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Standard Form Agreements l01648.0DB 2/4/94 THE AMERICAN INSTITUTE OF ARCHITECTS Exhibit "F" to Acquisition Construction and Development Contract - Design Builder's Agreement for Garage AlA Document A 191 Standard Form of Agreements Between Owner and Design/Builder 1985 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUE:\'CES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED. TABLE OF ARTICLES PART 1 AGREEMENT-PRELIMINARY DESIGN AND BUDGETING 1. GENERAL PROVISIONS 6. ARBITRATION 2, DESIGN/BUILDER 7, MISCELLANEOUS PROVISIONS 3. OWNER 8. TERMINATION OF THE AGREEMENT 4. TIME 9. BASIS OF COMPENSATION 5. PAYMENTS 10. OTHER PROVISIONS PART 2 AGREEMENT-FINAL DESIGN AND CONSTRUCTION 1. GENERAL PROVISIONS 8. CHANGES IN THE WORK 2. DESIGN/BUILDER 9. CORRECTION OF WORK 3. OWNER 10. ARBITRATION 4. TIME 11. MISCELLANEOUS PROVISIONS 5. PAYMENTS 12. TERMINATION OF THE AGREEMENT 6. PROTECTION OF PERSONS AND PROPERTY 13. BASIS OF COMPENSATION 7. INSURANCE AND BONDS 14, OTHER PROVISIONS AlA DOCUMENT A191 . OW,",IR.IJI'I(,N 1I(1111)lR A(.RLIMINl . fIR,IIIlIIII!', · AI,\' . 'I'm", . TlH A!..1IRI(~'''\llllill ()I AROlllln, I71SMWY(JR~~\'i"H.'1 !\. \^,' \\'A"'HI~C TO",,' l) ( 20001, WARNING: Unlicensed photocopying violates U.S. copyright laws and IS subject to legal prosecution. A191-1985 COVER PAGE l01648.0DB 2/4/94 THE AMERICAN INSTITUTE OF ARCHITECTS . AlA Document A 191 Standard Form of Agreement Between Owner and Design/Builder 1985 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED. This Document comprises two separate Agreements: Part 1 Agreement-Preliminary Design and Budgeting and Part 2 Agreement-Final Design and Construction. Hereinafter, the Part 1 Agreement is referred to as Part 1 and the Part 2 Agreement is referred to as Part 2. Before executing Part 1, the parties should reach substantial agreement on Part 2. PART 1 AGREEMENT-PRELIMINARY DESIGN AND BUDGETING AGREEMENT made as of the ~, ' Hundred and n l~~ day of ~,^~e in the year of Nineteen BETWEEN the Owner: (Name and address) and the Design/Builder: (Name and address) Ballet Valet Parking Company 640 Ocean Drive Miami Beach, Florida McCarthy Brothers Company 1341 North Rock Hill Road St. Louis, Missouri 63124 For the following Project: (Include Prolect name. location and detailed deSCriptIOn of scope.) Parking garage located at SW corner of Collins Avenue and 7th Street, Miami Beach, Florida of which the City of Miami Beach "City" will be the Owner of said property and garage as s~t forth in the Construction and Development Agreement dated JVNL ',1~1i CD Agreemept". The architectural services described in Article 2 will be provided by the following person or entity who is lawfully licensed to practice architecture: (Name and address) Desman Parking Associates 307 Fifth Avenue . N~~ York New York 10016 The Owner and the Deslgn/Bulloer agree as set torth below. Copyright :C, 1985 by The American Institute o( Architects, 1735 New York Avenue, N.W., Washington, D.C. 2(J(J(j6. Reproduction of the material herein or substantial qUO!ltlon of its provIsions without written permission of the AlA violal('s the copyright laws of tilt' United States and will be subjt'ct to legal prosecution. AlA DOCUMENT A191, Part 1 . OWNfK,DISILN/BUILDIK ACKllMfNT . FIKSlllJl110N . AlA' . 'c l'IW, . THE AMIKICAN INSTIIUTl OF AKCHlllCT, 17 Ie, NIW Y( JKK AVI NUL r-... \\' WA')HINC I()~ [) ( 20(")#) WARNING: Unlicensed photocopying violates U.S. copyright laws and is subJect to legal prosecutIon. A191-1985 PART l-PAGE 1 Terms and Conditions-Part 1 Agreement ARTICLE 1 GENERAL PROVISIONS 1.1 BASIC DEFINITIONS 1.1.1 The Project is the total design and construction for which the Design/Builder is responsible under Part 1, in- cluding all professional design services and all labor, mate- rials and equipment used or incorporated in such design and construction. See 2 (a) 1.1.2 The Work comprises the completed construction designed under the Project and includes labor necessary to produce such construction, and materials and equipment incorporated or to be incorporated in such construction, 1.2 EXECUTION, CORRELATION AND INTENT 1.2.1 This Part 1 shall be signed in not less than duplicate by the Owner and Design/Builder. 1.2.2 Nothing contained in the Design/Builder Contract Documents shall create a professional obligation or con- tractual relationship between the Owner and any third party. See 2 (a) 1.3 OWNERSHIP AND USE OF DOCUMENTS 1.3.1 The drawings, specifications and other documents furnished by the Design/Builder are instruments of service and shall not become the property of the Owner whether or not the Project for which they are made is commenced. Drawings, specifications and other documents furnished by the Design/Builder shall not be used by the Owner on other projects, for additions to this Project or, unless the, Design/Builder is in default under Part 1, for completion of this Project by others, except by written agreement relating to use, liability and compensation. 1.3.2 Submission or distribution of documents to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as pub- lication in derogation of the Design/Builder's or the Archi- tect's common law copyrights or other reserved rights. The Owner shall own neither the documents nor the copyrights. ARTICLE 2 DESIGN/BUILDER 2.1 SERVICES AND RESPONSIBILITIES 2.1.1 Design services shall be performed by qualified ar- chitects, engineers and other professionals selected and paid by the Design/Builder. The professional obligations of such persons shall be undertaken and performed in the interest of the Design/Builder. Construction services shall be performed by qualified construction contractors and suppliers, selected and paid by the Design/Builder and acting in the interest of the Design/Builder, Nothing con- tained in Part 1 shall create any professional obligation or contractual relationship between such persons and the Owner See 2(a) 2.1.2 The Design/Builder shall be responsible to the Owner for acts and omissions of the Design/Builder's em- ployees and parties in privity of contract with the Design/ Builder to perform a portion of the Work, including their agents and employees. See 2(a) 2.2 BASIC SERVICES 2.2.1 The Design/Builder's Basic Services are as described below and in Article 10. 2.2.2 The Design/Builder shall review the Owner's pro- gram to ascertain requirements of the Project and shall review such requirements with the Owner. 2.2.3 The Design/Builder shall provide, after consultation with the Owner, a preliminary evaluation of the program and Project budget, each in terms of the other. 2.2.4 The Design/Builder shall review with the Owner al- ternative approaches to design and construction of the Project. 2.2.5 The Design/Builder shall submit to the Owner a Pro- posal including the completed Preliminary Design Docu- ments, a statement of the proposed contract sum, a pro- posed schedule for completion of the Work under Part 2 and all other information necessary to complete Part 2. Preliminary Design Documents shall consist of preliminary design drawings, outline specifications and other docu- ments to fix and describe the size, quality and character of the entire Project, its architectural, structural, mechanical and electrical systems, and the materials and such other elements of the Project as may be appropriate. If the Pro- posal is accepted by the Owner, they shall then execute Part 2. Modifications to the Proposal before execution of Part 2 shall be recorded in writing as an addendum and be identi- fied in the Contract Documents of Part 2. 2.3 ADDITIONAL SERVICES All other services requested by the Owner and mutually agreed to in writing by the Owner and Design/Builder in Part 1, including, among others, changes in Project scope and program, shall constitute Additional Services and shall be paid for by the Owner as provided in Part 1. ARTICLE 3 OWNER 3.1 The Owner shall provide information regarding re- quirements for the Project, including but not limited to the Owner's design objectives, constraints and criteria. 3.2 If the Owner provides a budget for the Project. it shall explicitly include as separate line items contingencies for changes in the design and construction, and other costs which are the responsibility of the Owner. No budget shall constitute a fixed limit of construction cost unless such limit has been agreed to in writing by the Design/Builder. 3.3 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall examine the documents submitted by the Design/Builder and shall promptly render decisions pertaining thereto to avoid de- lay in the orderly progress of design and construction. 3.4 The Owner shall cooperate with the Design/Builder in identifying required permits, licenses and inspections, and See 2(a) A191-1985 PART l-PAGE 2 AlA DOCUMENT A191, Pull . OWNfR,DlSICNiBUlIlHR ACRllMf NT . FIRST EDITION . AlA' . 'C1'J8,) . Tlil AMfRI( AN INSTITun Of ARCHlffCT'o.1715NE\t\YORKAVlNUl. N'vV. \'\'ASHINC10N, U L. 2{j(.l(Jt) WARNING: Unlicensed photocopying violales U.S. copyrighllaws and is sub;ect 10 legal prosecution. ~fcCARTHY MODIFICATIONS TO AM. A191-1985, PART 1 1.1.1 Insert in the third line after the word "including" the following: "the furnishing of" 1.2.2 Insert in the fourth line after the word "party" the following: "except as expressly provided herein or in the CD Agreement as to the City." Insert in the third line after the word "Design/Builder" the following: "pursuant to a written Contract with Design/Builder" Insert in the second line after the word "Owner" the following: "as provided in Part 1 and Part 2" Insert in the sixth line after the word "Design/Builder" the following: "as provided in the Part II Agreement relating to the GMP." 2.1.1 2.1.2 3.2 101648.0DB 2(a) 4B04 shall take appropriate action with reasonable promptness, See 3.5 Prior to commencement of Basic Services, the Owner shall furnish a legal description and a certified land survey of the site. giving, as applicable, grades and lines of streets, alleys, pavements and adjoining property; rights-of-way, restrictions, easements, encroachments, zoning, deed re- strictions, elevations and contours of the site; locations, dimensions and complete data pertaining to existing build- ings, other improvements and trees; and full information concerning available services and utility lines, both public and private, above and below grade, including inverts and depths. 3.6 The Owner shall furnish services of geotechnical engi- neers and other consultants when such services are deemed necessary by the Design/Builder. Geotechnical engineers or other consultants shall be selected by mutual agreement. Such services shall include, as required, applicable test borings, test pits, soil bearing values, per- colation tests, air and water pollution tests, and other nec- essary operations for determining subsoil, air and water conditions, with reports and appropriate professional recommendations. 3.7 The services, information, surveys and reports re- quired by Paragraphs 3.5 and 3.6 shall be furnished at the Owner's expense, and the Design/Builder shall be entitled to rely upon their accuracy and completeness. 3.8 If the Owner observes or otherwise becomes aware of any fault or defect in the Work, the Owner shall gJve prompt written notice thereof to the Design/Builder. ~ (e) 3.9 The Owner shall furnish required information anJ services and shall render decisions with reasonable promptness to avoid delay in the orderly progress of the Design/Builder's services. 3.10 The Owner shall communicate with contractors only through the Design/Builder. ARTICLE 4 TIME 4.1 The Design/Builder shall provide the Basic and Addi- tional Services as expeditiously as is consistent with reason- able skill and care and shall complete the services in the time provided in Article 10, ARTICLE 5 PAYMENTS 5.1 The initial payment provided in Article 9 shall be made upon execution of this Part 1 and credited to the Owner's account as provided in Subparagraph 9.1.2. 5.2 Subsequent payments for Part 1 Basic Services, Addi- tional Services and Reimbursable Expenses shall be made monthly on the basis set forth in Article 9. See 3(a) 5.3 Within ten days of the Owner's receipt of a properly submitted Application for Payment, the Owner shall make payment to the Design/Builder. See 3 (a) 5.4 Payments due the Design/Builder under Part 1 which are not paid when due shall bear interest from the date due at the rate specified in Paragraph 9.5, or in the absence of a specified rate, at the legal rate prevailing where the prin- cipal office of the Design/Builder is located. 