ST0502B-CS150217DEVELOPMENT MANAGEMENT AGREEMENT
(Freeport Extension Grading)
This DEVELOPMENT MANAGEMENT AGREEMENT ("Agreement") is made by
and between the City of Coppell, a Texas home rule municipality ( "City"), and Prologis
Logistics Services Incorporated, a Delaware corporation ("Company"), acting by and through
their respective authorized officers.
WITNESSETH:
WHEREAS, City owns the real property described in Exhibit "A" (the "Land"); and
WHEREAS, Company and City have mutually determined that it would promote their
respective interests if Company completed the required grading for the Freeport Parkway
extension from Sandy Lake Road to Highway 121 Frontage Road; and
WHEREAS, Company has agreed to complete mass grading as shown on Exhibit "B"
attached hereto ("Grading Plans") in accordance with the terms and conditions set forth herein;
and
WHEREAS, City has funds through the Regional Toll Revenue Funds and Capital
Improvement Projects.
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
Article I
Term
The term of this Agreement shall begin on the last date of execution hereof by both City
and Company ('Effective Date") and continue until the Expiration Date, unless sooner
terminated as provided herein.
Article II
Definitions
Wherever used in this Agreement, the following terms shall have the meanings ascribed
to them:
"City" shall mean the City of Coppell, Texas acting by and through its City Manager, or
designee.
"City Engineer" shall be Teague Nall & Perkins, which has been retained by and shall be
the responsibility of the City.
"Commencement of Construction" shall mean that date which is the later of (a) ten (10)
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business days after Company has received all necessary permits for construction of the Project
pursuant to the Grading Plans and (b) ten (10) business days after the Contract Award (defined
below) and execution of the Construction Contract.
"Company" shall mean Prologis Logistics Services Incorporated, a Delaware corporation,
and its permitted successors and assigns.
"Company Adjacent Land" shall mean that certain real property owned by the Company
and located adjacent to the Land, as generally depicted on Exhibit "C" attached hereto and
incorporated herein by this reference.
"Completion of Construction" shall mean that the grade elevations within the Land have
been constructed by Company consistent with the Grading Plans (to within 1/10 foot in paving
areas and 3/10 foot in grass areas deviations), as evidenced by an updated topographical survey
certifying the grades prepared by Company's consultant and paid for by City as part of the
Construction Cost.
"Construction Cost" shall mean the total third party costs and expenses incurred by
Company for the completion of the Project, including without limitation, all costs of grading,
staking, topographic and other surveying costs, equipment rentals, and other related costs and
expenses, subject to adjustment as provided in Section 3.4 hereof.
"Effective Date" shall mean the last date of execution hereof by each Party.
"Event of Bankruptcy or Insolvency" shall mean the dissolution or termination of a
Party's existence as an on-going business, insolvency, or appointment of a receiver for any
significant part of such Party's property and such appointment is not terminated within ninety
(90) days after such appointment is initially made, any general assignment for the benefit of
creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws by
or against such Party and such proceeding is not dismissed within ninety (90) days after the
filing thereof.
"Expiration Date" shall mean the date that all Parties have fully satisfied their respective
obligations herein.
"Force Majeure" means any contingency or cause beyond the reasonable control of a
Party including, without limitation, acts of God or the public enemy, war, terrorism, riot, civil
commotion, insurrection, criminal acts by unrelated third parties, government or de facto
governmental action or delays (unless caused by acts or omissions of the Party), adverse
weather, fires, explosions, floods, strikes, slowdowns or work stoppages, provided, however, that
Force Majeure shall not include a Party's inability to pay its obligations hereunder.
"Grading Plans" shall mean the mass grading plans for the Land generally depicted and
described on Exhibit "B" attached hereto. Such Grading Plans were prepared and approved by
City prior to the date hereof.
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"Impositions" shall mean all taxes, assessments, use and occupancy taxes, charges,
excises, license and permit fees, and other charges by public or governmental authority, general
and special, ordinary and extraordinary, foreseen and unforeseen, which are or may be assessed,
charged, levied, or imposed by any public or governmental authority on Company.
"Land" shall mean the real property owned by City and described in Exhibit "A" attached
hereto and incorporated herein by this reference.
"Material Breach" shall mean a breach of a material term or condition of this Agreement
including specifically the following: (i) failure to construct the Project substantially in
accordance with the Grading Plans; (ii) failure to timely cause Commencement of Construction
or Completion of Construction of the Project, subject, however, to Force Majeure events; and
(iii) failure of City to timely pay any or all of the Construction Cost to Company for the
Company Project in accordance with the terms of this Agreement.
"Party" or "Parties" shall mean City and/or Company, individually or jointly, as
applicable.
"Project" shall mean the mass grading of the Land as generally depicted and described on
Exhibit "B", and generally consisting of the mass grading of the subgrade to elevation +/- 1/10'
in the paving area and +/- 3/10' on grass area as shown on the Grading Plan. Lime stabilization,
soil treatment and/or compaction is to be provided by others retained by City and are not
considered part of the Project, and shall not be condition to payment of the Construction Cost.
Article III
Project
3.1 Proiect Payment. For adequate consideration, the receipt and sufficiency of
which are hereby acknowledged, Company agrees to complete the Project and City agrees to pay
Company the Construction Cost not later than five (5) business days after Completion of
Construction, upon and subject to the terms, provisions and conditions hereinafter set forth in
this Agreement.
3.2 Plans. City has, at its sole costs, caused the Grading Plans to be prepared for the
Project. The Grading Plans have been approved prior to the Effective Date by all applicable
governmental authorities with jurisdiction. Company shall have no responsibility or liability
with respect to the Grading Plans' compliance with applicable laws or otherwise.
3.3 Biddin .
(a) Solicitation of Bids. Company shall, within the later of: (i) five (5) days
after the Effective Date; and (ii) final approval of the Grading Plans, cause a bid package,
including the plans and specifications for the Project, to be prepared to be sent out to
prospective bidders for the performance of the grading work for the Project, and which
will be sent out after approval from the City Engineer as described below. Company
shall provide a copy of the proposed bid package and a list of the companies from which
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bids will be solicited to the City Engineer for approval. The bid package shall include
the final Grading Plans prepared by City. The City Engineer shall have a period of five
(5) business days to reasonably approve such bid package (the "Bid Package Approval
Period"). The City Engineer shall be deemed to have approved the submitted bid
package unless it has provided written notice to Company to the contrary prior to the
expiration of the Bid Package Approval Period. If the City Engineer has reasonable
objections to the bid package, the City Engineer shall note such objections in writing and
the Company shall cause the bid package to be revised to address such objections and re-
submit the bid package to the City Engineer for approval (subject to the same Bid
Package Approval Period). This process shall continue until the City Engineer has
approved (or is deemed to have approved) the bid package or either Party has
determined, acting in good faith, that the City Engineer's objections cannot be addressed,
in which case, either Party may, by written notice to the other, terminate this Agreement.
Once the bid package is approved by the City Engineer, the Company shall solicit at least
three (3) competitive bids and/or competitive sealed proposals for the construction of the
Project for the review and approval by the City Engineer. If Company intends to contract
with the same General Contractor to perform grading work on the Company Adjacent
Land, the amount of the Construction Costs for the work to be performed on the Land
shall be separately identified in the Bid Package.
(b) Bid Review. Company shall provide a copy of the bids to the City Engineer
for approval along with notification of the bid which Company wishes to accept (the
"Recommended Bid"). The City Engineer shall have a period of three (3) business days
to approve or reject the Recommended Bid (the "Bid Approval Period"), provided that
such rejection is allowed only if the Recommended Bid does not materially comply with
the bid requirements in the bid package or if the City Engineer has concerns, supported
with reasonable evidence, regarding the bidder's ability to timely complete the Project.
The City Engineer shall be deemed to have approved the Recommended Bid unless it has
provided written notice to Company to the contrary prior to the expiration of the Bid
Approval Period. If the City Engineer has objections to the Recommended Bid, the City
Engineer shall note such objections in writing with sufficient specificity and Company
and the City Engineer shall meet as promptly as possible thereafter to review and discuss
all bids. Company may, after such meeting, ask the bidders to revise their bids and re-
submit bids to Company for approval. This process shall continue until the City
Engineer has approved (or deemed to have approved) a Recommended Bid.
(c) Bid Award. Once a Recommended Bid has been approved (or deemed to
have been approved) by the Parties, Company shall award the construction contract(s)
(the "Contract Award") to the approved bidder (hereinafter, the "General Contractor").
Company shall enter into a construction contract ("Construction Contract") for the
Project with the approved bidder promptly thereafter (but not later than ten (10) business
days after the Contract Award) for the construction of the grading portion of the Project,
which construction contract shall be on Company's standard form attached hereto as
Exhibit "D."
3.4 Construction Cost. City shall pay Company the Construction Cost not later than
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five (5) business days following Completion of Construction of the Project. The Construction
Cost shall be evidenced by invoices received by and/or other payments made by Company for
the materials supplied and for labor services performed for the various components of the
Project. As a condition to City's obligation to pay the Construction Cost, City shall have
received the following:
(i) an affidavit from the General Contractor that has furnished labor and/or materials
in connection with the grading work of the Project that such materials and labor
and any suppliers and/or sub-contractor(s) have been paid for such work, in a
form reasonably acceptable to City or such other form as is required in the State
of Texas; and.
(ii) An assignment by Company of all warranties for the Project from the General
Contractor utilized in the construction of the Project.
3.5 Construction of Proiect.
(a) Commencement and Completion of Construction of Project.
Company agrees, subject to events of Force Majeure, to cause Commencement of
Construction of the Project to occur on or before fifteen (15) days after the Contract
Award and execution of the construction contract and, subject to weather delays
constituting Force Majeure, to cause Completion of Construction of the Project to occur
not later than sixty (60) calendar days thereafter.
(b) Completion of Construction. Company will use good faith efforts
to provide at least five (5) days prior written notice to City of the date that Company
reasonably expects to achieve Completion of Construction for the Project. Upon receipt
of written notification from Company that Completion of Construction for the Project is
achieved, City may make a walk-through inspection of the Project. At City's written
request, a representative of Company and/or General Contractor will accompany the City
Engineer on the walk-through inspection.
(c) Construction Meetings. Company agrees to meet with City
representatives at least once per month (if the duration of the Project extends beyond one
month) to jointly review the progress of construction of the Project and to discuss any
other matters pertaining to the construction of the Project. Company will keep City
reasonably informed as to the progress of the Project. Furthermore, Company will allow
the City Engineer to inspect the Project at any time during business hours so long as such
inspection does not materially delay the completion of the Project.
3.6 General Requirements for Design and Construction.
(a) Compliance of Plans. The Project shall be designed and constructed in
accordance with the Grading Plans. In the event the Project is completed in accordance
with the Grading Plans, Company shall have no liability for design defects because the
Grading Plans have been prepared and approved by City. City shall comply with all local
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and state laws and regulations regarding the design of the Project. Company shall cause
all necessary permits and approvals required by the City and any applicable
governmental authorities to be issued for the construction of the Project.
Notwithstanding the foregoing, City agrees to waive all applicable permit fees associated
with the Project and associated with Company's grading of Company's Adjacent Land, as
part of the consideration for Company's completion of the Project.
(b) Compliance of Laws. Company shall comply with all local and state
laws and regulations regarding the construction of the Project. Upon Completion of
Construction of the Project, Company shall provide City with a final cost summary of all
costs associated with the construction of the Project, and provide proof that all amounts
owing to contractors and subcontractors have been paid in full as evidenced by the
customary affidavits executed by the General Contractor.
(c) Payment and Performance Bonds. Prior to commencement of
construction of the Project, Company shall require the General Contractor to obtain
payment and performance bonds relating to the construction of the portion of the Project
on the Land which bonds shall be executed with a corporate surety in accordance with
Chapter 2253, Texas Government Code. The amount of such payment and performance
bonds shall be equivalent to that portion_ of the Construction Costs related to the
construction of the portion of the Project on the Land by the General Contractor and shall
be on a form approved by City's City Attorney.
(d) NCTCOG Standards. Except as otherwise provided in this Agreement,
the design by City and construction by Company of the Project, respectively, shall be in
accordance with the Standard Specifications for Public Works Constructions published
by the North Central Texas Council of Governments, as amended, and as modified by
City, and to the extent applicable are hereby incorporated by reference.
(e) Franchise Utilities. Company and City acknowledge and agree there are
no franchise utilities that need to be relocated or constructed as part of the Project.
3.7 Additional Agreements.
(a) Quality of Work. Company agrees to cause the Project to be constructed
in a diligent, good and workmanlike manner, in substantial and material compliance with
the Grading Plans and the work shall be performed in compliance with all applicable
construction ordinances and laws.
(b) Use of Surplus Fill. City agrees that any cut or excess grading materials
generated from the completion of the Project may be used by Company on Company's
Adjacent Land without cost to Company. The Parties acknowledge and agree that
Company's use of such cut or excess materials for Company's Adjacent Land shall be
consideration to Company for its performance of this Agreement, in addition to the
Construction Cost.
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3.8 Indemnification by General Contractor. COMPANY SHALL CAUSE THE
GENERAL CONTRACTOR TO INDEMNIFY, DEFEND, HOLD HARMLESS CITY AND
COMPANY USING COMPANY'S STANDARD FORM OF CONSTRUCTION CONTRACT,
THE FORM OF WHICH IS ATTACHED HERETO AS EXHIBIT "D". THE PROVISIONS OF
THIS INDEMNIFICATION ARE SOLELY FOR THE BENEFIT OF THE PARTIES AND NOT
INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE,
TO ANY OTHER PERSON OR ENTITY.
3.9 Insurance. Prior to the issuance of a notice to proceed to commence any work
on the Land and, thereafter, throughout the term of this Agreement, Company shall cause its
General Contractor to purchase and maintain in full force and effect, the insurance required
pursuant to Company's standard form of Construction Contract.
(a) All insurance and certificate(s) of insurance shall contain the following
provisions: (1) name the City and Company as additional insureds as to all applicable
coverage, with the exception of Workers Compensation Insurance; (2) provide for at least
ten (10) days prior written notice to City for cancellation, or non -renewal; (3) provide for
a waiver of subrogation against City for injuries, including death, property damage, or
any other loss to the extent the same is covered by the proceeds of insurance.
(b) A certificate of insurance evidencing the required insurance shall be
submitted to the City prior to Commencement of Construction.
3.10 License. City shall be responsible for the acquisition of such easements and
right-of-way as are necessary for the Project that are constructed off-site of the Land. City
hereby grants to Company a temporary license to occupy and use the Land and such off-site
areas for purposes of completing the Project.
3.11 Waiver of Fees and Charges.
(a) Permit and Inspection Fees. City agrees to waive all permit fees,
inspection fees and similar charges and fees with respect to the Project and with respect
to the grading performed by Company on Company's Adjacent Land.
Article IV
Termination
4.1 Manner of Termination. This Agreement may be terminated upon any one or
more of the following events:
(a) upon mutual written agreement of the parties;
(b) upon the Expiration Date;
(c) by either Party, if the other Party has committed a Material Breach of this
Agreement and such Material Breach is not cured within sixty (60) days after
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written notice thereof; provided that if the Material Breach cannot reasonably be
cured within a sixty (60) day period and the defaulting Party has diligently
pursued such remedies as shall be reasonably necessary to cure the default, then
the non -defaulting Party shall extend the period in which the default must be
cured for an additional sixty (60) days; and
(d) by City, if Company suffers an Event of Bankruptcy or Insolvency.
4.2 City Remedies. In the event this Agreement is terminated by City pursuant to
Section 4.1(c) or (d), City may seek specific performance, and/or actual damages incurred as a
result of such uncured default by Company. In addition, in the event this Agreement is
terminated by City pursuant to Section 4.1(c) or (d), City shall pay to Company all amounts of
the Construction Cost incurred by Company prior to the date of such termination, subject,
however, to a right to withhold a reasonable estimate of the costs to cure such Material Breach,
until such Material Breach has been cured, at which time, City shall pay Company for any
amounts of such withholding which were not incurred by City to cure the Material Breach.
4.3 Company Remedies. In the event this Agreement is terminated by Company
pursuant to Section 4.1(c), Company may seek specific performance or actual damages incurred
as a result of such uncured default by City.
Article V
Miscellaneous
5.1 Binding Agreement; Assignment. The terms and conditions of this Agreement
are binding upon the successors and permitted assigns of the Parties. This Agreement may not
be assigned by Company without the prior written consent of City's City Manager.
5.2 Limitation on Liability. Company and City, in satisfying the conditions of this
Agreement, have acted independently, and assume no responsibilities or liabilities to third parties
in connection with these actions.
5.3 No Joint Venture. This Agreement is not intended to, and shall not be deemed to
create, a partnership or joint venture between the Parties.
5.4 Authorization. Each Party represents that it has full capacity and authority to
grant all rights and assume all obligations that are granted and assumed under this Agreement.
5.5 Notice. Any notice required or permitted to be delivered hereunder shall be
deemed received (i) three (3) days after deposit into the United States Mail, postage prepaid,
certified mail, return receipt requested, addressed to the Party at the address set forth below or
(ii) on the day actually received if sent by courier, email or otherwise hand delivered.
If intended for City, to:
Attn: City Manager
City of Coppell, Texas
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P.O. Box 9478
Coppell, Texas 75019
Email:
With a copy to:
Robert E. Hager
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Ross Tower
500 North Akard
Dallas, Texas 75201
Email:
If intended for Company, to:
Prologis Logistics Services Incorporated
Attn: Jim McGill, Managing Director
6250 North River Road, Suite 1100
Rosemont, Illinois 60018
Email: jmcgill@prologis.com
With a copy to:
Prologis, L.P.
Attn: Anne LaPlace
4545 Airport Way
Denver, Colorado 80239
Email: alaplace@prologis.com
Any Party shall have the right to change its address for notice by sending notice of change of
address to each other Party, in the manner described above.
5.6 Entire Agreement. This Agreement is the entire agreement between the Parties
with respect to the subject matter covered in this Agreement. There is no other collateral oral or
written Agreement among the Parties that in any manner relates to the subject matter of this
Agreement, except as provided or referred to in this Agreement or as provided in any Exhibits
attached hereto.
5.7 Governing Law. This Agreement shall be governed by the laws of the State of
Texas; and venue for any action concerning this Agreement shall be in the State District Court of
Dallas County, Texas. The Parties agree to submit to the personal and subject matter jurisdiction
of said court.
5.8 Amendment. This Agreement may only be, amended by a written agreement
executed by both Parties.
5.9 Legal Construction. In the event any one or more of the provisions contained in
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this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the
intention of the Parties that in lieu of each provision that is found to be illegal, invalid, or
unenforceable, a provision shall be added to this Agreement which is legal, valid and enforceable
and is as similar in terms as possible to the provision found to be illegal, invalid or
unenforceable.
5.10 Recitals. The recitals to this Agreement are incorporated herein.
5.11 Counterparts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute
one and the same instrument.
5.12 Exhibits. The exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
5.13 Survival of Covenants. The covenants, and obligations of the Parties, as well as
any rights and benefits of the Parties, under this Agreement shall survive termination to the
extent set forth herein.
5.14 Covenants and Representations. Company represents, warrants and covenants
that it has the authority to: (i) enter into this Agreement and to execute and deliver this
Agreement and (ii) perform and comply with all of the terms, covenants and conditions to be
performed and complied with by Company hereunder. City represents warrants and covenants
that it has the authority to: (i) enter into this Agreement and to execute and deliver this
Agreement; (ii) perform and comply with all of the terms, covenants and conditions to be
performed and complied with by City hereunder; and (iii) if the City Engineer approves the
Contract Award, City has sufficient funds reasonably available to pay the Construction Cost.
5.15 Time for Performance. Time is of the essence in the performance of each
Party's obligations hereunder.
5.16 Force Majeure. Whenever a period of time is herein prescribed for action to be
taken by City or Company (other than payment of money), City or Company shall not be liable
or responsible for, and there shall be excluded from the computation for any such period of
time, any delays due to Force Majeure.
[Signatures Appear on the Following Page]
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EXECUTED in duplicate originals this the t 1 day of, February, 2015.
City of Coppell, Texas
By:_
Clay hil ips, City Manager
Attest:
Christel Pettinos, City Secretary
EXECUTED in duplicate originals this day of February, 2015.
