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HomeMy WebLinkAboutR19820A - 2nd Amnd to OPA w/American Invstmnt Palms to Pines PALM DESERT REDEVELOPMENT AGENCY STAFF REPORT REQUEST: APPROVE SECOND AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT WITH AMERICAN INVESTMENT PALMS TO PINES EAST LLC (CONTRACT NO. R19820A) FROM: CATHERINE WALKER, SENIOR MANAGEMENT ANALYST DATE: OCTOBER 27, 2005 CONTENTS: SECOND AMENDMENT TO OWNER PARTICIPATION AGREEMENT BETWEEN AMERICAN INVESTMENT LLC AND SHELLMAN CONSTRUCTION Recommendation: By Minute Motion, that the Agency Board: 1. Approve the Second Amendment for improvements to the property pursuant to the Owner Participation Agreement between the Agency and American Investment Palms to Pines East LLC; 2. Authorize the Chairman to execute the Agreement incorporating the changes; and 3. Approve the appropriation of the additional $732,820 funds from the Agency's Unobligated Project Funds. Executive Summary: The proposed amendment to the Owner Participation Agreement will allow American Investment Palms to Pines East LLC an extension of their completion date for Phases I and II to April 30, 2006, and Phase III to October 2006. The Amendment will also grant an additional $732,820 in funding for the project. A total of$857,820 is needed to complete the rehabilitation of Palms to Pines East. Mr. Glasser will contribute an additional $125,000 to be utilized first in the renovation, prior to the Agency's additional funding. Mr. Glasser has secured $2,249,016 for the completion of Tweeters, 99 cent Store, and Staples. The additional funding from Mr. Glasser will bring the developer's total project contribution to $2,374,016. The Agency's total contribution to the Palms to Pines rehabilitation will be $2,157,820, approximately 48% of the total cost of development, which is $4,531,836. Attached is the Second Amendment to the Owner Participation Agreement, which is executed by Mr. Glasser, and the Construction contract between Shellman Construction and American Investment LLC, which outlines the improvements to be performed on Phases I, II and III of Palms to Pines East. Staff Report Approve Second Amendment to OPA with American Investment Palms to Pines LLC Page 2 October 27, 2005 Discussion:. On July 8,2004,the Agency Board approved an Amendment to the Owner Participation Agreement ("Agreement")that superseded the earlier Amended and Restated Owner Participation Agreements between the Agency and American Investment Palms to Pines East LLC,dated February 26,2004 ("OPA"). Both of the Owner Participation Agreements were to provide assistance to American Investment Palms to Pines East LLC in the renovation of the Palms to Pines East Shopping Center. The time extensions granted on July 8, 2004 to American Investment LLC by Agency Board established a Commencement Date of July 15, 2004, a Completion Date of March 14, 2005, and granted a delay in construction (Holiday Season from November 11, 2004 through January 15, 2005). Due to additional seasonal delays, weather conditions, and scheduling conflicts, the project cost has increased approximately$857,820, since the last cost assessment produced in August 2001. American Investment LLC shows that the cost of the site work has increased by$279,380,the Rite Aid Facade has increased by$164,423,and the cost for facade enhancement to Building No.5 has increased by$414,017. Mr.Glasser will be contributing$125,000 of his own money to be used first for the renovation of Phases I and II, bringing the total Agency contribution to $732,820. Staff recommends that the additional costs associated with Phase II (the Rite Aid facade enhancement — $318,803), and Phase I be allocated immediately. Phase III (facade enhancement to Building No. 5)funds are to be allocated and held until the Planning Department and American Investment LLC reach an agreement for modification to the architecture and change in scope for the improvements to Building No. 5. The $414,017 is to be held as a not-to-exceed amount, with the understanding that the modification to the facade improvements for Building No.5 cost may change significantly. The new design must first be vetted through the Architectural Review Commission. Construction will be implemented with a seasonal delay accounting for three months of no construction, unless tenants agree to move forward through the holiday season. In the amended schedule, site work improvements will be split into three phases: Phase I (Commencement Oct. 28, 2005/Completion April 20, 2006) • Parking Area fronting Hwy III • Parking area adjacent to Staples Building • Site improvements bordering El Paseo Phase II (Commencement Oct. 28, 2005/Completion April 20, 2006) • The Rite Aid Facade Improvements Phase III(Commencement May 1, 2006/Completion Oct.30, 2006) • The facade improvements to Building 5 fronting El Paseo The Site work for these phases is identified in Exhibits F and G of the Owner Participation Agreement. Staff Report Approve Second Amendment to OPA with American Investment Palms to Pines LLC Page 3 October 27, 2005 Attached are the signed agreement between American Investment LLC and Shellman Construction and the Second Amendment to the OPA which has been executed by Mr. Glasser. The Agreement between Shellman Construction and American Investment LLC outlines the new scope of the project and states that Shellman Construction will perform the work as determined in the OPA for the costs as established in the Second Amendment. The specific time extensions requested are as follows: • Commencement of Construction Improvements for Phases I and II — October 27 2005 • Completion of construction for Phases I and II —April 30 2006 • Commencement of Construction for Phases III — May 1 2006 • Completion of Construction Improvements for Phase III — October 30 2006 Staff would recommend that the Board approve the Amended Timeline incorporating the above- described modifications to the Agreement, and thereby facilitate the completion of the project. Submitted by: Department Head: 4 Naha — atherine Walker Dave Yrigoye Senior Management Analyst Director of edevelopment/Housing mh Approval: • Jus ' cCarthy, ACM Re opment Paul S. Gibson, Director of Finance Carlos L. Ortega, ecutive Director G\RDA\Calhy Walker\Wp Data'Staff for Second Amendment to OPA Palms to Pmes2.wpd l' • - r , ..,.. 01- I .... ., , . ,, . ..... a, . • I , • '...1 r' • - P-• . i - - . ..,..p. g; .. P. Ille ic..cv ! s !‘ eif: cop . . ,...._ . 0 ,__..a t i .... 1 • • ri. .. t 1 So 4110 if • . • A- Ij 3 ' *d ; , :.t - i r 0 s - 5 1 co :* -'WA HAHN RD ij AVM b'Zd7d Ai i, , #) Ili fel Wif.4.4k*Z; '..'*4. 1 i. '... 140-. n ,. • / w Ri • $ itZ . if, f.... , • __:,,.. .,,13..,,... 3 • ' 1 co ' 'i.:�!rr.,: (I) g ... . $14 It , ......„ 1 ).:Ors.• ....4 -1 ♦- ! c . . i . S �� ♦ f , _. a i # , F., f -:,� , ,,,,,...7.1.40.t it vio,.... A . If id; 4, i tiii,.. , • e ! . . - ;i f r ♦ � fi . . % 1 id ) .. ..._ ..lia..........,-1 w I AP ABM §. It 1...--Im..00.40... � . MQNT o 3.. i . • F y=y6` f -.-2.;,‘-,:,4::1 weF r H �c wae;e iV00)I40' 00:3 h41. (i .1 q 4 w L , -51- • !! 1 , a •- 10/18/2005 10:03 19494978053 AMERICAN INVESTMENT PAGE 02 _.. ____ .. tuvati.1,o.3rc . RDA PALM IJh.... KI PACE A2/e8 CONTRACT NO. R19820A SECOND AMENDMENT TO QWNER PAART'ICIPA ON AGREE betv TICS SECOND AMENDMENT TO OWNER PARTICIPATION AGREEMENT ("A endnient")dated as of October 27,2005 ("Effective Date"),is entered into by and een the PALM DESERT REDEVELOPMENT AGENCY,a public body,corporate and Polipc("Agency')and AMERICAN INVESTMENT PALMS TO PINES EAST,LLC, a California limited liability company("Developer"). 1 $RCITALS A. The Agency and Developer have previously entered into that certain Owner P:in A. Agreement,dated as of March 25.2004, as amended by that certain letter a ern dated July 22, 2004 between the Agency and Developer(as so amended,the"OPA"), whi affects that certain property located in the City of Palm Desert,County of Riverside,State of C l ifoniia,more particularly described on Exhibit_"A"attached to the OPA. i • B. The Agency and Developer wish to amend and modify the OPA as hereinafter set fo in this Amendment. AGREEAagT NOW, THEREFORE,in consideration of the terms of this Amendment and for other vat 1e consideration,the receipt of which is hereby acknowledged,Agency and Developer age as follows: I. All capitalized terms not otherwise defined herein shall have the meanings aecri Id thereto in the OPA. 2. Section 2.2.3 of the OPA is hereby deleted in its entirety end the following is su . 'toted therefor in its place: "2.2.3 Schedule ofPerfon ancc. Owner shall commence construction of Phase I and These 17 of the Improvements(each asIdesctibed in Exhibit A, attached hereto)on or before October 28,2005(tb "Commencement Date")and shall complete such construction by April 30,200 (the'tease I and II Completion Date"). Owner shall commence ctions of the Phase lli Improvements(as described in Exhibit A attached ereto)on or before May I, 2006(the"phase Ili Com jiencerne nt Date")and all complete such construction by October 7,2006(the"Phase III Completion Da a"). For the purposes of this Agreement,the completion of construction of sac Phase of the Improvements shall be evidenced by a contractor's and architect' certificate to be provided by Owner,and reasonably acceptable to the Agency to form and content, and certifying that the construction of the subject vements has been substantially P64424459\836614.6 Lam/ AMERICAN INVESTMENT PAGE 03 10/18/2005 10:03 19494978053 PAGE 83f30 . _.___ -. . ,uu.v4aoor•t RDA PALM DESERT CONTRACT NO. R19820A completed in substantial compliance with the Final Construction Drawings and the plans and specifications approved by the City,except for specified"punch- list"items that do not impair the function or use of the subject Improvements(the "Certificate of Completion"). Subject to the provisions of Section 7.7 hereof,if Owner has not commenced construction of each Phase of the Improvements by the corresponding Commencement Date set forth in this Section 2.2.3,or completed construction of each Phase of the Improvements by the corresponding Completion Date set forth in this Section 2.2.3,then Agency may,in its sole and absolute discretion,terminate this Agreement upon ten(10)working days prior written notice to Owner and Owner's failure to cure within such period, and the Agency shall automatically be released from all of its obligations under this OPA, including but not limited to its obligationpa y to the Agency Consideration to the Owner;provided,however,the Agency shall pay for Improvements completed as of the date of such termination." 3. Section 3.1 of the OPA is hereby deleted and the following substituted ?her r in its place: "3.1 Agenegima.. In consideration for Owner's entering into the Shopping Center Agreements with HWS and Quinto that include the conveyance and delivery to Agency of the Parking Easement,construction of the improvements,and payment of the Improvements Cost,and upon the satisfaction of the conditions precedent set forth in Section 3.2 and recordation of the Parking Easement in accordance with this Agreement,Agency shall pay or deliver to Owner an amount not to exceed Two Million One Hundred Fifty Seven Thousand Eight Hundred Twenty Dollars($2,157,820.00)(the"Agency Consideration"). Prior to, and as a condition of,the Agency's first disbursement of the Agency Consideration, the Owner shall submit to the Agency paid invoices(or other documentation reasonably acceptable to the Agency)evidencing the payment by the Owner from its own fluids of One Hundred Twenty give Thousand Dollars ($125,000.00)of beard construction costs for Improvements work. Thereafter, for each Phase of the Improvements partial payments of the Agency Consideration shall be made upon Owner's submission of payment requests to Agency for completed Improvements' work within,such Phase. The payment request submittals shall be in such form and substance as Agency may reasonably require, including appropriate lien waivers,and contractor and architect certifications,and shall show that the completed Improvements' work far which payment is requested is limited to only hard construction costs,and does not include management fees,architect's fees,contractor's fees(other than overhead and profit of the contractor),or any similar"soft costs". Within thirty(30)days of Owner's submittal of payment requests,the Agency shall pay to Owner ninety percent(90%)of the amount of such approved payment request;the remaining ten (10%)of such amount shall be retained by the Agency and are hereinafter referred to as the`Retawage Amount". Except as hereinafter provided in this Article 3, the l etainage Amount shall be paid by the Agency following the Agency's receipt of the Certificate of Completion for the applicable Phase of Improvements, t itP6402\ 459\836614.6 2 10/18/20e5 10:03 19494978053 AMERICAN INVESTMENT PAGE 04 __ iww44100,t RDA PALM DESEH1 PAGE 04/08 CONTRACT NO. R19820A and upon the Agency's receipt of the turaa approved payment request with respect to such Phase of Improvements. Owner shall request final payment of the balance of the Agency Consideration on or before the date that is one hundred eighty (180)days after the Completion Date of each Phase or shall be deemed to have waived,released,and relinquished any and all rights to the same." 4. The last paragraph of Section 3.2 of the OPA,is hereby deleted and the foil "rig is substituted therefor in its place: "If all of the foregoing conditions precedent are not completed to Agency's satisfaction on or before November 4,2005(or such earlier date as hereinabove expressly provided), then Agency may,i its sole and absolute discretion,terminate this Agreement upon notice to Owner. Notwithstanding the foregoing,the building permits for the Phase III Improvements shall be issued no later than April 15,2006 and construction of the Phase Ili Improvements shall commence no later than May 1,2006." 5. The following Section 3.2.10 shall be added to the OPA: "3.2.10. Construction Contract. Notwithstanding anything to the contrary contained in this Agreement, all Improvements shall be constructed under the construction contract attached hereto as Exhibit B, and the aggregate cost of construction of the Improvements within each Phase shall not exceed the amounts set forth in the schedule of costs attached thereto, and such construction contract shall not be amended,modified or terminated by the Owner without the prior written consent of the Agency,which consent may be granted or withheld in the exercise of the sole discretion of the Agency." 6. The fallowing Section 3,2.11 shall be added to the OPA: "3.2.11. Maximum Phase Reimbu sr a ent. The aggregate amount of the Agency Consideration to be paid with respect to each Phase of the Improvements shall not exceed the amounts set forth in Exhibith attached hereto." 7. Except ae specifically modified hereby,the OPA shell remain unaffected and banged by reason of this Amendment. 8. The Ol'A is hereby ratified and afftmed by Developer and shall remain in full ce and effe.t as modified hereby. 9. This Amendment shall bind and benefit the heirs,successors, and assigns of eloper and Agency,respectively. 10. Nothing contained in this Amendment shall be construed as giving any pers or entity, other than the parties hereto,any right,remedy or claim under,or with respect to, OPA. P6402 59\836614.6 g 3 1 10/18/2005 10:03 19494978053 AMERICAN INVESTMENT PAGE 05 ,4 r06saJ,b3( RDA PALM DEBT PAGE 05/08 CONTRACT NO. R19820A 11. Developer acknowledges and agrees that if and to the extent that Agency . has of heretofore required Developer to strictly comply with the covenants,agreements and obli Lions contained in the OPA,such action or inaction shall not constitute a waiver of,or oth 'se affect or prejudice Agency's future rights,remedies,benefits or powers under the OPA in y manner,including the right to require performance of such covenants,agreements and vvl obli tions strictly in accordance with the terms and provisions of the OPA. 12. The OPA as modified by this Amendment constitutee the final expression and the entire and exclusive agreement of the parties hereto with respect to the subject matter h t and supersedes in all respects any and all other negotiations and agreements between the p hereto.whether oral or written. 