Contract for Construction of a Building with Architect to be Owner's
Representative during the Construction Period
Agreement made on the _____________________ (date) , between
__________________________ (Name of Owner) , a corporation organized and
existing under the laws of the state of ______________, with its principal office located
at ____________________________________________________________________
__________ (street address, city, state, zip code) , referred to herein as Owner , and
_________________________ (Name of Contractor), a corporation organized and
existing under the laws of the state of ______________, with its principal office located
at ____________________________________________________________________
__________ (street address, city, state, zip code) , referred to herein as Contractor .
1. Definitions
Wherever used in these general conditions or in the other Contract Documents,
the following terms shall have the meanings indicated that shall be applicable to both
the singular and plural:
A. Agreement. The written Agreement between Owner and Contractor
covering the Work to be performed. The Contract Documents will be attached to
and made a part of the Agreement.
B. Application for Payment. The form furnished by Architect that is to be
used by Contractor in requesting progress payments and that is to include the
schedule of values required by Article 14, Paragraph A and an affidavit of
Contractor that progress payments previously received from Owner on account
of the Work have been applied by Contractor to discharge in full all of
Contractor's obligations incurred in connection with the Work covered by all prior
applications for payment.
C. Bid. The offer or proposal of the bidder submitted on the prescribed form
setting forth the prices for the Work to be performed.
D. Bidder. Any person, firm, corporation, or other entity submitting a bid for
the Work.
E. Bonds. Bid, performance, and payment bonds and other instruments of
security furnished by Contractor its surety in accordance with the Contract
Documents.
F. Change Order. A written order to Contractor signed by Owner authorizing
an addition, deletion, or revision in the Work or an adjustment in the Contract
price or the Contract time issued after execution of the Agreement.
G. Contract Documents. The Agreement, the Contractor's bid, the bonds,
the notice of award, specifications, drawings, and modifications.
H. Contract Price. The total moneys payable to Contractor under the
Contract Documents.
I. Contract Time. The number of calendar days stated in the Agreement for
the completion of the Work.
J. Contractor. The person, firm, corporation, or other entity with whom
Owner has executed the Agreement.
K. Drawings. The drawings that show the character and scope of the Work
to be performed and that have been prepared or approved by A rchitect and are
referred to in the Contract Documents.
L. Architect. The person, firm, corporation, or other entity named as such in
the Agreement.
M. Field Order. A written order issued by A rchitect that clarifies or interprets
the Contract Documents in accordance with Article 9, Paragraph C or orders
minor changes in the Work in accordance with Article 10, Paragraph B .
N. Modification.
1. A written amendment of the Contract Documents signed by both
parties,
2. A change order,
3. A written clarification or interpretation issued by Architect in
accordance with Article 9, Paragraph C , or
4. A written order for a minor change or alteration in the Work issued
by Architect pursuant to Article Ten, Paragraph B . A modification
may only be issued after execution of the Agreement.
O. Notice of Award. The written notice by Owner to Contractor that
Contractor is the successful bidder and that on compliance with the conditions
precedent to be fulfilled by Contractor within the time specified, Owner will
execute and deliver the Agreement to it.
P. Owner. The corporation for whom the Work is to be performed.
Q. Project. The entire construction to be performed as provided in the
Contract Documents.
R. Resident Project Representative. The authorized representative of
A rchitect who is assigned to the project site or any part of the project site.
S. Shop Drawings. All drawings, diagrams, illustrations, brochures,
schedules, and other data that are prepared by the Contractor, a subcontractor,
manufacturer, supplier, or distributor and that illustrate the equipment, material,
or some portion of the Work.
T. Specifications. The instructions to bidders, addenda (whether issued
prior to opening of bids or the execution of the Agreement), these general
conditions, the special conditions, and the technical provisions.
U. Subcontractor. An individual, firm, corporation, or other entity having a
direct Contract with Contractor or with any other subcontractor for the
performance of a part of the Work at the site.
V. Substantial Completion. The date as certified by Architect when the
construction of the project or a specified part of the project is sufficiently
completed, in accordance with the Contract Documents, so that the project or
specified part can be used for the purposes for which it was intended; or if there
be no such certification, the date when final payment is due in accordance with
Article 14, Paragraph M.
W. Work. Any and all obligations, duties, and responsibilities necessary to the
successful completion of the project assigned to or undertaken by Contractor
under the Contract Documents, including the furnishing of all labor, materials,
equipment, and other incidentals.
2. Preliminary Matters
A. Award. The award of the Contract has been made to Contractor
B. Execution of Agreement. At least three counterparts of this Agreement
and such other Contract Documents as practicable will be signed by Owner and
Contractor. Architect will identify those portions of the Contract Documents not so
signed and such identification will be binding on all parties. Owner, Contractor
and Architect will each receive an executed counterpart of the Contract
Documents.
C. Delivery of Bonds. Simultaneously with the execution and delivery of this
Agreement, Contractor will deliver to Owner the required bonds.
D. Forfeiture of Bid Security. Failure of the Contractor to deliver the
required bonds within _____ days of the execution of this Agreement shall be just
cause for Owner to annul the notice of award and declare the bid and any
security for the bid forfeited.
E. Copies of Documents. Owner will furnish to Contractor up to ____ copies
of the specifications and drawings as are reasonably necessary for the execution
of the Work. Additional copies will be furnished on request at the cost of
reproduction.
F. Before Starting Work.
1. Within ____ days after execution of the Agreement, Contractor will
submit to A rchitect for approval, an estimated progress schedule
indicating the starting and completion dates of the various stages of the
Work, and a schedule of shop drawing submissions.
2. Before starting the Work, Contractor will furnish Owner and
Architect certificates of insurance as required by Article 5 ; and a
conference will be held to review the above schedules, to establish
procedures for handling shop drawings and other submissions and for
processing applications for payment, and to establish a working
understanding between the parties as to the project. Present at the
conference will be Owner or its representative, Architect, and Contractor.
3. Before undertaking the Work, Contractor will carefully study and
compare the Contract Documents and check and verify all figures shown
on such Documents and all field measurements. Contractor will at once
report in writing to Architect any conflict, error, or discrepancy that it may
discover. Contractor assumes full responsibility for having familiarized
itself with the nature and extent of the Contract Documents, Work, locality,
and local conditions that may in any manner affect the Work to be done.
