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Ordinance No. 8,767991123 -5
ORDINANCE NO. 8767
® AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER AND
THE CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND ATTEST TO A
CONTRACT WITH RANDALL - PORTERFIELD ARCHITECTS, INC., REGARDING
THE PREPARATION OF PLANS AND SPECIFICATIONS FOR THE NEW BOAT
RAMP AT THE EDD[E V. GRAY WETLANDS EDUCATION AND RECREATION
CENTER; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN, THE SUM OF
THIRTY -SEVEN THOUSAND FIVE HUNDRED AND NO /100 DOLLARS ($37,500.00);
MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
************************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs
the City Manager and the City Clerk of the City of Baytown to execute and attest to a contract with Randall -
Porterfield Architects, Inc., regarding the preparation of plans and specifications for the New Boat Ramp at
the Eddie V. Gray Wetlands Education and Recreation Center. A copy of said contract is attached hereto,
marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Randall -
Porterfield Architects, Inc., for the preparation of plans and specifications for the New Boat Ramp at the
Eddie V. Gray Wetlands Education and Recreation Center of the sum of THIRTY -SEVEN THOUSAND
FIVE HUNDRED AND NO /100 DOLLARS ($37,500.00), pursuant to the contract.
Section 3: That pursuant to the provisions of Texas Local Government Code Annotated §
252.048, the City Manager is hereby granted general authority to approve any change order involving a
decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00)
or less, subject to the provision that the original contract price may not be increased by more than twenty -five
percent (25 %) or decreased by more than twenty -five percent (25 %) without the consent of the contractor
to such decrease.
Section 4: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of
Baytown this th�e,23," , ay ofNovember,1999.
f
EILEEiV. P. HALL, r ty Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, 4&Xity Attorney
cAMyDocuments \Council \99- 00 \BoatRampPlans &Specs @ WetlandsCenter.doc
&
PTE C. ALFARO, Mayor
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NOV -23 =99 TUE 05;03 PM RANDALL- PORTERFIELD FAX NO. 281 316 6920
T H E A M E R I C A Y I N S T I T U T E O F
El
`' `�,• -Ili }U :.
ALA Document B141
P. 13
A R C H I T E C T S
Architect Standard Form of Agreement Between
Owner an
1987 EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH
AN A TTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION"
AGREEMENT
made as Of the Twenty -Third day of NoveirbP.r
Nineteen Hundred and in the year of
Ninety -Nine
BETWEEN the Owner:
(Na ve,vid addn!)
City of Baytown -Howard Wellspring III,.
P.O. Box 424 Director of Engineering
and Inspection
Baytown, Texas 77522
Phone: (281) 422 -8281
Fax: (281) 420 -6586
and the Architect:
Randall - Porterfield Architects, Inc.
(Name and addrexv
565 FM 270 N
League City, Texas 77573
(281) 332 -6680 - phone
(281) 316 -6920 - Fax
For the following Project:
(lJCl7[de d (•tailed descriPion of Prr, jeer, i0wilon. addrebs and scgpe)
New Boat Ramp - Eddie V.
Gray Wetlands Center
1724 Market street
Baytown,
TX
The Owner and Architect agree as Set forth below.
® Copyright: 1917, 192G, I9dit, 1951, 1953, 195ii, 1961, t963, 1960, 19ti7, 1970, 1974, 1977, ©1987b
o! Architects, 1735 New York Ar•enuc, N "W., W�shingcort, D.C. 20006, Reproduction of the Inattsia! heresq or subsratftia!
quotatiun of its provisions without written permission of the A!A violates the copyright laws of the United states and w11I be
subject co legal prosecution.
THE 8/i1 • OWNER•1►RCHITECT AGREEMENT • FOURTEENTH EDITION • A.IAO .
THE AMERICAN 1NSTiTUTE OF ARCHiTECT5, 1735 NEW YORK AVENUE, N -W-, WASHINGTON, D,C ,20006
®141 -9967 1
WARNING. UMlcatsed photocopying vlolattrs I1S, co"light laws and Is subject to legal pmwmnWo .
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FAX NO. 281 316 6920 P. 14
TERMS AND CONDITIONS OF AGREEMENT BETWEEN OWNER AND ARCHITECT
ARTICLE 1
ARCHITECT'S RESPONSIBILITIES
1.1 ARCHITECT'S SERVICES
1.1.1 The Architect's services consist of those services per -
formed by tlm Architect, Architect's employees and Architect's
coasulmrs as enumeraEed in Articles 2 and 3 of this Agreement
and any other services included in Article 12.
1.1.2 The Architect's services shall be performed as expedi-
tiously as is consistent with professional skill and care and the
orderly progress of the Work. Upon request of the Owner, the
Architect shall submit for the Owners approval a schedule for
the performance of the Architect's services which may be
adjusted as the Project proceeds, and shall include allowances
for periods of time required for the Owner's review and for
approval of submissions by authorities having juri5dicdon over
the Project. Time limits established by this schedule approved
by the Owner shall not, eecrpt for reasonable cause, be ou=dcd
by the Architect or Owner.
1.1.3 The Services covered by this Agreement are subject to
the dine Iimirarions contained in Subparagraph I1.5.1.
ARTICLE 2
SCOPE OF ARCHITECT'S BASIC SERVICES
2.1 DEFINITION
2.1.1 The Architect's 132sic Services consist of those described
in Paragraphs 2.2 through 2.6 and any other services identified
in Article 12 as pan of Basic Services, and include normal st[uc-
turtl. mechanical and electrical engineering services.
2.2 SCHEMATIC DESIGN PHASE
2.2.1 The Architect shall review the program furnished by the
Owner to ascertain the requirements of the Project and shall
arrive at a mutual understatlding of such requirements with the
Owner.
2.2.2 The Architect shall provide a preliminary evaluation of
the Owner's program, schedule and construction budget
requireincims, each.in terms of the other, subject to the limita-
tions scr forth in Subparagraph 5.2.1.
2 -2.3 VIC Architect shall review with the Owner alternative
approaches to design and construction of the. Project.
2.2.4 Based on the mutu llv agreed -upon grogram, schedule
and construction budget requirements, the Architect shall
prepare, for approval by the Owner, Schematic Design Docu-
mctnts cortsisdng of drawings and other documents illustrating
the scale and relationship of Project components.
2.2.5 The Architect shall submit to Elie Owner a prcliminary
estimate of Constnicrion Cost based on current area, volume or
other unit costs.
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 Based on the approved Schematic Design Documents
and any adjusrments authorized by the Owner in the program,
- schedule or. construction budget, the Architect shall prepare,
for approval by the Owner, Design Development Documents
consisting of drawings and other documents to fix and describe
Elie sue and character of the Project as to architectural, sttue-
rtlral, mechanical and electrical systems, materials and such
other elements as may be appropriate.
2.3.2 The Architect shall advise the Owner of any adjustments
to the preliminary estimate of Construction Cost,
2.4 CONSTRUCTION DOCUMENTS PHASE
2.6.1 Based on Elie approved Design Development Docu-
ments and any further adjustments in the scope or quality of
the Project or in the construction budget authorized by the
Owner, the Architect shall prepare, for approval by the Owner,
Construction Documents consisting of Drawings and Specifica-
tions setting forth in dctail the requirements for the consuuc-
tion of the Project.
2.4.2 The Architect shall assist the Owner in the preparation of
the necessary bidding information: bidding forms, the Condi-
tions of the Contract, and the form of Agreement between the
Owner and Contractor.
2.4.3 The.Architcct shall advise the Owner of any adjustments
Eo previous Preliminary estimates of Construction Cost indi-
cated by changes in requirements or general market conditions.
2.4A The Architect shall assist the Owner in connecrion with
the Owner's responsibility for filing documents required for
the approval of governmental authorities having jurisdiction
over the Project.
2.5 BIDDING OR NEGOTIATION PHASE
2.5.1 The Architecr, following the Owner's approval of the
Construction. Documents and of the latest preliminary estimate
of Construction Cost, shall assist the Owner in obtaining bids
or negotiated proposals and assist in awarding and preparing
contracts for construction,
2.6 CONSTRUCTION PHASE -- ADMINISTRATION
OF THE CONSTRUCTION CONTRACT
2.6.1 The Architect's responsibility to provide Basic Services
for Elie Construction Phase under this Agreement. commences
with the award of the Conlracr for Construction and tcrrni-
natcs at the earlier of the issuance to the Owner of the Final
Certificate for Payment or 60 days after the date of Substan-
tial Completion of the Work.
2.6.2 The Architect shall provide administration of the Con
tract for Construction as set forth below and in the edition of
ALA Document A201; General Conditions of the Contract for
Construction, current as of the date of this Agreement, unless
otherwise provided in this Agreement.
2.6.3 Duties, responsibilities and limitations of authority of the
Architect shall not be restricted, modified or cx[cndcd without
written agreement of the Owner and Architect With consent of
the Contractor, which consent shall not be unr=sonably
withheld.
AIA DOCUMENT 8141 • OWNER-ARCFIrrECT AGnEEMENT ■ FOURTEENTH EDITION • AEA* • Cd1987
THE AMERICAN INS'lTrUTE OFARCHrrEcTs. 1735 NEW YORK AVENUE, N.m., WASHINGTON, D.C. 20006 5141 -1957 2
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2.6.4 The ArchicecE shall be a representative of and shall advise
and consult with the Owner (1) during construction until focal
payment to the Contractor is duc, and (2) as an Additional Ser-
vice at the Owner's direction from time to time during the cor-
rcction period described in the Contract for Construction. The
Architect shall have authority ro..aet.on..behalf of the Owner
only to the extent provided in this Agreement unless otherwise
modified by written instrument.
2.6.5 The Architect shall visit the site at intervals appropriate
to the stage of construction or as otherwise agreed by the
Owner and Architect in writing to become generally familiar
with the progress and quality.of the Work completed and to
determine in general if the Work is being performed in a man-
ner indicating that the Work when completed will be in accor-
dance with the Contract Documents. However, the Architect
shall not be required to make exhaustive or continuous on -site
V pecEions to check the quality or quantity of the Work. On
basis of on -site observations as an architect, the Architect
Shall keep the Owner informed of the progress and quality of
the Work, and shall endeavor to guard the Owner against
defects and deficiencies in the Work. (More exrmive site
representation may be agreed to as an Additional Servfce as
described in Paragraph 3.2,)
2.6.6 The Architect shall not have control over or charge of
2nd shall not be responsible for construction means, methods,
techniques, sequences or procedures, or for safety precautions
and programs in connection with the Work, since these arc
solely the Contractor's responsibility under the Contract for
Constriction. The ArchiEccr shall not be responsible for t17e
Contracror's schedules or failure to carry out the. Work in accor-
dance with the Contract Documents. The Architect shall nor
have control over or charge of acts or omissions of the Contrac-
tor, Subcontractors, or their agents or employees, or of any
other persons performing portions of the Work.
2.6.7 The Architect shall at ell times have access to the work
wherever it Ls in preparation or progress.
2.6.8 Excel)t as may otherwise be provided in the Contract
Documents or when direct communlc2tions have been spc.
dally authorized, the Owner and Contractor shall communicate
through the Architect. Communic2tions by and with the Archi-
tect's comulrants shall be through the Architect.
2.6.9 Based an the Architect's observations and evaluations of
the Contractor's Applications for Payment, the Architect shall
review and certify the amounts due the Contractor.
2.6.10 The Architect's certification for paymcnt shall consti-
cure a representation to the Owner, based on the Architecr'i
observarions at the site 2s provided in Subparagraph 2.6.5 and
on the data comprising the Contractor's Application for Pay -,
mcnt, chat, to the best of the architect's knowledge, informs -.
tion and bclicf, the Work has progressed to the point indicated
and the quality of Work is in accordance with the Contract
Documents. The foregoing reprmcnEations are subject to an
evaluation of the Work for confonnance with the Contract
Documents upon Substantial Completion, to results of subse-
quent tests and inspections, to minor deviations from the Con-
tract Documents correctable prior to completion and to spe-
cific qualifiC260ns expressed by the Architect. The issuance of a
Certificate for Payment shall further constitute a representation
*that the Contractor is entitled to paymcnt In Elie amount certi-
fied_ Howevcr, the Lmumcc of a Certificate for Payment shat!
not be a rtprescniadon that the Architect has (1) made exhaus-
tive or continuous on -site inspcctiuns to check the quality or
FAX N0, 281 316 6920 P. 15
quantity of the Work, (2) reviewed construction means, inerh-
ods, techniques, sequences or procedures, (3) reviewed copies
of requisitions received from Subcontractors and material sup-
pliers and other data requested by the Owner to substantiatc
the Contractor's right to payment or (4) ascertained how or for
.what purpose the Contractor has used money previously paid
on account of the Contract Sum.
2.6.11 The Architect shall have authority to reject Work which
does not conform to the Contract Documents, Whenever the
Architect considers it nccessary or advisable for impicmenta-
tion of the intent of the Contract Documents, the Architect will
have authority to require additional inspection or testing of the
Work in accordance with the provisions of the Contract Docu-
ments, whether or not such Work is fabricated, installed or
completcd. However, neither this authority of the Architect nor
a decision made in good faith either to exercise or not to exer-
cise such authority shall give rise to a duty or responsibility of
the Architect to the Contractor, Subcontractors, material and
equipment suppliers, their agcnEs or employees or other per -
sons performing portions of the Work.
2.6.12 The Architect shall review and approve or take other•
appropriate action upon Contractof 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 sh211 be taken with such reasonable
promptness as to cause no delay in the Work or in the con•.
strucrion of the Owner or of separate contractors, while allow-
ing sufficient time in Elie Architect's professional Judgment to
permit adequate review, Rcview of such submittals is not Con-
ducted for the purpose of determining the accuracy and com-
pleteness of other deraiLs such as dimensions and quantities or
for substantiating instructions for installation or perfonttance of
equipment or systems designed by the Contractor, all of which
remain Elie responsibility of the Contractor to the extent
required by the ContraCE Documents. The ArCtmitect's review
shall not constitute approval of safer precautions or, unless
otherwise specifically stated by the Architect, of 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.
When professional certification of performance characteristics
of m2reiials, systems or equipment is required by the Contract
Documents, the Architect shall be entitled to rely upon such
certification to establish that the materials, systems or equip -
menE will meet the performance criteria required by the Con.
tract Documents.
2.6.13 The Architect shall prepare Change Orders and Con-
struction Change Directives, with supporting documentation
and data if deemed necccsary by the Architect as provided in
Subparagraphs 3.1.1 and 3.3.3, for the Owner's approval and
execution in accordance with the Contract Documents, and
may authorize minor changes in the Work not involving an
adjustment in the Contract Sum or an extension of the Contract
Time which are not inconsistent with the intent of the Contract
Documents.
2.6.14 The Architect shall conduct inspections to determine
the date or dates of Substantial Completion and the (late of final
completion, shall receive and forward CO the Owner for the
Owner's review and records written warranties and related
documents required by the Contract Documents and assem-
bled by the Contractor, and shill issue a Final Certificate for Pay-
ment upon compliance with the requirements of the Contract
DOCumcnts,
3 13141-1987 AIA DOCUMENT 8141 o OWNER-ARCHITECT AGREEMENT • FOURTEENTH EUMoN • ArA* • ®1987
THE AMERICAN INSTITUTE OF ARCHITICT5, 1735 NEW YORK AvENUZ N.W., WASHINGTON, D.C. 20006
WARNING: Unlicensed photocopying vlaWas ILS. copyright taws and la subjoat to legal prosecution.
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NOV -23 -99 TUE 05:05 PH RANDALL- PORTERFIELD
® 2.6.15 The Architect shall interpret and decide matters con-
cerning performance of the Owner and Contractor under the
requirements of the Contract Documents on written request of
either the Owner or Contractor. The Architect s response to
such requests shall be made with reasonable promptness and
within any time Unties agreed upon.
