Document A105TM – 2007 - Houston Bar Association · Document A105 TM – 2007 Standard Form of Agreement Between Owner and Contractor for a Residential or Small Commercial Project

Document A105TM – 2007 Standard Form of Agreement Between Owner and Contractor for a Residential or Small Commercial Project

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AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:18:14 on 11/17/2014 under Order No.5732970927_1 which expires on 06/29/2015, and is not for resale. User Notes: (1917864806)

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ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text.

This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification.

State or local law may impose requirements on contracts for home improvements. If this document will be used for Work on the Owner’s residence, the Owner should consult local authorities or an attorney to verify requirements applicable to this Agreement.

AGREEMENT made as of the ______ day of ___________ in the year 2014 (In words, indicate day, month and year) BETWEEN the Owner: (Name, address and other information) _______________________ _______________________ _______________________ _______________________ Attn: _______________________ and the Contractor: (Name, address and other information) _______________________ _______________________ _______________________ _______________________ Attn: _______________________ for the following Project: (Name, location and detailed description) _______________________ _______________________ _______________________ The Architect: (Name, address and other information) N/A The Owner and Contractor agree as follows. #12051127 v.1 11/17/2014 AIA CONTRACT DOCUMENTS ARE COPYRIGHTED BY THE AMERICAN INSTITUTE OF ARCHITECTS. SAMPLES OF AIA CONTRACT DOCUMENTS ARE PROVIDED PURSUANT TO A SPECIAL, NON-TRANSFERABLE AND LIMITED LICENSE GRANTED TO BRUCE MERWIN, ESQ. BY THE AMERICAN INSTITUTE OF ARCHITECTS ON NOVEMBER 14, 2014.

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TABLE OF ARTICLES 1 THE CONTRACT DOCUMENTS 2 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION DATE 3 CONTRACT SUM 4 PAYMENT 5 INSURANCE 6 GENERAL PROVISIONS 7 OWNER 8 CONTRACTOR 9 ARCHITECT 10 CHANGES IN THE WORK 11 TIME 12 PAYMENTS AND COMPLETION 13 PROTECTION OF PERSONS AND PROPERTY 14 CORRECTION OF WORK 15 MISCELLANEOUS PROVISIONS 16 TERMINATION OF THE CONTRACT 17 OTHER TERMS AND CONDITIONS ARTICLE 1 THE CONTRACT DOCUMENTS § 1.1 The Contractor shall complete the Work described in the Contract Documents for the Project. The Contract Documents consist of

.1 this Agreement signed by the Owner and Contractor;

.2 the Proposal attached hereto as Exhibit A and made part hereof. (Paragraphs deleted) (Table deleted)

.3 addenda prepared by the Architect as follows: Number Date Pages None

.4 written orders for changes in the Work issued after execution of this Agreement; and

.5 other documents, if any, identified as follows:

Exhibit "B" – Intentionally Deleted

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ARTICLE 2 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION The number of calendar days available to the Contractor to substantially complete the Work is the Contract Time. The date of commencement of the Work shall be the date of this Agreement unless otherwise indicated below. (Insert the date of commencement, if it differs from the date of this Agreement.) The date of commencement is ________________. The actual date of Substantial Completion shall be ________________, subject to adjustment as provided in Articles 10 and 11. The actual date of Final Completion shall be __________ (__) days following Substantial Completion, subject to adjustment as provided in Articles 10 and 11. (Paragraph deleted) Contractor has satisfied itself that the dates of Substantial Completion and Final Completion as set forth above have been determined so as to provide sufficient time for Contractor to substantially complete and then finally complete the Work within such time periods. The Contractor will provide sufficient supervision, labor, equipment and materials to assure the most efficient and expeditious construction process. If the Contractor is behind schedule to such an extent that the Contractor will be unable to meet either of the completion dates set forth above, as such dates may be extended pursuant to the terms of this Agreement, the Contractor shall employ such additional forces, obtain such additional equipment, employ such additional supervision and pay such additional overtime wages as may be required to place the progress of the Work on schedule, as required for timely Substantial Completion and Final Completion. ARTICLE 3 CONTRACT SUM § 3.1 Subject to additions and deductions in accordance with Article 10, the Contract Sum is: $___________. § 3.2 For purposes of payment, the Contract Sum includes the following values related to portions of the Work: (Itemize the Contract Sum among the major portions of the Work.) Portion of Work Value § 3.3 Unit prices, if any, are as follows: (Identify and state the unit price; state the quantity limitations, if any, to which the unit price will be applicable.) Item Units and Limitations Price per Unit § 3.4 Allowances included in the Contract Sum, if any, are as follows: (Identify allowance and state exclusions, if any, from the allowance price.) Item Price § 3.5 The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and hereby accepted by the Owner: (State the numbers or other identification of accepted alternates. If the bidding or proposal documents permit the Owner to accept other alternates subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when that amount expires.) § 3.6 The Contract Sum shall include all items and services necessary for the proper execution and completion of the Work.

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ARTICLE 4 PAYMENT § 4.1 The Owner shall pay the Contractor, in accordance with Article 12, as follows: (Insert below timing for payments and provisions for withholding retainage, if any.) § 4.1.2 Payment shall be made based on Contractor’s invoice(s) within ten (10) days following Owner’s approval of Final Completion of the Work. Owner shall have the right to pay Contractor within ten (10) days following Substantial Completion with a sum sufficient to increase the total payment in the amount of one hundred percent (100%) of the Contract Sum, less such amounts as the Owner shall determine for incomplete and unsettled claims as provided in the Contract Documents, including the value assigned to punchlist items as described below; provided however, that the provisions of this Article 4 are subject to the provisions of Section 12.3.1. If Owner makes a payment following Substantial Completion, Owner shall be entitled to retain 150% of the value assigned to punchlist items by Owner. § 4.1.3 Provided that Contractor has been paid by Owner all sums (or the applicable portion thereof) due to Contractor pursuant to the Agreement (other than under the circumstances of Section 12.3.1 hereof), Contractor shall not voluntarily permit any laborer’s, materialmen’s, mechanic’s, or other similar liens to be filed or otherwise imposed on any part of the Work or the property on which the Work is performed. If any laborer’s, materialmen’s, mechanic’s, or other similar lien or claim thereof is filed or otherwise imposed against the Property, Contractor, within thirty (30) days after actual notice to Contractor of the filing of such lien or other imposition thereof, shall cause such lien to be released or otherwise discharged, except as to liens which Contractor is contesting in good faith by appropriate action diligently pursued, provided Contractor has notified Owner of the nature of such lien and informed Owner of the type of action being pursued by Contractor and, if requested by Owner, has provided Owner with a surety bond reasonably satisfactory to Owner, sufficient to cover such claim in the event Contractor is unsuccessful in contesting same or has made other arrangements reasonably satisfactory to Owner. If, however, Contractor, within the aforesaid thirty (30) day period, does not cause such lien either to be released and discharged forthwith or contests same in the manner provided hereinabove, then Owner shall have the right to pay all sums necessary to obtain such release and discharge and reduce the Contract Sum by the amount of such payments made by Owner. Contractor shall indemnify, defend and hold harmless Owner from all claims, losses, demands, causes of action or suits of whatever nature arising out of any such lien or that part of the Work covered thereby. § 4.1.4 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor within ten (10) days after

.1 the Contractor has fully performed the Contract as confirmed by the Owner except for the Contractor’s responsibility to correct Work as provided in Article 14, and to satisfy other requirements, if any, which extend beyond final payment;

.2 Contractor delivers its final lien release ("Contractor’s Final Lien Release") in the form attached hereto as Exhibit "C" and made part hereof for all purposes; and

.3 Contractor delivers conditional final lien releases (in the form attached hereto as Exhibit "D" and made part hereof for all purposes) from all subcontractors and suppliers providing services, labor and/or materials to the Project, if any, with unconditional final lien releases in the form attached hereto as Exhibit "D" from all subcontractors and suppliers being delivered within ten (10) days following receipt of final payment by Contractor.