PROLOGIS LOGISTICS SERVICES INCORPORATED,
a Delaware i wfion
Director
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EXHIBIT "A"
DESCRIPTION OF LAND
TRACT I
BEING a 3.87 acres tract of land situated in the John E., Holland Survey, Abstract Number 614,
City of Coppell, Dallas County, Texas, being part of that tract of land described in deed to
William F. Cailejo, Trustee, as recorded in 'Volume 80004, Page 1835 of the Deed Records of
Dallas County, Texas (D.R.D,C.T.), (hereinafter referred to as "Callejo tract"), and being part of
that tract of land described in deed to Adelfa B. Callejo, Trustee, as recorded in Instrument
Number 200900129629 of the Official Public Records of Dallas County Texas (O.P.R.D.C.T.)
and being more particularly described by metes and bounds as follows:
COMMENCING at a found mag nail for the northeast corner of Lot 1, Block 1 of Coppell Trade
Center, an addition to the City of Coppell, as recorded in Instrument Number 200600078283,
O.P.R.D.C.T. and an "ell" corner of said Callejo tract;
THENCE South 89 degrees 34 minutes 55 seconds West, with the common north line of said Lot
I and a southerly line of said Callejo tract, a distance of 6.08 feet to a 1/2 -inch set iron rod with
yellow plastic cap stamped "HALF'1 " (hereinafter referred to as "with cap") for the POINT OF
BEGINNING of the tract of land herein described tract;
THENCE South 89 degrees 34 minutes 55 seconds West, continuing with said common line, a
distance of 133.83 feet to a 1/2 -inch set iron rod with cap for corner;
THENCE North 35 degrees 08 minutes 17 seconds West, departing said common line and over
and across said Callejo tract, a distance of 261.97 feet to a 1/2 -inch set iron rod with cap for
corner, said corner being the point of curvature of a tangent circular curve to the left having a
radius of 1,145,00 feet, chord that bears North 45 degrees 36 minutes 49 seconds West, a
distance of 416.36 feet;
THENCE Northwesterly, continuing over and across said Callejo tract and with said curve,
through a central angle of 20 degrees 57 minutes 05 seconds, an arc distance of 418.69 feet to a
1/2 -inch set iron rod with cap for corner;
THENCE North 56 degrees 59 minutes 50 seconds West, continuing over and across said Callejo
tract, a distance of 523.90 feet to a 1/2 -inch set iron rod with cap for corner, said corner being the
point of curvature of a non -tangent circular curve to the right having a radius of 1,261.50 feet,
chord that bears North 52 degrees 07 minutes 24 seconds West, a distance of 183.19 feet;
THENCE Northwesterly, continuing over and across said Callejo tract and with said curve,
through a central angle of 08 degrees 19 minutes 40 seconds, an arc distance of 183.35 feet to a
1/2 -inch set iron rod with cap for corner, said corner being on the south line of that tract of land
described as Parcel 14A in deed to State of Texas, as recorded in Instrument Number
201200052832, O.P,R.D.C.T,, said corner also being on the southeast right-of-way line of State
Highwav 121 to variable width richt-of way)
Page 11 Exhibit "A" to Development Management Agreement (Freeport Parkway Grading)
THENCE North 43 degrees 04 minutes 04 seconds East, continuing over and across said Callejo
tract, and with the south line of said Parcel 14A, with the south line of that tract of land described
as Parcel 14B in deed to State of Texas, as recorded in Instrument Number 201200051070,
O.P.R.D.C.T., with the south line of that tract of land described as Parcel 14C in deed to State of
Texas, as recorded in Instrument Number 201200052841, O.P.R.D.C.T. and with said southeast
right-of-way line of State Highway 121, a distance of 137.02 feet to a 1/2 -inch set iron rod with
cap for corner, said corner being the point of curvature of a non -tangent circular curve to the Ieft
having a radius of 1,124.50 feet, chord that bears South 52 degrees 11 minutes 09 seconds East, a
distance of 160.85 feet;
THENCE Southeasterly, departing said south line of Parcel 14C and said southeast right-of-way
line of State Highway 121, and with said curve and over and across said Callejo tract, through a
central angle of 08 degrees 12 minutes 09 seconds, an are distance of 160.99 feet to a 1/2 -inch
set iron rod with cap for the point of tangency;
THENCE South 56 degrees 17 minutes 14 seconds East, continuing over and across said Callejo
tract, a distance of 89.18 feet to a 1/2 -inch set iron rod with cap for corner, said corner being the
point of curvature of a tangent circular curve to the right having a radius of 310.50 feet, chord
that bears South 50 degrees 40 minutes 19 seconds East, a distance of 60.76 feet;
THENCE Southeasterly, continuing over and across said Callejo tract and with said curve,
through a central angle of 11 degrees 13 minutes 49 seconds, an are distance of 60.86 feet to a
1/2 -inch set iron rod with cap for corner, said corner being the point of reverse curvature of a
tangent circular curve to the left having a radius of 589.50 feet, chord that bears South 50
degrees 19 minutes 01 second East, a distance of 108.09 feet;
THENCE Southeasterly, continuing over and across said Callejo tract and with said curve,
through a central angle of 10 degrees 31 minutes 12 seconds, an are distance of 108.24 feet to a
1/2 -inch set iron rod with cap for the point of tangency;
THENCE South 55 degrees 34 minutes 37 seconds East, continuing over and across said Callejo
tract, a distance of 268.24 feet to a 1/2 -inch set iron rod with cap for corner, said corner being the
point of curvature of a tangent circular curve to the right having a radius of 1,255.00 feet, chord
that bears South 45 degrees 35 minutes 16 seconds East, a distance of 455.25 feet;
THENCE Southeasterly, continuing over and across said Callejo tract and with said curve,
through a central angle of 20 degrees 53 minutes 59 seconds, an are distance of 457.78 feet to a
1/2 -inch set iron rod with cap for the point of tangency;
THENCE South 35 degrees 08 minutes 17 seconds East, a distance of 338.20 feet to the POINT
OF BEGINNING AND CONTAINING 3.87 acres (168,388 square feet) of land, more or less.
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EXHIBIT "B"
DESCRIPTION OF GRADING PLANS
[ADD DESCRIPTION AND DEPICTION]
Page 11 Exhibit "B" to Development Management Agreement (Freeport Parkway Grading)
EXHIBIT "C"
COMPANY'S ADJACENT LAND
[TO BE PROVIDED]
Page 11 Exhibit "C" to Development Management Agreement (Freeport Parkway Grading)
EXHIBIT "D"
COMPANY'S STANDARD FORM OF CONSTRUCTION CONTRACT
Page 11 Exhibit "D" to Development Management Agreement (Freeport Parkway Grading)
Agreement Between
Owner and Contractor
where the basis of payment is a
STIPULATED SUM
AGREEMENT
made as of the day of in the year of Two Thousand
BETWEEN the Owner: Prologis, L.P.
(Name and address) [Insert Local Prologis, L.P. Office Street Address]
[Insert Local Prologis, L.P. Office City, State, Zip]
and the Contractor:
(Name and address)
The Project is:
(Name and location)
The Architect is:
(Name and address)
For Building and Land Development
Refer to Attachment 2 to Agreement Between Owner and Contractor. Exhibit A-1 for Insurance Requirements
Check applicable box below to indicate which party is procuring Builders Risk Insurance:
❑ Builders Risk: Owner Provided
❑ Builders Risk: Contractor Provided
For Capital Construction or Tenant Improvement Work (Check the applicable Scope of Work box)
❑ Structural and Roofing (roofing and any structural work involving columns, roof framing, load bearing walls and/or footings)
Refer to Attachment 2 to Agreement Between Owner and Contractor, Exhibit A-2 for Insurance Requirements
❑ Non -Structural (all work other than Structural and Roofing)
Refer to Attachment 2 to Agreement Between Owner and Contractor. Exhibit A-3 for Insurance Requirements
Subsidiaries & Affiliates: As used herein, "Prologis, L.P." shall mean Prologis, L.P., or such affiliate,
subsidiary or related party thereof, as applicable, which is the owner of the project, and its authorized
agents, affiliates and property managers.
The Owner and Contractor agree as set forth below:
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Form Date: October 17, 2014
ARTICLE 1
THE CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, the General Conditions attached as
Attachment 2 to Agreement Between Owner and Contractor (the "General Conditions"), and any
Supplementary and other Conditions and Attachments that may be attached hereto, Drawings,
Specifications, addenda issued prior to execution of this Agreement, other documents listed in
this Agreement and Modifications issued after execution of this Agreement; these form the
Contract, and are as fully a part of the Contract if attached to this Agreement or repeated herein.
The Contract represents the entire and integrated agreement between the parties hereto and
supersedes prior negotiations, representations or agreements, either written or oral. An
enumeration of the Contract Documents, other than Modifications, appears in Article 9.
ARTICLE 2
THE WORK OF THIS CONTRACT
The Contractor shall execute the entire Work described in the Contract Documents, except to
the extent specifically indicated in the Contract Documents to be the responsibility of others.
ARTICLE 3
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 The date of commencement is the date from which the Contract Time of Paragraph 3.2
is measured, and shall be the date which is zero days after receipt by Contractor of the
construction permit required to commence the Work and a notice to proceed from the Owner.
Within 5 days after commencement, unless the Work only encompasses tenant improvement
work, the Contractor shall cause to be recorded in the real property records of the State and
County in which the Project site is located (the 'Real Property Records") a Notice of
Commencement in the form attached as Attachment 3 to Agreement Between Owner and
Contractor, Exhibit A-1 hereto and shall within such time period deliver to the Owner a duplicate
copy of such Notice of Commencement, time stamped by the recorder evidencing acceptance
of same for recording, or other evidence confirming to the satisfaction of the Owner that the
Notice of Commencement has been placed of record in the Real Property Records.
3.2 The Contractor shall achieve Substantial Completion of the entire Work not later than
_ calendar days after the date of commencement, subject to adjustments of this Contract
Time as provided in the Contract Documents.
3.3 At such time as final completion of the Work has been achieved, and as a condition to
final payment hereunder, if a Notice of Commencement has been submitted or recorded, or if
otherwise requested by the Owner, the Contractor shall cause to be recorded in the Real
Property Records a Notice of Completion in the form attached as Attachment 3 to Agreement
Between Owner and Contractor, Exhibit A-2 hereto and shall deliver to the Owner a duplicate
copy of such Notice of Completion, time stamped by the recorder evidencing acceptance of
same for recording, or other evidence confirming to the satisfaction of the Owner that the Notice
of Completion has been placed of record in the Real Property Records.
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ARTICLE 4
CONTRACT SUM
4.1 The Owner shall pay the Contractor in current funds for the Contractor's performance of
the Contract the Contract Sum of Dollars ($ ), subject to
additions and deductions provided in the Contract Documents.
4.2 The Contract Sum is based upon the following alternates, if any, which are described in
the Contract Documents and are hereby accepted by the Owner:
(INSTRUCTIONAL NOTE TO BE DELETED WHEN PREPARING CONTRACT FOR EXECUTION.• State
the numbers or other identification of accepted alternates. The alternate schedule attached as Exhibit D can be
used as a form, to the extent applicable, for identifying alternates. If there are no alternates or if you choose to
incorporate the applicable portions of Exhibit D into this paragraph, then delete Exhibit D from the Agreement
before delivering to Contractor. If decisions on other alternates are to be made by the Owner subsequent to the
execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date
until which that amount is valid.)
4.3 Unit prices, if any, are as follows:
ARTICLE 5
PROGRESS PAYMENTS
5.1 Based upon Applications for Payment submitted to the Architect by the Contractor and
Certificates for Payment issued by the Architect, the Owner shall make progress payments on
account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract
Documents. The initial payment hereunder shall be conditioned upon the Contractor having
delivered to the Owner the items listed in Part A of Attachment 1 to Agreement Between Owner
and Contractor.
5.2 The period covered by each Application for Payment shall be one calendar month
ending on the last day of the month.
5.3 Provided an Application for Payment is received by the Architect, or by the Owner if
there is no Architect involved in the Project, by the twenty-fifth day of a month, the Owner shall
make payment to the Contractor not later than the twenty-fifth day of the following month. If an
Application for Payment is received by the Architect, or by the Owner if there is no Architect
involved in the Project, after the twenty-fifth day of the month, the Owner shall not be obligated
to make payment to the Contractor on such Application for Payment on the twenty-fifth day of
the following month, but rather shall make payment to the Contractor for such Application for
Payment on the twenty-fifth day of the next succeeding month.
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5.4 Each Application for Payment shall be based upon the schedule of values submitted by
the Contractor in accordance with the Contract Documents. The schedule of values shall
allocate the entire Contract Sum among the various portions of the Work and be prepared in
such form and supported by such data to substantiate its accuracy as the Architect may require.
This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the
Contractor's Applications for Payment.
5.5 Applications for Payment shall indicate the percentage of completion of each portion of
the Work as of the end of the period covered by the Application for Payment.
5.6 Subject to the provisions of the Contract Documents, the amount of each progress
payment shall be computed as follows:
5.6.1 Take that portion of the Contract Sum properly allocable to completed Work as
determined by multiplying the percentage completion of each portion of the Work by the share
of the total Contract Sum allocated to that portion of the Work in the schedule of values, less
retainage of ten percent (10%). Pending final determination of cost to the Owner of changes in
the Work, amounts not in the dispute may be included as provided in Subparagraph 7.3.7 of the
General Conditions even though the Contract Sum has not yet been adjusted by Change Order;
5.6.2 Add that portion of the Contract Sum properly allocable to materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the completed
construction (or, if approved in advance by the Owner, suitably stored off the site at a location
agreed upon in writing), less retainage of ten percent (10%);
5.6.3 Subtract the aggregate of previous payments made by the Owner; and
5.6.4 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for
Payment as provided in Paragraph 9.5 of the General Conditions.
5.7 The progress payment amount determined in accordance with Paragraph 5.6 shall be
further modified under the following circumstances:
5.7.1 Add, upon Substantial Completion of the Work, a sum sufficient to reduce the retainage
held by the Owner to the greater of 5% of the Contract Sum or 150% of the cost of completing
all punch list items and such amounts as the Architect shall determine for unsettled claims; and
5.7.2 Add, if final completion of the Work is thereafter materially delayed through no fault of
the Contractor, any additional amounts payable in accordance with Subparagraph 9.10.3 of the
General Conditions.
5.8 Reduction or limitation of retainage, if any, shall be as follows: Upon satisfaction of the
conditions to final payment, the retainage shall be released to the Contractor.
5.9 Notwithstanding anything to the contrary in the foregoing, payments in respect of each
Application for Payment shall be conditioned upon the Contractor's submitting with each such
Application a lien waiver in the form attached as Attachment 3 to Agreement Between Owner
and Contractor, Exhibit B, duly executed by the Contractor and acknowledged, covering the
amounts requested for payment to the Contractor in the current Application.
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ARTICLE 6
FINAL PAYMENT
Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the
Owner to the Contractor when (1) the Contract has been fully performed by the Contractor
except for the Contractor's responsibility to correct nonconforming Work as provided in
Subparagraph 12.2.2 of the General Conditions and to satisfy other requirements, if any, which
necessarily survive final payment; (2) a final Certificate for Payment has been issued by the
Architect; (3) Contractor has delivered the final lien waiver in the form attached as Attachment 3
to Agreement Between Owner and Contractor, Exhibit C, duly executed by the Contractor and
acknowledged, covering all work performed by Contractor including amounts requested in such
final Application, and lien waivers from each Material Subcontractor (as hereinafter defined),
duly executed by such Subcontractor and acknowledged, covering all work of the Material
Subcontractor, including the amount it is to receive from the payment to be made to the
Contractor pursuant to the final Application for Payment ("Material Subcontractor" means each
Subcontractor and material supplier (i) having a contract with the Contractor or any
Subcontractor or Sub -subcontractor equal to or greater than $10,000, or (ii) who has filed a
proper Notice to Owner, or equivalent document, if required in the applicable jurisdiction to
assert a lien); and (4) the Contractor has delivered the items or otherwise satisfied the
conditions listed in Part B of Attachment 1 to Agreement Between Owner and Contractor;
provided the other conditions to final payment have been satisfied, final payment shall be made
by the Owner not more than 30 days after the issuance of the Architect's final Certificate for
Payment.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Where reference is made in this Agreement to a provision of the General Conditions or
another Contract Document, the reference refers to that provision as amended or supplemented
by other provisions of the Contract Documents. The General Conditions set forth as Attachment
2 to Agreement Between Owner and Contractor are hereby incorporated into this Agreement.
7.2 Payments due and unpaid under the Contract shall bear interest from the date payment
is due at the rate of 10% per annum on the outstanding balance.
7.3 Other provisions:
7.3.1 Notices. All notices shall be in writing and delivered in accordance with the
requirements of the Agreement. All notices given under the Contract Documents shall be in
writing and shall be either (a) sent by certified mail, return receipt requested, in which case
notice shall be deemed delivered three business days after deposit, postage prepaid in the U.S.
Mail, (b) sent by overnight delivery using a nationally recognized overnight courier, in which
case it shall be deemed delivered one business day after deposit with such courier, or (c) sent
by personal delivery, addressed as follows:
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(a) If to the Owner:
Prologis, L.P.
Attn: (Insert Manager Name)
(Insert Manager Office Street Address)
(Insert Manager Office City, State, Zip)
Telephone: (Insert Manager Phone #)
E -Mail: (Insert Manager E -Mail Address)
with a copy to:
Prologis, L.P.
Attn: Greg Bauer
4545 Airport Way
Denver, CO 80239
Telephone: +1 303 567 5148
E -Mail: gbauer1(&-Proloais.com
(b) If to the Contractor:
(Insert Contractor Name)
Attn: (Insert Contractor Contact Name)
(Insert Contractor Street Address)
(Insert Contractor City, State, Zip)
Telephone: (Insert Contractor Phone #)
E -Mail: (Insert Contractor E -Mail Address)
(c) If to the Architect:
(Insert Architect Name)
Attn: (Insert Architect Contact Name)
(Insert Architect Street Address)
(Insert Architect City, State, Zip)
Telephone: (Insert Architect Phone #)
E -Mail: (Insert Architect's E -Mail Address)
or to such other address or addressee as any party entitled to receive notice hereunder shall
designate to all other parties in the manner provided herein for the service of notice.
7.3.2 Limitation of Liability. Notice is hereby given that neither the officers, owners, directors,
partners, shareholders, trustees, members nor employees of Owner assume any personal
liability for obligations entered into by or on behalf of Owner.
7.3.3 Build -to -Suit Transactions. In the event that the Project is being developed by the
Owner for a client of the Owner (a "Client") in connection with a build -to -suit lease or sale or
other transaction in which the Owner has agreed to arbitrate certain disputes between the
Owner and the Client, the Contractor agrees that the Owner may join the Contractor as a party
in interest in any arbitration between the Owner and such Client which involves an issue relating
to this Contract, the Work or any of the services to be provided by the Contractor hereunder
(such as a dispute involving the pricing of a Change Order or the determination of whether
Substantial Completion has occurred). Any such arbitration shall be resolved in accordance
with the Commercial Arbitration Rules of the American Arbitration Association, subject to the
requirement that a single arbitrator unaffiliated with any party shall decide the matter based
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upon the written statements submitted by each party. The Contractor consents to the
jurisdiction of any appropriate court to enforce this arbitration obligation and to enter judgment
upon the decision of the arbitrator, which decision shall be binding on the Contractor as well as
the Owner and its Client.
7.3.4 Hot Works Program. Contractor is solely responsible for maintaining and implementing
at the Property a "Hot Works Program" at no additional cost or charge to Prologis, L.P. to fully
protect against a loss resulting from work being performed that would include an open flame or
producing heat and/or sparks, including, without limitation, when welding, cutting, brazing,
grinding, soldering, or using a torch to thaw piping or heat material. The "Hot Works Program"
shall at the very least require at a minimum precautionary and safeguard checklists and proper
instruction on the implementation to monitor and safeguard the area where work is being
performed.
7.3.5 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY LAW, EACH PARTY HEREBY
WAIVES SUCH PARTY'S RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT OR THE PERFORMANCE
OF THE SERVICES. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY
EACH PARTY. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT
TO ENTER INTO THIS AGREEMENT.
ARTICLE 8
TERMINATION OR SUSPENSION
8.1 The Contract may be terminated by the Owner or the Contractor as provided in Article
14 of the General Conditions.
8.2 The Work may be suspended by the Owner as provided in Article 14 of the General
Conditions.
ARTICLE 9
ENUMERATION OF CONTRACT DOCUMENTS
9.1 The Contract Documents, except for Modifications issued after execution of this
Agreement, are enumerated as follows:
9.1.1 The Agreement is this executed Standard Form of Agreement Between Owner and
Contractor.
