, the activities involved in the remediation, and the conditions at the conclusion of remediation, with appropriate
field reports, photographs, samples and other information that can be used to confirm and verify appropriate and effective
remediation. Contractor shall notify the Omer in writing when the remediation is complete, so that the Omer can review
the affected area and verify completion. The Owner may, at its sole discretion, require, at the expense of Contractor, air
sampling or other mold, mildew, fungi or other similar microbial substance testing as part of the process of confirming
appropriate remediation efforts upon completion of the remediation, or upon Final Completion of the Work, as determined
by the Omer in its discretion. The Contractors responsibility for the presence of mold, mildew, fungi or similar microbial
substances extends only to the extent such substances are caused by the Contractor's performance of the Work and not to
the extent caused by other persons, entities or reasons beyond the reasonable control of Contractor and not to the extent
that the mold was in existence at the Site prior to the commencement of Contractor's Work. In the event Contractor
encounters any pre-existing mold conditions, Contractor shall immediately stop Work in the affected area and shall
immediately report the condition to the Owner. All Work involving or affected by such conditions shall not thereafter be
resumed until such time as the pre-existing mold conditions have been remediated by the Omer (or a separate contractor).
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33. The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of patent
rights and shall hold the Owner and Architect harmless from loss on account thereof, but shall not be responsible for such
defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by
the Contract Documents. However, if the Contractor has reason to believe that the required design, process or product is
an infringement of a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished
to the Owner and the Architect prior to any Work affected thereby being performed. -
34. To the fullest extent permitted by law, the Contractor will protect, defend, indemnify and hold harmless the Owner, all
Additional Insureds as defined in Article I I herein, Owners Consultants and agents and employees of any of them, from
and against any and all claims, damages, losses or expenses, including, but not limited to, aftomeys'fees, arising out of or
resulting from the performance of the Work or Contractor's failure to comply with the terms or provisions of this Agreement,
to the extent caused in whole or in part by any willful or negligent acts or omissions of the Contractor, or any Subcontractors,
or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not
such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be
construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or
person described in this paragraph. In claims against any person or entity indemnified under this paragraph by an employee
of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be
liable, the indemnification obligation under this paragraph shall not be limited by a limitation on amount or type of damages,
compensation or benefits payable by or for the Contractor or a Subcontractor under workers' or workmen's compensation
acts, disability benefit acts or other employee benefit acts. The obligations of the Contractor under this paragraph shall not
extend to the liability of the Architect, the Architect's consultants, and agents and employees of any of them arising out of
(1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications; or
(2) the giving of or the failure to give directions or instructions by the Architect, the Architect's consultants, and agents and
employees of any of them provided such giving or failure to give is the primary source of the injury or damage.
35. In addition to the foregoing, Contractor shall indemnify and hold harmless the Owner, Owners Consultants and agents and
employees of any of them, from and against any costs, damages, expenses, fines or penalties arising out of Contractor's
failure to comply with the obligations set forth in Article 3, paragraphs 8, 9, 13 and 30 of this Agreement.
36. Contractor acknowledges that the Contract Documents may require that the Contractor provide certain elements of the
Work, such as the fire protection, on a design/build basis (which work is referred to herein as the "Design/Build Work"). In
such event, the Contractor shall be responsible, through the retention of certain design/build Subcontractors who shall be
under contractwith the Contractor, forthe design and engineering of the Design/Build Work C'Design/Build Sulbcontractors�.
The Contractor further acknowledges that the Design/Build Work will be identified in the Contract Documents only in outline
form by reference to essential performance or system characteristics and requirements. The Contractor agrees that, with
respect to any Design/Build Work, it shall (through the retention of appropriately qualified and licensed Subcontractors
responsible for such Design/Build Work) provide all work or services (of either an engineering or construction nature)
necessary to provide the Owner with full. complete and operational systems, in compliance with all applicable codes and
industry standards, whether or not all such work is itemized in the Contract Documents in full and exact detail. In connection
with the Design/Build Work, the Contractor shall be responsible to meet with the Architect and Owner and assist in the
development and articulation of the final design requirements for all such Design/Build Work, and will be responsible to
integrate and coordinate the Design/Build Work with the remainder of the design prepared by the Architect, so that the entire
design is fully integrated and coordinated into a final set of construction documents articulating the work, labor and services
necessary to construct both those portions of the Work that the Architect is responsible to develop and those portions of the
Work that the Contractor is responsible to design as part of its Design'Build Work. The Contractor's agreement with each
Subcontractor performing Design/Build Work shall provide that each DesigniBuild Subcontractor shall procure and maintain
(and provide the Owner with evidence of) design errors and omissions/professional liability insurance with minimum limits
per occurrence of $1,000,000. The Contractor agrees that any Design/Build Work that is completed or installed contrary to
applicable codes, ordinances and laws, or contrary to the requirements and design concepts established in the Contract
Documents, shall be corrected, modified, repaired or replaced promptly and at no cost to the Omer.
The Architect is the person or entity identified as such in this Agreement and is referred to throughout the Contract
Documents as if singular in number The term "Architect" means the Architect or the Architect's authorized representative.
Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be
restricted, modified or extended without written consent of the Owner. At Omer's discretion, the Omer may remove or
replace the Architect. In either such event, the Owner may proceed without an Architect (and perform construction
administration directly or through the Owner's Representative or any of the Omer's Consultants) or may substitute another
Architect of the Omer's choosing, and references in the Contract Documents to the Architect shall be deemed to mean the
Owner, Owner's Consultants or the replacement Architect, as applicable.
2. The Architect will advise and consult with the Owner. The Architect will have authority to act on behalf of the Omer only to
the extent provided in the Contract Documents, unless otherwise modified by written instrument in accordance with other
provisions of this Agreement. The Architect will keep the Omer informed of progress of the Work, and will endeavor to
guard the Owner against defects and deficiencies in the Work. The Architect will not have control over or charge of and will
not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and
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programs in connection with the Work, since these are solely the Contractor's responsibility. The Architect will not be
responsible for the Contractors failure to carry out the Work in accordance with the Contract Documents. The Architect will
not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or
their agents or employees, or of any other persons performing portions of the Work. The failure of the Architect to discover
any defects, deficiencies or other problems in the Work shall not in any way constitute a waiver or acceptance of such
defects, deficiencies or problems and shall not in any my affect or reduce the Contractors responsibilities pursuant to this
Agreement to perform the Work in conformance with the requirements of the Contract Documents and free from defects or
deficiencies in materials or workmanship.
3. At all times, the Owner (at Omer's sole discretion) shall have the nght to communicate directly with the Contractor, without
involving the Architect, provided however that all communications involving design issues shall include the Architect (by
direct participation or copy as determined by the Omer in Omer's sole discretion). In all events, all written communications
between the Architect and Contractor shall be provided contemporaneously to the Owner (through the Owner's
Representative). The Architect and the Omer will each have authority to reject Work which does not conform to the
Contract Documents. Whenever, in the reasonable opinion of either, it is considered necessary or advisable to ensure the
proper implementation of the intent of the Contract Documents, either will have authority to require special inspection or
testing of the Work in accordance with the terms of the Contract Documents, whether or not such Work be then fabricated,
Installed or completed.
4. If so requested by the Omer, the Architect will prepare Change Orders. However no changes to the Work or adjustments
to the Contract Sum nor any extension of the Completion Dates shall be valid unless in a written Change Order signed by
the Omer. The Architect will conduct inspections to assist the Owner in determining the dates of Substantial and Final
Completion, will receive and toward to the Owner for the Omer's review and records written warranties and related
documents required by the Contract Documents and assembled by the Contractor, and will issue a Final Certificate for
payment upon the Contractor's compliance with the applicable requirements of the Contract Documents.
5. A "claim" is a demand or assertion by one of the parties seeking adjustment or interpretation of the Contract terms, payment
of money, extension of time or other relief with respect to the terms of the Contract Documents and also includes other
disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. Claimsmust
be made bywriften notice. The responsibility to substantiate claims shall rest with the party making the claim. Anyclaim
by the Contractor (including but not limited to any claim for additional compensation or additional time) must be made within
fifteen (15) days after occurrence of the event giving rise to such claim or within fifteen (15) days after the Contractor fi rst
recognizes the condition giving rise to the claim, whichever is later. Notwithstanding any other provision of this
Agreement, the failure of the Contractor to provide the Omer with written notice of any claim (including but not limited to
claims based on any CDR submitted by Contractor, claims for Excused Delays, and any claims seeking any extension of
the Completion Dates, any increase in the Contract Sum or other damages or costs of any kind) within the applicable time
frame established by this paragraph (or any earliertime specifically required for such claim in the Contract Documents) shall
mean that the Contractor has waived such claim and shall perform all work required by or in connection with any occurrence
or condition giving dse to the claim without increase in the Contract Sum or extension of the Completion Dates. The
Contractor's sole and complete remedy with respect to any successful claim (including but not limited to claims based on
any COR, Excused Delay or any changes to the Work or delay, impact or acceleration) shall be limited to the actual
increased costs of labor and material, if any, incurred by the Contractor as a result of the occurrence or condition giving rise
to the claim (measured and calculated as setforth in Article 7 herein, as applicable), plus any increase in General Conditions
permitted by Section 2.1 of Article 9. plus a Contractor's fee equal to TBD percent C --- 21.) of such increased costs of
labor, materials and General Conditions. This recovery shall be deermad to include (and no additional damages or costs
may be sought or recovered by Contractor for) all profit, overhead, general conditions, supervision, delay, acceleration or
impact costs or other expenses or losses allegedly sustained or incurred by Contractor as a result of any such claim.
6. Subject to the provisions of Article 14 herein, Contractor shall carry on the Work during all disputes or disagreements with
Omer, including but not limited to any disputes or claims by Contractor that Omer has materially breached or defaulted
under the Contract or any disputes based on the refusal by Omer to agree to a COR submitted by Contractor. 'No Work
shall be delayed or postponed pending resolution of any disputes or disagreements. The Contractor expressly agrees that
Owner has no adequate remedy at law in the event that Contractor stops Work, and that Owner may obtain an injunction in
a court of competent jurisdiction enforcing this provision requiring Contractor to continue to perform under this Agreement
pending resolution of any dispute or disagreement.
17. The Contractor represents that Contractor has visited the Site, has examined carefully all of the Contract Documents, has
reviewed all reports, test data and other information relating to the conditions at the Site that have been made available to
the Contractor by the Architect or Omer in connection with the SOliGitation or submission of the Contractor's bid and the
negotiation of this Agreement, and has made a reasonably thorough inspection of the Site (during which inspection the
Contractor has correlated Contractor's personal observations with the requirements of the Contract Documents and has
reviewed all physical and observable conditions under which the Work will be performed). Based on the foregoing, the
Contractor assumes responsibility for (and shall not be entitled to any extension of the Completion Dates or increase in the
Contract Sum or to any other damages or additional compensation based on) any conditions at the Site which are
reasonably disclosed to the Contractor based on the information made available to the Contractor by the Architect or Omer
prior to the execution of this Agreement (including a reasonably thorough inspection of the Project Site). The Contractor
agrees that in the event an obstruction, difficulty or condition is encountered at the Site which the Contractor contends was
unforeseen or unanticipatable, the Contractor shall notify the Architect and Owner, with reasonable promptness, of the
discovery of such obstruction, difficulty or condition. The Contractor shall perfoan no Work affected by or involving any
such obstruction, difficulty or condition until after the Omer has reviewed the situation and have provided the Contractor
with instructions regarding such Work. If the obstruction, difficulty or condition is one which was not reasonably disclosed
to the Contractor prior to the execution of this Agreement, the obstruction or condition shall be treated as an Excused Delay
and the Contractor shall be entitled to an extension of the Completion Dates pursuant to the provisions of Article 8 herein,
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and to an increase in the Contract Sum calculated pursuant to the provisions of this Article 4, paragraph 5 above. If,
however, the obstruction difficulty or condition is one which was reasonably disclosed to the Contractor prior to the execution
of this Agreement (based on the information made available to the Contractor by the Architect or Owner prior to the execution
of this Agreement and/or by a reasonably thorough Inspection of the Site), then the Contractor shall not be entitled to any
extension in the Completion Dates or to any increase in the Contract Sum or any additional compensation of any kind as a
result of the existence of such obstruction, difficulty or condition, and the Contractor expressly agrees to perform all work
required by or as a result of such obstruction, difficulty or condition, regardless of cost or expense, at the Contractor's own
risk, cost and expense.
8. At claims, disputes or other matters in question between the parties to this Agreement, arising out of or relating to the Work,
the Project, the Agreement, the Contract Documents or the breach thereof, shall be decided by resort to Iffigation in any
court of competent jurisdiction located within the State or Province where the Project is located. In any action brought by
either party adsing out of or relating to the Work, the Project, the Agreement, the Contract Documents orthe breach thereof,
reasonable attorneys' fees shall be awarded to the prevailing party, measured by the extent to which such party in fact
prevails in the action as determined by the extent such party in fact succeeds in each claim or defense asserted by the
party. Nothing in the Contract Documents shall be deemed or construed on the part of the Owner or Contractor as an intent
or obligation to arbitrate any matter or dispute whatsoever.
