HomeMy WebLinkAbout04-1660
I
,I
CARLISLE AREA SCHOOL DISTRICT
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO. fY./ ,/I.~
Defendant.
NOTICF
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty (20) days after
this Complaint and Notice are served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you. You are warned that if you fail to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice for
any money claimed in the Complaint or for any other claim or relief requested by the
Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN
SAIDIS GET LEGAL HELP.
SHUFF, FLOWER
& LINDSAY
ATTORNEYS-AT-LAW
26 W. High Street
Carlisle, P A
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
(717) 249-3166
SAIDIS
SHUFF, FLOWER
& LINDSAY
A'lTORNEYS-ATeLAW
26 W. High Street
Carlisle, P A
II
II
I
I
CARLISLE AREA SCHOOL DISTRICT
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO, /')4 - JI-l..t)
Defendant.
COMPLAINT
COUNT I - UNJUST ENRICHMENT
AND NOW, comes Plaintiff, CARLISLE AREA SCHOOL DISTRICT, by
and through its attorneys, SAlOIS, SHUFF, FLOWER & LINDSAY, and aver as follows:
1. Plaintiff is CARLISLE AREA SCHOOL DISTRICT ("the District'?,
with its principal offices located at 623 West Penn Street, Carlisle, Cumberland County,
Pennsylvania.
2. Defendant is LYONS CONSTRUCTION SERVICES, INC. ("Lyons
Construction'?, a general contractor with principal offices located at 5237 East Trindle
Road, Mechanicsburg, Cumberland County, Pennsylvania,
3. Pursuant to competitive bidding procedures, the DISTRICT
accepted LYONS CONSTRUCTION'S bid to perform certain general contracting work
for the DISTRICT at the campus of the Carlisle Senior High School, according to terms
and conditions set forth in a written contract made between LYONS CONSTRUCTION
and the DISTRICT. The contract between DISTRICT and LYONS CONSTRUCTION is
2
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATI'ORNEYStAT.LAW
26 W. High Street
Carlisle. PA
attached hereto as Exhibit "A". The General Conditions of the contract for construction,
applicable to all contractors, and an integral part of the contract with Defendant LYONS
CONSTRUCTION is attached hereto as Exhibit "B". The Supplementary Conditions
which modify and supplement the General Conditions of the contract for construction
(Exhibit "B") and which are an integral part of the contract between DISTRICT and
LYONS CONSTRUCTION are attached hereto as Exhibit "C",
4. Defendant LYONS CONSTRUTION has completed its work on the
project, although not satisfactorily, and has left the site.
5. The amount properly due to LYONS CONSTRUCTION for the
original contract amount of Nine Million Six Hundred Twenty-two Thousand
($9,622,000.00) Dollars, plus change orders number 1 through number 59, is Nine
Million Seven Hundred Forty-one Thousand Eight Hundred Thirty-nine and 96/100
($9,741,839.96) Dollars.
6. The DISTRICT inadvertently paid an invoice of Four Hundred
Fourteen Thousand Nine Hundred Eighty-four and 34/100 ($414,984.34) Dollars, twice,
specifically on December 18, 2003, and again on January 15, 2004.
7. The overpayment on the contract is, consequently, Two Hundred
Ten Thousand Seven Hundred Twenty-eight and 38/100 ($210,728,38) Dollars.
8. To the extent that Plaintiff DISTRICT has overpaid Defendant
LYONS CONSTRUCTION an amount in excess of the contract, Defendant LYONS
CONSTRUCTION has been unjustly enriched by said overpayment, and Plaintiff
DISTRICT is entitled to prompt repayment of said amount.
3
SAlOIS
mUFF, FLOWER
& LINDSAY
A'lTORNEYS-AT-LAW
26 W. High Street
Carlisle. PA
II
I
I
9. Defendant LYONS CONSTRUCTION'S failure to promptly repay
the overpayment after demand is dilatory, obdurate and vexatious, under the meaning of
42 Pa.C.S.A. 92503, and justifies an award of reasonable attorneys fees.
WHEREFORE, Plaintiff demands judgment against Defendant in the
amount of Two Hundred Ten Thousand Seven Hundred Twenty-eight and 38/100
($210,728.38) Dollars, plus interest from January 15, 2004, costs and attorneys fees,
COUNT (( - RRI=ACH OF CONTRACT
10. The allegations set forth in paragraphs 1 through 9 are
incorporated herein by reference. Actions and omissions by Defendant LYONS
CONSTRUCTION set forth as follows, constituted a breach of its construction contract
with Plaintiff DISTRICT:
A. Under the Supplementary Conditions applicable to this
project (Exhibit "C"), it is provided that time would be an essential part of the contract
and that the failure on the part of the contractor to complete the contract within the time
specified and agreed upon would be damaging to DISTRICT and providing that
liquidated damages in the amount of One Thousand ($1,000,00) Dollars for each and
every day's delay per phase, per contractor, would be assessed. In accordance with
this clause, LYONS CONSTRUCTION is indebted to the DISTRICT for liquidated
damages in the amount of Eighty-nine Thousand ($89,000.00). The relevant provisions
with respect to liquidated damages are attached hereto as Exhibit "D".
4
SAlOIS
iHUFF, FLOWER
& LINDSAY
ATTORNEYS-AT'LAW
26 W. High Street
Carll,le. P A
II
8, The contract called for a terrazzo cafeteria floor to match the
existing floor. Specifically, Drawing G13S, The Epoxy Terrazzo Flooring Color Legend
Hatched Area states: "Overall color match existing tan." LYONS CONSTRUCTION
failed to provide a matching terrazzo floor in this area in breach of the conditions of the
contract, but instead installed a different colored product. The DISTRICT suffered a
diminution of value from that provided in accordance with the contract in the
approximate amount of Five Thousand ($5,000.00) Dollars. A true and correct copy of
the above specification is attached hereto as Exhibit "E".
C. The contract between Plaintiff DISTRICT and Defendant
LYONS CONSTRUCTION provides in the Demolition Drawings on all sheets under
"General Note." "8" Areas disturbed through demolition are to be patched to match
surrounding finish or condition, if necessary," Defendant LYONS CONSTRUCTION
utilized tiles that do not match the surrounding finish. As a result of this breach of the
contract, DISTRICT suffered a diminution of value of the contract services in breach of
Defendant's obligations in the approximate amount of Ten Thousand ($10,000.00)
Dollars. The aforesaid "General Note" is attached hereto as Exhibit "F",
D. In the course of construction, Defendant LYONS
CONSTRUCTION'S employees damaged a toilet, requiring additional work by the
plumbing contractor, which cost the DISTRICT the sum of Two Hundred Fifty-six
($256.00) Dollars, a reasonable and necessary charge for said services, which
additional sum is due the DISTRICT from LYONS CONSTRUCTION.
5
SAIDIS
.HUFF, FLOWER
& LINDSAY
ATlURNEVS-AT-LAW
26 W. High Street
Carlisle, P A
II
"
'I
WHEREFORE, Plaintiff demands judgment against Defendant in the
additional amount of One Hundred Four Thousand Two Hundred Fifty-six ($104,256.00)
Dollars for the breaches of contract set forth in Count II, and for total damages for unjust
enrichment and breach of contract in the amount of Three Hundred Fourteen Thousand
Nine Hundred Eighty-four 38/100 ($314,984.38) Dollars, plus costs, interest and
attorneys fees.
Respectfully submitted,
SAIDIS, SHUFF, FLOWER & LINDSAY
Attorneys for the Plaintiff
By\\Q~ () I
(. , ) James D. Flower, Jr.
\ I.D. #27742
26 West High Street
Carlisle, PA 17013
(717) 243-6222
6
SAIDIS
lUFF, FLOWER
~ LINDSAY
TI'ORNEVS-",T-u..W
6 W. High Street
Carlisle, P A
II
'I
VFRIFICATION
I, ROBERT CRAIG WILLIAMS, Director of Finance of the Carlisle Area
School District, hereby verify that the statements made in the within Complaint are true
and correct to the best of my knowledge, information and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904,
relating to unsworn falsification to authorities.
CARLISLE AREA SCHOOL DISTRICT
By fjiJ C w:. '
Robert Craig Williams
Director of Finance
Date: April 13, 2004
7
Exhibit A
Standard Form of Agreement Between Owner and
Contractor where the basis of payment is a Stipulated Sum -
Constr'uction Manager-Advi$er Edition
AlA Document A101/CMa - Electronic Format
I .
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES: CONSULTATION wrm AN ATTORNEY tS ENCOURAGED wrm RESPECT TO ITS
COMPLETION OR MODmCATION. AUTHENTICAnON OF THIS ELECTRONICALLY DRAFTED A.lA DOCUMENT MAY BE MADE BY USINO'AlA.
DOCUMENT 0401.
The 1992 Edition of AlA Document A201lCMa, Genera.l Conditions of the Contract: for ConstnlcriOl1, Construction Managc:r..Advisc:r Edition. .is adopted in this
document by reference. Do not use: with other general conditions unless this document is modified.
Copyright 1975, 1980, cOpyr;ghl1992 by The American lnstilUle of Architects, Ins New York Avenue N.W., Washington D.C. 20006-5292. Reproduction of the
material herein or substantial quotation o(its provisions without written pcnnission of the AlA violates the copyright laws otthc United States and will be subject to
Iqal prosecution.
AGREEMENT
made as of the 15th day of February
fln words, Indlcall tIay, month ond )'<OT)
BETWEEN the Owner:
(Nom. end address)
CARLISLE AREA SCHOOL DISTRICT
623 West Penn Street
Carlisle, Penn~lvania 17013-2298
and the Contractor: Lyons Construction Services, Inc.
(Nt>>....ndaddr=) 5237 East Trindle Road
Mechanicsburg, PA 17050-3552
For the following Project:
(Inclu.de. detailed description of Project. [ocatlon, address and SCOptJ
ADDmONS AND ALTERATIONS TO:
HIGH SCHOOL COMPLEX: PHASE 1. SWARTVEDUCATIONAL TECHNOLOGY CENTER
in the year of Two Thousand One (2001).
The Construction Manager is:
(Nam. and addnss)
ItS. MOWERY AND SONS, INCORPORATED
625 Hamilton Street
-Carlisle, Pennsylvania 17013
The Architect is:
(Na... and add,..,,)
FOREMAN ARCHITECTS ENGINEERS, INCORPORATED
BOl( 189, 2685 Hossler Road
Manheim, Pennsylvania 17545
. BOlt 189, 525 West New Castle Street
Zelienople, Pennsylvania 16063
.The Owner and Contractor agree as set forth below.
lJA OOCIJMENT AIOIICM., OWNER-CONTRACTORAOREEMENT' CONSTRUCTION MANAGER.-ADVlSER EDITION -AJA _.COPYRlGHT 1992 - THE .
IMERlCAN JNSTlTUl'E OF AACllITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON D.C 20006-5292.; Unli=d photoCopying violates U.S.
opjTight raws and is subject to legal prosecution. This document was tfectronieally produced with pamissiori of the IUA and can be: ~rodiiced \l!ithoUl violation
nliI rho date ofcxpintiOll a.s noled below.
Electronic Fonna! A10llCMa-1992
User' Document 9814600500.DOC - 9/28/2000. AlA license Number 106309, which expires on 11/6/2000 - Pao~:l!1
ARTICLE 1
THE CONTRACT DOCUMENTS
The Contract Documents consist of this Agreemen~ Conditions of the Contract (General, Supplemental')' and other Conditions},
Drawings, Specifications, Addenda' issued prior to execution of this. Agreement, other documents listed in this Agreement and
Modifications issued after execution of thi1 Agreement; these form the Contract, and are as fully a part of the Contract as if attached to
this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and
supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Dilcuments. other
than Modifications, appears in Article 9.
ARTICLE 2
. TtlE WORK OF THIS CONTRACT
The Contractor shall exec~te the entire Work described in the 'Contract Documents, except to the extent specifically indicated in the
Contract Documents to be the'responsibility of others, ef-ilS fello'.\'s:for Contract Number 98146-401, Genera I Construct i on.
ARTICLE 3
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
3.1 The date of commencement is the date from which thc Contr~ct Timc of Par~;;r~ph 3.:2 i: meazurcd. and :hall be the date of
this Agr<>ement, a; fl!":t "Tittcn above, unlc:: a diffcrcnt datei: :tatcd bolow or provi:jon i: made for thc date to be fixed in a notice to
proceed issued by the Owner. .
(Insert the date of commencement. if it difftnfrom the date of this Agreement or, if applicable. l/Qle that the dOl' will. be faed in a 7totJc~ to proceed.)
The Work to be performed under this Contract shall be commenced immediately upon receipt of the .Notice to Proceed~
J:x"uted At..C'tll'itnl, which.',.r O"Ur3 fU'3t.
Unless the date of commencement is established by a notice to proceed issued by the Owner, the Contractor shall notify the Owner,
through the Construction Manager, in writing not less than five days before commencing the Work to pennit the timely filing of
mortgages, Hlcch:mic': lien: and other security interests.
3.2 The Contractor shall acliieve Substantial Completion of the entire Work not later than Apr i 1 9., 2003. .
(J1Ui!r1 th~ CQ[tndar aate or number of calendc; days after the date of commencement. Also imert any requirements/or earlier Substantia} Complelion of certain
porllDlU oj'lh, WorA;. i/nol Slated el,twhut. in the Contract Documents.}
with portions of the Work to be partially completed to such extent that allows Owner occupancy, in phases described in Section 01101
of the Project Manual. and following the parameters of Section 01321 of the Project Manual, or as otherwise mutually agreed, in
writing, between both parties of this Agreement. .
. subject to adjustments of this Contract Time as provided in the Contract Documents.
(Insert prlNisloru, if any, lor liquidated damage~ relating taJailure to camplele on time.)
Insert A: The Contractor and the Contractor's Surety shall be liable for and shall pay the Owner liquidated damages in
accord with provisions of Document 00800 - Supplementary Conditions, Article 8, Subparagraph 8.2.4.
ARTICLE 4
CONTRACT SUM
4.1 The Owner shall pay the Contractor in current funds for the Contractor's perfonnance of the Contract the Contract Swn of
NINE MILLlCN SIX HUNDRED TWENTY-ThO l}j()tJSANl) DOLLARS ($ 9,622,000.00), subject to additions and deductions as .
provided in the Contract Docurents.
4.2 The Contract Sum ;s based upon the following alternates, if any, which are descn"bed in the Contract Documents and are
hereby accepted by the Owner:
(Smle the num~rs or Dther ldenll/iCDtion oj t1ccepled allemates. If decisiDns on other alternates an 10 be mode by the O'll'ntl' S1lb,equtllt to the t.:Ucution oj this
AgreemenJ. alUzc:h 11 dedule of su,h other alternates showing the amount/ol' each and the r:/Jzte until which that amoUl'lt is volidJ
. BASE BID $ 9.345,000.00
Alternate #10 - Add West rear parking -- AOO $37,000.00
Alternate #12 - Add site S6Wer/water --AOO $240,000.00
4.3 Unit prices, if any, are as follows:
None.
AJA DOCUMENT AIOIICM.. OWNER-cON1RACTOR AGREEMENT' CONSTRUCTION MANAGER-ADVISER EDmON . AlA. COPYRlGlIT 1992 ..TIlE
AMERICAN INSTTTUl'E OF ARCHITECTS, 1735 NEW YORK AVENUE N.W, WASHINGTON D.C 20006.5292.; UnliC<llsed phot060pling viol.tes U.s.
cop)Tight Itw! and 1s subject to legal prosecution. This document was electronically produced -with permission of the AlA and tan be reproduced \\ithout violation
Intil1heo date of expiration IJ noted below.
. Electronic Format A10llCMa-1992
. User Document 9814600:;00.DOC - 9/28/2000. AlA License Number 106309. which expires on 11/6/2000 - Page #2
ARTICLE 5
PROGRESS PAYMENTS
5.1 Based upon Applications for Payment submitted by the Contractor to the Construction Manager, and upon Project
Applications and Certificates for Payment issued by the Construction Manager and A rchitect, the Owner shall m~progress
payments on accowrt of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents.
5.2 The period covered by each Application for Payment shall be one calendar month endiIig on the 15th last-day of the month,
eHl5 felle'.':!;;
5.3 Provided an AppHcation for Payment is submitted to the Constru~tion iV',:'nkger not later than the agreed upon day of a
month, the Owner shall make payment to the Contractor not later than the 20th day of the following month. If an Application for
Payment is received by the Construction Manager after the application date fixed above, payment shaU be made by the Owner not
later than 75 days after the Construction Manager receives the Application for Payment
5.4 Each Application for Payment shall be based upoa the Schedule of Values submitted by the Contractor in accordance with
the Contract Documents. The Schedule of Values shall allocate the entire Contract Sum amoag the various portions of the Work and
be prepared in such form and supported by such data to substantiate its accuracy as the Construction Manager or Architect may
require. This schedule, unless objected to by the Construction Manager or Architect, shaU be used as a basis for reviewing the
Contractor'S Applications for Payment. .
5.5 Applications for Payment shall indicate the percentage of completion of each portion of the Work as of the end of the period
covered by the Application for Payment.
5.6 Subject to the provisions of the Contract Documents, the amount of each progress payment shall be computed as follows:
5.6.1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage
completion of each portion of the Work by the share of the total Contract Sum allocated to that portion of the Work in the Schedule of
Values, less retainage often percent (10 %). Pending flnal determination of cost to the Owner of changes in the Work, amounts not in
dispute JDaYbe included as provided in Subparagraph 7.3.7 of the General Conditions;
5.6.2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suirably stored at the site
for subsequent incorporation in the completed construction (or, if ~pprovcd in ~dv:ll1ce by the O\'mer, :;uit~bly :;tored oF. the site at a
loc~tion :l~ccd upon in writin;), less retainage of ten percent (10 %); such payment shall constitute transfer of title to the materials
and equipment for which such payment was made, if such transfer has not theretofore occurred.
5.6.3 Subtract the aggregate of previous payments made by the Owner; and
5.6.4 Subtract amounts, if any, for which the Construction Manager or Architect has withheld or nullified a Certificate for Payment
as provided in Paragraph 9.S of the General Conditions. '
5.7 The progress payment amount determined in accordance with Paragraph 5.6 shall be further modified under the following
circumstances: '
5.7.1 Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to ninety-five percent (9S
%) of the Contract Swn, less such amounts as the Construction Manager recommends and the Architect determines for incomplete
Wark and unsettled claims; and
5.7.2 Add, if f"mal completion of the Work is thereafter materially delayed through no fault of the Contractor, any additional
amounts payable in accordance with Subparagraph 9.1003 of the General Conditions.
5.8 Reduction or limitation of retain age, if an)', ~h:lll bc ~ follow:;:
(11 it u Wended, prior 10 Suhstantia? Camp/dio" of th" entire Work, to redu~ or-limit the relaipt,Qg~ resultingftam the percenlage.s iruerled in Subpa"agraphs J.6.J
tuuI 5.6.2 above, Qnd thiJ ls not aplained elsewhere In the Contract DlXUmenlJ, iruer/ here provisions/or such reduction or limUation.)
Shall be in accord with Document 00700, Article 9, as modified by Document 00800, Article 9, Subparagraphs 9.3.6 and 9.3.7.
AlA DOCtJMENT Al OllCMa' OWNER..cONTRACTOR AGREEMENT' CONSTRUCIlON MANAGER-ADVISER EDmON - AlA. COPYRlOHT 1992 - TIlE
AMERICAN lNSTl1VrE OF ARCHITECTS, ms NEW YORK AVENUE N.W" WAS!lINOrON D,C 20~5292.; Unlicensed pho,,,,,opying violates U.S.
copyright J~'$ and is subject 10 legal prosecut.ion. This document was electronically produced with permission of the AlA and can be reproduced without violation
IUI1iltho:<la.teofo:xpilOtioaas.oted below. .
Electronic Format AIOI/CMa-1992
User Document 98146DD5DO.00C - 9/28/20.00.. AlA License Number 10630.9, which expires on 11/6/20.0.0. - PaQe #3
ARTICLE 5
FINAL PAYMENT
FInal payment, constituting the entir~ unpaid balance of the Contract Sum, shall be made by the Owner \0 the Contractor when (1) the
Contract has been fully performed by the Contractor except for the Contractor's responsibility to . correct nonconforming Work as
provided in Subparagraph 12.2.2 of the General Conditions and to satisfY other requirements, ifany, which necessarily su!'Vive fmal
payment; and (2) a final Project Certificate for Payment has been issued by the Construction Manager and Architect; .such final
pal' "lent sha!1 be made by the Owner not more than 4S ~ays after the issuance of the final Project Certificate for Payment, or as
follows:. . .
In accord with Document 00700, Article 9, as modified by Document 00800, Article 9, Subparagraphs 9.3.8 and 9.3.9..
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 Where reference is made in this Agreement to a provision of the General Conditions or another Contract Document, the
reference refers to that provision as amended or supplemented by other provisions of the Contract Documents.
7.2 Payments due and unpaid under the Contract shall bear interest from the date pal .nent is due at the rate stated below, or in
the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located.
(Insert raft: of IlIterest agreed upon, 1/ any.)
Rate of interest shall be in accord with Document 00800, Article 9, Subparagraph 9.3.10.
(Usu'f /a1l'1 ani requiremenrs unde!" the Federal Truth In una/fig Act, similar stale and local consumer credillall's afuJ a/her regulations af the Owntl''s and
Contraclor's principal places of business, the IOC{1tion of/he Project and elsewhere may affect the validity of I!rlS provision. Legal advice should be oblained with
respe".lo dealiQ/U or modificatiOns, (md also regarding r~quiremenls such as ll'rlllelf disclosures or 11'4lve1's.) .
7.3 Temporary facilities and services:
(Her-e iruert temporary jadlitfes aN.d servic!S wltieh are diJ1erenlfrom or in additionlo thost included elsewllere in tire Contract Documents.)
In accord with Section 01500. . .
7.4 Other Provisions:
(Here list llf1J' ~cilzl provistolU offecUngtlle Contract.)
None.
ARTICLE S
TERMINATION OR SUSPENSION
8:1 The Contract may be terminated by the Owner or the Contractor as provided in Article 14 of the General Conditions.
8.Z The Work may be suspended by the Owner as provided in Article 14'offue General Conditions.
ARTICLE 9
ENUMERATION OF CONTRACT DOCUMENTS
9.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows:
9.1.1 The Agreement is this executed Standard Form of Agreement Between Owne(and Contractor, AlA Document AIOI/CMs,
1992 Constnlction Manager-Adviser Edition. .
9.l.Z'.'Th.:'Gehetal'Conditiohs are the General Conditions of the Contract for Construction, ALA Document A20I/CM., 1992
Construction Manager-Adviser Edition.. .
9.1.3 The Supplementary and other Conditions of the Contract are those contained in the Project Manual dated 21 September 2000
, and are as follows:
Document Title Pages
The Supplementary and other. Conditions of the Contract are enumerated in the Project Manual, Document 00003, Table of Contents
of Project Manual, under the heading "Documents and Contracts"; Pages 00003.1 and 2; and include modifications contained in the
Addenda listed under Subparagraph 9.1.6 of this Agreement. .
/JA OOCUMEl>1T AIOllCM.. OWNER-CONTRACTOR AGREEMENT. CONSTRUcnON MANAGER.ADVlSER EDmON -/JA - COPYRIGHT 1992 _ THE
AMERICAN lNSTlTlITE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W, WASHINGTON D.C 20006-5292.; Unlicensed photocopying viol.tes U.S.
cop)'Tighllaws and is subject to legal prosecution. This document was electronically produced "il.h permission of the' AlA and can be reproduced without violation
~m:i1thedateorexplrationasnoted,below. , .. . '.. .
. . . Elecl<onic Format A101lCMa-1992
'User Document: 9B1460~500.DOC - 9/28/2000. AlA License Number 106309, which expires on 11/6~2000 - Page #4
9.1.4 The Specifications are those contained in the Project Manual dated as in Subparagraph 9.1.3, and are as follows:
(Euher l1st the SJXcfficatloru ntrt. Of' rifer 10 en aMbIt at/od,d /0 ,ltIs Agreemtfl/.)
Document. Title Pages
The Specifications are enumerated in the Project Manual, Document 00003, Table of Contents of Project Manua~ under the headings
.Divisions '1, 2, 3, 4, 5, 6, 7, 8, 9. 10, 1 i, 12, 13, 14, 15, and 16", Pages 00003.2 through 8; and include rno('ifications. contained in' the
Addenda listed un,der Subparagraph 9.1.6 of this Agreement.
9.1.5 . The Drawings are as follows, and are dated 21 September 2000 unlm a different date 1:; ~hown below;
(EUh~r lisr the Drtru:firgs heri or reftr (0 an uhihlt (It/ached 10 this Agr~!!'IIt.nl.) .
Document Tit!e. Pages
The Drawings are enumerated in the Project Manual, Document 00004, List of Drawings, Tabk', ~.1d Scliedules, Pages 00004-1
through 15; and include modifications contained in the Addenda listed under Subparagraph 9.1.6 oftLs Agreement
9.1.6 The Addenda, if any, are as follows:
Document Date
00901 ~ber 18, 2000
00902 October 20, 2000
00903 November 1, 2000
00904 November 9, 2000
00905 November 10, 2000
00906 November 14, 2000
00907 January 5, 2001
00908 January 15,2001
00909 January 19, 2001
00910 january 26, 2001
Pal!'es
28 pages
24 supplemental drawings
1 page
44 pages
25 supplemental drawings
27 reissue draWings
41 pages
31 supplemental drawings
2 reissue drawings
13 pages
4 pages
2 supplemental drawings
102' pages
32 supplemental drawings
1 reissue draWing
17 pages
2 supplemental drawings
3 pages
18 pages
9.1.'1' Other documents, if allY, fanning part of the Contract Documents are as follows: . .
(LIst herr any additional docJlmtn(.1l1'hfch art int,nded (%rm pari alth~ Contracl D~c:um~nLJ. Th~ General Conditions prOYlae Ihat bidding l"ef{ulrunent! such as
adv~rllJUlefft 01' ltrIIltatlon to bid, lrutnlctlotU to BldduJ, sample forms and lite. COfllraclor's hid are net parI of the Contract Documents un/us InllmeraterJ In tlrtr
Agr..m.nl. Th.y.houl. belin.. "". onlY /llnl.n..d 10 b.JXl'1 o/Ih. ConlroctDocu';""uJ
Other documents forming part of the Contract Documents are identified in the Project Manual, Document 00800, Page 00800-j,
Subparagraph 1.1.1. .
This Agreement is entered illto as of the day and year first written above and is executed in at least four original copies ofwrnch one is
to be delivered to the Contractor, one each to the Construction Manager and Architect for use in the administration of the Contract,
and the remainder to the OwlIer. .
CONSTRUCTION SERVICES. INC.
OWNER .CAR~ ;REA SCHOOL OISTRICT
(j~
(Slgnohln) D'r. 'F ed BaldWCiO. ~"'1'ot
ATTEST: W~
Nr. Robert C. Williams, Board Secretary
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lA DOCUMENT AIOIICMa' OWNER-CONTRACTOR AGREEMENT' CONSTRUCTION MANAGER-ADVISER mmON. AJA. COPYRIGHT 1992 .mE
MER/CAN lNS11T\.ITE Of ARCHITECTS, 173S NEW YORK AVENUE N.W., WASHINGTON D.C 20006-5292.; Unli"n"d photocopying violatcs Li.s,
,p>,;ght Ia.. II1d is ,ubje.t to Itg.1 proStCution. This docum,nt was ,I'clroni..uy ptoduced with permission of th, AJA II1d wi be: rtptod~"d without violation
ltil tho daleor expirJlion as not,d be/o\\'. .
.. Electronic Format AIO lICMa-1992
User Document.S814600500.00C - S/2812000. AlA LIcense Number 106309, which expires on 11/612000 - Page#S'
Exhibit B
GENER.AL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
ARTICLE 1
GENERAL PROVISIONS
1.1
BASIC DEFINITIONS
1.1,1 THE CONTRACT DOCUMENTS
The Contr:lct Documents consist of the Agreement between
Owner and ContractOr (hereinafter the Agreement), Condi.
tions of the Contract (General, Supplementary and Other Con-
ditions), Drawings, Specifications, addenda issued prior IO
execution of the Contract, other documents listed in the
Agreement and Modifications issued after execution of the
Contract. A Modification is (1) a written amendment to the
Contract signed by both parties, (2) a Change Order, (3) a Con-
strunian Change Directive or (4) a written order for a minor
change in the Work issued by the Architect. Unless specifically
enumerated in the Agreement, the Contract Documents do
not include other documents such as bidding requirements
(advertisement or invitation to bid, lnstruGions to Bidders,
sample forms, the Contractor's bid or portions of addenda
relating to bidding requirements).