2,6.16 Interpretations and decisions of the Architect shall be
consistent with the intent of and reasonably inferable from the
Contract Documents and shall be in writing or in the form of
drawings. When. making such interpretations and initial deci-
sions, the Architect shall endeavor to secure faithful perfor-
mance by both Owner and Contncror, shall not show partiality
to either, and shall not be liable for rt sulu of intcrpremdons or
decisions so rendered in good Faith.
2.6.17 The Architect's decisions on matters relating to aesthe-
tic effect shall be final if consistent with the intent expressed in
the Contract Documents.
2.6.18 The Architect shall render written decisions within a
reasonable time on all claiiw, disputes or ocher matters in qucs-
tion between the Owner and Contractor relating to the execu-
tion or progress of the Work as provided in the Contract
Documents.
2.6.19 The ArGliteC['s decisions on claims, disputes or other
matters, including those in question between the Owner and
Contractor, except for those relating to aesthetic effect as pro -
vidcd in Subparagraph 2.6.17, shall be subject to arbitration as
provided in this Agreement and in the Contract Documents.
ARTICLE 3
ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 The services described in this Article 3 arc not included
in Basic Services unless so identified in Article 12, and they shall
be paid for by the Owner as provided in this Agreement, in
addition to the compensation for Basic Services. The services
described under Paragraphs 3,2 and 3.4 shall only be provided
if authorized or confirmed in writing by the Owner_ IF services
described under Contingent Additional Services in Paragraph
3.3 are required clue to circumstances beyond the Architect's
control, the Architect shall notify the Owner prior to com-
mencing such services. IF the Owner deems that such services
described under Paragraph 3.3 are not required, the Owner
shall give prompt written notice to the mchitea. If the Owner
iridicatcs in writing that all or part of such Contingent Addi-
tiorud Services ;ere not required, the Architdc;t shrill have no obli-
gation to provide those services.
3.2 PROJECT REPRESENTATION BEYOND BASIC
SERVICES
3.2.1 If more extensive representation at the site than is
dcscribcd in Subparagraph 2,6,5 is required, the Architect shall
provide one or more Project Representatives to assist in carry-
ing our such additional on -sitc responsibilities.
3.2.2 Project Representatives shall be sclecred, employed and
directed, by the Architect, and the Architect shall be compen-
sated therefor a5 agreed by the Owner and Architect. The
duties, responsibilltics and limitations of authority of Project
Representatives shall be as described in the edition of AIA
Document B352 current as of the date of this Agreement, unless
otherwise agrccd.
FAX N0, 281 316 6920 P. 16
3.2.3 Through the observations by such Project Represen-
tativcs, the Architect shall endeavor to provide further prorec-
don for the Owner againsr defects and deficiencies in the Work,
but the furnishing of such project representation shall not
modify the rights, responsibilities or obligations of cite Architect
as described elsewhere In this Agreement.
3.3 CONTINGENT ADDITIONAL SERVICES
3.3 .1 Making revisions in Drawings, Specifications or other
documents when such revisions are:
.1 inconsistent with approvals or.irt_ctructions previously
given by the Owner, including revisions trade neces-
sary by adjustments in the Owner's program or Proj-
ect budget,
.2 required by the enactment or revision of codes, laws
or regulations subsequent to the preparation of such
documents; or
.3 due to changes required as a result of the Owner's fail-
ure to render decisions in a timely manner.
3.3.2 Providing services required because of significant
changes in the Project including, but not limited to, size, qual-
ity, complecity, the Owner's schedule, or the method of bid-
ding or negotiating and contracting for construction, except for
services required under Subparagraph 5.2.5.
3.3.3 Preparing Drawings, Specifications and other documen-
tation and supporting data, evaluating Contractor's proposals,
and providing other services in connection with Change
Orders and Construction Change Directives.
3.3.4 Providing services in connection with evaluating substi-
tutiuns proposed by the Contractor and making subsequent
revisions to Drawings, Specifications and other documentation
resuhing therefrom,
3.3.5 Providing consultation concerning replacement of Work
damaged by fire or other cause during construction, and fur-
nishing services required in connection with the replacement
of such Work.
3.3,6 Providing services made necessary by the default of the
Contractor, by major defects or deficiencies in the Work of the
Contractor, or by failure of perfnrmance of either the Owner or
Contractor under the Contract for Construction.
3.3.7 Providing services in evaluating an extensive number of
claims submitted by the Contactor or others in connection
with the Work.
3.3.8 Providing services in connection with a public hearing,
arbitration proceeding or legal proceeding except where the
Architect is party thereto.
3.3.9 Preparing documents for alternate, separate or sequential
bids or providing services in connection with bidding, ncgotia-
don or construction prior to the completion of the Construc-
tion Documents Phase,
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1 Providing analyses of the Owner's needs and progrrrn-
lming the requirements of the Project.
3.4.2 Providing financial fcc-ibility or other special studies.
3.4.3 Providing planning surveys. site evaluations or com-
parative studies of prospective sites,
AIA DOCUMENT 8141 ••OWNER•ARCHITECT ACREEMF.NT • FOURTEENTH EDITION • AIA* • 81987
THE AMERICAN INSTITUTE OF AACHUF(.TS, 1735 NEW YORKAVENUE. N,W., WASHINGTON, D.C: 20006 0141 -1987 4
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3.4.4 Providing special surveys, environmental studies and
submissions required for approvals of governmental authorities
or others having jurisdiction over the Project.
3.4.5 Providing services relative to future facilities, systems
and equipment.
3.4.6 Providing services to investigate existing conditions or
facilities or to make me3sured drawings thereof.
3.4.7 Providing services to verify the accuracy of drawings or
other information famished by the Owner.
3.4.8 Providing coQrdinadon of construction performed by
separate contractors or by the Ownei own forces and coordi-
nation of services required in coruicction with construction
performed and equipment supplied by the Owner.
3.4.9 Providing services in connection with the work of a con-
struction manager or separate consultants retained by the
Owner.
3.4.10 Providing detailed estimates of Construction Cost
3.4.11 Providing detailed quantity surveys or inventories of
material, equipment and labor.
3.4.12 Providing analyses of owtung and opertting costs_
3.4.13 Providing interior design and other similar services
required for or in connection with the selection, procurement
or installation of furniture, furnishings and related equipment.
3.4,14 Providing services for planning tenant or rental spaces_
3.4.15 Making invesidpcions, inventories of materials or equip•
men[, or valuations and detailed appraisals of e:dsdng facilities.
3.4.16 Preparing a set of reproducible record drawings show-
ing Signifrcanr rhangrs in the Work made during comtruction
based on marked -up prints, drawings and other data furnished
by the Contractor to the Architect.
3.4.17 Providing assistance in .thc utdi22tion of equipment or
systems Stich as testing, adjusting and balancing, preparation of
Operation and maintenance manuals, training personnel for
operation and maintenance, and consultation during operation.
3.4.18 Providing services after issuance to the Owner of the
Final Certificate for Payment, or in the absence of a final Cer-
tificate for payment, more than 60 days after the date of Sub-
stantial Completion of the Work.
3.4.19 Providing services of consultants for other thin archi-
tectural, structural, mechanical and electrical engineering por-
dons of the Project provided as a part of Basic Services.
FAX NO. 281 316 6920 P. 17
4.2 The Owner shall establish and update an overall budget for
the Project, including the Construction Cost, the Owner's other
costs and reasonable contingencies related to all of these costs.
4.3 If requested by the Architect, the Owner-shall furnish evi-
dence that financial arrangements have been made to fulfill the
Owner's obligations under this Agreement.
4.4 The Owner shall designate a representative authorized to
act on the Owner's behalf with respect to the Project, The .
Owner or such authorized representative shall render decisions
in a tirricly manner pertaining to documents submitted by the
Architect in order to avoid unreasonable delay In the orderly
and sequential progreis of the Architect :s services.
4.5 The Owner shall famish" surveys describing physical
characteristics, legal fir cations and utility locations for the site
of the Project, and a written legal description of the site_ -The
surveys and legal information shall ' include, as applicable,
grades and lines of streets, allcys, pavements and adjoining
property and structures; adjacent disina,gc; rights- of-wsy,
restrictions, casements, encroachments, Zoning, deed restric-
[ions, boundaries and contours of the site; locations, dimen-
sions and necessary data pertaining to c.dsting buildings, other
Improvements and trees; and infomurion.concerniig available
utility services and lines, both public and private, nbovc•and
below grade, including inverts. and depths. All the information
on the survey shall be referenced to a Project benchmark.
4.6 The Owner shall furnish the services of gcorechnical engi-
ncers when such services are requested by the Architect, Such
services May include but arc not limited to test borings, test
pits; determinations of soil bearing values, percolation tests,
evaluations of hazardous materials, ground corrosion and resis-
tiviry tests, including necessary operations for anticipating sub -
sou conditions, with reports and appropriare profcssiomil
recommendations.
4.6.1 The Owner shall funnish the services of other consul-
tants when such services arc reasonably required by the scope
of the Project and are requested by the Architect.
4.7 The Owner shall furnish structural, mechanical, chemical,
air and wager pollution tests, tests for hazardous aaterials, and
other laboratory and environmental tests, inspections and
reports required by law or the Contract documents.
4.8 The Owner shall furnish all legal, accountuig and insurance
counseling services as may be necessary at any time for the
Project, including auditing services the Owner may require to
verify the Contractor's Applications for Payment or to ascertain
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ARTICLE 5
CONSTRUCTION COST
5.1 DEFINITION
5.1,1 The Construction Cost shall be the total cost or esri-
matcd cost to the Owner Of all elements of [he Project designed.
or specified by the Architect.
5.1.2 The Construction Cost shall include the cost at currecu
maker rates of labor and nlctterials famished by the Owner and
equipment designed, specified, selected or specially provided
for by the Architect, plus a reasonable allowance for the Con-
tractor's overhead and profit. In addition, a reasonable allow-
ance for contingencies shall be included for market conditions
at the time of bidding and for changes in the Work during
construction.
5.1,3 Construction Cost does not include the compensation of
the Architect and Architect's consultants, the costs of the land,
rights -of -way, financing or other costs which are the respon-
sibility of the Owner as provided in Article 4.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owner's Project budget, preliminary
estimates of Construction Cost and detailed estimates of Con-
struction Cost, if any, prepared by the Architect, represent the
Architect's best judgment as a design professional farridlar with
the construction Industry. It is recognized, however, that nei-
rher the Architect nor the Owner has control over the cost of
labor, materials or equipment, over the Contractor's methods
of determining bid prices, or over competitive bidding, market
or negotiating conditions. Accordingly, the Architect cannot
and does not warrant or represent that bids or negotiated prices
will not vary from the Owner's Project budget or from any
estimate of Construction Cost or evaluation prepared or agreed
to by the Architect.
5.2.2 No fixed limit of Construction Cost shall be established
as a condition of this Agreement by the rurnishing, proposal or
establishment of a Project budget, unless such fixed limit has
been agreed upon in writing and signed by the parties hereto. if
such a fixed limit has been established, the Architect shall be
permined to include contingencies for design, bidding and
price escalation, to determine what materials, equipment, com-
poncnc systems and types of construction are to be included in
the Contract Documents, to make re2sonabic adjustments in
the scope of the Protect and to include in the Contract Docu-
mcnis alternate bids to adjust the Construction Cost to the fixed
limit. Fixed limits, if any, shall be increased in the amount ofan
increase in the Contract Sum occurring after execution of the
Contract for Construction.
5.2.3 If the Bidding or Negotiation Phase has not commenced
within 90 days after the Architect submits the Construction
Documents to the Owner, any Project budget or fixed limit of
Construction Cost shall be adjusted to reflect changes in the
general level of prices in the construction industry between the
date of submission of the Construction Documents to the
Owner and the date on which proposals arc sought.
5.2.4 If a fated limit of Construction Cost (•adjusted as pro-
vided in Subparagraph 5 2.3) is exceeded by the lowest bona
fdc bid or negotiated proposal, the Owner shall:
.1 give .written approval of tit increase in such fixed
1lrtrit;
.2 authorize rebidduhg or renegotiating of the Project
within a reasonable time;
.3 if the Project Is abandoned, terminate in accordance
with Paragraph 5.3; or
.4 cooperate in revising the Project scope and quality as
required to reduce the Construction Cost..
5.2.5 If the Owner chooses to proceed under Clause 5.2.4.4,
the architect, without additional charge, shall modify the Con.
U= Documents as necessary to comply with the fixed limit, if
established as a condition of this .3. rcemcnt. The modification
of Contract Documents shall be the limit of the Architect's
responsibility arising out of the cstabIishrnenr of a fixed limit.
The Architect shall be entitled to compensation in accordance
with this Agreement for all scrviccs performed whether or nor
the Construction Phase is commenced.
ARTICLE 6
USE OF ARCHITECTS DRAWINGS,
SPECIFICATIONS AND OTMER DOCUMENTS
6.1 The Drawings, specifcadoru and other documents pre-
pared by the Architect for this Project are instruments of the
Architect's service for use solely with respect to this Project
and, unless otherwise provided, the Architect: shall be deemed
the author of these documents and shall retain all common law,
statutory and other reserved rights, including the copyright.
The Owner shall be permitted to retain copies, including repro-
ducible copies, Of the Architect's Drawings, Specifications and
other documents for information and reference in connection
with the Owner's use and occupancy- of the Project. The Archi-
tect's Drawings, Specifications or ocher documents shall not be
used by the Owner or others oat ocher projects, for addirions to
this Project or [Of cOmpiction of this Project by others, unless
the Architect is adjudged to be in default under this Agreement,
except by agreement in writing and with appropriate compen-
sation to the Architect.
5.2 Submission or distribution of documents to meet official
regulatory requirements or for similar purposes in connection
with the Project is nor to be construed as publication in deroga-
tion of the Architect's reserved rights.
ARTICLE 7
ARBITRATION
7.1 Claims, disputes or other mutcrs in question between the
Parties to this Agreement arising out of or.relating co this Agree -
meant or breach thereof shall be subject to and decided by arbi-
tration in accordance with the Construction Industry Arbirm-
tion Rules of the American Arbitration Association currently in
effect artless the parties mutually agree otherwise.
7.2 Demand for arbitration shalt be filed in writing with the
other. parry co this Agreement and with the Americarr Arbitra-
tion Association. A demand for arbitration shall be made within
a rc2son2ble time after the claim, dispute or other matter in
question has arisen. In no event shall the demand for arbitration
be made after the date when institution of legal or equitable
Proceedings based on such claim. dispute or other matter in
question would be barred by the applicable stances of limitations.
7,3 No arbitration arising out of or m1ating to this Agreement
shall inclilde, by conCAOdtttign, jq_OWM Cr in qny @Ehgr nuMbti
an uddltle" person or entity not a party to this Agreement
AIA DOCUMENT 8141 o OWNER- ARCHITECT AGREEMENT • FouRTErsr M EDITION • AL►s • C� 1987
THE A.titERICAN INSTITUTE OF A3iCHITECIS. I735 NEW YORK AVENUE. N.W., mASEU.NGTON, D.C. 20006 0141 -1987 6
WARNING. Unlieensed ptwta"Wng v1010tsa US. capOghtLOW$ and Is Subject to legal ptoseta iWn.
0
NOV -23 -99 TUE 05:08 PM RANDALL- PORTERFIELD FAX N0, 281 316 6920 P. 01
cxcrpt by written consent containing a specific reference to
this Agreement signed by the Owner, Architect, and any other
person or entity sought to be joined_ Conscnt to arbitration
involving an additional person or entity shall not constitute
consent to arbitration of any claim, dispute or other matter in
question not described in the written consent or with a person
or entity not named or described therein. The foregoing argue•
menu to arbitrate and o(1ler agreements to arbitrate with art
additional person or entity duly COnsrnted to by the parties to
this Agreement shall be specifically enforceable in accordance
with applicable law in any court having jurisdiction thereof.