3(a) ARTICLE 6 ARBITRATION 6.1 Claims, disputes and other matters in question be- tween the parties to Part 1 arising out of or relating to Part 1 shall be decided by arbitration in accordance with the Con- struction Industry Arbitration Rules of the American Ar- bitration Association then in effect unless the parties agree otherwise. No arbitration arising out of or relating to Part 1 shall include, by consolidation or joinder or in any other manner, an additional person not a party to Part 1 except by written consent containing specific reference to Part 1 and signed by the Owner, Design/Builder and any other person sought to be joined. Consent to arbitration involving an additional person or persons shall not constitute consent to arbitration of a dispute not described therein or with a person not named therein. This provision shall be specifi- cally enforceable in any court of competent jurisdiction. 6.2 Notice of demand for arbitration shall be filed in writ- ing with the other party to Part 1 and with the American Arbitration Association, The demand shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for ar- bitration be made after the date when the applicable statute of limitations would bar institution of a legal or equitable proceeding based on such claim, dispute or other matter in question. 6.3 The award rendered by arbitrators shall be final, and judgment may be entered upon it in accordance with ap- plicable law in any court having jurisdiction. 6.4 Unless otherwise agreed in writing, the Design/Build- er shall carryon the services and maintain progress during any arbitration proceedings, and the Owner shall continue to make payments to the Design/Builder in accordance with Part 1. 6.5 This Article 6 shall survive completion or termination of Part 1. See 3(a) ARTICLE 7 MISCELLANEOUS PROVISIONS 7.1 This Part 1 shall be governed by the law of the place where the principal office of the Design/Builder is located, 7.2 The table of contents and the headings of articles and paragraphs are for convenience only and shall not modify rights and obligations created by Part 1. 7.3 In case a provision of Part 1 is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected. 7.4 SUCCESSORS AND ASSIGNS 7.4.1 This Part 1 shall be binding on successors, assigns and legal representatives of and persons in privity of con- tract with the Owner or Design/Builder. Neither party shall assign, sublet or transfer an interest in Part 1 without writ- ten consent of the other. 7.4.2 This Paragraph 7.4 shall survive completion or termi- nation of Part 1. 7.5 EXTENT OF AGREEMENT 7.5.1 Part 1 represents the entire agreement for Prelimi- nary Design and Budgeting and supersedes all prior nego- tiations, representations or agreements. Part 1 may be A191.1985 PART 1-PAGE 3 AlA DOCUMENT A191, Part 1 . OWNfR,D!SILNfBUll[)ER ACREEMENT . FIRST [DITION . AlA' ., lYXS . THE AMER\( AN INS T ITlITE OF ARCHITE CTS 17JS NEW YORK AVI NUL N W. WASHIN(,TO/'-, IJ C. 2IMNJ/, . WARNING: Unlicensed photocopying violates U.S. copyright laws and is subjecUo legal prosecution. McCARTHY MODIFICATIONS TO AlA A191-1985, PART 1 3.4 3.8 5.2 5.3 6.1 Insert at the end of this subparagraph the following: The Owner shall secure and pay for necessary approvals, foundation and building permits, easements, assessments and charges required for the construction, use or occupancy of permanent structures or for permanent changes in existing facilities. The Design/Builder will assist the Owner in these efforts. The Owner shall furnish such legal services as may be necessary for providing the items set forth in this Article 3 and such auditing services as the Owner may require. Insert in the second line after the word "in" the following: "the Design services or" Insert in the third line after the Words" Article 9" the following: "as provided for in subsequent agreements between Design/Builder and Owner." Insert in the third line after the word "Design/Builder" the following: "as provided for in subsequent agreements between Design/Builder and Owner." Insert in the eighth line after "Part 1" the following: "except the City as provided in the CD Agreement." 101648.0DB 3(a) 4804 amended only by written instrument signed by both Owner and Design/Builder. 7.6 In case of termination of the Architect, the Design/ Builder shall provide the services of another lawfully li- censed person or entity against whom the Owner makes no reasonable objection. ARTICLE 8 TERMINATION OF THE AGREEMENT 8.1 Part 1 may be terminated by either party upon seven days' written notice should the other party fail substantially to pertorm in accordance with its terms through no fault of the party initiating the termination, 8.2 Part 1 may be terminated by the Owner upon at least seven days' written notice to the Design/Builder in the event th.lt the Project is permanentlv abandoned. 8.3 In the event of termination not the fault of the Design/ Builder, the Design/Builder shall be compensated for ser- vices pertormed to termination date, together with Reim- bursable Expenses then due and Termination Expenses. Termination Expenses are expenses directlv attributable to termination, including a reasonable amount for overhead and protit, for which the Design/Builder is not otherwise compensated under Part 1. A191-1985 PART l-PAGE 4 AlA DOCUMENT A191. Part 1 . UWNlR.DlSICNIIlUlll}! R AC;RllM!NT . fiRST lDllION . AlA' . '.l'JW, . TH! Al\\lRICAN INSIlllJl! Of ARCHI1IC1, 17J,N!WYOR~AVlNUL N W WASHI"( ,10N I) ( 2(~'., WARNING: Unlicensed photOCOPYing violates U.S. copyright laws and is subJect to legal prosecution. ARTICLE 9 BASIS OF COMPENSATION The Owner shall compensate the Design/Builder in accordance with Article 5, Payments, and the other provisions of Part 1 as described below. 9.1 COMPENSATION FOR BASIC SERVICES 9.1.1 FOR BASIC SERVICES, compensation shall be as follows: As provided for in subsequent agreements between Design Builder and Owner. 9.1.2 AN INITIAL PAYMENT of dollars ($ Part 1 and credited to the Owner's account as follows: ) shall be made upon execution of 9.1.3 SUBSEQUENT PAYMENTS shall be as follows: 9.2 COMPENSATION FOR ADDITIONAL SERVICES 9.2.1 FOR ADDITIONAL SERVICES, compensation shall be as follows: 9.3 REIMBURSABLE EXPENSES 9.3.1 Reimbursable Expenses are in addition to Compensation for Basic and Additional Services and include actual expenditures made by the Design/Builder and the Design/Builder's employees and contractors in the interest of the Project for the expenses listed as follows: See 5(a) 9.3.2 FOR REIMBURSABLE EXPENSES, compensation shall be a multiple of One ( 1.0) times the amounts expended. 9.4 01 RECT PERSONNEL EXPENSE is defined as the direct salaries of personnel engaged on the Project, and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory emploype benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 9.5 INTEREST PAYMENTS 9.5.1 The rate of interest for past due payments shall be as follows: (U\ury law.. and reqUirements under the F(!defat Truth In Lending Act. sundar state and local consumer credIt laws and other regulalfons at the Owners Jnd DeSign/BUilder's prinCipal plJces of bUSiness, at the locat/on of tilt.' Pro/eet Jnd eh,L'where may affect the validity of flus provfsion. SpecifIc legal adVICe should be obtained With reSpt'( t to delerlOn, moddJc;J(lOn or other requlfement<:;, such a~ wntten disclosures Of waivers,) 2% above the then current prime commercial rate established by Chemical Bank (New York). 9.6 IF THE SCOPE of the Prolect is changed materially, the amount of compensation shall be equitably adjusted. 9.7 The comrensation set forth hert'in shall be equitably adjusted if through no fault of the Design/Builder the services have not been comrleted within () months of the date of Part 1, AlA DOCUMENT A191. Put 1 . OWNI K.DI SICNiIlUllDrK ACRHMINT . f1R:'1 [DITION . "IA' . 'l'JI~', . Till AMIKICAN IN,TITUII U! ARLHITlCT, T7J,NIWY()K~AV[NIJl N \\ \\A"HIN(, 1< ,'- IJ ( LIU", WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecuilon. A 191-1985 PART 1-PAGE 5 McCARTHY MODIFICATIONS TO AlA A191-1985, PART 1 9.3.1 Delete in the third line the words "for the expenses listed as follows:" and insert the following: "including, but not limited to, shipping and mailing, printing and travel. " 101648.0DB 4B04 5(a) ARTICLE 10 OTHER PROVISIONS 10.1 The Basic Services to be performed shall be commenced on adjustments and to delays not caused by the Design/Builder, shall be completed in days. 10.2 The Basic Services beyond those described in Article 2 are: and, subject to authorized ( ) calendar This Part 1 entered into as of the day and year first written above. \f DESIGN/BUILDER BY crJ BY CAUTION: Vou .:J ~~'~'A document which ha. this caution printed in red. An original assures that changes will not be obscured as may occur when documents are reproduced. A191.1985 PART 1-PAGE 6 ....... DOCUMENT "'191. P.,I 1 · OWNE~.DE5IGNBUllDER AC~H'\\ENl . FIRST EDITION · ALA' . '" Iqa5 . THE "'MlRICAN INSTITUTE OF ARCHIHCTS. 1735 NEW YOR~ AVENUE. N W . WA,HINCTON D C 2lXn, WARNING: Unlicensed photOCOPYing violates U 5 copvnghtlaws and is subject to legal oros~ul'on ARTICLE 10 OTHER PROVISIONS 10.1 The Basic Services to be performed shall be commenced on adjustments and to delays not caused by the Design/Builder. shall be completed in days. 10.2 The Basic Services beyond those described in Article 2 are: and, subject to authorized ( ) calendar This Part 1 entered into as of the day and year fi rst written above. DESIGN/BUILDER - .. ~ OWNER BY r!! CAUTION: You should sign an original AlA document which has this caution printed in red. An original assures that changes will not be obscured as may occur when documents are reproduced. A191-1985 PART l-PAGE 6 AlA OOCUMENT A191. P..t 1 . ()\\'NIR.IJI'ICN Hl'IIDIR ,\(,Rll\IINl . flR,l [DITION . AI"". lYH',. !HI .\\\IRII V-;I"llll'll IJI.\RlHIIII l' 171', 'IW YOR,.\\'I"UI "" \\ \t\.\'-dll",-,<.T(), j) ( 2(10(11, WARNING: Unlicensed photOCOPYing VIolates U 5 copyrlghllaws and IS sub,ect to legal prosecution 101648.0DB 2/4/94 THE AMERICAN INSTITUTE OF ARCHITECTS AlA Document A 797 Standard Form of Agreement Between Owner and Design/Builder 1985 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED. This Document comprises two separate Agreements: Part 1 Agreement-Preliminary Design and Budgeting and Part 2 Agreement-Final Design and Construction. Hereinafter. the Part 1 Agreement is referred to as Part 1 and the Part 2 Agreement is referred to as Part 2. PART 2 AGREEMENT-FINAL DESIGN AND CONSTRUCTION AGREEMENT made as of the Hundred and ~' ls~ day of ~\4~"" In the year of Nineteen BETWEEN the Owner: Ballet Valet Parking Company 640 Ocean Drive Miami Beach, Florida McCarthy Brothers Company 1341 North Rock Hill Road St. Louis, Missouri 63124 (Name and address) and the Design/Builder: (Name and address) For the following Project: (file/Lid" Pro/ecI name, locat/on and detailed descf/ptlOn of scope.) Parking garage located at SW corner of Collins Avenue and 7th Street, Miami Beach, Florida of which th:eCity of Miami Beach "City" will be the Owner of said property and garage as set forth in the Construction and Development Agreement dated "CD Agreement". The architectural services described in Article 2 will be provided by the following person or entity who is lawfully licensed to practice architecture: (Ndm" dnd addre,,) Desman Parking Associates 307 Fifth Avenue New York, New York 10016 The Owner and the Design/Builder agree as set forth below. CO[1Vnghl c 1<JH) hy The Anll'rilan Inslltult' of Arlhlll'll'" 17.l) (\j,.w York Av\'nue, N.W., Wa.,hrngton, D.C. 20(JOI, R"[1ror!ucllon 01 the matl'rial h"f('1f) or substantial quotallon 01 110, [1rov,.,,,m, wlthoul wntt"n [wrm",,,,on oJ Ill(' AlA vlolal," lh,' (o[1ynghl law, of th,' Urllled Sldl(', and will IH' ,ubi'" t 10 I,'gal [1ro"'l ullon "IA DOCUMENT "191. P.r12 . OWNIR,mSICNiBlJIIIJlR ACRIIMINT . flRq Ill'TIr)" · ~I.\' . cl'/W, . rIIlAMIRI(A'-'NSTlJI'rl(H'\R(HIII(T".l-J~NII\Y()R,AVI"lil ',1\ I\",\"II'-I,,()', I!( 2IHHH, WARNING: Unlicensed photOCOPYing violates U.S. copyrighllaws and is sublect to legal prosecution A191-1985 PART 2-PAGE 1 Terms and Conditions-Part 2 Agreement ARTICLE 1 GENERAL PROVISIONS 1.1 BASIC DEFINITIONS 1.1.1 The Contract Documents consist of the Design/ Builder's Proposal identified in Article 14, this Part 2, the Construction Documents approved by the Owner in accor- dance with Subparagraph 2.2.2 below and Modifications issued after execution of Part 2. A Modification is a Change Order or a written amendment to Part 2 signed by both parties. These form the Contract, and are as fully a part of the Contract as if attached to this Part 2 or repeated herein. 