13. This Amendtnent shall be governed by and connoted in accordance with the ws of the State of California • 14. If any court of competent jurisdiction determines any provision of this Am ailment to be invalid, illegal or unenforceable,that provision shall be deemed severed from the st,which shall remain in full force and effect as though the invalid,illegal or unenforceable pro sion had never been a part hereof. . l5. No provision of this Amenclnnetn may be chantged,discharged, sup emented,terminated or waived except in a writing executed by the parties hereto. 1 b. ln. executing this.A mendme�pt,neither party has z�ebied on airy zed ernents,promises or representations made by t'he other party or its attorney,other than those set f herein. 17. This Amendment maybe executed in two or more counterparts,each of whi shall be an original,but all of which shall constitute one end the same instrument [signatures begin on next page] • 410. \ P640 2111- 59436614.6 4 10/18/2005 10:03 19494978053 AMERICAN INVESTMENT PAGE 06 RDA PALM LE5LRT PAGE 06/08 CONTRACT NO. R19820A WITNESS the signatures of the parties as of the date first set forth above. • PALM DESERT kEDEVELOPMENT AGENCY, a public body,corporate and politic By:Name: Title:__.__, A T: Sec— rry AP .OVBD AS TO FORM: AO CY GENERAL COUNSEL, Ri ,Watson and Gershon, a pr fessionai corporation By:j- -- AMERICAN INVr,ST 'PALMS TO PINES EAST,Lz,C,a Cali�oraia "r/:ted liability company 77 f4/ / / By: „ • 4 Name: VA I II VIZ ir'� Z Title: „atair��%J. • By Name: Title: - .._.. P6402% 54%836614.6 5 10/18/2005 10:03 19494978053 AMERICAN INVESTMENT PAGE 07 10/18/2005 10:34 7603416372 RDA PALM DESERT PAGE 02/02 • 08(38120 5 18:18 19494976053 Ay RICAN INVESTMENT PAGE 87 • eane/ ss:e3 ne3A16372 RDA PALM DF.FERT PACE 87/Ali CONTRACT NO. R19820A Vielfigtai 4,11e9e 1*di consist of the site week impaa►ata ote nighwsy and*lariat • • the Staples buikrupg,road she facade improvararna to dm Ries-Aid*Wing,ands:as mom . . . . orb,delzoes.d and deec*ibed on the Site Plan mod deocriptuam of Catalan Arno sod e imQgpsnts attached to thisWaitA1,. Th4 aggte to smow t ofAgams:y •._ to be pond with respe t to the Phew I lorprosessecds Mall Det Lewd S1,201,412. 11"shall of of facade itscavrecasets to beildims No.2,as depicted on ate Sits Wicked to this ligazgli,. The aggregate await of Agency Co On to be paid with watt to the Pbiae U ImprovenWests shall net exceed$405,157. its=lir AOC Insist of Nola improvements to berg No.5,as depicted on the its Plesn ats'3wd to Ibis i ,, The**Ad facade keprOvegpaSS to bmfdiog No.5 will be -•ed too this BglatikA R flow mR Muir"most by the Phoning Department nt atld the „,> Review Committee of the CitYekan Desert,the Agency Awl die Owner,and 7..-' InccezPotation into the Owner's coostraetion conflict Oohed hereto as likleata The }• -. ammo of Agency Coraaidra#an to be paid wits respect to the Those El Imptovements shin>aot exceed S55 x,i ai. • • • • • • F64 Q36e1t.S 451)". A;I • 08/30/2005 15:18 19494978053 ` AMERICAN INVESTMENT PAGE 08 • 08/30/2005 14:57 7603416372 RDA PALM DESERT PAGE 16/23 CONTRACT NO. R19820A II 1 ‘;------1 r---immulgi 1 ir-- ; I Iiti, ; - . , 1 1 , '1 . ,mii• IV 1 t. At i i risk vvms IF )11 ' - Ill NZ r I [10 ilk .' B III Iligikya IV' 1 oti .mt 1117A7.11k7 IVIllp fit 011: ' k •I(OsP?Ifr a'! 4 b#'' ' • I - • 1111Z111 I ` me ' . -4 Ili, li r111�1 . M 14<4r; r \7 !047. 6,1‘ 1. T4 0 Ai hkl.Nok�: I . 1 =� � �, 1 14.2, II. FA i 1 04:541 i 1 1 iliiN,10614417:1 I I- h ‘•41 -. !-: ' *.‘1,,v1.- kul.k. AI t ! eh ' 6. 44.1... -....p. "q1.11r,de. milloini -Imam ,aamaras _ iv7i j►. ____k ••--+ram.. Ili' �� [awry, i 111'1 ii I I i' I I ir I I 4, I i• •• • A. i L. { '1 a.'r �' de.„, xr I 1, Lam:-';.•. ':;i I'Vc •1` .,+e {1. ► 3 08/30/2005 15:18 19494978053 AMERICAN INVESTMENT PAGE 09 08/30/2005 16:03 7603416372 RDA PALM DESERT PAGE 08/08 CONTRACT NO. R19820A EXFTRIT"$' CONSTRUCTION COJI'ItA.C1 [Attached hereto] 064Q2104591e36614.5 B-1 �`� tl ' • Jul 20 05 02:55p Shellman Const. 951-352-5839 p.12 CONTRACT NO. R19820A AGREEMENT BETWEEN OWNER AND CONTRACTOR ammomumunimmigramemommumummommumnimER THIS AGREEMENT CAgzement"J made as ofApri 28,2006,between OWNER: American Investment/Peens to Pines East.LLC 312 Forest Avenue,&de 204 begun*Beach, Calltbmia 92851 Telephone { 497'847< p1.6;) Facsimile 14 494-4774 end J CONTRACTOR: Wirt Sh&!man 6018 Andalusia Avenue Riverside,California 92509 S`� 7 .5 .Z 7 3 3 1 ITelephoneFricskrele ys e 9s/ 3fZ 7773 California Manes No.:743599 Federal Tax I.D.or FICA No.:33-1105304 FOR THE FOLLOWING PROJECT: Scope of Work as defined in the Owner Pstticipehon Agreement with the Patin Desert Redevelopment Agency dated March 25 2004 as emended,relating to the Paints fo Pins East Shopping Center, Palm Consort,CA,including withoutli elation Common Area rmproMemeNs to Sdi Facade Ele&On012 Facade Building 116 AS Warr To Be Done As Per-Approved Plans end SpeciNccHone Total Confracf Price O S2.289,000 Ae Per Section'4"Herein. RELEVANT DATES: Commencement bate:Upon Written Notice From Owner Completion Date:October 31,2005 Jul 20 05 02:51p Shellman Const. 951-352-5839 p.2 CONTRACT NO. R19820A • FOR vatumixeCONSIDERAnott the adequaoyandsuffiaincyof which are herebyaelhrowladged, • Owner and Contractor,agree as blows.- CONTRACT DOCUMENTS. The contract documents("Contract Documents' shag be conrpr(secf of the following: • This Agreement(as g may be modMed pursaant to Ns tonne): • The generief conditions(''General Conditional elteched here to as&Mbh A-1"; • The plans and specifications("Plena sod Specifications-1 Matting to the full awes of work defined Ind*Owner Participation Agreement with Vie Palm Desert Redevslbpment Agency dated March 25,2004,as mantled,relating to the Patina to Pines East Slopping Center, • Pake Desert, CA,including without Nmitation.thole approved by the City of Pape Desert attached hereto in Exhibit A-2'applicable to: • Common Area improvements to She Facade Building#2 Facade Building tf5 • The performance and labor and material payment bonds, If any,identified i p the Genera/ Conditions; • Thejotr procedures and instructions manual('Job Manual"If any.attached hereto as Exhibit A-3"; • The project safety manual("Safety Manual',lany,attaotaed hereto as Exf1b1 A-4,and • The instruction to bidders("Instructions To Bidders',ifany,attached hereto as E lebN A-5- The Contract Ooarmenta torn the Agreement Nothing confsined in the Contract Documents shall create any contractual reladonehip beMeen Owner and any Subcontractor or sub subcontractor of Contractor. . 2. SCOPE OF THE WORK Caneractorshad furnish supervisknr and inelegant!coinalrued ad watt MOor,mMerage arMegcdpment to perform and complete in a good,expeditious and workman/Ike manner,the work('Work' as more particularly described in the the Contact Documents and the General Conditions. 3. COMMENCEMENT AND COMPLETION. Clontractorshall commence the Work on the'Commen eeniewnt Date"as specified on pegs"1"of this Agreement Sut ect to ac ustments app owed by Ownerirt accordance with the General Conditions, Contractor shalt tufty and entirely complete the Werk, including all punch Ifst"flame by the "Completion Date"as specfllleot on page"t'of this Agreement,and give Owner mitten notice thereof ("Notice of Completion'7. In the event that Contractor does not complete a#of the Work by the Completion Date, Contractor shag pay to owner the sum of Five Hundred Dollars end No Cents (4500.00)per day for each caiendar bey until the date thereof. 4. CONTRACT PRICE Subject to addr]6ons and deductions as pnavidedin the General CondEons,the Conbeet Price is the Tail•set forth in the Schedute(s)of Values attached hereto as Exhibit"B" 5. PROGRESS PAYMENTS. ( •.."ww•u... 2 �/�� i%iP`e Jul 20 05 02:52p Sheliman Const. 951.352-5839 p.3 CONTRACT NO. R19820A Progress Payment Application shag be in the form of the(AMA 0702 and G 703 and shall include the items set forth in the Schedule of Values attached hereto as Exhibit 18' Progress Payment Applications shalt be submitted no laterthen the last dayof each month,or the first 8uedness Day(as det6ted in Ste General Conditions)thereafter ftthe above-referenced day felts on a day other than a Business Day.Progress Payment Applications shag be based upon the&hed a of Values(Which shall take Into consideration changes in the Work which have been approved fr accordance wflh the caravel Contatrons)incorporated wiStrfn the Progress Payment Application based sorely upon Me Work completed to date at The beginning of each Progress Payment Appficahbn cycle as determined by the Owner and Its lender,if any The Schedule of Values wN be prepared in such form and supported by such-data(kndusiwe of the fallowing)to substantiate its accuracy as the Owner and its lender,if eny.may require. Progress Payment Applications must inctude the following: • Copies of all fov lcea farce materiels satiably stored et the see of the Won or et scene other location agreed upon but not yet incorporated Mto the Work; • Properly completed Conditional Release of Lien and Waiver of Claims: • Beginning with the second payment request,a properly completed 1rncondYionet Release of Lien and Waiver terns form covering the previous payment; " A SupptleoiSubcontractor Statement and appropriate Release of Lien and Plower of Claim fort(*)in the form of Exhibit"C'from eft suppgers and subcontractors a><Co►tractor. Ent,Application for Payment percentage or completion death portion of the Work completed as of the end of the period covered by the Appll n krrPayment: Such percentage of completion shall be the lesserrnl(1)thepercentgle of the(portion of the Work that has actually been completed, or(2)the percentage obtained by dividing(a) the Went* which has actually been incurred by the Contractor on account ofthetportwion of She Wine for which the Corntraotorhes made or►r nds to make actual payment, and which wilt become due and pay ble,prior to the nest Application for Payment by(b)the amount of due shanty of the Contract Price alocaard Neat portion of the Want in the than most recentSndhedu/e of Values. Wank howdy(20)days of Owner's receipt of contractor's Progress Payment Application in proper form and with all requited attachments(as noted above),and provided the Work Is In lira comp#anoe.welt the Contract Documents,Owner will name tonam Contractor the Progress Payment less a nrtaln.ge of fen p.rcent(10%) and toss any amounts Owner may withhold or deduct in accordance with She General Conditions. 8. FINAL PAYMENT When Contractor considers that he has met all of his obigeions carder the Contract Documents, Contractor shall certr7y to Owner that the Wo►k is complete in accordance with the Contract Documents Subletnt to the General Contrition,Within fifteen(15 atterrhe issuance ofa Notice of Completion,Contractor shall submg to Owner his aatAplk for Payment which aural set forth all amounts due and remaining urtAyd and an eatbnete of all minor work to be When the Work has bean completed in compliance wtfh this Agreement Owinerslui cause a Nogg* of Compretbn to be retarded 6n the county where the property 1s boated and Final Payment shag be made thirty'eft(36)days thereafter.Bettina Final Payment I*made,Contractor must corm:4,wlbh aft requirements creeds Agreement,inchrding withrrut limitation the General tkinditions. 7. INSURANCE • Before starting the Wok,Contractor shag,at his expense,procure end maintain insurance on ail of his operations,In oannection with the Work,with carries sooeptatnte fa Owner.Meeting Una general requirements set forth kn the General Conditions and providing for the>bllonvirrQ IFrrrrrs: Workers'Compensation and Employer's liability Manganoa of not less than: a47 3 orv�sw� Jul 20 05 02:52p Shellman Const. 951-352-5839 p.4 CONTRACT NO. R19820A $500,000 each accident far bodily injury by accident; S500,000 poky lint for bodily injury by disease; 5500,000 each employee for bodily injury by disease. * Commercial General Liebikty of not less than: si,000,000 each occurrence(combined single theft far bodily injury and property damage: $i,000.000 for personal advertising Injury liability; $1,000,000 aggregate forpnottucts-compteted operations; 31,000,000 general agilnsgate. • Autonooble Liability of not less than: 51,000,000 combined single limit each accident far bodily injury and property damage. • Excess Coverage of not hiss Khan: $1,000,000 each occurrence: $1,000,000 general aggregate. Coritlarctor shall provide a Welverof Subrogafian endorsement under his Worker's Can,pensstlon insurance that contains the following wording: We have the right•to recover our payments from anyone gable for an injury covered In this policy. We w4 not enforce our rights against iris person or mom/ration named below(this agreement applies only to the extent that you perform wont under WNW contract that requires you to obtain this agreement from us).' The Cadlfcefe of insurance shall ptovlde iorthe following as addiliona/Mtteetis:Ameriran Investrtter+t/Pakrrs to Pines East, LLC, Alec J. Glasser.AJG Properly,LP,Pie Grasser Family Truax and/or all Members, Directors,.Officers,Owners and Employees thereof. The Description of Work in the Certificate of insurance shad be fortfeprtect as described on page one(1)of this Agreement and shall cover the Scope of Work as provided in this Agreement. e. MtSCEL ANEOUS PROWSfONS. A Governing Law. This Agreement shall be governed by the laws of the State of California. 8. Entire Agreement. This Agreement supersedes el prior negotiations, proposals end underatandkigs, if any, whether written or oral, of the parties hereto, and constitutes the entire understsndng of the parties with reference to the Wbrk. This Agreement may be amended only by a Change Order Issued pursuant to Article 5 of the General Conditions ore 1411?ing signed by both parties. C. Su Owner and Contractor each binds itself,is successors,assigns NW legal representatives to the other party hereto and to the successors, assigns end legal repreeentativesofauchotherpertyinrespecttbaucovenants agreements andob* atonseaonteined pit the Contrast Documents This Agreement maybe assigned by Ownm 1notuding an assignment to any landaris)providing financing for the Ph act Work(as donned kr tee General Conditions). The 41e •• 4 0.MP...N*..... Jul 20 05 02:53p Spellman Const. 