BUILDING SERVICE 32BJ HEALTH FUND

CONSTRUCTION MANAGER / GENERAL CONTRACTOR

SERVICES AGREEMENT BETWEEN

BUILDING SERVICE 32BJ HEALTH FUND

And

HENEGAN CONSTRUCTION CO., INC. PERTAINING TO Building Service 32BJ Funds 620 Avenue of Americas New York, New York

FILED: NEW YORK COUNTY CLERK 02/15/2013 INDEX NO. 150207/2011

NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 02/15/2013

September 15, 2010 Building Service 32BJ Health Fund Owner – CM/GC Agreement Page 1 of 36

TABLE OF CONTENTS CONSTRUCTION MANAGER / GENERAL CONTRACTOR SERVICES AGREEMENT Index Page Preamble ................................................................................................................................................4 Article 1 Contract Documents .....................................................................................................5 Article 2 Scope of Work ..............................................................................................................6 Article 3 Early Termination (Not Applicable) ............................................................................6 Article 4 Contractor's Duties and Status ......................................................................................7 Article 5 Time of Completion......................................................................................................7 Article 6 Total Cost of the Work ................................................................................................9 Article 7 Contractor's Fee and General Conditions Costs..........................................................11 Article 8 Changes in the Work...................................................................................................11 Article 9 Costs to be Reimbursed ..............................................................................................13 Article 10 Costs Not to be Reimbursed .......................................................................................15 Article 11 Terms of Payment and Completion ............................................................................16 Article 12 Discounts, Rebates, Refunds and Lease vs. Buy Decisions........................................18 Article 13 Final Payment .............................................................................................................19 Article 14 Examination, Protection, and Maintenance of the Site--Responsibility During

Construction--Labor Relations....................................................................................20 Article 15 Asbestos, Fiberglass, Rockwool and Other Manmade Fibrous Products ...................21 Article 16 Right to Take Over or Suspend the Work...................................................................22 Article 17 Guarantees and Inspection ..........................................................................................24 Article 18 Indemnity ....................................................................................................................25


Article 19 Insurance.....................................................................................................................25 Article 20 Liens ...........................................................................................................................25 Article 21 Laws, Rules, Regulations, Etc. ...................................................................................26 Article 22 Clean Air Act/Water Pollution Control Act................................................................27 Article 23 RCRA and CERCLA ..................................................................................................27 Article 24 Force Majeure .............................................................................................................27 Article 25 Waiver.........................................................................................................................27 Article 26 Safety Provisions ........................................................................................................28 Article 27 Confidentiality ............................................................................................................29 Article 28 Right to Perform Other Work .....................................................................................29 Article 29 Conflict of Interest ......................................................................................................30 Article 30 Subcontracts and Other Agreements...........................................................................30 Article 31 Audit ...........................................................................................................................32 Article 32 Notices ........................................................................................................................32 Article 33 Miscellaneous .............................................................................................................33 Article 34 Assignment .................................................................................................................35 Signatures ............................................................................................................................................36


Exhibits Exhibit A General Conditions Exhibit B CM/GC Fees, General Conditions and Insurance Costs Exhibit C Contractor’s CGL Insurance Certificate Exhibit D Contractor’s Professional Liability Insurance Certificate Exhibit E Contractor’s Waiver and Lien Release Forms Exhibit F Project Schedule Exhibit G Owner’s Request for Qualifications Exhibit H Owner’s Request for Proposal Exhibit I Contractor’s Qualification Proposal Exhibit J Contractor’s Proposal Exhibit K Lease Requirements


CONSTRUCTION MANAGEMENT/ GENERAL CONTRACTOR

SERVICES AGREEMENT This Construction Management Services Agreement made this 15th day of September, 2010, (the "Effective Date") by and between Building Service 32BJ Health Fund, having an office at 101 Avenue of Americas, New York, NY 10013 (hereinafter referred to as “Owner”) and Henegan Construction Co., Inc, having an office at 250 West 30th Street, New York, NY 10001(hereinafter referred to as "Contractor"). Whereas: (a) Owner desires to complete a tenant fit out of approximately 250,000 rentable square feet of

space, located in the basement, on the ground floor and on the 4th, 5th and 6th floors of the building known as 620 Avenue of Americas, New York, New York (hereinafter referred to as the "Project");

(b) Owner is Building Service 32BJ Health Fund. (c) Newmark Knight Frank Project & Development Management (hereinafter “Project

Manager”) has been retained by the Owner as its Agent to develop and manage the Project and as such shall act for and on behalf of Owner for execution and administration of this Agreement;

(d) American Realty Advisors (hereinafter “Owner’s Representative”) has been retained by

Owner as Owner’s Representative for the Project. (e) Gerner Kronick + Valcarcel, Architects PC (hereinafter “Architect”) has been retained by the

Owner as the Architect for the Project; (f) Robert Derector Associates (hereinafter “Engineer”) has been retained by the Architect as the

MEP Engineer for the Project, (g) Architect has also been retained by the Owner as the Interior Designer for the Project, (h) Contractor is engaged in the business of providing Construction Management and General

Contracting Services;


(i) Owner desires to retain the Contractor to provide Construction Management Services, and at Owner’s election, General Contracting Services, in connection with the Project;

(j) Contractor has agreed to provide services to the Owner pertaining to the Project on the terms

and conditions set forth herein. Now, therefore, for and in consideration of the payments hereinafter specified to be made by the Owner, and in consideration of the promises and mutual covenants and agreements of the parties herein contained, the parties hereto do hereby agree as follows: ARTICLE 1 CONTRACT DOCUMENTS 1.1 The Contract Documents consist of this Agreement, the documents enumerated below, and

all Modifications issued subsequent to execution of this Agreement. These form the Contract, and all are equally a part of the Contract subject to the priorities of application and interpretation stated in this Agreement. Except for Modifications issued after execution of this Agreement the Contract Documents are enumerated as follows:

(a) General Conditions attached as Exhibit A (b) Fees, general conditions and insurance costs attached as Exhibit B

(c) Contractor’s CGL Insurance Certificate attached as Exhibit C

(d) Contractor’s Professional Liability Insurance Certificate

(e) Contractor’s Waiver and Lien Release forms attached as Exhibit E. (f) Project Schedule attached as Exhibit F (g) Owner’s Request for Qualifications attached as Exhibit G. (h) Owner’s Request for Proposal attached as Exhibit H (i) Contractor’s Qualifications attached as Exhibit I (j) Contractor’s Proposal attached as Exhibit J (k) Lease Requirements attached as Exhibit K

1.2 The Modifications issued subsequent to this Agreement shall be limited to:


(a) Cost of Construction/Budget issued through Addendum. (b) Change Orders agreed to in writing by both parties to this Agreement.

(c) Clarifications of the Drawings and/or Specifications issued by the Architect

and/or Engineer through Addenda. 1.3 If any of the documents listed above are found to conflict with this Agreement, then the

Agreement shall control. Furthermore, should there be a conflict between any of the above-listed documents, the document bearing the later date shall control.

1.4 It is understood and agreed that whenever the phrase "the Contract Documents" is used herein

in this Agreement it shall mean the above-mentioned Contract Documents except that, in the event the parties hereto mutually agree in writing to any Modifications of said Documents, it shall mean the Contract Documents as so modified ("Modifications").

ARTICLE 2 SCOPE OF WORK 2.1 Contractor is hereby engaged by the Owner to supervise, direct, monitor, coordinate, review

and inspect all work of any kind or nature to be performed under this Agreement in connection with the Pre-Construction Phase, the Procurement Phase, and the Construction Phase of the Project, whether performed by Contractor’s own forces or its Subcontractors by appropriate means, including spot inspections, and to otherwise manage and control the Work in accordance with this Agreement. This Contract shall include all Work performed by Contractor and its Subcontractors prior to the date of execution hereof, if any. Except as provided to the contrary herein or in the Specifications or Drawings hereinafter referred to, Contractor’s responsibilities shall include furnishing all materials, supervision, labor, tools, equipment, construction facilities, and everything of every sort which may be required for completion of the Project as more fully described in Exhibits A through K hereto. Contractor’s responsibilities, as set forth in this Section 2.1 and the Contract Documents is sometimes hereinafter referred to as the "Work".

2.2 Contractor understands and agrees that the work covered by this Agreement is subject to,

among other things, that certain Lease by and between CF 620 Owner One LLC, CF 620 Owner Two LLC, CF 620 Owner Three LLC, Bonjour 620 I LLC, Bonjour 620 II LLC and YL 620 Sixth Avenue LLC, as tenants-in-common, as landlord ("Owner's Landlord") and Building Service 32BJ Health Fund, as tenant ("Tenant") (the "32BJ Lease"). Contractor has been provided copies of, and has read and understands, the provisions of the 32BJ Lease that are applicable to the Work and agrees to comply with same in performing the Work. Contractor shall include a similar provision in each Subcontract and shall provide all Subcontractors with a copy of the relevant provisions of the 32BJ Lease.


ARTICLE 3 EARLY TERMINATION 3.1 Notwithstanding anything else in this Contract to the contrary, the parties acknowledge and agree

that, during the Pre-Construction Phase (as outlined in Owner’s Request for Proposal, Exhibit H), Owner shall have the right to terminate this Contract with or without cause after giving the Contractor five (5) business days' written notice of its intent to do so. In such event, Contractor shall be equitably compensated for any pre-construction services actually performed by Contractor through the effective date of such termination, but in no event shall such compensation exceed the amount designated for pre-construction services in the Contractor’s Proposal (Exhibit J).

3.2 The parties further acknowledge and agree that during the Procurement Phase (as outlined in Owner’s

Request for Proposal, Exhibit H and Article 7 of the General Conditions), Owner shall have the right to terminate this Contract with or without cause after giving the Contractor five (5) business days' written notice of its intent to do so. In such event, in addition to the amount designated for pre-construction services in the Contractor’s Proposal, Contractor shall be compensated for its actual costs for any procurement services actually performed and related expenses incurred by Contractor through the effective date of such termination.

ARTICLE 4 CONTRACTOR'S DUTIES AND STATUS 4.1 The Work shall be executed in a good and workmanlike manner and in accordance with the

intent and meaning of the Drawings and Specifications referred to herein, if any, and any additional drawings and specifications that Owner may furnish or approve for use in the Work, all of which when so furnished or approved by Owner shall be deemed to be a part of this Contract. Any work or materials not expressly covered herein or by the Drawings and Specifications but which are fairly implied therein as being required for the Work shall be considered within the terms of this Agreement. Owner shall have the right to interpret any conflicts between provisions in this Contract. The Architect shall interpret any conflicts between, and shall clarify the intent of, provisions in the Drawings and Specifications.

4.2 The Contractor accepts the relationship of trust and confidence established between

Contractor and the Owner by this Agreement and acknowledges that the Owner is relying on the special skills and knowledge of the Contractor with respect to the Work. Contractor covenants with the Owner to furnish its best skill and judgment and to cooperate with the Architect and Project Manager in furthering the interests of the Owner.

4.3 Contractor agrees, throughout the entire term of this Contract, (i) to furnish efficient business

administration and superintendence, (ii) to furnish at all times an adequate supply of materials, and of fully qualified, competent and experienced personnel capable of properly performing the Work in the best, most expeditious and economical manner consistent with the interests of the Owner and further consistent with the Project Schedule described herein


and all applicable budgets and work progress schedules (whether Bar, CPM, PERT, or any modifications or combinations thereof, as chosen by the Owner), which Contractor agrees to prepare for the Owner's and the Project Manager’s review, (iii) to have all licenses and permits required to be maintained by it in the capacity of construction manager and/or contractor, as applicable, under the laws of the State of New York and by any other governmental agency or authority having jurisdiction over the Project site and/or the Project, and (iv) to continue to be financially capable and continue to have sufficient financial resources to fulfill its duties under this Agreement in the manner required.

4.4 Prior to execution of the Work, the Contractor shall work and coordinate with Owner, Design

Team and Project Manager, to develop a Cost of Construction Budget for the Project, based upon the Drawings and Specifications and upon review of existing conditions at the Project Site. The Cost of Construction Budget shall be issued as an Addendum to this Agreement.

4.5 Before the start of construction, upon Project Manager’s direction, the Contractor shall

prepare and submit for the Owner's review a detailed construction progress schedule for the Work. When reviewed and approved by the Owner, it shall be designated as the Project Schedule. The Project Schedule shall be related to the entire Project to the extent required by the Contract Documents, and shall indicate the estimated dates for the starting and completion of each of the various stages of the Work, including Owner Work that may or not be included within the Contractor’s scope of Work. The Contractor shall maintain and revise the Project Schedule as required by the conditions of the Work. Each such revision shall be subject to the approval of the Owner and any changes in the date of Completion shall be made only by Change Order, as set forth in this Article 4.5.

The Project Schedule shall show:

(a) A sequence of operations mutually agreeable to the Owner and the Contractor; (b) Projected Manpower required for each trade or sequence of work.

(c) Schedule for submittal of Shop Drawings, Samples and other necessary

submittals for the various items of the Work.

(d) The dates of proposed commencement and completion of each of the various items of the Work, inclusive of work being performed by Owner or Owner’s separate contractor’s.

(e) Expected delivery dates for all materials and equipment, inclusive of Owner

material and equipment, and identifying any long lead items.

(f) Owner’s occupancy requirements showing portions of the Project having occupancy priority, if any.

The Project Schedule shall include a complete itemized breakdown of the Work. Time is of the essence of this Contract. It shall be the Contractor's responsibility to use its best efforts to


maintain the progress of the Work in accordance with the Project Schedule. Contractor shall make recommendations to the Owner, Project Manager and Architect regarding the phased issuance of Drawings and Specifications 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.

4.6 Contractor hereunder shall be an independent Contractor and Owner shall have no right or

responsibility to exercise supervision as to the means and/or methods of Contractor's performance of the Work.

4.7 Contractor agrees that the Project Team proposed to the Owner in the Proposal is that listed

under Exhibit G and shall be approved by the Owner and Project Manager. It is expressly understood and agreed that Contractor shall remove, at the request of Owner, any personnel assigned to the Project that Owner, in its sole discretion, finds objectionable. Contractor agrees that this Project Team will devote their time to the Project as stipulated within the General Conditions Cost until Project Completion and final subcontractor closeout or until such earlier time as the Owner may hereafter agree to be appropriate to and consistent with the full and timely performance of this Contract by Contractor. Contractor agrees that Project Team shall not be removed from their aforesaid responsibilities on this Project without the written consent of Owner except in the event of their death, disability or departure from the employ of the Contractor. In the event, however, such member of the Contractor’s Project Team becomes unavailable for the reason’s specified above, Contractor must receive written approval by Owner for any proposed replacement.

ARTICLE 5 TIME OF COMPLETION 5.1 The term of this Agreement shall begin on the Effective Date and the Work shall be brought

to such state of Substantial Completion by September 7, 2011 completion as would constitute Project Completion not later than September 23, 2011 with an additional 30 days for punch list as shown in Exhibit F, Project Schedule, subject to change as set forth in this Agreement. Closeout to be within 60 days of Project Completion.

5.2 If the Contractor shall fail in any respect to prosecute the Work with promptness and

diligence, or if the progress of the Work is such that in Owner's opinion its completion within the time specified above (or any extension or adjustment thereof that has been mutually agreed upon) is improbable, the Contractor shall, if Owner so requests, use such overtime labor as shall be necessary to insure the completion of the Work within the time specified above, but the Contractor shall have no claim for any adjustment of the Contractor's Fee, General Conditions Costs or Total Cost of the Work (as defined in Article 6), nor for reimbursement because of the extra expenses thereby occasioned unless such failure or projected failure to complete within the time specified is not due to an act or failure to act by Contractor or one of its Subcontractors.


5.3 The commencement and completion dates set forth herein are a material inducement for the

Owner to enter into this Contract. Time is of the essence of this Contract.

ARTICLE 6 TOTAL COST OF THE WORK 6.1 The Owner agrees to reimburse the Contractor for the Total Cost of the Work as defined in

Paragraph 6.2, hereof. Such reimbursement shall be the direct cost of the Contractor. Contractor’s Fee and General Conditions Costs for performing the work set forth in this Agreement shall be excluded from the Cost of Construction. The Cost of Construction shall be issued through Addendum.

6.2 The Total Cost of the Work, shall be broken down into detailed line items for each of the

following categories. The sum of these four (4) categories shall comprise the "Total Cost of the Work".:

(a) CM Fee.

(b) CM General Conditions Costs.

(c) Cost of Construction.

(d) Insurance Costs

6.3 The term "Cost of Construction" shall mean the Total Cost of the Work less the cost for CM

Fee, CM General Conditions, and Insurance Costs. The Cost of Construction is the total of "Construction Cost Line Items" as established within the approved Budget and issued through Addendum.

6.4 The term "CM Fee" shall mean the total fee for administrating this Contract and the Work.

All costs associated with main office personnel, insurance (other than as defined in paragraph 6.6 herein), office supplies and expenses shall be made part of this fee and shall not be included within the General Conditions Costs.

6.5 The term “CM General Conditions Costs” shall mean the total costs to perform all

procurement and construction aspects of the project, including but not limited to Project Manager, Estimator, Superintendent, Field Supervisory Personnel, other Trade Labor, Limited Overtime allowance as so itemized, Temporary Equipment Maintenance, Safety, Equipment, Supplies, Protection, and any other field costs required to perform the work within the Project Schedule, up to its completion, as set forth in Contractor’s Proposal.


6.6 The term “Insurance Costs” shall mean those costs associated with Contractor’s Commercial General Liability, Auto, Excess/Umbrella, Workers’ Compensation, Fidelity/Crime, and Professional Liability and Pollution Liability policies as more fully set forth in Contractor’s Certificates of Insurance annexed hereto as Exhibits C and D.

6.7 The total amount payable to the Contractor under this Agreement, as revised from time to

time, plus the CM Fee, CM General Conditions Costs, and Insurance Costs shall in no event exceed the amount mutually agreed to between Owner and Contractor. The amount paid by Owner for any Construction Cost Line Item shall not exceed the scheduled value established in the Project Budget, as issued through Addendum, for each such line item unless issued by Change Order. Construction Cost Line Items represent Subcontract amounts or Allowances and Contractor’s applications for payments shall include suitable backup for costs to be reimbursed, as per the Project Manager’s request.

6.8 Contractor shall have no claim for additional Fee or General Conditions based on the Cost of

Construction and Project Budget established through Addendum. 6.9 The CM Fee, CM General Conditions Costs, and Insurance Costs may be increased for the

net amount of increases attributable to all additional costs incurred as the result of (a) uninsured fire and other casualties not as a result of Contractor's negligence, (b) default of the Owner, (c) uncovering Work at the direction of the Owner or Architect if the Work is found to be satisfactory, (d) performance or acts of any separate contractors under contracts separately let by Owner, (e) delays caused by the Owner performing other work in the Project, (f) delays caused by the Owner concerning lack of drawings, specifications, approvals, material, equipment, and any other Owner supplied items of work, and (g) Changes in the Work as defined in Paragraph 8.1.

ARTICLE 7 CONTRACTOR'S FEE 7.1 Contractor and Owner agree that the performance and completion of the work set forth in this

Agreement shall not constitute or carry any Fees other than that established under Article 6 and Exhibit B, of this Agreement.

7.2 Owner shall have the right to terminate this Agreement any time. If Owner terminates this

Agreement during the Construction Phase, Contractor shall be compensated in accordance with Article 48 of the General Conditions.

ARTICLE 8 CHANGES IN THE WORK


8.1 The Owner may make Changes in the Work in accordance with Article 40 of the General Conditions insofar as such Article 40 is consistent with this Agreement. A "Change in the Work" is defined to be a change, addition or deletion of the Work other than items such as cutting, patching, repairing or inclusion of items not shown or implied in the Drawings, Specifications or other Contract Documents but required to fully complete the Work. The Contractor shall be reimbursed for Changes in the Work on the basis of the Total Cost of the Work as defined in paragraph 8.3 and as described in paragraph 8.4 herein.

8.2 Paragraph Intentionally omitted. 8.3 The Contractor must provide a firm quotation to the Owner and have Owner's written

approval prior to implementing Changes in the Work except for Construction Change Directives, as provided for in paragraph 42.1 of the General Conditions.

8.4 In the case of Changes in the Work involving additions to the Work, the Cost of Construction

shall be increased by Contractor’s actual cost of such additional work (with subcontractor's mark-ups for overhead and profit limited to total aggregate of fifteen percent (15%) either (i) plus three percent (3%) of such cost for General Conditions and three percent (3%) of such cost for Fee if the additional work is to be performed by subcontractors of Contractor or (ii) plus three percent (3%) of such cost for General Conditions and three percent (3%) of such cost for Fee if the additional work is to be performed by Contractor's own forces. In the case of Changes in the Work involving both additions and deletions to the Work, the Changes in the Work will be based on the net change to the Work, plus applicable mark-ups. In the case of Change Orders involving deletions for the Work or other cost savings, the deductions from the Contract Sum shall be "at cost".

Insurance Costs for each Change in the Work shall be one and one tenth percent (1.1%) of the sum of a) the actual cost of the additional or net change to the Work and b) General Conditions.

8.5 Any difference between the Drawings and Specifications and any revised drawings and

specifications shall not constitute a Change in the Work unless such differences are not reasonably inferable from the Drawings and Specifications.

8.6 Notwithstanding anything else in this Article 8 to the contrary, no additional General

Conditions or Contractor’s Fee (other than Insurance Costs) shall be charged to Owner for changes in the Work which in the aggregate do not increase the initial approved Cost of Construction Budget by more than One Million Five Hundred Thousand Dollars ($1,500,000).

8.7 Any Changes in Work performed by Contractor that is contrary to the work as required by the

Contract Documents, and not consented to in writing by Owner in a written change order per the conditions of Article 40 of the General Conditions, is performed at Contractor’s sole risk, cost and expense. Contractor shall not be entitled to any change in Contract Time or any adjustment in its compensation arising from the contrary work.


ARTICLE 9

COSTS TO BE REIMBURSED 9.1 The term "Total Cost of the Work" shall mean costs necessarily incurred in the proper

performance of the Work and paid or payable by the Contractor. Such costs shall be at rates not higher than the standard paid in the locality of the Work except with prior consent of the Owner, and shall include the items set forth below in this Article 9.

9.1.1 Wages paid for labor in the direct employ of the Contractor in the performance of

the Work under applicable collective bargaining agreements, or under a salary or wage schedule agreed upon by the Owner and Contractor, and including such customary welfare or other benefits, if any, as may be payable with respect hereto.

9.1.2 Salaries of Contractor's Personnel when stationed at the field office, in whatever

capacity employed. Any field office personnel in addition to a superintendent, assistant superintendent, and watchman must be approved by the Owner and will be charged for only such time as is actually spent on the job.

9.1.3 Cost of contributions, assessments, or taxes up to the statutory limits for such

items as unemployment compensation and social security, insofar as such cost is based on wages, salaries, or other remuneration paid to employees of the Contractor and included in the Total Cost of the Work as set forth in Article 6; also, all employees' head taxes or similar per capita taxes to the extent so included.

9.1.4 Not Used. 9.1.5 Cost of all materials, supplies, and equipment incorporated in the Work,

including costs of transportation thereof. Such materials not incorporated or consumed on the Project will remain the property of the Owner. Contractor must submit an ongoing accounting (including cost) of these materials and a final material reconciliation prior to final application for payment.

9.1.6 Payments made by the Contractor to subcontractors for Work performed pursuant

to subcontracts under this Agreement. 9.1.7 Cost, including transportation and maintenance, of all materials, supplies,

equipment, temporary facilities, and hand tools not owned by the workmen, which are consumed in the performance of the Work, and cost less salvage value on such items which are used but not consumed which remain the property of the Contractor.


9.1.8 Rental charges of all necessary machinery and equipment, exclusive of hand tools, used at the site of the Work, whether rented from the Contractor or others, including installation, minor repairs and replacements, dismantling, removal, transportation, and delivery costs thereof, at rental charges not to exceed AGC or CRG Rates for Contractor's owned equipment and AED or bluebook rates when rented from others.

9.1.9 Except as excluded by subparagraphs 10.1.8 and 10.1.9 of this Agreement, the

cost of premiums for all bonds and insurance which the Contractor is required by the Contract Documents to purchase and maintain.

9.1.10 Sales, use, lease, gross receipt, or similar taxes related to the Work imposed by

any governmental authority for which the Contractor is liable.

9.1.11 Permit fees, royalties, and deposits lost for causes other than the Contractor's negligence.

9.1.12 Losses and expenses, not compensated by insurance or otherwise, sustained by

the Contractor in connection with the Work, provided they have resulted from causes other than the fault or neglect of the Contractor, any subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. Such losses shall include settlements made with the written consent and approval of the Owner.

9.1.13 Except as excluded by subparagraph 10.1.2 of this Agreement, minor expenses

such as mail services, long distance telephone calls, telephone service at the site, expressage, and similar petty cash items in connection with the Work.

9.1.14 Cost of removal of all construction-generated debris.

9.1.15 Costs incurred due to an emergency affecting the safety of persons and property.

9.1.16 Any cost to be included in the Total Cost of the Work must be approved in

advance by the Owner.

9.1.17 The cost of all glass protection shall be a General Conditions Cost. The Contractor shall also replace all broken or otherwise damaged glass before Project Completion. The cost of breakage or other damage to the glass shall be a Cost of the Work, if such breakage or damage cannot be determined to be the fault of the Contractor or a specifically identifiable subcontractor.

9.1.18 Any cost referred to in subparagraph 10.1.5 of this Agreement that cannot be

determined to be the fault of Contractor or any specifically identifiable subcontractor or other person or persons referred to in that provision shall be a Cost of the Work, provided that the Project Budget shall not be increased because of such costs.


9.1.19 Other costs incurred in the performance of the Work if approved in advance in

writing by the Owner. ARTICLE 10 COSTS NOT TO BE REIMBURSED 10.1 The term "Total Cost of the Work" shall not include any of the items set forth below in this

Article 10.

10.1.1 Salaries or other compensation of the Contractor's personnel at his principal and branch offices other than the field office listed in subparagraph 9.1.2 of this Contract.

10.1.2 Expenses of the Contractor's principal and branch offices other than the field

office.

10.1.3 Any part of the Contractor's capital expenses, including interest on the Contractor's capital employed for the Work.

10.1.4 Overhead or General expenses of any kind, except as may be expressly included

in Article 9 of this Agreement.

10.1.5 Costs due to the negligence of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them, or for whose acts any of them may be liable, including but not limited to the correction of defective or nonconforming Work, disposal of materials and equipment wrongly supplied, or making good any damage to property.

10.1.6 The cost of any item not specifically and expressly included in the items

described in Article 9 unless otherwise approved by the Owner.

10.1.7 Cost in excess of the Project Budget.

10.1.8 Cost of Contractor's General fidelity insurance, and any losses sustained by Contractor in connection with theft, robbery, or embezzlement caused by defalcation of Contractor's employees.

10.1.9 The cost of insurance on equipment owned by Contractor.

10.1.10 Contractor's entertainment expense.


10.1.11 Any of Contractor's income, excess profits, franchise taxes, and the cost of any licenses obtained or other taxes or levies imposed in connection with the General conduct of Contractor's business.

10.1.12 Any of the Contractor's travel expenses within one hundred (100) miles or less of

the Project except as Owner hereafter may specifically authorize.

10.1.13 Stationery, stamps, except as set forth in Article 9 and other office supplies, and office equipment and furniture, except as used at the field office.

10.1.14 Dues and/or assessments of construction organizations, unions, or associations.

10.1.15 Any costs resulting from unacceptable work by the Contractor or anyone directly

employed by him, making good on damaged property, corrective work, or excess costs for material or labor or otherwise, as may be determined by the Architect or Owner shall be borne by the Contractor without reimbursement or liability by the Owner. Such work shall be performed and completed when so directed by the Owner in accordance with Article 52 of the General Conditions.

10.1.16 Cost of the Work performed pursuant to Guarantees and Warranties.

10.1.17 Legal costs arising from actions of the Contractor.

ARTICLE 11 TERMS OF PAYMENT AND COMPLETION 11.1 For each subcontractor, who has been previously authorized in writing by the Owner to

perform Work or provide services on the Project, the Contractor shall submit to the Owner, fully executed Contract Documents including all approved Changes in the Work prior to any application for payment.

11.2 On or about the first business day of each month (but in no event later than the fifth

business day thereof), the Contractor shall prepare and submit to the attention of Chris Rivielle, Senior Managing Director, Newmark Knight Frank Project & Development Management for approval an updated Application for Payment (on form AIA Document G702/703 and satisfactory to Owner) on account for Work actually completed and material actually paid for by the Contractor, delivered to the site and stored during the previous month (and not based on estimates of Work to be completed or materials to be delivered), including the earned share of the Contractor's Fee and General Conditions. Each such application shall account for all previous payments and subcontractor reserve withheld, and shall be accompanied by the Contractor's Sworn Statement and Subcontractors Application for Payments with appropriate backup. Any Application for Payment submitted after the 5th of every month shall not be processed for payment until


the following month’s cycle, no exceptions shall be given unless approved by the Owner.

Each Application for Payment shall be accompanied by lien waivers of the Contractor and each subcontractor attributable to the period and work for which payment is requested. Waivers shall be in a format agreed to by the Owner.

Any and all additional documents that are reasonably required by Owner, Owner's landlord or by Owner’s construction lender or title insurer, if any, as further evidence of the Contractor's (or particular subcontractor or supplier) right to payment will also be supplied as and whenever so required.

11.3 All material necessary for construction of this Project, delivered upon the premises, shall not

be removed from the premises without written consent of the Owner. No Certificate for Payment shall be issued nor payment made in favor of the Contractor for material not actually installed or unless written approval is given by the Owner, which approval will be given only upon the submission of bills of sale, waivers of liens, and such other proofs of title and of proper protection, storage, transportation, and insurance as the Owner deems appropriate with respect to those materials.

11.4 The "Schedule of Values", as prepared by Contractor and reviewed by Owner and Architect,

which itemizes the values of the various parts of the Work, including quantities, aggregating the Total Cost of the Work, divided so as to facilitate payments to subcontractors, as adjusted by Subcontract awards, shall be used as a basis for Certificates for Payment. The Application for Payment based on the Schedule of Values shall be in sufficient detail to show the Contractor's right to the payment claimed.

11.5 The Project Manager will review the Contractor's Application for Payment and will promptly

issue a Certificate for Payment to the Owner for such amount as he recommends, which amount, pending Owner's approval of same, shall be payable within thirty (30) days after submission to the Owner.

11.6 Payment will be made for ninety percent (90%) of the Cost of Construction satisfactorily

completed, with ten percent (10%) retained to assure faithful performance of the Contract, less the aggregate of all previous payments subject to reducing retentions as may be provided in subcontracts approved by Owner. There shall, however, be no retention withheld on General Conditions Costs, Fee, or Insurance Costs. The Contractor's Fee for the period shall be based on the sum of the Cost of Construction and the General Conditions for the period. The Cost of Construction for the period shall have the appropriate retainage subtracted from it prior to computing the Contractor's Fee. Moreover, after fifty percent (50%) of the Work on this Project has been completed, retainage withheld from the Contractor shall be reduced down to (5%), provided, however, that this reduction in retainage will be made only if, in the judgment of the Owner, satisfactory progress is being made on the Work and Contractor has requested such reduction in writing.

11.7 Not Used.


11.8 Any reductions in retainage must have the written consent of Bond Surety, if applicable. Any

retainage shall be withheld until final payment to the Contractor or a particular subcontractor or supplier, as the case may be.

11.9 After approval by the Project Manager and Owner, the monthly payment shall be paid

directly to Contractor. Owner also reserves the right to make payments directly to the subcontractors or suppliers.

11.10 Notwithstanding anything to the contrary herein, no payments to the Contractor shall become

due until the Contractor shall have first, prior to any payment, submitted evidence satisfactory to Owner showing the payment and discharge of all liens or claims for labor or materials for which, if established, Owner might become liable or which might attach to Owner's property and which are chargeable to the Contractor.

11.11 Owner may, at its discretion, withhold the whole or part of any payment to such extent as

may be necessary to protect Owner from loss on account of:

(a) Defective work not remedied.

(b) Claims filed or evidence indicating probable filing of claims.

(c) Failure of Contractor to promptly pay for material, labor, or other things furnished by Contractor hereunder.

(d) A reasonable doubt that the Work can be completed for the balance of the then

unpaid Contract Sum. 11.12 Final payment, constituting the unpaid balance of the Total Cost of the Work, the Contractor's

Fee, General Conditions Costs, and Insurance Costs, shall be paid by the Owner to the Contractor when the Work has been completed pursuant to Article 13 herein, Article 39 of the General Conditions and a final Certificate for Payment has been issued by the Contractor and approved by the Owner. Final payment shall be due forty-five (45) days after the date of issuance of the final Certificate for Payment.

It is understood, and subject to the approval by Owner, however, that final payment and/or the end of retention may occur in parts for such portions of the Work as may be completed for certain subcontractors or suppliers earlier then that subjected to final payment.

ARTICLE 12 DISCOUNTS, REBATES, REFUNDS AND LEASE VS. BUY DECISIONS 12.1 In connection with the Project, Contractor shall not knowingly accept for its own account any

trade discounts or contributions, diversion of a discount or credit to another project, or deal


with (or recommend that the Owner deal with) any firm with which Contractor has a financial interest other than arm’s length commercial dealings in the ordinary course of business, or undertake any activity or employment which would or could create a conflict of interest or compromise Contractor’s professional judgment or prevent Contractor from serving the best interests of the Owner. All trade discounts, cash discounts earned through advance or prompt payment, proceeds from insurance or the sale of surplus materials and equipment, and the fair market value of any tools, supplies, or equipment purchased for the Work but not incorporated therein or sold, refunds of insurance or bond premiums, and, to the extent permitted by law, fees, commissions, and gratuities received by Contractor, or any subsidiary or affiliate, in connection with the Work shall be for the benefit of the Owner and shall reduce the Total Cost of the Work.

12.2 Contractor shall require all subcontractor and material men to use and shall itself use best

efforts to obtain the most favorable quantity and cash discounts and rebates in making purchases of materials, supplies, equipment and tools, and, except in the case of fixed price subcontracts, all such discounts and rebates shall be credited to the Owner and shall reduce the Total Cost of the Work.

12.3 Purchase/Lease of Tools and Equipment

The Contractor is to determine the economic feasibility of purchasing or leasing the equipment over the life of the Project. If the decision, with the Owner's approval, is to lease, the rental rates should be in accordance with the current rates in the Associated Equipment Dealers book. If the decision, with the Owner's approval, is to purchase the equipment, the equipment will be returned to the Owner at the end of the Project in clean and good working order. The Contractor may be given an option to purchase the equipment from the Owner at a mutually acceptable discounted rate at the end of the Project. All equipment, machinery and tools expressly purchased by the Contractor for this Project, under the General Conditions, shall be accounted for and remain on site and become the property of the Owner, unless agreed to in advance in writing between the Owner and the Contractor

ARTICLE 13 FINAL PAYMENT 13.1 The Contractor shall, prior to Final Completion, provide the Owner with an accounting of all

sums claimed to be due the Contractor, if any. The Contractor's failure to provide the Owner with such accounting shall release the Owner from any and all liability concerning such sums.

13.2 Final payment shall be made by the Owner in accordance with Article 39 of the General

Conditions and contingent upon the following conditions: (a) the Contractor shall have satisfactorily performed all tasks, furnished all materials, and rendered all services required of it by this Contract to the full satisfaction of Owner, except those tasks, materials, and services necessary for the correction in accordance with the provisions hereof of defects or other unsatisfactory qualities which may be discovered or which may develop after such final


payment; (b) the Contractor shall have submitted evidence satisfactory to Owner showing the payment and discharge of all liens or claims for labor or materials for which, if established, Owner might become liable and which are chargeable to Contractor, (c) Contractor shall have submitted evidence satisfactory to Owner showing that all required inspections, controlled inspections, certifications, signoffs and closeouts (collectively, "Signoffs") required by all governmental agencies and authorities having jurisdiction over the Project, which are the responsibility of Contractor or Subcontractors pursuant to the Contract Documents, have been satisfactorily completed, and (d) the Contractor shall have returned all applicable documents such as "as-built" drawings, other drawings and specifications, manuals, and warranties as directed by Owner. Nothing done pursuant to the provisions of this Section, nor the final payment by Owner shall relieve the Contractor of its obligations to indemnify and protect Owner against all liens and claims of mechanics, laborers, or suppliers of material or equipment, nor relieve the Contractor of any other obligations whatever provided in this Contract which extend beyond the date of such Final Completion.