7.4 i'hc award rcndcred by the srbivator or,,rbivators shall be
final, and judgment may be entered upon it in accordance with
.applicable law in any court having jurisdiction thereof.
ARTICLE 8
TERMINATION, SUSPENSION OR ABANDONMENT
8.1 This Agreement may be ruminated by either parry upon
not less than seven days' written notice should the other party
fail substantially to perform In accordance with the terms of this
Agrctment through no fault of the parr initiating the termination,
8.2 If the Project is suspended by the Owner for more than 30
consecutive days, the Architect shall be compensated for scr-
vices performed prior to notice of such suspension. When the
Project is resurned, the Architect's compensation shall be equi-
tably adjusted to provide for expenscs incurred in the interrup-
Eion and resumption of the Architcci s services.
8.3 This Agreement may be terminated by the Owner upon
not less than seven days' written notice to the Architect in the
event that the Project is NaTianendv abandoned, if the Project
is abandoned by the Owner for more than .90 consecutive. days,
the Architect may rerminatc this Agreement by giving wrirtcn
notice.
8.4 Pailurt of the Owner ro make pa.Tnents to the Archirect in
accordance with this Agreement shall be considered substantial
nonperformance and cause for temlm- 2tion.
8.5 If the Owner fails to matte pa%TnenE when due the Archi-
tra. for services and expenses, the Architect may, upon seven
days' written notice to the Owner, suspend performance of ser-
vices under this Agreement. Unless payment in full is received
by the Architect within seven days of Ehe date of the notice, the
suspension shall take effect wiEhrur further notice. In the event
of a suspension of services, the Architect shall have no liahiliry
to the Owner for delay or damage clued the Owner because
Of such suspension of services.
8.6 In the event of tcrmi 6011 not the fault of the Architect,
the Architect shall be- compensated for sertiiccs performed prior
to termination, rogenccr with Reimbursable Exponscs then dun
and 211 Termination Expenses as defined in Paragr2p11 8.7.
8.7 Terminanon Expenses are in addition to compensarjon for
Basic and Additional Services, and include expeEtses which are
directly attributable to termination. Terminarion Expenses shall
be compulcd 25 a perceinusc of the Eotal compensation for
B-Lsic Service; 2nd Additional Sen ices carried to the time of ter-
mination, as follows:
.1 Twenty percent of the total compensation for Basic
and Additional services earned 10 date if termination
occurs before or during the predesign, site analysis, or
SChcmadc Design Phases. or
-2 Ten percent of the total compensation for Basic and .
Additional Services earned to date if termination
occurs during the Design Development Phase; or
,3 Five percent of the total compensation for Basic and
Additional. Services earned to date if termination
occurs duing any subsequent phase.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Unless otherwise provided, this Agreement shall be gov-
cmcd by the law Of the principal place of business of the
Architect.
9.2 Terms in this Agreement shall have the saute meaning as
those in AiA Document A201, General Conditions of the Con -
tract for Consuucrion, current as of the date of this Agreement.
9.3 Causes of action between Ehc parties to this Agrcernent
pertaining to acts or failures to as shall be deemed to have
accrued and the applicable statutes of limitations shall com-
mence to run not later than either the date of Substantial Com-
pletion for acts or failurm to act Occurring prior to Subst tntial
Completion, or the date of issuance of the final Certificate for
Payment for acts or failures to as occurring after Substantial
Completion,
9.4 The Owner and Architect waive all tights against each
other and against the contractors, consultants, agents and
employees of the other for damages_ but only to the extent cov-
ered by property insurance during construction, except such
rights as they may have to the proceeds of such insurance as set
forth in the edition of AEA Document A201, General Conditions
of the Contract for Construction, current as of the date of this
Agreement, The Owner and Architect each shall require similar
waivers from their contractors, consultants and agents.
9.5 The Owner and Architect, rmpecriveiy, bind themselves,
their partners, succtssots, assigns and Icgal representatives to
the other parry 10 Ellis Agreement and to the partners, succes-
sors, assigns and Icgal represcmatives of such other. party with
respect to all covenants of this Agreement. Neither Owner nor
Architect shall assign this Agre=eni without the written con -
sent of the other.
9.6 This Agreement represents rhC entire and integrated ague-
meat between the Owner and Arrhittct and supersedes all
prior negotiations, representations or agreements, either writ-
ten or oral. This Agreement may be amcndeLl only by written
imstrumtnt signed by 40(11 Owner and Architect.
9.7 Norhing contained in this Agreement shall create a conErac-
tual relationship with or a cause of action in favor of a third
party against either the Owner or Architect.
9.8 Unless otherwise provided in this Agrccmcnt, the Architect
and Architect's consultants shall have no. responsibility for the
discovery, presence, handling, remov:d or disposal of Or expo_
sure ofpersons to ha7xdous rmleti2ls in any format the Project
site, including but not limited to Asbestos, asbestos products,
Polychlorinated biphenyl (PCB) or other to.:dc substances,
9.9 The Architect shall have the tight to include rtpresenEa-
tions of the design of the Project, including photographs of the
exterior and Interior, among the Architect's promotional and
profs ssiunal materials, The Architect's materials shall not
include the Owner's confrdcntial or proprietary information if
the Owner has
n previoul -4-i —A h
WARNING; Unlcer►� pnotoopyig vbleee U g wght law* and Is subject to legal pasamtkm r.
f
I C Architect to writing o
7 8141 -1987 AIA DOCUMENT 0141 - OWNER- ARCriITECT AGREEMENT • foURTEUmt EDI. ON • AIA® • ®1997
THE AMERICAN INSTrnn -E OFARCHITEGTS, 1735 NEW YORKAVENUE N.W, WASHtNCTON, D,C. 20006
0
0
NOV -23 -99 TUE 05;09 PM RANDALL- PORTERFIELD
the specific information considered by the Owner to be confi.
dcndal or proprlerary, The Owner shall provide professional
credit for the Architect on the construction sign and in the pro-
motional materials for the Project.
. ARTICLE 10
PAYMENTS TOT THE
10.1 DIRECT PERSONNEL EXPENSE
10.1.1 Direct Personnel Expense is deRned as the direct
salaries of the Architect's personnel engaged on the Project and
the portion of the cost of their mandatory and customary con -
iributions and benefits related thereto, such as employment
taxes and other statutory employee benefits, insurance, sick
leave, holidays, vacations, pensions and similar contributions
and benefits.
10.2 REIMBURSABLE EXPENSES
10.2.1 Reimbursable Expenses are in addition to compt:n52-
don for Basic and Additional Services and include cxperucs
incurred by the Architect and Architect's employees and con-
sultant$ in the intcrrsr of the Project, as identified in the follow
ins Clauscs.
10.2.1.1 Expense of transportation in connection with the
Project; expenses in connection with authorized out -of rown
travel: long - distance communications; and fees paid for secur-
ing approval of authorities having jurisdiction over the Project.
10.2.1.2 Expense of reproductions, postage and handling of
Drawings, Specifications and other documents.
10.2.1.3 If authorized in advance by the Owner, expense of
overtime work requiring higher thsn rrguhr rates.
10.2,1.4 Expo of rendering,, models and mock -ups recluesred
by the Owner.
10.2.1.5 Expense of additional insurance coverage or limits,
including professional liability insurance, rcqumicd by the
Owner in excess of that normally carried by the Architect and
Architect's consultants.
10.2.1.6 Expense of corrrputcr -aided design and drafting
equipment time when used in connection with the Project.
FAX NO, 281 316 6920 . P. 02
10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
10.3.1 An initial payment as set forth in paragraph 11.1 is the
miniunum payment under this Agreement.
10.3.2 subsequent payments for Basic Services shall be made
monthly and, where applicable, shall be in Proportion to ser-
vices performed within each phase of service, on the b:uis set
forth in Subparagraph 11.2.2.
10,3.3 If and to did extent that the time initially established in
Subparagraph 1I.5.1 of this Agreement is exceeded or extended
through no fault of the Architect, eomperuation for any ser-
vices rendered during die additionw period of tirne'shaU be
computed in the manner set forth in Subparagraph 11 -12.
10.3,4 when compensadon is based on a percentage of Con.
strucrion Cost and any portions of the Project are deleted or
otherwise not cOnstrUcted, compensation for those portions Of
the Project shall be payable to the extent services are per-
formed on those portions, in accordance with the schedule set
forth in Subparagraph 11.2.2, based on (1) the lowest bona fide
bid or negotiated proposal, or (2) if no such bid or proposal is
received, the most recent preliminary estimate of constructionl
Cost or detailed estimate of Construction Cost for such por.
[ions of the Project.
10.4 PAYMENT'S ON ACCOUNT OF AD017'1ONAL
SERVICES
10.4.1 Payments on account of the Architect's Addwotl. -d
Services and for Reimbursable Expenses shall be made monthly
upon presentation of the Architect's statement of services ren-
dered or expenses incurred,
10.5 PAYMENTS WITHHELD
10.5.1 No deductions shall be made from the Architect's Com-
pensation on account of penalty, liquidated damages or other
sums withheld from payments to contractors, of on account of
the cost of changes in the Work other than thaw for which the
Architect has been found to be liable.
10.6 ARCHITECT'S ACCOUNTING RECORDS
10,6.1 Records of Reimbursable EXPenscS and expenses per-
Mining to Additional Services and services performed on the
basis of a multiple of Direct Personnel Expo shall be avail-
able to the Owner or Elie Owner's authorized representative at
mutually convenient tunes.
ARTICLE 11
BASIS OF COMPENSATION
The Owner shall compensate the Architect as follows:
71,7 AN INITIAL PAYMENT Of
ZerD shall be made upon cxecutiun of this Agreement and credited to the 0 ncr'3 account at final payment. leers (S
11.2 BASIC COMPENSATION
11.2.1 FOR BASIC SERVICES, as described in Article 2, and any other services included in Article 12 as part of Basic Services, Basic
Compt»ation shall be computed as follows:
On erQ bZ+C* of comPensallon, includipw. Nipulavd slimr, mL11i !rs or
r3 J P pergmroges and (de,ui11 Plxc +'cs fo rublch parrl[v/ar iliellodr of eompe9tsoNon opPly, if
Compensation for Basic Services shall be a stipulated stun of $27,500.00 based
on a construction budget of $473,125.00.
AIA t]OMMENT 8141 - OWNER- ARCHITECT AGREEMENT . FOURTEENTH EDITION • ALA' • 01987
THB AMERICAN INSTITUTS OF ARCHITECTS. 1735 NEW YORK AVENUE, N.m, WASHINGTON, D.C- 20006
8141.1987 .8
WAANWG: Unit -wW photocopying vlolat" U.S. twpyrlght fawm and Is "act to legm proeeeudon
C
NOV -23 -99 TUE 05:10 Phi RANDALL- PORTERFIELD FAX NO. 281 316 6920
P. 03
0 4 1.22 Where compensation is based on 2 stipularcd sum or percentage of Construcdon Cost, progress payments for Basic Services
in each phase shall rotal the following percentage —, of the EOW Basic Compensation payable:
(1r 5err additional pbacses au approprlaw.l
Schematic Design Phase: Fifteen P"(159"-4 $ 4,125.00
Design Development Phase: Twenty pa=( 20x) $ 5, 500.00
Construction Documents phase: Forty per( 40%) $11, 000.00
Bidding or Negotiation phase. Five pfstast ( 5,6) $ 1, 375.00
Construction Phase: Twenty p==(20%)$ 5,•500.00
Total Basic Compensation: one huncited affi(I0p9S) $27, 500.00
11.3 C0111PFEISATION FOR AOORIONAL SERVICES
11.3.1 FOR PROJECT REPRESENTATION SEYOND BASIC SERVICES, as described In Pira5Wh 3?, compensation shall be corn_
puced aS follows:
Hourly or 6% of the adjusted cost for construction as approved. .
11.3.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT. as described in Articles 3 and 12, other than (1) Additional' Project
Representation, as described in Ftimgnph 3.2, and (2) services included in Article 12 as put of Basic Services, but excluding
services of consultants, compensation shall be computed as follows:
(!rased basic of Compensation. lncludi ig rules an"ranulrlples o/ Direct pl',sonne! Et'pense for p rim
eipd& and employee; and rden.r fy Principals and dally
emplorMs, if required. !acne! /y specrfrc;errtces 0 rcbwb particular meebods of compenwrlon applx !/ nec�scan )
Principal Architect
Architect
CADD Tech
Clerical
$115/hr.
$ 85 /hr.
$ 60 /hr.
$ 45 /hr.
11.3.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including additional structural, inechattiol and cketrid algincering
services and those provided under Subpongrlph 3.4.19 or idendfied in Article 12 as put of Additiond Services, a multiple of
Fifteen Percent ( 1.15 ) tuna the amounts billed to rite AmWtcct for such services_
(lderu fy Vscrlic types of consuftana w Amde 11 ! /nyttued)
11.4 REIMBURSABLE EXPENSES
11.4.1 FOR REIMBURSABLE E`CPE.YSF.S, as described in Paragraph 10.2, and any other ice= includedin.krocle 12 as Reimbursable
Expenses. a multiple of Teri ( 1 .10 ) tisrl* Cho expenses incurred by theArehite:ct, the Architect's
employecs and consultants in the intergr of the Project.
11.5 ADOMONAL PROVISIONS
11.5.1 IF THE BASIC SERVICES coveted by this Agreernertt have ant beat completed within Twelve
( 12- ) months of the date hcszOf, through no fault of the .UcNtecr, extension of the Ardiitea s sovs. beyond there time shall be
compensated as provided in Subparagraphs 10.3.3 and 11.3.2.
11-5.2 mom payments are due and pn }�bic Th7 ( 30 ) days from the dare of the Architect's invoice.
Amounts unpaid Forty Five ( 45 } us after the invoice date shall bear intfa+egt at the rate entered below, or
in the absence thereof at tare legal rate prevailing from time tp time at the principal place of business of the Ar hitecL
(lreserr rate of lnterrvt agreed upom)
1$ per . month
(t%skry laws and rpquirrmrnCV under rim Ffterw rm& in Lending Act, sln.il— •vane and local canserrner credit taus• and ot6� at the owner's aria Arebi-
recr's per -'pal places of beuioesr, rot tor—ow of the Pno vet and asewhem owy alfacr rbe validity of this pm1pirloa
rtsperr to deletlant or mod lcatloru, and also w ) Sp /� tg�al aOt ter rboald bI 08tained web
!/ rS4'��' g rsqulrernenrs suet as wttrets �tdosws or uau,es.
®141 -1997 Ara 000uwi XT acs, . OWNER-ARC HMECT AGREeMENr • Foe,xrmNrrr EDMON • AtAm • ®1997
THE AMERICAN INSYrrLrrE OF ARCHITECTS. 1735 NEW YORK AVENUi» N,W_ mASttnYGTON. D,G 20006
WARNING: Utdemind photocopying viotaf o U& aopgrWa Fla and is suboa to hoo Pow
�1
Li
•
NOV -23 -99 TUE 05:10 PM RANDALL- PORTERFIELD FAX NO. 281 316 6920 P. 04
11.5.3 The rates 2nd multiples sct forth for AddidorW Services s= be annually adjusted in accordance viith normal salary review
® practices of the Architect-
ARTICLE 12
OTHER COMMONS OR SERVICES
r, Pn °f °� � ` �!r `daura+rat semker iwJu� garMn aasre Conrpe,�saro a m+a +rrodlfla uo s to abe
.trmpwn) Payone r and mmpe wforr rems
A- The "Work of the Architect" is more clearly defined in "�it A"
"Preliminiazy Tabular summary City of Baytown Proposed Boat Ramp
Facility Eddie V. Gray Wetlands Center Revised Octoboer 30, 1998 ".