§ 4.2 Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at the rate below, or in the absence thereof, at the legal rate prevailing at the place of the Project. ______ percent (___%) per annum ARTICLE 5 INSURANCE § 5.1 The Contractor shall (Paragraphs deleted) purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located insurance for protection from claims under workers’ compensation acts and other employee benefit acts which are applicable, claims for damages because of bodily injury, including death, and claims for damages, other than to the Work itself, to property which may arise out of or result from the Contractor’s operations under the Contract, whether such operations be by the Contractor or by a Subcontractor or anyone

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directly or indirectly employed by any of them. Certificates of Insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. Contractor’s insurance as required by Article 5 shall include the insurance described in the certificate of insurance attached hereto as Exhibit "E" and made part hereof for all purposes, which insurance shall be maintained by Contractor throughout the term of this Agreement. The Certificate of Insurance includes waiver of subrogation endorsements and additional insured endorsements required by the Owner. Each policy of insurance obtained by Contractor pursuant to the Contract shall provide (i) that such policy shall not be canceled, endorsed, altered or re-issued to effect a change in coverage for any reason or to any extent whatsoever unless the insured shall have first given Owner at least fifteen (15) days prior written notice; (ii) that Owner may, but shall not be obligated to, make premium payments to prevent the cancellation, endorsement, alteration or re-issuance of such policy, and any premium payments paid by Owner shall be credited against the Contract Sum; (iii) that all insurance policies shall be payable to Contractor and Owner as their respective interests may appear; (iv) as to the Contractor’s commercial general liability insurance that it is primary as to any commercial general liability insurance carried by the Owner with respect to the actual omissions of the Contractor, and Owner shall be listed as additional insureds pursuant to endorsement form with no qualifications with respect to the acts or omissions of the Contractor attached hereto as Exhibit "E", and (v) the Contractor’s worker’s compensation coverage and liability coverage shall contain waiver of subrogation endorsements in favor of the Owner. (Table deleted) § 5.2 The Owner shall provide property insurance to cover the value of the Owner’s property, including all-risk coverage with respect to the Work provided under this Agreement. The Contractor is entitled to receive an increase in the Contract Sum equal to the insurance proceeds related to a loss for damage to the Work covered by the Owner’s property insurance. § 5.3 The Contractor shall obtain an endorsement to its general liability insurance policy to cover the Contractor’s obligations under Section 8.12. § 5.4 Each party shall provide certificates of insurance showing their respective coverages prior to commencement of the Work. § 5.5 Unless specifically precluded by the Owner’s property insurance policy, the Owner and Contractor waive all rights against (1) each other and any of their subcontractors, suppliers, agents and employees, each of the other; and (2) the Architect, Architect’s consultants and any of their agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance or other insurance applicable to the Work. § 5.6 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five (5) days after occurrence of loss to the Owner’s exercise of this power. If such objection is made, the dispute shall be resolved in the manner selected by the Owner and Contractor as the method of binding dispute resolution in the Agreement. If the Owner and Contractor have selected arbitration as the method of binding dispute resolution, the Owner as fiduciary shall make settlement with insurers or, in the case of a dispute over distribution of insurance proceeds, in accordance with the directions of the arbitrators. ARTICLE 6 GENERAL PROVISIONS § 6.1 THE CONTRACT The Contract represents the entire and integrated agreement between the parties and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a written modification in accordance with Article 10. § 6.2 THE WORK The term "Work" means the construction and services required by the Contract Documents, and includes all other labor, materials, equipment and services provided, or to be provided, by the Contractor to fulfill the Contractor’s obligations. § 6.3 INTENT The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all. Performance by Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results.

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§ 6.4 OWNERSHIP AND USE OF ARCHITECT’S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS Documents prepared by the Architect are instruments of the Architect’s service for use solely with respect to this Project. The Architect shall retain all common law, statutory and other reserved rights, including the copyright. The Contractor, subcontractors, sub-subcontractors, and material or equipment suppliers are authorized to use and reproduce the instruments of service solely and exclusively for execution of the Work. The instruments of service may not be used for other Projects or for additions to this Project outside the scope of the Work without the specific written consent of the Architect. ARTICLE 7 OWNER § 7.1 INFORMATION AND SERVICES REQUIRED OF THE OWNER § 7.1.1 If requested by the Contractor, the Owner shall furnish all necessary surveys and a legal description of the site. § 7.1.2 Except for permits and fees that are the responsibility of the Contractor under the Contract Documents, the Owner shall obtain and pay for other necessary approvals, easements, assessments and charges. § 7.2 OWNER’S RIGHT TO STOP THE WORK If the Contractor fails to correct Work which is not in accordance with the Contract Documents, the Owner may direct the Contractor in writing to stop the Work until the correction is made. § 7.3 OWNER’S RIGHT TO CARRY OUT THE WORK If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies, correct such deficiencies. In such case, the Contract Sum shall be adjusted to deduct the cost of correction from payments due the Contractor. § 7.4 OWNER’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS § 7.4.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner’s own forces, and to award separate contracts in connection with other portions of the Project. § 7.4.2 The Contractor shall coordinate and cooperate with the Owner’s own forces and separate contractors employed by the Owner. § 7.4.3 Costs caused by delays or by improperly timed activities or defective construction shall be borne by the party responsible therefor. ARTICLE 8 CONTRACTOR § 8.1 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR § 8.1.1 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. § 8.1.2 The Contractor shall carefully study and compare the Contract Documents with each other and with information furnished by the Owner. Before commencing activities, the Contractor shall (1) take field measurements and verify field conditions; (2) carefully compare this and other information known to the Contractor with the Contract Documents; and (3) promptly report errors, inconsistencies or omissions discovered to the Architect. § 8.1.3 Because the Contract Documents are complementary, the Contractor shall, before starting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Section 7.1.1, shall take field measurements of any existing conditions related to that portion of the Work and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the Architect any errors, inconsistencies, or omissions discovered by or made known to the Contractor as a request for information in such form as the Architect may require. It is recognized that the

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Contractor’s review is made in the Contractor’s capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the Contract Documents. § 8.1.4 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work for Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all. Performance by Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. All dimensions and clearances necessary to the Work, as indicated on the Drawings and contained in the Specifications, shall be verified by Contractor at the job site before commencing the Work affected thereby. Additionally, if sufficient detailed information is lacking, if Work is required in such a manner as to make it impossible to produce first-class Work, or if discrepancies appear among Contract Documents, then Contractor shall request the Owner’s clarification or interpretation before proceeding with such Work. § 8.1.5 If Contractor performs any Work in conformity with any Contract Document knowing it to be inconsistent with any other Contract Document, or knowing it to be inconsistent with any applicable law, code or regulation, without first specifically requesting and obtaining from the Owner written instructions on how to proceed with respect to such inconsistency, the Contractor shall be obligated to correct such Work according to the direction of the Owner without cost to the Owner. § 8.2 CONTRACTOR’S CONSTRUCTION SCHEDULE The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner’s information the Contractor’s construction schedule for the Work. This schedule will become part of the overall schedule and Contractor will be held accountable for the time durations and dates. § 8.3 SUPERVISION AND CONSTRUCTION PROCEDURES § 8.3.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work. § 8.3.2 The Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the Owner the names of subcontractors or suppliers for each portion of the Work. The Contractor shall not contract with any subcontractor or supplier to whom the Owner or Architect have made a timely and reasonable objection. § 8.4 LABOR AND MATERIALS § 8.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work. § 8.4.2 The Contractor shall enforce strict discipline and good order among the Contractor’s employees and other persons carrying out the Contract Work. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. § 8.5 WARRANTY The Contractor warrants to the Owner and Architect that: (1) materials and equipment furnished under the Contract will be new and of good quality unless otherwise required or permitted by the Contract Documents; (2) the Work will be free from defects not inherent in the quality required or permitted; and (3) the Work will conform to the requirements of the Contract Documents. The Contractor’s warranty excludes remedy for damage or defect caused by Owner’s abuse, alterations to the Work not executed by the Contractor, Owner’s improper or insufficient maintenance, Owner’s improper operation or normal wear and tear under normal usage following Owner’s occupancy of the Project. § 8.6 TAXES The Contractor shall pay sales, consumer, use and similar taxes that are legally required when the Contract is executed. (Paragraphs deleted)

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§ 8.7.2 The Contractor shall comply with and give notices required by agencies having jurisdiction over the Work. If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume full responsibility for such Work and shall bear the attributable costs. The Contractor shall promptly notify the Architect in writing of any known inconsistencies in the Contract Documents with such governmental laws, rules and regulations. § 8.8 SUBMITTALS If applicable, the Contractor shall promptly create, approve in writing and submit to the Owner Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents. Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. § 8.9 USE OF SITE The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits, the Contract Documents and the Owner. § 8.10 CUTTING AND PATCHING The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. § 8.11 CLEANING UP The Contractor shall keep the premises and surrounding area free from accumulation of debris and trash related to the Work. At the completion of the Work, the Contractor shall remove its tools, construction equipment, machinery and surplus material; and shall properly dispose of waste materials. If Contractor fails to do so after two (2) days’ written notice from Owner, Owner may remove same at the Contractor’s expense. In the event Owner undertakes the removal of same from the site of the Project, such removal will in no way qualify or limit Contractor’s obligations under the Contract Documents. § 8.12 INDEMNIFICATION To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Owner’s consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. For purposes of this Agreement, the term "Contractor Group" is used as a reference individually and collectively for Contractor and its parent, subsidiary and affiliated companies, Contractor’s subcontractors and all other parties with whom Contractor has a contractual relationship (with the exception of Owner) and its and all of their officers, directors, employees, agents, assigns, representatives, contractors, and subcontractors, and the subrogees of said parties. Similarly, the term "Owner Group" is used as a reference individually and collectively for Owner and the Owner’s employees, officers, directors, assigns, its parent, subsidiary and affiliated companies, agents, separate contractors, representatives and the subrogees of said parties. Notwithstanding anything contained in this Section 8.12 to the contrary, Contractor shall be liable in any case of illness, injury or death, suffered by any member of Contractor Group’s employees and in any case of loss or damage to any member of Contractor Group’s property, either owned or rented and operated by any member of Contractor Group arising out of or relating to the performance of the Work under the Agreement and REGARDLESS OF WHETHER CAUSED OR BROUGHT ABOUT BY ANY MEMBER OF OWNER GROUP’s NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT OR CONCURRENT NEGLIGENCE), OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY AND INCLUDING PRE-EXISTING CONDITIONS and Contractor shall release, defend, protect, indemnify and hold harmless all members of the Owner Group from and against any loss, cost, claim, obligation to indemnify another, suit, judgment, award or damage (including reasonable attorney’s fees) on account of such illness, injury or death, loss or damage.