13.3 As a condition of final payment by Owner, the Owner shall have received from New York

City Department of Buildings a final Certificate of Occupancy or Temporary Certificate of Occupancy and the Contractor shall obtain and submit to the Owner the following:

� One (1) reproducible and One (1) copy - Construction Record Drawings (or

approved copies thereof)

� Two (2 ) copies - Written guarantees, warranties and/or maintenance, operating or shop manuals provided by manufacturers, subcontractors or suppliers of material and equipment incorporated into the Work (including, if necessary, an assignment of any such guarantees or warranties to Owner).

� Two (2) copies - Final waivers of lien from all subcontractors or suppliers

� One (l) copy - Certified list (confirmed by the Owner) of all pre-purchased and

stored tenant materials.

� A list of the names, addresses, and telephone numbers of all Subcontractors, material suppliers and other persons providing guaranties and warranties in connection with the Project.

� Punch list completed and signed off by the Architect & Project Manager.

ARTICLE 14 EXAMINATION, PROTECTION, AND MAINTENANCE OF THE SITE-- RESPONSIBILITY DURING CONSTRUCTION--LABOR RELATIONS 14.1 The Contractor acknowledges that it has examined and is familiar with the premises upon

which the Work covered by this Contract is to be performed and knows the location of the


Project, the areas that will be assigned to it for its use, the conformation of the ground, the difficulties attending the execution of the Work, the General and local labor conditions, government regulations and all other matters which can in any way affect the execution of the Work.

14.2 During the execution of the Work the Contractor shall take all necessary precautions to

protect all work done and all materials furnished under this Contract (including work and materials furnished by Owner) from loss or damage, and shall protect the adjacent or adjoining property and any other property involved from loss or damage of any sort which might result, either directly or indirectly, from the Contractor's operations under this Contract. The means which the Contractor provides for protecting Owner's property shall be subject to Owner's approval, but Owner's approval shall not relieve the Contractor of any responsibility therefore. Contractor shall comply strictly with all of the Project's safety regulations applicable to the work performed hereunder. The Contractor's operations shall be performed so as to avoid damage to any existing underground structures or equipment that may be encountered.

14.3 Promptly after completing the Work, the Contractor shall remove all construction equipment

from the site of the Work, remove all rubbish of any kind resulting from work under this Contract, dispose of said rubbish in accordance with government regulations and in a manner satisfactory to Owner, and place the ground around the Work in a condition satisfactory to Owner; and, if any similar work be needed because of repairs, alterations, changes, or corrections which the Contractor subsequently makes on the Work or any portion thereof, the Contractor shall perform same.

14.4 Owner and Contractor acknowledge that Contractor is signatory to certain construction craft

collective bargaining agreements covering work at its construction job sites. Contractor will use its best efforts to preserve and maintain harmonious relations with the various unions representing its workers and the workers of its subcontractors. In the event of a labor dispute or a work stoppage, Contractor will use best efforts to minimize the impact on the Work.

ARTICLE 15 ASBESTOS, FIBERGLASS, ROCKWOOL, AND OTHER MAN-MADE FIBROUS PRODUCTS 15.1 The Contractor shall put forth his best effort to insure that all products and materials used for

this construction are free and clean of all forms of Asbestos, including but not limited to, Chrysotile, Crocidolite, Amosite, Anthophyllite, Tremolite, and Actinolite. The Contractor shall include this Article with all subcontracts and material purchase orders. Should a material containing asbestos be the only material capable of meeting the specifications or job requirements, then such material may be used providing the following conditions are met:

(a) The Contractor has justified in writing the need for asbestos and has received

written approval from the Owner and Architect for this installation.


(b) The installation of all asbestos containing material (ACM) is accomplished by

mechanics that are:

(i) Skilled in the installation and use of ACM.

(ii) Knowledgeable regarding the dangers of asbestos exposure.

(iii) Familiar with the engineering controls required to prevent asbestos fibers from becoming airborne.

(c) The Contractor has installed proper coverings over the ACM, and proper warning

signage has been installed at each location where ACM is used. Such signage shall comply with the requirements of all applicable Federal, State, and local regulations.

15.2 Should a Contractor, knowingly or unknowingly, install ACM without meeting the conditions

listed above, said Contractor will remove any and all ACM installed at the job site, replace all ACM with products which do not contain asbestos and do this in accordance with all applicable laws, rules and regulations and at no expense to and at the convenience of the Owner.

15.3 In addition, the Contractor and all of his subcontractors shall put forth their best efforts to

insure that all fibrous glass, rockwool, and other man-made fibrous products are wrapped and covered or otherwise bound to isolate these fibers from the building's breathing air.

ARTICLE 16 RIGHT TO TAKE OVER OR SUSPEND THE WORK 16.1 Subject to the provisions of Section 3.1 above, if the Contractor should:

(a) be adjudged as bankrupt, or if it should make a General assignment for the benefit of its creditors, or if a receiver should be appointed on account of the Contractor's insolvency, or if it should

(b) disregard or fail to substantially comply, prior to the imposition of any fine,

penalty or other claim or assessment, with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of a public authority, or

(c) persistently or repeatedly refuse to or fail to supply enough properly skilled

workmen or proper materials or to

(d) fail to prosecute the Work with promptness and diligence, or


(e) fail to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors, or

(f) repeatedly or willfully disregards the instructions of the Owner, Project Manager

or Architect with respect to material issues (when such instructions are based on the requirements of the Contract Documents), or

(g) removes any of Contractor's key personnel from the Project without Owner's

approval in violation of this Contract, or

(h) become aware that the firm or any of its employees or owners are being investigated by city, state or federal law enforcement agencies, or

(i) is found guilty of a criminal charge involving any of its employees or owners, or

(h) otherwise be guilty of a substantial violation of any provision of this Contract,

then Owner may at its election and without prejudice to any other right or remedy, terminate the Contractor's Work under this Contract after giving the Contractor five (5) business days' written notice of its intent to do so and take possession of the premises and of all equipment, materials, and construction facilities thereon, and finish or cause to be finished the work remaining to be done under this Contract by whatever method Owner may deem expedient. In such case the Contractor shall not be entitled to receive any further payment until after the Work shall have been completed. Then, if the expense incurred by Owner in completing the Work is less than the unpaid portion of the Total Cost of the Work, Owner shall pay the difference to the Contractor; but, if said expense exceeds the unpaid portion of the Total Cost of the Work, the Contractor shall reimburse Owner for such excess. Such payment or reimbursement shall be made within fifteen (15) days after the amount thereof is determined, it being agreed that the determination shall be made with reasonable dispatch.

16.2 Owner shall have the right, at its sole discretion, to suspend the performance of all or any part of the Work at any time and shall give the Contractor prompt written notice thereof. Upon receipt of such a notice, the Contractor shall proceed with the orderly cessation of Work to accomplish such suspension and take such steps as will protect and preserve the work completed and permit the resumption of the Work upon termination of the period of suspension. In the event such suspension were to continue for more than sixty (60) days either party shall have the option of terminating this Contract in which case the Contractor shall be entitled to be reimbursed for the Total Cost of the Work completed or in progress plus a prorated portion of Contractor's Fee in accordance with Articles 47 & 48 of the General Conditions. In case of such termination, the Contractor shall turn over to Owner all applicable documents such as "as-built" drawings, other Drawings and Specifications, manuals, warranties, and other matters that the Contractor has prepared for the Work and Owner shall have the right to make use of said Drawings, Specifications, etc., for such purpose as Owner may desire. Also upon such termination, and payment as herein provided, title to all materials, equipment (except construction equipment), work in process, and other


things procured or produced by the Contractor under this Contract shall vest in Owner. Upon such termination, Owner shall accept the Contractor's commitments under all unfulfilled purchase orders theretofore issued by Contractor in good faith in connection with the Work. The Contractor shall be obligated for all guarantees under the Contract applying to the portion of the Work completed prior to the termination. In addition to all other compensation to which the Contractor is entitled under this Contract, Owner shall reimburse the Contractor for reasonable out-of-pocket costs, charges, and expenses incurred as a direct result of such suspension.

ARTICLE 17 GUARANTEES AND INSPECTION 17.1 The Contractor guarantees for a period of one (1) year, or such longer period of time as may

be prescribed by law or by the terms of any warranty required by the Contract Documents, after Completion (as defined in Article 45 of the General Conditions) of the Work that all workmanship and/or materials which it or its subcontractors, if any, furnish under this Contract will be of the very best quality, first class in every particular for the grade specified, free from objectionable defects, and will conform in all respects to the Drawings and Specifications, if any, applicable to the Work. All work and materials furnished by the Contractor under the terms hereof shall be subject to the approval of Owner's Representatives and other inspectors, but such approval shall not relieve the Contractor of its responsibility for improper, inferior, or defective workmanship or materials, whether latent or otherwise. If any failure or failures to meet or to conform to the guarantees are found within the guarantee period commencing with the date of Completion of the Work, the Contractor will: bear the entire costs of any repairs, alterations, and replacements necessary to repair, alter, or, where necessary, to remove and replace defective workmanship and/or materials, except, however, where the necessity of such was due to defective workmanship and/or materials furnished by Owner.

17.2 Such repairs, alterations, and replacements shall not constitute a limitation on Contractor's

liability for direct damages resulting from such defective workmanship and/or materials and Contractor, in addition to making such repairs, alterations, and replacements, shall be fully responsible for any such direct damages in accordance with all applicable agreements and/or laws.

17.3 Owner shall have the right to inspect, at Owner's expense, and the Contractor shall allow

Architect and Owner free and unrestricted access to Contractor's, subcontractor's or vendor's work whether located at the site of the Work or elsewhere for such inspections and Contractor shall furnish such information and facilities as may be necessary or pertinent for inspecting the Work covered by this Contract. Owner's exercise of such rights of inspection shall not relieve Contractor of any of its obligations set forth herein [GC Article 19].


ARTICLE 18 INDEMNITY 18.1 The Contractor’s duty to indemnify under this Agreement is set forth in Article 13 of the

General Conditions. ARTICLE 19 INSURANCE 19.1 Contractor shall comply with the insurance and bonding requirements as set forth in Articles

14 and Article 30 of the General Conditions. ARTICLE 20 LIENS 20.1 If at any time there shall be evidence of any lien or claim for labor, materials, or other things

furnished for the Work, for which, if established, Owner or its property might become liable and which is chargeable to Contractor or any Subcontractor or material supplier of Contractor, Contractor shall pay or obtain the release or discharge of the same without expense to Owner, providing Owner is not in breach of its payment obligations. Owner shall have the right, so long as any lien or claim remains unreleased, to retain an amount sufficient to pay such lien or claim, with interest and reasonable expenses incurred in connection therewith, out of any payment then due or thereafter to become due from Owner to Contractor, and to pay such portion thereof as the sums so withheld will pay. Should any such lien or claim remain unreleased or remain wholly or in part unpaid at a time when there are no other payments to become due Contractor under this Contract and all sums withheld have been applied upon such liens or claims, Owner may pay the balance thereof with its own funds and Contractor shall reimburse Owner for all monies that the latter may pay in discharging or settling such liens or claims, together with reasonable expenses (including costs and attorney's fees) incurred by it in so doing. When all such liens and claims shall have been paid and satisfied by Contractor or by Owner, Owner shall then release to the Contractor such portion of the sum retained by Owner as was not used to reimburse Owner for any of its own monies which may have been used in discharging such liens, claims, and expenses.

20.2 Contractor agrees to comply with the requests of the Owner or title company insuring the

Project in order that Owner may obtain any form of mechanic lien protection Owner deems desirable.


ARTICLE 21 LAWS, RULES, REGULATIONS, ETC. 21.1 Contractor shall comply with and require that all its subcontractors, vendors, and material

men comply with all valid municipal ordinances, state and federal laws, and all applicable orders, regulations, and directives issued thereunder by any authorized government agency, and any amendments thereto, in the performance of the Contract including, but not limited to:

(a) 41 CFR, Section 60-1.4(a), issued pursuant to Executive Order 11246--Equal

Employment Opportunity

(b) 41 CFR, Section 60-250.4--Disabled Veterans and Veterans of the Vietnam Era

(e) 41 CFR, Section 60-741.4--Requiring Affirmative Action for Handicapped Workers

(f) 41 CFR, Section 1-1310-2 of the Federal Procurement Regulations relating to

Minority Business Enterprises

(e) Immigration Reform and Control Act of 1986

and will file all required reports and will furnish or cause to be furnished to Owner such stipulations, statements, or certificates evidencing such compliance therewith as Owner may require for its protection.

21.2 If in the execution or performance of this Contract, the Contractor shall have violated any

laws, rules, orders, regulations, or ordinances applicable to the work hereunder, then Contractor shall indemnify, defend and save Owner harmless from all damages or penalties paid by Owner or imposed upon Owner resulting from any such violation committed by the Contractor or his agents in such execution or performance of the work hereunder.

21.3 All work to be performed under this Contract, and each subcontract hereunder, is to be

performed by a work force reflecting the provisions of any Generally adopted plan in effect at the Work location for increasing minority participation in the construction industry. Every solicitation for bids will notify the bidder that it must agree to be so bound by the application plan and no subcontract will be awarded to any subcontractor who does not agree to be so bound, if any other subcontractor has submitted a reasonable bid.


ARTICLE 22 CLEAN AIR ACT/WATER POLLUTION CONTROL ACT 22.1 Contractor agrees that the contract clause set forth in 40 CFR Section 15.4(c), requiring

compliance with the Clean Air Act (42 U.S.C. 7401 et seq.) and the Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended, if applicable, is incorporated herein by reference.

ARTICLE 23 RCRA AND CERCLA 23.1 Any work performed by Contractor which is subject to the Resource Conservation and

Recovery Act, as amended, or the Comprehensive Environmental Response, Compensation and Liability Act of 1980 shall be performed in accordance with those laws and rules and regulations promulgated pursuant thereto and any similar state or local laws, rules, or regulations.

ARTICLE 24 FORCE MAJEURE 24.1 Any delays in or failure of performance of either party under the Contract shall not constitute

default hereunder or give rise to any claims for damages against the other party if and to the extent caused by occurrences beyond the control of the party affected, including, but not limited to, acts of God, strikes or other concerted acts of workmen, fires, floods, explosions, riots, war, rebellion, and sabotage.

ARTICLE 25 WAIVER 25.1 A waiver on the part of either party hereto of any term, provision, or condition of the Contract

shall not constitute a precedent or bind either party hereto to a waiver of any succeeding breach of the same or any other term, provision, or condition of the Contract.

25.2 No conditions, understandings, or agreements purporting to modify or vary the terms of this

Contract shall be binding unless hereafter made in writing and signed by an authorized representative of each party.


ARTICLE 26

SAFETY PROVISIONS [GC Article 8] 26.1 Inasmuch as the health and safety of Contractor's employees as well as those of its

subcontractors is of the essence to this Agreement, Contractor agrees as follows:

(a) Safety Laws and Regulations

All merchandise furnished and/or work performed hereunder shall fully comply with all lawful governmental safety and health requirements, including the rules and standards established by the Williams-Steiger Occupational Safety and Health Act of 1970, as amended, the Federal Mine Safety and Health Act of 1977, as amended, and any other applicable Federal, State, and/or local safety or health laws, rules, or regulations and implementations thereof.

(b) Safety Inspection

Contractor acknowledges and represents that it has made an on-site inspection of Owner's premises and the work area so as to be familiar with all conditions which may affect the safety and health of its employees as well as those of its subcontractors. Owner reserves the right, but not the obligation, to inspect the safety work performance of Contractor and its subcontractors to ascertain their compliance with these safety provisions. Not withstanding the foregoing, Contractor, as an independent business, is solely responsible for controlling the manner and means by which it performs its work pursuant to the provisions of the Contract. Contractor will assign and Site Safety Director to provide oversight in the field and ensure best practices are being employed at all times.

(c) Safety Equipment

Unless otherwise agreed to by the parties in writing, Contractor shall provide all safety equipment, materials, tools, and personal protection equipment necessary to perform the work in a safe, healthful, and workmanlike manner. Any safety items provided by Owner to Contractor for the benefit of Contractor's employees or those of its subcontractors shall be at the sole risk and liability of Contractor to make sure that such safety items are fit for the use intended and are in proper working order. Contractor agrees to indemnify and save harmless Owner from any and all claims of Contractor, its employees, subcontractors, and their employees arising out of the use of any safety items furnished by Owner or safety advice given by Owner relating to such safety items, to the fullest extent allowed by law, it being understood that Owner shall not be liable under law, strict liability, or otherwise.


(d) Accident Reports

Contractor shall immediately report to Owner all accidents, occupational injuries, and illnesses involving its employees or those of its subcontractors, relating to the work to be performed hereunder, or which causes any injury to a third party, or which causes damage to the property of Owner or a third party. Contractor shall promptly furnish to Owner copies of any workmen's compensation first report of injury or illness forms filed by any of its employees or those of its subcontractors and, when requested, assist Owner in any investigation it may conduct of any such accident, injury, or illness.

(e) Right of Termination

Without limitation or waiver of any of Owner's rights elsewhere set forth in the Contract, Owner reserves the right, but not the obligation, upon 48 hours prior notice, to stop the work of Contractor and/or its subcontractors at any time and in addition thereto to immediately terminate the Contract without liability, except to pay for work already performed, should Contractor or its subcontractors fail to comply with the provisions of this Article 26 herein and cure such failures to comply within said 48-hour period. [GC Articles 47 & 48]

ARTICLE 27 CONFIDENTIALITY 27.1 In connection with work performed pursuant to this Contract, Contractor may receive

confidential, proprietary information used in Owner's operations. Contractor agrees to maintain in confidence all such information received directly or indirectly from Owner, not to disclose any information to any third party without Owner's prior written consent, and to use such information only for design, materials procurement, construction, alteration, maintenance, repair, and operation of Owner processes or equipment as required under this Contract. Contractor shall restrict access to such information to those of its employees who have a reasonable need for such information in carrying out their respective duties on behalf of Contractor pursuant to this Contract and who have agreed to maintain such information in confidence

27.2 Contractor shall not release any information on the Project to the public without the written

consent of Owner.


ARTICLE 28 RIGHT TO PERFORM OTHER WORK 28.1 Owner reserves the right to perform other work or to let other contracts in connection with

the Work hereunder. The Contractor shall afford Owner, or other contractors, reasonable opportunity for the introduction and storage of their materials and the execution of their work, and shall properly coordinate and connect its work with theirs. Contractor shall provide shared, but not incremental, General Conditions (e.g., heat, lighting, etc.). If any part of the Contractor's work depends on the proper execution or results of the work of Owner, or of another contractor, the Contractor shall inspect and promptly report to Owner any defects or schedule delays it discovers in such work that render it unsuitable for such proper execution and result. The Contractor's failure to so inspect and report shall constitute an acceptance of Owner's or other contractor's work as fit and proper for the reception of the Work hereunder, except as to defects which may develop in Owner's or other contractor's work after the execution of the Work hereunder. To insure the proper execution of its subsequent work, the Contractor shall measure work already in place and shall at once report to Owner any discrepancy it discovers between the executed work and the Drawings and Specifications.

ARTICLE 29 CONFLICT OF INTEREST 29.1 Contractor warrants that it has not given any commissions, payments, gifts of substantial

value, kickbacks, lavish or extensive entertainment, or other things of value to any employee, member of the employee's family, or agent of Owner or received same from any vendor, supplier, or contractor in connection with this Contract and acknowledges that the giving or receiving of any such payments, gifts, kickbacks, extensive entertainment, or other things of value is strictly in violation of Owner's policies and may result in the cancellation of this and all future contracts. Contractor shall notify Owner of any such solicitation by any of Owner's employees, family members, or agents. Owner shall have the right to audit Contractor's records pertaining to compliance with this paragraph.

ARTICLE 30 SUBCONTRACTS AND OTHER AGREEMENTS 30.1 All portions of the Work that the Contractor's organization does not perform shall be

performed under Subcontracts or by other appropriate agreement with the Contractor. Contractor shall seek to develop subcontractor interest in the Project and shall furnish to the Owner, Project Manager and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. To the extent


that the Subcontractors for the Project have not been selected and approved by the Owner as of the date hereof, Contractor’s proposed list shall include at least three (3) pre-qualified subcontractors or suppliers for each trade performing a portion of the Work, unless a lesser number of subcontractors for a particular trade is recommended by Contractor (subject to Owner’s approval), and shall identify such subcontractor’s or supplier’s specialties, unique qualifications and specific experience. The Architect, Project Manager and/or Owner will promptly reply in writing to Contractor if the Architect, Project Manager, and/or Owner know of any objection to any such subcontractor or supplier. The receipt of such list shall not require the Owner, Project Manager or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of Owner, Project Manager or Architect later to object to or reject any proposed subcontractor or supplier. The Contractor shall request bids from the approved subcontractors. The Owner and the Contractor shall jointly determine which bidders or bids will be accepted. In the case of a disagreement, the Owner's decision shall prevail. Owner reserves the right to be present at receipt of any and all bids as well as scope reviews.

30.2 All Subcontracts shall conform to the requirements of the Contract Documents. Subcontracts

awarded on the basis of the cost of such Work plus a fee shall also be subject to the provisions of this Agreement insofar as applicable. All subcontract agreements are to state specific cancellation costs, if any.

30.3 All subcontractors' Contract Agreements, upon written request from Owner shall be

assignable to the Owner (or, at the Owner's election, the construction lender or title insurer, if any) at any time and in accordance with paragraph 34.2.

30.4 The Contractor shall submit a copy of its Standard subcontractor Agreement to the Owner for

his review prior to execution with any subcontractor. Changes from such Standard on any Subcontract shall be subject to the Owner's prior review.

30.5 Unless approved by Owner in writing, all Subcontracts, materials and equipment purchases,

awards for services or equipment rentals shall be awarded to the lowest responsible and qualified bidder.

30.6 Should Contractor desire to perform a portion or portions of the Work with its own forces

(other than those provided for herein), Contractor shall advise Owner of its desire and Owner shall promptly and solely determine if Contractor shall be considered to perform such work.

30.6.1 Should Contractor be considered to perform such work, Contractor will

participate in the qualification and selection process on equal standing with other subcontractors.

30.6.2 The bidding and/or negotiation process shall follow those procedures as outlined

within Articles 7 & 10 of the General Conditions.


30.6.3 Should Contractor be awarded with such work, Contractor shall be considered a subcontractor for such work and shall be treated as, and have the same obligations as other subcontractors.

30.7 Prior to the award of any Subcontract, Owner shall be made aware of, and shall approve, any

unique cashflow obligations for materials required prior to the time the product would normally be incorporated into the work.

ARTICLE 31 AUDIT 31.1 Owner may, upon its request, audit any and all records of Contractor and any subcontractor

relating to work performed and/or materials and/or services provided hereunder; provided, however, Contractor and subcontractor shall have the right to exclude any trade secrets, formulas, or work processes from such inspection. Contractor further agrees to maintain its books and records relating to work performed hereunder for a period of three (3) years from the date such work was completed or such materials and/or services were provided and to make such books and records available to Owner at any time or times within the three (3) year period. With respect to subcontractor the time period for retention and inspection by Owner of books and records shall be limited to one (1) year after final completion.

ARTICLE 32 NOTICES [GC Article 29] 32.1 All consents, approvals, or notices required or permitted to be given by either party pursuant

to this Agreement shall be in writing and, if directed to either party, shall be deemed properly sent if personally delivered or mailed (by U.S. registered or certified mail, postage prepaid and return receipt requested) to the following respective addresses: Contractor: Henegan Construction Co., Inc.

Attention: Maureen A Henegan Chief Executive Officer

250 West 30th Street New York, NY 10001

Owner: Building Service 32 BJ Health Fund SEIU Local 32 BJ

Attention: Peter Goldberger Deputy Executive Director,

101 Avenue of the Americas New York, NY 10013


ARTICLE 33 MISCELLANEOUS 33.1 This Contract represents the entire and integrated agreement between the parties hereto and

supersedes all prior negotiations, representations, or agreements, whether written or oral. 33.2 Any acceptance, approvals, or consents required hereunder shall not be unreasonably

withheld or delayed. 33.3 All article, exhibit, section, paragraph, or subparagraph titles or captions contained herein and

in the Contract Documents are used only for the sake of convenience and shall not affect the meaning of this Contract.

33.4 All pronouns and variations thereof shall be deemed to refer to the masculine, feminine, or

neuter gender and the singular or plural number as the identity of the person or persons so described may require.

33.5 In the event of any dispute or controversy between Owner and Contractor arising under this

Contract, the Contractor shall diligently continue to prosecute the Work pending the resolution of any such dispute or controversy; the amount of payment, if any, so disputed shall be held back pending such resolution.

33.5.1 It is intended by the parties to resolve all disputes or other matters in question

arising out of or in relation to this Contract, or the breach thereof by reasonable business-like negotiations without resort to litigation.

33.6 Contractor shall immediately advise Owner of any claims, suits or other legal actions relating

to the Work for which Owner may become liable or which might attach to Owner's property. 33.7 Contractor agrees that he will not actually commence construction or order supplies or

equipment without the express written authorization of Owner. 33.8 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 Article 60 of the General Conditions except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to such dispute resolution.

33.9 In connection with the Project, the Contractor shall not knowingly accept for its own

account any trade discounts or contributions, diversion of a discount or credit to another project, or deal with (or recommend that the Owner deal with) any firm with which the Contractor has a financial interest other than arm’s length commercial dealings in the ordinary course of business, or undertake any activity or employment which would or could create a conflict of interest or compromise the Contractor’s professional judgment or prevent the Contractor from serving the best interests of the Owner.


33.10 Notwithstanding anything to the contrary set forth in this Agreement, all rights and

remedies accorded to the Owner and the Contractor hereunder and by law are separate and cumulative and not alternative and may be pursued separately, successively or concurrently at the Owner’s or Contractor’s sole option, and the pursuit of any particular remedy shall not preclude other remedies.

33.11 Contractor shall not disclose to anyone, use for its benefit or the benefit of any third

party, other than the Owner, information provided by the Owner, Project Manager, Architect or any Architect’s consultants, identified as confidential and not generally known to the public regarding the Project, the Contract Documents or the Owner, its affiliates or subsidiaries, either prior to or after the date of the Contract (collectively, "Confidential Information"), other than information required in applications for construction permits or to Subcontractors on a need-to-know basis in connection with the proper performance of their portions of the Work, without the Owner’s prior written consent. The Confidential Information has been and shall be used solely and exclusively for the purpose of optimizing Contractor’s performance of its services and construction of the Project and for no other purpose. All Confidential Information shall continue to be kept confidential by Contractor during and after the completion or earlier termination of the Contract; provided, however, that this obligation of confidentiality shall not apply to information that (i) was already in the public domain or which becomes so through no act or omission of Contractor, or (ii) is required to be disclosed pursuant to any judicial or governmental request, requirement or order, provided that Contractor shall take all reasonable steps to provide prompt and sufficient notice to the Owner so that the Owner may contest such request, requirement or order. Contractor shall ensure that Contractor’s employees, representatives and agents shall be bound by an obligation of confidentiality with respect to the Confidential Information, and shall include a parallel provision in each subcontract, substantially the same as this paragraph 33.11. The Owner shall be entitled to equitable relief, including injunction, in the event of any breach of this paragraph 33.11 but such relief shall no be the exclusive remedy for such breach.

33.12 Except as otherwise specifically provided in this Agreement, any and all artwork, creative

materials, plans, specifications and other materials, information, data or ideas specific to Owner, custom research, databases or documents prepared, purchased, specifically commissioned, collected for or furnished to Owner by Contractor under this Agreement shall be "Works Made for Hire" as defined under the U.S. Copyright Act of 1976, and for all other purposes. To the extent that for any reason any Works Made for Hire (or any element thereof) is held finally by a competent authority not to be a work made for hire, Contractor hereby grants, transfers and assigns (or shall arrange for the grant, transfer and assignment) to Owner all rights, title, and interest (including without limitation all intellectual property and moral rights) in such works (or element thereof) to Owner. Without limiting Owner’s rights under the preceding sentences of this paragraph 33.12, Owner shall have the exclusive worldwide right in perpetuity to use, modify and fully exploit (and/or license others to do the same) all or any part of the Works for Hire, in any


format or version, by any means and in any media, whether or not used therein, whether now known or hereafter developed, without the necessity of further consideration, for promotional, commercial or any other purpose.

ARTICLE 34

ASSIGNMENT [GC Article 24] 34.1 Contractor shall not assign this Contract or any of its rights hereunder without the express

written consent of Owner, which consent may be withheld at the discretion of the Owner.

[Remainder of page intentionally left blank; signatures appear on next succeeding page.]

EXHIBIT A

GENERAL CONDITIONS

CONTENTS

ARTICLE TITLE

ARTICLE 1 DEFINITIONS

ARTICLE 2 CONTRACT DOCUMENTS

ARTICLE 3 EXECUTION, CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS

ARTICLE 4 OWNERSHIP AND USE OF DOCUMENTS

ARTICLE 5 ARCHITECT/CONSULTANT’S RESPONSIBILITIES

ARTICLE 6 CONTRACTOR’S RESPONSIBILITIES

ARTICLE 7 SUBCONTRACTS/SUBCONTRACT BIDDING AND AWARD

ARTICLE 8 PROTECTION/SAFETY/CONSTRUCTIONPRACTICES

ARTICLE 9 EMERGENCIES

ARTICLE 10 SEPARATE CONTRACTS

ARTICLE 11 MUTUAL RESPONSIBILITY OF CONTRACTORS

ARTICLE 12 USE OF PREMISES/REMOVAL OF DEBRIS

ARTICLE 13 INDEMNIFICATION

ARTICLE 14 INSURANCE

ARTICLE 15 DRAWINGS AND SPECIFICATIONS

ARTICLE 16 STANDARDS

ARTICLE 17 CONTROL OF THE WORK

ARTICLE 18 MATERIALS AND WORKMANSHIP

ARTICLE 19 INSPECTION OF WORK AND MATERIALS

ARTICLE 20 DELIVERY AND STORAGE OF MATERIALS

ARTICLE 21 SUBMITTALS

ARTICLE 22 LABORATORY TESTS

ARTICLE 23 ROYALTIES AND PATENTS

ARTICLE 24 ASSIGNMENTS

ARTICLE 25 USE OF COMPLETED PORTIONS

EXHIBIT A

GENERAL CONDITIONS

CONTENTS

ARTICLE TITLE

ARTICLE 26 CONTRACTOR'S TITLE TO MATERIAL

ARTICLE 27 TAXES

ARTICLE 28 PROJECT SCHEDULE

ARTICLE 29 NOTICE

ARTICLE 30 PERFORMANCE BOND/LABOR AND MATERIAL PAYMENT BONDS

ARTICLE 31 PROGRESS AND COMPLETION OF THE WORK

ARTICLE 32 DELAYS AND EXTENSIONS OF TIME

ARTICLE 33 GUARANTEED MAXIMUM PRICE/SCHEDULE OF VALUES

ARTICLE 34 CONTRACTOR REQUESTS FOR PAYMENT/NO LIENS

ARTICLE 35 CERTIFICATES FOR PAYMENT

ARTICLE 36 PROGRESS PAYMENTS

ARTICLE 37 PAYMENTS WITHHELD

ARTICLE 38 SUBSTANTIAL COMPLETION AND FINAL INSPECTION

ARTICLE 39 FINAL PAYMENT


ARTICLE 41 CONCEALED CONDITIONS

ARTICLE 42 CLAIMS FOR ADDITIONAL COST/TIME EXTENSIONS

ARTICLE 43 MINOR CHANGES IN THE WORK

ARTICLE 44 UNCOVERING OF WORK

ARTICLE 45 CORRECTION AND GUARANTEE OF WORK

ARTICLE 46 ACCEPTANCE OF DEFECTIVE OR NON- CONFORMING WORK/EARLY OCCUPANCY

ARTICLE 47 CONTRACTOR'S TERMINATION OF THE CONTRACT

ARTICLE 48 OWNER'S TERMINATION OF THE CONTRACT

ARTICLE 49 CUTTING AND PATCHING

ARTICLE 50 ACCESS

EXHIBIT A

GENERAL CONDITIONS

CONTENTS

ARTICLE TITLE

ARTICLE 51 DEFAULT OF CONTRACTOR

ARTICLE 52 LEGAL REQUIREMENTS

ARTICLE 53 BUILDING MATERIALS/EQUIPMENT/PROCESSES

ARTICLE 54 SURVIVING PROVISIONS

ARTICLE 55 CAPTIONS

ARTICLE 56 SEVERABILITY

ARTICLE 57 NO CLAIMS AGAINST PROJECT MANAGER OR ARCHITECT/CONSULTANTS

ARTICLE 58 NO WAIVER

ARTICLE 59 APPLICABLE LAW

ARTICLE 60 CLAIMS AND DISPUTES

___________________________________________________________________________________________ Owner – CM/GC Agreement General Conditions Building Service 32BJ Health Fund September 15, 2010 1 New York, NY

EXHIBIT A

GENERAL CONDITIONS

ARTICLE 1 DEFINITIONS

Wherever in these General Conditions or other Contract Documents the following terms, or pronouns in place of them, are used, the intent and meaning shall be interpreted as follows:

1.1 ADDENDA. Written changes or interpretations of the proposed Contract Documents issued by the Architect/Consultant or Project Manager prior to the execution of the Contract or any Subcontract. Addenda are included as Contract Documents upon execution of the Contract.

1.2 ARCHITECT/CONSULTANT. The firm engaged to develop the Drawings and Specifications for the Project and to oversee construction for compliance with the Drawings and Specifications as identified in the Owner – Contractor Agreement.

1.3 CONTRACT, AGREEMENT or OWNER – CONTRACTOR AGREEMENT. The written agreement between Building Service 32BJ Health Fund (as "Owner") and the Contractor covering the performance of the Work as defined by the Contract Documents. The Contract supersedes all prior negotiations, or agreements, either written or oral. The Contract shall also include any Modifications required to complete the Work and alterations or extensions thereof.

1.4 CONTRACT TIME. The number of calendar days shown in the Contract Documents or established by the completion date given therein, indicating the time allowed for Substantial Completion of the Work of the Contract.

1.5 CONTRACTOR. The person or entity undertaking and being solely responsible for the Work of the Contract. The Contractor shall be fully liable for the acceptable performance of the Work and for the payment of all legal debts for work or services performed by its own workers, Subcontractors, material suppliers, and any workers or service providers who in lieu of an executed contract can demonstrate delivery of material or a service and request for payment of such material or services (e.g., purchase order, letter to proceed, materials or service invoice, etc.).

1.6 OWNER. The person, firm or institution for which the Work is being performed. The Owner is Building Service 32BJ Health Fund, having an office at 101 Avenue of Americas, New York, NY 10013. For purposes of administering this Contract on behalf of the Owner, all rights of the Owner set forth in this Contract shall be deemed to apply to the Project Manager, as Owner’s Agent.

1.7 DRAWINGS and SPECIFICATIONS. Drawings may include plans, elevations, sections, details, sketches, diagrams, photographs or other graphic representations prepared by the Architect/Consultant and included as Contract Documents. Drawings show the extent, location, character, dimensions, elevations, materials, profiles and details of the Work. The Specifications is a Contract Document, prepared by the Architect/Consultant, which establishes standards of quality for materials and assemblies forming the Work. The Specifications also establishes certain required procedures to be followed by the Contractor to assure quality of the Work.

___________________________________________________________________________________________ Owner – Contractor Agreement General Conditions Building Service 32BJ Health Fund September 15, 2010 2

1.8 PROJECT. The total construction, of which the Work performed under this Contract, may be the whole or a part.

1.9 PROJECT MANAGER. The person or firm responsible for managing the entire Project on behalf of the Owner. The Project Manager is Newmark Knight Frank Project & Development Management, having an address at 125 Park Avenue, New York, NY 10017.

1.10 PROJECT SITE. For the purposes of this Contract, including Article 14 hereof, the Project Site shall include the areas within or upon the property known as the 620 Avenue of Americas, New York, New York, including the buildings, the landscape and improvements surrounding the buildings and the ways and waterways adjoining said property and nearby areas where incidental operations are performed.

1.11 SUBCONTRACTOR. A person or entity performing Work of this Contract under the Contractor via contract, other written instrument (e.g., purchase order or written authorization letter or demonstrable verbal contract), acting directly or through an authorized agent or employee.

1.12 WORK. All performance, including the furnishing of materials, labor, tools, equipment, supervision and incidentals required of the Contractor under the terms of the Contract to complete constructions required by the Contract Documents.

ARTICLE 2 CONTRACT DOCUMENTS

2.1 The Contract Documents include documents as listed in the Owner – Contractor Agreement. 2.2 The Contract Documents shall also include all required bonds, insurance certificates, and the Notice to Proceed.

