The URL can be used to link to this page

Home My WebLink About08- Standard Form of Agreement between the City of Bozeman and Martel Construction for Fire Station #3 and the County 911 Center ~c~ ~~:~!! ~ ~ V L~ II I '. ~ ;~.~ ~ '. 2008 u Document A121 CMc - 2003 and AGC Document 565 Standard Form of Agreement iBe#ween owner and Cons#ruc#ion Manager where the Construction Manager is Also the Consruuctor AGREEMENT made as of the 3rd day of December (!n words', indicate day, month and year) in the year of 2007. ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. BETWEEN the Owner: (Name and address) City of Bozeman 41 1 E. Main Bozeman, MT 59715 And Gallatin County 311 W. Main, Room 304 Bozeman, MT 59715 and the Construction Manager: (Name and address) Martel Construction, Inc. 1203 S. Church Bozeman, MT 59715 The Project is: (Ncune, address and brief de.rcri/~tinn ) Bozeman Fire Station No 3 and County 91 I Center Davis and Vaquero Parkway Bozeman, Montana The Architect is: (Nome m1d address) ThinkOnc 101 E. Main Bozeman, MT 59715 The Owner and Construction Manager agree as set forth below: This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. The 1997 Edition of AIA Document A201, General Conditions of the Contract for Construction, is referred to herein. This Agreement requires modification if other general conditions are utilized. Inlt. AIA Document A121 TMCMC - 2003 and AGC Document 5fi5. Copyright ~ 1991 and 2003 by Tho American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.s. Copyright Law and International Treaties. Unauthgrized reproduction or distribution of this document, or any portion pt it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent passible under the law. This document was produced by AIA software at 10:57:09 on 01/29/2006 under Order No.1000319fi9fi_1 which expires on 914/2006, and is not for resale. User Notes: (1 5848401 1 8) TABLE 4F CONTENTS ARTICLE 1 GENERAL PROVISIONS § 1.1 Relationship of the Parties § 1.2 General Conditions ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES § 2.1 Preconstruction Phase § 2.2 Guaranteed Maximum Frice Proposal and Contract Time § 2.3 Construction Phase § 2.4 Professional Services § 2.5 Hazardous Materials ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 Information and Services § 3.2 Owner's Designated Representative § 3.3 Architect § 3.4 Legal Requirements ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES § 4.1 Compensation § 4.x Payments ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES § 5.1 Compensation § 5.2 Guaranteed Maximum Price § 5.3 Changes in the Work ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 Costs to Be Reimbursed § 6.2 Costs Not to Be Reimbursed § 6.3 Discounts, Rebates and Refunds § 6.4 Accounting Records ARTICLE 7 CONSTRUCTION PHASE § 7.1 Progress Payments § 7.2 Final Payment ARTICLE 8 INSURANGE AND BONDS § 8.1 Insurance Required of the Construction Manager § 8.2 Insurance Required of the Owner § 8.3 Performance Bond and Payment Bond ARTICLE 9 MISCELLANEOUS PROVISIONS § 9.1 Dispute Resolution § 9.2 Other Provisions ARTICLE 10 TERMINATION OR SUSPENSION § 10.1 Termination Prior to Establishing Guaranteed Maximum Price § 1~.2 Termination Subsequent to Establishing Guaranteed Maximum Price § 10.3 Suspension ARTICLE 11 OTHER CONDITIONS AND SERVICES In1t. AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright ~ 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 2 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will pe / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at iD:57:09 on 01129/2008 under prder No.1000319696_1 which expires on 9/4/2008, and is not for resale. User Notes: (1564840118) ARTICLE 1 GENERAL PROVISIONS § 1.1 RELATION5WIP OF PARTIES The Constructian Manager accepts the relationship of trust and confidence established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the Owner. The Construction Manager shall furnish construction administration and management services and use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the Owner. The Owner shall endeavor to promote harmony and cooperation among the Owner, Architect, Construction Manager and other persons or entities employed by the Owner for the Project. § 1.2 GENERAL CONDRIONS During the Construction Phase of this Project, the Construction Manager's Responsibilities to the Owner shall be as set forth in this Contract and in the 1997 Edition of the AIA Document AZO1, "General Conditions of the Contract for Construction".. Por the Preconstruction Phase, or in the event that the Preconstruction and Construction Phases proceed concurrently, AIA Document A201 shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The term. Contractor as used in AIA Document A201 shall mean the Construction Manager. § 1.3 Preconstruction and Construction Phases of Work The Parties acknowledge and agree that the Construction Manager will provide services at the Preconstruction Phase, (which shall run through the Bidding Phase) and, if approved by the Owner, through the Construction Phase, The Parties agree and acknowledge that the Project will proceed with a phased or sequential bidding process and that portions of the Project. may enter Construction Phase while other portions of the Project remain in the Preconstruction Phase. Until the Owner has given approval for use of the Construction Manager beyond the Preconstruction Phase of a phased or sequential portion of the Project, pursuant to Amendment No, I hereto or any subsequently numbered Amendment, the Constructian Manager shall have the authority to provide services only through the Preconstruction Phase of that phased or sequential portion of the Project at the compensation set forth in Section 4.1.1. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Article. The services to be provided under Sections 2. I and 2.2 constitute the Preconstruction Phase services. If the Owner and Construction Manager agree, after consultation with the Architect, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently. § 2.1 PRECONSTRUCTIONPRASE § 2.1.1 PRELIMINARY EVALUATION The Construction Manager shall provide a preliminary evaluation of the Owner's program and Project budget requirements, each in terms of the other. § 2.1.2 CONSULTATION The Construction Manager with the Architect shall ,jointly schedule and attend regular meetings with the Owner. The Canstructian Manager shall consult with the Owner and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager shall pravide recommendations on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion; and factors related to construction cast, including estimates of alternative designs or materials, preliminary budgets and possible economies. § 2.1.3 PRELIMINARY PROJECt SCHEDULE When Project requirements described in Section 3. l . l have been sufficiently identitied, the Constructian Manager shall prepare, and periodically update, a preliminary Project schedule far the Architect's review and the Owner's approval. The Construction Manager shall obtain the Architect's approval of the portion of the preliminary Project schedule relating to the pert'nrmance of the Architect's services. The Construction Manager shat] coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Architect and Constructian Manager. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and samples, delivery of Init. AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright m 1991 and 2003 by The American Institute of Architects and The Associated Goneral Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution pf this document, or any portion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted [o the maximum extent possible under fhe law. This document was produced by AIA software at 10:57:p9 on D1l29/20D8 under Order No.1000319696_1 which expires on 9!4/2008, and is not For resale. User Notes: (1564840118) materials or equipment requiring long-lead-time procurement, Owner's occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial Completion. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the Owner and Architect. § 2.1.a PHASED CONSTRUCTION The Constructivn Manager shall make recommendations to the Owner and Architect regarding the phased issuance of Drawings and Specitications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporary facilities. § 2.1.5 PRELIMINARY CAST ESTIMATES § 2.1.5.1 When the Owner has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare, for the review of the Architect and approval of the Owner, a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. § 2.1.5.2 When Schematic Design Dvcuments have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare, for the review of the Architect and approval of the Owner, a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager shall update and retine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager, § 2.1.5.3 When Design Development Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Construction Documents, the Construction Manager shall update and retine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager. § 2.1.5.4 If any estimate submitted tv the Owner exceeds previously approved estimates or the Owner's budget, the Construction Manager shall make appropriate recommendations to the Owner and Architect. (Paragrcrpfts deleted) § 2,1.7 LONGLEAD-TIME ITEMS The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long-lead- time items which will constitute part of the Work as required to meet the Prvject schedule. If such long-iced-time items are procured by the Owner, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall. be assigned by the Owner to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long-lead-time items. § 2.1.8 EXTENT OF RESPONSIBILITY Except as may otherwise be provided herein, the Construction Manager does not. warrant or guarantee estimates and schedules. It is understood that the Construction Manager/Architect team will invest substantial time before, during and after the bidding phase and that value engineering and minor scope changes tv the design of the Project will frequently be necessary during the Preconstruction Phase to protect and maintain the Owner's overall budget. It is recognized that neither the Owner nor the Construction Manager has control over the cost of labor, materials or equipment, competitive bidding, market or negotiating conditions. Accordingly, the Construction Manager 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 the Cvst of Work or evaluation prepared by the Architect. The recommendations and advice of the Constructivn Manager concerning design alternatives shall be subject to the review and approval of the Owner and the Owner's professional consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications arc in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if the Cvnstruction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and Owner in writing. Init. AIA Document A121 TMCMe - 2003 and AGC Document 565. Copyright ®1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of It, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:57:09 on 01/29/2008 under Order No.1000319696 1 which expires on 9/412008, and is not for resale. User Notos: (1564840118) § 2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs. § 2.1.10 OVERVIEW OF SERVICES Without assuming any resp0onsibility for the design of the Work, the Construction Manager will, in addition to any other services set forth under Paragraph 2.1, provide the following Preconstruction services: .l Consult with, advise, assist, and provide recommendations to the Owner and Architect on all aspects of the planning and design of the Work. The Architect is, however, ultimately responsible for the design of the Work, .2 Provide information, estimates, and participate in decisions regarding construction materials, methods, systems, phasing, and costs to assist in determinations that are aimed at providing the highest quality building within the budget and schedule. .3 Review in-progress design documents and provide input and advise on construction feasibility, alternative materials, and availability of material and equipment; Review completed design documents and suggest modifications tv improve completeness and clarity. ,4 Provide input regarding the current construction market bidding climate, status of key subcontract markets, etc.; Recommend division of work to facilitate bidding and award of trade contracts, considering such factors as bidding climate, improving or accelerating construction completion, minimizing trade jurisdictional disputes and related issues. .5 Work with the Architect tv develop and monitor the Project critical path schedule and recommend adjustments in the design documents yr construction bid packaging to ensure completion of the Project in an expeditious manner, while addressing and meeting schedule requirements. .h Prepare construction cost estimates for the project at appropriate times throughout the design phases of the work; Notify the Owner as soon as reasonably possible if the provided construction cost estimates appear to be exceeding the Owner's budget. .7 Work with the Owner and Architect. tv assist the Architect with its goal of achieving a building that may become LEED certified. .8 Work with the Architect in order for the Architect to complete all design work in accordance with applicable government codes. .9 Attend a minimum of 3 meetings of the Required City Review Boards, at the Design Development, Construction Documents and Bidding Phase, as coordinated with the Owner and Architect. .10 Assist the Architect in the submission of the Construction Documents to the specific state and local agencies having jurisdiction over the Project, including but not limited to review under § 20-6-622, MCA and in securing written approval from those agencies. .11 Work with the Architect in the preparation of the advertisements for bids, as well as the necessary forms, record of bidders, plan deposits, proposals and other bidding and construction documents, all subject to the Owner's approval prior to distribution to prospective bidders. The Construction Manager shall also work with the Architect to ensure that the bid specifications and Construction Documents contain the provisions required by Montana law cvnceming prevailing wage (§§ 18-2403 and 15-2-422, MCA; ARM 24,16.9005), resident hiring preference (§ 18-2-403, MCA), nondiscrimination (§49-3-207, MCA), Init. AIA Document A721 TM'CMe - 2003 and AGC Document 5fi5. Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and Internatignal Treaties. 5 Unauthorized reproduction or distribution of this document, or any pprlipn of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:57:09 on 01/29/2D08 under Order No.1 D00319696.. 1 which expires on 914/200$, and is not for resale. User Notes: (1564840118) bid security (§ 18-2-302, MCA), posting of wages and maintenance of records (§§ IS-2-406 and 422, MCA, as amended) and all other provisions required by Montana and Federal law for public contracting .12 Assist the Owner and Architect in determining the number and nature of the bid packages to be placed for bid, open the bids on behalf of the Owner at a public meeting on school premises and following a review of the bids conducted with the Architect, assist the Architect in the preparation of a written bid analysis for presentation to the Owner, along with supporting documentation, .13 Work with the Architect to reyuirc that all contracts for construction contain requirements that the Subcontractors provide operations manuals and adequate training and support for the Owner in the operation of mechanical, electrical, heating and air conditioning systems installed by the Subcontractor. 14 Act as the advisor to and agent of the Owner § 2.1.11 ADDI'T'IONAL PRE-CONSTRUCTION PHASE RESPONSIBILITIES. The Construction Manager will work with the Architect in the preparation of the bidding information, which must be approved by the Owner before distribution to prospective bidders. Construction will not commence until plans and specitications have been submitted to and approved by the City of Bozeman. Plans and specifications must show in detail the proposed construction and indicate conformity with the applicable building code. § 2.2 GUARANTEED MAXIMUM PRIDE PROPOSAL AND CONTRACT TIME § 2.2.1 At the end of the Bidding Phase, the Construction Manager shall propose, in writing, a guaranteed maximum price (GIMP) in the form of Amendment No. 1, attached hereto. The GMP shall be calculated by adding: (i) the sum of all of the awarded contracts for the Work; (ii) the Construction Manager's Reimbursable Direct Job Costs; (iii) the Construction Manager's Fee; and (iv) the Construction Contingency. The Construction Manager's fee shall be calculated by adding the sum of al] of the awarded contracts for the Work to the Conshuction Manager's Reimbursable Ditcct Job Costs, and multiplying that sum by 5,5%, The Owner shall have the right to pay Reimbursable Ditcct Job Costs directly where feasible, thereby reducing the overall GMP. If the GMP proposal exceeds the Construction Manager's most recent approved cost estimate relating to a portion of the construction work, the Construction Manager shall work with the Architect to bring the project within the approved cost estimate. The Construction Manager's Fee shall be established in accordance with Article 5, as atnendcd. if the proposed GMP is acceptable, the Owner shall, within ten (10) days, approve Amendment No. 1 and issue a Notice to Proceed to the Construction Manager indicating its approval of the GMP and its decision to utilize the Construction Manager throughout the Construction Phase of that portion of the Project. Bids for construction work shall be formally awarded by the Construction Manager after the Construction Manager receives the Notice to Proceed and shall be awarded on behalF of theOwner to the lowest responsible and responsive bidder in accordance with Montana Law. Any bid for construction work for which the Construction Manager is the lowest responsible 1111t. AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright ®1991 and 20D3 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will pe / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at iD~fi7:09 on 01/29/2008 under Order No.100031969fi 1 which expires an 9/4/2D08, and is not for resale. User Notes: (1564840118) and responsive bidder shall be awarded by the Owner to the Construction Manager and shall constitute a contract between the Owner and Construction Manager and the Construction Manager shall be the guarantor of such contract under the provisions of this Agreement relating to the GMP. § 2.2.2 § 2.2.3 The Owner shall maintain the construction contingency account and the Owner, Architect and Construction Manager shall meet each month to reconcile the account. The GMP shall include the Construction Contingency. The parties shall agree to the amount that will be designated as the Construction Contingency Account. The purpose of Che Construction Contingency Account is to provide a means of compensating the Construction Manager during the Construction Phase for costs which are properly reimbursable as change orders approved by the Owner but which arc not a basis for an increase in the GMP. (Paragraphs de{etecO § 2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the Owner or Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. § 2.2.6 Unless the Owner accepts the Guaranteed Maximum Price proposal in writing on or before the date specitied in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. § 2.2.7 Prior to the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the Owner may specifically authorize in writing. § 2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No. 1. The Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Work as provided in the Contract Documents, and the Date of Substantial Completion shall be subject. to adjustment as provided in the Contract Documents. § 2.2.9 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendment No. 1. Such revised 11111. AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright ®1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion oT it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 1 0:57:09 on 01/29!2008 under Qrder No.1 000319696.1 which expires on 9/4/2008, and is not for resale. User Notea: (1564840118) Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such revised Drawings and Specitications are inconsistent with the agreed-upon assumptions and clarifications. 2.2.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time the Guaranteed Maximum Price is established. 2.2.11 lf, after executing Amendment No. 1, the parties agree to change the total sum of the GMP, both parties shall sign a new, sequentially numbered, amendment in the form of Amendment No. 1, evidencing their agreement to change the total sum of the GMP. The GMP shall be amended only in the event of a Change in the Scope of Work, and any amendment to the GMP shall be limited to the actual, substantiated increase or decrease in the Cost of Work caused thereby plus or minus the Construction Manager's fee specified in Section 5.1.1. .1 A Change in Scope means a change to the Project that is initiated, requested or approved by the Owner and (a) involves a change to a design, schedule or procurement previously approved by the Owner; or (b) expands, enlarges or diminishes Che Scope of the Work and the nature, quantity, scope or quality of the Construction Manager's work and services; or (c) is approved by the Owner in writing as a Change in Scope. Change in Scope may result in an increase or decrease to the GMP, an increase or decrease to the Project's Contract Time or a combination of the two. .2 To effectuate a Change in Scope, either the Owner may initiate the Change or the Construction Manager shall notify the Owner and Architect in writing if it believes it is entitled: (a) to an increase in the GMP, or (b) to an extension in the Contract Time, ar (~) to a combination of the two. .3 The Construction Manager's failure to provide the Owner with written notice of a proposed Change in Scope within the 30 calendar days of the event giving rise to the Construction Manager's claim shall mean that the Construction Manager has waived any claim arising therefrom and the Construction Manager shall perform all work associated with the alleged Change in Scope at issue without an increase in the GMP or the Contract Time, and without use of the Construction Contingency Account, 2.2.12 After receiving the Construction Manager's notice as provided in Section 2.2.1 1, the Owner may request that the Construction Manager prepare and submit specitic comments, recommendations and alternatives for modifying the Project to fit within the GMP and Completion Date(s). 2.2.13 Within 30 calendar days of receiving the Construction Manager's notice as provided in Section 2.2.11 or after receiving the Construction Manager's comments, recvmmendations or alternatives as provided in Section 2.2,12, whichever is later, the Owner shall exercise one of the following options: (a) agree with the Construction Manager's request to increase the GMP or the Contract Time, or both, as requested in the Construction Manager's written notice; or (h) accept only a portion of the Construction Manager's request to increase the GMP or the Contract Time or both; or (c) reject the Construction Manager's request for an increase to the GMP and the Init. AIA Document A121 TMCMe - 2003 and AGC Document 565. Copyright ®1891 and 2003 by Tha American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.5. Copyright Law and International Treaties. 8 Unauthorized reproduction or distribution of this document, or any portion at it, may result in severe civil and criminal penalties, and will be j prosecuted to the maximum extent possible under the law. This document was produced 6y AIA software at 10:5709 on 01/29/2008 under Order No.1000319696_1 which expires on 9!4!2008, and is not for resale. User Notes: (1564840118) Contract Time ar both and direct the Construction Manager to proceed with the Work. In the event the Owner refuses to agree with the Construction Manager's request to increase the GMP ar the Contract Time, or both, in whole or in part, and notwithstanding any provision of the Contract Documents to the contrary, the Construction Manager may pursue a claim for an increase in the GMP or the Contract Time, or both, in accordance with the procedure provided AIA Document A201-1997, including Articles 4 and 7 thereof. § 2.3 CONSTRUCTION PHASE § 2.3.1 GENERAL § 2.3.1.1 The Construction Phase (Paragraphs deleted) with respect to any portion of the Project shall commence no later than the date of the issuance of the Notice to Proceed. 2.3.1,2 During the Construction Phase of any portion of the Project, the Construction Manager's obligations to the Owner, in addition to those set forth herein, shall generally be as set forth in AIA Document A20] and the supplement conditions thereto, and shall specifically include the performance of general and comprehensive oversight of the Project on behalf of the Owner. The Construction Manager shall, on behalf of the Owner, enter into contracts with Subcontractors that shall be subject to AIA Document A201, and the supplemental conditions thereto, agreed upon by the Owner, Architect and Construction Manager. Such documents shall become part of the Contract Documents governing the Work. 2.3.1.2.1 The Construction Manager shall, on behalf of the Owner, enter into contracts in accordance with Paragraph 2.2.1 above for the performance of the Work with all successful, responsive, and responsible bidders in the competitive bidding process conducted by the Owner In accordance with Section 2.2.1, the Owner will enter into the contracts for specific work with the Construction Manager where the Construction Manager is the lowest bidder. All such direct contracts with the Construction Manager arc guaranteed by the Construction Manager's GMP and shall be treated in the same fashion as other subcontracts for all purposes except as otherwise noted herein or expressly stated in the contracts themselves. 2.3.1.2.2 The Construction Manager shall be directly obligated to the Owner for the administration and performance of the Work under all of the contracts referenced in Subparagraph 2.3.1.2. I 2.3.1.2.3 The Construction Manager may undertake construction work with the Construction Manager's own forces only under the fallowing conditions: (1) such work is publicly bid according to the invitations to bid and requirements of state law; (2) the Construction Manager is the lowest responsive and responsible bidder for the work as confirmed by the Architect and Owner. 2.3.2,1 Delete the third sentence of Section 2.3.2.1 and insert a new third sentence as follows: The Owner will determine, with the advice of the Construction Manager, which bids will be accepted; provided however, the Construction Manager, at its sale discretion, may require that any bidder provide full performance and payments bonds as a condition precedent to any work being awarded to such bidder. 2.3.2.3 Replace Subparagraph 2,3,2,3 in its entirety with the following: Subcontracts and agreements with suppliers furnishing material or equipment fabricated to a special design shall conform to the payment provisions of Subparagraphs 7.1.8 and 7.1.9, 2.3.2.5 Replace Subparagraph 2,3.2.5 in its entirety with the fallowing: The Construction Manager shall prepare a schedule in accordance with Paragraph 3. t0 of Init AIA Opcument A121 T""CMC - 2003 and AGC Document 565. Copyright ®1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 9 Unauthorized reproduction or distribution of this document, or any portion pf it, may result in severe civil and criminal penalties, and will qe ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:57:D9 on 01/29/2008 under Order No.1000319696_.1 which expires on 9!4/2008, and is not for resale. User NpteS: (1564840118) AIA Document A201, including the Owner's occupancy requirements. 2.3.2.6 Replace Subparagraph 2,3,2.6 in its entirety with the following: The Construction Manager shall record the progress of the Project and shall submit monthly written progress reports to the Owner and Architect including information on each Subcontractor's Work, as well as the entire Project, showing percentages of completion. The Construction Manager shall keep a daily lag containing a record of weather, each Subcontractor's Work on the site, number of workers, identification of equipment, Work accomplished, problems encountered, and other similar data as the Owner may require. The log shall be available to the Owner and Architect. Add the following new Subparagraphs to Subparagraph 2.3.2: 2.3.2.8 The Construction Manager shall, on behalf of the Owner, execute and enter inw all contracts with Subcontractors and shall ensure that the contracts contain all provisions required by law, including, but not limited to, compliance with provisions addressing prevailing wages (§ 18-2-403, 422, MCA); Montana residential preferences (§ 18-2-403, MCA), nondiscrimination (§49-3-207, MCA), and maintenance of records requirements (§ 18-2-406 and 422, MCA, as amended). (See generally Article 2.1.10(11) above). The Construction Manager will conform to the provisions of § 15-SO-206, MCA, requiring the withholding of 1 % of all payments due the Subcontractors. For each contract, the Construction Manager will the the necessary forms, including the Form PC-1 and related farms, with the Montana Department of Revenue containing the information set forth in ARM 42.31.2121, within 10 days of the award of the contract. The Construction Manager will copy the Uwner with all filings and transmittals made with or to the Department of revenue in fulfillment of its obligations under this provision. 