1.1.2 The Project is the total design and construction for which the Design/Builder is responsible under Part 2, in- cluding all professional design services and all labor, mate- rials and equipment used or incorporated in such design and construction. See 2 ( a) 1.1.3 The Work comprises the completed construction designed under the Project and includes labor necessary to produce such construction, and materials and equipment incorporated or to be incorporated in such construction. 1.2 EXECUTION, CORRELATION AND INTENT 1.2.1 This Part 2 shall be signed in not less than duplicate by the Owner and Design/Builder. 1.2.2 It is the intent of the Owner and Design/Builder that the Contract Documents include all items necessary fo~ proper execution and completion of the Work. The Con- tract Documents are complementary, and what is required by anyone shall be as binding as if required by all. Work not covered in the Contract Documents will not be required unless it is consistent with and is reasonably inferable from the Contract Documents as being necessary to produce the intended results. Words and abbreviations which have well-known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings. 1.3 OWNERSHIP AND USE OF DOCUMENTS 1.3.1 The drawings, specifications and other documents furnished by the Design/Builder are instruments of service and shall not become the property of the Owner whether or not the Project for which they are made is commenced. Drawings, specifications and other documents furnished bv the Design/Builder shall not be used by the Owner on other proJects, for additions to this Project or, unless the Design/Builder is in default under Part 2, for completion of thiS Project by others, except by written agreement relating to use. liability and compensation. 1.3.2 Submission or distribution of documents to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as pub- licatIOn in derogation of the Design/Builder's or the Archi- tect's common law copyrights or other reserved rights. The Owner shall own neither the documents nor the copyrights. ARTICLE 2 DESIGN/BUILDER 2.1 SERVICES AND RESPONSIBILITIES 2.1.1 Design services shall be performed by qualified ar- chitects, engineers and other professionals selected and paid by the Design/Builder. The professional obligations of such persons shall be undertaken and performed in the interest of the Design/Builder. Construction services shall be performed by qualified construction contractors and suppliers, selected and paid by the Design/Builder and acting in the interest of the Design/Builder. Nothing con- tained in Part 2 shall create any professional obligation or contractual relationship between such persons and the Owner. See 2(a) 2.2 BASIC SERVICES 2.2.1 The Design/Builder's Basic Services are described below and in Article 14. 2.2.2 Based on the Design/Builder's Proposal, the Design/ Builder shall submit Construction Documents for review and approval by the Owner. Construction Documents shall include technical drawings, schedules, diagrams and speci- fications, setting forth in detail the requirements for con- struction of the Work, and shall: See 2 (a) .1 develop the intent of the Design/Builder's Pro- posal in greater detail; .2 provide information customarily necessary for the use of those in the building trades; and .3 include documents customarily required for reg- ulatory agency approvals. 2.2.3 The Design/Builder shall assist the Owner in filing documents required to obtain necessary approvals of gov- ernmental authorities having jurisdiction over the Project. 2.2.4 Unless otherwise provided in the Contract Docu- ments, the Design/Builder shall provide or cause to be provided and shall pay for design services, labor, materials, equipment. tools, construction equipment and machinery, water, heat, utilities, transportation and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 2.2.5 The Design/Builder shall be responsible for and shall coordinate all construction means, methods, tech- niques, sequences and procedures. 2.2.6 The Design/Builder shall keep the Owner informed of the progress and quality of the Work. 2.2.7 If requested in writing by the Owner, the Design/ Builder, with reasonable promptness and in accordance with time limits agreed upon, shall interpret the require- ments of the Contract Documents and initially shall decide, subject to demand for arbitration, claims, disputes and other matters in question relating to performance there- under by both Owner and Design/Builder. Such interpreta- tions and decisions shall be in writing, shall not be pre- sumed to be correct and shall be given such weight as the arbitrator(s) or the court shall determine. A191.1985 PART 2-PAGE 2 AlA DOCUMENT A191, Put 2 . OWNIR.DISICN!BlJIILJI R ACRII'v1INT . FIRST IOITlON . AlA' . c1'Je", . IHIA~\ERIC^"dN"1ITLJT!OfARUllll(h171',NIWYOR~AV[NU[ N w. WASHI'~CT()N. DC 21M"". WARNING: Unlicensed photocopying violates U.S. copyright laws and IS subJect to legal prosecution. McCARTHY MODIFICATIONS TO AlA A191-1985, PART 2 1.1.2 Insert in the third line after the word "including" the following: "the furnishing of" Insert in the third line after the word "Design/Builder" the following: "pursuant to a written Contract with Design/Builder" Insert in the second line after the word "Documents" the following: "on a phased fast track basis" 2.1.1 2.2.2 101648.0D8 2(a) 4804 2.2.8 The Design/Builder shall correct Work which does not conform to the Construction Documents. See 3(a) 2.2.9 The Design/Builder warrants to the Owner that ma- terials and equipment incorporated in the Work will be new unless otherwise specified, and that the Work will be of good quality, free from faults and defects, and in confor- mance with the Contract Documents, Work not conform- ing to these requirements shall be corrected in accordance with Article 9. 2.2.10 The Design/Builder shall pay all sales, consumer, use and similar taxes which were in effect at the time the Design/Builder's Proposal was first submitted to the Owner, and shall secure and pay for building and other permits and governmental fees, licenses and inspections necessary for the proper execution and completion of the Work which are either customarily secured after execution of Part 2 or are legally required at the time the Design/Builder's Pro- posal was first submitted to the Owner. See 3 (a) 2.2.11 The Design/Builder shall give notices and comply with laws, ordinances, rules, regulations and lawful orders of public authorities relating to the Project. See 3 (a) 2.2.12 The Design/Builder shall pay royalties and license fees. The Design/Builder shall defend suits or claims for infringement of patent rights and shall save the Owner harmless from loss on account thereof, except that the Owner shall be responsible for such loss when a particular design, process or product of a particular manufacturer is required by the Owner. However, if the Design/Builder has reason to believe the use of a required design, process or product is an infringement of a patent, the Design/Builder shall be responsible for such loss unless such information is promptly given to the Owner. 2.2.13 The Design/Builder shall be responsible to the Owner for acts and omissions of the Design/Builder's em- ployees and parties in privity of contract with the Design/ Builder to perform a por%on of the)Work, including their agents and employees. ee 3 ~ a 2.2.14 The Design/Builder shall keep the premises free from accumulation of waste materials or rubbish caused by the Design/Builder's operations. At the completion of the Work, the Design/Builder shall remove from and about the Project the Design/Builder's tools, construction equip- ment, machinery, surplus materials, waste materials and rubbish, 2.2.15 The Design/Builder shall prepare Change Orders for the Owner's approval and execution in accordance with Part 2 and shall have authority to make minor changes in the design and construction consistent with the intent of Part 2 not involving an adjustment in the contract sum or an extension of the contract time. The Design/Builder shall promptly inform the Owner, in writing, of minor changes in the design and construction. 2.2.16 The Design/Builder shall notify the Owner when the Work or an agreed upon portion thereof is substantially completed by issuing a Certificate of Substantial Comple- lion which shall establish the Date of Substantial Comple- tion, shall state the responsibility of each party for security, maintenance, heat, utilities, damage to the Work and in, surance. shall include a list of items to be completed or corrected and shall fix the time within which the De. sign/Builder shall complete items listed therein. Disputes between the Owner and Design/Builder regarding the Cer- tificate of Substantial Completion shall be resolved by arbitration. 2.2.17 The Design/Builder shall maintain in good order at the site one record copy of the drawings, specifications, product data, samples, shop drawings, Change Orders and other Modifications, marked currently to record changes made during construction. These shall be delivered to the Owner upon completion of the design and construction and prior to final payment. ARTICLE 3 OWNER 3.1 The Owner shall designate a representative autho- rized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall examine documents submitted by the Design/Builder and shall promptly render decisions pertaining thereto to avoid delay in the orderly progress of the Work. 3.2 The Owner may appoint an on-site project represen- tative to observe the Work and to have such other responsi- bilities as the Owner and Design/Builder agree in writing prior to execution of Part 2. 3.3 The Owner shall cooperate with the Design/Builder in securing building and other permits, licenses and inspec- tions, and shall pay the fees for such permits, licenses and inspections if the cost of such fees is not identified as being included in the Design/Builder's Proposal. See 3 (a) 3.4 The Owner shall furnish services bv land surveyors, geotechnical engineers and other consultants for subsoil, air and water conditions, in addition to those provided under Part 1 when such services are deemed necessary by the Design/Builder to carry out properly the design services under this Part 2. 3.5 The Owner shall fu rn ish structu ral, mechanical, chemical, geotechnical and other laboratory or on-site tests, inspections and reports as required by law or the Contract Documents. 3.6 The services, information, surveys and reports re- quired by Paragraphs 3.4 and 3.5 shall be furnished at the Owner's expense, and the Design/Builder shall be entitled to rely upon their accuracy and completeness. 3.7 If the Owner observes or otherwise becomes aware of a fault or defect in the Work or nonconformity with the Design or Construction Documents, the Owner shall give prompt written notice thereof to the Design/Builder. ;; ee 3.8 The Owner shall furnish required information and services and shall promptly render deGisions pertaining thereto to avoid delay in the orderly progress of the design and construction. 3.9 The Owner shall, at the request of the Design/Builder and upon execution of Part 2, provide a certified or nota- rized statement of funds available for the Project and their source. 3.10 The Owner shall communicate with contractors only througp the Design/Builder. See -j (a) ARTICLE 4 TIME 3(a) 4.1 The Design/Builder shall provide services as expedi- tiously as is consistent with reasonable skill and car? and the orderly progress of design and construction. 4.2 Time limits stated in the Contract Documents are of the essence of Part 2. The Work to be performed under Part AlA DOCUMENT A191, Parl2 . U\\"'iIR,1J1 S1CNdllJILDIR ACRHMI NT . FIRq I DITION . AlA' . cl'lW, . 1111 AMIRlr -\S IS,TITlITI ()[ ARClIIHCT, 171SNIWYOR~AV[NLJI ~ \\' WA."'~IL"'(;T<)' 1)( ..'(.II)(JfJ . A191-1985 PART 2-PAGE 3 WARNIUG. Unlicensed photOCOPYing Violates U.S. copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AL4 A191-1985, PART 2 2.2.8 Insert in the second line after the word "Documents" the following: "as provided in Article 9 hereof." 2.2.10 Delete the remainder of this subparagraph after the word "Owner" in the third line. Insert after the word "Owner" in the third line "except such taxes relating to materials, equipment, supplies and related matters subject to the sales tax savings procedure set forth in the CD Agreement" . 