951-352-5839 p.5 CONTRACT NO. R19820A Contractor shall not assign the Agreement or any porttbn thereof without the Oar written consent of Owner bat such restriction shah not affect the tight of Contractor to subcontract portion of the Work Nothing contained herein Via 6e construed to prohibit Contractor's assignment ones rightto receive payment pursuant to the Ca orele Uniform Cammen 191 Code:provided;however, that Owner's written consent is obtained and that Owner shall not be labfe to the assignee for payment unless notice of such assignment and demand for direct payment to the assignee is recehred by Owner together welt reasonable emoffhat the assignment has been made. in such event,any payment to tic assignee shall be byterrt check to include ail Contractor's Subcontractors and their respective Mechanics(as delned the General Conditions). D. Sevenmbl1ftv. If any one or more of the provisions contained in this Agreement or the application thereof to any persons orc/t inute:was,shall for any reason be held to be invalid,Regal or unenforceable in enyrespeof,such invalidity,1iegalRyorunenforceeb fly shall not effectany other provisions of this Agreement or Rs aptrBcation to persons or circumstances ether then those es to which it was invalid,illegal or unenforceable,but this Agreement shall be construed es fit such Invalid, illegal or unenforceable provision had never been contained heroin. E. Remedies C4rinulaffrie. AN rights and remedies of the parties hereto ore cumulative and in addition to those existing at law or in equity,end the exercise of any one or mare thereat by ether party hereto shellnotbe construed to constitute a waiver ofany others;and the waieerbyeltherparty hereto of any breech or default on the part of the other party hereto shell not be construed to constitute a waiver of any Other breech or default. F. AtMrrrevs'Fees. if the parties become Involved in litigation or ertretreion with each other arising out this Agreement motherpertbrmsnce Meteo►ia which the services of an attorney or other expert are reasonably required, the prevailing petty shelf be fully compensated for the cost of Ifs pateclpetion in such proceedings Including the cost incurred for attorneys'fees and experts'Area. Moss Judgment goes bydefault,the attorneys'fee meant she,net be comprdbdIn accordance with any coed schedule,butstree be such est*fully reimburse ell attorneys'fees scluellyincwred good faith,negardress piths slaeofa judgment rt being the intention of the parties to be rutty compensated for atl attorneys'fees and experts'tees paid or incurred i'rn good felth. G. Section l-leedkers. The heedinga of the severalArtldeee and Sections of this Agreement are inserted solely for convenience of reference end they are not apart of an are not intended to gores}. !knit or aid in the construction of any temh or provision hereof. H. Relations**of P#4Ms. Neither this Agreement nor any of the other Contract Documents shall be correlated as lasting a general agency orpartrherahjp between the parties,and Owner end Contractor shell have no authority, express or implied, to bind each other, except ea Specificaliy provided herein. Contractor and Owner do however,agree to cooperate vatheech oftertotacl*ate the ornery and economical co mp/etion of the Work In accordance with the terms of the Conhsct Documents. f. Suhordinetien. Contractor does hereby suborders*any and all liens or Tien claims which P may now or at any ties hereafter hove to secure payment'of any suers now or hereafter chump by Owner to Contractor under the terms hereof to the lien or Hens given or crested to secure the repayment of any construction lean oilcans made to the Owner in connection WHIM'Pitied;Mork Confrerter shell execute prompffy upon request such other or halter agreemanta evidencing such subordination in such form es any such lender or Jendera shall require. Notlaing contained hi this Section shah be construed to impair the Pen rights that Contractor would otherwise have. .4 Notes. Ail notices,nests,and demands of any kind which ertfher petty hereto may be required ar desires to serve upon the other partyhereto shelf be in**kg and,.h.%be served upon such other party by personal service or by many•capytfhereofby certified mail,postage prepaid, with return receipt requested,addressed to the address of such party set forth b this Agreement or by facsimile provided answer beck conSenetionoffie entity notice is received andn08oe*thereafter contamed byr epistered°roan l ed era 7merked TrevroustyDelivered by Faceeelle;Qr byereptrtab/e overnight courier sewlce. in case of service by maid,service shoe be deemed complete on the day dw"MOO 5 'eAIPONINI 44( rr Jul 20 05 02:53p Shel(man Coast. 951-352-5839 p.6 CONTRACT NO. R19820A of actual delivery as shown by the addressee's registered or cerdMed meg receipt or at the expiation of the third business day after the date of mai►tng, whichever WV occurs. In case of service by *conga,upon receipt at the facsimile number as evidenced by the answer back mechanism of the facsdMt7e machine, end in the case of delivery by courier the day dethrone ea evidenced by the courier's cfahVery reoetpt. The addresses to which and Me persona to whom notices and demands shag be deWered or sent may be changed from Erne to time by notice awed as hereinabove provided by either party upon the other party. K Access to Records. Owner shag be afforded access to all of the Contractor's records.books, coneapondence,instructions.drawings,receipts,vouchers memoranda and similar data r rotating to the Work during reasonable business hours,and Contractor shall(preserve elf such mord*for a period of Ave(5)years after completion of the Work. at. /ntergretetion. Both Owner and Contractor have. with the assistance of then respective counsel, actively negotiated the terms and provisions contained in the Contrast Oocuments. Therefore. Owner and Contractor votive Me eltieet of CsMbrnrie pal Code§1654 which interprets uncertainJes in a contract veins'the party who drafted the contract. N. StiqujatecL)ui realRate. Whenever Contractor's obligetadtopayOwnerary sums pursuant to&s Agreement,the outstanding Offence owing Owner shag beer intereatat the B untedInterest Rate(as darned in the General Conditions)Morn the dare due until pets. O. Survive?ofRiDlits. Anyhtdenuilfy,warranty or guaranty givenby Contractor In the Contract Documents shall survive the expiation or termination of this Agreement and shalt be binding upon Contractor un(ua the laterof(I)anyedion thereunder('barred by anyappticeblestasute oftimtlatlontst or(2)such data as any aeon or action for which indernra cation trey be defined la Idly and finally resoMad,and.It applicable.any compromise thereof or judgment or award ther*An te peid!In full by Contractor and Owner or any other Indemnified party is reimbursed for any amounts paid In con>p.mIue thereby or upon a Judgment or award thereon and In Wens*of sueh action or claim, inckiding actual attorneys'fees. Payment shill not bee oondQdon precedent to the enforcement of any of the lndernnfy provisions in the Contract Documents. CONTRACTORS ARE REWIRED BY LAW TO BE LICENSED AND REGULATED BY THE CONTRACTORS"STATE UCENSE BOARD WWII HAS JURfSOICTTON TO RY VESTIGATECOMPLAINTS AGAINST CONTRACTORS IF A COMPLAINT IS FILED WITHIN THREE YEARS OF VIE DATE OF THE ALLEGED VIOLATION,ANY OUESTIONS CONCERNING CONTRr4CTQRMAYBr;REFERRED TO REGISTRAR,CONTRACTOR'S STATE LICENSE BQARD,P.O.BOX26000,SACRAMENTO,CALFFORNLI 96926. I l WITNESS WHEREOF, Owner and Contractor have executed this Agreement this 2/dey of 2006_ OWNER' CONTRACTOR: American , ens • s to Pines East,LLC Wirt Shelman aCe '. i ny By. AS 411 I Wirt She/linen M•34MI 6 e.r...R.s Jul 20 05 02:53p Shellman Const. 951-352-5839 p.7 CONTRACT NO. R19820A • EXHIBIT A THE CONTRACT DOCUMENTS A- 1: General Conditions-attached hereto; A-2: Plans and Specifications- -the plans and specifications(Piens and Specifications,attached hereto including the fill scope of work defined in the Owner Participation Agreement with the Palm Desert Rec evelapmentAgencydate0 March 25, 2004,as amended,reiefng tattle Palms to Pines east Shopping Confer,Palm Desert CA,inducting without qr Radiation,those approved by the City of Palm Desert attached hereto In Exhibit'4-2"applfcebte to: Canenon Are*Improvements to Site Facade Building g2 Facade Sulking#5 A-3: Job Manual- None; A-4: Safety Manual- None;and A-5: Instructions to Bidders-None. Jul 20 05 02:54p Shellman Const. 951-352-5839 p.8 • CONTRACT NO. R19820A EXHIBIT"B" SCHEDULE OF VALUES See Attached • M/eV 8 rassuriravernm Jul 20 05 02:54p Shellman Const. 951-352-5839 p.9 Apr yr Qb tt.1. 4p SheOmen Cone► . 961-3524339 p.1 MELUAAN EN RPRISES CONTRACT NO. R19820A Palm Desert cL 7wc::.-----Try =�wA�e�—Aa�e�f>•c� J -^^ fir eee1A=e�Ie�wet•Isi,.::,l umMINISINEEMMIIIMINEIENINMENIME i ar ���I�:7e1•I— l E>a.S Mc:UM g717-1C.,__Ammum MEM ICii)•Ct-`^� �l� �E Fiso -- fr_LESI .....11111EMENNEINEEMEENEMEEME EIEMIEMEM MEMr?'3 EidE1>4E*IVA 7T11 MINEENEMEe1EM F'.�E1Ew:f1 IIMMENIelEMEEEME—.r A9iEFZ f.s 1 ' L, MEM MEE�"MEIN EINE).Zia 'Su WANE E-" EMEMEMIEll EMINIEELEMEEIEMILI G....,_ 1111111111ENINIIEMENIIMEEM ♦eefEAMM fZ4t lL= iiie#111=1111111111111111•1—[>1111111M &.• r C.'?' IIEMEMEEMMEEMEMEMEMiI— i alal P.ItICEMENIEliENEIMENEIMEe1iENIMiEi! ,L.. al Dm �FV.±7•1011 rEIMEN MEM IMMENEMEE MEEK c3L''si:S�" MUM MEN E EMO moms mom MEI EINEM Calln fraki llef 7�.71liMMENRIEIMMIEIMEEIE MEM MENNEee>•EJ MENEW1EIEENIMmmISMINISIMMEIReiMMIMINMENEli :Ji � .. ileiL7=:i�F7RL'L E1s.mitul sm•7MEW fk I1CYtmen �IiFtl iUf �� �iE1F. 4Lt l 1.u �ST� LEMEms mil EllEaLjamom—LELLy_;•f W.. ilelM MINE NE i�_;I 17.t`' c._ Juf 20 05 02:55p Shelfman Const. 951-352-5839 p.10 . _ Apr 07 05 0335p Sharron Cm 061-362-6830 p5 SHEUMAN ENTERPRISES CONTRACT NO. R19820A Palm Desert Buiding 2' cod Oan' _Soot "ai�t 16+t+a ' ice '�ien. ToAc ,.02b �Q , 12 ice, 1.040 � 1 . 1400 TN*Bo I. .Rift 1-� '7��4a iCarl. w k. . 3i 6e-11711;. 1 b4o T Ta�rrt , _ Do Fi00 dllotclwer _jhti . 10b. aoci2iDD ,60 Ws 1 ,-710 �R en es -+ ..a 4-7.Firsce 4-- -4.- WO 1 �, faas+1� _t __ ' t -pm - uaoo`s - ' s - f s 101:1 44o6: i6.itn! 1-000 13tlrluil Oagaffalr T _ • MOO. - ,. rt�+ it 21 Q60/Paid11a11D I a ` 1S_ �1� [Mae bec 400r _ D YlarJnp at S1L��fAQo,ABrawaana MI �(d1bY180e flfP r A 4- 1 ' Si w11 1 3000 J S 2t• UAW_i s9 .A11 Thane 4ew . _ iii, , , k 4-400 -an �_ aill , 4 : 1i po;16435 6 12,212 Ramer if,.. -43 . OCPkt liLAw . :=calf„ u iwlima Bolan is,soo 4 taxer Stilt NACU 1413;2 111" 1� Jul 20 05 02:55p Shellman Const. 951-352.5839 p.11 . "Pr u r to ua.1ao Ur enn in Corrit 951362303g 13.3 SNEu.MAN ENTERPRISES CONTRACT N0. R19820A Palm Desert Building Be 72.000 1 +.oro � i-raa `F Rrrt 966 L eJ - Hy . 1 r 1•a, c 8 I 1440 Tam.Yorel f is_ '�n 1-0C TI MIS.wee 0+4rf+•e 1- Q a$DY 1-700 fil.rMr.n1Dres =II 1-^ Knt So .Prot1-a r i0.E910- _. - OwtMi $ -720 Tom Warr6 14o0 rtanee ej► 4 - tit ? {matang Vat 1,00k ' ` 3.aliii ailu 1•ao 1-ege wn2rnUal its weer r r , sue- ri 13.222 r _�s I - >E"i:lS 3 '�4 I ,.D It 300 Dttg , '„-,Irmo• Eznii_ 106 ^ $-118 • 45.17f I 46 l mp70 r Sa44,.312 ilv—, rat - . iii::i. ••-• uses&Mewlwaf st1Y 'tDP -•• T,lir r � - 1 ef _ raoo _ - '- 8t upo r� r 114t50 aid At — 17. • 17,400 is laeaar s tav # . • 1 /t:tiw4ce 13.� ffi 1T� $. I . <1 0 6 _ . « / / N--OIN®n---®-------© _©©©©0©V-©- a 0 & 0 || \ e z 0 0 o $ t ® i. A % & 2 t K • . , La CI : . . . . w •it •o 00 Z ° hil . . \ }� g � $ . la. f . 2$ § ka . • g 2 &» § ( ®e . illi w , * 1 6la ° "WI $$§ 2§ 1 § k §d§$ dOh Jhh i l i tita i a §�2$}H I lorEvt b t$ 2 I § § ~_9 ~ ��~ �kk�� § ,._..k_, 62k;i o8:i%it o 4.,§k 2 it) NNNw2cie$ Q taw 04W �w00f/ ore. ■ k�w vi Ni I ■ I CONTRACT NO. R19820A 6 DUE PROSECUTION 7 6. COMPLETION 7 7. DAMAGE FOR DELAYS 7 ARTICLE 2 CONTRACT PRICE AND PROGRESS PAYMENT APPLICATIONS 7 1. CONTRACT PRICE 7 2. PROGRESS PAYMENTS 7 2.1 Progress Payment Apploatlons 7 2.2 Final Progress Payment and Payment Retainages 8 2.3 No WaVer 8 2.4 Fallure to Tknely Provide Required lnfonnatIon 8 25 Right to Withhold Payments 9 3. LIENS 9 • 3.1 Defense 9 3.2 Recordation ofLlen 3.3 Disputing Liens 9 3.4 Payment Subject to Performance 9 3.5 Right to Withhold Payments 9 3.8 Payment of SuppNers by Owner 9 4. LIEN RELEASE 10 4R77CLE 4 CONTRACT DOCUMENTS. 10 1. CONFLICTS AND CLARIFICATION 10 2. NO ADJUSTMENT FOR GOVERNMENTAL COMPLIANCE 10 ARTICLE 5 ADDITIONAL GENERAL AND SPECIAL CONDITIONS 11 1. CHANGES IN THE WORK 11 1.1 Change Orders 11 1.2 A4IWtment to Price and Time to Perform 11 1.3 Change Order Request by Owner 11 1.4 Change Orders Adjustments 11 1.5 Compliance with Change Orders;Payment 11 1.6 Unauthorized Changes 12 1.7 Sack Up Data for Change Orders 12 1.8 Effect of Surety Bonds 12 • 2. TERMINATION OPTION 12 2.1 Owners Right to Terminate 12 2.2 Stoppage of Worts Upon Termination 12 2.3 Payments Upon T.nmhtatlon 12 3. EMPLOYEES OWNER 12 3.1 Removal of Direction of Owner 12 3.2 Compliance with MasterAgreement 12 3.3 Substance Abuse Testing 13 3.4 Delivery of Union Trust Fund Report 13 3.5 Compliance whin Laws 13 3.6 Work Stoppage of Slow Downs 13 17 Designation of Representatives 13 3.8 Prohibkfon of Consumption of Alcohol and Regal Substance 13 4. CONFIDENTIALLY 13 5. INSURANCE 14 5.1 Required lnanarce 14 1 d 0 N cc CYN CY+ O z a.raarva0hnnaooro000c ft0cbwwwo,amcomoRR 0 U H 2 O U ' N `e O ill 1 .. . . . .41 . . , 1 j -. : .; iil a i1Iø Q s Qm . il0 lii Ili 11 hu!Ip% _J Kh� JI1!IdIIHJ: g iihh Qqp VOCU � d •••- Q Meitriai ` Div 113 F= m oa tae Q a N pla�D fp Q w td cry pQr"Nft2v-NQ�-N wwwi.6..d (03-oi aiai moocm,- ,— a r:ed ad V %--• r J 1 CONTRACT NO. R19820A GENERAL CONDITIONS ARTICLE I scoPE OF WORK STANDARDS AND ADDMONAL DERNTIONS I. SCOPE OF W_OEtt. The terms"Work'and Scope of the Work'are synonymous and may be used interchangeably to mean the furnishing of at tabor,mateffals,toots,appfrances,equipment,supplies,supervision,construction plant and machines, transportation, tint, shop drawings and samples, as•bu0t drawings, accessories, wwrrantleatsrerantees,and at other fact Ies and incidental necessary or convenient to accordance with the ContrastDocuments(inciudinganyoonstrucbonshownorreasonebtyinferablekomthe ContractDocuments) carefully observing and oompiykmg wth all Governmental Requirements(defined below)as and when required for or hi connection with the conabiuc ion,testing,bits/operation and successful completion of that portion of the Project covered by the Scope of tie Work end the carrying out by Contractor of all the duties end obligations for the Work Lnposed by the Contract Documents. The Work Mali also include such incidental work stems,which may not be expressly Indicated in the Contract Documents,but which are considered the Contractor's obligation to provide under normal standard construction industry customs end practices vilden Los Angeles County,Catania. 2 PROJEQT Set 2.1 Investigation of Protect STt. Contractor certifies that he is Arty&miter with at of the terra of the Contract Documents,the nature of the Easiest She,She conditions under which the Work Is to be perlFmrrned,the character,and of the rrhsterlets,equipment.end 1JaClldles necessaryro timely complete the Work In accordance with the ng requirements ofArticle 2 in e good and workmanlike manner, the general and local condition relating to the Work, and ail other matters that may affect Contradork performance of the Work. 2.2 fto Reliance.Contractor- • :intothisAgreemnnt(andal/subsequent modarrcattonshereto) based upon his investigation of ell such atters set forth above and is not relying on any opinions or repreaentetions of anyone and no verbal e•reement or conversation with any representative of any one or more of the Reviewing RepreeentaWas(• other authorized representatives of any one or more of them) either before or at ter the execution of Or Agreement. No estimate or bid of Contractor preceding this Agreement shall affect or modify any of terms or obligation.contained herein. In view of Contractor's far:Amity with the foregoing matters, • •.-. assumes at risk of Prgf.d Ste conddlons kr agreeing to perform the Work for the Contract Price •in accordance w►7h The Project Schedule. 23 ,, .,...,.,.., . .1!,,1,17. r.•.a Lt...,-., . AR provisions of the Contract Documents ere incorporated into this Agreement by this . .lance and shed have the same effect as if written in hit in this Agreement. Contractor and his •.• , ... are bound by the Contract Documents insofar es they relate in any way,directly or Inufi►ed/y,to the • covered by this Agreement 3. SUSMfTTALS. The Work ahalfcmclsrda the timely. ...oration andsubmtlal of ell Submittals(defined below)hr such sequence and with sufficient bed time • as to cause no deiey In the Work or kr the acWftios of other contractors for review and acceptance .y the Reviewing Representefives (and at other authorised representatives of Owner). The Nevis • Reprasentatbes review and acceptance of die Submittalss shad not be deemed an endorsement or of the safety or design conformance of the Submittals with She Contract Documents or any pert thereof, nor approval or acceptance of Contractors means,methods, techniques,sequences or procedU es re to the work or conformance with Governing Requirements; Contractor being solely liable for such . 