ARTICLE 5
SUBCONTRACTORS
The term "Subcontractor" shall mean any person or entity who has a direct contract with Contractor to perform a portion of
the Work Cincluding materialmen and suppliers) and all other persons or entities (whether such persons or entities are
subcontractors. sub -subcontractors, materialmen or suppliers) who provide materials, labor or services directly or indirectly
to or for the Work through or under the supervision of Contractor or any Subcontractors. The foregoing definition shall apply
when used In the Contract Documents with respect to any obligation for the Work or any other obligation or duty owed to
the Owner under the Contract Documents, including but not limited to indemnity and warranty obligations, provisions of lien
waivers and removal of liens and prritection and safety of the Work and adjacent property.
Within five (5) days after the execution of this Agreement, the Contractor shall furnish in writing to the Omer the names of
all persons or entities Cincluding those who are to furnish materials or equipment fabricated to a special design) proposed
for each principal portion of the Work. The Omer will, within five (5) days after receipt of such list, reply to the Contractor
in writing staling whether or not the Owner, after due investigation, has reasonable objection to any such proposed person
or entity. The Contractor agrees that Contractor shall not hire any person or entity as a Subcontractor to perform Work on
the Project against whom the Omer makes such an objection. In the event the Contractor is unable to hire a Subcontractor
meeting the approval of the Omer to perform any specific Work on the Project, the Owner she 11 have the right, without the
obligation to do so, to hire another person or entity of the Cmer's choosing to perform such work. Should the Omer
directly hire a Subcontractor pursuant to this paragraph, the Contractor shall proMe the Owner with a credit to the Contract
Sum equal to the amount of the contract entered into between the Owner and such person or entity. Further the Contractor
agrees to cooperate fully with such person or entity and to coordinate all Work with the work of such person or entity as
necessary to ensure the proper and timely completion of all of the Contractor's Work. The Contractor shall not change a
Subcontractor previously selected if the Owner makes reasonable objection to such change. All agreements between the
Contractor and any Subcontractors shall preserve and protect the rights of the Owner under the Contract Documents Vdth
respect to the performance of the Work so that the subcontracting thereof will not prejudice such rights. No provision of this
Agreement, the Contract Documents or any contract between the Contractor and any Subcontractor shall be construed as
an agreement between the Owner and any Subcontractor. No Subcontractor shall have the benefit of any rights, remedies
or redress against the Omer pursuant to any of the Contract Documents.
3. In the event of the termination of this Agreement by the Owner, the Omer shall have the right (without any responsibility
so to do) to assume the rights and responsibilities of Contractor under all or some of Contractor's subcontracts, or purchase
or rental agreements which the Owner, in Owner's sole discretion, chooses to assume. While this provision shall constitute
a present assignment of Contractor's rights with respect to any and all such contract agreements and commitments which
Owner so chooses to assume, the Contractor, upon request from Owner, shall promptly execute and deliver to the Owner
written assignments of such contracts, agreements and commitments which the Owner in Omer's sole discretion so
chooses to take by assignment. All ContraGlor's agreements with Subcontractors and suppliers shall provide for this
assignment.
The Owner reserves the right to perform construction or operafions related to the Project with the Owners own forces, and
to award separate contracts in connection with other portions of the Project or other construction or operations on the Site.
If the Contractor claims that delay or additional cost is involved bemuse of such action by the Omer, the Contractor shall
make such claim as provided elsewhere in the Contract Documents. The Contractor shall notify the Owner if any such
independent action will in any my compromise the Contractors ability to meet the Contractor's responsibilities under this
Agreement. Specifically, the Contractor acknowledges that the Work on the Project may Include certain materials,
equipment, products, parts, furniture, fixtures and related items, including hardware, supplies and accessories that will be
procured directly by Owner ('Owner Supplied ItemsJ. Any Owner Supplied Items are Identified in the Responsibility Matrix
attached hereto as Exhibit E. Contractor shall be responsible to work directly with the various vendors of the Owner Supplied
Items in order to arrange and administer the shipments of any Owner Supplied Items. The Contractor shall not be
responsible for the purchase or delivery of the Owner Supplied Items. However, Contractor shall be responsible, to the
extent set forth in Exhibit E, to unload, store, uncrate, move, handle, install and otherwise incorporate the Owner Supplied
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Items into the Work. Contractor shall account for and keep track of, and shall be fully and solely responsible for all storage
and handling with respect to all Omer Supplied Items that Contractor is responsible to install and Contractor shall inspect
all Owner Supplied Items prior to installing or incorporating such Owner Supplied Items as part of the Work and shall
promptly notify the Owner if the Contractor believes any such Omer Supplied Items are in such condition that they should
not be installed or incorporated into the Work or are not delivered in the required condition or quantity. The failure of the
Contractor to report any apparent defect or deficiency in any Owner Supplied Items prior to the installation or incorporation
of such Omer Supplied Items into the Work shall constitute an acknowledgement by Contractor that such Owner Supplied
Items were fit and proper for installation and construction, except as to defects or deficiencies not then reasonably
discernible.
2. The Responsibility Matrix divides the Omer Supplied Items into two (2) categories: (a) "Omer Supplied and Contractor
Installed Items": and (b) "Omer Supplied and Owner Installed Items". Unless specific -ally identified in the Responsibility
Matrix as an "Owner Supplied Item", Contractor is responsible to procure, deliver, protect and warrant all materials,
equipment, products, parts, furniture, fixtures and related items, including hardware, supplies and accessories, required for
the Work and all such items shall be deemed to have been designated as "Contractor Supplied and Contractor Installed
Items". Similarly, unless specifically identified in the Responsibility Matrix as an "Owner Installed Item", Contractor is
responsible to install all materials, equipment, products, parts, furniture, fixtures and related items, including hardware,
supplies and accessories, required for the Work.
3. With respect to Owner Supplied and Contractor Installed Items, the Contractor shall not be responsible for: (I) the
procurement and delivery to the Site of the applicable Item; or (n) the quality and warranty of the applicable Item (or its
conformance to the Owner's requirements). However, Contractor shall be responsible for the following with respect to the
Omer Supplied and Contractor Installed Items: (a) to the extent so identified in the Responsibility Matrix, for the unloading,
storage, uncrating, moving and handling of the applicable Item upon arrival at the Site through to Substantial Completion;
(b) the protection of and risk of loss to the applicable Item beginning with its delivery to the Site through to Substantial
Completion; and (c) the installation, assembly and construction of the applicable Item in accordance Wth the Contract
Documents and the related quality and warranty of such Installation, assembly and construction. With respect to Owner
Supplied and Owner Installed Items, unless provided otheWse in the Responsibility Matrix, the Contractor shall not be
responsible for: (i) the procurement and delivery to the Site of the applicable Item; (H) the quality and warranty 7 the
applicable Item (or its conformance to the Omer's requirements); (III) the unloading, storage, uncrating, moving or handling
of the applicable Item; liliv) the protection of or risk of loss to the applicable Item; or (v) the installation, assembly and
construction of the applicable Item or the related quality and warranty of such installation, assembly and construction.
Contractor shall be responsible, however, to coordinate and cooperate with the Owner, and the Owner's separate
contractors and vendors Wth respect to the delivery, storage, protection, installation, assembly and construction of the
Owner Supplied and Owner Installed Item, and shall perform all tasks and Work associated therewith that are required by
the Contract Documents.
4. With respect to all Owner Supplied -items, regardless of whether the Item is to be installed by Contractor or separate
contractor(s) retained by Owner, Contractor shall be responsible, subject to the provisions of this Article 6 below, to
coordinate with the applicable vendor of the Owner Supplied Item and to establish rough in locations and connections for
the Owner Supplied Item to be installed, and to coordinate, for each component of the Omer Supplied Item, details
pertaining and relevant to the requirements for the Installation and assembly of the Owner Supplied Item and the connection
to and relationship of such Owner Supplied Item with any other equipment, systems or utilities to be connected to or used
with the Omer Supplied Item, so that the Contractor (or any separate installation contractor retained by Owner, as
applicable) is able to assemble and install the Omer Supplied Item in a safe, proper and complete manner. In this regard,
Contractor acknowledges that if rough in locations are commenced or set without proper coordination by Contractor, these
locations may not be adequate or appropriate to fit the installation of the Omer Supplied Item and may result in additional
costs and/or time should they need to be changed. Contractor shall be responsible for any extra costs or time caused by
its failure to establish, commence or set rough in locations without first coordinating with the applicable vendor of the Owner
Supplied Item (or for Contractor's failure to comply with the related instructions provided by the applicable vendor of the
Owner Supplied Item) and for costs related to changes to any utility or other completed work on the Project (whether
performed by Contractor or others) needed to fit and/or hook up the Omer Supplied Item in such event, except that
Contractor shall not be responsible for such costs (or for any failure to coordinate with the vendor of the Omer Supplied
Item, if such charges or costs are caused by the failure of the applicable vendor of the Owner Supplied Item to identify the
applicable rough in work required to accommodate the applicable Owner Supplied Items in a timely or accurate fashion).
In the event Contractor believes that any rough in location is inadequate or inappropriate, Contractor shall notify Owner with
reasonable promptness and, if requested, shall provide Omer with recommendations as to how to modify the rough in
locations to make the locations and rough -in adequate and appropriate.
When separate contracts are awarded for different portions of the Project or other construction or operations on the Site.
the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate
Owner -Contractor Agreement. The Omer shall provide for coordination of the activities of the Omer's om forces and of
each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate
with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The
Contractor shall make any revisions to the Construction Schedule deemed necessary after a joint review and mutual
agreement. The revised Constnuction Schedule shall then constitute the schedule to be used by the Contractor, separate
contractors and the Owner until subsequently revised. The Owner shall be responsible to the Contractor, pursuant to the
applicable provisions of this Agreement, for any interference with or damage to the Work caused by the Owner's own forces
or separate contractors, In case of disagreement or disputes regarding the scheduling of work by other contractors or
unnecessary interference to the Work caused by lack of cooperation between other contractors and the Contractor, the
Contractor shall fully cooperate to resolve any disputes with or between other contractors. In case of disagreements or
disputes between two (2) or more contractors, the Owner shall be consulted and the Owners decisions as to proper methods
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for coordinating the Work shall be final. The Contractor shall provide access to the Work so as to fully cooperate with the
Omer and other contractors in the performance of their Work.
The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their
materials and equipment and performance of their activities and shall connect and coordinate the Contractor's Work and
operations with theirs as required by the Contract Documents. If part of the Contractors Work depends for proper execution
or results upon construction or operations by the Omer or a separate contractor, the Contractor shall, prior to proceeding
with that portion of the Work, promptly report to the Owner and Architect apparent discrepancies or defects in such other
construction that would render it unsuitable for such proper execution and results. Failure of the Contractor to report any
such apparent discrepancy or defect shall constitute an acknowledgment that the Owners or separate contractors'
completed or partially completed construction is fit and proper to receive the Contractors Work, except as to defects not
then reasonably discoverable. Costs caused by delays or by improperly timed activities or defective construction shall be
borne by the party responsible therefor, The Contractor shall promptly remedy damage wrongfully caused by the Contractor
to completed or partially completed construction or to property of the Omer or separate contractors as provided in Article
10. Should the Contractor delay or cause damage to the work or property of any separate contractor, the Contractor shall,
upon due notice, promptly attempt to settle with such other contractor by agreement, or otherwise to resolve the dispute. If
such separate contractor sues the Owner on account of any delay or damage alleged to have been caused by the
Contractor, the Owner shall notify the Contractor who shall defend such proceedings at the Contractor's expense. The
Omer and each separatexontractor shall have the same responsibilities for cutting and patching as are described for the
Contractor in Article 3. If a dispute arises among the Contractor, separate contractors and the Omer as to the responsibility
under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish
as descdbed in Article 3, the Omer may clean up and allocate the cost among those responsible as the Omer determines
to be just.
ARTICLE 7
CHANGES IN THE WORK
Changes in the Work may be accomplished after execution of this Agreement, and without Invalidating this Agreement, by
Change Order, Construction Change Directive ("CCDJ or order for a minor change in the Work, subject to the limitations
stated in this Article 7 and elsewhere in the Contract Documents. The Omer reserves the right to make any changes,
deletions or additions, in whole or in part in the plans, specifications, and manner of performance of the Work, including
acceleration of the Work, that Owner may deem desirable. A Change Order shall be based upon agreement between the
Omer and Contractor. A CCD is issued by the Omer and may or may not be agreed to by the Contractor. Change Orders
and CCDs shall be coordinated, issued and signed only by the Owners Representative. No other person or entity (including
the Project Manager) shall have authority to issue or execute any Change Order or CCD or to direct any changes in the
Work. An order for a minor change in the Work may be issued by the Architect alone.
2. The Contractor agrees to immediately perform the work that is the subject of any Change Order or CCD diligently and
without delay. Changes in the Work shall be performed under applicable provisions of the Contract Documents, unless
otherwise provided in the Change Order or CCD. If unit prices are stated in the Contract Documents or subsequently agreed
upon, and if quantities originally contemplated are so changed in a proposed Change Order or CCD that application of such
unit prices to the quantities of Work proposed in the Change Order or CCD will cause substantial inequity to the Owner or
Contractor, the applicable unit prices to be used forthe Change Order or CCD at issue shall be equitably adjusted pursuant
to agreement between Omer and Contractor.