2.3.2.9 Utilizing the construction schedules provided by the various Subcontractors, the Construction Manager shall update the Project construction schedule incorporating the activities of the Subcontractors on the Project, including activity sequences and durations, allocation of labor and materials, and delivery of products requiring long-lead time and procurement. The Construction Manager shall maintain Shop Drawings, Product Data and Samples and other submittal material from the Subcontractors in a separate tabular schedule. The Project construction schedule shall include the Owner's occupancy requirements showing portions of the Project having occupancy priority. The Construction Manager shall update and reissue the Project Construction schedule as required to show current conditions. if an update indicates that the previously approved Project construction schedule may not be met, the Construction Manager shall recommend corrective action to the Owner and Architect. 2.3.2.10 Consistent with the various bidding documents and utilizing information from the Subcontractors, the Construction Manager shall coordinate the sequence of construction and the assigning of space in areas where the Subcontractors are performing Work. 2.3.2.11 The Construction Manager shall determine in general that the Work of each Subcontractor is being performed in accordance with the requirements of the Contract Documents to guard the Owner against detects and deficiencies in the Work. As appropriate, the Construction Manager shall have the authority, upon written authorization from the Owner, to require additional inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. The Construction Manager, in consultation with the Architect, may reject Work that does not conform to the requirements of the Contract Documents. 2.3.2.12 The Construction Manager shall schedule and coordinate the sequence of construction in accordance with the Contract Documents and the latest approved Project construction schedule, as well as schedule and coordinate any outside inspections required bylaw so as to Init. AIA Document A121 TMCMc - 2003 and AGC Document 5fi5. Gopyright c~ 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 10 Unauthorized reproduction or distribution of this document, or any pgrtion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 1D'57:09 on 01/29!2008 under Order No.1000319696_1 which expires on 9/4/2D08, and is not for resale. User Notes: (1564840118) avoid unnecessary delays 2.3.2.13 The Construction Manager shall arrange for the delivery, storage, protection and security of Owner purchased materials, systems and equipment that are part of the Project until such items are incorporated into the Project, if such materials, systems and equipment arc identified in the plans and specifications. 2.3.2.14 The Construction Manager shall review requests for changes, assist in negotiating the Subcontractor's proposals, submit recommendations to the Architect and Owner and, if they arc accepted, prepare Change Orders and Constructian Change Directives which incorporate the Architect's maditications to the Documents. 2.3.2.151n collaboration with the Architect, the Constriction Manager shall establish and implement procedures for expediting the processing and approval of Shop Drawings, Product Data, Samples and other submittals, The Construction Manager shall review al] Shop Drawings, Product Data, Samples and other submittals from the Subcontractors. The Construction Manager shall. coordinate submittals with information contained in related documents and simultaneously transmit to the Architect and Owner those that have been approved by the Constructiou Manager. The Construction Manager's actions shall be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner or Subcontractors. 2.3.2,16 The Construction Manager shall maintain at the Project site for the Owner one record copy of all Contracts, Drawings, Specifications, addenda, Change Orders and other Maditications, in goad order and marked currently to record changes and selections made during construction, and in addition, approved Shop Drawings, Product Data, Samples and similar required submittals. The Constructian Manager shall maintain records, in duplicate, of principal building layout lines, elevations of the bottom of the footings, floor levels and key site elevations certitied by a qualitied surveyor or professional engineer. The Construction Manager shall make all such records and record Drawings available to the Architect and upon completion of the Project shall deliver them to the Owner. 2,3.2.17 With the Architect and the Owner's maintenance personnel, the Constructivn Manager shall conduct the final testing and start-up of utilities, operating systems and equipment. 2.3.2,18 Whcn the Construction Manager considers each Subcontractor's Work or designated portion thereof substantially complete, the Construction Manager shall notify the Architect. The Construction Manager shall assist the Architect in conducting inspections tv determine whether the Work ar designated portion thereof is substantially complete. 2.3.2.19 The Constructian Manager shall coordinate and administer any required correction and completion of the Work. Following issuance of a Certificate of Substantial Completion of the Work or a designated portion thereof, the Construction Manager shall evaluate the completion of the Work of the Subcontractors and make recommendations to the Architect when Work is ready for final inspection, The Constructivn Manager shall assist the Architect in making final inspections. 2.3.2.20 The Construction Manager shall, accompanied by the Architect and a representative of the Owner, make the following inspections per agreed dates an the schedule. "Substantial Completion" - to determine that building systems are operational but not necessarily balanced, flooring is installed and walls painted, that all furnishings and other materials will be able to be staged in classrooms and offices. "$alancc" - to determine that all building systems will be balanced, all trim and cabinetry will be installed, the spaces will be completed and ready for staged materials to be unpacked and the rooms put into use, the gymnasium will be completed Init. AIA Document A121 T""GMC - 2003 and AGC Document 565. Copyright ~ 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reservod. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 1 ~ Unauthorized reprpduction or distributign of This document, or any portion oT it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent passible under the law. This document was produced by AIA software at 10:57:D9 on 01/29/2008 under Order No.1gD0319696_1 which expires on 9/4/2008, and is not for resale. User Notes: (1554840118) and all outside hard surfaces will be fully completed. "Final" - to determine that all outside landscaping shall be completed and all punch list items for minor adjustments and repairs shall be completed. "Warranty" -such inspection shall be made approximately eleven months after Substantial Completion and acceptance of the Work. These inspections may be at different times for different portions of the Work. The Construction Manager shall assist the Architect in determining whether the Work has been completed in accordance with the Contract Documents and shall assist the Architect in endeavoring to see that any remedial work found to be necessary is performed in a satisfactory and workmanlike manner by the Subcontractor responsible for the same. 2.3.2.21 't"he Construction Manager shall secure and transmit to the Architect all warranties and similar submittals required by the Contract Documents for delivery to the Owner and deliver all keys, manuals, record drawings and maintenance stocks to the Owner. The Construction Manager shall forward to the Architect a final Project Application for Payment upon compliance with the requirements of the Contract Documents. § 2.3.2 ADMINISTRATION § 2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall he performed under subcontracts or by other appropriate agreements with the Construction Manager, The Construction Manager shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the Owner and Architect. The Owner will then determine, with the advice of the Cnnstntction Manager and subject to the reasonable objection of the Architect, which bids will be accepted. The Owner may designate specific persons or entities from whom the Construction Manager shall obtain bids; however, if the Guaranteed Maximum Price has been established, the Owner may not prohibit the Construction Manager from obtaining bids from other qualified bidders, The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. § 2.3.2.2 If the Ciuarantecd Maximum Price has been established and a specific bidder among those whose bids are delivered by the Construction Manager to the Owner and Architect (1) is recommended to the Owner by the Construction Manager; (µ) is qualified to perform that portion of the Work; and (3) has submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions, but the Owner requires that another bid be accepted, then the Construction Manager may require that a change in the Work be issued to adjust the Contract Timc and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the Owner by the Construction Manager and the amount of the subcontract or other agreement actually signed with the person or entity designated by the Owner. § 2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Sections 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fcc without the prior consent of the Owner. § 2.3.2.4 The Construction Manager shall schedule and conduct meetings at which the Owner, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. § 2.3.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Section 3.10 of A2~1TM-1997, including the Owner's occupancy requirements. § 2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Architect. § 2.3.2.7 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright ®1991 and 2003 by The American Institute of Architects and The Associated Init. General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 1 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:57:09 on 01/29/2008 under Order No.1000319696._7 which expires on 9/4/2008, and is not for resale. User Notes: (1564840118) Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect at regular intervals. § 2.4 PROFESSIONAL SERVIGES Section 3.12.10 of A201'tM-1997 shall apply to both the Preconstruction and Construction Phases. § 2.5 HAZARDOUS MATERIALS Section 10.3 of A201'''M-1997 shall apply to both the Preconstruction and Construction Phases, Except as otherwise provided, the Owner, Construction Manager and Architect shall then proceed in the manner described in Article 10 of AIA Document A201. The Owner shall be responsible for obtaining the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Construction Manager and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. The Construction Manager shall assist the Owner in procuring the services of persons or entities to perform tests verifying the presence or absence of such material or substance or to perform the task of removal or safe containment of such material or substance. ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 INFORMATION AND SERVIGES § 3.1.1 The Owner shall provide full information in a timely manner regarding the requirements of the Project, including a program which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships, flexibility and. expandability requirements, special equipment and systems, and site requirements § 3.1.2 The Owner shall, at the written request of the Construction Manager prior to commencement of the Construction Phase and thereafter, furnish to the Construction Manager reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Contract, Furnishing of such evidence shall be a condition precedent to commencement or continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial arrangements without prior notice to the Construction Manager. § 3.1.3 The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the Owner. § 3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS In the Preconstruction Phase, the Owner shall furnish the following with reasonable promptness and at the Owner's expense. Except to the extent that the Construction Manager knows of any inaccuracy, the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Sections 3.1.4.1 through 3,1.4.4 but shall exercise customary precautions relating to the performance of the Work. § 3.1.4.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. § 3.1.4.2 Surveys describing physical characteristics, legal limitations 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, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a project benchmark. § 3.1.4.3 The services of a geotechnical engineer when such services are requested by the Construction Manager. 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 resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. § 3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which arc required by law. Init. AIA Document A721 T'"CMC - 2003 and AGC Document 565. Copyright C7 1991 and 2003 by The American Institute of Architects and the Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 1 Unauthprized reproductign or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 1D:57:09 on 01/29!2008 under Order No.1000319696 1 which expires nn 9/4/2D08, and is not tar resale. User Notes: (1564840118) § 3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Construction Manager. § 3.2 OWNER'S DESIGNATED REPRESENTATIVE The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect w all matters requiring the Owner's approval or authorization. This representative shall have the authority to make decisions on behalf of the Owner concerning estimates and schedules, construction budgets, and changes in the Work, and shall render such decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Construction Manager. Except as otherwise provided in Section 4.2.1 of A20l~rM-1997, the Architect does not have such authority. § 3.3 ARCHITECT The Owner shall retain an Architect to provide Basic Services, including normal structural, mechanical and electrical engineering services, other than cost estimating services, described in the edition of AIA© Document B 141 t M--1997, Ahbreviuted Standard Form r~/•Agreement Bettveerl Owner and Architect current as of the date of this Agreement, The Owner shall authorize and cause the Architect to provide those Additional Services described in B 141't'M--1997, requested by the Constructivn Manager which must necessarily be prvvided by the Architect for the Preconstruction and Construction Phases of the Work. Such services shall be provided in accordance with time schedules agreed to by the Owner, Architect and Construction Manager. Upon request of the Construction Manager, the Owner shall furnish to the Construction Manager a copy of the Owner's Agreement with the Architect, from which compensation provisions may be deleted. § 3.4 LEGAL REQUIREMENTS The Owner shall determine and advise the Architect and Construction Manager of any special legal requirements relating specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Project. The Owner shall furnish such legal services as are necessary to provide the information and services required under Section 3.1. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRl1CTION PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: § 4.1 COMPENSATION § 4.1.1 For the Construction Manager's services during the Preconstruction phase, the Construction Manager shall be paid the fixed sum of $8,500.00 and the Construction Manager will keep a log of services rendered during this period. (State basis of com/~ensatioft, whetker a stipulated sum, rourltrple nf'Direc•t Persomte! expense, actual cost, etc•. Irtcludcr a s7atemcnt gf'reitnburrahle cost items a.r applicable.) I (Paragraphs deleted) § 4.2 PAYMENTS § 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion tv services performed. Inlt AIA Document A121 T""CMc - 2003 and AGC Document 565. Copyright ~ 1991 and 2003 by The American Institute of Architects and The Associated General Gontractors of America. All rights reserved. WARNING: This document is protected by U.5. Copyright Law and International Treaties. 14 Unauthorized reproductipn or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10'57'09 on 01/29/2008 under Order No.1000319696_.1 which expires on 914/2008, and is not for resalo. User Notes: (158484D118) Payments are due and payable pursuant to §28-2-2101 c[ sey., MCA, which provides, in part, that a contractor's request for payment is considered approved by the owner 21 days after receipt of the request by the Owner or the person designated in the contract by the Owner to receive the payment reyucst unless, prior to that time, the Owner provides the contractor with a written statement containing specific items in the request for payment that arc being disapproved by the Owner. if the Owner approves all or a portion of a contractor's reyucst for payment as provided in the statute, the Owner shall pay the contractor the approved amount within 7 days after contractor's request for payment is approved. (Paragraphs delctec!) ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The Owner shall compensate the Construction Manager for Construction Phase services as follows: § 5.1 COMPENSATION § 5.1.1 )F'or the Construction Manager's services during the Construction Phase, the Construction Manager's Fee shall be 5.5% of the sum of all of the awarded contracts for the Work plus the Construction Manager's Reimbursable Direct Job Costs, as defined in Subparagraph 2.2.1 above, less any credit amount under Subparagraph 4.1.1 above. (Paragraphs deleted) The Owner shall in no event be obligated to the Construction Manager far more than the amount set forth in this Subparagraph 5.1.1 for Construction Phase fees in connection with this Project. Notwithstanding any other provisions in the Contract Documents, the basis for computing the Construction Manager's compensation under this paragraph shall specifically not include any increased contract sums necessitated by changes in the work, increased costs, yr costs approved for any other reason, except as provided by Sections 2.2.11 and 2.2.12. § 5.2 GUARANTEED MAXIMUM PRICE § 5.2.1 The sum of the Cost of the Wark as defined in Subparagraph 6. I .I below, together with the Construction Manager's Fec, is guaranteed by the Construction Manager not to exceed the Guaranteed Maximum Price provided in Amendment No, 1 or any sequentially numbered Amendment, subject only to additions approved in accordance with this Agreement and the General and Supplemental Conditions made a part hereof. Such maximwn sum as adjusted by approved changes in the Work is referred to herein as the adjusted Guaranteed Maximum Price, Any costs or expenses that cause the adjusted Guaranteed Maximum Price to be exceeded shall be the sole responsibility of and paid by the Construction Manager without reimbursement by the Owner except as provided in Section 2.2.11 and 2.212. § 5.3 CHANGES IN THE WORK § 5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of Amendment No. I may be determined by any of the methods listed in Section 7.3.3 of A201't'rt-1997. § 5.3.2 In calculating adjustments to Subcontracts, the terms "cost" and "tee" as used in Inlt. AIA Document A121 TMCMe - 2003 and AGC Document 565. Copyright ~ 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights rksCrved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 1 ~ Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:57:09 on 01/29/2008 under Order No.1000319696_1 which expires on 9/4/2008, and is not for resale. User Notes: (15t3484D118) Subparagraph 7.3.3,3 of AIA Document A201 and the terms "cost" and "a reasonable allowance for overhead and profit" as used in Subparagraph 7.3.6 of AIA Document A201 shall have the meanings assigned to them in that document and shall not be modified by this Article 5. The Construction Manager's fee and/or overhead and profit shall not be increased based on changes to the work except as specifically provided in Section S. I , I ,where the Owner requests material changes which are outside the scope of the Project. (Paragraphs deleted) ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 COSTS TO BE REIMBURSED § 6.1.1 The term "Cost of the Work" shall mean the aggregate total of all Subcontracts competitively solicited and awarded for construction work in connection with the Project, including any contracts competitively solicited and awarded to the Construction Manager for construction work in connection with the Project, and Reimbursable Direct lob Costs defined on Exhibit A. In the event inconsistency between any ContracC Document and Exhibit A, Exhibit A shall govern, (Paragraphs deleted) (TaGle deleted) (Paragraphs deleted) § 6.3 DISCOUNTS, REBATES AND REFUNDS § 6.3.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (I ) before making the payment, the Construction Manager included them in an Application for Payment and received payment therefor frvm the Owner, or (2) the Owner has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accnie to the Owner, and the Construction Manager shall make provisions so that they can be secured. § 6.3.2 Amounts which accn~e to the Owner in accordance with the provisions of Section 6.3. l shall be credited to the Owner as a deduction from the Cost of the Work. § 6.4 ACCOUNTING RECORDS § 8.4.7 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract; the accounting and control systems shall be satisfactory to the Owner. The Construction Manager shall maintain records for all subcontracts, change orders and scope of Work changes resulting from all Subcontractors. The Owner and the Owner's accountants shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. ARTICLE 7 CONSTRUCTION PHASE § 7.1 PROGRESS PAYMENTS § 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect, the Owner shall make progress payments to the Construction Manager as provided below and elsewhere in the Contract Documents. § 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: § 7.1.3 Progress payments are due and payable pursuant to §28-2-2101 et seq., MCA, which provides, in part, that a contractor's request for payment is considered approved by the Owner 21 days after receipt of the request by the Owner or the person designated in the contract by the Owner to receive the payment request unless, prior to that time, the Owner Init. AIA Document A121 TMCMC - 2003 and AGC Document 555. Copyright ~ 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 16 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:57:09 nn 01/29/2008 under Order No.100D919696. 1 which expires on 9/4/2008, and is not for resale. User Netes: (1564840118) provides the contractor with a written statement containing specific items in the request for payment that are being disapproved by the Owner, If the Owner approves all or a portion of a contractor's request for payment as provided in the statute, the Owner shall pay the contractor the approved amount within 7 days after contractor's request for payment is approved. § 7.1.4 With each Application for Fayment, the Construction Manager shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (1) progress payments already received by the Construction Manager; less (2) that portion of those payments attributable to the Construction Manager's Fee; plus (3) payrolls for the period covered by the present Application for Payment. § 7.1.5 l;ach Application far Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents, The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected w by the Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. § 7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed ar (2) the percentage obtained by dividing (a) the expense which has actually been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends w make actual payment prior to the next Application for Payment by (h) the share of the Guaranteed Maximum Price allocated to that portion of the Work in Chc schedule of values. § 7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 Takc that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that. portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute may be included as provided in Section 7.3.8 of A201't~--1997, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. .2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stared at the site for subsequent incorporation in the Work or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing. .3 Add the Construction Manager's Fee, less retainage of ( ). The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Sections at the rate stated in Section 5.1. l or, if the Construction Manager's Fee is stated as a fixed sum in that Section, shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the two preceding Sections bears to a reasonable estimate of the probable Cast of the Work upon its completion. .4 Subtract the aggregate of previous payments made by the Owner. .5 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Section 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants in such documentation. .6 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of A201T"1-1997. § 7.1.8 After the wards "retainage of in the first sentence of Subparagraph 7.1.7.3, insert the words "five percent (5%)", All retainage amounts under this provision shall be placed in an interest-bearing account by the Owner in the name of both parties in accordance with Montana Init. AIA Document A721TMCMc - 20(13 and AGC Document 565. Copyright ®1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 17 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:57:09 nn 01/29/2008 under Ordor No.1000319696_..1 which expires on 9/4/2008, and is not for resale. U9er NOte9: (1564fj4u118) law. The interest from that account shall be payable to the Construction Manager as it is accrued. The payment of the escrow account shall be made to the Construction Manager simultaneously with the final payment, less only such amount as may reasonably be necessary to correct any identified deficiency in the Work in accordance with Sections 28-2-2101, et seq, of the Montana Code Annotated. Except with the Owner's prior approval, payments to Subcontractors shall be subject to retention of not less than tive percent (S%). § 7.1.9 Except with the Owner's prior approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. § 7.1.101n taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect has made a detailed examination, auditor arithmetic verification of the documentation submitted in accordance with Section 7,1,4 or other supporting data, that the Architect has made exhaustive or continuous an-site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants acting in the sole interest of the Owner. 7.1.11 The Construction Manager shall develop and implement procedures for the timely review and processing of applications for payment by Subcontractors for progress and final payments. 7.1.12 Based on the Construction Manager's observations and evaluations of each Subcontractor's application for payment, the Construction Manager shall review and certify the amounts due the respective Sttbcontractars and shall incorporate such certified amounts into the Application for Payment developed under Subparagraph 7.1.5 above. 7.1.13 The Construction Manager's certification far payment shall constitute a representation to the Owner, based nn the Construction Manager's determinations at the site and on the data comprising the Subcontractor's applications for payment, that, to the best of the Construction Manager's knowledge, information and belief, the Work has progressed to the point indicated and the quality of the Work is in accordance with the Contract Documents. 'I"he foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Construction Manager in writing. The issuance of a Certificate for Payment shall further constitute a representation that the various Subcontractors are entitled to payment in the amount certified. § 7.2 FINAL PAYMENT § 7.2.1 Except as may otherwise be provided herein, final payment shall be made by the Owner to the Construction Manager when (1) Chis Agreement has been fully performed by the Construction Manager and all Work completed by the Subcontractors, except for their respective responsibilities to (a) correct nonconforming Work as provided in AIA Document A201 and (b) satisfy other requirements, if any, which necessarily survive final payment; (2) a final Application for Payment and a tinal accounting for the Cost of the Work and General Condition Expenses have been submitted by the Construction Manager and reviewed by the Owner and/or its accountants; and (3) a final Certificate for Payment has then been issued by the Architect. Such final payment shall be made pursuant to §28-2-2 (01 et seq., MCA. Init. AlA pocument A721 TMCMe - 2003 and AGC Document 585. Copyright ~ 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 18 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law_ This document was produced by AIA software at 10:57:09 on 01/29/2008 under Order No.1000319696 1 which expires on 9/4/2008, and is not For resale. User Notes: (1564840118) § 7.2.2 The amount of the final payment shall be calculated as follows: .1 'l'ake the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee, but not more than the Guaranteed Maximum Price. .2 Subtract amounts, if any, for which the Architect withholds, in whole or in part, a final Certificate for Payment as provided in Section 9.5. I of A201'''M-1997 or other provisions of the Contract Documents. .3 Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the Owner. § 7.2.3 The Owner's accountants will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the Work as the Owner's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Section 7.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's accountants, either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of A201 tM-1997 . The time periods stated in this Section 7,2 supersede those stated in Section 9,4, I of A201'''M-1997. § 7.2.