G. Qualification of Subcontractors and Suppliers.
1. Within ____ days after the execution of this Agreement, Contractor
will submit to Owner and Architect for acceptance a list of the names of
subcontractors and such other persons and organizations (including those
who are to furnish principal items of materials or equipment) proposed for
those portions of the Work as to which the identity of the subcontractors
and other persons and organizations must be submitted as specified in the
Contract Documents. Within _____ days after receipt of said list, A rchitect
will notify the apparent Contractor in writing if either Owner or A rchitect ,
after due investigation, has reasonable objection to any subcontractor,
person, or organization on such list. The failure of Owner or A rchitect to
make objection to any subcontractor, person, or organization on the list
within _____ days of receipt shall constitute an acceptance of such
subcontractor, person, or organization. Acceptance of any such
subcontractor, person, or organization shall not constitute a waiver of any
right of Owner or Architect to reject defective work, material, or equipment,
or work, material, or equipment not in conformance with the requirements
of the Contract Documents.
2. If Owner or the Architect has reasonable objection to and refuses to
accept any subcontractor, person, or organization on such list, Contractor
will submit an acceptable substitute and the contract price shall be
increased or decreased by the difference in cost occasioned by such
substitution and an appropriate change order shall be issued.
H. Starting the Work.
1. Contractor will start the Work on the date on which the Agreement
is executed and delivered or on such other date, if any, as may be
specified in the Agreement. However, at the time of the execution and
delivery of the Agreement, Owner may give Contractor a written notice to
proceed, stating a different date on which it is expected that Contractor will
start the Work, but such date shall not be more than _______ (number)
days after the date of execution and delivery of the Agreement. A copy of
the notice to proceed shall be sent to Architect. No Work shall be done
prior to the date on which the Work is to start.
2. The Contract time shall commence to run on the date when the
Work is to start as provided in Subparagraph H(1) of this Article 2 .
3. At least 10 days prior to submitting the first application for payment,
Contractor shall submit a schedule of values as required by Article 14,
Paragraph A .
3. Correlation, Interpretation, and Intent of Contract Documents
A. Intent of Specifications and Drawings. It is the intent of the
specifications and drawings to describe a complete project to be constructed in
accordance with the Contract Documents. The Contract Documents comprise the
entire Agreement between Owner and Contractor. They may be altered only by a
modification.
B. Conflict, Error, or Discrepancy in Contract Documents. The Contract
Documents are complementary; what is called for by one is as binding as if
called for by all. If Contractor finds a conflict, error, or discrepancy in the Contract
Documents, he or she will call it to Architect’s attention in writing before
proceeding with the Work affected by such conflict, error, or discrepancy. In
resolving such conflicts, errors, and discrepancies, the Documents shall be given
precedence in the following order: Agreement, specifications, drawings. Within
the specifications, the order of precedence shall be as follows: addenda, special
conditions, instructions to bidders, general conditions, and technical provisions.
Figure dimensions on drawings shall govern over scale dimensions, and detailed
drawings shall govern over general drawings. Any Work that may reasonably be
inferred from the specifications or drawings as being required to produce the
intended result shall be supplied whether or not such Work is specifically called
for. Work, materials, or equipment described in words that so applied have a
well-known technical or trade meaning shall be deemed to refer to such
recognized standards.
4. Availability of Lands; Subsurface Conditions; Reference Points
A. Availability of Lands.
1. Owner will furnish, as indicated in the Contract Documents and not
later than the date when needed by Contractor, the lands on which the
Work is to be done, rights-of-way for access to such lands, and such other
lands that are designated for the use of Contractor. Easements for
permanent structures or permanent changes in existing facilities will be
obtained and paid for by Owner, unless otherwise specified in the Contract
Documents. If Contractor believes that any delay in Owner's furnishing
these lands or easements entitles him or her to an extension of the
Contract time, he or she may make a claim for such extension as provided
in Article 12 . Owner will provide for all additional lands and access to
such lands that may be required for temporary construction facilities or
storage of materials and equipment.
2. Owner will, on request, furnish to Contractor copies of all available
boundary surveys and subsurface tests.
B. Unforeseen Subsurface Conditions. Contractor will promptly notify
Owner and Architect in writing of any subsurface or latent physical conditions at
the site differing materially from those indicated in the Contract Documents.
Architect will promptly investigate those conditions and advise Owner in writing if
further surveys or subsurface tests are necessary. Promptly afterward, Owner
will obtain the necessary additional surveys and tests and furnish copies to
Architect and Contractor. If Architect finds that the results of such surveys or
tests indicate subsurface or latent physical conditions differing significantly from
those indicated in the Contract Documents, a change order shall be issued
incorporating the necessary revisions.
C. Reference Points. Owner will establish such general reference points as
in its judgment will enable Contractor to proceed with the Work. Contractor will be
responsible for the layout of the Work, will protect and preserve the established
reference points, and will make no changes or relocations without the prior
written approval of Owner. Contractor will report to Architect whenever any
reference point is lost or destroyed or requires relocation because of necessary
changes in grades or locations. Contractor will replace and accurately relocate all
reference points so lost, destroyed, or moved.
5. Bonds and Insurance
A. Performance and Payment Bonds. Contractor will furnish performance
and payment bonds as security for the faithful performance and payment of all its
obligations under the Contract Documents. These bonds shall be in amounts at
least equal to the Contract price and in such form and with such sureties as are
acceptable to Owner. Prior to execution of the Contract Documents, Owner may
require Contractor to furnish such other bonds, in such form and with such
sureties as Owner may require. If such bonds are required by written instructions
given prior to opening of bids, the premiums shall be paid by Contractor; if
subsequent to opening of bids, the premiums shall be paid by Owner.
B. Contractor's Liability Insurance. Contractor will purchase and maintain
such insurance as will protect it from claims under Workers' compensation laws,
disability benefit laws or other similar employee benefit laws; from claims for
damages because of bodily injury, occupational sickness or disease, or death of
its employees and claims insured by usual personal injury liability coverage; from
claims for damages because of bodily injury, sickness or disease, or death of any
person other than its employees including claims insured by usual personal injury
liability coverage; and from claims for injury to or destruction of tangible property,
including loss of use resulting from the same -- any or all of which may arise out
of or result from Contractor's operations under the Contract Documents, whether
such operations be conducted by itself or by any subcontractor or anyone directly
or indirectly employed by any of them or for whose acts any of them may be
legally liable. This insurance shall be written for not less than any limits of liability
specified in the Contract Documents or required by law, whichever is greater,
and shall include Contractual liability insurance. Before starting the Work,
Contractor will file with Owner and Architect certificates of such insurance,
acceptable to Owner; these certificates shall contain a provision that the
coverage afforded under the policies will not be cancelled or materially changed
until at least _____ (number) days prior written notice has been given to Owner
and Architect.