9.1.2 The General Conditions are the General Conditions of the Contract for Construction,
attached as Attachment 2 to Agreement Between Owner and Contractor.
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9.1.3 The Supplementary and other Conditions of the Contract are those in the Project Manual
dated . and are as follows:
Document Title Pages
9.1.4 The Specifications are those contained in the Project Manual dated as in Subparagraph
9.1.3, and are as follows:
(Either list the Specifications here or refer to an exhibit attached to this Agreement).
Section Title Pages
9.1.5 The Drawings are as follows, and are dated unless a different date is shown
below:
(Either list the Drawings here or refer to an exhibit attached to this Agreement.)
Number Title Date
9.1.6 The addenda, if any, are as follows:
Number Date Pages
ff:I
9.1.7 Other documents, if any, forming part of the Contract Documents are as follows:
(List here any additional documents which are intended to form part of the Contract Documents. The
General Conditions provide that bidding requirements such as advertisements or invitation to bid,
Instructions to Bidders, sample forms and the Contractor's bid are not part of the Contract Documents
unless enumerated in this Agreement. They should be listed here only if intended to be part of the Contract
Document. The Scope of Work should also be inserted here.)
[Signature Page and Attachments to Follow]
M
This Agreement is entered into as of the day and year first written above.
This Agreement, and any change orders, modifications, amendments, and/or addenda hereto,
may be executed in any number of counterparts, each of which shall be deemed to be an
original, and all of such counterparts shall constitute one Agreement. To facilitate such
execution, the parties may execute and exchange by email in PDF format counterparts of the
signature pages, which shall be deemed originals.
OWNER
PROLOGIS, L.P., a Delaware limited partnership
By: PROLOGIS, INC.,
a Maryland corporation, its general partner
{Insert Prologis, L.P. Street Address}
{Insert Prologis, L.P. Street City, State, zip}
By: By:
Name: Name:
Title: Title:
If execution authority policies require a second signature:
By:
Name:
Title:
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CONTRACTOR
{Insert Contractor Name}
{Insert Contractor Street Address}
{Insert Contractor City, State, Zip}
ATTACHMENT 1 TO AGREEMENT BETWEEN OWNER AND CONTRACTOR
Part A - Requirements for Initial Payment
Contractor's Qualification Statement - Updated to a current date.
2. Payment Bond (if requested by the Owner).
3. Performance Bond (if requested by the Owner).
4. Applicable Certificates of Insurance per Exhibits A-1, A-2, or A-3 to Attachment 2 to
the Agreement Between Owner and Contractor (Requirements further outlined in
detail in Article 11 of Attachment 2 to the Agreement Between Owner and
Contractor).
5. List of all Subcontractors and material suppliers, including addresses and
individuals to whom notices should be sent.
6. Schedule of Values.
7. Notice of Commencement (evidence of recording of same within 5 days of
commencement, if required by law, or requested by Owner).
8. Construction Permit (if required by law, or requested by Owner).
9. Project Schedule.
Part B - Requirements for Final Payment
Final Lien Waivers from Contractor in the form attached as Attachment 3 to
Agreement Between Owner and Contractor, Exhibit C, and final Lien Waivers
from Material Subcontractors (i.e., Subcontractors, Sub -subcontractors and
material suppliers having contracts equal to or greater than $10,000).
2. Notice of Completion (evidence of recording of same).
3. All Warranties and Guarantees required under Contract Documents - To be
electronic with one copy delivered to Architect and one to the Owner, unless
Owner requests otherwise.
4. All maintenance and operating manuals and instructions provided by
manufacturers or suppliers relating to materials, equipment or systems
installed within the Project (to be delivered in electronic format, unless Owner
requests otherwise).
5. As -Built Drawings and Specifications (to be delivered in electronic format,
unless Owner requests otherwise).
6. Final List of all Subcontractors, Sub -subcontractors and Material Suppliers (to
be delivered in electronic format, unless Owner requests otherwise).
7. If Bonds required - Consent of surety to final payment.
8. Assignment and/or transfer of all guarantees and warranties from
Subcontractors, vendors, suppliers and manufacturers.
9. A list of the names, addresses and phone numbers of all Subcontractors and
other persons providing guarantees and warranties.
10. An Affidavit from the Contractor that all payrolls, bills for materials and
equipment and other indebtedness connected with the Work for which the
Owner or Owner's property might be responsible or encumbered (less any
amounts withheld by the Owner) have been paid or otherwise satisfied (if
requested by Owner).
11. If required by the Owner, other data establishing payment or satisfaction of
obligations, such as receipts, releases of claims, security interests or
encumbrances arising out of the Contract, to the extent and in such form as
may be designated by the Owner. If a Subcontractor refuses to furnish a
release or waiver required by the Owner, the Contractor may furnish a bond
satisfactory to the Owner to indemnify the Owner against such lien. If such
lien remains unsatisfied after payments are made, the Contractor shall refund
to the Owner all money that the Owner may be compelled to pay in
discharging such lien, including all costs and reasonable attorneys' fees.
ATTACHMENT 2 TO AGREEMENT BETWEEN OWNER AND CONTRACTOR
General Conditions of the Contract
for Construction
TABLE OF ARTICLES
1. GENERAL PROVISIONS
2. OWNER
3. CONTRACTOR
4. ADMINISTRATION OF THE
CONTRACT
5. SUBCONTRACTORS
6. CONSTRUCTION BY OWNER OR BY
SEPARATE CONTRACTORS
7. CHANGES IN THE WORK
8. TIME
9. PAYMENTS AND COMPLETION
10. PROTECTION OF PERSONS AND
PROPERTY
11. INSURANCE AND BONDS
12. UNCOVERING AND CORRECTION OF
WORK
13. MISCELLANEOUS PROVISIONS
14. TERMINATION OR SUSPENSION
OF THE CONTRACT
Form Date: September 15, 2014
ARTICLE 1
GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 THE CONTRACT DOCUMENTS
The Contract Documents consist of the Agreement
between Owner and Contractor (hereinafter, the
"Agreement"), the General Conditions of the Contract
for Construction, Drawings, Specifications, addenda
issued prior to execution of the Contract, other
documents listed in the Agreement and Modifications
issued after execution of the Contract. 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. Unless
specifically enumerated in the Agreement, the
Contract Documents do not include other documents
such as bidding requirements (advertisement or
invitation to bid, Instructions to Bidders, sample forms,
the Contractor's bid or portions of addenda relating to
bidding requirements).
1.1.2 THE CONTRACT
The Contract Documents form the Contract for
Construction. The Contract represents the entire and
integrated agreement between the parties hereto and
supersedes prior negotiations, representations or
agreements, either written or oral. The Contract may
be amended or modified only by a Modification. The
Contract Documents shall not be construed to create
a contractual relationship of any kind (1) between the
Architect and Contractor, (2) between the Owner and
a 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.
1.1.3 THE WORK
The term "Work" means the construction and services
required by the Contract Documents, whether
completed or partially completed, and includes all
other labor, materials, equipment and services
provided or to be provided by the Contractor to fulfill
the Contractor's obligations. The Work may constitute
the whole or a part of the Project.
1.1.4 THE PROJECT
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 Owner or by separate contractors.
1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of
the Contract Documents, wherever located and
whenever issued, showing the design, location and
dimensions of the Work, generally including plans,
elevations, sections, details, schedules and diagrams.
1.1.6 THE SPECIFICATION
The Specifications are that portion of the Contract
Documents consisting of the written requirements for
materials, equipment construction systems, standards
and workmanship for the Work, and performance of
related services.
1.1.7 THE PROJECT MANUAL
The Project Manual is the volume usually assembled
for the Work which may include the bidding
requirements, sample forms, Conditions of the
Contract and Specifications.
1.2 EXECUTION, CORRELATION AND
INTENT
1.2.1 The Contract Documents shall be signed by
the Owner and Contractor as provided in the
Agreement. If either the Owner or Contractor or both
do not sign all the Contract Documents, the Architect
shall identify such unsigned Documents upon request.
1.2.2 Execution of the Contract 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.
1.2.3 The intent of the Contract Documents is to
include all items necessary for the proper execution
and completion of the Work by the Contractor. The
Contract Documents are complementary, and what is
required by one shall be as binding as if required by
all; performance by the Contractor shall be required
only to the extent consistent with the Contract
Documents and reasonably inferable from them as
being necessary to produce the intended results.
1.2.4 Organization of the Specifications into
divisions, sections and articles, and 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.
1.2.5 Unless otherwise stated in the Contract
Documents, words which have well-known technical
or construction industry meanings are used in the
Contract Documents in accordance with such
recognized meanings.
1.3 OWNERSHIP AND USE OF ARCHITECT'S
DRAWINGS, SPECIFICATIONS AND
OTHER DOCUMENTS
1.3.1 Neither the Contractor nor any
Subcontractor, Subsubcontractor or material or
equipment supplier shall own or claim a copyright in
the Drawings, Specifications and other documents
prepared by the Architect. All copies of them, except
the Contractor's record set, shall be returned or
suitably accounted for to the Architect, on request,
upon completion of the Work. The Drawings,
Specifications and other documents prepared by the
Architect, and copies thereof furnished to the
Contractor, are for use solely with respect to this
Project. They are not to be used by the Contractor or
any Subcontractor, Subsubcontractor or material or
equipment supplier on other projects or for additions
to this Project outside the scope of the Work without
the specific written consent of the Owner and
Architect. The Contractor, Subcontractors, Sub -
subcontractors and material or equipment suppliers
are granted a limited license to use and reproduce
applicable portions of the Drawings, Specifications
and other documents prepared by the Architect
appropriate to and for use in the execution of their
Work under the Contract Documents. All copies
made under this license shall bear the statutory
copyright notice, if any, shown on the Drawings,
Specifications and other documents prepared by the
Architect.
1.4 CAPITALIZATION
1.4.1 Terms capitalized in these General
Conditions include those which are (1) specifically
defined, (2) the titles of numbered articles and
identified references to Paragraphs, Subparagraphs
and Clauses in the document or (3) the titles of other
documents published by the American Institute of
Architects.
1.5 INTERPRETATION
1.5.1 In the interest of brevity the Contract
Documents frequently omit modifying words such as
"all" and "any" and articles such as "the" and "an," but
the fact that a modifier or an article is absent from one
statement and appears in another is not intended to
affect the interpretation of either statement.
ARTICLE 2
OWNER
2.1 DEFINITION
2.1.1 The Owner is the person or entity identified
as such in the Agreement and is referred to
throughout the Contract Documents as if singular in
number. The term "Owner" means the Owner or the
Owner's authorized representative.
2.1.2 The Owner upon reasonable written request
shall furnish to the Contractor in writing information
which is necessary and relevant for the Contractor to
evaluate, give notice of or enforce mechanic's lien
rights. Such information shall include a correct
statement of the record legal title to the property on
which the Project is located, usually referred to as the
site, and the Owner's interest therein at the time of
execution of the Agreement and, within five days after
any change, information of such change in title,
recorded or unrecorded.
2.2 INFORMATION AND SERVICES
REQUIRED OF THE OWNER
2.2.1 The Owner upon reasonable request of the
Contractor shall provide the Contractor with
reasonable evidence that the Owner is able to fulfill its
financial obligations under the Contract.
2.2.2 The Owner shall furnish surveys describing
physical characteristics, legal limitations and utility
locations for the site of the Project, and a legal
description of the site.
2.2.3 Except for permits and fees which are the
responsibility of the Contractor under the Contract
Documents, the Owner shall secure and pay for
necessary approvals, easements, assessments and
charges required for construction, use or occupancy
of permanent structures or for permanent changes in
existing facilities.
2.2.4 Information or services under the Owner's
control shall be furnished by the Owner with
reasonable promptness to avoid delay in orderly
progress of the Work.
2.2.5 Unless otherwise provided in the Contract
Documents, the Contractor will be furnished, free of
charge, such copies of Drawings and Project Manuals
as are reasonably necessary for execution of the
Work.
2.2.6 The foregoing are in addition to other duties
and responsibilities of the Owner enumerated herein
and especially those in respect to Article 6, Article 9
and Article 11.
2.3 OWNERS'S RIGHT TO STOP THE WORK
2.3.1 If the Contractor fails to correct Work which
is not in accordance with the requirements of the
Contract Documents as required by Paragraph 12.2
or fails to carry out Work in accordance with the
Contract Documents, the Owner, by written order
signed personally or by an agent specifically so
empowered by the Owner in writing, may order the
Contractor to stop the Work, or any portion thereof,
until the cause for such order has been eliminated.
2.4 OWNER'S RIGHT TO CARRY OUT THE
WORK
2.4.1 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 written notice from the Owner to commence
and continue correction of such default or neglect with
diligence and promptness, the Owner may, without
prejudice to other remedies the Owner may have,
correct such deficiencies. In such case an
appropriate Change Order shall be issued deducting
from payments then or thereafter due the Contractor
the cost of correcting such deficiencies, including
compensation for the Architect's additional services
and 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 Owner upon demand.
ARTICLE 3
CONTRACTOR
3.1 DEFINITION
3.1.1 The Contractor is the person or entity
identified as such in the Agreement and is referred to
throughout the Contract Documents as if singular in
number. The term "Contractor" means the Contractor
or the Contractor's authorized representative.
3.2 REVIEW OF CONTRACT DOCUMENTS
AND FIELD CONDITIONS BY
CONTRACTOR
3.2.1 The Contractor shall carefully study and
compare the Contract Documents with each other and
with information furnished by the Owner pursuant to
Paragraph 2.2 and shall at once report to the
Architect errors, inconsistencies or omissions
discovered. The Contractor shall not be liable to the
Owner or Architect for damage resulting from errors,
inconsistencies or omissions in the Contract
Documents unless the Contractor recognized such
error, inconsistency or omission and knowingly failed
to report it to the Architect. If the Contractor performs
any construction activity knowing it involves a
recognized error, inconsistency or omission in the
Contract Documents
without such notice to the Architect, the Contractor
shall assume appropriate responsibility for such
performance and shall bear an appropriate amount of
the attributable costs for correction.
3.2.2 The Contractor shall take field
measurements and verify 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. Errors, inconsistencies or
omissions discovered shall be reported to the
Architect at once.
3.2.3 The Contractor shall perform the Work in
accordance with the Contract Documents and
submittals approved pursuant to Paragraph 3.12.
3.3 SUPERVISION AND CONSTRUCTION
PROCEDURES
3.3.1 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 the
Contract, unless Contract Documents give other
specific instructions concerning these matters.
3.3.2 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 contract with the Contractor.
3.3.3 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 in the Architect's administration of the
Contract, or by tests, inspections or approvals
required or performed by persons other than the
Contractor.
3.3.4 The Contractor shall be responsible for
inspection of portions of Work already performed
under this Contract to determine that such portions
are in proper condition to receive subsequent Work.
3.3.5 Except for engineering work to be provided
by the Owner pursuant to express provisions of the
Contract Documents, all grade lines, levels and bench
marks shall be established and maintained by the
Contractor. The Contractor shall establish bench
marks in no less than two widely separated locations.
Bench marks established by others prior to the job
shall be verified and may be used for the Work but
shall be maintained in correct position, and if moved
or damaged, shall be replaced by a registered civil
engineer or land surveyor at the expense of the
Contractor. Contractor shall submit certification by
civil engineer for established building corners and
finish floor elevations before pouring slab.
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3.4.1 Unless otherwise provided in the Contract
Documents, the Contractor shall provide and pay for
labor, materials, equipment, tools, construction
equipment and machinery, water, heat, utilities,
transportation, and other facilities and services
necessary for proper execution and completion of the
Work, whether temporary or permanent and whether
or not incorporated or to be incorporated in the Work.
3.4.2 The Contractor shall enforce strict discipline
and good order among the Contractor's employees
and other persons carrying out the Contract. The
Contractor shall not permit employment of unfit
persons or persons not skilled in tasks assigned to
them.
3.5 WARRANTY
3.5.1 The Contractor warrants to the Owner and
Architect that materials and equipment furnished
under the Contract 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 Documents. 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,
improper operation, or normal wear and tear under
normal usage. The Contractor's warranty will not be
affected by the specification of any product or
procedure unless the Contractor objects promptly to
such product or procedure and so advises the
Architect, in writing, of the proposed products and
procedures which will affect the Contractor's warranty.
Nothing in the foregoing shall, however, be deemed to
be or construed as a warranty of the Architect's
design, or any component thereof, nor obligate the
Contractor under the warranty set forth in this
Subparagraph 3.5.1 to correct design errors or
defects. The Contractor's warranty will not be
restricted by any manufacturer's warranty. The
Contractor is responsible for any Subcontractor's
nonperformance on warranty Work. The refusal of a
Subcontractor or supplier to correct defective Work for
which it is responsible will not excuse the Contractor
from performing under the Contractor's warranty. If
required by the Architect, the Contractor shall furnish
satisfactory evidence as to the kind and quality of
materials and equipment.
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer,
use and similar taxes for the Work or portions thereof
provided by the Contractor which are legally enacted
when bids are
received or negotiations concluded, whether or not
yet effective or merely scheduled to go in effect.
3.7 PERMITS, FEES AND NOTICES
3.7.1 Unless otherwise provided in the Contract
Documents, the Contractor shall secure and pay for
the building permit and other permits and
governmental fees, licenses and inspections
necessary for proper execution and completion of the
Work which are customarily secured after execution
of the Contract and which are legally required when
bids are received or negotiations concluded.
3.7.2 The Contractor shall comply with and give
notices required by laws, ordinances, rules,
regulations and lawful orders of public authorities
bearing on performance of the Work.
3.7.3 It is not the Contractor's responsibility to
ascertain that the Contract Documents are in
accordance with applicable laws, statutes,
ordinances, building codes, and rules and regulations.
However, if the Contractor observes that portions of
the Contract Documents are at variance therewith, the
Contractor shall promptly notify the Architect and
Owner in writing, and necessary changes shall be
accomplished by appropriate Modification.
3.7.4 If the Contractor performs Work knowing it to
be contrary to laws, statutes, ordinances, building
codes, and rules and regulations without such notice
to the Architect and Owner, the Contractor shall
assume full responsibility for such Work and shall
bear the attributable costs.
3.8 ALLOWANCES
3.8.1 The Contractor shall include in the Contract
Sum all allowances stated in the Contract Documents.
Items covered by allowances shall be supplied for
such amounts and by such persons or entities as the
Owner may direct, but the Contractor shall not be
required to employ persons or entities against which
the Contractor makes reasonable objection.
3.8.2 Unless otherwise provided in the Contract
Documents:
.1 materials and equipment under an
allowance shall be selected promptly by
the Owner to avoid delay in the Work;
.2 allowances shall cover the cost to the
Contractor of materials and equipment
delivered at the site and all required
taxes, less applicable trade discounts;
.3 Contractor's costs for unloading and
handling at the site, labor, installation
costs, overhead, profit and other
expenses contemplated for stated
allowance amounts shall be included in
the Contract Sum and not in the
allowances;
.4 whenever costs are more than or less
than allowances, the Contract Sum shall
be adjusted accordingly by Change
Order. The amount of the Change
Order shall reflect (1) the difference
between actual costs and the
allowances under Clause 3.8.2.2 and (2)
changes in Contractor's costs under
Clause 3.8.2.3.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent
superintendent and necessary assistants who shall be
in attendance at the Project site during performance
of the Work. The superintendent shall represent the
Contractor, and communications given to the
superintendent shall be as binding as if given to the
Contractor. Important communications shall be
similarly confirmed in writing. Other communications
shall be similarly confirmed on written request in each
case.
3.10 CONTRACTOR'S CONSTRUCTION
SCHEDULES AND REPORTING
3.10.1 The Contractor, promptly after being
awarded the Contract, shall prepare and submit for
the Owner's and Architect's information a Contractor's
construction schedule for the Work. The schedule
shall not exceed time limits current under the Contract
Documents, shall be revised at appropriate intervals
as required by the conditions of the Work and Project,
shall be related to the entire Project to the extent
required by the Contract Documents, and shall
provide for expeditious and practicable execution of
the Work.
3.10.2 The Contractor shall prepare and keep
current, for the Architect's approval, a schedule of
submittals which is coordinated with the Contractor's
construction schedule and allows the Architect
reasonable time to review submittals.
3.10.3 The Contractor shall conform to the most
recent schedules.