2.2.11 Insert at the end of this subparagraph the following: "The Design/Builder shall not be responsible for changes in such laws, ordinances, rules, regulations and orders not legally required at the time the Design/Builder's Proposal was first submitted to the Owner. " 2.2.13 Insert in the second line after the word "Owner" the following: "as provided in Part 1 and Part 2" 3.3 Delete all language in this subparagraph after the word "inspections" in the fourth line and insert the following: "The Owner shall furnish such legal services as may be necessary for providing the items set forth in this Article 3 and such auditing services as the Owner may require. 3.7 Insert in the second line after the word "in" the following: "the Design Services or" 3.9 Insert in the first line after the word "Owner" the following: "and the City" Insert at the end of this subparagraph the following: "The Design/Builder may stop work upon five (5) days' notice if such evidence has not been forwarded within a reasonable time." Insert the following subparagraphs; 3.11 The Owner shall pay for monthly energy charges after installation of the permanent electrical service upon substantial completion. 3.12 The Owner shall directly retain an independent Contractor for removing asbestos and/or hazardous wastes and shall indemnify, hold harmless and provide a defense for Design/Builder from all claims, expenses, and negligence (Owner's, its Agent's, Design/Builder's or others) including attorneys' fees, relating to the asbestos and/or hazardous waste conditions and removal. l01648.0DB 3 (a)-l 4B04 2 shall commence upon execution of a notice to proceed unless otherwise agreed and. subject to authorized Modifi- cations, Substantial Completion shall be achieved as indi- cated in Article 14. 4.3 The Date of Substantial Completion of the Work or an agreed upon portion thereof is the date when construction or an agreed upon portion thereof is sufficiently complete so the Owner can occupv and utilize the Work or agreed upon portion thereof for its intended use. 4.4 The schedule provided in the Design/Builder's Pro- posal shall include a construction schedule consistent with Paragraph 4.2 above. 4.5 If the Design/Builder is delayed in the progress of the Project by acts or neglect of the Owner, Owner's employ- ees, separate contractors employed by the Owner, changes ordered in the Work not caused by the fault of the Design/ Builder, labor disputes, fire, unusual delay in transporta- tion. adverse weather conditions not reasonably anticipata- ble, unavoidable casualties, or other causes beyond the Design/Builder's control, or by delay authorized by the Owner's pending arbitration or another cause which the Owner and Design/Builder agree is justifiable. the contract time shall be reasonably extended by Change Order. See 4(a) ARTICLE 5 PAYMENTS 5.1 PROGRESS PAYMENTS 5.1.1 The Design/Builder shall deliver to the Owner itemized Applications for PSlyment in such detail as indicat- ed in Article 14. See 4 \ a) 5.1.2 Within ten days of the Owner's receipt of a properly submitted and correct Application for Payment. the O>"ll..er shall make payment to the Design/Builder. See 4 ,a) . 5.1.3 The Application for Payment shall constitute a repre- sentation by the Design/Builder to the Owner that, to the best of the Design/Builder's knowledge, information and belief, the design and construction have progressed to the point indicated; the quality of the Work covered by the application is in accordance with the Contract Documents; and the Design/Builder is ~nt,.itled to payment in the amount requested. See 4,a) 5.1.4 The Design/Builder shall pay each contractor, upon receipt of payment from the Owner, out of the amount paid to the Design/Builder on account of such contractor's work, the amount to which said contractor is entitled in accor- dance with the terms of the Design/Builder's contract with such contractor. The Design/Builder shall, by appropriate agreement with each contractor, require each contractor to make payments to subcontractors in similar manner. See 5.1.5 The Owner shall have no obligation to payor to be responsible in any way for payment to a contractor of the Design/Builder except as may otherwise be required by law. 5.1.6 No progress payment or partial or entire use or occupancy of the Project by the Owner shall constitute an acceptance of Work npt )in accordance with the Contract Documents. See 4,a 5.1.7 The Design/Builder warrants that: (1) title to Work, matenals and equipment covered by an Application for Payment will pass to the Owner either by incorporation in construction or upon receipt of payment by the Deslgnl Builder, whichever occurs first; (21 Work, materials and equipment covered by previous Applications for Payment are free and clear 01 liens, claims, security interests or encumbrances. hereinafter referred to as "liens"; and (3) no Work, materials or equipment covered by an Applica- tion for Payment will have been acquired by the Design/ Builder, or any other person performing work at the site or furnishing materials or equipment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Design/Builder or such other person. 5.1.8 If the Contract provides for retainage, then at the date of Substantial Completion or occupancy of the Work or any agreed upon portion thereof by the Owner, which- ever occurs first, the Design/Builder may apply for and the Owner, if the Design/Builder has satisfied the requirements of Paragraph 5.2.1 and any other requirements of the Con- tract relating to retainage, shall pay the Design/Builder the amount retained, if any, for the Work or for the portion completed or occupied, less the reasonable value of incor- rect or incomplete Work. Final payment of such withheld sum shall be made upon correction or completion of such Work. See 4(a) See 4(a) 5.2 FINAL PAYMENT 5.2.1 Neither final pavment nor amounts retained, if any, shall become due until the Design/Builder submits to the Owner (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Project for which the Owner or Owner's property might be liable have been paid or otherwise satisfied, (2) consent of surety, if any, to final payment, (3) a certificate that insur. ance required by the Contract Documents is in force fol- lowing completion of the Work, and (4) if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens arising out of Part 2, to the extent and in such form as may be designated by the Owner. If a contractor refuses to furnish a release or waiver required bv the Owner, the Design/Builder may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made, the De- sign/Builder shall reimburse the Owner for moneys the latter may be compelled to pay in discharging such lien including all costs and reasonable attorneys' fees. See 4 (a) 5.2.2 Final payment constituting the entire unpaid bal- ance due shall be paid by the Owner to the Design/Builder upon the Owner's receipt of the Design/Builder's final Ap- plication for Payment when the Work has been completed and the Contract fully performed except for those respon- See sibilities of the Design/Builder which su rvive final payment. 4 (a) 5.2.3 The making of final payment shall constitute a 4 (a.~aiver of all claims by the Owner except those arising trom: .1 unsettled liens; See .2 faulty or defective Work appearing after Substan- 4 (a) tial Completion; .3 failure of the Work to comply with requirements of the Contract Documents; or .4 terms of special warranties required by the Con- tract Documents. 5.2.4 Acceptance of final payment shall constitute a waiver of all claims by the Design/Builder except those previously made In writing and identified by the Design/ Builuer as unsettleu at the time of fmal Application for Paymc'nl. A191-1985 PART 2-PAGE 4 AlA DOCUMENT A 191, P.,I 2 . ()\V~I ~.IJI ,>ll,:-.iIlLJIlIJI ~ A(,~ll \H:-.i I . II~, T !I)IIION . AlA' . '1"8'> . THlo\\\I~J( '\NIN,>TITLJTlOIARlHllll'T' 1~I'>N1WYOR~AVINLJf. ~ V\'. V\',\'--JH I ",J( ;l()r", I) I 200U4, WARNING: Unlicensed photocopying violates U.S. copyrighllaws and is subject to legal prosecution. ~/cCARTHY MODIFICATIONS TO AlA A191-1985, PART 2 4.5 5.1.1 5.1.2 5.1.3 5.1.4 5.1.5 5.1.6 5.1.7 5.1.8 5.2.1 Insert in the second line after the word "the" the following: "City or their consultants or representatives," Delete in the third line the word "Owner" and insert the word "City". Insert in the first line after the word "Owner" the following: "and the City for approval" Insert in the first line after the word "Owner's" the following: "and City's" Delete in the second line the word "Owner" and insert the word "City". Insert in the third line after the word "Design/Builder" the following: "subject, however, to Owner's continuing obligation to Design/Builder to make payment in the event City fails to make payments required per the CD Agreement. All payments herein shall be subject to the retention and payment procedures set forth in the CD Agreement. " Delete in the second line the words "to the Owner". Delete in the second line the words "from the Owner". Insert in the first line after the word "Owner" the following: "or the City" Delete in the second line the word "Owner" and insert the word "City". Delete in the third and fourth lines the following: "either by incorporation in construction or" Insert in the third line after the word "Owner" the words "and the City". Delete in the fifth line the word "Owner and insert the following: "City subject to 5.1.2 as to the Owner" Insert in the third line after the word "Owner" the words "and the City". Insert in the fifth line after the word "Owner" the word "City". Delete in the fifth line the word "Owner's" and insert the word "the" 101648.0D8 4804 4(a)-1 McCARTHY flr/ODIFICATIONS TO AIA A191-1985, PART 2 5.2.2 5.2.3 Insert in the sixth line after the word "satisfied" the following: "and such other information required of the Design/Builder for final payment under the CD Agreement" Insert in the tenth line after the word "Owner" the words "or City". Insert in the thirteenth line after the word "Owner" the words "or City". Insert in the fourteenth line after the word "Owner" the words "or City". Insert in the sixteenth line after the word "Owner" both times it appears the words "and the City". Insert in the eighteenth line after the word "Owner" the words "and the City". Delete in the second line the word "Owner" and insert the following: "City subject to 5.1.2 as to the Owner". Insert in the third line after the word "Owner's" the words "and City's". Insert in the second line after the word "Owner" the words "and City". 101648.0DB 4(a)-2 4B04 5.3 INTEREST PAYMENTS 5.3.1 Pavments due the Design/Builder under Part 2 which are not paid when due shall bear Interest from the date due at the rate speCified in Article 13, or in the absence ot a specitied rate, at the legal rate prevailing where the prin- cipal improvements are to be located. ARTICLE 6 PROTECTION OF PERSONS AND PROPERTY 6.1 The Design/Builder shall be responsible for initiating, maintaining and providing supervision of satety precau- tions and programs in connection with the Work. 6.2 The Design/Builder shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (1) employees on the Work and other persons who may be affected thereby; (2) the Work and materials and equipment to be incorporated therein; and (3) other property at or adjacent to the site. 6.3 The Design/Builder shall give notices and comply with applicable laws. ordinances. rules, regulations and orders of public authorities bearing on the safety of persons and property and their protection from damage, injury or loss. 6.4 The Design/Builder shall be liable for damage or loss (other than damage or loss to property insured under the property insurance provided or required by the Contract Documents to be provided by the Owner) to property at the site caused in whole or in part by the Design/Builder, a contractor of the Design/Builder or anyone directly or indi- rectly employed by either of them, or by anyone for whose acts they may be liable, except damage or loss attributable to the acts or omissions of the Owner, the Owner's separate contractors or anyone directly or indirectly employed by them or by anyone for whose acts they may be liable and not attributable to the fault or negligence of the Design/, Builder, See 5 (a) ARTICLE 7 INSURANCE AND BONDS 7.1 DESIGN/BUILDER'S LIABILITY INSURANCE 7.1.1 The Design/Builder shall purchase and maintain in a company or companies authorized to do business in the state in which the Work is located such insurance as will protect the Design/Builder from claims set forth below which may arise out of or result from operations under the Contract by the Design/Builder or by a contractor of the Design/Builder, or by anyone directly or indirectly em- ployed by any of them, or by anyone for whose acts they may be liable: .1 claims under workers' or workmen's compensa- tion, disability benefit and other similar employee benefit laws which are applicable to the Work to be performed; .2 claims for damages because of bodily injury, oc- cupational sickness or disease, or death of the Design/Builder's employees under any applicable employer's liability law; .3 claims for damages because of bodily injury, sick- ness or disease, or death of persons other than the Design/Builder's employees; .4 claims for damages covered by usual personal in- jury liability coverage which are sustained (1) by a person as a result of an offense directly or indi. rectly related to employment at such person by the Design/Builder or (2) by another person; .5 claims for damages, other than to the Work at the site, because of inju ry to or destruction of tangible property, including loss 01 use; and .6 claims for damages lor bodilv injury or death of a person or property damage arISing out of owner- ship, maintenance or use 01 a motor vehicle. 