A Change Order shall be based upon the agreement of the Owner and Contractor, shall be on the Owner's standard Change
Order to" (without modification unless so approved by the Omer in writing), shall be signed by the Omer and the
Contractor and shall contain: (1) a description of the change in the Work; (ii) the amount of the adjustment in the Contract
Sum. if any; and (iii) the extent of the extension of the Completion Dates, if any. A CCD shall be on the Owners standard
CCD form and may be issued unilaterally by the Owner (without agreement of the Contractor) and will set forth a directed
change in the -Work and the Owners determination ofwhat, if any, adjustment in the Contract Sum andfor extension ofthe
Completion Dates is required thereby. A CCD may be accepted and signed by the Contractor, or the Contractor may
disagree with the CCD, in which event the Contractor shall proceed promptly and diligently with the Work required by the
CCE) subject to the provisions of this Article 7 below. A Change Order or CCD signed by the Contractor indicates his
agreement therewith, including any adjustment in the Contract Sum or extension of the Completion Dates set forth therein.
The Contractor agrees that the amount of any increase In the Contract Sum set forth in any Change Order or CCD signed
by the Contractor includes full compensation to the Contractor for all Work required in connection with the Change Order or
CCD and full compensation for all acceleration, delay, cumulative impact, loss of efficiency, inconvenience, increased
supervision, overhead, profit, or other costs, expenses or damages which have been or may be incurred by the Contractor
as a result of the issuance of the Change Order or CCD and/or the performance of any Work required in connection with
the Change Order or CCD. The Owner may, at its sole and complete discretion, require the Contractor to perform and
commence immediately any change in the Work, without agreement as to whether such change requires an increase in the
Contract Sum and/or an extension of the Completion Dates, or if so, what increase and/or extension is required thereby, by
issuing a CCD for such Work. If the Contractor disagrees with the method for adjustment in the Contract Sum, if any, set
forth in any CCD issued by the Owner, the method and the adjustment shall be determined pursuant to the provisions of
Article 4. paragraph 5 above.
4. Notwithstanding any other provision of this Agreement, Contractor acknowledges and agrees that the mere submission by
Contractor of a request for a Change Order or CCD or the submission of any other claim (collectively a "COR) does not
entitle Contractor to any increase in the Contract Sum or to any extension of the Completion Dates, and does not entitle
Contractor to stop or slow dom any portion of the Work based upon such submission, and that the Owner fully reserves all
of Omer's rights and positions with respect to any COR submitted by Contractor. Specifically in this regard, Contractor
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agrees that notwithstanding the submission of a COR, Contractor shall proceed diligently and promptly to prosecute and
perform all Work involved with or affected by any COR submitted by Contractor (and shall implement and follow any
directions or instructions given by the Omer in connection therewith), even if Owner does not agree that the Work that is
the subject of the CDR constitutes a change to the Work required by this Agreement and/or does not agree that the COR
entitles Contractor to any increase in the Contract Sum and/or extension of the Completion Dates and/or does not agree as
to what increase and/or extension is required thereby. If Owner does not agree with a COR submitted by Contractor,
Contractor shall be entitled to make a claim as permitted by the provisions of this Agreement, and in the event said claim is
later determined to be valid, Contractor shall be entitled to an increase in the Contract Sum calculated pursuant to the
provisions of Article 4, paragraph 5 herein. Contractor shall be responsible to Omer for all damages. cost or expenses
incurred by Owner as a result of any failure by Contractor to prosecute the Work fully, properly, promptly, and diligently
because of the Contractors submission of a COR.
5. The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or
extension of the Completion Dates and not inconsistent with the intent of the Contract Documents. Such changes shall be
effected by written order from the Architect and shall be binding on the Owner and Contractor. The Contractor shall carry
out such written orders promptly. In addition, Contractor acknowledges and agrees that the Owner (either through the
Omer's Representative or the Project Manager) may issue field orders and other instructions to the Contractor, either
verbally or in writing, directing the Contractor to correct nonconforming Work, instructing or clarifying for the Contractor how
to perform certain Work in accordance with the Contract Documents, or makiing minor changes in the Work not involving
adjustment in the Contract Sum or extension of the Completion Dates and not inconsistent with the intent of the Contract
Documents. All such field orders, instructions and directives shall be binding on the Contractor and the Contractor shall
carry out such field orders, instructions and directives promptly. If the Contractor believes that any such field order,
instruction or directive constitutes a basis for an increase in the Contract Sum and/or extension of the Completion Dates,
then Contractor shall give written notice thereof to the Ownerwithin the time and in the manner required by this Agreement.
However, no such field order, instruction or directive shall entitle Contractor to any increase in the Contract Sum and/or
extension of the Completion Dates unless and only to the extent so authorized in a Change Order or CCD signed by the
Owners Representative or awarded to the Contractor pursuant to a successful claim made in the manner required by, and
subject to the limitations of, this Agreement.
�ARTICLE 8
�TIME
The period oftmefor completion oftheWork is established bythe Completion Dates setforth in Exhibit D to thisAgreement
(as later modified pursuant to, orextencled by Excused Delays allowed by, the applicable provisions of the this Agreement).
This Agreement is intended to and shall govern all Work provided by Contractor for the Project, whether initiated or
performed prior or subsequent to the execution of this Agreement, and the effective date ofthis Agreement shall be deemed
to be the first date when any such Work was so provided by Contractor. The date of Substantial Completion is the date
determined in accordance with Article 9. The term "day'as used in the Contract Documents shall mean calendar day unless
otherwise specifically defined. The Contractor shall continuously and diligently perform, forward and prosecute the Work to
completion subject only to Excused Delays as defined herein. Contractor, at Contractor's sole cost and expense, shall
utilize additional labor, premium time, equipment and material, as necessary, in order to meet the Completion Dates set
forth in this Agreement, subject only to Excused Delays. The Contractor shall not knowingly, except by agreement or
instruction of the Owner in writing, commence operations on the Site or elsewhere prior to the effective date of insurance
required to be furnished by the Contractor pursuant to Article 11 below. The Completion Dates for the Work shall not be
changed by the effective date of such insurance. The Contractor shall notify the Owner in writing not less than five (5) days
or other agreed period before commencing the Work to permit the timely filing of mortgages, mechanic's liens and other
security interests.
2. Contractor acknowledges that timely completion of the Work is of the essence in this Agreement. In particular, the
Contractor acknowledges and recognizes that the Owner must have full and beneficial occupancy and use of the completed
Work within the times established by the Completion Dates, subject only to Excused Delays as defined herein, and that the
Owner has entered into, or will hereafter enter into, binding agreements for leasing rooms based upon the Contractor's
representation that Contractor can achieve completion of the Work within the Completion Dates established in the
Agreement. The Contractor acknowedges and understands that the Owner will incur substantial losses and damages if
the Owner is not able to use and occupy the Work for its intended purpose as of the Completion Dates established in the
Agreement (except as modified pursuant to the provisions of this Agreement), including, among other things, additional
financing costs, additional fees to the Architect, Owners Consultants and other consultants retained by the Owner, and
economic loss In the form of lost rental incomes, rebates, lost event revenue, and related sales income, which damages
shall be the responsibility of Contractor should Contractor fail to complete the Work within the times established by the
Completion Dates (except and only to the extent of Excused Delays as defined herein).
The Contractor shall be entitled to an extension in the Completion Date(s) as the result of a delay only to the extent that
such delay is attributable to causes beyond the reasonable control of and could not have been mitigated or avoided by the
Contractor or any affected Subcontractors (hereinafter referred to as an 'Excused Delayl. Excused Delays shall include,
among other things, delays caused by the act or neglect of the Owner, Project Manager, Architect, the Owner's employees
or separate contractors or their employees or agents, or by changes in the Work, unreasonable delays by governmental
authorities in scheduling inspectilons, conducting reviews or issuing approvals, or by labor disputes (but only to the extent
such labor dispute Is an Excused Delay pursuant to the provisions of this Agreement), fire, unusual and unavoidable delay
in deliveries or unavoidable casualties, or by unreasonable delays by the Owner and/or Architect in responding to Shop
Drawings, submittals or RFIs (in this regard, if no date is established in the Contract Documents upon which such responses
or any other interpretations or approvals to be provided by the Owner, Architect or their consultants in connection with the
Work shall be furnished, then no claim for extension of the Completion Dates shall be allowed on account of failure to furnish
any such response, interpretation or approval unless such time exceeds seven (7) days after receipt by the Architect and/or
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Omer or their consultants, as applicable, of the Shop Drawing, submittal, RFI or other item at issue). Unusual weather
shall notconstitute an Excused Delay, except and only to the extent theweather condition at issue is more severe than one
would reasonably expect to encounter at the Site based on historical conditions over the past five (5) years as established
by the National Weather Service.
4. In the event of an Excused Delay, the Contractor shall be entitled to an extension of the Completion Dates, but only to the
extent that there is an actual delaytothe critical path ofthe entireWork (delays of only certain trades will not be considered
an Excused Delay unless they in turn delay Substantial Completion of the entire Work), measured by the number of days,
or portions thereof, that the Substantial Completion of the Work is actually delayed by such Excused Delay. The Contractor
shall not be entitled to an increase in the Contract Sum as a result of an Excused Delay or due to any acceleration or other
impact to the performance of the Work caused by any Excused Delay (or any action directed by the Owner or Architect with
respect to the time for performance of the Work) except and only in the event of (and provided timely written notice is
provided as required by this Agreement): (1) a delay that is the result of an interference with, or interruption of the Work
caused by Project Manager, Owner (or Omer's Consultants, employees, agents or separate contractors) or Architect; or
(2) an acceleration or other impact to the time for performance of the Work that is directed by the Omer in writing and is
required in order to overcome a delay to the completion of the Work that is caused by the interference with or interruption
of the Work by the Omer (or Ownees employees, agents or separate contractors) or Architect; or (3) an acceleration to the
time for performance of the Work that is caused by the failure of the Omer to grant an extension of time that was required
to be granted pursuant to the provision of this Agreement. In any such event, the Contractor's sole remedy shall be an
increase in compensation calculated pursuant to the provisions of Article 4, paragraph 5 herein, and the Contractor shall be
entitled to no additional compensation and shall have no addition or other rights of any kind or nature arising out of or under
this Agreement by virtue of any delays, interferences, acceleration or other impact, regardless of their length or nature.
I. Omer shall pay to Contractor in current funds forthe full and satisfactory performance of the Work the total amount of
One Hundred Sixty One Thousand, Three Hundred Eighty Dollars and Zero Cents ($161,380.00 (the "Contract Sum").
The Contract Sum shall include, and shall constitute the Contractor's sole compensation for, the follovAng "General
Conditions" items (whether in the form of labor, material, rental equipment or other goods or services and whether they
are performed by Subcontractors or provided directly by the Contractor through its own forces and resources): (a)
Site, building, and interior layout, including providing datum bench for the use of all Subcontractors, establishing and
maintaining building corner and column line control points, and layout of interior partitions after concrete slab is in place;
(b) daily cleanup, Site and street cleaning, and final cleanup; (c) field offices and related supplies, equipment and
furnishings; (d) drinking water, ice and cups for all of the Contractor's personnel and all Subcontractors; (a) temporary
power, lighting and utilities including hook-ups, distribution and removals to the extent identified as the Contractor's or its
Subcontractors' responsibility in the Contract Documents; (0 temporary fences, walkways, traffic control and barricades;
(g) Project signs; (h) temporary roads and employee parking; (i) protection and safety measures and OSHA
requirements; 0) costs of long-distance telephone calls, postage and parcel delivery charges, facsimile, radio]
communications systems and equipment, and telephone service at the Project Site, and reasonable petty cash expenses
of the Project Site office; (k) that portion of the reasonable travel and subsistence expenses of the Contractors personnel
incurred while traveling in discharge of duties connected with the Work; (1) all hoisting, construction elevators and
related costs for the handling, transport and moving of construction materials and equipment in connection with the
Work; (m) temporary heat and protection, temporary roofing, and temporary partitions and dust control; (n) temporary
toilets for the use of all of the Contractor's personnel and all Subcontractors; (o) general expenses including blueprinting
and reproduction, progress photographs, job site pickup trucks, etc.; (p) Project Site record survey as required by the
Contract Documents; (q) parking meter fees and street permits and (r) all project management and supervision costs,
including all project managers and other administrative or supervisory personnel, whether assigned to the Project on a
full-time or part-time basis and whether or not present or located the Project Site. The Contract Sum includes full
compensation to the Contractor for its profit, home office services and supervision, overhead and for any and all other
costs or expenses incurred in connection with the performance of the Work.