1.1.2 THE CONTRACT
The Contract Documents form the Contract for Construction,
The Contract represents the entire and integrated agreement
between the parties hereto and supersedes prior negotiations,
representations or agreements, either written or <?raL The Con-
tract may be amended or modified only by a Modification.
The Contract Documents shall not be construed to create a
contractual relationship of any kind (1) between the Architect
and Contractor, (2) between the Construction Manager and
Contractor, (3) between the Architect and Construction Man-
ager, (4) between the Owner and a Subcontractor or Sub-
subcomractOr or (5) between any persons or entities other
than the Owner and Contractor. The Construction Manager
and Architect shall, however, be entitled to performance and
enforcement of obligations under the Contract intended to
facilitate performance of their duties.
1.1.3 THE WORK
The term "Wbrk" means the construction and services
required by the Contract Documents, whether completed or
partially completed, and includes all other labor, materials,
equipment and services provided or to be provided by the
Contractor to fulfill the Contractor's obligations. The Work
may constitute the whole or a part of the Project.
1.1.4 THE PROJECT
The Project IS the tot::I! construction of which the Work per-
formed under the Contract DocumentS may be the whole
or a pan and which may include construction by mher Con-
traCIQrs and by the Owner's own forces including persons or
entities under separ:.ite contracts not administered by the Con-
struction M3nager
1.1.5 THE DRAWINGS
The Dr:Iwings :Ire the gr:Iphic and pictOrial portions of the
COnti.lct Documems, wherever located ;lnd whenever issued,
showing the design, location and dimensions of the Work,
generally including plans, elevations, sections, de~i1s, sched-
ules and diagrams.
1.1.6 THE SPECIFICATIONS
The Specifications are that portion of the Comract Documents
consisting of the written requirements for materials, equip-
ment, construction systems, standards and workmanship for
the Work, and performance of related services.
1.1.7 THE PROJECT MANUAL
The Project Manual is the volume usually assembled for the
Work which may include the bidding requirements, sample
forms, Conditions of the Contract and Specifications.
1.2 EXECUTION, CORRELATION AND INTENT
1.2.1 The Contract Documents shall be signed by the Owner
and ContractOr as provided in the Agreement. If either the
Owner or ContractOr or both do not sign all the Contract
Documents, the Architect shall identify such unsigned Docu.
ments upon request.
1.2.2 Execution of the Contract by the ContractOr is a rep-
resentation that [he Contractor has visited the site, become
familiar with local conditions under which the Work is to
be performed and correlated personal observations with
requirements of the Contract Documents.
1.2.3 The intent of the Contract Documents is to include all
items necessary for the proper execution and completion of
the Work by the ContractOr. The Contract Documents are
complementary, and what is required by one shall b~ as bind-
ing as if required by all; performance by the Contractor shall
be required only to the extent consistent with the Contract
Documents and reasonably inferable from them as being
necessary to produce the intended results.
1.2.4 Organization of the Specifications intO divisions, sec-
tions and 3nicles, and arrangement of Drawings shall not con-
trol the ContractOr in dividing the Work among Subcontrac-
tors or in establishing the extent of Work to be performed by
any trade.
1.2.5 Unless otherwise stated in the Contract Documents,
words which have well-known technical or construction
industry meanings are used in the Contract Documents in
accordance with such recognized meanings.
1.3 OWNERSHIP AND USE OF ARCHITECT'S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
1.3.1 The Drawings, Specifications and other documents
prepared by the Architect are instruments of the Architect's
service through which the \Xi'ork to be executed by the Con-
tractor is described. The Contractor may retain one contract
record set. Neither the Contractor nor any Subcontractor, Sub-
subcontractOr or material or equipmenr supplier shall own
or claim a copyright in the Drawings, Specifications and other
documents prepared by the Architect, and unless othen....ise
indicated the Architect shall be deemed the author of them
and will retain all common taw, statutOry and other reserved
6 A201/CMa-1992
AlA DOCUMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRlICTlON
CONSTRUCTION MANAGER-ADVISER EDITION. 1992 EDITION . A1A~ . <91992 . THE AMER1CAN
INSTITUTE OF ARCHtTECTS, 1735 NEW YORK AVENVE. N.W., WASHINGTON, D.C. 20006-5292. WARNING:
Unlicensed photocopying violates US. copyright laws and will subject the violator 10 legal prosecution.
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rights, in addition to the copyright. AU copies of them, except
the Contractor's record set, shall be returned or suitably
accounted for to the Architect, on request, upon completion
of the Work. The Drawings, Specifications and other dOcu,
ments prepared by the Architect, and copies thereof furnished
to the Contracco(, are for use solely with respect co this Proj-
ect. They are not to be used by the Contractor or any Sub-
contractor, SUb-5ubcontracco[ or material or equipment
supplier on other projects or for additions to this Project out.
side the scope of the Work without the specific written
consent of the Owner and Architect. The Contractor, Sub-
contracCOfS, Sub~subcontractors and material or equipment
suppliers are granted a limited license to use and reproduce
applicable portions of the Drawings, Specifications and other
documents prepared by the Architect appropriate to and for
use in the execution of their \"Vbrk under the Contract Docu-
ments. All copies made under this license shall bear the
statutory copyright notice, if any, shown on the Drawings,
Specifications and other documents prepared by the Architect.
Submittal or distribution to meet official regulatory require-
ments or for other purposes in connection with this Project
is not to be construed as publication in derogation of the
Architect's copyright or other reserved rights.
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1,4 CAPITALIZATION
1.4.1 Terms capitalized in these General Conditions include
those which are (I) specifically defined. (2) the tities of num-
bered articles and identified references to Paragraphs, Sub-
paragraphs and Clauses in the document or (3) the titles
of Other documeots published by the American Institute
of Architects.
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1.5 INTERPRETATION
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1.5.1 In the interest of brevity the Contract Documents fre-
quently omit modifying words such as "aU" and' "any" and
articles such as "the" and "an," but the fact that a modifier
or an article is absent from one statement and appears in
another is not intended to affect the interpretation of either
statement.
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ARTICLE 2
OWNER
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2.1 DEFINITION
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2.1.1 The Owner is the person or entity identified as such
in the Agreement and is referred to throughout the Contract
Documents as if singular in number. The term "Owner" means
the Owner or tAe Owner's authorized representative.
2.1.2 The Owner upon reasonable written request shall fur.
nish to the Contractor in writing information which is nec-
essary and relevam for the Contractor to evaluate, give notice
of or enforce mechaniC'S lien rights. Such information shall
include a correct statement of the record legal title to the prop-
ercy on which the Project is located, usually referred to as
the site, and the Owner's interest therein at the time of execu-
tion of the Agreement and, within five days after any change,
information of such ch<1nge in title, recorded or unrecorded.
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2.2 INFORMATION AND SERVICES
REQUIRED OF THE OWNER
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2.2.1 The Owner shall, at the request of the Contractor, prior
to execution of the Agreement and promptly from time to time
thereafter, furnish to the Contractor re3.sonabk evidence that
financial arrangements have been made to fulfill the Owner's
obligations under the Contract. [Note: Unless such reasonable
evidence tt:ere furnished on request prior to the execution of
the Agreement, the prospective contractor would not be
required to e.WCl.lte the Agreement or to commence the Work.}
2.2.2 The Owner shall furnish surveys describing physical
characteristics, legal limitations and utility locations for the
site of the Project, and a legal description of (he site.
2.2.3 Except for permits and fees which are the responsibility
of the Contraccor under the Contract Documents, the Owner
shall secure and pay for necessary approvals, easements,
assessments and charges required for construction, use or
occupancy of permanent structures or for permanent changes
in existing facilities. Unless otherwise provided under the Con-
tract Documents, the Owner, through the Construction Man-
ager, shall secure and pay for the building permit.
2.2.4 Information or services under the Owner's control shall
be furnished by the Owner with reasonable promptness to
avoid delay in orderly progress of the Work.
2.2.5 Unless otherwise provided in the Contract Documents,
the Contractor will be furnished, free of charge, such copies
of Drawings and Project Manuals as are reasonably necessary
for execution of the Work.
2.2.6 The Owner shall forward all communications to
the Contractor through the Construction Manager and shall
contemporaneously provide the same communications to
the Architect.
2.2.7 The foregoing are in addition to other duties and
responsibilities of the Owner enumerated. herein and espe-
cially those in respect to Article 6 (Construction by Owner
or by Other Contractors), Article 9 (Payments and Comp!e-
tion) and Article 11 (Insurance and Bonds)~
2.3 OWNER'S RIGHT TO STOP THE WORK
2.3.1 If the Contractor fails to correct Work which is not in
accordance with the requiremeots of the Contract Documents
as required by Paragraph 12.2 or persistently fails to carry OUt
Work in accordance with the Comract Documents, the Owner,
by written order signed personally or by an agent specifically
so empowered by the Owner in writing, may order the Con-
tractor to stop the Work, or any portion thereof, until the cause
for such order has been eliminated; however, the right of the
Owner to StOp the Work shall not give rise to a duty on the
part of the Owner to exercise this right for the benefit of the
ContractOr or any other person or emity.
2,4 OWNER'S RIGHT TO CARRY OUT THE WORK
2.4.1 If the Contractor defaults or neglects to carry Qut the
Work in accordance with the Contract Documents and fails
within a seven-day period after receipt of written nQ[ice from
the Owner to commence and continue correction of such
default or neglect with diligence and promptrless, the Owner
may after such seven.day period give the Contractor a second
written notice to correct such deficiencies within a second
seven.day period. If the Contractor within such second seven-
day period after receipt of such second notice fails to com-
mence and continue to correct any deficiencies, the Owner
may, without prejudice to other remedies the Owner m<lY
have, correer such deficiencies. In such case an appropriate
Change Order shall be issued deducting from paymenrs then
or thereafter due the Contractor the cose of correcting such
deficiencies, including compensacion for the Construction
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AlA DOCUMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCTION ,"tANAGER-ADVISER EDmON . 1992 EDITION . AIA~ . @1992 . THE AMER1CAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, NW.. WASHINGTON, D.C. 20006-5292. WARNING:
Unlicensed photocopying violates US. copyright laws and will SUbject the violator to legal prosecution.
A201/CMa-1992 7
Manager's and Architect's and their respective consultants'
additional services and expenses made necessary by such
default, neglect or failure. Such action by the Owner and
amounts charged to the Contractor are bOth subject to prior
approval of the Architect, after consultation with the Construc~
tion Manager. If payments then or thereafter due the Contrac-
tor are nOt sufficient to cover such amounts, the Contractor
shall pay the difference to the Owner.
ARTICLE 3
CONTRACTOR
3.1 DEFINITION
3.1.1 The Contractor is the person or entity identified as such
in the Agreement and is referred to throughout this Agree-
ment as if singular in number. The term "Contractor" means
the Contractor or the Contractor's authorized repreSentative.
3.1.2 The plural term "Contractors" refers to persons or en~
tities who perform construction under Conditions of the Con-
tract that are administered by the Construction Manager, and
that are identical or substantially similar to these Conditions.
3.2 REVIEW OF CONTRACT DOCUMENTS AND
FIELD CONDITIONS BY CONTRACTOR
3.2.1 The Contractor shall carefully study and compare the
Contract Documents with each other and with information
furnished by the Owner pursuam to Subparagraph 2.2.2 and
shall at once report to the Construction Manager and Architect
errors, inconsistencies or omissions discovered. The Contrac~
tor shall not be liable -to the Owner, Construction Manager
or Architect for damage resulting from errors, inconsistencies
or omissions in the Contract Documents unless the COntrac-
tor recognized such error, inconsistency or omission and
knowingly failed to report it to the Construction Manager and
Architect. If the Contractor performs any construction activity
knowing it involves a recognized error, inconsistency or omis-
sion in the Contract Documents without such notice to the
Construction Manager and Architect, the Contractor shall
assume appropriate responsibility for such performance and
shall bear an appropriate amount of the attributable casts for
correction.
3.2.2 The Contractor shall take field measurements and verify
field conditions and shall carefully compare such field
measurements and conditions and Other information known
to the Contractor with the Contract Documents before com-
mencing activities. Errors, inconsistencies or omissions dis-
covered shall be reported to the Construction Manager and
Architect at once.
3.2.3 The Contractor shall perform the Work in accordance
with the Contract Documents and submittals approved pur-
suant to Paragraph 3.12.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor shall supervise and direct the Work,
using the Contractor's best skill and attention. The Contrac-
tor shall be solely responsible for and have control over
onstruction means, methods, techniques, sequences and pro-
cedures and for coordinating all portions of the Work under
this COnt1.lCt, subject to overall coordination of the Construc-
tion Manager as provided in Subparagraphs 4.6.3 and 4.6.4.
3.3.2 The Contracmr shall be responsible to the Owner for
acts and omissions of the ContractOr's employees, Subcon-
tractors and their agents and employees, and other per-
sons performing portions of the Work under a COntract with
the Contractor.
3.3.3 The Contractor shall nOt be relieved of obligations to
perform the Work in accordance with the Contract Docu-
mentS either by activities or duties of the Construction
Manager or Architect in their administration of the Contract,
or by tests, inspections or approvals required or performed
by persons Other than the Contractor.
3.3.4 The ContractOr shall inspect portions of the Project
related to the Contractor's W'ork in order to determine that
such portions are in proper condition to receive subsequent
Work.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents,
the Contractor shall provide and pay for labor, materials,
equipment, tOols, construction equipment and machinery,
water, heat, utilities, transportation, and other facilities and
services necessary for proper execution and completion of
the Work, whether temporary or permanent and whether or
nOt incorporated or m be incorporated in the Work.
3.4.2 The ContractOr shall enforce strict discipline and good
order among the Contractor's employees and other persons
carrying Out the Contract. The Contractor shall not permit
employment of unfit persons or persons nOt skilled in casks
assigned to them.
3.5 WARRANTY
3.5.1 The Contractor warrants to the Owner, Construction
Manager and Architect that materials and equipment furnished
under the Contract will be of good quality and new unless
otherwise required or permitted by the Contract Documents,
that the Work will be free from defects nOt inherent in the
quality required or permitted, and that the Work will conform
with the requirements of the Contract Documents. Work not
conforming to these requirements, including substitutions not
properly approved and authorized, may be considered defec-
tive. The Contractor's warranty excludes remedy for damage
or defect caused by abuse, modifications not executed by the
Contractor, improper or insufficient maintenance, improper
operation, or normal wear and tear under normal usage. If
required by the Construction Manager or Architect, the Con.
tractor shall furnish satisfactory evidence as to the kind and
quality of materials and equipment.
3.6 TAXES
3.6.1 The ContractOr shall pay sales, consumer, use and similar
taxes for the Work or portions thereof provided by the Con-
tractor which are legally enacted when bids are received or
negOtiations concluded, whether or not vet effective or
merely scheduled to go into effect. .
3.7 PERMITS, FEES AND NOTICES
3.7.1 Unless otherwise provided in the Contract Documents,
the Owner shall secure and pay for the building permit and
the Contractor shall secure and pay for all other permits and
governmental fees, licenses and inspections necessary for
proper execution and completion of the Work which are
customarily secured after execution of the Contract and
which are legally required when bids are received or negotia-
tions concluded.
8 A201/CMa-1992
AlA DOCUMENT A201/CMa . GENER.!\L CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCTION MANAGER-ADv1SER EDIT10N . 1992 EDITION. AIA<!I . (91992 . THE AMERICAN
INSTITUTE OF ARCHITECfS, 1735 NEW YORK AVENUE, NW. WASHINGTON DC. 10006-5191 . WARNING:
Unlicensed photocopyIng violates U.S. copyright laws and will subject the'violator to legal prosecution.
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3.7.2 The Contractor shall comply with and give notices
required by laws. ordinances, rules, regulations and lawful
orders of public authorities bearing on performance of
the Work,
3.7.3 It is not the Contractor's responsibility to ascertain that
the Contract Documents are in accordance with applicable
laws, statutes, ordin~mces, building codes, and rules and regula-
tions. However, if the Contractor observes that portions of
the Contract Documents are at variance therewith, the Con-
tractOr shall promptly notify the Construction Manager, Archi-
tect and Owner in writing, and necessary changes shall be
accomplished by appropriate l\-lodification.
3.7.4 If the Contractor performs W'ork knowing it to be con-
trary to laws, statutes, ordinances, building codes, and rules
and regulations without such notice to the Construction
Manager, Architect and Owner, the Contractor shall assume
full responsibility for such Work and shall bear the attributa.
ble costs.
3.8 ALLOWANCES
3.8.1 The ContractOr shall include in the Contract Sum all
allowances stated in the Contract Documents. Items covered
by allowances shall be supplied for such amounts and by such
persons or entities as the Owner may direct, but the Contrac-
tor shall not be required to employ persons or entities against
which the Contractor makes reasonable objection.
3.8.2 Unless otherwise provided in the Contract Documents:
.1 materials and equipment under an allowance shall be
selected promptly by the Owner to avoid delay in
the Work;
.2 allowances shall cover the cost to the Contractor of
materials and equipment delivered at the site and all
required taxes, less applicable trade discounts;
.3 Contractor's costs for unloading and handling at the
site, labor, installation costs, overhead, profit and
other expenses contemplated for stated allowance
amounts shall be included in the Comract Sum and
nOt in the allowances;
.4 whenever costs are more than or less than allowances,
the Contract Sum shall be adjusted accordingly by
Change Order. The amount of the Change Order shall
reflect (1) the difference between actual costs and the
allowances under Clause 3.8.2.2 and (2) changes in
Contractor's costs under Clause 3.8.2.3.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent superinten-
dent and necessary assistants who shall be in attendance at
(he Project site during performance of the 'X'ork. The super-
intendent shall represent the Contractor, and communications
given to the superintendem shall be as binding as if given
to the Contractor. Important communicltions shall be con-
firmed in writing. Other communications shall be similarly
confirmed on written request in each case.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULE
3.10.1 The Contr:tctor, promptly after being awarded the
Contract, shall prepare and submit for the Owner's and Archi-
tect's information and the Construction Manager's approval
a Comractor's Construction Schedule for the Work. Such
schedule shall not exceed time limits current under the Con-
tract Documents, shall be revised at appropriate intervals as
required by the conditions of the Work and Project, shall be
related to the entire Project construction schedule to the ex-
tent required by the Contract Documents, and shall provide
for expeditious and pr3.cticable execution of the Work.
3.10.2 The Contractor shall cooperate with the Construction
Manager in scheduling and performing the ContractOr's Work
to avoid conflict, delay in or interference with the Work of
other Contractors or the construction or operations of the
Owner's own forces.
3.10.3 The Contractor shall prepare and keep current, for the
Construction Manager's and Architect's approval, a schedule
of submittals which is coordinated with the Contf3ctor's Con-
struction Schedule and aHows the Construction Manager and
Architect reasonable time to review submittals.
3.10.4 The Contractor shall conform to the most recent
schedules.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
3.11.1 The ContractOr shall maintain at the site for the Owner
one record copy of the Drawings, Specific:ttions, addenda,
Change Orders and other Modifications, in good order and
marked currently to record changes and selections made
during consuuction, and in addition approved Shop Draw.
ings, Product Data, Samples and similar required submittals.
These shall be available to the Construction Manager and
Architect and shall be delivered to the Construction Manager
for submittal to the Owner upon completion of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and
other data specially prepared for the Wbrk by the Contractor
or a Subcontractor, Sub-subcontractor, manufacturer, supplier
or distributOr to illustrate some portion of the Work.
3.12.2 Product Data are illustrations, standard schedules, per.
formance charts, instructions, brochures, diagrams and other
information furnished by the Contractor to illustrate materials
or equipment for some portion of the Work.
3.12.3 Samples are physical examples which illustrate mate-
rials, equipment or workmanship and establish standards by
which the Wbrk will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar sub.
mittals are not Contract Documents. The purpose of their sub.
mitt3.1 is to demonstrate for those portions of the Work for
which submitt3.ls are required the way the ContractOr pro.
poses to conform to the information given and the design con.
cept expressed in the Contr3.ct Documents. Review by the
Architect is subject to the limitations of Subparagraph 4.6.12.
3.12.5 The Contractor shaH review, approve and submit to
the Construction Manager, in accordance with the schedule
and sequence approved by the Construction Manager, Shop
Drawings, Product Data, Samples and similar submittals
required by the Contract Documents, The Contractor shall
cooperate with the Construction Manager in the coordina-
tion of the Contractor's Shop Drawings, Product Data, Samples
and similar submittals with related documents submitted by
other Contractors. Submittals made by the Contractor which
are nOt required by the Contract Documents may be returned
without action.
3.12.6 The Contractor shall perform no portion of the Work
requiring submittal and review of Shop Drawings, Product
Data, Samples or similar submittals until the respective sub-
AlA DOCUMENT A201/CMa . GENERAL CONDiTIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCT10N MANAGER-ADVISER EDiTION . 1992 EDITION. AlA. . @t992 . THE AMERlCAN
INSTITUTE OF ARCHITECTS. L735 NEW YORK AVENUE. NW.. WASHINGTON, D.C. 20006.5292 . WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
A201/CMa-1992 9
mittal has been approved by the Construction Manager and
Architect. Such Work shall be in accordance with approved
submittals.
3.12.7 By approving and submitting Shop Drawings, Product
Data, Samples and similar submittals, the Contracror represents
that the Contracror has determined and verified materials, field
measurements and field construction criteria related theretO,
or will do so, and has checked and coordinated the informa-
tion contained within such submituls with the requirements
of the Work and of the Contract Documents.
3.12.8 The COntracror shall not be relieved of responsibility
for deviations from requirements of the Contract Documents
by the Construction Manager's and Architect's approval of
Shop Drawings, Product Data, Samples or similar subminals
unless the Contracror has specifically informed the Construc-
tion Manager and Architect in writing of such deviation at the
time of submittal and the Construction Manager and Architect
have given written approval ro the specific deviation. The Con-
tractor shall not be relieved of responsibility for errors or
omissions in Shop Drawings, Product Data, Samples or similar
submittals by the Construction Manager's and Architect's
approval thereof.
3.12.9 The Contracror shall direct specific attention, in
writing or on resubmitted Shop Drawings,' Product Data,
Samples or similar submittals, to revisions other than those
requested by the Construction Manager and Architect on pre-
vious submittals.
3.12.10 Informational submittals upon which the Construc-
tion Manager and Architect are not expected to take respon-
sive action may be so identified in the Contract Documents.
3.12.11 When professional certification of performance crite-
ria of materi:lls, systems or equipment is required by the Con-
tract Documents, the Construction Manager and Architect
shall be entitled ro rely upon the accuracy and completeness
of such calculations and certifications.
3.13 USE OF SITE
3.13.1 The Contractor shall confine operations at the site to
areas permitted by law, ordinances, permits and the Contract
Documents and shall not unreasonably encumber the site with
materials or equipment
3.13.2 The Contractor shall coordinate the Contractor's opera-
tions with, and secure the approval of, the Construction
Manager before using any portion of the site.
3.14 CUTTING AND PATCHING
3.14.1 The ContractOr shall be responSible for cutting, fitting
or patching required to complete the Work or to make its parts
fit rogether properly.
3.14.2 The Contractor shall not damage or endanger a por-
tion of the Work or fully or partially completed construction
of the Owner's own forces or of other Contractors by cut-
ting, patching, excava[ing or otherwise altering such construc-
tion. The COntractor shall not cut or O[herwise alter such con-
struction by other Contractors or by the Owner's own forces
except with written consent of the Construction Manager,
Owner and such other Contracwrs; such consent shall not
be unreasonably witl1held. The Contractor shall not unrea-
sonably withhold from the other ContractOrs or the Owner
the Contractor's consent to cuning or otherwise altering
the Work.
3.15 CLEANING UP
3.15.1 The ContractOr shall keep the premises and surround-
ing area free from accumulation of waste materials or rubbish
caused by operations under the Contract. At completion of
the Work the Contractor shall remove from and about the Proj-
ect waste materials, rubbish, the Contractor's tools, construc-
tion equipment, machinery and surplus materials.
3.15.2 If the Contractor fails to clean up as provided in the
Contract Documents, the Construction Manager may do so
with the Owner's approval and the cost thereof shall be
charged to the Contractor.
3.16 ACCESS TO WORK
3.16.1 The ContractOr shall provide the Owner, Construction
Manager and Architect access to the Work in preparation and
progress wherever located.
3.17 ROYALTIES AND PATENTS
3.17.1 The Contractor shall pay all royalties and license fees.
The ContractOr shall defend suits or claims for infringement
of patent rights and shall hold the Owner, Construction
Manager and Architect harmless from loss on account thereof,
but shall not be responsible for such defense or loss when
a particular design, process or product of a particular manufac-
turer or manufacturers is required by the Contract Documents.
However, if the Contractor has reason to believe that the
required design, process or product is an infringement of a
patent, the Contractor shall be responsible for such loss unless
such information is promptly furnished to the Architect.
3.18 INDEMNIFICATION
3.18.1 To the fullest extent permitted by law, the Contractor
shall indemnify and hold harmless (he Owner, Construction
Manager, Architect, Construction Manager's and Architect's
consultants, and agents and employees of any of them from
and against claims, damages, losses and expenses, including
but not limited to attorneys' fees, arising Out of or resulting
from performance of the Work, provided that such claim,
damage, loss or expense is attributable to bodily injury,
sickness, disease or death, or to injury to or destruction of
tangible property (other than the V;;'ork itself) including loss
of use resulting therefrom, but only ro the extent caused in
whole or in part by negligent acts or ornissi9ns of the
Contractor, a Subcontractor, anyone directly or indirectly
employed by them or anyone for whose acts they may be
liable, regardless of whet~er or not such claim, damage, loss
or expense is caused in parr by a party indemnified hereunder.
Such obligation shall nO{ be construed CO negate, abridge or
reduce other rights or obligations of indemnity which would
otherwise exist as to a parry or person described in this Para-
graph 3.18.
3.18.2 In claims against any person or emity indemnified
under this Paragraph 3.18 by an employee of the Contractor,
a SubcontractOr, anyone directly or indirectly employed by
them or anyone for whose acts they may be liable, the indem-
nification obligation under this Paragraph 3.18 shall not be
limited by a limitation on amount or type of damages, com-
pensation or benefits payable by or for the Contractor or a
Subcontractor under workers compensation acts, disability
benefit acts or other employee benefit aCts.
3.18.3 The obligations of the Contractor under this Para-
graph 3.18 shall not extend to the liability of the Construc-
[ion Manager, Architect, their consultants, and agems and
10 A201/CMa-1992
AlA DOCUMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCT10N MANAGER.ADVISER EDITION. 1992 EDITION. AIA<!> . @1992 . THE AMERl(AJ~
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, NW. WASH1NGTON D,C 20006.579'"> . WARNING:
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employees of any of them arising Qut of (1) the preparation
or approval of maps, drawings, opinions, reports, surveys,
Change Orders, designs or specifications, or (2) the giving of
or the failure to give directions or instructions by the Con-
struction Manager, Architect, their consult:1nts, and agents and
employees of any of them provided such giving or failure to
give is the primary cause of the injury or damage.
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ARTICLE 4
ADMINISTRATION OF THE CONTRACT
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4.1 ARCHITECT
4.1.1 The Architect is the person lawfully licensed to prac-
tice architecture or an entity lawfully practicing architecture
identified as such in the Agreement and is referred to through-
out the Contnct Documents as if singubr in number. The term
"Architect" means the Architect or the Architect's authorized
representative.
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4.2 CONSTRUCTION MANAGER
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4.2.1 The Construction Manager is the person or entity iden.
tified as such in the Agreement and is referred [Q throughout
the Contract Documents as if singular in number. The term
"Construction Manager" means the Construction Manager or
the Construction rvlanager's authorized representative.
4.3 Duties, responsibilities and limitations of authority of the
Construction Manager and Architect as set forth in the Con.-
t[3.ct Documents shall not be restricted, modified or extended
without written consent of the Owner, Construction Manager,
Architect and Contractor. Consent shall not be unreason-
ably withheld.