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In claims against any person or entity indemnified under this Section 8.12 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section 8.12 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or Subcontractor under workers’ compensation acts, disability benefit acts or other employee benefit acts. ARTICLE 9 ARCHITECT § 9.1 The Owner will cause the Architect listed above to provide limited administration of the Contract as described in the Contract Documents. All references to "Architect" herein shall refer to the Owner, except for those references to Architect relating to additional design work required to be performed by an architect as a result of a construction defect or other default of the Contractor. The Owner’s Representative has the same rights as provided for the Architect in this Article 9, unless otherwise provided in writing by Owner. Notwithstanding anything contained in this Agreement to the contrary, all references to Architect in this Agreement shall refer to the Owner or any architects or engineers designated in writing by Owner to act as "Owner’s Agent". § 9.2 The Architect will visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the Work. § 9.3 The Architect will not have control over or charge of, and will not be responsible for, construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor’s responsibility. The Architect will not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents. (Paragraph deleted) § 9.5 The Architect has authority to reject Work that does not conform to the Contract Documents. § 9.6 If applicable, the Architect will promptly review and approve or take appropriate action upon Contractor’s submittals, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. § 9.7 The Architect will promptly interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request from either the Owner or Contractor. § 9.8 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either and will not be liable for results of interpretations or decisions rendered in good faith. § 9.9 The Architect’s duties, responsibilities and limits of authority as described in the Contract Documents shall not be changed without written consent of the Owner and Contractor and Architect. Consent shall not be unreasonably withheld. ARTICLE 10 CHANGES IN THE WORK § 10.1 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 Contract Sum and Contract Time being adjusted accordingly in writing. The cost or credit to the Owner from a change in the Work shall be determined by mutual agreement of the parties or, in the case of a Construction Change Directive, by the Contractor’s cost of labor, material, equipment, and reasonable overhead and profit. If the cost of any change in the Work cannot be agreed upon, Contractor, provided he receives a written order signed by Owner, shall nevertheless promptly proceed with the Work involved. The cost of such Work shall then be determined by the Architect on the basis of actual cost and savings of those performing the Work attributable to the change, plus ten percent (10%) for profit and overhead. § 10.2 The Architect will have authority to order minor changes in the Work not involving changes in the Contract Sum or the Contract Time and not inconsistent with the intent of the Contract Documents. Such orders shall be in writing and shall be binding on the Owner and Contractor. The Contractor shall carry out such orders promptly.

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§ 10.3 If the Contractor encounters conditions at the site that are (1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, the Contractor shall promptly provide notice to the Owner before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Owner will promptly investigate such conditions and, if the Owner determines that they differ materially and cause an increase or decrease in the Contractor’s cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Owner determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Owner shall promptly notify the Contractor in writing, stating the reasons. If Contractor disputes the Owner’s determination or recommendation, it may proceed as provided in Article 21. § 10.4 Agreement on any Change Order shall constitute a final settlement of all matters relating to the change in the Work which is the subject of the Change Order, including, but not limited to, all direct and indirect costs associated with such change and any and all adjustments to the Contract Sum and the construction schedule. In the event a Change Order increases the Contract Sum, Contractor shall include the Work covered by such Change Orders in Applications for Payment as if such Work were originally part of the Contract Documents. ARTICLE 11 TIME § 11.1 Time limits stated in the Contract Documents are of the essence of the Contract. § 11.2 If the Contractor is delayed at any time in progress of the Work by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor’s control, the Contract Time shall be subject to equitable adjustment. § 11.3 Extensions in the Contract Time shall be granted by Owner only to the extent that such delay: (1) warrants an extension in the scheduled completion of the Work, (2) has not been caused by Contractor, (3) is grounds for an extension in the Contract Time under the Contract Documents, and (4) is of a duration not less than one (1) day. Claims by Contractor for an extension of the Contract Time must be made in writing to Owner within twenty-one (21) days after Contractor discovers the event giving rise to such claim; otherwise, Contractor will be deemed to have waived its right to claim an extension in the Contract Time as a result of the occurrence of such event. § 11.4 Notwithstanding anything contained to the contrary in the Contract Documents, an extension of time in which to complete the Work shall be the Contractor’s sole remedy for delay, any hindrance in performance of the Work, loss in productivity, impact damages or other similar claims unless such delay is caused by acts that are solely the responsibility of the Owner. Owner’s reasonable exercise of any of it rights or remedies under the Contract Documents, regardless of the extent of frequency, shall not under any circumstances be construed as intentional interference with the Contractor’s performance of the Work § 11.5 The Contractor shall be permitted an adjustment as outlined below in the Contract Sum if any delays are caused by the Owner which result in an increase in the Contractor’s general condition costs. The increase in the Contract Sum resulting from such delays shall be limited to the increase, if any, of direct costs incurred by the Contractor in performing the Work as a result of any such delays which cause the Contract Time to be increased. For purposes of this Section 11.5, such direct costs are the reasonable increased costs of Contractor incurred for labor, materials, supplies and equipment, rental costs and machinery and equipment, subcontract costs, additional costs of supervision and field office personnel directly attributable to such increased costs, including the Contractor’s general condition costs, but excluding any profit or fee. ARTICLE 12 PAYMENTS AND COMPLETION § 12.1 CONTRACT SUM The Contract Sum stated in the Agreement, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. § 12.2 APPLICATIONS FOR PAYMENT § 12.2.1 At least twenty days before the date established for each progress payment, but no later than the 5th of any month, the Contractor shall submit to the Architect an itemized invoice or Application for Payment (collectively the

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"Invoice") for Work completed in accordance with the values stated in the Agreement. Such Invoice shall be supported by data substantiating the Contractor’s right to payment as the Owner or Architect may reasonably require. Payments shall be made on the basis of percentage of completion and also may be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment stored, and protected from damage, off the site at a location agreed upon in writing. § 12.2.2 The Contractor warrants that title to all Work covered by an Invoice will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Invoice, all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor’s knowledge, information and belief, be free and clear of liens, claims, security interests or other encumbrances adverse to the Owner’s interests. § 12.3 CERTIFICATES FOR PAYMENT The Architect will, within seven days after receipt of the Contractor’s Invoice, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect determines is properly due, or notify the Contractor and Owner in writing of the Architect’s reasons for withholding certification in whole or in part. § 12.3.1 The Owner is unable to certify payment in the amount of the Invoice, the Owner will notify the Contractor as provided in Section 12.3. The Owner may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Owner’s opinion to protect itself from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Section 8.3.1, because of: .1 defective Work not remedied; .2 third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Contractor; .3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; .4 damage to the Owner or another contractor; .5 reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or .6 persistent failure to carry out the Work in accordance with the Contract Documents. When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld and payment promptly made not later than the time of the next progress payment or final payment hereunder. Notwithstanding anything to the contrary contained in the Contract Documents, the Owner may withhold any payment to the Contractor, if and for so long as the Contractor fails to perform, in any material respect, any of its obligations hereunder or otherwise is in default under any of the Contract Documents; provided, however, that any such holdback shall be limited to an amount sufficient in the reasonable opinion of the Owner to cure any such default or failure of performance by the Contractor. § 12.4 PROGRESS PAYMENTS § 12.4.1 After the Architect has issued a Certificate for Payment, the Owner shall make payment in the manner provided in the Contract Documents. § 12.4.2 The Contractor shall promptly pay each subcontractor and supplier, upon receipt of payment from the Owner, an amount determined in accordance with the terms of the applicable subcontracts and purchase orders. § 12.4.3 The Owner shall not have responsibility for payments to a subcontractor or supplier. § 12.4.4 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the requirements of the Contract Documents.