2. The Contract Sum, and each individual component thereof, will not be increased for any reason, cause or circumstance
unless and only to the extent expressly permitted by this Agreement. Costs in excess of the Contract Sum that are not
permitted to be recovered by the Contractor pursuant to the terms of this Agreement shall be borne and paid for by the
Contractor without reimbursement by the Owner. In this regard, the Contractor agrees that the description of the Work in
further detail by the Architect or the Owner. subsequent to the execution of this Agreement, whether through the issuance
of written specifications, directions or clarifications, the issuance of further and more detailed drawings or otherwise, shall
not enUtle the Contractor to any compensation in addition to the Contract Sum. or to any extension of the applicable
Completion Date(s), unless and only to the extent that such later description constitutes a 'Material Change" in the Work,
which is defined as any of the following: (1) a later description of the Work that involves work of a materially different nature,
character, scope or quality (other than refinement) than that set forth in and/or reasonably inferable from the descriptions
and Contract Documents set forth or identified in Exhibit A hereto; (2) a later description of the Work which involves work
expressly excluded from the Contract Sum as set forth in Exhibit A hereto: or (3) additional work that is required because
of a change in applicable laws, codes or regulations after the execution of this Agreement, but only to the extent that the
Contractor did not know, and was not reasonably able to determine, that such change was scheduled to take effect as of
the Ume this Agreement was executed. Further, the Contractor hereby acknowledges and agrees that it shall not be
entitled to any increase in the Contract Sum and/or any extension in the Completion Date as a result of any Material
Change unless:
(a) there is an actual, substantiated increase in the cost of the labor and material required to complete the Work and/or an
actual delay In the Substantial Completion of the Work beyond the Completion Date(s) which results from such Material
Change; (b) the Contractor makes a claim for an increase in the Contract Sum andfor extension of the Completion Date(s)
with respect to such Material Change within the time and in the manner required by the terms of this Agreement; and (c)
either (I) the Owner authorizes the Contractor to proceed with such Work in advance and in writing through a fully executed
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Omer or their consultants, as applicable, of the Shop Drawing, submittal, RR or other item at issue). Unusual weather
shall notconstitute an Excused Delay, except and only to the extent the weather condition at issue is more severethan one
would reasonably expect to encounter at the Site based on historical conditions over the past five (5) years as established
by the National Weather Service.
4. in the event of an Excused Delay, the Contractor shall be entitled to an extension of the Completion Dates, but only to the
extent that there is an actual delay to the critical path of the entire Work (delays of only certain trades will not be considered
an Excused Delay unless they in turn delay Substantial Completion of the entire Work), measured by the number of days,
or portions thereof, that the Substantial Completion of the Work is actually delayed by such Excused Delay. The Contractor
shall not be entitled to an increase in the Contract Sum as a result of an Excused Delay or due to any acceleration orother
impact to the performance of the Work caused by any Excused Delay (or any action directed by the Omer or Architect with
respect to the time for performance of the Work) except and only in the event of (and provided timely written notice is
provided as required by this Agreement): (1) a delay that is the result of an interference with, or interruption of the Work
caused by Project Manager, Owner (or Owner's Consultants, employees, agents or separate contractors) or Architect; or
(2) an acceleration or other impact to the time for performance of the Work that is directed by the Omer in writing and is
required in order to overcome a delay to the completion of the Work that is caused by the interference with or interruption
of the Work by the Owner (or Owners employees, agents or separate contractors) or Architect; or (3) an acceleration to the
time for performance of the Work that is caused by the failure of the Owner to grant an extension of time that was required
to be granted pursuant to the provision of this Agreement. In any such event, the Contractor's sole remedy shall be an
increase in compensation calculated pursuant to the provisions of Article 4, paragraph 5 herein, and the Contractor shall be
entitled to no additional compensation and shall have no addition or other rights of any kind or nature arising out of or under
this Agreement by virtue of any delays, Interferences, acceleration or other impact, regardless of their length or nature.
PAY At-N 15 AN U UUMPLL I 1UN I
Omer shall pay to Contractor in current funds for the full and satisfactory performance of the Work the total amount of 5LIx
Hundred Eiahteen Thousand, One Hundred Ninety-two Dollars and Fifty Cents ($618,192.50 (the "Contract Sum"). The
Contract Sum shall include, and shall constitute the Contractor's sole compensation for, the following "General Conditions"
items (whether in the form of labor, material, rental equipment or other goods or services and whether they are performed
by Subcontractors or provided directly by the Contractor through its own forces and resources): (a) Site, building, and
interior layout, including providing datum bench for the use of all Subcontractors, establishing and maintaining building
corner and column line control points, and layout of interior partitions after concrete slab is in place: (b) daily cleanup, Site
and street cleaning, and final cleanup; (c) field offices and related supplies, equipment and furnishings; (d) drinking water,
ice and cups for all of the Contractor's personnel and all Subcontractors; (a) temporary power. lighting and utilities including
hook-ups, distribution and removals to the extent identified as the Contractors or its Subcontractors' responsibility in the
Contract Documents; (Q temporary fences, walkways, traffic control and barricades; (g) Project signs; (h) temporary roads
and employee parking; (i) protection and safety measures and OSHA requirements; 0) costs of long-distance telephone
calls, postage and parcel delivery charges, facsimile, radiolcommunications systems and equipment, and telephone service
at the Project Site, and reasonable petty cash expenses of the Project Site office; (k) that portion of the reasonable travel
and subsistence expenses of the Contractor's personnel incurred while traveling in discharge of duties connected with the
Work; (1) all hoisting, construction elevators and related costs for the handling, transport and moving of construction
materials and equipment in connection with the Work; (m) temporary heat and protection, temporary roofing, and temporary
partitions and dust control; (n) temporary toilets for the use of all of the Contractor's personnel and all Subcontractors; (0)
general expenses including blueprinting and reproduction, progress photographs, job site pickup trucks, etc.; (p) Project
Site record survey as required by the Contract Documents; (q) parking meter fees and street permits and (r) all project
management and supervision costs, including all project managers and other administrative or supervisory personnel,
whether assigned to the Project on a full-time or part-time basis and whether or not present or located the Project Site. The
Contract Sum includes full compensation to the Contractor for its profit, home office services and supervision, overhead
and for any and all other costs or expenses incurred in connection with the performance of the Work.
The Contract Sum, and each individual component thereof, will not be increased for any reason, cause or circumstance
unless and only to the extent expressly permitted by this Agreement. Costs in excess of the Contract Sum that are not
permitted to be recovered by the Contractor pursuant to the terms of this Agreement shall be borne and paid for by the
Contractor without reimbursement by the Omer. In this regard, the Contractor agrees that the description of the Work in
further detail by the Architect or the Omer, subsequent to the execution of this Agreement, whether through the issuance
of written specifications, directions or clarifications, the issuance of further and more detailed drawings or otherwise, shall
not entitle the Contractor to any compensation in addition to the Contract Sum, or to any extension of the applicable
Completion Date(s), unless and only to the extent that such later description constitutes a "Material Change" in the Work,
which is defined as any of the following: (1) a later description of the Work that involves work of a materially different nature,
character, scope or quality (other than refinement) than that set forth in and/or reasonably inferable from the descriptions
and Contract Documents set forth or identified in Exhibit A hereto; (2) a later description of the Work which involves work
expressly excluded from the Contract Sum as set forth in Exhibit A hereto; or (3) additional work that is required because
of a change in applicable laws, codes or regulations after the execution of this Agreement, but only to the extent that the
Contractor did not know, and was not reasonably able to determine, that such change was scheduled to take effect as of
the Ume this Agreement was executed. Further, the Contractor hereby acknowledges and agrees that it shall not be entitled
to any increase In the Contract Sum and/or any extension in the Completion Date as a result of any Material Change unless:
(a) there is an actual, substantiated increase in the cost of the labor and material required to complete the Work and/or an
actual delay in the Substantial Completion of the Work beyond the Completion Date(s) which results from such Material
Change; (b) the Contractor makes a claim for an increase in the Contract Sum and/or extension of the Completion Date(s)
with respect to such Material Change within the time and in the manner required by the terms of this Agreement; and (c)
either (i) the Owner authorizes the Contractor to proceed with such Work in advance and in writing through a fully executed
Change Order, or (ii) the Contractoris awarded an increase in the Contract Sum and/or extension in the Completion Date(s)
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pursuant to a claim made in the time and manner required by this Agreement and litigation thereafter commenced pursuant
to this Agreement.
2.1 The General Conditions component of the Contract Sum (as reflected in the approved Schedule of Values) shall
not be increased unless and only to the extent: (I) that Substantial Completion of the Work on the Project extends
beyond the date set forth in Exhibit D hereto as a result of Excused Delays; or (ii) there is a Change Order, CCID
or Material Change to the Work that causes an actual increase in the General Conditions items needed for the
performance of the affected Work. If the Contractor believes that it will be entitled to an increase in the General
Conditions amount, the Contractor shall provide notice pursuant to the applicable provisions of this Agreement
for consideration by the Owner. The notice must contain an itemized list of the additional General Conditions
items for which the Contractor is requesting additional compensation. In the event the Contractor is entitled to an
increase in the General Conditions pursuant to the provisions of this subsection, the increase shall be limited to
the actual (and reasonable and necessary) amount of the additional General Conditions costs incurred by the
Contractor as a result of the Excused Delay, Change Order, CCD or Material Change (subject to a maximum
amount of TBD 0 per each day that Substantial Completion is extended by such Excused Delay, Change Order,
CCD or M;it—erial Change), which amount shall constitute compensation to the Contractorfor all additional General
Conditions costs incurred by the Contractor as a result of the Excused Delay, Change Order, CCD or Excused
Delay. This amount shall be decreased by any amounts already paid by the Owner to the Contractor for increased
General Conditions costs pursuant to any Change Order or CCD relating to the Work at issue that has been
signed by the Owner pursuant to the provisions of this Agreement.
3. Subsequent to the execution of this Agreement, the Contractor shall continue to evaluate and assess the Drawings,
Specifications and other design documents or descriptions of the Work prepared by the Architect for the Project and issued
to the Contractor for construction as and when they are issued by the Architect and shall notify the Omer and Architect in
writing, within seven (7) days of the Contractor's receipt of any such document, if the Contractor claims that such design
document(s) contain a Material Change. With respect to any claimed Material Change, the Contractor shall: (x) identify the
specific direction, event, condition ordesign document which allegedly constitutes the Material Change; (y) state specifically
and describe in detail why it allegedly constitutes a Material Change; and (z) identify the amount of the increase in the
Contract Sum and/or Completion Date(s) that the Contractor claims is needed as a result of the alleged Material Change.
4. Notwithstanding anything to the contrary contained in the Contract Documents, the Owner may withhold any payment to
the Contractor hereunder for the Work of the Contractor or for the Work of any Subcontractor if and for so long as such
party is in breach of any of the party's obligations hereunder for the Work of the Contractor or under a subcontract, as the
case may be, or otherWse is in default under any of the Contract Documents; provided, however, that any such holdback
shall be limited to an amount sufficient, in the reasonable opinion of the Omer, to cure any such fault or failure of
performance by the Contractor or by such Subcontractor, as the case may be.
Contractor agrees that all discounts or credits, volume rebate payments, commissions or other incentives to which
Contractor may be entitled in connection with the Work shall accrue and belong to Omer and shall be promptly paid by
Contractor to Owner. Contractor shall not procure any Work that is subject to any such discount, credit, rebate, commission
or other incentive without prior disclosure to and approval of Owner. Contractor further represents that: (I) Contractor is the
only person or entity with an interest in this Agreement and that this Agreement is entered into by Contractor without any
connection with any other person or entity (other than the Subcontractors retained by Contractor in connection with the
Work); (H) this Agreement has been obtained, negotiated and entered into by Contractor without directly or indirectly
influencing or attempting to influence any employee or agent of Omer (other than as set forth in the written information,
proposals and materials submitted by Contractor in connection with the negotiation of this Agreement) and based solely on
Contractor's own investigation and research and not in reliance upon any statement, representation or promise of any
employee, officer, agent or representative of Owner; and (III) Contractor has complied with all applicable anti -corruption
laws and did not (and will not hereafter) authorize, offer, promise or give anything of value, directly or indirectly through an
intermediary, to any person employed by or acting on behalf of a government, government -controlled entity or public
international organization; any political party, party official or candidate; any individual who holds or performs the duties of
an appointment, office or position created by custom or convention; or any individual who holds himtherself out to be the
authorized intermediary of any of the foregoing in order to improperly influence. Contractor agrees (and shall cause its
Subcontractors to agree) to keep adequate records and books of account as necessary to accurately reflect the charges
incurred and/or billed pursuant to this Agreement and as required to allow Owner and/or Owners Consultants to verify the
validity, correctness and legitimacy of all amounts charged and/or paid pursuant to this Agreement, and to confirm
Contractors compliance with the requirements of this paragraph. The system adopted shall be such as is satisfactory to
the Owner.