4.4 In case of termination of employment of the Construc-
tion Manager or Architect, the Owner shall appoint a construc-
tion manager or architect against whom the Contractor makes
no reasonable objection and whose St3tus under the Contract
Documents shall be that of the former construction manager
or architect. respectively.
4.5 Disputes arising under Paragraphs 4.3 and 4.4 shall be.sub-
ject to arbitration.
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4.6 ADMINISTRATION OF THE CONTRACT
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4.6.1 The Construction Manager and Architect will provide
administration of the Contract as described in the Comract
Documents. and will be the Owner's representatives (1) dur~
ing construotion. (2) uncil final payment is due and (3) with
the Owner's concurrence, from time [Q time during the cor-
rection period described in Paragraph 12.2. The Construction
Manager and Architect will advise and consult with the Owner
and will have authority to act on behalf of the Owner only
to the extent provided in the Contract Documents, unless
otherwise modified by written instrument in accordance with
other provisions of the Contract.
4.6.2 The Construction Manager will determine in general
that the Work is being performed in accordance with the reo
quirements of the Contract Documents, will keep the Owner
informed of [he progress of the Work, and will endeavor to
guard the Owner against defects and deficiencies in the Work.
4.6.3 The Constru([ion Manager will provide for coordina-
tion of the activities of other Contractors and of the Owner's
own forces with the Work of the Contractor, who shall coop~
erate with them. The Contractor shall participate with other
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Contractors and the Construction Manager and Owner in
reviewing their construction schedules when directed to do
so. The Contractor shall make any revisions to the construc-
tion schedule deemed necessary after a joint review and
murual agreement. The construction schedules shall constitute
the schedules to be used by the ContractOr, orher Contrac-
tors, the Construction Manager and the Owner until subse-
quently revised
4.6.4 The Construction Manager will schedule and coordinate
the activities of the Contractors in accordance with the latest
approved Project construction schedule.
4.6.5 The Architect will visit the site at intervals appropriate
to the stage of construction to become generally familiar with
the progress and quality of the completed Work and to deter.
mine in general if the Work is being performed in a manner
indicating that the Work, when completed, will be in accor-
dance with the Contract Documents. However, the Architect
will not be required to make exhaustive or continuous on~
site inspectiOns to check qu:::t1ity or quantity of the Work. On
the basis of on-site observations as an architect, the Architect
w.ill keep the Owner informed of progress of the Work, and
will endeavor to guard the Owner against defects and defi-
ciencies in the Work.
4.6.6 The Construction Manager, except to the extent re-
quired by SubparJgraph 4.6.4, and Architect will nor have
comrol over or clurge of and will nor be responsible for con-
struction means, methods, techniques, sequences or pro-
cedures, or for sJfety precautions and programs in connec-
tion with the Work, since these are solely the Contractor's
responsibility as provided in Paragraph 3.3, and neither will
be responsible for the Contractor's failure to carry out the
Work in accordance with the Contract Documents. Neither
rhe Construction rvlanager nor the Architect will have con-
trol over or charge of or be responsible for acts or omis-
Sions of the Contractor, Subcontractors, or their agents or
employees, or of any other persons performing portions of
the Work.
4.6,7 Communications Facilitating Contract Administra-
tion. Except as otherwise provided in the Contract Docu-
ments or when direct communications have been specially
3.uthorized, the Owner and Contractor shall communicate
through the (;onstruction "-'tanager, and shall contemporane-
ously provide the same communications to the Architect.
Communicltions by and with the Architect's consutt3nts shall
be through the Architect. Communications by and with Sub-
contractors and materiJJ suppliers shall be through the Con.
tractor. Communications by Jnd with other Contractors shall
be through the Construction Manager and shall be contem-
poraneously provided to the Architect.
4.6.8 The Construction Manager will review and certify all
Applications for Payment by the Contractor, including final
payment. The Construction Manager will assemble each of
the Contractor's Applications for Payment with similar Appli-
cations from other Contractors into a Project Application and
Project Certificate for Paymem. After reviewing and certify-
ing the amounts due the ContractOrs, the Construction
i\lanager will submit the Project Application and Project Cer-
tificate for Payment, along with the applicable Contractors.
Applications and CertificHes for Payment, to the Architect.
4.6.9 Based on the Architect's observations and evaluations
of Contractors' Applications for Payment, and the certifica-
cions of the Construction i\(Jnager, the Architect will review
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AlA DOCUMENT A201/CMa . GENER.">.L CONDITIONS OF THE CONTRACT FOR CONSTRl'(.ilQN
CONSTRCLTION MANAGER-ADVISER EDITION . 1992 EDITION . AIA<!I . @1992 . THE A~IERICAN
INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVENUE, N.W, , '-"'i\SHINGTON, DC. 20006-'5.192. WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
A201/CMa-1992 11
and certify the amounts due the Contractors and will issue
a Project Certificate for Payment.
4.6.10 The Architect will have authority ro reject Work which
does not conform to the Contract Documents, and to require
additional inspection or testing, in accordance with Subpara-
graphs 13.5.2 and 13.5.3, whether or not such Work is fabri-
cated, installed or completed, bur will take such action only
after notifying the Construction Manager. Subject to review
by the Architect, the Construction Manager will have the
authority to reject Work which does not conform to the Con-
tract Documents. Whenever the Construction Manager con-
siders it necessary or advisable for implementation of the
intent of the Contract Documents, the Construction Manager
will have authority to require additional inspection or testing
of the Work in accordance with Subparagraphs 13.5.2 and
13.5.3, whether or hot such Work is fabriGlted, installed or
completed. The foregoing authority of the Construction
Manager will be subject to the provisions of Subparagraphs
4.6.18 through 4.6.20 inclusive, with respect to interpretations
and decisions of the Architect. However, neither the Architect's
nor the Construction Manager's authority to act under this
Subparagraph 4.6.10 nor a decision made by either of them
in good faith either to exercise or not to exercise such author-
ity shall give rise to a duty or responsibility of the Architect
or the ConstruCtion Manager to the Contractor, Subcontrac-
tors, material and equipment suppliers, their agents or
employees, or other persons performing any of the Work,
4.6.11 The Construction Manager will receive from the Con-
tractor and review and approve all Shop Drawings, Product
Data and Samples, coordinate them with information received
from other Contractors, and transmit to the Architect those
recommended for approval. The Construction Manager's
actions will be taken with such reasonable promptness as to
cause no delay in the Work of the ConrractOr or in the activi-
ties of other Contractors, the Owner, or the Architect.
4.6.12 The Architect will review and approve or take other
appropriate action upon the Contractor's submittals such as
Shop Drawings. Product Data and Samples, bur only for the
limited purpose of checking for conformance with informa-
tion given and the design concept expressed in the Contract
Documents. The Architect's action will be taken with such
reasonable promptness as to cause no delay in the Work of
the Contractor or in the activities of the other Contractors,
the Owner, or the Construction Manager, while allowing suf.
fidem time in the Architect's professional judgment to permit
adequate revievv.. Review of such submittals is not conducted
for the purpose of determining the accuracy and completeness
of other details such as dimensions and quantities, or for
substantiating instructions for installation or performance of
equipment or systems, all of which remain the responsibility
of the Contracwr as required by the Contract Documents. The
Architect's review of the Contractor's submittals shall nor
relieve the Contractor of the obligations under Paragraphs 3.3,
3.5 and 3.12. The Architect's review shall not constitute
approval of safety precautions or, unless otherwise specifically
stated by the Architect, of any construction means, methods,
techniques, sequences or procedures. The ArchiteC['s approval
of a specific item shall not indicate approval of an assembly
of which the item is ;1 component.
4.6.13 The Construction Manager will prepare Change Orders
and Construction Change Directives.
4.6.14 Following consultJtion with the Construction Manager,
the Architect will take appropriate action on Change Orders
or Construction Change Directives in accordance with Arti-
de 7 and will have authority to order minor changes in the
Work as provided in Paragraph 7.4.
4.6.15 The Construction Manager will maintain at the site for
the Owner one record copy of aU Contracts, Drawings,
Specifications, addenda, Change Orders and other Modifi.
cations, in good order and marked currently to record all
changes and selections made during construction, and in
addition approved Shop Drawings, Product Data, Samples and
similar required submittals. These will be available to the
Architect and the Contractor, and wi! be delivered to the
Owner upon completion of the Project.
4.6.16 The Construction Manager will assist the Architect
in conducting inspections to determine the dates of Sub-
stantial Completion and final completion, and will receive and
forward to the Architect written warranties and related
documents required by the Contract and assembled by the
ContractOr. The Construction Manager will forward to the
Architect a final Project Application and Project Certificate
for Payment upon compliance with the requirements of the
Contract Documents.
4.6.17 If the Owner and Architect agree, the Architect will
provide one or more project representatives to assist in car-
rying out the Architect's responsibilities at the site. The duties,
responsibilities and limitations of authority of such project
representatives shall be as set forth in an exhibit to be incor-
porJted in the Contract Documents.
4.6.18 The Architect will interpret and decide matterS con~
cerning performance under and requirements of the Contract
Documents on written request of the Construction Man-
ager, Owner or ContractOr. The Architect's response to such
requests will be made with reasonable promptness and within
any time limits agreed upon. If no agreement is made con-
cerning the time within which interpretations required of the
Architect shall be furnished in compliance with this Paragraph
4.6, then delay shall not be recognized on account of failure
by the Architect to furnish such interpretations until 15 days
after written request is made for them.
4.6.19 Interpretations and decisions of the Architect will be
consistent with the intent of and reasonably inferable from
the Contract Documents and will be in writing or in the form
of drawings. When making such interpretations and decisions,
the Architect will endeavor to secure faithful performance by
both Owner and Contractor, will nor show partiality to either
and wi!! not be liable for results of interpretations or deci.
sions so rendered in good faith.
4.6.20 The Architect's decisions on matters relating to aes-
thetiC effect will be final if consistent with the intent expressed
in the Contract Documents.
4.7 CLAIMS AND DISPUTES
4.7.1 Definition. A Claim is a demand or assertion by one
of the parties seeking, as a matter of right, adjustment or inter-
pretation of Contract terms, payment of money, extension of
time or other relief with respect to the terms of the Contract.
The term "Claim" also includes other disputes and maners
in question between the Owner and Contractor arising out
of or relating to the Contract. Claims must be made by writ-
(en notice. The responsibility to substantiate Claims shall rest
with the party making the Claim.
4.7.2 Decision of Architect. Claims, including those alleg-
ing an error or omission by the Construction Manager or
Architect, shall be referred initially to the Architect for aCtion
12 A201/CMa-1992
AlA DOCUMENT A201/CMa . GENER.4.L CONDIT]ONS OF THE CONTRACT FOR CONSTRl1CT]ON
CONSTRUCTION MANAGER-ADVISER EDlTlON . 1992 ED]TION . AIA@ . @1992 . THE AMER]CAN
INSTITLTE OF ARCHITECTS, ]735 NEW YORK AVENUE. N.w., WASHINGTON. DC 20006.5292. WARNING:
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as provided in Paragraph 4.8. A decision by the Architect, as
provided in Subparagraph 4.8.4, shall be required as a condi-
tion precedent to arbitrJtion or litigation of a Claim between
the ContrJctor and Owner as to aU such matters arising prior
to the date final payment is due, regardless of (1) whether such
matters relate to execution and progress of the Work or (2)
the extent to which the 'Work has been completed. The ded.
sian by the Architect in response to a Claim shall not be a
condition precedent to arbitration or litigation in the event
(1) the position of Architect is vacant, (2) the Architect has nor
received evidence or has failed to render a decision within
agreed time limits, (3) the Architect has failed to take action
required under Subparagraph 4,8.4 within 30 days after the
Claim is made, (4) 45 days have passed after the Claim has
been referred [Q the Architect or (5) the Claim relates to a
mechanic's lien.
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4.7.3 Time Limits on Claims. Claims by either party must
be made within 21 days after occurrence of the event giving
rise to such Claim or within 21 days after the claimant first
recognizes the condition giving rise to the Claim, whichever
is later. Cbims must be made by written notice. An additional
Claim made after the initial Claim has been implemented by
Change Order will not be considered unless submitted in a
timely manner.
4.7.4 Continuing Contract Performance. Pending final res-
olution of a Claim including arbitration, unless otherwise
agreed in writing the Contractor shall proceed diligently
with performance of the Contract and the Owner shall
continue to make payments in accordance with the Contract
Documents.
4.7.5 Waiver of Claims: Final Payment. The making of final
payment shall constitute a waiver of Claims by the Owner
except those arising from:
.1 liens, Claims, security interests or encumbrances aris.
ing Out of the Contract and unsettled;
.2 failure of the W'ork to comply with the requirements
of the Contract Documents; or
.3 terms of special warranties required by the Contract
Documents.
4.7.6 Claims for Concealed or Unknown Conditions. If
conditions are encountered at the site which are (1) subsur-
face or otherwise concealed physical conditions which dif-
fer materially from those indicated in the Contract Documents
or (2) unknown physical conditions of an unusual nature,
which differ materially from those ordinarily found to exist
and generally recognized as inherent in construction activities
of the chancter provided for in the Contract Documents, then
notice by the observing party shall be given to the other party
promptly before conditions are disturbed and in no event later
than 21 days after first observance of the conditions. The
Architect will promptly investigate such conditions and, if they
differ materially and cause an increase or decrease in the Con-
tractor's cost of, or time required for, performance of any parr
of the \Xbrk, will recommend an equitable adjustment in the
Contnct Sum or Contract Time, or both. If the Architect deter-
mines that the conditions at the site are not materially dif.
ferent from those indicated in the Contract Documents and
that no change in the terms of the Contract is justified, the
Architect shall so notify the Owner and Contractor in writing,
stating the reasons. Claims by either party in opposition to
such determination must be made within 21 days after the
Architect has given notice of the decision. If the Owner and
Contractor cannOt agree on an adjustment in the Contract Sum
or Contract Time, the adjustment shall be referred to the Archi-
tect for initial determination, subject to further proceedings
pursuant to Paragraph 4.8.
4.7.7 Claims for Additional Cost. If the Contractor wishes
to mJ.ke Claim for an increase in the Contract Sum, wriuen
notice as provided herein shaH be given before proceeding
[Q execute the Work. Prior notice is not required for Claims
relating to an emergency endangering life or property arising
under P:uagraph 10.3. If the Contractor believes additional
cOSt is involved for reasons including but not limited to
(I) a written interpretation from the Architect, (2) an order by
the Owner [Q stop the Work where the Contractor was not
at fault, (3) a written order for a minor change in the Work
issued by [he Architect, (4) failure of payment by the Owner,
(5) termination of the Contract by the Owner, (6) Owner's
suspension or (7) other reasonable grounds, Claim shall be
filed in accordance with the procedure established herein.
4.7,8 Claims for Additional Time.
4.7.8.1 If the Contractor wishes to make Claim for an increase
in the Contract Time, written nOtice as provided herein shall
be given. The Contractor's Claim shall include an estimate
of cost and of probable effect of delay on progress of
the 'X'ork. In the case of a continuing de13y only one Claim
is necessary.
4.7.8.2 If adverse weather conditions are the basis for a Claim
for additional time, such Claim shall be documented by data
substantiating that weather conditions were abnormal for [he
period of time and could not have been reasonably antici-
pated, and that weather conditions had an adverse effect on
the scheduled construction.
4.7.9 Injury or Damage to Person or Property. If either
party to the Contract suffers injury or damage to person or
property because of an act or omission of the other party,
of any of the other party's employees or agents, or of others
for whose acts such party is legally liable, written notice of
such injury or damage, whether or not insured, shall be given
to the Other party within a reasonable time not exceeding 21
days after first observance. The notice shall provide sufficiem
detail to enable the other pany to investigate the maner. If
a Claim for additional cost or time related to this Claim is to
be asserted, it shall be filed as provided in Subparagraphs 4.7.7.
or 4,7.8.
4.8 RESOLUTION OF CLAIMS AND DISPUTES
4.8.1 The Architect will review Claims and take one or more
of the following preliminary actions within ten days of receipt
of a Claim: (1) request additional supporting data from the
claimant, (2) submit a schedule to the parties indicating when
the Architect expects to take action, (3) reject the Claim in
whole or in part, stating reasons for rejection, (4) recommend
approval of the Claim by the Other party or (5) suggest a com-
promise. The Architect may also, but is not obligated to, notify
the surety, if any, of the nature and amount of the Claim.
4.8.2 If a Claim has been resolved, the Architect will prepare
or obtain appropriate documentation.
4.8.3 If a Claim has nOt been resolved, the party making the
Claim sh31l, within ten days after the Archirect's preliminary
response, take one or more of the following actions: (1) sub.
mit additional supporting data requested by the Architect,
(2) modify the initial Claim or (3) notify the Architect that the
initial Claim stands.
AlA DOCUMENT A201/CMa . GENERAL CONDrTJONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCTION MANAGER-ADVISER EDITION. 1992 EDlTION . AIA~ . @t992 . THE AMERICAN
INSTITUTE OF ARCHtTECTS, 1735 NEW YORK AVENUE, NW. WASHINGTON, D.C. 20006-5292 . WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
A201/CMa-1992 13
4.8.4 If a Claim has nOt been resolved after consideration of
the foregoing and of further evidence presented by the par-
ties or requested by the Architect, the Architect will notify
the parties in writing that the Architect's decision will be made
within seven days, which decision shaH be final and binding
on the parties but subject to arbitration, Upon expiration of
such time period, the Architect will render to the panies the
Architect's written decision relative to the Claim, including
any change in the Contract Sum or Contract Time or bOth.
If there is a surety and there appears to be a possibility of a
Contractor's default, the Architect may, but is nOt obligated
to, notify the surety ;md request the surety's assistance in
resolving the controversy.
4.9 ARBITRATION
4.9.1 Controversies and Claims Subject to Arbitration.
Any controversy or Claim arising out of or related to the Con-
tract, or the breach thereof, shall be settled by arbitration in
accordance with the Construction Industry Arbitration Rules
of the American Arbitration Association, and judgment upon
the award rendered by the arbitrator or arbitrators may be
entered in any coun having jurisdiction [hereof, except con~
troversies or Claims relating to aesthetic effect and except
those waived as provided for in Subparagraph 4.7.5. Such con.
troversies or Claims upon which the Architect has given notice
and rendered a decision as prOvided in Subparagraph 4.8,4
shall be subject to arbitration upon written demand of either
party. Arbitration may be commenced when 45 days have
passed after a Claim has been referred to the Architect as pro-
vided in Paragraph 4.7 and no decision has been rendered
4.9.2 Rules and Notices for Arbitration. Claims between
the Owner and Contractor nOt resolved under Paragraph 4.8
shall, if subject to arbHration under Subparagraph 4.9.1. be
decided by arbitration in accordance with the Construction
Industry Arbitration Rules of the American Arbitration Associa-
tion curremly in effect, unless the parties mutually agree Other-
wise. Notice of demand for arbitration shall be filed in writing
with the other pany to the Agreement between the Owner
and Contractor al1li with the American Arbitration Associa-
cion, and copies shaH be filed with the Construction Manager
and Architecr.
4.9.3 Contract Performance During Arbitration. During
arbitration proceedings, the Owner and Contractor shall com-
ply with Subparagraph 4.7.4.
4.9.4 When Arbitration May Be Demanded. Demand for
arbitration of any Claim may not be made until the earlier of
(1) the date on which the Architect has rendered a final writ.
ten decision on the Claim, (2) the tenth day after the parties
have presented evidence to the Architect or have been given
reasonable opportunity to do so, if the Architect has not
rendered a final written decision by that date, or (3) any of
[he five events described in Subparagraph 4,7.2.
4.9.4.1 When a written decision of the Architect states that
(1) the decision is final but subject to J.rbiuation and (2) a
demand for arbitration of a Claim covered bv such decision
must be made within ,,0 days 3frer the date on 'which the party
making the denund receives the final written decision, then
failure [0 demand arbitration within said 50 days' period shall
result in the Architect's decision becoming final and binding
upon the Owner and Contractor. If rhe Architect renders a
decision after arbitration proceedings have been initiated, such
decision may be entered JS evidence, but shall not supersede
arbitration proceedings unless the decision is acceptable to
all parties concerned.
4.9.4.2 A demand for arbitration shall be made within the
time limits specified in Subparagraphs 4.9.1 and 4.9.4 and
Clause 4.9.4.1 as applicable, and in other cases within a
reasonable time after the Claim has arisen, and in no event
shall it be made after the date when institution of legal or
equitable proceedings based on such Claim would be barred
by the applicable statute of limitations as determined pursuant
to Paragraph 137.
4.9.5 Limitation on Consolidation or Joinder. No arbitra-
tion arising our of or relating to the Contract Documents shall
include, by consolidation or joinder or in any other manner,
the Construction Manager, the Architect, or the Construction
Manager's or Architect's employees or consultants, except by
written consent containing specific reference to the Agree-
ment and signed by the Construction Manager, Architect,
Owner, Contractor and any other person or entity sought
to be joined. No arbitration shall include, by consolidation
or joinder or in any ocher manner, parties other than the
Owner, Contractor, other Contractors as described in Article
6 and other persons substantially involved in a common
question of fact or law whose presence is required if com.
plere relief is to be accorded in arbitration, No persons or
entities other than the Owner, Contracwr or other Contrac-
tors as defined in Subparagraph 3,1.2 shall be included as an
original third party or additional third party to an arbitration
whose interest or responsibility is insubstantial. Consent to
arbitration involving an additional person or entity shall nOt
constitute consent to arbitration of a dispute not described
therein or with a person or entity not named or described
therein. The foregoing agreement to arbitrate and other
agreements to arbitrate with an additional person or entity
duly consented to by panies to the Agreement shall be
specifically enforceable under applicable law in any court hav-
ing jurisdiction thereof.
4.9.6 Claims and Timely Assertion of Claims. A party who
files a notice of demand for arbitration must assert in the
demand all Claims then known to that parry on which arbitra-
tion is permitted to be demanded, When a parry fails to
include a Claim through oversight, inadvertence or excusable
neglect, or when a Claim has matured or been acquired subse-
quently, the arbitrator or arbitrators may permit amendment.
4.9.7 Judgment on Final Award. The award rendered by
the arbitrator or arbitrators shaH be final, and judgment may
be entered upon it in accordance with applicable law in any
coun having jurisdiction thereof.
ARTICLE 5
SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct
contract with the COntr:1CtOr to perform a portion of the Work
at the sire. The term "SubcontractOr" is referred to throughout
the Contract Documents as if singular in number and means
a Subcontractor or an authorized represemative of the Sub-
contraCtor. The term "Subcontractor" does not include other
ContractOrs or subcomracrors of other Contractors.
5.1.2 A Sub-subcontractor is a person or entitv who has a
direct or indirect contract with a Subcontractor to perform
a portion of the Work at the site. The [erm "Sub-subcontrac-
tor" is referred to throughout the Contract Documents as jf
singular in number and me:ms a Sub-subcomractor or an
authorized representative of the Sub-subcontractor.
14 A201/CMa-1992
AlA DOCUMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRliCTION
CONSTRUCT10N MANAGER-ADVISER EDITION. 1902 EDITION. AIA<!> . @1992 . THE Ai\lERlCAN
I~STITUTE OF ARCHITECTS, j"'j'S NE\X! YORK AVENL'E, N,\'!:'" \\'f\SHING1DN, D.G. 20006.')292 . WARNING:
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5.2
AWARD OF SUBCONTRACTS AND OTHER
CONTRACTS FOR PORTIONS OF THE WORK
5.2.1 Unless otherwise stated in the Comract Documents or
the bidding requirements, the Comr:1cror, as soon as prac-
ticable after award of the Contract, shall furnish in writing
[Q the Construction Manager for review by the Owner, Con-
struction Manager and Architect the names of persons or
entities (including those who are to furnish materials or equip-
ment fabricated to J special design) proposed for each prin-
cipal portion of the Work. The Construction Manager will
promptly reply to the ContractOr in writing stating whether
or not the Owner, Construction Manager or Architect, after
due investigation, hJS reasonable objection [0 any such pro-
posed person or entity. Failure of the Construction Manager
to reply promptly shall constitute notice of no reasonable
objection.
5.2.2 The Contractor shall not contract with a proposed per-
son or entity to whom the Owner, Construction Manager or
Architect has made reasonable and timely objection. The Con-
tractor shall noc be required to contract with anyone to whom
the Contractor has made reasonable objection
5.2.3 If the Owner, Construction Manager or Architect has
reasonable objection to a person or entity proposed by the
Contractor, the Contractor shall propose another to whom
the Owner, Construction Manager or Architect has no rea~
sonable objection. The Contract Sum shall be increased or
decreased by the difference in cost occasioned by such change
and an appropriate Change Order shall be issued. However,
no increase in the Contract Sum shall be allowed for such
change unless the Contractor has acted promptly and respon-
sively in submitting names as required
5.2.4 The Contractor shall not change a Subcontractor,
person or entity previously selected if the Owner, Construc.
tion Manager or Architect makes reasonabte objection to
such change.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 By appropri.tte agreement, written where legally
required for validity, the Contractor shall require each Sub-
contractor, to the extent of the Work to be performed by the
Subcontractor, to be bound to the Contractor by terms of the
Contract Documents, and to assume toward the Contractor
all the obligations and responsibilities which the Contractor,
by these Documents, assumes toward the Owner, Construc~
tion J\lanager and Architect. Each subcontract agreement shall
preserve and procect the rights of the Owner, Construction
Man:.lger and Architect under the Contract Documents with
respect to the Work to be performed by the Subconrractor
so that subcontracting thereof will not prejudice such rights,
and shall allow to the Subcontractor, unless specifically pro-
vided Otherwise in the subcontract agreement, the benefit
of all rights, remedies and redress against the Contractor [hat
the Contractor, by the Contract Documents, h:.ls against the
Owner. Where appropriate, the ContractOr shall require each
Subcontractor to enter into similar agreements with Sub-sub-
contracrors. The Contractor shall make available to each pro~
posed Subcontractor, prior to the execution of the subcon-
tract agreement, copies of the Contract Documents to which
the Subcontractor will be bound, and, upon written request
of the Subcontracror, identify to the Subcontractor terms and
conditions of the proposed subcontract agreement which
may be at variance with the Contract Documents. Subcon-
tracrors shall simil:1rly make copies of applicable portions
of such documenrs available to their respective proposed
Sub-subcontr:.lctors.
5,4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1 E:.lch subcontract agreement for a portion of the Work
is assigned by the Contractor to the Owner provided that:
.1 assignment is effective only after termination of the
Contr;J.ct by the Owner for cause pursuant to Para-
graph 1"t.1 and only for those subconrfJct :1greements
which the Owner accepts by notifying the Subcon-
tractor in writing; and
.2 assignment is subject to the prior rights of the surety,
if :.my, obligated under bond relating to the Contract.
5.4.2 If the Work has been suspended for more th:1n 30 days,
the Subcontractor's compensation shaH be equit:.lbly adjusted.
ARTICLE 6
CONSTRUCTION BY OWNER OR BY
OTHER CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION WITH
OWN FORCES AND TO AWARD OTHER CONTRACTS
6.1.1 The Otvner reserves the right to perform construction
or operations related to the Project with the Owner's own
forces, which include persons or entities under separate con-
tracts not administered by the Construction Manager. The
Owner further reserves the right to award other contracts in
connection with ocher portions of the Projecc or other con-
struction or operations on the site under Conditions of the
Comract identical or substantially similar to these including
those portions relaced to insurance and waiver of subroga-
tion. If the Contractor claims that delay or additional cost is
involved because of such action by the Owner, the Comrac4
tor shall make such Claim as provided elsewhere in the Con~
tract Documents.
6.1.2 When the Owner performs construction or operations
with the Owner's own forces including persons or emities
under separate contracts not adminiscered by the Construc-
tion Man:lger, the Owner shall provide for coordination of
such forces with the Work of the Contractor, who shall
cooperate with them.
6.1.3 Unless otherwise provided in the Contract Documems,
when the Owner performs construction or oper:ltions related
to the Project with the Owner's own forces, the Owner shall
be deemed to be subject to the same obligations and to have
the same rights which appLy to the Contractor under the Con-
ditions of the Conrract, including, wjchout excluding others,
those srated in [his Arricle 6 and in Articles 3, 10, II and 12.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner's own forces,
Construction Manager and ocher Contractors reasonable op-
portunity for introduction and storage of their materials and
equipment and performance of cheir activities, :.lnd shall con-
nect and coordinate the Contractor's construction and opera.
tions "vith theirs as required by the Contract Documents.