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§ 12.5 SUBSTANTIAL COMPLETION § 12.5.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so the Owner can occupy or utilize the Work for its intended use. § 12.5.2 When the Work or designated portion thereof is substantially complete, the Architect will make an inspection to determine whether the Work is substantially complete. When the Architect determines that the Work is substantially complete the Architect shall prepare a Certificate of Substantial Completion that shall establish the date of Substantial Completion, shall establish the responsibilities of the Owner and Contractor, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. § 12.6 FINAL COMPLETION AND FINAL PAYMENT § 12.6.1 Upon receipt of a final Invoice, the Architect will inspect the Work. When the Architect finds the Work acceptable and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment. § 12.6.2 Final payment shall not become due until the Contractor submits to the Owner releases and waivers of liens, and data establishing payment or satisfaction of obligations, such as receipts, claims, security interests or encumbrances arising out of the Contract, including, without limitation, Contractor’s final release of liens in the form attached hereto as Exhibit "C" contemporaneously with Contractor’s receipt of final payment.. § 12.6.3 The Owner’s final payment and release of the punchlist holdback and any other sums withheld by Owner pursuant to Article 4 and Section 12.3.1, including retainage, to the Contractor shall be made no later than thirty-one (31) days after the Owner’s confirmation that Substantial Completion has occurred, provided that all punchlist items have been completed. § 12.6.4 Acceptance of final payment by the Contractor, a subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Invoice. ARTICLE 13 PROTECTION OF PERSONS AND PROPERTY The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs, including all those required by law in connection with performance of the Contract. The Contractor shall take reasonable precautions to prevent damage, injury or loss to employees on the Work, the Work and materials and equipment to be incorporated therein, and other property at the site or adjacent thereto. The Contractor shall promptly remedy damage and loss to property caused in whole or in part by the Contractor, or by anyone for whose acts the Contractor may be liable. ARTICLE 14 CORRECTION OF WORK § 14.1 The Contractor shall promptly correct Work rejected by the Architect as failing to conform to the requirements of the Contract Documents. The Contractor shall bear the cost of correcting such rejected Work, including the costs of uncovering, replacement and additional testing. § 14.2 In addition to the Contractor’s other obligations including warranties under the Contract, the Contractor shall, for a period of one year after Substantial Completion, correct work not conforming to the requirements of the Contract Documents. § 14.3 If the Contractor fails to correct nonconforming Work within a reasonable time, not to exceed 30 days following written notice from Owner, the Owner may correct it in accordance with Section 7.3. § 14.4 Contractor does hereby assign and transfer to Owner all warranties heretofore or hereafter received by Contractor with respect to materials and equipment utilized in the Work and services furnished by subcontractors or vendors; provided however Owner and Contractor agree that during the warranty period thereafter referred to, Contractor shall be obligated to enforce such warranties at no cost or expense to Owner.

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ARTICLE 15 MISCELLANEOUS PROVISIONS § 15.1 ASSIGNMENT OF CONTRACT Neither party to the Contract shall assign the Contract as a whole without written consent of the other. § 15.2 TESTS AND INSPECTIONS § 15.2.1 At the appropriate times, the Contractor shall arrange and bear cost of tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities. § 15.2.2 If the Architect requires additional testing, the Contractor shall perform those tests. § 15.2.3 The Owner shall bear cost of tests, inspections or approvals that do not become requirements until after the Contract is executed. § 15.3 GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located. ARTICLE 16 TERMINATION OF THE CONTRACT § 16.1 TERMINATION BY THE CONTRACTOR If the Architect fails to certify payment as provided in Section 12.3 for a period of 30 days through no fault of the Contractor, or if the Owner fails to make payment as provided in Section 12.4.1 for a period of 30 days, the Contractor may, upon seven additional days’ written notice to the Owner and Architect, terminate the Contract and recover from the Owner payment for Work executed including reasonable overhead and profit, and costs incurred by reason of such termination. § 16.2 TERMINATION BY THE OWNER FOR CAUSE § 16.2.1 The Owner may terminate the Contract if the Contractor

.1 repeatedly refuses or fails to supply enough properly skilled workers or proper materials;

.2 fails to make payment to subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the subcontractors;

.3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or

.4 is otherwise guilty of substantial breach of a provision of the Contract Documents. § 16.2.2 When any of the above reasons exist, the Owner, after consultation with the Architect, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor’s surety, if any, seven days’ written notice, terminate employment of the Contractor and may

.1 take possession of the site and of all materials thereon owned by the Contractor, and

.2 finish the Work by whatever reasonable method the Owner may deem expedient. § 16.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 16.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. § 16.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor shall pay the difference to the Owner. This obligation for payment shall survive termination of the Contract. (Paragraphs deleted) § 16.2.5 In addition to the circumstances outlined in Section 16.2 entitling Owner to perform Work on behalf of Contractor or terminate the Contract, if (i) Contractor becomes insolvent, or makes a transfer in fraud of creditors, or makes an assignment for the benefit of creditors; (ii) Contractor files or has filed against it a petition under any chapter or section of the United States Bankruptcy Code, as amended, or under any similar law or statute of the United States or any state thereof, or shall be adjudged bankrupt or insolvent in any legal proceeding; (iii) a receiver or trustee is appointed for all or a significant portion of the assets of Contractor; or (iii) Contractor actually or constructively abandons, or puts Owner on actual or constructive notice that it intends to abandon, the Project, Owner may exercise the remedies provided in Sections 16.2.2 and 16.2.4.

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The Owner may, at any time, terminate the Contract for the owner’s convenience and without cause. The Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination, but not profit on the Work not executed. ARTICLE 17 OTHER TERMS AND CONDITIONS (Insert any other terms or conditions below.) § 17.1 Non-Conforming Work. When any non-conforming work is found or confirmed by the Architect, the entire area of Work involved shall be corrected unless the Contractor can completely define the limits of the non-conforming work. Additional testing, sampling or inspecting needed to define non-conforming work shall be at the Contractor’s expense. Contractor shall employ the Owner’s independent testing laboratory, or a mutually satisfactory independent testing laboratory if such services are required. All corrected work shall be re-tested at the Contractor’s expense. Extra architectural or engineering services required by Contractor to analyze non-conforming work shall be paid for by Contractor. § 17.2 Third Party Beneficiary. Owner shall be deemed to be a third party beneficiary of each subcontract and may, if Owner elects, require (following Contractor’s default under this Agreement or Owner’s termination of this Agreement), that the Subcontractor perform all of the then unperformed duties and obligations of such Subcontractor thereunder for the benefit of Owner (rather than Contractor); however, in the event that Owner requires any such performance by a Subcontractor for the direct benefit of Owner, then Owner shall be bound and obligated to pay such Subcontractor for all work done by such Subcontractor (1) to date (to-wit: the reasonable value of that portion of the subcontract performed by such Subcontractor) and (ii) subsequent to the date that Owner elects to invoke such rights. Owners’ liability in this connection, however, is not to exceed the amount obtained by subtracting from the subcontract price the total of all sums paid by Contractor to Subcontractor prior to Owner’s invoking its right hereunder with respect to direct performance by Subcontractor for Owner. In the event that Owner elects to invoke such rights, Owner shall give written notice of such election to Contractor and such Subcontractors. § 17.3 Notice. Any notice provided or permitted to be given under the Contract Documents must be in writing and may be served by depositing same in the United States mail, addressed to the party to be notified, postage prepaid, by registered or certified mail, with return receipt requested; by fax (with confirmation of receipt); by email (with confirmation of being sent); or by personal delivery service. For purposes of notice, the addresses of the parties shall be as set forth on page one (1) hereof. § 17.4 Priority of Documents. In the event of any inconsistency between the provisions of this instrument and the terms and conditions of any of the other Contract Documents, the provisions of this instrument shall control. In connection therewith, the most recently issued document takes precedence over previous issues of the same document. The order of precedence is as follows with highest authority listed as "01". 01 Modifications to this Agreement; 02 This Agreement; 03 Drawings and Specifications, if any; and 04 The Proposal, if any. § 17.5 Owner’s and Contractor’s Right To Cure Default. In no event will Contractor be entitled to terminate the Contract if Owner cures the default which provides the basis for such termination prior to the expiration of the applicable curative period specified in the Contract or, if no such curative period exists, within a reasonable period of time, not to exceed twenty (20) days. In no event will Owner be entitled to terminate the Contract if Contractor cures the default which provides the basis for such termination prior to the expiration of the applicable curative period specified in the Contract, or, if no such curative period exists, within a reasonable period of time, not to exceed twenty (20) days.