~L If the Owner's accountants report the Cost of the Work and AIA Document A2U I Expenses as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed to resolve such dispute under Article 9 or as otherwise provided herein without a further decision of the Architect. Pending a final resolution of the disputed amount, the Owner shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. (Paragraphs deleted) ARTICLE 8 INSURANCE AND BONDS § 8.1 INSURANCE REQUIRED 0~ THE CONSTRUCTION MANAGER During both phases of the Project, the Construction Manager shall purchase and maintain insurance as set forth in Section 11.1 of A2~1"'mt-]997. Such insurance shall be written for not less than the following limits, or greater if required by law: § 8.1.1 Without limiting any of the other obligations or liabilities of the Construction Manager, the Construction Manager shall secure and maintain such insurance from an admitted insurance company (or companies) authorized to write insurance in the State of Montana, with a minimum "A.M. Best Rating" of A, as will protect himself, his subcontractors, the Owner and the Architect/Engineer and their respective agents and employees from claims for bodily injury, death, or property damage which may arise from operations and completed operations under this Agreement. Such coverage shall be written for claims arising out of all premises/operations, and all liability assumed by the Construction Manager under any contract or agreement. Construction Manager shall not commence work under this Agreement until such insurance has been obtained and certificates of insurance, with binders, or certified copies of the insurance policy, shall have been filed with the Owner and the ArchitecdEngineet. All insurance coverages shall remain in effect throughout the life of the Agreement, except that the Construction Manager shall maintain the Commercial General Liability coverage for a period of at least one year following the substantial completion date for property damage resulting from occurrences during the agreement period. Each insurance policy shall contain a clause providing that it will not be cancelled by the insurance company without 30 days written notice to the Owner and Architect/Engineer of intention to cancel. Init. AIA Document A121 T'"CMc - 2003 and AGC Document 5fi5. Copyright ®1991 and 2D03 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 1 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 1D:57:09 on o1/29/20D8 under Order No.i DDD319696 1 which expires on 9/4l20D8, and is not for resale. User Notes: (1564840118) Owner and Architect/Engineer are to be added as additional insureds under the General Liability Coverages. However, the Owner and the Construction Manager understand that the insurance coverage procured by the Construction Manager shall not provide coverage for design related liabilities, it being the responsibility of the Architect to provide for the same. Certificates of Insurance shall be provided identifying such interests. The minimum amount of such primary insurance coverages shall be as follows: 1 Commercial General Liahility -Occurrence Form Bodily Injury and Property Damage: $1,000,000.00 per occurrence $2,000,000.00 General Aggregate $2,000.000.00 Products and Completed Operations Aggregate Coverage to include: Premises Operations Products Completed Operations Contractual Liability Operations of Independent Contractors Personal Injury Broad Form Property Damage Deductible: Not more than $5,000.00 per occurrence on property damage. .2 Automobile Liability-Combined Single Limit Combined Single Limits: $1,000.0()().00 each accident Uninsured /Underinsured Motorist Limits: $1,000,000.00. Bodily Injury and Property pamage: Coverage to include: All owned autos All hired autos All non-owned autos .3 Umbrella or Excess Insurance Per Occurrence Limit : $S,OOQ000.00 Annual Aggregate Limit: $5,000.000.00 This coverage to apply to the commercial general liability and the automobile liability, Total limit of liability coverage requested is $5,000,000 and can be made up of a combination of the primary and the umbrella or excess insurance coverage. .4 Workers' Compensation Occupational Injury and Disease Statutory Employer's Liability: These requirements may be written with General Liability Policy by endorsement if unavailable from Workers' Compensation carrier. § 8.1.2 Inst. AIA Document A121 T'"CMc - 2003 and AGC Document 565. Copyright ~ 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. rt0 Unauthorized reproduction or distribution oT this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:57:09 on 01/29/2008 under Order No.1000319696_1 which expires on 9/4/20D8, and is not far resale. User Notes: (1564840118) (Purugrcfp/as deleted) if this Article 8 conflicts with prevail. § $,1,3 the provisions of Article 1 1.1 of form A201-1997 the provisions of the later shall (Purugruphs deleted) § 8.2 INSURANCE REQUIRED OF THE OWNER During both phases of the Project, The Owner will maintain liability and property insurance with the City's or County's insurance carrier at the recommended carrier's levels. § 8.2.1 Property Insurance: Deductible Per Occurrence Aggregate Deductible § 8.2.2 Boiler and Machinery insurance with a limit af: (If riot a Glurtket pnlicv, list the nbjecv.c to he insrered. ) § 8.3 PERFORMANCE BOND AND PAYMENT BOND § 8.3.1 The Construction Manager shall furnish bonds covering the faithful performance of this contract and all contracts competitively solicited and awarded for construction work in connection with the Project and payment of all obligations arising thereunder, including labor and. materials. Bonds may be obtained through the Construction Manager's usual source and the cost thereof shall be included in the Cost of the Work, The amount of each bond shall be equal to 100°Io of the Contract Stun of this contract and any and all contracts competitively solicited and awarded for construction work in connection with the Ptoject. Both the Construction Manager and the Owner shall be listed as obligees on the payment and performance bands. § 8.3.2 The Construction Manager shall deliver the required bonds to the Owner at least three days before the comrncncement of any Work at the Project site. ARTICLE 9 MISCELLANEOUS PROVISIONS § 9.1 DISPUTE RESOLUTION § 9.1.1 During both the Preconstruction and Construction Phases, Claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Sections 4.3 through 4.6 in AlA Document A201, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation. § 9,2 OTMER PROVISIONS § 9.2.1 Unless otherwise noted or unless otherwise inconsistent with their intended meaning in this Inst. AIA Document Ai 21 TMCMc - 20D3 and AGC Document 565. Copyright ~ 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 2y Unauthorized reproduction or distribution of this document, or any portion oT it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was producod by AIA software at 10:57:09 on 01/29/2008 under Order No.i 000319696_,1 which expires on 914/200$, and is not for r®sale. User Notes: (156484D1t8) Agreement, the terms used in this Agreement shall have the same meaning as those in the AIA Document A201. § 9.2.2 EXTENT OF CONTRACT This contract, which includes this Agreement, its Addendum, its Amendments and the other documents incorporated herein by reference, represents the entire and integrated Agreement between the Owner and Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral This Agreement and its Addendum may be amended only by written instrument signed by both the Owner and the Construction Manager, If any document incorporated into this Agreement or its Addendum is inconsistent with either, this Agreement and its Addendum shall govern. § 9.2.3 OWNERSHIP AND USE OF DOCUMENTS Article 1.6 of A201'rm-1997 shall apply to both the Preconstruction and Constniction Phases. § 9.2.4 GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located. § 9.2.5 ASSIGNMENT The Owner and Construction Manager respcctivcly bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Except as provided in Section 13.2.2 of A201'''h'-1997, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. ARTICLE 10 TERMINATION OR SUSPENSION § 10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE § 10.1.1 During the Preconstruction Phase, the Owner may terminate this Agreement at any time without cause, and the Construction Manager may terminate this Agreement for any of the reasons described in Subparagraph 14.1.1 of AIA Document A201. § 10.1.21E the Owner or Construction Manager terminates this Agreement pursuant to Subparagraph 10,1.1 above prior to the commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstruction Phase services performed prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Subparagraph 4.1. I . § 10.1.3 After commencement of the Construction Phase, the Construction Manager (Paragrapl2s deleted) may terminate Chis Agreement for any of the reasons set forth in and pursuant to Subparagraph 14,1 of AIA Document A201. The Owner may terminate this Agreement for any of the reasons set forth and pursuant to Subparagraphs 14.2 or 14.4 of AIA Document A201. 10.1.4 If the Owner or Construction Manager terminates this Agreement pursuant to Paragraph 10.1.3, the Construction Manager shall be entitled to compensation for services rendered prior to termination in an amount that bears the same ratio to the Constnictinn Manager's total Fee as the amount of Wnrk completed during the Construction Manager's period of Construction Phase services bears to the total Cost of the Work. The aggregate of previous payments made by the Owner (Paragruplts deleted) with respect to the Construction Manager's Fcc shall be deducted from the figure arrived at through the above-referenced ratio. No amounts beyond amounts that are tied to actual wvrk performed shall he paid to the Construction Manager. Init. AIA Document A721'*"CMc - 2003 and AGC Document 565. Copyright ®1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. .Z~ Unauthorized reproduction or distribution oT this document, or any portion o1 it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:57:09 on 01/29/20D8 under prder Ne.1000319696. 1 which oxpires on 9!4/2008, and is opt for resale. User Notes: (1564840118) § 10.Z TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as provided in Article 14 of AZ01't'"t-1997. (Paragraphs r~cletedl § 10.3 SUSPENSION The Work may be suspended by the Owner as provided in Article 14 of AlA Document A201. Add Article 11 and the following Subparagraphs of Article 11: ARTICLE 11 11.1 The Construction Manager shall itself comply with and shall ensure the compliance of the various Subcontractors with ~ 18-2-403, MCA in terms of giving preference to the employment of bona fide Montana residents in the work it performs under this Agreement and in paying the standard prevailing wage rate of wages, including travel allowance and fringe benefits, in effect and applicable to the operations that are conducted in performing the Work on this Project. The Construction Manager will properly classify its employees and ensure that the various Subcontractors properly classify their respective employees in accordance with the most recent Montano prevailing wage rates as established by the Montana Department of Lahor prior to commencing operations under this Agreement. A copy of the applicable prevailing wage rates are contained in the Project Manual and are expressly incorporated herein by reference. 11.2 Igo waiver of any breach of any one of the agreements, terms, conditions or covenants of this Agreement by the Owner or Construction Manager shall be deemed to imply or constitute a waiver of any other agreement, term, condition nr covenant of this Agreement. The failure of either party to insist on strict performance of any agreement, term, condition or covenant herein set forth, shall not. constitute or be construed as a waiver of the rights of either or the other thereafter to enforce any other default of such agreement, term, condition or covenant; neither shall such failure to insist upon strict performance be deemed sufficient grounds to enable either party to forego or subvert or otherwise disregard any other agreement, term, condition ar covenant of this Agreement, 11.3 [fin any instance any provision hereof shall be determined to be invalid or unenforceable under any applicable law, such provision shall not apply in such instances, but the remaining provisions shall be given effect in accordance with their terms. 11.4 Any notices required or permitted under this Agreement or which any party elects to give shall be in writing and delivered either personally to the other party's authorized agent set forth below (or as changed by written notice); or by depositing such notice with the United States Postal Service, postage fully prepaid, to the person at the address set forth below; by certified mail, return receipt requested; or to such other address as either party may later designate in writing. Any notice given by mail as herein provided shall be deemed given when deposited in the United States mail: Owners: James Goehrung Director of Facility Services City of Bozeman P U Sox 1230 Init. AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright ©1991 and 2DD3 by The Amorican Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.5. Copyright Law and International Treaties. 23 Unauthorized reproduction or distribution of this document, or any potYion of it, may resulT in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. this document was produced by AIA software at 10:57:D9 on D1/29/2008 under prder No.1000319696_t which expires on 9/412008, and is not for resale. User Notes: (156484D118) Bozeman, MT 59771 Larry Watson Gallatin County 31 l W. Main, Room 304 Bozeman, MT 59715 Construction Manager: Martel Construction, Inc. Attn: Travis Kabalin 1203 S. Church Bozeman, MT 59715 11.5 This Agreement may be executed in several counterparts, and each such counterpart shall be deemed an original. 11.6 Time is of the essence, and the Construction Manager agrees to proceed with the provision of services under this Agreement with due diligence and without delay, in order to meet the Owner's schedule of construction and occupancy. It is expressly agreed and understood between the parties that the Project must reach Substantial Campletian no later than the dates established in the construction schedule that is incorporated in the project specifications, 11.7 The Construction Manager shall reject the use of any hazardous material in the canstruction of the praject, including but net limited to asbestos, asbestos products, polychlorinated biphenyl (PC$) or ether toxic substances. Further, if any such materials are discovered in the course of the construction, the Constructian Manager shall notify the Owner immediately. 11.8 In the event either party files suit to enfarce their rights under this agreement, the prevailing party shall he entitled t.o recover their casts and attorneys fees from the ether party. in addition to any other damages awarded by the court. It is understood and agreed that any suit filed to interpret ar enforce any of the provisions of this agreement shall be tiled in the Eighteenth Judicial District Caurt of the State of Montana. Init. AIA Document A121 TM'CMc - 2003 and AGC Document 565. Copyright C~ 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 24 Unauthprized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:57:D9 on 01/29/2008 under Order No.1000319898_1 which expires on 914!2008, and i5 not far resale. User Notes: (1564840118) This Agreement entered into as of the day and year first written above. OWNER ;City of Bozeman (Si nature) ~~>> " ~rr5 ~. /~c ~X~~SK, (~.;r,r ~ahaaP.r (Printed Warne a~td title) Date ATTEST d $ r t."rt ~ rt 2808 ATTEST CbNSTRUCTION MANAGER -Martel Construction (Sigttatur (Printed name and title) /. P Dat A'1"'f EST CONSTRUCTIpN MANAGER -Martel Constructs n ~~ ~_ (Signatttrel f~n~7~fa.,~ ~4 er,~Z (Printed name artd title) z~ 08 D ATTEST Init. AIA Document A121 TMCMC - 2003 and AGC Document 565. Copyright ®1991 and 2003 by The American Institute of Architects and The Associated General Contractors 4f America. All rights reserved. WARNING: This document is protected by 11.5. copyright Law and International Treaties. ~5 Unauthorized reproduction ar distribution of This document, or any portion ai it, may result in severe civil and criminal penalties, and will be ~ prosecuted to the maximum extr_nt possible under the law. This document was produced by AIA software at itl:57:09 on 01/29/20D8 under Order No.1000319696_i which expires on 9/4/2D08, and is npt for resale. User Notes: (156484(1118) (Printed Warne and title) r~ ~- a ~ ._ ~ _ .j ~ _„~ }~~ = ® TY :~ Document A2o1 -1997 General Conditions of the Contract for Construction for the fallowing PROJECT: (Name artd inration or address): ADDITIONS AND DELETIONS: $ozeman Fire Station No 3 and County 911 Center The author of this document has Davis Road & Vaquero Parkway added information needed far its $ozeman, Montana completion. The author may also have revised the text of the original AIA standard form. An Additions and THE OWNERS: Deletions r=tepon that notes added (Name and address): information as well as revisions to City of Bozeman the standard form text is available 41 1. East Main from the author and should be $ozeman, Montana reviewed. A vertical line in the left And margin of this document indicates Gallatin County where the author has added 311 West Main, Roam 304 necessary information and where Bozeman, Montana the author has added to or deleted from the original AIA text. This document has important legal THE ARCHITECT: consequences. Consultation with an (Name crrtd address): attorney is encouraged with respect ThinkOne to its completion or modification. 101 East Main This document has been approved Bozeman, Montana and endorsed by The Associated General Contractors of America TABLE OF ARTICLES 1 GENERAL PROVISIONS 2 OWNER 3 CONTRACTOR 4 ADMINISTRATION OF THE CONTRACT 5 SUBCONTRACTORS 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 7 CHANGES IN THE WORK 8 TIME 9 PAYMENTS AND COMPLETION 10 PROTECTION OF PERSONS ANp PROPERTY 11 INSURANCE AND BONDS Inst. AIA Document A201 TM - 1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® pocument is protected by U.S. Copyright Law and International Treaties. Unauthorized 1 reproduction or distribution of this AIA°b Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29!2008 under Order No.1000319696 1 which expires on 9/4/2008, and is not far resale. - User Notes: (2728497107) 12 UNCOVERING AND CORRECTION OF WORK 13 MISCELLANEOUS PROVISIONS 14 TERMINATION OR SUSPENSION OF THE CONTRACT Init. AIA Document A20tT"' -- 1997. Copyright ©1911, 1915, 191$, 1925, 1937, 1951, 195$, 1961, 19fi3, 1966, 1970, 1976, 1987 and 1997 6y The American Institute of Archilects. All rights reserved. WARNING: This AIA`~~ Document is protected by Ua's. Copyright Law and International Treaties. Unauthorized reproduction or distributipn of this A1A~ Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on gt/29/2008 under Order No.1D00319fi96_t which expires on 91412008, and is not for resale- User Notes: (2728497107) INDEX (Numbers and Topics in Bold are Section Headings) Acceptance of Nonconforming Work 9.6.6, 9.9.3, 12.3 Acceptance of Work 9.6.6, 9.8.2, 9.9,3, 9.10.1, 9.10.3, 12.3 Access to Work 3.16, 6.2.1,12.1 Accident Prevention 4.2.3, 10 Acts and Omissions 3.2, 3.3,2, 3.12.8, 3.18, 4.2.3, 4,3.8, 4.4.1, 8.3.1, 9.5.1,10.2.5,13.4.2,13.7,14.1 Addenda 1,1.1, 3.11 Additional Costs, Claims for 4,3,4, 4.3.5, 4.3.6, 6.1.1, 10.3 Additional Inspections and Testing 9.8.3, 12.2.1, 13.5 Additional Time, Claims for 4.3.4, 4.3.7, 8.3.2 ADMINISTRATION OF THE CONTRACT 3.1.3, 4, 9.4, 9,5 Advertisement or levitation to Bid I.l.l Aesthetic Effect 4.2.13, 4.5.1 Allowances 3.$ All-risk Insurance 11.4.1.1 Applications for Payment 4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9,7.1, 9.8.5, 9.10, l 1.1.3, 14,2.4, 14.4.3 Approvals 2.4, 3.1.3, 3.5, 3,10.2, 3.12, 4.2.7, 9.3,2, 13.4.2, 13.5 Arbitration 4.3.3, 4,4, 4,5,1, 4.5,2, 4.6, 8.3.1, 9,7.1, 11.4.9, 11.4.10 Architect 4.1 Architect, Definition of 4.1.1 Architect, Extent of Authority 2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2, 7.3.G, 7.4, 9.2, 9.3.1, 9.4, 9,5, 9.8.3, 9.10.1, 9,10,3, 12.1, 12.2.1, 13.5.1,13.5.2,14.2.2,14.2.4 Architect, Limitations of Authority and Responsibility 2.1.1, 3.3.3, 3.12.4, 3.12.8, 3.12.10, 4.1.2, 4,2,1, 4,2,2, 4,2,3, 4.2.6, 4.2.7, 4.2,10, 4.2,12, 4.2.13, 4,4, 5,2,1, 7.4, 9.4.2, 9.6.4, 9.6,6 Architect's Additional Services and Expenses 2,4, 11.4.1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4 Architect's Administration of the Contract 3.1.3, 4.2, 4,3,4, 4.4, 9.4, 9.5 Architect's Approvals 2.4, 3,1.3, 3.5,1, 3.10.2, 4.2.7 Architect's Authority to Reject Work 3,5,1,4.2.6, 12.1.2, 12,2.1 Architect's Copyright 1.6 Architect's Decisions 4.2.6, 4.2.7, 4.2.11, 4.2, ] 2, 4.2,13, 4.3.4, 4.4.1, 4,4,5, 4.4.6,4.5,6.3,7.3.6,7.3.8,8.1.3,8.3.1,9.2,9.4, 9.5.1, 9.8.4, 9.9.1, 13.5,2, 14.2.2, 14.2.4 Architect's Inspections 4.2.2, 4.2,9, 4.3.4, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 13.5 Architect's Instructions 3.2,3,3.3,1,4.2.6,4.2.7,4.2.8,7.4.1, 12,1, 13.5.2 Architect's Interpretations 4.2.11, 4,2.12, 4,3.6 Architect's Project Representative 4.2.10 Architect's Relationship with Contractor 1.1.2, 1.6, 3.1.3, 3.2,1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 3.7.3, 3.1 U, 3.1 I , 3,12, 3, 16, 3,18, 4, l .2, 4.1.3, 4.2, 4.3.4, 4.4. I , 4.4,7, 5.2, 6.2.2, 7, 8.3. I , 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10,3, 11.3, 11.4.7, 12. 13.4.2, 13.5 Architect's Relationship with Subcontractors 1.1.2, 4.2.3, 4,2,4, 4,2.6, 9.6.3, 9.6.4, 11.4.7 Architect's Representations 9.4.2, 9.5.1, 9.10.1 Architect's Site Visits 4.2.2, 4.2.5, 4,2,9, 4.3,4, 9,4.2, 9.5.1, 9.9.2, 9.10.1, 13.5 Asbestos 10.3.1 Attorneys' Fees 3.18.1,9,10.2, 10.3.3 Award of Separate Contracts 6.1.1, 6.1.2 Award of Subcontracts and Other Contracts for Portions of the Work 5.2 Basic llefinitions 1.1 Bidding Requirements l.l.l, 1,1.7,5.2.1, 11.5,1 Boiler and Machinery Insurance 11.4.2 Bonds, Lien 9,10,2 Bonds, Performance, and Payment 7.3.6.4, 9.6.7, 9.10.3, 11.4.9, l t .5 Building Permit 3.7.1 Capitalization 1.3 Certificate of Substantial Completion AIA Document A201 r"~ - 1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1978, 1987 and 1997 by The American hilt. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. unauthorized reproductipn or distribution of this AIA` Document, or any portion pf it, may result in severe civil and criminal penalties, and will be prpsecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order No.1000319696_1 which expires on 9/4/2008, and is not for resale. User Notes: (27284971 D7) 9.8.3, 9,8.4, 9.8.5 Certificates for Payment 4,2.5, 4.2.9, 9.3.3, 9.4, 9._5, 9.6,1, 9.6.6.9.7.1, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14,2.4 Certificates of Inspection, Testing or Approval 13.5.4 Certificates of Insurance 9.10.2, 11.1,3 Change Orders 1.1.1, 2.4.1, 3.4.2, 3.8,2.3, 3.1 l.l, 3.12,8, 4.2.8, 4.3,4. 4.3.9, 5.2.3, 7.1, 7,2, 7.3, 8,3,1, 9.3.1.1, 9.10.3, 11.4,1.2, 11.4.4, 11.4.9, 12.1.2 Change Orders, Definition of 7.2.1 CHANGES IN THE WORK 3.] 1,4.2.8,7, 8.3.1,9.3,1.1, 11.4.9 Claim, Definition of 4.3.1. Claims and Disputes 3.2.3, 4.3, 4.4, 4.5, 4.6, 6.1.1, 6.3, 7.3.8, 9.3,3, 9,10.4, 10.3.3 Claims and Timely Assertion of Claims 4.6.5 Claims for Additional Cost 3,2,3, 4.3.4, 4.3.5, 4.3.6, 6.1.1, 7.3,8, 10.3.2 Claims for Additional Tirne 3.2.3, 4,3.4, 4.3.7, 6.1,1, 8.3.2, 10.3.2 Claims for Concealed or Unknown Conditions 4.3.4 Claims far Damages 3.2,3, 3,18, 4.3.10, 6.1.1, 8.3.3, 9.5,1, 9.6.7, 10,3,3, Il.l.l,11.4.5,11.4.7,14.1.3,14.2.4 Claims Subject to Arbitration 4,4.1, 4.5.1, 4.6.1 Cleaning Up 3.15, 6.3 Commencement of Statutory Limitation Period 13.7 Cotntnenccment of the Work, Conditions Rclating to 2.2,1, 3.2.1, 3,4.1, 3.7.1, 3,10.1, 3,12.6, 4.3.5, 5,2.1, 5.2.3, 6.2.2, 8.1.2, 8.2.2, 8.3.1, 1 I.1, 1 1.4.1, 11.4.6, l 1.5.1 Commencement of the Work, Definition of 8.1.2 Communications I±acilitating Contract Administration 3,9.1, 4.2.4 Completion, Conditions Relating to 1.6.1, 3.4.1, 3.11, 3,15, 4.2.2, 4.2.9, 8.2, 9,4.2, 9.8, 9,9.1, 9.10, 12.2, 13,7, 14.1.2 COMPLETION, PAYMENTS AND 9 Completion, Substantial 4,2.9, 8.1.1, 8.1.3, 8.2,3, 9.4.2, 9,8, 9.9.1, 9,10.3, 9.10.4.2, 12,2, 13.7 Compliance with Laws 1.6.1, 3,2,2, 3.6, 3.7, 3.12.10, 3,13, 4.1,1, 4.4.8, 4.6.4, 4.6.6, 9.6,4, 10.2.2, I I,l, 11.4, 13.1, 13.4, 13,5.1, 13.5.2, 13.6, 14.1.1, 14.2.1,3 Concealed or Unknown Conditions 4.3.4, 8.3,1, 10.3 Conditions of the Contract 1.1,1, 1.1.7, 6,1.1, 6.1.4 Consent, Written I.6, 3.4.2, 3, 12.8, 3.14.2, 4,1.2, 4.3.4, 4.6.4, 9.3,2, 9.8.5, 9.9,1, 9.10.2, 9, 10.3, 11.4.1, 13.2, 13.4, 2 CONSTRUCTION BY OWNER OIt BY SEPARATE CONTRAC'T'ORS 1.1.4, 6 Construction Change Directive, Definition of 7.3.1 Construction Change Directives l.l.l, 3.12,8, 4.2.8, 4,3,9, 7.1, 7.3, 9.3.1.1 Construction Schedules, Contractor's 1.4.1.2, 3.10, 3,12.1, 3.12.2, 4.3.7.2, 6,1,3 Contingent Assignment of Subcontracts 5.4,14.2,2.2 Continuing Contract Performance 4.3.3 Contract, Definition of 1.1.2 CONTRAC'T', TERMINATION OR SUSPENSION OT+ THE 5.4.1.1, 11.4.9, I4 Contract Administration 3.1.3,4,9.4,9.5 Contract Award and Execution, Conditions Relating to 3.7.1, 3,10, 5.2, 6.I, l 1.1.3, 11,4,6, 11.5.1 Contract Documents, The l.T, 1.2 Contract Documents, Copies burnished and Use of 1.6, 2,2.5, 5.3 Contract Documents, Definition of l.l.l Contract Sum 3.8, 4,3.4, 4.3.5, 4,4,5, 5,2.3, 7.2, 7.3, 7.4, 9.1, 9.4.2, 9.5,1.4, 9,6.7, 9.7, 10.3.2, 11.4.1, 14.2.4, 14.3,2 Contract Sum, Dcfinition of 9.1 Contract Time 4,3.4, 4.3.7, 4,4,5, 5.2.3, 7,2.1.3, 7.3, 7,4, 5.1.1, 8.2, 8.3.1, 9.5,1, 9.7, 10.3,2, 12.1.1, 14.3.2 Contract Time, Dctnition of 8.1.1 CONTRACTOR 3 Contractor, Definition of 3,1, 6.1.2 Contractor's Construction Schedules 1,4.1.2, 3.10, 3,12.1, 3.12.2, 4.3.7.2, 6.1.3 Contractor's Employees Inst. AIA Document A201TM - 1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA` Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 4 reproduction or distribution of this AIA°C Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 1D:25:47 on 01/29/2008 under Order No.1000319696 1 which expires on 914/2008, and is not for resale. - User Notes: (2728497107) 3.3.2, 3,4,3, 3,8.1, 3.9, 3.1$2, 4.2.3, 4.2.6, 10.2, 10.3. 11.1.1, 11.4.7, 14,1, 14.2.1.1, Contractor's Liability Insurance 11.1 Contractor's Relationship with Separate Contractors and Owner's Forces 3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2, 12.2,4 Contractor's Relationship with Subcontractors 1.2,2, 3.3.2, 3.18.1, 3.18.2, S, 9.6.2, 9.6.7, 9.10,2, 1.4.1.2, 11.4.7, t L4.8 Contractor's Relationship with the Architect 1.1.2, 1.6, 3.1,3, 3.2.1, 3.2.2, 3.2.3, 3.3,1, 3.4.2, 3.5.1, 3.7.3, 3. l0, 3.11, 3,12, 3.16, 3.18, 4, I ,2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4,7, 5.2, 6.2.2, 7, 8.3.1, 92, 9.3, 9.4, 9.5, 9,7, 9.8, 9.9, ID.2.6, 10.3, 1 L3, 11.4.7, 12, 13.4.2, 13,5 Contractor's Representations 1.5.2, 3.5.1, 3,12,6, 6.2.2, 8.2.1., 9.3.3, 9,8.2 Contractor's Responsibility for Those Performing the Work 3.3.2, 3.18, 4.2.3, 4.3.8, 53.1, 6.1.3, 6.2, 6.3, 9.5,1, ]0 Contractor's Review of Contract Documents 1.5.2, 3.2, 3.7.3 Contractor's Right to Stop the Work 9.7 Contractor's Right to Terminate the Contract 4.3.10, 14.1 Contractor's Submittals 3.10, 3.11, 3.12, 4.2,7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8.2, 9.8.3, 9.9.1, 9.10.2, 9.10.3, 11.1.3. 11.52 Contractor's Superintendent 3,9, 10.2.6 Contractor's Supervision and Construction Procedures 1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3,3, 6.1.3, 6.2.4, 7.1.3, 7.3.4, 7.3.6, 8.2, ] 0, 12, 14 Contractual Liability Insurance 11.1.1.8, 11.2, 11.3 Coordination and Correlation 1,2, 1.5.2, 3.3.1, 3.10, 3.12,6, 6.1.3, 6.2.1 Copies Furnished of Drawings and Specifications 1.6, 2,2,5, 3.11 Copyrights 1.6, 3.17 Correction of Work 2.3, 2.4, 3.7.4, 4.2.1, 9.4,2, 9.8.2, 9.8.3, 9.9,1, 12.1.2, 12.2, l 3.7.1.3 Correlation and Intent of the Contract Documents 1.2 Cost, Detinition of 7.3.6 Costs 2.4, 3.2.3, 3.7.4, 3,82, 3.15.2, 4.3, 5.4,2, 6.1.1, 6.2.3, 7.3.3.3, 7.3.6, 7.3,7, 7.3.8, 9.10.2, 10.3.2, 10.5, 11.3, 11,4,12,1,12.2.1,12.2.4,13.5,14 Cutting and Patching 6.2.5, 3.14 Damage to Construction of Owner or Separate Contractors 3.14.2, 6.2.4, 9.2.1.5, 10,2.1.2, 10.2.5, 1U.6, 11,1, 11.4, 12,2.4 Damage to the Work 3.14.2,9.9.1,10.2.1,2,10.2.5,10.6,11.4,12.2.4 Damages, Claims for 3.2.3, 3.18, 4.3.10, h.l,l, 8.3.3, 9.5,1, 9.6.7, 10.3,3, 11.1.1,11.4.5,11.4.7,14,1.3,14.2.4 Damages for Delay 6.1.1, 8.3,3, 9,5.1.6, 9.7, 10.3.2 Date of Commencement of the Work, Definition of 8.1.2 Date of Substantial Completion, Definition of 8.1,3 Day, Definition of 8.1.4 Decisions of the Architect 4.2.6, 4.2.7, 4.2.1 1, 4.2.12, 4,2, l 3, 4.3.4, 4.4. I , 4.4.5, 4,4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8,1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9,9, I , 13.5.2, 14.2.2, 14.2.4 Decisions to Withhold Certification 9.4.1, 9.5, 9.7, 14.1.1,3 Defective or Nonconforming Work, Acceptance, Rejection and Correction of 2.3, 2.4, 3.5.1, 4.2,6, 6.2.5, 9.S.1, 9.5.2, 9.6.6, 9,8.2, 9.9.3,9.10.4,12.2.1,13.7.1.3 Defective Work, Detinition of 3,5,1 Definitions 1,1, 2.1.1, 3.1, 3.5.1, 3.12,1, 3.12,2, 3.12.3, 4.1.1, 4.3,1,5,1,6.1.2,7.2.1,7.3.1,7.3.6,8.1, 9.1,9.8.1 Delays and Extensions of Time 3,2,3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2,3, 7.2.1, 7.3.1, 7.4.1, 8.3, 9.S.I, 9.7.1, 10.3.2, 10.6.1, 14.3.2 Disputes 4.1.4,4.3,4.4,4.5,4,6,6.3,7.3.8 Documents and Samples at the Site 3.11 Drawings, Definition of 1.1.5 Drawings and Specifications, Use and Ownership of l.l.l, 1,3,2.2.5,3.11,5.3 Effective Date of Insurance 8.2.2, 1 1.1.2 Emergencies 4.3.5, 10.6, 14,1.1.2 Employees, Contractor's 3.3.2, 3.4.3, 3.8, I , 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, ]l.l.1,11.4.7,14.1,142.1.1 Equipment, Labor, Materials and 1.1.3, 1.1.6, 3.4, 3.5. I , 3.8.2, 3.8.3, 3.12, 3. l 3, 3. l 5.1, 4.2.6, 4.2.7, 5.2.1, 6,2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4, 14,2,1.2 Execution and Progress of the Work AIA Dpeument A201T'" - 1997. Copyright ~+ 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.3. Copyright l.aw and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 1D:25:47 on 01/29/2008 under Qrder No.100D319696 1 which expires on 9/4/2008, and is not for resale. User Notes: (272$497107) I . l .3, 1.2,1, 1.2.2, 2.2.3, 2.2.5, 3, l , 3.3, 3.4, 3.5, 3.7, 3.10, 3.12, 3,14, 4.2.2, 4,2,3, 4.3,3, 6.2.2, 7.1.3, 7.3.4, 8.2, 9.5, 9.9,1, 10.2, 10,3, 12.2, 14,2, 14.3 Extensions of Timc 3.2.3, 4.3.1, 4.3.4, 4,3,7, 4.4.5, 5,2.3, 7.2.1, 7.3, 7.4.1, 9.5.1,9.7.1, 10.3.2, ]0.6,1, 14.3.2 Failure of Payment 4.3.6, 9,5.1.3, 9.7, 9,10.2, 14,1.1.3, 14.2,1.2, 13.6 Faulty Work (See Defective or Nonconforming Work) Final Completion and Final Payment 4,2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4, I , 1 ].4.5, 12.3.1, 13,7, 14.2.4, 14.4.3 Financial Arrangements, Owner's 2.2,1, 13.2.2, 14,1,1.5 Fire and Extended Coverage Insurance 11,4 GENERAL PROVISIONS 1 Governing Law 13.1 Guarantees (See Warranty) Hazardous Materials 10,2.4, 10.3, 10,5 Identification of Contract Documents 1.5.1 identification of Subcontractors and Suppliers 5,2.1 indemnification 3.17, 3.18, 9,10.2, 10.3.3, 10.5, 1 I ,4.1.2, 11.4.7 Information and Services Required of the Owner 2,1.2, 2.2. 