2.3 The Contract Documents may be amended or modified after execution of the Contract as provided in this Paragraph 2.3. A Modification is 1) a written amendment to the Contract signed by both parties to the Contract, 2) a Change Order, 3) written interpretations issued by the Architect/Consultant, or 4) a written order for a minor change in the Work not involving a change in the Project Cost or Contract Time.

2.4 The Contract Documents shall not be construed to create any kind of contractual relationship between the Architect/Consultant or Project Manager and the Contractor, but the Architect/Consultant and/or Project Manager shall be entitled to performance of obligations intended for the benefit of Architect/Consultant and/or Project Manager and for the enforcement of this Contract, including, but not limited to, the right to inspect certain records or documents, including Subcontracts, the right to receive Submittals in a timely and organized manner, and the right to access Contractor’s working areas. Nothing contained in the Contract Documents shall create any contractual relationship between the Owner or the Architect/Consultant or Project Manager and any Subcontractor or Sub-subcontractor.


2.5 The Drawings and Specifications are to be treated by Contractor as "scope" documents, which indicate the general scope of the Project and the Work. As scope documents, the Drawings and Specifications do not necessarily indicate or describe all items required for the full performance and proper completion of the Work. This Contract is let with the understanding that Contractor is to furnish, subject to the Project Cost, all items required for proper completion of the Work. Subsequent Drawings and Specifications, which may more completely detail certain requirements of the Work, may be issued, at the option of the Architect/Consultant, for the purpose of clarification of the intent of the Drawings or Specifications, but Architect/Consultant is under no obligation to issue such additional documents. Any item of Work mentioned in the Specifications and not shown on the Drawings, or shown on the Drawings and not mentioned in the Specifications, shall be provided as if shown and mentioned in both.

2.6 The Work shall be first class and in accordance with the highest standards of the construction industry in the city where the Project is located. Contractor shall be responsible for providing a sufficient quantity of materials, parts and equipment for removal and installation of all items of the Work indicated, described or reasonably inferable from the Contract Documents.

2.7 The Specifications generally describe Work that cannot be readily indicated on the Drawings, such as types, qualities and methods of removal and installation for materials and equipment. It is not intended to describe every item of Work in the Specifications which can be shown on the Drawings nor to show on the Drawings all items of Work which can be described in the Specifications even if such items are of such nature that they could have been shown on the Drawings or described in the Specifications. All materials and labor for the Work which are shown on the Drawings or described in the Specifications or are inferable therefrom as necessary to produce a finished job shall be provided by Contractor.

2.8 The Specifications are separated into titled sections for convenience only and not to suggest the trade or craft involved.

2.9 Where "as shown," "as indicated," "as detailed" or words of similar import are used in the Contract Documents, reference is made to the Drawings unless otherwise stated. Where "as directed," "as required," "as permitted," "as authorized," or words of similar import are used, the direction, requirement, permission, authorization, approval, acceptance or selection by Project Manager or Owner is intended unless otherwise stated. "Provide" means provide complete in place; furnish and install, ready for operation and use.

2.10 Any reference in the Contract Documents to standard specifications of a society, institute, association or governmental authority is a reference to the standard specifications of such organization that are in effect at the date of this Agreement. If such specifications are revised prior to completion of any part of the Work to which such revision would pertain, Contractor may, if acceptable to Owner, perform such Work in accordance with such revised specifications.

2.11 The standard specifications referred to in Paragraph 2.10, except as modified in the Specifications, shall have full force and effect as though printed in the Specifications. The manufacturers and trades performing the Work are assumed to be familiar with such standard specifications. Architect/Consultant will furnish, on request, information as to how copies of standard specifications may be obtained.

2.12 All copies of Drawings and Specifications are the property of Owner and are not to be used on any other project. The Drawings and Specifications are to be returned to Owner on its request.


2.13 In the event there is a discrepancy between the various Contract Documents, the following order of priority will be used:

2.13.1 Exhibits to this Contract; however nothing in the Exhibits shall vary the Drawings, Specifications and/or the General Conditions unless and to the extent that it is explicitly stated in the Exhibits that the Drawings and Specifications and/or the General Conditions are varied;

2.13.2 Owner – Contractor Agreement;

2.13.3 General Conditions and Supplemental General Conditions, if any;

2.13.4 Drawings and Specifications;

2.13.5 If the discrepancy is between the Drawings and the Specifications, or within the Specifications, or within the Drawings, then the discrepancy shall be submitted to Project Manager who shall refer the matter to the Owner. The general rule for interpretation will be that the discrepancy will be resolved in favor of providing the better quality or greater quantity of work and/or materials. The decision of Owner as to which of the conflicting requirements shall govern shall be final, and Contractor shall perform the Work in accordance with such decision and without any change in the Project Cost. Owner may solicit the advice of Architect/Consultant under Article 5 hereof.

2.13.6 If the discrepancy is between the Specifications and the standard specifications of a society, institute, association or governmental authority the more stringent shall prevail.

2.14 Drawing dimensions shall not be determined by scale or rule. Figured dimensions shall be followed. If figured dimensions are lacking, Architect/Consultant shall supply them on Contractor's request made to the Project Manager. Contractor is responsible for coordinating the Drawings and Specifications with field conditions and reporting to Project Manager and Architect/Consultant any discrepancies.

2.15 Contractor shall take field measurements and verify field conditions and compare such field measurements and field conditions with the Drawings and Specifications before activities are commenced. Errors, inconsistencies, conflicts or omissions discovered are to be reported to Project Manager at once. Any Work done by the Contractor with respect to any portion of the Work affected by such error, discrepancy, conflict, misunderstanding, or variance after Contractor's discovery will be at Contractor's own risk and Contractor shall bear all costs and loss arising therefrom.

2.16 The terms “discover”, “knowledge”, and “recognize” and their respective derivatives and similar terms in the Contract Documents, and as used in reference to the Contract, shall be interpreted to mean that which a reasonable contractor discovers or should discover, knows or should know, recognizes or should recognize in exercising reasonable care, skill and diligence. The term “reasonably inferable” and similar terms in the Contract Documents shall be interpreted to mean reasonably inferable by a contractor reasonably familiar with the Project and exercising the reasonable care, skill and diligence of a reasonably prudent contractor.


ARTICLE 3 EXECUTION, CORRELATION AND INTENT OF

THE CONTRACT DOCUMENTS

3.1 The Contract Documents shall be signed by the Owner and Contractor in triplicate. By executing the Contract, the Contractor represents that Contractor has visited the Project Site and become familiar with the local conditions under which the Work is to be performed, and correlated such observations with the requirements of all the Contract Documents.

3.2 The intent of the Contract Documents is to include all items necessary for the proper execution of and completion of the Work. All Work to be done and furnished under the Contract shall be in conformance with the Drawings and Specifications for the Work, and in conformance with those performance standards set forth by regulatory enforcement authorities and accepted industry standard-setting organizations such as Underwriters Laboratories (UL), the American Society for Testing Materials (ASTM), ANSI, etc.

3.3 The Contract Documents are complementary and what is required by any one shall be binding as if required by all. Work not covered in the Contract Documents will not be required unless it is consistent with the Work and is reasonably inferable from the Contract Documents as being necessary to produce the intended results. Words and abbreviations that have well-known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings.

ARTICLE 4 OWNERSHIP AND USE OF DOCUMENTS

4.1 All Contract Documents and copies thereof shall remain the property of Owner.

ARTICLE 5 ARCHITECT/CONSULTANT’S RESPONSIBILITIES

5.1 The Architect/Consultant will observe the Work to determine that the quality and progress of the Work are in conformance with the Contract Documents.

5.2 The Architect/Consultant shall have unrestricted access to Contractor’s work areas at all times for the purposes of making periodic observations and assuring compliance with the Contract Documents.

5.3 The Architect/Consultant shall make interpretations of the proper execution and progress of the Work within a reasonable time. All such interpretations shall be reasonably inferred from the Contract Documents and shall be made in writing or in the form of drawings.

5.4 The Architect/Consultant and Project Manager are not responsible for and will not have control or charge of construction means, methods, techniques, or procedures, or for occupational safety and health programs and precautions in connection with the Work, and the Architect/Consultant and Project Manager will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Architect/Consultant and Project Manager will not be responsible for nor have control or charge over the acts or omissions of the Contractor, Subcontractors, or of any of their agents or employees, or of any other persons performing any of the Work, including the responsibilities of the Contractor’s OSHA


Responsible Person as defined in the General Industry Standard (29 CFR 1910) and the Construction Standard (29 CFR 1926).

5.5 The Architect/Consultant and Project Manager shall have complete authority to inspect the work site including authority to issue a stop work order to the Contractor for failure to comply with any requirement of the Contract Documents in carrying out the Work or for any condition which could potentially affect the safety and health of any workers, Owner’s staff, or the public, including potential release of hazardous materials. Unless an emergency situation exists, stop work orders shall be issued in writing citing the deficiency; applicable Contract Document reference, date and time issued, and required correction. Any observed deficiencies in the Work, which may or may not potentially result in stop work orders shall be issued in writing and recorded by the Project Manager. Any failure by Contractor to request a required Work approval, or to obtain a satisfactory approval before proceeding to the next stage of Work shall not be construed to be a stop work order or a claim for delay of the Work or a claim for additional compensation. Such authority of the Architect/Consultant and Project Manager to issue a stop work order shall not be deemed a responsibility to do so and shall not relieve the Contractor from its sole responsibility for means and methods of construction and for site safety.

5.6 The Architect/Consultant will inspect the Work for compliance with the Contract Documents and will advise the Owner of any discrepancies found.

5.7 Neither Architect/Consultant, nor Project Manager, nor Owner shall be responsible for: construction means, methods, techniques, sequences or procedures of Contractor; safety precautions and programs of Contractor; the acts or omissions of Contractor; or the failure of Contractor to carry out the Work in accordance with the Contract Documents.

5.8 Unless Owner otherwise determines, Architect/Consultant shall be, in the first instance, the interpreter of the Drawings and Specifications, excluding discrepancies therein (which are governed by Subparagraph 2.13.5).

5.9 Upon request of Project Manager or Owner, Contractor shall place its engineering personnel (or such engineering or consulting firm as Contractor may have engaged in connection with the Work) at Architect/Consultant’s, Owner's and/or Project Manager's disposal for checking the Work. When layouts of the Project Site or Work are to be made, Contractor shall notify Architect/Consultant in reasonably sufficient time so that Architect/Consultant may be present.

5.10 Architect/Consultant is not authorized to make any changes or Modifications in the Contract Documents except for interpretations of the Drawings and Specifications and written revisions of the Drawings and Specifications approved by Owner.

5.11 All communications between (i) Architect/Consultant and Contractor and (ii) between Owner and Contractor shall be through Project Manager.

ARTICLE 6 CONTRACTOR'S RESPONSIBILITIES

6.1 The Contractor is acknowledged as completely independent of the Owner, Project Manager and Architect/Consultant. The Contractor is solely responsible for performance of the Work of the Contract. Contractor is acknowledged as a construction professional and, as such, shall use its best skill and attention in performing the Work. Contractor shall be solely


responsible for site safety and construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under this Contract.

6.2 The Contractor shall forward all communications to the Project Manager.

6.3 The Contractor shall maintain at the Project Site one copy of all Work Schedules, Drawings, Specifications, Addenda, approved Submittals, Change Orders and other Modifications in good order and marked to record all changes made during construction. These shall be made available to the Architect/Consultant and Project Manager upon request. The Contractor shall mark the Drawings to record all changes made during construction, and shall deliver such marked-up Drawings to the Owner upon completion of the Work.

6.4 The Contractor shall notify the Project Manager and the Owner of any discrepancies, ambiguities or omissions found in the Contract Documents, or an issued Work Order, before proceeding with the Work affected thereby. Such notification shall be made in writing requesting clarification and/or interpretation. The Project Manager will issue such clarification and/or interpretation with reasonable promptness consistent with and reasonably inferable from the Contract Documents. If the Contractor fails to make such request, no excuse will thereafter be entertained for failure to carry out Work in a satisfactory manner.

6.5 The Contractor shall employ on-site at all times, a competent English-speaking supervisor/foreman, satisfactory to the Owner and Project Manager, with authority to act for Contractor while Work is in progress. The Contractor shall not change its supervisor/foreman without permission from the Owner, and shall submit such a request in writing with justification for such change. The Owner reserves the right to have any of Contractor’s supervisory personnel removed if they do not demonstrate the experience, skills, or commitment to safely direct the Work, and adequately protect Contractor’s employees, any Subcontractor’s employees, Owner's staff, or the general public.

6.6 The Contractor shall be solely responsible for all construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work under this Contract.

6.7 The Contractor shall be responsible to the Owner for the acts and omissions of its employees, Subcontractors and their agents and employees, and other persons performing any of the Work for the Contractor. The Contractor shall at all times enforce strict discipline and good order among all persons employed on the Work and shall not employ on the Work any unfit person or anyone not skilled in the task assigned.

6.8 The Contractor shall not be relieved from any obligation to perform the Work in accordance with the Contract Documents, either by the activities of the Architect/Consultant or Project Manager in the administration of the Contract, or by inspections, tests or approvals required or performed under Article 19 or Article 22 or other provisions of the Contract Documents by persons other than the Contractor.

6.9 The Contractor shall comply with all federal, state and local laws, ordinances, regulations, and requirements applicable to Work hereunder, including building code requirements. If the Contractor ascertains at any time that any requirement of this Contract is at variance with applicable laws, ordinances, regulations or building code requirements, Contractor shall promptly notify the Owner and Project Manager in writing.


6.10 If the Contractor performs any Work knowing it to be contrary to such laws, ordinances and regulations and fails to notify the Project Manager, Contractor shall assume full responsibility therefore and shall bear all costs attributable thereto.

6.11 It is understood that, except as otherwise specifically stated in the Contract Documents, the Contractor shall provide and pay for all materials, labor, tools, equipment, licenses and fees, debris and/or waste transportation and disposal, transportation, superintendence, temporary construction of every nature and all other services and facilities of every nature whatsoever necessary to execute, complete and deliver the Work within the specified time. The Contractor shall pay for all fees and charges for connections to outside services and for use of property other than the Project Site for storage of materials or other purpose as a reimbursable expense.

6.12 The Contractor shall provide and maintain in a neat and sanitary condition at its own expense, such toilet facilities as Contractor requires to comply with the requirements of the state and/or local Board of Health or other agencies having jurisdiction therewith. Only such designated toilet facilities shall be used by Contractor's personnel and/or personnel of any Subcontractor.

6.13 The Contractor shall be completely responsible for complying with local trade union jurisdictions. The Contractor shall not unduly risk disputes of any kind which may result in delays, work stoppages or slowdowns that could affect the timely performance of the Work.

6.14 The Contractor shall be responsible for having an OSHA Responsible Person as defined in the U.S. Department of Labor General Industry and Construction Standards (29 CFR 1910 and 29 CFR 1926 respectively) at all times Work is in progress. Such OSHA oversight responsibility is non-transferable and shall remain the sole responsibility and duty of the Contractor throughout the performance of the Work.

6.15 The Contractor shall carefully study and compare, one with the other, all Drawings, Specifications and field conditions and at once report in writing to Project Manager any discovered error, conflict or omission (including variance from any Legal Requirements); and shall subsequently proceed with the Work only in accordance with instructions from Project Manager concerning such error, conflict, omission, or variance.

6.16 Whenever and wherever the Work of Contractor is dependent on the work of other contractors, Contractor shall coordinate the Work with such dependent work; provide to other contractors, or obtain from other contractors all necessary dependent data and requirements; supply and/or install items to be built into dependent work of other contractors; make provisions for dependent work of others; examine the drawings and specifications of dependent work; examine previously constructed dependent work; check and verify dependent dimensions of previously constructed work; notify Project Manager of previously constructed dependent work or dependent dimensions which are unsatisfactory or will prevent a satisfactory installation of the Work; use all necessary means to discover, and to notify Project Manager in writing of, any defect in other work upon which the satisfactory performance of the Work may depend; and allow a reasonable amount of time for remedying such defects. If Contractor proceeds with the Work, Contractor shall be considered to have accepted and be responsible for such other work unless, over Contractor's written objection, Contractor shall have proceeded pursuant to written instructions from Project Manager.


6.17 The Contractor shall submit to Project Manager promptly upon its request, information with respect to the names, responsibilities and titles of the principal members of Contractor's staff.

6.18 The Contractor shall furnish and maintain sufficient temporary facilities including construction barriers, field offices, shanties, material storage rooms, etc., which shall be placed in locations designated by Project Manager. Upon Owner’s direction, Contractor shall relocate such temporary facilities in an expeditious manner and at no cost to the Owner. Shanties, storage rooms, field offices, etc. shall be equipped with fire extinguishers and shall be of fire-resistant material only.

6.19 The Contractor shall pay costs of repair to other work attributable, in whole or in part, to the fault or negligence of Contractor. The Contractor shall pay charges for removal of rubbish and any cleanup attributed by Project Manager to Contractor, or the Work.

6.20 The Contractor shall comply with all Legal Requirements including appearing at hearings, proceedings or in court in respect of such compliance or in respect of violations or claimed violations of Legal Requirements arising out of the performance of the Work. The Contractor shall pay, not subject to reimbursement by Owner, any fines or penalties imposed for said violations; and pay all legal fees, fines and penalties incurred by or imposed upon Owner, Project Manager and other contractors relating to Contractor's compliance, violations or claimed violations. Without limiting the foregoing, Contractor shall appear at hearings, proceedings and/or in court and consent to its substitution as a party defendant in respect of all summonses and claimed violations arising out of or relating to the Work.

6.21 The Contractor shall not display, and shall not permit any Subcontractor or worker to display on or about the Project site any sign, trademark or other advertisement without written permission of Owner. This prohibition on the display of signs shall not be deemed to apply to legally required signs and/or signs reasonably required for the safety of workers and/or the public.

6.22 Before any Subcontractor is employed by Contractor or any other Subcontractor, Contractor shall submit the name of such Subcontractor in writing to Project Manager. No Subcontractor shall be employed unless acceptable to Project Manager and Owner in each of said parties' sole discretion. Each Subcontractor shall be bound to the Contractor by all Contract Documents to the same extent and with the same effect as Contractor is bound to the Owner by all Contract Documents. Each Subcontract shall contain an acknowledgment by each Subcontractor of the foregoing. Contractor shall submit each proposed Subcontract to Project Manager prior to execution, and no Subcontract shall be executed unless acceptable to Project Manager and Owner in each of said parties' sole discretion. Contractor shall deliver a fully executed copy of each Subcontract to the Project Manager and Owner promptly upon execution. Contractor shall cause Subcontractors to comply with all the Contract Documents. Contractor shall be responsible for all the acts, Work, material and equipment of Subcontractors and all persons either directly or indirectly employed by any of them.

6.23 In the event of any dispute as to whether any item or portion of the Project is within the scope of the Work to be performed by Contractor or any dispute as to whether Contractor is entitled to an extra payment, Contractor shall continue to proceed diligently with the performance of the Work, including any disputed work. The resolution, by agreement or otherwise, of the disputed work, shall be made between Contractor and Project Manager with reasonable promptness, subject to and on condition that Owner thereafter confirms the resolution


and agrees to be liable for and pay Contractor the amount of any agreed upon extra payment. In no event shall delay in such resolution excuse prompt performance by Contractor of the Work and the disputed work.

6.24 The Contractor shall (i) furnish a competent and adequate staff and use its best skill and attention for the proper performance, administration, coordination, supervision and superintendence of the Work; (ii) organize the procurement of all materials and equipment so that they will be available at the time they are needed for the Work; (iii) keep an adequate force of skilled workers on the job to complete the Work in strict accordance with all requirements of the Contract Documents; (iv) maintain throughout the duration of the Work a competent supervisor/foreman and any necessary assistants, all of whom shall be acceptable to Project Manager and Owner and shall not be changed without the consent of the Project Manager; (v) enforce discipline and order among Contractor's and Subcontractors’ employees and not employ at the Project any unfit person or anyone not skilled in the task assigned; (vi) provide supervision by experts in all aspects of construction for the materials, equipment or system being fabricated and installed; and (vii) attend job meetings and such other Project meetings as reasonably requested by Owner or Project Manager.

6.25 Directions given to Contractor's supervisor/foreman by Owner, Project Manager or Architect/Consultant shall be binding upon Contractor.

6.26 The Contractor agrees not to assign or sublet this Contract as a whole, or to assign any monies due or to become due under this Contract, without the prior written consent of Owner. Any such assignment or subletting of this Contract or of monies due under this Contract without the prior written consent of Owner shall be void, and the purported assignee shall acquire no rights in, under or to this Contract or monies.

6.27 The Contractor shall arrange with Project Manager for delivery, storage, protection and security for materials, systems and equipment that are part of the Work.

6.28 The Contractor shall assist Project Manager and Owner as needed or requested in obtaining approvals from authorities having jurisdiction over the Project.

6.29 The Contractor agrees to not disclose to third parties, without the consent of Owner, any confidential information obtained from or through Project Manager or Owner or any information which, if disclosed, may have an adverse impact on Project Manager, Owner or the Project. No press release or other non-routine informational materials related to the Project may be issued by Contractor or any Subcontractor without the prior written approval of Owner, which approval may be withheld in Owner's sole discretion.

6.30 The Contractor shall comply with all Legal Requirements relating to the terms and conditions of employment of any employee who is employed in connection with the Work, including, without limitation, the applicable provisions of the Fair Labor Standards Act, the Fair Employment Practices Law, the Equal Pay Act, Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunities Commission.

6.31 The Contractor shall obtain and pay for all permits, licenses and certificates of inspection necessary for the prosecution and completion of the Work as per the General Conditions Details set forth in Contractor’s proposal, attached to the Agreement as Exhibit J.


6.32 If any Work is performed which is contrary to Legal Requirements, the Contractor shall promptly make all changes as required and take all other corrective action to comply therewith and pay all costs arising therefrom.

6.33 The Contractor shall pay, whenever assessed, all applicable federal, state and local taxes on all materials, labor or services furnished by or through Contractor and all taxes arising out of Contractor's operations, which may be imposed upon or be collected from Owner and/or Project Manager or become a lien against the Project as a result of or arising out of the Work. Such taxes shall include, but not be limited to, occupational, sales, use, excise, old age, employee, lease, benefit and unemployment taxes, customs duties and all income, franchise, license and other taxes now in force or hereafter enacted.

6.34 The Contractor shall pay all royalties and license fees applicable to the Work. Contractor shall defend, indemnify and hold Owner, Architect/Consultant and Project Manager harmless of, from and against any and all suits, demands and claims for infringement of any patent rights except to the extent that a particular design, process or product is specified in the Contract Documents. The foregoing exception shall be inapplicable if Contractor had or should have had reason to believe the design, process, or product infringed upon a patent, and failed to give written notification to Project Manager of same.

6.35 The Contractor agrees that any review or consideration by Owner, Architect/Consultant, or Project Manager of any method of construction, invention, appliance, process, article, device or material of any kind shall be for its general adequacy for the Work and shall not be an approval for the use thereof by Contractor in violation of any patent or other rights of any third person.

6.36 If any provision of the Contract Documents conflicts with any agreement among members of a trade association, or with a union or labor council which regulates the work to be performed by a particular trade, Contractor shall reconcile such conflict without delay or damage to Owner or Project Manager. In the event the progress of the Work is delayed by such conflict, Project Manager may require that other material or equipment of equal or better kind and quality be provided at no additional cost to Owner. This right of substitution shall not limit other rights that Owner may have concerning such delay.

6.37 The Contractor agrees to employ labor that is compatible with the labor of other contractors; and to take all steps necessary to avoid labor disputes; and to be responsible for any delays and damages to Owner caused by such disputes. If any type of strike or other labor activity is directed against Contractor or any Subcontractor at the Project Site resulting in picketing or a boycott for a period of more than forty-eight hours which adversely affects the Project or others at the premises, whether or not Contractor is at fault and whether or not caused by Contractor or others, Owner shall have the right during the continuance thereof, by twenty-four hours notice, to terminate this Contract effective at the time specified in the Notice.

6.38 The Contractor agrees that in the event Owner elects to administer this Contract directly, Contractor shall, upon Owner's written direction, perform all of its contractual obligations for the benefit of and at the direction of the Owner in accordance with the terms and conditions of this Contract. In such event, "Project Manager" shall thereafter mean the Owner, for purposes of administering this Contract. In the event that Owner shall become "Project Manager," for purposes of this Contract, Owner may at any time thereafter assign or delegate any or all of the rights and duties of Project Manager under this Contract to any other person or entity, and the acceptance by any such person or entity of such assignment shall be deemed an assumption of all


the obligations (accruing after such assignment) of Project Manager under this Contract and said assigning party shall thereupon be released from all such obligations (accruing after such assignment).

6.39 Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the Project Site with materials, equipment, areas of incomplete Work, temporary facilities and/or debris.

ARTICLE 7 SUBCONTRACTS/SUBCONTRACT BIDDING AND AWARD

7.1 All Work shall be performed either by Contractor’s own labor or by Subcontractors and vendors (“Subcontractors”) under written agreements or purchase orders (“Subcontracts”) entered into directly by the Contractor, not as agent of the Owner, and otherwise in accordance with the bidding procedures, terms and conditions of this Article 7.

7.1.1 The form of Subcontracts shall be subject to the approval of the Owner. Subcontracts shall be entered into and/or modified only with the Owner’s prior written approval after review of the Subcontract or any proposed changes submitted in redline form to the Owner and Project Manager by the Contractor.

7.1.2 The Contractor shall cause appropriate provisions to be inserted in all Subcontracts relative to the Work to bind Subcontractors to the Contractor by the terms of the General Conditions and other Contract Documents insofar as applicable to the Work of Subcontractors, and to give the Contractor the same rights with respect to the Subcontractor as the Owner may exercise over the Contractor under provisions of the Contract Documents.

7.1.3 All Subcontracts shall provide that any warranties and guarantees there under run to the benefit of the Contractor and the Owner.

7.1.4 Neither the Project Manager nor the Owner will normally undertake to settle any differences between the Contractor and its Subcontractors or between Subcontractors.

7.1.5 The Owner reserves the right to perform work related to the Project and to award separate contracts in connection with other portions of the Project or other work on the Project Site. To the extent necessary, the Owner shall include in any separate contract awarded by the Owner a provision to the effect that the Contractor hereunder shall coordinate the work of any such separate contractor with the Work (to the extent the work of any separate contractor relates or must otherwise be coordinated with the Work). The Contractor shall fully cooperate with any such separate contractors and the Owner in their performance of their work at the Project Site and such separate contractors shall also fully cooperate with the Contractor.

7.1.6 All Subcontracts shall provide that, upon receiving written Notice from Owner that Owner has elected to take over such Subcontract directly, such


Subcontractor shall at torn to and perform the balance of its contractual obligations for the Owner at the same price and under the same terms and conditions set forth in such Subcontract provided only that such Subcontractor continues to be paid by the Owner in accordance with the terms and conditions of such Subcontract. Contractor agrees that upon the giving of such Notice by Owner, the Subcontract which is subject of such Notice shall be deemed automatically assigned by Contractor to Owner.

7.2 The Contractor shall make recommendations to the Owner, the Project Manager and the Architect/Consultant regarding the division of Work in the Drawings and Specifications to facilitate the bidding and awarding of Subcontracts, allowing for phased construction, taking into consideration such factors as time of performance, availability of labor, trade jurisdictions, master labor agreement, shift work, and provisions for temporary facilities. Such recommendations shall give due consideration to (i) ease and degree of enforcement of Subcontractors’ warrantees and guarantees; (ii) minimizing the ability of Subcontractors to avoid responsibility for delays, improper integration of Work into the Project and defects in materials and workmanship; (iii) minimizing jurisdictional overlap or disputes of enforcement of Subcontracts and friction among work forces; (iv) Legal Requirements including building code restrictions and (viii) effect on economy, efficient phasing and procurement and quality of construction.

7.3 The procedure for Subcontractor selection shall be as follows: .

7.3.1 The Contractor shall identify and recommend to the Owner the various Subcontractor Bid packages for the Project.

7.3.2 The Contractor shall prepare lists of potential Subcontractor Bidders for each Bid package, in consultation with the Project Manager and Owner, for Owner’s approval. The Contractor shall develop Subcontractor interest in the Project. Subject to the Owner’s approval in each case, the Contractor may prepare competitive Bids for Subcontracts that Contractor normally performs with its own forces.

7.3.3 The Contractor shall conduct a Subcontractor Bidder prequalification process including preparing and issuing requests for Subcontractors’ qualifications statements and conducting Subcontractor interviews, as the Owner deems appropriate.

7.3.4 The Contractor shall make recommendations to the Owner on Subcontract Bidder selection for each Subcontract.

7.3.5 The Contractor shall prepare Bid Documents for each Subcontract. Bid Documents shall include an Invitation to Bid, Instructions to Bidders, Bid Form, Drawings and Specifications prepared by the Architect/Consultant, the form of Subcontract, General Conditions and such Supplemental General Conditions as may be required for each Subcontract. The Bid Form shall provide for a detailed breakdown of Subcontractors’ Bids. The Supplemental General Conditions shall specify Project Schedule requirements and liquidated damages, if any, applicable to the Subcontract.


7.3.6 The Contractor shall secure the Owner’s approval of the completed Bid Documents and the list of invited Subcontract Bidders.

7.4 The Contractor shall conduct competitive Subcontract bidding in the interest of the Owner as follows:

7.4.1 Each Bidder shall be required to visit the Project Site and shall be held responsible for having ascertained pertinent local conditions such as location, accessibility and general character of the Project Site; the character and extent of existing work within or adjacent to the Project Site and other existing conditions or work being performed thereon at the time of the submittal of its Bid and conditions or work scheduled to be performed during the Work that could impact Bidder’s cost of the Work or proposed schedule.

7.4.2 No oral explanation in regard to the meaning of the Drawings and Specifications or other Bid Documents shall be made and no oral instructions shall be given before the award of the Subcontracts. In the event of discrepancies, omissions or doubts as to the meaning of the Drawings or Specifications, Bidders shall be instructed to communicate in writing to the Contractor who shall forward Bidders’ questions to the Architect/Consultant for interpretation and clarification. Bidders shall be instructed by the Contractor to submit any such questions no later than seven days before the deadline for submittal of Bids. Any such interpretations or clarifications to the Bid Documents shall be issued by the Contractor in the form of an Addendum to all invited Bidders and Bidders shall be given adequate time to make adjustments to their Bids to reflect Addenda prior to the deadline for Bids.

7.4.3 Contractor shall advise all Subcontractor Bidders that whenever any particular brand or make of material or apparatus is called for in the Contract Documents, the Bidder's Bid must be based upon the use of such material or apparatus, or upon the use of a brand or make which has been specifically approved as a substitution in an Addendum issued to all Bidders. The intent of the Contract is that the brand or make of material or apparatus which is called for in the Contract Documents establishes a standard of performance which, in the opinion of the Architect/Consultant and Owner, is necessary for this Project.

7.4.4 Contractor shall advise all Subcontractor Bidders that if a Bidder desires that consideration be given to a brand or make of material or apparatus which differs from a brand or make of material or apparatus called for in the Bid Documents, then the Bidder may submit to the Contractor not later than the deadline set for submittal of questions by Bidders, a written request for the acceptance of a substitute material or apparatus, clearly defining and describing same, with necessary manufacturer's literature, specifications, drawings and performance data. Contractor shall then submit Bidder’s proposed substitute to Architect/Consultant for consideration with a copy to Project Manager and Owner. Requests received after above deadline will not be considered. If the Architect/Consultant approves the material submitted, or if


Architect/Consultant should decide to enlarge the scope of the Contract Documents, then Contractor shall issue an Addendum to each Bidder so that all Bidders may avail themselves of the change in submitting Bids.

7.4.5 Contractor shall require Subcontract Bidders to state any qualifications or limitations of the Bid to be submitted and/or any exceptions that Bidder may take to the Subcontract Documents in writing at least three business days prior to the deadline for submittal of the Bids.

7.4.6 Subcontract Bidders shall be required to bid on all Alternates or on all items called for on the Bid Form. Each Bidder shall set forth in the space provided on the Bid Form the amount to be added or deducted from the base Bid. If an Alternate Price called for does not involve a change in price, the Bidders shall be directed to write the words “no change” in the space provided.

7.4.7 Subcontract Bids shall be submitted upon the Owner–approved Bid Form and shall be signed in ink. Bidders shall be instructed to bid on each line item and to provide a complete breakdown as required on the Bid Form. All information provided by Bidders on the Bid Form shall be written clearly in ink or typed. Bids containing any conditions not previously stated (as per Subparagraph 7.4.5), omissions, unexplained erasures, alterations of the Bid Form or proposals not requested or any other irregularity, shall be subject to disqualification by Contractor or Owner as being a non-conforming Bid.

7.4.8 Each Subcontract Bid must contain the full name and business address of the Bidder and must be signed by a principal or an authorized officer or partner of the bidding firm with his or her usual signature. Bids by partnerships must furnish the full name of all partners and must be signed in the partnership named by one of the members of the partnership or by an authorized representative, followed by the signature and designation of the person signing. Bids by corporations must be signed with the legal name of the corporation, followed by the state of incorporation and by the signature and designation of the president, secretary or other person authorized to bind it in the matter. The name of each person signing shall also be typed or printed below the signature. A Bid by a person who affixes his or her signature, without disclosing his or her principal may be held to be the Bid of the individual signing.

7.4.9 Contractor shall advise Subcontract Bidders in the Instructions to Bidders that (i) telegraphic (fax) Bids will not be considered, (ii) Bids shall be enclosed in a sealed envelope which shall be marked “Sealed Bid” and identified by the name of the Bid package and (iii) no responsibility or liability will be attached to the Contractor, Owner or Project Manager for the premature opening of a Bid not properly addressed and identified.

7.4.10 Contractor shall advise Subcontract Bidders to be prepared, if requested by the Contractor, to present evidence of Bidder’s experience, qualifications and financial ability to carry out the terms of the Subcontract.


7.4.11 Contractor shall advise Subcontract Bidders that Bids may be withdrawn upon written request received from Bidder prior to the deadline for submittal of Bids. Negligence on the part of any Bidder in preparing a Bid shall confer no right for withdrawal of a Bid after it has been opened.

7.5 The Bid opening shall be private. Bids shall be opened, promptly after the deadline for submittal of Bids, by the Contractor in the presence of at least one representative of the Owner and/or Project Manager.

7.5.1 The Contractor shall make a Bid comparison sheet, analyze the Bids for completeness and make recommendations to the Owner for award of each Subcontract.

7.5.2 The Contractor shall conduct a pre-award meeting with the recommended Bidder and representatives of the Owner and/or Project Manager to review the Bid and to ensure that it represents the complete scope of the Subcontract Work.

7.6 The Contractor with the Owner’s prior approval and/or the Owner shall have the right to reject any or all Bids, to waive technicalities and/or to solicit new Bids. The Owner and/or the Contractor shall have the right to reject the Bid of a Bidder who is deemed to be not in a position to perform the Subcontract.

7.6.1 Bids which are incomplete, conditional, obscure, irregular, or which contain abnormally high or abnormally low prices for any item or class of Work may be rejected by the Owner and/or the Contractor.

7.6.2 At the Owner’s discretion, Bidders may be required to furnish a Bid Bond. Bids submitted without a Bid Bond, if required, may be deemed incomplete and shall be subject to rejection by the Owner and/or the Contractor.

7.7 As soon as possible following Contractor’s analysis of the Bids, Contractor shall recommend to the Owner award of each Subcontract to the Bidder that Contractor deems most responsible and eligible. Upon approval by the Owner, Contractor shall notify the successful Bidder that its Bid has been accepted. If the Owner disapproves a Bidder recommended by the Contractor, the Contractor shall recommend an acceptable substitute. The Owner may decline to approve a Bid for any reason or no reason.

7.8 Should the successful Bidder fail to execute the Subcontract within seven calendar days of receipt from the Contractor, the Owner, at its option, may determine that the Bidder has abandoned the Subcontract and that the Bid and acceptance thereof shall be null and void, and the Contractor shall call for payment of the amount of the Bidder’s Bid Bond, if provided.

ARTICLE 8 PROTECTION/SAFETY/CONSTRUCTION PRACTICES

8.1 It is a condition of this Contract, and shall be made a condition of each Subcontract entered into pursuant to the Contract, that the Contractor and any Subcontractors shall not require any worker employed in the performance of the Work to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to worker health or safety, as


determined by construction safety and health standards of the Occupational Safety and Health Administration, United States Department of Labor, without appropriate worker notification and training, appropriate Architect/Consultant and administrative controls, and demonstratively compliant personal protective equipment. Compliance with these requirements is the sole responsibility of the Contractor. The Contractor shall establish an effective safety program in accordance with the requirements set forth in OSHA Part 1926 - Safety and Health Regulations for Construction.