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§ 17.6 Miscellaneous. No waiver of a right provided by this Contract shall be effective unless in writing and signed by the party against whom enforcement of the waiver is sought. No waiver by a party of any breach of any provision of this Contract shall be construed as a waiver of any later breach. All representations, agreements and disclaimers of Contractor and Owner that are contained in this Contract shall remain in full effect after Final Completion and shall not be replaced or limited by any other document or agreement. This Contract is binding upon the permitted heirs, executors, administrators, successors and assigns of the parties and those persons who would have a claim by, through or under the parties. § 17.7 Owner’s Representative. The Owner’s Representative is: ____________________, phone number: ____________________, e-mail address: ____________________. The Owner’s Representative is authorized to take all actions permitted and/or required to be taken by the Owner under the Contract Documents. In addition to Owner’s Representative, ____________________, ____________________, and ____________________ are authorized to give directions to the Contractor with respect to the Work, but not sign any Contract Documents, including any Change Orders. § 17.8 Contractor’s Representative. The Contractor’s Representative is ____________________, phone number ____________________, e-mail address: ____________________. The Contractor’s Representative is authorized to take all actions permitted and/or required to be taken by the Contractor under the Contract Documents. § 17.9 Claims and Disputes. Except as otherwise expressly set forth in this Agreement, Owner and Contractor agree to negotiate all "Disputes" (hereafter defined) between them in good faith for a period of fifteen (15) days from the date of notice prior to mediating any Dispute, and each such negotiation shall involve at least one senior officer, partners, manager of each party who is not otherwise involved with the day-to-day administration of this Agreement. "Disputes", as used herein, shall mean any dispute or claim between the parties pursuant to performance or the lack of performance of any rights or obligations under this Agreement, including, without limitation, the Owner’s decisions pursuant to Articles 9 and 12 of this Agreement. § 17.9.1 If the Owner and Contractor are unable to resolve a Dispute as provided in Section 17.9. above, then such Dispute shall be subject to mediation as a condition precedent to the institution of legal proceedings under applicable law. Any request for mediation shall be filed in writing with the other party to the Agreement within thirty (30) days after expiration of the thirty (30) day good faith negotiation period required by Section 17.9 of the Agreement. Within twenty (20) days after a party’s receipt of such request for mediation, the parties will attempt in good faith to agree upon a qualified mediator. If the parties cannot agree upon a qualified mediator within such twenty (20) day period, either party may seek to have a mediator appointed by any federal district court judge sitting in the Northern District of the State of Texas. If a replacement mediator becomes necessary for any reason, and the parties cannot timely agree on such replacement mediator, any party may seek to have a replacement mediator appointed by any federal district court judge sitting in the Northern District of the State of Texas whose district includes the Project. Unless the parties mutually agree otherwise, the mediation will be conducted by the mediator generally in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect at the time of the mediation to extent such Rules are not contrary to or inconsistent with the express terms and conditions of this Section 17.9.1. Mediation shall proceed in advance of legal proceedings, which shall be stayed pending mediation for a period of ninety (90) days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. Any party to the Agreement may bring as summary proceedings (including, without limitation, a plea in abatement or motion to stay further proceedings) an action in court to compel mediation of any Dispute in accordance with the Agreement, except for Disputes, if any, expressly excluded from Section 17.9 of the Agreement. All statutes of limitation that would otherwise be applicable shall apply to any mediation proceeding. Any attorney-client privilege and other protection against disclosure of privileged or confidential information including, without limitation, any protection afforded the work-product of any attorney, that could otherwise be claimed by any party shall be available to, and may be claimed by, any such party in any mediation proceeding. No party waives any attorney-client privilege or any other protection against disclosure of privileged or confidential information by reason of anything contained in, or done pursuant to, the mediation provisions of the Agreement. Each party shall bear its own expenses of mediation and the parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in the county where the Project is located, unless another location is mutually

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agreed upon by the parties. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. If the mediation does not resolve the Dispute, thereafter the parties may exercise all legal and equitable remedies under applicable law. No provision of this Section 17.9.1 will limit the right of any party to the Agreement exercise self-help remedies or to obtain provisional or ancillary remedies from a court of competent jurisdiction before, after, or during the pendency of any mediation, and the exercise of any such remedy does not waive the right of either party to require or resort to mediation. Continuing Contract Performance. Pending final resolution of a Dispute, including mediation and/or litigation, unless otherwise agreed in writing, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make undisputed payments in accordance with the Contract Documents. List of Exhibits: Exhibit "A" – Proposal Exhibit "B" – Intentionally Deleted Exhibit "C" – Contractor’s Final Release of Liens Exhibit "D" – Subcontractor’s Final Release of Liens Exhibit "E" – Contractor’s Certificate of Insurance/Endorsements This Agreement entered into as of the day and year first written above. (If required by law, insert cancellation period, disclosures or other warning statements above the signatures.) OWNER CONTRACTOR

______________________________ By:_______________________________________ Name:_____________________________________ Title:______________________________________

______________________________ By:_______________________________________ Name:_____________________________________ Title:______________________________________

Additions and Deletions Report for AIA

®

Document A105TM – 2007 This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text.

Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 13:18:14 on 11/17/2014.

Additions and Deletions Report for AIA Document A105™ – 2007 (formerly A105™ – 1993 and A205™ – 1993). Copyright © 1993 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:18:14 on 11/17/2014 under Order No.5732970927_1 which expires on 06/29/2015, and is not for resale. User Notes: (1917864806)

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PAGE 1 AGREEMENT made as of the ______ day of ___________ in the year 2014 (In words, indicate day, month and year.)year) … (Name, legal status, address and other information) _______________________ _______________________ _______________________ _______________________ Attn: _______________________ … (Name, legal status, address and other information) _______________________ _______________________ _______________________ _______________________ Attn: _______________________ … _______________________ _______________________ _______________________ … (Name, legal status, address and other information) N/A The Owner and Contractor agree as follows. #12051127 v.1 11/17/2014


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AIA CONTRACT DOCUMENTS ARE COPYRIGHTED BY THE AMERICAN INSTITUTE OF ARCHITECTS. SAMPLES OF AIA CONTRACT DOCUMENTS ARE PROVIDED PURSUANT TO A SPECIAL, NON-TRANSFERABLE AND LIMITED LICENSE GRANTED TO BRUCE MERWIN, ESQ. BY THE AMERICAN INSTITUTE OF ARCHITECTS ON NOVEMBER 14, 2014. PAGE 2

.2 the drawings and specifications prepared by the Architect, dated , and enumerated as follows:Proposal attached hereto as Exhibit A and made part hereof.

Drawings: Number Title Date

Specifications:

Section Title Pages

…

None …

Exhibit "B" – Intentionally Deleted

PAGE 3 The number of calendar days available to the Contractor to substantially complete the Work is the Contract Time. The date of commencement of the Work shall be the date of this Agreement unless otherwise indicated below. The Contractor shall substantially complete the Work, no later than ( ) calendar days from the date of commencement, (Insert the date of commencement, if it differs from the date of this Agreement.) The date of commencement is ________________. The actual date of Substantial Completion shall be ________________, subject to adjustment as provided in Articles 10 and 11. The actual date of Final Completion shall be __________ (__) days following Substantial Completion, subject to adjustment as provided in Article Articles 10 and Article 11. (Insert the date of commencement, if it differs from the date of this Agreement.) Contractor has satisfied itself that the dates of Substantial Completion and Final Completion as set forth above have been determined so as to provide sufficient time for Contractor to substantially complete and then finally complete the Work within such time periods. The Contractor will provide sufficient supervision, labor, equipment and materials to assure the most efficient and expeditious construction process. If the Contractor is behind schedule to such an extent that the Contractor will be unable to meet either of the completion dates set forth above, as such dates may be extended pursuant to the terms of this Agreement, the Contractor shall employ such additional forces, obtain such additional equipment, employ such additional supervision and pay such additional overtime wages as may be required to place the progress of the Work on schedule, as required for timely Substantial Completion and Final Completion.


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… § 3.1 Subject to additions and deductions in accordance with Article 10, the Contract Sum is: $___________. ($ ) … Item Units and Limitations Price per Unit($0.00) PAGE 4 § 4.1 Based on Contractor’s Applications for Payment certified by the Architect, the The Owner shall pay the Contractor, in accordance with Article 12, as follows: (Insert below timing for payments and provisions for withholding retainage, if any.) § 4.1.2 Payment shall be made based on Contractor’s invoice(s) within ten (10) days following Owner’s approval of Final Completion of the Work. Owner shall have the right to pay Contractor within ten (10) days following Substantial Completion with a sum sufficient to increase the total payment in the amount of one hundred percent (100%) of the Contract Sum, less such amounts as the Owner shall determine for incomplete and unsettled claims as provided in the Contract Documents, including the value assigned to punchlist items as described below; provided however, that the provisions of this Article 4 are subject to the provisions of Section 12.3.1. If Owner makes a payment following Substantial Completion, Owner shall be entitled to retain 150% of the value assigned to punchlist items by Owner. § 4.1.3 Provided that Contractor has been paid by Owner all sums (or the applicable portion thereof) due to Contractor pursuant to the Agreement (other than under the circumstances of Section 12.3.1 hereof), Contractor shall not voluntarily permit any laborer’s, materialmen’s, mechanic’s, or other similar liens to be filed or otherwise imposed on any part of the Work or the property on which the Work is performed. If any laborer’s, materialmen’s, mechanic’s, or other similar lien or claim thereof is filed or otherwise imposed against the Property, Contractor, within thirty (30) days after actual notice to Contractor of the filing of such lien or other imposition thereof, shall cause such lien to be released or otherwise discharged, except as to liens which Contractor is contesting in good faith by appropriate action diligently pursued, provided Contractor has notified Owner of the nature of such lien and informed Owner of the type of action being pursued by Contractor and, if requested by Owner, has provided Owner with a surety bond reasonably satisfactory to Owner, sufficient to cover such claim in the event Contractor is unsuccessful in contesting same or has made other arrangements reasonably satisfactory to Owner. If, however, Contractor, within the aforesaid thirty (30) day period, does not cause such lien either to be released and discharged forthwith or contests same in the manner provided hereinabove, then Owner shall have the right to pay all sums necessary to obtain such release and discharge and reduce the Contract Sum by the amount of such payments made by Owner. Contractor shall indemnify, defend and hold harmless Owner from all claims, losses, demands, causes of action or suits of whatever nature arising out of any such lien or that part of the Work covered thereby. § 4.1.4 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor within ten (10) days after