6. The Omer and Owners Consultants shall have the right to audit the books and records of the Contractor and its
Subcontractors (and to interview the employees of the Contractor and its Subcontractors) for the purposes of confirming
Contractor's compliance with the requirements of paragraph 5 of this Article 9 above. In addition, the Owner and Owners
Consultants shall be afforded access at all reasonable times to the correspondence, instructions, receipts, vouchers,
memoranda, subcontracts, purchase orders and records of Contractor and its Subcontractors pursuant to this Agreement,
relating to all Work under this Agreement, as well as to any changes in the Work. Contractor (and its Subcontractors) shall
make such records available to Owner and Owners Consultants for review at all reasonable times, upon reasonable notice
both for the purpose of confirming Contractor's compliance with the provisions of this Agreement and for the purpose of
verifying actual costs Incurred by Contractor (and the reasonableness thereof) related to any amounts claimed by Contractor
on such basis, Including but not limited to amounts claimed by Contractor pursuant to Article 4, paragraph 5 herein and any
amounts sought in connection with a CCID issued by the Omer pursuant to this Agreement . In regard to the foregoing and
generally, the Contractor hereby authorizes the Owners Representative and Omer's Consultants, and shall require all
Subcontractors to authorize the Owner's Representative and Owner's Consultants, to check directly with all Subcontractors,
as to the charges for any labor, material and other items billed pursuant to this Agreement and the balances due on such
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charges and to obtain sworn statements and waivers of lien from any such suppliers. All records required by this subsection,
shall be preserved for a period of five (5) years after Final Payment for the Project, or for such longer period as may be
required by law.
7. Before the first Application for Payment the Contractor shall submit to the Owner a Schedule of Values (using the Omer's
standard form, unless otherwise agreed to by the Omer in writing) allocated to various portions of the Work and the various
categories Wthin the Contract Sum (i.e. the Contractor's fee, General Conditions, etc.), and separately divided by each
Subcontractor who is performing Work in connection with each identified line item and prepared in such form and supported
by such data to substantiate the accuracy of the Schedule of Values as the Omer may require. This Schedule of Values
upon approval by the Owner shall be used as a basis for reviewing the Contractor's Applications for Payment. Each
Application for Payment shall be in such form, including supporting schedules and exhibits, as is directed by Omer and
shall include completed schedules adjusting and updating each line item of the Schedule of Values, as appropriate, to
account for previous payments and for Change Orders and CCDs as they are issued.
8. On or before the twenty-fifth (261) calendar day of each month, the Contractor shall submit to the Owner an itemized
Application for Payment with all related schedules completed to reflect (I) the then current status of the Work projected
through the last day of the month when the Application for Payment is submitted, (ii) the Contract Sum (and its related
components) and (111) the payments previously made by the Owner for operations completed in accordance with the
Schedule of Values during the prior calendar month. Such Application for Payment shall be itemized as required by the
Omer, shall be notarized, if required by the Owner, and supported by such data substantiating the Contractor's right to
payment as the Omer may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting
retainage if provided for elsewhere in the Contract Documents. In addition, each Application for Payment submitted by
Contractor shall be accompanied by a sworn statement identifying every Subcontractor who is to receive payment of any
amounts requested in the Application for Payment and listing the amounts requested on behalf of such Subcontractor in the
Application for Payment. The Omer shall not be required to process an Application for Payment until all information
required by this Agreement with respect to such Application for Payment (including but not limited to any required backup
orsupporting documentation) has been submitted. The Contractor's Applications for Payment may not include requests for
payment of amounts relating to alleged changes in the Work that have not been authorized by a Change Order signed by
the Omer.
Applications for Payment shall not include requests for payment of amounts the Contractor does not intend to pay to a
Subcontractor because of a dispute or other reason. Contractor shall reject or modify the requisition of a Subcontractor for
any of the following reasons, unless Contractor and Owner agree that notwithstanding the existence of a reason for such
action by Contractor, it is nonetheless advisable to process the requisition: (a) Work not performed in accordance with the
Contract Documents and not remedied; (b) claims filed against the Project, Owner, Contractor or Subcontractor; (c) failure
of Subcontractor to make payments to the Subcontractors agents, employees, or sub -Subcontractors for labor, material, or
equipment; (d) damage to another party caused by Subcontractor's activities; (a) delays in the prosecution of any portion
of the Work caused by Subcontractor; (f) failure of Subcontractor to submit a required release and waiver; (g) unaccepted
backcharges; or (h) for any other cause as directed by Omer.
10. Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment
delivered and suitably stored at the Site at the time an Application for Payment is submitted, provided such materials and
equipment will be incorporated in the Work within the next thirty (30) days after the Application for Payment is submitted. If
approved in advance by the Owner, payment may also be made for materials and equipment suitably stored off the Site at
a location agreed upon in writing. Payment for materials and equipment stored on or off the Site shall be conditioned upon
compliance by the Contractor with procedures satisfactory to the Owner to establish the Owners title to such materials and
equipment or otherwise protect the Omer's interest, and shall include applicable insurance, storage and transportation to
the Site for such materials and equipment stored off the Site. Contractor shall provide Owner, promptly upon request and
as a condition to any related payment, Win any documents (including but not limited to affidavits of storage, warehouse
receipts and insurance certificates) required by Omer to demonstrate compliance with the foregoing condition. The
Contractor shall submit, within thirty (30) days after the date of commencement of the Work and thereafter as the Owner
requires, schedules of materials and equipment for each category or Subcontract for which Contractor will seek payment
under this paragraph, which schedule shall include items, quantities. value or unit prices with extensions and the month in
which a request for paymentwith respect thereto is expected to occur. Schedules will be updated on a monthly basis and
submitted as an attachment to the Contractors Applications for Payment. The Contractor may request approval of the
Owner for payment of material or equipment to be purchased by Contractor and delivered in accordance with the approved
schedule and material register for installation on Site no earlier than permitted by this paragraph above. Any costs to store
any material or equipment prior to such date shall be paid by the Contractor and all related insurance and risk of loss shall
be the responsibility of the Contractor until such time as is required by Article 11 herein. A payment schedule for each such
item to be invoiced must be approved by the Owner, prior to submittal of the invoice. Requests for such payments shall be
delivered to the Owner for approval by the fifteenth (1 5th) of the month prior to the month when they are to be included in
an Application for Payment and shall include the following: (a) A Certificate of Title for the material or apparatus without
encumbrances; or if encumbered, a Certificate of Title containing a statement signed by the Contractor agreeing to pay all
encumbrances within seven (7) days after receipt of payment from the Owner, (b) A copy of the supplier invoices verifying
material costs; (c) A Certificate of Compliance from the supplier verifying that the quality and quantity of material or
apparatus is in accordance with the technical requirements; (d) The location of the material (which location shall provide
designated clear access for the Omer if it is other than the Site). If the location where the material or apparatus is stored
is privately owned, the Owner shall be listed as a second party to the storage lease or other negotiated agreement between
the Contractor and property owners; and (a) Insurance coverage acceptable to the Owner. Prior payments for materials
and equipment shall be subtracted proportionately from the payment for completed Work as the material or equipment Is
incorporated into the Work in whole or in part.
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it. The Contractor warrants that title to all Work covered by an Application for Payment (including all materials, whether or not
then incorporated or installed into the Work, subject to the right of the Owner to reject same for failure to conform to the
standards of any or all of the Contract Documents) will pass to the Owner no later than its incorporation into the Work or
the time of payment by Owner, whichever is eadier, and shall at such time be free and clear of liens, claims, security interests
or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim
by reason of having provided labor, materials and equipment relating to the Work. Notwithstanding the foregoing, the
Contractor shall remain responsible for all damage or loss to any Work, materials or equipment until after Final Completion
as required herein.
12. The Owner will hold retention equal to ten percent (10%) of the amount paid pursuant to each Application for Payment with
respect to each category of Work as set forth in the Schedule of Values and the relevant Application for Payment (including
any seif-performed Work, the Contractor's fee and the General Conditions). In this regard, in the approved Schedule of
Values (as modified pursuant to this Contract) and in each Application for Payment, the Contractor shall separately identify
the contract amount for each Subcontractor who is performing Work so that the Omer can track and withhold retainage on
a line item basis with respect to each identified Subcontractor. Omer agrees that this is a lump sum contract and accordingly
that the purpose of this information is to allow Owner to confirm that appropriate retainage has been withheld and released
as required by this Agreement, and to confirm compliance with any applicable lam relating to the holding and release of
retainage, and that this information will not be used by Owner to claim credit against the Contract Sum based on the amounts
of the Subcontracts actually entered into by Contractor for Work included within the Contract Sum (except and only to the
extent of CCDs or claims that are based on actual costs incurred by Contractor). The Owner shall reduce the retainage
held with respect to the Work to an amount equal to one hundred fifty percent (150%) of any Work not then completed by
the Contractor as of the date when Substantial Completion is achieved with respect to the entire Work. The Omer shall
make payment of the retention to be released with the next scheduled payment following Substantial Completion of the
entire Work.
13. After receipt of the Contractors Application for Payment, the Omer will either approve the Application for Payment (by
issuing a Certificate for Payment for such amount as the Owner determines is properly due) or disapprove the Application
for Payment in whole or in part. The Contractor shall promptly comply with any direction by the Omer to revise and resubmit
an Application for Payment based on the Owner's review and disapproval thereof and no payments shall be required under
this Agreement until an Application for Payment, in form and substance as required by this Agreement, and accompanied
by all required backup and supporting documentation, has been submitted to and approved by the Omer. The approval of
an Application for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Omer shall not
constitute acceptance of Work not in accordance with the Contract Documents. The Contractor may only stop the Work
pursuant to the provisions of Article 14 herein.
14. The Omer may dedde to Wthhold approval of an Application for Payment and/or may reduce any payment otherwise due
to Contractor to the extent reasonably necessary to protect the Owner from loss because of: (1) defective Work not
remedied; (2) third -party claims filed or reasonable evidence indicating probable filing of such claims Wth respect to which
the Contractor, in the Owners reasonable judgment, is liable to the Owner pursuant to this Agreement or applicable law;
(3) failure of the Contractorto make payments properlyto Subcontractors orfor labor, materials orequipment; (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 with respect to which the Contractor, in the Omer's reasonable judgment, is liable to the Omer pursuant
to this Agreement or applicable law, (6) reasonable evidence that the Work will not be completed within the Completion
Dates established by this Agreement and that the unpaid balance would not be adequate to cover damages for the
anticipated delay; (7) failure to carry out the Work in accordance with the Contract Documents: or (8) loss or damage which
may result from negligence or unsatisfactory Work by the Contractor, failure by the Contractor to perform Contractor's
obligations, including failure to maintain satisfactory progress ofthe Work, or claims against the Contractor or Ownerrelating
to the Contractors performance ofWork Wth respect to which the Contractor, in the Owners reasonable judgment, is liable
to the Omer pursuant to this Agreement or applicable law. When the reasons for withholding approval are removed,
payment shall be made for amounts withheld because of them in response to the next filed Application for Payment. If the
Contractor disputes any determination by the Owner with regard to any proposed Application for Payment, the Contractor
shall nevertheless expeditiously continue to prosecute the Work. In any of the events permitting Omer to withhold payment
as set forth herein, the Owner shall have the right to apply any such amounts so withheld in such manner as the Omer
may deem proper to satisfy such claims, to complete the Work or to compensate the Omer for any loss suffered by reason
of the Contractor.
15. Within thirty (30) days after the Owner's approval of the Application for Payment, the Owner shall make payment to the
Contractor of the amount specified therein. Such payment by the Owner shall not constitute approval or acceptance of any
item of cost in the Application for Payment. No partial payment made hereunder shall be or be construed to be final
acceptance or approval of that portion of the Work to which such partial payment relates, or relieve the Contractor of any of
Contractors obligations hereunder with respect thereto. The Omer shall not be required to make any payment until the
Omer has received a release of liens from the Contractor and all Subcontractors for the portion of the Work covered by
such payments.
16. The Contractor shall promptly pay each Subcontractor within ten It 0) days after receipt of payment from the Omer, out of
the amount paid to the Contractor pursuant to the Contractor's Application for Payment, the full amount paid to Contractor
by Owner, pursuant to such Application for Payment, for Work performed by such Subcontractor. The Contractor shall, by
appropriate agreement with each Subcontractor, require each Subcontractor to make payments to sub -Subcontractors,
materialmen and suppliers in similar manner. If required by the Omer, the Contractor shall send to the Owner copies of
receipts from the Subcontractors for the payment made to them by the Contractor. The Contractor shall in no event,
however, stop the Work during the pendency of a bonafide dispute between the Omer and the Contractor or any
Subcontractor. The Owner will, on request, furnish to a Subcontractor, If practicable, information regarding percentages of
completion or amounts applied for by the Contractor and action taken thereon by the Omer on account of portions of the
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Work done by such Subcontractor. The Owner shall have no obligation to pay or to see to the payment of money to a
Subcontractor except as may othermse be required by law.