8.2 The Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to (i) Contractor’s employees and Subcontractors’ employees on the Project Site and other persons who may be affected by the Work, (ii) all the Work and all materials and equipment to be incorporated therein, and (iii) other property at the Project Site or adjacent thereto. The Contractor shall promptly remedy all damage or loss to any property caused in whole or in part by the Contractor, any Subcontractor, and Sub-subcontractor, or anyone directly or indirectly employed by any of them. Such corrective actions shall be undertaken at no additional cost to the Owner.

8.3 The Contractor shall be responsible for the protection of any finished Work, work of other contractors and the existing property to remain from damage or defacement by Contractor’s operations. The Contractor shall, at its own expense, completely repair or replace with the same or equal materials any finished work which becomes damaged by activities under this Contract. All such repair or replacement Work shall be completed to the Owner's satisfaction.

8.4 The Contractor shall assess and control the real or potential impact of performance of the Work upon the Owner's life safety systems (e.g., smoke detectors, sprinkler systems, etc.). Coordination with the Project Manager must be established prior to any action on the part of the Contractor or any Subcontractor, and is subject to modification by the Owner at any time based on the Owner's assessment of risks to the function of the life safety systems associated with the Work.

8.5 The Contractor shall at all times safely guard the Owner's property from injury or loss in connection with this Contract. Contractor shall at all times safely guard and protect the Work, the work of others and the existing property from damage due to the Work. Contractor shall erect and maintain, as required by existing conditions and progress of the Work, passageways, barriers, fences, lighting, warning signs and all other reasonable safeguards for safety and protection.

8.6 Contractor shall remove all snow and ice as may be required or requested for the proper protection and prosecution of the Work. Contractor shall provide and maintain adequate protection against weather so as to protect workers and the public from injury and/or the Work from damage.

8.7 Contractor shall confine its equipment, the storage of materials and the operations of workers to the areas permitted by Legal Requirements and to areas as may be established by Project Manager. Contractor shall not unreasonably encumber the Project Site with equipment, materials or debris.


8.8 Contractor shall enforce Project Manager's instructions and all Legal Requirements regarding access, parking signs, advertisements, fires, smoking, alcoholic beverages, and the possession of firearms by any person at the Project Site.

8.9 Contractor shall prevent noise, dust and smoke from interfering with the normal activities of others, including normal operation of the property.

8.10 Contractor, as necessary for the Work, shall provide flagmen, erect proper barricades and other safeguards, and post danger signs and other warnings as warranted by hazardous conditions.

8.11 Contractor has responsibility for maintaining a proper and sufficient safety and loss prevention program covering the Work and covering its employees, agents and Subcontractors while at the Project Site. Contractor shall designate a responsible member of its organization whose duties shall include loss and accident prevention and who shall have the responsibility and full authority to enforce the aforesaid programs. This person shall hold meetings with the representatives of other contractors to ensure that all workers and Subcontractors understand and comply with the programs. Contractor shall cooperate fully with Project Manager, all insurance carriers and all loss prevention engineers and their personnel regarding loss and accident prevention.

8.12 Contractor shall promptly report in writing to Project Manager, Owner and to Contractor's insurance carriers all accidents arising out of, or in connection with, the performance of the Work, whether on or off the Project Site, which caused death, bodily injury or property damage, giving full details and statements of witnesses. In addition, if death or serious injuries or serious damages are caused, the accident shall be reported to Project Manager and Owner immediately by telephone or in person.

8.13 Contractor and Subcontractors shall cooperate fully with all interested parties regarding claims handling procedures, and Contractor shall cause to be provided such legal defense as is required by the provisions of Article 13 hereof.

8.14 In an emergency affecting life, the Work, other work, Owner's property or the property of others, Contractor, without special instructions or authorization from Project Manager, shall take the action necessary to deal adequately with such emergency. Notice of any such action shall be given by Contractor to Project Manager as soon as is practicable.

8.15 All areas of the Work shall be maintained by Contractor in a neat and orderly condition and kept free from accumulation of debris or waste materials and rubbish during the entire construction period. Contractor shall remove all crates, cartons, flammable waste materials, and trash from its Work areas at the end of each working day to a location directed by Project Manager.

8.16 Contractor shall clean and maintain the Work and the areas in which the Work is in progress, as required by this Contract or as directed by Project Manager.

8.17 When directed by Project Manager, Contractor shall dismantle and remove from the Project Site all construction and installation equipment, fences, scaffolding, shanties, surplus materials, rubbish and supplies belonging or attributed to Contractor or the Work.


ARTICLE 9 EMERGENCIES

9.1 In case of any emergency that threatens loss of property or injury, and/or safety of life or health, the Contractor shall act, without previous instructions from the Owner or Project Manager, as the situation may warrant. The immediate consideration for actions taken will be to protect human life, against injury and illness. Contractor shall notify the Project Manager and Owner thereof immediately following an injury, illness or accident. Any compensation claimed by the Contractor, together with substantiating documents in regard to expense, shall be submitted to the Owner and Project Manager and the amount of compensation shall be determined as provided in Article 40 for Changes in the Work.

ARTICLE 10 SEPARATE CONTRACTS

10.1 The Owner reserves the right to award other contracts in connection with the Project, the work under which may proceed simultaneously with the Work of this Contract. The Contractor shall coordinate operations with those of other contractors. Cooperation will be required in the arrangements for the storage of materials and in detailed execution of the Work. The Contractor, and all Subcontractors, shall keep informed of the progress and details of the work of other contractors, and shall notify the Project Manager immediately of lack of progress or defective workmanship on the part of the other contractors where such delay or defective workmanship will interfere with Contractor’s operations.

10.2 Failure of Contractor to keep informed of the work of other contractors on the Project Site and/or failure to notice lack of progress or defective workmanship by others shall be construed as acceptance by Contractor of the status of such other work as being satisfactory for proper coordination with the Work.

ARTICLE 11 MUTUAL RESPONSIBILITY OF CONTRACTORS

11.1 If the Contractor or any of its Subcontractors or employees causes loss or damage to any separate contractor on the Project Site, the Contractor agrees to settle with such separate contractor, if separate contractor will so settle. If such separate contractor sues the Owner, on account of any loss so sustained, the Owner shall notify the Contractor, who shall indemnify and save harmless the Owner and Project Manager against any expenses or judgment arising therefrom.

11.2 If a dispute arises between the Contractor and separate contractor(s) as to responsibility for cleaning or restoration of damage to owner’s property, the Owner may so clean-up and/or restore and charge the incurred costs to the Contractor and/or other contractor(s) responsible as the Project Manager determines to be just.

ARTICLE 12 USE OF PREMISES/REMOVAL OF DEBRIS

12.1 The Contractor expressly undertakes as a part of the Work:

12.1.1 Responsibility and duty to take every precaution against injuries to persons or damage to property through its actions, activities and practices.


12.1.2 Compliance with the regulations governing the operations of the premises and to perform this Contract in such a manner as not to interrupt or interfere with the operations of the facility or Project Site.

12.1.3 Performance of any Work needed after normal working hours or on Sunday or legal holidays to meet the Project Schedule, without additional expense to the Owner, when directed to do so by the Owner or Project Manager, but only to the extent necessitated by an act or omission of Contractor or a Sub-Contractor.

12.1.4 To store apparatus, materials, supplies and equipment in such orderly fashion at the Project Site as will not unduly interfere with the progress of the Work, the work of any other contractors, or the Owner's normal operations. Contractor shall give Project Manager advance notice of any need to obtain and store flammable, corrosive, reactive, or toxic substances on site. Contractor will not deliver such material to Project Site prior to Project Manager's consent.

12.1.5 To place upon the Work or any part of any existing structure, only such loads as are consistent with the safety of that portion of the Work or the existing structure.

12.1.6 To keep the Project Site free at all times from accumulation of waste materials or rubbish caused by the Work.

12.1.7 To perform daily cleaning and legal off-site disposal of all refuse, rubbish, scrap materials and debris caused by the Work, to the end that at all times the work site shall present a neat, safe, and orderly appearance.

12.1.8 At the completion of the Work, to remove all waste material and rubbish from and about the Project Site and all its tools, construction equipment, machinery, temporary facilities and surplus materials.

12.1.9 Before submitting any application for final payment; to remove all surplus materials, temporary structures including foundations thereof, and debris of every nature resulting from its operations, and put the site in a neat orderly condition.

12.2 If the Contractor fails to fulfill its obligations in maintaining the cleanliness of the premises, the Owner or Project Manager may so clean and charge the incurred costs to the Contractor.

ARTICLE 13 INDEMNIFICATION

13.1 To the maximum extent permitted by law, Contractor hereby assumes the entire responsibility and liability for any injury (including death) to persons, whether or not employees of Contractor, and any damage to property or business caused by, resulting from, arising out of, or occurring in connection with (i) the Work; (ii) the performance or intended performance of the Work; (iii) the performance or failure to perform this Contract; or (iv) any occurrence which happens in or about the area where the Work is being performed by Contractor, either directly or


through a Subcontractor, or while any of Contractor's or any Subcontractor’s property, equipment or personnel is in or about said area.

13.2 Except to the extent, if any, expressly prohibited by law, should any such damage or injury referred to in Paragraph 13.1 be sustained, suffered, or incurred by Owner, Architect/Consultant, Owner's Landlord or Project Manager or should any claim for such damage or injury be made or asserted against any of them, whether or not such claim is based upon Owner's, Architect/Consultant’s, Owner's Landlord's or Project Manager's alleged active or passive negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of Owner, Architect/Consultant or Project Manager, Contractor shall defend, indemnify and hold harmless Owner, Architect/Consultant and Project Manager, their officers, agents, partners, employees, parents, affiliates and subsidiaries (hereinafter collectively referred to as "Indemnities"), of, from and against any and all such damages, injuries, and claims, whether just or unjust, and further, from and against any and all other loss, cost, expense, and liability, including without limitation, legal fees and disbursements, that any Indemnities may directly sustain, suffer or incur as a result of such damages, injuries and claims; and Contractor agrees to assume, on behalf of any and all Indemnities the defense (with counsel satisfactory to the party indemnified) of any action at law or in equity, or other legal proceeding, which may be brought against any Indemnities upon or by reason of such damage, injury, or claim and to pay on behalf of every Indemnities, the amount of any judgment, decree, award, or order that may be entered against each said Indemnities in any such action or proceeding. In the event that any such claim, loss, cost, expense, liability, damage or injury is sustained, suffered, or incurred by, or is made, asserted or threatened against any Indemnities, Owner, in its discretion, may require Contractor to furnish a surety bond satisfactory to Owner and Project Manager guaranteeing such protection, which bond shall be furnished by Contractor within five (5) days after written demand has been made therefor. In the event more than one contractor is connected with an event or occurrence (or a series of events or occurrences) covered by this indemnification, then all such contractors shall be jointly and severally responsible to the Indemnities, and the ultimate responsibility among such indemnifying contractors shall be settled or otherwise determined by separate proceedings and without loss, expense, or damage to any Indemnities. For purposes of this Paragraph 13.2, the term “Owner” shall be deemed to include Project Manager and their respective officers, agents, partners, employees, parents, affiliates and subsidiaries and shall constitute Indemnities hereunder. The indemnification obligations of Contractor and Contractor's subcontractors and/or suppliers pursuant to the Contract Documents shall survive final completion of the Work.

13.3 The indemnification provisions contained in this Article 13 and the Contractor's obligations hereunder shall not be limited by any limitation on amount or type of damages, compensation or benefits payable by or for Contractor under worker's or workmen's compensation acts, disability benefit acts or other employee benefit acts or any other insurance policy.

ARTICLE 14 INSURANCE

14.1 Contractor shall maintain, and shall cause each Subcontractor and each Sub-subcontractor to maintain, in effect at all times during the performance of the Work, insurance coverages with limits of not less than those set forth below in this Paragraph 14.1 and insurance policies naming the parties set forth below in Paragraph 14.2.3 as Additional Insureds, with insurers and under forms of policies satisfactory to Owner. Not later than ten (10) days prior to the commencement of the Work, Contractor shall deliver to Owner certificates of insurance,


policy declaration pages and policy endorsements indicating that policies providing such coverage, limits of insurance and Additional Insureds are in full force and effect for all of the contractors. Such certificates shall provide that no less than sixty (60) days advance written notice shall be given to Owner prior to cancellation, termination or material alteration of such policies of insurance. In each such Certificate, the name of the insured must be the same as the name of the Contractor shown on the Contract, or the same as the Subcontractor (or Sub-subcontractor) shown on the applicable Subcontract, as the case may be.

Owner, in its sole discretion, may accept lower limits of coverage from certain subcontractors on a case by case basis.

14.1.1 Commercial General Liability coverage: Maintain in force until at least two (2) years after project acceptance. Include all major divisions of coverage on a comprehensive basis. Occurrence form plus special features, as follows:

(i) Premises Operation (including X, C and U Coverage).

(ii) Subcontracted Operations (owners and contractors protective).

(iii) Products and Completed Operations (maintained two (2) years after final payment).

(iv) Contractual (including but not limited to Indemnification under Article 13 of these General Conditions and any other indemnification obligations under the Contract Documents).

(v) Cross Liability and severability of interest clause.

(vi) Property damage, broad-form type, including X, C and U coverage as well as loss-of-use.

(vii) Incidental medical malpractice.

(viii) Personal Injury.

Minimum limits of liability are: $5,000,000 Each Occurrence; $5,000,000 General Aggregate; $1,000,000 Personal and Advertising Injury; and $2,000,000 Products-Completed Operations Aggregate. The policy shall be endorsed to have the General Aggregate apply to this Project only. Commercial General Liability coverage shall be written on ISO Occurrence Form CG 00 01 1093, or substitute form providing equivalent coverage. Commercial General Liability coverage may not exclude injury to an employee under New York State Labor Laws 240 and 241.

14.1.2 Comprehensive Automobile Liability coverage shall provide a combined single limit of not less than $5,000,000 for bodily injury and property damage covering all owned, non-owned or hired motor vehicles, trailers, or semi-trailers designed for travel on public roads, whether licensed or not (including any machinery or apparatus attached thereto) in accordance with the 1986 ISO definitions. The required limits can be satisfied by a


combination of a primary policy and an excess policy. Such policies shall include provisions or endorsements stating that such policies shall (i) be primary as respects the interest of Owner, Project Manager, and/or Architect/Consultant and (ii) not require the application or contribution of any other insurance policy that may be maintained by or for Owner, Project Manager or Architect/Consultant regardless of how such other insurance is structured to apply in other insurance situations.

14.1.3 Umbrella Liability: An umbrella liability policy with minimum limits of $10,000,000 shall be provided as excess coverage over the underlying limits as stated above for Auto and General Liability, including Products. To be considered as a portion of primary coverage, umbrella type riders must be adequate to fill the combined shortfall of limits stated for all divisions of coverage for any given single occurrence.

14.1.4 Property Insurance or Builders Risk coverage: Not required.

14.1.5 Worker’s Compensation and Employer’s Liability policy: (an "Employer's Liability Policy"). Each Employer's Liability Policy shall commence on or before the date such Contractor, Subcontractor or Sub-subcontractor, as the case may be, starts operations at the Project Site and shall provide:

(i) Worker's Compensation and Workers' Occupational Disease insurance in accordance with applicable statutory requirements, including:

(1) 60-day cancellation clause; and

(2) Broad Form all-states endorsements; and

(ii) Employer's Liability Insurance with a limit of liability of at least $1,000,000 for each accident, or such higher limit as may be required by applicable laws.

(iii) Disability benefits and other similar employee act coverage, which are applicable to the Work being performed.

14.1.6 Should any of the Work

(i) involve water craft owned or operated by or on behalf of any of the contractors, liability arising out of such water craft shall be insured by protection and indemnity insurance, including masters and members of the crew (Jones Act), with a combined single limit of not less than $25,000,000 for each occurrence. Such insurance shall name Owner and others as Owner may designate from time to time as additional insured, state that it is primary insurance as regards such additional insured, and contain a cross-liability or severability of interests clause; if the hull is insured, such insurance shall provide an insurer's waiver of subrogation rights in favor of Owner; or


(ii) involve aircraft (fixed wing or helicopter) owned or operated by or on behalf of any of the Contractors, liability arising out of such aircraft shall be insured for a combined single limit of not less than $50,000,000 for such occurrence and such limit shall apply to bodily injury (including passengers) and property damage liability. Such insurance shall name Owner and others as Owner may designate from to time as additional insured, state that it is primary insurance as regards such additional insured and contain a cross-liability or severability of interest’s clause and specify that coverage applies for Work on behalf of Owner in the State of New York. If the fuselage is insured, such insurance shall provide for an insurer's waiver of subrogation rights in favor of Owner.

14.1.7 The requirements contained in this Article 14 as to types and limits of insurance coverage’s and approval of insurance coverage to be maintained by the Contractor are not intended to and shall not, in any manner, limit or qualify the liabilities and obligations otherwise assumed by Contractor under this Agreement.

14.2 All certificates of insurance must contain the minimum limits of coverage and special provisions prescribed in this Article 14.

14.2.1 Failure to furnish certificates in respect of the Contractor's insurance or the cancellation or termination of any Contractor's insurance shall be deemed to be a Default hereunder. Contractor shall hold Owner harmless from loss or damage that might occur by reason of any such failure, cancellation or termination.

14.2.2 All certificates in respect of the Contractor's insurance must be executed by an authorized representative of the insurance company and must show the name of the Contractor to which such insurance pertains, the Project Site and Owner's complete address under "Certificate Holder".

14.2.3 All such certificates shall name Owner, Project Manager, Owner’s Representative, Owner's Landlord and the Architect/Consultants as additional insured and shall show that the coverage afforded for such parties is primary with respect to the Contractor's operations and does not require contribution by any other insurance available to them. Contractor shall waive its (and shall cause all Subcontractors and Sub-subcontractors to waive their) rights of subrogation against Owner and any parties named as additional insured under such insurance policies. Contractor shall also cause all of the underwriters of insurance to be provided by Contractor under this Contract to waive (and shall cause all Subcontractors and Sub-subcontractors to have their respective underwriters so waive) their rights of subrogation against Owner and any parties named as additional insured under such insurance policies. The terms Owner, Project Manager and the Architect/Consultants shall be deemed to include their respective officers, agents, partners, employees, parents, affiliates and subsidiaries.

14.2.4 If any certificates fail to meet all of the requirements set forth in this Paragraph 14.2, approval of the Contractor’s insurance and authorization to proceed with the Work may be delayed by Owner until satisfactory


evidence of coverage is submitted. A letter from an insurance agent or broker, in lieu of a certificate of insurance, shall not be acceptable.

14.2.5 Contractor shall deliver original certificates of insurance (including all original certificates of insurance to be provided by Contractor) to Owner.

14.3 Contractor agrees to incorporate, either directly or by reference, in all Subcontracts (and shall cause all Subcontractors to similarly incorporate in all Sub-subcontracts) the terms and provisions of this Article 14 and shall require all Subcontractors and Sub-subcontractors to comply with all the provisions of this Article 14. In connection herewith, Contractor shall familiarize itself with, and monitor, the insurance requirements of all Subcontractors and their respective Sub-subcontractors, and shall ensure that the Subcontractors and their respective Sub-subcontractors are complying in all respects with the insurance requirements of their respective contracts. Contractor shall verify that all Sub-subcontracts between a Subcontractor and its Sub-subcontractors contain the appropriate insurance requirements as required by the Contract Documents. Contractor shall obtain copies of and review all Subcontractors’ (and their Sub-subcontractors’) insurance certificates to determine whether they satisfy the requirements of this Contract, and shall promptly deliver copies thereof (as well as copies of its own insurance certificates) to Owner for review and approval. Contractor shall notify Owner of any deficiencies reflected in such certificates and shall cause the respective Subcontractors and Sub-subcontractors promptly to rectify such deficiencies. Contractor shall not, and shall not allow any Subcontractors (or any of their respective Sub-subcontractors of any tier) to commence Work on the Project until all insurance required of the Contractor, the Subcontractors, and/or the Sub-subcontractors, as the case may be, has been obtained and approved by Owner.

14.4 Contractor shall assist and cooperate with Owner in every manner reasonably possible in connection with the adjustment of all claims for recovery under any of the insurance maintained by Contractor or any of its Subcontractors pursuant to this Article 14.

14.5 If Contractor fails to furnish and maintain the insurance required of it hereunder, Owner shall have the right, at its option, to take out and maintain such insurance for and in the name of Contractor. Contractor agrees to pay the cost thereof and to furnish all necessary information to permit Owner to take out and maintain such insurance for the account of Contractor. Compliance by Contractor with the foregoing requirements to carry insurance and furnish certificates shall not relieve Contractor from liability assumed under any provisions of this Contract.

14.6 Compliance with the foregoing requirements as to insurance shall not relieve the Contractor from liability under the Indemnity in Article 13.

14.7 The Contractor agrees to cause prompt discharge of any claims against Owner, Project Manager, Owner’s Representative and the Architect/Consultants, the Project Site, or the property on which the Project Site is located by the way of lien or otherwise which claims are asserted in consequence of rights claimed by, through or under the Contractor, providing Owner is not in breach of its payment obligations. The Contractor agrees to insert a provision similar to this paragraph in all of its Subcontracts and to enforce the same.

14.8 Failure of the Contractor to keep the required insurance policies in force during the Work covered by this Agreement, any extensions or extra or additional work agreed to by the Contractor shall constitute a breach of this Agreement and the Owner shall have the right, in addition to any other rights, immediately to cancel and terminate this Agreement under the terms of Article 48 hereto.


14.9 The Owner, at its option, may purchase and maintain such insurance as will protect Owner against claims that may arise from operations under this Contract.

14.10 Nothing contained in these provisions of this Article 14 relating to coverage and amounts set out herein shall operate as a limitation of the Contractor's liability in tort or contract.

ARTICLE 15 DRAWINGS AND SPECIFICATIONS

15.1 The Contractor shall be given three (3) blue line and one (1) reproducible copy of approved Contract Documents. At least one copy of the Drawings and Specifications must be maintained and kept at the Project Site.

15.2 The general character and scope of the Work are illustrated in the Drawings. Unless otherwise noted, the Drawings are diagrammatic and intended to convey the scope of the Work and indicate general arrangement of the work areas, and the location of new or existing elements of construction. Drawings are not intended to illustrate exact quantities of material or their location, precise locations of utilities or structures, nor the specific methods of addressing each issue or task presented.

15.3 The Contractor shall abide by and comply with the true intent and meaning of the Drawings and Specifications, taken as a whole, and shall not avail itself of any errors or omissions.

15.4 The Contractor will be furnished additional instructions and drawings as may be necessary to carry out the Work included in the Contract. The additional drawings and instructions, thus supplied to the Contractor, shall be consistent with the Contract Documents, true developments thereof, and shall be so prepared that they can be reasonably interpreted as a part thereof. The Contractor shall carry out the Work in accordance with such additional detail drawings and instructions.

15.5 In case of discrepancies between large and small-scale drawings, the large-scale drawings shall take precedence. Figure dimensions shall govern over scale dimensions.

15.6 Shop Drawings, as required in the Specifications or as required to perform the Work and furnished by the Contractor, shall, upon approval, become a part of the complete Drawings. Approval of Shop Drawings shall not relieve the Contractor of its responsibilities under the Contract for the satisfactory completion of the Work, nor for the accuracy of the dimensions, details, or quantities or for coordination of Shop Drawings.

15.7 Intentionally omitted

15.8 Upon completion of the Work, the Contractor shall turn over to the Project Manager a complete, clean, undamaged set of prints of the Drawings, on which shall be neatly and clearly indicated in red pencil the actual layout and location of partitions, doors, piping, equipment, and all other building elements the locations of which vary from that originally shown on the Drawings. Contractor shall submit upon completion of the Work a full set of As-built Drawings on CAD. Three (3) sets of CAD files shall be submitted.

15.9 It is the intent of these Contract Documents to comply with all local, state and federal requirements. The Contractor is wholly and solely responsible for ascertaining and complying


with all current applicable laws and regulations. In the event of a conflict between the Contract Documents and such laws and regulations, applicable laws and regulations shall prevail.

ARTICLE 16 STANDARDS

16.1 Any materials specified by reference to the number, symbol or title of a specific standard, such as a commercial standard, a Federal Specification, etc. shall comply with requirements in the latest revision thereof and any amendment or supplement thereto in effect on the date of this Agreement, except as limited to type, class or grade or as modified in the Specifications.

16.2 The architectural or engineering standards referred to, except as modified in the Specifications, shall have full force and effect as though printed in the Specifications. These standards are not furnished to Bidders or the Contractor for the reason that the manufacturers and trades involved are assumed to be familiar with their requirements. The Architect/Consultant will furnish, upon request; information for obtaining copies of the standards referred to.

16.3 Reference in the Specifications to any article, device, product, material, fixture, form or type of construction by name, make or catalog number shall be interpreted as establishing a standard of quality and shall not be construed as limiting competition; and the Contractor, in such cases, may at its option use any articles, device, product, material, fixture, form or type of construction which in the judgment of the Architect/Consultant expressed in writing to all Bidders before award of the Contract, as an Addendum, is equal to that specified.

16.4 No substitutions will be considered after award of the Contract unless necessary due to strikes, lockouts, bankruptcy or discontinuance of manufacture, etc. In such cases, the Contractor shall apply to the Project Manager for approval by the Architect/Consultant, in writing, within ten (10) days of realizing an inability to furnish the article specified, describing completely the desired substitution.

ARTICLE 17 CONTROL OF THE WORK

17.1 The finished Work shall conform in all respects to the details given on the Drawings. Where conditions make it necessary or desirable for deviation from the Drawings, such changes shall be made as provided for in the Contract Documents upon written authorization by the Architect/Consultant.

17.2 The Contractor shall provide competent support services to execute the Work in accordance with the Contract requirements. Contractor shall verify the details shown on the Drawings before undertaking any Work and shall be responsible for the accuracy of the finished Work.

17.3 The Contractor shall protect and preserve all of the established benchmarks and milestones and shall make no changes without the written approval of the Owner or Project Manager.

17.4 Storage locations for materials, equipment and appliances; the locations of a temporary field office and staging/equipment storage area, temporary toilets, etc. shall be determined by the Contractor and shall be subject to the approval of Owner and/or Project Manager.


ARTICLE 18 MATERIALS AND WORKMANSHIP

18.1 The Contractor warrants to the Owner, Project Manager and Architect/Engineer that the Work and all materials and equipment incorporated into the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All workmanship shall be first-class and by persons qualified in their respective trades. All Work not conforming to these requirements may be considered defective.

18.2 Where the use of an optional material or construction method is approved, or specifically permitted by the Specifications or Drawings, the requirements for workmanship, fabrication and installation indicated for the prime material or construction method shall apply wherever applicable. Required and necessary modifications and adjustments resulting from the substitution or use of an optional material or construction method shall be made at no additional cost to the Owner.

18.3 The Contractor may be required to furnish sworn certificates as to quality and quantity of material before said materials are incorporated into the Work.

18.4 All electrical and mechanical equipment shall be properly identified, including manufacturer's nameplates, serial number, MEA number, model, capacity, size, etc. as appropriate for the equipment.

ARTICLE 19 INSPECTION OF WORK AND MATERIALS

19.1 All materials and workmanship (if not otherwise designated by the Specification) shall be subject to inspection, examination and test by the Project Manager or Architect/Engineer at any and all times during manufacture and/or construction, and at any and all places where such manufacture and/or construction are carried on. The Contractor shall monitor and inspect the Work on a regular basis as required to ensure compliance with the Contract Documents, Subcontracts, applicable approved Submittals and all Legal Requirements. The Contractor shall visit the shops and/or factories of Subcontractors as required to ensure compliance with the Contract. If deemed necessary by Contractor or Owner, Contractor shall stop work and/or require any Subcontractor to stop work on the Work or a portion of the Work and Contractor shall perform special inspection and/or testing of any Work that is suspected of being not in conformance with the Contract Documents. Work not in such conformance shall be subject to rejection. The Contractor shall use its best efforts as a construction professional to protect the Owner against any defects or deficiencies in the Work and shall immediately advise the Owner, in writing, of any suspected or observed failure of the Work to conform to the Contract Documents, any Subcontract or Legal Requirements.

19.2 The Project Manager and/or the Architect/Consultant shall have the right to reject defective material and Work or require its correction. Rejected Work shall be satisfactorily corrected, and rejected materials shall be satisfactorily replaced with proper material at no additional cost to the Owner, and the Contractor shall promptly segregate and remove the rejected material from the premises. If the Contractor fails to proceed at once with the replacement of rejected material and/or the correction of defective Work, the Owner may, by contract or otherwise, replace such material and/or correct such Work and deduct the cost of such corrective work from payments to Contractor, or the Owner may terminate the right of the Contractor to proceed.


19.3 The Contractor shall furnish promptly, without additional charge, all facilities, labor and materials necessary for the safe and convenient inspection and testing that may be required by the Project Manager and/or the Architect/Consultant. All inspections and tests shall be performed in such a manner as not to unnecessarily delay the Work. Special, full-sized, and performance tests shall be described in the Specifications, if required.

19.4 Nothing herein shall release Contractor of its obligation to perform the Work in accordance with the Contract Documents.

ARTICLE 20 DELIVERY AND STORAGE OF MATERIALS

20.1 Storage space for materials and equipment required for the Project shall be provided by the Owner for the Contractor’s use in areas of the Project Site to be selected by the Owner. The Contractor shall relocate stored material and equipment, at no cost to the Owner, as the Owner may direct. The Contractor shall be solely responsible for the security and safety of such stored materials and equipment. Any construction work undertaken by Contractor in such storage space shall be of fire-resistant materials and shall be subject to the approval of the Owner. Upon relocation from a storage area and/or at completion of the Work, such storage space shall be returned to the Owner in original condition, fully restored and free of temporary construction, materials, supplies and equipment of any kind. No storage of debris or waste shall be permitted.

20.2 Materials and equipment shall be progressively delivered to the Project Site so that there will be neither delay in the progress of the Work nor an accumulation of material that is not to be used within a reasonable time. All deliveries shall be coordinated with the Project Manager to assure appropriate and proper access to work area.

20.3 Materials shall be stored at the expense of the Contractor so as to insure the preservation of material quality and fitness for the Work. When considered necessary by the Project Manager or Architect/Consultant, materials shall be placed on wood platforms or other hard clean surfaces, and not on the ground, and shall be placed under cover when directed. Stored materials shall be so located as to facilitate prompt inspection.

ARTICLE 21 SUBMITTALS

21.1 Submittals include Shop Drawings, Product Data and Samples.

21.2 Shop Drawings are drawings; diagrams, schedules and other written data specially prepared for the Work by the Contractor or any Subcontractor, manufacturer or supplier to illustrate some portion of the Work. Shop Drawings shall maintain the profiles and intent of the of the finished Work as shown in the Drawings and shall reflect existing field conditions, Shop Drawings of other trades or other contractors and all construction related to the proper construction and installation of the items illustrated.

21.3 Product Data are illustrations, material safety data sheets, catalog cuts, instructions, brochures, etc. furnished by the Contractor to illustrate a material, product or system for some portion of the Work.

21.4 Samples are physical examples of materials, equipment or mockups of workmanship and establish standards by which the Work will be judged.


21.5 The Contractor shall submit to the Project Manager, as per the Project Schedule and in a sequence which shall not cause delay in the Work, for the written approval of the Architect/Consultant, Shop Drawings, Product Data and Samples required by the Specifications or requested by the Project Manager or Architect/Consultant. Contractor's Work shall be in accordance with approved Submittals.

21.6 The Contractor shall review all Submittals prior to their submission to the Project Manager. By reviewing and submitting Shop Drawings, Product Data and Samples, the Contractor represents that Contractor has checked and coordinated the information contained within such Submittals with field conditions, other Submittals and other requirements of the Work and with the Contract Documents.

21.7 The Contractor shall submit a minimum of five (5) blue line copies and (1) one reproducible copy of Shop Drawings and Product Data accompanied by a letter of transmittal which shall list the numbers and dates of the Shop Drawings submitted. Drawings shall be bound in sets. The Contractor shall use a numbering system and format which has been approved by the Project Manager prior to preparing Submittals.

21.8 Submittals shall be marked with the name of the Project, numbered consecutively or as directed by Project Manager and shall bear the stamp of the Contractor as evidence that the Submittals have been reviewed by the Contractor. Any Submittals without Contractor’s stamp will not be considered and will be returned to the Contractor for review and resubmission. If any Submittal includes or represents any variation from the requirements of the Contract because of standard shop practice or other reasons, the Contractor shall make specific mention of such variation in its letter of transmittal, otherwise, the Contractor will not be relieved of the responsibility of executing the Work in accordance with the Contract, even if such Submittal has been approved.

21.9 If a Submittal indicates a departure from the Contract requirements, as noted by the Contractor, which the Architect/Consultant finds to be acceptable and to be so minor as not to involve a change in the Project Cost or time for performance, Architect/Consultant, with approval of the Owner, may approve the Submittal.

21.10 Samples shall be furnished by the Contractor for approval as required by the Contract Documents or as requested by the Architect/Consultant or Project Manager. The Contractor shall prepay all shipping charges on all Samples. Each Sample shall have a label indicating the material represented, its place of origin, name of the producer, the Contractor, the Project, and the Work for which the material is intended. Samples of finished materials shall be so marked as to indicate where the materials represented are required by the Drawings and Specifications. In cases where a material or item to be represented by a Sample has, inherent in such material, a considerable range of color, graining, texture or other characteristics, a number of Samples sufficient to represent the range proposed to be included in the Work must be submitted for approval.

21.11 The approval of any Sample shall be only for the characteristics and the uses named in such approval and for conformance with the Contract Documents. No approval of a Sample shall be taken in itself to change or modify any Contract requirement. When a material has been approved, no additional Sample of that material will be considered and no change in brand or make will be permitted. Approved Samples of hardware in good condition may be suitably marked for identification and used in the Work.


21.12 Failure of any material to pass testing will be sufficient cause for refusal to consider, under this Contract, any further Samples of the same brand or make of such material.

21.13 Test samples, as may be necessary, will be procured from the various materials or equipment delivered by the Contractor for use in the Work. If any of these test samples fails to meet the any requirement of the Specifications (including standard specifications referenced therein), any previous approval will be deemed to be voided and such materials and Work shall be subject to removal and replacement by the Contractor with materials or equipment meeting the Specification requirements, or at the discretion of the Owner, the defective materials and equipment may be permitted to remain in place subject to a proper adjustment of the Project Cost.

21.14 The approval of Submittals will be general and, except as noted above, shall not be construed as: (i) permitting any departure from the Contract requirements; (ii) relieving the Contractor of any responsibility for any error in details, dimensions or conflicts between components of the Work or between the Work and existing construction or between the Work and the work of other contractors; (iii) approving departures from additional details or instructions previously furnished by the Architect/Consultant.

21.15 No portion of the Work requiring submission of a Shop Drawing, Product Data or Sample shall be commenced, except at the Contractor’s own risk, until each required Submittal has been approved by Architect/Consultant. All such portions of the Work shall be in accordance with approved Submittals.

21.16 Where the Specifications state that materials or equipment shall be manufactured by one specified manufacturer "or approved equal," the Contractor may submit proposals in the form of Submittals for alternative materials or equipment that is equal to that offered by the specified manufacturer. Such Submittals shall be clearly identified by the Contractor as a proposed equal material or equipment. The Architect/Consultant shall have the right to disapprove any such proposed equal equipment/material if, in Architect/Consultant’s opinion, it is not equal in quality, durability, appearance, strength performance, design, physical dimensions, and arrangement to the materials or equipment offered by the specified manufacturer.

21.17 Where Contractor proposes to use a method, or an item of equipment or materials other than that specified, then Contractor shall clearly indicate that the Submittal is a proposed substitution and shall include in the Submittal such information as Architect/Consultant may require for review and evaluation.

21.18 Contractor shall make such corrections to Submittals as the Architect/Consultant and/or Project Manager may require. Contractor shall resubmit corrected Submittals until Submittal is approved. Contractor shall identify each correction or change to a resubmitted Submittal.

ARTICLE 22 LABORATORY TESTS

22.1 Any specified laboratory tests of materials to be incorporated into the Work or of constructed portions of the Work shall be made by a laboratory designated by the Owner and the reports of such tests shall be submitted to the Owner, Project Manager and Architect/Consultant with copies to the Contractor.


22.2 The Contractor shall furnish such facilities as the Owner or Project Manager may require for collecting samples for testing or for the performance of testing at the Project Site as the Architect/Consultant may require. Contractor shall not make use of, or incorporate into the Work, any material or assemblies of materials represented by test samples or material assemblies subjected to field testing until the required tests have been made and the material or assemblies have been accepted by the Architect/Consultant. In all cases, the Contractor shall furnish the required test samples at no additional cost to Owner.