C. Owner's Liability Insurance. Owner will be responsible for purchasing
and maintaining its own liability insurance and, at its option, may purchase and
maintain such insurance as will protect it against claims that may arise from
operations under the Contract Documents.
D. Property Insurance.
1. Unless otherwise provided, Owner will purchase and maintain
property insurance upon the project to the full insurable value of the
project. This insurance shall include the interests of Owner, Contractor,
and subcontractors in the Work and shall insure against the perils of fire,
extended coverage, vandalism, and malicious mischief.
2. Owner will purchase and maintain such boiler and machinery
insurance as may be required by the Contract Documents or by law. This
insurance shall include the interests of Owner, Contractor, and
subcontractors in the Work.
3. Any insured loss under the policies of insurance required by
Subparagraphs D(1) and D(2) above is to be adjusted with Owner and
made payable to Owner as trustee for the insureds, as their interests may
appear, subject to the requirements of any applicable mortgage clause
and of subparagraph D(7) of this Article 5 .
4. Owner will file a copy of all policies with Contractor before an
exposure to loss may occur. If Owner does not intend to purchase such
insurance, he or she will inform Contractor in writing prior to
commencement of the Work. Contractor may then obtain insurance that
will protect the interests of itself and its subcontractors in the Work, and by
appropriate change order, the cost of such insurance shall be charged to
Owner. If Contractor is damaged by failure of Owner to purchase or
maintain such insurance and so to notify Contractor, then Owner will bear
reasonable costs properly attributable to such failure.
5. If Contractor requests in writing that other special insurance be
included in the property insurance policy, Owner will, if possible, include
such insurance, and the cost of such insurance shall be charged to
Contractor by appropriate change order.
6. Owner and Contractor waive all rights against each other for
damages caused by fire or other perils to the extent covered by insurance
provided under subparagraphs D(1) through D(7), inclusive, of this Article
5 , except such rights as they may have to the proceeds of such insurance
held by Owner as trustee. Contractor shall require similar waivers by
subcontractors in accordance with Article 6, Subparagraph D(5) .
7. Owner as trustee will have power to adjust and settle any loss with
the insurers unless one of the parties in interest shall object in writing
within five days after the occurrence of loss to Owner's exercise of this
power, and if such objection be made, arbitrators shall be chosen as
provided in Article XVI . Owner as trustee will, in that case, make
settlement with the insurers in accordance with the directions of such
arbitrators. If distribution of the insurance proceeds by arbitration is
required, the arbitrators will direct such distribution.
6. Contractor’s Responsibilities
A. Supervision and Superintendence.
1. Contractor will supervise and direct the Work efficiently and with its
best skill and attention. Contractor will be solely responsible for the
means, methods, techniques, sequences, and procedures of construction.
Contractor will be responsible to see that the finished Work complies
accurately with the Contract Documents.
2. Contractor will keep on the Work at all times during its progress a
competent resident superintendent, who shall not be replaced without
written notice to Owner and Architect except under extraordinary
circumstances. The superintendent will be Contractor's representative at
the site and shall have authority to act on behalf of Contractor. All
communications given to the superintendent shall be as binding as if given
to Contractor.
B. Labor, Materials, and Equipment.
1. Contractor will provide competent, suitably qualified personnel to
survey and lay out the Work and perform construction as required by the
Contract Documents. Contractor will at all times maintain good discipline
and order at the site.
2. Contractor will furnish all materials, equipment, labor,
transportation, construction equipment and machinery, tools, appliances,
fuel, power, light, heat, telephone, water, and sanitary facilities and all
other facilities and incidentals necessary for the execution, testing, initial
operation, and completion of the Work.
3. All materials and equipment will be new, except as otherwise
provided in the Contract Documents. If required by Architect, Contractor
will furnish satisfactory evidence as to the kind and quality of materials
and equipment.
4. All materials and equipment shall be applied, installed, connected,
erected, used, cleaned, and conditioned in accordance with the
instructions of the applicable manufacturer, fabricator, or processors,
except as otherwise provided in the Contract Documents.
C. Substitute Materials or Equipment. If it is indicated in the specifications
that Contractor may furnish or use a substitute that is equal to any material or
equipment specified, and if Contractor wishes to furnish or use a proposed
substitute, Contractor will, promptly after the award of the Contract, make written
application to Architect for approval of such a substitute certifying in writing that
the proposed substitute will perform adequately the duties imposed by the
general design, be similar and of equal substance to that specified, and be suited
to the same use and capable of performing the same function as that specified.
No substitute shall be ordered or installed without the written approval of
Architect who shall be the judge of equality.
D. Concerning Subcontractors.
1. Contractor will not employ any subcontractor, other person, or
organization of the types referred to in Article 2, Subparagraph F(1)
(whether initially or as a substitute) against whom Owner or Architect may
have reasonable objection, nor will Contractor be required to employ any
subcontractor against whom it has reasonable objection. Contractor will
not make any substitution for any subcontractor who has been accepted
by Owner and Architect, unless Architect determines that there is good
cause for doing so.
2. Contractor will be fully responsible for all acts and omissions of his
or her subcontractors and of persons directly or indirectly employed by
them and of persons for whose acts any of them may be liable to the
same extent that Contractor is responsible for the acts and omissions of
persons directly employed by him or her. Nothing in the Contract
Documents shall create any Contractual relationship between any
subcontractor and Owner or Architect or any obligation on the part of the
Owner or Architect to pay or to see to the payment of any moneys due any
subcontractor, except as may otherwise be required by law. Owner or
Architect may furnish to any subcontractor, to the extent practicable,
evidence of amounts paid to Contractor on account of specific Work done
in accordance with the schedule of values.
3. The divisions and sections of the specifications and the
identifications of any drawings shall not control Contractor in dividing the
Work among subcontractors or delineating the Work to be performed by
any specific trade.
4. Contractor agrees to bind specifically every subcontractor to the
applicable terms and conditions of the Contract Documents for the benefit
of Owner.