6.2.2 If part of the COntractor's 'Work depends for proper exe-
cution or results upon construction or operations by the
Owner's own forces or other Contractors, the ContraCtor shall,
prior to proceeding with that portion of the Work, promptly
AlA DOCUMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRlXT10N Lv!ANAGER.ADV\SER EDITION. 1092 EDITION . AIA'~ ~ @1092 . THE :\MERIC\N
INSTITUTE OF A[{CHITECTS, 17;$-; NEW YORK AVENUE. N.\'(.." WASHINGTON. D.C. 20006.';2')2. WARNING:
Unlicensed photocopying violates U,S. copyright laws and will subject the violator to legal prosecution.
A201/CMa-1992 15
report to the Construction Manager and Architect apparent
discrepancies or defects in such other construction that would
render it unsuitable for such proper execution and resulrs.
Failure of the ContractOr so to report shall constitute an
acknowledgment that the Owner's own forces or other Con-
tractors' completed or partially completed construction is fit
and proper to receive the Contractor's Work, except as to
defects nOt then reasonably discoverable.
6.2.3 Costs caused by delays or by improperly timed activities
or defective construction shall be borne by the party respon-
sible therefor
6.2.4 The Contractor shaH promptly remedy damage wrong-
fully caused by the Contractor to completed or panially com-
pleted construction or to propeny of the Owner or other
Contractors as provided in Subparagraph 10.2.5.
6.2.5 Claims and other disputes and matters in question
between the Contractor and other ContractOrs shall be sub-
ject to the provisions of Paragraph 4.7 provided the other Con-
tractOrs have reciprocal obligations.
6.2.6 The Owner and other ContractOrs shall have the same
responsibilities for cutting and patching as are described for
the Contractor in Paragraph 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises among the Contractor, other Contrac-
tors and the Owner as to the responsibility under their respec-
tive contracts for maintaining the premises and surrounding
area free from waste materials and rubbish as described in
Paragraph 3.15, the Owner may clean up and allocate the cost
among those responsible as the Construction Manager, in con-
sulration with the Architect, determines to be just.
ARTICLE 7
CHANGES IN THE WORK
7.1 CHANGES
7.1.1 Changes in the Work may be accomplished after execu-
tion of the Contract, and without invalidating the Contract,
by Change Order, Construction Change Directive or order for
a minor change in the Work, subject to the limitations stated
in this Article 7 and elsewhere in the Contract Documents.
.7.1.2 A Change Order shall be based upon agreement among
the Owner, Construction Manager, Architect and Contractor;
a Construction Change Directive requires agreement by the
Owner, Construction Manager and Architect and mayor may
not be agreed to by the Contractor; an order for a minor
change in the Work may be issued by the Architect alone.
7.1.3 Changes in the Work shall be performed under appli-
cable provisions of the Contract Documents, and the Con-
tractor shall proceed promptly, unless otherwise provided in
the Change Order, Construction Change Directive or order
for a minor change in the \Xlork.
7.1.4 If unit prices are stated in the Contract Documents or
subsequently agreed upon, and if quantities originally con-
templated are so changed in a proposed Change Order or Con-
struction Change Directive that application of such unit prices
to quantities of Work proposed will cause substantial inequity
to the Owner or Contractor, the applicable unit prices shall
be equitably adjusted,
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7.2 CHANGE ORDERS
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7.2.1 A Change Order is a written instrument prepared by
the Construction Manager and signed by the Owner, Construc-
tion Manager, Architect and Contractor, stating their agreement
upon all of the following:
.1 a change in the Work;
.2 the amount of the adjustment in the Contract Sum,
if any; and
.3 the extem of the adjustment in the Contract Time,
if any.
7.2.2 Methods used in determining adjustments to the Con-
tract Sum may include those listed in Subparagraph 7.3.3.
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7.3 CONSTRUCTION CHANGE DIRECTIVES
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7.3.1 A Construction Change Directive is a written order
prepared by the Construction Manager and signed by the
Owner, Construction Manager and Architect, directing a
change in the Work and stating a proposed basis for adjust-
ment, if any, in the Contract Sum or Contract Time, or both.
The Owner may by Construction Change Directive, without
invalidating the Contract, order changes in the Work within
the genef31 scope of the Contract consisting of additions, dele-
tions or Other revisions, the Contract Sum and Contract Time
being adjusted accordingly.
7.3.2 A Construction Change Directive shall be used in the
absence of total agreement on the terms of a Change Order.
7.3.3 If the Construction Change Directive provides for an
adjustment to the Contract Sum, the adjustment shall be based
on one of the following methods:
.1 mutual acceptance of a lump sum properly itemized
and supported by sufficient substantiating data to per+
mit evaluation;
.2 unit prices stated in the Contract Documents or subse-
quently agreed upon;
.3 COSt to be determined in a manner agreed upon by
the panies and a mutually acceptable fixed or per-
cenrage fee; or
.4 as provided in Subparagraph 7.3,6.
7.3.4 Upon receipt of a Construction Change Directive, the
Contractor shall promptly proceed with the change in the
Work involved and advise the Construction Manager and
Architect of the Contractor's agreement or disagreement with
the method, if any, provided in the Construction Change
Directive for determining the proposed adjustment in the Con-
tract Sum or Contract Time.
7.3.5 A Construction Change Directive signed by the Con-
tractor indicates the agreement of the Contractor therewith,
including adjustment in Contract Sum and Contract Time or
the method for determining them. Such agreement shall be
effective immediately and shall be recorded as a Change Order.
7.3.6 If the Contractor does not respond promptly or dis-
agrees with the method for adjustment in the Contract Sum,
the method and the adjustment shall be determined by the
Construction Manager on the basis of reasonable expenditures
and savings of those performing the Work attributable to the
change, including, in case of an increase in the Contract Sum,
a reasonable allowance for overhead and profit. In such case,
and also under Clause 7.3.3.3-, the Contractor shall keep and
present, in such form as the Construction Manager may
prescribe, an itemized accounting together with appropriate
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AlA DOCUMENT A201/CMa .. GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCTION MANAGER.ADVISER EDITION .. 1992 EDITION" AlA" .. @1992 .. THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE. N.w, W'ASHINGTON. D.C. 20006.5292 .. WARNING:
Unlicensed photocopying violates U.S. copYright laws and will subject the violator to legal prosecution.
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supporting data, Unless otherwise provided in the Cootract
Documents, costs for the purposes of this Subparagraph 7.3,6
shall be limited to the following:
.1 costS of labor, including social security, old age and
unemployment insurance, fringe benefits required by
agreement or custom, and workers compensation
insurance;
.2 costS of materials, supplies and equipment, including
cost of transportation, whether incorporated or
consumed;
.3 rental COSts of machinery and equipment. exclusive
of hand tools, whether rented from the Contractor
or others;
.4 costS of premiums for all bonds and insurance, per-
mit fees, and sales, use or similar taxes re!J.ted to the
Work; and
.5 additional costs of supervision and field office per-
sonnel directly attributable to the change,
7.3.7 Pending final determination of cost to the Owner,
amounts nm in dispute may be included in Applications for
Payment. The amount of credit to be aUowed by the Contrac-
tor to the Owner for a deletion or change which results in
a net decrease in the Contract Sum shall be actual net cost
as confirmed by the Construction Manager. When both addi-
tions and credits covering related Work or substitutions are
involved in a change, the allowance for overhead and profit
shall be figured on the basis of net increase, if ;lOy, with respect
to that change.
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7.3.8 If the Owner and Contractor do nor agree with the
adjustment in Contract Time or the method for determining
it, the adjustment or the method shall be referred to the Con-
struction Manager for determination,
7.3.9 When the Owner and Contractor agree with the deter-
mination made by the Construction Manager concerning the
adjustmems in the Comract Sum and Contract Time, or other-
wise reach agreement upon the adjustments, such agreement
shaH be effective immediately issued through the Construc-
tion Manager and shall be recorded by prepar:ltion and ex.
ecucion of an appropriate Ch:mge Order.
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7.4
MINOR CHANGES IN THE WORK
7.4.1 The Architect will have authority to order minor changes
in the Work not involving adjustment in the Contract Sum
or extension of the Contract Time and not inconsistent with
the intent of the Contract Documents. Such changes shall be
effected by written order issued through the Construction
Manager and shall be binding on the Owner and Contractor.
The Contractor shall carry out such written orders promptly.
ARTICLE 8
TIME
8.1
DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is the period
of time, including authorized adjustmems, aHotted in the Con-
tract Documents for SubstJ.ncial Comple[ion of the Work.
8.1.2 The date of commencement of the ~'ork is the date
eSlablished in the Agreement, The date shall not be postponed
by the failure to act of the Conuactor or of persons or enti-
ties for whom the Contractor is responsible.
8.1.3 The date of Substantial Completion is the date certified
by the Architect in accordance with Paragraph 9,8.
8.1.4 The term "day" as used in the Comract Documents shall
mean calendar day unless otherwise specifically defined.
8.2 PROGRESS AND COMPLETION
8.2.1 Time limits stated in the Contract Documents :Ire of the
essence of the Contract. By executing the Agreement the Con-
tractor confirms th3t the Contract Time is a reasonable period
for performing the Work.
8.2.2 The Contractor shall not knowingly, except by agree-
ment or instruction of the Owner in writing, prematurely
commence operations on the site or elsewhere prior to the
effective date of insurance required by Article 11 to be fur.
nished by the Contractor. The date of commencemem of the
Work shall not be changed by the effective date of such insur-
ance. Unless the date of commencement is established by a
notice to proceed given by the Owner, the Contractor shall
notify the Owner in writing not less than five days or other
agreed period before commencing the Work to permit the
timely filing of mortgages, mechanic's liens and other secu-
rity interests.
8.2.3 The Contractor shall proceed expeditiously with ade-
quate forces and shall achieve Substantial Completion within
the Contract Time.
8,3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Contractor is delayed at any time in progress of
the Work by an act or neglect of the Owner's own forces, Con-
struction Manager, Architect, any of the other Contractors or
an employee of any of them, or by changes ordered in the
Work, or by labor disputes, fire, unusual delay in deliveries,
unavoidable casualties or other causes beyond the Contrac-
tor's control, or by delay authorized by the Owner pending
arbitration, or by other causes which the Architect, based on
the recommendation of the Construction Manager, determines
may justify delay, then the Comract Time shall be extended
by Change Order for such reasonable time as the Architect
may determine.
8.3.2 Claims relating to time shall be made in accordance with
applicable provisions of Paragraph 4.7.
8.3.3 This Paragraph 8.3 does not preclude recovery of
damages for delay by either p:lrty under other provisions of
the Contract Documents.
ARTICLE 9
PAYMENTS AND COMPLETION
9,1 CONTRACT SUM
9.1.1 The Contract Sum is stated in the Agreement and,
including authorized adjustments, is the tOt31 amount payable
by the Owner to the Contractor for performance of the Work
'under the Concract Documents.
9,2 SCHEDULE OF VALUES
9.2.1 Before the firs[ Application for Payment, the Contrac-
tOr sh;111 submit to the Architect. through the Construc-
tion M;mager, a schedule of values allocated to various por-
tions of the Work, prepared in such form and supported by
such d:lt:l to substantiate its accuracy as the Construction
AlA DOCIJMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCTION MANAGER-ADVISER EDITION . 1992 EDITtON . AIAI!I . @1992 . THE M-1ERICAN
INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVENUE, N,W.. WA.':iHINGTON, DC 20006-'5292. WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject tl'1e violator to legal prosecution.
A201/CMa-1992 17
Manager and Architect may require. This schedule, unless
objected to by the Construction Manager or Architect, shaH
be used as a basis for reviewing the Contractor's Applications
for Payment.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 At least fifteen days before rhe date established for each
progress payment, the Contractor shall submit to the Con+
strucrion Manager an itemized Application for Payment for
Work completed in accordance with the schedule of values
Such applicHion shall be notarized, if required, and supported
by such data substantiating the Contractor's right to payment
as the Owner, Construction t\Ianager or Architect may require,
such as copies of requisitions from SubcontractOrs and
material suppliers, and retlecring retainage if provided for
elsewhere in the Contract Documents.
9.3.1.1 Such applications may include requests for payment
on account of changes in the Work >,,'hich have been properly
authorized by Construction Change Directives but not yet
included in Change Orders.
9.3.1.2 Such applications may not include requests for pay-
ment of amounts the Contractor does not intend to pay to
a Subcontractor or material supplier because of a dispute or
other reason.
9.3.2 Unless otherwise provided in the ContrJ([ Documems,
payments shall be made on account of materials and equip-
ment delivered and suitably stored at the site for subsequent
incorporation in the Work. If approved in advance by the
Owner, payment may similarly be made for materials and
equipment suitably stored off the site at a location agreed upon
in writing. Payment for materials and equipment stOred on
or off the site shall be conditioned upon compliance by the
Contractor with procedures satisfactory to the Owner to
establish the Owner's title to such materials and equipment
or otherwise protect the Owner's interest, and shaH include
applicable insurance, storage and transportation to the siteIor
such materials and equipment stored off the si[e.
9.3.3 The Contractor warrants that title to all Work covered
by an ApplicJtion for P3yment ~vill pass to the Owner no later
than the time of payment. The Contractor further warrantS
[ha[ upon submittal of an Application for Payment all Work
for which Certificates for Payment have been previously issued
and payments received from the Owner shall, [Q the best of
the Contractor's .knowledge, information and belief, be free
and clear of liens, claims, security interests or encumbrances
in favor of rhe Contractor, Subcontractors, material sup-
pliers, or other persons or entities making a claim by reason
of having provided labor, materials and equipment relating
to the \'\brk.
9.4 CERTIFICATES FOR PAVMENT
9.4,1 The Construction M~lI1ager will assemble :1 Projecr Appli-
cation for Payment by combining the Contractor's applica-
tions with similar applications for progress payments from
other Contracwrs and, after certifying [he amounts due on
such applications, forward them (0 the Architect within
seven days.
9.4.2 Within seven days after the Architect's receipt of the
Project Applic.nion for Payment, the Construction Manager
and Architect \vill either issue to the Owner a Project Cer-
tificate for Payment. with a copy to tlw Comracror, for such
amount as the Construction M::mager and Architect determine
is properly due. or notify the Contractor and Owner in "".riting
of the Construction Manager's and Architect's reasons for
withholding certification in whole or in part as provided in
SubparJgraph 9,5.1. Such notification will be forwarded to
the Contractor by the Construction Manager.
9.4.3 The issuance of a separate Certificate for Payment or
a Project Certificate for Payment will constitute representa.
tions made separately by the Construction Manager and Archi.
tect to the Owner, based on their individual observations at
the site and the data comprising the Application for Payment
submitted by the Contractor, that the Work has progressed
to the point indicated and that, to the best of the Construc-
tion M;J.n:lger's and Architect's knowledge, inform:uion and
belief, quality of the Work is in accordance with the Contract
Documems, The foregoing representations are subject to an
evaluation of the W"ork for conformance with the Contract
Documents upon Substantial Completion, to results of subse-
quent tests and inspections, to minor deviations from the Con-
tract Documents correctable prior to completion and to
specific qualifications expressed by the Construction Manager
or Architect. The issuance of a separate Certificate for Pay-
ment or a Project Certificate for Payment will further con-
stitute a representation that the Contractor is entitled to
payment in the amount certified. However, the issuance of
a separate Certificate for Payment or a Project Certificate for
Payment will not be 3 representation that the Construction
Manager or Architect has (1) made exhaustive or continuous
on-site inspections to check the quality or quantity of the
Work, (2) reviewed the Contractor's construction means,
methods, techniques, sequences or procedures, (3) reviewed
copies of requisitions received from Subcontractors and
material suppliers and other data requested by the Owner to
substantiate the Contractor's right to payment or (4) made
examination to ascertain how or for what purpose the Con+
tractor has used money previously paid on account of the
Contract Sum.
9.5 OECISIONS TO WITHHOLD CERTIFICATION
9.5.1 The Construction M:lOager or Architect may decide not
to certify payment and may withhold a Certificate for Pay-
ment in whole or in part, to the extent reasonably necessary
to protect the Owner, if in the Construction Manager's or
Architect's opinion the representations to the Owner required
by Subparagraph 9.4.3 cannot be made. If the Construction
Manager or Architect is unable to certify payment in the
amount of the Application, the Construction Manager or
Architect will notify the Contractor and Owner as provided
in Subparagraph 9.4.2. If the Contractor, Construction
Manager and Architect cannot agree on a revised amount, the
Construction Manager and Architect will promptly issue a
Certificate for Payment for the amount for which the
Construction Manager and Architect are able to make such
represemations to the Owner. The Construction Manager or
Architect may also decide not to certify payment or, because
of subsequemly discovered evidence or subsequent obser-
vations. may nullify the whole or a part of a Certificate for
Payment pre\'iously issued, to such extent as may be necessary
in the Construction I'vlanager's or Architect's opinion to pro-
tect the Owner from loss because of:
,1 defective Work not remedied;
.2 third party claims filed or reasonable evidence indi-
cIting probable filing of such claims;
.3 f:l.ilure of the Contractor to make payments properly
to Subcontr:.l.ctors or for bbor, m:.l.teri:.lis or equipment;
.4 reasonable evidence that the Work cannot be com-
pleted for the unpaid balance of the Contract Sum;
18 A201/CMa.1992
AlA DOCUMENT A201/CMa . GENER.....L CONDITIONS OF THE CONTR.-\CT FOR CONSTRUCTiON
CONSTRl!CTION MANAGER-ADVISER EDITION. 1992 EDITION. AlA" . @1')02 . THE A!\.IERICAN
[N~T1Tl'TE OF ARCHITECTS. [7:)5 Nl::\Xi 'i..ORK A\'ENl.E. N\X'" W.....S]-]INGTON. D,C 20006.5292. WARNING:
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.5 damage co the Owner or another contractor;
.6 reasonable evidence that the Work will not be com-
pleted within the Contract Time, and that the unpaid
balance would not be adequate to cover actual or
Hquidated damages for the ancicip:lted delay; or
.7 persistent failure to carry out the \,(:'ork in accordance
with the Comrac[ Documents.
9.5.2 When the above reasons for withholding certification
are removed, certification will be made for amounts previ-
ously withheld.
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9.6 PROGRESS PAYMENTS
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9.6.1 After the Construction Manager and Architect have
issued a Project Certificate for Payment, the Owner shall make
payment in the manner and within the time provided in the
Contract Documents, and shall so nOtify the Construction
Manager and Architect.
9.6.2 The Contractor shall promptly pay each Subcontrac.
tor, upon receipt of payment from the Owner, out of the
amount paid to the Contractor on account of such Subcon-
tractor's portion of the Work, the amount to which said Sub-
contractor is entitled, reflecting percentages actually retained
from payments to the Contractor on account of such Subcon-
tractor's portion of the \X-brk. The Contractor shall, by appro-
priate agreement with each Subcontractor, require each
Subcontractor to make paymems to Sub-subcontractors in
similar manner.
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9.6.3 The Construction Manager will, on request, furnish to
a Subcontractor, if practicable, information regarding percen.
tages of completion or amounts applied for by the Comrac.
tor and action taken thereon by the Owner, Construction
Manager and Architect on account of portions of the Work
done by such Subcontractor.
9.6.4 Neither the Owner, Construction Manager nor Architect.
shall have an obligation to payor to see to the paymem of
money to a Subcontractor except as may otherwise be
required by law.
9.6.5 Payment to material suppliers shall be treated in a
manner similar to that provided in Subparagraphs 9.6.2, 9.6.3
and 96.4
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9.6.6 A Certificate for Payment, a progress payment, or par.
tial or entire use or occupancy of the Project by the Owner
shall not constitute acceptance of ~'ork not in accordance
with the Contract Documents.
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9.7 FAILURE OF PAYMENT
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9.7.1 If, through no faulI of the Contractor, 1) the Construc-
tion Manager and Architect do not issue a Project Certificate
for Payment within fourteen days after the Construction
Manager's receipt of the Contracmr's Application for Payment
or 2) the Owner does not pay the Contractor within seven
days after the date established in the Contract Documents the
amount certified by the Construction J\."tanager and Architect
or awarded by arbitration, then the Contractor may, upon
seven additional days' written notice to the Owner, Construc-
tion Manager and Architect, stop the Work until payment of
the amount owing has been received. The Contract Time shall
be extended appropriately and the Contract Sum shall be
increased by the amount of the Contr3ctor's reasonable COStS
of shut-down, deby and start-up, which shall be accomplished
as provided in Article ;.
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9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress of
the Wbrk when the 'W'ork or designated portion thereof is suf-
ficiently complete in accordance with the Comract
Documents so the Owner can occupy or utilize the Work for
its imended use.
9.8.2 \'('hen the Contractor considers that the Work, or a por-
tion thereof which the Owner agrees to accept separately, is
substamially complete, the Contractor and Construction
Manager shall jointly prepare and submit to the Architect a
comprehensive list of items to be completed or corrected. The
Contractor shall proceed promptly to complete and correct
items on the list. Failure to include an item on such list does
nOt alter the responsibility of the Contractor to complete aU
Work in accordance with the Contract Documents. Upon
receipt of the list, the Architect, assisted by the Construction
Manager, will make an inspection to determine whether the
Work or designated portion thereof is substantially complete.
If the Architect's inspection discloses any item, whether or
not included on the list, which is not in accordance with the
requirements of the Contract Documents, the Contractor shall,
before issuance of the Certificate of Substantial Completion,
complete or correct such item upon notification by the Archi-
tect. The Contractor shall then submit a request for anmher
inspection by the Architect, assisted by the Construction
Manager, to determine Substantial Completion. When the
Work or designated portion thereof is substantially complete,
the Architect will prepare a Certificate of Substantial Comple-
tion which shall establish the date of Substantial Completion,
shall establbh responsibilities of the Owner and Contractor
for security, maintenance, heat, utilities, damage to the Work
and insurance, and shall fix the time within which the Con-
tractor shall finish aU items on the list accompanying the Cer-
tificate. Warranties required by the Contract Documents shall
commence on the date of Substantial Completion of the Work
or designated portion thereof unless otherwise provided in
the Certificate of Substantial Completion. The Certificate of
Substantial Completion shall be submitted to the Owner and
Contractor for their written acceptance of responsibilities
4ssigned to them in such Certificate.
9.8.3 Upon Substantial Completion of the Work or designated
portion thereof and upon application by the Contractor and
certificarion by .he Construction Manager and Architect, the
Owner shall make payment, reflecting adjustment in retainage,
if any, for such Work or portion thereof as provided in the
Contract Documents.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed or par.
tjally completed portion of the Work at any stage when such
portion is designated by separate agreement with the Con-
tractor, provided such occupancy or use is consented to
by the insurer as required under Subparagraph 11.3.11 and
authorized by public authorities having jurisdiction over the
Wbrk. Such partial occupancy or use may commence whether
or not the portion is substantially complete, provided the
Owner and Contracwr have accepted in writing the respon~
sibilities assigned to each of them for payments, retainage if
any, security, maintenance, heat, utUities, damage to the Work
and insurance, and have agreed in writing concerning the
period for correction of the Work and commencement of war-
r:mties required by the Contract Documents. \'V"hen the Con-
tracwr considers a portion substantially complete, the Con-
tractor and Construction Manager shall jointly prepare and
AlA DOCUMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRl:CTION
CONSTRUCTION MANAGER.ADVISER EDITION . 1992 EDITION . AIAill . @1992 . THE AMERICAN
I!'lSTITlITE OF ARCHlTEcrS, 173-; NEW YORK AVENUE, NW.. WASHINGTON, o.c. 20006--;292 . WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
A201/CMa-1992 19
submit a list to the Architect as provided under Subparagraph
9.8.2. Consent of the Contractor to partial occupancy or
use shall not be unreasonably withheld. The stage of the prog-
ress of the Work shall be determined by written agreement
between the Owner and Contractor or, if no agreement is
reached, by decision of the Architect after consultation with
the Construction Manager.
9.9.2 Immediately prior CO such partial occupancy or use, the
Owner, Construction Manager, Contractor and Architect shall
jointly inspect the area to be occupied or portion of the Work
to be used in order to determine and record the condition
of the WorK.
9.9.3 Unless otherwise agreed upon, partial occupancy or use
of a portion or portions of the Work shall nOt constitute accep-
tance of Work nOt complying with the requirements of the
Contract Documents.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Upon completion of the Work, the ContractOr shall for-
ward to the Construction Manager a written notice that the
Work is ready for final inspection and acceptance and shall
also forward to the Construction Manager a final Contractor's
Application for Payment. Upon receipt, the Construction
Manager will forward the nOtice and Application to the Archi-
tect who will promptly make such inspection. When the
Architect, based on the recommendation of the Construction
Manager, finds the Work acceptable under the Contract
Documents and the Contract fully performed, the Construc-
tion Manager and Architect will promptly issue a final Cer-
tificate for Payment stating that to the best of their knowledge,
information and belief, and on the basis of their observations
and inspections, the Work has been completed in accordance
with terms and conditions of the Contract Documents and
that the entire balance found to be due the Contractor and
noted in said final Certificate is due and payable. The Con-
struction Manager's and Architect's final Certificate for Pay-
ment will constitute a further representation that'conditions
listed in Subparagraph 9.10.2 as precedent to the Contractor's
being entitled to final payment have been fulfilled.
9.10.2 Neither final payment nor any remaining retained
percentage shall become due until the Contractor submits
to the Architect through the Construction Manager (1) an affi-
davit that payrolls, bills for materials and equipment, and other
indebtedness connected with the Work for which the Owner
or the Owner's property might be responsible or encumbered
(less amounts withheld by Owner) h:lve been paid or other-
wise satisfied, (2) a certificate evidencing that insurance
required by the Contract Documents to remain in force after
final payment is currently in effect and will not be canceled
or allowed to expire until at least 30 d:lYs' prior written notice
has been given to the Owner, (3) a written statement that the
Contractor knows of no substantial reason that the insurance
will not be renewable to cover the period required by the Con-
tract Documents, (4) consent of surety, if any, to final payment
and (5), if required by the Owner, other data establishing pay-
ment,or satisfaction of obligations, such as receipts, releases
and waivers of liens, cl:1ims, securitv interests or encum-
brances arising out of the Contract, to'the extent and in such
form as may be design::ned by the Owner. If a SubcontractOr
refuses to furnish a release or waiver required by the Owner,
the Contractor may furnish a bond satisfactory to the Owner
to indemnify the Owner against such lien, If such lien remains
unsatisfied after payments :ue made, the Contractor shall
refund to the Owner all money that the Owner may be com-
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pelled to pay in discharging such lien, including all costs and
reasonable attorneys' fees.
9.10.3 If, after Substantial Completion of the Work, final com-
pletion thereof is materially delayed through no fault of the
Contractor or by issuance of Change Orders affecting final
completion, and the Construction Manager and Architect so
confirm, the Owner shall, upon application by the Contrac-
tor and certification by the Construction Manager and Archi-
tect, and without terminating the Contract, make payment of
the balance due for that portion of the Work fully completed
and accepted. If the remaining balance for Work not fully com-
pleted or corrected is less than retainage stipulated in the Con-
tract Documents, and if bonds have been furnished, the writ-
ten consent of surety to payment of the balance due for that
portion of the Work fully completed and accepted shall be
submitted by the Contractor to the Architect through the Con-
struction Manager prior to certification of such payment. Such
payment shall be made under terms and conditions governing
final payment, except that it shall not constitute a waiver of
Claims. The making of final payment shall constitute a waiver
of Claims by the Owner as provided in Subparagraph 4.4.5.
9.10.4 Acceptance of final payment by the Contractor, a Sub-
contractor or material supplier shall constitute a waiver of
claims by that payee except those previously made in writing
and identified by that payee as unsettled at the time of final
Application for Payment, Such waivers shall be in addition
to the waiver described in Subparagraph 4.7.5.
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ARTICLE 10
PROTECTION OF PERSONS AND PROPERTY
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10.1 SAFETY PRECAUTIONS AND PROGRAMS
10.1.1 The Contractor shall be responsible for initiating, main-
taining and supervising all safety precautions and programs
in connection with the performance of the Contract. The Con-
tractor shall submit the Contractor's safety program to the
Construction Manager for review and coordination with the
safety programs of other Contractors.