Exhibit A is incorporated into this contract for all intents and
purposes.
B. Allowances. Preltniniary Assessment
1. Aerial Photography - Scaled site plan $ 11000.00
2. Soils intestigation and dredge M=otoring and $ 2,500.00
TNRCC water Quality for Section 404
3. Survey and Topography $ 5,400.00
4. Printing and ADA review fees $ 1,100.00
$10,000.00
C. Security of the Site - Owner agrees to assist in temporary closing of the
Project areas to help restrict public access during the construciton. To
this end, the Architect shall be responsible to,reconnend;in writing the
Placement and the content of the signs to be erected and the owner shall
procure and install such signs if the; City Manager deems the same
appropriate. Nothing herein shall be- construed so as to limit the
Owner from placing signs elsewhere in or near the Project area where the
C-tY Manager deem the same appropriate.
This A9rCCMCn1 enterCd into as of the day and year firsc wriccen above.
OWNER ARCHITEE
(SignarrQe)
(5:�)
(Annrad name and arse) RObert A. Randall, President
(Prbued name and Me)
111CCAUTION: You should sign an original AIA document which has this caution printed in red.
An original assures that changes will not be obscured as may occur when documents are reproduced.
A" TH DOCUi6ENT 9141 • OWNER- ARCHITECT AGREEMENT ` POURTBENTtt EDITION • ALA• • ®1987
EAMFYttCANIPr5TITUTEoFARCHITEC15. 175NEWyoRKAVFSt1JE ,N.v?.WASHINGTON,D.0 20006 0141-1997 10
Wr1ANtW -- Ual/rensod pbLamWng dioWn u.& copy ftht Iowa and I. stdalset W W91W vrptoarnon.
E
v
NOV-23-99 TUE 05:11 PM RANDALL - PORTERFIELD FAX N0, 281 316 6920 P. 05
KANI)A.LL- FORT- ERFIELD AR-CHI•TECTS, INC.
565 Flt 370 North
(291) 332.6680
Issue City. Texas 77973 Fax (281) 316.6920
111 iI IT All
PRELIMINARY TABULAR SUMMARY
Ci'1'Y OF BAYTOWN
PROPOSED BOAT RAMP FACILITY — EDDIE V. GRAY WMANDS CEN U
Revised Ocbo xr 307 1998
B- PROFESSIONAL SERVICFS
1. Preliminary Planning and Pre- S 3,500.
Agreement Cost for Grant
Application
Commence 6/1/98
2. Corps Permit and Cultural $ 21500
Resources Review
Commence 6/1/98
3. Plans and s ihcations $ ZO 875
TOTAL PROPESSIONALSERVICES _
C. PRO ECT COST
TOTAL A& B
Maxim-
aximum 75°x6 Grant
Minimum 25% Local ;
SUPPLEMENTAL CONDITIONS
These supplemental conditions shall supersede and control over the Standard Form of
Agreement between the Owner and the Architect (AIA Document B141 -1987) to the extent that
there is conflict.
1. Article 2.4.2 shall be revised to read as follows:
The Architect shall be responsible for the preparation and compilation of the necessary
bidding information, bidding forms, the Conditions of the Contract and the form of
Agreement between the Owner and the Contractor, as such documents are approved by
Owner.
2. Article 2.4.4 shall be revised to read as follows:
The Architect shall be responsible for gathering and submitting all necessary information
and documentation as may be requested or required by governmental authorities having
jurisdiction over the Project.
3. Article 2.5.1 shall be revised to read as follows:
The Architect, following the Owner's approval of the Construction Documents and the
latest preliminary estimate of construction cost, shall obtain competitive bids with the
assistance of the Owner and prepare contracts for construction. The manner in which
competitive bids are sought shall comply with all applicable requirements of state law
and the Owner's charter.
4. Delete the following from Article 2.6.1:
"the earlier of and "or 60 days after the date of Substantial Completion of the Work."
5. Article 2.6.2 shall be revised to read as follows:
The Architect shall provide administration of the Contract for Construction as set forth
below and as required of the Engineer as set forth in the Construction Documents as
defined in Owner's Standard General Conditions of Agreement.
6. Article 2.6.5 shall be revised to read as follows:
The Architect shall visit the site at intervals appropriate to the stage of construction or as
:otherwise agreed by the Owner and Architect in writing to become familiar with the
progress and quality of the Work completed and to determine if the Work is being
performed in accordance with the Contract Documents. The Architect shall visit the site
* at least bi- weekly to perform required inspection and to verify each payment requested by
the Contractor. On the basis of on -site observations, the Architect shall keep the Owner
informed of the progress and quality of the Work and shall endeavor to guard against
defects and deficiencies in the Work. The inspections required in this paragraph shall
entail the visual observation of the construction to permit the Architect to render his
professional opinion as to whether the Contractor is performing the Work in manner
Architect's Initials
1 Owner's Initial
* Bi- Weekly - Once every two weeks.
rI
indicating that, when completed, the Work will be in accordance with the Contract
Documents. Such observations shall not be relied upon by the Contractor as acceptance
of the Work, nor shall they relieve any parry from fulfillment of all of their respective
obligations and responsibilities, whether contractual or otherwise.
7. The last sentence of Article 2.6.6 shall .be revised to read as follows:
The Architect shall not have control over or charge of the acts or omissions of the Owner
or Contractor or their respective subconsultants, agents or employees
8. Article 2.6.13 shall be revised to read as follows:
The Architect shall prepare Change Orders and Construction Change Directives, with
supporting documentation and. data for the Owner's approval and execution as part of the
basic services if such changes are caused in whole or in part, by the Architect's services
rendered pursuant to this agreement or minor in character as determined by the Owner.
For all other Change Orders and Construction Change Directives, the Architect shall
prepare the same together with all supporting documentation and data if authorized or
confirmed in writing by the Owner as provided in Paragraphs 3.1 and 3.3, as herein
amended, for the Owner's approval and execution in accordance with the Contract
Documents. The Architect may authorize minor changes in the Work not involving an
adjustment in the Contract Sum or an extension of the Contract Time which are not
inconsistent with the intent of the Contract Documents.
9. The last sentence of Article 2.6.15 shall be revised to read as follows:
The Architect's response to such requests shall be made with reasonable promptness and
1 in any event, within 15 calendar days, unless otherwise extended by the Owner in
writing.
10. The last sentence of Article 2.6.16 shall be revised to read as follows:
When making such interpretations and initial decisions, the Architect shall endeavor. to
secure faithful performance by both Owner and Contractor, shall not show partiality to
either, and shall be liable only for interpretations or decisions made in a negligent
manner.
11. Delete articles 2.6.17 and 2.6.19
12. Article 2.6.18 shall be revised to read as follows:
The Architect shall render written. decisions on all claims, disputes or other matters in
question between the Owner and Contractor relating to the execution of progress of the
Work as provided in the Contract Documents within a reasonable period of time, and in
any event no later than 15 calendar days after any such claim, dispute or other matter
arises, unless such 15 -day period is otherwise extended by the Owner in writing.
® Architect's Initials��
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13. The following articles shall be added:
2.6.20 The Architect shall exercise usual and customary professional care in the
preparation of drawings and his designation of selection of materials and
equipment. and, the _selection and supervision of his personnel and the performance
of its services pursuant to this contract to meet the recognized industry standards.
2.6.21 The Architect shall procure and maintain at his sole cost and expense for the
duration of the Contract, insurance against claims for injures to person or
damages to property which may arise from or in connection with the performance
of the Work hereunder by the Architect, his agents, representatives, volunteers,
employees or subconsultants.
2.6.21.1 The Architect's insurance coverage shall be primary insurance with
respect to the Owner, his officials, employees and agents. Any insurance or
self-insurance maintained by the Owner, his officials, employees or agents
shall be considered in excess of the Architect's insurance and shall not
contribute to it. Further, the Architect shall include all subconsultants, agents
and assigns as additional insureds under its policy or shall famish separate
certificates and endorsements for each such person or entity. All coverages
for subconsultants and assigns shall be subject to all of the requirements stated
herein.
_ 2.6.21.2 The following is a list of standard insurance policies along with their
respective minimum coverage amounts required in this Agreement:
a. Commercial General Liability
• General Aggregate: $1,000,000
• Products & Completed Operations Aggregate: $1,000,000
• Personal & Advertising Injury: $1000,000
• Per-Occurrence: $500,000
• Fire Damage 550,000
• Coverage shall be at least as broad as ISO CG 00 01 10 93
• No coverage shall be deleted from standard policy without
notification of individual exclusions being attached for
review and acceptance.
b. Business Automobile Policy
• Combined Single Limits: $500,000
• Coverage for "Any Auto"
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C. Errors and Omissions
■ Limit: $500,000 for this project.
■ For all architects, engineers, and/or design companies
■ Claims -made form is acceptable
■ ,_ Coverage will be in -force for three (3). years after
construction of the Project is completed.
d. Workers' Compensation
• Statutory Limits
• Employer's Liability $500,000
• Waiver of Subrogation required.
2.6.21.3 The following shall be applicable to all policies of insurance required
herein.
a. Insurance carrier must have an A.M. Best Rating of A:VIII or
better.
b. Only insurance carriers licensed and admitted to do business in the
State of Texas will be accepted.
C. Liability policies must be on occurrence form. Errors and
Omissions can be on claims -made form.
d. Each insurance policy shall be endorsed to state that coverage shall
not be suspended, voided, canceled or reduced in coverage or in
Limits except after sixty (60) days' prior written notice by certified
mail, return receipt requested, has been given to the Owner.
e. The Owner, its officers, agents and employees are to be added as
Additional Insureds to all liability policies, with the exception of
the Errors and Omissions Policy required herein.
f. Upon request and without cost to the Owner, certified copies of all
insurance polices and/or certificates of insurance shall be furnished
to the Owner.
g. Upon request and without cost to the Owner, loss runs (claims
listing) of any and/or all insurance coverages shall be furnished to
the Owner.
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h. All insurance required herein shall be secured and maintained in a
company or companies satisfactory to the Owner, and shall be
carried in the name of the Architect. The Architect shall provide
copies of insurance, policies required hereunder to the Owner on or
before the effective date of this Agreement.
14. Article 3. 1.1 shall be revised to read as follows:
The services described in this Article 3 are not included in Basic Services unless so
identified in Article 12 or elsewhere in these Supplementary Conditions, and they shall be
paid for by the Owner as provided in this Agreement, in addition to the compensation for
Basic Services. The services described under Paragraphs 3.2, 3.3 and 3.4 shall only be
provided if authorized or confirmed in writing by the Owner.
15. The 2nd sentence of Article 3.2.2 shall be revised to read as follows:
The duties, responsibilities and limitations of authority of Project Representatives shall be
as described in Construction Documents as defined in Owner's Standard General
Conditions of Agreement.
16. Article 3. 3.1 shall be revised to read as follows:
Making revisions in Drawings, specifications or other documents when such revisions are
not caused in whole or in part by errors and /or omissions of the Architect and are:
.1 inconsistent with approvals or instructions previously given by the Owner
including revisions made necessary by adjustments in the Owner's
program or Project budget;
.2 required by the enactment or revision of codes, laws or regulations
subsequent to the preparation of such documents; or
.3 due to changes required as a result of the Owner's failure to render
decisions in a timely manner.
17. Article 3.3.7 shall be revised to read as follows:
Providing services in evaluating an extensive number of claims submitted by - Contractor
or others in connection with the Work, except for those claims caused in whole or in part
by errors and/or omissions by the Architect and/or the Architect's failure to provide
timely responses to Contractor's submittals.
18. Delete Articles 3.4.7 and 3.4.18, in their entirety.
19. Article 5.1.2 shall be revised to read as follows:
The Construction Cost shall include the costs using the prevailing wage rates as
established by the Owner and the current market rates of material and equipment to be
furnished, plus a reasonable allowance for Contractor's overhead and profit.. In addition,
Architect's Initials
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a reasonable allowance for contingencies shall be included for market conditions at the
time of bidding and for changes in the Work during construction.
20. Article 5.2.5 shall be revised to read as follows:
If the Owner chooses to, proceed_ under- Clause 5.2.4.4, the Architect; without - additional
charge, shall modify the Contract Documents as necessary to comply with the fixed limit
established and budgeted by the Owner. The modification of the Contract Documents
shall be the limit of the Architect's responsibility arising out of the establishment of a
fixed limit. The Architect shall be entitled to compensation in accordance with this
agreement for only those services performed and appropriately documented, whether or
not the Construction Phase is commenced.
21. Article 6.1 shall be revised to read as follows:
All Architect's designs and work products relating to the Project, including, but not
limited to, original drawings, specifications, investigations, studies and other documents
completed shall remain the property of Architect; provided, however, the Architect
hereby grants to the Owner a license to use the designs and work products in connection
with the construction, reconstruction, renovation, repair, use and occupancy of the Project
without additional compensation. Provided further that in the event the Owner uses said
designs and work products without the Architect being retained to provide professional
services in relation to the said use, the Owner does release the Architect from any liability
which may result from the subsequent use thereof. The Architect shall ensure that the
Owner obtains a license as described herein from each of the Architect's consultants
performing work in furtherance of the Project. Within ten days of any termination of this
Agreement prior to completion of the Project or within ten days of the receipt of payment
in accordance with the terms hereof from the Owner for the services rendered, whichever
is later, the Architect shall tender all instruments of service, including, but not limited to,
all drawings, specifications and other documents, including those in electronic form,
prepared by the Architect and the Architect's consultants, to the Owner. Thereafter for
additional sets, the Architect shall provide the Owner with a complete set of
transparencies of the designs and ' plans for subsequent reproduction, at the Owner's
expense, within three (3) days of receipt by Architect of the Owner's written request for
the same.
22. Article 7 shall be deleted in its entirety.
23. Article 8.1 shall be revised to read as follows:
This Agreement may be terminated by either party upon not less than seven days' written
notice should the other party fail to perform in accordance with the terms of this
Agreement through no fault of the party initiating the termination.
24. The 2 "d sentence of Article 8.2 shall be deleted.
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25. Article 8.4 shall be revised to read as follows:
Failure of the Owner to make payments to the Architect in accordance with this
Agreement after being given notice of such nonpayment and a reasonable period to cure
the same, which-clue period shall not be Jess than 15 calendar days, shall -be considered
substantial nonperformance and cause for termination.
26. The following shall be deleted from Article 8.6:
and all Termination Expenses as defined in Paragraph 8.7.
27. Article 8.7 shall be revised to read as follows:
The Owner may at any time terminate the Project for convenience. At such time, Owner
shall notify the Architect who shall cease work immediately upon receipt of such notice.
The Architect shall be compensated within thirty (30) days of Owner's receipt of an
invoice for all unpaid services performed and . reimbursable expenses incurred prior to
termination.
28. Article 9.1 shall be revised to read as follows:
This Agreement shall be governed by the laws of the principal place of business of the
Owner.
29. Article 9.2 shall be revised to read. as follows:
Terms in this Agreement shall have the same meaning as those contained in the Owner's
General Conditions of Agreement for Construction.
30. Delete Articles 9.3 and 9.4 in their entirety.
31. The following shall be added after the last sentence of Article 9.8:
Should the Architect or any of his officials, employees or subcontractors, discover, notice
or become aware of hazardous materials in any form at the Project site at any time
throughout the term of this Agreement, the Architect shall immediately notify the Owner
of such fact in writing:
32. Delete the last sentence of Article 9.9.
33. Add the following articles: ,
9:10 All parties agree that should any provision of this agreement be determined to be
invalid or unenforceable, such determination shall not affect any other term of this
Agreement, which shall continue in full force and effect.
9.11 The relationship of the Architect to the Owner shall be that of an independent
contractor.