5. All Work performed for Contractor by a subcontractor shall be
pursuant to an appropriate Agreement between Contractor and the
subcontractor that shall contain provisions that waive all rights the
Contracting parties may have against one another for damages caused by
fire or other perils covered by insurance provided in accordance with
Article 5 , Subparagraphs D(1) through D(7), inclusive, except such rights
as they may have to the proceeds of such insurance held by Owner as
trustee under Article 5 , Subparagraph D(5). Contractor will pay each
subcontractor a just share of any insurance moneys received by
Contractor under Article 5 , subparagraph D(1) through D(7), inclusive.
E. Patent Fees and Royalties. Contractor will pay all license fees and
royalties and assume all costs incident to the use of any invention, design,
process, or device that is the subject of patent rights or copyrights held by others.
Contractor will indemnify and hold harmless Owner and Architect and anyone
directly or indirectly employed by either of them from and against any and all
claims, damages, losses, and expenses (including attorneys' fees) arising out of
any infringement of such rights during or after completion of the Work, and shall
defend all such claims in connection with any alleged infringement of such rights.
F. Permits. Contractor will secure and pay for all construction permits and
licenses and will pay all governmental charges and inspection fees necessary for
the prosecution of the Work that are applicable at the time of his or her bid.
Contractor will also pay all public utility charges.
G. Laws and Regulations. Contractor will give all notices and comply with
all laws, ordinances, rules, and regulations applicable to the Work. If Contractor
observes that the specifications or drawings are at variance with any such
ordinances, rules, and/or regulations, he or she will give Architect prompt written
notice of any such variance, and any necessary changes shall be adjusted by an
appropriate modification. If Contractor performs any Work knowing it to be
contrary to such laws, ordinances, rules, and regulations, and without such notice
to Architect, it will bear all costs arising from the same; however, it shall not be
Contractor's primary responsibility to make certain that the drawings and
specifications are in accordance with such laws, ordinances, rules, and
regulations.
H. Taxes. Contractor will pay all sales, consumer, use, and other similar
taxes required by the law of the place where the Work is to be performed.
I. Use of Premises.
1. Contractor will confine its equipment, the storage of materials and
equipment, and the operations of his or her Workers to areas permitted by
law, ordinances, permits, or the requirements of the Contract Documents
and shall not unreasonably encumber the premises with materials or
equipment.
2. Contractor will not load nor permit any part of the structure to be
loaded with weights that will endanger the structure, nor will Contractor
subject any part of the Work to stresses or pressures that will endanger it.
J. Record Drawings. Contractor will keep one record copy of all
specifications, drawings, addenda, modifications, and shop drawings at the site
in good order and annotated to show all changes made during the construction
process. These shall be available to Architect and shall be delivered to it for
Owner upon completion of the project.
K. Safety and Protection.
1. Contractor will be responsible for initiating, maintaining, and
supervising all safety precautions and programs in connection with the
Work. Contractor will take all necessary precautions for the safety of, and
will provide the necessary protection to prevent damage, injury, or loss to:
a. All employees on the Work and other persons who may be
affected by the Work;
b. All the Work and all materials or equipment to be
incorporated in the Work, whether in storage on or off the site; and
c. Other property at the site or adjacent to the site, including
trees, shrubs, lawns, walks, pavements, roadways, structures, and
utilities not designated for removal, relocation, or replacement in
the course of construction.
Contractor will comply with all applicable laws, ordinances, rules,
regulations, and orders of any public body having jurisdiction for the safety
of persons or property or to protect them from damage, injury, or loss.
Contractor will erect and maintain, as required by the conditions and
progress of the Work, all necessary safeguards for safety and protection,
and in addition he or she will comply with all applicable recommendations
of the Manual of Accident Prevention in Construction of the Associated
General Contractors of America, Inc. Contractor will notify Owners of
adjacent utilities when prosecution of the Work may affect them. All
damage, injury, or loss to any property referred to in Subparagraph K(1)(b)
or K(1)(c) of this Article 6 caused, directly or indirectly, in whole or in part,
by Contractor, any subcontractor, or anyone directly or indirectly employed
by any of them or anyone for whose acts any of them may be liable, will
be remedied by Contractor; except damage or loss attributable to the fault
of drawings or specifications or to the acts or omissions of Owner or
Architect or anyone employed by either of them or anyone for whose acts
either of them may be liable and not attributable, directly or indirectly, in
whole or in part, to the fault or negligence of Contractor.
2. Contractor will designate a responsible member of its organization
at the site whose duty shall be the prevention of accidents. This person
shall be Contractor's superintendent unless otherwise designated in
writing by Contractor to Owner.
L. Emergencies. In emergencies affecting the safety of persons or the Work
or property at the site or adjacent to the site, Contractor, without special
instruction or authorization from Architect or Owner, is obligated to act, at its
discretion, to prevent threatened damage, injury, or loss. Contractor will give
Architect prompt written notice of any significant changes in the Work or
deviations from the Contract Documents caused by the same, and a change
order shall be issued covering the changes and deviations involved. If Contractor
believes that additional Work done by it in an emergency that arose from causes
beyond its control entitles it to an increase in the Contract price or an extension
of the Contract time, Contractor may make a claim for such increase as provided
in Articles 11 and 12 .
M. Shop Drawings and Samples.
1. After checking and verifying all field measurements, Contractor will
submit to Architect for approval, in accordance with the accepted schedule
of shop drawing submissions (see Article 2 , Subparagraph F(1)) _______
(number) copies (or at Architect’s option, one reproducible copy) of all
shop drawings, which shall have been checked by and stamped with the
approval of Contractor and identified as Architect may require. The data
shown on the shop drawings will be complete with respect to dimensions,
design criteria, materials of construction, and the like to enable Architect to
review the information as required.
2. Contractor will also submit to Architect for approval, with such
promptness as to cause no delay in Work, all samples required by the
Contract Documents. All samples will have been checked by and stamped
with the approval of Contractor, identified clearly as to material,
manufacturer, any pertinent catalog numbers, and the use for which
intended.
3. At the time of each submission, Contractor will in writing call
Architect’s attention to any deviations that the shop drawing or sample
may have from the requirements of the Contract Documents.