7.1.2 The insurance required by the above Subparagraph 7.1.1 shall be written for not less than limits of liability specified in the Contract Documents or required by law, whichever are greater. See 5(a) 7.1.3 The Design/Builder's liability insurance shall include contractual liability insurance applicable to the Design/ Builder's obligations under Paragraph 11.7. See 5 (a) 7.1.4 Certificates of Insurance, and copies of policies if requested, acceptable to the Owner shall be delivered to the Owner prior to commencement of design and con- struction. These Certificates as well as insurance policies required by this Paragraph shall contain a provision that coverage will not be cancelled or allowed to expire until at least thirty days' prior written notice has been given to the Owner. If any of the foregoing insurance coverages are required to remain in force after final payment, an addi- tional certificate evidencing continuation of such coverage shall be submitted along with the application for final payment. 7.2 OWNER'S LIABILITY INSURANCE 7.2.1 The Owner shall be responsible for purchasing and maintaining, in a company or companies authorized to do business in the state in which the principal improvements are to be located, Owner's liability insurance to protect the Owner against claims which may arise from operations under this Project. 7.3 PROPERTY INSURANCE 7.3.1 Unless otherwise provided under this Part 2, the Owner shall purchase and maintain, in a company or com- panies authorized to do business in the state in which the principal improvements are to be located, property insur- ance upon the Work at the site to the full insurable value thereof. Property insurance shall include interests of the Owner, the Design/Builder, and their respective con- tractors and subcontractors in the Work. It shall insure against perils of fire and extended coverage and shall in- clude all risk insurance for physical loss or damage includ- ing, without duplication of coverage, theft, vandalism and malicious mischief. If the Owner does not intend to pur- chase such insurance for the full insurable value of the entire Work, the Owner shall inform the Design/Builder in writing prior to commencement of the Work, The Design/ Builder may then effect insurancefor the Work at the site which will protect the interests of the Design/Builder and the Design/Builder's contractors and subcontractors, and by appropriate Change Order the cost thereof shall be charged to the Owner. If the Design/Builder is damaged by failure of the Owner to purchase or maintain such insur- ance without notice to the Design/Builder, then the Owner shall bear all reasonable costs properly attributable there- to. If not covered under the all risk insurance or not other- wise provided in the Contract Documents, the Design/ Builder shall effect and maintain similar property insurance on portions of the Work stored off-site or in transit when such portions of the Work are to be included in an Applica- tion for Payment. See 5 (a) AlA DOCUMENT A191, Pori 2 . OWNFR.()ISIGN/IHJILDlK AGRlf MI N f . fIK'T lDlTI( IN . AlA' . C 1~11, . TIll AMIKICAN IN' T1TUTI OF AKUiITECTS, 171, NIW YOKK AVENlJl 'Jw, WA'>HI.NCTON. D.C 2'~'"(' WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. A191.1985 PART 2.PAGE 5 ~fcCARTHY MODIFICATIONS TO AM A191-1985, PART 2 6.4 Delete in the fourth line the word "Owner" and insert the words" Design/Builder", Insert in the fifth line after the word "site" the following: "to the extent negligently" 7.1.2 In the third line delete the words "Contract Documents" and insert the words "CD Agreement". Add the following: 7.1.3.1 Design/Builder shall require its Architect to provide errors and omissions insurance which shall be on a claims made basis and shall be for limits of not less than $1,000,000. Design/Builder shall further require its Architect to indemnify Design/Builder, Owner and City to the same extent as Design/Builder is required herein and under the CD Agreement. Design/Builder shall require its Architect to insure such indemnity under the above errors and omissions insurance and shall require said errors and omissions insurance to be maintained for a period of not less than two years following completion of the Project. Amounts received from such coverage shall be the limit of Design/Builder's liability to the Owner relating to any design breach or negligence by Design/Builder or its Architect. 7.3.1 In the second line delete the word "Owner" and insert the word "Design/Builder". In the fifth line after the word "site" insert the following: "and existing buildings and their contents" In the sixth line after the word "th~reof" insert the following: "subject to the deductibles therein which shall be City's responsibility as to wind or water damage. All other deductibles shall be the responsibility of Design/Builder. " In the seventh line insert after the word "Owner," the word "City". Delete the fourth, fifth and sixth sentences. 10I648.0DB 5(a) 4804 7.3.5 If the Design/Builder requests in writing that insur- ance for risks other than those described herein or for other special hazards be included in the property insurance policy, the Owner shall, if possible, obtain such insurance, and the cost thereof shall be charged to the Design/Builder by appropriate Change Order. 7.3.6 The Owner and Design/Builder waive all rights against each other and the contractors, subcontractors, agents and employees, each of the other, for damages' caused by fire or other perils to the extent covered by 8.1 CHANGE ORDERS property insurance obtained pursuant to this Paragraph 7.3 or other property insurance applicable to the Work, except 8.1.1 A Change Order is a written order signed by the such rights as they may have to proceeds of such insurance Owner and Design/Builder, and issued after execution of held by the Owner as trustee. The Owner or Design/ Part 2. authorizing a change in the Work or adjustment in Builder, as appropriate, shall require from contractors and the contract sum or contract time. The contract sum an~ subcontractors by appropriate agreements, written where contract time may be changed only by Change Order. ee legally required for validity, similar waivers each in fav?rof See 8.1.2 The Owner, without invalidating Part 2, may order other parties enumer~ted In this Paragraph 7.3. The poll~les changes in the Work within the general scope of Part 2 shall be endorsed to Include such waivers of subrogation. 6 (alconsisting of additions, deletions or other revisions, and 7.3.7 If reqUired in writing by a party in interest, the the ~ontract sum and contract time shall be adjusted ac- Owner as trustee shall provide, upon occurrence of an cordlngly. Such changes In the Work shall be authOrized by insured loss, a bond for proper performance of the Chan.ge Order, and shall be performed u~€~ ag~l~crble Owner's duties. The cost of required bonds shall be conditions of the Contract Documents. charged against proceeds received as trustee, The Owner 8.1.3 If the Owner requests the Design/Builder to submit shall deposit proceeds so received in a separate account a proposal for a change in the Work and then elects not to and shall distribute them in accordance with such agree- proceed with the change, a Change Order shall be issued ment as the parties in interest may reach, or in accordance to reimburse the Design/Builder for any costs incurred for with an arbitration award in which case the procedure shall Design Services or proposed revisions to the Contract be as provided in Article 10. If after such loss no other Documents, See 6 (a) special agreement is made, replacement of dama~ed Work 8.1.4 Cost or credit to the Owner resulting from a change shall be covered by appropriate Change Order. ee 6(a) in the Work shall be determined in one or more of the 7.3.8 The Owner, as trustee, shall have power to adjust following ways: See 6(a) and settle a loss with insurers unless one of the parties in .1 by mutual acceptance of a lump sum properly interest shall object, in writing, within ten days after occur- itemized and supported by sufficient substantiat- rence of loss, to the Owner's exercise of this power. If such ing data to permit evaluation; objection be made, the Owner as trustee shall make settle- .2 by unit prices stated in the Contract Documents or ment with the insurers in accordance with the decision of subsequently agreed upon; 7.3.2 Unless otherwise provided under this Part 2, the Owner shall purchase and maintain such boiler and ma- chinerv insurance as mav be required by the Contract Doc- ument~ or by law and which shall specificallv cover such insured objects during installation and until tinal accep- tance by the Owner. This insurance shall cover interests of the Owner, the Design/Builder, and the Design/Builder's contractors and subcontractors in the Work. S ee 6 (a) 7.3.3 A loss Insured under Owner's property insurance is to be adjusted with the Owner and made payable to the Owner as trustee for the insureds, as their interests may appear, subject to requirements of any applicable mort- gagee clause and of Subparagraph 7.3.8. The Design/ Builder shall pay contractors their shares of insurance pro- ceeds received by the Design/Builder, and by appropriate agreement, written where legally required for validity, shall require contractors to make payments to their subcontrac- tors in similar manner, See b(a) 7.3.4 Before an exposure to loss may occur, the Owner shall file with the Design/Builder a copy of each policy required by this Paragraph 7.3. Each policy shall contain only those endorsements specifically related to this Proj- ect. Each policy shall contain a provision that the policy will not be cancelled or allowed to expire until at least thirty days' prior writtej1 )notice has been given the Design/ Builder. See b\.a arbitration as provided in Article lO. If distribution of insur- ance proceeds by arbitration is reGLj.lre,d, the arbitrators will direct such distribution. See 6 \. a) 7.3.9 It the Owner finds it necessary to occupy or use a portion or portions of the Work before Substantial Com- pletion, such occupancy or use shall not commence prior to a time agreed to by the Owner and Design/Builder and to which the insurance company or companies providing property insurance have consented by endorsement to the policy or policies, The property insurance shall not lapse or be cancelled on account of such partial occupancy or use. Consent of the Design/Builder and of the insurance com- pany or companies to such occuf?ancy or use shall not be unreasonably withheld. See 6 (a) 7.4 LOSS OF USE INSURANCE 7.4.1 The Owner. at the Owner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. The Owner waives all rights of action against the Design/Builder, and its con- tractors and their agents and employees. for loss of use of the Owner's property, including consequential losses due to fire or other hazards, however caused. to t~e ext6~t ) covered by insurance under this Paragraph 7.4. ee a 7.5 PERFORMANCE BOND AND PAYMENT BOND 7.5.1 The Owner shall have the right to require the De- sign/Builder to furnish bonds covering the faithful perfor- mance of the Contract and the pavment of all obligations arising thereunder if and as required in the Contract Docu- ments or in Article 14. See 6(a) ARTICLE 8 CHANGES IN THE WORK 6 (a) A191-1985 PART 2-PAGE 6 AlA DOCUMENT A191, Put 2 . OW~l~,DI "1l.N/HUIl Dl~ ~('~llMINl . fl~~l IDITION . AI,\' . 