4. QUALITY CON7RQL reara.nwr 1 OBialY.COMMONS a..mar..or CONTRACT NO. R19820A • The Work shall incite*quality control Inspections. Contractor shati i mpierrhrd appropriate quetity control and krspecton programs for the Work that are aoceptat a to Owner. Daffy written reports shed be submitted by the Contractor for the status of Work in progress. On-ste inspection by the Reviewing Representatives or,Governing Agendas, any ofthem,shad not in anyway relieve fbntrector from cenythg out his quality control inspections and his onslbfty/for supervising at portions of the Work Contractor shall utilize his skids end attention to the saran degree as would be expected from slotted contractors performing work of the same complexity magnitude as requited with respect to the portion of the Project covered by the Scope of the Work. Contra or shad at Willmar ee furnish to the Reviewing Representatives,or anyone or more of them ample fadltfes for materials et the Project Ste or at the Contractors shops or any piece where materials under this Agreement may be In the coursea/prepemton,process,manufacture or treatment. Contractor shall further furnish to the Reviewing RepreasntatNes,as often as reasonably required by Owner,flit reports of the Progress of the Work at anyplace where materials under this Contract maybe!n the course ofpreparetion or manufacture or storage.Said reports are to show to progress of such preparation and manufacture as may be required by the Owner,including any plans.drawings or diagrams to the course of preparation.Contradcr,utilizing the Archkecfa as-built held plans shalt needy,cleanly and concisely maintain es-bunt drawings,updated weekly,showing locations of art equipment and materials as we/es revisions and modlficaHa s to detw7a effecting the Work and the Plans and SpecIAcations. 5. QUALITY OF WORKMANSHIP AND EMERGENCY WORK The Work shag be executed in the most safe,sound, worknranike and beneficial manner. All workmanship shall be first class and of the best of lea several kinds,and all materiels used In the Work shall be furnished in ample quantifies to'meat.the proper and expedldous execution and completion of the Work ' and shall be new end the best of several kinds,except as may be expressly provided in the Contract Commits, if required byOwner,Contractor abet furnish evidence aetat9ctoryto Owner asto the kind and quelly or meioses and equipment No substitute whetaoever shall be ordered or installed without the prior written approval of Owner, which approval Owner may give or withhold In Is We discretion and which approval Owner may condition upon famishing such other date about the proposed aubstlute as Owner or any of Me Reviewing Repress tathos may consider pertinent. 3.1 Rite to Rafael Work. Owner shell at ail tines have the right to reject and/or stop the performance of any Work which does not conform to the Contract Documents,or which is not satisfactory to any Governing Agency. Ccnbactorshal,upon receipt of any such notice from the Owner,immedieterystop performance of and correct any nonconforming Work and abet bear the entire cost of doing so,including the cost,'any,incurred by Ownera result deny disturbance of the Project Work in progress. If Cordrectorfres to immediately commence corrective procedures and to prosecute the same diligently to completion.Owner shell have the right to stop the Work matey upon written notice to Owner,and Owner shalt have the remedies available under this Agreement,hxirrding without A4nkat/or,the remedies set forth in Artie 5. 5.2 AyrarrgencyRamify.In or,emergeiicyabeding(orbedevedby Owner, ngoodtaih,toaJloW the safety of parsons or property,Contractor,without special instructions or authortsation from the Owner, shag act at his own discretion to prevent such threatened loss or injury and shalt have the aubhonmy to dose domhls op. suntif any wisefecoz,dllbn has bun corrected Contractorshat nobly Ownerh nedlat y of the action taken and the status of the emergency. Any additional compensation or extension of time charred by Conhectoron account of the emergency,when such emergency is not caused byes negligence or default of or any of his Subcontractors,shag be determined es provided in Article S. 6. MATERIALS PQ3J,?ISHED CY OTHER$ lithe Work inoludes Installation ofmatettalsoregtipment furnished byothers,Contractorahal,in the presence of Owner,ceraffr y examine,Inspect,unload inventory and accept in mere ire/rums Provided end thereupon mind as necessity,handle,story andinstaithe items wkhskid and cameo as to aurae their satisfactory installation and operation Upon Owner's written acceptance of materials and equipment furnished byrithers fortheWork a and equipment shall become the sole raeponsldllyofOwner and any loss and/or damage to metatiala or equipment frnished by others due to negligence and/or wil7ui misoonductoflb.Conerector shall be charged to Cantractorand deduotedfrom monies due Centraetaunder this Agreement When Contractor melees hit Newton,of rnatenais end eqq nmanf furnished by others,and prior to commencing any Installation.Contractor shall provide Owner we a written inventory of all missing A,.e llibrinwol zMOM commons • • CONTRACT NO. R19820A and/or damaged materiels and/or equipment furnished by others in connection with the Work. 7. PROTECTION OF OWNERS WORK AND PROJECT WORK Contractor shall effectively end safely secure and protect the Work from damage or harm,from all sources fnrJuding the Garments end the defective or Incomplete laboror materials of others,and oho,tossuary full responsibility forth°conda fon thereof until acceptance bythe Reviewing Reptetentatives.Contractor shall provide such protection es Is necessary to protect the Work and his workmen wid the milkmen of offer contractors from his operations. Contractor shall be liable for any loss and/or damage to any Project Work, to any equipment and materiels on or about the Protect Cite end workmen thereon which is caused by Contractor,his employees,SubcontractorsarxVartheafnvlfees.Contradbrohaff also take al/steps necessary to protect acyeoent surfaces end work performed by others from damage due to Contractor's performance of his Work. Contredorshaii not post any signs et or hr the vicinity of the Project Site nor permit the same of any of his Subcontractors.unless Contractor hes obtained the prior written approval of the style,sae,type. color,and location of the proposed aign from the Owner end from at Governing Agencies or any owners association having jurisdiction over such posting. Contractor shot Ratn, and shell cause his Subcontractors,Its Mechanics and erapkyees to adhere to and observe all signs posted at the Project Site. 8. USE OF EDUIP1 NT. Contractor assumes elf responsibility for,and shall hold Owner horn iesa from,all psalms,actions, demands;llabddies or expenses.hheh ding attorneys'fees and legal coats resulting hum the use of Owner's equipment or feoittiee used by Contractor.his Mechanics,Subcontmotacs or their respective Invitees. 9. ,$CAFFOLDIfjp.STAGING AND HOISTING. As part of his Work, Contractor shell provide, and at all times continuously maintain, in safe opera ionel condition, the Work and al scatfok&hg, staging, bracing. hoisting,planks,ladders,rigging, barricades,protective devices and coverings,end all other associated equipment and accessories for the continuous ,alb end satisfactory e000rtpilalunent of the Work and it portions thereof, inducting all franaporlat o,unloading erection and removal of same from the Project Sle. Usage ofany equipment of Ownershalbe pemhltted only with prior written approval from Owner and Mal be subject to strict compilence with tiff terns and conditions imposed by Ownerand shell be permitted when scheduled with Owner and when available and shaffbaet the sole risk oContractor. CONTRACTOR HEREBY RELEASES OWNER OFANY AND ALL CLAIMS WHETHER RELATING TO BODILY INJURY OR PROPERTY DAMAGE RESULTING FROM USE OF ANY FACILITIES OR EQUIPMENT AT THE PROJECT SITE 10. TEMPORARY UTILITIES. Unless otherwise stated in the Contract Documents,Contactor shall provide temporary electric service to a main distribution point(from which Contractor shall furnish and maintain Ina safe condition,the necessary temporary electrical power forthe Work).temporary water and bmporary sanitary facilities at the Project Site pursuant to standards for the canstructlon industry lo Southern Cagan*for Contractor's distribution and use during the course of ere Work. if. 11.1 2gfittyeargeigjm. Contractor shag take all necessary and required safety precautions In the performance of the Work,inducting without fimlation complying with all OSHA safety Sews,codes,rules end regulations. Contractor shall Immediately no Contractor of any end all Injuries to any employee or agent ofCorfractoratoreboot the Project Site,and shad immediately report to Contra torenyandslk/raie to other victim ?occurring at o►about the Project Site. Contractor shall within hventy-for (24)hours of such occurrence Amish a written report of the incident to Owner. 11.2 Removal of Debris.Etc. During the course of the Work Contractor shall remove waste materials and dabrts mulling from his Work one daily basis end at such additional times as la necessary, in the Contractor's o inb . to maintain the Project Site in a continuously dean, ornlarty and safe and production ready condition. Contractor shad store all materials,supplies,equipment end goods involved In ~am lorearlinl 3 oases rorsvnohrs tier • CONTRACT NO. R19820A the performance of the work rn appropriate containers or endorses Mat ere secure horn access by persons not associtted with the performance of the Work in locations aooeptable to Owner. No temptaarystrudraes, including construction traders.or other temporary office facikees,shag be placed or maintained at or in the vicinity of the Project Site unlit the appearance and location of such structures have received the prior written approve/downer. upon completion otthe Work Contrector shag remove from the Project Slte allternporary structures,debris and waste incident to his operation and clean ad surface,fixtures and equipment relative to the performance of this Agreement. u Contractor fags to perform any of the cAsanup!functions under this Agreement within one(1)day alter written field notification to Contractor(through the on-slte representative of Contractor)by the Owner. Owner may proceed with such cleanup Work as Owner determines to be necessary and appropriate and in the manner Owner may deem expedient,and at costs and expenses Incurred by Ownerto dean up the Work shot be charged to Contractor and deducted from those monies due, or thereafter to become due,Contractor under this Agreement. 12. REQUIRED MEE17NGS. To fac4imate the progress of the Project Work in a manner seas to assure Owner that the Project Work will be completed tiny,Contra cforshafl meet and confer with Owner(and other authorized representatives of Owner),Architect Engineer,those contactors and Project consultants who Owner deems necessary to assist In scheduling and coordinating the Project Work from time to tine and as often as may reasonably be requested by Owner 13. )NTEGRATiONQF WORic. • if necessary to integrate the Work wdh the work of others at the Project Site,Contrector shall cut,lit and patch the Work so that k will be property integrated with,receive or be received by,as applicable,the work of others. lithe Wort of others must be modified forth*Work to be property Integrated,Conhactorshet immediately notify Owner in writing and shag not alterthe work of others wthoutthe written consent of Owner. 14. )t4ZARDOUS MATERIAL." 14.1 prvhrhilidh. Contractor shall not point any Hazardous Material(as defined below)to be located,used,or incorporated into the Work or brought onto the Project Ste in connection w*h the work unless(a)absolutely necessary because no reasonable ettemaNve is available,and(b)the precise nature and quality piths Hazardous Material is specified in writing to Owner.and(c)the prior written approval of Owner is obtained. 14.2 Compliance with GoveminaLaws.Contractor shail romp!y with aD Governing Requirements (inclusive of Proposition 65)and prudent business practices concerning any Hazardous Materiel required to be located,used,and/or incorporated into the Work,orbrought onto the Project Steer required and approved to be transported on,to,from or aboutthe Project Site. Contractor shell observe.connpy with and note gage M any warily on, under or in the vicinity of the Project Stte which would violate the Comprehenelve Environmental Response,Compensation and the Liability Act ef 1980,as amended(42 U.S.0 Section 9601 gt f -),The Resource Conservation Recovery Act of 1976(42 U.S.C.Section 8901*Raj,the Federal Water Pollution Control Act(33 U.S.C.Section 1251 si no.),the Safe Drinking WaterAcf(42 U.S.C.Section 1251 if ), the Hazardous Materials Transportation Ad(49 U.S.C. Section 1801 If .), the Toxic Substance Control Action(15 U.S.C.Section 2601-2620),the California Hazardous Waste Control Law (Caifo mie Health&Safety Code Section 25100 I tag.),the Pbrter'Colonge Water Qualify Control Act (Cat/omia Health S Safety Code Section 13000ga gg.),the CarpenterPresley-TennarHazardousSubstance Account Act(Ca*Mornie Health&Safety Code Section 25300I tag.)end the Safe Dunking Water and Texic Enforcement Act of 1988(California Health and Safety Code Section 25249.5 stag.)and agother statutes, regulations and orders eleding environments!matters(collectively."Environmental Laws"),Conheeto►shal promptly,at Contractors sale cost and expense,take ail k veatigetory andRv remedied aeon required or ordeedby any Governing Agency arising older EnvharementalLaws appdoebia to Me Work and shag provide prompt written notice to Owner with copies of all such governmental notices. 14.3 Notice of Hazardous Material. Contractor shall give prompt mitten notice to Owner of the existence of any substances on the Project Site which are known,considered,or believed to be hazardous ortoxicsubatanaa under Environmental Laws or any substance orm.tter Mat results initabpi(yto any person mama rnwsnr,r 4 Sererµ oommora arrYaan.or. • CONTRACT NO. R19820A or entity from discharge of or exposure to such substance or metier under any statutory or common law theory,Including without linHtadon,pesticides,asbestos,forrneldehyde,polychlorinated biphenyl,.solvents, Petroleum and motor Biel hydrocarbon material as weft as any other substance that becomes subject to any federal,state or local agency Order or requirement for mmava4 treatment,or remedial action(coiectivery "HazardorusMetertel7. Cantrector shall also promptlyrepont°Ow rer anycircumatanceorincidentinvoling Hazardous Materials at the Project She. 14.4 Dloeasai_ofNezarobua Matedet Contraotorahal be labia forst on and offske disposal of Hazardous Material(andsha#sign anynwndest in connection wkhthe transporter storage ofsuch Hazardous Material)and for any discharge,release,injury to any person.or injury to any property resulting from use of Hazardous Malertal in the performance of the Work and shalt be responsible R robtaldrpakroquiredpermits andapprovaisnecessaryto remove such Hazardous Material orothenvise rernedyanyprotann resultingfrom Contractor's and his Subcontractors and their respective Mechanics'use of Hazardous Materra,. Contractor shall muse the removal of the Hazardous Motorist used or brought onto the Project Site or the vicinity thereof by Contractor and his Subcontractors when required by any Governing Agency and remedy any associated problems resulting from the use of the Hazardous Materiel in accordance with the applicable legal requirements end prudent business practices provided Owner's prior written approval is obtained. 15. ADDRIONAL DEFINMON,S. • 151 'Business Day'means Monday through Friday of each week,except that a/egal holiday recognized as such by the Government of the United States shah not be regarded ass Business Day. 15.2 "Contractor'shall mean the person or entity who has a direct contract agreement with the Owner to perform any of the Project Work and an of his or Rs employees. The term"Conbrctor'is referred to throughout me Agreement and Conftad Documents as If singular in number and mesculia In gender and means a Contractor or h s authorized representathre. By executing this Conked,the Contractor attests that he is thoroughly knowledgeable of the Work and related work by other trades and contractors and,as such, oerbres that he has carefully examined the Contract Documents,Project Site,Governmental Requirements end is aware of end understands the avant:My of manpower,meteriss,tools,ditties and equipment required for the Work Contractor represents to Owner that prior to executing this Contract,the Contractor has resolved to his aatiser:ddon,ail known errors,omissions,**stances it codas,ordinances and regulations, impractical deletls ender corrals between the Contract Documents,Na Work and the►writ of ofhertradea being a part of or otherwise affecting his Work 153 'Governing Agencies"or "Governing Agency'shall mean any governmental or quasi governmental agency or agencies having jurisoYction over Me Work or any portion thereof. 