.1 the Contractor has fully performed the Contract as confirmed by the Owner except for the Contractor’s responsibility to correct Work as provided in Article 14, and to satisfy other requirements, if any, which extend beyond final payment;

.2 Contractor delivers its final lien release ("Contractor’s Final Lien Release") in the form attached hereto as Exhibit "C" and made part hereof for all purposes; and

.3 Contractor delivers conditional final lien releases (in the form attached hereto as Exhibit "D" and made part hereof for all purposes) from all subcontractors and suppliers providing services, labor and/or materials to the Project, if any, with unconditional final lien releases in the form attached hereto as Exhibit "D" from all subcontractors and suppliers being delivered within ten (10) days following receipt of final payment by Contractor.

…


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% ______ percent (___%) per annum … § 5.1 The Contractor shall provide Contractor’s general liability and other insurance as follows: (Insert specific insurance requirements and limits.) purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located insurance for protection from claims under workers’ compensation acts and other employee benefit acts which are applicable, claims for damages because of bodily injury, including death, and claims for damages, other than to the Work itself, to property which may arise out of or result from the Contractor’s operations under the Contract, whether such operations be by the Contractor or by a Subcontractor or anyone directly or indirectly employed by any of them. Certificates of Insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. Contractor’s insurance as required by Article 5 shall include the insurance described in the certificate of insurance attached hereto as Exhibit "E" and made part hereof for all purposes, which insurance shall be maintained by Contractor throughout the term of this Agreement. The Certificate of Insurance includes waiver of subrogation endorsements and additional insured endorsements required by the Owner. Each policy of insurance obtained by Contractor pursuant to the Contract shall provide (i) that such policy shall not be canceled, endorsed, altered or re-issued to effect a change in coverage for any reason or to any extent whatsoever unless the insured shall have first given Owner at least fifteen (15) days prior written notice; (ii) that Owner may, but shall not be obligated to, make premium payments to prevent the cancellation, endorsement, alteration or re-issuance of such policy, and any premium payments paid by Owner shall be credited against the Contract Sum; (iii) that all insurance policies shall be payable to Contractor and Owner as their respective interests may appear; (iv) as to the Contractor’s commercial general liability insurance that it is primary as to any commercial general liability insurance carried by the Owner with respect to the actual omissions of the Contractor, and Owner shall be listed as additional insureds pursuant to endorsement form with no qualifications with respect to the acts or omissions of the Contractor attached hereto as Exhibit "E", and (v) the Contractor’s worker’s compensation coverage and liability coverage shall contain waiver of subrogation endorsements in favor of the Owner. Type of insurance Limit of liability ($0.00) § 5.2 The Owner shall provide property insurance to cover the value of the Owner’s property, including any all-risk coverage with respect to the Work provided under this Agreement. The Contractor is entitled to receive an increase in the Contract Sum equal to the insurance proceeds related to a loss for damage to the Work covered by the Owner’s property insurance. PAGE 5 § 5.6 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five (5) days after occurrence of loss to the Owner’s exercise of this power. If such objection is made, the dispute shall be resolved in the manner selected by the Owner and Contractor as the method of binding dispute resolution in the Agreement. If the Owner and Contractor have selected arbitration as the method of binding dispute resolution, the Owner as fiduciary shall make settlement with insurers or, in the case of a dispute over distribution of insurance proceeds, in accordance with the directions of the arbitrators. … The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all. Performance by Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. PAGE 6 § 8.1.3 Because the Contract Documents are complementary, the Contractor shall, before starting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Section 7.1.1, shall take field measurements of any existing


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conditions related to that portion of the Work and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the Architect any errors, inconsistencies, or omissions discovered by or made known to the Contractor as a request for information in such form as the Architect may require. It is recognized that the Contractor’s review is made in the Contractor’s capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the Contract Documents. § 8.1.4 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work for Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all. Performance by Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. All dimensions and clearances necessary to the Work, as indicated on the Drawings and contained in the Specifications, shall be verified by Contractor at the job site before commencing the Work affected thereby. Additionally, if sufficient detailed information is lacking, if Work is required in such a manner as to make it impossible to produce first-class Work, or if discrepancies appear among Contract Documents, then Contractor shall request the Owner’s clarification or interpretation before proceeding with such Work. § 8.1.5 If Contractor performs any Work in conformity with any Contract Document knowing it to be inconsistent with any other Contract Document, or knowing it to be inconsistent with any applicable law, code or regulation, without first specifically requesting and obtaining from the Owner written instructions on how to proceed with respect to such inconsistency, the Contractor shall be obligated to correct such Work according to the direction of the Owner without cost to the Owner. The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner’s and Architect’s information a information the Contractor’s construction schedule for the Work. This schedule will become part of the overall schedule and Contractor will be held accountable for the time durations and dates. PAGE 7 § 8.3.2 The Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the Owner through the Architect the names of subcontractors or suppliers for each portion of the Work. The Contractor shall not contract with any subcontractor or supplier to whom the Owner or Architect have made a timely and reasonable objection. … The Contractor warrants to the Owner and Architect that: (1) materials and equipment furnished under the Contract will be new and of good quality unless otherwise required or permitted by the Contract Documents; (2) the Work will be free from defects not inherent in the quality required or permitted; and (3) the Work will conform to the requirements of the Contract Documents. The Contractor’s warranty excludes remedy for damage or defect caused by Owner’s abuse, alterations to the Work not executed by the Contractor, Owner’s improper or insufficient maintenance, Owner’s improper operation or normal wear and tear under normal usage following Owner’s occupancy of the Project. … § 8.7 PERMITS, FEES AND NOTICES § 8.7.1 The Contractor shall obtain and pay for the building permit and other permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work. PAGE 8


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The If applicable, the Contractor shall promptly review, create, approve in writing and submit to the Architect Owner Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents. Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. … The Contractor shall keep the premises and surrounding area free from accumulation of debris and trash related to the Work. At the completion of the Work, the Contractor shall remove its tools, construction equipment, machinery and surplus material; and shall properly dispose of waste materials. If Contractor fails to do so after two (2) days’ written notice from Owner, Owner may remove same at the Contractor’s expense. In the event Owner undertakes the removal of same from the site of the Project, such removal will in no way qualify or limit Contractor’s obligations under the Contract Documents. … To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect’s Owner’s consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. For purposes of this Agreement, the term "Contractor Group" is used as a reference individually and collectively for Contractor and its parent, subsidiary and affiliated companies, Contractor’s subcontractors and all other parties with whom Contractor has a contractual relationship (with the exception of Owner) and its and all of their officers, directors, employees, agents, assigns, representatives, contractors, and subcontractors, and the subrogees of said parties. Similarly, the term "Owner Group" is used as a reference individually and collectively for Owner and the Owner’s employees, officers, directors, assigns, its parent, subsidiary and affiliated companies, agents, separate contractors, representatives and the subrogees of said parties. Notwithstanding anything contained in this Section 8.12 to the contrary, Contractor shall be liable in any case of illness, injury or death, suffered by any member of Contractor Group’s employees and in any case of loss or damage to any member of Contractor Group’s property, either owned or rented and operated by any member of Contractor Group arising out of or relating to the performance of the Work under the Agreement and REGARDLESS OF WHETHER CAUSED OR BROUGHT ABOUT BY ANY MEMBER OF OWNER GROUP’s NEGLIGENCE (INCLUDING ACTIVE, PASSIVE, SOLE, JOINT OR CONCURRENT NEGLIGENCE), OR ANY OTHER THEORY OF LEGAL LIABILITY, INCLUDING STRICT LIABILITY AND INCLUDING PRE-EXISTING CONDITIONS and Contractor shall release, defend, protect, indemnify and hold harmless all members of the Owner Group from and against any loss, cost, claim, obligation to indemnify another, suit, judgment, award or damage (including reasonable attorney’s fees) on account of such illness, injury or death, loss or damage. In claims against any person or entity indemnified under this Section 8.12 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section 8.12 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or Subcontractor under workers’ compensation acts, disability benefit acts or other employee benefit acts. PAGE 9 § 9.1 The Architect will provide Owner will cause the Architect listed above to provide limited administration of the Contract as described in the Contract Documents. The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents.All references to "Architect" herein shall refer to the Owner, except for those references to Architect relating to additional design work required to be performed by an architect as a result of a construction defect or other default of the Contractor. The Owner’s Representative has the same rights as provided for the Architect in this Article 9, unless otherwise provided in writing by Owner.