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9.12 Both the Architect and the Owner agree that the proper venue for any dispute
® arising under this Agreement is Baytown, Harris County, Texas.
34. Add the following as an introductory prepositional phrase to Article 10.1.1:
In calculating reimbursable expenses and/or additional - services - requested in writing by
the Owner,
35. Delete Articles 10.2.1.5 and 10.2.1.6.
36. Add the following as Article 10.2.2:
Before the Owner shall be liable for any of the above- referenced reimbursable expenses,
except as otherwise provided- in this Article, the Architect must obtain prior written
approval of the Owner or the Owner's representative of any expense that exceeds $1,000,
for which the Architect seeks reimbursement. However, for travel expenses, all such
expenses must be approved by the Owner before the same are incurred. If such approval
is not obtained, the Owner shall not be liable for such travel expenses. Any approvals
required in this Article shall not be unreasonably withheld.
37. Article 10.3.2 shall be revised to read as follows:
Subsequent payments for Basic Services shall be made 30 days after the Architect
submits a detailed invoice for the services actually performed and a report of the progress
of the Project and, where applicable,. such payment shall be in proportion to the services
performed within each phase of service on the basis set forth in Subparagraph 11.2.2.
_ 38. Delete Article 10.3.3 in its entirety.
39. Article 10.4.1 shall be revised to read as follows:
Payments on account of the Architect's Additional Services and for Reimbursable
Expenses shall be made within thirty (30) days after the presentation of the Architect's
statement of the services rendered or the expenses incurred.
40. Article 11. 5.2 shall be revised to read as follows:
Payments are due and payable within thirty (30) days after the Owner's receipt of the
Architect's invoice or thirty (30) days after the Architect's performance of the services;
whichever is later. Amounts unpaid sixty (60) days after the later of the receipt of the
Architects invoice or sixty (60) days after Architect's performance of the services, shall
accrue interest at the rate of 1% per month.
41. There shall be no right to arbitration under this agreement and all references herein to the
same are hereby deleted.
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A* 42. The following Articles shall be added:
12.4 The Architect agrees that time is of the essence for the Project and the services to
be performed hereunder. As such, the Architect's services shall be performed
with professional -skill and care within the time- limits approved by the Owner
based upon a schedule submitted by the Architect and consistent with this
Agreement. Such schedule may be adjusted by the Owner, if necessary, as the
Project proceeds. The schedule as established includes allowances for periods of
time required for the Owner's review, for the performance of the Owner's
consultants, and for approval of submission by authorities having jurisdiction over
the Project The time limits established herein shall not, except for reasonable
cause, be exceeded by the Architect or Owner.
12.5 Except with the Owner's knowledge and express written consent, the Architect
shall not engage in any activity, or accept any employment, interest or
contribution that would compromise or reasonably appear to compromise, as
determined by the Owner, the Architect's professional judgment with respect to
this Project
12.5 The Architect shall ensure that his services as well as those that the Architect
requires of others in furtherance of the Project comply with all applicable laws,
codes and regulations. The Architect shall promptly comply with all requirements
imposed by governmental authorities having jurisdiction over the Project and, in
any event, the Architect's compliance shall be complete within the. time period
specified by the authority having jurisdiction over the Project or by the Owner,
whichever is less.
12.6 The Architect warrants the design preparation of drawings, the designation of
selection of materials and equipment, the selection and supervision of the
Architect's personnel as well as the Architect's consultant's personnel, and the
performance of other services pursuant to this Agreement to meet the recognized
industry standards.
12.7 The Owner shall at no time be obligated to pay more than FIVE THOUSAND
AND N01100 DOLLARS ($5,000) in reimbursable expenses without prior
written authorization by the Owner.
, I Imo,
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12.8
THE ARCHITECT AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND THE OWNER, ITS OFFICERS, AGENTS, AND
EMPLOYEES FROM AND AGAINST ANY AND ALL CLALNIS; LOSSES,
DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY
KIND, INCLL"DING ALL EXPENSES OF LITIGATION, COURT COSTS,
AND ATTORNEY'S FEES,. FOR INJURY TO OR DEATH OF ANY PERSON,
FOR DAMAGE TO ANY PROPERTY, OR FOR ANY BREACH OF
CONTRACT, ARISING OUT OF, OR IN CONNECTION WITH THE WORK
DONE BY THE ARCHITECT UNDER THIS CONTRACT. IN THE EVENT
OF PERSONAL. INJURY TO OR DEATH OF THE ARCHITECT OR THE
ARCHITECT'S EMPLOYEES, SUCH INDEMNITY SHALL APPLY
REGARDLESS OF WHETHER THE CLAIMS, LOSSES, DAMAGES, CAUSES
OF ACTION, SUITS OR LIABILITY ARISE IN WHOLE OR IN PART FROM
THE NEGLIGENCE OF THE OWNER SUCH INDEMNITY SHALL NOT
APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL
INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS OTHER THAN
THE ARCHITECT OR ITS EMPLOYEES THAT IS CAUSED BY OR
RESULTS FROM THE NEGLIGENCE OF THE OWNER
By this Agreement, the Owner does not consent to litigation or suit, and the Owner
hereby expressly revokes any consent to litigation that it may have granted by the
terms of this Contract or any other contract , or agreement, any charter, or
applicable state Iaw. The Architect assumes full responsibility for its work
performed hereunder and hereby releases, relinquishes and discharges the Owner,
its officers, agents, and employees from all claims, demands, and causes of action of
every kind and character, including the cost of defense thereof, for any injury to or
death of any person (whether they be either of the parties hereto, their employees,
or other third parties) and any loss of or damage to property (whether the property
be that of either of the parties hereto, their employees, or other third parties) that is
caused by or alleged to be caused by, arising .out of, or in connection with the
Architect's work to be performed hereunder. This release shall apply with respect
to the Architect's work regardless of whether said claims, demands, and causes of
action are covered in whole or in part by insurance.
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TABLE OF CONTENTS
G -1
FOR,
GENERAL CONDITIONS OF AGREEMENT
1. Definition of Terms
Page
1.01
Owner, Contractor and Engineer. _
G -3
1.02
Contract Documents. _ ..
G -3
1-03
Sub- Contractor. _ _ _
_ G -3
1.04
Written Notice_ _ _
G -3
1.05
work. _ - - -
G -3
1.06
Extra Work. - - - -
G -3
1-07
Working Day .. _
_ G -3
1.08
Calendar Day. _
G -4
1.09
Substantially Completed _ .. _ _ _
G -4
2. Resconsibilities . of the Engineer and the Contractor
2.01
Owner - Engineer Relationship . . . . .
G -4
2 -02
Professional Insnection by Engineer
G -4
2.03
Payments for Work . . . . . . .. _ _
.. G -4
2.04
Initial Determinations. _
G -4
2.05
Objections.
G -4
2.06
Lines and Graces.
G -5
2.07
Contractor's Duty and Superintendence _
G -5
2.08
Contractor's Understanding.
G -6
2.09
Character of Workmen. .. - - -
G -6
2.10
Contractor's Buildings.
G -6
t
2.11
Sanitation. _
. . . G -6
2.12
Shop Drawings _
G -6
2.13
Preliminary Approval. _
G -6
2.14
Defects and Their Remedies. . . _ ..
G -7
2.15
Changes and Alterations _ _ ..
G -7
3. General Obligations and Responsibilities
3.01
Keeping of Plans and Specifications Accessible.
G -7
3.02
Ownership of Drawings ..
G -7
3.03
Adequacy of Design.
G -7
3.04
Right of Entry. _ _
G-7
3.05
Collateral Contracts.
G -8
3.06
Discrepancies and Omissions
G -8
3.07
.Equipment, Materials and Construction Plant
G -8
3.08
Damages . . . . . . . ..
G -8
3.09
E e Public
Protection Against Accident to mployees and th
G -8
3.10
Performance and Payment Bonds _ _ .
. . G -8
3.11
Losses from Natural Causes.
G -9
3-12
Protection of Adjoining Property_
G -9
3.13
- _
Protection Against Claims of Sub Contractors, Etc .
G -9
3.14
Protection Against ainst Ro alties or Patented Invention.
G -9
G -1
11
3.15
Laws and Ordinances
G -10
3.16
( 3.17
Assignment and Subletting
Indemnification . . . . .
G -10
G -10
3.18
Insurance . . . . . . . . . .
G -11
4. Prosecution
and Progress
4.01
Time and Order of Completion.
G -11
4.02
Extension of Time
G -12
4.03
Hindrances and Delays
G -12
5. Measurement
and Payment
5.01
Quantities and Measurements
_ _ _
_ G -12
5.02
Estimated Quantities.
_
G -12
5.03
Price of Work . . . . .
_. G -12
5.04
Partial Payment . . . . . . . . . . .
. . . . . _
. . . . . G -13
5.05
Use of Completed Portions . . _
_
. . . . . G -13
5.06
Final Completion and Acceptance
.-
G -13
5.07
Final Payments
_ _ _
G -13
5.08
Payments Withheld _ .. ..
.. ...
_ _ _ _ _ G -13
5.09
Delayed Payments.
G -14
6. Extra Work
and Claims
6.01
Change Orders
. .
. . . . . . G -14
6.02
Minor Changes _
_
G -14
6.03
Extra Work.
G -14
6.04
Time of Filing Claims . . . . . . . .
. . . . . . . . . .
. . . . . . G -15
7. Abandonment
of Contract
7.01
Abandonment by Contractor
...
G -15
7.02
Abandonment by Owner. . .
G-17
7.03
Termination by Owner for Convenience
G -17
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G -2
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•
GENERAL CONDITIONS OF AGREEMENT
1. DEFINITIONS OF TERMS
1.01 OWNER, CONT ?r_CTOR AND ENGINEER. The OWNER, the CONTRACTOR and the
ENGINEER are those persons or organizations identified as ,such in the Agreement
and are referred to troughout the Contract Documents as if singular in number and
masculine in gender. The term ENGINEER means the ENGINEER or his duly authorized
representative. The ENGINEER shall be understood to be the ENGINEER of the OWNER,
and nothing contained in the Contract Documents shall create any contractual or
agency relationship between the ENGINEER and the CONTRACTOR.
1.02 CONTRACT DOCUMENTS. The Contract Documents shall consist of the Notice to
Contractors (Advertisement), Instructions to Bidders, Bid Form, signed Standard
Form of Agreement, Performance and IPayment Bonds (when required), Special Bonds
(when required), Special Addenda, Sjpecial Provisions, General Conditions of the
Agreement, Scope of Work, Prevailing Wage Rates, Prevailing Wage Rate Affidavit,
Hold Harmless /Proof of Insurance, Technical Specifications, Plans, and all
modifications thereof incorporated in any of the documents before the execution of
the agreement.
The Contract Documents are complementary, and what is called for by any one.
shall be as binding as if called for by all. In case of conflict between any of
the Contract Documents, priority of interpretation shall be in the following
order: Hold Harmless /Proof of Insurance, Addenda, Signed Standard Form of
Agreement, Special Provisions, Performance and Payment Bonds, Special Bonds (if
any), Special Addenda, Prevailing Wage Rates, Prevailing Wage Rate Affidavit, Bid
Form, Notice to Contractors, .Instructions to Bidders, Scope of Work, Technical
Specifications, Plans, and General Conditions of Agreement.
1.03 SUB - CONTRACTOR. The term Sub - Contractor, as employed herein, includes
only those having a direct contract with the CONTRACTOR and it includes one who
furnishes material worked to a special design according to the plans or
specifications of this work, but does not include one who merely furnishes
material not so worked.
1.04 WRITTEN NOTICE. Written notice shall be deemed to have been duly served
if delivered in person to the individual or to a member of the firm or to an
officer of the corporation for whom it is intended, or if delivered at or sent by
registered mail to the last business address known to him who gives the notice.
1.05 WORK. The CONTRACTOR shall provide any pay for all materials, supplies
and machinery, equipment, tools, superintendence, labor, services, insurance, and
all water, light, power, fuel, transportation and other facilities necessary: for
the execution and completion of the work covered by the contract documents.
Unless otherwise specified, all materials shall be new and both workmanship and
materials shall be of a good quality. The CONTRACTOR shall, if required, furnish
satisfactory evidence as to the kind and quality of materials. Materials or work
described in words which so applied have a well known technical or trade meaning
shall be held to refer to such recognized standards.
1.06 EXTRA WORK. The term "Extra Work" as used in this contract shall be
understood to mean and include all work that may be required by the ENGINEER or
OWNER to be done by the CONTRACTOR to accomplish any change, alteration or
addition to the work shown upon the plans, or reasonably implied by the
specifications, and not covered by the CONTRACTOR'S Proposal, except as provided
under "Changes and Alterations ", herein.
1.07 WORKING DAY. A "Working Day" is defined as any day not including
Saturdays, Sundays, or any legal holidays, in which weather or other conditions,
i not under the control of the CONTRACTOR, will permit construction of the principal
L units of the work for a period of not less than seven (7) hours between 7:00 a.m..
G -3
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and 6:00 P.M.
1.08 CALENDAR DAY. "Calendar Day" is any day of the week or month, no days
being excepted.
1.09 SUBSTANTIALLY CCuPLETED. By the term "substantially completed" is meant
that the structure has been made suitable for use or occupancy or the facility is
in condition to__. .se_4e. its,. intended .,p.urpose, _ but still may . require minor
miscellaneous work and adjustment.
2. RESPONSIBILITIES OF THE ENGINEER AND THE CONTRACTOR
2.01 OWNER - ENGINEER RELATIONSHIP. The ENGINEER will be the OWNER'S
representative during construction. The duties, responsibilities and limitations
of authority of the ENGINEER as the OWNER'S representative during construction are
as set forth in the Contract Documents and shall not be extended or limited
without written consent of the OWNER and ENGINEER. The ENGINEER will advise and
consult with the OWNER, and all of OWNER'S instructions to 'the CONTRACTOR shall be
issued through the ENGINEER.
2.02 PROFESSIONAL INSPECTION BY ENGINEER. The ENGINEER shall make periodic
visits to the site to familiarize himself generally with the progress of the
executed work and to determine if such work generally meets the essential
performance and design features and the technical and functional engineering
requirements of the Contract Documents; provided and except, however, that the
ENGINEER shall not be responsible for making any detailed, exhaustive,
comprehensive or continuous on -site inspection of the quality or quantity of the
work or be in any way responsible, directly or indirectly, for the construction
means, methods, techniques, sequences, quality, procedures, programs, safety
precautions or lack of same incident thereto or in connection therewith.
Notwithstanding any other provision of this agreement or any other Contract
Document, the ENGINEER shall not be in any way responsible or liable for any acts,
errors, omissions or negligence of the CONTRACTOR, any subcontractor or any of the
CONTRACTOR'S or subcontractor's agents, servants or employees or any other person,.
firm. or, corporation performing. or attempting to perform any of the work.
2.03 PAYMENTS FOR WORK. The ENGINEER shall review CONTRACTOR'S applications
for payment and supporting data, determine the amount owed to the CONTRACTOR and
approve, in writing, payment to CONTRACTOR in such amounts; such approval of
payment to CONTRACTOR constitutes a representation to the OWNER of ENGINEER'S
professional judgment that the work. has progressed to the point indicated to the
best of his knowledge, information and belief, but such approval of an application
for payment to CONTRACTOR shall not be deemed as a representation by ENGINEER that.
ENGINEER has made any examination to determine how or for what purpose CONTRACTOR
has used the moneys paid on account of the Contract price.
2.04 INITIAL DETERMINATIONS. The ENGINEER initially shall determine all
claims, disputes and other matters in question between the CONTRACTOR and the
OWNER relating to the execution or progress of the work or the interpretation of
the Contract Documents and the ENGINEER'S decision shall be rendered in writing
within a reasonable time.