15.4 "Governmental Requirements'shall mean aN codes,or inaances,Sawa,permits,orders,and any odes and regulations promulgated thereunder of el Governing Agencies. • 15.5 'Lender'shall mean anyone providing financing to Owner to defray In whole or In part the costs of the wet of or construction of the Project or any portion thereof. 15.5 Mechanics'shell mean anyone Intro/vied with the Work et the Instance or request of Contractor Including without limitation aN Subcontractors of Contractor and all workmen engaged by Contractor in connection with the Work,and aN of their reapecth a Mechanics. 15.7' "Owneeshatmeen the entity ldendlled In the Agreement aria sucoessors andassigne. The term"Owner'shell mean the Owner or Ms designated representative(the tonne"designated sep esentadve" and'authorized representative'are used kNerchangeebtyt this Agreement and have the same meanings). Contractor shed look solely to the property of Owner(provided Contractor has properly perfected its right to enforce is right as against Owner's property) for the payment of any dolma against Owner and for Performance of any obtQatIons of Owner hereunder The shareholders or partners of Owner,as the same may from time to tee appear,jointly and severally,do not have any personal Robley for obligat ions entered on behalf of Owner. 15.8 "Project Schedule'shed mean the schedule for the Work set forth in the Agreement •m.rre wwar,nr oa.gm.a. CONTRACT NO. R19820A • • 15.9 'Project Work"shall mean at Work for the total construction of the Project required by all contractors. 15.10 'Stipulated Interest Rate'shall mean the greater of(a)fire percent(5%)per annum plus the discount rate charged by the Federal Reserve Bank of San Francisco as of the twenty4l lh(25th)day of the Wender month immediately precedkp the demand,or(b)ten percent(10%)per annum. 15.11 "Submittals'Include shop drawings,product data,samples and similar materials. Shop drawings ere drawings,diagrams,schedules and otherinfomnatlon specially prepared foe the Work Product date are Illustrations,stenderd schedules,perfomhence charts,instructions,brochures,diagrams,and other information furnished by to ltustrate materials orequipment used in connection with the Work Samples ere examples of illustrative material or workmanship end established standards by which the Work wit'be evaluated. 15.12 "Subconf►adoeshot mean a person,Arm&corporation and al of his or its employees who • • has or have a&&red or lndbect contract or engagement with Contraotorto perform any of the Work or supply materials,equipment orany other tern rotated thereto. By executing this Agreement Contractor represents that Contractor is the agent for each Subcontractor who shall be bound by this Agreement,notwithstanding that no such Subcontractor Is a signatory hereto. ARTICLE 2 SCHEDULE FOR COMMENCEMENT AND COMPLETION OF WORK 1. COMMF_NQII6fiNT. Contractorsfat begin the Work on the date or Napplicable,within the time limit specified/n the Agreement. TIME IS OF THE ESSENCE OF THIS AGREEMENT. 2 SCHEDULING. 2.1 Scheduling. During progress of the Work,Contractor will provide Owner with additional scheduling Information consistent with the Project Schedule be a form acceptable to Owner. 22 Manner of_Perfonnlnc Wolf. Contractor shall prosecute his Work in a prompt,diligent end skitters manner In accordance with the Project Schedule and without delaying or hindering the Pied Work of other contractors orsubcontthlciors.Contractor steal coordinate his Work with the Pnthe PrcfectWorkofaiother contractors,subcontractors M a manner that will facilitate the safe,timely end&indent completion of the Project Work. 2.3 Future to_Maintabh Schedule, If Contractor fells to melateln the Project Schedule for the Work,Conbactorshall,without additional cornpaneation,accsNrate the Worn,ea Ownerineydirect blunting, unfit the Work is resumed and progressing be accordance with the Ptgiect'a Schedule. 2.4 Control Over Protect. Owner shag have complete control of the Pngfsct Ste and shelf have the right to decide the time and order in which various portions of the Work shall be instated and the relative pntorty of the Work and the Project Work of other contractors,and,fi general,et other matters pertaining to the timely and orderly conduct of the Work of Contractor on the Project Ste. 3 UST OF SUPPUENS OF SERVICES AsirD MATERIAL. Conhsdtor shall cortcurrently with the execution of this Agreement aubmtt to Owner,Contractor's notarized statement("Suppler Statement"showing the nanes and addresses ofatofGbrhtradar's Mechanics • CONTRACT NO. R19820A • to include am persons from whom Contract revicts to request orhas requestedservICfs,materials,fbdures, or machinery and equipment for use or installation kt connecbron with the Work 3.1 Obiection. Owner shall be entitled to reasonably object to any person or entity identified in the Supplier Statement by notifying of Owner's objection w?hkn ten(10)calendar days after receipt of the Supplier Statement. If Owner timely objects to any person or entity idennfblied it the Supplier Statement, Contractor ahali mrnediately wfthout additional compensation oragfustntent to the Contract Price replace the objectionable person or entity and resubmit an'Nomads to Owner for approval In accordance wlh the time and other requirements set forth in this paragraph unba an*caplet*alternate is submitted 3.2 Chances. No changes or additions of the Supplier Statement w6t be made without the prior written consent of Owner. 4. PERMISSIBLE DELAY*. If Contractor is delayed In the prosecution or completion of the Work by(a)the vAlful act.gross negligence,or matefIsl default of any one or more of the Reviewing RepresentetNes,or(b)if Contracts is delayed waiting for materials, required by this Contract to be furnished by Owner,or(c)by damage or Interference caused by ore or other casually not caused by Contractor or his Subcontractors,nor caused by or resulting from the fault or collusion on the pert of Contractor or his Subcontractors,or(d)by Acts of God; or(e)the elements when unforeseeable or unpredictable(collectively,'Permissible Delay,then the time herein fired for the completion of the Work shell be extended the achgI number of days that Contractor has thus been delayed,but no allowance orextenslon shall be made unless a claim therefor presented kn writing by Contractor to Owner within fa fr eight (48) hours of the beginning of such delay, and under no cirawnalances obeli the time of completion be extended to a date which vet!prevent Contractor from completing the Project Work within the tone allowed Contractor for such completion unless the PemtissIbfe Delay is caused by the events described in(a)or(b)above. Contractor shag not be entifedto any additions! compensation or damages for PermIssIle Delays;the extension of time for completion shalt be the sole remedy of Contractor,provided,however,that tithe Permissible Delay mugs from the events described in (a)or(b)above.Contractor shall be entitled to make a change order request in accordance with Article 5. 5. OE PROSECUTION. As provided le Ankle 1,Contractor shall prepare and obtain approval as required by the Contract Documents for all SubmIttais and do all other things necessary end knidental to are prosecution ofhis Work in conformance with ProJodt Schedule. Except when a Permissible Delay is involved,COntractorshalll at his Own expense. work such overtime and engage such extra labor, equpment matedels,toolt supplies. superwsion,construction plant end all other incidentals as maybe required to ensure the diggertt,continuous end uninterrupted prosecution of the Work in eocordance with the Project Schedule. B. CCMPLETiQN. • Contractor shell complete the Work on the date specified in the Agreement 7. DAMAGES FOR DELAYS. if any sot or omission of Contractor in the prosecution of the Work causes delay in the Project Work, Contractorehall be liable foray losses,costs,expenses,liabilities and damages Ncerdkrg consequential end Nquideled,sustained or claimed to be sustained byOwnerforWhich Ownermaybe tabte to any other person. The act of Omar In allowing Contractor to continue after a delay,other than a Pemritelble Delay,or the scheduled time to complete the Work shall not be construed as a waiver by the Owner for damages. ARTICLE 3 CONTRACT PRICE AND PROGRESS PAYMENT APPUCATIONS • CONTRACT NO. R19820A 1. CONTRACT PRICE. The Contract Price.Schedule of Values for the Work,Unit Prices end Allowances,as applicable,and specmc qualMcations and clerWcetfons regarding the Contract Price are sat forth in the Agreement. 2. PROGRESS PAYMENTS. 2.1 Progress PawnantApo/icatione. In order for Contractors payment request to be processed, Contractor must submit Contractor's Progress Payment Appicattan as required in the Agreement. All Progress Payment Appicetiorrs must be In strict conformance with Exhibit B attached hereto. 22 Fit af�ares Payment and Pawnent of Retalnaaes. Contractor sha0 oertit to Ow nor to milks?that the Work is complete in accordance with the Contract Document and the Agreement Contractor and Owner wk make an investigation end inspection of al phases ofthe Work.Anyhokfbeck or:etention due any Subcontractor wig be paid to Contractarwhen el requirements fiorpaymentcfsuch holdbacks orratenton have been satisfied as set forth in the applicable subcontrsct Likewise,Contractor wW be paid for his final payment to his Subcontractors as and when all requbementa for foal payment to the ems)have been satisfied in scc.rdece with the applioable subcontract. Owner w47 issue a Notice of Final Completion with respect to each portion at the Work in accordance with the requirements of the applicable subcontract for such portion of the Work. Nonevent ant contractual obligations under the Contract Documents have not bun met by Contractor,Owner shoe have the right to furnish Contractor a Matted fist of all remaining Work (the Punchist items,and retain an amount equal to(wc hundred percent(200%)of the estimated cost of the PunchAat Rams. Owner shall issue a Notice of Final Completion upon completion of all Work speckled on the PundNJet to the aeon of Owner. hr no case',Mho Notice°Mira,Completlorr relieve Contractor of outstanding obtgattons of Contractor. Before Owner makes MN payment.Contractor most submit the foiowMtg to Owner. (A) A complete list of Subcontractors.Including addresses,telephone numbers end names of individuals to contact who are famtlar with the Project (8) Tivo sets oral operating end maintenance maru da; (C) One set of all written guarantees from all Subcontractors, in form and content acceptable to the Owner which Contractor hereby agrees to obtain for,and deiver to,Owner before completion of the Project (0) One set of reproducible mytars and bluelire prints of ant as-buM records; (E) Four sets of all manufacturers brochures,Instructions and specMkatons and any other warranties or guarantees received from manufacturers, suppliers or Subcontractors by Contractor or any Subcontractor,and (F) Notarized Conditional Waiver and Release upon Final Payment. Contractor shall promptly and satisfactorily settle ell claims for services performed and materials furnished in connection with the Work If Contractor lab or refuses to promptly and satisfactorily settle any claim,Owner,after written notice to Contractor,shaft have Ni.right(but not the obligation)to settle Such clams for Contractors account and deduct the amount thereof from amounts payable to Convector in addition,Owner may pay sums due by joint check payable to Contractor and each such Subcontractor,or subsubcontractor. The acceptance of final payment by Conbsclarshall constitute a salver of al cldrns by Contractor, except those pravlously made In writing and identified by Contractor,as unsettled at the time of the Anti Application for Payment 23 Nob(aver. No progress or otherpayments made underthls Agreement shalt be conclusive evidence of the performance by ctor Agreement or-acceptance of the Woke ndfurthennae, no payment by the Owner shell be venereal fobs acceptance ofContrado'sdeMud Work,defective Work, d welnafba0r CONTRACT NO. R19820A or improper/defective materials,or any other broach or noncompliance or nonconformance w+lh any portion • of this Agreement 2.4 Failure to Tlmefy Provide Realtlnd Mfamaffor If Contractor,on or before the day Progress Payment Appicafions are due,fails to prvvrda Progress Payment Application In proper farm,al suPportkig documentation,alien waivers(including notarized lien waieerand releases from akpnbrprogresspaymenta), and al outstanding information requested from prior progress payment app*catfons,as wee es Intimation and/or documents required by the Contract Documents, then in that akocarnstence Owner shah nobly Cai6actorin writingofsuch deliioncyand Contractor's ProgreasPaymentAppIication shad be held by Owner pending submission of a comptete Progress Payment Application. Z5 Rift to Withhold Payments. Owner may withhold payments otherwise due Contractor pursuant to this Agreement for any of the following masons: (A) Omission of any Work required by the Contract Documents or Contractors failure to cure defective or damaged Work: (8) Failure to submit to Owner aN information and aN notarized waivers and releases required under the Contract Documents; (C) Mechanics'liens,materfaknenb liens,stop notices orbonded dams which ere teed or recorded or reasonable evidence Indk:eNmg the probable Ming or recording ofsuch liens,notices**claims by Contractor or its Mechanics,in which case O w:ermay withhold(a)hi the owe of fen,notice ofdaim by • Subcontractor,the amount ciafned in the lien or notice of claim,and(2)H the case of a Wen,notice of darn by Contractors otherMechanis,One Hundred Fifty percent(15016)of the amount sought,' (D) Contractor's failure to make payment property to Subcontractors,Mechanics,or insurance carriers for the insurance requirements of Contractor required under the Contract Documents es we/as to union fringe benefit trust funds(to the extent requited); (E) The existence of reasonable doubt by Ownerthat the Work wiNbe completed for the balance of the Contract Price(together with approved Change Orders)then unpaid, unless Contractor *posts what Owner funds kr the amount of such suspected deficiency or performs a sufficient portion of the remaining Work to be performed at Contractor's sole cost so that the portion OM*Contract Price(together with approved Change Orders)then remaining unpaid is determined by Owner to be sufficient to Complete the Work (F) Contractor's failurato complete the Work,or any reasonable Indication that the Work will not be completed or peromned timely; (0) Contractor's failure to construct,instal or perform the items of the Work as required in the Contract Documents,or any reasonable Indication that Contractor war be ratable to perlbnn the items of the Work required: (N) Contractor%faiuretoperlbtmanytermorprovisiolottheCantractDocumentswhenn, In Owners judgment such failure ma or may jeopardize the timely and proper oompletion of the Project; (I) Subcontractor or any gnats of Subcontractor la in default or breech of any term or condition of any after Agreement with Contractor or any negate of Contractor's;and (,n Any other grounds for wlhinakfmg payment pen lted by State or Federal taw,ores otherwise permitted by the Contract Documents. Whsneverthe grounds giving roe Loth*above withholding have been removed,ContractorshaN pay Owner the amount withheld on the next progress payment cycle lass any expenses incurred by Owner or damages sustained by Owner as a maul of the wIthholdirrg,the cause of the wnlbholdhng or the removed of the cause. ff any of Conractors Mechanics or Insurance carriers are not paid,Owner may,but wkhout CONTRACT NO. R19820A obligation,directly pay such Mechanics or carriers. Any payments so made shad be credited against the Contract Price as adjusted by duly authorized Change Order. The right to withhold slat+be In addition to aft other rights and remedies of Owner under the Corer's'Documents and at law or in equity. 