4. Architect will review and approve with reasonable promptness shop
drawings and samples, but its and approval shall be only for conformance
with the design concept of the project and for compliance with the
information given in the Contract Documents. The approval of a separate
item as such will not indicate approval of the assembly in which the item
functions. Contractor will make any corrections required by Architect and
will return the required number of corrected copies of shop drawings and
resubmit new samples until approved. Contractor shall direct specific
attention in writing or on resubmitted shop drawings to revisions other than
the corrections called for by Architect on previous submissions.
Contractor's stamp of approval on any shop drawing or sample shall
constitute a representation to Owner and Architect that Contractor has
either determined and verified all quantities, dimensions, field construction
criteria, materials, catalogue numbers, and similar data or it assumes full
responsibility for doing so, and that it has reviewed or coordinated each
shop drawing or sample with the requirements of the Work and the
Contract Documents.
5. No Work requiring a shop drawing or sample submission shall be
commenced until the submission has been approved by Architect. A copy
of each approved shop drawing and each approved sample shall be kept
in good order by Contractor at the site and shall be available to Architect.
6. Architect’s approval of shop drawings or samples shall not relieve
Contractor from responsibility for any deviations from the requirements of
the Contract Documents unless Contractor has in writing called Architect’s
attention to such deviation at the time of submission and Architect has
given written approval to the specific deviation, nor shall any approval by
Architect relieve Contractor from responsibility for errors or omissions in
the shop drawings.
N. Cleaning Up. Contractor will keep the premises free from accumulations
of waste materials, rubbish, and other debris resulting from the Work, and at the
completion of the Work, Contractor will remove all waste materials, rubbish, and
debris from and about the premises as well as all tools, construction equipment
and machinery, and surplus materials and will leave the site clean and ready for
occupancy by Owner. Contractor will restore to their original condition those
portions of the site not designated for alteration by the Contract Documents.
O. Indemnification.
1. Contractor will indemnify and hold harmless Owner and Architect
and their agents and employees from and against any and all claims,
damages, losses, and expenses including attorneys' fees arising out of or
resulting from the performance of the Work, provided that any such claim,
damage, loss, or expense: (1) is attributable to bodily injury, sickness,
disease, or death, or to injury to or destruction of tangible property (other
than the Work itself) including the loss of use resulting from the same; and
(2) is caused in whole or in part by any negligent act or omission of
Contractor, any subcontractor, anyone directly or indirectly employed by
any of them or anyone for whose acts any of them may be liable,
regardless of whether or not it is caused in part by a party indemnified
under these general conditions.
2. In any and all claims against Owner or Architect or any of their
agents or employees by any employee of Contractor, any subcontractor,
anyone directly or indirectly employed by any of them or anyone for whose
acts any of them may be liable, the indemnification obligation under
Subparagraph O(1) above shall not be limited in any way by any limitation
on the amount or type of damages, compensation, or benefits payable by
or for Contractor or any subcontractor under workers' compensation acts,
disability benefit acts, or other employee benefit acts.
3. The obligations of Contractor under Subparagraph O(1) of this
Article 6 shall not extend to the liability of Architect, its agents or
employees arising out of: (a) the preparation or approval of maps,
drawings, opinions, reports, surveys, change orders, designs, or
specifications; or (b) the giving of or the failure to give directions or
instructions by Architect, its agents or employees, provided such giving or
failure to give is the primary cause of injury or damage.
7. Work by Others
A. Owner's Work. Owner may perform additional work related to the project
by itself, or it may let other direct Contracts for such Work that shall contain
general conditions similar to these. Contractor will afford the other Contractors
who are parties to such direct Contracts (or Owner, if it is performing the
additional Work itself), reasonable opportunity for the introduction and storage of
materials and equipment and the execution of Work, and shall properly connect
and coordinate its Work with that of such other Contractors (or Owner).
B. Contractor's Inspection. If any part of Contractor's Work depends for
proper execution or results upon the Work of any such other Contractor (or
Owner), Contractor will inspect and promptly report to Architect in writing any
defects or deficiencies in such Work that render it unsuitable for such proper
execution and results. Contractor's failure so to report shall constitute an
acceptance of the other Work as fit and proper for the relationship of its Work
except as to defects and deficiencies that may appear in the other Work after the
execution of its Work.
C. Contractor's Cutting, Fitting, and Patching. Contractor will do all
cutting, fitting, and patching of its Work that may be required to make its several
parts come together properly and fit it to receive or be received by such other
Work. Contractor will not endanger any Work of others by cutting, excavating, or
otherwise altering their Work and will only cut or alter their Work with the written
consent of Architect.
D. Notice of Additional Work. If the performance of additional Work by
other Contractors or Owner is not noted in the Contract Documents prior to the
execution of the Contract, written notice of such additional Work shall be given to
Contractor prior to starting any such additional Work. If Contractor believes that
the performance of such additional Work by Owner or others involves it in
additional expense or entitles it to an extension of the Contract time, Contractor
may make a claim for such additional expense or extension of the Contract time
as provided in Articles 11 and 12 .
8. Owner’s Responsibilities
A. Communications to Contractor. Owner will issue all communications to
Contractor through Architect.
B. Replacement of Architect. In case of termination of the employment of
Architect, Owner will appoint an Architect against whom Contractor makes no
unreasonable objection, whose status under the Contract Documents shall be
that of the former Architect. Any dispute in connection with such appointment
shall be subject to arbitration.
C. Furnishing Data. Owner will furnish the data required of it under the
Contract Documents promptly and shall make payments to Contractor promptly
after they are due as provided in Article 13 , Subparagraph D(1).
D. Land and Reference Points. Owner's duties in respect of providing
lands, boundary surveys, and the like are set forth in Article 4 , Paragraph A, and
its duty to establish reference points is set forth in Article 4 , Paragraph C.
E. Liability and Property Insurance. Owner's responsibilities in respect of
liability and property insurance are set forth in Article 5 , Paragraphs C and D.
F. Change Orders. In addition to its rights to request changes in the Work in
accordance with Article 10 , Owner (especially in certain instances as provided in
Article 10, Paragraph D ) will be obligated to execute change orders.
G. Stopping or Suspending Work. In connection with Owner's right to stop
Work or suspend Work, see Article 13 , Paragraph E and Article 15 , Paragraph
A. Article 15 , Subparagraph B(1) deals with Owner's right to terminate services
of Contractor under certain circumstances.