3.10.4 The Contractor shall prepare and submit a
monthly status report to the Owner which shall include
a current and updated schedule, the percentage
completion of the Work, daily work force, list of
equipment, weather records, progress report defining
outstanding issues, current issues, pending changes,
progress and aerial photos and other issues related to
the Project.
3.11 DOCUMENTS AND SAMPLES AT THE
SITE
3.11.1 The Contractor shall maintain at the site for
the Owner one record copy of the Drawings,
Specifications, addenda, Change Orders and other
Modifications, in good order and marked currently to
record changes and selections made during
construction, and in addition approved Shop
Drawings, Product Data, Samples and similar
required submittals. These shall be available to the
Architect and shall be delivered to the Architect for
submittal to the Owner upon completion of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND
SAMPLES
3.12.1 Shop Drawings are drawings, diagrams,
schedules and other data specially prepared for the
Work by the Contractor or a Subcontractor, Sub -
subcontractor, manufacturer, supplier or distributor to
illustrate some portion of the Work.
3.12.2 Product Data are illustrations, standard
schedules, performance charts, instructions,
brochures, diagrams and other information furnished
by the Contractor to illustrate materials or equipment
for some portion of the Work.
3.12.3 Samples are physical examples which
illustrate materials, equipment or workmanship and
establish standards by which the Work will be judged.
3.12.4 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 way the Contractor proposes to conform to the
information given and the design concept expressed
in the Contract Documents. Review by the Architect
is subject to the limitations of Subparagraph 4.2.7.
3.12.5 The Contractor shall review, approve and
submit to the Architect Shop Drawings, Product Data,
Samples and similar submittals required by the
Contract Documents with reasonable promptness and
in such sequence as to cause no delay in the Work or
in the activities of the Owner or of separate
contractors. Submittals made by the Contractor
which are not required by the Contract Documents
may be returned without action.
3.12.6 The Contractor shall perform no portion of
the Work requiring submittal and review of Shop
Drawings, Product Data, Samples or similar
submittals until the respective submittal has been
approved by the Architect. Such Work shall be in
accordance with approved submittals.
3.12.7 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, or will do so, and has checked and
coordinated the information contained within such
submittals with the requirements of the Work and the
Contract Documents.
3.12.8 The Contractor shall not be relieved of
responsibility for deviations from requirements of the
Contract Documents by the Architect's approval of
Shop Drawings, Product Data, Samples or similar
submittals unless the Contractor has specifically
informed the Architect in writing of such deviation at
the time of submittal and the Architect 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 Architect's
approval thereof.
3.12.9 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.
3.12.10 Informational submittals upon which the
Architect is not expected to take responsive action
may be so identified in the Contract Documents.
3.12.11 When professional certification of
performance criteria of materials, systems or
equipment is required by the Contract Documents, the
Architect shall be entitled to rely upon the accuracy
and completeness of such calculations and
certifications.
3.13 USE OF SITE
3.13.1 The Contractor shall confine operations at
the site to areas permitted by law, ordinances, permits
and the Contract Documents and shall not
unreasonably encumber the site with materials or
equipment.
3.14 CUTTING AND PATCHING
3.14.1 The Contractor shall be responsible for
cutting, fitting or patching required to complete the
Work or to make its parts fit together properly.
3.14.2 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
written consent of the Owner and of such separate
contractor; such consent shall not be unreasonably
withheld. The Contractor shall not unreasonably
withhold from the Owner or a separate contractor the
Contractor's consent to cutting or otherwise altering
the Work.
3.15 CLEANING UP
3.15.1 The Contractor shall keep the premises and
surrounding area free from accumulation of waste
materials or rubbish caused by operations under the
Contract. At completion of the Work the Contractor
shall remove from and about the Project waste
materials, rubbish, the Contractor's tools, construction
equipment, machinery and surplus materials.
3.15.2 If the Contractor fails to clean up as provided
in the Contract Documents, the Owner may do so and
the cost thereof shall be charged to the Contractor.
3.16 ACCESS TO WORK
3.16.1 The Contractor shall provide the Owner and
Architect access to the Work in preparation and
progress wherever located.
3.17 ROYALTIES AND PATENTS
3.17.1 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
production 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 Architect.
3.18 INDEMNIFICATION
3.18.1 To the fullest extent permitted by law, the
Contractor shall indemnify and hold harmless the
Owner (and, to the extent Owner is a joint venture or
partnership, any partner or joint venturer in such
partnership or joint venture), the City of Coppell,
Architect, Architect's consultants, and agents, and the
directors, officers, employees, partners, shareholders,
members, property managers, agents, affiliates,
representatives, mortgagees, and insurers, of any of
them, and their successors and assigns (each, an
"Owner Entitv," and collectively, the "Owner Entities"),
from and against any and all claims, damages,
losses, liabilities, demands, causes of action,
administrative or regulatory proceedings, liens,
settlements, judgments and expenses, including but
not limited to attorneys' fees (including attorney's fees
and costs and expenses incurred in enforcing this
indemnity provision), investigative costs and any
insurance deductibles, directly or indirectly arising out
of or resulting from (a) bodily injury, sickness,
disease, personal injury, or death of any employees of
the Contractor, its subcontractors, anyone directly or
indirectly employed by them, or anyone for whose
acts they may be liable, while at the site where work
is conducted, or elsewhere, while engaged in the
performance of the Work under this Agreement,
however such injuries may be caused, which
indemnification obligation shall in no way be limited by
a limitation on amount or type of damages,
compensation or benefits payable by or for the
Contractor or its subcontractors under any worker's or
workmen's compensation acts, disability benefit acts
or other employee benefit acts, (b) bodily injuries or
death to any person or persons who are not
employees of the Contractor, (c) property damage, (d)
property destruction (including loss of use thereof), (e)
intangible pecuniary loss, sustained or alleged to
have been sustained by any business, organization or
person, including employees of Contractor and any
subcontractors, (f) any claim by any laborer,
materialman or subcontractor for materials furnished
or labor performed in connection with the Work, (g)
any infringement of any patent arising out of or in
connection with the performance of the Work or the
use of materials and equipment furnished for or in
connection with the Work, or (h) any breach of this
Agreement by Contractor or any of its subcontractors,
arising out of or in connection with the performance of
the Work or this Agreement by Contractor, its agents,
servants, employees, subcontractors or independent
contractors retained or hired by Contractor,
regardless of whether it was caused in part by the
passive conduct, vicarious negligence or implied
omission of any of the Owner Entities. This
indemnification shall not apply to the extent of the
active negligence or willful misconduct on the part of
any Owner Entities. This provision shall survive the
termination of this Agreement.
3.18.2 In claims against any person or entity
indemnified under this Paragraph 3.18 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 3.18 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 worker's or
workmen's compensation acts, disability benefit acts
or other employee benefit acts.
3.18.3 The obligations of the Contractor under this
Paragraph 3.18 shall not extend to the liability of the
Architect, the Architect's consultants, and agents and
employees of any them arising out of (1) the
preparation or approval of maps, drawings, opinions,
reports, surreys, 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 cause of the injury or damage.
ARTICLE 4
ADMINISTRATION OF THE CONTRACT
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4.1.1 The Architect is the person lawfully licensed
to practice architecture or an entity lawfully practicing
architecture identified as such in the 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.
4.1.2 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,
Contractor and Architect. Consent shall not be
unreasonably withheld.
4.1.3 In case of termination of employment of the
Architect, the Owner shall appoint an architect against
whom the Contractor makes no reasonable objection
and whose status under the Contract Documents
shall be that of the former architect.
4.2 ARCHITECT'S ADMINISTRATION
OF THE CONTRACT
4.2.1 The Architect will provide administration of
the Contract as described in the Contract Documents,
and will be the Owner's representative (1) during
construction, (2) until final payment is due and (3) with
the Owner's concurrence, from time to time during the
correction period described in Paragraph 12.2. The
Architect will advise and consult with the Owner. The
Architect will have authority to act on behalf of the
Owner only to the extent provided in the Contract
Documents, unless otherwise modified by written
instrument in accordance with other provisions of the
Contract.
4.2.2 The Architect will visit the site at intervals
appropriate to the stage of construction to become
generally familiar with the progress and quality of the
completed Work and to determine in general if the
Work is being performed in a manner indicating that
the Work, when completed, will be in accordance with
the Contract Documents. However, the Architect will
not be required to make exhaustive or continuous on-
site inspections to check quality or quantity of the
Work. On the basis of on-site observations as an
architect, the Architect will keep the Owner informed
of progress of the Work, and will endeavor to guard
the Owner against defects and deficiencies in the
Work.
4.2.3 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 programs in
connection with the Work, since these are solely the
Contractor's responsibility as provided in Paragraph
3_3. The Architect will not be responsible for the
Contractor's 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.
4.2.4 Communications Facilitating Contract
Administration. Except as otherwise provided in the
Contract Documents or when direct communications
have been specially authorized, the Owner and
Contractor shall endeavor to communicate through
the Architect. Communications by and with the
Architect's consultants shall be through the Architect.
Communications by and with Subcontractors and
material suppliers shall be through the Contractor.
Communications by and with separate contractors
shall be through the Owner.
4.2.5 Based on the Architect's observations and
evaluations of the Contractor's Applications for
Payment, the Architect will review and certify the
amounts due the Contractor and will issue Certificates
for Payment in such amounts. This certification shall
be a recommendation subject to the Owner's
approval.
4.2.6 The Architect shall be responsible for
recommending to the Owner rejection of Work
observed by the Architect which does not conform to
the Contract Documents. Whenever the Architect
considers it necessary or advisable for
implementation of the intent of the Contract
Documents, the Architect shall recommend to the
Owner additional inspection or testing of the Work in
accordance with Subparagraphs 13.4.2 and 13.4.3,
whether or not such Work is fabricated, installed or
completed. However, neither this responsibility of the
Architect nor a decision made in good faith in
connection therewith shall give rise to a duty or
responsibility of the Architect to the Contractor,
Subcontractors, material and equipment suppliers,
their agents or employees, or other persons
performing portions of the Work.
4.2.7 The Architect will review and approve or take
other appropriate action upon the Contractor's
submittals such as Shop Drawings, Product Data and
Samples, but only for the limited purpose of checking
for conformance with information given and the
design concept expressed in the Contract
Documents. The Architect's action will be taken with
such reasonable promptness as to cause no delay in
the Work or in the activities of the Owner, Contractor
or separate contractors, while allowing sufficient time
in the Architect's professional judgment to permit
adequate review. 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 Architect's review of the
Contractor's submittals shall not relieve the Contractor
of the obligations under Paragraphs 3.3. 3.5 and 3.12.
The Architect's review shall not constitute approval of
safety precautions or, unless otherwise specifically
stated by the Architect, of any construction means,
methods, techniques, sequences or procedures. The
Architect's approval of a specific item shall not
indicate approval of an assembly of which the item is
a component.
4.2.8 The Architect will prepare Change Orders
and Construction Change Directives, and may
authorize minor changes in the Work as provided in
Paragraph 7.4.
4.2.9 The Architect will conduct inspections to
determine, subject to the approval of the Owner, the
date or dates of Substantial Completion and the date
of final completion, will receive and forward to the
Owner for the Owner's review and records written
warranties and related documents required by the
Contract and assembled by the Contractor, and will
issue, a final Certificate for Payment upon compliance
with the requirements of the Contract Documents,
which final Certificate shall be subject to the approval
of the Owner.
4.2.10 If the Owner and Architect agree, the
Architect will provide one or more project
representatives to assist in carrying out the Architect's
responsibilities at the site. The duties, responsibilities
and limitations of authority of such project
representatives shall be as set forth in an exhibit to be
incorporated in the Contract Documents.
4.2.11 The Architect will interpret and make
recommendations concerning matters relating to
performance under and requirements of the Contract
Documents on written request of the Owner. The
Architect's response to such requests will be made
with reasonable promptness and within any time limits
agreed upon. If no agreement is made concerning
the time within which interpretations required of the
Architect shall be furnished in compliance with this
Paragraph 4.2, then delay shall not be recognized on
account of failure by the Architect to furnish such
interpretations until 15 days after written request is
made for them.
4.2.12 Interpretations and recommendation of the
Architect will be consistent with the intent of and
reasonably inferable from the Contract Documents
and will be in writing or in the form of drawings. When
making such interpretations and recommendations,
the Architect will endeavor to secure faithful
performance by the Contractor, will not show partiality
and will not be liable for results of interpretations or
recommendations so rendered in good faith.
4.3 CLAIMS AND DISPUTES
4.3.1 Definition. A Claim is a demand or
assertion by one of the parties seeking, as a matter of
right, adjustment or interpretation of Contract terms,
payment of money, extension of time or other relief
with respect to the terms of the Contract. The term
"Claim" also includes other disputes and matters in
question between the Owner and Contractor arising
out of or relating to the Contract. Claims must be
made by written notice. The responsibility to
substantiate Claims shall rest with the party making
the Claim.
4.3.2 Decision of Architect Claims, including
those alleging an error or omission by the Architect,
may be referred initially to the Architect for action as
provided in Paragraph 4.4. The decision by the
Architect in response to a Claim shall not be a
condition precedent to litigation.
4.3.3 Time Limits on Claims Claims by ether
party must be made within 21 days after occurrence
of the event giving rise to such Claim or within 21
days after the claimant first recognizes the condition
giving rise to the Claim, whichever is later. Claims
must be made by written notice. An additional Claim
made after the initial Claim has been implemented by
Change Order will not be considered unless
submitted in a timely manner.
4.3.4 Continuing Contract Performance
Pending final resolution of a Claim including litigation,
unless otherwise agreed in a writing executed by both
the Owner and the Contractor, the Contractor shall
proceed diligently with performance of the Contract
and the Owner shall continue to make payments in
accordance with the Contract Documents.
4.3.5 Waiver of Claims: Final Payment The
making of final payment shall constitute a waiver of
Claims by the Owner except those arising from:
.1 liens, Claims, security interests or
encumbrances arising out of the
Contract and unsettled;
.2 failure of the Work to comply with the
requirements of the Contract
Documents; or
terms of special warranties required by
the Contract Documents.
4.3.6 Claims for Concealed or Unknown
Conditions. If conditions are encountered at the site
which are (1) subsurface or otherwise concealed
physical conditions which differ materially from those
indicated in the Contract Documents or (2) unknown
physical conditions of an unusual nature, which differ
materially from those ordinarily found to exist and
generally recognized as inherent in construction
activities of the character provided for in the Contract
Documents, then notice by the observing party shall
be given to the other party promptly before conditions
are disturbed and in no event later than 21 days after
first observance of the conditions. The Architect will
promptly investigate such conditions and, if they differ
materially and cause an increase or decrease in the
Contractor's cost of, or time required for, performance
of any part of the Work, will recommend an equitable
adjustment in the Contract Sum or Contract Time, or
both. If the Architect determines that the conditions at
the site are not materially different from those
indicated in the Contract Documents and that no
change in the terms of the Contract is justified, the
Architect shall so notify the Owner and Contractor in
writing, stating the reasons. Claims by either party in
opposition to such determination must be made within
21 days after the Architect has given notice of the
decision. If the Owner and Contractor cannot agree
on an adjustment in the Contract Sum or Contract
Time, the adjustment may be referred to the Architect
for initial determination, subject to further proceedings
pursuant to Paragraph 4.4.
4.3.7 Claims for Additional Cost. If the
Contractor wishes to make Claim for an increase in
the Contract Sum, written notice as provided herein
shall be given before proceeding to execute the Work.
Prior notice is not required for Claims relating to an
emergency endangering life or property arising under
Paragraph 10.3. If the Contractor believes additional
cost is involved for reasons including but not limited to
(1) a written interpretation from the Architect, (2) an
order by the Owner to stop the Work where the
Contractor was not at fault, (3) a written order for a
minor change in the Work issued by the Architect, (4)
failure of payment by the Owner, (5) termination of the
Contract by the Owner, (6) Owner's suspension or (7)
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other reasonable grounds, Claim shall be filed in
accordance with the procedure established herein.
4.3.8 Claims for Additional Time
4.3.8.1 If the Contractor wishes to make Claim for
an increase in the Contract Time, written notice as
provided herein shall be given. The Contractor's
Claim shall include an estimate of cost and of
probable effect of delay on progress of the Work. In
the case of a continuing delay only one Claim is
necessary.
4.3.8.2 If adverse weather conditions are the basis
for a Claim for additional time, such Claim shall be
documented by data substantiating that weather
conditions were abnormal for the period of time and
could not have been reasonably anticipated, and that
weather conditions had an adverse effect on the
scheduled construction.
4.3.9 Injury or Damage to Person or Property.
If either party to the Contract suffers injury or damage
to person or property because of an act or omission of
the other party, of any of the other party's employees
or agents, or of others for whose acts such party is
legally liable, written notice of such injury or damage,
whether or not insured, shall be given to the other
party within a reasonable time not exceeding 21 days
after first observance. The notice shall provide
sufficient detail to enable the other party to investigate
the matter. If a Claim for additional cost or time
related to this Claim is to be asserted, it shall be filed
as provided in Subparagraphs 4.3.7 or 4.3.8.
4.4 RESOLUTION OF CLAIMS AND
DISPUTES
4.4.1 Upon request by the Owner, the Architect
will review Claims. In making any such review, the
Architect will take one or more of the following
preliminary actions within ten days of receipt of a
Claim: (1) request additional supporting data from the
claimant, (2) submit a schedule to the parties
indicating when the Architect expects to take action,
(3) reject the Claim in whole or in part, stating reasons
for rejection, (4) recommend approval of the Claim by
the other party or (5) suggest a compromise. The
Architect may also, but is not obligated to, notify the
surety, if any, of the nature and amount of the Claim.
4.4.2 If a Claim has been resolved, the Architect
will prepare or obtain appropriate documentation.
4.4.3 If a Claim has not been resolved, the party
making the Claim shall, within ten days after the
Architect's preliminary response, take one or more of
the following actions: (1) submit additional supporting
data requested by the Architect, (2) modify the initial
Claim or (3) notify the Architect that the initial Claim
stands.
4.4.4 If a Claim has not been resolved after
consideration of the foregoing and of further evidence
presented by the parties or requested by the
Architect, the Architect will notify the parties in writing
that the Architect's recommended solution will be
made within seven days. Upon expiration of such
time period, the Architect will render to the parties the
Architect's written recommendation relative to the
Claim, including any change in the Contract Sum or
Contract Time or both. If there is a surety and there
appears to be a possibility of a Contractor's default,
the Architect may, but is not obligated to, notify the
surety and request the surety's assistance in resolving
the controversy. The recommendation of the
Architect shall not be binding on the parties, but shall
be considered in good faith in an attempt to resolve
the subject dispute.
ARTICLE 5
SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who
has a direct contract with the Contractor to perform a
portion of the Work at the site. The term
"Subcontractor" is referred to throughout the Contract
Documents as if singular in number and means a
Subcontractor or an authorized representative of the
Subcontractor. The term "Subcontractor" does not
include a separate contractor or subcontractors of a
separate contractor.
5.1.2 A Sub -subcontractor is a person or entity
who has a direct or indirect contract with a
Subcontractor to perform a portion of the Work at the
site. The term "Sub -subcontractor" is referred to
throughout the Contract Documents as if singular in
number and means a Sub -subcontractor or an
authorized representative of the Sub -subcontractor.
5.2 AWARD OF SUBCONTRACTS AND
OTHER CONTRACTS FOR PORTIONS OF
THE WORK
5.2.1 Unless otherwise stated in the Contract
Documents or the bidding requirements, the
Contractor, as soon as practicable after award of the
Contract, shall furnish in writing to the Owner through
the Architect the names of persons or entities
(including those who are to furnish materials or
equipment fabricated to a special design) proposed
for each principal portion of the Work. The
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Architect will promptly reply to the Contractor in
writing stating whether or not the Owner or the
Architect, after due investigation, has reasonable
objection to any such proposed person or entity.
Failure of the Owner or Architect to reply promptly
shall constitute notice of no reasonable objection.
5.2.2 The Contractor shall not contract with a
proposed person or entity to whom the Owner or
Architect has made reasonable and timely objection.
The Contractor shall not be required to contract with
anyone to whom the Contractor has made reasonable
objection.
5.2.3 If the Owner or Architect has reasonable
objection to a person or entity proposed by the
Contractor, the Contractor shall propose another to
whom the Owner or Architect has no reasonable
objection. The Contract Sum shall be increased or
decreased by the difference in cost occasioned by
such change and an appropriate Change Order shall
be issued. However, no increase in the Contract Sum
shall be allowed for such change unless the entity or
person initially proposed by the Contractor was
suitably qualified to perform the applicable portion of
the Work and the Contractor has acted promptly and
responsively in submitting names as required.