3. LIENS. 3.1 Peknsq.If regal proceedings are commenced against any ofOwner,Architect,orLender(s) or the Protect Slte,when Contractor or his subcontractors)is or any responsible therefor,Contractor shag defend such proceeding at his own cost and expense and will pay end satisfy any and all such order, Judgment or lien as may be imposed by such proceedings. Furthermore,Contactor shall pay for any and all costs incurred by Owner.Owner,Archkect,and Lenders)in resolving all such actions and Rene. 3.2 Reoadarioo of Lfaa, When a lien is recorded by anyone.datmhng by,through or under Contractor,Contractor shalt within three(3)days atter wniiten notice horn the Owner,cause the lien to be removed from the Work and the Project Site. If Connector felts to remove the lien within such three(3)day period as required above,Owner Is authorized to use whatever means,atits discretion,it deems appropriate to cause the lien lobe removed end the entire Costs and expense thereof intoned by Owner or Hs Lenders) (Including reasonable attorneys'fees and coots). slag be immediately due end payable to Owner by Contractor,orat Owne's option,all costs end expenses incurred by ONTwand Lenderahrel be setoff against monies due or to become due to Contractor under this Agreement 3.3 agadjgglftgz. Contractor may dispute any such lien provided its canes the same to be removed promptly from the Project Sire m accordance wdh the ib egokngprovision. Furthermore,Contractor shalt take such actions as maybe necessary to cause the Owner not to be obligated by law or otlwnvise to withhold any monies due Contractor from Owner by reason of such liens. 3.4 Permed Subiac t to Performance. The hull complete and faithful performance of the covenants end undertakings to be performed end observed by Contractor underlies Agreement is a corrdtlon precedent to Contractor*right to receive progress payments for Work performed,and any monies paid by Owner to Contractor under the terms of this Agreement shall be impressed with a trust In favor of labor and male►iabtten burnishing tabor,materiel and eqularnent to Co r na:tor for the Work. 3.5 Status Report. When Contractor contends that the Work is completed It accordance with this Agreement, Contractor shall supply to Owner a status report with regard to alt mechanics'or matertafinen's liens,if any,arising as a result of the Work. 3.6 Payment of gggli a by Owner_ Ccrtreotorahs'not apply any payments made by Owner to satisfy deans to suppliers,natantmen,subcontractors,entities or insurance companies unieaa such tours have arisen as a result orate Work described to the invoice being paid by Owner. 4. (JEN RELEASE Connector shalt submit to Owner satisfactory evidence of payment by the Contractor of all indebtedness incurred kith*performance of the Work,including butlimIted to,for material,labor,equipment, apparatus,appliances,tools,insurance and ail other services under the Contract Documents. Owner may make all payments to Subcontractors in the name of Contractor,and to any Mechanics whom the Contractor or Owner have cause to believe ere entitled to payment Nothing In this procedure,If used by Owner,shall therebygive Owner control overthe spaymRor make f responsible lhrpayment of withirofdkhgorothertaxes, or bertetka. ARTICLE 4 CONTRACT DOCUMENTS 1. CONFLICTSANO CLARIFICATION. 4.,.a.,r..r..r U co+au.comma arwerrroh. • CONTRACT NO. R19820A tithe Drawings,Plans and Specifications or Contract Documents,or any of them are in Conflict with the other or require clarification of any inadequacy,inconsistency or omission or are in conflict with the Submittals or arty of them,subcontractor shelf immedietaly request Clarilcation In wring. Owner shag 000rdinate with Architect andfcrEngineer(e)and provide written clarification to Contractor.Contractor's refire to requestclawiwcation of any known,suspected or reasonably inferable inadequacy,inoonatstancy,omission orconNct shag not relieve Contractorof his obligation to perform in accordance with the Contract Documents end the clarification provided to Contractor. Contractor shell not be entitled to any additional compensation for performing the Work pursuant to this Agreement and the 011mi::caton provided to Contractor.Furthermore, If a discrepancy exists between the Contract Documents end the Governmental Requirements which necessitates a correction or change fn the Work,Said change or conecffon will be made by Owner. if Contractor claims he is entitled to an increase In the Contract Price or corresponding time extension for completion of the Work,or both,due to changes occasioned by Governmental Requirements,Contractor must except In an emergency endangering life or property,submit the proposed cringe it wrilrg to Owner in accordance with the provisions ofMYcII5,Section 1.3(endrrust rawly*Owner'swvtttenapp+ove/ herelor) before proceeding to execute any Work Involved. Failure of Owner to notify the Conbadorof its approval or disapproval of such claim within fifteen(15) days shag be conclusively deemed to cosstltute Owner's disapproval of such increase. 2. NO ADJUSTMENT FOR GOVERNMENTAL COMPLIANCE. Contractor shall not be entlifed to an Increase of the Contract Price or extension of time due to Governmental Requirements whether or not Contractor was aware of Governmental Requirements as of the date ofthe Agreement so long as the Governmental Requirements eat forth a dearand objective requirement. ARTICLE 5 • ADDITIONAL GENERAL AND SPECIAL CONDITIONS 1. CHANGES IN THE WORK. 1.1 Chews Orders. Without nullifying the Agreement,the Work may be revised by change order ('Change Order")required by the Owner. Contractor shell perform the revised Work that the Owner may require by Change Order,the lime foroommencement and completion of the Work in accordance with Article 2,and the Contract Price lb:.the Work♦n accordance with Article 3 being adjusted es provided within the Change Order. 1.2 Afhirafnlent to Prtc a d Tins to Perform. The increase or decrease to the Contract Price and the extension or reduction of time to perform or complete the Contract Work pursuant to the Agreement as the case maybe,resueing from a Change Oster Mal be determkhed in one or more ofthe fbSowang ways: (1)by mutual acceptance of a lump awn or time extension or reduction:(2)by mutual aooeptance of a unit pike and quanifyvert oation procedure:or(3)by actual diecily incurred cost plus en agreed-upon'mark up' for's overhead and profit. 1.3 Chance Order 5po oast by Contractor. (a) Contractor shag not be entitled to the payment of any additional compensation for any act,or failure to act.by Owner,irckrdirg failure or refuse?to issue a Change Order,or for the happening of any event thing,occw enca or other cause unless Owner gives Contractor wittier?notice of a potential clein as hereinafter specified. (b) The written notice of a potential deism must set forth the reason for which Owner believe additional compensation will or may be due,the nature of the costs kwolved and,In so far as possible,the amount of the potential claim. Such notice must be given to before the time that Contrsctorahall have peltbmsd the Work giving rise to the potential claim for additions:compensation,(based on en actor failure to act by Owner,or in eft other oases wdlfdn ten(10)days after the happening of the event,thing, occurrence,or other cause,giving rise to the potential ekirn 11 ashcan oarpnua Covaw.aa • • CONTRACT NO. R19820A (c) The parties Intend bythis Section that differences between the parties arising under or by virtue of the Contract Documents be brought to the attention of Owner at the ear5ast poesibie time In order that such metiers may be settled,if possible,or other appropriate action promptly taken. Contractor a at have no fwfiief,ighttoaddtionel con pensationforanyclsintatmaybebasedonanysuchact,event thing or occurrence for which no written notice of a potential chin as herein required was Ned. 1.4 Chance OrderAdlustments. if Ownerannd Contractor cannot roach mutual agreement as to the terms and conditions ofa Change Order,Owner shad be sniffler direct the same by Change Order and Contractor shad proceed to perform the Work of the Change Order pending reaokdion of the adjustment to the Agreement by reason of Owner's directed Change Order. Altemativaty,and et Owner's sole discretion, Owner may request Contractor to submit bid prices and time adjmutrnents for the modifications on the Work which bid prices and time acyuabnents shall be consistent with the Contract Prtce(s)for the W rk covered by the Agreement to the extant possible. If any such bid prices and time adjustments by Contractor are not consistent with the Contract Noe,Owner may accept bids from other contractors,and lithe seine are lower or require less time than drat of Contractor,Owner will afford Contractor the opportunity to adjust his bid acoordingiy. i►Contractor does not agree to adjust his bid accordingly wfrhin filo(5)business days,Owner • shah have the option to(a)renegoWta the entire Agreement with Contractor,(b)terminate the Agreement In Its entirety,or(c)continue the Agreement without modification and engage another contractor lo perform the work set forth In the Change Order. 1.5 ComoNance With Chance Orders:Payment Upon receipt of a duly authorised Change Order, Contractor shall not thereafter perform any work or order materials that world be irconsiatent with the modification required by the Change Order. Contractor shalt fafthti4'observe and perform the duties of Contractor under the Contract Decisnanta and a Change Order has bean issued n writing by the Owner to Contractor.t:xapNnd:acaseofanemergency,undernotxrounstanoeeshallContractormakeanychanges, either in additions or reductions in the Scope of the Work. Owner wN not pay any extra charges made by Contractor that have not been previously approved In writing by Owner. t.eLtalabgdgesaymagai.IfContractorfWetesormakes asubstltution,deviation,modification or any changes)in the Work(without prior waist)approve!from Owner)which affects any of: the Scope of the Work,the Schedule forCommanoernentandCompletion of the Work,accuses eddedexpenseto Owner, or other contractors end/tar suppliers,Contractor shall be liable to Owner has ad addrtioai costs anted by, or arising out of,such unauthorized charge(.)In the Work. Owner shall,at its option,set off such costs against monies due Contractor until Owner has been credited fora additions?costs so incurred. 1.7 Backup Data for Chance Orders. For either pmposed Change Orders or substantiation of the approved Change Orders that have been completed,Contractor shell promptly submit complete baclnrp data such as labor,material,equipment,leborbunien and such otherin ormetmon and In the case of approved Change Orders,payroll records,paid nnipts and cancelled checks(when requested bythe Ownerforreview and approval. 1.8 Effect On Surety end Bcnda. No change, iteration,modification or deviation from the Contract Documents(whether made In the manner herein provided or not)shallrelease orexonanta,in whore or In pen any surety on any bond given to connection with the Agreement Owner shall not be under any obligation to notify Contractor's surety or sureties of any such Change(s)to the Work. 2. TER,41I TiON OPTION. 2.1 OwnersRlaht to Terminate.Owneralatl have the option at anytime and for anyreason prior to Contractor's performance of the Work to terminate the Agreement without Xabaify therefor. Thereafter. Owner may et any time and for any mason terminate Contractor's Work,or any portion thereof,under the Agreement at Owners convenience,provided Contractor is paid brad Work satisfactorily performed to the date of termination as provided in this Section. Termination to ether instance shalt be by service of a Ave(5) Day written notice from Owner to Contractor. 2.2 ,Stoopege of Work Upon Termination. Upon receipt of such notice,Contradorshatr,unless the notice directs otherwise.immediately discontinue the Work and dfaconbirw the plackg of orders for materials,far:Ries and supplies in connection with the performance of the Work however,Contractor shall w.0.m.ww.1 �2 swam.common anr.aa,a. • CONTRACT NO. R19820A • preserve and protect the Work already in progress and material and equipment on and In&m sR to the Project Site. Contractor shell,if required by Owner,make every reasonable effort to procure ceno.Iation of all existing orders or contracts upon terns satisfactory to Owner,or,at the option ofOwner,ghVe Ownerthe right to assume those oblations chattily,including all benefits to be derived therefrom. 2.3 PaymentsUoonTannlnaadon.Upon such termination,Contractor 8/wi!be entfdedfo payment only as fotows:(1)the actual,dhedylncurred cost to the efbdtva date of terination offkld tabor,material and tools consumed, equipment, supervision, construction plant, shop drawings and samples, as-built drawings,accessories and all other Ocidentds,common in the trade,for the Work Completed by Contractor k confommly with the Agreement,plus(2)reasonable costs of termination(Including layer pursuant to cancellation provisions contained In subcontracts that have been revknsd and aporoved by Owner).There shall bededucted from such sums°provided in this Section the amount°tarrypayments made to Contractor prior to the date of the termination of this Agreement'and any other amounts Owner is auuthoifzed to deduct pursuant to this Agreement. Contractor snail not be entitled to any claims or claim of lien against Owner or the Project Site for any additional compensation or damages in the event of such termination and payment As a condition to payment by Owner under this Section, Contractor shell return to Owner, ad Contract Documents. Contractor shall submit to Owner,a termination invoice,complete with backup data,supporting information and Conditional Waiver and Release Upon Final Payment within M Irfy(30)days from the effective date of termination. 3. EMPLOYEES OF Contractor. 3.1 Peinovel at Direction of Owner. Ail persons employed on the Work by or at the instance or request of Contractor shalt be employed under conditions satisfactorytoOwner.ContrectorshalIbnmedlatey remove, or cause to be hmmedlately removed, from the Project Site any employee or Subcontractor considered to be unsatisfactory to Owner. 3.2 Comotance with Meader Aeveemerk Contractor shall comply with at terms and conditions of any master labor agreement covering the Project Work or any part thereof effecting the Work and well prevent the occurrence of any strikes,slowdowns or other labor difficulty. Contractor shell comply with all of the terms andcondditlons ethos*laboragreementr,Insofar°.Contrectormaylawfuffydoso.and in particular shalt comply with the terms and provisions of said agreement setting forth the Jurisdiction and scope of work claimed by each of such crafts and the procedure contained therein for►asolution of jurisdictions}disputes. Info absence of any such procedure,or if such procedure fags o promptly resolve hew jrrlsdlctbnal dispute, Contractor shall,ethre own oast and expense,upon request of 0wmar,take any and al/awftlafeps to secure a binding and final determination of said JrrlsdicLbnef dispute by the National Labor Regions Board 3.3 Substance Abuse Testing. Contractor shall have the right(but not the obligation)to require ail personnel of Contractor and his Subcontractors to be tested for substance abuse In connection wdh or relating to the Work. Contractor ahet require The consent of all of the personnel of Contractor end his Subcontractors to any testing requ required by(honer es a c artdftion to employment with regard to the Work subject to the terms and ccndfion of applicable Owner labor agreements. 