17. Each Application for Payment shall be accompanied by a partial, conditional lien waiver (effective upon receipt of payment),
on Owner's standard lien waiver form without modification (unless approved by Omer in advance and in writing), executed
by each Subcontractor on behalf of whom payment is requested, in the amount of the payment requested by the applicable
Application for Payment and by a partial, unconditional lien waiver (on Owners standard lien waiver form without
modification [unless approved by Omer in advance and in writing)) executed by each Subcontractor, reflecting receipt of
payment for all Work performed by such Subcontractor that has actually been paid for by the Owner pursuant to any previous
Application for Payment and for which the Contractor should have paid the Subcontractor pursuant to this Agreement prior
to the submission of the Application for Payment at issue. Each Application for Payment shall also be accompanied by a
partial, conditional lien waiver (effective upon receipt of payment), on Omer's standard lien waiver form without modification
(unless approved by Owner in advance and in writing), executed by the Contractor, for the full amount of the payment
requested in the Application for Payment and by a partial, unconditional lien waiver (on Omer's standard lien waiver form
without modification [unless approved by Owner in advance and in writing]) executed by the Contractor, reflecting receipt
of payment for all Work that has actually been paid for by the Owner pursuant to all previous Applications for Payment. In
addition, each Application for Payment shall be notarized, if required by the Omer, and supported by such data
substantiating the Contractors right to payment as the Owner may reasonably require, such as any affidavit or other
statement required by any lender to the Owner, schedules of values from Subcontractors, and copies of requisifions and/or
invoices from Subcontractors (reflecting retainage as provided for in the Contract Documents). The Omer shall not be
required to process an Application for Payment until all information required by this Agreement with respect to any such
Application for Payment has been submitted.
18. In the event a Subcontractor files a mechanic's lien or claim for lien against the Project (and provided Omer has paid
Contractor as required by this Agreement forthe Work that is the subject of such lien or claim), Contractor shall cause such
lien or claim for lien to be formally released, bonded against or satisfied, and shall reimburse Owner for all costs and
expenses, including but not limited to attorneys' fees and bonding and title indemnity expenses, incurred in contesting,
discharging, releasing or satisfying such lien or claim for lien or defending or otherwise participating in such suit. Upon the
settlement of such claim, any excess monies held by Omer from such security shall be paid to Contractor. Contractor shall
similarly indemnify and protect and defend Omer, all Additional Insureds (as defined in Article 11), Owners Consultants,
Project Manager, and agents and employees of any of them, in respect of any lien or claim for lien in favor of any person
claiming by, through, or under Contractor, including, among others, any Subcontractors, that may appear after Final
Payment has been made by Omer to Contractor in the amounts required by this Agreement. The Contractor shall have
the right to contest any lien or claim covered by this paragraph, provided the Contractor has bonded over such lien or claim
and the Contractor has agreed in writing to fully indemnify and defend the Owner, all Additional Insureds (as defined in
Article 11 below), Owner's Consultants, Project Manager, and agents and employees of any of them, with respect to such
lien or claim.
19. As used herein, "Substantial Completion" and/or "Substantially Complete" shall mean that: (1) the Work has been fully
completed in accordance with the Contract Documents except and only for minor items that will not unreasonably affect the
occupancy and operation of the Work as intended and the Work is sufficiently complete (with the above noted exceptions
only) to enable the Owner to occupy and use the Work for the use for which it is intended without unreasonable disruption
or interference caused by the need to complete any of the Work then remaining to be completed: (2) all required approvals
and permits for occupancy, use and completion of the Work shall have been issued by appropriate governmental authorities
(except such certificates, permits, approvals or consents that cannot be procured due to reasons beyond the reasonable
control of the Contractor or any Subcontractors, in which event this condition shall not apply to such extent): (3) if so required
by the Owner, the Architect has certified that the Work is complete as required by subsection (1) above; and (4) all
operational systems and elements that are part of the Work, including mechanical, electrical and support systems, are
functioning as required by the Contract Documents.
20. When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is
Substantially Complete, the Contractor shall prepare and submit to the Architect and Omer a comprehensive punch list of
items to be completed or corrected. The Contractor shall proceed promptly to complete and correct Items on the punch list.
Failure to include an item on such punch list does not alter the responsibility of the Contractor to complete all Work in
accordance with the Contract Documents. Upon receipt of the Contractor's punch list, the Architect and Omer will make
an inspection to determine whether the Work or designated portion thereof is Substantially Complete. If the Architect's or
Owners inspection discloses any item. whether or not included on the Contractor's punch list, which is not in accordance
with the requirements of the Contract Documents, the Contractor shall, before issuance of the Certificate of Substantial
Completion, complete or correct such item upon notification by the Architect or Omer. The Contractor shall then submit a
request for another inspection by the Architect and Owner to determine Substantial Completion. When the Work or
designated portion thereof is Substantially Complete, the Owner will authorize the Architect to prepare a Certificate of
Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner
and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within
which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract
Documents shall commence on the date of Substantial Completion of all of the Work unless otherwise agreed to in writing
by the Owner in the Certificate of Substantial Completion, and except as to latent defects and matters specified in any punch
list delivered with respect to the Work or a portion thereof. The Certificate of Substantial Completion shall be submitted to
the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon
Substantial Completion of the Work (or a designated portion thereof, as applicable), the Contractor may submit an
Application for Payment for a sum sufficient to increase the total payments to the total amount of the Contract Sum, less
one hundred fifty percent (150%) of such amounts as the Owner shall determine for Work not yet completed, including all
remaining punch list items.
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21. The Owner shall have the right to occupy or use ahead of schedule all or any Substantially Completed or partially completed
portions of the Work when such occupancy and use are in Omer's best interest, notwithstanding the time of completion for
all of the Work. If such occupancy or use increases the cost of the Work (other than for corrections which are the
Contractor's responsibility) or delays the completion of the Work, the Contractor shall be entitled to extra compensation or
extension of time, or both as permitted by the terms of this Agreement. Claims for such extra compensation or extension
of time, to be valid, shall be made in writing in the time and manner required by Article 4 hereof. After the Owner has taken
occupancy of all or any Substantially Completed or partially completed portions of the Work under construction, the
Contractor shall not disrupt the Omer's use and occupancy thereof to make corrections in the Work but shall, at the Owners
discretion, make such corrections at the Contractor's expense in a fashion so as not to disrupt the Owner's use and
occupancy of the area at issue. The Omer may require the use and operation of any completed heating, ventilating,
air-conditioning or other equipment at the time that Omer occupies or uses any Substantially Completed portion of the
Work under construction. In such event, the Omer may require the Contractor to operate such equipment and will pay the
Contractor the cost of such operation required for the Owners use and occupancy, but the Contractor shall be responsible
for such equipment and for its careful and proper operation. At any time, the Omer may itself assume the care and
maintenance of any portion of the Work which Owner is occupying and using and/or the operation of any such equipment,
but in each case the Contractor shall not be relieved of Contractors responsibility for the full completion of the Work and
the protection of Contractors tools. matedals and equipment. Unless otherwise agreed upon, partial occupancy or use of
a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract
Documents.
22. Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon the Owner's receipt of a
final Application for Payment, the Omer will promptly make such inspection and when the Omer finds the Work acceptable
under the Contract Documents and the Contract fully performed, and when the conditions listed in this Agreement as
precedent to the Contractor's being entitled to Final Payment have been fulfilled and the entire Work is Finally Complete as
defined herein, the Owner and Contractor shall execute a Certificate of Final Completion, which certificate shall establish
responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance.
Unless otherwise agreed by the Omer in writing, the Owners approval of an Applicaflon for Payment, a progress payment,
or Final Payment, partial occupancy or use of a portion of the Work shall not constitute acceptance of Work not complying
with the requirements of the Contract Documents. Acceptance of Final Payment by the Contractor, or any Subcontractor
shall constitute a waiver of all claims by the Contractor and such Subcontractor.
23. As used in the Contract Documents, Final Completion (and/or "Finally Complete� shall mean, and "Final Payment" shall
not be due to the Contractor until, the proper and full completion of all of the Work, including but not limited to satisfactory
operation of all equipment and systems, completion or correction of all punch list items, delivery of all maintenance and
operations manuals and all warranties and guarantees (and assignments thereo% issuance of all required approvals and
certificates by any authorities with jurisdiction over the Work (including final and unconditional certificates of occupancy),
removal of all rubbish, tools, scaffolding and surplus materials from the Site and correction of all property damage that is
the responsibility of the Contractor pursuant to the Contract Documents. In addition, Final Payment shall not be due and
owing and shall not be made unless and until the Contractor submits to the Owner the following: (1) executed releases
(effective upon receipt of Final Payment) signed by all Subcontractors who may be entitled to a claim against the Owner or
the Project; (2) an executed release signed by the Contractor discharging and waiving all claims, damages, muses of
actions, and/or suits which the Contractor may have against the Omer or the Owner's property relating to the Project, the
Work, or this Agreement, effective upon receipt of the Final Payment; (3) an affidavit that all payrolls, bills for materials and
equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be
responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied; (4) a certificate
evidencing that insurance required by the Contract Documents is to remain in force after Final Payment is currently in effect
and will not be canceled or allowed to expire until at least thirty (30) days' prior written notice has been given to the Omer;
(5) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover
the period required by the Contract Documents; (6) consent of surety, if any, to Final Payment; and (7) if required by the
Omer, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of claims,
security interests or encumbrances arising out of the Contract, to the extent and in such from as may be designated by the
Omer. if any such claim is made with respect to the Project after Final Payment is made to the Contractor, the Contractor
shall be responsible to the Owner for all money, costs, and expenses that the Owner may be compelled to pay in discharging
such claim, including all costs and reasonable aftomeys'fees. When the Work is Finally Complete as defined herein, the
Owner and Contractor shall execute a Certificate of Final Completion in a form reasonably acceptable to Omer. The Owner
agrees to make Final Payment to the Contractor within thirty (30) days after Final Completion has occurred and all of the
requirements set forth in this paragraph have been satisfied. Contractor shall, within ten (10) days after receipt of Final
Payment from the Omer, submit f nal and unconditional releases from all persons and entities identified in subsection (1)
above.
24. All provisions of this Agreement, including without limitation, those establishing obligations and procedures, shall remain in
full force and effect notwithstanding the making or acceptance of Final Payment prior to the date of Substantial Completion
of the Work. The Contractor a obligation to perform and complete the Work in accordance with the Contract Documents
shall be absolute. Neither approval of any partial or Final Payment by the Owner, nor the issuance of a Certificate of
Substantial Completion, nor any payment by the Omer to Contractor under the Contract Documents, nor any use or
occupancy of the Work or any part thereof by the Owner nor any act of acceptance by the Owner nor any failure to do so,
nor any correction of defective work by the Owner shall constitute an acceptance ofWork not in accordance with the Contract
Documents.
ARTICLE 10
PROTECTION OF PERSONS AND PROPERTY
1. The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in
connection with the performance of this Agreement and the Work. All Work shall be performed in strict compliance with the
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requirements of the current and applicable Construction Safety Act and the Occupational Safety and Health Act and any
other lam or regulations pertaining to the safe performance of the Work. Omer vvili not be responsible in any way for
providing a safe place for the performance of the Work by the Contractor. any Subcontractor, or any of their respective
agents or employees. If Contractor is responsible for the abatement or removal of asbestos at the Project as set forth in
the Contract Documents, the Completion Dates have been established taking such abatement and removal activities into
amount. The Contractor shall take precautions for safety of, and shall provide protection to prevent damage, injury or loss
to: (1) employees on the Work and other persons who may be affected thereby; (2) the Work and materials and equipment
to be incorporated therein, whether in storage on or off the Site, under care, custody or control of the Contractor or the
Contractor's Subcontractors; and (3) the Site and any portions thereof and any 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 and the Work of the Owner or any of Omers separate contractors.
The Contractor shall give notices and comply with applicable lam, ordinances, rules, regulations and lawful orders of public
authorities beading on safety of persons or property or their protection from damage, injury or loss. The Contractor shall
erect and maintain, as required by existing conditions and performance of this Agreement, reasonable safeguards for safety
and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and
notifying any guests at the Project Site and owners and users of adjacent areas and utilities. When use or storage of
explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the
Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. The
Contractor shall designate a responsible member of the Contractor's organization at the Site whose duty shall be the
prevention of accidents. This person shall be the Contractors superintendent unless otherwise designated by the
Contractor in writing to the Owner and Architect. The Contractor shall not load or permit any part of the Work or Site to be
loaded so as to endanger safety.
3. The Contractor shall indemnify and hold Omer, all Additional Insureds (as defined in Article 11 below), Omer's
Consultants, Project Manager, and agents and employees of any of them, harmless from and against any loss or damage,
and shall promptly remedy damage and loss (other than damage or loss actually paid for by property insurance procured
by the Omer pursuant to this Agreement) referred to In this Article 10 (including but not limited to damage or loss due to
theft. burglary, destruction, carelessness or improper handling and any damage or loss which may prevent any part of said
property being used or installed and accepted in accordance with the Contract Documents) to the extent caused in whole
or in part by any action or failure on the part of the Contractor, a Subcontractor, or anyone directly or indirectly employed
by any of them, or by anyone for whose acts they may be liable, except damage or loss attributable to acts or omissions of
the Omer or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of
them may be liable, and not attributable to the fault or negligence of the Contractor or any Subcontractors. The foregoing
obligations of the Contractor are in addition to the Contractor's obligations under Article 3. Nothing herein shall be construed
as requiring the Omer to carry any property insurance (except and only such insurance as Omer is expressly required to
procure pursuant to Article I I hereln) covering any loss or damage for which Contractor is responsible pursuant to this
Section. In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to
prevent threatened damage, injury or loss, provided that Owner shall be given prompt notice of any such action. Additional
compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided
in Article 4.