9. Architect’s Status During Construction
A. Owner's Representative. Architect shall be Owner's representative
during the construction period. The duties and responsibilities and the limitations
of authority of Architect as Owner's representative during construction are set
forth in Articles 1 through 17 of these general conditions and shall not be
extended without written consent of Owner and Architect.
B. Visits to Site. Architect will make periodic visits to the site to observe the
progress and quality of the executed Work and to determine, in general, if the
Work is proceeding in accordance with the Contract Documents. It will not be
required to make exhaustive or continuous on-site inspections to check the
quality or quantity of the Work. Its efforts will be directed toward providing
assurance for Owner that the completed project will conform to the requirements
of the Contract Documents. On the basis of its on-site observations as an
experienced and qualified design professional, it will keep Owner informed of the
progress of the Work and will endeavor to guard Owner against defects and
deficiencies in the Work of Contractors.
C. Clarifications and Interpretations . Architect will issue with reasonable
promptness such written clarifications or interpretations of the Contract
Documents (in the form of drawings or otherwise) as it may determine necessary,
that shall be consistent with or reasonably inferable from the overall intent of the
Contract Documents. If Contractor believes that a written clarification and
interpretation entitles it to an increase in the Contract price, Contractor may make
a claim for such increase as provided in Article 11 .
D. Rejecting Defective Work. Architect will have authority to disapprove or
reject Work that is defective (which term is used below to describe Work that is
unsatisfactory, faulty, or defective, or does not conform to the requirements of the
Contract Documents or does not meet the requirements of any inspection, test,
or approval referred to in Article 13 , Subparagraph B(1)). Architect will also have
authority to require special inspection or testing of the Work as provided in
Article 13 , Subparagraph D(1), whether or not the Work is fabricated, installed,
or completed.
E. Shop Drawings, Change Orders and Payments.
1. In connection with Architect’s responsibility as to shop drawings
and samples, see Article 6 , subparagraphs M(1) through M(6), inclusive.
2. In connection with Architect’s responsibility for change orders, see
Articles 10, 11, and 12.
3. In connection with Architect’s responsibilities in respect of
applications for payment, and the like, see Article 14 .
F. Resident Project Representative. If Owner and Architect agree,
Architect will furnish a fulltime resident project representative and assistants to
assist Architect in carrying out its responsibilities at the site. The duties,
responsibilities, and limitations of authority of any such resident project
representative and assistants shall be as set forth in an exhibit to be incorporated
in the Contract Documents.
G. Decisions on Disagreements.
1. Architect will be the initial interpreter of the terms and conditions of
the Contract Documents and the judge of the performance under those
terms and conditions. In its capacity as interpreter and judge it will
exercise its best efforts to insure faithful performance by both Owner and
Contractor. Architect will not show partiality to either and shall not be liable
for the result of any interpretation or decision rendered in good faith.
Claims, disputes, and other matters relating to the execution and progress
of the Work or the interpretation of or performance under the Contract
Documents shall be referred initially to Architect for decision, which it shall
render in writing within a reasonable time.
2. Either Owner or Contractor may demand arbitration with respect to
any such claim, dispute, or other matter that has been referred to
Architect, except any that have been waived by the making or acceptance
of final payment as provided in Article 14 , Paragraph K, such arbitration
to be in accordance with Article 16 . However, no demand for arbitration of
any such claim, dispute, or other matter shall be made until the earlier of:
(a) the date on which Architect has rendered its decision; or (b) the ___
day after the parties have presented their evidence to Architect if it has not
rendered a written decision before that date. No demand for arbitration
shall be made later than _____days after the date on which Architect
rendered its written decision in respect of the claim, dispute, or other
matter as to which arbitration is sought; and the failure to demand
arbitration within such ______ (number) -day period shall result in
Architect’s decision being final and binding upon Owner and Contractor. If
Architect renders a decision after arbitration proceedings have been
initiated, such decision may be entered as evidence but shall not
supersede the arbitration proceedings, except where the decision is
acceptable to the parties concerned.
H. Limitations on Architect’s Responsibilities.
1. Neither Architect’s authority to act under this Article 9 nor any
decision made by it in good faith either to exercise or not exercise such
authority shall give rise to any duty or responsibility of the Architect to
Contractor, any subcontractor, any of their agents or employees, or any
other person performing any of the Work.
2. Architect will not be responsible for the construction means,
methods, techniques, sequences, or procedures, or the safety precautions
and programs incident to the same, and it will not be responsible for
Contractor's failure to perform the Work in accordance with the Contract
Documents.
3. Architect will not be responsible for the acts or omissions of
Contractor, or any subcontractors, or any of its or their agents or
employees, or any other persons performing any of the Work.
10. Changes in the Work
A. Owner's Change Orders. Without invalidating the Agreement, Owner
may, at any time or from time to time, order additions, deletions, or revisions in
the Work; these will be authorized by change orders. Upon receipt of a change
order, Contractor will proceed with the Work involved. All such Work shall be
executed under the applicable conditions of the Contract Documents. If any
change order causes an increase or decrease in the Contract price or an
extension or shortening of the Contract time, an equitable adjustment will be
made as provided in Article 11 and 12 .
B. Architect’s Field Orders. Architect may authorize minor changes or
alterations in the Work not involving extra cost and not inconsistent with the
overall intent of the Contract Documents. These may be accomplished by a field
order. If Contractor believes that any minor change or alteration authorized by
Architect entitles him or her to an increase in the Contract price, it may make a
claim for such an increase as provided in Article 11 .
C. Unauthorized Additional Work. Additional Work performed by
Contractor without authorization of a change order will not entitle it to an increase
in the Contract price or an extension of the Contract time, except in the case of
an emergency as provided in Article 6 , Paragraph L and except as provided in
Article 10 , Paragraph B, Article 13 , Subparagraph B(1), and Article 13 ,
Subparagraph D(2).
D. Execution of Change Orders. Owner will execute appropriate change
orders prepared by Architect covering changes in the Work to be performed as
provided in Article 4 , Paragraph B, and Work performed in an emergency as
provided in Article 6 , Paragraph L, and any other claim of Contractor for a
change in the Contract time or the Contract price that is approved by Architect.
E. Notification of Contractor's Surety. It is Contractor's responsibility to
notify its surety of any changes affecting the general scope of the Work or
change in the Contract price and the amount of the applicable bonds shall be
adjusted accordingly. Contractor will furnish proof of such adjustment to Owner.