10.1.2 In the event the Contractor encounters on the site
material reasonably believed to be asbestos or polychlorinated
biphenyl (PCB) which has not been rendered harmless, the
Contractor shall immediately stop W'ork in the area affected
and report the condition to the Owner, Construction Manager
and Architect in writing. The Work in the affected area shall
not thereafter be resumed except by written agreement of the
Owner and Contractor if in fact the material is asbestOs or
polychlorinated biphenyl (PCB) and has not been rendered
harmless. The Work in the affected area shall be resumed in
the absence of asbestos or polychlorinated biphenyl (PCB),
or when it has been rendered harmless, by written agreement
of the Owner and Contractor, or in accordance with final
determination by the Architect on which arbitration h3s not
been deo13.nded, or by arbitration under Article 4.
10.1.3 The Contractor shall not be required pursuant to Arti-
cle 7 to perform without consent any Work relating to asbestos
or polychlorinated biphenyl (PCB).
10.1.4 To the fullest extent permitted by law, the Owner shall
indemnify and hold harmless the ContractOr, Construc-
tion Manager. Architect, their consultants, and agents and
employees of any of them from and against claims, damages,
losses and expenses, including bO[ not limited to ;1[torneys'
fees, arising out of or resulting from performance of the W"ork
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AlA DOCUMENT A201/CMa . GENER:\l CONOITJONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCTION 1\lANAGER-ADVISER EDlT10N . 1992 EDmON . AlA\!> . @1992 . THE AMERICAN
INSTITUTE OF ARCHITECrS, 1735 NEW YORK AVENUE, ~,\X'., WASHINGTON, D,C. 2()o06-5292 . WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
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in the affected area if in face the material is asbestos or poly-
chlorio3.ted biphenyl (PCB) and has not been rendered harm-
less, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to
injury to or destruction of t:wgible property (other than the
Work itself) including loss of use resulting therefrom, but oniy
to the extent caused in whole or in part by negligent Jcts or
omissions of the Owner, anyone directly or indirectly
employed by the Owner or anyone for whose acts the Owner
may be liable, regardless of whether or not such claim,
damage, loss or expense is caused in part by a parry indem-
nified hereunder. Such obligadon shall not be construed to
neg;:ne, abridge or reduce ocher rights or obligations of in-
demnity which would otherwise exist as to a party or person
described in this Subparagr:lph 10.1.4.
10.1.5 If reason:lble precautions will be inadequate to pre-
vent foreseeable bodily injury or death to persons resulting
from a m:lterial or substance encountered on the site by the
Contractor, the Contractor shall, upon recognizing the con-
dition, immediately stop Work in the affected area :lnd report
the condition to the Owner, Construction Manager and Archi-
tect in writing. The Owner, Contractor, Construction Man-
ager and Architect shall then proceed in the same manner
described in Subparagraph 10.1.2.
10.1.6 The Owoer shall be responsible for obtaining the ser-
vices of a licensed laboratory to verify a presence or absence
of the materi:ll or substance reported by the Contractor and,
in the event such material or substance is found to be pre-
sent, to verify that it has been rendered harmless. Unless other-
wise required by the Contract Documents, the Owner shall
furnish in writing to the Contractor, Construction Manager
and Architect the names and qualifications of persons or enti-
ties who are to perform tests verifying the presence or absence
of such material or substance or who :lre to perform the task
of removal or safe containment of such material or substance.
The Contractor, the ConstructiOn Manager and the Architect
will promptly reply to the Owner in writing stating whether
or not any of them has reasonable objection to the persons
or entities proposed by the Owner. If the Contractor, Con-
struction Manager or Architect has an objection to a person
or emity proposed by the Owner, the Owner shall propose
another to whom the Contractor, the Construction Manager
and the Architect have no reasonable objection.
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10.2 SAFETV OF PERSONS AND PROPERTY
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10.2.1 The Contractor shatl take reasonable precautions for
sjfety of, and sh3.1l provide reJ.sonable protection to prevent
damage, injury or loss to:
.1 employees on the \X'ork and other persons who may
'be affected thereby;
.2 the Work and materials :lnd equipment to be incor-
porated therein, whether in storage on or off the
site, under care, custody or control of the Contrac-
tor or the ContractOr's Subcontractors or Sub.
subcontractors;
.3 other property at the site or adjacent thereto, such
as trees, shrubs, bwns, walks, pavemems, roadways,
Structures and utilities noc designated for removal,
reloc:ltjon or replacement in the course of construc-
tion; and
.4 construction or operations by the Owner or other
Contractors
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10.2.2 The Contractor shall give nocices and comply with
applicable laws, ordinances, rules, regulations and lawful
orders of public authorities bearing on safety of persons Or
property or their protection from damage, injury or loss.
10.2.3 The ContractOr shall erect and mJ.incain, as required
by existing conditions and performance of the Contract,
reasonable safeguards for safety and protection, including
posting danger signs and other warnings Jgainst hazards, pro.
mulgating sJfety regulations and notifying owners and users
of adjacent sites :lnd utilities.
10.2.4 When use or stOrage of explosives or other haz:lfdous
materials or equipment or unusual methods are necessary for
execution of the Work, the ContrJ.ctOr shall exercise utmost
care and carryon such activities under supervision of prop-
erly qualified personnel.
10.2.5 The Contractor shall promptly remedy damage and
loss (other th:ln damage or loss insured under property insur-
ance required by the Contract Documents) to property
referred to in Clauses 10.2.1.2, 10.2.1.3 and 10.2.1.4 caused
in whole or in part by the Contractor, a Subcontractor, a Sub-
subcontractor, or anyone directly or indirectly employed by
any of them, or by anyone for whose acts they may be liable
and for which the Contractor is responsible under Clauses
10.2.1.2, 10.2.1.3 and 10.2.1.4, except damage or loss attrib-
utable to acts or omissions of the Owner, Construction Man-
ager or Architect or anyone directly or indirectly employed
by any of them, or by anyone for whose acts any of them
may be liable, and not attributable to the fault or negligence
of the Contractor. The foregoing obligations of the Contrac-
tor are in addition to the Contractor's obligations under
Paragraph 3.18.
10.2.6 The ContractOr shall designate a responsible member
of the Contractor's organization at the site whose duty shall
be the prevention of accidents. This person shall be the Con-
tractOr's superintendent unless otherwise designated by the
ContractOr in writing to the Owner, Construction Manager
and Architect.
10.2.7 The ContractOr shall not load or permit any part of
the construction or site to be loaded so as to endanger
its safety.
10.3 EMERGENCIES
10.3.1 In an emergency affecting safety of persons or property,
the ContractOr shJU act, at the Contractor's discretion, to pre-
vent threJtened damage, injury or loss, Additional compen-
sation or extension of time claimed by the ContractOr on
account of an emergency shall be determined as provided in
Paragraph 4,7 and Article 7.
ARTICLE 11
INSURANCE AND BONDS
11,1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 The ContrJctor shJII purchase from and maintain in
a compJI1Y or companies l3.wfully authorized to do business
in the jurisdiction in which the Project is located such insur-
ance as will prOtect the Contractor from claims set forth below
which mJY Jrise out of or result from the Contractor's opera-
tions under the Contract and for which the ContractOr may
be legally liable, whether such operations be by the Contrac.
tor or by a Subcontractor or by anyone directly or indirectly
employed by any of them, or by anyone for whose acts any
of them may be liable:
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AlA DOCUMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCIION MANAGER,ADVISER EDITION. 1992 EDlTION . AIA(!I . @I992 . THE AMERICAN
INST1TlITE OF AHCHlTECTS, 1735 NEW' YORK AVENL'E, NoW, WASHINGTON, o.c. 20006-;292. WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
A201/CMa-1992 21
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.1 claims under workers compensation, disability bene-
fit and other similar employee benefit acts which are
applicable to the Work to be performed;
.2 claims for damages because of bodily injury, occupa-
tional sickness or disease, or death of the Contrac-
tor's employees;
.3 claims for damages because of bodily injury, sickness
or disease, or death of any person other than the
Contractor's employees:
.4 claims for damages insured by usual personal injury
liability coverage which are sustained (1) by a per-
son as a result of an offense directly or indirectly
related to employment of such person by the Con-
tractor, or (2) by another person;
.5 claims for damages, other than to the Work itself,
because of injury to or destruCtion of tangible prop-
erty, including loss of use resulting therefrom;
.6 claims for damages because of bodily injury, death
of a person or property damage arising out of owner-
ship, maintenance or use of a motor vehicle; and
.7 claims involving contractual 'liability insurance appli-
cable to the Contraccor's obligations under Para-
graph 318
11.1.2 The insurance required by Subparagraph 11.1.1 shall
be written for not less than limits of liability specified in the
Contract Documents or required by law, whichever coverage
is greater. Coverages, whether written on an occurrence or
claims-made basis, shall be maintained without interruption
from date of commencement of the Work until date of final
payment :lnd termination of any coverage required to be main-
tained after final payment.
11.1.3 Cerrificates of insurance acceptable to the Owner shall
be submitted to the ConStruction Manager for transmittal to
the Owner with a copy to the Architect prior to commence-
ment of the Work. These certificates and the insurance poli-
cies required by this Paragraph 11.1 shall contain a provision
that coverages afforded under the policies wiU not be canceled
or allowed to expire until at least 30 days' prior written notice
has been given to the Owner. If any of the foregoing insurance
coverages are required to remain in force after final payment
and are reasonably available, an additional certificate eviden-
cing continuation of such coverage shall be submitted with
the final Application for Payment as required by Subparagraph
9.10.2, Information concerning reduction of coverage shall
be furnished by the Contractor with reasonable promptness
in accordance with the Contractor's information and belief.
11.2 OWNER'S L1ABILlTV INSURANCE
11.2.1 The Owner shall be responsible for purchasing and
maintaining the Owner's usual liability insurance. Optionally,
the Owner may purchase and maintain other insurance for
self-protection against claims which may arise from operations
under the Contract. The Contractor shall not be responsible
for purchasing and maintaining this optional Owner's liabil-
ity insurance unless specifically required by the Contract
Documents.
11.3 PROPERTY INSURANCE
11.3.1 Unless otherwise provided, the Owner shall purchase
and maintain, in a company or companies lawfully autho-
rized to do business in the jurisdiction in which the Project
is located, property insurance in the amount of the initial Con-
tract Sum as well as subsequem modifications thereto for the
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entire Work at the site on a replacement cost basis without
voluntary deductibles. Such property insurance shall be main-
tained, unless otherwise provided in the Contract Documents
or otherwise agreed in writing by all persons and entities who
are beneficiaries of such insurance, until final payment has
been made as provided in Paragraph 9.10 or until no person
or entity other than the Owner has an insurable interest in
the property required by this Paragraph 11.3 to be covered,
whichever is earlier. This insurance shall include interests of
the Owner, the Contractor, Subcontractors and Sub-subcon-
tractors in the Work.
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11.3.1.1 Property insurance shall be on an "all-risk" policy
form and shall insure against the perils of fire and extended
coverage and physical loss or damage including, without
duplication of coverage, theft, vandalism, malicious mischief,
collapse, falsework, temporary buildings and debris removal
including demolition occasioned by enforcement of any
applicable legal requirements, and shall cover reasonable com-
pensation for Architect's services and expenses required as
a result of such insured loss. Coverage for other perils shall
not be required unless Otherwise provided in the Contract
Documents.
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11.3.1.2 If the Owner does not intend to purchase such
property insurance required by the Contract and with all of
the coverages in the amount described above, the Owner shall
so inform the Contractor in writing prior to commencement
of the W'ork. The Contractor may then effect insurance which
will protect the interests of the Contractor, Subcontractors and
Sub-subcontractors in the Work, and by appropriate Change
Order the COSt thereof shall be charged to the Owner. If the
Contractor is damaged by the failure or neglect of the Owner
to purchase or maintain insurance as described above, without
so notifying the Contractor, then the Owner shall bear all
reasonable COStS properly attributable thereto.
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11.3.1.3 If the property insurance requires minimum deduct-
ibles and such deductibles are identified in the Contract
Documents, the Contractor shall pay costs not covered
because of such deductibles, If the Owner or insurer increases
the required minimum deductibles above the amounts so
identified or if the Owner elects to purchase this insurance
with voluntary deductible amounts, the Owner shall be
responsible for payment of the additional costs not covered
because of such increased or voluntary deductibIes.
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11.3.1.4 Unless otherwise provided in the Contract Docu-
ments, this property insurance shall cover portions of the
Work stored off the site after written approval of the Owner
at the value established in the approval, and also portions of
the Work in transit.
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11.3.1.5 The insurance required by this Paragraph 11.3 is not
intended to cover machinery, tools or equipment owned or
rented by the Contractor which are utilized in the performance
of the Work but not incorporated into the permanent improve-
ments. The Contractor shall, at the Contracror's own expense,
provide insurance coverage for owned or rented machinery,
tools or equipment which shall be subject to the provisions
of Subparagraph 113.7
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11.3.2 Boiler and Machinery Insurance. The Owner shall
purchase and maintain boiler and machinery insurance
required by the Contract Documents or by taw, which shall
specifically cover such insured objects during installation and
until final acceptance by the Owner; this insurance shall
include interests of the Owner, Construction Manager, Con-
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22 A201/CMa-1992
AlA DOCUMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCTION MANAGER-ADVISER EDlTION . 1992 EDITION. AIA@ . @1992 . THE AMERIC\N
INST!Tl!TE OF ARCHITECTS, 173'i NEW '{ORK AVENUE, N.W, WASHINGTON, DC 2UiX}6-'>2'-J2. WARNING:
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tfactor, SubcontractOrs and Sub~subcontracrors in the Work,
and the Owner and Contractor shall be named insureds.
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11.3.3 Loss of Use Insurance. The Owner, at the Owner's
option, may purchase ~md maintain such insurance as will
insure the Owner against loss of use of the Owner's property
due to fire or other hazards, however caused. The Owner
waives all rights of action against the Contractor for loss of
use of the Owner's property, including consequential losses
due to fire or other hazards however caused.
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11.3.4 lfthe Contractor requests in writing that insurance for
risks other than those described herein or for other special
hazards be included in the property insurance policy, the
Owner shall, if possible, include slIch insurance, and the cost
thereof shall be charged to the Contractor by appropriate
Change Order
11.3.5 If during the Project construction period the Owner
insures properties, rell or personal or both, adjoining or adja-
cent to the site by property insurance under policies separate
from those insuring the Project, or if after final payment prop-
erty insurance is to be provided on the completed Project
through a policy or policies other than those insuring the Proj-
ect during the construction period, the Owner shall waive
all rights in accordance with the terms of Subparagraph 11.3.7
for damages caused by fire or other perils covered by this
separate property insurance. All separate policies shall pro-
vide this waiver of subrogation by endorsement or otherwise.
11.3.6 Before an exposure to loss may occur, the Owner shall
file with the Contractor a copy of each policy that includes
insurance coverages required by this Paragraph 11.3. Each
policy shall contain all generally applicable conditions, defini-
tions, exclusions and endorsements related to this Project.
Each policy shall contain a provision that the policy will not
be canceled or allowed to expire until at least 30 days' prior
written notice has been given to the Contractor.
11.3.7 Waivers of Subrogation_ The Owner and Contrac-
tor waive all rights against each other and against the Con-
struction Manager, Architect, Owner's other Contractors and
own forces described in Article 6, if any, and the subcontrac"
tors, sub-subcontractors, consultants, agents and employees
of any of them, for damages caused by fire or ocher perils
to the extent covered by property insurance obtained pursuant
to this Paragraph 11.3 or other property insurance applicable
to the Work, except such rights as the Owner and Contractor
may have to the proceeds of such insurance held by the
Owner as fiduciary. The Owner or Contractor, as appropriate,
shall require or'the Construction Manager, Construction
Manager's consultants, Architect, Architect's consultants,
Owner's sepante COntractors described in Article 6, if any,
and the subcontractors, sub-subcontractors, agents and
employees of any of them, by appropriate agreements, writ-
ten where legally required for validity, similar waivers each
in favor of other parties enumerated herein. The policies shall
provide such waivers of subrog::uion by endorsement or other-
wise. A waiver of subrogation shall be effective as to a per-
son or entity even though that person or entity would other-
wise have a duty of indemnifiC:ltion, contracwal or otherwise,
did not pay the insurance premium directly or indirectly, and
whether or not the person or entity had an insurable interest
in the property damaged
11.3.8 A loss insured under Owner's property insurance shall
be adjusted by the Owner as fiduciary and made payable to
the Owner as fiduciary for the insureds, as their interests may
appear, subject to requirements of any applicable mortgagee
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clause Jnd of Subparagraph 11.3.10. The Contractor shall pay
Subcomractors their just shares of insurance proceeds received
by the Comractor, and by appropriate agreements, written
where legally required for validity, shall require Subcontrac-
tors to make payments to their Sub-subcontractors in simi-
lar manner.
11.3.9 If required in writing by a party in interest, the Owner
as fiduciary shall, upon occurrence of an insured loss, give
bond for proper performance of the Owner's duties. The cost
of required bonds shall be charged against proceeds received
as fiduciary, The Owner shall deposit in a separate account
proceeds so received, which the Owner shall distribute in
accordance with such agreement as the parties in interest may
reach, or in accordance with an arbitration award in which
case the procedure shall be as provided in Paragraph 4.9.- If
after such toss no other special agreement is made, replace-
ment of damaged property shall be covered by appropriate
Change Order.
11.3.10 The Owner as fiduciary shall have power to adjust
and settle a loss with insurers unless one of the parties in inter-
est shall object in writing within five days after occurrence
of loss to the Owner's exercise of this power; if such objec-
tion be made, arbitrators shall be chosen as provided in
Paragraph 4.9. The Owner as tlduciary shall, in that case, make
settlement with insurers in accordance with directions of such
arbitrators. If distribution of insur:mce proceeds by arbitra-
tion is required, the arbitrators will direct such distribution.
11.3.11 Partial occupancy or use in accordance with Pal.lgraph
9.9 shall not commence until the insurance company or com-
panies providing property insurance have consented to such
partial occupancy or use by endorsement or otherwise. The
Owner and the Contractor shall take reasonable steps to obtain
consent of the insurance company or companies and shall,
without mutual written consent, take no action with respect
to partial occupancy or use that would cause c3ncellation,
lapse or reduction of insurance.
11.4 PERFORMANCE BOND AND PAYMENT BOND
11.4.1 The Owner shall have the right to require the Contrac-
tor to furnish bonds covering faithful performance of the Con-
tract and p3yment of obligations arising thereunder as stipu-
lated in bidding requirements or specifically required in the
Contract Documents on the date of execution of the Contract.
11.4.2 Upon the request of any person or entity appearing
to be a potential beneficiary of bonds covering payment of
obligations arising under the Contract, the Contractor shall
promptly furnish a copy of the bonds or shall permit a copy
to be made
ARTICLE 12
UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to the Con-
struction Manager's or Architect's request or to requirements
specifically expressed in the Contract Documents, it must, if
required in writing by either, be uncovered for their obser-
vation and be replaced at the Contractor's expense without
change in the Contract Time.
12.1.2 If a portion of the Work has been covered which
the Construction Manager or Architect has not specifically
requested to observe prior to its being covered, the Conscruc-
AlA DOCUMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCfION MANAGER-ADVISER EDlTION . 1992 EDlTION . AIAi!I . @1992 . THE AMERIC.~N
INSTITUTE OF ARCHITECTS. 173'; NEW YORK AVENCE. NW, WASHINGTON, D.C. 20006-52')2. WARNING:
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A201/CMa-1992 23
tion Manager or Architect may request to see such Work and
it shall be uncovered by the Contractor. If such Work is in
accordance with the Contract Documents, costs of uncover-
ing and replacement shall, by appropriate Change Order, be
charged to the Owner. If such Work is not in accordance with
the Contract Documents, the Contractor shall pay such costs
unless the condition was caused by the Owner or one of the
other Contractors in which event the Owner shall be respon-
sible for payment of such costs.
12.2 CORRECTION OF WORK
12.2.1 The Contractor shall promptly correct Work rejected
by the Construction Manager or Architect or failing to con-
form to the requirements of the Contract Documents, whether
observed before or after Substantial Completion and whether
or not fabricated, installed or completed. The Contractor shall
bear costs of correcting such rejected Work, including addi-
tional testing and inspections and compensation for the Con-
struction Manager's and Architect's services and expenses
made necessary thereby.
12.2.2 If, within one year after the date of Substantial Com-
pletion of the Work or designated portion thereof, or after
the date for commencement of warranties established under
Subparagraph 9.9.1, or by terms of an applicable special war.
ranty required by the Contract Documents, any of the Work
is found to be not in accordance with the requirements of
the Contract Documents, the Contractor shall correct it
promptly after receipt of written notice from the Owner to
do so unless the Owner has previously given the ContractOr
a written acceptance of such condition. This period of one
year shall be extended with respect to portions of Work first
performed after Substantial Completion by the period of time
between Substantial Completion and the actual performance
of the Work. This obligation under this Subparagraph 12.2.2
shall survive acceptance of the Work under the Contract and
termination of the Contract. The Owner shall give such notice
promptly after discovery of the condition.
12.2.3 The Contractor shall remove from the site portions
of the W'ork which are not in accordance with the require-
ments of the Contract Documents and are neither corrected
by the Contractor nor accepted by the Owner.
12.2.4 If the Contractor fails to correct nonconforming Work
within a reasonable time, the Owner may correct it in accor-
dance with Paragraph 2.4. If the Contractor does not proceed
with correction of such nonconforming Work within a rea-
sonable time fIxed by written notice from the Architect issued
through the Construction Manager, the Owner may remove
it and store the salvable materials or equipment at the Con-
tractor's expense. If the Contractor does not pay COStS of such
removal and storage within ten d:lYs after written notice, the
Owner may upon ten additional days' wrirten notice sell such
materials and equipmem at auction or at private sale and shall
account for the proceeds thereof, after deducting costs and
damages th:lt should have been borne by the Contractor,
including compensation for the Construction Manager's and
Architect's services and expenses made necessary thereby. If
such proceeds of sale do not cover costs which the Contrac-
tor should have borne, the Contract Sum shall be reduced by
the deficiency. If payments then or thereafter due the Con-
tractor are nO[ sufficient to cover such amount, the Contrac-
tor shall pay the difference to the Owner.
12.2.5 The Contractor shall bear the cost of correcting
destroyed or damaged construction, whether completed or
partially completed, of the Owner or other Contractors
caused by the Contractor's correction or removal of Work
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which is not in accordance with the requirements of the Con.
tract Documents.
12.2.6 NOthing contained in this Paragraph 12.2 shall be con.
strued to establish a period of limitation with respect to other
obligations which the Contractor might have under the Con.
tract Documents. Establishment of the time period of one year
as described in Subparagraph 12.2.2 relates only to the specific
obligation of the Contractor to correct the Work, and has no
relationship to the time within which the obligation to com-
ply with the Contract Documents may be sought to be
enforced, nor to the time within which proceedings may be
commenced to establish the Contractor's liability with respect
to the ContractOr's obligations other than specifically to cor-
rect the W'ork.
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12.3.1 If the Owner prefers to accept Work which is not in
accordance with the requirements of the Contract Documents,
the Owner may do so instead of requiring its removal and
correction, in which case the Contract Sum will be reduced
as appropriate :lnd equitable. Such adjustment shall be effected
whether or not final payment has been made.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 GOVERNING LAW
13.1.1 The Contract shall be governed by the law of the place
where the Project is located.
13.2 SUCCESSORS AND ASSIGNS
13.2.1 The Owner and Contractor respectively bind them-
selves, their panners, successors, assigns and legal represen-
tatives to the Other party hereto and to partners, successors,
assigns and legal representatives of such Other party in respect
to covenants, agreements and obligations contained in the
Contract Documents. Neither party to the Contract shall assign
the Contract as a whole without written consent of the Other.
If either party attempts to make such an assignment without
such consent, that party shall nevertheless remain legally
responsible for all obligations under the Contract.
13.3 WRITTEN NOTICE
13.3.1 Written nOtice shall be deemed to have been duly
served if delivered in person to the individual or a member
of the firm or entity or to an officer of the corporation for
which it was intended, or if delivered at or sent by registered
or certified mail to the last business address known to the
party giving nOtice.
13,4 RIGHTS AND REMEDIES
13.4.1 Duties and obligations imposed by the Contract Docu.
ments and rights and remedies available [hereunder shall be
in addition to and not a limitation of duties, obHgations, rights
and remedies otherwise imposed or available by law.
13.4.2 No action or failure to act by the Owner, Construc-
tion Manager, Architect or Contractor shall constitute a -waiver
of a right or duty afforded them under the Contract, nor shall
such action or failure to act constitute approval of or acqui-
escence in a breach thereunder, except as may be specifically
agreed in writing.
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AlA DOCUMENT A201JCMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUcrION MANAGER-ADVISER EDITION. 1992 EDITION . AIA<ll . @1992 . THE AMERICAN
INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.w., WASHINGTON, DC 20006.5292 . WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
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13.5 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the
Work required by the Contract Documents or by laws, ordi-
nances, rules, regulations or orders of public authorities having
jurisdiction shall be made at an appropriate time. Unless other-
wise provided, the ContractOr shall make arrangements for
such tests, inspections and approvals with an independent
testing laboratory or entity acceptable to the Owner, or with
the appropriate public authority, and shall bear all related costs
of tests, inspections and approvals. The Contractor shall give
the Construction Manager and Architect timely nOtice of when
and where tests :md inspections are to be made so the Con-
struction Manager and Architect may observe such pro-
cedures. The Owner shall bear COStS of tests, inspections or
approvals which do not become requirements until after bids
are received or negotiations concluded
13.5.2 If the Construction Manager, Architect, Owner or pub.
lic authorities having jurisdiction determine that portions of
the Work require additional testing, inspection or approval
not included under Subparagraph 13.5.1, the Construction
Man:lger and Architect will, upon written authorization from
the Owner, instruct the Contractor to make arrangements for
such additional testing, inspection or approval by an entity
acceptable to the Owner, and the Contractor shall give timely
notice to the Construction Manager and Architect of when
and where tests and inspections are to be made so the Con-
struction Manager and Architect may observe such proce-
dures. The Owner shall bear such COStS except as provided
in Subparagraph 13.5.3.
13.5.3 If such procedures for testing, inspection or approval
under Subparagraphs 13.5.1 and 13.5.2 reveal failure of the
portions of the Work to comply with requirements established
by the Contract Documents, the Contractor shall bear all costs
made necessary by such failure including those of repeated
procedures and compensation for the Construction Manager's
and Architect's services and expenses,
13.5.4 Required certificates of testing, inspection or approval
shaH, unless otherwise required by the Contract Documents,
be secured by the Contractor and promptly delivered to the
Construction Manager for transmittal to the Architect.
13.5.5 If the Construction Manager or Architect is to observe
tests, inspections or approvals required by the Contract
Documents, the Construction Manager or Architect will do
so promptly and, where practicable, at the normal place
of testing
13.5.6 Tests or inspections conducted pursuant to the Con-
tract Documents sh:lll be m:lde promptly to avoid unrea-
sonable delay in the Work
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13.6 INTEREST
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13.6.1 Payments due and unpaid under the ContraCt Docu-
ments shall bear interest from the date payment is due at such
rate as the parties may agree upon in writing or, in the absence
thereof, at the legal rate prevailing from time to time at the
place where the Project is located.
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13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
13.7.1 As between the Owner and Contractor:
.1 Before Substantial Completion. As to acts or fail-
ures to act occurring prior to the relevant date of
Substantial Completion, any applicable statute of
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limitations shall commence to run and any alleged
cause of action shall be deemed to have accrued in
any and aU events not later than such date of Substm~
tial Completion;
.2 Between Substantial Completion and Final Cer-
tificate for Payment. As to acts or failures to act
occurring subsequent to the relevant date of Substln.
tial Completion and prior to issuance of the final Cer-
tificate for Payment, any applicable statute of limitl-
tions shall commence to run and any alleged cause
of action shall be deemed to have accrued in any and
all events not later than the date of issuance of the
final Certificate for Payment; and
.3 After Final Certificate for Payment. As to acts or
failures to act occurring after the relevant date of issu-
ance of the final Certificate for Payment, anyappli-
cable statute of limitations shall commence to run
and any alleged cause of action shall be deemed to
have accrued in any and all events not later than the
date of any act or failure to act by the Contractor
pursuant to any warranty provided under Paragraph
3.5, the date of any correction of the Work or failure
to correer the Work by the Contractor under Para-
graph 12.2, or the date of actual commission of any
other act or failure to perform any duty or obli-
gation by the ContractOr or Owner, whichever
occurs last.