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Notwithstanding anything contained in this Agreement to the contrary, all references to Architect in this Agreement shall refer to the Owner or any architects or engineers designated in writing by Owner to act as "Owner’s Agent". … § 9.4 Based on the Architect’s observations and evaluations of the Contractor’s Applications for Payment, the Architect will review and certify the amounts due the Contractor. § 9.6 The If applicable, the Architect will promptly review and approve or take appropriate action upon Contractor’s submittals, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. … § 9.9 The Architect’s duties, responsibilities and limits of authority as described in the Contract Documents shall not be changed without written consent of the Owner, Owner and Contractor and Architect. Consent shall not be unreasonably withheld. … § 10.1 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 Contract Sum and Contract Time being adjusted accordingly in writing. If the Owner and Contractor can not agree to a change in the Contract Sum, the Owner shall pay the Contractor its actual cost plus reasonable overhead and profit. The cost or credit to the Owner from a change in the Work shall be determined by mutual agreement of the parties or, in the case of a Construction Change Directive, by the Contractor’s cost of labor, material, equipment, and reasonable overhead and profit. If the cost of any change in the Work cannot be agreed upon, Contractor, provided he receives a written order signed by Owner, shall nevertheless promptly proceed with the Work involved. The cost of such Work shall then be determined by the Architect on the basis of actual cost and savings of those performing the Work attributable to the change, plus ten percent (10%) for profit and overhead. PAGE 10 § 10.3 If concealed or unknown physical conditions are encountered at the site the Contractor encounters conditions at the site that are (1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or from those conditions ordinarily found to exist, the Contract Sum and Contract Time shall be subject to equitable adjustment.(2) unknown physical conditions of an unusual nature, that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, the Contractor shall promptly provide notice to the Owner before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Owner will promptly investigate such conditions and, if the Owner determines that they differ materially and cause an increase or decrease in the Contractor’s cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Owner determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Owner shall promptly notify the Contractor in writing, stating the reasons. If Contractor disputes the Owner’s determination or recommendation, it may proceed as provided in Article 21. § 10.4 Agreement on any Change Order shall constitute a final settlement of all matters relating to the change in the Work which is the subject of the Change Order, including, but not limited to, all direct and indirect costs associated with such change and any and all adjustments to the Contract Sum and the construction schedule. In the event a Change Order increases the Contract Sum, Contractor shall include the Work covered by such Change Orders in Applications for Payment as if such Work were originally part of the Contract Documents. …


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§ 11.3 Extensions in the Contract Time shall be granted by Owner only to the extent that such delay: (1) warrants an extension in the scheduled completion of the Work, (2) has not been caused by Contractor, (3) is grounds for an extension in the Contract Time under the Contract Documents, and (4) is of a duration not less than one (1) day. Claims by Contractor for an extension of the Contract Time must be made in writing to Owner within twenty-one (21) days after Contractor discovers the event giving rise to such claim; otherwise, Contractor will be deemed to have waived its right to claim an extension in the Contract Time as a result of the occurrence of such event. § 11.4 Notwithstanding anything contained to the contrary in the Contract Documents, an extension of time in which to complete the Work shall be the Contractor’s sole remedy for delay, any hindrance in performance of the Work, loss in productivity, impact damages or other similar claims unless such delay is caused by acts that are solely the responsibility of the Owner. Owner’s reasonable exercise of any of it rights or remedies under the Contract Documents, regardless of the extent of frequency, shall not under any circumstances be construed as intentional interference with the Contractor’s performance of the Work § 11.5 The Contractor shall be permitted an adjustment as outlined below in the Contract Sum if any delays are caused by the Owner which result in an increase in the Contractor’s general condition costs. The increase in the Contract Sum resulting from such delays shall be limited to the increase, if any, of direct costs incurred by the Contractor in performing the Work as a result of any such delays which cause the Contract Time to be increased. For purposes of this Section 11.5, such direct costs are the reasonable increased costs of Contractor incurred for labor, materials, supplies and equipment, rental costs and machinery and equipment, subcontract costs, additional costs of supervision and field office personnel directly attributable to such increased costs, including the Contractor’s general condition costs, but excluding any profit or fee. … § 12.2.1 At least ten twenty days before the date established for each progress payment, but no later than the 5th of any month, the Contractor shall submit to the Architect an itemized invoice or Application for Payment (collectively the "Invoice") for Work completed in accordance with the values stated in the Agreement. Such Application Invoice shall be supported by data substantiating the Contractor’s right to payment as the Owner or Architect may reasonably require. Payments shall be made on the basis of percentage of completion and also may be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment stored, and protected from damage, off the site at a location agreed upon in writing. § 12.2.2 The Contractor warrants that title to all Work covered by an Application for Payment Invoice will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment, Invoice, all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor’s knowledge, information and belief, be free and clear of liens, claims, security interests or other encumbrances adverse to the Owner’s interests. PAGE 11 The Architect will, within seven days after receipt of the Contractor’s Application for Payment, Invoice, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect determines is properly due, or notify the Contractor and Owner in writing of the Architect’s reasons for withholding certification in whole or in part. § 12.3.1 The Owner is unable to certify payment in the amount of the Invoice, the Owner will notify the Contractor as provided in Section 12.3. The Owner may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Owner’s opinion to protect itself from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Section 8.3.1, because of: .1 defective Work not remedied;


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.2 third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Contractor; .3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; .4 damage to the Owner or another contractor; .5 reasonable evidence that the Work will not be completed within the Contract Time and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or .6 persistent failure to carry out the Work in accordance with the Contract Documents. When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld and payment promptly made not later than the time of the next progress payment or final payment hereunder. Notwithstanding anything to the contrary contained in the Contract Documents, the Owner may withhold any payment to the Contractor, if and for so long as the Contractor fails to perform, in any material respect, any of its obligations hereunder or otherwise is in default under any of the Contract Documents; provided, however, that any such holdback shall be limited to an amount sufficient in the reasonable opinion of the Owner to cure any such default or failure of performance by the Contractor. … § 12.4.3 Neither the Owner nor the Architect shall The Owner shall not have responsibility for payments to a subcontractor or supplier. PAGE 12 § 12.6.1 Upon receipt of a final Application for Payment, Invoice, the Architect will inspect the Work. When the Architect finds the Work acceptable and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment. § 12.6.2 Final payment shall not become due until the Contractor submits to the Architect Owner releases and waivers of liens, and data establishing payment or satisfaction of obligations, such as receipts, claims, security interests or encumbrances arising out of the Contract.of the Contract, including, without limitation, Contractor’s final release of liens in the form attached hereto as Exhibit "C" contemporaneously with Contractor’s receipt of final payment.. § 12.6.3 Acceptance of final payment by the Contractor, a subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment.The Owner’s final payment and release of the punchlist holdback and any other sums withheld by Owner pursuant to Article 4 and Section 12.3.1, including retainage, to the Contractor shall be made no later than thirty-one (31) days after the Owner’s confirmation that Substantial Completion has occurred, provided that all punchlist items have been completed. § 12.6.4 Acceptance of final payment by the Contractor, a subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Invoice. … § 14.3 If the Contractor fails to correct nonconforming Work within a reasonable time, not to exceed 30 days following written notice from Owner, the Owner may correct it in accordance with Section 7.3. § 14.4 Contractor does hereby assign and transfer to Owner all warranties heretofore or hereafter received by Contractor with respect to materials and equipment utilized in the Work and services furnished by subcontractors or vendors; provided however Owner and Contractor agree that during the warranty period thereafter referred to, Contractor shall be obligated to enforce such warranties at no cost or expense to Owner.