'I'IW, . T HI AMI KI( AN IN~ IllUfE Of A~(HllI (1'> 17\"> NIW YO~K AVENUE. NW. W,\~HINl.ION. D.l 2IHU, WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. McCARTHY MODIFICATIONS TO AM A191-1985, PART 2 7.3.2 Deh:te in its entirety. 7.3.3 Delete in the first line the word "Owner's". Insert in the second line after the word "Owner" the words "and City". Delete in the third line the word "Owner" and insert the word "Design/Builder". 7.3.4 Delete in the first line the word "Owner" and insert the word "Design/Builder". Delete in the second line the word "Design/Builder" and insert the words "Owner and City". Insert in the eighth line after the word "Builder" the words "City and Owner". 7.3.6 Insert in the first line after the word "Owner" the word "City". Delete in the eighth line the word "Owner" and insert the word "Design/Builder". 7.3.7 Delete in the second line the word "Owner" and insert the word "Design/Builder". Delete in the fourth line the word "Owner's" and insert the word "Design/Builder's". Delete in the fifth line the word "Owner" and insert the word "Design/Builder". 7.3.8 Delete in the first line the word "Owner" and insert the word "Design/Builder". Delete in the fourth line the word "Owner's" and insert the word "Design/Builder's". Delete in the fifth line the word "Owner" and insert the word "Design/Builder". 7.3.9 Delete in the first line the words "the Owner finds". Insert in the first line after the word "it" the word "is". Insert in the fourth line after the word "Owner" the word "City". 7.4.1 Delete in the first line the words "Owner, at Owner's option, may" and insert the words "Design/Builder shall" . Delete in the second line the word "Owner" and insert the word "City". Delete in the third line the word "Owner's" and insert the word "City's". Delete in the fourth line the word "Owner" and insert the word "City". Delete in the seventh line the word "Owner's" and insert the word "City's". 7.5.1 Delete in the first line the words "Owner shall have the right to require the". Delete in the second line the word "to" and insert the word "shall", 101648.008 6(a)-1 4804 lHcCARTHY MODIFICATIONS TO AM. A191-1985, PART 2 7.5.1 8.1.1 8.1.2 8.1.3 8.1.4 Insert in the second line after the word "bonds" the following: "with the Owner and City as Obligees". Insert in the second line after the word "Owner" the word "City". In the first line delete the word "Owner" and insert the following: "City, as provided in the CD Agreement" In the first line delete the word "Owner" and insert the following: "City, as provided in the CD Agreement" Delete in the first line the words "to the Owner". 101648.0DB 6(a)-2 4B04 .3 bv cost to be determined In a manner agreed upon bv the parties and a mutually acceptable tixed or percentage fee; or .4 b\ the method provided below. 8.1.5 I t none of the methods set torth in Clauses 8.1.4.1, 8.1.4.2 or 8.1.,U is agreed upon, the Design/Builder, pro- vided a written order signed by the Owner is received, shall promptlv proceed with the Work involved. Thecost of such Work shall then be determined on the basis ot reasonable expenditures and savings of those performing the Work attributable to the change, including the expenditures tor design services and revisions to the Contract Documents. In case ot an increase in the contract sum, the cost shall include a reasonable allowance for overhead and profit. In case of the methods set forth in Clauses 8.1.4,3 and 8.1.4.4, the Design;Builder shall keep and present an itemized ac- counting together with appropriate supporting data for inclusion in a Change Order. Unless otherwise provided in the Contract Documents, cost shall be limited to the fol- lowing: cost of materials, including sales tax and cost of delivery; cost of labor, including social security, old age and unemployment insurance, and fringe benefits required by agreement or custom; workers' or workmen's compensa- tion insurance; bond premiums; rental value of equipment and machinerv; additional costs of supervision and field office personnel directly attributable to the change; and fees paid to architects, engineers and other professionals. Pending final determination of cost to the Owner, pay- ments on account shall be made on the Application for Payment. The amount of credit to be allowed by the Design/ Builder to the Owner for deletion or change which results in a net decrease in the contract sum will be actual net cost. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of the n~t increase, if any, with respect to that change. See 7 (a) 8.1.6 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are so changed in a proposed Change Order that application of agreed unit prices to quantities pro- posed will cause substantial inequity to the Owner or De- sign/Builder. ap.,plicable unit prices shall be equitably adjusted. See I(a) 8.2 CONCEALED CONDITIONS 8.2.1 If concealed or unknown conditions of an unusual nature that affect the performance of the Work and vary from those indicated by the Contract Documents are en- countered below ground or in an existing structure other than the Work, which conditions are not ordinarily found to exist or which differ materially from those generally recognized as Inherent in work of the character provided for in this Part 2, notice by the observing party shall be given promptly to the other party and, if possible, betore condi- tions are disturbed and in no event later than twenty-one days after first observance of the conditions, The contract sum shall be equitably adjusted for such concealed or un- known conditions by Change Order upon claim bv either party made within twenty-one davs atter Jh~ claimant be- comes aware of the conditions. See 7 ~a) 8.3 REGULATORY CHANGES 8.3.1 The Design/Builder shall be compensated for changes In the Work necessitated by the enactment or revi- sion of codes, laws or regulations subsequent to the sub- mission ot the Design/Builder's Proposal under Part 1. ARTiClE 9 CORRECTION OF WORK 9.1 The Design/Builder shall promptlv correct WorK re- \t'cted by the Owner or known by the DeSign/BUilder to be detective or failing to conform to the Construction Docu- ments, whether observed before or after Substantial Com- pletion and whether or not fabricated, installed or com- pleted, and shall correct Work under this Part 2 found to be defective or nonconforming within a period of one year from the date of Substantial Completion of the Work or designated portion thereof, or within such longer period provided by any applicable special warranty in the Contract Documents. 9.2 Nothing contained in this Article 9 shall be construed to establish a period of limitation with respect to other obligations of the Design/Builder under this Part 2. Para- graph 9.1 relates only to the specific obligation of the De- sign/Builder to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Design/Builder's liability with respect to the Design/Builder's obligations other than correction of the Work. 9.3 If the Design/Builder fails to correct defective Work as required or persistently tails to carry out Work in accor- dance with the Contract Documents, the Owner, by written order signed personally or by an agent specifically so em- powered bv the Owner in writing, may order the Design/ Builder to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the Owner's right to stop the Work shall not give rise to a duty on the part of the Owner to exercise the right for benefit of the Design/Builder or other persons or entities. 9.4 If the Design/Builder defaults or neglects to carry out the Work in accordance with the Contract Documents and tails within seven days after receipt of written notice trom the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner mav give a second written notice to the DeSign! Builder and, seven days following receipt by the Deslgn/ Builder of that second written notice and without prejudice to other remedies the Owner may have, correct such defi- Ciencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the DesigniBuilder costs of correcting such deficiencies. If the payments then or thereafter due the Design/Builder are not sufficient to cover the amount at the deduction, the DeslgniHuilder Sh,lll pay the difference to the Owner. Such action by the Owner shall be sublect to arbitration, ARTiClE 10 ARBITRATION 10.1 Claims, disputes and other matters in question be- tween thl' parties to thiS Part 2 arising out of or relating to Part 2 shall be decided bv arbitration in accordance with thl' Construction Industry Arbitration Rules o( the Ameri- can Arbitration Association then in effect unll'ss the rar- t;es agree otherWise. No arbitration Jrt,ing out of or relat- AlA DOCUMENT A191, p.,. 2 . ()WNIR.IJI,ICN,IlUIU)[R ACRlFMINI . fl~sr lIJIII(JN . ,\1,\' . cl''''~ . rHI^MIRI(ANINSTlIlJlI(lF^RCHllICTS.17I,NIWY(J~K,WI"-;1J1. 1'\0 'IS, W,\"11 /1"\;(, If J'. r) ( 200011 A191-1985 PART 2.PAGE 7 WARNING; Unlicensed photocopying violates U.S. copyrighllaws and is subiect to legal prosecution. lUcCARTHY MODIFICATIONS TO AL4 A191-1985, PART 2 8.1.5 8.1.6 8.2.1 Insert in the third line after the word "Owner" the words "and City". Delete in the fifth and sixth lines the words "to the Owner or Design/Builder". Insert in the twelfth line after the word "sum" the following: "and Contract Time" 101648.0D8 7(a) 4804 ing to this Part 2 shall Include, by consolid,ltion or ioinder or in any other m,lnner. all ,ldditional person not ap-uty to Part 2 except bv written consent containing specitic reter- ence to Part 2 and signed by the Owner, Design/Builder ,md anv other person sought to be joined. Consent to arbitration involving an additional person or persons shall not constitute consent to arbitration 01 a dispute not described or with a person not named therein. This provi- sion shall be speclficallv entorc~able in any court 01 com- petent jurisdiction. See ~ (a) 10.2 Notice of demand for arbitration shall be filed in writing with the other party to this Part 2 and with the American Arbitration Association. The demand shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when the applicable statute of limitations would bar institution of a legal or equitable proceeding based on such claim, dis- pute or other matter in question. 10.3 The award rendered by arbitrators shall be final, and judgment mav be entered upon it in accordance with applicable law in any court having jurisdiction. 10.4 Unless otherwise agreed in writing, the Design/ Builder shall carryon the Work and maintain its progress during any arbitration proceedings, and the Owner shall continue to make payments to the Design/Builder in ac- cordance with the Contract Documents. See 8 (a) 10.5 This Article 10 shall survive completion or termina- tion of Part 2, ARTICLE 11 MISCELLANEOUS PROVISIONS 11.1 This Part 2 shall be governed by the law of the place where the Work is located. 11.2 The table of contents and the headings of articles and paragraphs are for convenience only and shall not modify rights and obligations created by this Part 2. 11.3 In case a provision of Part 2 is held to be invalid, illegal or unenforceable, the validity, legality and enforce- ability of the remaining provisions shall not be affected. 11.4 SUBCONTRACTS 11.4.1 The Design/Builder, as soon as practicable after execution of Part 2, shall furnish to the Owner in writing the names of the persons or entities the Design/Builder will engage as contractors for the Project. 11.4.2 Nothing contained in the Design/Builder Contract Documents shall create a professional obligation or con- tractual relationship between the Owner and any third party. 11.5 WORK BY OWNER OR OWNER'S CONTRACTORS 11.5.1 The Owner reserves the right to perform work re- lated to, but not part 01, the Project and to award separate contracts in connection with other work at the site. If the DeSign/Builder claims that delay or additional cost is in- volved because of such action by the Owner, the Design/ Builder shall make such claims as provided in Sub- paragraph 11.6. 