3.2,1, 3.12.4, 3,12.10, 4.2.7, 4.3.3, fi.1.3, 6.1.4, 6.2.5, 9.3,2., 9.6.1, 9,6.4, 9.9.2, 9,10.3, 10.3.3, 11.2, 11.4, 13.5,1, 13.5.2, 14.1.1.4, 14.1,4 Injury ur Damage to Person nr Property 4.3.8, 101,10,6 Inspections 3.1.3, 3.3.3, 3,7.1, 4.2.2, 4,2..6, 4.2.9, 9.4.2, 9.8.2, 9.8.3, 9.9.2, 9.10.1. 12.2,1, 13.5 Instructions to $idders 1.1.1 instructions to the Contractor 3.2.3, 3,3.1, 3.8,1, 4.2.8, 5.2,1, 7, 12, 8.2.2, 13.5.2 Insurance 3.18.1,6.1.1,7.3.6,8.2.1,9.3.2,9,8.4,9.9.1,9,10.2, 9.10.5, 11 Insurance, Boiler and Machinery 1 1.4.2 Insurance, Contractor's Liability Insurance, Effective Date of 8.2.2, 1.1.1, 2 Insurance, Loss of Use 11.4.3 Insurance, Owner's Liability 11.2 Insurance, Project Management Protective Liability 11.3 Insurance, Property 10.2,5, 11.4 lnsurance, Stored Materials 9.3.2, 11,4,1.4 INSURANCE AND BONDS 11 lnsurance Companies, Consent to Partial Occupancy 9,9.1, 11.4.1,5 Insurance Companies, Settlement with 11.4.10 Intent of the Contract Documents I ,2,1, 4.2.7, 4.2, 12, 4.2.13, 7,4 Interest 13.6 Interpretation 1.2.3, 1.4, 4,1,1, 4.3.1, 5.1, 6.1.2, 8.1.4 interpretations, Written 4,2, 11, 4.2.12, 4.3,6 Joinder and Consolidation of Claims Required 4,6,4 Judgment on Final Award 4,6.6 Labor and Materials, Equipment 1.1.3, 1,1.6, 3.4, 3.5,1, 3,8.2, 3.8.3, 3,12, 3.13, 3,15.1, 42.6, 4.2,7, 5,2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1,3. 9.10.2, 10,2,1, 10.2.4, 14,2,1.2 Labor Disputes 8.3.1 Laws and Regulations I.6, 3.2.2, 3.6, 3.7, 3.12.10.3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, 9,9,1, 10.2,2, I l.l, 11.4, 13,1, 13.4, 13,5.1, 13.5.2, 13.6, 14 Liens 2.1.2, 4.4,8, 8.2.2, 9.3.3, 9,10 Limitation on Consolidation or Joinder 4.6.4 Limitations, Statutes of 4,6.3, 12.2.6, 13.7 Limitations of Liability 2.3, 3,2.1, 3.5.1, 3.7.3, 3.12.8, 3.12,10, 3.17, 3,18, 4.2.6, 4,2,7, 4.2.12, h.2,2, 9,4,2, 9.6.4, 9.6.7, 9.10,4, 10.3.3, 10,2.5, 11.1.2, 11,2,1, 11.4.7, 12.2.5, 13.4.2 Limitations of Time 2.1.2,2.2,2.4,3.2.1,3,7.3,3.10,3.11,3.12.5,3.15.1, 4,2,7, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1, 9,3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9,9, 9.10, 11.1.3, 11.4.1.5, 11.4.6, 1 1.4,10, 12.2, 13,5, 13.7, 14 Loss of Use Insurance 11,4.3 Material Suppliers 1.6,3.12.1,4.2,4,4.2.6,5.2.1,9.3,9.4.2,9.6,9.10.5 Materials, Hazardous 10,2.4, 10.3, 10,5 Init. AIA document A2111 TM -1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® pocument is protected by u.S. Copyright Law and International Treaties. lJnauthorized s reproduction or distribution of this AIA00 pocument, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/20D8 under Order No.1000319696 1 which expires on 9/4/2008, and is not for resale. User Notes: (2728497107) Materials, Labor, Equipment and 1.1.3, 1.1.6, 1.6.1, 3,4, 3.5.1, 3,8.2, 3.8,23, 3,12, 3,13, 3.15.1, 4.2.6, 4.2,7, 5.2.1, h,2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10,2, 10.2.1, 10.2.4, 14,2.1.2 Means, Methods, Techniques, Sequences and Procedures of Construction 3.3.1, 3.12.10, 4.2.2, 4.2,7, 9.4.2 Mechanic's Lien 4,4,8 Mediation 4.4.1, 4,4.5, 4.4.6, 4.4,8, 4.5, 4.6,1, 4.6.2, 8,3.1, IU.S Minor Changes in the Work 1.1.1, 3,12.8, 4.2.8, 4,3,6, 7.1, 7.4 MISCELLANEOUS PROVISIONS 13 Modifications, Definition of l.l.i Moditications to the Contract 1.1,1, 1.1.2, 3,7.3, 3.11, 4.1,2, 4.2.1, 5.2,3, 7, 8,3,1, 9.7, 10.3.2, l 1.4,1 Mutual Responsibility fi,2 Nonconforming Work, Acceptance of 9.6.6, 9.9.3, 12.3 Nonconforming Work, Rejection and Correction of 2.3, 2.4, 3.5.1, 4.2.Ci, 6.2.5, 9.5.1, 9,8.2, 9.9.3, 9.10.4, 12.2.1. 13.7.1.3 Notice 2.2.1, 2.3, 2.4, 3.2.3, 3.3.1, 3.7.2, 3,7.4, 3.12.9, 4.3, 4.4,8, 4.6.5, 5.2,1, 8.2.2, 9.7, 9,10, 10.2,2, l 1.1.3, 11.4.6,12,2.2,12.2.4,13.3,1.3.5,1,13.5.2,14.1,14.2 Notice, Written 2.3, 2.4, 3.3, I , 3.9, 3.12,9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2,1, 8.2.2, 9,7, 9.10, 10,2,2, IU.3, 1 1,1.3, 11.4.6, 12.2.2, 12,2.4, 13.3, 14 Notice of Testing and Inspections 13.5.1, 13.5? Notice to Proceed 8.2.2 Notices, Permits, Fees and 2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2 Observations, Contractor's 1,5.2, 3.2, 3.7,3, 4.3.4 Occupancy 2.2.2, 9,6.6, 9.8, 11.4.1.5 Orders, Written I.l.l, 2.3, 3.9, 4,3.6, 7, 8.2,2, 11.4.9, 12.1, 12.2, 13.5.2, 14.3,1 OWNER 2 Owner, Definition of 2.1 Owner, Information and Services Required of the 2.1.2, 2,2, 3,2.1, 3.12.4, 3.12.10, 4,2,7, 4.3.3, 6.1.3, 6.1.4, 6.2,5, 9.3.2, 9,6.1, 9.6.4, 9,9.2, 9.10.3, 10.3.3, 11.2,11.4,13.5.1,13.5.2,14.1.1.4,14.1.4 Owner's Authority l .6, 2.1. I, 2.3, 2,4, 3.4.2, 3,8.1, 3.12,10, 3,14,2, 4,1.2, 4.1.3, 4.2.4, 4.2.9, 4.3.6, 4.4,7, 5.2.1, 5.2.4, 5,4.1, 6.1, 6.3, 7.2.1, 7,3.1, 8.2.2, 8.3.1, 9.3,1, 9,3,2, 9.5.1, 9,9.1, 9.10,2, 10.3.2, 11.1.3, t 1,3,1, l 1,4.3, 11.4,10, 12,2.2, 12,3,1, 13.2.2, 14.3, 14,4 Owner's Financial Capability 2.2,1, 13.2.2, 14.1.1.5 Owner's Liability lnsurance 11,2 Owner's Loss of Use lnsurance 1 1.4.3 Owner's Relationship with Subcontractors 1.1.2, 5.2, 5.3, 5,4, 9.6.4, 9.10.2, 14.2,2 Owner's Right to Carry Out the Work 2.4, 12,2.4. 14.2.2.2 Owner's Right to Clean Up fi.3 Owner's Right to Perform Construction and to Award Separate Contracts fi.l Owner's Right to Stop the Work 2.3 Owner's Right to Suspend the Work l 4, 3 Owner's Right to Terminate the Contract 14.2 Ownership and Use of Drawings, Specifications and Other Instruments of Service l.l,l, 1.6,2.2.5,3.2.1,3.11.1,3.17.1,4.2.12,5,3 Partial Occupancy or Use 9.6.6, 9.9, 11.4,1.5 Patching, Cutting and 3.14, fi.2,S Patents 3.17 Payment, Applications fnr 4.2.5, 7.3.8, 9.2, 9.3, 9,4, 9.5.1, 9.6,3, 9,7.1, 9.8,5, 9.10.1, 9.10.3, 9.10.5, 11.1.3, 14.2.4, 14.4.3 Payment, Certificates for 4.2.5, 4.2.9, 9.3,3, 9.4, 9.5, 9.6.1, 9.6.6, 9,7.1, 9.10.1, <). 10.3, 13.7, 14,1.1.3, 14.2.4 Payment, Failure of 4.3.6, 9,5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6 Payment, Final 4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 1 l .1.2, 11,1.3, 1 l .4. I , 11.4.5, 12,3,1, 13.7, 14.2,4, 14.4.3 Payment Bond, Performance Bond and 7.3.6.4, 9.6.7, 9,10.3, 11.4.9, 11.5 Payments, Progress 4.3,3, 9.3, 9.h, 9,8.5, 9,10.3, 13,6, 14,2.3 PAYMENTS AND COMPLETION 9 Payments to Subcontractors 5,4.2, 9.5.1.3, 9,6.2, 9.6.3, 9,6.4, 9.6.7, 11.4.8, 14.2,1.2 PCB 10,3,1 Init. AIA Document A201 r"' - 1997. Copyright ~ 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA°0 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 7 reproduction or distribution o1 this AIA' Document, ar any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the j maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/200$ under Ordar No.10D0319696 1 which expires on 9/4/2008, and is not for resale. U9er Notes: (2726497107) Performance Bond and Payment Bond 7.3.6.4, 9.6.7, 9.10,3, 11.4.9, 11,5 Permits, Fees and Notices 2.2,2, 3.7, 3. l3, 7.3,6.4, 10.2.2 PERSONS AND PROPERTY, PROTECTION OF 10 Polychlorinated Biphenyl 10.3.1 Product Data, Definition of 3.12.2 Product Data and Samples, Shop Drawings 3.11, 3.12, 4.2.7 Progress and Completion 4,2.2, 4.3.3, 8.2, 9.8, 9.9.1, 14.1.4 Progress Payments 4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3 Project, Definition of the 1.1,4 Project Management Protective Liability Insurance 11.3 Project Manual, Definition of the 1.1.7 Project Manuals 2.2,5 Project Representatives 4,2.10 Property Insurance 10.2.5, 11.,4 PROTECTION OF PERSONS AND PROPERTY 10 Regulations and Laws l .h, 3.2,2, 3.6, 3.7, 3.12.10, 3,13, 4.1.1, 4.4.8, 4.6, 9.6,4,9.9.1, 10.2.2, 11.1, 11.4, 13,1, 13.4, 13.5.1, 13.5.2, 13,6, 14 .Rejection of Work 3.5.1, 4.2.6, 12.2.1 Releases and Waivers of Liens 9.10.2 Representations 1.5.2, 3.5.1, 3.12.6, 6.Z.2, 8.2.1, 9.3,3, 9,4,2, 9.5,1, 9.8.2, 9,10.1 Rcpresentatives Z.1.1, 3.1.1, 3.9, 4.1.1, 4,2,1, 4.2.10, S.l.l, 5,1.2, 13.2.1 Resolution of Claims and Disputes 4.4, 4,5, 4.6 Responsibility for Those Performing the Work 3.3.2,3.18,4.2.3,4.3.8,5.3.1,6.1.3.6.2,6.3,9.5.1, 10 Retainage 9.3.1,9.6.2,9.8.5,9.9.1,9.10.2,9.10.3 Review of Contract Documents and Field Conditions by Contractor 1,5,2, 3.2, 3.7,3, 3.12.7, 6.1,3 Review of Contractor's Submittals by Owner and Architect 3.10.1, 3.10.2, 3.l 1, 3.12, 4,2, 5.2, (i,1.3, 9.2, 9,8.2 Review of Shop Drawings, Product Data and Samples by Contractor 3.12 Rights and Remedies 1.1.2, 2.3, 2,4, 3,5.1, 3.15.2, 4,2.6, 4.3,4, 4.5, 4.6, 5.3, 5,4, 6.1, 6.3, 7,3.1, 8.3, 9.5.1, 9.7, 10.2.5, 10.3, 12,2,2, 12.2.4, 13.4, 14 Royalties, Patents and Copyrights 3.17 Rules and Notices For Arbitration 4.6.2 Safety of Persons and Property 10.2,10.6 Safety Precautions and Programs 3.3.1, 4,2,2, 4.2.7, 5.3.1, 10,1, 10.2, 10.6 Samples, Definition of 3.12.3 Samples, Shop Drawings, Product Data and 3. l 1, 3.12, 4.2.7 Samples at the Site, Documents and 3.11 Schedule of Values 9.2, 9.3.1 Schedules, 1.4.1.2, 3.10, 3.Construction 12. I , 3,12.2, 4.3.7.2, 6.1.3 Separate Contracts and Contractors 1.1.4, 3.12,5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6, 8.3.1, 11.4.7, 12.1,2, 12.2.5 Shop Drawings, Definition of 3.12.1 Shup Drawings, Product Data and Samples 3.11, 3.12, 4.2.7 Site, Use of 3.13, 6.1.1, 6.2.1 Site Inspections 1,2,2, 3.2.1, 3.3.3, 3,7.1, 4.2, 4.3.4, 9.4.2, 9.10.1, 13.5 Site Visits, Architect's 4.2.2,4.2.9,4.3,4,9.4.2,9.5.1,9.9.2,9.10.1, 13.5 Special Inspections and Testing 4.2.6, 12,2.1, 13.5 Specifications, Definition of the 1.1.6 Specifications, The 1.1.1, 1.1.6, 1.1.7, 1.2.2, 1, h, 3.1 l , 3.12.10, 3.17 Statute of Limitations 4.6.3, 12.2.6, 13.7 Stopping the Work 2.3, 4.3.6, 9.7, 10.3, 14.1 Stored Materials 6.Z.1, 9,3,2, 10.2.1.2, 10.2.4, t 1.4.1.4 Subcontractor, Definition of 5.1.1 SUBCONTRACTORS Itllt. AIA Document A201 TM - 1997. Copyright ©1911, 1975, 1918, 1925, 1937, 1951, 1958, 1961, 1983, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAQO Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAO° nocument, ar any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25'47 on 01!29/2008 under Order No.1D00319696_1 which expires on 9/4/20D8, and is not for resale. User Notes: (2726497107) 5 Subcontractors, Work by 1.2.2, 3,3.2, 3.12.1, 4.2,3, 5,2.3, 5.3, 5.4, 9,3.1.2, 9.6,7 Subcontractual Relations 5.3, 5.4, 9.3.1,2, 9.6, 9.10 10,2.1, 11.4.7, 11,4.8, 14.1, 14.2.1, 14.3.2 Submittals 1.6, 3.10, 3,11, 3.12, 4.2.7, 5,2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8, 9.9.1, 9.10.2, 9,10.3, 11.1.3 Subrogation, Waivers of 6.1.1, 11.4,5, 11.4.7 Substantial Completion 4,2.9, 8.1.1, 8.1,3, 8.2.3, 9.4.2, 9,8, 9.9.1, 9.10,3, 9.10.4.2, 12.2, 13.7 Substantial Completion, Definition of 9,8.1 Substitution of Subcontractors 5.2.3, 5.2.4 Substitution of Architect 4.1.3 Substitutions of Materials 3.4.2, 3.5.1, 7.3.7 Sub-subcontractor, Definition of 5.1.2 Subsurface Conditions 4.3,4 Successors and Assigns 13.2 Superintendent 3.9,10.2.6 Supervision and Construction Procedures 1.2.2, 3.3, 3.4, 3,12.10, 4.2.2, 4,2,7, 4.3.3, f>.1.3, 6.2.4, 7.1.3, 7.3.6, 8.2, 8.3.1, 9.4, 2, ! 0, l 2, 14 Surety 4,4,7, 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14,2.2 Surety, Consent of 9.10.2, 9.10.3 Surveys 2.2.3 Suspension by the Owner for Convenience 14.4 Suspension of the Work 5.4.2,14,3 Suspension or Termination of the Contract 4.3.6, 5.4, I , I , 11.4.9, 14 Taxes 3.6, 3,8,2.1, 7.3.6.4 Termination by the Contractor 4.3.10, 14.1 Termination by the Owner for Cause 4.3.10, 5.4.1.1, 14.2 Termination of the Architect. 4.1.3 Termination of the Contractor 14,2,2 TERMINATION OR SUSPENSION OF THE CONTRACT 14 Tests and Inspections 3.1.3, 3.3.3, 4.2,2, 4,2.6, 4.2.9, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 10.3.2, 11,4,1,1, 12.2.1,13.5 TIME Time, Delays and Extensions of 3.2,3, 4.3.1, 4.3.4, 4.3,7, 4.4.5, 5,2.3, 7.2.1, 7.3.1, 7.4.1, $,3, 9.5,1, 9.7.1, 10.3,2, 10.6.1, 14.3.2 Time Limits 2.1.2,2.2,2.4,3,2,1,3.7.3,3.10,3.11,3.12.5,3.15.1, 4.2, 4.3, 4.4, 4,5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2,9.2,9.3.1,9.3.3,9.4.1,9.5,9.6,9.7,9.8,9.9, 9.10, 11.1.3, I I ,4.1.5, 11.4.6, 11.4.1 D, l 2.2, 13.5, 13.7, 14 Time Limits on Claims 4.3.2, 4.3,4, 4,3,8, 4.4, 4.5, 4.6 Title to Work 9.3.2, 9.3.3 UNCOVERING AND CORRECTION OF WORK 12 Uncovering of Work 12.1 Unforeseen Conditions 4.3,4, 8.3.1, 10.3 Unit Prices 4.3.9, 7.3.3.2 Use of Documents l.l.l, 1.6, 2.2,5, 3,1.2.6, 5.3 Use of Site 3.13, 6.1.1, 6.2.1 Values, Schedule of 9.2, 9.3.1 Waiver of Claims by the Architect 13.4.2 Waiver of Claims by the Contractor 4.3.10, 9,10.5, 11.4.7, 13.4.2 Waiver of Claims by the Owner 4.3.10, 9.9.3, 9.10.3, 9.10.4, 11.4.3, 1 I ,4,5, 1 l .4.7, 12,2,2, 1, 13.4.2, 14.2.4 Waiver of Consequential Damages 4,3,10, 14.2.4 Waiver of Liens 9.10.2, 9.10.4 Waivers of Subrogation 6.1.1, 11.4.5, 11,4,7 Warranty 3.5, 4,2,9, 4.3.5.3, 9.3,3, 9.8.4, 9.9.1, 9.10.4, 12.2.2, 13.7.1,3 Weather Delays 4.3.7,2 Work, Definition of 1.1,3 Written Consent Init. AIA Document A2o1~'" -1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1961, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA°D Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 9 reproduction or distribution of this AIA00 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2D08 under Order No.1000319696_t which expires on 9/4/2008, and is not for resale. User Notes: (2728497107) 1.6, 3.4.2, 3.12,8, 3.14.2, 4.1,2, 4.3.4, 4.6,4, 9.3.2, 9.8.5, 9,9.1, 9.10.2, 9.10,3, 11.4.1, 13.2, 13.4.2 Written Interpretations 4.2.1.1,4.2,12,4.3.6 Written Nutice 2.3, 2.4, 3.3.1, 3,9, 3,12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2,2, 9.7, 9.10, 10,2.2, 10.3, l 1.1.3, 11.4.6, 12.2,2, 12.2.4, 13.3, 14 Written Orders 1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2, 13.5.2, 14.3.1 Inst. AIA Document A2o1'*' -1997. Copyright m 1911, [915, 1918, X925, 1937, 1951, 1958, 1961, 19fi3, 1966, 197D, 1976, 1987 and 1997 by The American Institute o(Architects. All rights reserved, WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 1 Q reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent passible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Drdar No.100D319696 1 which expires on 9/4/2008, and is not for resale. User Notes: (2728497107) ARTICLE 1 GENERAL PROVISIONS § 1.1 BASIC DEFINRIONS § 1.1.1 THE CONTRACT DOCUMENTS The Contract Documents consist of the Agreement hetween Owner and Contractor (hereinafter the Agreement), Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (l) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect. Unless specifically enumerated in the Agreement, the Contract Documents do not include other documents such as bidding requirements (advertisement or invitation to bid, Instructions to $idders, sample forms, the Contractor's bid or portions of Addenda relating to bidding requirements), The Contract Documents do include the Standard Form Agreement Between Owner and Architect with the Standard Form of Architect's Services: Design and Contract Administration, AIA Document B 141, 15th Edition, 1997, and the Supplementary Fvrm to the AIA Document $141, 15th Edition, 1997 for the purposes of determining the obligations of the Architect far the Project. § 1.1.2 THE CONTRACT The Contract Documents form the Contract for Construction, The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Contractor, (2) between the Owner and a Subcontractor or Sub-subcontractor, (3) between the Owner and Architect or (4) between any persons or entities other than the Owner and Contractor. The Architect shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect's duties. § 1.1.3 THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment. and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. § 1.1.4 THE PROJECT The Project is the total construction of which the Work performed under the Cvntract Documents may be the whole yr a part and which may include construction by the Owner or by separate contractors. § 1.1.5 THE DRAWINGS The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. § 1.1,6 THE SPECIFICATIONS The Specifications arc that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. § 7.1.7 THE PROJECT MANUAL The Project Manual is a volume assembled for the Work which may include the bidding requirements, sample forms, Conditions of the Contract and Specifications. 1.1.8 Approved When the words "approved," "satisfactory," "proper" or "as directed" arc used, including derivatives thereof, approval by the Architect shall be required. 1.1.9 Provide When the word "provide" is used, including derivatives thereof, it shall mean to properly fabricate, complete, transport, deliver, install, erect, construct, test and furnish all labor, materials, equipment, apparatuses, appurtenances, and all items and expenses necessary to properly complete in place, ready fvr operation or use under the terms of the Specifications. Init. AIA Document A2t)1 TM - 1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1851, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 11 reproduction or distribution of this AIA'D Document, ar any portion oT it, may result in severe civil and criminal penalties, and will he prosecuted to the / maximum extent possible under the law. this document was produced by AIA software at 10:25:47 on 01/29/2008 under Order No.1000319696_1 which expires on 9/4/2008, and is not far resale. Usar Notes: (2728497107) 1.1.10 Addenda Addenda arc written or graphic instruments issued prior to the execution of the Contract Documents which modify or interpret the bidding documents, including the Drawings and the Specifications, by additions, deletions, clarifications or corrections. 1.1,11 Bulletins Bulletins are written or graphic instruments issued by the Architect after the execution of the Contract Documents which request a proposal from the Contractor that, if accepted by the Owner, will cause the execution of a Change Order to modify the Contract Documents, 1.1.12 Knowledge The terms "knowledge," "recognize" and "discover," including derivatives thereof, and similar terms in the Contract Documents, as used in reference to the Contractor, shall be interpreted to mean that which the Contractor knows (or should know), recognizes (or should recognize) and discovers (or should discover) in exercising the care, skill, and diligence required by the Contract Documents. Analogously, the expression "reasonably inferable," and similar terms in the Contract Documents, shall be interpreted to mean reasonably inferable by a contractor familiar with the Project and exercising the care, skill and diligence required of the Contractor by the Contract Documents. 1.1.13 Persistently The expression "persistently fails," and similar terms in the Contract Documents, as used in reference to the Contractor, shall be interpreted to mean any combination of acts or omissions that causes the Owner or thr Architect to reasonably conclude that the Contractor will not complete the Work within the Contract Time, for the Contract Sum or in substantial compliance with the requirements of the Contract Docmments. § 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS § 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. With regard to the construction of the Project, in the event of inconsistencies within or between parts of the Contract Documents, or between the Contract Documents and applicable standards, codes, and ordinances, the Contractor shall (i) provide the better quality or greater quantity of the Work or (ii) comply with the more stringent requirement; either or bath in accordance with the Architect's interpretation. The terms and conditions of this Subparagraph 1.2.1, however, shall not relieve the Contractor of any of the obligations set forth in Paragraphs 3.2 and 3.7. .1 On the Drawings, given dimensions shall take precedence over scaled measurements, and large scale drawings over small scale drawings, .2 Before ordering any materials or beginning any Work, the Contractor and each Subcontractor shall verity measurements at the Project site and shall be responsible for the correctness of such measurements. No extra charge or compensation will be allowed on account of differences between actual dimensions and the dimensions indicated in the Drawings. Any difference which may be found shall be submitted to the Architect for resolution before proceeding with the Work. Init. AIA Document A201T"" - 1997. Copyright ©1911, 19t5, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAe nocument is protected by U.S. Copyright Law and International Treaties. Unauthorized 1 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted !o the ~ maximum extent passible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2D08 under Order No.1DD0319696 1 which expires on 9/4/2008, and is not for resale. - User Notes: (2728497107) .3 If a minor change in the Work is found necessary due to actual field conditions, the Contractor shall submit reasonably detailed drawings of such minor change to the Architect for approval before making said change. With regard to all other matters, including Changes to the Scope of the Work, the GMP- including the Cost of the Work-- the responsibility for assuring that the Project conforms with applicable rules, laws, regulations and ordinances, and the right of the Contractor, as Contractor or Construction Manager, to appeal claims, including claims for changes in the Work unrelated to changes in the Scope of Work, and in the event of inconsistencies among the Contract Documents, the Contract Documents shall be given precedence in the following order: .1 Exhibit A to Amendment 1 to AIA Document A121 CMc-2003 .2 Amendment 1 to the AIA A121 Document CMc-2003 .3 AIA Document A121 CMc-2003 .Q AlA Document A201-1997. § 1,T.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. § 1.2.3 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings, .1 Whenever a product is specified in accordance with a Federal Specification, an ASTM Standard, an American National Standards Institute Specification, or other Association Standard, the Contractor shall present an affidavit from the manufacturer when requested by the Architect or required in the Specifications, certifying the product complies with the particular Standard or Specification. When requested by the Architect or specified, support test data shall be submitted to substantiate compliance. § 1.3 CAPITALIZATION § 1,3,1 Terms capitalized in these General Conditions include those which are (1) specifically defined, 12) the titles of numbered articles or (3) the titles of other documents published by the American Institute of Architects. § 1.4 INTERPRETATIQN § 1.4.1 In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. § 1.5 EXECUTION OF CONTRACT DOCUMENTS § 1.5.1 The Contract Documents shall be signed by the Owner and Contractor. If either the Owner or Contractor or both do not sign all the Contract Documents, the Architect shall identify such unsigned Documents upon request. § 1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. Prior to the execution of the Contract Documents, the Contractor and each Subcontractor shall evaluate and satisfy for themselves as to the conditions and limitations under which the Work is to be performed, including, without limitation, (i) the location, condition, layout, and nature of the Project site and surrounding areas, (ii) generally prevailing climatic conditions, (iii) anticipated labor supply and costs, (iv) availability and casts of materials, tools, and equipment, and (v) other similar issues. The Owner assumes no responsibility or liability for the physical condition or safety of the Project site or any improvements located on the Project site. Except as set forth in Paragraph 10.3, the Contractor shall he solely responsible for providing a safe place for the performance of the Work. The Owner shall not be required to make any adjustments in Init. AIA Document A201*M - 1997. Copyright c9 1911, 1915, 1918,.1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA00 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 1 S reproduction ar distribution of this AIA® Documenl, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29l2D08 under Order No.1D00319696 1 which expires on 9/4/2DO8, and is not for resale. Uaer Notes: (2728497107) tither the Contract Sum or the Contract Time in connection with any failure by the Contractor or any Subcontractor to have complied with the requirements of this Subparagraph 1.5,2. § 1.6 OWNERSHIP AND USE bF DRAWINGS, SPECIFICATIONS AND QTHER INSTRUMENTS bF SERVICE § 1.6.1 The Drawings, Specifications and other documents, including those in electronic form, prepared by the Architect and the Architect's consultants are Instruments of Service through which the Work to be executed by the Contractor is described. The Contractor may retain one record set. Neither the Contractor nor any Subcontractor, Sub-subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings, Specifications and other documents prepared by the Architect or the Architect's consultants, and unless otherwise indicated the Architect and the Architect's consultants shall be deemed the authors of them and will retain all common law, statutory and other reserved rights, in addition to the copyrights. Ali copies of Instruments of Service, except the Contractor's record set, shall be returned or suitably accounted for to the Architect, on request, upon completion of the Work. The Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants, and copies thereof furnished to the Contractor, are for use solely with respect to this Project. They are not to be used by the Contractor or any Subcontractor, Sub-subcontractor or material or equipment supplier on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner, Architect and the Architect's consultants. The Contractor, Subcontractors, Sub-subcontractors and material or equipment suppliers are authorized to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants appropriate to and for use in the execution of their Work under the Contract Documents. All copies made under this authorization shall bear the statutory copyright notice, if any, shown an the Drawings, Specifications and other documents prepared by the Architect and the. Architect's consultants. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Architect's or Architect's consultants' copyrights or other reserved rights. ARTICLE 2 OWNER § 2.1 GENERAL § 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. .lames Goehrung, pirector of Facility Services and Larry Watson, Gallatin County, arc hereby designated respectively by the Owners as the Owner's Designated Representative and the Owner's Construction Representative and are authorized to act on behalf of [he Owner, unless a new representative is subsequently designated in writing by the Owners. § 2,1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information necessary and relevant fc7r the Contractor to evaluate, give notice of or enforce mechanic's lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner's interest therein. § 2.2 INFORMATION AND SERVICES REQUIRED OF THE pWNER § 2.2.1 The Owner shall, at the written request of the Contractor, prior to commencement of the Work and thereafter, furnish to the Contractor reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Contract. Furnishing of such evidence shall he a condition precedent to commencement or continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial arrangements without prior notice to the Contractor. § 2.2.2 Except for permits and fees, including those required under Section 3.7.1, which are the responsibility of the Contractar under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. § 2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site. Notwithstanding the above, information furnished by the Owner regarding surveys, subsurface investigation reports, soil borings, utility locates and other material of a similar nature is for general information only and is not a guarantee of the completeness or accuracy of such information, unless specifically noted otherwise herein. Contractor shall verify all existing grades, conditions and dimensions of AIA document A201T" -1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WAnNING: This AIAs Document is protected by U.S. Copyright Law and International Treaties. Unauthorized ~ 4 reproduction or distribution of this AIA~O Document, or any portion of ii, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Qrder No.1000319696_.1 which expires on 9/4/2008, and is not for resale. User Notes: (2728497107) existing physical conditions and structures and shall simultaneously report any inconsistencies in writing to the Owner and Architect. Contractor shall establish all lines and levels required to execute the Work and shall bear all costs involved, and shall be responsible for their accuracy and maintenance. The Contractor shall exercise proper precautions relating to the safe performance of the Work. § 2,2.4 Information or services required of the Owner by the Contract Documents shall be furnished by the Owner with reasonable promptness. Any other information or services relevant to the Contractor's performance of the Work under the Owner's control shall be furnished by the Owner after receipt from the Contractor of a written request for such information or services. § 2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will be furnished, free of charge, such copies of Drawings and Project Manuals as are reasonably necessary for execution of the Work. § 2.3 OWNER'S RIGHT TO STOP THE WORK § 2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Section 12.2 ar persistently fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Section 6.1.3. § 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK § 2,4.1 if the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within aseven-day period after receipt of written notice from the Owner to commence and continue cat•rection of such default or neglect with diligence and promptness the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and compensation for the Architect's additional services made necessary by such default, neglect or failure. Such action by the Owner and amounts charged to the Contractor are both subject to prior approval of the Architect. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Cvntractor shall pay the difference to the Owner. 2.S 1E.xtent of Owner Rights 2.5.1 The rights stated in this Article 2 and elsewhere in the Contract Documents are cumulative and not in limitation of any rights of the Owner (i) granted in the Contract Documents, (ii) at law or (iii) in equity. 2.5.21n no event shall the Owner have control over, charge of, or any responsibility for construction means, methods, techniques, sequences, or procedures or for safety precautions and programs in connection with the Work, notwithstanding any of the rights and authority granted the Owner in the Contract Documents. ARTICLE 3 CONTRACTOR § 3.1 GENERAL § 3.1.1 The Contractor is the person ar entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number, The term "Contractor" means the Contractor or the Contractor's authorized representative, § 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents. § 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. Init. '41'4 Document A201 TM -1997. Copyright ©1911, 1915, 191$, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 1 reproduction or distribution of this AIA"" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/200$ under Order No.1000319696 1 which expires on 9/4/2008, and is not for resale. - User Notes: (272$497107) § 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR § 3.Z.1 The Contractor shall study and compare the Contract Documents with each other, and with the information furnished by the Owner pursuant to Subparagraph 2.2.3, and shall simultaneously report to the Architect and the Owner any discovered errors, inconsistencies or omissions within a reasonable time of the Contractor's discovering the same. The Contractor shall not be liable to the Owner or Architcct for damages resulting from errors, inconsistencies or omissions in the Contract Documents unless the Contractor rccognized such error, inconsistency or omission and failed to report it to the Architcct and the Owner. If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Architect and the Owner, the Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate amount of the attributable cost for correction. .1. The exactness of grades, elevations, dimensions, or locations given on any Drawings issued by the Architect, or the work installed by other contractors, is not guaranteed by the Architect or the Owner. .2 The Contractor shall, therefore, satisfy itself as to the accuracy of all grades, elevations, dimensions, and locations. In all cases of interconnection of its Work with existing or other work, the Contractor shall verify at the site all dimensions relating to such existing or other work, Any errors due to the Contractor's failure to so verify all such grades, elevations, dimensions, or locations shall be promptly rectitied by the Contractor without any additional cost to the Owner. § 3.2.2 Any design errors or omissions noted by the Contractor during this review shall be reported promptly to the Architect, but it is rccognized that the Contractor's review is made in the Contractor's capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the Contract Documents. 'I'hc Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes ordinances, building codes, and rules and regulations, but any nonconformity discovered by or made known to the Contractor shall be reported promptly to the Architect. § 3.2.3 If the Contractor believes that additional cost or time is involved because of clarifications or instructions issued by the Architect in response to the Contractor's notices or requests for information pursuant to Sections 3.2.1 and 3.2.2, the Contractor shall make Claims as provided in Sections 4.3.6 and 4.3,7. If the Contractor fails to perform the obligations of Sections 3.2.1 and 3.2,2, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations. The Contractor shall not be liable to the Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents or for differences between field measurements or conditions and the Contract Documents unless the Contractor recognized such error, inconsistency, omission or difference and knowingly tailed to report it to the Architcct. § 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES § 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specitic instructions concerning these matters, [f the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. If the Contractor is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Contractor, the Owner shall be solely responsible for any resulting loss or damage. § 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's emplvyecs, Subcontractors and their agents and employees, and any entity or other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. AIA Document A201 T"" -1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 195$, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIAQO Document is protected qy U.S. Copyright Law and International Treaties. Unauthorized 16 reproduction or distribution of this AIA`" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Qrdor No.1000319696 1 which expires on 9/4/2008, and is not for resale. User Nptes: (2728497107) § 3.3.3 The Contractar shall he responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. § 3.4 LABOR AND MATERIALS § 3.4,1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. § 3.4,2 The Contractar may make substitutions only with the consent of the Owner, after evaluation by the Architect. and in accordance with a Change Order. § 3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 3.4.4 The Cantractor shall give employment preference to bona tide residents of Montana, as defined in ~ 18-2-401, M.C.A., in the performance of the Work and shall pay the standard prevailing rate of wages, including fringe benefits for health and welfare, and pension contributions and travel allowance provisions in effect and applicable to the county or locality in which the Work is being performed. .1 The Montana Commissioner of Labor and Industry has established the standard prevailing rate of wages in accordance with ~§ 18-2-401 and 18-2-402, M.C.A., a copy of which, entitled Montana Prevailing Wage Rates, is provided in the Project Manual and is incorporated as if fully set forth herein. .2 The Contractor shall classify all workers in the project in accordance with the Montana Prevailing Wage Rates. In the event the Contractor is unable to classify a worker in accordance with these wage rates, he shall contact the Department of Labor and Industry, Labor Standards Division, Capitol Station, Hefena, Montana 59620, far a determination of the prevailing wage rate w be paid that particular worker. The Contractar shall be responsible for obtaining wage rates for all workers in the Project prior to their performing any Work on the Project. § 3.5 WARRANTY § 3.5.1 The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will he free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work oat conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy far damage or defect caused by abuse, modifications not executed by the Contractar, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Architect, the Contractar shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 3.5.2 The Contractor agrees to assign to the Owner at the time of final completion of the Work, any and all manufacturer's warranties relating to materials and labor used in the Work and further agree to perform the Work in such manner sa as to preserve any and all such manufacturer's warranties, § 3.6 TAXES § 3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor which are legally enacted when bids are received or negotiations concluded, whether or oat yet effective or merely scheduled to go into effect. Init. AIA Document A201TM - 1997. Copyright ~ 1911, 1915, 1918, 1925, 1937, 1951, 1956, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA°0 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 1~ reproduction or distribution o1 this AIA°p pocument, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law_ This documont was produced by AIA software at 10:25:47 an 01/29/20D8 under Ordar No.1000319696 1 which expires on 9/4/2008, and is not for resale. - User Notes: (2728497107) § 3.7 PERMITS, FEES AND NOTICES § 3.7.1 Except as set forth in Subparagraph 2.2.2, the Contractor shall secure, pay tor, and, as soon as practicable, furnish the Owner with topics or certificates of all permits and tees, licenses, and inspections necessary for the proper execution and completion of the Work, including, without limitation, all building permits. All connection charges, assessments or inspections fees as may be imposed by any municipal agency or utility company are included in the Contract Sum and shall be the Contractor's responsibility. Any charge that may be assessed against the Contractor under this Paragraph 3.7. l shall be included as a Construction Manager's Reimbursable Direct lob Cost in accordance with AIA Document A121-2003, as amended by the parties. § 3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities applicable to performance of the Work. § 3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance therewith, the Contractor shall promptly notify the Architect and Owner in writing, and necessary changes shall be accomplished by appropriate Modification. § 3.7.4 If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Architect and Owner, the Contractor shall assume appropriate responsibility for such Work and shall bear the casts attributable to correction. § 3.8 ALLaWANCES § 3.8.1 The Contractor sha]] include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but the Contractor shall not. be required to employ persons or entities to whom the Contractor has reasonable objection. § 3.8.2 Unless otherwise provided in the Contract Documents: .1 allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; .2 Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; .3 whenever costs are more than or less than allowances, the Contract Sum shall he adjusted accordingly by Change Otder. The amount of the Change Order shall ret7ect (1) the difference between actual casts and the allowances under Section 3.8.2.1 and (2) changes in Contractor's costs under Section 3.8.2.2. § 3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient time to avoid delay in the Work. § 3.8 SUPERINTENDENT § 3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. § 3.10 CONTRACTpR'S CQNSTRUCTIpN SCHEDULES § 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit For the Owner"s and Architect's information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the AIA Document A201T"" - 1887. Copyright m 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 197D, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA00 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 18 reproduction or distribution of this AIA" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This documont was produced by AIA software at 10:25:47 on 01/29/2008 under drder No.100D319696_. 1which expires on 9/4/2008, and is not for resale. USBr Notea: (2728497107) Work and Project, shall he related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. § 3.10.2 The Contractor shall prepare and keep current, far the Architect's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals. § 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and Architect. 3.10.4 The construction schedule shall be in a detailed precedence-style critical path management ("CPM") or primavera-type format satisfactory to the Owner and the Architect that shall also (i) provide a graphic representation of all activities and events that will occur during performance of the Wark; (ii) identify each phase of construction and occupancy; and (iii) set forth dates that are critical in ensuring the Cimely and orderly completion of the Work in accordance with the requirements of the Contract Documents (hereinafter referred to as "Milestone Dates"). Upon review and acceptance by the Owner and Architect of the Milestone Dates, the construction schedule shall be deemed part of the Contract Docwnents and incorporated in the project specifications.. if not accepted, the construction schedule shall be promptly revised by the Contractor in accordance with the recommendations of the Owner and the Architect and resubmitted for acceptance. The Contractor shall monitor the progress of the Work for conformance with the requirements of the construction schedule and shall promptly advise the Owner of any delays or potential delays. The accepted construction shall be updated to reflect actual conditions (hereinafter sometimes referred to as "Progress Reports") as set forth in Subparagraph 3.10.1 or if requested by either the Owner or the Architect. In the event any Progress Report indicates any delays, the Contractor shall propose an affirmative plan to correct the delay, including overtime and/or additional labor, if necessary. In no event shall any Progress Report. constitute an adjustment in the Contract Timc, any Milestone Datc, or the Contract Sum unless any such adjustment is agreed to by the Ownet and authorized pursuant to a Change Order. 3.10.5 In the event the Owner determines that the performance of the Work, as of a Milestone Date, has not progressed or rcachcd the level of completion required by the Contract Documents, the Owner shall have the right to order the Contractor to take corrective measures necessary to expedite the progress of construction, including, without limitation, (i) working additional shifts or overtime, (ii) supplying additional manpower, equipment, and facilities, and (iii) other similar measures (hereinafter referred to collectively as "Extraordinary Measures" ). Such Extraordinary Measures shall continue until the progress of the Wark complies with the stage ar completion required by the Contract Documents. The Owner's right to require Extraordinary Measures is solely for the purpose of ensuring the Contractor's compliance with the construction schedule. .i The Contractor shall not be entitled to an adjustment in the Contract Sum in connection with Extraordinary Measures required by the Owner under or pursuant to Subparagraph 3.10.5. .2 The Owner may exercise the rights furnished the Uwncr under or pursuant to this Subparagraph 3.10,5 as frequently as the Owner deems necessary to ensure that the Contractor's performance of the Work will comply with any Milestone Datc or completion date set forth in the Contract Documents. 3.10.6 The Owner shall have the right to direct a postponement or rescheduling of any dace or time for the performance of any part of the Work that may interfere with the operation of the Owner's premises or any tenants or invitees thereof. The Contractor shall, upon the Owner's request, reschedule any portion of the Work affecting operation of the premises during hours when the premises are not in operation. Any postponement, rescheduling, or performance of the Work under this Subparagraph 3,10.6 may he grounds for an extension of the Contract Time, if permitted under Subparagraph 8.3.1, and an equitable adjustment in the Contract Sum if (i) the AIA Document A201Tr" -1997. Gopyright ®1911, 1915, 191$, 1925, 1937, 1951, 1958, 1981, 1963, 1966, 1970, 1976, 1967 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA'"0 Document is protected by U.$. l;ppyright Law and International Treaties. Unauthorized 19 reproduction pr distribution of this AIA` aocument, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/291200$ under Order No.10p0319896_1 which expires on 9/4/2008, and is not for resale. User Notes: (27284971 p7) performance of the Work was properly scheduled by the Contractor in compliance with the requirements of the Contract Documents, and (ii) such rescheduling or postponement is required for the convenience of the Owner. The Contractor's right to an equitable adjustment provided by this section is not subject to any provision of the Contract Documents to the contrary. § 3.11 DOCUMENTS AND SAMPLES AT THE SITE § 3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the Owner upon completion of the Work, § 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES § 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work, § 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for same portion of the Work. § 3.12.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. § 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents, The purpose of their submittal is to demonstrate for those portions of the Work for which submittals arc required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect is subject to the limitations of Section 4.2.7. informational submittals upon which the Architect is not expected to take responsive action may be sa identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the Architect without action. § 3.12.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work ar in the activities of the Owner or of separate contractors. Submittals which are not marked as reviewed for compliance with Che Contract Documents and approved by the Contractor may be returned by the Architect without action. § 3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. § 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shap Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. § 3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility far deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shap Drawings, Product Data, Samples or similar submittals by the Architect's approval thereof. AIA Document A201 TM -1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American ]nit. Institute of Architects. All rights reserved. WARNING: This AIA' pocument is protected by V.S. Copyright Law and International Treaties. Unauthgrized r~0 reproduction pr distribution of this AIA"0 Document, or any portion oT it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order No.10D0319696 1 which expires an 9/4/2D08, and is not for resale. User Notea: (2728497107) § 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Architect on previous submittals, In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions, § 3,12,1p The Contractvr shall not be required to provide professional services which constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy, The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services must satisfy, Pursuant to this Section 3.12. I0, the Architect will review, approve nr take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. § 3.13 USE OF SITE § 3.13.1 The Contractor shall confine vpcrations at the sift to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials yr equipment. 3.13.2 Only the materials and equipment which are to be used directly in the Work shall be brought to and stored on the Project site by the Contractor, After equipment is no longer required for the Work, it shall be promptly removed from the Project site. Protection of construction materials and equipment stored at the Project site from weather, theft, damage and other adversity is solely the responsibility of the Contractor. The Contractvr shall ensure that the Work, at all times, is performed in a manner that affords reasonable access, both vehicular and pedestrian, to the site of the Work and all adjacent areas, The Wvrk shall be performed, to the extent reasonably possible, in such a manner that public areas adjacent to the site of the Work shall be free from all debris, building materials, and equipment likely to cause hazardous conditions. 3.13.3 The Contractor and any entity for whom the Contractor is responsible shall not erect any sign on the Project site without the prior written consent of the Owner, which may be withheld in the sole discretion of the Owner. 3.13.4 Without limitation of any other provision of the Contract Documents, the Contractor shall use best efforts to minimize any interference with the occupancy or beneficial use of (i) any areas and buildings adjacent to the site of the Work and (ii) the Building in the event of partial occupancy, as more specifically described in Paragraph 9.y. Without prior approval of the Owner, the Contractor shall not permit any workers to use any existing facilities at the Project site, including, without limitation, lavatories, toilets, entrances, and parking areas other than those designated by the Owner. .1 Without limitation of any other provision of the Contract Documents, the Contractor shall use its reasonably, best efforts to comply with all the Hiles and regulations promulgated by the Owner in connection with the use and occupancy of the Project site and the Building, as amended from time to time. The Contractor shall immediately notify the Owner in writing if during the performance of the Work, the Contractor finds compliance with any portion of such rules and regulations to be impracticable, setting forth the AIA pocument A201 TTM -1997. Copyright ©1911, 1915, 1916, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 21 reproduction or distribution oT this AIAQ9 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2DD8 under order No.1000319696 1 which expires on 9/4/2008, and is not for resale. User Notes: (2728497107) problems of such compliance and suggesting alternatives through which the same results intended by such portions of the rules and regulations can be achieved. The Owner may, in the Owner's sole discretion, adopt such suggestions, develop new alternatives, or require compliance with the existing requirements of the rules and regulations, .2 The Contractor shall also comply with all insurance requirements and collective bargaining agreements applicable to use and occupancy of the Project site and the Building. § 3.14 CUTTING AND PATCHING § 3.14.1 The Contractor shall he responsible for cutting, fitting or patching required to complete the Work or to make its parts tit together properly. § 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. § 3.15 CLEANING UP § 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and about the Project. waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus materials. § 3.15,2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and the cost thereof shall be charged to the Contractor. § 3.16 ACCESS TO WORK § 3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever located. § 3.17 ROYALTIES, PATENTS AND COPYRIGHTS § 3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner and Architect harmless t'rom loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the Owner or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect, § 3.18 INDEMNIFICATION § 3.18.1 To the fullest extent permitted by law the Contractor shall indemnity and hold harmless the Owner, from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, Ions or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itselt~, Including loss of use resulting therefrom, but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 3,18. AIA Document A201T"" - 1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1975, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIAP° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized ~~ reproduction or distribution of this AIA"`' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to [he ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under prder No.1000319696_1 which expires on 9/4/2008, and is not for resale. User Notes: (27284971x7) § 3,18,2 In claims against any person or entity indemnified under this Section 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section 3.18.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or t'nr the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. 3.18.3 Subject to Montana law regarding indemnifcation, the Contractor's indemnity obligations under Paragraph 3.18 shall also specifically include, without limitation, all fines, penalties, damages, liability, costs, expenses (including, reasonable attorneys' fees and costs as authorized by Montana law), punitive damages (if any) arising out of, or in connection with, any (i) violation of or failure to comply with any law, statute, ordinance, rule, regulation, code, or requirement of a public authority that bears upon the performance of the Work by the Contractor. Subcontractor, or any person or entity for whom either is responsible, (ii) means methods, procedures, techniques, or sequences of execution or performance of the Work, and (iii) failure to secure and pay permits, fees, approvals, licenses, locates and inspections as required under the Contract Documents, or any violation of any permit or other approval of a public authority applicable to the Work, by the Contractor, a Subcontractor, or any person or entity for whom either is responsible. 3.18.41n accordance with Montana law, the Contractor shall not indemnify any other party for such party's own negligence. The Contractor shall indemnify and hold harmless its lndemnitees from and against any costs and expenses (including reasonable attorneys' tees and costs) incurred by its lndemnitees in enforcing any of the Contractor's defense, indemnity, and hold-harmless obligations under this Contract, ARTICLE 4 ADMINISTRATION OF THE CONTRACT § 4.1 ARCHITECT § 4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout. the Contract Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative. The Architect for the Project is:ThinkOne, Bozeman, MT.. Any reference in the Contract Documents to the Architect taking action or rendering a decision within a "reasonable time" or with "reasonable promptness" is understood to mean no mare than two (2) weeks. § 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be restricted, moditied or extended without written consent of the Owner, Contractor and Architect. Consent shall not be unreasonably withheld. § 4,1.3 if the employment of the Architect is terminated, the Owner shall employ a new Architect whose status under the Contract Documents shall be that of the former Architect. § 4.2 ARCHITECT'5 ADMINISTRATION OF THE CONTRACT § 4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents, and will be an Owner's representative (1) during construction, (2) until final payment is due and (3) with the Owner's concurrence, from time to time during the one-year period for correction of Work described in Section 12.2. The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise modified in writing in accordance with other provisions of the Contract, § 4.2.2 The Architect, as a representative of the Owner, will visit the site at intervals appropriate to the stage of the Contractor's operations (1) to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect will neither have control over or charge of, nor be responsible for, the construction means, methods, AIA Document A207 TM - 7997. Copyright ~ 1911, 1915, 191$, 1925, 1937, 1951, 1958, 1961, 19fi3, 1966, 1970, 1976, 19$7 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA"" Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA°0 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 23 / maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under drder No.1000319696 1 which expires on 9/4/200$, and is not for resale. User Notes: (27284971D7) techniques, sequences or procedures, or for the safety precautions and programs in connection with the Wark, since these are solely the Contractor's rights and respansibilities under the Contract Documents, except as provided in Section 3.3.1. § 4.2.3 The Architect will not he responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Docmncnts. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. § 4.x.4 Communications Facilitating Cantract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect's consultants shall be through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor, Communications by and with separate contractors shall be through the Owner. All written communication between the Contractor and Architect or its consultants shall be simultaneously copied to the Owner. § 4.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. § 4.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect will have authority to require inspection or testing of the Work in accordance with Sections 13.5,2 and 13.5,3, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not tv exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractars, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work. § 4.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samplea, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause nv delay in the Work or in the activities of the Owner, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or far substantiating instructions for installation or performance of equipment yr systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The Architect's review shall not constitute apprvval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate apprvval of an assembly of which the item is a component. § 4.