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PAGE 13 § 16.3 TERMINATION BY THE OWNER FOR CONVENIENCE The Owner may, at any time, terminate the Contract for the Owner’s convenience and without cause. The Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination, along with reasonable overhead and profit on the Work not executed. § 16.2.5 In addition to the circumstances outlined in Section 16.2 entitling Owner to perform Work on behalf of Contractor or terminate the Contract, if (i) Contractor becomes insolvent, or makes a transfer in fraud of creditors, or makes an assignment for the benefit of creditors; (ii) Contractor files or has filed against it a petition under any chapter or section of the United States Bankruptcy Code, as amended, or under any similar law or statute of the United States or any state thereof, or shall be adjudged bankrupt or insolvent in any legal proceeding; (iii) a receiver or trustee is appointed for all or a significant portion of the assets of Contractor; or (iii) Contractor actually or constructively abandons, or puts Owner on actual or constructive notice that it intends to abandon, the Project, Owner may exercise the remedies provided in Sections 16.2.2 and 16.2.4. The Owner may, at any time, terminate the Contract for the owner’s convenience and without cause. The Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination, but not profit on the Work not executed. PAGE 14 § 17.1 Non-Conforming Work. When any non-conforming work is found or confirmed by the Architect, the entire area of Work involved shall be corrected unless the Contractor can completely define the limits of the non-conforming work. Additional testing, sampling or inspecting needed to define non-conforming work shall be at the Contractor’s expense. Contractor shall employ the Owner’s independent testing laboratory, or a mutually satisfactory independent testing laboratory if such services are required. All corrected work shall be re-tested at the Contractor’s expense. Extra architectural or engineering services required by Contractor to analyze non-conforming work shall be paid for by Contractor. § 17.2 Third Party Beneficiary. Owner shall be deemed to be a third party beneficiary of each subcontract and may, if Owner elects, require (following Contractor’s default under this Agreement or Owner’s termination of this Agreement), that the Subcontractor perform all of the then unperformed duties and obligations of such Subcontractor thereunder for the benefit of Owner (rather than Contractor); however, in the event that Owner requires any such performance by a Subcontractor for the direct benefit of Owner, then Owner shall be bound and obligated to pay such Subcontractor for all work done by such Subcontractor (1) to date (to-wit: the reasonable value of that portion of the subcontract performed by such Subcontractor) and (ii) subsequent to the date that Owner elects to invoke such rights. Owners’ liability in this connection, however, is not to exceed the amount obtained by subtracting from the subcontract price the total of all sums paid by Contractor to Subcontractor prior to Owner’s invoking its right hereunder with respect to direct performance by Subcontractor for Owner. In the event that Owner elects to invoke such rights, Owner shall give written notice of such election to Contractor and such Subcontractors. § 17.3 Notice. Any notice provided or permitted to be given under the Contract Documents must be in writing and may be served by depositing same in the United States mail, addressed to the party to be notified, postage prepaid, by registered or certified mail, with return receipt requested; by fax (with confirmation of receipt); by email (with confirmation of being sent); or by personal delivery service. For purposes of notice, the addresses of the parties shall be as set forth on page one (1) hereof. § 17.4 Priority of Documents. In the event of any inconsistency between the provisions of this instrument and the terms and conditions of any of the other Contract Documents, the provisions of this instrument shall control. In connection therewith, the most recently issued document takes precedence over previous issues of the same document. The order of precedence is as follows with highest authority listed as "01".


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01 Modifications to this Agreement; 02 This Agreement; 03 Drawings and Specifications, if any; and 04 The Proposal, if any. § 17.5 Owner’s and Contractor’s Right To Cure Default. In no event will Contractor be entitled to terminate the Contract if Owner cures the default which provides the basis for such termination prior to the expiration of the applicable curative period specified in the Contract or, if no such curative period exists, within a reasonable period of time, not to exceed twenty (20) days. In no event will Owner be entitled to terminate the Contract if Contractor cures the default which provides the basis for such termination prior to the expiration of the applicable curative period specified in the Contract, or, if no such curative period exists, within a reasonable period of time, not to exceed twenty (20) days. § 17.6 Miscellaneous. No waiver of a right provided by this Contract shall be effective unless in writing and signed by the party against whom enforcement of the waiver is sought. No waiver by a party of any breach of any provision of this Contract shall be construed as a waiver of any later breach. All representations, agreements and disclaimers of Contractor and Owner that are contained in this Contract shall remain in full effect after Final Completion and shall not be replaced or limited by any other document or agreement. This Contract is binding upon the permitted heirs, executors, administrators, successors and assigns of the parties and those persons who would have a claim by, through or under the parties. § 17.7 Owner’s Representative. The Owner’s Representative is: ____________________, phone number: ____________________, e-mail address: ____________________. The Owner’s Representative is authorized to take all actions permitted and/or required to be taken by the Owner under the Contract Documents. In addition to Owner’s Representative, ____________________, ____________________, and ____________________ are authorized to give directions to the Contractor with respect to the Work, but not sign any Contract Documents, including any Change Orders. § 17.8 Contractor’s Representative. The Contractor’s Representative is ____________________, phone number ____________________, e-mail address: ____________________. The Contractor’s Representative is authorized to take all actions permitted and/or required to be taken by the Contractor under the Contract Documents. § 17.9 Claims and Disputes. Except as otherwise expressly set forth in this Agreement, Owner and Contractor agree to negotiate all "Disputes" (hereafter defined) between them in good faith for a period of fifteen (15) days from the date of notice prior to mediating any Dispute, and each such negotiation shall involve at least one senior officer, partners, manager of each party who is not otherwise involved with the day-to-day administration of this Agreement. "Disputes", as used herein, shall mean any dispute or claim between the parties pursuant to performance or the lack of performance of any rights or obligations under this Agreement, including, without limitation, the Owner’s decisions pursuant to Articles 9 and 12 of this Agreement. § 17.9.1 If the Owner and Contractor are unable to resolve a Dispute as provided in Section 17.9. above, then such Dispute shall be subject to mediation as a condition precedent to the institution of legal proceedings under applicable law. Any request for mediation shall be filed in writing with the other party to the Agreement within thirty (30) days after expiration of the thirty (30) day good faith negotiation period required by Section 17.9 of the Agreement. Within twenty (20) days after a party’s receipt of such request for mediation, the parties will attempt in good faith to agree upon a qualified mediator. If the parties cannot agree upon a qualified mediator within such twenty (20) day period, either party may seek to have a mediator appointed by any federal district court judge sitting in the Northern District of the State of Texas. If a replacement mediator becomes necessary for any reason, and the parties cannot timely agree on such replacement mediator, any party may seek to have a replacement mediator appointed by any federal district court judge sitting in the Northern District of the State of Texas whose district includes the Project. Unless the parties mutually agree otherwise, the mediation will be conducted by the mediator generally in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect at the time of the mediation to extent such Rules are not contrary to or inconsistent with the express terms and conditions of this Section 17.9.1.


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Mediation shall proceed in advance of legal proceedings, which shall be stayed pending mediation for a period of ninety (90) days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. Any party to the Agreement may bring as summary proceedings (including, without limitation, a plea in abatement or motion to stay further proceedings) an action in court to compel mediation of any Dispute in accordance with the Agreement, except for Disputes, if any, expressly excluded from Section 17.9 of the Agreement. All statutes of limitation that would otherwise be applicable shall apply to any mediation proceeding. Any attorney-client privilege and other protection against disclosure of privileged or confidential information including, without limitation, any protection afforded the work-product of any attorney, that could otherwise be claimed by any party shall be available to, and may be claimed by, any such party in any mediation proceeding. No party waives any attorney-client privilege or any other protection against disclosure of privileged or confidential information by reason of anything contained in, or done pursuant to, the mediation provisions of the Agreement. Each party shall bear its own expenses of mediation and the parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in the county where the Project is located, unless another location is mutually agreed upon by the parties. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. If the mediation does not resolve the Dispute, thereafter the parties may exercise all legal and equitable remedies under applicable law. No provision of this Section 17.9.1 will limit the right of any party to the Agreement exercise self-help remedies or to obtain provisional or ancillary remedies from a court of competent jurisdiction before, after, or during the pendency of any mediation, and the exercise of any such remedy does not waive the right of either party to require or resort to mediation. Continuing Contract Performance. Pending final resolution of a Dispute, including mediation and/or litigation, unless otherwise agreed in writing, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make undisputed payments in accordance with the Contract Documents. List of Exhibits: Exhibit "A" – Proposal Exhibit "B" – Intentionally Deleted Exhibit "C" – Contractor’s Final Release of Liens Exhibit "D" – Subcontractor’s Final Release of Liens Exhibit "E" – Contractor’s Certificate of Insurance/Endorsements PAGE 16


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OWNER (Signature) CONTRACTOR (Signature)

(Printed name, title and address) (Printed name, title and address) LICENSE NO.: JURISDICTION:

OWNER CONTRACTOR

______________________________ By:_______________________________________ Name:_____________________________________ Title:______________________________________

______________________________ By:_______________________________________ Name:_____________________________________ Title:______________________________________

AIA Document D401™ – 2003. Copyright © 1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 13:18:14 on 11/17/2014 under Order No.5732970927_1 which expires on 06/29/2015, and is not for resale. User Notes: (1917864806)

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Certification of Document’s Authenticity AIA® Document D401™ – 2003 I, Bruce Merwin, hereby certify, to the best of my knowledge, information and belief, that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 13:18:14 on 11/17/2014 under Order No. 5732970927_1 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA® Document A105™ – 2007, Standard Form of Agreement Between Owner and Contractor for a Residential or Small Commercial Project, as published by the AIA in its software, other than those additions and deletions shown in the associated Additions and Deletions Report. _____________________________________________________________ (Signed) _____________________________________________________________ (Title) _____________________________________________________________ (Dated)