22.3 The Owner shall pay for the costs of such testing services except, in the event that such testing indicates that the Work or a portion of the Work is not in conformance with the Contract Documents, the costs of such testing shall be borne by the Contractor and shall not be considered a reimbursable cost of the Work.

ARTICLE 23 ROYALTIES AND PATENTS

23.1 The Contractor shall pay all royalties and license fees. Contractor shall defend all suits or claims for infringement on any patent rights and shall save the Owner harmless from loss on account thereof, except that the Owner shall be responsible for all such loss when a particular design, process or the product of a particular manufacturer or manufacturers is specified, but if the Contractor has reason to believe that the design, process or product specified is an infringement of a patent, he shall be responsible for such loss unless he promptly gives such information to the Architect/Consultant.

ARTICLE 24 ASSIGNMENTS

24.1 The Contractor shall not assign the whole or any part of this Contract or any monies due or due to become due hereunder without the written consent of the Owner and of all parties executing any bonds on behalf of the Contractor in connection with this Contract.

24.2 The Owner shall have the right to assign this Contract with the consent of the Contractor, which consent shall not be unreasonably withheld. The Contractor shall have five business days from receipt of a Notice from the Owner to respond in writing to such proposed assignment, indicating therein any reasons for refusal to grant such consent. Failure of Contractor to respond as provided herein shall be deemed conclusively a waiver and consent to such assignment.

24.3 Notwithstanding Paragraph 24.2 hereof, Owner shall have the right to assign this Contract without the consent of the Contractor to any affiliated entity controlled by, under common control with or which controls Owner.

ARTICLE 25 USE OF COMPLETED PORTIONS

25.1 The Contractor agrees to the use and occupancy of a portion or unit of the Project before final acceptance by the Owner, provided the Owner secures written consent of the Contractor and endorsement from the insurance carriers and consent of the Surety permitting occupancy or use of such a portion of the Project during the remaining period of construction.

25.2 The Owner reserves the right to take possession of, and/or use any completed or partially completed portions of the Work, prior to termination of the Contract. Taking possession of


occupancy and/or use of any such portion shall not be deemed an acceptance of any Work not in accordance with the Contract Documents.

ARTICLE 26 CONTRACTOR'S TITLE TO MATERIAL

26.1 No materials or supplies for the Work shall be purchased by the Contractor or any Subcontractor subject to any chattel mortgage or under a conditional sale or other agreement by which an interest is retained by the seller. The Contractor warrants that it has good title to all materials and supplies for which Contractor accepts partial or final payment.

ARTICLE 27 TAXES

27.1 The Contractor shall pay all sales, consumer, use and other similar taxes for the Work, or portions thereof, provided by the Contractor which is legally enacted as of the date of this Agreement or during the term of this Agreement.

ARTICLE 28 PROJECT SCHEDULE

28.1 Prior to starting the Work the Contractor shall prepare and submit for Owner’s approval, in a form approved by the Project Manager and Owner, a construction schedule chart based on the Project Schedule. This schedule shall set forth the anticipated dates of starting and completion of the various phases (trades) of the Work and shall be a means for noting thereon the progress of the Work. Once approved, the Contractor shall publish such a chart in a sufficient number of copies as determined by the Project Manager and/or Owner.

28.2 Time if of the essence in the commencement, prosecution and completion of the Work. Contractor shall be responsible for all direct damages to Owner and/or Project Manager arising from any delay by Contractor or by any Subcontractor in performing or completing the Work in accordance with the time requirements of the Project Schedule, other than force majeure delay. Owner agrees to limit liability for damages to the limits of and to the extent covered by Contractor’s Professional Liability Insurance, as evidenced in Exhibit D. The stated limits in Exhibit D must be maintained throughout the project and for a period of 5 years from final completion. The indemnity provisions of Article 13 are applicable to such damages and to claims arising in respect thereto.

28.3 Contractor shall do all things necessary to ensure the prosecution of the Work in accordance with any one or more of the following as determined by Project Manager in its absolute and sole discretion:

28.3.1 the Project Schedule and revisions thereof, given from time to time by Project Manager to Contractor;

28.3.2 the time requirements for various portions of Work, which said requirements are made known from time to time by Project Manager or other contractors to Contractor;


28.3.3 the requirements of the Project including, but not limited to, coordination requirements as may from time to time be known to Contractor or be made known by Project Manager or other contractors to Contractor;

28.3.4 schedules of the Work provided by Contractor to Project Manager upon Project Manager's request.

28.4 Should the progress of the Work and/or other work be delayed by any fault, neglect, act, or failure to act of Contractor or any Subcontractor so as to cause any additional cost, expense, liability or damage to Owner and/or Project Manager or for which Owner and/or Project Manager may become liable, Contractor shall hold Owner, and/or Project Manager harmless from and indemnify Owner and/or Project Manager against all such additional cost, expense, liability or damage in accordance with the provisions of Article 13.

28.5 The Work shall be performed during the hours stipulated in the Project Schedule except that in the event of emergency or when necessary to perform the Work in accordance with the requirements of Paragraph 28.3, Work shall be performed at Contractor's cost and expense (including Project Manager's supervision, standby and other general conditions costs) on night shifts, overtime, Saturdays, Sundays, Holidays and at other times, if permission to do so has been obtained in writing from Project Manager. Without limiting the requirements of the preceding sentence, if the progress of the Work or of the Project has been delayed by any fault, neglect, act, or failure to act of Contractor or any Subcontractor, Contractor shall perform the Work on an overtime basis, at no additional cost to the Owner, as Project Manager shall deem necessary or desirable to make up for all time lost and to avoid delay in the completion of the Work and of the Project. The failure by Project Manager to direct Contractor to engage in such overtime Work shall not relieve Contractor of the consequences of its delay.

28.6 Contractor shall commence the Work upon written Notice by Project Manager.

28.7 Project Manager may direct acceleration of the Work in order that it may be performed in advance of the schedules, time requirements and Project requirements described in Paragraph 28.3 hereof. If so directed, Contractor shall increase its staff and/or perform the Work on an overtime basis. Contractor will not be entitled to additional compensation for Work performed outside of regular working hours, except as authorized in writing by Project Manager. Provided that Contractor is not in Default under this Contract, and Project Manager has issued the aforesaid authorization, there shall be added to the Project Cost an actual out-of-pocket amount equal to: (i) additional wages actually paid, at rates which have been approved by Project Manager; (ii) taxes imposed by law on such additional wages; (iii) premiums for worker's compensation and liability insurance if required to be paid on such additional wages.

28.8 Contractor expressly waives any claim based on quantum meruit.

28.9 The Contractor shall prepare a monthly report (the "Monthly Report") and submit same for review by the Owner, Project Manager and Architect on or before the first day of each calendar month. Such Monthly Report shall provide the following information:

.1 A Change Order summary;

.2 status of the Work, including an analysis of Contractor's compliance with the Construction Schedule, status of Project progress to date, current Work


activity, projected Work activity for the following month, Project photos and status of materials required;

.3 a Project Milestone report outlining progress relative to the Milestone Dates set forth on the then current and approved Construction Schedule, including any Recovery Plans (as defined below);

.4 status of Shop Drawings, Product Data and Samples, the Shop Drawing, Product Data and Samples Submittals Schedule, coordination drawings, and coordination drawing routing schedule;

.5 safety report outlining safety program activities, safety infractions and correction measures taken, incident and accident reports, including lost time;

.6 monthly progress photos; and

.7 weekly meeting minutes.

28.10 In the event the Substantial Completion of the Work is delayed by any cause for which an extension of time is not permitted hereunder and there is reasonable doubt that the entire Work can be substantially completed within the Contract Time, as such time may be extended hereunder, then the Owner may issue a written notice to the Contractor directing the Contractor to submit to the Owner a recovery plan (the "Recovery Plan"). Within ten (10) days of such notice, the Contractor shall submit to the Owner a Recovery Plan which shall state the date Substantial Completion of the entire Work is scheduled to occur without acceleration and/or resequencing of the Work, and shall include a revised detailed Construction Schedule clearly showing, together with a detailed narrative explanation clearly stating, the scope and extent of resequencing and/or acceleration required to enable the Contractor to substantially complete the entire Work within the Contract Time, as such time may be extended hereunder, through resequencing and/or acceleration of the Work. The Contractor shall so state providing the reasons therefor, and the revised detailed Construction Schedule and detailed narrative explanation shall show and state, the maximum recovery of the period of delay possible through the resequencing and/or acceleration of the Work. The Owner shall approve, reject or request reasonable clarification in writing within five (5) business days of receipt of the Recovery Plan and, in the event of approval, the Contractor shall implement the Recovery Plan. In the event that the Owner requests clarification of the Recovery Plan, such clarification shall be submitted to Owner within five (5) days of such notice. The Contractor shall not be entitled to an increase in the Contract Sum (or the GMP) as a result of such acceleration and/or re-sequencing of the Work.

28.11 In the event that Owner or Project Manager determines that the performance of the Work, as of a Milestone Date set forth on the Construction Schedule, has not progressed or reached the level of completion required by the Contract Documents due to any cause for which an extension of time is not permitted hereunder and the Contractor, pursuant to a Recovery Plan submitted to the Owner, is unable to mitigate the failure to achieve the performance of the Work required as of such Milestone Date without taking additional measures, the Owner shall have the right to direct 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 Work complies with the state of 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. The Contractor shall be entitled to an adjustment in the Contract Sum (or the GMP) in connection with Extraordinary Measures required by the Owner under or pursuant to this Section 28.11 if the delay was not a direct result of any act or omission of the Contractor or its Subcontractor. Owner may exercise the rights furnished the Owner hereunder or pursuant as frequently as the Owner deems necessary to ensure that the Contractor’s performance of the Work will comply with any Milestone Date or completion date set forth in the Construction Schedule. 28.12 The term "Milestone Date" refers to dates for completion of activities or tasks which are important to the construction of the Project and which may or may not fall upon the critical path of the Construction Schedule. Milestone Dates shall be expressly identified as such on the Construction Schedule. If the Contractor fails to achieve a Milestone Date indicated on the Construction Schedule, at the option and written request of the Owner, the Contractor shall (i) promptly provide a proposed written Recovery Plan; (ii) upon approval by the Owner of such Recovery Plan, proceed to implement the Recovery Plan in order to achieve the applicable Milestone within the cure period established in the Recovery Plan, and/or (iii) demonstrate, to the reasonable satisfaction of the Owner, that said Milestone will not, by virtue of the related delay and the corresponding Recovery Plan, impact the critical path of the Construction Schedule, as the case may be.

ARTICLE 29 NOTICE

29.1 The term "Notice" as used herein shall mean and include all written notices, demands, instructions, claims, approvals and disapprovals required to obtain compliance with Contract requirements. Any written Notice by either party to the Contract shall be sufficiently given if delivered to, or at, the last know business address of the person, firm or corporation constituting the other party to this Contract, or to a duly authorized agent, representative, or office, or when sent by registered mail, return receipt requested, to such last known business address.

ARTICLE 30 PERFORMANCE BOND/LABOR AND MATERIAL PAYMENT BONDS

30.1 Contractor may be required to provide a Performance Bond and a Labor and Materials Payment Bond, each in the amount of one hundred percent (100%) of the Project Cost and each shall containing a "dual obligee" rider in favor of such party(ies) as Owner may designate.

30.2 Contractor’s bonds shall be obtained from a surety having a current A.M. Best Rating of A-minus or better and a U.S. Treasury Limit at least equal to the Project Cost. Evidence of compliance shall be submitted with the bonds. Equivalent financial capacity (i.e. reinsurance, etc.) will be considered but request for approval must be made at least ten (10) calendar days in advance of the original Bid Deadline stated in the Request for Proposal.


30.3 Obligation to Surety: Owner and Project Manager assume no obligation to Surety regarding overpayment to Contractor (prior to Default), but if advised in writing by Surety that a reasonable doubt exists regarding Contractor’s fulfillment of Contract and that payments should be withheld or reduced, the Owner and Project Manager will so comply.

30.4 If the Contractor is requested to provide bonding it shall be considered a Cost of the Work and the Contractor shall be entitled to markups per this agreement.

ARTICLE 31 PROGRESS AND COMPLETION OF THE WORK

31.1 All time limits stated in the Contract Documents are of the essence of the Contract. The Contractor shall begin the Work on the date established in the Notice to Proceed from the Owner or Project Manager.

31.2 The Date of Substantial Completion of the Work, or designated portion thereof, is the Date certified by the Project Manager and Owner when Construction is sufficiently complete, in accordance with the Contract Documents, so the Owner can occupy or utilize the Work, or portion thereof, for its intended purposes.

ARTICLE 32 DELAYS AND EXTENSIONS OF TIME

32.1 If the Contractor is delayed in the progress of the Work by any act or neglect of the Owner or the Project Manager, or by any employee of either; or by any separate contractor employed by the Owner; or by changes ordered in the Work; or by labor disputes, fire, unusual transportation delays, or adverse weather conditions which could not be reasonably anticipated; or by any causes beyond the Contractor's control which the Project Manager determines may justify the delay, then the Project Schedule shall be extended by Change Order for such reasonable time as determined by the Project Manager, but only to the extent that (i) the delay affects the performance of work shown to be the critical path of the Construction Schedule, (ii) the aforesaid causes did not result from the fault or negligence of the Contractor or any Subcontractor or material supplier, and (iii) the Contractor notifies the Owner and Project Manager in writing of the potential delay and the cause(s) for the delay within ten (10) business days from the beginning of any such potential delay; provided, however, that such extension of Contract Time shall be net of any delays caused by or due to the fault or negligence of the Contractor or any Subcontractor or material supplier or which are otherwise the responsibility of the Contractor, and shall also be net of any available contingency of "float" time allowance included in the Construction Schedule, provided, further, that the Contractor shall not be entitled to the time extensions pursuant hereto by reason of mechanical failure of the Contractor’s equipment, financial conditions of the Contractor or any Subcontractor or material supplier, failure of suppliers to deliver materials ordered by the Contractor or the increase in prices for any labor or materials ordered by the Contract.

32.2 Any claim for extension of the Project Schedule shall be made in writing to the Project Manager not more than ten (10) business days after the commencement of the delay; otherwise, it shall be waived. Only one claim is necessary in the case of a continuing delay. The Contractor shall provide an estimate of the probable effect of such delay on the progress of the Work.

32.3 If no agreement is made regarding dates upon which interpretations shall be furnished; then no claim for delay shall be allowed until fifteen days after the written request for such


interpretations is submitted. No claim for such delays will be allowed unless such claim is reasonable.

32.4 This Article 32 does not exclude the recovery of damages for delay by either party under other provisions of the Contract Documents.

ARTICLE 33 GUARANTEED MAXIMUM PRICE /SCHEDULE OF VALUES

33.1 Owner reserves the right to convert the estimated costs into a Guaranteed Maximum Price, herein “GMP,” when the construction documents are 100 % complete, all of the major trade contracts have been properly bid and qualified, and 95% of the Cost of Construction has been identified. Owner then may instruct Contractor to provide a detailed estimate in the form of a Guaranteed Maximum Price Proposal, reflecting all of the identified costs plus a reasonable estimate for those items that have not been properly bid, subject to Owner’s approval, plus Contractor’s agreed to CM Fee, CM General Conditions Costs and Insurance Costs as set forth in Exhibit B. Following acceptance of a Guaranteed Maximum Price Proposal, the Owner and Construction Manager shall execute a Guaranteed Maximum Price Amendment amending this Agreement. The Guaranteed Maximum Price Amendment shall set forth the agreed upon Guaranteed Maximum Price with the information and assumptions upon which it is based. Upon the Owner’s acceptance of the Construction Manager’s Guaranteed Maximum Price proposal, the Contract Documents will include any documents identified in the Guaranteed Maximum Price Amendment. If owner elects to convert to a GMP, a contingency allowance of 5% of the Cost of Construction shall be added to the GMP. Contractor must get Owner’s written approval to use the contingency allowance.

33.2 Contractor shall be obtain from each Subcontractor a schedule of the various portions of each Subcontractor’s Work, listing the estimated value of each such portion, aggregating the Subcontractor’s Subcontract Sum, prepared in such form and supported by such documentation as the Contractor and/or Owner may require. Said schedule, when approved by the Contractor and Owner, shall be used as the basis for Subcontractors’ Applications for Payments and included in the Contractor’s Applications for Payment.

33.3 Owner’s Payments to Contractor shall be based on the percentage of Work complete for each Subcontract line item in the Schedule of Values plus the actual cost (“Time and Materials Costs” or “T&M Costs”) of the materials, equipment, labor and services comprising the Work applicable to each Allowance, not to exceed such Allowance. Applications for Payment for under Allowances shall include complete back-up documentation of labor rates and hours worked and/or costs for material or equipment purchased, equipment rental costs or costs of other services applicable to such Allowance. Such other services may include costs of other contractors or engineers as required by the Contractor, and approved by the Owner, to perform a portion of the Work. Backup documentation for payments based on cost of the Work shall include timesheets, invoices and such other information as Owner may require to verify costs incurred. Such backup must clearly indicate the date of performance, the name and/or the address of the Project and the phase of the Work, if the Work is phased.


33.4 Time and Material Costs (as defined in Paragraph 33.3) shall not include the cost of hand tools, the cost of equipment purchased but not installed as a part of the Work or consumed in performing the Work, costs of Contractor’s supervisory staff above the rank of supervisor/foreman, Contractor’s field office staff employed on other projects, Contractor’s field office expenses attributable to other projects, Contractor’s main office staff and main office expenses. Time and Material Costs shall exclude costs to correct damaged or defective Work or to correct Work not in conformance with the Contract Documents. Time and Material Costs shall exclude premium costs for overtime labor required as a result of Contractor’s delay or failure to perform the Work in accordance with the Project Schedule.

ARTICLE 34 CONTRACTOR REQUESTS FOR PAYMENT/NO LIENS

34.1 The GMP is stated in the Exhibits of this Agreement and, including authorized adjustments thereto, is the total amount payable by the Owner to the Contractor for the performance of the Work under the Contract Documents.

34.2 Project Manager shall have no liability or responsibility for any amounts due or claimed to be due to Contractor for any reason whatsoever except to the extent that Project Manager has actually received funds from Owner specifically designated for disbursement to Contractor.

34.3 At least ten days before the date for each progress payment established in the Contract Documents the Contractor shall submit to the Project Manager an Application for Payment, itemized in accordance with the Schedule of Values, notarized, supported by such data substantiating the Contractor's right to payment as the Owner or the Project Manager may require, and reflecting retention, if any, as provided in Paragraph 34.5 hereof. Contractor shall furnish with each Application for Payment such material invoices, evidence of equipment purchases, rentals and other details of cost as Owner or Project Manager may require from time to time. With Owner's approval, an Application for Payment may reflect Work that is expected to be completed by the end of the month to which the Application for Payment is applicable.

34.4 On or before the 5th day of each month during the progress of the Work, Contractor shall submit to Owner an Application for Payment in the form of AIA documents numbered G702 and G703, sworn to by a principal officer of Contractor, which shall include the following:

34.4.1 the amount paid to Contractor and each Subcontractor to the date of the Application for Payment;

34.4.2 the amount requested by Contractor and each Subcontractor on the current Application for Payment;

34.4.3 the balance that will be due to Contractor and each Subcontractor after the payment requested is made;

34.4.4 any additions to and subtractions from the GMP in accordance with the Contract Documents;

34.4.5 the amount then being withheld for retention;

34.4.6 the percentage of completion of each detailed portion of the Work listed in the Schedule of Values.


34.5 Each Application for Payment shall provide for a retention of ten percent (10%) of the scheduled value of each item of the Work completed to the date of such Application until completion of the Work and acceptance thereof by Owner. If the Contractor has provided payment and performance bonds for 100% of the GMP, the Owner, after holding 10% retention until 50% of the GMP has been paid, may, at its sole discretion, waive holding further retainage on subsequent payments to the Contractor.

34.6 Beginning with the second Application for Payment and with each subsequent Application for Payment, Contractor shall submit, and shall cause each Subcontractor to submit, a duly executed waiver or partial waiver of lien acknowledging all prior payments. Such waiver shall be in a form approved by Owner, and shall be acknowledged under oath by a principal officer of Contractor. In addition, at Owner's election, Contractor shall submit, and cause each Subcontractor to submit, with each Application for Payment furnish an affidavit, in form approved by Owner and sworn to by a principal officer of Contractor or Subcontractor, stating the amount of prior payments to Subcontractors, sub-subcontractors and suppliers in respect of the Project and the amount to be owing and due by Contractor or Subcontractor to its Subcontractors, sub-subcontractors and suppliers through the end of the period covered by the Application for Payment.

34.7 The Contractor shall warrant that title to all Work, materials and equipment covered by an Application for Payment will pass to the Owner either by incorporation in the construction or upon Contractor’s receipt of payment from the Owner, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances, hereinafter referred to in this Article 34 as "liens," and that no Work, materials or equipment covered by an Application for Payment will have been acquired by the Contractor, or by any other person performing the Work or furnishing materials and equipment for the Work, subject to an agreement under which an interests therein or an encumbrance thereon is detained by the seller or otherwise imposed by the Contractor or such other person.

34.8 Payments for stored material shall be made on account of materials and equipment not incorporated in the Work but delivered and suitably stored at the Project Site. Such payments shall be conditioned upon submission by Contractor of proof of insurance, bills of sale and other documents satisfactory to Owner to protect the Owner's interest in such materials.

34.9 The Owner at its sole discretion may approve payments on account of materials or equipment suitably stored at an off-site location agreed upon by Owner and Contractor. Payments for materials or equipment stored off the Project Site shall be conditioned upon submission by the Contractor of bills of sale or such other procedures satisfactory to the Owner to establish the Owner's title to such materials or equipment or otherwise protect the Owner's interest, including without limitation, (i) opinions of the Contractor's counsel as to such interests, and (ii) applicable insurance and (iii) pre-payment for transportation to the Project Site. Owner may make payment based on an agreed to value of such off-site stored material less applicable retention.

34.10 Owner reserves the right to request Certified Payroll submittals if required.

34.11 Project Manager shall review an Application for Payment together with such supporting documents as Owner and/or Project Manager may require. Project Manager shall then approve, modify or reject, in whole or in part, such Application for Payment. Project Manager may, in its discretion, either return such Application for Payment to Contractor for revision and resubmission or forward the Application to Owner as modified unilaterally by Project Manager.


The forwarding of an Application for Payment to Owner by Project Manager shall not bind Owner to make payment, Owner having retained the right to decline payment, in whole or in part, under the terms and conditions of this Contract.

34.12 To the extent permitted by law, Contractor shall not suffer or permit any lien or other encumbrance to remain of record as a claim against the Owner’s property or against any monies due or to become due for any Work performed or materials furnished by, to or on behalf of Contractor, or any Subcontractor; nor shall Contractor suffer or permit any such lien or encumbrance to be so filed because of any claim or demand against, or any action or non-action of, Contractor or any Subcontractor, providing Owner is not in breach of its payment obligations. If any such lien or encumbrance has been so filed, Contractor shall promptly cause the removal or discharge thereof from the Owner’s property, and no payment shall be made to Contractor until said lien or encumbrance has been removed or discharged or there has been furnished to Owner a bond or other security satisfactory to Owner protecting and holding harmless the Owner and Project Manager from any liability, fees, or costs (including, without limitation, attorneys' fees) in connection therewith. Contractor shall (and shall cause each Subcontractor to) promptly pay all claims lawfully made against it by Subcontractors and workmen and all claims made against it by other third parties arising out of the Work.

34.13 The failure of Contractor after ten (10) days written demand by Owner or Project Manager, to remove or discharge a lien filed by Contractor or by Contractor's Subcontractor shall constitute breach of this Contract.

34.14 No certificate issued or payment made to Contractor nor any partial or entire use or occupancy of the Project Site shall be an acceptance of any Work not in accordance with the Contract Documents or be deemed evidence of proper performance of the Work, either in whole or in part, or be construed as an acceptance of defective workmanship or improper materials.

34.15 Notwithstanding anything in this Contract to the contrary, (i) Owner shall not be precluded or estopped by any acceptance, certificate or payment, final or otherwise, issued under this Contract or made directly to Contractor or any Subcontractor by Owner, from showing at any time the true amount and character of the Work performed, or from showing that any such acceptance, certificate or payment is incorrect or improperly issued or made; and Owner shall not be precluded or estopped, notwithstanding any such acceptance, certificate or payment from recovering from Contractor any damages which Owner may sustain by reason of any failure on Contractor's part to comply strictly with the Contract Documents; and (ii) neither the acceptance of the Work or any part thereof by Owner hereunder, nor any payment therefore, nor any order or certificate issued by the Owner, nor any permission or direction to continue with the performance of the Work, nor any performance by Owner of any of the Contractor's duties or obligations, nor any aid lent to the Contractor by the Owner in the Contractor's performance of such duties or obligations, nor any other thing done or not done by Owner, Project Manager or their agents or employees, shall be deemed to be a waiver by the Owner of any rights or remedies which the Owner may be entitled because of any breach of this Contract by the Contractor.

34.16 Notwithstanding anything in this Article 34 to the contrary, if (i) the Contractor fails to perform any of its obligations under this Contract, including its obligation to Owner to pay any claims lawfully made against it by any Subcontractor, worker or other third person which arises out of or in connection with the performance of this Contract or (ii) any claim (just or unjust) which arises out of or in connection with this Contract which is made against Owner or (iii) any Subcontractor fails to pay any claims, lawfully made against it by any Subcontractor, worker or


other third persons which arises out of or in connection with this Contract or if in Owner's opinion any of the aforesaid contingencies is likely to arise, then Owner shall have the right, in its discretion, to withhold out of any payment (final or otherwise and even though such payments have already been certified as due) such sums as Owner may deem ample to protect it against delay or loss or to assume the payment of just claims of third persons, and to apply such sums in such manner as Owner may deem proper to secure such protection or satisfy such claims. All sums so applied shall be deducted from the Contractor's compensation. Omission by Owner to withhold out of any payment, final or otherwise, a sum for any of the above contingencies, even though such contingency has occurred at the time of such payment, shall not be deemed to indicate that Owner does not intend to exercise its right with respect to such contingency. Neither the above provisions for rights of Owner to withhold and apply monies nor any exercise, or attempted exercise of, or omission to exercise such rights by, Owner shall create any obligation of any kind to such Subcontractors, worker or other third persons. Until actual payment is made to the Contractor, its right to any amount to be paid under this Contract (even though such amount has already been certified as due) shall be subordinate to the rights of Owner under this provision.

34.17 All payments received by Contractor hereunder shall be held by Contractor as trust funds under the Lien Law of the State of New York for the payment of all labor, materials, equipment, tools, plant, facilities, services and all other obligations incurred by Contractor in connection with the Work and shall not be applied to any other purpose until all obligations of Contractor for the Work are satisfied.

ARTICLE 35 CERTIFICATES FOR PAYMENT

35.1 The Project Manager will, within fifteen (15) days after the receipt of the Contractor's Application for Payment, either issue a Certificate for Payment to the Owner, with a copy to the Contractor, for such amount as the Project Manager determines is properly due, or notify the Contractor in writing of Project Manager’s reasons for withholding a Certificate as provided in Article 37.

35.2 The certification of an Application for Payment will constitute a representation by the Project Manager to the Owner, based on its observations at the site and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of Project Manager’s knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to the results of any subsequent tests required by or performed under the Contract Documents, to minor deviations from the Contract Documents correctable prior to completion, and to any specific qualifications stated in the Certificate); and that the Contractor is entitled to payment of the amount certified. Approval by Project Manager of Application for Payment shall not be deemed to relieve the Contractor of its responsibility to perform Work in accordance with the Contract Documents.

ARTICLE 36 PROGRESS PAYMENTS

36.1 After the Project Manager has issued a Certificate for Payment, on or about the tenth day of the month immediately succeeding the month in which such Certificate for Payment is received by Owner, from Project Manager, Owner shall pay to Contractor the amount of said


Certificate for Payment, to the extent approved by Owner. When and if all the grounds for declining approval are removed, payment shall be made for amounts withheld, if any.

36.2 Payment shall be made either directly from Owner or otherwise only from funds which Project Manager has actually received in hand from Owner and designated by Owner for disbursement to Contractor. Contractor agrees to look solely to such funds for payment. Contractor understands and agrees that Project Manager shall have no liability or responsibility for any reason whatsoever for any amounts due or claimed to be due to Contractor except to the extent that Project Manager has actually received funds from Owner specifically designated for disbursement to Contractor. Contractor acknowledges that Project Manager has made no representations or warranties regarding Owner's financial ability to perform its duties hereunder. The risk of Owner's non-performance shall be upon Contractor and not upon Project Manager. Contractor represents that it has inspected the Project Site and has satisfied itself as to the condition thereof and that the Contract Sum is just and reasonable compensation for all the Work and for Contractor's assumption of the risk of all foreseen and unforeseen risks, hazards, and difficulties in connection with the performance of the Work.

36.3 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of each Subcontractor's Work, the amount to which each Subcontractor is entitled, reflecting the percentage actually retained, if any, from payments to the Contractor on account of each Subcontractor's Work. The Contractor shall, by an appropriate agreement with each Subcontractor, require each Subcontractor to make payments to its Sub-subcontractors in similar manner.

36.4 The Project Manager may, on request and at its discretion, furnish to any Subcontractor, if practicable, information regarding the percentages of completion or the amounts applied for by the Contractor and the action taken thereon by the Project Manager on account of Work done by such Subcontractor.

36.5 Neither the Owner nor the Project Manager shall have any obligation to pay or to see to the payment of any monies to any Subcontractor except as may otherwise be required by law.

36.6 Progress payments, or any partial or entire use or occupancy of the Project by the Owner, shall not constitute an acceptance of any Work that is not in accordance with the Contract Documents.

ARTICLE 37 PAYMENTS WITHHELD

37.1 The Project Manager may decline to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent necessary to reasonably protect the Owner, if, in its opinion, Project Manager is unable to make representations to the Owner as provided in Paragraph 37.2.

37.2 If the Project Manager is unable to certify payment in the amount of an Application for Payment, Project Manager will notify the Contractor. If the Contractor and the Project Manager cannot agree on a revised amount, the Project Manager will promptly issue a Certificate for Payment in the amount for which Project Manager is able to make such representations to the Owner. Owner or Project Manager may decline to approve an Application for Payment in whole or part and/or may decline to make a payment because of evidence of:


37.2.1 defective Work not remedied;

37.2.2 third party claims filed or reasonable evidence indicating probable filing of such claims;

37.2.3 failure of the Contractor to make payments properly to Subcontractors, or for labor, materials or equipment;

37.2.4 reasonable doubt that the Work can be completed for the unpaid balance of the GMP or reasonable doubt that the Work of a Subcontract can be completed for the unpaid balance of the Subcontract;

37.2.5 damage to Work, the property or to the work of another contractor;

37.2.6 reasonable evidence that the Work will not be completed within the Contract Time;

37.2.7 unsatisfactory prosecution of the Work;

37.2.8 erroneous estimates by Contractor or a Subcontractor of the percentage or value of Work performed;

37.2.9 unauthorized deviations from the Contract Documents;

37.2.10 the Application for Payment, and/or any certifications and/or documentation and/or other items required to be contained therein, attached thereto or submitted therewith is/are not in accord with the terms of the Contract Documents or is not included, incomplete or is otherwise improper;

37.2.11 any failure of Contractor to perform pursuant to this Contract;

37.2.12 any failure of a Subcontractor to perform pursuant to its Subcontract;

37.2.13 the failure of Contractor to submit required documentation; and

37.2.14 any other right of Owner under this Contract to withhold payment.

37.3 The Project Manager may, because of subsequently discovered evidence or subsequent observations, nullify the whole or any part of any Certificate for Payment previously issued, to such extent as may be necessary in Project Manager’s opinion to protect the Owner from loss

37.4 When the grounds in Paragraph 37.2 are removed, payment shall be made for amounts withheld because of them.

ARTICLE 38 SUBSTANTIAL COMPLETION AND FINAL INSPECTION

38.1 When Contractor believes the Work is substantially complete, Contractor shall request an inspection of the Work by the Architect/Consultant. Based on such inspection of the Work the


Architect/Consultant shall prepare and submit to the Contractor, a list of items of Work to be completed or corrected, hereafter known as the "Punch List". The failure to include any items on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. On the basis of an inspection by the Architect/Consultant which determines that the Work is substantially complete, Architect/Consultant shall issue a Certificate of Substantial Completion which shall establish the Date of Substantial Completion and state the responsibilities of the Owner and the Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and fix the time limit within which the Contractor shall complete the items listed therein.

38.2 Warranties required by the Contract Documents shall commence on the Date of Substantial Completion unless otherwise provided in the Contract Documents.

38.3 If the Contractor fails to proceed to complete the items on the Punch List, then, in addition to the corrective measures listed in the Certificate of Substantial Completion, the Owner may use the monies still due the Contractor to have such items completed and the Contractor shall lose any claim to the monies so used.

38.4 The Certificate of Substantial Completion of the Work, or designated portions thereof, shall be submitted to the Owner and the Contractor for their written acceptance of the responsibilities assigned to them in such Certificate.

ARTICLE 39 FINAL PAYMENT

39.1 Final Payment of the unpaid balance, including retention, shall be made on an Application for Final Payment in form approved by Owner; provided, however, that Contractor shall not be permitted to submit an Application for Payment or an Application for Final Payment nor be entitled to payment thereunder after the expiration of six (6) months from the date of completion of the Work and acceptance thereof by Owner.

39.2 The Application for Final Payment shall be accompanied by the same type of documents, information, and affidavits as set forth hereinabove for an application for progress payment except, however, that the following additional conditions shall be fulfilled:

39.2.1 a full and final release and waiver of all liens and claims in connection with the Work shall be submitted by Contractor for each Subcontractor or supplier who has performed Work or supplied materials to the Project on behalf of Contractor, such waiver to be in a form approved by Owner. In the event that any such release and waiver of lien is not or cannot be furnished, then Contractor shall furnish to Owner a bond or other security reasonably satisfactory to Owner to indemnify Owner against any such lien or claim;

39.2.2 Contractor shall have made or caused to have been made, all corrections in the Work required to remedy any defects therein and obtain compliance with the directions of Project Manager and with this Contract;

39.2.3 Contractor shall have delivered to Owner through Project Manager, all written guarantees, warranties, bonds, operating and maintenance manuals, training, instructions and as-built drawings required by the


Contract Documents and such other information that the Contract may require;

39.2.4 Architect/Consultants shall have issued a Final Certificate for Payment, if required by Owner;

39.2.5 the Work shall have been accepted by the Owner, Project Manager and Architect/Consultant pursuant to Article 38 herein;

39.2.6 the Contractor submits in addition to the documents otherwise required with an Application for Payment, (i) an affidavit that all payrolls, bills for materials and equipment and other indebtedness in connection with the Work for which Owner or Owner’s property might in any way be held responsible have been paid or otherwise been satisfied, (ii) a release and waiver of all claims liens against the Project or any of the Work to the extent and in such form as the Owner may reasonably require and (iii) such other documentation as the Owner may reasonably require.

39.2.7 Contractor shall have provided a general release to Owner, acceptable by Owner pursuant to Paragraph 39.8 herein;

39.3 Upon written Notice from the Contractor that the Work or a phase of the Work is ready for final inspection and acceptance, the Project Manager with the Architect/Consultant shall promptly make such inspection, and when Architect/Consultant finds the Work acceptable and completed in accordance with Contract Documents, and the Contract fully performed, the Project Manager will promptly issue a Certificate of Final Payment stating that, to the best of Project Manager’s knowledge and information, the balance found to be due the Contractor, and noted in the Final Certificate for Payment is payable.

39.4 Neither the Final Payment nor the remaining retained percentage shall become due until the Contractor submits to the Project Manager (i) an affidavit that all payrolls, that union benefits and fringe contributions have been made, that bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or Owner’s property might in any way be responsible, have been paid or otherwise satisfied, (ii) consent of surety, if any, to final payment and (iii), if required by the Owner, other data establishing payment or satisfaction of all such obligations, such as receipts, releases and waivers of liens arising out of the Contract, to the extent and in such form as may be designated by the Owner. If any Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify Owner against any such lien. If any such lien remains unsatisfied after all payments are made, the Contractor shall refund to the Owner all monies that the latter may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees.

39.5 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by the issuance of Change Orders affecting final completion, and the Project Manager so confirms, the Owner may upon application by the Contractor and certification by the Project Manager, 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 the retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Project Manager prior to certification of such payment.


Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims.