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Section 7.4. § 4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, will receive and forward tv the Owner, for the Owner's review and records, written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. § 4.2.10 If the Owner and Architect agree, the Architect will provide one ar more project rcprescntatives to assist in carrying out the Architect's responsibilities at the site. The duties, respansibilities and limitations of autharity of such project representatives shall he as set forth in an exhibit to be incorporated in the Contract Documents. § 4.2.11 The Architect will interpret and decide matters concerning performance under and requirements of, the Contract Documents on written request of either the Owner or Contractor, The Architect's response to such requests AIA Document A2DiT"' - 1997. Copyright ~ 1911, 1915, 1978, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by Ths American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized ~4 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 undor Order No.1000319696__i which expires on 9/4/20D8, and is not far resat©. User Notes: (2728497107) will be made in writing within any time limits agreed upon or otherwise with reasonable promptness, [f no agreement is made concerning the time within which interpretations reyuired of the Architect shall be furnished in compliance with this Section 4,2, then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until 15 days after written request is made for them, § 4.2.121nterpretations and decisions of the Architect will he consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and initial decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either and will not be liable for results of interpretations or decisions so rendered in good faith. § 4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if approved by the Owner and consistent with the intent expressed in the Contract Documents, § 4.3 GLAIMS AND DISPUTES § 4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract, Claims must be initiated by written notice, The responsibility to substantiate Claims shall rest with the party making the Claim. § 4.3.2 Time Limits on Claims. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. ;provided, however, that the claimant shall use its hest efforts to furnish the Architect and the other party, as expeditiously as possible, with notice of any Claim including, without limitation, those in connection with concealed or unknown conditions, once such claim is recognized, and shall cooperate with the Architect and the party against whom the claim is made in any effort to mitigate the alleged or potential damages, delay, or other adverse consequences arising out of the condition that is the cause of such a Claim. Claims must be initiated by written notice to the Architect and the other party. Claims may also be reserved in writing within the time limits set forth in this Subparagraph 4.3.2. if a Claim is reserved, the resolution of Claims and Disputes procedures described in Paragraph 4.4 shall not commence until a written notice from the claimant is received by the Architect. Any notice of Claim or reservation of Claim must clearly identity the alleged cause and the nature of the Claim and include data and information thin available to the claimant that will facilitate prompt verification and evaluation of the Claim. § 4.3.3 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise agreed in writing or as provided in Section 9.7.1 and Article 14, the Contractor shall ptoceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. § 4.3.4 Claims for Concealed or Unknown Conditions. if conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or 12) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party protmptly bet'ore conditions are disturbed and in no event later than 21 days after first observance of the conditions, The Architect will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor's cost of, or time reyuired for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum of Contract Time, or both. If the Architect determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Architect shall so notify the Owner and Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be made within 21 days after the Architect has given notice of the decision. If the conditions encountered are materially different, the Contract Sum and Contract Time shall be equitably adjusted, but if the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall he referred to the Architect for initial determination, subject to further proceedings pursuant to Section 4.4. No adjustment in the Contract Timc or Contract Sum shall be permitted, however, in connection with a concealed or unknown condition that does not differ materially from those conditions disclosed or that reasonably should have been disclosed by the Contractor's (i) prior inspections, tests, reviews, and preconstruction AIA Document A201 TM - 1997. Copyright ~ 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 197p, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright t.aw and International Treaties. Unauthorized .25 reproduction pr distribution o1 this AIAA° Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was prpduced by AIA software at 10:25:47 on 01/29/2DO8 under Order Nq.1g00319696_7 which expires on 9/4/2008, and is not for resale. User Notes: (2728497107) services for the Project; or (ii) inspections, test, reviews, and preconstruction services that the Contractor had the opportunity to make or should have performed in connection with the Froject, § 4.3.5 Claims for Additional Cost. if the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Frior notice is not required for Claims relating to an emergency endangering life or prvperty arising under Section 1U.6, § 4.3.61E the Contractor believes additional cast is involved for reasons including but not limited to (1) a written interpretation from the Architect, (2) an order by the Owner tv stop the Work where the Contractor was not at fault, (3) a written order for a minor change in the Wvrk issued by the Architect, (4) failure of payment by the Owner, 15) termination of the Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim shall be filed in accordance with this Section 4,3. § 4.3.7 Claims for Additional Time § 4.3.7.1 If the Contractor wishes to make Claim fvr an increase in the Contract Time, written notice as provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Wvrk. In the case of a continuing delay only one Claim is necessary. § 4.3.7.2 If adverse weather conditions arc the basis fvr a Claim for additional time, such Claim shall be documented by data substantiating that weather cvnditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction. § 4,3.81njury or Damage to Ferson or Property. If either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party, or of others fvr whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. § 4.3.91E unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity tv the Owner yr Contractor, the applicable unit prices shall be equitably adjusted. (Paragra~~h.r deleted} § 4.4 RESOLUTIgN OF CLAIMS AND DISPUTES § 4,4.1 Decision of Architect. Claims, including those alleging an error or omission by the Architect but excluding those arising under Sections 10.3 through 10.5, shall be referred initially tv the Architect for decision. if the claimant first recognizes the condition giving rise to the claim prior to the date of final payment. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and Owner arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect. The Architect will not decide disputes between the Contractor and persons or entities other than the Owner. § 4.4.2 The Architect will review Claims and within ten days of the receipt of the Claim take one or more of the following actions; (1) request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4) suggest a compromise, or (5) advise the parties that the Architect is unable to resolve the Claim if the Architect lacks sufficient information to evaluate the merits of the Claim or if the Architect concludes that, in the Architect's sole discretion, it would be inappropriate for the Architect to resolve the Claim. § 4.4.3 In evaluating Claims, the Architect may, but shall not be obligated tv, consult with or seek information from either party or from persons with special knowledge or expertise who may assist the Architect in rendering a decision. The Architect may request the Owner to authorize retention of such persons at the Owner's expense, AIA Document A201 T*" - 1997. Copyright m 1911, 1915, 1918, 1925, t 937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIAQO 1ocument is protected by U.S. Copyright Law and International Treaties. Unauthorized 26 reproduction or distribution of this AIA°D oacument, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on Ot/29/2008 under Order No.1000319696 1 which expires on 9/4/2008, and is not for resale. - User Notes: (2728497107) § 4.4.4 If the Architect requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall respond, within ten days after receipt of such request, and shall either provide a response on the requested supporting data, advise the Architect when the response or supporting data will be furnished or advise the Architect that no suppvrting data will be furnished. Upon receipt of the response or supporting data, if any, the Architect will either reject or approve the Claim in whole or in part. § 4.4.5 The Architect will approve or reject Claims by written decision, which shall state the reasons therefor and which shall notify the parties of any change in the Contract Sum or Contract Time or both. The approval or rejection of a Claim by the Architect shall be final and binding on the parties but subject to mediation and arbitration. § 4.4.6 When a written decision of the Architect states that (l) the decision is final but subject to mediation and arbitration and (2) a demand for arbitration of a Claim covered by such decision must be made within 30 days after the date on which the party making the demand receives the final written decision, then failure to demand arbitration within said 30 days' period shall result in the Architect's decision becoming final and binding upon the Owner and Contractor. If the Architect renders a decisivn after arbitration proceedings have been initiated, such decision may be entered as evidence, but shall not supersede arbitration proceedings unless the decision is acceptable to all parties concerned. § 4.4.7 Upon receipt. of a Claim against the Contractor or at any time thereafter, the Architect or the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates Co a possibility of a Contractor's default, the Architect or the Owner may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy. § 4.4.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the Claim by the Architect, by mediation ar by arbitration, 4.4.9 The decision of the Architect in response to a Claim shall not be a condition precedent to arbitration in the event (1) the position of Architect is vacant; (2) the Architect has failed tv render a decision within the agreed time limits or (3) the Architect has failed to take action required under Subparagraph 4,4.5 within thirty (30) days after the Claim is made. In addition, the decision of the Architect in response to a Claim is not necessary during the Preconstruction Phase of the Project. § 4.5 MEDIATION § 4.5.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived. as provided for in Sections 4,3.10, 9.10.4 and 9.10.5 shall, after initial decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party. § 4.5.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request fvr mediation shall be filed in writing with the other party to the Contract and with the American Arbitration Association. The request may be made concurrently with the tiling of a demand fvr arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation fvr a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties nr court order, § 4.5.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall he enforceable as settlement agreements in any court having jurisdiction thereof. In no event shall any mediator in connection with a Claitn he permitted to serve as an arbitrator for that, or any other, claim that is not resolved pursuant to mediativn. Init. AIA Document A201 TM - 1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 197D, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA` nocument is protected by U.S. Copyright Law and International Treaties. Unauthorized `17 reproduction or distribution of this AIA® locument, or any portion pf it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent passible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under order No.1000319696 1 which expires on 9/4/2008, and is not for resale. Uaer Notes: (2728497107) § 4.6 ARBITRATION § 4.6.1 The Owner may elect to subject disputes arising out of this Agreement to resolution by litigation, after having mediated the dispute. lf, however, the parties mutually agree in writing, a dispute arising nut vF this Agreement may be submitted by the parties to resolution by binding arbitration. Mediation is, however, a condition precedent to either party electing to subject disputes arising out of this Agreement to resolution by binding arbitration or litigation. Unless otherwise agreed by the parties at the time of such election, the rules governing binding arbitration invoked by the Uwner shall be the Construction Industry Dispute Resolution Procedures of the American Arbitration Association. Any binding arbitration or lawsuit initiated to interpret or enforce the terms, conditions and agreements set forth in this Agreement and all Contract Documents must occur in and be tiled in the 18th,ludicial District Court of the State of Montana, Gallatin County (Paragraphs clelctc:d) ARTICLE 5 SUBCONTRACTORS § 5.1 DEFINITIONS § 5.1.1 A Subcontractvr is a person yr entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term "Subcontractor" is referred tv throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor, § 5.1.2 ASub-subcontractor is a person or entity who has a direct or indirect cvntract with a Subcontractvr to perform a portion of the Work at the silt. The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means aSub-subcontractor or an authorized representative of the Sub- subcontractor. § 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK § 5.2.1 No later than forty-five (45) days subsequent. to the full execution of the Contract, the contractvr shall furnish the Owner and the Architect, in writing, with (i) the name, trade and subcontract amount for each Subcontractor and (ii) the names of all persons or entities proposed as manufactm•ers of the products identified in the Specitications (including those who are to furnish materials or equipment fabricated to a special design) and, where applicable, the name of the installing Subcontractor. The Architect will promptly reply to the Contractor in writing stating whether or nvt the Owner or the Architect, after due investigation, has reasonable objection to any such proposed person or entity. 1~ailure of the Owner or Architect to reply prvmptly shall constitute notice of no reasonable objection. § 5.2.2 The Contractor shall not. contract with a proposed person or entity to whom the Owner yr Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. § 5.2.3 If the Owner or Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the Owner or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Wvrk, the Contract Sum and Contract Timc shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor's Work. However, no increase in the cvntract Sum or Contract 'l'ime shall be allowed for such change unless the contractvr has acted promptly and responsively in submitting names as required. § 5.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the Owner or Architect makes reasonable objection to such substitute. § 5.3 SUBCONTRACTUAL RELATIONS § 5.3.1 By appropriate written agreement, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility far safety of the AIA Document A201 TM -1997. Copyright cc7 1911, 1915, 191$, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized e28 reproduction or distribution of this AIA01 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order No.1000319696_1 which expires on 9/4!2008, and is not for resale. User Notes: (2728497107) Subcontractor's Work, which the Contractor, by these Documents, assumes toward the Owner and Architect. Each subcontract agreement shall preserve and protect the rights of the Owner and Architect under the Contract. Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will he bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub- subcontractors. 5.3.2 All subcontracts shall be in writing in form and substance substantially similar to the Contractor's standard form subcontract, AIA 401 and shall specifically provide that the Owner is an intended third party beneficiary of such subcontract. § 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS § 5.4.1 )=.ach subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided that: .1 assigmnent is effective only after termination of the Contract by the Owner far cause pursuant to Section 14.2 and only for those subcontract agreements which the Owner accepts by notifying [he Subcontracwr and Contractor in writing; and .2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. § 5.4.2 Subject to Sections 28-s-2101, et,seq., and if the Work in connection with a subcontract has been suspended for more than thirty (30) days after termination of the Contract by the Owner pursuant to Paragraph 14.2 and the Owner accepts assignment of such subcontract, the Subcontractor's compensation shall he equitably adjusted for any increase in direct costs incurred by such Subcontractor as a result of the suspension. 5.4.3 Each subcontract shall specifically provide that the Owner shall only be responsible to the Subcontractor for those obligations of the Contractor that accrue subsequent to the Owner's exercise of any rights under this conditional assignment. ART{CLE 8 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § 6.10WNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS § 6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other Construction or operations on the site under Conditions of the Contract identical or substantially similar to these including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make such Claim as provided in Section 4.3. § 6.1.2 When separate contracts are awarded for different portions of the Projector other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. § 6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them, The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do sa. The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. Z"he construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors and the Owner until stlbsequently revised. Inst. AIA Document A2Ut TM - 1997. Copyright C9 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1967 and t 997 by The American Institute of Architects. All rights reserved. WARNING: This AIA00 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 29 reproduction or distribution of this AfA'" pocumeni, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order No.10D0319698_i which expires on 9/412D06, and is not for resale. User Notes: (2728487107) § 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and ro have the same rights which apply to the Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6 and Articles 10, I 1 and 12. 6.1.5 The Contractor accepts assignment of, and liability for, all purchase orders and other agreements for procurement of materials and equipment that are identified as part of the Contract Documents. The Contractor shall be responsible for such pre-purchased items, if any, as if the Contractor were the original purchaser. The Contract Sum includes, without limitation, all costs and expenses in connection with delivery, storage, insurance, installation, and testing of items covered in any assigned purchase orders or agreements. All warranty and correction of the Work obligations under the Contract Documents shall also apply to any pre-purchased items, unless the Contract Documents specifically provide otherwise or arc agreed to in writing by the Owner prior to purchase of the items. § 6.2 MUTUAL RESPONSIBILRY § 6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents, § 6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior [o proceeding with that portion of the Work, promptly report to the Architect apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed constriction is fit and proper to receive the Contractor's Work, except. as to defects not then reasonably discoverable. § 6.2.3 The Owner shall be reimbursed by the Contractor tot costs incurred by the Owner which are payable to a separate contractor hecause of delays, improperly timed activities or defective construction of the Contractor, The Owner shall be responsible to the Contractor fot costs incurred by the Contractor because of delays, improperly timed activities, damage to the Work or defective construction of a separate contractor. § 6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Section 10.2.5. § 6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Section 3.14. § 6.3 OWNER'S RIGHT TO CLBAN UP § 6.3.1 if a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish the Owner may clean up and the Architect will allocate the cost among those responsible. ARTICLE 7 CHANGES IN THE WORK § 7.1 GENERAL § 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. § 7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect; a Construction Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone. § 7.1.3 Changes in the Work shall he performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive AIA Document A201TM - 1997. Copyright W t91 t, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 19fi3, 1966, 1970, 1976, 1987 and 1997 by The Amarican Inst. Institute of Architects. All rights reserved. WARNING: This AIA00 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 3D reproduction ar distribution of this AIA`" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law_ This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order No.1000319696_1 which expires on 9/4!2008, and is not for resale. User Notes: (2728497107) ar order for a minor change in the Work. Except as permitted in Paragraph 7.3 and Subparagraph 9,7.2, a change in the Contract Sum or the Contract Time shall be accomplished only by Change Order. Except as provided otherwise by the Addendum to AIA Document 121-2003, no course of conduct or dealings between the parties, nor express or implied acceptance of alterations or additions to the Work, and no claim that Owner has been unjustly enriched by any alteration or addition to the Work, whether or not there is, in fact, any unjust enrichment to the Work, shall be the basis of any claim to an increase in any amounts due under the Contract Documents or a change in any time period provided for in the Contract Documents. § 7.2 CHANGE ORDERS § 7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect, stating their agreement upon all of the following: .1 change in the Work; .2 the amount of the adjustment, if any, in the Contract Sum; and .3 the extent of the adjustment, if any, in the Contract Time. § 7.2.2 Methods used in determining adjustments to the Contract Sum may include those listed in Section 7.3.3. § 7.3 CONSTRUCTION CHANGE DIRECTIVES § 7.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the Owner and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum ar Contract Time, or both. The Ownet may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. § 7.3.2 A Construction Change Directive shall he used in the absence of total agreement on the terms of a Change Order. § 7.3.3 [f the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall he based on one of the following methods: .1 mutual acceptance of a lump sutra properly itemized and supported by sufficient substantiating data to permit evaluation; .2 unit prices stated in the Contract Documents or subsequently agreed upon; .3 cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed of percentage fee; or ,4 as provided in Section 7,3,6. § 7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall pmmptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any. provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. § 7.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order, § 7.3.6 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the method and the adjustment shall be determined by the Architect on the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, a reasonable allowance for overhead and profit. In such case, and also under Section 7.3.3.3, the Contractor shall keep and present, in such form as the Architect may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Section 7.3,6 shall be limited to the following: .1 costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance; .2 costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed; Init. AIA Document A201TM - 1997. Copyright ~ 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAa Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 31 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order No.1000319fi96 f which expires on 9/4/2008, and is not far resale. - User Notes: (27284971D7) .3 rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; .4 costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; anti .5 by actual cost as shown by the Contractor's invoice, plus 5 % allowance for overhead, plus 10%r allowance for profit. § 7.3.7 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured nn the basis of net increase, if any, with respect to that change. § 7.3.8 Pending final determination of the total cost of a Construction Change Directive to the Owner, amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Otder indicating the parties' agreement with part or all of such costs. For any portion of such cost that remains in dispute, the Architect will make an interim determination for purposes of monthly certification for payment for those costs. That determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of either party to disagree and assert a claim in accordance with Article 4. § 7.3.9 When the Owner and Contractor agree with the determination made by the Architect concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. § 7.4 MINOR CHANGES IN THE WORK § 7.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the ('ontract Timc and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out. such written orders promptly, 7.S Agreed Overhead and Profit Rates 7.5.1 Far any adjustments to the Contract Sum that etc based on other than the unit prices method, the Contractor agrees to charge, and accept, as payment for overhead and profit, the following percentages of costs attributable to the change in the Work: .1 Fifteen percent (15%) far Work by the Contractor not involving the Subcontractors: .2 Twenty percent (20%) for Work by Subcontractors; .3 When both additions and credits are involved in any one change, the allowance for c>vcrhead and profit shall be figured nn the basis of the net increase, if any; .4 For additional Work ordered as described above that will be executed by Subcontractors, it is agreed that the Subcontractors will be permitted to charge fifteen percent (15°Ia) for Work not involving Sub-subcontractors and twenty percent. (20%) for Work by Sub-subcontractors. 7.5.2 Overtime, when specifically authorized by the Owner and not as an Extraordinary Measure, shall be paid for by the Owner on the basis of premium payment only, plus the cost of insurance and taxes based on the premium payment period. Overhead and profit will not be paid y the Owner for overtime. AIA Document A201T"' - 1997. Copyright m 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 3~ reproduction or distribution of this AIA" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was producod by AIA software at 1p:25:47 on 01/29/2008 under Order No.1000319696_1 which expires nn 9/4/2p08, and is not for resale. User Notes: (272$497107) ARTICLE 8 TIME § 8.1 DEFINITION5 § 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. § 8,1.2 The date of commencement of the Work is the date established in the Agreement. § $.1.3 The date of Substantial Completion is the date certified by the Architect in accordance with Section 9.8. § 8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. § 8.2 PROGRESS AND COMPLETION § 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. 13y executing the Agreement the Contractor contirms that the Contract Time is a reasonable period for performing the Work. § 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence operations on the site or elsewhere prior to the effective date of insurance required by Article 11 to be furnished by the Contractor and Owner. The dart of commencement of the Work shall not be changed by the effective date of such insurance. Unless the date of commencement is established by the Contract Documents or a notice to proceed given by the Owner, the Contractor shall notify the Owner in writing not less than five days or other agreed period before commencing the Work to permit the timely filing of mortgages, mechanic's liens and other security interests. § 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. § 8.3 DELAYS AND EXTENSIONS OF TIME § 8.3.1 If the Cnntracwr is delayed at any time in the commencement or progress of the Work by un act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending mediation and arbitration, nr by other causes which the Architect determines may justify delay, then the Contract Time shall he extended by Change Order to the extent such delay will prevent the Contractor from achieving Substantial Completion within the Contract Time and if the performance of the Wnrk is not, was not, or would not have been delayed by any other cause for which the Contractor is not entitled to an extension in the Contract Time under the Contract Documents. The Contractor further acknowledges and agrees that adjustments in the Contract Time will be permitted for a delay only to the extent such delay j i) is not cause, or could oat have been anticipated, by the Contractor, and (ii) could not be limited or avoided by the Contractor's timely notice to the Owner of the delay or reasonable likelihood that a delay will occur,. § 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Section 4.3 § $.3.3 This Section 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents, ARTICLE 9 PAYMENTS AND COMPLETION § 9.1 CONTRACT SUM § 9.