ARTICLE 14
TERMINATION OR SUSPENSION
OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the Work
is stopped for a period of 30 days through no act or fault of
the Contractor or a Subcontractor, Sub-subcontractor or their
agents or employees or any other persons performing por-
tions of the Work under contract with the Contractor, for any
of the following reasons:
.1 issuance of an order of a court or other public
authority having jurisdiction;
.2 an act of government, such as a declaration of
national emergency, making material unavailable;
.3 because the Construction Manager or Architect has
not issued a Certificate for Payment and has not
notified the Contractor of the reason for withholding
certification as provided in Subparagraph 9.4.2, or
because the Owner has not made payment on a Cer-
tificate for Payment within the time stated in the Con-
tract Documents;
.4 if repeated suspensions, delays or interruptions by
the Owner as described in Paragraph 14,3 constitute
in the aggregate more than 100 percent of the tOtal
number of d3YS scheduled for completion, or 120
days in any 365-day period, whichever is less; or
.5 the Owner has f3i1ed to furnish to the Contractor
promptly, upon the Contractor's request, reasonable
evidence as required by Subparagraph 2.2,1.
14.1.2 If one of the above reasons exists, the Contractor may,
upon seven additional days' written notice to the Owner, Con-
struction Manager and Architect, terminate the Contract and
recover from the Owner payment for Work executed and for
AlA DOCUMENT A201/CMa . GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION
CONSTRUCTION MANAGER.ADVISER EDITION . 1992 EDITION . AIA~ . @1992 . THE AMERICAN
INSTITUTE OF ARCHITECfS. 17:"\') NEW YORK AVENUE. N.w., WASHINGTON, D.C. 20006-5292. WARNING:
Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
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A201/CMa-1992 25
proven loss with respect to materials, equipment, tools, and
constructiOn equipment and machinery, induding reasonable
overhead, profit and damages.
14.1.3 If the Work is stopped for;a period of 60 days through
no act or fault of the Contractor or a Subcontractor or their
agents or employees or any mher persons performing por.
tions of the Work under cOntract with the Contractor because
the Owner has persistemly failed to fulfill the Owner's obliga-
tions under the Contract Documents with respect to matters
important to the progress of the Work, the Contractor may,
upon seven additional days' written notice to the Owner, Con-
struction Manager and Architect, terminate the Contract and
recover from the Owner as provided in Subparagraph 14.1.2.
14.2 TERMINATION BY THE OWNER FOR CAUSE
14.2.1 The Owner may terminate the Contract if the
Contractor:
.1 persistently or repeatedly refuses or fails to sup-
ply enough properly skilled workers or proper
rnaterials;
.2 fails to make payment to Subcontractors for mate-
rials or labor in accordance with the respective
agreements between the Contractor and the
Subcontractors;
.3 persistently disregards laws, ordinances, or rules,
regulations or orders of a public authority having
jurisdiction; or
.4 otherwise is guilty of substantial breach of a provi-
sion of the Contract Documents.
14.2.2 When any of the above reasons exist, the Owner, after
consultation With the Construction Manager, and upon cer-
tification by the Architect that sufficient cause exists to justify
such action, may without prejudice to any other rights or
remedies of the Owner and after giving the Contractor and
the Contractor's surety, if any, seven days' written notice, ter-
minate employment of the Contractor and may, subject to any
prior rights of the surety:
.1 uke possession of the site and of all materials, equip-
ment, tools, and construction equipment and
machinery thereon owned by the Contractor;
.2 accept assignment of subcontracts pursuant to
Paragraph 5.4; and
.3 finish the Work by whatever reasonable method the
Owner may deem expedient,
14.2.3 When the Owner terminates the Contract for one of
the reasons stated in Subparagraph 14.2.1, the Contractor
shall not be entitled to receive further payment until the Work
is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds
costS of finishing the Work, including compensation for the
Construction Manager's and Architect's services and expenses
made necessary thereby, such excess shall be paid to the Con-
tractor. If such costs exceed the unpaid balance, the Contrac-
tor shall pay the difference to the Owner. The amount to be
paid to the Contractor or Owner, as the case may be, shall,
upon application, be certified by the Architect after consulta-
tion with the Construction Manager, and this obligation for
payment shall sur\'ive termination of the Contract.
14.3 SUSPENSION BY THE OWNER
FOR CONVENIENCE
14.3.1 The Owner may, without cause, order the Contractor
in writing to suspend, delay or interrupt [he Work in whole
or in parr for such period of time as the Owner may determine.
14.3.2 An adjustmem shall be made for increases in the cost
of performance of the Contract, including profit on the
increased COSt of performance, caused by suspension, delay
or interruption. No adjustment shall be made to the extent:
.1 that performance is, was or would have been so
suspended, delayed or interrupted by another cause
for which the Contractor is responsible; or
.2 that an equitable adjustment is made or denied
under another provision of this Contract.
14.3.3 Adjustments made in the cost of performance may have
a mutually agreed fixed or percentage fee.
26 A201/CMa-1992
AlA DOCUMENT A201/CMa . GENER.A.L CONDIT]ONS OF THE CONTRACf FOR CONSTRUCf]ON
CONSTRUCT]ON MANAGER-ADvlSER EDI'nON . ]992 EDITION . AIA'Il . (fH992 . THE AMERICAN
INSTITUTE OF ARCHITECTS. 17:'15 NEW' YORK AVE!'JL'E. N,\l('., WA.<;HINGTON, D.C 20006-5292. WARNING:
Unllcem;ed photocopying violates U.S. COpYright laws and will subject the violator to legal prosecution.
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9/21/2000
DOCUMENT 00800
SUPPLEMENTARY CONDITIONS
This Document contains supplements modifying DOCUMENT 00700, "GENERAL CONDITIONS OF
THE CONTRACT FOR CONSTRUCTION"; Construction Management Edition, AlA Document
A2011CMa, 1992 Edition. Where any part of the General Conditions is modified, voided, or deleted by
these SUPPLEMENTARY CONDITIONS, the unaltered portions of the GENERAL CONDITIONS shall
remain in effect.
TABLE OF CONTENTS TO STANDARD ARTICLES AMENDED BY SUPPLEMENTARY CONDITIONS
ARTICLE 1. GENERAL PROVISIONS
1.1 Basic Definitions
1.2 Execution, Correlation, and Intent
1.3 Ownership and Use of Architect's Drawings, Specifications, and Other Documents
ARTICLE 2. OWNER
2.2 Information and Services Required of the Owner
2,3 Owner's Right to Stop the Work
2.4 Owner's Right to Carry Out the Work
ARTICLE 3. CONTRACTOR
3.2 Review of Contract Documents and Field Conditions by Contractor
3.3 Supervision and Construction Procedures
3.4 Labor and Materials
3.5 Warranty
3.6 Taxes
3.7 Permits, Fees, and Notices
3.8 Allowances
3.9 Superintendent
3.10 Contractor's Construction Schedule
3,12 Shop Drawings, Product Data, and Samples
3.15 Cleaning Up
3,18 Indemnification
ARTICLE 4. ADMINISTRATION OF THE CONTRACT
4.6 Administration of the Contract
4.7 Claims and Disputes
4,8 Resolution of Claims and Disputes
4.9 Arbitration
ARTICLE 5 SUBCONTRACTORS
5.2 Awards of Subcontracts and Other Contracts for Portions of the Work
5.4 Contingent Assignment of Subcontracts
5.5 Payments to Subcontractors by the Contractor
5.6 Payments to Subcontractors by the Owner
ARTICLE 6 CONSTRUCTION BY OWNER OR BY OTHER CONTRACTORS
6.1 Owner's Right to Perform Construction with Own Forces and to Award Separate Contracts
6.2 Mutual Responsibility
@ 2000 by Foreman Architects Engineers
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ARTICLE 7. CHANGES IN THE WORK
7.2 Change Orders
7.3 Construction Change Directives
7.4 Minor Changes in the Work
ARTICLE 8. TIME
S.2 Progress and Completion
8,3 Delays and Extensions of Time
ARTICLE 9, PAYMENTS AND COMPLETION
9.2 Schedule of Values
9,3 Certificates for Payment
9.5 Decisions to Withhold Certification
9.6 Progress Payments
9.7 Failure of Payment
9,8 Substantial Completion
9,9 Partial Occupancy or Use
9.10 Final Completion and Final Payment
ARTICLE 10, PROTECTION OF PERSONS AND PROPERTY
10.1 Safety Precautions and Programs
10.2 Safety of Persons and Property
ARTICLE 11. INSURANCE
11.1 Contractor's Liability Insurance
11.2 Owner's Liability Insurance
11.3 Property Insurance
11.4 Performance Bond and Payment Bond
11.5 Insurance Carriers
ARTICLE 12, UNCOVERING AND CORRECTION OF WORK
122 Correction of Work
ARTICLE 13. MISCELLANEOUS PROVISIONS
13.5 Tests and Inspections
13.7 Commencement of Statutory Limitation Period
13.8 Interpretations
13,9 Equal Employment Opportunity
ARTICLE 14. TERMINATION OF THE CONTRACT
14.1 Termination by the Contractor
14.2 Termination by the Owner for Cause
14.3 Suspension by the Owner for Convenience
14.4 Termination by the Owner for Convenience
@ 2000 by Foreman Architects Engineers
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DOCUMENT 00800
SUPPLEMENTARY CONDITIONS
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9/21/2000
DOCUMENT 00800
SUPPLEMENTARY CONDITIONS
ARTICLE 1. GENERAL PROVISIONS
1.1 BASIC DEFINITIONS.
1,1.1: THE CONTRACT DOCUMENTS
1,1.1: Delete the last sentence, and insert:
"The Contract Documents shall include Bidding Requirements, including, but not be limited to,
advertisement or Invitation to Bid, Instructions to Bidders, the Contractor's Bid Form and Addenda
or portions of the Addenda relating to any Bidding Documents. The Contract Documents shall apply
to all Prime Contracts and each Prime Contractor is responsible for the content of all."
1,1.2: THE CONTRACT
1.1,2: Add Subparagraph 1.1.2.1:
1.1.2.1: The Contractor acknowledges and warrants that it has closely examined all of the Contract
Documents, that they are suitable and sufficient to enable the Contractor to complete the Work in a
timely manner for the Contract Sum, and that they include all Work, whether or not shown or
described, which reasonably may be inferred to be required or useful for the completion of the
Work in full compliance with all applicable codes, laws, ordinances and regulations,
1.1.3: THE WORK
1.1.3: Add Subparagraphs 1.1.3.1 and 1.1,3.2:
1.1,3.1: The Work shall include the obligation of the Contractor to visit the site of the Project before
submitting a proposal. Such site visit shall be for the purpose of familiarizing the Contractor with the
conditions as they exist and the character of the operations to be carried on under the Contract
Documents, including all existing site conditions, access to the site, physical characteristics of the
site and surrounding areas.
1.1.3.2: Nothing in these General Conditions shall be interpreted as imposing on either the Owner,
Architect, or Construction Manager, or their respective agents, employees, officers, directors or
consultants, any duty, obligation or authority with respect to any items that are not intended to be
incorporated into the completed project, or that do not comprise the Work, including but not limited
to the following: shoring, scaffolding, hoists, weatherproofing, or any temporary facility or activity,
since these are the sole responsibility of the Contractor.
@ 2000 by Foreman Architects Engineers
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DOCUMENT 00800
SUPPLEMENTARY CONDITIONS
1,1,5: THE DRAWINGS.
1.1.5: Add Subparagraph 1.1.5.1:
1,1.5.1: The Drawings are diagrammatical and show the general arrangement and extent of the
work; exact locations and arrangements of parts shall be determined as the work progresses and
shall be subject to the Architect's approval. No extra compensation will be allowed due to
discrepancies between actual dimensions and those indicated. The right is reserved by the
Architect to make any reasonable change in location of equipment, ductwork and piping prior to
roughing in without involving additional expense. Each Prime Contractor shall coordinate his work
with the work of others, so that interference between mechanical and electrical work and
architectural and structural work does not occur. Each Prime Contractor shall furnish and install
offsets, bends, turns, and the like in connection with his work to avoid interference with work of
other Contractors, to conceal work where required, and to secure necessary clearance and access
for operation and maintenance.
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1,2 EXECUTION, CORRELATION, AND INTENT,
1,2.3: Add SUbparagraphs 1.2.3.1 through 1.2,3.4:
1.2.3.1: Measurement: Before ordering any materials or doing any work, the Contractor and each
Subcontractor shall verify measurements at the Project site and shall be responsible for the
correctness of such measurements. No extra charge or compensation will be allowed on account of
differences between actual dimensions and the dimensions indicated on the Drawings. Any
difference which may be found shall be submitted to the Architect for resolution before proceeding
with the work.
1.2.3.2: If a minor change in the work is found necessary due to actual field conditions, the
Contractor shall submit detailed drawings of such departure for the approval by the Architect before
making the change.
1,2,3.3: In the event of inconsistencies between the Contract Documents and applicable standards,
codes, and ordinances, the Contractor shall (1) provide the better quality or greater quantity of work
or (2) comply with the more stringent requirement; either, or both, in accordance with the Architect's
interpretation. The terms and conditions of this Paragraph, however, shall not relieve the Contractor
of any of the obligations set forth in Paragraphs 3.2 and 3.7.
1.2,3.4: The following order of precedence shall be followed. In the event of conflicts or
discrepancies among the Contract Documents, interpretations will be based on the following
priorities:
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,1 The Agreement. I
.2 Addenda, those of later date have precedence.
.3 Supplementary Conditions. r:
.4 General Conditions. .
.5 Division 1 and Summary of the Project, Section 01101, Prime Contract Description.
.6 Specifications shall govern in case of differences between drawings and
specifications, I
.7 Large scale drawings shall supersede smaller scale drawings,
@ 2000 by Foreman Architects Engineers
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SUPPLEMENTARY CONDITIONS
.8 Dimensions shall govern over scaling of the drawings.
.9 In case of discrepancies either in dimensions in the drawings or in the
specifications, the matter shall be submitted to the Architect who will promptly make
a determination in writing.
1.2.4: At the end of this Subparagraph, Add:
"Contractor represents that the Subcontractors, manufacturers and suppliers engaged or to be
engaged by it are and will be familiar with the requirements for performance by them of their
obligations."
.1,2.4: Add new Subparagraph 1.2.4.1:
"1.2.4.1: Sections of Division 1 - General Requirements govern the execution of all sections of the
specifications. "
1.2.5: Add new Subparagraphs 1.2.5.1 and 1.2.5.2:
1.2.5.1: Except as defined in Subparagraph 1,2,5.2, for the purpose of this Project, the meaning of
all words, shall be in accord with the definitions given in "The Random House Dictionary of the
English Language, Second Edition, Unabridged, copyright 19S7".
1.2.5.2: Certain terms used in Contract Documents are defined in this article. Definitions and
explanations of this article are not necessarily either complete or exclusive, but are general for the
work to the extent they are not stated more explicitly in other provisions of the Contract Documents.
These terms are:
,1 Indicated: The term "indicated" is a cross-reference to graphics, notes or schedules on
drawings, to other paragraphs or schedules in the specifications, and to similar means
of recording requirements in Contract Documents. Where terms such as "shown",
"noted", "scheduled", and "specified" are used in lieu of "indicated", it is for purpose of
helping reader locate cross-reference, and no limitation of location is intended except
as specifically noted.
.2 Directed, Requested, Etc.: Where not otherwise explained, terms such as "directed",
"requested", "authorized", "selected", "approved", "required", "accepted", and
"permitted" mean "directed by Architect", after consultation with the Construction
Manager "requested by Architect", etc, However, no such implied meaning will be
interpreted to extend Architect's or the Construction Manager's responsibility into
Contractor's area of construction supervisions.
.3 Approve: Where used in conjunction with Architect's response to submittals, requests,
applications, inquiries, reports and claims by Contractor, the meaning of term
"approved" will be held to limitations of Architect's responsibilities and duties as
specified in General and Supplementary Conditions. In no case will "approval" by
Architect be interpreted as a release of Contractor from responsibilities to fulfill
requirements of Contract Documents.
.4 Alternate: A defined portion of the work that is priced separately giving the Owner the
option in selecting the final scope of work,
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Alternatives/Substitutions: A proposal to use manufacturers, materials, products,
systems, or equipment approved by the Architect for use in place of those specified.
.6
Furnish: Except as otherwise defined in greater detail, term "furnish" is used to mean
supply and deliver to project site, ready for unloading, unpacking, assembly,
installation, and similar operations, as applicable in each instance,
.7
Install: Except as otherwise defined in greater detail, term "install" is used to describe
operations at project site including unloading, unpacking, assembly, erection, placing,
anchoring, applying, working to dimension, finishing, curing, protection, cleaning and
similar operations, including the coordination with other contractors as applicable in
each instance.
.8
Relocate: The word "relocate" shall mean "move from the existing location to the new
location installed complete and ready for use" all items noted on the drawings and/or
indicated in the specifications,
,9
Provide: Except as otherwise defined in greater detail, term "provide" means furnish
and install, complete and ready for intended use, as applicable in each instance,
.10 Coordinate: The term "coordinate" means to cooperate with related trades to furnish
and install all connections between the trades in correct sequence, size, and location to
create a complete system ready for intended use,
,11 Verify: The term "verify" means to measure, investigate, review, test, check the
accuracy or correctness of and prove by demonstration, evidence, or testimony, the
location, size, dimension, and condition of an item.
.12 Concealed: "Concealed" when used herein, shall mean hidden from sight as in
trenches, chases, furred spaces, pipe shafts or hung ceilings.
.13 Exposed: "Exposed" shall mean that piping or equipment is not "concealed" as defined
herein. Piping and equipment in mechanical equipment rooms, storage areas, or
unfinished rooms is to be considered as "exposed".
.14 Regulation: The term "Regulations" includes laws, statutes, ordinances and lawful
orders issued by authorities having jurisdiction, as well as rules, conventions and
agreements within the construction industry that control performance of the Work,
whether they are lawfully imposed by authorities having jurisdiction or not.
.15 Installer: An "Installer" is an entity engaged by the Contractor, either as an employee,
subcontractor or sub-subcontractor for performance of a particular construction activity,
including installation, erection, application and similar operations, Installers are
required to be experienced in the operations they are engaged to perform. The term
"experienced", when used with the term "Installer" means having a minimum of five
years of previous Projects similar in size and scope to this project, and familiar with the
precautions required, and has complied with requirements of the authority having
jurisdiction.
.16 Contract Description: List of specification sections, narrative, and contract document
references that will be the responsibility of that specific Prime Contractor.
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.17 Prime Contractor: Contractor who will have a contract to perform a specific contract
description; referred to as Prime Contractor or just Contractor.
.18 Architect/Engineer: Referred to as an Architect/Engineer or just Architect.
1.3 OWNERSHIP AND USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS, AND OTHER
DOCUMENTS
1.3: Add new Subparagraph:
"1.3.2: Each Prime Contractor will be furnished complete Project Manuals and Drawing Sets, as limited
below, free of charge. Each Prime Contractor shall pay the actual cost of reproduction and delivery for
all additional manuals requested by him. Each Prime Contractor should expect considerable delay in
reproduction of additional sets of specifications.'
General Contractor
Landscaping Contractor
Roofing Contractor
Aluminum Entrances and Windows Contractor
Acoustical, Drywall, and Plaster Contractor
Resilient Flooring and Carpeting Contractor
Painting Contractor
Visual Display Boards Contractor
Food Service Equipment Contractor
Industrial Arts Equipment Contractor
General Casework Contractor
Library Casework Contractor
Science Casework Contractor
Plumbing Contractor
Fire Protection Contractor
HVA.C. Contractor
Electrical Contractor
Communications Contractor
ARTICLE 2. OWNER
Project Manuals
Complete Sets
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Drawings
Complete Sets
10
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3
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3
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2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER.
2.2.1: Delete the words: "and promptly from time to time thereafter,".
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2.2.2: Delete Subparagraph in its entirety and insert the following:
2,2.2: The Owner shall not be responsible for furnishing surveys (unless required for the execution
of the work and requested by the Contractor in writing) or other information as to the physical
characteristics of, legal limitations of or utility locations for the Project site, but shall furnish or cause
to be furnished to the Contractor a legal description of the Project site, which shall not constitute
one of the Contract Documents. Contractor shall confirm the location of each utility, shall excavate
and dispose of each on-site utility and shall cap each off-site utility as required by the Work and as
may be included in the Specifications. To the extent required for the execution of the Work, the
Owner shall provide to Contractor such test borings and information that it has as to subsurface
conditions and site geology. Owner does not assume any responsibility whatsoever with respect to
the sufficiency or accuracy of borings made, or of the logs of test borings, or of other investigations,
or of the interpretations made thereof, and there is no warranty or guaranty, express or implied, that
the conditions indicated by such investigations, borings, logs or information are representative of
those existing throughout the Project site, or any part thereof, or that unforeseen developments
may not occur. The Contractor represents that it is familiar with the Project site and has received
all information it needs concerning the condition of the Project site, The Contractor represents the
it has inspected the location of the Work and has satisfied itself as to the condition thereof,
including, without limitation, all structural, surface and reasonably ascertainable subsurface
conditions. Based upon the foregoing inspections, understandings, agreements and
acknowledgments, the Contractor agrees and acknowledges (1) that the Contract Sum is just and
reasonable compensation for all Work, including foreseen and foreseeable risks, hazards and
difficulties in connection therewith, and (2) that the Contract Time is adequate for the performance
of the Work. The Contractor shall have no claims for surface or reasonably ascertainable
subsurface conditions encountered, The Contractor shall exercise special care in executing
subsurface work in proximity of known subsurface utilities, improvements, and easements.
2.3 OWNER'S RIGHT TO STOP THE WORK.
2.3.1: In the first sentence, delete the word: "persistently",
2.3.1: At the end of this Subparagraph, Add:
"This right shall be in addition to and not in restriction or derogation of the Owner's rights under
Article 14 hereof. The Owner's right to stop the work shall not relieve the Contractor of any of his
responsibilities and obligations under or pursuant to the Contract Documents."
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2.4 OWNER'S RIGHT TO CARRY OUT THE WORK.
2.4.1: Delete entirely, and insert in its place the following:
"If the Contractor defaults or neglects to carry out the Work in accordance with the Contract
Documents and fails within a seven-day period after receipt of written notice from the Owner to
commence and continue correction of such default or neglect with diligence and promptness, the
Owner may, without prejudice to other remedies the Owner may have, commence and continue to
carry out or correct deficiencies in the Work. Such action by the Owner and the amount charged to
the Contractor are both subject to prior consultation with the Architect and Construction Manager."
"Such action by the Owner and amounts charged to the Contractor are both sUbject to prior
approval of the Architect, after consultation with the Construction Manager. If payments then or
thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the
difference to the Owner."
"The right of the Owner to stop the Work pursuant to this Subparagraph 2.4.1 shall not give rise to
any duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other
person or entity."
ARTICLE 3, CONTRACTOR
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR,
3.2.1: Delete Subparagraph in its entirety and insert the following:
3,2.1: By submission of a bid, the Contractor acknowledges that the Contract Documents are full
and complete, are sufficient to have enabled it to determine the cost of the Work and that the
Drawings, the Specifications and all addenda are sufficient to enable the Contractor to construct the
Work outlined therein in accordance with applicable laws, statutes, ordinances, building codes and
regulations, and otherwise to fulfill all of its obligations under the Contract Documents.
3.2,1,1: Except as to any reported error, inconsistencies or omissions, and to concealed or
unknown conditions defined in Subparagraph 4.7.6 by executing the Agreement, the Contractor
represents the following:
.1 The Contract Documents are sufficiently complete and detailed for the Contractor to (1)
perform the work required to produce the results intended by the Contract Documents
and (2) comply with all requirements of the Contract Documents,
.2 The work required by the Contract Documents, including, without limitation, all
construction details, construction means, methods, procedures, and techniques
necessary to perform the work, use of materials, selection of equipment, and
requirements of product manufacturers are consistent with (1) good and sound
practices within the construction industry; (2) generally prevailing and accepted industry
standards applicable to work; (3) requirements of any warranties applicable to the
work; and (4) all laws, ordinances, regulations, rules, and orders which bear upon the
Contractor's performance of the Work.
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3,2,1,2: The Contractor shall, therefore, satisfy itself as to the accuracy of all dimensions and locations.
In all cases of interconnection of its work with existing or other work, it shall verify at the site, all
dimensions relating to such existing or other work. Any errors due to the Contractor's failure to verify all
such locations or dimensions shall be promptly rectified by the Contractor without any additional cost to
the Owner.
3,3 SUPERVISION AND CONSTRUCTION PROCEDURES.
3,3.1: Add Subparagraphs 3.3.1,1, 3.3.1.2 and 3.3.1.3:
3,3.1.1: Each Prime Contractor is to appoint by written commitment a single representative on site
who has the authority to act on behalf of the Contractor and its subcontractors and suppliers.
3.3.1,2: At any time within the construction period, the Owner, Architect, and Construction Manager
shall have the right, and the Authority, to require the replacement of the Prime Contractor's Project
Manager, Superintendent, or Foreman.
3.3.1.3: The Construction Manager shall have the authority to direct the Contractor to assign
additional supervisory personnel to ensure compliance with the contract schedule and quality
requirements at no addition to the contract price.
3.3.1,3.1: When more than one major phase is being constructed at different locations on the
project site, supervision must be assigned to each phase when work of that contract is being
performed. When performing construction work to maintain the progress schedule requires
extended hours, multiple shifts, and/or additional work days, adequate supervision shall be required
for each Contractor during these times. The competence level and ability of supervisory personnel
must be adequate to perform the construction activities involved.
3.3.1.3.2: Although these various second level supervision personnel may be reassigned from time
to time, each Contractor shall retain one superintendent with full responsibility while performing
work on the project.
3.3,2: Add Subparagraph 3.3.22:
3.3.2.2: After Award of Contract, any claims for additional costs associated with completion of the
Work within the required Contract time frames will be not be considered, Contractors, who feel
extra time, in any form such as shift work, overtime, and premium time, is necessary to meet
Contract requirements regardless of trade, should include these costs in their bids, Contractors
must recognize that although their work might not require shift, overtime, or premium time work for
completion within the stipulated time frame, it may be required in order to allow other Contractors to
complete within the time frame, Contractor must allow for these overtime requirements and include
the costs necessary to allow the other Contractors to complete within the specified time. Failure to
recognize the extra costs in his bid shall not relieve the Contractor from utilizing shift, overtime, or
premium time work in performance of his Contract nor entitle him to additional compensation.
Where installation work is part of the contract, all costs associated with meeting the time frames
indicated in the construction schedules shall be included in the contract price.
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3.3.3: Add Subparagraph 3.3.3.1:
3.3.3.1: Contractors whose failure to perform their Work or whose negligence in performing their
Work, impacts other Contractors shall be responsible for damages incurred by the other
Contractors that are necessary to maintain the project schedules.
3.3.5: Add new Subparagraph:
3.3.5: No verbal agreement or conversation with any officer, agent or employee of the Owner,
Construction Manager, or Architect, either before or after the execution of the contract, shall affect or
modify the terms or obligations herein contained. Failure to comply with any or all of the above
requirements will not relieve the contractor from the responsibility of properly estimating the difficulty or
cost of successful completion of the work, nor from the responsibility for the faithful performance of the
provisions of this contract.
3.4 LABOR AND MATERIALS.
3.4.2: Add to the end of the subparagraph:
"Workers shall not smoke when inside the existing facility in accord with Federal legislation, Title X,
P.L. 103-227, Goal 2000, Educate America Act of 1994. In addition, workers shall not smoke
anywhere on School District's property. Workers shall not consume or possess alcoholic
beverages when on site. Workers shall not be allowed to play radios, CD players, and the like
within the existing facility and on the project site."
3.4: Add Subparagraphs 3.4.3 through 3.4.17:
3.4.3: STANDARD OF QUALITY: The various materials and products specified in the
specifications by name or description are given to establish a standard of quality and of cost for bid
purposes, It is not the intent to limit the bidder, the bid or the evaluation of the bid to anyone
material or product specified but rather to describe the minimum standard. When proprietary
names are used, they shall be followed by the words "or alternatives of the quality necessary to
meet the specifications". A bid containing an alternative which does not meet the specifications
may be declared non-responsive, A bid containing an alternative may be accepted but, if an award
is made to that bidder, the bidder will be required to replace any alternatives which do not meet the
specifications.