3.4 Oeivery of Union Trust Fund Reocrt. Any Contractor who is a member or becomes a member of any labor union either priorto cruising the term of this Agreement,shaft.priori°commencement of any Work,at Contractor's sole expense,obtain and deliver to Owner,the union trust fund report described la California Civil Code Secion 3111.5. Prior to Anal payment to the Contractor,Contractor shall deliver to Owner Ban releases Mom all union bust&rids to which Contractor was raqui od to make conGthutmons in the performance of the Work If Contractor is delinquent in the payment or payments of fringe benefit contribution to any union Mat fund,Contractor authorizes Ownerto act as Ms agent forth.purpose of paying said contributkros to the bust lbnd(s)out of any monies due the Contractor. 3.5 Compliance with Lewg. Contractor shall comply with al,applicable Federal,State and kcal Jews and regulations,hhdu ding,but noo tlimdtedto,al Fair taborStandarda Act provisioner and CaMbmiaLabor Codeprovtslons covering the Work.Contractor shaltsubnmi certified payroll reports to Ownerkt accordance with the tents of Article 3 of the Agreement. 3.6 Work Stoppages or Stow Down. Contractor's employees or Subcontractors,whether one Aiwa.'M"1°"'d MIMIC ICoomrmrT e aMrwbMrw • CONTRACT NO. R19820A or more,creating a labor dispute or problem which causes any slowdown or stoppage to the Work or the Project,shall be the Contractors responsibility and shel be subject to all terms end conditions of the Agnamenf,including without Imitation Sections 2,3 end 12 of this Article ti. (aontr+ctorShell affect a timely solution to the dispute or problem so that the Project Schedule can be maintained. 37 laggigniggiu203gogneggEttgl Contractor shalt designate in voting to Owner the name(a) of an authorized representative(s)of Contractor and keep such representative on the Project Ste during all times when the Work is M progress and such designated representative(s)she!!be authorized to represent the Contractor in off phases of the Work end the Agreement. 38 Prohrlufi000CGbnsumoGon_ofAtoehd enclitics!Substance. Contractorshal not permithis employees,the employees of Contractor's Subcontractors,and any oiherpersons associated with the Work, to consume alcoholic beverages or Riegel substances et the Project Sole,Of to perform any labor or work or travel to the Prpject Site white under the lnikesnca of alcohol or Begat substances,andshst Mtherprohibit pets,children and guests at the Project Site,the broadcasting of loud music and unnecessary noise during non-business hours as well as the creation orparUdpation in any nuisance.Perking ofa8'a workman vehicles and deNvary vehicles shell be only In areas specifcdly designated by Owner. 4. CONFIt7ENT1ALlTY. Contractor warrants end represents that subcontrac ors's'',not knowingly ornegifgently communicate or dtaclose at any time to any person or entity any infonmat on rn connection with the Work or the Project, except' (1)with the prime,wlfen consent of the Owner or Owner,or(2)as maybe required to perform the • Work or by any appilcable taw. Contractor,at any the upon the request of Owner,shah Immadlaeey return and surrender to Owner all copies of any materiels,records,notices,memoranda,recordings,drawings, specifications and mock-ups and any other documents famished by Owner to Contractor. Contractor shell specifically cause his Subcontractors or any other person or entity performing services,or furnishing any materials or equiprrrent,for the Work to warrant end represent of items set forth rn this Section. S. &Mrei P 5.1 Reauked 1nswan% Before starting the Work,Contractor shad at his expense,procure end maintain insurance on all of his operretions,in connection with the Wort wfh carriers acceptable to Owner, as follows: (A) Workers' Compensation and Enmlover's Liebe. Maumee. Workers'Compensation insurance shall be provided lnaccordance with Governmental Requirements. Employer's Lie bltityinsurance shall be provided in amounts not less than the amounts swirled in the Agreement. (B) Commercial General liability.The limits of liability shal be not less than the amount spedfad in the Agreement. Owner and Architect,and their respective officers,directors and employees shall be named as additional insureds(the"Additional Insureds"). The policy alma stipulate that the insurance afforded the Additional insureds shall apply as prfnary insurance es respects any detm,loss or labially arising dlrecty or Indirectly from the insureds operation and that anyolhertoeurance carried by each of the Additional insureds or by their reapedhre partners,ofcers,directors and employees writ be excess only and wit not contribute with the insurance. The policy must Include: (1) Premises and Completed Operations coverage with XC,&11 exclusions,if any. deleted; (2) Products end Complete Operations Coverage that shall maintain in effect on an annual renewal basis for at Nest five(!f)years following gnat completion end acceptance of the Work as provided bereft (3) Owners'and Owners'Protective Liehl/ly(Lithe general aggregate is not on a per project basis); i..inoww.awe 14 eaoay.eao n caswuuaaek CONTRACT NO. R19820A (4) Blanket Contractual Liabetlty; (5) Broad Form Property Damage; (6) wily and Personal Injury Lbbl8y(Including emotional distress); (7) Severeblffy of Interest and Crow-Llabdily Clauses; (8) lncklental MM¢wractice; (9) Defense Oufskte the thrift;and (10) Reinstatement of the Aggregate Annually. (C) Augzgoblte LlablRty insurance. Automobile Nab6Yty insurance,including coverage for all owned,hired end non-owned automobiles. The Plaits of liability shall be not less than the amount specified 5,the Agreement Contactors autovnobde Really insurance policy shall brchrde coverage for automobae contractual Nabklty. (V) Excess Coverer" The limits to apply in excess of primary required for General 1lablfly, Commercial Automobile and Employers Lithifey Insurance and we as specified in the Agreement. (E) General. Modified Occurrence end Claims Made forms am not acceptable forms of coverage. Certificates ofInsurance, as evidence of the krsuronce required of Contractor by the Agreement,shall be furnished to each of the Additional insureds before any Work is commenced by Contractor end each year thereafter es required herein. The Certificates of Insurance shall provide that there will be no cancellation or reduction of coverage without thirty(30)days prtorwdtten notice to al Addldonal insureds. A 1pcl des must be*Men byinsurance companies damesticefedInthe United States(whim otherwise approved advance end in writing byOwner) whose rating in the most recent Best rating guide Is natives thanA:VII.hi no event sha l the Reboadire Date be modified to a date other than the date of the Agreement The Certificate must be signed wfh a WET SIGNATURE(not stamped). 5.2 Comolimme Hitillnstege a Reacskementa. M Contractor fade to maintain any insurance coverage required under the Agreement,Owner may,but without obligation,maintain such coverage and charge the expanses to Contractor,or terminate the Agreement pursuant le Section 2 of this Article 6. Contractor snail furnish upon demand all bnbrmetion that maybe required by Contractor to permit Omer to obtain all required coverages on Must!of Contractor. 6.3 paorovalotInsurance. The required InsuranceshallbesubjecttotheapprovalofOwnner,but any acceptance of insurance certilmcatee by Omer shoe kr no way timerorrafeve Contractor ones duties and responsibilities under this Agreement If higher limits or other forms of ersInsurance are required kith*ConMuct Documents,Corfiavturwlfl empty with such requirements 5.4 No Waiver. Failure of Owner to enforce In a timely manner any of the provisions of this Section shell not act as a waiver to enforcement of any of these provisions at a laterdate In the performance of the Agreement Any exceptions to the provisions of this Section must be delineated in the Contract Document& 5.6 Pena Under lnaunance. I any injuries to persons or property arise which create potential claims at anytime during the progress of the Work,any payments to Ccv traotormay,at Owner's option,be deferred until such charm are settled or indemnity acceptable toOwnerisprovhied,Including dekrrs remelnmg unsettled when the Work provided for herein 13 completed end final payments are due. Implementation of Insurance coverage und`rthe Agreement shalt not be construed as a limitation on the nature or extent of the Contractor's indemnity or other obtget ors under the Agreement 6.6 Coss Covered by Insurance. In the event of toss covered by the insurance required hereunder, the Insurance proceeds shall be epportfoned between the Additional insureds and Contractor as their respective Interest may appear. 6. GUARANTEE/WARRANTY. N otwehstandfng that anylabor,equipment ormate►lai furnished or instated by C actor shalt have *Rolm raver ve 15 WOW.cxwomwe a.r�r>ana. • CONTRACT NO. R19820A been approved oracceptsdby anyone or more of the Reviewing Representatives or any Governing Agency, Contactor expressly guarantees and warrants that aN material, equipment labor and el other services p►ovtdsd In accordance with the Contract Documents wit be new(unless otherwise specified kith'Contract Documents),wit confirm the best trade practices will be he.of anyfauhts end defects whatsoever,inducting without:Imitation.paters latent or developed defect and shall meet or exceed the requirements of the Contract Documents end ire Uniform Buffeting 0 de. This grandee and aerran(ysheIsurvive torso long es Owner may be held liable for the matters warranted hereunder but in no event has ten a period to hero (2)years(unless otherwise noted In the Combed Documents)firm completion and final acoeptence of the Work During the guarantee end warranty period,Contractor shag promptly repair,rep/ace and/or nomad. at his sole coat and expense,to the Owner's fugaeisfection,agdetective Work performed underthe Contract Documents. Except In en emergency,Contractor's correction of defective Work shell be commenced wthlm forty-eight(48)hours ofambling written notice from Owner and completed on an As Soon As POUR*beats. H',in the judgment oldie Owner,an emergency exists,then the corrective Work shill be commenced and completed by Contractor on an Immediate basis. Contractor's guarantee and warranty reaponstbitty shall Include coverage for each of the Reviewing Representatives against all liabildy,loss or Omega incurred by Contractor's defective Work or Work not conforming with the Contract Documents or Governmental Requirements orboth. The foregoing expressguaranteeandwsrrentysheRnot16ntorafiedanynrnrsdlea that are awarded by law with respect to express orh»pled warranties orneglgentorWu,acts or omissions of Contractor or any of his Subcoe facto s or other Mechanics. The foregoing guarantee shall be for Die benefit of,Owner and its respective successors and assigns. Nothing herein WWI in any way limit the right of Owner to eased claims for damages resulting from parflcuferlatent defects in the Work for the period of limitations prescr76ed by law. 7. STAMELOF SUBCONTRACTOR. Cahbectortaen Independent conbeotorendshell,at Rissole coatendexpense,end w'ihoutIncrease In the Contract Price,comply with eVtsws,rules,of trances and regulations of aft Governing Agencies;obtain all necessary licenses therefor,pay ant manufacturers'taxes,sales taxes,use taxes,procsaskhp taxes,and all federal and state taxes,km/ranee and contributions for social security and unemployment which are measured by wages,salaries,or other renuuheratlons paid to Contractors employees,w hetherievied under existing or subsequently enacted laws,rules or regulations, Contractor.upon request,shall furnish evidence satisfactory to Owner that any or all of the foregoing obligations have bss»tuned. Consistent an Contractors status as an independent contractor,Owner sift not be responsible for and wig not have control or charge for safety precautions and programs h comreedbe with hre Work Owner will not be responsible for Contractor's failure to carry out the Work In accordance with the Contract Documents and Governmental Requirements_ Owner will not be responsible for or have coned or charge over the acts or omissions of Contractor,his Subcontractors or any of their agents or employees,or any other person performing any of the Work. 8. WAIVER. Any act aromission of anyone or more of the Reviewing Representatives,which the Contractor might claim ass reason for his own failure to perfomm the Work,shag be deemed waived by the Contractor unless he notifies the Owner,in writing,of his intention to assert such dab»**kin twenty-four(24)hour,alter the occurrence of any such alleged act or omission. 9. INOEMNIf C 11QN. 9.1 Contractor's Indemnity: With the exception that this Section shall i n no event be oonsbued to require lndemnihcabon by Contractor and his Subcontractors to a greater extent Then per n tad under the public policy of the States of CaM'bmitt Contractor shall(en daheirequire hie Subcontractors to)indemnity, defend(at Contactors sore cost and with legal counsel acceptable to Owner)and bold harmless each oldie Reviewing RepresentatNes,hnoludkhg their respective partners,ottrcara,directors and employees,and each of them,of any from any claims,demands,causes of action,damages,coats,expenses,actual attorneys' fees,fosses orb/billy kt law or in equity,of every kind and nature whatsoever Maims"arising out of or in connection with Contractor's(and his Suboontraetors)operation.and Work to be performed wider the Contract Documents khducMg,but not limited to: A...a.wt rMsv 16 ODOMcororrxwe odutirr.ow • CONTRACT NO. R19820A • (A) Persona!Injury,including.but not iln l'ed to, bodily inJu0: emotional irfury,dckness or disease, or death to persons,including,but not limited to,any employees or agents of Conbac(nr, his Subcontractors,any one or more of the Reviewing Representatives,or any other conk-actorandA3 damage to pmperty of anyone(Including foss ofuse thereof,caused oraAegedto beamed in whole Grin pan by any negligent act or omission of Contractor or anyone directly or h+dLsofy employed or engaged by Contractor Of his Subcontractors or anyone for whose acts Clontractarmaybe Able regardless of whether such personal injury or damage Is caused by a party lndemnwed hereunder. (8) Penalties imposed on account of the violation of any taw,order,citation,rule,regulation, standard,ordinance or statute,caused by the action or inaction of Contractor. (C) Infringement of any patent rights which may be brought against any one or more of the Reviewing Representatives of their respective agents or employees arising out of the Work (D) Galma and liens for labor perfonned or materiels used wRrmishedto be used on the Project Site,all incidental or consequendet damages resulting to any one or more of(he Reviewing Representatives or their respective agents orempbyaes from such crafts orllena. (E) Contractor's failure to fun the covenants for labor relations. (F) Failure of Contractor to comply w,7h the provisions of the Contact Documents. (G) Any violohon orinfraction by Cantractorofany law,order,citation,rule,regulation,standard, ordinance or statute In any way relating to the occupational health or safety of employees,inchrcling,but not limited to.the use of Contractor's or other's equipment,hoist,elevators.or scaffolds. (H) Any wrpatented or patented Inve eions,article or appliance manrdachred or used by or on belledfof Contractor in connection with me work. (1) Any duct In construction or other worts which is covered by or Incidental to the Contract Documents performed by or on Midi of Contractor,his Subcontractors or any one of his or their respective employees,agents,suppliers,permlaeea orinvlteea or any other person or salty claiming under or through Contractor or his Subconttect rfs). The indemMlcation provisions of(A)through(l)above shall extend to Claims occ raring after this Agreement Is terminated as well as while it is In force. Such indemnity provisions apply regardless of any active and/or passive negligent act or omission of any of the Reviewing Representatives,or Owner,or their respective agents or employees. 