2.05 OBJECTIONS. In the event the ENGINEER renders any decision which, in the
opinion of either party hereto, is not in accordance with the meaning and intent
of this contract, either party may file with the ENGINEER within thirty days his
written objection to the decision.
2.06 LINES AND GRADES. Unless otherwise specified, all lines and grades shall
be furnished by the ENGINEER or his representative. Whenever necessary,
construction work shall be suspended to permit performance of this work, but such
issuspension will be as brief as practicable and the CONTRACTOR shall be allowed no
extra compensation therefor. The CONTRACTOR shall give the ENGINEER ample notice
of the time and place where lines and grades will be needed. All stakes, marks,
etc., shall be carefully preserved by the CONTRACTOR, and in case of careless
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destruction or removal by him or his employees, such stakes, marks, etc., shall be
replaced at the CONTR- _CTOR'S expense.
2.07 CONTRACTOR'S DUT`! AND SUPERINTENDENCE. The CONTRACTOR shall give adequate
attention to the faithful prosecution and completion of this contract and shall
keep on the work, during its progress, a competent superintendent and any
necessary assistants. The superintendent shall represent the CONTRACTOR in his
absence and all direc__cns given to him shall be as binding as if given to the
CONTRACTOR.
The CONTRACTOR is and at all times shall remain an independent contractor,
solely responsible for the manner and method of completing his work under this
contract, with full power and authority to select the means, method and manner of
performing such work, so long as such methods do not adversely affect the
completed improvements, the OWNER and ENGINEER being interested only in the result
obtained and conformity of such completed improvements to the plans,
specifications and contract.
Likewise, the CONTRACTOR shall be solely responsible for the safety of himself,
his employees and other persons, as well as for the protection of the safety of
the improvements being erected and the property of himself or any other person, as
a result of his 'operations hereunder. Engineering construction drawings . and
specifications as well as any additional information concerning the work to be
performed passing from or through the ENGINEER shall not be interpreted as
requiring or allowing CONTRACTOR to deviate from the plans and specifications, the
intent of such drawings, specifications and any other such instructions being to
define with particularity the agreement of the parties as to the work the
CONTRACTOR is to perform. CONTRACTOR shall be fully and completely liable, at his
own expense, for design, construction, installation and use, or non -use, of all
items and methods incident to performance of the contract, and for all loss,
damage or injury incident thereto, either to person or property, including,
without limitation, the adequacy of all temporary supports, shoring, bracing,
scaffolding, machinery or equipment, safety precautions or devices, and similar
items or devices used by him during construction.
Any review of work in process, or any visit or observation during construction,
or any clarification of plans and specifications, by the ENGINEER, or any agent,
employee, or representative of either of them, whether through personal
observation on the project site or by means of approval of shop drawings for
temporary construction or construction processes, or by other means or method, is
agreed by the CONTRACTOR to be for the purpose of observing the extent and nature
of work completed or being performed, as measured against the drawings and
specifications constituting the contract, or for the purpose of enabling
CONTRACTOR to more fully understand the plans and specifications so that the
completed construction work will conform.- thereto, and shall in no way relieve the
CONTRACTOR from full and complete responsibility for the proper performance of his
work on the project, including but without limitation the propriety of means and
methods of the CONTRACTOR in performing said contract, and the adequacy of any
designs, plans or other facilities for accomplishing such performance. Deviation
by the CONTRACTOR from plans and specifications that may have been in evidence
during any such visitation or observation by the ENGINEER, or any of his
representatives, whether called to the CONTRACTOR'S attention or not shall in no
way relieve CONTRACTOR from his responsibility to complete all work in accordance
with said plans and specifications.
2.08 CONTRACTOR'S UNDERSTANDING. It is understood and agreed. that the CONTRACTOR
has, by careful examination, satisfied himself as to the nature and location of
the work, the conformation of the ground, the character, quality and quantity of
the materials to be encountered, the character of equipment and facilities needed
®preliminary to and during the prosecution of the work, the general and local
conditions, and all other matters which can in any way affect the work under this
contract. No verbal agreement or conversation with any officer, agent or employee
of the OWNER or ENGINEER either before or after the execution of this contract,
shall affect or modify any of the terms or obligations herein contained.
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2.09 CHARACTER 0-' : +0 :._` ^EN. The CONTRACTOR agrees to employ only orderly and
competent men, skillfl_,1. the performance of the type of work required under this
i contract, to do the wcrk; and agrees that whenever the ENGINEER shall inform him
in writing that any 'man or men on the work are, in his opinion, incompetent,
unfaithful or disorder::/, such man or men shall be discharged from the work and
stall not again be emp 3ved on the work without the ENGINEER'S written consent.
2.10 CONTRACTOR'S 36ITDINGS. The building of structures for housing men, or
the erection of tents or other forms or protection, will be permitted only at such
places as the ENGINEER stall direct, and the sanitary conditions of the grounds in
or about such structures shall at all times be maintained in a manner satisfactory .
to the ENGINEER.
2.11 SANITATION. Necessary sanitary conveniences for the use of laborers on
the work, properly secluded from public observation, shall be constructed and
maintained by the CONTRACTOR in- such manner and at such points as shall be
approved by the ENGINEER, and their use shall be' strictly enforced.
2.12 SHOP DRAWINGS. The CONTRACTOR shall submit' to the ENGINEER, with such
promptness as to cause no delay in his own work or in that of any other
Contractor, four checked copies.,. unless otherwise specified, of all shop and /or.
setting drawings and schedules required for the work of the various trades, and
the ENGINEER shall pass upon them with reasonable promptness, making desired
corrections. The CONTRACTOR shall make any corrections required by the ENGINEER,
file with him two corrected copies and furnish such other copies as may be needed.
The ENGINEER'S approval of such drawings or schedules shall not relieve the
CONTRACTOR from responsibility for deviations from drawings or specifications,
unless he has in writing called the ENGINEER'S attention Oto such deviations at
the time of submission, nor shall it relieve him from responsibility for errors of
any sort in shop drawings or schedules. It shall be the CONTRACTOR'S
f responsibility to fully and completely review all shop drawings to ascertain their
FI effect on his.ability to perform the required contract work in accordance with the
plans and specifications and within the contract time.
Such review by the ENGINEER shall be for the sole purpose of determining the
sufficiency of said drawings or schedules to result in finished improvements in
conformity with the plans and specifications, and shall not relieve the CONTRACTOR
of his duty as an independent contractor as previously set forth, it being
expressly understood and agreed that the ENGINEER does not assume any duty to pass
upon the propriety or adequacy of such drawings or schedules, or any means or
methods reflected thereby, in relation to the safety of either person or property
during CONTRACTOR'S performance hereunder.
2.13 PRELIMINARY APPROVAL. The ENGINEER shall not have the power to waive the
obligations of this contract for the furnishing by the CONTRACTOR of good .
material, and of his performing good work as herein described, and in full
accordance with the plans and specifications. No failure or omission of the
ENGINEER to discover, object to or condemn any defective work or material shall
release the CONTRACTOR from the obligations to fully and properly perform the
contract, including without limitations, the obligation to at once tear out,
remove and properly replace the same at any time prior to final acceptance. upon
the discovery of said defective work or material; provided, however, that the
ENGINEER shall, upon request of the CONTRACTOR, inspect and accept or reject any
material furnished, and in event the material has once been accepted by the
ENGINEER, such acceptance shall be binding on the OWNER unless it can be clearly
shown that such material furnished does not meet the specifications for this work.
Any questioned work may be ordered taken up or removed for re- examination, by
the ENGINEER, prior tc final acceptance, and if found not in accordance with the
specifications for said work, all expense of removing, re- examination and
®replacement shall be borne by the CONTRACTOR, otherwise the expense thus incurred
shall be allowed as EXTRA WORK, and shall be paid for by the OWNER; provided that,
where inspection or approval is specifically required by the specifications prior
to performance of certain work, should the CONTRACTOR proceed with such work
without requesting prior inspection or approval he shall bear all expense of
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taking up, removing, a ^d replacing this work if so directed by the ENGINEER.
2.14 DEFECTS AND T?:R REMEDIES. It is further agreed that if the work or any
10 part thereof, or any material brought on the site, of the work for use in the work
or selected for the same, shall be deemed by the ENGINEER as unsuitable or not in
conformity with the specifications, the CONTRACTOR shall, after receipt of written
notice thereof from the ENGINEER, forthwith remove such mater_al and rebuild or
otherwise remedy- such work so that - it - -shall be in full- accordance - with this
contract.
2.15 CHANGES AND P.LTERATIONS. The CONTRACTOR further agrees that the OWNER may
make such, changes and alterations as the OWNER may see fit, in the line, grade,
form, dimnsions, plans or materials for the work herein contemplated, or any part.
thereof, either before or after the beginning of the construction, without
affecting the validity of this contract and the accompanying Performance and
Payment Bonds.
If such changes or alterations diminish the quantity of the work to be done,
they shall not constitute the basis for a claim for damages, or anticipated
profits on the work that may be dispensed with, except as provided for unit price
items under Section 5 "Measurement and Payment ". If the amount of work is
increased, and the work can fairly be classified, under the specifications,. such
increase shall be paid for according to the quantity actually done and at the unit
price, if any, established for such work under this contract, except as provided
for unit price items under Section 5 "Measurement and Payment "; otherwise, such
additional work shall be paid for as provided under Extra Work. In case the OWNER
shall make such changes or alterations as shall make useless any work already done
or material already furnished or used in said work, then the OWNER shall
recompense the CONTRACTOR for any material or labor so used, and for any actual
loss occasioned by such change, due to actual expenses incurred in preparation for
the work as originally planned.
2.16 APPROVAL OF SUBCONTRACTORS. The CONTRACTOR shall provide the ENGINEER
and OWNER a list of proposed subcontractors within fifteen (15) days of "Notice to
Proceed". The CONTRACTOR shall not contract with a proposed person or entity to
whom the OWNER or ENGINEER has made timely objection.
3. GENERAL OBLIGATIONS AND RESPONSIBILITIES
3.01 KEEPING OF PLANS AND SPECIFICATIONS ACCESSIBLE. The ENGINEER shall
furnish the CONTRACTOR with an adequate and reasonable number of copies of all
plans and specifications without expense to him, and the CONTRACTOR shall keep one
copy of the same constantly accessible on the work, with the latest revisions,
noted thereon.
3.02 OWNERSHIP OF DRAWINGS. All drawings, specifications and copies thereof
furnished by the ENGINEER shall not be reused on other work, and, with the
exception of the signed contract sets, are to be returned to him on request, at
the completion of the work. All models are the property of the OWNER.
3.03 ADEQUACY OF
DESIGN. It is understood
that the OWNER believes it
has
employed competent
engineers and designers. It
is, therefore, agreed that
the
OWNER shall be responsible for the adequacy of
the design, sufficiency of
the
Contract Documents,
the safety of the structure
and the practicability of
the
operations of the completed project; provided the
CONTRACTOR has complied with
the
requirements of the
said Contract Documents, all
approved modifications thereon,
and additions and
alterations thereto approved
in writing by the OWNER.
The
burden of proof of
such compliance shall be upon
the CONTRACTOR to show that
he '
has complied with
the said requirements of the Contract Documents, approved
® modifications thereof and all approved additions and alterations thereto.
3.04 RIGHT OF ENTRY. The OWNER reserves the right to enter the property or
location on which the works herein contracted for are to be constructed or
installed, by such agent or agents as he may elect, for the purpose of inspecting-
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the work, or for the purpose of constructing or installing such collateral work as
said OWNER may desire.
3.05 COLLATERAL CONTRAC77S. The OWNER agrees to provide by separate contract or
otherwise, all labor and material essential to the completion of the work
specifically excluded from this contract, in such manner as not to delay the
progress of- the - work;- -or damage said CONTRACTOR, except where such delays are
specifically mentioned elsewhere in the Contract Documents.
3.06 DISCREPANCIES AND OMISSIONS. It is further agreed that it is the intent of
this contract that all work must be done and all material must be furnished in
accordance with the generally accepted practice, and in the event of any
discrepancies between the separate contract documents, the priority of
interpretation defined under "Contract Documents" shall govern. In the event that
there is still any doubt as to the meaning and intent of any portion of the
contract, specifications or drawings, the ENGINEER shall define which is intended
to apply to the work.
3.07 EQUIPMENT, MATERIALS AND. CONSTRUCTION PLANT. The CONTRACTOR shall be
responsible for the care, preservation, conservation, and protection of all
materials, supplies, machinery, equipment, tools, apparatus, accessories,
facilities, all means of construction, and any and all parts of the work, whether
the CONTRACTOR has been paid, partially paid, or not paid for such work, until the
entire work is completed and accepted.
3.08 DAMAGES. In the event the CONTRACTOR is damaged in the course of the
completion of the work by the act, neglect, omission, mistake or default of the
OWNER, or of the ENGINE-ER, or of any other CONTRACTOR employed by the OWNER upon
the work, thereby caus_nc loss to the CONTRACTOR, the OWNER agrees that he will
reimburse the CONTRACTOR for such loss. In the event the OWNER is damaged in the
course of the work by the act, negligence, omission, mistake or default of the
CONTRACTOR, or should the CONTRACTOR unreasonably delay the progress of the work
being done by others on the job so as to cause loss for which the OWNER becomes
liable, then the CONTRACTOR shall reimburse the OWNER for such loss.
3.09 PROTECTION AGAINST ACCIDENT TO EMPLOYEES AND THE PUBLIC. The CONTRACTOR
shall at all times exercise reasonable precautions for the safety of employees and
others on or near the work and shall comply with all applicable provisions. of
Federal, State, and Municipal safety laws and building and construction codes.
All machinery and equipment and other physical hazards shall be guarded in
accordance with the. "Manual of Accident Prevention in Construction" of the
Associated General Contractors of America except where incompatible with Federal,.
State, or Municipal laws or regulations. The CONTRACTOR shall provide such
machinery guards, safe walkways, ladders,- bridges, gangplanks, and other safety
devices. The safety precautions actually taken and their adequacy shall be the
sole responsibility of the CONTRACTOR, acting at his discretion as an independent
contractor.
3.10 PERFORMANCE AND PAYMENT BONDS. Unless otherwise specified, it is further
agreed by the parties to the Contract that the CONTRACTOR will execute separate
performance and payment bonds, each in the sum of one hundred (100) percent of the
total contract price, in standard forms for this purpose, guaranteeing faithful
payment to all persons supplying labor and materials or furnishing him any
equipment in the execution of the Contract, and it is agreed that this Contract
shall not be in effect until such performance and payment bonds are furnished and
approved by the OWNER.
Unless otherwise approved in writing by the OWNER, the surety company
underwriting the bonds shall be acceptable according to the latest list of
companies holding certificates of authority from the Secretary of Treasury of the
United States.
Unless otherwise specified, the cost of the premium for the performance and
payment bonds shall be included in the CONTRACTOR'S proposal.
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3. 11 LOSSES FROM NATURAL CAUSES. Unless otherwise specified, all loss or
damage to the CONTRACTOR arising out of the nature of the work to be done, or from
me action of the e_anen:_z, or from any unforeseen circumstance in the prosecution
o= the same, or from unusual obstructions or difficulties which may be encountered
_n the prosecution or -L e work, shall be sustained and borne by the CONTRACTOR at
his own cost and expense.