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. § 9.2 SCHEDULE OF VALUES § 9.2.1Upon full execution of this Contract, the Contractor shall submit to the Architect a schedule of values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. Init. AIA Document A201T"" - 1997. Copyright ©1911, 1915, 191$, 1925, 1937, 1951, 1958, 19fi1, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by V.S. Copyright Law and International Treaties. Unauthorized 33 reproduction or distribution of this AIA` Document, or any portion oT it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order Ne.1000319696 1 which expires on 9/4!2008, and is not for resale. User Nates: (2728497107) (Paragraphs deleted) § 9.3 APPLICATIONS FOR PAYMENT § 9.3.1 At least ten days before the date established for each progress payment, the Contractor shall submit to the Architect an itemized Application for Payment for operations completed in accordance with the schedule of values. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right to payment as the Owner or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and ret7ecting retainagc if provided for in the Contract Documents. .3 Each Applicativn for Payment shall be accompanied by the following, all in form and substance satisfactory to the Owner; (i) a current Contractor's lien waiver and duly executed and acknowledged sworn statement showing all Subcontractors and material suppliers with whom the Contractvr has entered into subcontracts, the amount of each such subcontract, the amount requested for any Subcontractor and material supplier in the requested progress payment, and the amount to be paid to the Contractor from such progress payment, together with similar sworn statements from all such Subcontractors and material suppliers; (ii) duly executed waivers of mechanics' and material suppliers' liens from all Subcontractors and, when appropriate, from material suppliers and lower tier Subcontractors establishing payment or satisfaction of payment of all amounts requested by the Contractor vn behalf of such entities or person in any previous Application for Payment; and (iii) all information and materials required to comply with the requirements of the Contract Documents or reasonably requested by the Owner or the Architect. § 9.3.1.1 As provided in Section 7.3.8, such applications may include requests for payment on account of changes in the Work which have been properly authorized by Construction Change Directives, yr by interim determinations of the Architect, but not yet included in Change Orders. § 9.3.1.2 Such applications may not include requests for payment far portions of the Work for which the Contractor does not. intend to pay to a Subcontractor or material supplier, unless such Work has been performed by others whom the Contractor intends to pay. § 9.3.2 Unless otherwise provided in the Cvntract Documents, payments shall be made on account of materials and equipment delivered and suitably stared at the site for subsequent incorporation in the Work. If approved in advance by the Uwner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest, and shall include the costs of applicable insurance, storage and transportation to the site fvr such materials and equipment stored off the site. § 9.3.3 'The Contractor warrants that title to all Wark covered by an Application for Payment will pass to the Owner no later than the time of payment, The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of the Contractvr, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. § 9.4 CERTIFICATES FOR PAYMENT § 9.4.1 The Architect will, within seven days after receipt of the Contractor's Applicativn for Payment, either issue to the Owner a Ccrtiticate for Payment, with a copy to the Contractor, for such amount as the Architect determines is properly due, or notify the Contractor and Owner in writing of the Architect's reasons far withholding certification in whole ar in part as provided in Section 9.5.1. § 9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the AIA Document A201TM - 1997. Copyright ~ 1911, 1915, 1918, 1925, 1937, 1951, 195$, 1961, 1963, 1966, 1970, 1976, 19$7 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA°0 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized $4 reproduction or distribution of this AIA` Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Qrder No.1000319696_i which expires on 9/4/2008, and is opt for resale. User Notes: (2726497107) quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluative of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, tv correction of minor deviations frvm the Contract Documents prier to completive and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contracwr is entitled to payment in the amount certified. However, the issuance of a Certiticate for Payment will net be a representative that the Architect has (1) made exhaustive nr continuous on- site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or fvr what purpose the Contracwr has used money previously paid nn account of the Contract Sum. § 9.5 DECISIONS TO WITHHOLD CERTIFICATION § 9.5.1 The Architect may withhold a Certificate fvr Payment in whvle or in part, to the extent reasonably necessary to protect the Owner, if in the Architect's opinion the representations tv the Owner required by Section 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractvr and Owner as provided in Section 9.4, I , If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, tnay nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner frvm loss for which the Cvntractvr is responsible, including loss resulting from acts and omissions described in Section 3.3,2, because vf: .1 detective Work not remedied; .2 third party claims filed or reasvnable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Cvntractor; .3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; .4 reasonable evidence that the Wvrk cannot be completed for the unpaid balance of the Contract Sum; .5 damage to the Owner or another contractor; .6 reasvnable evidence that the Work will not be cvmpleted within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or persistent failure to carry vat the Wvrk in accordance with the Cvntract Documents. § 9.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. § 9.6 PROGRESS PAYMENTS § 9.6.1 After the Architect has issued a Certiticate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. § 9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, vat of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amvunt to which said Subcontracwr is entitled, reflecting percentages actually retained fmm payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in a similar manner, Subject to the agreement of the Contractvr and the Subcontractor that a joint check constitutes f~aymenr under Montana law, the Uwner may elect to make any payment requested by the Contractor on behalf of a Subcontractor of any tier jointly payable to the Contractor and said Subcontractor, The Contractor and said Subcontractor shall be responsible for the allocation and disbursement of funds included as part of any such joint payment. In no event shall any joint payment be construed to create any (i) contract between the Owner and a Subcontractor of any tier, (ii) obligations from the Uwner to such Subcontractvr, or (iii) rights in such Subcontractor against the Owner, § 9.6.3 The Architect will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion yr amounts applied for by the Contractor and action taken thereon by the Architect and Owner on account of portions of the Work done by such Subcontractvr. Init. AIA Document A20tT"" -1997. Gopyright m 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 35 reproduction or distribution of this AIA"" Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25'47 pn D1/29/2008 under Order No.1000319696__1 which expires on 9/4/2008, and is noT for resale. User Notes: (27284971 D7) § 9.6.4 Neither the Owner nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be rcyuircd by law. § 9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Sections 9.6.2, 9.6.3 and 9.6,4. § 9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. § 9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by the Contractor for those Subcontractors yr suppliers who performed Work or furnished materials, or both, under contract with the Contractor for which payment was made by the Owner. Nothing contained herein shall require money to he placed in a separate account and not commingled with money of the Contractor, shall create any fiduciary liability or tart liability on the part of the Contractor for breach of trust or shall entitle any person yr entity to an award of punitive damages against the Contractor for breach of the requirements of this provision. 9.6.8 A 1% Montana Contractors License tax will be withheld from all payments to the Contractor, and the Owner will transmit such moneys to the Department of Revenue. § 9.7 FAILURE OF PAYMENT § 9.7.1 If the Architect does not issue a Certificate for Payment, through na fault of the Contractor, within seven days after receipt of the Contractor's Application for Payment, or if the Owner does not pay the Contractor within seven days after the date established in the Contract Documents the amount certified by the Architect or awarded by arbitration, then the Contractor may, upon seven additional days' written notice to the Owner and Architect, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor's reasonable costs of shut-down, delay and start-up. 9.7.2 if the Owner is entitled to reimbursement or payment from the Contractor under or pursuant to the Contract Documents, such payment shall be made reasonably promptly upon demand by the Uwner. Notwithstanding anything contained in the Contract Documents to the contrary, if the Contractor fails to reasonably promptly make any payment due the Owner, or if the Owner incurs any costs and expenses to cure any defaults of the Contractor or to cnn•ect detective Work, the Owner shall have an absolute right to offset such amount against the Contract Sum and may, in the Owner's sole discretion, elect either to (i) deduct an amount equal to that which the Owner is entitled from any payment then or thereafter due the Contractor from the Uwner, or (ii) issue a written notice to the Contractor reducing the Contract Sum by an amount equal to that which the Owner is entitled. § 9.8 SUBSTANTIAL COMPLETION § 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thcrcof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use ;provided, however, that as a condition precedent to Substantial Completion, the Owner has received all certificates of occupancy and any other permits, approvals, licenses, and other documents from any governmental authority having jurisdiction thereof necessary for the beneficial occupancy of the Project. § 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of the Cvntractor to complete all Work in accordance with the Contract Documents. § 9.8.3 Upon receipt of the Contractor's list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. if the Architect's inspection discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Wark or designated portion thcrcof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification AIA Document A201T"' --1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. Atl rights reserved. WARNING: This AIA°9 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized ~s reproduction or distribution of this AIA' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on D1/29/2D08 under Order No.t00D319696_1 which expires on 9/412008, and is nol tar resale. Usar Notes: (2728497107) by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion, § 9.$,4 When the Owner and the Architect agree that the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Contractor far security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate which shall identify all nonconforming, defective and incomplete work and establish the date of commencement of warranties in connection with any such work. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. § 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate., The Owner shall make payment of retainagc applying to such Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. § 9.9 PARTIAL OCCUPANCY OR USE § 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Section 1 1.4.1.5 and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion substantially complete, the Contractor shall prepare and submit a list to the Architect as provided under Section 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect. § 9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work, § 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. § 9.10 FINAL COMPLETION ANb FINAL PAYMENT § 9.10.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will pratnptly make such inspection and, when the Architect tinda the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate far Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on-site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable, The Architect's final Certificate far Payment will constitute a further representation that conditions listed in Section 9,10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. § 9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract Documents to remain in farce after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security Init. AIA DpCUment A201TM - 1997. Copyright ~ 1911, 1915, 1918, X925, 1937, 1951, 1958, 1961, 1963, 1966, 197D, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 37 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order No.1000319696_t which expires on 9/4/2008, and is not for resale. User Not®s: (2728497107) interests or encumbrances arising out of the Contract, to the extent in such form as may be designated by the Owner, (6) submission by the Contractor to the Architect and the Owner of as-built drawings, (7) submission by the Contractor to the Owner of a complete list of Subcontractors and principal vendors on the Project, including addresses and telephone numbers, (8) submission by the Contractor to the Owner of an indexed, loose leaf binder of complete installation, operation and maintenance manuals, including all manufacturers' literature, of equipment and materials used in the Work, (9) submission by the Contractor to the Owner, in an indexed, loose leaf binder, of all inspection reports, permits and temporary and final certificates of occupancy and licenses necessary for the occupancy of the Project, and (10) any an all other items required pursuant to the Contract Documents, . If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. § 9.10.3 If, after Substantial Completion of the Work, tinal completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the Owner shall, upon application by the Contractor and certitication by the Architect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance For Work not fully completed or corrected is less than rctainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall he made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. § 9.10.4 (Paragra/~lts' deleted) Final payment shall not be due until the Contractor has furnished the Owner with an affidavit from the Contractor executed on AIA Form G706, Contractor's Affidavit of Payment of Debts and Claims. § 9.10.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. 9.1..1 Public Contractor's License Regulations 9.11.1 Each "Public Contractor," which includes all Subcontractors with contracts for sums greater then $5000.00 each, shall include 1 % in their bid to the Contractor. The Contractor shall withhold said l% fmm payments made to the Subcontractor. 9.12 Essential Conditions and Liquidated llamages 9.12.1 It is hereby understood and mutually agreed, by and between the Contractor and the Owner, that the date of commencement, the rate of progress and the date of final completion as set forth in the Contract Documents are essential conditions of the Contract. 9.12.2 The Contractor agrees to prosecute the Work regularly, diligently, and uninterrupted to insure final completion as specitied in the Contract Documents. It is understood that the time for final completion of the Work, as specified in the Contract Documents, is reasonable, taking into consideration the average climatic range in this locality and discounting any Delay for which the Contractor is not responsible. 9.12.3 The Owner will suffer financial loss if the Project is not substantially complete on the date specitied for Substantial Completion in the Contract Documents. The Contractor and their Surety shall be liable for and shall pay the Owner the sum hereinafter stipulated as Liquidated Damages for each calendar day of Delay until the work is substantially complete in accordance with the Contract Documents. The stipulated Liquidated Damages shall be One Mundred and 00/100 Dollars ($100.00) per day. AIA Document A201*M - 1997. Copyright Q 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 19fi3, 1966, 1970, 1976, 1987 and 1997 by The American 11111. Institute of Architects. All rights reserved. WARNING: This AIA°° Document is protected by U.S. Gopyright Law and International Treaties. Unauthorized 3$ reproduction or distribution of this AIA`" Document, ar any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29!2008 under Order No.1000319696 1 which expires on 9/4/2008, and is not far resale. User Notes: (2728497107) 9.12.4 Provide that the Contractor shall not be charged Liquidated llamages of any excess cost when Delay in Substantial Completion of the Work is due to: .1 Unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not limited to, acts of God or terrorism, acts of the Owner, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. .2 Any Delays of Subcontractors or suppliers resulting from any of the unforeseeable causes specified in Subparagraph 9.12.4.1. 9.12.5 The Contractor shall within ten (10) days from the beginning of such Delay, notify the Owner in writing of the cause or causes of the Delay. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY § 10.1 SAFETY PRECAUTIONS AND PROGRAMS § 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract, § 10.2 SAFETY OF PERSONS AND PROPERTY § 10.2.1 The Contractor shall take reasonable precautions for safety af, and shall provide reasonable protection to prevent damage, injury or loss to: .1 employees on the Work and other persons who may be affected thereby; .2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub- subcontractars; and .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. § 10.2.2'I'he Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. § 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract., reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. The Contractor shall also be responsible, at the Contractor's sole cost and expense, for measures reasonably necessary to protect any property adjacent to the Project site and improvements therein. Any damage to such property ar improvements shall be promptly repaired by the Contractor, § 10,2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods arc necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel, When use or storage of explosives or other hazardous materials or equipment or unusual construction methods are reasonably necessary, the Contractor shall give the Owner and the Architect reasonable advance notice. § 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Sections 10,2.1,2 and 10.2.1.3 caused in whole or in part by the Contractor, aSubcontractor, aSub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may he liable and for which the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or lass attributable to acts or omissions of the Owner or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may he liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Section 3.18. AIA Document A201 TM' -1997. Copyright O 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 39 reproduction or distribution oT this AIA"' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximwn extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order No.tOD0319696_1 which expires on 9/4/2008, and is not For resale. User Notes: (2728497107) § 10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. § 10.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded sv as to endanger its safety. 10.2.8 When all yr a portion of the Work is suspended for any reason, the Contractor shall protect the Wark and the Project site, as reasonably necessary, from injury, 10.2.9 The Contractor shall promptly report in writing to the Owner and the Architect all accidents arising out of or in connection with the Work or on the Project site that cause death, personal injury, or property damage, giving full details and statements of any witnesses. In addition, if death, serious personal injuries, or serious damages are caused, the accident shall be reported immediately by telephone yr messenger to the Owner and the Architect. § 10.3 HAZARDOUS MATERIALS § 10.3.1 If reasonable precautions will be inadcyuate to prevent foreseeable bodily injury or death to persons resulting from a concealed and undisclosed hazardous material or substance as defined in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S. Code § 9601 (hereinafter referred to in Paragraph IU.3 as "material or substance"), including but not limited to asbestos or polychlorinated biphenyl (PCS), encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and Architect in writing. § 10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Contractor and Architect the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to pcrfonn the task of removal or safe containment of such material or substance. The Cvntractvr and the Architect will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Contractor or Architect has an objection tv a person or entity proposed by the Owner, the Owner shall propose souther to whom the Contractor and the Architect have na reasonable objection. The Work in the affected area shall be resumed immediately following the occurrence of any one (1- of the tollowing events: (i) the Owner causes remedial work to be performed that results in the absence of said material or substance, such as asbestos or polychlorinated biphenyl (PC13), or (ii> the Owner sod the Cvntractvr, by written agreement., decide to resume performance of the Work, yr (iii) the Wvrk may safely and lawfully proceed, as determined by an appropriate governmental authority or as evidenced by a written report to both the Owner and the Contractor, which is prepared by an environmental engineer reasonably satisfactory tv both the Owner and the Contractor. The Contract 'l'ime shall be extended appropriately and the Contract Sum shall be increased in the amount of the Contractor's reasonable additional. costs of shut-down, delay and start-up, which adjustments shall be accomplished as provided in Article 7. (Paragrraphs deleted) § 10.4 The Owner shall not be responsible under Section 1 Q.3 for materials and substances brought to the site by the Contractor unless such materials yr substances were required by the Contract Documents. § 10.5 If, without negligence on the part of the Contractor, the Contractor is held liable for the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred. § 10.6 EMERGENCIES § 10.6.1 in an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss, Additional compensation or extension of time claimed by the Contractor an account of an emergency shall be determined as provided in Section 4.3 and Article 7. AIA Document A201 TM' ~ 1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 197fi, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIAVO Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 40 reproduction or distribution of this AIA° Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order No.100tl319696__ 1 which expires on 9/4/200$, and is not for resale. User Notes: (2728497107) ARTICLE 11 INSURANCE AND BONDS § 71.1 CONTRACTOR'S LIABILITY INSURANCE § 11.1.1 Liability insurance shall be provided under an ISO Commercial General Liability form or its equivalent with no coverage removed by exclusionary endorsement. All Contractor's insurance policies shall name the Owner as an additional insured. The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth below which may arise out of or result from the Contractor's operations under the Contract and for which the Contractor may be legally liable, whether such operations be by the Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them, ar by anyone for whose acts any of them may be liable: .1 claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; .2 claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's employees; .3 claims tar damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's employees; .4 claims for damages insured by usual personal injury liability coverage; .5 claims for damages, other than to the Work itself, because of injury w or destruction of tangible property, including loss of use resulting therefrom; .6 claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; .7 claims for bodily injury or property damage arising out of completed operations, which coverage shall be maintained for no less than one (1) year following final payment. and .8 claims involving contractual liability insurance applicable to the Contractor's obligations under Section 3.18. § 11.1.2 The Contractor shall, for the protection and benefit of the lndemnitees, the Contractor, and the Owner and as part of the Contractor's effort to satisfy the obligations set forth in Subparagraph 11.1.1, procure, pay for, and maintain in full force and effect, at all times during the performance of the Work, until final acceptance of the Work or for such duration as required, policies of insurance issued by a carrier or carriers acceptable to the Owner, and in form and substance reasonably satisfactory to the Uwner, which afford coverage not less than the following, or greater if required by Montana law: .1 Workers' Compensation -- Statutory .2 Commercial General Liability lincluding all provisions of standard policy farm): .2.1 Bodily Injury and Property Damage: $ 1,000,000.00 pcroccurrence; $ ?,000,000.00 annual aggregate. .2.2 Products and Completed Operations: $ 1,000,000.00 per occurrence; $ 2,000,000.00 products and completed operations annual aggregate. .3 Comprehensive Automobile Liability: .3.1 Bodily Injury and Property Damage: $ 1,000,000.00 combined single limit per accident. .3.2 Coverage will include owned, non-owned and hired automobiles. .3.3 The Contractor shall be certain this insurance conforms to the specific Itllt. AIA Document A201T"" - 1997. Copyright C9 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 41 reproduction or distribution of this AIA°Y Document, or any portion of it, may result in severe civil and eriminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was producod by AIA software at 1D:25:47 on 01/29/2008 under Order No.1DOD319696 1 which expires on 9!4/2008, and is not for resale. Ua®r Notes: (2728497107) stipulations of governing Montana law. .4 Commercial Umbrella or Excess Coverage: $ 5,000,(x)0,00 per occurrence; $ S,000,D00.00 annual aggregate. § 11.1.3 Prior to the Owner's execution of the Contract by the Owner, the Contractor hereby agrees to deliver to the Owner certified copies of all insurance policies procured by the Contractor under or pursuant to this Paragraph 1 1.1 or, with consent of the Owner, Certificates of Insurance in form and substance satisfactory to the Owner evidencing the required coverages with limits not less than those specified in Subparagraph 11..1.2. The coverage afforded under any insurance policy obtained under or pursuant to this Paragraph 11.1 shat] be primary to any valid and collectible insurance carried separately by any of the Indemnitees. Furthermore, all policies and Certificates of Insurance shall expressly provide that no less than thirty (30) days' prior written notice shall be given the Owner in the event of material alteration, cancellation, nonrenewal, or expiration of the coverage contained in such policy or evidenced by such certified copy of Certificate of Insurance. 11.1,4 In no event shall any failure of the Owner to receive certified copies or certificates of policies required under Paragraph 11,1 or to demand receipt of such certified copies or certificates prior to the Contractor's commencing the Work be construed as a waiver by the Owner or the Architect of the Contractor's obligations to obtain insurance pursuant to this Article 1 l.'I'he obligation to procure and maintain any insurance required by this Article t I is a separate responsibility of the Contractor and independent of the duty to furnish a certified copy or certiticate of such insurance policies. 11.1.5 If the Contractor fails to purchase and maintain, or require to be purchased and maintained, any insurance required under this Paragraph 11.1, the Owner may, but shall not. be obligated to, upon five (5) days' written notice to the Contractvr, purchase such insurance on behalf of the Contractor and shall be entitled to be reimbursed by the Contractor upon demand. 11.1.6 When any required insurance, due to the attainment of a normal expiration date or renewal date, shall expire, the Contractor shall supply the Owner with Certificates of Insurance and amendatory riders or e-ndorsements that clearly evidence the continuation of all coverage in the same mattner, limits of pmkection, and scope of coverage as was provided by the previous policy. In the event any renewal or replacement policy, for whatever reason obtained or required, is written by a carrier other than that with whom the coverage was previously placed, or the subsequent policy differs in any way From the previous policy, the Contractor shall also furnish the Owner with a certified copy of the renewal or replacement policy unless the Owner provides the Contractor with prior written consent to submit only a Certificate of Insurance for any such policy, All renewal and replacement policies shall be in form and substance satisfactory to the Owner and written by carriers acceptable to the Owner. 11.1,7 Any aggregate limit under the Contractor's liability insurance shall, by endorsement, apply to this Project separately. 