39.6 The making of Final Payment shall constitute a waiver of all claims by the Owner except those arising from:

39.6.1 unsettled liens,

39.6.2 faulty or defective Work

39.6.3 failure of the Work to comply with the requirements of the Contract Documents, or

39.6.4 terms of any special warranties required by the Contract Documents.

39.7 The acceptance of Final Payment shall constitute a waiver of all claims by the Contractor except those previously made in writing and identified by the Contractor as unsettled at the time of the Final Application for Payment.

39.8 Acceptance by Contractor of the Final Payment shall constitute a release of Owner and Project Manager of and from all liability for all things done or not done or furnished or not furnished in connection with the Work, and for every act, omission, or neglect, if any, relating to or arising out of the Project. Before final payment, Contractor shall also execute and deliver a General Release to Project Manager naming Owner and Project Manager, said General Release to be in such form as Project Manager may provide.


40.1 A Change Order is a written order to the Contractor signed by the Owner and the Project Manager, issued after execution of the Contract, authorizing a change in the Work or an adjustment in the GMP or the Contract Time. The GMP and the Contract Time may be changed only by Change Order. A Change Order signed by the Contractor indicates its agreement therewith, including the adjustment in the GMP or the Contract Time.

40.2 The Owner, without invalidating the Contract, may order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the GMP and the Contract Time being adjusted accordingly. All such changes in the Work shall be authorized by Change Order, and shall be performed under applicable conditions of the Contract Documents.

40.3 The cost or credit to the Owner resulting from a Change Order shall be determined in one or more of the following ways:

40.3.1 by mutual acceptance of a lump sum properly itemized and supported by substantiating data;

40.3.2 by Unit Prices stated in the Contract Documents or if none are stated, as subsequently agreed upon;


40.3.3 by cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or

40.3.4 by the method provided in Paragraph 40. 4.

40.4 If none of the methods set forth in Paragraph 40.3 is agreed upon, the Contractor, upon receipt of a written order signed by the Owner, shall promptly proceed with the change to the Work. The cost of such change to the Work shall then be determined by the Project Manager on the basis of the reasonable expenditures and savings of those performing the Work attributable to the change, including, in the case of an increase in the GMP, a reasonable allowance for overhead and profit. In such case, and also under Paragraph 40.3 above, the Contractor shall keep and present, in such form as the Project Manager may prescribe, an itemized accounting together with appropriate supporting data for inclusion in a Change Order. Unless otherwise provided in the Contract Documents, cost shall be limited to the following: cost of materials, including sales tax and cost of delivery; cost of labor, including social security, old age and unemployment insurance, and fringe benefits required by agreement or custom; workers' or workmen's compensation insurance; bond premiums; rental value of equipment and machinery; and the additional costs of supervision and field office personnel directly attributable to the change. Pending final determination of cost to the Owner, payments on account shall be made on the Certificate for Payment. The amount of credit to be allowed by the Contractor to the Owner for any deletion or change which results in a net decrease in the GMP shall be the amount of the actual net cost as confirmed by the Project Manager. When both additions and credits covering related Work or substitutions are involved in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase, if any, with respect to such change.

ARTICLE 41 CONCEALED CONDITIONS

41.1 Should concealed conditions encountered in the performance of the Work below the surface of the ground, or should concealed or unknown conditions in existing building construction be at variance with the conditions indicated by the Contract Documents, or should unknown physical conditions below the surface of the ground or should concealed or unknown conditions in existing building construction of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Contract, be encountered, the GMP shall be equitably adjusted by Change Order upon claim by either party to this Contract made within ten (10) business days after the first observance of such conditions in accordance with Article 40 hereof.

ARTICLE 42 CLAIMS FOR ADDITIONAL COST/TIME EXTENSIONS

42.1 Owner, through Project Manager, may order changes in the Work consisting of additions, deletions, and revisions. The Owner shall have the right to delete Work from this Contract for any reason whatsoever and to direct other contractors to perform such work, and in such event Contractor shall have no claim against Project Manager or Owner for such deletion of Work or for breach of Contract. The GMP and Contract Time requirements shall be adjusted as set forth below to the extent that Owner in its sole discretion agrees to such adjustment. All changes in the Work shall be authorized only by written Change Orders executed by Project Manager and Owner except that emergency work in an amount not to exceed $5,000 may be authorized by Project Manager through an order signed by its field superintendent. All changes in the Work shall be performed pursuant to the Contract Documents.


42.2 Any increase or decrease to the GMP resulting from a change in the Work shall be determined in one or more of the following methods as deemed applicable by Project Manager to a specific situation:

42.2.1 by Unit Prices stated in the Contract Documents or if none are stated, as subsequently agreed upon;

42.2.2 by mutual acceptance of a lump sum, properly itemized and supported by substantiating data;

42.2.3 by the sum of the following in the order stated: (i) the actual and reasonable out-of-pocket net cost of additional Materials, calculated as provided in Paragraph 42.3 below; (ii) the actual and reasonable out-of-pocket cost of additional Labor (base and overtime wage only actually paid and received); (iii) an amount for overhead and profit for the applicable Subcontractors equal in the aggregate to % of the actual and reasonable out-of-pocket net costs of said additional Labor and Material; and (iv) actual additional out-of-pocket employee benefits, welfare, taxes and other customary fringe benefits.

42.2.4 Provisions, if any, for adjustment of CM General Conditions Costs, CM Fee and Insurance Costs are set forth in Article 8 of the Agreement.

42.3 As used in this Article 42:

42.3.1 "Labor" means foremen, surveyors, laborers, mechanics and other Employees below the rank of superintendent, exclusive of timekeepers, directly employed at the construction site, whether employed by the Contractor or by the Subcontractors, subject to the Project Manager's authority to determine what Employees of any category are required for Extra Work and as to the portion of their time allotted to Extra Work. "Employees" as used above mean only the Employees of one employer.

42.3.2 "Extra Work" shall mean the work explicitly directed or authorized in writing by the Owner which is in addition to that required by or reasonably inferable from the Contract Documents in their present form.

42.3.3 "Materials" means temporary and consumable Materials as well as permanent Materials; and "Cost of Materials" means the price (including taxes actually paid by the Contractor pursuant to law upon the basis of such Materials) for which such Materials are sold for cash by the manufacturers or producers thereof, or by regular dealers therein, whether or not such Materials are purchased directly from the manufacturer, producer or dealer (or if the Contractor is the manufacturer or producer thereof, the reasonable cost to the Contractor of manufacture and production), plus the reasonable cost of delivering such Materials to the construction site in the event that the price paid to the manufacturer, producer or dealer does not include delivery and in case of temporary Materials, less their salvage value, if any.


42.3.4 "Work Day" in reference to rental of an item of equipment means a day other than a Saturday, Sunday or legal holiday except that if the particular item of equipment is actually utilized at the construction site by the Contractor or Subcontractors under this Contract on a Saturday, Sunday or legal holiday said day shall be deemed a Work Day.

42.4 Intentionally omitted

42.5 If Contractor objects to the method of determining the increase or decrease of the GMP deemed applicable by Project Manager, Contractor shall nonetheless promptly proceed with the additional, revised or deleted Work involved. The increase or the decrease for such Work shall then be resolved by the parties by agreement or otherwise on the basis set forth in Subparagraph 42.2.3 but in no event shall such value exceed the actual and reasonable out-of-pocket cost or cost savings to the Contractor of the additional, revised, or deleted Work.

42.6 When both increases and decreases are involved in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase, if any.

42.7 The provisions of this Contract relating generally to the Work and its performance shall apply without exception to any Extra Work required and to the performance thereof. Moreover, the provisions of the Specifications relating generally to the Work and its performance shall also apply to any Extra Work required and to the performance thereof, except to the extent that a written order in connection with any particular item of Extra Work may expressly provide otherwise.

42.8 No claim shall be made or asserted by or through the Contractor in any action or proceeding at law or in equity and the Contractor shall not be entitled to allowance of such claim unless the Contractor shall have complied with all requirements relating to the giving of written Notice with respect to such claim as provided in this Article 42. The failure of the Contractor to give such written Notice and information as to any claim shall be conclusively deemed to be a waiver by the Contractor of such claim, such written Notice and information being conditions precedent to such claim. As used herein "claim" shall include any claim arising out of, under, or in connection with, or in any way related to or on account of, this Contract (including claims in the nature of breach of contract or fraud or misrepresentation before or subsequent to execution of this Contract and claims of a type which are barred by the provisions of this Contract) for damages, payment or compensation of any nature or for extension of any time for performance of any part of this Contract. The Contractor shall include a provision substantially the same as this Paragraph 42.8 in each Subcontract.

42.9 If Contractor claims an increase in the GMP or an extension in the Contract Time requirements by reason of a change in the Work, Contractor shall give Project Manager written Notice thereof within five (5) days after Contractor has knowledge of the occurrence of the matter giving rise to such claim. This Notice shall be given by Contractor before proceeding to execute the changed Work, except in an emergency endangering life or property in which case Contractor shall proceed in accordance with Paragraph 8.14 hereof. No such claim shall be valid unless Notice is given within five (5) days of Contractor's knowledge as aforesaid. Contractor shall proceed to execute the Work as so changed in accordance with this Article 42, even though the increase or time extension has not been agreed upon.


42.10 Should Contractor be obstructed or delayed in the commencement, prosecution or completion of the Work, without fault on its part, by reason of: failure to act, direction, order, neglect, delay or default of the Owner, the Architect/Consultant, the Project Manager or any other contractor employed upon the Project; by changes in the Work; fire, lightning, earthquake, enemy action, act of God or similar catastrophe; by government restrictions in respect to Materials or Labor; or by an industry-wide strike beyond Contractor's reasonable control, then Contractor shall be entitled to an extension of time to perform the Work which shall be equal to the time lost by reason of any or all of the causes aforesaid, but no claim for extension of time on account of delay shall be allowed unless a claim in writing therefor is immediately presented to Project Manager, but in any event not later than five (5) days after the commencement of such claimed delay. Except for the causes specifically listed above in this Paragraph 42.10, no other cause or causes of delay shall give rise to an extension of time to perform the Work. The granting of an extension is conditioned upon Contractor's timely submission of the aforesaid written Notice. Contractor acknowledges the complexity of the Project and the difficulties in scheduling and coordination of the Work that it presents. In recognition of these and other difficulties, Contractor affirms that it has analyzed all possible sources of delay in preparing its Bid, and has accounted for the risk of these potential delays in arriving at the GMP.

42.11 Contractor shall not be allowed an extension of time unless Contractor has established to Project Manager's and Owner's satisfaction that the delay claimed by Contractor is to a portion of the Work on the critical path of the Project Schedule.

42.12 Time extensions for delay shall be limited to the specific causes set forth in Paragraph 42.10 hereof and, then, only upon compliance with the Notice and proof requirements of this Article 42.

ARTICLE 43 MINOR CHANGES IN THE WORK

43.1 The Project Manager and Owner shall have the right to order minor changes in the Work not involving an adjustment in the GMP or Contract Time that are consistent with the intent of the Contract Documents. Such changes shall be issued by written order and shall be binding on the Owner and the Contractor. The Contractor shall promptly carry out such written orders.

ARTICLE 44 UNCOVERING OF WORK

44.1 If any Work has been covered contrary to the requirements of the Contract Documents or to the specific instructions of Owner, Architect/Consultant or Project Manager before such Work has been observed by them, such Work shall, upon request of Project Manager, Owner or Architect/Consultant, promptly be uncovered for observation and if found not to be in accordance with the Contract Documents be replaced and recovered at the expense of Contractor.

44.2 If any Work has been covered which has not been required by the Contract Documents or by specific instruction by Owner, Architect/Consultant or Project Manager to be observed by Owner, Architect/Consultant or Project Manager prior to being covered, Project Manager or Owner may request to see the Work in question and it shall be uncovered promptly by Contractor as directed. If such Work is found to be in accordance with the requirements of the Contract Documents, Owner shall reimburse Contractor for the cost of such uncovering and recovering. If such Work is found not to be in accordance with the Contract Documents, the cost of uncovering, replacement and recovering shall be at the expense of Contractor.


ARTICLE 45 CORRECTION AND GUARANTEE OF WORK

45.1 The Contractor shall promptly correct all Work rejected by the Owner, Project Manager or Architect/Consultant as defective or as failing to conform to the Contract Documents whether observed before or after Substantial Completion, and whether or not fabricated, installed or completed. The Contractor shall bear all costs of correcting such rejected Work, including compensation for the Architect/Consultant’s and/or Project Manager's additional services made necessary thereby.

45.2 Except as otherwise specified, all Work shall be guaranteed by the Contractor against defects in the Work of any kind for one year from the date of Substantial Completion of the Work or, if the Work is phased, for a minimum of one year from the date of Substantial Completion of the applicable Project phase, as evidenced by a Certificate of Substantial Completion issued by the Architect/Consultant for the Work or applicable Project phase. In the event that the Specifications call for longer periods of guarantee of certain items or trades, such longer period shall apply. With respect to Work that is not in compliance with the Contract Documents, no time limit will apply, other than any applicable statute of limitations, to correction and guarantee of the Work. Contractor shall ensure that the Owner’s rights and Contractor’s responsibilities under this Article 45 are included as Contractor’s rights and Subcontractor’s responsibilities in each Subcontract. Contractor’s supervision of any corrective work required hereby shall be provided without cost to the Owner.

45.3 If, within any guarantee period, repairs or changes are required in connection with guaranteed Work, which in the opinion of the Project Manager is rendered necessary as a result of the use of materials, equipment or workmanship which are inferior, defective, or not in accordance with the terms of the Contract; the Contractor shall, promptly upon receipt of Notice from the Owner, and at Contractor’s own expense:

45.3.1 Place in satisfactory condition in every particular, all such guaranteed Work, correct all defects therein, and

45.3.2 Make good all damage to the building or site, or equipment or contents thereof, which in the opinion of the Owner, is the result of the use of materials, equipment or workmanship which are inferior, defective, or not in accordance with the terms of the Contract, and

45.3.3 Make good any Work or material, or the equipment and contents of said building or site disturbed in fulfilling any such guarantee.

45.4 In any case, wherein fulfilling the requirements of the Contract or of any guarantee, embraced in or required thereby, the Contractor disturbs any work guaranteed under another contract, Contractor shall restore such disturbed work to a condition satisfactory to the Owner and shall guarantee such restored work to the same extent as it was guaranteed under such other contract.

45.5 The Contractor shall remove all defective or non-conforming portions of the Work which have not be corrected from the Project Site unless the Owner waives removal.


45.6 If the Contractor, after Notice, fails to proceed promptly to comply with the terms of the guarantee, the Owner may have the defects corrected and the Contractor and Contractor’s surety shall be liable for all expense incurred.

45.7 All special guarantees applicable to definite parts of the Work that may be stipulated in the Specifications or other papers forming a part of the Contract Documents shall be subject to the terms of this Article 45 during the life of such special guarantee.

45.8 The foregoing guarantee and obligations shall not deprive Owner or Project Manager of any action, right or remedy otherwise available for breach of any of the provisions of the Contract Documents. Without limiting the foregoing, Contractor acknowledges that the guarantees and warranties required by this Article 45 or elsewhere in the Contract Documents are for the benefit of Owner and Project Manager. The periods referred to above shall not be construed as a limitation on the time in which Owner or Project Manager may pursue such other action, right or remedy.

45.9 Satisfaction of the aforementioned guarantee obligations shall be deemed to be a material component of Contractor's contractual obligation to perform the Work. This Contract shall not be deemed to be fully performed until all guarantee obligations hereunder are satisfied. Performance bonds required of Contractor, if any, shall include the performance of guarantee obligations and shall not contain clauses limiting the time to sue upon said bonds to less than the applicable guarantee period.

ARTICLE 46 ACCEPTANCE OF DEFECTIVE OR NON-CONFORMING WORK/

EARLY OCCUPANCY

46.1 If the Owner prefers to accept defective or nonconforming Work, Owner may do so at Owner’s sole discretion instead of requiring its removal and correction, in which case a Change Order shall be issued to reflect a reduction in the GMP where appropriate and equitable. Such adjustment shall be effected whether or not Final Payment has been made.

46.2 Project Manager will accept the Work, after inspection when, in Project Manager's and Owner's opinion, the Work has been completed in accordance with the Contract Documents except for the most minor of adjustments.

46.3 Contractor understands and agrees that during the period of the Work, Owner and Owner's staff, guests and the public may be using and occupying the Project Site. Accordingly, to the extent the Project Site is so occupied or used, Contractor shall so schedule and conduct the Work as to (i) preclude any interruption or suspension of existing utility service to the areas of the Project Site so used or occupied; (ii) avoid if at all possible and, if not possible, minimize, to the maximum possible extent, any interference with, obstruction of or adverse effect upon access to or the business or activities of those using the Project Site; (iii) preclude waste and damage to the Project Site or other property and personal injury or death on or off the Project Site; and (iv) preclude unnecessary additional cost in operating and maintaining the building and improvements on the Project Site.

46.4 Owner's or such others' use or occupancy of such portion of the Project Site shall not constitute acceptance of any Work, materials and equipment which are not in accordance with the Contract Documents, nor relieve Contractor from its obligations to complete the Work and to remain responsible for loss or damage due to or arising out of defects in, or malfunctioning of


any Work, nor relieve Contractor from any unfulfilled obligations or responsibilities under this Contract.

ARTICLE 47 CONTRACTOR'S TERMINATION OF THE CONTRACT

47.1 If the Work is stopped for a period of thirty days under an order of any court or other public authority having jurisdiction; or as a result of an act of government, such as a declaration of a national emergency making materials unavailable, through no act or fault of the Contractor or a Subcontractor or their agents or employees or any other persons performing any of the Work under a contract with the Contractor, or if the Work should be stopped for a period of thirty days by the Contractor because the Owner has failed without justification to make payments to the Contractor for a period of 45 days from the date of issuance of a Certificate for Payment, then the Contractor may, upon seven additional days' written Notice to the Owner and the Project Manager during which period Owner fails to make payment, terminate this Contract and recover from the Owner payment for all Work executed and for any proven loss sustained upon any materials, equipment, tools, construction equipment and machinery, including reasonable profit and damages.

ARTICLE 48 OWNER'S TERMINATION OF THE CONTRACT

48.1 Owner’s and Contractor’s rights and obligations under Article 47 and under this Article 48 shall survive the termination of this Contract by either party to this Contract.

48.2 If this Contract is terminated under any of the provisions of Article 47 or this Article 48, then the Contractor shall (i) execute and deliver all such papers and take all such steps, including legal assignment of its contractual rights under any Subcontracts as the Owner may require for purpose of fully vesting the Owner with the rights and benefits of the Contractor in such Subcontracts and (ii) account for and turn over to the Owner all Drawings, Specifications, Subcontracts, Submittals, schedules, correspondence, accounting records and such other documentation pertaining to the Project as Owner may require. Compliance with the forgoing shall be a condition precedent to the Contractor’s right to receive payment for termination in accordance with the Contract Documents.

48.3 In addition to all termination rights for cause under the Contract Documents, Owner shall have the right, for any reason or for no reason, and at any time, by written Notice to Contractor, to terminate this Contract and require Contractor to cease the Work hereunder. In the event that Owner shall terminate this Contract pursuant to this Paragraph 48.3, Contractor shall be paid (subject to Owner's contractual rights to withhold payment) based on the percentage of Work completed for each Subcontract and based on Contractor’s costs applicable to each Allowance to date of such termination plus a pro rata portion of the Contractor’s CM Fee, CM General Conditions Costs, and Insurance Costs, based on the Work in place prior to such termination, as Project Manager shall determine, and Contractor shall be entitled to no other payment.

48.4 Notwithstanding Article 47 hereof, the Owner shall have the right, for any reason or no reason, following ten days Notice to the Contractor, to suspend the Work for such period of time (not to exceed one year in any one instance) as Owner may desire. Such period of suspension shall continue until Owner terminates the period of suspension by further written Notice to the Contractor. If such period of suspension shall exceed 60 days, the Contractor may remove any of its personnel from the Project. In the event that the Owner shall terminate the suspension after


Contractor has removed its personnel from the Project pursuant to this Paragraph 48.4, Contractor shall replace such personnel to the extent reasonably possible with same personnel or with personnel of similar training and experience, acceptable to the Owner. No action taken by the Owner hereunder shall affect any of the other rights or remedies of the Owner contained in this Contract.

48.5 In an event of Default by the Contractor, or if the Contractor is in adjudged as bankrupt, or makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of Contractor’s insolvency, or if Contractor refuses or fails to supply enough properly skilled workers or proper materials, or if Contractor fails to make prompt payment to Subcontractors for materials or labor, or disregards Legal Requirements, or is guilty of a violation of a provision of the Contract Documents or otherwise gives reasonable cause, then the Owner, without prejudice to any right or remedy and after giving the Contractor and its surety, if any, seven days' written Notice (during which period the Contractor fails to cure the violation, or if violation cannot reasonably be cured within such seven day period but is curable Contractor does not commence to cure within such seven days and continuously prosecute such cure to completion) may terminate the employment of the Contractor and take possession of the site and of all materials, equipment, tools, construction equipment and machinery thereon owned by the Contractor, employ any person firm and may finish the Work by whatever method Owner may deem expedient.

48.5.1 In such case, the Contractor shall not be entitled to receive any further payment until the Work is finished and it is mutually agreed or judicially determined whether or not the Contractor is entitled to any payment and the Contractor shall be liable to the Owner for any additional costs incurred by the Owner as a result of Contractor’s breach of its obligations under this Contract.

48.5.2 Owner may employ and pay Contractor’s staff and Subcontractors directly or indirectly to complete the Work. Owner shall have the same rights as Contractor with respect to firms and individuals so employed. Owner shall apply the costs of such staff and Subcontractors to the appropriate Subcontracts and Allowances of this Contract.

48.5.3 Owner’s costs for management of the Work, including the additional services of Architect/Consultant, Project Manager and Owner’s staff (including additional staff) as may be required to manage the Work, shall be deducted from the unpaid balance of Contractor’s Fee.

48.5.4 If, upon Owner’s completion of the Work, Owner’s costs of finishing any portion of the Work, including any Subcontract or Allowance, exceeds, as a result of termination of this Contract, the scheduled value for such portion of the Work, such additional cost shall be deducted from the unpaid balance of Contractor’s Fee.

48.5.5 If, upon Owner’s completion of the Work, Owner’s costs of finishing the Work and/or managing and supervising the Work exceed the unpaid balance of the Contractor’s Fee, Contractor shall pay Owner any cost in excess of Contractor’s Fee.


48.5.6 If, upon Owner’s completion of the Work, Owner’s costs of finishing the Work, including Owner’s costs of managing and supervising the Work exceeds the unpaid balance of the GMP, Contractor shall pay Owner any cost in excess of the GMP.

48.5.7 If, upon Owner’s completion of the Work both, (i) the unpaid balance of the GMP exceeds the costs of finishing the Work, and (ii) if the unpaid balance of Contractor’s Fee exceeds Owner’s costs of managing and supervising the Work, then the Owner shall pay to the Contractor a percentage of the remaining balance of Contractor’s Fee. Such percentage shall be the same as the percentage of completion of the Work shown on the last Application for Payment preceding termination of the Contract, and Contractor shall be entitled to no other payment.

48.5.8 For purposes of this Paragraph 48.5, Owner’s costs in completing the Work shall include not only the cost of completing the construction of the Work to the satisfaction of the Owner and cost of performing and furnishing all labor, services, materials, equipment and other items required therefor, but also all losses, damages, costs and expenses, including, without limitation, legal fees and disbursements, sustained, incurred or suffered or to be sustained, incurred or suffered by Owner and/or Project Manager and/or Architect/Consultant by reason of, or resulting from, the Contractor’s Default. Owner agrees to limit liability for damages to the limits of and to the extent covered by Contractor’s Professional Liability Insurance, as evidenced in Exhibit D to the Agreement.

48.6 No action or inaction by Owner, including Owner’s right to terminate this Contract or Owner’s agreement to pay Contractor under Article 47 or this Article 48, shall impair or limit Owner’s rights or remedies or claims to which Owner may be entitled to under this Contract or by law by reason of a Default by the Contractor.

48.7 In the event that either of the parties to this Agreement commences a lawsuit or other legal action against the other party regarding the application of termination provisions of Article 47 or this Article 48, the party losing such lawsuit shall pay the reasonable attorney’s fees, disbursements and court costs incurred by the prevailing party.

ARTICLE 49 CUTTING AND PATCHING

49.1 Contractor shall be responsible for all cutting and patching, as approved by Architect/Consultant or Project Manager, necessary for the installation of the Work. If Contractor, as part of the Work, is responsible for placing grounds, sleeves and/or hangers or similar items and they are not placed in time or are improperly placed, Contractor shall be responsible at its expense for all removals, forming, drilling, and other corrective work required to be done to the Work and to other work, including patching.

49.2 All cutting, fitting, patching and drilling by Contractor shall be done promptly and so as to leave the Work and other work in conditions and appearance acceptable to Owner.


49.3 Structural members shall not be cut, patched or otherwise altered or repaired except by written authorization and pursuant to direction of Architect/Consultant.

49.4 Permission to patch and/or repair any areas or items of Work and other work shall not constitute a waiver of Owner's right to require complete removal and replacement of said areas or items of Work and/or other work, if, in Owner's opinion, said patching or repair does not satisfactorily restore the required quality and appearance of the Work and/or other work.

ARTICLE 50 ACCESS

50.1 Owner, Architect/Consultant and Project Manager, upon request, promptly shall have access to the Work, whether at the Project, in storage or in manufacture or preparation. Contractor shall provide proper and safe facilities for such access and for inspection at the Project site, at the place of storage or elsewhere.

ARTICLE 51 DEFAULT OF CONTRACTOR

51.1 An event of Default on the part of Contractor shall occur upon the happening of any one or more of the following events:

51.1.1 a refusal or neglect by Contractor to supply a sufficient number of skilled workers, a sufficient quantity of materials of the specified quality, or a sufficient amount of equipment, parts, and systems of the specified quality, quantity and performance requirements;

51.1.2 a failure by Contractor to prosecute the Work with diligence and promptness;

51.1.3 an act or omission by Contractor which stops, delays, interferes with, or damages the Work or any other work;

51.1.4 any other failure by Contractor to perform any other terms and conditions of this Contract;

51.1.5 a determination by Owner or Project Manager that the Work or any portion of the Work is not being performed in accordance with this Contract;

51.1.6 the filing by or against Contractor of a petition under the Bankruptcy Code or for other debtor or insolvency relief;

51.1.7 the filing by or against Contractor of proceedings in furtherance of liquidation or dissolution;

51.1.8 the acknowledgment by Contractor of insolvency;

51.1.9 a determination by Owner or Project Manager that Contractor evidences financial difficulties on the part of Contractor;


51.1.10 the failure of Contractor to pay any Subcontractor monies that Contractor has received from Owner or Project Manager for said purpose; and/or

51.1.11 as otherwise defined in the Contract Documents.

51.2 In an event of Default by Contractor, Owner and/or Project Manager shall have the rights, in addition to any other rights and remedies provided by this Contract or by law, after seven days' written Notice to Contractor mailed, delivered, telecopy or telegraphed to the last known address of Contractor, or after such shorter period, with or without Notice, as may be deemed by Owner or Project Manager to be appropriate under the circumstances, to:

51.2.1 cause to be performed or furnished, at Contractor's expense, such labor and equipment, parts, systems and materials, and/or to incur at Contractor's expense such other expenses (including, but not limited to, legal fees) in respect of the Work and/or Default as may be necessary, or deemed by Owner and/or Project Manager to be advisable, and to deduct the said expenses from monies, if any, due or to become due to Contractor; and/or

51.2.2 terminate the Project activities (but not necessarily this Contract) of Contractor for all or any portion of the Work, enter upon the Project Site, and take possession, for the purpose of completing the Work, of all materials, equipment, scaffolds, tools, shanties, facilities, appliances and other items, all of which Contractor hereby transfers, assigns and sets over to Owner for such purpose; and/or

51.2.3 employ any person, firm, corporation or other contractor to complete the Work, and provide all labor, services, materials, equipment and other items required therefor; and/or

51.2.4 terminate this Contract and proceed to complete the Work as in Article 48 and/or Subparagraphs 51.2.1, 51.2.2 and/or 51.2.3.

51.3 In an event of Default by Contractor, to effectuate the provisions of Paragraph 51.2, Project Manager may engage Contractor's Subcontractors and suppliers. In such event, Contractor shall not be entitled to receive any further payment until the Work shall be wholly completed to the satisfaction of Owner and shall have been accepted by Owner, at which time, Owner shall pay any percentage of Contractors fee due to Contractor as set forth in Paragraph 48.5.

51.4 In addition to all other rights that Owner has under the Contract Documents, Owner shall have the right to stop the Work upon the occurrence of a Default by Contractor. Owner's right to stop the Work is in addition to any and all other remedies available to Owner and does not give rise to any duty to exercise this right for the benefit of Contractor or any other person or entity.

51.5 Without limitation, a Default by Contractor shall not be deemed waived or discharged by:

51.5.1 any action taken or not taken by Project Manager or Owner in respect of the occurrence giving rise to Contractor’s Default; and/or

51.5.2 any course of dealing by Project Manager or Owner; and/or


51.5.3 delay on the part of Project Manager or Owner in exercising any right under this Contract; and/or

51.5.4 payment to Contractor; and/or

51.5.5 inspection, testing, or approval by Owner, Architect/Consultant, or Project Manager of any portion of the Work.

51.6 For the purpose of this Contract, an event of Default by Contractor shall include but not be limited to the following, whether or not the time has yet arrived for performance of an obligation under this Contract: a statement by the Contractor to any representative of the Owner or the Project Manager indicating that it cannot or will not perform any one or more of its obligations under this Contract; any act or omission of the Contractor or any other occurrence which makes it improbable at the time that it will be able to perform any one or more of its obligations under this Contract; any suspension of or failure to proceed with any part of the Work by the Contractor which makes it improbable at the time that it will be able to perform any one or more of its obligations under this Contract.

51.7 No exercise by the Owner or the Project Manager of any right or remedy shall operate as a waiver of any other rights or remedies not inconsistent therewith or to stop them from exercising such other rights or remedies. No such action by Owner or Project Manager, nor the occurrence of any event of Default, shall relieve Contractor from its obligations to remain obligated to comply with all Legal Requirements.

ARTICLE 52 LEGAL REQUIREMENTS

52.1 Contractor shall comply with, and cooperate with other contractors, Project Manager, Architect/Consultants and/or Owner with respect to the Work in complying with all laws, regulations, ordinances orders and codes of any Federal, State or local government or any agency thereof having jurisdiction over the Project or the Work to which this Contract is subject, including but not limited to environmental laws, OSHA requirements, and the requirements of NFPA, MEA, BSA, UL and other applicable requirements. Among other things, Contractor shall be responsible for performing corrective work, appealing from decisions or orders, requesting extensions of permits and furnishing such information or evidentiary materials as may be necessary or as may be requested by Project Manager and/or Owner to fully protect the rights and interests of Owner, Architect/Consultants and Project Manager with respect to possible, threatened or pending proceedings or orders arising out of the performance of the Work.

52.2 Without limitation, Contractor shall indemnify Owner and Project Manager pursuant to Article 13 hereof in respect to Paragraph 52.1 and all other responsibilities of Contractor pertaining to Legal Requirements specified herein.

ARTICLE 53 BUILDING MATERIALS/EQUIPMENT/PROCESSES

53.1 Unless otherwise specified, all materials and equipment that are part of the Work shall be new and shall be of the quality required by the Contract Documents. Contractor shall, upon request of Project Manager, furnish satisfactory evidence as to kind and quality of all materials and equipment. All workmanship shall be of such quality as will result in first class Work in accordance with the Contract Documents.


53.2 Any Work, materials or equipment that do not conform to the Contract Documents may be rejected at any time by Owner or Project Manager, in which case Contractor shall remove and replace them at its expense.

53.3 Where the Drawings or Specifications call for certain quantities of items or performance of materials or to be included in the Work, such requirements shall be deemed as minimum standards of performance hereunder. In the event that tests show that a material or an assembly does not meet the minimum requirements of the Contract Documents, the Contractor shall remove and replace or alter such Work to meet the minimum requirements specified. No written or verbal approval of any Submittal shall relieve Contractor of its responsibility to turn over the Work to Owner in conformance with the Contract Documents. The Contractor shall assemble and turn over to the Owner operating and maintenance data from all manufacturers whose equipment is installed in the Work.

53.4 When two or more products are specified for an item of Work, any one is acceptable and the choice is left to Contractor. When only one product is specified and the term "or equal" is used in connection with the product, Contractor may offer a substitute product (subject to approval by Architect/Consultant, Project Manager and then Owner), which will completely accomplish the purpose of the specified product.

53.5 Requests for permission to substitute a product, material or process for that specified in the Contract Documents must be accompanied by evidence that the proposed substitution: (i) is equal in quality and serviceability to the specified item; (ii) will not entail changes in detail and construction of other work; (iii) will be acceptable to the Architect/Consultant and Project Manager in achieving design and artistic intent; and (iv) will not result in a cost disadvantage to Owner. Contractor shall furnish with such request such drawings, specifications, samples, performance data and other information as may be required to enable Owner, Architect/Consultant and Project Manager to determine whether the proposed substitution is acceptable, provided, however, that the Owner shall make the final determination in their sole and absolute discretion. Contractor shall not be entitled to make any claim for an extension of time or additional compensation for any delay incidental to a proposed or approved substitution; such as, but not limited to, delays caused by revisions to the Contract Documents necessitated by a substitution. If an approved substitution affects or delays other work or otherwise necessitates any redesign, Contractor shall pay all costs thereof.

53.6 Contractor shall prepare and submit lists, in triplicate, to Project Manager of all manufactured or fabricated products proposed for the Work. Such lists shall include such information on materials, equipment and fixtures as may be required by Project Manager for Owner's preliminary approval. Approval of such lists shall not be construed as a substitute for the Shop Drawings, Product Data and Samples which are required by the Contract Documents, but rather as a base from which more detailed Submittals shall be developed for final approval by Owner.

53.7 Manufacturers' nameplates shall not be permanently attached to ornamental and miscellaneous metalwork, doors, frames, millwork, exposed surfaces and other fabricated or manufactured products to be placed in finished spaces if, in Owner's or Architect/Consultant’s opinion, the nameplates would be objectionable. The preceding sentence does not apply to Underwriters' labels where required, nor to manufacturer's name and rating plates on mechanical and electrical equipment.


53.8 Each major component of mechanical and electrical equipment shall have the manufacturer's name, address, model number and rating on a plate securely affixed in a conspicuous place, as required in the mechanical and electrical sections of the Specifications.

53.9 In case of any differences or conflicts between the requirements of the manufacturer's instructions or specifications and the requirements of the Specifications, the instructions or Specifications having the more detailed and precise requirements specifically applicable to the Work, as determined by Owner, shall govern.

ARTICLE 54 SURVIVING PROVISIONS

54.1 Without limitation, the following obligations, among others, of Contractor shall survive the termination of this Contract whether pursuant to Articles 13, 34, 45, 47, 48, 51 and 54 or otherwise: warranties and guarantees of Work performed; indemnity; payment of taxes, damages, losses and expenses; certifications; delivery of manuals and as-built drawings; correction of Work performed; payments as trust funds; removal of liens; maintenance books and records and other documentation.

ARTICLE 55 CAPTIONS

55.1 The captions of Articles herein or of Sections of the Specifications or Titles of Drawings are for convenience and reference only and in no way define, limit or describe the scope of any requirement of a Contract Document.

ARTICLE 56 SEVERABILITY

56.1 In the event that any term, provision, or part of this Contract is held to be illegal, invalid or unenforceable under any Legal Requirements, such term, provision, or part shall be deemed severed from this Contract and the remaining term(s), provision(s) and part(s) shall remain unaffected thereby.

ARTICLE 57 NO CLAIMS AGAINST PROJECT MANAGER

OR ARCHITECT/CONSULTANT

57.1 Contractor acknowledges that: (i) Project Manager and Architect/Consultant are acting as agents only and not as principals; (ii) all services rendered and instructions issued by Project Manager and/or Architect/Engineer are, as agents for the Owner and for Owner's benefit; (iii) there is no privity of contract between Contractor and Project Manager or between Contractor and Architect/Consultant; (iv) to the maximum extent permitted by law, under no circumstances will Contractor look to or make any claim against Project Manager or Architect/Consultant.

ARTICLE 58 NO WAIVER

58.1 The failure of Owner or Project Manager to insist upon performance or strict performance of any of the terms, covenants or conditions of this Contract shall not be deemed a waiver of any right or remedies that Owner may have; shall not be deemed to constitute an


amendment of this Contract; and shall not be deemed a waiver of any subsequent breach or Default by Contractor of any of the terms, covenants, or conditions of this Contract.