3.12. PROTECTION -OF :'A'DjOINING PROPERTY.' The said CONTRACTOR shall take proper
means to protect the adjacent or adjoining property or properties in any way
encountered, which might be injured or seriously affected by any process of
construction to be undertaken under this Agreement, from anv damage or injury by
reason of said process of construction; and he shall be liable for any and all
claims for such damage on account of his failure to fully protect all adjoining
property. CONTRACTOR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND, THE
OWNER, ENGINEER, AND THEIR RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES, FROM AND
AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY
OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS'
FEES FOR DAMAGE TO ANY ADJACENT OR ADJOINING PROPERTY, ARISING OUT OF OR IN
CONNECTION WITH THE WORK DONE BY CONTRACTOR UNDER THIS CONTRACT, WHERE SUCH
DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE OWNER OR ENGINEER, AND ANY OTHER
PERSON OR ENTITY. : IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE
CONTRACTOR AND THE OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN
INDEMNITY BY THE CONTRACTOR TO INDEMNIFY, PROTECT AND DEFEND THE OWNER AND /OR
ENGINEER FROM THE CONSEQUENCES OF THE OWNER'S AND /OR ENGINEER'S OWN NEGLIGENCE,
WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. -
FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO
APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE
THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE OWNER OR
ENGINEER UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY.
3.13 PROTECTION AGAINST CLAIMS OF SUB - CONTRACTORS, LABORERS, MATERIALMEN AND
FURNISHERS OF MACHINERY, EQUIPMENT AND SUPPLIES. CONTRACTOR AGREES TO AND SHALL
^ INDEMNIFY, HOLD HARMLESS AND DEFEND, THE OWNER, ENGINEER, AND THEIR RESPECTIVE
OFFICERS, AGENTS AND EMPLOYEES, FROM AND AGAINST ANY ALL CLAIMS, LOSSES, DAMAGES,
CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF
LITIGATION, COURT COSTS, AND ATTORNEYS' FEES FOR ANY AND ALL DEMANDS OF SUB-
CONTRACTORS, LABORERS, WORKMEN, MECHANICS, MATERIALMEN AND FURNISHERS OF MACHINERY
AND PARTS THEREOF, EQUIPMENT, POWER TOOLS, AND ALL SUPPLIES, INCLUDING COMMISSARY,
INCURRED IN THE FURTHERANCE OF THE PERFORMANCE OF THIS CONTRACT, REGARDLESS OF
WHETHER SUCH CLAIMS OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE OWNER
AND /OR ENGINEER, AND ANY OTHER PERSON OR ENTITY. IT IS THE EXPRESSED INTENTION OF
THE PARTIES HERETO, BOTH THE CONTRACTOR AND THE OWNER, THAT THE INDEMNITY PROVIDED
FOR IN THIS PARAGRAPH IS AN INDEMNITY BY THE CONTRACTOR TO INDEMNIFY, PROTECT AND
DEFEND THE OWNER AND ENGINEER FROM THE CONSEQUENCES OF THE OWNER'S AND /OR
ENGINEER'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE
INJURY, DEATH OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION,
SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE
NEGLIGENCE OF THE OWNER OR ENGINEER UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR
ENTITY. When so desired by the OWNER, the CONTRACTOR shall furnish satisfactory
evidence that all obligations of the nature herein above designated have been
paid, discharged or waived. If the CONTRACTOR fails to do so, then the OWNER may
at the option of the CONTRACTOR either pay directly any unpaid bills, of which the
CWNER has written notice, or withhold from the CONTRACTOR'S unpaid compensation a
su.,n of money deemed reasonably sufficient to liquidate any and all such lawful
claims until satisfactory evidence is furnished that all liabilities have been
fully discharged, whereupon payments to the CONTRACTOR shall be resumed in full,
in accordance with the terms of this contract, but in no event shall the
provisions of this sentence be construed to impose any obligation upon the OWNER
by either the CONTRACTOR or his Surety.
3.14 PROTECTION AGAINST ROYALTIES OR PATENTED INVENTION. The CONTRACTOR shall
pay all royalties and license fees, and shall provide for the use of any design,
device, material or process covered by letters patent or copyright by suitable
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legal agreement with the patentee or owner. CONTRACTOR warrants that the products
hereby incorporated into the project and /or any product used in association with
the project does not in-f_ince upon or violate any patent, copyright, trade secret
0 or any other proprietary sight of any third party; in the event of any claim by
any third party against the OWNER, ENGINEER or any of its officers, agents and /or
employees, the OWNER or ENGINEER shall notify CONTRACTOR and CONTRACTOR SHALL
DE FEND SUCH CLAIM, IN T.? OWNER'S AND /OR ENGINEER'S NAME, BUT AT THE CONTRACTOR'S
EXPENSE, AND ..- SHALL - INDEMNI -F Y,- HOLD HARMLESS, AND DEFEND THE OWNER AND ENGINEER AND
THEIR OFFICERS, AGENTS, AND ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY EITHER OF
THEM FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, CAUSES OF ACTION, SUITS
AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LIMITED TO, ALL EXPENSES OF
LITIGATION, COURT COSTS AND ATTORNEYS' FEES, FOR INJURY, DEATH OR DAMAGE TO ANY
THIRD PARTY, ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT(S) USED IN THE
PERFORMANCE OF THIS CONTRACT AND REGARDLESS OF WHETHER SUCH CLAIM BY AND ANY
RESULTING INJURY, DEATH OR DAMAGE TO THIRD PARTIES IS CAUSED IN PART BY THE ACTS
AND /OR OMISSIONS OF THE OWNER AND /OR ENGINEER. IT IS THE EXPRESSED INTENTION OF
THE PARTIES HERETO, BOTH THE CONTRACTOR AND THE OWNER, THAT THE INDEMNITY PROVIDED
FOR T_N THIS PARAGRAPH IS AN INDEMNITY BY THE CONTRACTOR TO INDEMNIFY, PROTECT AND
DEFEND THE OWNER AND ENGINEER FROM THE CONSEQUENCES OF THE OWNER'S AND /OR
ENGINEER'S ACTS AND /OR OMISSIONS, WHERE THE OWNER'S, OR ENGINEER'S ACTS AND /OR
OMISSIONS, WHERE THE OWNER'S OR ENGINEER'S ACTS AND /OR OMISSIONS ARE THE
CONCURRING CAUSE OF THE INFRINGEMENT UPON -OR VIOLATION OF ANY PATENT, COPYRIGHT,
TRADE SECRET OR OTHER PROPRIETARY RIGHT AND ANY RESULTING INJURY, DEATH OR DAMAGE
OF ANY THIRD PARTY IN CONNECTION WITH THE PRODUCTS PROVIDED, INCORPORATED, OR USED
IN THE PROJECT UNDER THIS CONTRACT. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF
ACTION, SUIT AND LIABILITY WHERE THE INFRINGEMENT UPON OR VIOLATION OF ANY PATENT,
COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS AND RESULTING INJURY, DEATH OR
DAMAGE RESULTS FROM THE SOLE ACTS AND /OR OMISSIONS OF THE OWNER OR ENGINEER
UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. If the material or process
specified or required by the OWNER is an infringement, the CONTRACTOR shall be
responsible for such loss unless he promptly gives such information to the OWNER.
3.15 LAWS AND ORDINANCES. The CONTRACTOR shall at all times observe and comply
with .all Federal, State and local laws, ordinances and regulations, which in any
manner affect the contract or the work,. and shall indemnify and save harmless the
OWNER and ENGINEER against any claim arising from the violation of any such laws,
ordinances, and regulations whether by the CONTRACTOR or his employees, except
where such violations are called for by the provisions of the Contract Documents.
If the CONTRACTOR observes that the plans and specifications are at variance .
therewith, he shall promptly notify the ENGINEER in writing, and any necessary
changes shall be adjusted as provided in the contract for changes in the work. If
the CONTRACTOR performs any work knowing it to be contrary to such laws,
ordinances, rules and regulations, and without such notice to the ENGINEER, he
shall bear all costs arising therefrom. In case the OWNER is a body politic and
corporate, the law from which it derives its powers, insofar as the same regulates
the objects for which, or the manner in which, or the conditions under which the
OWNER may enter into contract, shall be controlling, and shall be considered as
part of this contract, to the same effect as though embodied herein.
3.16 ASSIGNMENT AND SUBLETTING. The CONTRACTOR further agrees that he will
retain personal control and will give his personal attention to the fulfillment of
this contract and that he will 'not assign by Power of Attorney, or otherwise, or
sublet said contract without the written consent of the ENGINEER, and that no part
or feature of the work will be sublet to anyone objectionable to the ENGINEER or
the OWNER. The CONTRACTOR further agrees that the subletting of any portion or
feature of the work, or materials required in the performance of this contract,
shall not relieve the CONTRACTOR from his full obligations to the OWNER, as
provided by this Agreement.
0 3.17 INDEMNIFICATION. CONTRACTOR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS
PND DEFEND, THE OWNER, ENGINEER, AND THEIR RESPECTIVE OFFICERS, AGENTS AND
EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION,
SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT
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COSTS, AND ATTORNEYS' _'ES FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR DAMAGE TO
ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE WORK DONE BY CONTRACTOR
UNDER THIS CONTRACT, ri:ER. SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT
;® NEGLIGENCE OF THE OWNE3 OR ENGINEER,. AND ANY OTHER PERSON OR ENTITY. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE CONTRACTOR AND THE OWNER, THAT
THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY THE CONTRACTOR TO
INDEMNIFY, PROTECT AND DEFEND THE OWNER AND ENGINEER FROM THE CONSEQUENCES OF THE
OWNER'S - AND /OR -- ENGINEER' -S- OWN NEGLIGENCE, - WHERE THAT NEGLIGENCE IS -A CONCURRING
CAUSE 'OF THE INJURY, DEATH OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF
ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE
NEGLIGENCE OF OWNER OR ENGINEER UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR
ENTITY.
3.18 INSURANCE. The CONTRACTOR at his own expense shall purchase, maintain and
keep in force such insurance as will protect him from claims set forth below which
may arise out of or result from' the CONTRACTOR'S operations under the Contract,
whether such operations be by himself or by any Sub- contractor or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts any of
them may be liable:
(1) Workmen's compensation claims, disability benefits and
other similar employee benefit acts;
(2) Claims for damages because of bodily injury, occupational
sickness or disease, or death of his employees, and claims
insured by usual bodily injury liability coverages;
(3) Claims for damages because of bodily injury, sickness or
disease, or death of any person other than his employees,
and claims insured by usual bodily injury liability
coverages; and
(4) Claims for damages because of injury to or destruction of
tangible property, including loss of use resulting
therefrom.
3.18.1 CERTIFICATE OF INSURANCE. Before commencing any of the work, CONTRACTOR
shall file with the OWNER valid Certificates of Insurance acceptable to the OWNER
and the ENGINEER. Such Certificates shall contain a provision that coverages
afforded under the policies will not be cancelled until at least fifteen days
prior written notice has been given to the OWNER.
The CONTRACTOR shall also file with, the OWNER valid Certificates of Insurance
covering all sub - contractors.
4. PROSECUTION AND PROGRESS
4.01 TIME AND ORDER OF COMPLETION. It is the meaning and intent of this
contract, unless otherwise herein specifically provided, that the CONTRACTOR shall
be allowed to prosecute his work at such times and seasons, in such order of
precedence, and in such manner as shall be most conducive to economy of
construction; provided, however, that the order and the time of prosecution shall
be such that the work shall be substantially completed as a whole and in part, in
accordance with this contract, the plans and specifications, and within the time
of completion designated in the Proposal; provided, also, that when the OWNER is
having other work done, either by contract or by his own force, the ENGINEER may
direct the time and manner of constructing the work done under this contract, so
that conflict will be avoided and the construction of the various works being done
®for the OWNER shall be harmonized.
The CONTRACTOR shall submit, at such times as may reasonably be requested by the
ENGINEER, schedules which shall show the order in which the CONTRACTOR proposes to
carry on the work, with dates at which the CONTRACTOR will start the several parts
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-of the work, and es--:n;:--=d dates of completion of the several carts.
4.02 EXTENSION OF T ='4E. Should the CONTRACTOR be delayed in the completion of
the work by any act cr neglect of the OWNER or ENGINEER, or o: any employee of
either, or by other cc- _ractors employed by the OWNER, or by changes ordered in
the work, or by strike_, 'Lock -outs, fires, and unusual delays by common carriers,
or unavoidable cause c- causes beyond the CONTRACTOR'S control, or by any cause
which .the- ENGINEER shall- decide justifies the delay, then an-'extension of time
shall be allowed for completing the work, sufficient to compensate for the delay,
the amount of the extension to be determined by the ENGINEER, provided, however,
that the CONTRACTOR shall give the ENGINEER prompt notice in writing of the cause
of such delay.
4.03 HINDRANCES AND DELAYS. No claims shall be made by the CONTRACTOR for
damages resulting from hindrances or delays from any cause (except where the work
is stopped by order of the OWNER) during the progress of any portion of the work
embraced in this contract. In case said work shall be stopped by the act of the
OWNER, then such expense as in the judgment of the ENGINEER is caused by such
stoppage of said work shall be paid by the OWNER to the CONTRACTOR.
5. MEASUREMENT AND PAYMENT
5.01 QUANTITIES AND MEASUREMENTS. No extra or customary measurements of any
kind will be allowed, but the actual measured and /or computed length, area, solid
contents, number and weight only shall be considered, unless otherwise
specifically provided.
5.02 ESTIMATED QUANTTTIES. This agreement, including the specifications, plans
and estimate, is intenced to show clearly all work to be done and materials to be
furnished hereunder. Where the estimated quantities are shown for the various
f--.� classes of work to be done and material to be furnished under this contract, they-
are approximate and are to be used only as a basis for estimating.the probable
cost of the work and for comparing the proposals offered for the work. It is
understood and .agreed that._the actual amount of work to be done and material to be
furnished under this contract may differ somewhat from these estimates, and that
where the basis for payment under this contract is the unit price method, payment
shall be for the actual amount of such work done and the material furnished.
Where payment is based on the unit price method, the CONTRACTOR agrees that he
will make no claim for damages, anticipated profits or otherwise on account of any
differences which may be found between -the quantities of work actually done, the
material actually furnished under this contract and the estimated quantities
contemplated and contained in the proposal; provided, however, that in case the
actual quantity of any major item should become as much as 20% more than, or 20%
less than the estimated or contemplated quantity for such items, then either party
to this Agreement, upon demand, shall be entitled to a revised consideration upon
the portion of the work above or below 20% of the estimated quantity.
A "Major Item" shall be construed to be any individual bid item incurred in the
proposal that has a total cost equal to or greater than five (5) per cent of the
total contract cost, computed on the basis of the proposal quantities and the
contract unit prices.
Any revised consideration is to be determined by agreement between the parties,
otherwise by the terms of this Agreement, as provided under "Extra Work ".
5.03 PRICE OF WORK. In consideration of the furnishing of all the necessary
labor, equipment and material, and the completion of all work by the CONTRACTOR,
�18and on the completion of all work and of the delivery of all material embraced in
this Contract in full conformity with the specifications and stipulations herein
contained, the OWNER agrees to pay the CONTRACTOR the prices set forth in the
Proposal hereto attached, which has been made a part of this contract. The
CONTRACTOR hereby agrees to receive such prices in full for furnishing all
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material and all labcr required for the aforesaid work, also for all expense
incurred by him, and for well and truly performing the same and the whole thereof
in the manner and accorbng to this Agreement.
5.04 PARTIAL PAYMEN — On or before the 10th day of each mon_h, the CONTRACTOR
shall prepare and subm_r to the ENGINEER for approval or modification a statement
showing as completely as practicable the total value of the work done by the
_ CONTRACTOR up to and including the last day of the proceed ng month; said
statement shall also include the value of all sound materials delivered on the
site of the work that are to be fabricated into the work.
The OWNER shall then pay the CONTRACTOR on or before the last day of the current
month the total amount of the approved statement, less applicable retainage of the
amount thereof, which retainage shall be retained until final payment, and further
less all previous payments and all further sums that may be retained by the OWNER
under the terms of this Agreement. If the total Contract Price at time of
-Contract execution is :our Hundred Thousand Dollars ($400,000.00) or more, the
agreed retainage until final payment will be Five Percent (5$), otherwise, the
agreed retainage until final payment will be Ten Percent (10 %).