5.2.4 The Contractor shall not change a
Subcontractor, person or entity previously selected if
the Owner or Architect makes reasonable objection to
such change.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 By appropriate written agreement, the
Contractor shall require each Subcontractor, to the
extent of the Work to be performed by the
Subcontractor, to be bound to the Contractor by terms
of the Contract Documents, and to assume toward the
Contractor all the obligations and responsibilities
which the Contractor, by these Documents, assumes
toward the Owner and Architect. Each subcontract
agreement shall preserve and protect the rights of the
Owner and Architect under the Contract Documents
with respect to the Work to be performed by the
Subcontractor so that subcontracting thereof will not
prejudice such rights, and shall allow to the
Subcontractor, unless specifically provided otherwise
in the subcontract agreement, the benefit of all rights,
remedies and redress against the Contractor that the
Contractor, by the Contract Documents, has against
the Owner. Where appropriate, the Contractor shall
require each Subcontractor to enter into similar
agreements with Sub -subcontractors. The Contractor
shall make available to each proposed Subcontractor,
prior to the execution of the subcontract agreement,
copies of the Contract Documents to which the
Subcontractor will be bound, and, upon written
request of the Subcontractor, identify to the
Subcontractor terms and conditions of the proposed
subcontract agreement which may be at variance with
the Contract Documents. Subcontractors shall
similarly make copies of applicable
portions of such documents available to their
respective proposed Sub -subcontractors.
5.4 CONTINGENT ASSIGNMENT OF
SUBCONTRACTS
5.4.1 Each subcontract agreement for a portion of
the Work is assigned by the Contractor to the Owner
provided that:
.1 assignment is effective only after
termination of the Contract by the
Owner for cause pursuant to
Paragraph 14.2 and only for those
subcontract agreements which the
Owner accepts by notifying the
Subcontractor in writing; and
.2 assignment is subject to the prior
rights of the surety, if any, obligated
under bond relating to the Contract.
5.4.2 If the Work has been suspended at the
direction of the Owner for more than 30 days, the
Subcontractor's compensation shall be equitably
adjusted.
5.5 SUBCONTRACTOR'S CLAIMS
5.5.1 The Contractor shall promptly advise the
Owner in writing of any claim or demand by a
Subcontractor claiming that any amount is past due to
such Subcontractor or claiming any default by the
Contractor in any of its obligations to such
Subcontractor.
5.5.2 In the event any Subcontractor or
Materialman shall file any lien against the Project,
then unless such lien arises from the failure of the
Owner to make payments in accordance with the
applicable provisions of the Contract Documents, the
Contractor shall promptly, upon receipt of notice of
any such lien, cause such lien to be released or
bonded off and the Contractor shall indemnify, defend
and hold harmless the Owner and the title insurer
providing title insurance for the Project from and
against any and all claims, suits, demands, losses,
damages, expenses, judgments and costs, including
reasonable attorneys' fees and court costs resulting
from any such lien.
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ARTICLE 6
CONSTRUCTION BY OWNER OR
BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM
CONSTRUCTION AND TO AWARD
SEPARATE CONTRACTS
6.1.1 The Contractor acknowledges and agrees
that the Owner and/or one or more tenants of the
Owner shall have the right to have their respective
separate contractors enter upon the site in order to
perform work with respect to the building shell (the
"Building Shell Work") and certain tenant finish work
(herein referred to as the "Tenant Improvement
Work"). If any Tenant Improvement Work is to be
performed prior to completion of the Building Shell
Work, the Owner shall advise the Contractor
performing such work (the "Building Shell Contractor")
at the commencement of the Building Shell Work of
the nature and scope of such Tenant Improvement
Work, and the anticipated point in time when the
contractor(s) who are to perform such work (the
"Tenant Improvement Contractors") are to begin
working at the site.
6.1.2 The Building Shell Contractor and Tenant
Improvement Contractors shall be responsible for
coordinating their respective activities and the
activities of their respective Subcontractors and
providing for a logical and orderly transition of
operations within the Project between the Contractor's
forces and those of the Tenant Improvement
Contractors' forces. At the time any Tenant
Improvement Contractor first commences activities at
the site, the Contractor will join with the Owner and
such Tenant Improvement Contractor in executing a
statement establishing the commencement date of
such contractor's presence at the site and containing
such other matters relating to the commencement of
such contractor's work at the site as the parties may
mutually agree.
6.1.3 If any of the Building Shell Contractor's
Subcontractors are also performing work in
connection with any Tenant Improvement Work, the
Building Shell Contractor shall monitor the work of
such Subcontractors in order to assure that proper
attention is maintained on completing the Building
Shell Work in order to avoid any schedule slippage.
6.1.4 The Building Shell Contractor and all Tenant
Improvement Contractors shall endeavor in good faith
to maintain a harmonious and cooperative working
relationship so that the respective operations of the
Building Shell Contractor and Tenant Improvement
Contractors can proceed without disruption or delay.
Nonetheless, the Building Shell Contractor and all
Tenant Improvement Contractors shall promptly notify
the Owner and the Architect if, in the judgment of
such Contractor, any other Contractor is damaging or
placing at risk such Contractor's Work or interfering in
the performance of the Work. The Contractor's
warranties set forth in the Contract Documents shall
not be affected by the presence of any such other
Contractor or any work completed by such Contractor
except to the extent (i) such Contractor has in fact
acted in a manner that has an adverse effect on the
Work of the Contractor, (ii) the Contractor has
provided prompt written notice to the Owner and
Architect of the activity of such contractor which is
having an adverse effect on the Work, and (iii) the
Owner has not caused the matter complained of to be
corrected.
6.1.5 The Owner also reserves the right 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 because of such action by the Owner,
the Contractor shall make such Claim as provided
elsewhere in the Contract Documents.
6.1.6 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.
6.1.7 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 construction
schedules shall then constitute the schedules to be
used by the Contractor, separate contractors and the
Owner unless subsequently revised with the approval
of the Owner.
6.2 MUTUAL RESPONSIBILITY
6.2.1 Each Contractor shall afford the Owner and
any other contractors retained by the Owner or its
tenant(s) reasonable opportunity for introduction and
storage of their materials and equipment and
performance of their activities and shall connect and
coordinate the Contractor's construction and
operations with theirs.
6.2.2 If part of the Contractor's Work depends for
proper execution or results upon construction or
operations by the Owner or any other contractor, the
Contractor shall, prior to proceeding with that portion
of the Work, promptly report to the Architect apparent
13
discrepancies or defects in such other construction
that would render it unsuitable for such proper
execution and results. Failure of the Contractor so to
report shall constitute an acknowledgement that the
Owner's or such other contractor's completed or
partially completed construction is fit and proper to
receive the Contractor's Work, except as to defects
not then reasonably discoverable.
6.2.3 Costs caused by delays or by improperly
timed activities or defective construction shall be
borne by the party responsible therefor.
6.2.4 The Contractor shall promptly remedy
damage caused by the Contractor to completed or
partially completed construction or to property of the
Owner and any other contractors as provided in
Subparagraph 10.2.5.
6.2.5 Claims and other disputes and matters in
question between the Contractor and any other
contractors shall be subject to the provisions of
Paragraph 4.3 provided the other contractor has
reciprocal obligations.
6.2.6 Each other contractor shall have the same
responsibilities for cutting and patching as are
described for the Contractor in Paragraph 3.14, and
shall be required to maintain insurance comparable to
that which the Contractor is required to maintain and
in amounts appropriate for the scope of work being
performed by it. Each contract entered into with any
other contractor who shall be performing work at the
site shall also include a waiver of subrogation
provision.
6.3 OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises among the Contractor, any
Tenant Improvement Contractors and/or any other
separate contractors and the Owner as to the
responsibility under their respective contracts for
maintaining the premises and surrounding area free
from waste materials and rubbish as described in
Paragraph 3.15, the Owner may clean up and allocate
the cost among those responsible.
ARTICLE 7
CHANGES IN THE WORK
7.1 CHANGES
7.1.1 Changes in the Work may be accomplished
after execution of the Contract, and without
invalidating the Contract, by Change Order,
Construction Change Directive or order for a minor
change in the Work, subject to the limitations stated in
this Article 7 and elsewhere in the Contract
Documents.
7.1.2 A Change Order shall be based upon
agreement among the Owner, Contractor and
Architect; a Construction Change Directive requires
agreement by the Owner and Architect and may or
may not be agreed to by the Contractor; an order for a
minor change in the Work may, subject to
Subparagraph 7.4.1, be issued by the Architect alone.
7.1.3 Changes in the Work shall be performed
under applicable provisions of the Contract
Documents, and the Contractor shall proceed
promptly, unless otherwise provided in the Change
Order, Construction Change Directive or order for a
minor change in the Work.
7.1.4 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 Construction Change
Directive that application of such unit prices to
quantities of Work proposed will cause substantial
inequity to the Owner or Contractor, the applicable
unit prices shall be equitably adjusted.
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument
prepared by the Architect and signed by the Owner,
Contractor and Architect, stating their agreement
upon all of the following:
.1 a change in the Work
.2 the amount of the adjustment in the
Contract Sum, if any; and
.3 the extent of the adjustment in the
Contract Time, if any.
7.2.2 Methods used in determining adjustments to
the Contract Sum may include those listed in
Subparagraph 7.3.3.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written
order prepared by the Architect and signed by the
Owner and Architect, directing a change in the Work
and stating a proposed basis for adjustment, if any, in
the Contract Sum or Contract Time, or both. The
Owner may by Construction Change Directive,
without invalidating the Contract, order changes in the
Work within the general scope of the Contract
consisting of additions, deletions or other revisions,
the Contract Sum and Contract Time being adjusted
accordingly.
14
7.3.2 A Construction Change Directive shall be
used in the absence of total agreement on terms of a
Change Order.
7.3.3 If the Construction Change Directive
provides for an adjustment to the Contract Sum, the
adjustments shall be based on one of the following
methods:
1 mutual acceptance of a lump sum
properly itemized and supported by
sufficient substantiating data to permit
evaluation;
.2 unit prices stated in the Contract
Documents or subsequently agreed
upon;
.3 cost to be determined in a manner
agreed upon by the parties and a
mutually acceptable fixed or
percentage fee; or
.4 as provided in Subparagraph 7.3.6.
7.3.4 Upon receipt of a Construction Change
Directive, the Contractor shall promptly proceed with
the change in the Work involved and advise the
Architect of the Contractor's agreement or
disagreement with the method, if any, provided in the
Construction Change Directive for determining the
proposed adjustment in the Contract Sum or Contract
Time.
7.3.5 A Construction Change Directive signed by
the Contractor indicates the agreement of the
Contractor therewith, including adjustment in Contract
Sum and Contract Time or the method for determining
them. Such agreement shall be effective immediately
and shall be recorded as a Change Order.
7.3.6 If the Contractor does not respond promptly
or disagrees with the method for adjustment in the
Contract Sum, the method and the adjustment shall
be determined by the Architect on the basis of
reasonable expenditures and savings of those
performing the Work attributable to the change,
including, in case of an increase in the Contract Sum,
a reasonable allowance for overhead and profit. In
such case, and also under Clause 7.3.3.3, the
Contractor shall keep and present, in such form as
the Architect may prescribe, an itemized accounting
together with appropriate supporting data. Unless
otherwise provided in the Contract Documents, costs
for the purposes of this Subparagraph 7.3.6 shall be
limited to the following:
1 costs of labor, including social security,
old age and unemployment insurance,
fringe benefits required by agreement
or custom, and workers' or workmen's
compensation insurance;
.2 costs of materials, supplies and
equipment, including cost of
transportation, whether incorporated or
consumed;
.3 rental costs of machinery and
equipment, exclusive of hand tools,
whether rented from the Contractor or
others;
.4 costs of premiums for all bonds and
insurance, permit fees, and sales, use
or similar taxes related to the Work;
and
5 additional costs of supervision and
field office personnel directly
attributable to the change.
7.3.7 Pending final determination of cost to the
Owner, amounts not in dispute may be included in
Applications for Payment. The amount of credit to be
allowed by the Contractor to the Owner for a deletion
or change which results in a net decrease in the
Contract Sum shall be actual net cost as confirmed by
the Architect. When both additions and credits
covering related Work or substitutions are involved in
a change, the allowance for overhead and profit shall
be figured on the basis of net increase, if any, with
respect to that change.
7.3.8 If the Owner and Contractor do not agree
with the adjustment in Contract Time or the method
for determining it, the adjustment or the method shall
be referred to the Architect for determination.
7.3.9 When the Owner and Contractor agree with
the determination made by the Architect concerning
the adjustments in the Contract Sum and Contract
Time, or otherwise reach agreement upon the
adjustments, such agreement shall be effective
immediately and shall be recorded by preparation and
execution of an appropriate Change Order.
7.4 MINOR CHANGES IN THE WORK
7.4.1 The Architect will have authority to order
minor changes in the Work not involving adjustment in
the Contract Sum or extension of the Contract Time
and not inconsistent with the intent of the Contract
Documents. Such changes shall be effected by
written order and shall be binding on the Owner and
Contractor. The Contractor shall carry out such
written orders promptly.
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ARTICLE 8
TIME
8.1 DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is
the period of time, including adjustments thereto
authorized in writing by the Owner, allotted in the
Contract Documents for Substantial Completion of the
Work.
8.1.2 The date of commencement of the Work is
the date established in the Agreement. The date shall
not be postponed by the failure to act of the
Contractor or of persons or entities for whom the
Contractor is responsible.
8.1.3 The date of Substantial Completion is the
date certified by the Architect in accordance with
Paragraph 9.8 and approved by the Owner.
8.1.4 The term "day" as used in the Contract
Documents shall mean calendar day unless otherwise
specifically defined.
8.2 PROGRESS AND COMPLETION
8.2.1 Time limits stated in the Contract Documents
are of the essence of the Contract. By executing the
Agreement the Contractor confirms that the Contract
Time is a reasonable period for performing the Work.
8.2.2 The Contractor shall not knowingly, except
by agreement or instruction of the Owner in writing,
prematurely commence operations on the site or
elsewhere prior to the effective date of insurance
required by Article 11 to be furnished by the
Contractor. The date of commencement of the Work
shall not be changed by the effective date of such
insurance. Unless the date of commencement is
established by a notice to proceed given by the
Owner, the Contractor shall notify the Owner in writing
not less than five days or other agreed period before
commencing the Work to permit the timely filing of
mortgages, mechanic's liens and other security
interests.
8.2.3 The Contractor shall proceed expeditiously
with adequate forces and shall achieve Substantial
Completion within the Contract Time.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Contractor is delayed at any time in
progress of the Work by an act or neglect of the
Owner or Architect, or of an employee of either, or of
a separate contractor employed by the Owner, or by
changes ordered in the Work, or by labor disputes,
fire, unusual delay in deliveries, unavoidable
casualties or other causes beyond the Contractor's
control, or by other causes which the Architect
determines may justify delay, then the Contract Time
shall be extended by Change Order for such
reasonable time as the Architect may determine.
8.3.2 Contractor's sole remedy, however, for
delay, hindrances in the performance of the Work,
loss of productivity, impact damages, other
consequential damages and similar damages, shall
be an extension in the Contract Time or other
adjustment to the construction schedule, unless
caused by acts constituting intentional interference by
the Owner with Contractor's performance of the Work,
but only if, and to the extent, such acts continue after
the Contractor's notice to the Owner of such
interference, or unless caused by Owner's suspension
of the Work (if the Work is suspended, the Contractor
shall only be entitled to an equitable adjustment to the
Contract Sum).
8.3.3 Claims relating to time shall be made in
accordance with applicable provisions of Paragraph
4.3.
ARTICLE 9
PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
9.1.1 The Contract Sum is stated in the
Agreement and, including authorized adjustments, is
the total amount payable by the Owner to the
Contractor for performance of the Work under the
Contract Documents.
9.2 SCHEDULE OF VALUES
9.2.1 Before the first Application for Payment, the
Contractor shall submit to the Architect and Owner a
schedule of values allocated to various portions of the
Work, prepared in such form and supported by such
data as the Owner may require. This schedule,
unless objected to by the Owner or Architect, shall be
used as a basis for reviewing the Contractor's
Applications for Payment.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 The Contractor shall submit to the Architect
an itemized application for payment for operations
completed in accordance with the schedule of values
with all supporting data required herein attached
("Application for Payment") not later than the twenty-
fifth day of each month. Such Application for
Payment shall be notarized, if required, and
16
supported by such data substantiating the
Contractor's right to payment as the Owner or
Architect may require, such as copies of requisitions
from Subcontractors and material suppliers, and
reflecting retainage if provided for elsewhere in the
Contract Documents.
9.3.1.1 Such Application for Payment may include
requests for payment on account of changes in the
Work which have been properly authorized by
Construction Change Directives but not yet included
in Change Orders.
9.3.1.2 Such Application for Payment may not
include requests for payment of amounts the
Contractor does not intend to pay to a Subcontractor
or material supplier because of a dispute or other
reason.
9.3.2 Unless otherwise provided in the Contract
Documents, payments shall be made on account of
materials and equipment delivered and suitably stored
at the site for subsequent incorporation in the Work.
If approved in advance by the Owner, payment may
similarly be made for materials and equipment
suitably 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 Owner's title
to such materials and equipment or otherwise protect
the Owner's interest, and shall include applicable
insurance, storage and transportation to the site for
such materials and equipment stored off the site.
9.3.3 The Contractor warrants that title to all Work
covered by an Application for Payment will pass to the
Owner no later than the time of payment. The
Contractor further warrants that upon submittal of an
Application for Payment all Work for which
Certificates for Payment have been previously issued
and payments received from the Owner shall, to the
best of the Contractor's knowledge, information and
belief, be free and clear of liens, claims, security
interests or encumbrances in 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.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 The Architect will, not later than the first day
of each month after receipt of the Contractor's
Application for Payment, either issue to the Owner a
Certificate for Payment, with a copy to the Contractor,
for such amount as the Architect determines is
properly due, or notify the Contractor and Owner in
writing of the Architect's reasons for withholding
certification in whole or in part as provided in
Subparagraph 9.5.1.
9.4.2 The issuance of a Certificate for Payment
will constitute a representation by the Architect to the
Owner, based on the Architect's observations at the
site and the data comprising the Application for
Payment, that the Work has progressed to the point
indicated and that, to the best of the Architect's
knowledge, information and belief, quality of the Work
is in accordance with the Contract Documents. The
foregoing representations are subject to an evaluation
of the Work for conformance with the Contract
Documents upon Substantial Completion, to results of
subsequent tests and inspections, to minor deviations
from the Contract Documents correctable prior to
completion and to specific qualifications expressed by
the Architect. The issuance of a Certificate for
Payment will further constitute a representation that
the Contractor is entitled to payment in the amount
certified. However, the issuance of a Certificate for
Payment will not be a representation that the Architect
has (1) made exhaustive or continuous on-site
inspections to check the quality or quantity of the
Work, (2) reviewed construction means, methods,
techniques, sequences or procedures, (3) reviewed
copies of requisitions received from Subcontractors
and material suppliers and other data requested by
the Owner to substantiate the Contractor's right to
payment or (4) made examination to ascertain how or
for what purpose the Contractor has used money
previously paid on account of the Contract Sum.
9.5 DECISIONS TO WITHHOLD
CERTIFICATION
9.5.1 The Architect shall not certify payment and
shall withhold a Certificate for Payment in whole or in
part, to the extent reasonably necessary to protect the
Owner, if in the Architect's opinion the representations
to the Owner required by Subparagraph 9.4.2 cannot
be made. If the Architect is unable to certify payment
in the amount of the Application, the Architect will
notify the Contractor and Owner as provided in
Subparagraph 9.4.1. If the Contractor and Architect
cannot agree on a revised amount, the Architect will
promptly issue a Certificate for Payment for the
amount for which the Architect is able to make such
representations to the Owner. In addition, the
Architect shall not certify payment or, in the event of
subsequently discovered evidence or subsequent
observations, shall nullify the whole or a part of a
Certificate for Payment previously issued, and the
Owner shall be entitled to withhold payment, to such
extent as may be necessary in the Architect's or
Owner's reasonable opinion to protect the Owner from
loss because of:
17
.1 defective Work not remedied;
.2 third party claims filed or reasonable
evidence indicating probable filing of
such claims;
.3 failure of the Contractor to make
payments properly to Subcontractors
or for labor, materials or equipment;
.4 reasonable evidence that the Work
cannot be completed for the unpaid
balance of the Contract Sum;
.5 damage to the Owner or another
contractor;
.6 reasonable evidence that the Work will
not be completed within the Contract
Time, and that the unpaid balance
would not be adequate to cover actual
or liquidated damages for the
anticipated delay; or
7 persistent failure to carry out the Work
in accordance with the Contract
Documents.