11.1.8 The Contractor shall cause each Subcontractor to (i) procure insurance reasonably satisfactory to the Owner and (ii) name the Owner and lndemnitees as additional insureds under the Subcontractor's comprehensive general liability policy. The additional insured endorsement included on the Subcontractor's comprehensive general liability policy shall state that coverage is afforded the additional insureds with respect to claims arising out of operations performed by or on behalf of the Contractor. If the additional insureds have other insurance that is applicable to the loss, such other insurance shall be on an excess or contingent basis. The amount of the insurer's liability under this insurance policy shall not be reduced by the existence of such other insurance. § 11.2 OWNER'S LIABILITY INSURANCE § 11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. Init. AIA Document A201TM -1997. Copyright C~ 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 19fifi, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAiO Document is protected by U.S. Copyright Law and International Treaties. Unauthorized ~~ reproduction or distribution of this AIA~ Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 10:2547 on 01/29/2008 under Order No.1800319696_1 wnich expires on 9/4/2008, and is not for resale. User Notes: (2728497107) § 11.3 PROJECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE § 11.3.1 Optionally, the Owner may require the Contractor to purchase and maintain Project Management Protective Liability insurance from the Contractor's usual sources as primary coverage for the Owner's, Contractor's and Architect's vicarious liability for construction operations under the Contract. Unless otherwise required by the Contract Documents, the Owner shall reimburse the Contractor by increasing the Contract Sum to pay the cost of purchasing and maintaining such optional insurance coverage, and the Contractor shall not be responsible for purchasing any other liability insurance on behalf of the Owner. The minimum limits of liability purchased with such coverage shall be equal to the aggregate of the limits required for Contractor's Liability Insurance under Sections ! 1.1.1.2 through 11.1.1.5. § 11.3.2 To the extent damages are covered by Project Management Protective Liability insurance, the Owner, Contractor and Architect waive al] rights against each other for damages, except such rights as they may have to the proceeds of such insurance. The policy shall provide for such waivers of subrogation by endorsement or otherwise. § 11.3.3 The Owner shall not require the Contractor to include the Owner, Architect or other persons or entities as additional insureds on the Contractor's Liability lnstirance coverage under Section 1 I ,1. § 11,4 PROPERTY INSURANCE § 11.4.1 Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the State of Montana, property insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of the initial Contract Sum, plus value of subsequent Contract modifications and cost of materials supp]ied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise agreed in writing by all persons and entities who arc beneficiaries of such insurance, until final payment has been made as provided in Section 9,10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section 11.4 to be covered, whichever is later. This insurance shall include interests of the Owner, the Contractor, Subcontractors and Sub-subcontractors in the Project. § 11.4.1.1 Property insurance shall he on an "all-risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falscwork, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for the Owner and the Architect's and Contractor's services and expenses required as a result of such insured loss. Property insurance provided by the Owner shall not cover any tools, apparatus, machinery, scaffolding, hoists, forms, staging, shoring, and other similar items commonly referred to as construction equipment that may be on the Project site and the capital value of which is not included in the Work. The Contractor shall make its own arrangements for any insurance it may require on such construction equipment. § 11.4.1.2 If the Owner does not intend to purchase such property insurance required by the Contract and with all of the coverages in the amount described above, the Owner shall so inform the Contractor in writing prior to commencement of the Work, The Contractor may then effect insurance which will protect the interests of the Contractor, Subcontractors and Sub-subcontractors in the Work, and by appropriate Change Order the cost thereof shall be charged to the Owner. If the Contractor is damaged by the failure or neglect of the Owner to purchase or maintain insurance as described above, without so notifying the Contractor in writing, then the Owner shall bear all reasonable costs properly attributable thereto. § 11.4.1.3 If the property insurance requires deductibles, the Owner shall pay costs not covered because of such deductibles. Notwithstanding, if the cause of any loss payment under such insurance is the fault of the Contractor, then the Contractor shall pay such deductible. § 11.4.1.4 This property insurance shall cover portions of the Work stored off the site, and also portions of the Work in transit, Inst. AIA Document A201TM - 1997. Copyright ~ 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1967 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA` Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 43 reproduction or distribution of this AIA' Document, or any portion of it, may result in severe civil and criminal penalties, and will de prosecuted to the / maximum extent possible under the law. This document was producod by AIA software at 10:25:47 on 01/29/2008 under Order No.1DOD319696 1 which expires on 9/4/2D06, and is not for resale. User Notea: (2728497107) § 11.4,1.5 Partial occupancy yr use in accordance with Section 9.9 shall not commence until the insurance company ar companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no active with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. § 11.4,E $oiler and Machinery lnsurancc. The Owner shall purchase and maintain bailer and machinery insurance requircd by the Contract Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the Uwner; this insurance shall include interests of the Owner, Contractor, Subcontractors and Sub-subcontractors in the Wvrk, and the Owner and Contractor shall be named insureds. I § 11.4,3 Loss of Use Insurance. The Owner, at the Owner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. § 11.4.4 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance pvlicy, the Owner shall, if possible, include such insurance, and the cost thereof shall be charged to the Contractor by appropriate Change Older. § 11.4.5 If during the Project constn~ctian period the Owner insures properties, real or personal yr both, at or adjacent to the site by property insurance under policies separate from thane insuring the Project> or if after lino! payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Projcct during the constructive period, t.hc Owner shall waive all rights in accordance with the terms of Section 11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise, § 11.4.8 $eforc an exposure to loss may occur, the Owner shall file with the Contractor certificates of insurance evidencing such insurance cvvcrages required by this Section 11,4. Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least 30 days' prior written Halite. bas been given to the Contractor. (Para,t;ru~~h.s de(eter!) § 11.4.8 A loss insured under Owner's property insurance shall be adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to requirements of any applicable mortgagee clause and of Section 1 1.4.10, The Cvntractor shall pay Subcontractvrs their just shares of insurance proceeds received by the Cvntractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner. § 11.4,9 If required in writing by a party in interest, the Owner as fiduciary shall, upon occurrence of an insured lass, give bond for proper performance of the Owner's duties. The cost of required bends shall be charged against proceeds received as fiduciary. The Owner shall deposit in a separate account proceeds sa received, which the Owner shall distribute in accordance with such agreement as the parties in interest may reach, or in accordance with an arbitration award in which case the procedure shall be as provided in Section 4.6. If after such loss no other special agreement is made and unless the Owner terminates the Contract for convenience, replacement of damaged property shall be performed by the Contractor after nvtificativn of a Change in the Wvrk in accordance with Article 7. § 11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall abject in writing within five days after occurrence of loss to the Owner's exercise of this power; if such objection is made, the dispute shall be resolved as provided in Sections 4.S and 4.6. The Owner as fiduciary shall, in the case of arbitration, make settlement with insurers in accordance with directions of the arbitrators. If distributive of insurance prviceeds by arbitratior is required, the arbitratvrs will direct such distribution. § 11.5 PERFORMANCE BOND AND PAYMENT BOND § 11.5.1 The Cvntractor shall furnish a Performance Bond and Labor and Material Payment AIA Document A201 TM - 1997. Copyright ~ 191 i, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 197fi, 1987 and t 997 by The American Inlt• Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 44 reproduction or distribution pi this AIA"' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This documont was produced by AIA software at 10:25:47 on 01/29!2008 under Qrder Nn.itl003t9696_..1 which expires on 914/2D08, and is not For resale. User NDtes: (2728497107) Bond meeting all statutory requirements of the State of Montana, in form and substance satisfactory to the Owner and, without ]imitation, complying with the following specific requirements; .1 Except as otherwise required by statute, the form and substance of such bonds shall be satisfactory to the Owner in the Owner's sole judgment. .2 Bands shall be executed by a responsible surety licensed in Montana with policy balder ratings na lower than "A" and financial ratings no lower then "X11" in the Best's Insurance Guide, latest edition in effect as of the date of this Contract and subsequently in effect at the time of renewal of any policies required by the Contract Documents. Said bonds shall remain in effect for a period not less than One (t 1 years following the date of Substantial Completion or the time required to resolve any items of incomplete Work and the payment of any disputed amounts, whichever time period is longer. .3 The Performance Bond and the Labor and Material Payment Bond shall each be in an amount equal to the Contract Sum and all subsequent increases. .4 The Contractor shall require the attorney in fact who executes the required bonds on behalf of the Surety to affix thereto a certified and current copy of his power of attorney indicating the monetary limit of such power. .S Every Bond under Subparagraph 11.5.1 must display the Surety's Band Number. A rider including the following provisions shall be attached to each Bond: (i) The Surety hereby agrees that it consents to and waives notice of any addition, alteration, omission, change, or other modification of the Contract Documents. Any addition, alteration, change, extension of time, or other modification of the Contract Documents, or a forbearance on the part of either the Owner or the Contractor to the other shall not release the Surety of its obligations hereunder, and notice to the Surety of such matters is hereby waived. (ii] The Surety agrees that it is obligated under the bonds to any successor, grantee or assignee of the Owner. § 11.5.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall permit a copy to be made. 11.5.3 The Contractor shall keep the Surety informed of the progress of the Work, and, where necessary obtain the Surety's consent to, or waiver of, (i) notice of changes in the Work; (ii) request for the reduction or release of retention; (iii) request for final payment; and (iv) any other item required by the Surety. The Owner shall be notified by the Contractor, in writing, of all communications with the Surety. The Owner may, in the Owner's sole discretion, inform the Surety of the progress of the Work and obtain consents as necessaty to protect the Owner's rights, interest, privileges, and benefwts under and pursuant to any bond issued in connection with the Work. 11.5.4 In addition to the Construction Manager's right pursuant to the Addendum to AIA Document 121-2003 to require payment and performance bonds from any subcontractor, performance and payment bonds may be required by the Owner in the Owner's sole discretion from any Subcontractor whose Subcontract exceeds One Hundred Thousand Dollars ($If)D,000.f)O). If the cost of the premium for any Subcontractor bond has not been included in the Cost of Work in accordance with Exhibit A and Amendment No. 1 to the Addendum to AIA Document 121-2003, then the Owner shall pay for any premiums charged for obtaining required AIA Document A261T'" -1997. Copyright ©1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA'D Document is protected by U.5. Copyright Law and International Treaties_ Unauthorized 45 reproduction or distribution of this AIA'' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on gt/2912008 under Order No.1DD0319696_7 which expires on 9/4/2008, and is not for resale. User Notes: (2728497107) Subcontractor bonds by executing a Change Order which shall increase the Contract Sum or the Cost of Work in an amount equal to said premiums. Any band required by the Owner shall be in farm and substance satisfactory to the Owner in the Owner's sole judgment. 11.6 General Requirements 11.6.1 All insurance coverage procured by the Contractor shall be provided by insurance companies having policy holder ratings na lower than "A" and financial ratings not lower than "XIl" in the Best's Insurance Guide, latest edition in effect as of the date of the Contract, and subsequently in effect at the time of renewal of any policies required by the Contract Documents, 11.6.2. If the Owner or the Contractor is damaged by the failure of the other party to purchase or maintain insurance required under Article 1 I, then the party who failed to purchase or maintain the insurance shall bear all reasonable casts (including attorneys' fees and court and settlement expenses) properly attributable thereto. ARTICLE 12 UNCOVERING AND CORRECTION OF WORK § 12.1 UNCOVERING OF WORK § 12.1.1 If a portion of the Wark is covered contrary to the Architect's request or to requirements specifically expressed in the Contract Documents, it must, if required in writing by the Architect, be uncovered for the Architect's examination and be replaced at the Contractor's expense without change in the Contract Time. § 12.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. if such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense, If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such casts. § 12.2 CORRECTION OF WORK § 12.2.1 BEFORE OR AFTER SUBSTANTIAL GDMPLETION § 12.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements aF the Contract Documents, whether discovered before or after Substantial Completian and whether or not fabricated, installed or completed. Casts of correcting such rejected Work, including additional testing and inspections and compensation far the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. In addition, the Contractor shall reasonably promptly remedy any damage and lass, at no expense to the Owner, arising in conjunction with the Project, including, without limitation, mechanical, electrical, plumbing, and other building systems, machinery, equipment, or other mechanical device, caused in whole or in part by the Cantractor, the Subcontractors, the Sub-subcontractors, or anyone directly or indirectly employed by any of them, or anyone for whose acts they may be liable and for which the Contractar is responsible. § 12.2.2 AFTER SUBSTANTIAL COMPLETION § 12.2.2.1 In addition to the Contractor's obligations under Section 3.5, if, within one year after the date of Substantial Completian of the Work or designated portion thereof or after the date far commencement of warranties established under Section 9.9.1, ar by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract bacuments, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition, During the one-year period for correction of Work, if the Owner tails to notify the Cantractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor. If the Contractor tails to correct nonconforming Work within a reasonable time during that period after receipt of notice Tram the Owner or Architect, the Owner may correct it in accardance with Section 2,4. AIA Document A201 Tr" - 1997. Copyright ~J 1911, 1915. 1918, 1925, 1937, 1951, 195$, 1961, 1963, 1966, 1970, 1976, 19$7 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING= This AIA Document is protected by U-S. Copyright Law and International Treaties. Unauthorized 46 reproduction or distribution of this AlA~ Document, or any poriinn of il, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order Nn.100D319696__1 which expires on 9/4/200$, and is not for resale. User Notes: 52728497107) § 12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. .i The Contractor shall and does hereby warrant and/or guarantee that for a period of onr year from the date of Substantial Completion, all movable ar adjustable Work shall reasonably remain in working order, including hardware, doors, windows, drawers, apparatus, machinery, electrical equipment, valves, appliances, controls, devices, and ull equipment to which the heating is applicable, reasonable wear and tear, abuse or neglect by the Owner or the Owner's tenants excepted. .2 The Contractor and Owner understand and agree that the Owner and Architect shall initiate a complete, tnal inspection of the Project approximately eleven months after the completion and acceptance of the Work. In the event the Architect, in good faith, determines that the Work or portions thereof are not in accordance with the Contract Documents, the Architect shall notify the Owner, which in turn shall notify the Contractor of such defects within a reasonable time following the complete, Etna! inspection, .3 The Contractor shall respond to any notice of defect from the Owner that results from the complete final inspection within a reasonable time after notice has been given by the Owner and shall proceed to remedy said defects. Under normal circumstances, the parties agree that a reasonable time within which to respond to the notice shall be interpreted to mean seven (7) calendar days. The Contractor's response shall specify a reasonable time within which the Contractor shall commence remediation of the noticed defects. § 12.2.2.3 The one-year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Section 12.2. § 12.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. § 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged constnlction, whether completed or partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. § 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. lstablishment of the one-year period far correction of Work as described in Section 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. § 12.3 ACCEPTANCE OF NONCONFORMING WORK § 12.3.1 If the Owner prefers to accept Work which is oat in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and cyuitablc. Such adjustment shall he effected whether or not tnal payment has been made. ARTICLE 13 MISCELLANEOUS PROVISIONS § 13.1 GOVERNING LAW 13.1.1 The Contract and all Contract Documents shall be governed by the laws of the State of Montana. Init. AIA Document A201T"' --1997. Copyright c9 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAa Document is protected by U.S. Copyright l.aw and International Treaties. Unauthorized 47 reproduction or distribution of this AIA00 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 1026:47 on 01129!2008 under prder No.1000319696_1 which expires on 9/4/2008, and is not for resale. User Notes: (2728497107) when and where tests and inspectivns are to be made so that the Architect may be present for such procedures. Such costs, except as provided in Section 13,5.3, shall be at the Owner's expense. § 13.5.3 If such prvicedures for testing, inspection yr approval under Sectivns 13.5. I and 13,5,2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated prvicedures and compensation for the Architect's services and expenses shall be at the Contractor's expense, § 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Cvntractor and promptly delivered to the Architect. § 13.5,5 If the Architect is to observe tests, inspectivns or approvals required by the Contract Documents, the Architect will do so promptly and, where practicable, at the normal place of testing. § 13.5.6 Tests or inspectivns conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. § 13.6 INTEREST § 13.6.1 Except as provided to the contrary by Sectivns 28-2-2101, et seq., MCA., no interest shall be paid on payments due and unpaid under the Contract Documents. 13.8 General Provisions 13.8.1 All personal pronouns used in this Contract, whether used in the masculine, feminine, or neuter gender, shall include all other genders; and the singular shall include the plural and vice versa. Titles of articles, paragraphs, subparagraphs, and clauses are for convenience only and neither limit nor amplify the provisions of this Cvntract in itself. The use herein of the word "including," when following any general statement, term, or matter, shall not be construed to Limit such statement, term, or matter to the specific items or matters set forth immediately following such word or to similar items yr matters, whether yr not non-limiting language tsuch words as "without limitation," or "but not 1lmited to," yr words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term, or matter. 13.8.2 Wherever passible, each paragraph, subparagraph and clause (hereinafter referred as "provision") of this Contract. shall he interpreted in a manner as to be effective and valid under applicable law. lf, however, any provision of this Cvntract, yr portion thereof, is prohibited by law or found invalid under any law, only such provision or portion thereaf shall be ineffective, without in any manner invalidating or affecting the remaining provisions of this Contract or valid portions of such provision of this Cvntract yr valid portions of such provision, which are hereby deemed severable. 13.8,3 Each party hereto agrees to do all acts and things and to make, execute and deliver such written instruments, as shall from time to time be reasonably required to carry out the terms and conditions of the Cvntract Documents, 13.8.4 Any specific requirement in this Cvntract that the responsibilities or obligations of the Cvntractor also apply to a subcontractor is added for emphasis and is also hereby deemed to include a subcontractor of any tier. The omission of a reference to a subcontractor in connection with any of the Contractor's responsibilities or obligations shall not be construed to diminish, abrogate, or limit any responsibilities or obligations of a subcontractor of any tier under the Cvntract Documents or the applicable standard. 13.9 Lawsuits Init. AIA Document A201T'" -1997. Copyright t9 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA~' Document is protected by U.S. Copyright Law and International Treaties. Unauthprized 49 reproductipn or distribution of this AIA`R Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01/29/2008 under Order Np.100D319696 _1 which expires on 9/4/2008, and is not for resale. User Notes: (27284971 D7) 13.9.1 In the event that either party to this Contract files suit or proceeds to binding arbitration to enforce theirs rights under the Contract Documents, the prevailing part in such suitor binding arbitration shall be entitled to recover costs of the suit, and any subsequent appeal of such suit, including reasonable attorney fees, from the other party, in addition to any other damages awarded by the Court, In the event of mediation, neither party is entitled to recover costs of the mediation, including reasonable attorney ices, from the other party. 13.9.2 All lawsuits filed to interpret or enforce the terms, conditions and agreements set forth in the Contract Documents must be filed in the 18th Judicial District Court of the State of Montana Gallatin County. 13.10 No Oral Waiver 13.10.1 The provisions of the Contract Documents shall not be changed, amended, waived, or otherwise modified in any respect except by a writing signed by Owner. No person is authorized on behalf of Owner to orally change, amend, waive, or otherwise modify the terms of the Contract Documents or any of the Contractor's duties or obligations under or arising out of the Contract Documents. Any change, waiver, approval or consent granted by the Contractor shall be limited tv the specitic matters stated in the writing signed by the Owner, and shall not relieve Contractor of any other duties or obligations under the Contract Documents. No "constructive" changes shall be allowed, 13.11 Notices Regarding Liens 13.11.1 Contractor shall provide all notices required or permitted by the laws of the State of Montana for the protection of Owner from liens and claims of liens. Contractor shall be responsible for filing in the appropriate court or other governmental office all such notices as required or permitted by the laws of the State of Montana. 13.11,2 Contractor shall provide Owner with copies of all notices received by Contractor from the Subcontractors, Sub-subcontractors and/vr suppliers to Contractor. (Paragrap/is deleted) ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT § 14.1 TERMINATION BY THE CONTRACTOR § 14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under director indirect contract with the Contractor, for any of the following reasons: .1 issuance of an order of a court or other public authority having jurisdiction which reyuires all Wvrk to he stopped; .2 an act of government, such as a declaration of national emergency which reyuires all Work to be stopped; (I'aragraph.r deleted) § 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as described in Section 14.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for completive, or 120 days in any 3(iS-day period, whichever is less. § 14.1.3 If one of the reasons described in Section 14.1. I or 14.1.2 exists, the Contractor may, upon seven days' written notice to the Owner and Architect, terminate the Contract and recover from the Owner payment fvr Wvrk executed and for proven loss with respect tv materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages. Init. AIA Document A201TM - 1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAtlO Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 50 reproduction or distribution of this AIA Document, ar any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the ~ maximum extent possible under the law. This document was produced by AIA software at 10:25:47 on 01!29/2006 under Order No.1000319696 1 which expires on 9/4/2008, and is not for resale. Usor Notes: (2728497107) § 74.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Contractor because the Owner has persistently failed to fulfill the Owner's obligations under the Contract Documents with respect to matters important to the progress of the Work, the Contractor may, upon seven additional days' written notice to the Owner and the Architect, terminate the Contract and recover from the Owner as provided in Section 14.1.3. § 14.2 TERMINATION BY THE OWNER FOR CAUSE § 14.2.1 The Owner may terminate the Contract if the Contractor: .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; .3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or .4 otherwise is guilty of substantial breach of a provision of the Contract Documents. .5 breaches the warranties made by the Contractor under or pursuant to the Contract Documents; .6 fails to furnish the Owner with assurances satisfactory to the Owner evidencing t:hc Contractor's ability to complete the Work in compliance with all of the requirements of the Contract Documents; .7 fails to, after the commencement of the Work, proceed continuously with the construction and completion of the Work and the Project for more than ten (l0) days, except as permitted under the Contract Documents. § 14.2.2 When any of the above reasons exist, the Owner, upon certification by the Architect that sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and afCcr giving the Contractor and the Contractor's surety, if any, seven days' written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety: .1 take possession of the site and of all materials, equipment, tools, and cnnstn~ction equipment and machinery thereon owned by the Contractor; .2 accept. assignment of subcontracts pursuant to Section 5.4; and .3 finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work, § 14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14,2, 1, the Contractor shall not be entitled to receive further payment until the Work is finished. § 14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's services and expenses made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Architect, upon application, and this obligation for payment shall survive termination of the Contract. § 14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE § 14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. § 14.3.2 (ParugrupHs deleted) (nit. AIA Document A201"" - 1997, Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute °( Architects. All rights reserved. WARNING: This AIA"' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 51 reproduction or distribution of this AIA Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 1D:25:47 on 01/29/2tltl8 under Order No.1 i]i]t)319696 1 which expires on 9/4/2008, and is not for resale. tlsBr Notes: (2728497107) Init. AIA booument A201 TM - 1997. Copyright ~ 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAad Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted tp the ~'Z / maximum extent possible under the law. This document was produeed by AIA software at 10;25:47 on 01/29/2008 under Qrder No.1tl00319696 1 which expires on 9/4/2008, and is not for resale. User Notes: (2728497107)