58.2 This Contract may not be amended or any term or provision waived except in writing signed by Owner. Without limitation, no term or provision of this Contract may be amended or waived by conduct of the parties.

ARTICLE 59 APPLICABLE LAW

59.1 This Contract shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York.

ARTICLE 60 CLAIMS AND DISPUTES

60.1 A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, 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. The responsibility to substantiate Claims shall rest with the party making the Claim. 60.2 Claims by either the Owner or Contractor must be initiated by written notice to the other party and to the Initial Decision Maker with a copy sent to the Architect, if the Architect is not serving as the Initial Decision Maker. Claims by either party must be initiated within a reasonable period of time not to exceed 30 days after occurrence of the event giving rise to such Claim or within 30 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. 60.3 Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Articles 47 and 48, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. The Architect will prepare Change Orders and issue Certificates for Payment pursuant to the applicable provisions of the Contract regarding applications for payment. 60.4 If the Contractor wishes to make a Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. 60.5 If the Contractor wishes to make a Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Contractor’s Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay, only one Claim is necessary. 60.6 The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes

Owner – Contractor Agreement General Conditions Building Service 32BJ Health Fund September 15, 2010 63

.1 damages incurred by the Owner for rental expenses, for losses of use, income, profit,

financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and

.2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work.

This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination in accordance with Article 47 and 48. Nothing contained in this paragraph 60.6 shall be deemed to preclude an award of liquidated damages, when applicable, in accordance with the requirements of the Contract Documents. 60.7 The Owner will review any Claim submitted by Contractor and take one or more of the following preliminary actions within ten days of receipt a Claim, (1) request additional supporting data from Contractor, (2) submit a schedule to the Contractor indicating when the Owner expects to take action, (3) approve the Claim, (4) reject the Claim in whole or in part, stating reasons for rejection, or (5) suggest a compromise. 60.8 In evaluating Claims, the Owner may, but shall not be obligated to, consult with or seek information from either party or from persons with special knowledge or expertise who may assist the Owner in rendering a decision. 60.9 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 to 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. 60.10 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 (or to discharge the lien by bonding) prior to resolution of the Claim as provided for herein. 60.11 Claims, disputes, or other matters in controversy arising out of or related to the Contract except those waived as provided for specifically in this General Conditions shall be subject to good faith negotiations between the parties for a period not to exceed ten (10) days from the date of notice of the initiation of the Claim (unless mutually extended by the parties), and if a mutually acceptable resolution cannot be achieved through such good faith negotiations, then to non-binding mediation as a condition precedent to the institution of legal or equitable proceedings by either party. The negotiation period shall proceed concurrently with any referral of the Claim to the Architect for recommendation pursuant to this Agreement. The parties may


mutually agree to include a mediator in such negotiations and in such event the parties shall cooperate with one another and the selected mediator to the extent practicable. All such negotiations shall be confidential and no information exchanged in such negotiations shall be discoverable or admissible in any arbitration or legal or equitable proceeding involving the parties, unless otherwise discoverable or admissible. The Contractor shall in no event cease the performance of Work pending the resolution of any such negotiations and the Owner shall continue to make payment of all amounts not in dispute. 60.12 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be administered by an agreed to independent Mediator in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement. A request for mediation shall be made in writing, delivered to the other party to the Contract, and filed with the person or entity administering the mediation. The request may be made concurrently with the filing of binding dispute resolution proceedings but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 30 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. 60.13 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 be enforceable as settlement agreements in any court having jurisdiction thereof. 60.14 Claims, disputes or other matters in question that are not resolved by mediation shall be decided by legal or equitable proceedings. Such proceedings shall be resolved by courts of the State of New York located in New York County. IN ANY SUCH PROCEEDINGS, EACH OF THE PARTIES HEREBY KNOWINGLY WILLINGLY WAIVES AND SURRENDERS SUCH PARTY’S RIGHT TO TRIAL BY JURY AND AGREES THAT SUCH LITIGATION SHALL BE TRIED BEFORE A JUDGE SITTING ALONE AS THE TRIER OF BOTH FACT AND LAW, IN A BENCH TRIAL, WITHOUT A JURY. 60.15 Unless otherwise agreed in writing, the Contractor, Subcontractors and material suppliers shall proceed diligently with the performance of all undisputed Work in accordance with this Agreement so as not to delay the Project pending the resolution of any claim, dispute or other matter in question arising out of or relating to this Agreement, and the Owner shall continue to make payments of all amounts that are not in dispute, notwithstanding any pending mediation, arbitration, or litigation. 60.16 Contractor shall assist and cooperate with the Owner in every manner reasonably possible in connection with the Owner’s defense of any third party claims arising out of the performance of the Work or the Contract Documents, provided that Contractor is not a party adverse to the


Owner. Such cooperation shall include, without limitation, providing copies of documents and other materials reasonably required by the Owner to proceed with such defense.

Building Service 32 BJ Health Fund HCC# 100224

EXHIBIT B

CM/GC FEES, GENERAL CONDITIONS AND INSURANCE COSTS

Preconstruction Services CM Fee: $72,500 Bidding and Construction Services CM Fee: 1.00% of Total Trade Costs General Conditions: 3.95% of Total Trade Costs Insurance Costs: 1.10% of Total Trade Costs


EXHIBIT C

CONTRACTOR’S CGL INSURANCE CERTIFICATE

CERTIFICATE OF LIABILITY INSURANCE

SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION

_______DAYS WRITTENDATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL

NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL

IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR

REPRESENTATIVES.

EXCESS UMBRELLAEXCESS UMBRELLA

DATE (MM/DD/YY)

POLICY EXPIRATION POLICY EFFECTIVE

CANCELLATION

INSRLTR

© 1988-2009 ACORD CORPORATION. All rights reserved.

$

$

$

$

$

$

$$

$

$

$

$

$

$

$

$

$

$

$

ACORD 25 (2009/01)

INSURER A:

COVERAGES

CERTIFICATE HOLDER

THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDINGANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED ORMAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCHPOLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.

TYPE OF INSURANCE POLICY NUMBER LIMITS

PRODUCER

INSURED

GENERAL AGGREGATE

EL EACH ACCIDENT

EL DISEASE - POLICY LIMIT

EL DISEASE - EA EMPLOYEE

BODILY INJURY

EACH OCCURRENCE

AGGREGATE

COMBINED SINGLE LIMIT

PROPERTY DAMAGE

PRODUCTS - COMP/OP AGG

PERSONAL & ADV INJURY

EACH OCCURRENCEDAMAGE TO RENTED

MED EXP (Any one person)

AUTO ONLY - EA ACCIDENT

OTHER THANAGG

WC STATU-TORY LIMITS

OTH-ER

DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS

GENERAL LIABILITY

AUTOMOBILE LIABILITY

ANY AUTO

ALL OWNED AUTOS

SCHEDULED AUTOS

HIRED AUTOS

NON-OWNED AUTOS

OCCUR

DEDUCTIBLE

EXCESS / UMBRELLA LIABILITY

WORKER'S COMPENSATION AND

OCCUR

COMMERCIAL GENERAL LIABILITY

GEN'L AGGREGATE LIMIT APPLIES PER:

CLAIMS MADE

ANY AUTO

ANY PROPRIETOR/PARTNER/EXECUTIVEEMPLOYERS' LIABILITY

OFFICER/MEMBER EXCLUDED?

If yes, describe under

GARAGE LIABILITY

DATE (MM/DD/YYYY) DATE (MM/DD/YYYY)

AUTHORIZED REPRESENTATIVE

INSURER B:INSURER C:INSURER D:INSURER E:

ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND ORONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATETHIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION

INSURERS AFFORDING COVERAGE NAIC#

ADD'LINSRD

POLICY LOCPRO-JECT

CLAIMS MADE

RETENTION $

SPECIAL PROVISIONS below

OTHER

PREMISES (Ea occurrence)

(Ea accident)

(Per person)

BODILY INJURY(Per accident)

(Per accident)

AUTO ONLY:EA ACC

$

$

$

810828K9593

02/14/2011

8/15/10

PROJECT: BUILDING SERVICE 32 BJ FUNDS 620 AVE. OF AMERICAS, NY, NY HCC#100224ADDITIONAL INSUREDS: BUILDING SERVICE 32BJ HEALTH FUND; NEWMARK, KNIGHT FRANK PROJECT & DEVELOPMENT MANAGEMENT; AMERICANREALTY ADVISORS; CF 620 OWNER ONE LLC, CF 620 OWNER TWO LLC, CF 620 OWNER THREE LLC, BONJOUR 620 ONE LLC; BONJOUR 620 TWO LLC;YL 620 SIXTH LLC; AS TENANTS-IN-COMMON; GERNER KRONICK+VALCARCEL, ARCHITECTS, PC; ROBERT DERECTOR ASSOCIATES. COVERAGE ISPRIMARY AND NON-CONTRIBUTORY FOR EACH ADDITIONAL INSURED. WAIVER OF SUBROGATION APPLIES IN FAVOR OF EACH ADDITIONAL INSURED.

8/15/11

MILBRANDT & CO. INC.AVIETTE AGENCY1571 ROUTE 66GHENT, NY 12075

BE33106180AEC 06550770

8/15/108/15/10

8/15/118/15/11

$25,000,000 EA. OCC. / GEN. AGG. $20,000,000 EA. OCC. / GEN. AGG.

B C

A

CUP828K9243 8/15/10 8/15/11

HENEGAN CONSTRUCTION CO., INC.250 WEST 30TH STREETNEW YORK, NY 10001

CO828K9612 8/15/10 8/15/11

UB562K6941 8/15/10 8/15/11

1,000,000

2,000,000

1,000,000

1,000,0001,000,000

5,000,0005,000,000

2,000,0001,000,000

10,000500,000

1,000,000

XX

X

X

X

X

X

X

30BUILDING SERVICE 32BJ HEALTH FUND101 AVENUE OF THE AMERICASNEW YORK, NY 10013

ATTN: PETER GOLDBERGER

BLANKET CONTRACTUAL

X

A

A

A

X 10,000

ZURICH AMERICAN INSURANCE COMPANY

NATIONAL UNION FIRE INS CO OF PITTSBURGH PA

TRAVELERS

102033Serial #

518-392-2200

Y / N

(Mandatory in NH)

The ACORD name and logo are registered marks of ACORD






REPRESENTATIVES.

CRIME-FIDELITY

DATE (MM/DD/YY)


CANCELLATION

INSRLTR


$

$

$

$

$

$

$$

$

$

$

$

$

$

$

$

$

$

$

ACORD 25 (2009/01)

INSURER A:

COVERAGES

CERTIFICATE HOLDER



PRODUCER

INSURED

GENERAL AGGREGATE

EL EACH ACCIDENT



BODILY INJURY

EACH OCCURRENCE

AGGREGATE


PROPERTY DAMAGE






OTHER THANAGG


OTH-ER


GENERAL LIABILITY


ANY AUTO

ALL OWNED AUTOS

SCHEDULED AUTOS

HIRED AUTOS

NON-OWNED AUTOS

OCCUR

DEDUCTIBLE



OCCUR



CLAIMS MADE

ANY AUTO




GARAGE LIABILITY






ADD'LINSRD

POLICY LOCPRO-JECT

CLAIMS MADE

RETENTION $


OTHER


(Ea accident)

(Per person)


(Per accident)

AUTO ONLY:EA ACC

$

$

$

02/14/2011



104992516 8/15/10 8/15/11 $2,000,000 SINGLE LOSS LIMITA




TRAVELERS

102035Serial #

518-392-2200

Y / N

(Mandatory in NH)



EXHIBIT D

CONTRACTOR’S PROFESSIONAL LIABILITY INSURANCE CERTIFICATE






REPRESENTATIVES.

PROFESSIONAL LIABILITY

DATE (MM/DD/YY)


CANCELLATION

INSRLTR


$

$

$

$

$

$

$$

$

$

$

$

$

$

$

$

$

$

$

ACORD 25 (2009/01)

INSURER A:

COVERAGES

CERTIFICATE HOLDER



PRODUCER

INSURED

GENERAL AGGREGATE

EL EACH ACCIDENT



BODILY INJURY

EACH OCCURRENCE

AGGREGATE


PROPERTY DAMAGE






OTHER THANAGG


OTH-ER


GENERAL LIABILITY


ANY AUTO

ALL OWNED AUTOS

SCHEDULED AUTOS

HIRED AUTOS

NON-OWNED AUTOS

OCCUR

DEDUCTIBLE



OCCUR



CLAIMS MADE

ANY AUTO




GARAGE LIABILITY






ADD'LINSRD

POLICY LOCPRO-JECT

CLAIMS MADE

RETENTION $


OTHER


(Ea accident)

(Per person)


(Per accident)

AUTO ONLY:EA ACC

$

$

$

02/14/2011



PEC000493709 8/15/10 8/15/11 $5,000,000 EA. ACT, ERROR/ OMISSION$5,000,000 AGG

A




XL INSURANCE

102034Serial #

518-392-2200

Y / N

(Mandatory in NH)



EXHIBIT E

CONTRACTOR’S WAIVER AND LIEN RELEASE FORMS

HENEGAN CONSTRUCTION CO., INC. 250 West 30th Street, New York, New York 10001

CONDITIONAL PARTIAL WAIVER AND RELEASE OF LIEN HCC Project # ________ Block STATE OF NEW YORK ) Lot COUNTY OF NEW YORK) ss TO WHOM IT MAY CONCERN: The undersigned Construction Manager has been employed by_______________________(Leasehold Tenant) to furnish labor and material at the premises known as _______________________of which ____________________________is the Owner. The undersigned, for and in consideration of sums previously received in the amount of ___________________________________________($_____________), the receipt whereof is hereby acknowledged, and contingent upon the receipt of___________________________________($____________), for the total value, less retainage, of work completed and installed to date, hereby waives and releases any and all liens or rights of lien now existing under the laws of the State of New York relating to mechanic's liens, with respect to and on said above-described premises and the improvements thereon, and on the material, fixtures, apparatus or machinery furnished, and on the moneys, funds or other considerations due or to become due from the Owner and/or the Leasehold Tenant on account of labor, services, material, fixtures, apparatus or machinery furnished through the _____ day of _____________, 20__ by the undersigned for the above described premises. IN WITNESS WHEREOF, the undersigned Construction Manager has caused this instrument to be signed by its officer thereunto duly authorized this _____ day of _____________, 20__. HENEGAN CONSTRUCTION CO., INC. By:_____________________________________ Authorized signature

Sworn to before me this day _____________________________________ of , 20___ Print Name and Title

Notary Public


SUBCONTRACTOR PARTIAL WAIVER AND RELEASE OF LIEN HCC Project #___________ Block STATE OF NEW YORK ) Lot COUNTY OF NEW YORK) ss TO WHOM IT MAY CONCERN: The undersigned subcontractor has been employed by HENEGAN CONSTRUCTION CO., INC. to furnish labor and material for ______________________________ (Leasehold Tenant), at the premises known as _____________________________________, of which _____________________________________ is the Owner. The undersigned, for and in consideration of sums previously received in the amount of ______________________________($ ________), the receipt of which is hereby acknowledged, and contingent upon the receipt of ___________________________________($_________), and other good and valuable consideration received by it, representing the accumulated amount paid for the total value, less retainage, of work completed and installed to date, hereby waives and releases, to the extent of said amount, any and all liens, or claims of or rights to lien now existing under the laws of the State of New York relating to mechanic's liens, with respect to and on said above-described premises and the improvements thereon, and on the material, fixtures, apparatus or machinery furnished, and on the moneys, funds or other considerations due or to become due from the Owner, the Leasehold Tenant, and/or Henegan Construction Co., Inc., on account of labor, services, material, fixtures, apparatus or machinery furnished through the _____day of ____________, 20__, by the undersigned for the above-described premises. The undersigned further represents and warrants that s/he is duly authorized and empowered to sign and execute this waiver and release on his/her own behalf and on behalf of the company or business for which s/he is signing; that it has paid, or, when due, will have paid, for all labor, materials, equipment and services that it has used or supplied to the above-described premises. The undersigned further agrees to defend, indemnify and hold harmless the Owner, Leasehold Tenant and/or Henegan Construction Co., Inc., for any losses or expenses, including without limitation reasonable attorneys' fees, should any such lien, or claim of or right to a lien be asserted by the undersigned subcontractor or by any of its laborers, materialmen or subcontractors. IN WITNESS WHEREOF, the undersigned subcontractor has caused this instrument to be signed by its officer thereunto duly authorized this________ day of __________________ 20__. . Sworn to before me this day By: of , 20__. ______________________________________________ Authorized Signatory Notary Public Printed name and title


CONDITIONAL FINAL WAIVER AND RELEASE OF LIEN HCC Project # ____________ Block STATE OF NEW YORK ) Lot COUNTY OF NEW YORK) ss TO WHOM IT MAY CONCERN: The undersigned Construction Manager has been employed by_________________ (Leasehold Tenant) to furnish labor and material at the premises known as __________________________________, of which ____________________________________is the Owner. The undersigned, for and in consideration of sums previously received in the amount of ___________________________($________), the receipt whereof is hereby acknowledged, and contingent upon the receipt of ____________________________($___________), the sum of which amounts shall represent the accumulated amount paid for the total value of work completed and installed to date, hereby waives and releases any and all liens or rights of lien now existing under the laws of the State of New York relating to mechanic's liens, with respect to and on said above-described premises and the improvements thereon, and on the material, fixtures, apparatus or machinery furnished, and on the moneys, funds or other considerations due or to become due from the Owner and/or the Leasehold Tenant on account of labor, services, material, fixtures, apparatus or machinery furnished through the _____ day of _______ 20__, by the undersigned for the above-described premises. IN WITNESS WHEREOF, the undersigned Construction Manager has caused this instrument to be signed by its officer thereunto duly authorized this _________ day of ______________ 20___. HENEGAN CONSTRUCTION CO., INC. By:____________________________________ Authorized signature Sworn to before me this day of , 20__ Print name & title

Notary Public


SUBCONTRACTOR CONDITIONAL FINAL WAIVER AND RELEASE OF LIEN HCC Project # _________ Block STATE OF________________) Lot COUNTY OF __________________) ss TO WHOM IT MAY CONCERN: The undersigned subcontractor has been employed by HENEGAN CONSTRUCTION CO., INC. to furnish labor and material for ___________________ (Leasehold Tenant), at the premises known as ___________________________, of which ___________________________. is the Owner. The undersigned, for and in consideration of sums previously received in the amount of ______________________________________($__________) and contingent upon the receipt of __________________________________________($____________) being the full and Final Payment amount due, and other good and valuable consideration, which together represent the total value of work completed and installed, hereby waives and releases any and all liens, or claims of or rights to liens, under the laws of the State of New York relating to mechanic's liens, with respect to and on the above-described premises and the improvements thereon, and on the material, fixtures, apparatus or machinery furnished, and on the moneys, funds or other considerations due or to become due on account of labor, services, material, fixtures, apparatus or machinery, furnished by the undersigned for the above-described project. The undersigned further represents and warrants that s/he is duly authorized and empowered to sign and execute this waiver and release on his/her own behalf and on behalf of the company or business for which s/he is signing; that it has properly performed all work and furnished all the materials of the specified quality in accordance with the contract documents in a good and workmanlike manner, fully and completely; that it has paid for, or will pay for when Final Payment is received, all labor, materials, equipment and services that it has used or supplied or may hereafter use or supply to the above-described premises; that it has no other outstanding and unpaid payment applications, invoices, retention’s, holdbacks, expenses employed in the prosecution of work, chargebacks or unbilled work or materials against the Owner and/or the Leasehold Tenant; and that any materials which have been supplied or incorporated into the above premises were either taken from its fully paid or open stock or were fully paid for and supplied as stated on the final invoice. The undersigned further agrees to defend, indemnify and hold harmless the Owner for any losses or expenses, should any such claim, lien or right to a lien be asserted by any of the undersigned's laborers, materialmen or subcontractors. The undersigned further waivers, releases and relinquishes any and all claims, rights or causes of action in equity or law whatsoever arising out of, through or under the above-mentioned project and the performance of work pursuant thereto. IN WITNESS WHEREOF, the undersigned subcontractor has caused this instrument to be signed by its officer thereunto duly authorized this day of 20___. Sworn to before me this day By: of , 2010. Authorized Signature Notary Public Printed name and title


FINAL WAIVER AND RELEASE OF LIEN HCC Project # __________ Block STATE OF NEW YORK ) Lot COUNTY OF NEW YORK) ss TO WHOM IT MAY CONCERN: The undersigned Construction Manager has been employed by ___________________________ (Leasehold Tenant) to furnish labor and material at the premises known as _______________________________, of which __________________________________ is the Owner. The undersigned, for and in consideration of sums received in the amount of ____________________________($______________) and other good and valuable consideration, which together represent the total value of work completed and installed, hereby waives and releases any and all liens, or claims of or rights to liens, under the laws of the State of New York relating to mechanic's liens, with respect to and on the above-described premises and the improvements thereon, and on the material, fixtures, apparatus or machinery furnished, and on the moneys, funds or other considerations due or to become due from the Owner and/or Leasehold Tenant on account of labor, services, material, fixtures, apparatus or machinery, furnished by the undersigned for the above-described project. The undersigned further represents and warrants that s/he is duly authorized and empowered to sign and execute this waiver and release on his/her own behalf and on behalf of the company or business for which s/he is signing; that it has properly performed all work and furnished all the materials of the specified quality in accordance with the contract documents in a good and workmanlike manner, fully and completely; that it has paid for all labor, materials, equipment and services that it has used or supplied or may hereafter use or supply to the above-described premises; that it has no other outstanding and unpaid payment applications, invoices, retentions, holdbacks, expenses employed in the prosecution of work, chargebacks or unbilled work or materials against the Owner and/or the Leasehold Tenant; and that any materials which have been supplied or incorporated into the above premises were either taken from its fully-paid or open stock or were fully paid for and supplied as stated on the final invoice. The undersigned further agrees to defend, indemnify and hold harmless the Owner and/or the Leasehold Tenant for any losses or expenses, should any such claim, lien or right to a lien be asserted by any of the undersigned's laborers, materialmen or subcontractors. The undersigned further waives, releases and relinquishes any and all claims, rights or causes of action in equity or law whatsoever arising out of, through or under the above-mentioned project and the performance of work pursuant thereto. IN WITNESS WHEREOF, the undersigned Construction Manager has caused this instrument to be signed by its officer thereunto duly authorized this ________day of ___________, 20__. HENEGAN CONSTRUCTION CO., INC. Sworn to before me this day By: _________________________________________ of , 20__. Authorized Signature ____________________________________ ________________________________________ Notary Public Print Name and Title


EXHIBIT F

PROJECT SCHEDULE

ID Task Name Duration

1

2 PRE-CONSTRUCTION 233 days

3 PRE-CONSTRUCTION PERIOD AS OUTLINED IN RFP 141 days

4

5 ROOF ABATEMENT 50 days

6 SUBCONTRACTOR LEVELING MEETINGS 1 day

7 REVIEW ROOFING SCOPE W/ GKV 1 day

8 LEVELING 7 days

9

10 MOCK-UP 95 days

11 ORDER MOCK-UP MATERIALS 21 days

12 CONSTRUCT / INSTALL MOCK-UP 11 days

13

14 PRE-PURCHASE PACKAGES (REVISED TO BE INCLUDED IN MEPS SUB AWARDS) 152 days

15 CONFIRMATION OF SPECIFIED ITEMS 1 day

16 RECEIPT/DISTRIBUTION OF ADDENDUM #1 1 day

17 REVISED PRE-PURCHASE BID DUE DATE 1 day

18 AWARD / ORDER HVAC EQUIPMENT 4 days

19 SPEC COMPLIANCE APPROVED 0 days

20 HVAC EQUIPMENT LEAD-TIME (12 WEEKS) 12.3 wks

21 AWARD / ORDER UPS EQUIPMENT 4 days

22 SPEC COMPLIANCE REVIEW 3 wks

23 UPS EQUIPMENT LEAD-TIME (12 - 14 WEEKS) 14 wks

24

25 FLOOR PACKAGE - BIDDING / LEVELING / AWARD 96 days

26 CONTRACT DOCUMENTS - 50% ISSUE 1 day

27 50% DOCUMENT / BUDGET REVIEW 22 days

28 CONTRACT DOCUMENTS - 90% ISSUE BID/FILING 1 day

29 BUILDING DEPARTMENT FILING / APPROVALS / PERMITS (4 - 6 WEEKS) 42 days

1/21

8/8 8/15 8/22 8/29 9/5 9/12 9/19 9/26 10/3 0/1 0/1 0/2 0/3 11/7 1/1 1/2 1/2 12/5 2/1 2/1 2/2 1/2 1/9 1/16 1/23 1/30 2/6 2/13 2/20 2/27 3/6 3/13 3/20 3/27 4/3 4/10 4/17 4/24 5/1 5/8 5/15 5/22 5/29 6/5 6/12 6/19 6/26 7/3 7/10 7/17 7/24 7/31 8/7 8/14 8/21 8/28 9/4 9/11 9/18 9/25 10/2 10/9 0/1ust September October November December January February March April May June July August September October

Task

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EXHIBIT E 32BJ SEIU620 AVENUE OF THE AMERICAS

REVISED PRELIMINARY MASTER SCHEDULE

REVISED TO REFLECT ADDENDUM/LEVELING INFO: 12-30-10ISSUED FOR/WITH BID: 11-16-10

AFTER MOBOLIZATION OF CONSTRUCTION TRADES: 01-28-11PERMIT DATE UPDATED 3/16/11

HENEGAN JOB NUMBER 100224 Page 1

Project: Preliminary MASTER scheduleDate: Mon 3/28/11


30 BIDDING - BIDS DUE 21 days

31 BID WALK-THRU 1 day

32 BID OPENING(S) 3 days

33 CONFIRMATION OF SCOPE CHANGES BETWEEN 90% & 100% PACKAGES 1 day


35 LEVELING OF MAJOR (MEPS) TRADES 10 days

36 RECEIPT/DISTRIBUTION OF ADDENDUM #2 4 days

37 RECEIPT/DISTRIBUTION OF MEP "SKETCHES" 1 day

38 RECEIPT/DISTRIBUTION OF ADDENDUM #3 4 days


40 CONTRACT DOCUMENTS - 100% ISSUE 1 day

41 DISTRIBUTION OF 100% CONTRACT DOCUMENTS TO ALL TRADES 1 day

42 FINAL MEETINGS/LEVELING OF REMAINING TRADES 4 days

43 TRADE REVIEW / BEST & FINAL PRICING 5 days

44 AWARD OF MAJOR (MEPS & DEMO) TRADES 4 days

45 HENEGAN REVIEW-PRESENT GMP 5 days

46 AWARD TRADE CONTRACTS AND MOBILIZE 5 days

47

48 PERMITS 78 days

49 DEMO 0 days

50 OVERTIME(ONGOING THRU MARCH 1ST FOR DEMO) 0 days

51 CONSTRUCTION 0 days

52 ACTUAL 5th & 6th FLOOR REC'D 0 days

53 ACTUAL 4th FLOOR REC'D 0 days

54 ROOF/ LOBBY(LANDMARK APPROVAL REQUIRED) 0 days

55 FORECASTED ROOF/ LOBBY(LANDMARK APPROVAL REQUIRED) 0 days

56

57 EARLY RELEASE PACKAGES 275 days

58 ELEVATOR PACKAGE 275 days

12/21

1/20

1/31

2/24

3/7

2/7

3/30


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59 DOB FILING 30 days

60 ELEVATOR DEMO APPLICATION APPROVED 1 day

61 ELEVATOR / SHAFT DEMO PERMIT ISSUED 1 day

62 AWARD ELEVATOR CONTRACTOR 1 day

63 SHOP DRAWING PREPARATION - 4 - 6 WEEKS (CARS #11 & #12) - 10 WEEKS (CARS#19, #20, #21)

71 days

64 ACTUAL SHOP DRAWINGS TO BEGIN(FLD SURVEY EXISTING CONDITIONS) 10 wks

65 SHOP DRAWING SUBMISSION, REVIEW, APPROVAL 10 days

66 MATERIAL FABRICATION - 8 - 12 WEEKS (USE 11 WEEKS) 11 wks

67 INSTALLATION - 10 - 12 WEEKS (USE 12 WEEKS) 12 wks

68

69 ROOF ABATEMENT 65 days

70 SUBCONTRACTOR AWARD 0 days

71 FILING / APPROVALS - ACP-7 - 10 DAYS FOR STATE APPROVAL 10 days

72 FILE ACP-15, ACP-21 TO OBTAIN ACP-5 10 days

73 ABATEMENT 12 days

74 CONSTRUCTION 184 days

75 BASEMENT SELECTIVE DEMO / CONSTRUCTION 16 wks

76 BASEMENT PUNCHLIST 10 days

77

78 FIRST FLOOR/ LOBBY DEMOLITION 15 days

79 FIRST FLOOR/ LOBBY CONSTRUCTION 20 wks

80 FIRST FLOOR /PUNCHLIST 12 days

81

82 ELEVATOR MAKE READY 55 days

83 DEMO OF SHAFT 15 days

84 DEMO OF EQUIPMENT 15 days

85 CONSTRUCTION OF SHAFT 25 days

86

12/14


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87 5th FLOOR CONSTRUCTION 142 days

88 DEMOLITION 27 days

89 CONSTRUCTION 24 wks

90 5th FLOOR PUNCH LIST 10 days

91




95 4th FLOOR PUNCHLIST 10 days

96




100 6th FLOOR PUNCHLIST 10 days

101

102 ROOF - LAYOUT / COORDINATION WITH HVAC SHOPS 147 days

103 EQUIPMENT DELIVERY 1 day

104 MATERIAL FABRICATION 15 days

105 CUT OPENINGS 12 days

106 CONNECT VERTICAL DUCT / PIPING 15 days

107 CLOSE ALL PENETRATIONS 10 days

108 FINAL CONNECTIONS / EQUIPMENT COMMISSIONING 28 days

109

110 VOICE DATA / IT MILESTONES / COMPLETION DATES 98 days

111 BASEMENT - POE's, TELE. CLOSETS, HORIZONTAL CONDUIT & RISERS TO 1st& 5th FLOORS - ROOM READY

1 day

112 4th - FLOOR IDF's & RISERS - ROOM READY 1 day

113 5th FLOOR - SERVER ROOM / DATA CENTER - ROOM READY 1 day

114 DATA EQUIPMENT DELIVERY 1 day


Task

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115 VOICE EQUIPMENT DELIVERY 1 day

116 SERVER ROOM / DATA CENTER EQUIPMENT RACK & STACK 12 days

117 5th FLOOR IDF & TELE. CLOSETS - ROOM READY 1 day

118 6th FLOOR - IDF - ROOM READY 1 day

119 IDF ROOM EQUIPMENT RACK & STACK 5 days

120 TRAINING ROOM - ROOM READY 1 day

121 PATCHING OF WORKSTATION OUTLETS WITHIN IDF(MINIMUM TWO WEEKS PRIOR TO MOVE-IN)

1 day

122 ALL OTHER PATCHING WITHIN IDF & SERVER ROOM(MINIMUM TWO WEEKS PRIOR TO MOVE-IN)

1 day

123 VOICE EQUIPMENT DESKTOP ROLL-OUT 12 days

124

125 FURNITURE DELIVERY / INSTALLATION 31 days

126 DELIVERY / INSTALLATION 29 days

127 ELECTRICAL & VOICE DATA CABLING / TERMINATIONS 24 days

128 IT MILESTONE - WORKSTATION OUTLETS INSTALLED / LABELED(MINIMUM TWO WEEKS PRIOR TO MOVE-IN)

1 day

129

130 PROJECT COMPLETION 1 day

131 OCCUPANCY / STAGED MOVE-IN 19 days


Task

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EXHIBIT G

OWNER’S REQUEST FOR QUALIFICATIONS

SEIU 32 BJ Page 1 of 12

Construction Manager Request for Qualifications

July 7, 2010


SECTION 1 INSTRUCTIONS TO CM’s

A – INSTRUCTIONS If you choose to participate in this Request for Qualifications (RFQ) process please follow the instructions listed below:

A.1 CM’s are requested to submit four (4) copies of their response as well as all

other requested information in a sealed envelope marked:

Chris Rivielle Senior Managing Director Newmark Knight Frank Project & Development Management 125 Park Avenue NY, NY 10017 SEIU 32 BJ

A.2 If your firm does not wish to respond to this Request for Qualifications please notify Newmark Project Management.

A.3 Neither SEIU 32BJ or any firm or individual acting on its behalf shall have

any responsibility for errors or misinterpretations resulting from incomplete or incorrect documents. All proposals shall become the property of SEIU 32BJ.

A.4 All questions regarding this RFQ should be submitted in writing and directed

to Chris Rivielle. A.5 Please, NO DIRECT COMMUNICATION with SEIU 32BJ and/or the design

consultants. All questions and/or clarifications should be directed to Newmark Project Management in writing via email.

A.6 Shortlisted CM’s will be required to present their firm and proposed team qualifications on or about August 11/12.

A.7 CM’s must complete all forms contained herein & provide all requested

information.


SECTION 2 PROJECT INFORMATION AND DATA OWNER

SEIU 32BJ

ADDRESS

620 Avenue of the Americas NY, NY

FLOORS

Basement, Street Level Lobby, 4, 5, 6

APPROXIMATE RENTAL AREA

250,000 Rentable Square Feet (RSF)

ARCHITECT

Gerner Kronick & Valcarcel, Architects

MEP ENGINEERING FIRM

Robert Derector Associates

PROJECT MANAGER

Chris Rivielle Senior Managing Director Newmark Knight Frank Project & Development Management 125 Park Avenue 212 372 2263 [email protected]


SCOPE OF PROJECT

The project consists of 250,000 RSF +/- of multi-use space.

Basement - 3,000 – 5,000 SF of basement back of house type space (storage, employee lockers, etc.).

Lobby – Conversion of existing truck loading dock to Lobby space. Structural fill, new glass entry doors, reception desk, turnstiles, etc.

Floors 4 & 5 – 85,000 +/- SF floor plates of office, conference and training/classroom space. A feature is a divisible 400 +/- person multi-use Conference Center (Public Assembly). Space use is highly diversified and an open ceiling design will be typical for area with standard acoustical ceilings in all office space.

Floor 6 – 15,000 +/- SF of training. These will be used for training union members in Air Conditioning repair, Electric, Plumbing and Carpentry work. They will be set up as fully functioning shops for brazing, cutting, etc. They will be fitted with special exhaust systems, flammable material storage, eye wash stations, work benches/booths, 2-3 hour wall construction and other special considerations for this type of use.

Bathrooms – Bathrooms finishes will be restored/replaced but the bathroom scope of work will not entail a full gut/renovation.

An elevator contract is being awarded separately and may be assigned to the CM. Three new machine room-less (MRL) passenger elevators on the interior of the core and two large (20+ person) passenger elevators at the new 18th Street lobby/entry are being installed in existing elevator shafts. A new elevator MER will be built above the shaft above one of the 9,000 lb. cars and an existing elevator pit will be extended down about 5 feet for the second 9,000 lb. car.

The three passenger elevators will have a 3,500 lb. capacity and will have a platform dimension of 7’0” wide x 6’2” deep. The two 9,000 lb. elevators will have a platform dimension of 10’2” wide x 9’6’ deep. The interior cab heights for all five will be 10’0”.

MEPS – The base building is providing 600+ Tons of condenser water for cooling. Cooling with be achieved through installation of new air conditioning equipment throughout. The existing MER’s may or may not be reused. New electric closets will be built with a combination of relocating existing panels and mostly replacing with new. Electric services for the elevators will be new. Distribution of the electric will be mostly confined to the working floors. New tap boxes will be used to extend the existing distribution riser out to the floors.

Structure – 620 Avenue of the Americas is a seven-story, 670,000 s/f building constructed in 1896 and was home to the Sigel Cooper Dry Goods store, one of the first department stores in the city. Tishman & Speyer conducted a major gut renovation of the cast iron structure in the early 1990s. The structure is Landmark commissioned and consists of cast iron columns and flat terra cotta slab. The CM should exhibit major rehabilitation work in similar structures.

IT, AV, Security – New systems will be designed and installed and will be assigned to the CM’s responsibility. IT major switches and components will be purchased directly by SEIU 32BJ.

Commencement date of construction activities is scheduled for January, 2011 with an anticipated substantial completion date of September 1, 2011.


SECTION 3 CONTRACTOR’S CONSTRUCTION SERVICES A - PRE-CONSTRUCTION PHASE

A.1 Review project requirements with SEIU 32BJ, Owner’s Representative, Architect, Engineers and other consultants/project team members.