9.5.2 When the above reasons for withholding
certification are removed, certification will be made for
amounts previously withheld.
9.6 PROGRESS PAYMENTS
9.6.1 After the Architect has issued a Certificate
for Payment, the Owner shall approve or disapprove
in whole or in part such Certificate and make payment
in respect of approved amounts in the manner and
within the time provided in the Contract documents,
and shall so notify the Architect.
9.6.2 The Contractor shall promptly pay each
Subcontractor, upon receipt of payment from the
Owner, out of the amount paid to the Contractor on
account of such Subcontractor's portion of the Work,
the amount to which said Subcontractor is entitled,
reflecting percentages actually retained from payment
to the Contractor on account of such Subcontractor's
portion of the Work. The Contractor shall, by
appropriate agreement with each Subcontractor,
require each Subcontractor to make payments to
Sub -subcontractors in similar manner.
9.6.3 The Architect 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
Architect and Owner on account of portions of the
Work done by such Subcontractor.
9.6.4 Neither the Owner nor Architect shall have
an obligation to pay or to see to the payment of
money to a Subcontractor except as may otherwise
be required by law.
9.6.5 Payment to material suppliers shall be
treated in a manner similar to that provided in
Subparagraphs 9.6.2. 9.6.3 and 9.6.4.
9.6.6 A Certificate for Payment, a progress
payment, or partial or entire use of occupancy of the
Project by the Owner shall not constitute acceptance
of Work not in accordance with the Contract
Documents.
9.7 FAILURE OF PAYMENT
9.7.1 If the Architect does not issue a Certificate
for Payment, through no fault of the Contractor, within
seven days after receipt of the Contractor's
Application for Payment, or if the Owner does not pay
the Contractor within seven days after the date
established in the Contract Documents the amount
certified by the Architect and approved by the Owner,
then the Contractor may, upon seven additional days'
written notice to the Owner and Architect, stop the
Work until payment of the amount properly owing has
been received. The Contract Time shall be extended
appropriately and the Contract Sum shall be
increased by the amount of the Contractor's
reasonable costs of shut -down, delay and start-up,
which shall be accomplished as provided in Article 7.
9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the
progress of the Work when the Work or designated
portion thereof is sufficiently complete in accordance
with the Contract Documents so the Owner can
legally use and occupy the Work for its intended
purposes without material interference from
unfinished or improperly finished items of work and
subject only to minor punchlist items requiring
completion.
9.8.2 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 a
comprehensive list of items to be completed or
corrected. The Contractor shall proceed promptly to
complete and correct items on the list. Failure to
include an item on such list does not alter the
responsibility of the Contractor to complete all Work in
accordance with the Contract Documents. Upon
18
receipt of the Contractor's list, the Architect will make
an inspection to determine whether the Work or
designated portion thereof is substantially complete.
If the Architect's inspection discloses any item,
whether or not included on the Contractor's 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. The Contractor shall then submit a request
for another inspection by the Architect to determine
Substantial Completion. When the Work or
designated portion thereof is substantially complete,
the Architect will prepare a Certificate of Substantial
Completion which shall, subject to the approval of the
Owner, 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 the Work or
designated portion thereof unless otherwise provided
in the Certificate of Substantial Completion. 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.
9.8.3 Upon Substantial Completion of the Work or
designated portion thereof and upon application by
the Contractor and certification by the Architect and
approval thereof by the Owner, the Owner shall make
payment, reflecting adjustment in retainage, if any, for
such Work or portion thereof as provided in the
Contract Documents.
9.9 PARTIAL OCCUPANCY FOR USE
9.9.1 The Owner may occupy or use any
completed or partially completed portion of the Work
at any stage when such portion is designated by
separate agreement with the Contractor, provided
such occupancy or use is consented to by the insurer,
as required under Subparagraph 11.3.6, and
authorized by public authorities having jurisdiction
over the Work. Such partial occupancy or use may
commence whether or not the portion is substantially
complete, provided the Owner and Contractor have
accepted in writing the responsibilities assigned to
each of them for payments, retainage if any, security,
maintenance, heat, utilities, damage to the Work and
insurance, and have agreed in writing concerning the
period for correction of the Work and commencement
of warranties required by the Contract Documents.
When the Contractor considers a portion substantially
complete, the Contractor shall prepare and submit a
list to the Architect as provided under Subparagraph
9.8.2. Consent of the Contractor to partial occupancy
or use shall not be unreasonably withheld. The stage
of the progress of the Work shall be determined by
written agreement between the Owner and Contractor
or, if no agreement is reached, by decision of the
Architect.
9.9.2 Immediately prior to such partial occupancy
or use, the Owner, Contractor and Architect shall
jointly inspect the area to be occupied or portion of
the Work to be used in order to determine and record
the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial
occupancy or use of a portion or portions of the Work
shall not constitute acceptance of Work not complying
with the requirements of the Contract Documents.
9.10 FINAL COMPLETION AND FINAL
PAYMENT
9.10.1 Upon receipt of written notice that the Work
is ready for final inspection and acceptance and upon
receipt of a final Application for Payment, the
Architect will promptly make such inspection and,
when the Architect finds the Work acceptable under
the Contract Documents and the Contract fully
performed, the Architect will promptly issue a final
Certificate for Payment stating that to the best of the
Architect's knowledge, information and belief, and on
the basis of the Architect's observations and
inspections, the Work has been completed in
accordance with the terms and conditions of the
Contract Documents and that the entire balance
found to be due the Contractor and noted in said final
Certificate is due and payable; provided payment in
respect to such Application for Payment shall be
subject to the approval of the Owner. The Architect's
final Certificate for Payment will constitute a further
representation that conditions listed in Subparagraph
9.10.2 as precedent to the Contractor's being entitled
to final payment have been fulfilled.
9.10.2 Neither final payment nor any remaining
retained percentage shall become due until the
Contractor submits to the Architect (1) an affidavit that
payrolls, bills for materials and equipment, and other
indebtedness connected with the Work for which the
Owner or the Owner's property might be responsible
or encumbered (less amounts withheld by Owner)
have been paid or otherwise satisfied, (2) a certificate
evidencing that insurance required by the Contract
Documents to remain in force after final payment is
currently in effect and will not be cancelled or allowed
to expire until at least 30 days' prior written notice has
been given to the Owner, (3) a written statement that
the Contractor knows of no substantial reason that the
19
insurance will not be renewable to cover the period
required by the Contract Documents, (4) consent of
surety, if any, to final payment and (5), if required by
the Owner, other data establishing payment or
satisfaction of obligations, such as receipts, releases
and waivers of liens, claims, security interests or
encumbrances arising out of the Contract, to the
extent and in such form as may be designated by the
Owner. If a Subcontractor refuses to furnish a
release or waiver required by the Owner, the
Contractor may furnish a bond satisfactory to the
Owner to indemnify the Owner against such lien. If
such lien remains unsatisfied after payments are
made, the Contractor shall refund to the Owner all
money that the Owner may be compelled to pay in
discharging such lien, including all costs and
reasonable attorneys' fees.
9.10.3 If, after Substantial Completion of the Work,
final completion thereof is materially delayed through
no fault of the Contractor or by issuance of Change
Orders affecting final completion, and the Architect so
confirms, the Owner shall, upon application by the
Contractor and certification by the Architect, and
without terminating the Contract, make payment of
the balance due for that portion of the Work fully
completed and accepted. If the remaining balance for
Work not fully completed or corrected is less than
retainage stipulated in the Contract Documents, and if
bonds have been furnished, the written consent of
surety to payment of the balance due for that portion
of the Work fully completed and accepted shall be
submitted by the Contractor to the Architect prior to
certification of such payment. Such payment shall be
made under terms and conditions governing final
payment, except that it shall not constitute a waiver of
claims. The making of final payment shall constitute a
waiver of claims by the Owner as provided in
Subparagraph 4.3.5.
9.10.4 Acceptance of final payment by the
Contractor, a Subcontractor or material supplier shall
constitute a waiver of claims by that payee except
those previously made in writing and identified by that
payee as unsettled at the time of final Application for
Payment. Such waivers shall be in addition to the
waiver described in Subparagraph 4.3.5.
ARTICLE 10
PROTECTION OF PERSONS AND
PROPERTY
10.1 SAFETY PRECAUTIONS AND
PROGRAMS
10.1.1 The Contractor shall be responsible for
initiating, maintaining and supervising all safety
precautions and programs in connection with the
performance of the Contract.
10.1.2 In the event the Contractor encounters on
the site material reasonably believed to be asbestos
or polychlorinated biphenyl (PCB) which has not been
rendered harmless, the Contractor shall immediately
stop Work in the area affected and report the
condition to the Owner and Architect in writing. The
Work in the affected area shall not thereafter be
resumed except by written agreement of the Owner
and Contractor if in fact the material is asbestos or
polychlorinated biphenyl (PCB) and has not been
rendered harmless. The Work in the affected area
shall be resumed in the absence of asbestos or
polychlorinated biphenyl (PCB), or when it has been
rendered harmless, by written agreement of the
Owner and Contractor, or in accordance with final
determination by the Architect.
10.1.3 The Contractor shall not be required
pursuant to Article 7 to perform without consent any
Work relating to asbestos or polychlorinated biphenyl
(PCB).
10.1.4 To the fullest extent permitted by law, the
Owner shall indemnify and hold harmless the
Contractor, Architect, Architect's consultants and
agents and employees of any of them from and
against claims, damages, losses and expenses,
including but not limited to attorneys' fees, arising out
of or resulting from performance of the Work in the
affected area if in fact the material is asbestos or
polychlorinated biphenyl (PCB) and has not been
rendered harmless, provided that such claim,
damage, loss or expense is attributable to bodily
injury, sickness, disease or death, or to injury to or
destruction of tangible property (other than the Work
itself) including loss of use resulting therefrom, but
only to the extent caused in whole or in part by
negligent acts or omissions of the Owner, anyone
directly or indirectly employed by the Owner or
anyone for whose acts the Owner 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 Subparagraph 10.1.4.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take reasonable
precautions for safety of, and shall provide
reasonable protection to prevent damage, injury or
loss to:
20
employees on the Work and other
persons who may be affected thereby;
.2 the Work and materials and equipment
to be incorporated therein, whether in
storage on or off the site, under care,
custody or control of the Contractor or
the Contractor's Subcontractors or
Sub -subcontractors; and
.3 other property at the site or adjacent
thereto, such as trees, shrubs, lawns,
walks, pavements, roadways,
structures and utilities not designated
for removal, relocation or replacement
in the course of construction.
10.2.2 The Contractor shall give notices and comply
with applicable laws, ordinances, rules, regulations
and lawful orders of public authorities bearing on
safety of persons or property or their protection from
damage, injury or loss.
10.2.3 The Contractor shall erect and maintain, as
required by existing conditions and performance of
the Contract, reasonable safeguards for safety and
protection, including posting danger signs and other
warnings against hazards, promulgating safety
regulations and notifying owners and users of
adjacent sites and utilities.
10.2.4 When use or storage of explosives or other
hazardous materials or equipment or unusual
methods are necessary for execution of the Work, the
Contractor shall exercise utmost care and carry on
such activities under supervision of properly qualified
personnel.
10.2.5 The Contractor shall promptly remedy
damage and loss (other than damage or loss insured
under property insurance required by the Contract
Documents) to property referred to in Clauses
10.2.1.2 and 10.2.1.3 caused in whole or in part by
the Contractor, a Subcontractor, a Sub -subcontractor,
or anyone directly or indirectly employed by any of
them, or by anyone for whose acts they may be liable
and for which the Contractor is responsible under
Clauses 10.2.1.2 and 10.2.1.3, except damage or loss
attributable to acts or omissions of the Owner 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. The foregoing
obligations of the Contractor are in addition to the
Contractor's obligations under Paragraph 3.18.
10.2.6 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 Contractor's superintendent
unless otherwise designated by the Contractor in
writing to the Owner and Architect.
10.2.7 The Contractor shall not load or permit any
part of the construction or site to be loaded so as to
endanger its safety.
10.2.8 The Contractor shall promptly report in
writing to the Owner and Architect all accidents
arising out of or in connection with the Work which
cause death, personal injury or property damage,
giving full details and statements of any witnesses. In
addition, if death or serious personal injuries or
serious damages are caused, the accident shall be
reported immediately by telephone or messenger to
the Owner and Architect.
10.2.9 The Contractor shall not direct, suffer or
permit any of its employees or agents to at any time
handle, use, manufacture, store or dispose of any
flammables, explosives, radioactive materials,
hazardous wastes or materials, toxic wastes or
materials, or other similar substances, petroleum
products or derivatives or any substance subject to
regulation (collectively "Hazardous Materials") by or
under any applicable law relating to the protection of
the environment or the keeping, use or disposition of
environmentally hazardous materials, substances, or
wastes, presently in effect or hereafter adopted, all
amendments thereto, and all rules and regulations
issued pursuant to any of the foregoing (collectively
"Environmental Laws") in or about the Project, nor
shall the Contractor suffer or permit any Hazardous
Materials to be used in any manner not fully in
compliance with all Environmental Laws or the Project
to become contaminated with any Hazardous
Materials. Subject to Owner's prior written consent,
Contractor may handle, store, use or dispose of
Hazardous Materials to the extent customary and
necessary for the performance of Contractor's duties
hereunder, provided that Contractor shall do so in
compliance with all Applicable Laws, never allow such
Hazardous Materials to contaminate the environment,
and shall not bring or use any asbestos containing
materials on the Project.
10.3 EMERGENCIES
10.3.1 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. Additional compensation or
extension of time claimed by the Contractor on
account of an emergency shall be determined as
provided in Paragraph 4.3 and Article 7.
21
ARTICLE 11
INSURANCE AND BONDS
rNOTE: REFERENCE EXHIBIT A-1, A-2 OR A-3.
BASED UPON THE BOX CHECKED ON PAGE 1
OF THE AGREEMENT BETWEEN OWNER AND
CONTRACTORI
11.1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 The Contractor shall, and shall contractually
require its subcontractors and anyone else for whose
acts any of them may be liable, to purchase from and
maintain in a company or companies lawfully
authorized to do business in the jurisdiction in which
the Project is located such insurance as will protect
the Contractor and Owner and the City of Coppell
from claims set forth below which may arise out of or
result from the Contractor's operations under the
Contract and for which the Contractor may be legally
liable, whether such operations be by the Contractor
or by a Subcontractor or by anyone directly or
indirectly employed by any of them, or by anyone for
whose acts any of them may be liable:
.1 claims under workers' or workmen's
compensation, disability benefit and
other similar or equivalent employee
benefit acts which are applicable to the
Work to be performed;
.2 claims for damages because of bodily
injury, occupational sickness or
disease, or death of the Contractor's
employees;
.3 claims for damages because of bodily
injury, sickness or disease, or death of
any person other than the Contractor's
employees;
.4 claims for damages insured by usual
personal injury liability coverage which
are sustained (1) by a person as a
result of an offense directly or
indirectly related to employment of
such person by the Contractor, or (2)
by another person;
5 claims for damages, other than to the
Work itself, because of injury to or
destruction of tangible property,
including loss of use resulting
therefrom;
.6 claims for damages because of bodily
injury, death of a person or property
damage arising out of ownership,
maintenance or use of a motor vehicle;
and
7 claims involving contractual liability
insurance applicable to the
Contractor's obligations under
Para -graph 3.18.
.8 claims for damages insured by errors &
omissions and/or professional liability
coverage, if required by the specified
Exhibit A-1. A-2, or A-3 to the General
Conditions of the Contract for
Construction.
11.1.2 The insurance required by Subparagraph
11.1.1 shall be primary and non-contributory, written
for not less than limits of liability specified in the
specified Exhibit A-1. A-2, or A-3 to the General
Conditions of the Contract for Construction, or
required by law, whichever coverage is greater.
Coverages, other than professional liability, shall be
written on an occurrence basis, and shall be
maintained without interruption from date of
commencement of the Work until date of final
payment and termination of any coverage required to
be maintained after final payment.
11.1.3 Certificates of Insurance acceptable to the
Owner and the City of Coppell shall be filed with the
Owner prior to commencement of the Work. These
Certificates and the insurance policies required by this
Paragraph 11.1 shall contain a provision that
coverages afforded under the policies will not be
cancelled until at least 30 days' prior written notice
has been given to the Owner. If any of the foregoing
insurance coverages are required to remain in force
after final payment and are reasonably available, an
additional certificate evidencing continuation of such
coverage shall be submitted with the final Application
for Payment as required by Subparagraph 9.10.2.
Acceptance by Owner of evidence of coverage by
Contractor or its subcontractors not in compliance
with the terms of the insurance required herein, does
not constitute a waiver of such insurance.
11.2 OWNER'S LIABILITY INSURANCE
11.2.1 The Owner shall be responsible for
purchasing and maintaining the Owner's usual liability
insurance. Optionally, the Owner may purchase and
maintain contingent other insurance for self-protection
against claims which may arise from operations under
the Contract. The Contractor shall not be responsible
for purchasing and maintaining this optional Owner's
liability insurance unless specifically required by the
Contract Documents.
22
11.3 PROPERTY INSURANCE
11.3.1 Unless otherwise designated in the
Agreement (the party required to maintain such
coverage, shall hereinafter be known as the
"Responsible Party"), the Owner shall purchase and
maintain, in a company or companies lawfully
authorized to do business in the jurisdiction in which
the Project is located, property insurance in the
amount of the initial Contract Sum as well as
subsequent modifications thereto for the entire Work
at the site on a replacement cost basis. Such
property insurance shall be maintained, unless
otherwise agreed in writing by all persons and entities
who are beneficiaries of such insurance, until final
payment has been made as provided in Paragraph
9.10 or until no person or entity other than the Owner
has an insurable interest in the property required by
this Paragraph 11.3 to be covered, whichever is
earlier. This insurance shall include interests of the
Owner, the Contractor, Subcontractors and Sub -
subcontractors in the Work.
11.3.1.1 Property insurance shall be on an all-risk
policy form and shall insure against the perils of fire
and extended coverage and physical loss or damage
including, without duplication of coverage, theft,
vandalism, malicious mischief, collapse, falsework,
temporary buildings and debris removal including
demolition occasioned by enforcement of any
applicable legal requirements, and from all other
casualties that are covered by extended coverage
and from other hazards as may be covered by the
form of "broad form" builders risk insurance then
available and shall cover reasonable compensation
for Architect's services and expenses required as a
result of such insured loss. Coverage for loss of
income or use due to delayed start will be included in
this policy. Policy shall also insure flood, earthquake
and tier one wind damages as required by project
location, at the discretion of Owner or its Lender. The
form of policy for this coverage shall be Completed
Value.
11.3.1.2 If the Contractor or Owner, as applicable, is
damaged by the failure or neglect of the Responsible
Party to purchase or maintain insurance as described
above, then the Responsible Party shall bear all
reasonable costs properly attributable thereto.
11.3.1.3 The Contractor is responsible for deductibles
for any losses caused by the acts or omissions of
Contractor. The Owner shall be responsible for
payment of any deductibles due on account of a loss
caused by events outside of Contractor's or its
agents' reasonable control.
11.3.1.4 Unless otherwise provided in the Contract
Documents, this property insurance shall cover
portions of the Work stored off the site after written
approval of the Owner at the value established in the
approval, and also portions of the Work in transit.
11.3.2 If Owner is the Responsible Party, and the
Contractor requests in writing that insurance for risks
other than those described herein or for other special
hazards be included in the property insurance policy,
such additional risks shall, if possible, be included in
such insurance, and the cost thereof shall be charged
to the Contractor by appropriate Change Order.
11.3.3 Before an exposure to loss may occur, the
Responsible Party shall file with the Owner or
Contractor, as applicable, a certificate of insurance for
each such policy that includes insurance coverages
required by this Paragraph 11.3 to be maintained.
Each certificate shall contain all generally applicable
conditions, definitions, exclusions and endorsements
related to this Project. Each certificate shall contain a
provision that the policy will not be cancelled or
allowed to expire until at least 30 days' prior written
notice has been given to the Contractor or Owner, as
applicable.