11.5.2 The Design/Builder shall afford the Owner's sepa- rate contractors reasonable opportunity for introduction and storage of their materials and equipment for execution 01 their work. The Dpsign/BuildL'r 5h,111 incorporate and coordin,lte the Design/Budder"s Work with work of the Ownpr's sL'p,lr,lte contractors as required by the Contract Docunll'nt5. 11.5.3 Costs caused bv dL'lectlve or iii-timed work shall be borne by the party responsible. 11.6 CLAIMS FOR DAMAGES 11.6.1 Should either party to P,lrt 2 sutlt'r inju ry or damage to person or property because 01 an act or omission of the other party. the other party's employees or agents, or an- other for whose acts the other part\' is legally liable, claim shall be made in writing to the other party within a reason- able time after such injury or damage is or should have been first observed. 11.7 INDEMNIFICATION 11.7.1 To the fullest extent permitted by law, the Design/ Builder shall indemnify and hold harmless the Owner and the Owner's consultants and separate contractors, any of their subcontractors. sub-subcontractors, agents and em- ployees from and against claims, damages, losses and ex- penses, including but not limited to attorneys' fees, arising out of or resulting tram performance of the Work. These indemnification obligations shall be limited to claims, dam- ages, losses or expenses (1) that are attributable to bodily injury, sickness, disease or death, or to injury to or destruc- tion of tangible property (other than the Work itself) includ- ing loss of use resulting therefrom, and (2) to the extent such claims, damages, losses or expenses are caused in whole or in part by negligent acts or omissions of the Design/Builder, the Design/Builder's contractors. anyone directly or indirectly employed by either or anyone for whose acts either may be liable, regardless of whether or not they are caused in part by a party indemnified here- under. Such obligation shall not be construed to negate, abridge or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 11.:-. 11.7.2 In claims against the Owner or Its consultants and its contractors, any of their subcontractors, sub-sub- contractors, agents or employees by an employee of the Design/Builder. its contractors, anyone directly or indi- rectly emploved by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 11.7 shall not be limited bv a limitation on amount or type of damages, compensation or benefits pay- able by or for the Design/Builder, or a Design/Builder's contractor, under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts, 11.8 SUCCESSORS AND ASSIGNS 11.8.1 This Part 2 shall be binding on successors, assigns, and legal representatives of and persons in privity of con- tract with the Owner or Design/Builder. Neither party shall assign, sublet or transfer an interest in Part 2 without the written consent of the other. See 8 (a) 11.8.2 This Paragraph 11.8 shall survive completion or ter- mination of Part 2. 11.9 In case of termination of the Architect, the Design/ Builder shall provide the services of another lawfully li- censed person or entity against whom the Owner makes no reasonable objection. A 191-1985 PART 2-PAGE 8 AlA DOCUMENT A191, 'u12 . OWNlR,DESICNiIlUllDtR ACRll'lENT . FIRST EDITION . AlA' . ,CI98<; . THE AMERICAN INSTITUTE OF ARCHITECTS. 171" NEW YORK AVE NLJ E, N.W. WA"HINCTON, DC. 2IXXH, WARNING: Unlicensed photocopying violates U,S. copyright laws and is subject to legal prosecution. klcCARTHY MODIFICATIONS TO AL4 A191-1985, PART 2 10.1 lnsert in the third line on Page 8 after the words "Part 2" the following: "except the City as provided in the CD Agreement" Insert in the fourth line on Page 8 after the word "Owner" the word "City". 10.4 Delete in the third and fourth lines the words "the Owner shall continue to make". Insert in the fourth line after the words "Design Builder" the words "shall continue to be made". 11.4.1 Add the following sentences: Owner and City recognize that Design Builder has obtained quotes and bids from qualified Subcontractors and Suppliers to be able to determine the Guaranteed Maximum Price. The Guaranteed Maximum Price is based upon such information and that Design Builder will not be required to utilize any public bidding or advertisements or to comply with any minority participation requirements of the City. 11.7.1 Insert in the second line after the word "the" the word "City". 11.7.2 Insert in the first line after the word "the" the word "City". 11.8.1 The Owner and Design Builder expressly agree the City is a third party beneficiary of this Agreement. 101648.0D8 8(a) 4804 11.10 EXTENT OF AGREEMENT 11.10.1 Part.2 represents the entire agreement between the Owner and Design/Builder and supersedes Part 1 and prior neaotiatlons, representations or agreements. Part .2 may be a~ended only bvwritten instrument signed by both Owner and Design/Builder. ARTICLE 12 TERMINATION OF THE AGREEMENT 12.1 TERMINATION BY THE OWNER 12.1.1 This Part .2 may be terminated by the Owner upon fourteen days' written notice to the Design/Builder in the event that the Project is abandoned. If such termination occurs, the Owner shall pay the Design/Builder for Work completed and lor proven loss sustained upon materials, equipment. tools, and construction equipment and ma- chinerv, including ceasonable profit and applicable damages. See 9,a) 12.1.2 If the Design/Bu i Ider defaults or persi stently fai Is or neglects to carrY" out the Work in accordance with the Contract Documents or fails to perform the provisions 01 Part 2, the Owner may give written notice that the Owner intends to terminate Part 2, If the Design/Builder fails to correct the delaults, failure or neglect within seven days after being given notice, the Owner may then give a second written notice and, alter an additional seven days, the Owner may without prejudice to any other remedy make good such deficiencies and mav deduct the cost thereof trom the payment due the Design/Builder or, at the Owner's option, may terminate the employment of the Design/ Builder and take possession at the site and of all materials, equipment, tools and construction equipment and ma- chinerv thereon owned by the Design/Builder and finish the \Vork by whatever method the Owner may deem expe- dient. II the unpaid balance of the contract sum exceeds the expense of finishing the Work, the excess shall be paid to the Design/Builder, but if the expense exceeds the un- paid balance, the Design/Builder shall pay the difference to the Owner. See 9 <. a) 12.2 TERMINATION BY THE DESIGN/BUILDER 12.2.1 Ii the Owner fails to make payment when due, the Design/Builder may give written notice of the Design/Build- er's intention to terminate Part 2. If the Design/Builder fails to receive payment within seven days after receipt of such notice by the Owner, the Design/Builder may give a second written notice and, seven days after receipt of such second written notice by the Owner. may terminate Part 2 and recover lrom the Owner payment for Work executed and for proven losses sustained upon materials, equipment, tools, and construction equipment and machiner~ incl~d- ) ing reasonable profit and applicable damages. ee '(a A191.1985 PART 2.PAGE 9 AlA DOCUMENT A191. Part 2 . OWNlR-DlSICN/I3UILOER ACRElMlNT . FIRST HJITION . AlA' . c,lYH', . THf AMERI! AN INS T1IUn Of ARCHIHCTS, 1710, NEW YORK AVENUE, NW, WA,HINC,rO". [) c. 2IXX,(, WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution, }}/cCARTHY MODIFICATIONS TO AM. A191-1985, PART 2 12.1.1 12.1.2 12.2.1 Insert in the first line after the word "upon" the following: "written approval of the City and" Delete in the fourth line the word "Owner" and insert "City (subject to Owner's obligations under 5.1.2)". Insert in the fourth line after the word "Owner" the first time it appears the following: "after written approval of the City". Insert in the seventh line after the word "Owner" the following: "after written approval of the City". Insert in the twelfth line after the word "option" the following: "after written approval of the City". Insert in the first line before the word "Owner" the words "City or". Insert in the third line after the word "to" the words "default the Owner and" Insert in the fifth line after the word "Owner" the words "and City". Insert in the seventh line after the word "Owner" the words "and City". Insert in the eighth line after the word "the" the words "City or". Add the following: The City shall have the option to cure such default without penalty to the City and, in addition. the City and Design Builder shall also be subject to 8.2.1 of the CD Agreement. 101648.0DB 4B04 9(a) ARTICLE 13 BASIS OF COMPENSATION The Owner shall compensate the Design/Builder in accordance with Article 5, Payments, and the other provisions ot this Part 2 as described below. See lO(a) 13.1 COMPENSATION 13.1.1 FOR BASIC SERVICES, as described in Paragraphs 2.2.2 through 2.2.17, and for any other services included in Article 14 as part of Basic Services, Basic Compensation shall be as follows: A Fee of 7% in the GMP. of the Guaranteed Maximum Price which shall be included 13.2 REIMBURSABLE EXPENSES 13.2.1 Reimbursable Expenses are in addition to the compensation for Basic and Additional Services and include actual expenditures made by the Design/Builder in the interest of the Project for the expenses listed as follows: See Exhibit 1 13.2.2 FOR REIMBURSABLE EXPENSES, compensation shall be a multiple of One ( 1.0 ) times the amounts expended, INTEREST PAYMENTS The rate of interest for past due payments shall be as follows: (Usury laws and reqUIrements under Ihe Federal Trulh In Lending Act, Similar slale and local consumer credttlaws and other regulations at the Owners and DeSign/Builder's pflnClpal places of business, al the locatIOn of Ihe Pro/ecl and elsewhere may affed Ihe valldlCy of thIS provISIOn. SpecifiC legal adVice should be oblalned With respecl to delellOn, mod/flcatlon or olher reqUIrements, such as wntten dISclosures or waivers.) 13.3 13.3.1 2% above the then current prime commercial rate established by Chemical Bank (New York) See lO(a) A19H985 PART 2-PAGE 10 AlA DOCUMENT A19t, P.rt 2 . OWNER,m,ICN/BUIUJI R N;Kll.,,1I.NT . FIKST EDITION · AlA' . c.lqHS . THE "'MI RICAN IN, TlTUTF OF ARCHI1fCT". Tn, NIW Y<JRK AVENUE. N.W. WA"HLNCTON. D.e. 2IMMU, WARNING: Unlicensed photocopying violates U.S. copyright laws and Is subject to legal prosecution. McCARTHY MODIFICATIONS TO AL1 A191-1985, PART 2 Article 13 - Delete in the first line the words "Owner shall compensate". Insert in the first line after the words "Design Builder" the words "shall be compensated". 13.4 Add the following: GUARANTEED MAXIMUM PRICE 13.4.1 13.4.2 13.4.3 13.4.4 13.4.5 McCarthy guarantees that the maximum price for the Reimbursable Expenses as set forth in Exhibit I. and the Basic Compensation as set forth in 13.1.1. will not exceed $9,800.00/parking space which sum shall be called the Guaranteed Maximum Price except as adjusted as provided herein. Per the CD Agreement 646 spaces x $9.800 which equals SIX MILUON, THREE HUNDRED THIRTY THOUSAND. EIGHT HUNDRED DOLLARS ($6,330,800.00) is contemplated to be the Guaranteed Maximum Price subject to adjustment based upon the final number of spaces. Per the CD Agreement, the Guaranteed Maximum Price is based upon laws, codes. and regulations in existence at the date of its establishment and upon Exhibit 2, List of GMP Documents, attached hereto. The Guaranteed Maximum Price will be modified for delays and for Changes in the Work, as provided herein and proportionately for increases in the applicable construction cost index in effect as of the date of this Agreement. Subject to 13.4.6 below, to the extent the total of the Reimbursable Expenses and Basic Compensation is less than the Guaranteed Maximum Price as adjusted as provided herein, Design/Builder will receive 50% of said savings, with the City receiving the balance. Scope: The Guaranteed Maximum Price includes the following components as set forth in Exhibit G to the CD Agreement: .1 The Basic Compensation, in accordance with 13.1.1 of this Agreement. .2 The estimated and/or actual cost of General Condition Items to be provided by Design/Builder as defmed in Exhibit 1 of this Agreement. .3 The estimated and/or actual cost of the Work to be performed by Subcontracts and Design/Builder under this Agreement, including, but not limited to, the cost of any required permits and fees (not provided by Owner pursuant to this Agreement), taxes, and Subcontractor Performance and Payment Bonds. .4 A contracting contingency for unanticipated local market. labor and material conditions; bidder and subcontractor defaults; errors of Design/Builder; interfacing omissions between and from the various work categories, and any other liability of Design/Builder to the Owner under this Agreement or Part 1 (if any). .5 The cost of Design/Builder's Performance and Payment Bond for 100% of the Guaranteed Maximum Price and sales tax thereon. The Guaranteed Maximum Price does not include the following components as set forth in Exhibit G to the CD Agreement: 101648.008 10(a)-1 4804 A-<lcCARTHY MODIFICATIONS TO AlA A191-1985, PART 2 13.4.6 .1 Design/Builder's Part 1 Compensation. .2 The cost of all off-site construction testing and on-site construction inspection and testing of, including, but not limited to soils, foundations, paving, concrete, FF and FL floor finish tolerance verification. structural steel framing, fireproofing and infra red imaging. (To be provided by the City per the CD Agreement.) .3 Electrical utility company charges, except for those electrical installation provisions specifically shown on the Contract Documents. .4 The cost of moveable equipment and furnishings. .5 The cost of any Building Permits. (To be waived by the City per the CD Agreement.) .6 The cost of asbestos and/or other hazardous waste removal. .7 Costs for unforeseen subsurface conditions. .8 Costs associated solely with the Retail Space. .9 Any other items not specifically defmed in this Agreement and the Exhibits thereto. This Agreement is expressly subject to the shared savings provisions set forth in Section 4.8(G) of the CD Agreement except that the Owner and Design Builder hereby agree that the Design Builder shall receive all savings paid to Owner and Design Builder, The City's auditor will be responsible to confirm the Costs of the Work, including those shared in a proportionate equitable manner with the Contract for the Retail Space. . 