1 Contractor shall purchase and maintain at Contractors sole cost and expense, the insurance indicated below issued by
insurance companies licensed to do business in the State(s) or Province(s) where the Work is to be performed and having
a minimum A.M. Best's rating of A-XIl. Contractor shall furnish to Omer, in quadruplicate, certificates of such insurance
policies, which certificates shall specify that such insurance will not be canceled or modified until at least thirty (30) days'
written notice has been given to Omer. Such insurance (other than Worker's Compensafion insurance) shall name
Contractor, Owner, and all persons and entities that Contractor is required to indemnify pursuant to Article 3 above, and
their respective agents, as additional insureds:
FORM OF COVERAGE
LIMITS OF LIABILITY
Workers'Compensation —jurisdictional limits.
Statutory Workers Compensation and Employer's
Employees Liability - $1,000,000 each accident,
Liability
each employee, each occupational disease, and in
the policy aggregate.
Commercial General Liability, including Products an d
Covering bodily injury (including personal injury) and
property damage with a combined single limit of not
Completed Operations, contractual liability and
Contractors protective liability
less than $10,000,000 on a per occurrencelannual
aggregate basis.
$1,000,000 per accident combined single limit for
Automobile liability, including non -owned and hired
bodily injury (including personal injury) and property
car liability
damage. If Contractor provides transportation for
guests, then the combined single limit shall be not
less than $5,000,000 per accident.
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Property insurance on an "all risk" or "special risk"
form covering all property such as tools, equipment
and machinery used by Contractor in the Replacement cost value
performance of the Work (whether owned, leased,
rented or borrowed) and containing a waiver of
subrociation in favor of the Additional Insureds
If the Work involves removal, abatement, encapsulation or other treatment, disposal or remediation of asbestos or other
hazardous materials. Contractor shall also provide insurance applicable to such Work and operations with such coverages
and in such amounts as may be required by Omer. No such Work shall be commenced until Omer has first received,
reviewed and approved certificates of insurance evidencing such coverage. All polides of liability insurance required under
the terms of this Article 11 shall be on an "occurrence" form, covering the full period when all Work required under this
Agreement is to be provided. The liability policies maintained by the Contractor shall name Owner, ILG, Inc., Vistana
Signature Experiences, Inc., Marriott International, Inc., any owner associations having an interest in the Project, the
constituent partners of Owner and their respective partners, directors, officers, shareholders, employees, affiliates,
subsidiaries, agents and representatives, as their interests may appear, as additional named insured ("Additional lnsurecls�,
and shall contain a provision that coverage afforded under the policies will not be cancelled nor fai led to be renewed without
at least thirty (30) days' prior written notice given to the Owner. Contractor shall furnish to Owner, in duplicate, certificates
of such insurance policies prior to the start of construction.
Certificates of Insurance showing such coverages to be in force shall be filed with the Omer prior to the commencement
of the Work and renewals furnished prior to expirarion of any coverage herein. If the Contractor shall fail to deliver any
required certificates of insurance to Owner within forty-eight (48) hours of demand, Omer may obtain such insurance and
Contractor agrees to repay Owner on demand all amounts paid therefor, or Owner may deduct all payments made in
procuring such insurance from any money due or to become due to Contractor under this Agreement. The limits of insurance
required by this Article 11 may be provided by any combination of base policy coverage and associated excess coverage.
The coverage limits required for Commercial General Liability may be satisfied through any combination of primary liability
and umbrella liability policies, provided that if umbrella liability coverage is obtained, such umbrella limits must also be
excess over the automobile liability and employers' liability policies required by this Agreement. Contractor may require
each Subcontractor to procure and maintain such insurance as Contractor may direct. However, Contractor expressly
acknowledges and agrees that the failure of Contractor to require any Subcontractor to procure or maintain (and/or the
failure of any Subcontractor in fact to obtain) any insurance, or to do so in any amount or coverage, shall not in any way
affect, reduce, relieve or diminish Contractor's responsibility or liability to Omer for the acts or omissions of Contractor or
any Subcontractors in connection with the Work or the Contract Documents.
4. Prior to commencement of any Work under this Agreement, and until completion and final acceptance of the Work, the
Owner, at Omer's sole expense, will provide and maintain the following Builder's Risk Insurance for itself, Contractor, and
Subcontractors performing work or services in connection with the Project, as their respective Interests may appear: (I) "AJI
Risk" or "Special Risk" Property Insurance (including Extensions) for Builders Risk Exposures on all materials, equipment
and supplies which are incorporated into and a permanent part of the construction and insuring against the perils of fire and
extended coverage, physical loss or damage (including. without duplication of coverage, theft, vandalism and malicious
mischie�. Coverage will be provided on a replacement value basis; (ii) boiler and machinery insurance as may be required
by the Contract Documents or by law, (iii) temporary structures and tools, equipment and machinery of the Contractor and
Subcontractors are excluded from this coverage and Contractor and its Subcontractors shall be solely responsible for any
loss or damage to such items regardless of the cause for such loss or damage; and (iv) all losses covered by Owner's
property insurance are subject to a Twenty- Five Thousand Dollar ($25,000) deductible which shall be the responsibility of
the Omer, except to the extent of damage caused by the acts or omissions of the Contractor or any Subcontractors, in
which event the Contractor shall be responsible for such losses that are not paid due to such deductible. If the Project
covers an addition to or is adjaceritto an existing building, the Contractor and Subcontractors shall be named as additional
insureds under the Owners property insurance covering such building and its contents.
Materials and other portions of the Work that are stored on or off the Site or are in transit are not covered under the Owner's
property insurance and the Contractor shall maintain property insurance on all such items until such time as they are actually
incorporated into, and a permanent part of, the Work. Contractor's and Subcontractors' owned and/or leased vehicles,
equipment and materials will not be covered by Omer's property insurance. Any loss insured under this paragraph is to
be adjusted with the Owner and made payable to the Omer as loss payee for the Insured, as their interests may appear.
The Contractor shall pay each Subcontractor a share proportionate to the loss incurred by each party of any insurance
monies received by the Contractor, and Contractor shall ensure that each Subcontractor shall be required to make payments
to their sub -Subcontractors in similar manner. The Omer shall deposit in a separate account any money so received, and
shall distribute it in accordance with such agreement as the parties in interest may reach. If after such loss no other special
agreement is made, replacement of damaged Work shall be covered by an appropriate Change Order. Contractor shall be
responsible, at Contractor's sole cost and expense to procure any other insurance or any increase of the limits of liability
required above which the Contractor deems necessary for Contractor's own protection, or on account of statute. The
carrying of any insurance described herein shall in no way be interpreted as relieving the Contractor or any Subcontractor
of any responsibility or liability under this Agreement, except to the extent of the waiver of subrogation contained in this
Article 11 below.
The Owner and the Contractor (and Contractor shall require that all Subcontractors) waive all rights against (1) each other
and each other's Subcontractors, agents, officers, directors, shareholders and employees; (2) the Architect, and separate
contractors, if any, and their subcontractors, sub -subcontractors, agents and employees; and (3) any other person or entity
using or occupying any portion of the Project with Omer's knowledge and consent for damages caused by fire or other
perils but only to the extent actually paid by insurance obtained pursuant to this Article 11 or any other property insurance
applicable to the Work, except such rights as they may have to the proceeds of such insurance held by the Owner as loss
payee. The foregoing waiver afforded the Architect, their agents and employees shall not extend to the liability of the
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Architect. The Owner or the Contractor, as appropriate, shall require of the Architect, separate contractors, and
Subcontractors by appropriate agreements, written where legally required for validity, similar waivers each in favor of all
other parties enumerated in this paragraph. The Owner and Contractor waive all rights against each other and the
Subcontractors for loss or damage to any equipment used in connection with the Project but only to the extent actually paid
by any property insurance applicable to this Agreement. The Contractor shall require similar waivers from all
Subcontractors. If the policies of insurance referred to in this Section require an endorsement to provide for continued
coverage where there is a waiver of subrogation, the holders of such policies will cause them to be so endorsed at their
expense.
7. The following sets forth the bonding requirements for this Agreement (select only one):
A combined performance and payment bond is required.
Separate performance and payment bonds are required.
A performance bond only is required.
A payment bond only is required.
Neither a payment nor performance bond is required.
The penal sum for each bond required above shall be one hundred percent (100%) of the Contract Sum as established in this
Agreement. Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations
arising under this Agreement, the Contractor shall promptly furnish a copy of the bonds or shall permit a copy to be made. All bonds
shall be in such form and substance as is acceptable to the Owner.
ARTICLE 12
UNCOVERING AND CORRECTION OF WORK
If a portion of the Work is covered contrary to the Owner's or Architect's request or any governmental authority's
requirements, or to requirements specifically expressed in the Contract Documents, such Work must, if required in writing,
be uncovered for observation and be replaced at the Contractor's expense without extension of the Completion Dates. If a
portion of the Work has been covered which the Architect or Omer has not specifically requested to observe prior to such
Work being covered, the Architect or Omer may request to see such Work and it shall be uncovered by the Contractor. If
such Work is in accordance Wth the Contract Documents, costs of uncovering and replacement shall, by appropriate
Change Order, be charged to the Owner. if such Work is not in accordance with the Contract Documents, the Contractor
shall pay such costs unless the condition was caused by the Owner or a separate contractor in which event the Owner shall
be responsible for payment of such costs. The Contractor shall promptly correct Work rejected (I) by any governmental
authority or (ii) by the Architect or Owner as defective or failing to conform to the requirements of the Contract Documents,
whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The
Contractor shall bear costs of correcting such rejected Work, including additional testing and inspections and compensation
for the Architect's services and expenses made necessary thereby. The Contractor shall remove from the Site portions of
the Work which are defective or not in accordance with the requirements of the Contract Documents and are neither
corrected by the Contractor nor accepted by the Owner. If the Owner prefers to accept Work which is defective or not in
accordance with the requirements of the Contract Documents, the Omer may do so instead of requiring the removal and
correction of such Work, in which case the Contract Sum will be reduced as appropriate. Such adjustment shall be affected
whether or not Final Payment has been made.
2. If, within one (1) year after the date of Substantial Completion of the Work or designated portion thereof, or after the date
for commencement of warranties established under Article 9, or within such longer period of time as prescribed by law or
by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be defective or
not in accordance with the requirements of the Contract Documents, the Contractor shall correct such Work promptly after
receipt of written notice from the Owner to do so unless the Omer has previously given the Contractor a written acceptance
of such condition. This period of one (1) year shall be extended with respect to portions of Work first performed after
Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. This
obligation under this paragraph shall survive acceptance of the Work and termination of this Agreement. The Owner shall
give such notice promptly after discovery of the condition.
3. If the Contractor fails to correct defective or nonconforming Work within a reasonable time, the Owner may correct such
Work in accordance with the provisions of this Agreement. If the Contractor does not proceed with correction of such
defective or nonconforming Work within a reasonable time fixed by written notice from the Architect, the Omer may remove
such Work and store the salvable materials or equipment at the Contractors expense. If the Contractor does not pay costs
of such removal and storage within ten (10) days after mitten notice, the Owner may upon ten (10) additional days' written
notice sell such materials and equipment at auction or private sale and shall account for the proceeds thereof, after
deducting costs and damages that should have been bome by the Contractor, including compensation for the Architecvs
services and expenses made necessary thereby. If such proceeds of sale do not cover costs which the Contractor should
have borne, the Contract Sum shall be reduced by the deficiency. If payments then or thereafter due the Contractor are
not sufficient to cover such amount, the Contractor shall pay the difference to the Omer. The Contractor shall bear the
cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Omer or separate
contractors caused by the Contractor's correction or removal of Work which is defective or not in accordance with the
requirements of the Contract Documents. Nothing contained in this paragraph shall be construed to establish a period of
limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment
of the time period of one (1) year as described in this Article 12 relates only to the specific obligation of the Contractor to
correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents
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may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractors
liability with respect to the Contractor's obligations other than specifically to Correct the Work.
ARTICLE 13
MISCELLANEOUS PROVISIONS
This Agreement shall be governed and construed in accordance with the laws of the State or Province where the Project is
located. It is the express intent of the parties hereto that all suits or proceeding hereunder shall take place in a court of
competent jurisdiction in the State or Province where the Project is located. Historical lack of enforcement of any
requirement contained in the Contract Documents shall not constitute a waiver of the Contractor's responsibility for
compliance with such requirement in a manner consistent with the Contract Documents unless and until the Contractor has
received written consent for the waiver of such compliance from the Owner and the agency responsible for the enforcement
thereof. Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be
in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. No
action or failure to act by the Omer, Architect or Contractor shall constitute a waiver of a right or duty afforded them under
the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except
as may be provided by the Contract Documents or specifically agreed in writing.