11.3.4 A loss insured under the property insurance
required to be maintained by the Owner shall be
adjusted by the Owner and made payable to the
Owner for the insureds, as their interests may appear,
subject to requirements of any applicable mortgagee
clause and of Subparagraph 11.3.6. The Contractor
shall pay Subcontractors their just shares of
insurance proceeds received by the Contractor, and
by appropriate agreements, written where legally
required for validity, shall require Subcontractors to
make payments to their Sub -subcontractors in similar
manner. A loss insured under any insurance required
to be maintained by the Contractor in this Paragraph
11.3 shall require the approval and consent of Owner
prior to adjustment or settlements, except for any
insurance covered under Subparagraph 11.3.7.
11.3.5 The Responsible Party shall, upon
occurrence of an insured loss, distribute insurance
proceeds received 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 property shall be covered by
appropriate Change Order.
11.3.6 Partial occupancy or use in accordance with
Paragraph 9.9 shall not commence until the insurance
company or companies providing property insurance
have consented to such partial occupancy or use by
endorsement or otherwise. The Owner and the
Contractor shall take reasonable steps to obtain
23
consent of the insurance company or companies and
shall, without mutual written consent, take no action
with respect to partial occupancy or use that would
cause cancellation, lapse or reduction of insurance.
11.3.7 Contractor tools, equipment and materials
used to perform the work which will not become part
of the permanent structure will not be covered by any
builders risk or other policy of Owner.
11.4 PERFORMANCE BOND AND PAYMENT
BOND
11.4.1 The Owner shall have the right to require the
Contractor to furnish bonds covering faithful
performance of the Contract and payment of
obligations arising thereunder as stipulated in bidding
requirements or specifically required in the Contract
Documents on the date of execution of the Contract.
11.4.2 Upon the request of any person or entity
appearing to be a potential beneficiary of bonds
covering payment of obligations arising under the
Contract, the Contractor shall promptly furnish a copy
of the bonds or shall permit a copy to be made.
ARTICLE 12
UNCOVERING AND CORRECTION
OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to
the Architect's request or to requirements specifically
expressed in the Contract Documents, it must, if
required in writing by the Architect, be uncovered for
the Architect's observation and be replaced at the
Contractor's expense without change in the Contract
Time.
12.1.2 If a portion of the Work has been covered
which the Architect has not specifically requested to
observe prior to its being covered, the Architect may
request to see such Work and it shall be uncovered
by the Contractor. If such Work is in accordance with
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 contract or in
which event the Owner shall be responsible for
payment of such costs.
12.2 CORRECTION OF WORK
12.2.1 The Contractor shall promptly correct Work
rejected by the Architect 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.
12.2.2 If, within one year after the date of
Substantial Completion of the Work or designated
portion thereof, or after the date for commencement
of warranties established under Subparagraph 9.9.1,
or by terms of an applicable special warranty required
by the Contract Documents, any of the Work is found
to be not in accordance with the requirements of the
Contract Documents, the Contractor shall correct it
promptly at the Contractor's sole expense after receipt
of written notice from the Owner to do so unless the
Owner has previously given the Contractor a written
acceptance of such condition. This period of one 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 and with respect
to any corrective work performed pursuant to this
Paragraph 12.2.2 shall commence anew upon
completion of such Work. This obligation under this
Subparagraph 12.2.2 shall survive acceptance of the
Work under the Contract and termination of the
Contract. The Owner shall give such notice promptly
after discovery of the condition.
12.2.3 The Contractor shall remove from the site
portions of the Work which are not in accordance with
the requirements of the Contract Documents and are
neither corrected by the Contractor nor accepted by
the Owner.
12.2.4 If the Contractor fails to correct
nonconforming Work within a reasonable time, the
Owner may correct it in accordance with
Subparagraph 2.4.1. If the Contractor does not
proceed with correction of such nonconforming Work
within a reasonable time fixed by written notice from
the Architect, the Owner may remove it and store the
salvable materials or equipment at the Contractor's
expense. If the Contractor does not pay costs of such
removal and storage within ten days after written
notice, the Owner may upon ten additional days'
written notice sell such materials and equipment at
auction or at private sale and shall account for the
proceeds thereof, after deducting costs and damages
that should have been borne by the Contractor,
including compensation for the Architect's services
and expenses made necessary thereby and attorneys'
fees and expenses. If such proceeds of sale do not
cover costs which the Contract or should have borne,
the Contract Sum shall be reduced by the deficiency.
24
If payments then or thereafter due the Contractor are
not sufficient to cover such amount, the Contractor
shall pay the difference to the Owner.
12.2.5 The Contractor shall bear the cost of
correcting destroyed or damaged construction,
whether completed or partially completed, of the
Owner or separate contractors caused by the
Contractor's correction or removal of Work which is
not in accordance with the requirements of the
Contract Documents.
12.2.6 Nothing contained in this Paragraph 12.2
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 year as
described in Subparagraph 12.2.2 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
may be sought to be enforced, nor to the time within
which proceedings may be commenced to establish
the Contractor's liability with respect to the
Contractor's obligations other than specifically to
correct the Work.
12.3 ACCEPTANCE OF NONCONFORMING
WORK
12.3.1 If the Owner prefers to accept Work which is
not in accordance with the requirements of the
Contract Documents, the Owner may do so instead of
requiring its removal and correction, in which case the
Contract Sum will be reduced as appropriate and
equitable. Such adjustment shall be effected whether
or not final payment has been made.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 GOVERNING LAW
13.1.1 The Contract shall be governed by the law of
the place where the Project is located.
13.2 SUCCESSORS AND ASSIGNS
13.2.1 The Owner and Contractor respectively bind
themselves, their partners, successors, assigns and
legal representatives to the other party hereto and to
partners, successors, assigns and legal
representatives of such other party in respect to
covenants, agreements and obligations contained in
the Contract Documents. The Contractor shall not
assign the Contract as a whole, or the right to income
under the Contract, without the prior written consent
of the Owner. Any such attempted assignment in
violation of the foregoing shall be void. The Owner
shall have the right to assign the Contract and all
warranties and guaranties delivered in connection
herewith to any tenant in or purchaser of the Project
and the Contractor hereby consents to any such
assignment. Notwithstanding any such assignment,
the Owner hereby reserves its rights and remedies
against the Contractor hereunder and under any such
warranties and guaranties.
13.3 RIGHTS AND REMEDIES
13.3.1 Duties and obligations imposed by the
Contract Documents and rights and remedies
available thereunder shall be in addition to and not a
limitation of duties, obligations, rights and remedies
otherwise imposed or available by law.
13.3.2 No action or failure to act by the Owner,
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 specifically agreed in writing.
13.4 TESTS AND INSPECTIONS
13.4.1 Tests, inspections and approvals of portions
of the Work required by the Contract Documents or by
laws, ordinances, rules, regulations or orders of public
authorities having jurisdiction shall be made at an
appropriate time. Unless otherwise provided, the
Contractor shall make arrangements for such tests,
inspections and approvals with an independent
testing laboratory or entity selected by the Owner, or
with the appropriate public authority. The Contractor
shall give the Architect timely notice of when and
where tests and inspections are to be made so the
Architect may observe such procedures. The Owner
shall bear costs of all tests, inspections or approvals
except those required due to any failure of the
Contractor to comply with the requirements of the
Contract Documents, the cost of which shall be borne
by the Contractor.
13.4.2 If the Architect, Owner or public authorities
having jurisdiction determine that portions of the Work
require additional testing, inspection or approval not
included under Subparagraph 13.4.1, 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 Owner, 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 Owner shall bear
such costs except as provided in Subparagraph
13.4.3.
25
13.4.3 If such procedures for testing, inspection or
approval under Subparagraphs 13.4.1 and 13.4.2
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.
13.4.4 Required certificates for testing, inspection
or approval shall, unless otherwise required by the
Contract Documents, be secured by the Contractor
and promptly delivered to the Architect.
13.4.5 If the Architect is to observe tests,
inspections or approvals required by the Contract
Documents, the Architect will do so promptly and,
where practicable, at the normal place of testing.
13.4.6 Tests or inspections conducted pursuant to
Contract Documents shall be made promptly to avoid
unreasonable delay in the Work.
13.5 INTEREST
13.5.1 Payments due and unpaid under the
Contract Documents shall bear interest from the date
payment is due at such rate as the parties may agree
upon in writing or, in
the absence thereof, at the legal rate prevailing from
time to time at the place where the Project is located.
13.6 CONFIDENTIALITY AND
NONDISCLOSURE
13.6.1 In the course of providing the services herein
described, Contractor will learn information and other
matters pertaining to Owner, the property upon which
the services are being performed, and their
operations, condition and affairs generally
(collectively, "Information"). Contractor shall hold all
Information in the strictest of confidence and will not
disclose the Information, directly or indirectly, to any
other person or party whatsoever. Contractor agrees
not to use or allow to be used any Information for any
purpose other than to perform the services which are
contracted hereby. Notwithstanding anything in this
Agreement to the contrary. Owner shall be entitled, in
addition to all other remedies available at law or in
equity, to immediately seek and obtain the remedies
of injunction and specific performance without
condition or obligation to prove damages in advance
thereof. Contractor shall also ensure that any
Subcontractors or other parties operating by, through
or under Contractor abide by the terms of this
paragraph and Contractor shall be liable to Owner for
any breach thereof.
13.7 ENTIRE AGREEMENT; CONFLICT;
AUTHORITY
13.7.1 This Agreement represents the entire and
integrated agreement between the parties and
supersedes prior negotiations, representations, or
agreements, whether written or oral. To the extent of
any conflict between the terms of this Agreement and
any other agreement between Owner and Company,
the terms of this Agreement shall govern and control.
The parties executing on behalf of Owner and
Company, respectively, hereby represent to the other
party that they have full authority to execute this
Agreement and create a fully binding contract
pursuant to the terms hereof. In the event of any
conflict between the Agreement Between Owner and
Contractor and these General Conditions of Contract
for Construction, the terms and conditions of the
Agreement Between Owner and Contractor shall
control.
13.8 PROLOGIS SUPPLIER CODE OF
CONDUCT
Owner expects its contractors, suppliers, consultants,
and their representatives, to conduct all business
activities in full compliance with the applicable laws,
rules and regulations of the countries in which they
operate while conducting business with and/or on
behalf of Owner.
The following expectations are in addition to any
requirements that may be detailed in this Agreement.
We expect our contractors, suppliers, consultants and
their representatives to adhere and self -monitor in
accordance to the following requirements:
Business Practices
• Maintain professional standards throughout all
business dealings.
• Consult with Prologis legal counsel on any matter
relating to actual or potential noncompliance with
laws and regulations.
• Maintain integrity and confidentiality of data,
recordkeeping and intellectual property.
• Utilize information technology provided by
Prologis to conduct only Prologis-related
business.
• Avoid insider trading, defined as the purchase or
sale of securities while in the possession of
material, non-public information.
• Engage in ethical behavior related to and limiting
business courtesies, gifts, kickbacks or other
incentives to obtain and/or retain Prologis
business.
26
Comply with all anti -corruption, antitrust and fair
competition laws.
Employment Practices
• Conduct employment practices in compliance
with regulations.
• Prohibit the use of involuntary and child labor.
• Comply with all local minimum wage laws.
• Comply with all local labor laws and standards
regarding working hours, overtime and public
holidays.
• Provide a work environment free of discrimination
and harassment based on gender, race, color,
national origin, age, religion, marital status,
disability, sexual orientation or veteran status.
• Promote a safe and healthy work environment in
accordance with all applicable regulations.
• Prohibit inhumane treatment and/or disciplinary
action.
• Treat all employees with dignity and respect.
This contractor and any subcontractor shall abide
by the requirements of 41 CFR §§ 60-1.4(a), 60-
300.5(a) and 60-741.5(a). These regulations
prohibit discrimination against qualified
individuals based on their status as protected
veterans or individuals with disabilities, and
prohibit discrimination against all individuals
based on their race, color, religion, sex, or
national origin. Moreover, these regulations
require that covered prime contractors and
subcontractors take affirmative action to employ
and advance in employment individuals without
regard to race, color, religion, sex, national origin,
protected veteran status or disability.
Environmental Practices
• Comply with the requirements of applicable
federal, state and local environmental laws and
regulations.
• Promote environmental benefits through reduced
energy and water consumption and
implementation of waste minimization programs.
ARTICLE 14
TERMINATION OR SUSPENSION
OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if
the Work is stopped for a period of 30 days through
no act or fault of the Contractor or a Subcontractor,
Sub -subcontractor or their agents or employees or
any other persons performing portions of the Work
under contract with the Contractor, for any of the
following reasons:
issuance of an order of a court or other
public authority having jurisdiction;
.2 an act of government, such as a
declaration of national emergency,
making material unavailable;
.3 because the Architect has not issued a
Certificate for Payment and has not
notified the Contractor of the reason
for withholding certification as provided
in Subparagraph 9.4.1, or because the
Owner has not made payment on a
Certificate for Payment within the time
stated in the Contract Documents and
such failure has not been remedied
within ten (10) days of the receipt by
the Owner of written notice from the
Contractor; or
.4 if repeated suspensions, delays or
interruptions by the Owner as
described in Paragraph 14.3 constitute
in the aggregate more than 100
percent of the total number of days
scheduled for completion, or 120 days
in any 365 -day period, whichever is
less.
14.1.2 If one of the above reasons exists, the
Contractor may, upon seven additional days' written
notice to the Owner and Architect, terminate the
Contract and recover from the Owner payment for
Work executed and for proven loss with respect to
materials, equipment, tools, and construction
equipment and machinery, including reasonable
overhead and profit.
14.1.3 If the Work is stopped for a period of 60 days
through no act or fault of the Contractor or a
Subcontractor or their agents or employees or any
other persons performing portions of the Work under
contract with the Contractor because the Owner has
persistently failed to fulfill the Owner's obligations
under the Contract Documents with respect to matters
important to the progress of the Work, the Contractor
may, upon seven additional days' written notice to the
Owner and the Architect, terminate the Contract and
recover from the Owner as provided in Subparagraph
14.1.2.
14.2 TERMINATION BY THE OWNER FOR
CAUSE
14.2.1 If the Contractor shall institute proceedings
or consent to proceedings requesting relief or
arrangement under the Federal Bankruptcy Act or any
similar or applicable federal or state law, or if a
27
petition under any federal or state bankruptcy or
insolvency law is filed against the Contractor and
such petition is not dismissed within sixty (60) days
from the date of said filing, or if the Contractor admits
in writing his inability to pay his debts generally as
they become due, or if he makes a general
assignment for the benefit of his creditors, or if a
receiver, liquidator, trustee or assignee is appointed
on account of his bankruptcy or insolvency; or if a
receiver of all or any substantial portion of the
Contractor's properties is appointed or the Contractor
fails to provide the Owner with written notice promptly
upon the occurrence of any material adverse change
in the financial condition of the Contractor; or if the
Contractor abandons the Work, or fails, except in
cases for which extension of time is provided under
the Contract Documents, to prosecute promptly and
diligently the Work or to supply enough properly
skilled workmen or proper materials for the Work; or if
the Contractor submits an Application for Payment,
sworn statement, waiver of lien, affidavit or document
of any nature whatsoever which is intentionally
falsified; or if he fails to make prompt payment of
amounts properly owing to Subcontractors or for
materials or labor or otherwise breaches his
obligations under any subcontract with a
Subcontractor; or if a mechanic's or materialmen's
lien or notice of lien is filed against any part of the
Work or the site of the Project for reasons other than
the failure of the Owner to make payments to the
Contractor in accordance with the requirements of the
Contract Documents and not promptly bonded or
insured over by the Contractor in a manner
satisfactory to the Owner; or if the Contractor
disregards any laws, statutes, ordinances, rules,
regulations or orders of any governmental body, or
public or quasi -public authority having jurisdiction of
the Work or the site of the Project; or if he otherwise
violates or fails to perform in any material respect any
provision of the Contract Documents.
14.2.2 When any of the above reasons exist, the
Owner, may without prejudice to any other rights or
remedies of the Owner and after giving the Contractor
and the Contractor's surety, if any, seven days' written
notice, terminate employment of the Contractor and
may, subject to any prior rights of the surety:
take possession of the site and of all
materials, equipment, tools, and
construction equipment and machinery
thereon owned by the Contractor;
.2 accept assignment of subcontractors
pursuant to Paragraph 5.4; and
.3 finish the Work by whatever
reasonable method the Owner may
deem expedient. [Signature Page and Exhibits to Follow]
14.2.3 If requested by the Owner, the Contractor
shall remove any part or all of his equipment,
machinery and supplies from the Project Site within
seven (7) days from the date of such request, and in
the event of the Contractor's failure to do so, the
Owner shall have the right to remove or store such
equipment, machinery and supplies at the
Contractor's expense.
14.2.4 When the Owner terminates the Contract for
one of the reasons stated in Subparagraph 14.2.1, the
Contractor shall not be entitled to receive further
payment until the Work is finished.
14.2.5 If the unpaid balance of the Contract Sum
exceeds costs of finishing the Work, including
compensation for the Architect's services and
expenses made necessary thereby, such excess shall
be paid to the Contractor. If such costs exceed the
unpaid balance, the Contractor shall pay the
difference to the Owner. The amount to be paid to
the Contractor or Owner, as the case may be, shall be
certified by the Architect, upon application, and this
obligation for payment shall survive termination of the
Contract.
14.3 SUSPENSION BY THE OWNER FOR
CONVENIENCE
14.3.1 The Owner may, without cause, order the
Contractor in writing to suspend, delay or interrupt the
Work in whole or in part for such period of time as the
Owner may determine.
14.3.2 An adjustment shall be made for increases in
the cost of performance of the Contract, including
profit on the increased cost of performance, caused
by suspension, delay or interruption. No adjustment
shall be made to the extent:
.1 that performance is, was or would
have been so suspended, delayed or
interrupted by another cause for which
the Contractor is responsible; or
.2 that an equitable adjustment is made
or denied under another provision of
this Contract.
14.3.3 Adjustments made in the cost of
performance may have a mutually agreed fixed or
percentage fee.
28
IN WITNESS WHEREOF, the parties hereto have executed these General Conditions of Contract for
Construction on the date upon which the parties executed the Agreement Between Owner and Contractor in order to
confirm the incorporation of these General Conditions of Contract for Construction into the Agreement Between
Owner and Contractor.
This Agreement, and any change orders, modifications, amendments, and/or addenda hereto, may be executed in
any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall
constitute one Agreement. To facilitate such execution, the parties may execute and exchange by email in PDF
format counterparts of the signature pages, which shall be deemed originals.
•C
PROLOGIS, L.P., a Delaware limited partnership
By: PROLOGIS, INC.,
a Maryland corporation, its general partner
{Insert Local Prologis, L.P. Street Address}
{Insert Local Prologis, L.P. Street City, State, zip}
CONTRACTOR
{Insert Contractor Name}
{Insert Contractor Street Address}
{Insert Contractor City, State, Zip}
By: By:
Name: Name:
Title: Title:
If execution authority policies require a second signature:
By:
Name:
Title:
29
EXHIBIT A-1 TO THE GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
BUILDING AND LAND DEVELOPMENT INSURANCE REQUIREMENTS
All Building and Land Development Projects require applying the Building and Land Development Limits set forth in this
Exhibit A-1 to the General Conditions of the Contract for Construction
DURING THE TERM OF THIS AGREEMENT AND FOR SUCH ADDITIONAL TIME AS MAY BE FURTHER
REQUIRED, CONTRACTOR SHALL PROVIDE, PAY FOR, AND MAINTAIN IN FULL FORCE AND EFFECT
THE INSURANCE OUTLINED HEREIN COVERING CLAIMS ARISING OUT OF OR IN CONNECTION WITH
THE WORK OR SERVICE PERFORMED BY OR ON BEHALF OF CONTRACTOR. CONTRACTOR SHALL
CONTRACTUALLY CAUSE ALL SUBCONTRACTORS OR ANYONE FOR WHOSE ACTS THEY ARE
LIABLE TO PURCHASE AND MAINTAIN INSURANCE IN COVERAGE TYPES, LIMITS AND
ENDORSEMENTS AS SHOWN HERE AND PROVIDE PROOF OF SUCH COVERAGE UPON REQUEST AND
IN A FORM ACCEPTABLE TO OWNER.