101648.008 10(a)-1 4804 ARTICLE 14 OTHER PROVISIONS 14.1 The Basic Services to be performed shall be commenced on 0 r bef 0 re 7/1/94 and, subject to authorized adjustments and to del<1.Ys not caused by the Design/Builder, Substantial Completion shall be achieved in ( 36) ) calendar days, See 11 (a) 14.2 The Basic Services beyond those described in Article 2 are: The GMF Design Development Plans and Outline Specifications as defined in 1.24 of the CD Agreement and listed on Exhibit 2 hereto. In addition, the CD Agreement is incorporated herein as a Contract Document and the parties hereto expressly agree to be bound by their obligations in said CD Agreement. 14.3 The Design/Builder shall submit an Application for Payment on the 1 st of each month. See 11 (a) 14.4 The Design/Builder's Proposal includes: (List below: thIS Part 2, Supplementary and other ConditIons, the drawings. the specifications. and ModificatIons, shOWing page or sheet numbers In all cases and dates where applicable to define the scope of Work.) This Part 2 entered into as of the day and year first written above. c~~~~~~\~a~~l~t2~~9 DESIGN/BUILDER ~ClY ~eJr 'If Vi)e.- ~~\\ tl Vet Irt .CoVV') ~016 o~,. I r BY BY old~1 ~(~. CAUTION: You should sign an original AlA document which has this caution printed in red. An original :3:l:lures that changes will not be obscured as may occur when documents are reproduced. [CbJ A'A DOCUMENT AI91, Put 2 . OWNER,DESIGNIBUILDER AGkEEMENT . FIRST EDITION . AlA' . <.1'185 . THE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVENUE. N.W.. WASHINGTON. D.C. looO" WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. A191-1985 PART 2-PAGE 11 ARTICLE 14 OTHER PROVISIONS 14.1 The Basic Services to be performed shall be commenced on or before 7/l /94 and, sublectto authorized adjustments and to deJ~ys not caused by the Design/Builder, Substantial Completion shall be achieved in ( 36) ) calendar days. See 11 (a) 14.2 The Basic Services beyond those described in Article 2 are: The GMP Design Development Plans and Outline Specifications .as defined in 1.24 of the CD Agreement and listed on Exhibit 2 hereto. In addition, the CD Agreement is incorporated herein as a Contract Document and the parties hereto expressly agree to be bound by their obligations in said CD Agreement. 14.3 The Design/Builder shall submit an Application for Payment on the 1 s t of each month. See 11 (a) 14.4 The Design/Builder's Proposal includes: (List below: thiS Part 2. Supplementary and other ConditIOns. the drawings. the specificatIOns, and ModificatIOns, showing page or sheet numbers In all cases and dates where applicable to define the scope of Work.) This Part 2 entered into as of the day and year first written above. OWNER DE BY ClJ CAUTION: You should sign an original AlA document which has this caution printed in red. An original assures that changes will not be obscured as may occur when documents are reproduced. AlA DOCUMENT A 191. P.rl 2 . OWNI K,DESICNIBUILDER AGK[EMENT . IlKS r WITION . AlA' . '1'I!\, . THE AMERICAN INSTitUTE OF ARCHITFCTS. Ill) NEW YOKK AVINUE. N W. WASHINCIIJN. DC 21KKJh WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. A191.1985 PART 2.PAGE 11 McCARTHY MODIFICATIONS TO AM. A191-1985, PART 2 14.1 14.3 Add the following: If construction of the Garage is not substantially completed within the time required above, the Design Builder shall be responsible for $750.00 per day liquidated damages for each day of delay up to the first sixty (60) days and $1,500.00 per day for each day of delay thereafter. Insert after the word "Payment" the following: "as provided in the CD Agreement" 101648.0D8 11 (a) 4804 ,l!cCARTHY NIODIFICATIONS TO AL4 A191-1985, PART 2 2/4/94 BALLET VALET PARKING COMPANY MIAMI BEACH, FLORIDA EXIllBIT 1 REIMBURSABLE EXPENDITURES The term Reimbursable Expenses shall mean actual expenditures necessarily incurred in the design and construction of the Work and shall include the items set forth below in this Article. "Actual Expenditures" shall be defined as either the actual price charged the Design/Builder or Design/Builder's rate which is determined by average ownership expenses, local market rates or average anticipated expenses and are as follows: 1. All architectural, engineering and consulting fees and expenses incurred in designing and constructing the Work. Expenses include the cost of printing. 2. Wages paid for labor in the direct employ of Design/Builder in the performance of its Work under applicable collective bargaining agreements, or under a salary or wage schedule, and including such welfare, bonus, or other benefits, if any, as may be payable with respect thereto. 3. Compensation of Design/Builder's employees stationed at the field office and compensation of other employees when performing functions directly related to Project administration. Billing rates in accordance with Exhibit 3 - Project Management Rate Schedule, attached hereto. 4. All employee benefits including accrued sick pay and vacation, insurance, employee retirement plan, disability benefits, and taxes for such items as unemployment compensation and social security, insofar as such cost is based on wages, salaries, performance bonuses, or other remuneration paid to employees of Design/Builder and included under paragraphs 2 and 3 above. 5. Reasonable transportation, traveling, moving, subsistence, and hotel expenses of Design/Builder or of its officers or employees incurred in discharge of duties connected with the Work, including attending Total Quality Management Seminars and other training seminars. 6. Relocation of the Design/Builder's job site supervision personnel and their families in accordance with the Relocation Policy. 7. All materials, supplies and equipment incorporated in the Work, including costs of transportation and storage thereof. 8. Payments made by Design/Builder to Subcontractors for their Work performed pursuant to contract under this Agreement. 9. All materials, supplies, equipment, temporary facilities and hand tools, including transportation and maintenance, not owned by the workmen, which are employed or consumed in the performance of the Work, and cost less salvage value on such items used but not consumed which remain the property of Design/Builder. 10. Rental charges of all necessary machinery, equipment (exclusive of hand tools), form materials, and trailers used at the site of the Work, whether rented from Design/Builder or others, at rates consistent 101648.0DB Exhibit 1-1 4B04 McCARTHY MODIFICATIONS TO AL4 A191-1985, PART 2 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. with those prevailing in the area. Rental rates of Design/Builder owned equipment in accordance with Exhibit 4 - Equipment Rental Schedule, attached hereto. For those rental rates not included in this Schedule, the rental rates listed in the Associated Equipment Distributor's Publication of Nationally Averaged Rates for the appropriate year shall be used as the average ownership expense. Equipment transportation, delivery, installation, fuel, lubrication, repair, replacement, dismantling and removal. The premiums for all insurance and deductibles which Design/Builder is required to procure by this Agreement or is deemed necessary by Design/Builder as approved by the Owner. Sales, use, gross receipts or similar taxes related to the Work imposed by any governmental authority, and for which Design/Builder is liable subject to 2.2.10 and the CD Agreement. Permit fees, licenses, tests, royalties, damages for infringement of patents and costs of defending suits therefor, and deposits lost for causes other than Design/Builder's negligence. If royalties or losses and damages, including costs of defense, are incurred which arise from a particular design, process, or the product of a particular manufacturer or manufacturers specified by the Owner or Architect, such royalties, losses and damages shall be paid by the Owner and not considered as within the Guaranteed Maximum Price unless Design/Builder has prior knowledge that there will be an infringement of patent rights. Losses, expenses or damages to the extent not compensated by insurance or otherwise (including settlement made with the written approval of the Owner). Corrective or warranty work not performed by the Subcontractors subject, however, to the Guaranteed Maximum Price. Minor expenses such as telegrams, long distance telephone calls, telephone service and charges at the site, facsimile, expressage, radio/communications systems and equipment and similar petty cash items in connection with the Work. Field office furnishings, typewriter, calculator, supplies, and similar type items. The Safety, Total Quality Management and Substance Abuse Programs. Removal of all debris. Cost incurred due to an emergency affecting the safety of persons and property. Data processing services and computerized scheduling programs required in the performance of the services outlined herein. Computer scheduling rates in accordance with Exhibit 5 - Computer Program Rate Schedule, attached hereto. In-house (at the rates listed in Exhibit 3, Project Management Rate Schedule) and outside legal and consultant charges (whether on site or not) reasonably and properly incurred by Design/Builder for the Project including, but not limited to, job site labor disputes, Subcontractor disputes, liens, and defaults. Subcontractor claims and defaults, subject however to the Guaranteed Maximum Price. 101648.0D8 Exhibit 1-2 4804 McCARTHY MODIFICATIONS TO AlA A191-1985, PART 2 ::'5. All other costs directly incurred in the performance of the Work and not included in The Basic Compensation as set forth in Paragraph 13.1.1. Design/Builder's Performance and Payment Bond, if required by the Owner, for which Design/Builder shall be reimbursed. without retainage immediately after purchase of same. 26. 4B04 101648.00B Exhibit 1-3 McCARTHY MODIFICATIONS TO AU A191-1985, PART 2 2/4/94 101648.0DB BALLET VALET PARKING COMPANY l\HAl\1I BEACH, FLORIDA EXIllBIT 2 LIST OF GMP DOCUMENTS Design Development Drawings prepared by Sheets 1 - dated Outline Specifications dated Our estimate is based on Outline Specifications dated May 19, 1994, Supplementary Outline Specifications dated May 19, 1994, Drawings Al and A2 dated January 6. 1994, A3, AS and A6 dated March 16, 1994, and A4, A7, A8 and A9 dated March 18, 1994 all as provided by Desman Associates and Arquitectonica. It is also based on McCarthy issued AlA 191 dated February 4, 1994 and "Narrative and Schedule of GMP Design/Build Costs of Garage" (Exhibit G to Acquisition, Construction and Development Agreement) dated May 2S, 1994. Pricing has been predicated on construction beginning July I, 1994 and being completed twelve months thereafter. 101648.0DB 4B04