11. Change of Contract Price
A. Total Compensation. The Contract price constitutes the total
compensation payable to Contractor for performing the Work. All duties,
responsibilities, and obligations assigned to or undertaken by Contractor shall be
at its expense without change in the Contract price.
B. Necessity of Change Order. The Contract price may only be changed by
a change order. Any claim for an increase in the Contract price, shall be in writing
delivered to Owner and Architect within _______ (number) days of the
occurrence of the event giving rise to the claim. All claims for adjustments in the
Contract price shall be determined by Architect if Owner and Contractor cannot
otherwise agree on the amount involved. Any change in the Contract price
resulting from any such claim shall be incorporated in a change order.
C. Determination of Value of Change Order Work. The value of any Work
covered by a change order or of any claim for an increase or decrease in the
Contract price shall be determined in one of the following ways:
1. Where the Work involved is covered by unit prices contained in the
Contract Documents, by application of unit prices to the quantities of the
items involved.
2. By mutual acceptance of a lump sum.
3. By cost and a mutually acceptable fixed amount for overhead and
profit.
4. If none of the above methods is agreed on, the value shall be
determined by Architect on the basis of costs and a percentage for
overhead and profit. Costs shall only include labor (payroll, payroll taxes,
fringe benefits, Workers' compensation, etc.), materials, equipment, and
other incidentals directly related to the Work involved. The maximum
percentage that shall be allowed for Contractor's combined overhead and
profit, shall be as follows:
a. For all such Work done by Contractor's own organization,
Contractor may add up to 10 percent of its actual net increase in
cost, and
b. for all such Work done by subcontractors, each
subcontractor may add up to 10 percent of its actual net increase in
costs for combined overhead and profit and Contractor may add up
to five percent of the subcontractor's total for its combined
overhead and profit, provided that no overhead or profit shall be
allowed on costs incurred in connection with premiums for public
liability insurance or other special insurance directly related to such
Work.
In such case and also under Article 11 , Subparagraph C(3), Contractor
will submit in form prescribed by Architect an itemized cost breakdown
together with supporting data.
D. Amount of Credit to Owner . The amount of credit to be allowed by
Contractor to Owner for any such change that results in a net decrease in cost,
will be the amount of the actual net decrease as determined by Architect. When
both additions and credits are involved in any one change, the combined
overhead and profit shall be figured on the basis of the net increase, if any.
E. Allowances . It is understood that Contractor has included in the Contract
price all allowances so named in the Contract Documents and shall cause the
Work so covered to be done by such Workers, suppliers, or subcontractors and
for such sums within the limit of the allowances as Architect may approve. Upon
final payment, the Contract price shall be adjusted as required and an
appropriate change order issued. Contractor agrees that the original Contract
price includes such sums as he or she deems proper for costs and profit on
account of cash allowances. No demand for additional cost or profit in connection
with the same will be allowed.
12. Change of the Contract Time
A. Necessity of Change Order. The Contract time may only be changed by
a change order. Any claim for an extension in the Contract time shall be in writing
delivered to Owner and Architect within ______ (number) days of the occurrence
of the event giving rise to the claim. All claims for adjustment in the Contract time
shall be determined by Architect if Owner and Contractor cannot otherwise
agree. Any change in the Contract time resulting from any such claim shall be
incorporated in a change order.
B. Delays Beyond Contractor's Control. The Contract time will be
extended in an amount equal to time lost due to delays beyond the control of
Contractor if it makes a claim for such extension(s) as provided in Article 12 ,
Subparagraph A(1). Such delays shall include, but not be restricted to, acts or
neglect by any separate Contractor employed by Owner, fires, floods, labor
disputes, epidemics, abnormal weather conditions, or acts of God.
C. Time of the Essence. All time limits stated in the Contract Documents are
of the essence of the Agreement.
D. Damages. The provisions of Article 12 shall not exclude recovery for
damages (including compensation for additional professional services) for delay
by either party.
13. Warranty and Guarantee; Tests and Inspections; Correction, Removal, or
Acceptance of Defective Work
A. Warranty and Guarantee. Contractor warrants and guarantees to the
Owner and Architect that all materials and equipment will be new unless
otherwise specified and that all Work will be of good quality and free from faults
or defects and in accordance with the requirements of the Contract Documents
and of any inspections, tests, or approvals referred to in Subparagraph B(1)
below. All unsatisfactory Work, all faulty or defective Work, and all Work not
conforming to the requirements of the Contract Documents or of such
inspections, tests, or approvals shall be considered defective. Prompt notice of
all defects shall be given to Contractor. All defective Work, whether or not in
place, may be rejected, corrected, or accepted as provided in this Article 13 .
B. Tests and Inspections.
1. If the Contract Documents, laws, ordinances, rules, regulations, or
orders of any public authority having jurisdiction require any Work to
specifically be inspected, tested, or approved by someone other than
Contractor, Contractor will give Architect timely notice of readiness for
such inspection, testing, or approval. Contractor will furnish Architect the
required certificates of inspection, testing, or approval. All such tests will
be in accordance with the methods prescribed by the American Society for
Testing and Materials or such other applicable organization as may be
required by law or the Contract Documents. If any such Work required so
to be inspected, tested, or approved is covered without written approval of
Architect, it must, if requested by Architect, be uncovered for observation
at Contractor's expense. The cost of all such inspections, tests, and
approvals shall be borne by Contractor unless otherwise provided.
2. Neither observations by Architect nor inspections, tests, or
approvals by persons other than Contractor shall relieve Contractor from
its obligations to perform the Work in accordance with the requirements of
the Contract Documents.
C. Access to the Work . Architect and its representatives and other
representatives of Owner will at all times have access to the Work. Contractor
will provide proper facilities for such access and observation of the Work and
also for any inspection or testing of the Work by others.
D. Uncovering Work.
1. If any Work is covered contrary to the written request of Architect, it
must, if requested by Architect be uncovered for its observation and
replaced at Contractor's expense.
2. If any Work has been covered that Architect has not specifically
requested to observe prior to its being covered, or if Architect considers it
necessary or advisable that covered Work be inspected or tested by
others, Contractor, at Architect's request, will uncover, expose, or
otherwise make available for observation, inspection, or testing as
Architect may require, that portion of the Work in question, furnishing all
necessary labor, material, and equipment. If it is found that such Work is
defective, Contractor will bear all the expenses of such uncovering,
exposure, observation, inspection, and testing and of satisfactory
reconstruction, including compensation for additional professional
services, and an appropriate deductive change order shall be issued. If,
however, such Work is not found to be defective, Contractor will be
allowed an increase in the Contract price or an extension of the Contract
time, or both, directly attributable to such uncovering, exposure,
observation, inspection, testing, and reconstruction if its makes a claim for
such an increase or extension as provided in Articles 11 and 12 .