9.1.1 limitation onlndemniv. Contractor,however ah&not be obligated under the Agreement to indemniyRevfevnng Representable lorClaims arising from the sole negligence or willful misconductafsuch Reviewing Representative or Ile agents,employees,orindependent contractors who are directly responsible to Owner,or for solely arising from defects in design famished by such Reviewing Representatives. 9.1.2 Contractor's Obfiaatioa to Defend and Hold Hain ass. Contractor shall: (A) At Contractor's sob cost:expense and risk,defend(with lapel counsel acceptable to Owner) ail Ceram that may be brought or instituted by third persons,including,but not limited to, Governmental Agencies or employees of Owner,against any one or more of the Reviewing Representatives or their respective agents or employees or any of them; (B) Pay and satisfyanyjrdgmentordecnethatmayberenderedagainstanyoneormenofthe Reviewing Representatives or their respective agents or employee',or any of them,arising out of any such Gaon;and/or AIM s,wrw.v coati dominoes 17 Oolorama. CONTRACT NO. R19820A (c) Reimburse any one or more of tiro Reviewing Representatives ortheir agents or employees for any and at legal expense incurred by any of them in connection herewith or to enforcing the indemnity granted in ihts Section 9. 9.2 Risk of Lou. AP Work dons at the Project Site or in preparing or delherhig materials orequtoment,or any or all of them.to the Project Site shall be at the risk of Contractor exclusively until the completed Work is accepted by the Reviewing Representatives end Governing Agencies. 9.3 No Linn'tation of LJabMM. The Indemnities set forth In this Section shall not be limited by the Insurance requirements set forth in Section 5. 9.3.1 Compliance with Wyly Laws and Policy. Contractor shell,at his own expense,strictly adhere to the basic safety poHcyofOwnerendcompywith aft current,specitic safety regulations promulgated as part of Governments!Requirements,Including,without limitation,the requirements of the Occupational Safety Health Act of 1970,the Construction Safety Act of 1969 end allsuooessors end amendments thereto, and al standards and regulations which have been,orahail be,promulgated bytle parties or swam which administer saki Aots. Owner shalt establish,tmpiement and maintain an effective injury prevention program and comply wNt California Labor Cod*Section 6401.7 Contractor shall have,and exercise fuWrespansttatyy • andilebil Co floe hereunder by hlmseff,his employees,represenfativre end tubes,Mechanics and Subcontractors with respect to his portion of the Work. Contractor shell directly moeke.respond to.*find and be responsible'awry citation,wssesament,fneorpanallybymaaon of the Contractors failure.orfailure of the Contractor's emPloYeelk representatives and Invitees,his lAechanics,and Subconbactorstosocomply. 9.3.2 Fahlae to Comply. If Contractor faits to comply with any citation Issued by the office of The Secretery of Labor,any order issued by the Occupational Safely 3 Health Review Commission,or any order issued by the Division of Industrial Safely of the Stete,or the Owner,or of any body responsible for the adn,toiitrabon walla enforcement ofarrystatute,regukdbnorovtlWr m*ralatkrgtoocarpat►onat health and safety within the period specified in any such citation or order,Owner mey,et Its sole discretion,exercise the right end remedies provided Owner under the Contract Documents. 9.3.3 . If Contractor suspects,or becomes aware,that anysafey devices and/or operational devices being utilized inn any portion of the Work or the Project(whether or not furnished under this Agreement)is unsafe andlbr is not°pending in a safe or cared manner, Contractor shall immediately pease his Work,remove ail persons employed or engaged by him or his Subcontractor toe safe location,and immediately notify Owner. Furthermore,no Work under the Contract Documents ahai resume in the area so affected urdt1 cep safety devices andbr operational devices are safely Inataited and In full operating condition. 9.3 4 Waiver end Releases. Contractor hereby expressly waives and releases Owner and Its agents and employees horn all claims,demands,expenses.debts,damages end Debilities.intruding wfeiou t limketion lost wages,pain and auffer<ng permanent or temporary disability,medical and hospital expenses, attorneys'fees and cost of repair and replacements of Contractor's property,which in any way arise from or is related to(a)the physical and/or soapily or maintenance of the Reject Site,end the vicinity thereof(b) vandalism,theft or any other ws8lu/orneg#gent act by any person at the Project Site,or In the vfardrythereof, Including without Nmltation,the operation of a motor vehicle;or(c)the activities,aNaaions or behavior, whether or not negligent,of suppliers and other contractors and parties present at the Project Site whether or not ic:tivefy or passively negligent,provided that this release shah not release any of them hum their exclusive(I)wilful,or(10 grossly negligent acts. 10. EQUAL EMPLOYMENT OPPORTUNITIES t VfOLATIONS. 10.1 laurfeggnaznatag.Corhtractorshaefnotcracr netateagabutanysmpbyeeorapplioerd for employment because of race,color,religion.sex,national origin,ancestry,age,marital status or mental orphyalcai handicap. Contractor will take affirmative action to ensure that Applicants are employed end that MYfi,dNllMa 18 a s.CONDITIONS arn0 a • • CONTRACT NO. R19820A employees are heated equally during employment without regard to we,color,religion,sex,national o O n, ancestry,ape,maritat status,or mental or physical handicap. Contractor shell post in conspicuous places, available to employees end applicants for employment,notices requied by the EEO Laws,defined below. 10.2 S,omDliencewith Anti-Discrimination Laws. Contractor shat et his own coat and expense, conform to the equal employment opportunity negates of(he Owner,as* Was those required byms Connect Documents and,hi addalon,shall comply with all equal employment cppomunty requbeme to promulgated by governmental euB►onNfes Including, without limitation,the requirements of the CNN Rights Act of 1954, United States Code The 42,Section 1953,Executive Order Nos.11248, 11375 and 11478,end any other applicable statutes orordkances,plans or programs inclusive,end ail successors and amendments theme", end all plans,programs,standards end regulations which have been,or shall be,promulgated the agencies which eths,frslsterstzcft regulations(the'LEo La . Contractor shad have and exercise Atli responalbltly for compliance hereunder by himself,his agenda,his employees,Ms Mechanics end his Subcontractor with respect to the Work Contractor shalt directly mark*and respond to,defend and be responsible for any citation,order,claim,chaige or criminal or civrl actions arising by reason of the failure of Contractor or his *gents,his employees,his Mechanics andVer his Subcontractors to so comply regardless,or whether such non compllance Is the sore or a contributory cause of any of those matters against which Contractor is obligated hereunder. Contractor sherd indemnify, defend(at Contractor's sole cost with legal counsel eccoptab),to Owner)and hold harmless each of the Reviewing Representatives and their rear ecthse agents end employees occasioned by the suspension,cancellation or termination of any contract,(or the Owner's e&glbiltytheie or),damage,costs,clams,awards,ludgmaKa,ems,expenses,imiuding"ligation expenses, reasonable attorneys'fees,claims or liability for harm to person orpmperty,expenses incurred pursuant to, or attendant to,any hearing or meeting or any other applicable costs which may be incurred by any of the • Reviewing Representatives or their respective agents and employees es a result of the¶e fakes to comply with the covenants as set forth herein. 10.3 Fat re to Comply with AntLD scrlmindbn Laws.!l Conf»ctorntes boom/petit?any of the aforementioned EEO Laws, or any judgment, order or sward issued by the Office of Federal Contract Complence,Office of the United States Department of Labor or any other federal,state or local agency or any court of law,or any other body responsible for the administration and/or enforcement of any EEO Laws, wihinn She period specified M any such laws,judgment order or award,Owner may,et his sole discretion, exercise the rights end remedies provided hrrr under the terms and condlYons of this Agreement 11. BONDING. 11.1 Esitaaerferminafigarj. Owner may et any time require Contractor to Hanish a&NAN performance bond issued bye surety company!fated In the Federal Register,acceptable to Owner and authorized to do surety business in the State of California whose stop In the most recent Best rating guide fs not less than B.in form aelisfactory to Owner,seaming the faithful performance by Contractor of all his obYgations under the Contract Documents,it an amount not less then the vekre of the Wort remaining to be performed.Upon request byOwner,Contractor shall lndemnkytte sunryorpoat adequate collateral,orbofh, to secure any indemnity to any surety. The premium for the faNh*u1 performance bond must be separately included in the Contract Price. Owner may recover upon the faithful periem ence bond an amount equal to Owner's cost or expense of curing or attempting to auto any breech of Ore Connect Document*within flve(5) calendar days allerreoelpt of Owner's written request Mat Contras/warns such breach,orhnmedietey upon the breech of lb.Co ntractDocumentsbyOwner,rrContractor's brcapabteof curing such breech.Ownermay also recover upon the faithful pefonnance bond upon Owner's receipt of Owner's written notice to cease performing tho Workpursuant to the terms ofthe Ccr*sclDacwnents,hen emoted equal to(1)the deference bebseen(lithe sum of the costa of completing the Wort relating the Wont or both,and(2)the wreak/portion of the Contract Price which represents unperformed work, plus(H)the amount of any damages to which Owner la entitled by reason of the failure of Owner to perform the Work together wfth a reasonable reserve for the Clean up or the site of the Work. 11.2 tabor end h erertai Pamela Bond Owner may st any time require Contractor to furnish a laborend material peyment bond Issued byesrretycwnperymeeting We requirement*of Section 11.1 above in form satisfaot rytoOwner,aec rtngOwner'spaymsnfofel moniesowed to his employees.Subcontractors end Mechanics. Upon request by Owner,Contractor shall hidemnfylls.surety or poet adequate colla$•rai, or both.to secure any indemnity to any surety. Owner shall pay the premium for the labor and material 19 anrn„raoa • CONTRACT NO. R19820A payment bond. The labor and material payment bond shall be en amount not less than one hundred and ftiy percent(1 d0%)of the Contract Price(as tt maybe adjusted by shay authorized Change Orders in accordance with this Article 5,Section 1). Owner shad be entitled recover upon the labor and material payment bond prrmedGstelyupon(0 recordation of a machanics'Senormateriahnen'slien upon the Project Ste,(b)knposlfkn of any stop notice on funds held byeenderthat are Intended to be paid the Owner pursuant tbanagreement to finance the Work or any portion thereof.or(c)the garnishment or attachment of funds held by Owner or by any person or entity other than Owner,as a result of the performance of the Work. 12. DEFAULT:REMEDIES FOR DEFAULT. 12.1 Dead. Contractors failure to comply with eny of the terms,provisions,or eondltions of the Contract Documents shall constitute a default by Contractor. 122 r$R.. frContrector fads to remedy eny default wIthIn twenty-lour(24)hours after nrcelpt of written notice kW??Owner or such longer period when approved in witting by Owner when absolutely required because the default cannot be cured within such twenty-four(24)hour time period(provided Contractorconumenoes to cure immediately upon receipt of mitten notice from Owner and thereefterdiligently prosecutes such cure to completion),Owner shad,at its sale election and without additional written notice to Contractor,be entitled to one or more of the following remedies,none of which shall be deemed exclusive of the other. (A) Erdnetion. Termination of the Contractors right to prosecute performance of the Work,b whole or in part,without Nabdlty to Contractor for any Work thereafter performed by another contractor or anyone else. (E) FyerciseOtherRenedlee.P ue any other remedy pmi.4dd elsewhere hi UmAgreemsnt (C) Alibbarang. Wllhhold payment of any monies due Contractor until the defer&has been cured and a final accounting of Owner's costs and appropriate deductions have been made as permitted under the Agreement. (0) g14ff Owner may setoff the cost to complete the performance of the Work against monies due to Contactor under any other contract between Owner(or any entity owned orcantrWbdby Owner)and Contractor(or any entity owned or controlled byContra tor),whether such oonbact shall be bi effect prior or subsequent to the Agreement (E) Direct Payment to Others. Owner shad be entitled to pay any sums to any such persona, toms,itself or other entities to whom Contractor shalt be obligated and to charge such sums paid to the account of Contractor without recourse by Contractor end without inquiry ae to the validity of such obligation and the correctness of the amount thereof. if such sum le greeterthen the amount then due Contractor,the excess shad be a debt due from Contractor to Owner end shalt bear interest at rite Stfpueted interest Rate. (F) atter____Nreedel. Any and ad other remedies as may be provided at law or in equiyr. in any such event under 122(e)through(0,Owner shad be entitled to: (I) Complete the Work oreny portion thereof or correct any failures in the Work and procure such equipment,labor,tools,supplies,supervision,construction plant,materials and other incidentals necessary therefor,and in so doing use any of Conhaelors equipment tools,supplies,supervision, continuation plant,materials and other Incidentals,and consume materials on the Project Site u tit the Work Is completed,and Contractor shalt pay Owner the coat of such completion or correction, plus t e►typerce►K(20%)ofsuchcosts("AdditionalCosts,tocompensateOwnerforoverheaden d administration;or (it) Recover from Contractor the reasonable value of el or a portion tee cost to complete the performance of the Work;or (hi)Recover from Conbectarad damages arising outot such default,indudrng but not limited a,. r wu.. WOW nars 20 animator . CONTRACT NO. R19820A to loss of proMs and recovery of any end at costs whatsoever directly or knd rectly related to such default or (iv) Pursue all of akematNee(0,(II)and(lilt above. if Owner terminates Contractor's right to complete the Work or If tanner completes the Work or any portion thereof,Contactor shall receive no Anther payment(including any progress payment submitted to Owner but unpaid)unit the Work Is completed and accepted by Owner and by any Governing Agencies whose acceptance is requited. Owner shalt pay Contradorthe amount owing onthe Conked Pricetogether with all duty authorized and executed Change Orders less(a)at oasts incurred by Owner in completing the Work,(b)the Additional Costs described above,end(c)a attorneys'foes incurred by Owner es a result of Contractor's defeult lithe amount unpaid to Is less than the cost krcwned by Owner in completing the Wort, Contractor shell pay to Owner within two(2)weeks of Owner's invoicing the amount by which Owner's cost exceed the unpaid balance due and such costs shell bear interest at the Stipulated Interest Rate. Owner shell have a lien and security kierest in all Contrectors materials,toots,equipment and appliances taken possession of as is permitted by the Agreement,to secure the payment thereof inducting all Cost to remedy any unauthorized cherge(s)to the Worst. If Contreabr's right to perform the Work is terminated,any agreement of Contractor relating to the Work with thlnd parties shalt,at the election of Owner,be assigned to Owner. CONTRACT NO. R19820A EXHIBIT A INTENTIONALLY DELETED • • oeaeao. CONTRACT NO. R19820A EXHIBIT 8 FORM OF PROGRESS PAYMENT APPLICATION • CONTRACT NO. R19820A • EXHIBIT C FORM OF SUPPLIER/SUBCONTRACTOR STATEMENT • Aer,in .r Y4 m • CONTRACT NO. R19820A EXHIBIT D FORM OF RELEASE OF LIEN AND WAIVER OF CLAIMS MON.mamma •roomemalmet 25 onr..