5.05 USE OF COMPLETED PORTIONS. The OWNER shall have the right to take
possession of and use any completed or partially completed portions of the work,,
notwithstanding the time for completing the entire work or such portions may not
have expired but such taking possession and use shall not be deemed an acceptance
of any work not completed in accordance with the Contract Documents. If such
prior use increases the cost of or delays the work, the CONTRACTOR shall be
entitled to such extra compensation, or extension of time, or both, as the
ENGINEER may determine.
The CONTRACTOR shall notify the ENGINEER when, in the CONTRACTOR'S opinion, the
contract is "substantially completed" and when so notifying the ENGINEER, the
�---.. CONTRACTOR shall furnish to the ENGINEER in writing a detailed list of unfinished
work. The ENGINEER will review the CONTRACTOR'S list of unfinished work and will
add thereto such items as the CONTRACTOR has failed to include. The "substantial
completion" of the structure or facility shall not excuse the CONTRACTOR from
performing all *of the work undertaken, whether of a minor or major nature, and
thereby completing the structure or facility in accordance with the Contract
Documents.
5.06 FINAL COMPLETION AND ACCEPTANCE. Within ten (10) days after the
CONTRACTOR has given the ENGINEER written notice that the work has been completed,
or substantially completed, the ENGINEER and the OWNER shall inspect the work and
within said time, if t ^e work be found to be completed or substantially completed
in accordance with the Contract Documents, the ENGINEER shall issue to the OWNER
and the CONTRACTOR his Certificate of Completion, and thereupon it shall be the
duty of the OWNER within ten (10) days to issue a Certificate of Acceptance of the
work to the CONTRACTOR or to advise the CONTRACTOR in writing of the reason for
non - acceptance.
5.07 FINAL PAYMENT. Upon the issuance of the Certificate of Completion, the
ENGINEER shall proceed to make final measurements and prepare final statement of
the value of all work oerformed and materials furnished under the terms of the
Agreement and shall certify same to the OWNER, who shall pay to the CONTRACTOR on
or after the 30th day, and before the 35th day, after the date of the Certificate
of Completion, the balance due the CONTRACTOR under the terms of this Agreement,
provided he has fully performed his contractual obligations under the terms of
this contract; and said payment shall become due in any event upon said
performance by the CONTRACTOR. Neither the Certificate of Acceptance nor the
final payment, nor any provision in the Contract Documents, shall relieve the
CONTRACTOR of the obligation for fulfillment of any warranty which may be
recuired.
5.08 PAYMENTS WIT'?EELD. The OWNER may, on account of subsequently discovered
evidence, withhold or nullify the whole or part of any certificate to such extent
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.as may be necessary -o protect himself from loss on account of:
(a) Defective wort not remedied.
(b) Claims filed or reasonable evidence indicating probable
filing of claims.
(c) Failure of =: -e CONTRACTOR to make payments properly to
sub- cont=ac =ors or for material or labor.
(d) , Damage to another contractor.
(e) Reasonable doubt that the work can be completed for the
unpaid balance of the contract amount.
(f) Reasonable indication that the work will not be completed
within the contract time.
When the above grounds are removed or the CONTRACTOR provides a Surety Bond
satisfactory to the OWNER, which will protect the OWNER in the amount withheld,
payment shall be made for amounts withheld because of them.
5.09 DELAYED PAYMENTS. Should the OWNER fail to make .payment to the CONTRACTOR
of the sum named in any partial or final statement, when payment is due, then the
OWNER shall pay to the CONTRACTOR, in .addition to the sum shown as due by such
statement, interest thereon at the rate of one percent (1 %) per month, unless
otherwise specified, from date due as provided under "Partial Payments" and "Final
Payments ", until fully paid, which shall fully liquidate any injury to the
CONTRACTOR growing out of such delay in payment, but the right is expressly
reserved to the CONTRACTOR in the event payments be not promptly made, as provided
under "Partial Payments ", to at any time thereafter treat the contract as
abandoned by the OWNER and recover compensation, as provided under "Abandonment of
Contract ", unless such payments are withheld in accordance with the provision of
"Payments Withheld ".
6. EXTRA WORK AND CLAIMS
6.01 CHANGE ORDERS. Without invalidating this Agreement, the OWNER may, at any
time or from time to time, order additions, deletions or revisions to the work;
such changes will be authorized by Change Order to be prepared by the ENGINEER for
execution by the OWNER and the CONTRACTOR. The Change Order shall set forth the
basis for any change in contract price, as hereinafter set forth for Extra Work,
and any change in contract time which may result from the change.
In the event the CONTRACTOR shall refuse to execute a Change Order which has
been prepared by the E NGINEER and executed by the OWNER, the ENGINEER. may in
writing instruct the CONTRACTOR to proceed with the work as set forth in the
Change Order and the CONTRACTOR may make claim .against the OWNER for Extra Work
involved therein, as hereinafter provided.
6.02 MINOR CHANGES. The ENGINEER may authorize minor changes in the work not
inconsistent with the overall intent of the Contract Documents and not involving
an increase in Contract Price. If the CONTRACTOR believes that any minor change ..
or alteration authorized by the ENGINEER involves Extra Work and entitles him to
an increase in the Contract Price, the CONTRACTOR shall make written request to
the ENGINEER for a written Field Order.
In such case, the CONTRACTOR by copy of his communication to the ENGINEER or
otherwise in writing shall advise the OWNER of his request to the ENGINEER for a
written Field Order and that the work involved may result in an increase in the
Contract Price.
Any request by the CONTRACTOR for a change in Contract Price shall be made prior
to beginning the work covered by the proposed change.
6.03 EXTRA WORK. It is agreed that the basis of compensation to the CONTRACTOR
for work either added or deleted by a Change Order or for which a claim for Extra
Work is made shall be determined by one or more of the following methods:
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Method(A) - By agreed unit prices; or
Method(B) - By acreed lump sum; or
Method(C) - If neither Method (A) nor Method (B) be agreed
upon ce =ore the Extra Wort: is commenced, then
the CONTRACTOR shall be paid the "actual field`
cost" of the work, plus fifteen (15) percent.
In the event said Extra Work be performed and paid for under Method (C), then
the orovisions of this paragraph shall apply and the "actual field cost" is hereby
defined to include the cost to the CONTRACTOR of all workmen, such as foreman,
timekeepers, mechanics and laborers, and materials, supplies, teams, trucks,
rentals on machinery and equipment, for the time actually employed or used on such
Extra Work, plus actual transportation charges necessarily incurred, together with
all power, fuel, lubricants, water and similar operating expenses, also all
necessary incidental expenses incurred directly on account of such Extra Work,
including Social Security, Old Age Benefits and other payroll taxes, and, a
rateable proportion of premiums on Performance and Payment Bonds and Maintenance
Bonds, Public Liability and Property Damage and Workmen's Compensation, and all
other insurance as may be required by any law or ordinance, or directed by the
OWNER, or by them agreed to. The ENGINEER may direct the form in which accounts
of the "actual field cost" shall be kept -and the records of these accounts shall
be made available to the ENGINEER.. The ENGINEER or OWNER may also specify in
writing, before the work commences, the method of doing the work and the type and
kind of machinery and equipment to be used; otherwise these matters shall be
determined by the CONTRACTOR. Unless otherwise agreed upon, the prices for the
use of machinery and equipment shall be determined by using 100 per cent, unless
otherwise specified, of the latest schedule of Equipment Ownership Expense adopted
by the Associated General Contractors of America. Where practicable the terms and
prices for the use of machinery and equipment shall be incorporated in the Written
Extra Work Order. The fifteen (15) per cent of the "actual field cost" to be paid
the CONTRACTOR shall cover and compensate him for his profit, overhead, general
superintendence and field office expense, and all other elements of cost and
expense not embraced within the "actual field cost" as herein defined, save that
where the CONTRACTOR'S .Camp or Field .Office must be maintained primarily on
account of such Extra Work; then the cost to maintain and operate the same shall
be included in the "actual field cost ".
No claim for Extra Work of any kind will be allowed unless ordered in writing by
the ENGINEER. In case any orders or instructions, either oral or written, appear
to the CONTRACTOR to involve Extra Work for which he should receive compensation
or an adjustment in the construction time, he shall make written request. to the
ENGINEER for written order authorizing such Extra Work. Should a difference of
ooinion arise as to what does or does not constitute Extra Work, or as to the
payment therefor, and the ENGINEER insists upon its performance, the CONTRACTOR
shall proceed with the work after making written request for written order and
shall keep an accurate account of the "actual field cost" thereof, as provided
under Method (C) .
6.04 TIME OF FILING CLAIMS. It is further agreed by both parties hereto that
all questions of dispute or adjustment presented by the CONTRACTOR shall be in
writing and filed with the ENGINEER within thirty (30) days after the ENGINEER has
given any directions, order or instruction to which the CONTRACTOR desires to take
exception. The ENGINEER shall reply within thirty (30) days to such written
exceptions by the CONTRACTOR and render his final decision in writing.
7. ABANDONMENT OF CONTRACT
®7.01 ABANDONMENT BY CONTRACTOR. In case the CONTRACTOR should abandon and fail
or refuse to resume work within ten (10) days after written notification from the
OWNER, or the ENGINEER, or if the CONTRACTOR fails to comply with the orders of
the ENGINEER, when such orders are consistent with the Contract Documents, then,
and in that case, where performance and payment bonds exist, the'Sureties on these.
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-bonds shall be notified is writing and directed to complete the work, and a copy
of said notice shall be delivered to the CONTRACTOR.
After receiving said notice of abandonment,the CONTRACTOR shall not remove from
the work any machinery, equipment, tools, materials, or supplies then on the job,
but the same, together with any materials and equipment under contract for the
wcrk, may be held :_se on the work by the OWNER or t :e Surety on the
oerformance bond, Gr another - contractor in completion of the -work; and the
CONTRACTOR shall not rece_ve any rental or credit therefor (except when used in
connection with Extra Work, where credit shall be allowed as provided for under
Section 6, Extra Work and Claims), it being understood that the use of such
equipment and materials will ultimately reduce the cost to complete the work and
be reflected in the final settlement.
Where there is no performance bond provided or in case the Surety should fail to
commence compliance with the notice for completion herein above provided for,
within ten (10) days after service of such notice, then the OWNER may provide for
completion of the work in either of the following elective manners:
7.01.1 The OWNER may thereupon employ such force of men and use such machinery,
equipment, tools,. materials, and supplies as said OWNER may deem necessary to
complete the work and charge the expense of such labor, machinery, equipment,
tools, materials, and supplies to said CONTRACTOR, and expense so charged shall., be
deducted and paid by the OWNER out of such moneys as may be due, or that may
thereafter, at any time become due to the CONTRACTOR under and by virtue of this
Agreement. In case such expense is less than the sum which would have been
payable under this contract, if the same had been completed by the CONTRACTOR, .
then said CONTRACTOR shall receive the difference. In case such expense is
greater than the su:m which would have been payable under this contract, if the
same had been completed by said CONTRACTOR, then the CONTRACTOR and /or his Surety
shall pay the amount of such excess to the OWNER; or
7.01.2 The OWNER under sealed bids, after five (5) days notice published one or
more times in a newspaper having general circulation in the county of the location
of the work, may let the contract for the completion of the work under
substantially the same terms and conditions which are provided in this contract.
In case any increase in cost to the OWNER under the new contract as compared to
what would have been the cost under this contract, such increase shall be charged
to the CONTRACTOR and the Surety shall be and remain bound therefor. However,
should the cost to complete any such new contract prove to be less than what would
have been the cost to complete under this .contract, the CONTRACTOR and /or his
Surety shall be credited therewith.
When the work shall have been substantially completed the CONTRACTOR and his
Surety shall be so notified and Certificates of Completion and Acceptance, as
provided in Paragraph 5.06 herein above, shall be issued. A complete itemized
statement of the contract accounts, certified to by the ENGINEER as being correct,
shall then be prepared and delivered to the CONTRACTOR and his Surety, whereupon
the CONTRACTOR and /or his Surety, or the OWNER as the case may be, shall pay the
balance due as reflected by said statement, within fifteen (15) days after the
date of such Certificate of Completion.
In the event the statement of accounts shows that the cost to complete the work
is less than that which would have been the cost to the OWNER had the work been
completed by the CONTRACTOR under the terms of this contract; or when the
CONTRACTOR and /or his Surety shall pay the balance shown to be due by them to the
OWNER, then all machinery, equipment, tools, materials or supplies left on the
site of the work shall be turned over to the CONTRACTOR and /or his Surety. Should .
the cost to complete the work exceed the contract price, and the CONTRACTOR and /or
his Surety fail to pay the amount due the OWNER within the time designated herein
above, and there remains any machinery, equipment, tools, materials or supplies on
the site of the work, notice thereof, together with an itemized list of such
equipment and materials, shall be mailed to the CONTRACTOR and his Surety at the
respective addresses designated in this contract, provided, however, that actual
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'written notice, such property shall be held at the risk of the CONTRACTOR and his
Surety subject only to she duty of the OWNER to exercise ordinary care to protect
such property. After fifteen (15) days from the date of said notice the OWNER may
sell such machinery, equipment, tools, materials or supplies and apply the net sum
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derived from such sa= �o the credit of the CONTRACTOR and his Surety. Such sale
may be made at either public or private sale, with or without notice, as the OWNER
may elect. The OWNER shall release any machinery, equipment, tools, materials or
supplies, which remain on the work, `and belong -to- persons other than the
CONTRACTOR or his Surety, to their proper owners. The books on all operations
provided herein shall be open to the CONTRACTOR and his Surety.
7.02 ABANDONMENT BY OWNER. In case the OWNER shall fail to comply with the
terms of this contract, and should fail or refuse to comply with said terms within
ten (10) days after written notification by the CONTRACTOR, then the CONTRACTOR
may suspend or wholly abandon the work, and may remove therefrom all machinery,
tools and equipment, and all materials on the site of work that have not been
included in payments to the CONTRACTOR and have not been wrought into the work.
And thereupon the ENGINEER shall make an estimate of the total amount earned by
the CONTRACTOR, which estimate shall include the value of all work actually
completed by said CONTRACTOR .(at the prices stated in the attached proposal where
unit prices are used), the value of all partially completed work at a fair and
equitable price, and the amount of all Extra Work performed at the prices agreed
upon, or provided for by the terms of this contract, and a reasonable sum to cover
the cost of any provisions made by the CONTRACTOR to carry the whole work to
.completion and which cannot be utilized. The ENGINEER shall then make a final
statement of the balance due the CONTRACTOR by deducting from the above estimate
all previous payments by the OWNER and all other sums that maybe retained by the
OWNER under the terms of this Agreement and shall certify same to the OWNER who
shall pay to the CONTRACTOR on or before thirty (30) days after the date of the
notification by the CONTRACTOR the balance shown by said final statement as due
the CONTRACTOR, under the terms of this Agreement.
7.03 TERMINATION BY THE OWNER FOR CONVENIENCE. The OWNER may, at any time,
terminate the Contract for the OWNER's convenience and without cause. Upon
receipt of written notice from the OWNER of such termination for the OWNER's
convenience, the CONTRACTOR shall:
7.03.1 Cease operations as directed by the ENGINEER or OWNER in the notice.
7.03.2 Take actions necessary, or that the ENGINEER or OWNER may direct, for
the protection and preservation of the Work; and
7.03.3 Except for Work directed to be performed prior to the effective date
of termination stated in the notice, terminate all existing subcontracts and
purchase orders and enter into no further subcontracts and purchase orders.
In case of such termination for the OWNER's convenience, the CONTRACTOR shall be
entitled to receive payment for Work executed, and costs incurred by reason of
such termination. All overhead and anticipatory profit for Work not executed will
not be paid.
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