A.2 Advise Owner, Owner’s Representative, and Architect of material availability

and construction process feasibility. A.3 Review drawings throughout the design period for conformance with the

Owner’s requirements and schedule. Make recommendations consistent with these requirements and sound construction practices. Identify long lead items, material and equipment to be pre-purchased.

A.4 Assist Owner, Owner’s Representative, and Architect in reviewing the

requirements of all agencies and authorities having jurisdiction. Advise on the cost impact of these requirements and suggest possible alternatives. Include code and safety requirements.

A.5 Prepare a trade-by-trade unit cost estimate based on scope documents and

update the estimate as the plans develop. Re-budget throughout the design development and working drawing preparation periods.

A.6 Prepare a schedule for the entire project, analyze and update the schedule

as required and as requested by the Owner, Owner’s Representative and Architect.

A.7 Develop a projected cash flow analysis in conjunction with the schedule and

update as required by Owner, and/or Owner’s Representative. A.8 Conduct a value engineering analysis including cost, construction feasibility,

consideration relative to labor and material availability, and extent of off-site prefabrication.

A.9 Attend meetings as necessary to explain cost determinations and respond to

questions that may be raised by project consultants. A.10 Meet with the Building Owner and or agent to ascertain regulation,

procedures, construction standards, approval processes, approved construction lists and procedures for coordinating the construction work with the building staff.


B - PROCUREMENT PHASE B.1 Assist SEIU 32BJ (Owner), Owner’s Representative and Architect in the preparation of “front end” documents including General and Special Conditions, contract formats.

B.2 Recommend to the Owner, the most cost-effective subcontractor bidding

procedures with consideration for maintaining labor harmony, schedule and cost. Develop bid packages, unit pricing, and alternatives for inclusion in trade contractors’ bid proposals.

B.3 Develop a recommended bidder list for each component of the work and

submit to the Owner, Owner’s Representative, and the Architect for review and approval.

B.4 Review all plans and specifications before issuing invitations to bid and

prepare an independent take-off of quantities and a detailed estimate for each unit of construction. Bid packages should include unit prices, hourly rates and a provision that limits a maximum of fifteen percent (15%) total mark up for all trades.

B.5 Solicit trade bids, qualify, analyze and report in bid tabulation form the results

of the bidding process. Make written recommendations detailing the basis for each award. Upon receipt of Owner’s approval, award such work.

B.6 Assist in the procurement, scheduling, storage, and installation of pre-

purchased and long lead items as approved by Owner including items required to be procured in advance of subcontractor selection.

General Management and Coordination

C.1 Coordinate and supervise the work being performed by trade contractors, outside suppliers, and SEIU 32BJ (Owner) vendors for the project’s duration. Responsible for means and methods of construction, which shall ensure that all work and furnished materials comply with the contract documents and project schedule.

C.2 The Construction Manager shall coordinate the efforts of all trade contractors

to ensure labor harmony and that the project is on schedule and is well constructed in accordance with the contract documents.

On-Site Management

C.3 Maintain a full-time superintendent at the job site with support staff as required for the coordination and inspection of work.

C.4 Establish on-site organization and lines of authority in order to carry out the

overall plans of the Owner, Owner’s Representative and Architect in all phases of the project.

C.5 Establish and implement procedures for, opening and maintaining a clear

line of communication amongst Owner, Owner’s Representative, Architect, Consultants, and Construction Manager for all the phases of the project.

C.6 Prepare and develop an on-site record keeping system that will be of

sufficient detail to satisfy an audit by Owner. Such records shall include, but shall not be limited to, daily logs, progress schedules, manpower breakdowns (daily by trade), financial reports, quantities, material lists, shop drawing logs, and the like.

C.7 Obtain the general building permits and certificates of occupancy required by

agencies and authorities having jurisdiction over the project. C.8 Expedite and coordinate the procurement of all legally required permits,

licenses, and certificates. Assemble these documents for the trade contractors and deliver to Owner at the completion of the project.


On-Site Management (cont.)

C.9 Coordinate all aspects of the work with local municipal authorities,

governmental agencies, utility companies, management of the building etc., who may be involved in the project.

C.10 Coordinate the work of all trade contractors through final completion and the

Owner’s acceptance. Conduct a comprehensive final inspection to ensure that the quality of labor and materials are in accordance with the contract documents. Record all deficient items prior to submitting a request for a certificate of substantial completion and ensure that the deficiencies are satisfied in a timely fashion.

C.11 Conduct regularly scheduled and unscheduled job meetings through the

construction process. All affected parties, who will discuss procedures, progress, problems, and scheduling and open items, should attend these meetings. Keep precise meeting minutes of all meetings.

C.12 Coordinate the activities of trade contractors and vendors that may be hired

directly by the Owner. C.13 Constantly review the adequacy of the trade contractor’s supervision,

personnel and equipment and the availability of necessary materials and supplies. Where inadequate, direct that the trade contractors take the necessary action involved.

C.14 Establish and provide an inspection system for safety programs and

procedures to be followed by all trade contractors that shall ensure the safety of all personnel and property during the performance of the work, which shall apply continuously and not be limited to normal working hours. Comply with the Occupational Safety and Health Act of 1970, and regulations or standards promulgated there under, or any State, County or municipal law or regulation or similar import or intent.

Coordinate Testing and Controlled Inspection Coordinate Shop Drawing Submissions

C.15 Develop and establish for Owner’s benefit and for his use a quality inspection control system in order to insure that the standards of construction called for are met.

C.16 Develop a checking and testing procedure that will ensure that all systems

are adequately tested and balanced prior to their acceptance. C.17 Coordinate all testing provided by others as required by the technical

sections of specifications, sub landlord, building management, and as required by the building code. Keep an accurate record of all tests, inspections conducted, findings and test reports. Submit final test reports to Owner, Owner’s Representative and the Architect. Services of professional engineers and architect as required by the building code will be performed for Owner directly.

C.18 Prepare a detailed submittal schedule within adequate advance time for

review, approval and use by the Architect/Engineer. C.19 Receive, review and coordinate all shop drawings, cuts, samples, delivery

schedules, materials lists, etc., for compliance with the contract documents. Provide comments and assure that each submittal is complete and coordinated with all other trade activities before submitting information to the Architect for concurring review and approval. Construction Manager shall certify that they have reviewed and have executed the aforementioned procedures by stamping and signing each document.


Coordinate Shop Drawing Submissions (Continued)

C.20 Oversee the submission of all shop drawings, composite shop and coordination drawings, brochures and material samples. Ensure that composite shop and coordination drawings are complete and accurate for every portion of the work. Monitor and implement the flow of all documents and materials to ensure the proper sequence of approvals by the Architect/Engineer so as not to delay the progress of the work.

C.21 Establish and maintain on-site a complete library of all current contract

documents approved shop drawings and approved material samples.

Review all Payment Requests

C.22 Before the first partial payment becomes due, the Construction Manager will provide a detailed breakdown for each trade and a schedule of values for each component of the total contract amount.

C.23 All subcontractor applications for payment will be submitted through the

Construction Manager in accordance with established procedures. At a minimum each sub-contractor must submit a pre-approved application of payment accompanied by a complete detailed breakdown of costs on a continuation sheet. Trade contract applications for payment along with partial waiver of lien and an affidavit of payment made by each trade contractor must accompany each application.

C.24 Recommend to Owner the institution of any partial or complete default action

against any contractor(s). Where deemed necessary, determine amounts due under default settlement and prepare budget estimates for completion of work.

Review and Coordinate All Change Order Requests Provide Scheduling Administration

C.25 Receive, review and challenge all change order requests from the subcontractors in a timely manner in order to allow Owner the right of acceptance prior to execution of work and without an impact to the schedule. Review unit prices, time and material charges and similar items. Consult with the Architect/Engineer, and after mutual agreement, submit recommendations to Owner.

C.26 Review all changes proposed by Owner, Owner’s Representative, and/or

Architect/Engineer and make recommendations regarding the impact with respect to cost and or schedule.

C.27 Ensure that all change orders are satisfactorily carried out in the construction

process. C.28 Develop a comprehensive understanding and implement the specification's

and Owner’s procedures for the processing of change orders, including applications for extensions of time.

C.29 With respect to portions of the work performed by change orders, or

otherwise, on a time-and-material, unit cost, or similar basis, which requires the keeping of records and computations, maintain adequate cost accounting records to satisfy the specifications and Owner’s procedures.

C.30 During the course of construction, the Construction Manager will make an

analysis of the materials and equipment that will be required on the job. He will determine dates for shop drawing submission and approval, off site fabrication and manufacturing, and delivery dates required to meet with job progress. He will maintain a scheduling system to expedite material and equipment deliveries through the course of construction


D - POST CONSTRUCTION D.1 At the proper time, create and coordinate the completion of punch lists, together with the Architect/Engineer, indicating the items or work remaining to be accomplished, and insure that these items are completed in an expeditious manner. Prepare certificates of substantial and final completion, as required to be executed by the Architect and Owner.

D.2 Assemble all guarantees, warranties, as built drawings, etc., as required by

the contract documents (at a minimum all documents shall be assembled into a three ring binder(s) with a spine size no greater than three inches in width, each binder shall have a table of contents, be organized by trade, and be clearly marked) and forward one copy to Owner’s Representative, and one copy each to the Architect, and Engineer, certifying that they are complete and cover all work as required.

D.3 Coordinate and expedite the submission of operating and maintenance

manuals and similar information; obtain Architect’s approval to ensure that they are complete and cover all items as required by the contract documents. Coordinate and chair all necessary owner-training sessions attended by Architect, Engineer, Building Representative and all Representatives required by Owner. Immediately upon completion of training sessions provide detailed and comprehensive meeting minutes (a copy of the minutes are to be inserted into the appropriate close-out manuals).

D.4 Receive, check and forward to the Owner’s Representative all releases of

claims required subsequent to issuance of final certificate of completion and final payment to subcontractors. Make recommendations on the withholding of payments to subcontractors where deemed necessary to protect Client. Determine value of incorrect work.

D.5 Expedite the contractor’s preparation of “as built” drawings of the entire

project in accordance with the terms of the specifications. The complete “as-built” drawings shall be subject to the approval of the Architect/ Engineer and submitted to Owner for its records upon final completion of the project.

D.6 After completion of project, Construction Manager will be responsible for

expeditious follow-up and correction of all punch list items.


SECTION 4 BASIC & REQUIRED INFORMATION A – REQUIRED INFORMATION Please provide the information requested below:

A.1 Contractor (Firm’s full legal name and any D.B.A). A.2 Contractors Business Address and location of branch offices. A.3 Contractor’s telephone and fax numbers, email address and web site address. A.4 Contractor’s principal person to contact.

B – GENERAL INFORMATION Please provide the information requested below:

B.1 Name of Principals and tenure with your firm

B.2 Current litigation your firm is involved in

B.3 Professional history

B.4 Registration Status

B.5 Professional Affiliations

B.6 Contractor’s Principal in Charge of project

C – SUBMISSIONS C.1 List of LEED certified projects completed and ongoing over 200,000 SF

C.2 Experience on similar projects within the past five years. At a minimum provide;

a. Name and location b. Client, including title and phone # of reference c. Project description d. Date of start and completion e. Scope of services provided f. Construction cost g. Unique complexities of the project and how they were addressed

C.3 Your firms approach to budgeting & value engineering. Be specific to projects

of this size and complexity and use examples. C.4 Your firms approach to estimating and bidding. Explain the benefits that SEIU

32BJ can expect by selecting your firm. Address the cost and service differences (if any) between CM services and Lump Sum General Contractor bidding.

C.5 Your firms approach to this project. What are your concerns regarding cost

and schedule with regards to the information provided? Present the specific steps your firm would take to ensure overall project success.


SECTION 5 PROJECT PERSONNEL

A – REQUIRED INFORMATION The services described in this Request for Proposal will require an experienced,

qualified staff. Please provide the following information. A.1 Organization chart specific to this project, including all personnel and direct

reporting relationships. A.2 Submit brief resumes to indicate qualifications of personnel who will be

assigned to this project with the emphasis on similar projects and past / current references with contact information.

A.3 Provide specific project references for the proposed Project Executive,

Project Manager and Superintendent(s).


SECTION 7 ADDITIONAL REQUIRED INFORMATION

LIABILITY INSURANCE Please provide details of your firm’s professional and general liability insurance coverage.

REFERENCES Submit a list of current projects, the scope of services (please be specific about your interior construction projects), and the dollar amounts involved.

CURRENT WORK Please submit a list of your firms present work load for both preconstruction and construction.

COSTS OF BID Under no circumstances shall or will SEIU 32BJ or Newmark Knight Frank be held liable for the cost of preparing bids/offers.

CONFIDENTIALITY All documents and other information provided by SEIU 32BJ and/or its consultants are confidential and must not be disclosed to any other party. CM’s will have a revocable license to use the documents and information for the purpose of preparing a response to this RFQ but will acquire no other right in respect of the documents or information. All such documents and information shall be returned or destroyed. SEIU 32BJ will require the CM to execute a confidentiality agreement. A copy of this agreement is attached and should be returned upon receipt of the document.


EXHIBIT H

OWNER’S REQUEST FOR PROPOSAL


Construction Manager Request for Proposal

August 2, 2010

SEIU 32BJ


August 2, 2010 Re: Building Service 32BJ Health Fund 620 Avenue of the Americas RFP for Construction Management Services

Dear Construction Manager;

Newmark Knight Frank Project Development & Management (NKFPDM) is soliciting response to this Request for Proposal for Construction Management Services. Your firm has been short listed based on your response to our Request for Qualifications (RFQ). The project is a 250,000 SF fit-out located at 620 Avenue of the Americas for the Building Service 32BJ Health Fund. Newmark Knight Frank (NKF) is the project manager for the design and construction of the project. The project scope as previously stated in the RFQ involves the demolition and fit-out of 250,000 RSF of diversified space including conference, training/labs, new mechanical rooms, new elevators, a data center, reception and general office space. The project will be LEED certified. Construction will start in January 2011 and be complete by the end of October 2011.

Your firm will be invited to present your team and abilities on either August 9 or 10. You will be presenting to several representatives from the Building Service 32BJ Health Fund, Thacher Associates, GKV, RDA and NKF. To ensure fair and ethical business practices are adhered to while doing business with the Owner Thacher Associates will conduct a more extensive level of investigation to the finalist(s) as part of our Project Integrity Compliance Program (PICP). The current schedule anticipates that the project will start in early January, 2011 and be completed and occupied by October 14, 2011. The CM will be awarded Preconstruction Services with Construction Services award based on the CM’s performance during the preconstruction period.

REQUEST FOR PROPOSAL


Below is the time-line for the CM Selection Process;

August 2 Issue Request for Proposal for CM services to short-listed firms

August 4 Receive responses to the RFP

August 9/10 NKF/32BJ/IIS conduct CM interviews

August 11/12 Select/Award CM services firm

The CM selection process will rely on your response to this RFP including the following;

1. Your firm’s ability to illustrate a clear understanding of this project's complexities and address

specifically what your plan is to ensure its success regarding quality, schedule and cost.

2. The quality of your firms proposed staff

3. Your firms proven success on similar projects

4. Your firms ethical and business practices as evaluated through the PICP

Your firm will be have 90 minutes for the interview. A suggested agenda is below but you are free to use the time as you feel best will exemplify your firm’s strengths and ability to deliver a high level of service to the Building Service 32BJ Health Fund. We will want to hear mostly from the team members that will be leading your efforts during the preconstruction and construction periods. Please be prepared to present specific ideas regarding this project, its keys to success, complexities/difficulties and potential hurdles.

Tour of the office 10 minutes Firm Experience/History 10 minutes Proposed Team 15-20 minutes Preconstruction Services 10-15 minutes Construction Services 10-15 minutes Q&A 20 minutes

We look forward to your response and to seeing you in your office.

Sincerely yours,

John Krush Executive Managing Director Newmark Knight Frank Project & Development Management cc: Christopher Rivielle Tyler Gordon


SECTION 1 INSTRUCTIONS TO CM’s

A - INSTRUCTIONS If you choose to participate in this Request for Proposal (RFP) process please follow the instructions listed below:

A.1 CM’s are requested to submit Two (2) copies of their response as well as all

other requested information in a sealed envelope marked:

Chris Rivielle Senior Managing Director Newmark Knight Frank Project & Development Management 125 Park Avenue NY, NY 10017 SEIU 32 BJ

Two (2) copies to:

Peter Goldberger Deputy Executive Director, 32BJ Benefit Funds SEIU Local 32BJ 101 Avenue of the Americas NY, NY 10013

Two (2) copies to:

Randy Gerner GKV Architects 443 Park Avenue South NY, NY 10016

A.2 All questions regarding this RFP should be submitted in writing and directed to Chris Rivielle.

A.3 Please, NO DIRECT COMMUNICATION with SEIU 32BJ and/or the design

consultants. All questions and/or clarifications should be directed to Newmark Project Management in writing via email.

A.4 Shortlisted CM’s will be required to present their firm and proposed team qualifications on August 9 or 10.

A.5 CM’s must complete all forms contained herein & provide all requested

information.


SECTION 2 PROJECT INFORMATION AND DATA OWNER

SEIU 32BJ

ADDRESS

620 Avenue of the Americas NY, NY

FLOORS

Basement, Street Level Lobby, 4, 5, 6

APPROXIMATE RENTAL AREA

250,000 Rentable Square Feet (RSF)

ARCHITECT

Gerner Kronick & Valcarcel, Architects

MEP ENGINEERING FIRM

Robert Derector Associates

IT Consultant TM Technology

Security Consultant TM Technology

Audio Visual Shen Milsom Wilke

Elevator Consultant Jenkins & Huntington

PROJECT MANAGER

Chris Rivielle Senior Managing Director Newmark Knight Frank Project & Development Management 125 Park Avenue 212 372 2263 [email protected]


SCOPE OF PROJECT

The project consists of 250,000 RSF +/- of multi-use space.

Basement - 3,000 – 5,000 SF of basement back of house type space (storage, employee lockers, etc.).

Lobby – Conversion of existing truck loading dock to Lobby space. Structural fill, new glass entry doors, reception desk, turnstiles, etc.

Floors 4 & 5 – 85,000 +/- SF floor plates of office, conference and training/classroom space. A feature is a divisible 400 +/- person multi-use Conference Center (Public Assembly). Space use is highly diversified and an open ceiling design will be typical for area with standard acoustical ceilings in all office and conference spaces.

Floor 6 – 15,000 +/- SF of training. These will be used for training union members in Air Conditioning repair, Electric, Plumbing and Carpentry work. They will be set up as fully functioning shops for brazing, cutting, etc. They will be fitted with special exhaust systems, flammable material storage, eye wash stations, work benches/booths, 2-3 hour wall construction and other special considerations for this type of use.

Bathrooms – Bathrooms finishes will be restored/replaced but the bathroom scope of work will not entail a full gut/renovation.

An elevator contract is being awarded separately and may be assigned to the CM. Three new machine room-less (MRL) passenger elevators on the interior of the core and two large (20+ person) passenger elevators at the new 18th Street lobby/entry are being installed in existing elevator shafts. A new elevator MER will be built above the shaft above one of the 9,000 lb. cars and an existing elevator pit will be extended down about 5 feet for the second 9,000 lb. car.

The three passenger elevators will have a 3,500 lb. capacity and will have a platform dimension of 7’0” wide x 6’2” deep. The two 9,000 lb. elevators will have a platform dimension of 10’2” wide x 9’6’ deep. The interior cab heights for all five will be 10’0”.

The MER rooms will have to be started sometime around October. The elevator contractor will require at least eight months of work beginning with the completion of the Rooftop and Basement MER’s. The Rooftop MER will be new construction and the Basement MER will involve minor excavation

MEPS – The base building is providing 600+ Tons of condenser water for cooling. Cooling with be achieved through installation of new air conditioning equipment throughout. The existing MER’s will not be reused. New electric closets will be built with a combination of relocating existing panels and mostly replacing with new. Electric services for the elevators will be new. Distribution of the electric will be mostly confined to the working floors. New tap boxes will be used to extend the existing distribution riser out to the floors.

Structure – 620 Avenue of the Americas is a seven-story, 670,000 s/f building constructed in 1896 and was home to the Sigel Cooper Dry Goods store, one of the first department stores in the city. Tishman & Speyer conducted a major gut renovation of the cast iron structure in the early 1990s. The structure is Landmark commissioned and consists of cast iron columns and flat terra cotta slab. The CM should exhibit major rehabilitation work in similar structures.

IT, AV, Security – New systems will be designed and installed and will be assigned to the CM’s responsibility. IT major switches and components will be purchased directly by SEIU 32BJ.

Commencement date of construction activities is scheduled for January, 2011 with an anticipated substantial completion date of September 1, 2011.


SECTION 3 CONTRACTOR’S CONSTRUCTION SERVICES A - PRE-CONSTRUCTION PHASE

A.1 Review project requirements with SEIU 32BJ, Owner’s Representative, Architect, Engineers and other consultants/project team members.

A.2 Advise Owner, Owner’s Representative, and Architect of material availability

and construction process feasibility. A.3 Review drawings throughout the design period for conformance with the

Owner’s requirements and schedule. Make recommendations consistent with these requirements and sound construction practices. Identify long lead items, material and equipment to be pre-purchased.

A.4 Assist Owner, Owner’s Representative, and Architect in reviewing the

requirements of all agencies and authorities having jurisdiction. Advise on the cost impact of these requirements and suggest possible alternatives. Include code and safety requirements.

A.5 Prepare a trade-by-trade unit cost estimate based on scope documents and

update the estimate as the plans develop. Re-budget throughout the design development and working drawing preparation periods.

A.6 Prepare a schedule for the entire project, analyze and update the schedule

as required and as requested by the Owner, Owner’s Representative and Architect.

A.7 Develop a projected cash flow analysis in conjunction with the schedule and

update as required by Owner, and/or Owner’s Representative. A.8 Conduct a value engineering analysis including cost, construction feasibility,

consideration relative to labor and material availability, and extent of off-site prefabrication.

A.9 Attend meetings as necessary to explain cost determinations and respond to

questions that may be raised by project consultants. A.10 Meet with the Building Owner and or agent to ascertain regulation,

procedures, construction standards, approval processes, approved construction lists and procedures for coordinating the construction work with the building staff.


B - PROCUREMENT PHASE B.1 Assist SEIU 32BJ (Owner), Owner’s Representative and Architect in the preparation of “front end” documents including General and Special Conditions, contract formats.

B.2 Recommend to the Owner, the most cost-effective subcontractor bidding

procedures with consideration for maintaining labor harmony, schedule and cost. Develop bid packages, unit pricing, and alternatives for inclusion in trade contractors’ bid proposals.

B.3 Develop a recommended bidder list for each component of the work and

submit to the Owner, Owner’s Representative, and the Architect for review and approval.

B.4 Review all plans and specifications before issuing invitations to bid and

prepare an independent take-off of quantities and a detailed estimate for each unit of construction. Bid packages should include unit prices, hourly rates and a provision that limits a maximum of fifteen percent (15%) total mark up for all trades.

B.5 Solicit trade bids, qualify, analyze and report in bid tabulation form the results

of the bidding process. Make written recommendations detailing the basis for each award. Upon receipt of Owner’s approval, award such work.

B.6 Assist in the procurement, scheduling, storage, and installation of pre-

purchased and long lead items as approved by Owner including items required to be procured in advance of subcontractor selection.

C - General Management and Coordination

C.1 Coordinate and supervise the work being performed by trade contractors, outside suppliers, and SEIU 32BJ (Owner) vendors for the project’s duration. Responsible for means and methods of construction, which shall ensure that all work and furnished materials comply with the contract documents and project schedule.

C.2 The Construction Manager shall coordinate the efforts of all trade contractors

to ensure labor harmony and that the project is on schedule and is well constructed in accordance with the contract documents.

On-Site Management

C.3 Maintain a full-time superintendent at the job site with support staff as required for the coordination and inspection of work.

C.4 Establish on-site organization and lines of authority in order to carry out the

overall plans of the Owner, Owner’s Representative and Architect in all phases of the project.

C.5 Establish and implement procedures for, opening and maintaining a clear

line of communication amongst Owner, Owner’s Representative, Architect, Consultants, and Construction Manager for all the phases of the project.

C.6 Prepare and develop an on-site record keeping system that will be of

sufficient detail to satisfy an audit by Owner. Such records shall include, but shall not be limited to, daily logs, progress schedules, manpower breakdowns (daily by trade), financial reports, quantities, material lists, shop drawing logs, and the like.

C.7 Obtain the general building permits and certificates of occupancy required by

agencies and authorities having jurisdiction over the project. C.8 Expedite and coordinate the procurement of all legally required permits,

licenses, and certificates. Assemble these documents for the trade contractors and deliver to Owner at the completion of the project.


On-Site Management (cont.)

C.9 Coordinate all aspects of the work with local municipal authorities,

governmental agencies, utility companies, management of the building etc., who may be involved in the project.

C.10 Coordinate the work of all trade contractors through final completion and the

Owner’s acceptance. Conduct a comprehensive final inspection to ensure that the quality of labor and materials are in accordance with the contract documents. Record all deficient items prior to submitting a request for a certificate of substantial completion and ensure that the deficiencies are satisfied in a timely fashion.

C.11 Conduct regularly scheduled and unscheduled job meetings through the

construction process. All affected parties, who will discuss procedures, progress, problems, and scheduling and open items, should attend these meetings. Keep precise meeting minutes of all meetings.

C.12 Coordinate the activities of trade contractors and vendors that may be hired

directly by the Owner. C.13 Constantly review the adequacy of the trade contractor’s supervision,

personnel and equipment and the availability of necessary materials and supplies. Where inadequate, direct that the trade contractors take the necessary action involved.

C.14 Establish and provide an inspection system for safety programs and

procedures to be followed by all trade contractors that shall ensure the safety of all personnel and property during the performance of the work, which shall apply continuously and not be limited to normal working hours. Comply with the Occupational Safety and Health Act of 1970, and regulations or standards promulgated there under, or any State, County or municipal law or regulation or similar import or intent.

Coordinate Testing and Controlled Inspection Coordinate Shop Drawing Submissions

C.15 Develop and establish for Owner’s benefit and for his use a quality inspection control system in order to insure that the standards of construction called for are met.

C.16 Develop a checking and testing procedure that will ensure that all systems

are adequately tested and balanced prior to their acceptance. C.17 Coordinate all testing provided by others as required by the technical

sections of specifications, sublandlord, building management, and as required by the building code. Keep an accurate record of all tests, inspections conducted, findings and test reports. Submit final test reports to Owner, Owner’s Representative and the Architect. Services of professional engineers and architect as required by the building code will be performed for Owner directly.

C.18 Prepare a detailed submittal schedule within adequate advance time for

review, approval and use by the Architect/Engineer. C.19 Receive, review and coordinate all shop drawings, cuts, samples, delivery

schedules, materials lists, etc., for compliance with the contract documents. Provide comments and assure that each submittal is complete and coordinated with all other trade activities before submitting information to the Architect for concurring review and approval. Construction Manager shall certify that they have reviewed and have executed the aforementioned procedures by stamping and signing each document.


Coordinate Shop Drawing Submissions (Continued)

C.20 Oversee the submission of all shop drawings, composite shop and coordination drawings, brochures and material samples. Ensure that composite shop and coordination drawings are complete and accurate for every portion of the work. Monitor and implement the flow of all documents and materials to ensure the proper sequence of approvals by the Architect/Engineer so as not to delay the progress of the work.

C.21 Establish and maintain on-site a complete library of all current contract

documents approved shop drawings and approved material samples.

Review all Payment Requests

C.22 Before the first partial payment becomes due, the Construction Manager will provide a detailed breakdown for each trade and a schedule of values for each component of the total contract amount.

C.23 All subcontractor applications for payment will be submitted through the

Construction Manager in accordance with established procedures. At a minimum each sub-contractor must submit a pre-approved application of payment accompanied by a complete detailed breakdown of costs on a continuation sheet. Trade contract applications for payment along with partial waiver of lien and an affidavit of payment made by each trade contractor must accompany each application.

C.24 Recommend to Owner the institution of any partial or complete default action

against any contractor(s). Where deemed necessary, determine amounts due under default settlement and prepare budget estimates for completion of work.

Review and Coordinate All Change Order Requests Provide Scheduling Administration

C.25 Receive, review and challenge all change order requests from the subcontractors in a timely manner in order to allow Owner the right of acceptance prior to execution of work and without an impact to the schedule. Review unit prices, time and material charges and similar items. Consult with the Architect/Engineer, and after mutual agreement, submit recommendations to Owner.

C.26 Review all changes proposed by Owner, Owner’s Representative, and/or

Architect/Engineer and make recommendations regarding the impact with respect to cost and or schedule.

C.27 Ensure that all change orders are satisfactorily carried out in the construction

process. C.28 Develop a comprehensive understanding and implement the specification's

and Owner’s procedures for the processing of change orders, including applications for extensions of time.

C.29 With respect to portions of the work performed by change orders, or

otherwise, on a time-and-material, unit cost, or similar basis, which requires the keeping of records and computations, maintain adequate cost accounting records to satisfy the specifications and Owner’s procedures.

C.30 During the course of construction, the Construction Manager will make an

analysis of the materials and equipment that will be required on the job. He will determine dates for shop drawing submission and approval, off site fabrication and manufacturing, and delivery dates required to meet with job progress. He will maintain a scheduling system to expedite material and equipment deliveries through the course of construction


D - POST CONSTRUCTION D.1 At the proper time, create and coordinate the completion of punch lists, together with the Architect/Engineer, indicating the items or work remaining to be accomplished, and insure that these items are completed in an expeditious manner. Prepare certificates of substantial and final completion, as required to be executed by the Architect and Owner.

D.2 Assemble all guarantees, warranties, as built drawings, etc., as required by

the contract documents (at a minimum all documents shall be assembled into a three ring binder(s) with a spine size no greater than three inches in width, each binder shall have a table of contents, be organized by trade, and be clearly marked) and forward one copy to Owner’s Representative, and one copy each to the Architect, and Engineer, certifying that they are complete and cover all work as required.

D.3 Coordinate and expedite the submission of operating and maintenance

manuals and similar information; obtain Architect’s approval to ensure that they are complete and cover all items as required by the contract documents. Coordinate and chair all necessary owner-training sessions attended by Architect, Engineer, Building Representative and all Representatives required by Owner. Immediately upon completion of training sessions provide detailed and comprehensive meeting minutes (a copy of the minutes are to be inserted into the appropriate close-out manuals).

D.4 Receive, check and forward to the Owner’s Representative all releases of

claims required subsequent to issuance of final certificate of completion and final payment to subcontractors. Make recommendations on the withholding of payments to subcontractors where deemed necessary to protect Client. Determine value of incorrect work.

D.5 Expedite the contractor’s preparation of “as built” drawings of the entire

project in accordance with the terms of the specifications. The complete “as-built” drawings shall be subject to the approval of the Architect/ Engineer and submitted to Owner for its records upon final completion of the project.

D.6 After completion of project, Construction Manager will be responsible for

expeditious follow-up and correction of all punch list items.


SECTION 4 BASIC & REQUIRED INFORMATION

A – REQUIRED INFORMATION Please provide the information requested below: A.1 Fee for Preconstruction Services both Lump Sum and monthly if needed. A.2 General Conditions, Fee and Insurance represented both Lump Sum and as a

percentage of the cost of work.

A.3 A complete detailed breakdown of the General Conditions clearly showing what is included and what is not. Less detail will not reflect well on your firm. The intention of this contract is to work hand-in-hand with the Construction Manager in a truly collaborative nature.

A.4 A staffing matrix for the duration of the project, listing all staff that is included in the general conditions and the length of their involvement monthly.

A.5 A separate breakdown of the General Conditions, Fee and Insurance to build

the elevator MER’s.

A.6 A separate fee for Change Orders

A.7 By Friday August 6th please submit all of your comments to the contract

Base all of the above on a Cost of Work of $29,000,000. This does not include the IT, AV, & Security scope which may or may not be run through the CM. Coordination of these trades is to be included.

Preconstruction will be from mid-August to December 31, 2010. Elevator MER Construction will be from October 2010 – December 2010


EXHIBIT A – CERTIFICATION OF INFORMATION The undersigned, on behalf of the company named below, hereby represents and

certifies to SEIU 32BJ to the best of their knowledge that: The information contained in the enclosed response is accurate and truthful as it

relates to this request for proposal pertaining to Construction Management Services.

Compliance to all applicable laws, regulation or ordinances of applicable federal,

state and other governmental or regulatory agencies, which have jurisdiction, will continually be maintained.

Unless fully disclosed in the response, the information submitted was not

prepared in conjunction or cooperation with any other company and or individual. The firm named below unconditionally accepts all terms and conditions listed in

this request for proposal, unless fully disclosed in the response. The individual signing this form is an officer of the firm and is authorized to sign

agreements on behalf of the company.

Submitted by

(Insert Contractor’s Name)

Street Address

(Insert Contractor’s Address) City, State, Zip Code

(Insert Contractor’s City, State & Zip) Officer Signature

Printed Name

(Insert Contractor’s Address) Officer Title

(Insert Contractor’s Officer Title) Phone Number

(Insert Contractor’s Phone Number) Facsimile Number

(Insert Contractor’s Fax Number)

Date

(Insert Date of Response)


EXHIBIT B – BID PROPOSAL FORM FEE FOR PRE-CONSTRUCTION SERVICES FEE FOR BIDDING AND CONSTUCTION SERVICES FEE FOR BIDDING AND CONSTUCTION SERVICES FOR ELEVATOR MER BUILD-OUT CHANGES IN WORK EXCLUSIONS

The CM proposes to perform all services associated with Pre-construction services phase as defined: Fee: $_____________________________ Fee: _____________________________% The CM hereby proposes to bid and manage all subcontractor’s required to complete the bidding and construction phases of the project for a fee equal to the total amount of subcontractor bids multiplied by the percentage indicated: General Conditions: $_____________________________ General Conditions: _____________________________% Fee: $_____________________________ Fee: _____________________________% Insurance: $_____________________________ Insurance: _____________________________% The CM hereby proposes to bid and manage all subcontractor’s required to complete the bidding and construction phases of the project for a fee equal to the total amount of subcontractor bids multiplied by the percentage indicated: General Conditions: $_____________________________ General Conditions: _____________________________% Fee: $_____________________________ Fee: _____________________________% Insurance: $_____________________________ Insurance: _____________________________% General Conditions: _____________________________% Fee: _____________________________% Insurance: _____________________________% We propose to include as part of our CM Services no markup on the first $_____________________________ of approved change orders. Identify any items to be excluded from Bid.


EXHIBIT I

CONTRACTOR’S QUALIFICATION PROPOSAL


EXHIBIT J

CONTRACTOR’S PROPOSAL (Dated 8/04/2010 and revised Bid Form dated 8/24/2010)

HENEGAN CONSTRUCTION CO., INC.Henegan Job No. 100224

SEIU 32 BJ

EXHIBIT B – BID PROPOSAL FORM Revised August 24, 2010

FEE FOR PRE-CONSTRUCTION The CM proposes to perform all services associated with Pre-construction servicesSERVICES phase as defined:

Fee: $ 72,500.00

Fee: .25 %

FEE FOR BIDDING AND The CM hereby proposes to bid and manage all subcontractor’s required to completeCONSTRUCTION SERVICES the bidding and construction phases of the project for a fee equal to the total amount

Of subcontractor bids multiplied by the percentage indicated:

General Conditions: $ 987,500.00

General Conditions 3.95 %

Fee: $ 250,000.00

Fee: 1.00 %

Insurance: $ 275,000.00

Insurance: 1.10 %

FEE FOR BIDDING AND The CM hereby proposes to bid and manage all subcontractor’s required to completeCONSTRUCTION SERVICES FOR the bidding and construction phases of the project for a fee equal to the total amountELEVATOR MER BUILD-OUT of subcontractor bids multiplied by the percentage indicated:

General Conditions: $ 158,000.00

General Conditions 3.95 %

Fee: $ 40,000.00

Fee: 1.00 %

Insurance: $ 44,000.00

Insurance: 1.10 %

CHANGES IN WORK General Conditions: 3.00 %

Fee: 3.00 %

Insurance: 1.10 %

We propose to include as part of our CM Services no markup on the first$ 1,500,000.00 of approved change orders.

EXCLUSIONS Identify any items to be excluded from Bid.

For accounting purposes, the above general conditions, fees and insurancewere calculated at a $29,000,000.00 total project cost. $25,000,000.00 wasallocated to the construction services component and $4,000,000.00 wasallocated to the elevator build-out. Our bid pricing anticipates award of bothcomponents to Henegan Construction.


EXHIBIT K

LEASE REQUIREMENTS