2. The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to
the other party hereto and to the partners, successors, assigns and legal representatives of such other party in respect to
all covenants, agreements and obligations contained in the Contract Documents. However, Contractor shall not assign or
transfer any interest in this Agreement without the written consent of the Owner. If Contractor attempts to make such an
assignment Without such consent, Contractor shall nevertheless remain legally responsible to Owner for all obligations
under this Agreement. Owner shall have the right, in Owner's discretion, to assign and/or transfer Owners interest In this
Agreement to any person or entity either outright or as collateral security for a loan. Upon assumption of this Agreement
by such person or entity, Owner shall have no further liability under this Agreement.
Any notice required to be given hereunder shall be given in writing to the parties at the respective addresses hereinabove
indicated and shall be deemed to have been given (I) when delivered by hand, (11) when sent by first class registered or
certified mail, postage prepaid, return receipt requested, or (III) when sent by a nationally recognized overnight courier With
written proof of delivery. Notices sent to the Owner shall also be copied to Vistana Signature Experiences, Inc., 9002 San
Marco Court, Building 1000, Orlando, Florida 32819 (orfax407-418-7850) attention General Counsel and attention Senior
Vim President —Acquisitions, Development & Construction.
Tests, inspections and approvals of portions of the Work required by the Contract Documents or by-]aws, ordinances, rules,
regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise
provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing
laboratory or entity acceptable to the Omer, or with the appropriate public authority, and shall bear all related costs of tests,
inspections and approvals. The Contractor shall give the Architect and Owner timely notice of when and where tests and
inspections are to be made so the Architect and Omer may observe such procedures. The Owner, unless otherwise
provided in this Agreement, shall bear costs of tests, inspections or approvals which do not become requirements unfit after
bids are received or negotiations concluded. If the Architect, Owner or public authorities having jurisdiction determine that
portions of the Work require additional testing, inspection or approval, the Architect will, upon written authorization from the
Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity
acceptable to the Omer, and the Contractor shall give timely notice to the Architect of when and where tests and inspections
are to be made so the Architect may observe such procedures. The Omer shall bear such costs except that such
procedures for testing, inspection or approval reveal failure of the portions of the Work to comply with requirements
established by the Contract Documents, the Contractor shall bear all costs made necessary by such failure including those
of repeated procedures and compensation for the Architect's services and expenses. Required certificates of testing,
inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and
promptly delivered to the Architect. If the Architect or the Owner wishes to observe tests, inspections or approvals required
by the Contract Documents, they will do so promptly and, where practicable, at the normal place of testing. Tests or
inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the
Work.
5. This Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken together she[] Constitute one and the same
Agreement. Delivery by electronic transmission in portable document format (PDF) of an executed counterpart of this
Agreement is as effective as delivery of an originally executed counterpart of this Agreement.
1 This Agreement may be terminated by the Contractor only if the Owner fails to make payment to the Contractor, in such
amounts as are required by this Agreement, within thirty (30) days after such payment is due pursuant to this Agreement,
for Work properly performed by the Contractor and accepted by the Omer. In such event, the Contractor may, upon seven
(7) days'wriften notice to the Owner, terminate the performance of Work under this Agreement. Unless such payment is
thereafter received by the Contractorwithin such seven (7) day period, the termination shall take effect withoutfurther notice
to the Owner. In the event the Contractor validly and properly terminates this Agreement, Contractor shall be entitled to
compensation, pursuant to the provisions and subject to the limitations of this Agreement, only for the Work performed by
Contractor up to and including the date of termination, plus the amount of the Contractors fee earned pursuant to the terms
of this Agreement as of the date of termination, all as determined by calculating that portion of the Contract Sum due to
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Contractor pursuant to this Agreement based on the stage of completion achieved by Contractor (overall and in each
category of the Work, as applicable) as of the date of termination. Further, in such event, Contractor shall be entitled to
reimbursement for the actual cost of materials ordered prior to the date of termination by Contractor, for use in connection
with the Work, and necessary for the reasonable discharge of the Contractor's responsibilities under this Agreement, or, if
applicable, cancellation charges forsuch materials and/orthe disconfinuation of rental equipment that is being rented from
third -parties unaffiliated with the Contractor, to the extent such materials and/or rental equipment cannot be discontinued
by the Contractor without cost or penalty upon notice of termination. Except and only for costs associated with those specific
materials and rental equipment covered by the preceding sentence, the Omer will not be responsible, however, to
reimburse the Contractor for any continuing contractual commitments to Subcontractors or penalties or damages for
canceling such contractual commitments, and no compensation shall be allowed to Contractor or its Subcontractors for
anticipated or lost profit, unperformed services or intangibles.
2. The Omer may, with or without cause, suspend the Work for such period of time (not to exceed one (1) year in any one (1)
instance) as the Omer may desire. Such period of suspension shall continue until terminated by the Omer by further
written notice to the Contractor. The Contractor shall have the right to request in writing that the Omer terminate this
Agreement after one (1) year if the total Work remains suspended for that duration. If any ppriJod of suspension ordered by
Omer pursuant to this paragraph exceeds thirty (30) consecutive days, the Contractor may remove any of Contractor's
personnel from the Project. In the event the Owner shall terminate the period of suspension after the Contractor has
removed any of Contractor's personnel from the Project pursuant to this paragraph, such personnel, to the extent reasonably
possible, shall be replaced with personnel of similar training and experience acceptable to the Owner. No action taken by
the Omer hereunder shall affect any of the other rights or remedies of the Omer contained in this Agreement. An
adjustment shall be made for increases in the cost of performance of the Work, including profit on the increased cost of
performance, caused by any suspension ordered by the Owner pursuant to this paragraph which lasts more than thirty (30)
consecutive days. However, no adjustment shall be made to the extent that performance is, was or would have been so
suspended, delayed or interrupted by another cause for which the Contractor is responsible, or an equitable adjustment is
made or denied under another provision of this Agreement.
3. The Omer may terminate this Agreement with cause because of the negligence, errors, omissions or breach of contract of
the Contractor, its Subcontractors and any other persons or entities for whom the Contractor may be liable pursuant to the
terms of this Agreement or any circumstance in which the Contractor is insolvent or bankrupt or is otherwise unable to pay
debts as they become due. A termination by the Owner for muse must specify the cause involved and will be effective
seven (7) days after receipt of the Owner's notice of intent to terminate unless it is not reasonably possible to correct the
Cited cause within such seven (7) day period, in which event the termination will not be effective if the Contractor has
commenced the correction of the cited muse within the seven (7) day period and thereafter continues to diligently pursue
such correction to completion within a reasonable time period after receipt of the Owners notice of intent to terminate (which
time period shall not exceed fourteen (14) days from the Owner's initial notice of termination), provided, however, that if the
Contractor falls to commence andfor continue and/or complete the correction of the cited cause within such time periods,
then the termination shall become effective immediately upon such failure. In the event the Owner terminates this
Agreement for cause, the Contractor shall be liable to the Omer for all costs and damages incurred by the Omer as a
result of the termination and/or the Contractors acts, omissions, fault, negligence, errors or breach of contract (including
attorneys' fees and court costs, the costs of completing the Contractor's Work as required by this Agreement and/or the
Contract Documents, and the cost of any additional services required of the Architect as a result of the Contractor's fault or
breach). After all such damages have been paid, the Contractor shall be entitled to the amount, if any, remaining due to
the Contractor (after deducting such damages) for any Work performed by the Contractor up to and including the date of
such termination (as determined by calculating that portion of the Contract Sum due to Contractor pursuant to this
Agreement based on the stage of completion achieved by Contractor. overall and in each category of the Work as applicable,
as of the date of termination). If such costs exceed the unpaid balance due to the Contractor, the Contractor shall be liable
to the Owner for the difference. A termination by Owner for cause which is later determined to be wrongful shall be
considered a termination without muse pursuant to this Article 14 below.
4. The Owner may also terminate this Agreement without cause, upon seven (7) days'written notice to the Contractor. In the
event the Omer terminates this Agreement without cause, the Contractor shall be entitled to compensation, pursuant to
the provisions of and subject to the limitations set forth in this Agreement, only for the Work performed by the Contractor
and accepted by the Omer, up to and including the date of termination. plus the amount of the Contractor's fee earned
pursuant to the terms of this Agreement as of the date of termination, all as determined by calculating that portion of the
Contract Sum due to Contractor pursuant to this Agreement based on the stage of completion achieved by the Contractor
(overall and in each category of the Work, as applicable) as of the date of termination. Further, in the event the Omer so
terminates this Agreement, the Owner agrees to pay for the actual cost of materials ordered prior to the date of termination
by the Contractor, for use in connection with the Work and necessary for the reasonable discharge of the Contractor's
responsibilities under this Agreement, or, if applicable, cancellation charges for such materials and/or the disconfinuation of
rental equipment that is being rented from third -parties unaffiliated with the Contractor , to the extent such materials andfor
rental equipment cannot be discontinued by the Contractor without cost or penalty upon notice of termination. Except and
only for costs associated with those specific materials and rental equipment covered by the preceding sentence, the Owner
will not be responsible, however, to reimburse the Contractor for any continuing contractual commitments to Subcontractors
or materialmen or penalties or damages for canceling such contractual commitments, and no compensation shall be allowed
to Contractor or any Subcontractors for anticipated or lost profit, unperformed services or intangibles.
5. If this Agreement is terminated pursuant to any of the foregoing provisions of this Article 14, then the Contractor shall (a)
execute and deliver all such papers and take all such steps including the legal assignment of its contractual rights as the
Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Contractor under such
obligations and commitments and (b) account for and turn over to the Owner all Drawings and Specifications,
correspondence, details, Shop Drawings, Samples and Product Data and such other Contract Documents, records and
materials relating to the Project. Compliance by the Contractor with the foregoing shall be a condition precedent to the
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Contractor's right to receive payment for termination in accordance with Article 14. No termination by the Owner under this
Article 14 (whetherwith or without cause) shall constitute a waiver or release of any claims by the Owner relating to events,
circumstances or breaches arising prior to such terrrdnaflon, nor shall such termination affect any of the other rights or
remedies of the Owner granted by this Agreement or by law, or relieve the Contractor from any consequences or liabilities
arising from the Contractor's acts, omissions or deficiencies In connection with the Work or this Agreement. Neither the
right of the Omer to.terminate as provided in this Article 14 nor the agreement on the part of the Owner to pay any cost of
the Work (for which Omer would not otherwise be obligated) incurred by reason of events within the control of the
Contractor (including the negligent and/or willful act and/or omission of and/or default by any separate contractor employed
directly by the Contractor) or incurred by reason of a default by the Contractor In the performance of its obligations hereunder
shall impair or limit any rights. remedies andfor claims of the Owner to which the Owner may be entitled by reason of any
such occurrence or default. Payment by the Owner to the Contractor of any monles pursuant to this Article 14 shall not
constitute a waiver of any remedies which the Owner may otherwise have against the Contractor for any failure of the
Contractor to perform In accordance with this Agreement.
6. The Contractor's sole remedy for any termination of this Agreement shall be the compensation allowed by the applicable
provisions of this Article 14 above. Any termination by the Owner for cause that Is later determined to be unjustified shall
be treated as a termination without came pursuant to this Article 14. In any such event the Contractor's sole and exclusive
rights and remedies for any termination shall be limited to those set forth in this Article 14 above, and the Contractor shall
be entitled to no additional compensation and shall have no additional or other rights of any kind, type or nature arising out
of or under this Agreement by virlue of such termination.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
OWNER:
Beach Club Property Owners' Association, Inc.
Da.uSigned by
By:
%.—B06DFC4MFE64F8 Mark Dunham
Authorized Representative
DocuSlgned by.
By.
UIALUAM7 In, ath Kane-Hanan
Executive Vice President
CONTRACTOR:
Blue Coast Construction
By:
Printed Name:
Title. ;
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.Docuftn Envelope ID: 4FFIAA4C-2C78-4CD7-ADDB-39417CF5D316 Exhib[tA-2
Blue Coast Construction
Estimated Costf or Balconies Restoration Project
QTY
Units
Unit Price
Total Cost
Edge Spells (d=S", w--Y')
6
LF
$
130.00
$
780.FO
Partial Dark (half slab)
-SF
$.
75.00
-$
26.250.00
Thru Deck
300
SF
$
90.00
$
27,600.bo
Ceiling Spalls �half Slab)
140
SIF
$
95:00
$
13,300.00
Columns& Beams
130
CIF
$
300.00
$
39,000.00
Concrete Railing Wall Repairs
0-
LF
$
50.00
$
-
Concrete Rust Spots (cut back steel reinforcement)
100
EA
$
30.00
$
3,000.00
Epoxy Gravity Feed (slab cracks)
500
IF
$
20.00
$
-10,000.00
Stucco Repair
300
SF-
$,-
18.00'
$
5,400.00
SGD - R&R Deteriorated,Caulking
0
LF
$
- 6:00
$
--
Sliding Glass Door R & R
4
EA
$
750.00
$
3,000.00
Oust Wall
48
LF
-$
50.00
$
-2,400.00
Miscellanuous Paint
1000
SF
$
2.25
$
2,250.00
Concretef Waterproofing
132,380.60
Mobilizations I Demobilization f Perrnits
1
LS
18,500.00
$
18,500.00
Total
18,500.00
General Conditions
$
10.60 . 00
General Conditions Total
$
0.00
10,50q
TOTALPROJECT
$
261,38
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