3.4.3.1: The Architect will evaluate alternatives and be the sole judge of whether the alternative is
acceptable at the time of bid. The burden of proving the alternative is equal, or better, to the
specified product is that of the bidder.
3.4.3.2: The Contractor shall ensure that products incorporated into, and used to execute, the
Work of the Project are free from asbestos and other hazardous materials.
3.4.4: After the Contract has been executed, the Owner, Construction Manager and Architect will
consider a formal request for the substitution of products in place of those specified only under the
conditions set forth in the General Requirements (Division 1 of the Specifications).
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3.4.5: By making requests for alternatives/substitutions, the Contractor:
.1 Represents he has personally investigated the proposed alternative/substitute product
and determined that it is equal or superior in all respects to that specified.
.2 Represents he will provide the same warranty for the alternative/substitution that the
Contractor would for that specified.
.3 Certifies that the cost data presented is complete and includes related costs under this
Contract except the Architect's analysis and redesign costs, and waives claims for
additional costs related to the alternative/substitution when subsequently become
apparent.
.4 Will coordinate the installation of the accepted alternative/substitute making such
changes as may be required for the Work to be complete in all respects.
3.4.6: PROVISION FOR THE USE OF STEEL AND STEEL PRODUCTS MADE IN THE U.S.: In
accotdance with Act 3 of the 1978 General Assembly of the Commonwealth of Pennsylvania, if any
steel or steel products are to be used or supplied in the performance of the contract, only those
produced in the United States as defined therein shall be used or supplied in the performance of
the contract or any subcontracts thereunder.
3.4.6.1: In accord with Act 161 of 1982, cast iron products shall also be included and produced in
the United States. Act 141 of 1984 further defines "steel products" to include machinery and
equipment. The act also provides clarifications and penalties.
3.4.7: COMPETENT WORKMEN: No workmen shall be regarded as competent first class, within
the meaning of this Act, except those who are duly skilled in their respective branches of labor, and
who shall be paid not less than such rates of wages and for such hours work as shall be
established and current rates of wages paid for such hours by employers of organized labor in
doing of similar work in the district where work is being done. According to Section 752 of the
Public School Code of 1949, no person shall be employed to do work under such contract except
competent and first class workmen and mechanics.
3.4.8: All workmen on this project must have Pennsylvania State Police Act 34 Clearance Affidavit.
Attesting to that Clearance should be carried by each individual workman when on the premises or
in the building. A copy of the Affidavit must be filed with the District Administration Office, prior to
that workman performing work on the site. The cost of obtaining this "Clearance" and required
badges shall be the responsibility of the Contractor.
3.4.9: Act 151-PA Child Abuse History Clearance: Successful bidder shall have a background
check done on all employees and all subcontractors' employees who will be working in or around
district buildings who will have "direct contact with students". Background checks shall be in
accordance with Act 151 of 1994. The Contractor shall submit the original to the Owner prior to an
employee beginning work. The cost of obtaining this "Clearance" and required badges shall be the
responsibility of the Contractor.
3.4.10: PENNSYLVANIA PREVAILING WAGE RATES: If the total estimated project sum is
greater than $25,000.00, this regulation and the general Pennsylvania prevailing minimum wage
rates, (Act 442 of 1961, P.L. 987, amended) as determined by the Secretary of Labor and Industry,
which shall be paid for each craft or classification of all workers needed to perform the contract
during the anticipated term therefore in the locality in which public work is performed, are made part
of this specification.
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3.4.11: No workmen shall be employed on this work except in accordance with the classifications
set forth in the decision of the Secretary of Labor and Industry. If additional or different
classifications are necessary, the procedure set forth in Section 7 of the Regulations for
Pennsylvania Prevailing Wage Act shall be followed.
3.4.12: All workmen employed or working on this work shall be paid unconditionally, regardless of
whether any contractual relationship exists or the nature of any contractual relationship which may
be alleged indirectly, except authorized deductions, the full amounts due at the time worked in the
appropriate classification. This Contract does not prohibit payment of more than the general
prevailing minimum wage rates as determined by the Secretary of Labor and Industry.
3.4.13: Each Contractor and Subcontractor shall post for the entire period of construction the wage
determination decisions of the Secretary of Labor and Industry, including the effective date of any
changes thereof, in a prominent and easily accessible place or places at the site of the work and at
such place or places used by them to pay workmen their wages. Subcontractors need not post
such decisions in the same places where they are posted by Contractors. The posted notice of
wage rates shall contain the following information:
1. Name of Project.
2. Name of Public Body for which it is being constructed.
3. The crafts and classifications of workmen listed in the Secretary's general prevailing
minimum wage rate determination for the particular project.
4. The general prevailing minimum wage rates determined for each craft and
classification and the effective date' of any changes.
5. A statement advising workmen that if they have been paid less than the general
prevailing minimum wage for their job classification, or if the Contractor or
Subcontractor or both are not complying with the Act or the Regulations in any manner
whatsoever, they may file a protest in writing with the Secretary of Labor and Industry
within three months of the date of the occurrence, objecting to the payment of any
Contractor or Subcontractor to the extent of the amount or amounts due or to become
due to them as wages for work performed on the public work project. Any workmen
paid less than the rate specified in the Contract shall have a civil right of action for the
difference between the wage paid and the wages stipulated in the Contract, which right
of action shall be exercised within six months from the occurrence of the event creating
such right.
3.4.14: The Contractor and each Subcontractor shall keep accurate records showing the name,
craft, classification, number of hours worked per day and actual hourly rate of wage paid (including
employee benefits) to each workman employed by him in connection with work. Such record shall
include any deductions from each workman. The record shall be preserved for two years from the
date of payment and shall be open at all reasonable hours to the inspection of the public body
awarding the Contract and to the Secretary of Labor and Industry or his duly authorized
representatives.
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3.4.15: Apprentices shall be limited to such numbers as shall be in accord with a bonafide
apprenticeship program registered with and approved by the Pennsylvania Apprenticeship and
Training Council and only apprentices whose training and employment are in full compliance with
the provisions of the Apprenticeship and Training Act approved July 14,1961 (Act No. 304) and the
Rules and Regulations issued pursuant thereto shall be employed on the public work project. Any
workman using the tools of a craft who does not qualify as an apprentice within the provisions of
this subsection shall be paid the rate predetermined for journeymen in that particular craft and/or
classification.
a.
Wages shall be paid without any deductions except authorized deductions. Employers
not parties to a contract requiring contributions for employee benefits which the
Secretary has determined to be included in the general prevailing minimum wage rate
shall pay the monetary equivalent thereof directly to the workmen.
Payment of compensation to workmen for work performed on public work on a lump
sum basis, or a piece work system, or a price certain for the completion of a certain
amount of work, or the prOduction of a certain result shall be deemed a violation of the
Act and these Regulations, regardless of the average hourly earning resulting
therefrom.
Each Contractor and each Subcontractor shall file a statement each week and a final
statement at the conclusion of the work on the contract with the contracting agency,
under oath, and in form satisfactory to the Secretary, certifying that all workmen have
been paid wages in strict conformity with the provisions of the contract as prescribed by
this Section 3 of these Regulations, or if any wages remain unpaid to set forth the
amount of wages due and owing to each workman respectively.
b.
c.
3.4.16:
agrees:
DISCRIMINATION PROHIBITED: According to 62 Pa.C.SA 9 3701, the Contractor
1. In the hiring of employees for the performance of work under the contract or any
subcontract, no contractor, subcontractor, or any person acting on behalf of the
contractor or subcontractor shall by reason of gender, race, creed, or color,
discriminate against any citizen of this Commonwealth who is qualified and available
to perform the work to which the employment relates.
2. No contractor or subcontractor or any person on their behalf shall in any manner
discriminate against or intimidate any employee hired for the performance of work
under the contract on account of gender, race, creed, or color.
3. The contract may be canceled or terminated by the government agency, and all
money due or to become due under the contract may be forfeited for a violation of the
terms or conditions of that portion of the contract.
3.4.17: HUMAN RELATIONS ACT: The provisions of the Pennsylvania Human Relations Act,
Act 222, of October 27, 1955 (P.L. 744) (43 P.S. Section 951, et. seq.) of the Commonwealth of
Pennsylvania prohibit discrimination because of race, color, religious creed, ancestry, age, sex,
national origin, handicap or disability, by employers, employment agencies, labor organizations,
contractors and others. The Contractor shall agree to comply with the provisions of this Act as
amended that is made part of this specification. Your attention is directed to the language of the
Commonwealths' non-discrimination clause in 16 PA. Code 49.101.
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3.5 WARRANTY.
3.5.1: In the fifth line, delete the words "... .not inherent".
3.5: Add Subparagraphs 3.5.2 and 3.53:
3.52: Materials and workmanship shall be guaranteed for a minimum of one year from Date of
Substantial Completion for entire project, except where a longer period is specified, and each
Contractor shall make good without cost to the Owner any defective portion of the work of which the
Contractor is notified within one year of the date of Substantial Completion. Repair or replacement
of such defects shall extend to other work damaged thereby. Owner's rights and remedies
hereunder shall be in addition to any other rights and remedies which Owner may have pursuant to
law or this contract. Owner shall be entitled to all other rights and remedies provided by this
contract and by law, in addition to the Warranty rights and remedies set forth in this paragraph.
3.5.3: The Contractor shall forward guarantee and warranty registration cards to the manufacturers
in the name of the Owner showing date of acceptable substantial completion of the work as the
beginning date for guarantee and warranty periods.
3.6 TAXES.
3.6.1: At the end of this Subparagraph, insert, "Unless a valid exemption or exclusion exists. Owner is
excluded from sales or use tax in Pennsylvania on certain transactions. Contractor and all
subcontractors shall bid and shall purchase as excluded from Pennsylvania sales and use tax all
tangible personal property as defined by the Pennsylvania Oepartment of Revenue in its regulations and
in accord with Act 45 of 1998. Forms to be accomplished by the Contractor to obtain this exemption
when applicable may be obtained from the Owner."
3.6.2: Add new Subparagraphs 3.6.2, 3.6.3, and 3.6.4:
3.6.2: The Contractor hereby accepts and assumes exclusive liability for and shall indemnify,
protect and save harmless the Architect, and Owner from and against the payment of:
.1 Contributions, taxes or premiums (including interest and penalties thereon) which may
be payable under the Unemployment Insurance Law of any State, the Federal Social
Security Act, Federal, State, County and/or Municipal Tax Withholding Laws, or any
other laws, measured upon the payroll of or required to be withheld from employees,
by whomever employed, engaged in the Work.
.2 Sales, use, personal property and other taxes (including interest and penalties thereon)
required by any Federal, State, County, Municipal or other law to be paid or collected
by the Contractor or any of its subcontractors or vendors or any other person acting
for, through or under it or any of them, by reason of the performance of the Work or
the acquisition, ownership, furnishing or use of any materials equipment, supplies,
labor, services or other items for or in connection with the Work.
.3 Pension, welfare, vacation, annuity and other union benefit contributions payable under
or in connection with labor agreements with respect to all persons, by whomsoever
employed, engaged in the Work.
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3.6.3: The Contractor shall base its bid on the properly charged, collected and remitted sales tax
due on only those "construction activities" which are presumed to become a permanent part of the
real estate in accordance with 61 Pa. Code et seq. Section 31.11. The Contractor shall not include
in its bid any tax for "sales activities" which do not become a permanent part of the real estate in
accordance with 61 Pa. Code et seq. Section 31.11. Below as "Appendix 3.6.3" is a list of items.
For all such "sales activities" the Contractor will receive an appropriate executed blanket exemption
certificate from the Owner.
"Appendix 3.6.3:
(PP) "Building Machinery and Equipment." Generation Equipment, Storage Equipment,
Conditioning Equipment, Distribution Equipment and Termination Equipment which shall be
limited to the following:
1. Air Conditioning limited to Heating, Cooling, Purification, Humidification,
Dehumidification, and Ventilation;
2. Electrical;
3. Plumbing;
4. Communications limited to Voice, Video, Data, Sound, Master Clock and Noise
Abatement;
5. Alarms limited to Fire, Security and Detection;
6. Control System limited to Energy Management, Traffic and Parking Lot and Building
Access;
7. Medical System Limited to Diagnosis and Treatment Equipment, Medical Gas,
Nurse Call and Doctor Paging;
8. Laboratory System;
9. Cathodic Protection System; or
10. Furniture, Cabinetry and Kitchen Equipment. The term shall include Boilers,
Chillers, Air Cleaners, Humidifiers, Fans, Switchgear, Pumps, Telephones,
Speakers, Horns, Motion Detectors, Dampers, Actuators, Grilles, Registers, Traffic
Signals, Sensors, Card Access Devices, Guardrails, Medial Devices, Floor Troughs
and Grates, and Laundry Equipment, Together with Integral Coverings and
Enclosures, whether or not the Item Constitutes a Fixture or is otherwise affixed to
the Real Estate; whether or not damage would be done to the item or its
surrounding upon removal; or whether or not the item is physically located within a
real estate structure. The term "Building Machinery and Equipment" shall not
include Guardrail Posts, Pipes, Fittings, Pipe Supports and Hangers, Valves,
Underground Tanks, Wire, Conduit, Receptacle and Junction Boxes, Insulation,
Ductwork and Coverings thereof.
3.6.4: The Owner or its agent shall be afforded access at Owner's expense to Contractor's and
all subcontractors' records, books, correspondence, instructions, drawings, receipt vouchers,
memoranda, and similar data relating to this contract, for the purpose of documenting and
substantiating any such refund claim. The Contractor shall preserve all such records for a period
of three years, or for such longer period as may be required by law after final payment. The
Contractor agrees to the following:
3.6.4.1: To assign and transfer to the Owner all its rights to sales and use tax which may be
refunded as a result of this claim, or a claim for refund for materials purchased in connection
with this contract.
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3.6.4.2: Not to file a claim for refunds or any sales or use tax which is the subject of this
assignment.
3.6.4.3: To include Paragraphs 3.6.4, 3.6.4.1, and 3.6.4.2 in full in any contracts with
subcontractors. The Contractor further agrees that it will assist the Owner in the preparation
and submission of petitions for refund pertaining to those taxes.
3.7 PERMITS, FEES, AND NOTICES.
3.7.1: Delete Subparagraph 3.7.1 and insert the following:
3.7.1: Owner shall apply, secure and pay for the Carlisle Borough Building permit fees. Each Prime
Contractor shall secure and pay for all other permits and governmental fees, licenses, and inspections
necessary for proper execution of and completion of the Contract which are legally required when bids
are received.
3.7.2: Add Subparagraphs 3.7.2.1 through 3.7.2.3:
3.7.2.1: On October 26, 1972, House Bill No. 1969 was enacted into law. This Act, No. 247,
became effective on November 25, 1972. It requires that bidders on construction contracts for the
Commonwealth of Pennsylvania be advised of those provisions of Federal and State statutes, rules,
and regulations dealing with the prevention of environmental pollution and the preservation of public
natural resources that affect the project on which bids are being received. The Contractor is hereby
directed to comply with relevant statutes and regulations.
3.7.2.2: The Contractor shall fully comply with said Act and with each statute, rule and regulation
listed which affects the Contract, shall ensure compliance by all Subcontractors under him and shall
thoroughly acquaint himself with the terms of the statutes, rules, and regulations in effect at the
time of bidding and shall include in his bid price all cost of complying with the terms of the listed
statutes, rules and regulations. No separate or additional payment will be made for such
compliance. In the event that the statutes, rules and regulations are amended, or if new statutes,
rules or regulations become effective, after date of receipt of bids upon receipt of documentation
which cause the Contractor to perform additional work, the Owner may issue a Change Order or
deviation request setting forth the additional work that must be undertaken. This Change Order or
deviation request shall not invalidate the Contract.
3.7.2.3: It is the responsibility of the Contractor to determine what local ordinances, if any, will
affect his work. He shall check for any county, city, borough, or township rules or regulations
applicable to the area in which the Project is being constructed and in addition, for any rules or
regulations of other organizations having jurisdiction, such as chambers-of-commerce, planning
commission, industries, or utility companies who have jurisdiction over lands which the Contractor
occupies. Any costs of compliance with local controls shall be included in the prices bid, even
though documents of such local controlling agencies are not listed herein.
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3.7.3: Delete Subparagraph 3.7.3 in its entirety and insert the following:
3.7.3: It shall be the obligation of the Contractor to review the Contract Documents and to
determine and to notify the Owner, the Architect and the Construction Manager of any discrepancy
between building codes and regulations of which the Contractor has knowledge or should be
reasonably able to determine. The Contractor shall not violate any zoning, setback or other
requirements of applicable laws, codes and ordinances, or of any recorded covenants of which the
Contractor has knowledge. If the Contractor observes that portions of the Contract Documents are
at variance with applicable laws, statutes, ordinances, building codes, rules or regulations, the
Contractor promptly shall notify the Architect and Construction Manager in writing, and necessary
changes shall be accomplished by appropriate Modification.
3.7.4: In the first line, after the word "Contractor", add the words, ", any of its Subcontractors or any
Subcontractor", and delete the words "knowing it to be".
3.8 ALLOWANCES.
Delete Paragraph 3.8 in its entirety.
PROHIBITION ON CASH ALLOWANCES: Cash allowances are not to be included in the bid
specifications.
3.9 SUPERINTENDENT.
3.9.1: Add the following sentence:
3.9.1: "The Superintendent shall be satisfactory to the Architect, Construction Manager, and the Owner,
and the Contractor shall not replace the Superintendent without the prior written consent of the Owner,
or Construction Manager, which consent shall not unreasonably be withheld.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULE.
3.10.1: Delete Subparagraph 3.10.1 in its entirety and insert the following:
3.10.1: Within fourteen days of the Award of the Contract, the Contractor shall prepare and submit
a Preliminary Construction Schedule to the Construction Manager which shall provide for the
expeditious and practical execution of the Work in accord with the Proposed Construction
Schedule. The Contractor shall assist the Construction Manager in coordinating the Preliminary
Construction Schedule and producing therefrom the Project Construction Schedule in accord with
Section 01321.
3.10.2: Add Subparagraph 3.10.2.1:
3.10.2.1: The Contractors shall cooperate and consult with other Prime Contractors during the
construction of this Project. The Contractor shall schedule and execute his Work so as to avoid
delay to other contractors. The Contractor is financially responsible to the other prime contractors
for undue delay caused by him to other prime contractors on the Project. The Contractor shall
defend and hold harmless the Owner, Architect and Construction Manager for any claims, losses or
delays of any kind whatsoever made by other contractors arising from delays caused by Contractor.
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3.10.3: Delete Subparagraph 3.10.3 in its entirety and insert the following:
"3.10.3: The Contractor shall immediately, after being awarded the contract, prepare and submit to
the Architect and the Construction Manager, a schedule of Shop drawing submittals which will be
reviewed by the Architect for the orderliness of the submittals by the Contractor. This schedule
shall be provided to the Architect for approval by the Architect within fourteen days of receipt of
contract by the Contractor. The schedule shall be coordinated with the Project's Construction
Schedule and shall allow the Architect reasonable time to review submittals."
3.12 SHOP DRAWINGS, PRODUCT DATA, AND SAMPLES.
3.12.5: Add Subparagraph 3.12.5.1:
3.12.5.1: The Contractor shall forward to the Construction Manager a copy of the Transmittal covering
each such submittal.
3.15 CLEANING UP.
3.15.1: At the end of the first sentence, delete the words:
"caused by operations under this contract".
3.15.1: After the first sentence, insert:
"The Contractor shall clean the work areas daily and should the occasion arise that the
Construction Manager must direct the Contractor to clean an area, the Contractor shall do so within
24 hours. If the Contractor fails to clean up the specific area within the allotted time, the Owner
may do so immediately, and the cost thereof shall be charged to the Contractor. Refer to Sections
01500 and 01700."
3.18 INDEMNIFICATION.
3.18.1: Delete Subparagraph 3.18.1 in its entirety and insert the following:
3.18.1: To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the
Owner, Architect and Construction Manager and consultants, agents and employees of any of them
from and against claims, damages, losses and expenses, including but not limited to, attorneys
fees and defense costs, arising out of or resulting from performance of the Work, but only to the
extent caused in whole or in part by the acts or omissions of the Contractor, a Subcontractor,
anyone directly or indirectly employed by them or anyone for whose acts or omissions they may be
liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a
party indemnified hereunder. Such obligation shall not be construed to negate, abridge or reduce
other rights or obligations of indemnity which would otherwise exist as to a party or person
described in this Paragraph 3.18. The Contractor agrees to and does hereby assume on behalf of
the Owner, Architect, and Construction Manager the defense of any action at law or in equity which
may be brought against such indemnities, upon their demand, the amount of any judgment that
may be entered against such indemnities in any such action. In the event that any such claim, loss,
cost, expense, liability, damage or injury arises or is made, asserted, threatened against the Owner
for which the Contractor or its insurer does not admit coverage, or if the Owner reasonably
determines such coverage to be inadequate, the Owner shall have the right to withhold from any
payments due or to become due to the Contractor an amount sufficient to protect the Owner from
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such claim, loss, cost expense, liability, damage or injury, including attorneys' fees and expenses
reasonably necessary for the defense thereof.
3.19 Add new Paragraph:
3.19 REPRESENTATIONS AND WARRANTIES.
3.19.1 The Contractor represents and warrants the following to the Owner (in addition to the other
representations and warranties contained in the Contract Documents), as an inducement to the Owner
to execute the Owner-Contractor Agreement, which representations and warranties shall survive the
execution and delivery of the Owner-Contractor Agreement and the final completion of the Work:
(a) that he is financially solvent, able to pay his debts as they mature and possessed of
sufficient working capital to complete the Work and perform his obligations under the
Contract Documents;
(b) that he is able to furnish the personnel, tools, materials, supplies, equipment and labor
required to complete the Work and perform his obligations hereunder and has
sufficient experience and competence to do so;
(c) that he is authorized to do business in the Commonwealth of Pennsylvania and is
properly licensed by all necessary governmental and public and quasi-public authorities
having jurisdiction over him and over the Work and the site of the Project;
(d) that his execution of the Owner-Contractor Agreement and his performance thereof is
within his duly authorized powers;
(e) that he is familiar with all Federal, State, Municipal and Department laws, ordinances
and regulations, which may in any way affect the work of those employed herein,
including but not limited to any special acts relating to the work or to the project of
which it is a part;
(f) that such temporary and permanent work required by the Contract Documents as is to
be done by him, can be satisfactorily constructed and used for the purposes for which it
is intended, and that such construction will not injure any person or damage any
property;
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(g) that he is familiar with local trade jurisdictional practices at the site of the project;
(h) that he has carefully examined the plans', the specifications and the site of the work,
and that from his own investigations, he has satisfied himself as to the nature and
location of the work, the character, quality and quantity of the surface and subsurface
materials likely to be encountered, the character of equipment and other facilities
needed for the performance of the work, and the general local conditions, and all other
materials which may in any way affect the work or his performance;
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(i)
that he has determined what local ordinances, if any, will affect his work. He has
checked for any county, city, borough, or township rules or regulations applicable to the
area in which the Project is being constructed and in addition, for any rules or
regulations of other organizations having jurisdiction, such as chambers-of-commerce,
planning commission, industries, or utility companies who have jurisdiction over lands
which the Contractor occupies. Any costs of compliance with local controls shall be
included in the prices bid, even though documents of such local controlling agencies
are not listed herein.
ARTICLE 4 ADMINISTRATION OF THE CONTRACT
4.6 ADMINISTRATION OF THE CONTRACT.
4.6.6: At the beginning of the Subparagraph, Add:
"Except as otherwise provided by their agreements with the Owner,".
4.6.10: Change first sentence to read:
"The Construction Manager and the Architect will have the authority to reject Work which does not
conform to the Contract Documents, and to require special inspection or testing, but will take such
action only after mutual consultation."
4.6.10: Delete second and third sentences in their entirety.
4.6.11: Delete Subparagraph 4.6.11 in its entirety and insert the following:
4.6.11: The Contractor shall submit all Shop Drawings, Product Data and Samples to the Architect
for review and send a copy of the Transmittal covering each such submittal to the Construction
Manager.
4.6.12: Delete the second sentence in its entirety and insert:
"Such action shall be taken 14-21 days after receipt so as to cause no delay."
4.6.12: At the end of the Subparagraph, Add:
"A copy of each submittal which has been approved shall be forwarded by the Architect to the
Construction Manager for his records. For any submittal which is not approved the Construction
Manager shall be sent only a copy of the covering transmittal."
4.6.19: In the seventh line, after the word "and", Add: "in the absence of negligence".
4.7 CLAIMS AND DISPUTES.
4.7.5: Add Subparagraphs 4.7.5.4 and 4.75.5:
4.7.5.4: Architectural, engineering, and construction management fees resulting from reinspections
due to the Contractor's failure to satisfactorily, fully and finally complete the Work on or prior to the
Contract Completion Date.
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4.7.5.5: Indemnity obligations.
4.7.7: Delete the third sentence in its entirety.
4.7.9: At end of first sentence, Add:
"...otherwise such claim shaH be waived. The Owner shall not be responsible for actions or inactions
of other contractors."
4.7.9: Add Subparagraph 4.7.9.1:
4.7.9.1: Notwithstanding any provision of the Contract Documents to the contrary, no applicable
statute of limitations shaH be deemed to have commenced with respect to any portion of the Work
which is not in accordance with the requirements of the Contract Documents, which would not be
visible or apparent upon conducting a reasonable investigation and which is not discovered by the
Owner. In such instances, any applicable statute of limitations shaH be deemed to have
commenced on the date of actual discovery by the Owner.
4.9 ARBITRATION.
4.9.1: Delete Subparagraph 4.9.1 in its entirety and insert the foHowing:
4.9.1: Any Claim, disputes or other controversy between the parties to this Agreement, except
controversies or Claims relating to aesthetic effect, arising out of or related to this Agreement or
breach thereof which involve amounts not more than $200,000 (exclusive of interest and costs)
shaH be subject to and decided by arbitration in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Association currently in effect unless the parties
mutuaHy agree otherwise. All demands for arbitration and all answering statements thereto which
include any monetary claim must contain a statement that the total sum or value in controversy
does not exceed $200,000 and the arbitrator(s) shall not have jurisdiction, power or authority to
render a monetary award against any party which exceeds such amount (exclusive of interest and
costs). Claims, disputes or other matters in question between the parties to this Agreement arising
out of or related to this Agreement or breach thereof which involve amounts in excess of $200,000
(exclusive of interest and costs) may be subject to and decided by arbitration only upon mutual
agreement of the parties.
.1 Any arbitration arising out of or relating to this Agreement may include, by
consolidation, joinder or in any other manner, any additional person or entity not a party
to this Agreement.
.2 The award rendered by the Arbitrators shall be final, and judgment may be entered
upon it in accordance with the applicable law in any court having jurisdiction thereof.
3 All proceedings and hearings in any arbitration shall be held in Cumberland County,
Pennsylvania.
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.4:
In addition and prior to arbitration, the parties shall endeavor to settle disputes by
mediation under the Construction Industry Mediation Rules of the American Arbitration
Association currently in effect. Mediation shall commence, unless otherwise agreed,
within the same time limits stipulated in Subparagraphs 4.9.1, 4.9.4, and 4.9.4.1 for the
filing of a notice of a claim in arbitration. Such time limits for arbitration shall then be
extended for the duration of the mediation process, plus ten days."
4.9.2: Add Subparagraphs 4.92.1 through 4.9.2.3:
4.9.2.1: If any arbitration proceeding commenced pursuant to this Agreement, the parties shall be
entitled to conduct pre-hearing discovery for a period ninety days, which discovery may include
depositions, written interrogatories not to exceed forty in number (inclusive of subparts) and written
requests for the inspection and reproduction of relevant documents or tangible things. Responses
to written interrogatories and document requests shall be served within thirty days of service
thereof. With respect to expert testimony and discovery related thereto, Rule 4003.5 of the
Pennsylvania Rules and Civil Procedure shall apply. The arbitrator(s) shall have the authority to
issue appropriate orders to enforce the parties' entitlement to discovery hereunder and, upon
disobedience of any such order, may prohibit the disobedient party from introducing in evidence
designated documents, things or testimony.