E. When Owner May Stop Work. If the Work is defective, or Contractor fails
to supply sufficient skilled Workers or suitable materials or equipment, or if
Contractor fails to make prompt payments to subcontractors or for labor,
materials, or equipment, Owner may order Contractor to stop the Work, or any
portion of the Work, until the cause for such order has been eliminated; however,
this right of Owner to stop the Work shall not give rise to any duty on the part of
Owner to exercise this right for the benefit of Contractor or any other party.
F. Correction or Removal of Defective Work. If required by Architect prior
to approval of final payment, Contractor will promptly, without cost to Owner and
as specified by Architect, either correct any defective Work, whether or not
fabricated, installed, or completed, or, if the Work has been rejected by Architect,
remove it from the site and replace it with non-defective Work. If Contractor does
not correct such defective Work or remove and replace such rejected Work within
a reasonable time, all as specified in a written notice from Architect, Owner may
have the deficiency corrected or the rejected Work removed and replaced. All
direct or indirect costs of such correction or removal and replacement, including
compensation for additional professional services, shall be paid by Contractor,
and an appropriate deductive change order shall be issued. Contractor will also
bear the expenses of making good all Work of others destroyed or damaged by
its correction, removal, or replacement of its defective Work.
G. Correction Period for Defective Work. If, after the approval of final
payment and prior to the expiration of one year after the date of substantial
completion or such longer period of time as may be prescribed by law or by the
terms of any applicable special guarantee required by the Contract Documents
any Work is found to be defective, Contractor will promptly without cost to Owner
and in accordance with Owner's written instructions, either correct such defective
Work, or, if it has been rejected by Owner, remove it from the site and replace it
with non-defective Work. If Contractor does not promptly comply with the terms
of such instructions, Owner may have the defective Work corrected or the
rejected Work removed and replaced, and all direct and indirect costs of such
removal and replacement, including compensation for additional professional
services, will be paid by Contractor.
H. Acceptance of Defective Work. If, instead of requiring correction or
removal and replacement of defective Work, Owner (and, prior to approval of
final payment, also Architect prefers to accept such Work, it may do so. In such
case, if acceptance occurs prior to approval of final payment, a change order
shall be issued incorporating the necessary revisions in the Contract Documents,
including appropriate reduction in the Contract price; or, if the acceptance occurs
after approval of final payment, an appropriate amount shall be paid by
Contractor to Owner.
I. Neglected Work by Contractor . If Contractor should neglect to prosecute
the Work in accordance with the Contract Documents, including any
requirements of the progress schedule, Owner, after _______ (number) days'
written notice to Contractor may, without prejudice to any other remedy it may
have, make good such deficiencies and the cost for making good such
deficiencies (including compensation for additional professional services) shall be
charged against Contractor if Architect approves such action, in which case a
change order shall be issued incorporating the necessary revisions in the
Contract Documents including an appropriate reduction in the Contract price. If
the payments then or later due Contractor are not sufficient to cover such
amount, Contractor will pay the difference to Owner.
14. Payments and Completion
A. Schedule of Values. At least ______ (number) days prior to submitting
the first application for a progress payment, Contractor will submit a schedule of
values of the Work including quantities and unit prices, aggregating the Contract
price. This schedule shall be satisfactory in form and substance to Architect and
shall subdivide the Work into component parts in sufficient detail to serve as the
basis for progress payments during construction. Upon approval of the schedule
of values by Architect, such schedule shall be incorporated into the form of
application for payment furnished by Architect.
B. Applications for Progress Payment. At least ______ (number) days
before each progress payment falls due (but not more often than once a month),
Contractor will submit to Architect for review the application for payment filled out
and signed by Contractor covering the Work completed as of the date of the
application and supported by such data as Architect may reasonably require. If
payment is requested on the basis of materials and equipment not incorporated
in the Work but delivered and suitably stored at the site or at another location
agreed to in writing, the application for payment shall also be accompanied by
such supporting data, satisfactory to Owner, as will establish Owner's title to the
material and equipment and protect its interest in such material and equipment,
including applicable insurance.
C. Contractor's Warranty of Title . Contractor warrants and guarantees that
title to all Work, materials, and equipment covered by an application for payment,
whether incorporated in the project or not, will have passed to Owner prior to the
making of the application for payment, free and clear of all liens, claims, security
interests, and encumbrances (referred to below in these general conditions as
liens ); and that no Work, materials, or equipment covered by an application for
payment will have been acquired by Contractor or by any other person
performing the Work at the site or furnishing materials and equipment for the
project, subject to an Agreement under which an interest in or encumbrance on
such Work, materials, or equipment is retained by the seller or otherwise
imposed by Contractor or such other person.
D. Approval of Payments.
1. Architect will, within _____ (number) days after receipt of each
application for payment, either indicate in writing its approval of payment
and present the application to Owner, or return the application to
Contractor indicating in writing its reasons for refusing to approve
payment. In the latter case, Contractor may make the necessary
corrections and resubmit the application. Owner will, within ______
(number) days of presentation to it of an approved application for
payment, pay Contractor the amount approved by Architect.
2. Architect’s approval of any payment requested in an application for
payment shall constitute a representation by it to Owner, based on
Architect on-site observations of the Work in progress as an experienced
and qualified design professional and on its review of the application for
payment and the supporting data, that the Work has progressed to the
point indicated; that, to the best of its knowledge, information, and belief,
the quality of the Work is in accordance with the Contract Documents
(subject to an evaluation of the Work as a functioning project upon
substantial completion, to the results of any subsequent tests called for in
the Contract Documents and any qualifications stated in its approval); and
that Contractor is entitled to payment of the amount approved. However,
by approving any such payment Architect shall not be deemed to have
represented that it made exhaustive or continuous on-site inspections to
check the quality or the quantity of the Work, or that it has reviewed the
means, methods, techniques, sequences, and procedures of construction,
or that it has made any examination to ascertain how or for what purpose
Contractor has used the mone