Workers' or Workmen's Compensation Minimum Limits:
(a) State: Statutory or Equivalent Coverage if not Required by State
(b) Employer's Liability:
1) $500,000 per Accident
2) $500,000 Disease, Each Employee
3) $500,000 Disease, Policy Limit
(c) Waiver of Subrogation under Workers' Compensation shall be included in favor of Prologis L.P.
and its affiliates and Property Manager and the City of Coppell to the extent permitted by law in
the jurisdiction work is performed. As of contract form date, Waiver of Subrogation for
Worker's Compensation not allowed in NJ, KY or MO (state law)
2. Commercial General Liability (including Premises -Operations; Independent
Contractors' Protective; Products and Completed Operations; Broad Form Property
Damage) Written on an Occurrence Basis Minimum Limits:
(a) Personal Injury, Bodily Injury and Property Damage:
$1,000,000 Each Occurrence/$2,000,000 Aggregate
(b) Products and Completed Operations to be maintained for three (3) years after final payment:
$1,000,000 Each Occurrence /$2,000,000 Aggregate
(c) Property Damage Liability Insurance shall provide explosion, collapse and underground
hazards coverage
(d) Property Damage Coverage shall include Completed Operations
(e) Contractual Liability (Personal Injury, Bodily Injury & Property Damage,)
$1,000,000 Each Occurrence/$2,000,000 Aggregate
(f) Additional Insured: Prologis L.P. and its affiliates and Property Manager, and the City of
Coppell and additional designees as may be required by lease or loan documents.
3. Business Auto Liability (including owned, non -owned and hired vehicles) Minimum Limits:
(a) Bodily Injury and Property Damage:
$1,000,000 Combined Single Limit
4. Umbrella Excess Liability Minimum Limits:
(a) $10,000,000 Each Occurrence over each primary insurance outlined in 1(b); 2, and 3.
(b) $10,000,000.00 Aggregate
(c) Limit level applicable to Contractor only. Contractor is responsible for ensuring subcontractors
maintain sufficient excess liability limits.
5. Professional Liability Minimum Limits:
(a) $1,000,000 Each Occurrence
(b) $2,000,000 Aggregate
(c) Required for contractors and sub -contractor s or their vendors performing design for structural
work -defined as roofing and any structural work involving columns, roof framing, load bearing
walls, and footings or mechanical, electrical, plumbing (MEP) work including fire protection
systems.
Builder's Risk Coverage if Owner Elects to have Contractor Purchase as indicated in section
11.3.1:
(a) Broad Form Builders Risk Insurance in the amount of the total project hard costs, and recurring
soft costs as identified by Owner which may include one year rental income, and financing
costs.
(b) Policy must include a permit to occupy or equivalent coverage.
(c) Coverage shall be all risk, on a replacement cost basis including but not limited to the perils of
fire, extended coverage, theft, vandalism, malicious mischief, water damage, earth movement
(including subsidence), collapse, falsework, temporary buildings and debris removal. Policy
shall also insure flood, earthquake and tier one wind damages as required by project location
(d) Other coverage as may be required by lenders, ground lessors, joint venture partners and/or
customarily purchased by real estate owners for similar projects and geographic region. .
(e) Policy must remain in force until the work has been completed and accepted by Prologis, L.P.
(f) Prologis,L.P.and its affiliates and other designees as interests of other designees may appear
are to be included as Loss Payee and Additional Named Insured under the Builder's Risk
coverage.
7. Additional Requirements:
(a) Contractor shall contractually cause all subcontractors or anyone for whose acts they are liable
to purchase and maintain insurance in coverage types, limits and endorsements as shown here
and provide proof of such coverage upon request and in a form acceptable to owner.
(b) Maximum deductible for any of the above insurance coverages: $50,000
(c) Project Name / Address to be listed in "Description of Operations"
(d) Insurer must have Best Rating of A -VIII or greater
(e) Coverage required herein by contractor is primary and non-contributory to any coverage
placed by Owner or the City of Coppell.
(f) Please note: if contractor maintains lower limits for any of the required coverages,
Umbrella/Excess liability limits can be applied in addition with the primary insurance
■ Occurrence limits (General Liability plus Umbrella) must total at least $11,000,000
■ Aggregate limits (General Liability plus Umbrella) must,total at least $12,000,000
(g) Certificate holder is Prologis entity (as shown on agreement) or Prologis LP and its affiliates
with local mailing address.
As used in this Exhibit, "Prologis, L.P." shall mean Prologis, L.P., a Delaware limited partnership
EXHIBIT A-2 TO THE GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
STRUCTURAL AND ROOFING INSURANCE REQUIREMENTS
The following trades require applying the Structural Limits set forth in this Exhibit A-2 to the General Conditions of the
Contract for Construction: Roofing and any structural work involving columns, roof framing, load bearing walls, and footings
DURING THE TERM OF THIS AGREEMENT AND FOR SUCH ADDITIONALTIME AS MAY BE FURTHER
REQUIRED, CONTRACTOR SHALL PROVIDE, PAY FOR, AND MAINTAIN IN FULL FORCE AND EFFECT
THE INSURANCE OUTLINED HEREIN COVERING CLAIMS ARISING OUT OF OR IN CONNECTION WITH
THE WORK OR SERVICE PERFORMED BY OR ON BEHALF OF CONTRACTOR. CONTRACTOR SHALL
CONTRACTUALLY CAUSE ALL SUBCONTRACTORS OR ANYONE FOR WHOSE ACTS THEY ARE
LIABLE TO PURCHASE AND MAINTAIN INSURANCE IN COVERAGE TYPES, LIMITS AND
ENDORSEMENTS AS SHOWN HERE AND PROVIDE PROOF OF SUCH COVERAGE UPON REQUEST AND
IN A FORM ACCEPTABLE TO OWNER.
Workers' or Workmen's Compensation Minimum Limits:
(b) State: Statutory or Equivalent Coverage if not Required by State
(c) Employer's Liability:
1) $500,000 per Accident
2) $500,000 Disease, Each Employee
3) $500,000 Disease, Policy Limit
(d) Waiver of Subrogation under Workers' Compensation shall be included in favor of Prologis L.P.
and its affiliates and Property Manager to the extent permitted by law in the jurisdiction work is
performed. As of contract form date, Waiver of Subrogation for Worker's Compensation not
allowed in NJ, KY or MO (state law)
2. Commercial General Liability (including Premises -Operations; Independent
Contractors' Protective; Products and Completed Operations; Broad Form Property
Damage) Written on an Occurrence Basis Minimum Limits:
(a) Personal Injury, Bodily Injury and Property Damage:
$1,000,000 Each Occurrence/$2,000,000 Aggregate
(b) Products and Completed Operations to be maintained for three (3) years after final payment:
$1,000,000 Each Occurrence/$2,000,000 Aggregate
(c) Property Damage Liability Insurance shall provide explosion, collapse and underground
hazards coverage
(d) Property Damage Coverage shall include Completed Operations
(e) Contractual Liability (Personal Injury, Bodily Injury & Property Damage)
$1,000,000 Each Occurrence/$2,000,000 Aggregate
(f) Additional Insured: Prologis L.P. and its affiliates and Property Manager
3. Business Auto Liability (including owned, non -owned & hired vehicles) Minimum Limits:
(a) Bodily Injury and Property Damage:
$1,000,000 Combined Single Limit
4. Umbrella Excess Liability Minimum Limits:
(a) $4,000,000 Each Occurrence over each primary insurance outlined in 1(b), 2, and 3.
(b) $4,000,000 Aggregate
(c) Limit level applicable to Contractor only. Contractor is responsible for ensuring subcontractors
maintain sufficient excess liability limits.
5. Professional Liability Minimum Limits:
(a) $1,000,000 Each Occurrence
(b) $2,000,000 Aggregate
(c) Required for contractors and sub -contractors or their vendors performing design for structural
work -defined as roofing and any structural work involving columns, roof framing, load bearing
walls, and footings or mechanical, electrical, plumbing (MEP) work including fire protection
systems.
6. Builder's Risk Coverage if Owner Elects to have Contractor Purchase as indicated in section
11.3.1:
(a) Broad Form Builders Risk Insurance in the amount of the total project hard costs, and recurring
soft costs as identified by Owner which may include one year rental income, and financing
costs
(b) Policy must include a permit to occupy or equivalent coverage.
(c) Coverage shall be all risk, on a replacement cost basis including but not limited to the perils of
fire, extended coverage, theft, vandalism, malicious mischief, water damage, earth movement
(including subsidence), collapse, falsework, temporary buildings and debris removal. Policy
shall also insure flood, earthquake and tier one wind damages as required by project location
(d) Other coverage as may be required by lenders, ground lessors, joint venture partners and/or
customarily purchased by real estate owners for similar projects and geographic region.
(e) Prologis, L.P. and its affiliates and other designees as interests of other designees may appear
are to be included as Loss Payee and Additional Named Insured under the Builder's Risk
coverage.
7. Additional Requirements:
(a) Contractor shall contractually cause all subcontractors or anyone for whose acts they are liable
to purchase and maintain insurance in coverage types, limits and endorsements as shown here
and provide proof of such coverage upon request and in a form acceptable to owner.
(b) Project Name / Address to be listed in "Description of Operations" OR
*Blanket language acceptable for reoccurring contractor or vendor services involving
multiple properties.
Sample Blanket Language: *All Prologis L.P. and its affiliates' Operations in the Greater
(insert
city name) Metropolitan Area and Property Manager (if third party)
(c) Maximum deductible for any of the above insurance coverages: $50,000
(d) Insurer must have Best Rating of A -VIII or greater
(e) Coverage required herein by contractor is primary and non-contributory to any coverage placed
by Owner.
(f) Please note: if contractor maintains lower limits for any of the required coverages,
Umbrella/Excess liability limits can be applied in addition with the primary insurance
• Occurrence limits (General Liability plus Umbrella) must total at least $5,000,000
• Aggregate limits (General Liability plus Umbrella) must total at least $6,000,000
(g) Certificate holder is Prologis entity (as shown on agreement) or Prologis LP and its affiliates
with local mailing address.
As used in this Exhibit, "Prologis, L.P." shall mean Prologis, L.P., a Delaware limited partnership
EXHIBIT A-3 TO THE GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
NON-STRUCTURAL INSURANCE REQUIREMENTS
Non -Structural Limits set forth in this Exhibit A-3 to the General Conditions of the Contract for Construction shall apply to trades
performing repairs and tenant improvements other than roofing and structural work involving columns, roof framing, load bearing
walls, and footings
DURING THE TERM OF THIS AGREEMENT AND FOR SUCH ADDITIONAL TIME AS MAY BE FURTHER
REQUIRED, CONTRACTOR SHALL PROVIDE, PAY FOR, AND MAINTAIN IN FULL FORCE AND EFFECT THE
INSURANCE OUTLINED HEREIN COVERING CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE
WORK OR SERVICE PERFORMED BY OR ON BEHALF OF CONTRACTOR. CONTRACTOR SHALL
CONTRACTUALLY CAUSE ALL SUBCONTRACTORS OR ANYONE FOR WHOSE ACTS THEY ARE LIABLE
TO PURCHASE AND MAINTAIN INSURANCE IN COVERAGE TYPES, LIMITS AND ENDORSEMENTS AS
SHOWN HERE AND PROVIDE PROOF OF SUCH COVERAGE UPON REQUEST AND IN A FORM
ACCEPTABLE TO OWNER. .
Workers' or Workmen's Compensation Minimum Limits:
(a) State: Statutory or Equivalent Coverage if not Required by State
(b) Employer's Liability:
1. $500,000 per Accident
2. $500,000 Disease, Each Employee
3. $500,000 Disease, Policy Limit
(c) Waiver of Subrogation under Workers' Compensation shall be included in favor of Prologis L.P. and
its affiliates and Property Manager* to the extent permitted by law in the jurisdiction work is
performed. As of contract date, Waiver of Subrogation for Worker's Compensation not required in
NJ, KY or MO (state law)
2. Commercial General Liability (including Premises -Operations; Independent Contractors'
Protective; Products and Completed Operations; Broad Form Property Damage) Written on an
Occurrence Basis Minimum Limits:
(a) Personal Injury, Bodily Injury and Property Damage:
$1,000,000 Each Occurrence/$2,000,000 Aggregate
(b) Products and Completed Operations to be maintained for three (3) years after final payment:
$1,000,000 Each Occurrence/$2,000,000 Aggregate
(c) Property Damage Liability Insurance shall provide explosion, collapse and underground hazards
coverage
(d) Property Damage Coverage shall include Completed Operations
(e) Contractual Liability (Personal Injury, Bodily Injury & Property Damage)
$1,000,000 Each Occurrence/$2,000,000 Aggregate
(f) Additional Insured: Prologis L.P. and its affiliates and Property Manager*
(g) The following trades are only required to carry a minimum Commercial General Liability limit of
$1,000,000 each occurrence/$1,000,000 aggregate: carpet and tile installers, drywall, painters,
parking lot sweepers, landscaping and lawn service, window cleaners (w/ no mechanical
equipment)
3. Business Auto Liability (including owned, non -owned and hired vehicles) Minimum Limits:
(a) Bodily Injury and Property Damage:
$1,000,000 Combined Single Limit
4. Umbrella Excess Liability Minimum Limits:
(a) $2,000,000 Each Occurrence over each primary insurance outlined in 1(b), 2, and 3.
(b) $2,000,000 Aggregate
(c) Limit level applicable to Contractor only. Contractor is responsible for ensuring subcontractors
maintain sufficient excess liability limits
5. Additional Requirements:
(a) Contractor shall contractually cause all subcontractors or anyone for whose acts they are liable to
purchase and maintain insurance in coverage types, limits and endorsements as shown here and
provide proof of such coverage upon request and in a form acceptable to owner. Required Sub-
contractor insurance shall follow all coverage and limits in this exhibit.
(b) Project Name /Address to be listed in "Description of Operations"
OR *Blanket language acceptable for reoccurring contractor or vendor services involving multiple
properties.
Sample Blanket Language: *All Prologis L.P. and its affiliates' Operations in the Greater
(insert city name) Metropolitan Area and Property Manager (if third party)
(c) Maximum deductible for any of the above insurance coverages: $50,000
(d) Insurer must have Best Rating of A -VIII or greater
(e) Coverage required herein by contractor is primary and non-contributory to any coverage placed by
Owner.
(f) Please note: (if contractor maintains lower limits for any of the required coverages,
Umbrella/Excess liability limits can be applied in addition with the primary insurance)
Occurrence limits (General Liability plus Umbrella) must total at least $2,000,000
Aggregate limits (General Liability plus Umbrella) must total at least $4,000,000
(g) Certificate holder is Prologis entity (as shown on agreement) or Prologis LP and its affiliates with
local mailing address.
Table of Contents
ARTICLE 1 GENERAL PROVISIONS..............................................................................................................................................1
1.1 BASIC DEFINITIONS..............................................................................................................................................1
1.2 EXECUTION, CORRELATION AND INTENT.......................................................................................................1
1.3 OWNERSHIP AND USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 2
1.4 CAPITALIZATION....................................................................................................................................................2
1.5 INTERPRETATION.................................................................................................................................................. 2
ARTICLE2 OWNER.........................................................................................................................................................................2
2.1 DEFINITION..............................................................................................................................................................2
2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER....................................................................... 2
2.3 OWNERS'S RIGHT TO STOP THE WORK........................................................................................................... 3
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK................................................................................................. 3
ARTICLE 3 CONTRACTOR. .......................................................................... . ... . ........... 3
3.1 DEFINITION..............................................................................................................................................................3
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR ..............................3
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES..................................................................................... 3
3.4 LABOR AND MATERIALS.....................................................................................................................................4
3.5 WARRANTY.............................................................................................................................................................4
3.6 TAXES.......................................................................................................................................................................4
3.7 PERMITS, FEES AND NOTICES........................................................................................................................... 4
3.8 ALLOWANCES........................................................................................................................................................5
3.9 SUPERINTENDENT................................................................................................................................................ 5
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES AND REPORTING............................................................5
3.11 DOCUMENTS AND SAMPLES AT THE SITE...................................................................................................... 5
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES..................................................................................... 5
3.13 USE OF SITE............................................................................................................................................................6
3.14 CUTTING AND PATCHING.................................................................................................................................... 6
3.15 CLEANING UP.....................................................................................:................................................................... 6
3.16 ACCESS TO WORK.............................................................................................................................................. 7-7
3.17 ROYALTIES AND PATENTS..................................................................................................................................7
3.18 INDEMNIFICATION................................................................................................................................................. 7
ARTICLE 4 ADMINISTRATION OF THE CONTRACT..................................................................................................................88
4.1 ARCHITECT...........................................................................................................................................................88
4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT...................................................................................8
4.3 CLAIMS AND DISPUTES....................................................................................................................................... 9
4.4 RESOLUTION OF CLAIMS AND DISPUTES.....................................................................................................10
ARTICLE5 SUBCONTRACTORS..................................................................................................................................................11
5.1 DEFINITIONS......................................................................................................................................................... 11
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK ................. 11
5.3 SUBCONTRACTUAL RELATIONS..................................................................................................................... 11
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS................................................................................... 1214
5.5 SUBCONTRACTOR'S CLAIMS...........................................................................................................................12
ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS......................................................................12
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS ........... 12
6.2 MUTUAL RESPONSIBILITY.................................................................................................................................13
6.3 OWNER'S RIGHT TO CLEAN UP........................................................................................................................13
ARTICLE 7 CHANGES IN THE WORK..........................................................................................................................................13
7.1 CHANGES.............................................................................................................................................................. 13
7.2 CHANGE ORDERS...............................................................................................................................................14
7.3 CONSTRUCTION CHANGE DIRECTIVES......................................................................................................... 14
7.4 MINOR CHANGES IN THE WORK......................................................................................................................15
ARTICLE8 TIME.............................................................................................................................................................................15
8.1
DEFINITIONS.........................................................................................................................................................15
8.2
PROGRESS AND COMPLETION........................................................................................................................15
8.3
DELAYS AND EXTENSIONS OF TIME...............................................................................................................15
ARTICLE 9 PAYMENTS AND COMPLETION................................................................................................................................16
9.1
CONTRACT SUM..................................................................................................................................................16
9.2
SCHEDULE OF VALUES......................................................................................................................................16
9.3
APPLICATIONS FOR PAYMENT........................................................................................................................16
9.4
CERTIFICATES FOR PAYMENT.........................................................................................................................16
9.5
DECISIONS TO WITHHOLD CERTIFICATION.................................................................................................17
9.6
PROGRESS PAYMENTS......................................................................................................................................17
9.7
FAILURE OF PAYMENT................................................................................................................................... 1848
9.8
SUBSTANTIAL COMPLETION............................................................................................................................18
9.9
PARTIAL OCCUPANCY FOR USE.....................................................................................................................18
9.10
FINAL COMPLETION AND FINAL PAYMENT............................................................................................... 1949
ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY......................................................................................................19
10.1
SAFETY PRECAUTIONS AND PROGRAMS.....................................................................................................19
10.2
SAFETY OF PERSONS AND PROPERTY.........................................................................................................
20
10.3
EMERGENCIES.....................................................................................................................................................
21
ARTICLE 11 INSURANCE AND BONDS.......................................................................................................................................21
11.1 CONTRACTOR'S LIABILITY INSURANCE........................................................................................................21
11.2 OWNER'S LIABILITY INSURANCE.................................................................................................................... 22
11.3 PROPERTY INSURANCE..................................................................................................................................... 22
11.4 PERFORMANCE BOND AND PAYMENT BOND.............................................................................................. 23
ARTICLE 12 UNCOVERING AND CORRECTION OF WORK.......................................................................................................23
12.1 UNCOVERING OF WORK.................................................................................................................................... 23
12.2 CORRECTION OF WORK.................................................................................................................................... 23
12.3 ACCEPTANCE OF NONCONFORMING WORK................................................................................................ 24
ARTICLE 13 MISCELLANEOUS PROVISIONS.............................................................................................................................24
13.1 GOVERNING LAW................................................................................................................................................ 24
13.2 SUCCESSORS AND ASSIGNS........................................................................................................................... 24
13.3 RIGHTS AND REMEDIES................................................................................................................................. 2525
13.4 TESTS AND INSPECTIONS............................................................................................................................. 2525
13.5 INTEREST.............................................................................................................................................................. 25
13.6 CONFIDENTIALITY AND NONDISCLOSURE................................................................................................... 25
13.7 ENTIRE AGREEMENT; CONFLICT; AUTHORITY........................................................................................ 2626
13.8 PROLOGIS SUPPLIER CODE OF CONDUCT............................................................................................... 2626
ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT........................................................................................26
14.1 TERMINATION BY THE CONTRACTOR............................................................................................................ 26
14.2 TERMINATION BY THE OWNER FOR CAUSE................................................................................................. 27
14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE................................................................................ 2828