4.9.2.2: A party who files a notice of demand for arbitration must assert in the demand all Claims
then known to that party on which arbitration is permitted to be demanded. When a party fails to
include a claim fails to include a Claim through oversight, inadvertence or excusable neglect or
when a Claim has matured or been acquired subsequently, the arbitrator or arbitrators may permit
amendment only if reasonable notice is given prior to any evidentiary hearing.
4.9.2.3: In the event of any litigation or arbitration between the parties hereunder, all attorneys fees
and other costs shall be borne by the party determined to be at fault and, in the event that more
than one party is determined to be at fault, shall be allocated equitably by the court or arbitrator.
4.9.5: LIMITATION ON CONSOLIDATION OR JOINOER. Oelete the first three sentences of
Subparagraph 4.9.5 in their entirety and insert the following:
"In any arbitration commenced pursuant hereto, either Owner or Contractor may join other
Contractors to such proceeding either by consolidation of proceedings or by joinder where such
joinder or consolidation is necessary to afford complete relief. In any arbitration commenced
pursuant hereto, the Owner may join the Construction Manager and/or the Architect to such
proceeding, either by consolidation of proceedings or by joinder where such joinder or consolidation
is necessary to afford complete relief. In any arbitration proceeding commenced pursuant to the
agreements between the Owner and the Construction Manager and Architect, either the Owner, the
Construction Manager or the Architect may join the Contractor to such proceeding either by
consolidation of proceedings or by joinder where such joinder or consolidation is necessary to
afford complete relief."
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ARTICLE 5 SUBCONTRACTOR
5.2 AWARDS OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK.
5.2.1: Delete the first sentence, and insert:
"No later than thirty days subsequent to the full execution of the Agreement, the Contractor shall
furnish the Owner, the Construction Manager, and the Architect, in writing, (1) the name, trade, and
subcontract amount for each subcontractor, and (2) the names of all persons or entities proposed
as manufacturers of the products identified in the specifications (including those who are to furnish
materials or equipment fabricated to a special design) and, where applicable, the name of the
installing subcontractor."
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS.
5.4.1: Add new Subparagraph 5.4.1.3:
"5.4.1.3: The Contractor agrees upon Owner's request, to execute whatever instruments Owner
may require to confirm any such assignment."
5.5: Add new Article:
5.5 PAYMENTS TO SUBCONTRACTORS BY THE CONTRACTOR.
5.5.1: The Contractor shall pay each subcontractor, upon receipt of payment from the Owner, an
amount equal to the percentage of completion allowed to the Contractor, on account of such
Subcontractor's Work, less the percentage retained from payments to the Contractor. The Contractor
shall also require each Subcontractor to make similar payments to Sub-subcontractors. All such
payments shall be paid within twenty days as required by 73 P.S. !l1626.
5.6: Add new Article:
5.6 PAYMENTS TO SUBCONTRACTORS BY THE OWNER.
5.6.1: If the Owner fails to approve an Application for Payment for a cause which the Owner,
Construction Manager, and Architect determine is the fault of the Contractor, and not the fault of the
particular Subcontractor, or if the Contractor fails to make payment which is properly due to a particular
Subcontractor, the Owner may pay such Subcontractor directly, less the amount to be retained under his
Subcontract. Any amount so paid by the Owner shall be repaid to the Owner by the Contractor in the
manner set forth in Paragraph 2.4.
5.6.2: The Owner shall have no obligation to pay, or to see to the payment of, any monies to any
Subcontractor. Nothing contained in Subparagraph 5.6.1 shall be deemed to create any contractual
relationship between the Owner and any Subcontractor or to create any rights in any Subcontractor
against the Owner.
5.6.3: The Contractor shall promptly advise the Owner, Construction Manager, and Architect of any
claim or demand by a Subcontractor claiming that any amount is due to such Subcontractor or claiming
any default by the Contractor in any of its obligations to such subcontractor.
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ARTICLE 6. CONSTRUCTION BY OWNER OR BY OTHER CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION WITH OWN FORCES AND TO AWARD
OTHERS CONTRACTS.
6.1.1: Delete the last sentence, and insert:
"This Project will be performed with multiple Prime Contractors as indicated in Section 01101. The
Contractors shall be aware that schedule adjustments will be required to coordinate with the Work
of their Contract with the Work of other Prime Contractors."
6.1.3: Delete Subparagraph in its entirety.
6.2 MUTUAL RESPONSIBILITY.
6.2.4: Delete from the first sentence, first line, the word "wrongfully" and amend the paragraph by
adding the following:
"The Contractor agrees to indemnify and hold the Owner harmless from any claims or damages
brought by a separate Contractor arising out of actions or omissions of the Contractor or his
Subcontractors or suppliers in performing his work under the Contract Documents."
6.2.5: Delete this Subparagraph in its entirety and insert the following:
6.2.5 DISPUTES OR ACTIONS BETWEEN CONTRACTORS.
6.2.5.1: Should the Contractor, either itself or by its subcontractor or sub-subcontractors or
their respective agents, servants, or employees, cause damage or injury to the property or
work of any Prime Contractor or Contractors, or by failing to perform its Work (including the
work of its subcontractor or sub-subcontractors) with due diligence, delay any Prime
Contractor or Contractors, which suffer additional expense or damage as a result, the parties
involved in such dispute shall settle by agreement or arbitrate said claim, dispute or disputes
by referring same to the American Arbitration Association. Said dispute or disputes shall be
determined pursuant to the Construction Industry Arbitration Rules of the American
Arbitration Association then in effect. The Owner will not be a party to disputes or actions
between Prime Contractors or subcontractors concerning such additional expense or
damage. It is agreed by all parties that disputes or actions between Contractors concerning
the additional expense or damage will not delay completion of the work, which shall be
continued by the parties, subject to the rights hereinbefore provided. It is agreed by the
parties to this Contract (the Owner as promisee and that the Contractor as promisor) that the
intent of this clause is to benefit the other Prime Contractors on the project or related projects
and to serve as an indication of the mutual intent of the Owner and the Contractor that this
clause raise such other Prime Contractors to the status of third party beneficiaries only as to
the terms and conditions of Subparagraphs 61.1, 6.2.1, and 6.2.5. The Contractor agrees
that Subparagraphs 6.1.1, 6.2.1, and 6.2.5 are provided as a benefit to the Contractor and,
that they specifically exclude claims against the Owner for delay or other damages.
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6.252: The Contractor agrees that all claims, disputes and other matters in question
between Prime Contractors, which arise out of, or are related to this Contract, or the breach
thereof, as provided in Subparagraph 6.2.5.1, shall be settled by agreement or resolved by
arbitration, in accordance with the Construction Industry Arbitration Rules of the American
Arbitration Association then in effect, unless the parties mutually agree otherwise. This
agreement to arbitrate is in consideration of the fact that all other Prime Contractors agree to
this same arbitration provision, as provided in each separate Prime Contract required for the
construction of this project, and is specifically enforceable under the prevailing arbitration law.
The award rendered by the arbitrators shall be final, and judgment may be entered upon it in
accord with applicable law in any court having jurisdiction thereof. The Owner shall not be a
party to this arbitration.
6.2.5.3: Notice of the demand for arbitration shall be filed in writing with the other Prime
Contractor(s) and with the Philadelphia Regional Office of the American Arbitration
Association. A copy of the demand shall be filed with the Construction Manager and the
Owner. The demand for arbitration shall be made within a reasonable time after the claim,
dispute or other matter in question has arisen. The Owner shall not be a party to the claim,
dispute or other matter in question, but shall be a witness in any arbitration at the request of
any party to the arbitration.
6.2.7: Add Subparagraphs 6.2.7 and 6.2.8:
6.2.7: In case any direct or indirect injury is done to existing street or underground structures
sewers, mains, or to public or private property of any kind, or to any materials or fixtures, by or
because of the work in consequence of any act or omission on the part of the Contractor, his
employees or agents, the Contractor, at his own cost and expense, except where hereinafter
specified otherwise, shall restore such structures, property, or materials to a condition equal to or
similar to that existing before such damage or injury was done, by repairing, rebuilding, or otherwise
as may be required by the Architect.
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6.2.8: If the Contractor shall fail to restore such property or make good such damage, the Owner
may, by contract or otherwise, proceed to repair, rebuild, or otherwise restore such property as may
be necessary, and the cost thereof will be deducted from any money due, or to become due, the
Contractor under this contract; or the Owner may deduct from any money due the Contractor a sum
sufficient to reimburse the Owner of property so damaged.
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7.2 CHANGE ORDERS.
7.2.2: Delete the words "may include", and insert the words "shall be based on".
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7.3 CONSTRUCTION CHANGE DIRECTIVES.
7.3.6: In the first sentence, delete the words:
"...a reasonable allowance for overhead and profit." and insert the words "...an allowance of 10%
for overhead and 5% for profit which shall include the cost of all bonds and insurance." In the event
that the Work is done by a subcontractor the Contractor shall be entitled to an allowance of 10% to
cover both overhead and profit. In the event that equipment is used in the Work the rental value of
such equipment shall be defined as the adjusted monthly Blue Book rental value divided by 163
plus the operator cost."
7.4 MINOR CHANGES IN THE WORK.
7.4.1: In the second sentence, change "through" to "by".
ARTICLE 8. TIME
8.2 PROGRESS AND COMPLETION.
8.2.1: At the end of this Subparagraph, Add:
"The dates listed in the Preliminary Construction Schedule are minimum performance dates and
each Prime Contractor shall agree to schedule, coordinate, and staff in accord with actual progress
of the Work. Each Prime Contractor agrees to increase manpower, increase work hours, and to
increase equipment necessary to maintain projected progress schedule without additional cost to
Owner."
8.2.3: At the end of this Subparagraph, Add:
"Each Prime Contractor agrees to increase manpower, increase work hours, and to increase
equipment necessary to maintain projected progress schedule without additional cost to Owner."
8.2: Add Subparagraphs 8.2.4 through 8.2.7:
8.2.4: It is mutually agreed by and between the parties hereto that time shall be an essential part of
this contract and that in case of the failure on the part of the contractor to complete the contract
within the time specified and agreed upon, the Owner will be damaged thereby; and the amount of
said damages, inclusive of expenses for inspection, superintendence and necessary traveling
expenses, being difficult if not impossible of definite ascertainment and proof, it is hereby agreed
that the reasonable amount of such damages shall be $1000.00 for each and every days' delay, per
phase, per Contractor in finishing the work in excess of the number of days prescribed in the
Preliminary Construction Schedule, and the signed agreed upon Project Construction Schedule;
and the Contractor hereby agrees that said sum shall be deducted from monies due the Contractor
under the Contract or if no money is due the Contractor, the Contractor hereby agrees to pay to the
Owner as liquidated damages, and not by way of penalty, such total sum as shall be due for such
delay
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8.2.4.1: In addition to the Liquidated Damages listed in Subparagraph 8.2.4, the Contractor agrees
to pay all costs for the Construction Manager and Architect to extend their Contract to remain on
the Project due to the failure of the Contractor to complete the Work within the time frame in the
Project Construction Schedule. Damage to other Prime Contractors that are an extension of this
clause, are to be recovered pursuant to Article 6.2 et seq., of the General Conditions of the
Contract and the Supplementary Conditions of the Contract.
8.2.5: APPLICATION OF PROVISIONS.
A. Within fourteen days after Award of Contract, Contractor must present to the Project
Manager a preliminary construction schedule. If shift, premium time, or overtime work
must be utilized to permit timely completion, it should be so noted on the preliminary
schedule. The cost of the shift, overtime or premium time is to be included in the
contractor's bid price. The cost of all schedule submittals is the responsibility of the
Contractor.
B. Working with the contractors, the Construction Manager will finalize the "Project
Construction Schedule". The Construction Manager intends to use the schedule as a
tool to run the project. Weekly updates to the schedule will be provided by the
contractors in a format provided by the Construction Manager. Look-ahead window
schedules will be provided by the Construction Manager to assist the contractors in
planning their new term work in accord with the overall schedules.
8.2.6: PROGRESS MEETINGS.
A. During the construction period, the Contractor shall provide weekly to the Construction
Manager a progress update report showing progress during the previous week and any
changes to accepted schedule. This will be provided in a format issued by the
Construction Manager. Construction Manager will correlate all Contractors' reports to
formulate updated project schedule. Anticipated work for the upcoming week will be
shown in the look-ahead schedule provided by the Construction Manager.
B. There will be weekly meetings during the construction period. The Contractor must
have an on-site coordinator available to attend these meetings and be responsible for
interfacing with the overall planning and coordination effort. Meetings may be held
more or less frequently at the discretion of the Construction Manager.
8.2.7: ADHERENCE TO SCHEDULE.
A. The Owner reserves the right to withhold monthly progress payments if the Contractor
is behind schedule, unless the Contractor documents in writing any delays that are not
the fault of the Contractor and to which the Construction Manager agree.
B. The monthly progress payments will only be released after the Contractor reaches the
status of completion for that month comprehended by the construction schedule.
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8.2.8:
PROCUREMENT SCHEDULE.
A.
Contractor shall provide a Procurement Schedule on the Construction Manager's
format and forms at the first weekly progress meeting which shows items to be
purchased, date of purchase, quoted dates of delivery, current estimated date of
delivery, and last date of contract with the vendor. The Procurement Schedule shall be
updated weekly and presented to the Construction Manager.
8.3 DELAYS AND EXTENSIONS OF TIME.
8.3.1: In the first sentence, after the word "Architect", delete the words "any of the other contractors or
an employee of them".
8.3.1: From the fourth line, delete the words "Owner's own forces".
8.3.1: At the end of this Subparagraph, Add:
"Where the delay arises from acts, omissions, or defaults of another Prime Contractor or the other
Prime's subcontractors and suppliers, then the Contractor will be entitled no extension of time and
its sole remedy will be an arbitration proceeding pursuant to Subparagraph 6.2.5 of the General
Conditions."
8.3.1: Add Subparagraph 8.3.1.1:
8.3.1.1: No such Change Order extending the Contract time shall result in any increased payments
to the Contractor for overhead, extended overhead, general conditions, extended general
conditions, or for any other amounts of any nature.
8.3.3: Delete Subparagraph 8.3.3 in its entirety and insert the following:
8.3.3: The Contractor may not rely on any early completion date set out in any schedule developed
under this Contract, and may not make any delay claims on the basis of such early completion
date. In no event may a Contractor submit a delay claim for the period between the early
completion date set out in any schedule developed under the Contract and the final completion date
set out in such schedule.
8.3.4: Add Subparagraphs 8.3.4 through 8.3.6:
8.3.4: No payment or compensation or claim for damages shall be made to the Contractor as
compensation for damages for any delays or hindrances from any cause whatsoever in the
progress of the Work, notwithstanding whether such delays be avoidable or unavoidable. The
Contractor's sole remedy for delays shall be an EXTENSION OF TIME ONLY, pursuant to and only
in accordance with this Paragraph 8.3, such extension to be a period equivalent to the time lost by
reason of and all of the aforesaid causes, as determined by the Construction Manager. In
consideration for this grant of a time extension, the Owner, the Construction Manager, and/or
Architect shall not be held responsible for any loss or damage or increased costs sustained by the
Contractor through any delays caused by the Owner, Construction Manager or Architect or any
other Contractor or on account of the aforesaid causes or any other cause of delay. In the event the
Contractor shall choose to litigate this clause or issue any loses said litigation, the Contractor shall
reimburse the Owner, Construction Manager, and the Architect for their reasonable attorney's and
expert witness fees and all other costs and expenses incurred by them in the litigation.
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8.3.5: It shall be recognized by the Contractor that he may reasonably anticipate that as the job
progresses, the Construction Manager will be making changes in the Construction Schedule and
that changes in the Construction Schedules will be updated pursuant to Paragraph 3.10.2.
Therefore, no claim for an increase in the Contract Sum for either acceleration or delay will be
allowed for ex1ensions of time pursuant to this paragraph or for other changes in the Construction
Schedules which may be experienced in projects of similar size and complexity.
8.3.6: The Contractors are required to submit at any construction conference considering any claim
and at any proceeding considering an extension of time, and in all subsequent administrative
proceedings, all files, records, and the documents of whatever kind pertaining to the Contractors
performance of the project work, the job budget, the summary of all supporting data worksheets
and other documents prepared in connection with the submittal of the Contractor's successful bid.
ARTICLE 9. PAYMENTS AND COMPLETION
9.2 SCHEDULE OF VALUES.
9.2.1: Delete from the first sentence:
"Before the first Application for Payment, the Contractor shall submit to the Architect, through" and
insert "Within 14 days after the receipt of the Notice to Proceed, the Contractor shall submit to the
Architect, and".
9.3 CERTIFICATES FOR PAYMENT.
9.3.1: In the third and fourth lines, delete the words:
".....for operations completed in accordance with the Schedule of Values" and insert the words "for
Work completed in accordance with the Contract Documents."
9.3.1: Add the following sentence:
"9.3.1: The form of Application for Payment shall be a notarized AlA Document G702/CMa,
Application and Certificate for Payment, Construction Manager-Adviser Edition, supported by AlA
Document G703, Continuation Sheet."
9.3.1.1: At the end of this Subparagraph, Add:
"The Owner may withhold payment on disputed Construction Change Directive amounts."
9.3.1: Add Subparagraph 9.3.1.3:
9.3.1.3: The Contractor shall submit purchase tax information, and appropriate invoices, proof of
purchases, tax exemption certificate: with each Application for Payment.
9.3: Add Subparagraphs 9.3.4 through 9.3.10:
9.3.4: Payments to the Contractor will be made monthly for work completed as of the fifteenth day
of the month, provided that all requirements of the Contract have been and are being complied with.
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9.3.5: Not later than the fifteenth day of the month, the Contractor shall submit to the Construction
Manager, in quadruplicate (4), itemized Application for Payment, supported to the extent required
by the Construction Manager by receipts or other vouchers, showing payments for materials and
labor, payments to Subcontractors and such other evidence of the Contractor's right to payment as
the Construction Manager may direct. One week prior to the agreed day of the month the
Contractor shall provide an informal copy of the payment application to the Construction Manager
for his review. The Construction Manager will advise the Contractor as to whether the application is
acceptable or as to what changes shall be required.
9.3.6: The sum or sums withheld by the contracting body from the Contractor shall be 10 percent
of the amount due the Contractor until 50 percent of the Contract is completed. When the Contract
is 50 percent complete, one-half of the amount retained by the contracting body shall be returned to
the Contractor; provided that the Architect approves the Application for Payment: and provided
further, that the Contractor is making satisfactory progress and there is no specific cause for
greater withholding.
9.3.7: The sum or sums withheld by the contracting body from the Contractor after the Contract is
50 percent completed shall not exceed 5 percent of the value of completed work based on monthly
progress payment requests: provided, however, that in the event a dispute arises between the
contracting body and any separate Contractor, which dispute is based upon increased costs
claimed by one separate contractor occasioned by delays or other actions of another separate
contractor, additional retainage in the sum of one and one-half times the amount of any possible
liability may be withheld until such time as a final resolution is agreed to by all parties directly or
indirectly involved, unless the Contractor causing the additional claim furnished a bond satisfactory
to the contracting body to indemnify such contracting body against the claim. However, all such
moneys retained by the contracting body may be withheld from the Contractor until Substantial
Completion of the Contract.
9.5 DECISIONS TO WITHHOLD CERTIFICATION.
9.5.1: Delete the first sentence, and insert:
"The Construction Manager and the Architect shall not certify payment and shall withhold a
Certificate of Payment in whole or in part to the extent necessary to protect the Owner, if in the
Construction Manager's and the Architect's opinion the representation to the Owner required by
Subparagraph 9.4.3 cannot be made."
9.51.7: Delete the word: "persistent".
9.5.3: Add Subparagraph 95.3:
9.5.3: If the Contractor disputes any determination by the Construction Manager and the Architect
with regard to any Certificate of Payment, the Contractor nevertheless expeditiously shall continue
to prosecute the Work.
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9.6 PROGRESS PAYMENTS.
9.6.1: At the end of this Subparagraph, Add:
"Such payment by the Owner shall not constitute approval or acceptance of any item of cost in the
Application for Payment. No partial payment made hereunder shall be or be construed to be final
acceptance or approval of that portion of the Work to which such partial payment relates or relieve
the Contractor of any of its obligations hereunder with respect thereto."
9.6.2: Add Subparagraph 9.6.2.1:
9.6.2.1: The Contractor shall, at the request of the Owner, Construction Manager, or Architect, prior
to the submission of an Application for Payment, submit an affidavit signed by some or all of the
Contractor's Subcontractors that they have been paid for their portion from previous Applications for
Payment.
9.7 FAILURE OF PAYMENT.
9.7.1: In the first sentence, at the first occurrence of the word "seven"; change "seven" to "twenty-one".
9.7.1: Delete the last sentence in its entirety.
9.8 SUBSTANTIAL COMPLETION.
9.8.1: In the first sentence, after the word "complete"; insert a comma, and add the following:
"including the Contractor's notification of Substantial Completion, requesting inspection for list of
items to be completed, and the receipt of the Architect's list of items to be completed or corrected".
9.8.1: Add Subparagraph 9.8.1.1:
9.8.1.1: The Date of Substantial Completion will be established after receipt of the Contractor's
Notification for Substantial Completion inspection and the Architect's and Construction Manager's
inspection of the Project.
9.8.2: In the first sentence, after the first occurrence of the word "Contractor"; delete the words "and
Construction Manager", and the word "jointly".
9.8.2: Add Subparagraph 9.8.2.1:
9.8.2.1: The Architect will verify, and issue a list of items to be completed or corrected within 14 days
after the receipt of the Contractor's notification for Substantial Completion. Should the Contractor fail to
include their listing of Work that needs to be completed or corrected, the Architect will not be obligated to
inspect the Project until such list is provided.
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9.9 PARTIAL OCCUPANCY OR USE.
9.9: Add new Subparagraphs:
9.9.4: As portions of the Project are completed, and occupied, Contractor shall ensure the
continuing construction activity will not unreasonably interfere with the use, occupancy and quiet
enjoyment of the completed portions thereof.
9.9.5: The Contractor agrees to coordinate the Work with the Construction Manager, the Architect,
and the Owner in order to minimize disturbance to occupied portions of the structure. In the event
performances or tests are conducted in close proximity to the Work in progress, the Contractor
agrees to cease all work which may disturb the Owner's occupants at the site.
9.10 FINAL COMPLETION AND FINAL PAYMENT.
9.10.3.1: Add new Subparagraph:
"9.10.3.1: If more than one inspection for Final Completion is required, the Contractor will be billed
and responsible for the professional fees and services of the Architect and Construction Manager.
Following Substantial Completion, in the event Contractor or its subcontractor fails to complete the
list of items of the Work instructed by the Architect to be corrected or completed within 14 days
after the date of Substantial Completion, the Owner may (i) exercise any available remedies to
correct or complete deficient work or retain a third party to correct or complete such work at the
cost of the defaulting contractor; and (ii) retain and deduct from any payments or retention
otherwise due to the defaulting contractor any fees and expenses for services required to be
provided by the Construction Manager and the Architect more than 21 days after the date of
Substantial Completion."
ARTICLE 10. PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS.
10.1.1: Insert the following
"within 14 days after the receipt of the Notice to Proceed".
10.1.1.1: Prior to performing any Work on the project site, the Contractor shall submit to the
Construction Manager its Project Safety and Health Program fully describing the Contractor's
commitments for meeting its obligations to provide safe and healthful working conditions for its
employees, and generally contribute and enhance safety at the project site. The Contractor's program
shall reference federal and state OSHA standards and other rules and regulations applicable to
construction activities on the project. The Contractor's Project Safety and Health Program shall include,
as a minimum, the following:
A. New Hire Safety and Orientation Program: Each new or reassigned employee of the
Contractor shall receive a thorough safety orientation including employer/employee
responsibilities under federal/state OSHA regulations, ear protection in high noise level areas,
respiratory protection, Material Safety Data Sheets (MSDA), fire protection, first aid facilities,
and look-out procedures on electrical equipment. Attendance at the Orientation program
meeting is required and records kept on file in the Contractor's office for review.
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B. Weekly Tool Box Safety Meetings: Contractor shall conduct Weekly Tool Box Safety
Meetings to provide employees with current safety information. Attendance is required and
records kept on file in the Contractors office for review.
10.2 SAFETY OF PERSONS AND PROPERTY.
10.2.3: Add the words:
"The Contractor shall also be responsible, at the Contractor's sole cost and expense; for all
measures necessary to protect any property adjacent to the Project and improvements therein. Any
damage to such property or improvements shall be promptly repaired by the Contractor
responsible."
ARTICLE 11. INSURANCE
11.1 CONTRACTOR'S LIABILITY INSURANCE.
11.1.1: In the first sentence, delete "The Contractor shall purchase from and maintain in a company, or
companies lawfully authorized to do business in the jurisdiction in which the project is located", and
insert:
"From signing of the Contract until 30 days after Final Payment, the Contractor shall at his own
expense, purchase and maintain insurance in companies properly licensed to do business in the
Commonwealth of Pennsylvania and which are having an A.M. BEST RATING of A- or better, and
being satisfactory to Owner, Construction Manager, and Architect, and which are licensed to
practice business in the Commonwealth of Pennsylvania."
11.1.2: At the end of this Subparagraph, Add:
"Insurance shall be carried with companies which are financially responsible. If any such insurance
is due to expire during the construction period, the Contractor shall not permit the coverage to lapse
and shall furnish evidence of continued coverage to the Owner, the Construction Manager, and the
Architect for record."
11.1.2: Add Subparagraphs 11.12.1 through 11.1.2.5:
11.1.2.1: Workmen's Compensation includinq Occupational Disease, and Employer's Liability
Insurance:
a. Statutory - Amounts and coverage as required by Commonwealth of Pennsylvania
Workmen's Compensation laws.
b. Employer's Liability at least $500,000 each accident; $500,000 disease policy limits;
$500,000 disease each employee.
11.12.2: Public Liability including coverage for direct operations, sublet work, personal and
advertising injury, bodily injury, property damage with explosion, collapse, and underground hazard
coverage (X, C, U) contractual liability, products and completed operations with limits not less than
those stated below.
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$1,000,000
a.
General Aggregate
(Other than Products and Completed Operations)
b.
Products and Completed Operations Aggregate
$1,000,000
c.
Personal and Advertising Injury
$1,000,000
$1,000,000
d.
Each Occurrence
e. Products and Completed Operations Insurance shall be maintained for a minimum period of
two years after final payment and Contractor shall continue to provide evidence of such
coverage to Owner on an annual basis during the aforementioned period.
11.1.2.3: Comprehensive Automobile Liability Insurance including coverage for owned, non-owned,
and hired vehicles with limits not less than those stated below.
a. Bodily Iniury and Property Damaqe Combined
Each Occurrence $1,000,000
11.1.2.4: Umbrella Liability policy minimum coverages to override all comprehensive liability
policies.
General; Plumbing; H.V.A.C.; and Electrical Contracts
$5,000,000
Landscaping; Roofing: Aluminum Entrances and Windows;
Acoustical, Drywall, and Plaster; Resilient Flooring and Carpeting;
Painting; Visual Display Boards; Food Service Equipment;
Industrial Arts Equipment; General Casework; Library Casework;
Science Casework: Fire Protection; and Communications Contracts
$2,000,000
11.1.2.5: Include the Owner, Construction Manager, and the Architect as an additional insured
under Contractor's Public Liability and Umbrella Excess Liability Policies.
11.1.3: Add Subparagraph 11.1.3.1:
,
11.1.3.1: Contractor shall submit to the Owner, through the Construction Manager, within seven
days of the Award of the Contract, an appropriate Certificate of Insurance which certifies that
Contractor is covered by insurance requirements of Article 11.1, Subparagraphs 11.1.2.1 through
11.1.2.5. Certificate of Insurance shall be accompanied by a notarized letter from the Contractor's
Insurance Carrier advising the Owner to what degree the aggregate limit has been impaired.
Further, the Contractor fully understands that failure to timely submit the Certificate of Insurance
shall give the Owner the option to withdraw the award and forfeit the bidders bid bond.
A. Contractor's Certificate of Insurance shall be submitted to the Owner, through the
Construction Manager, on the standard "Acord" Form.
1. Contractor shall require the Insurance Company to modify the cancellation reporting
policy (as written in the lower righthand of the "Acord" Form) to read as follows:
a. Should any of the above described policies be cancelled before the expiration
date thereof, the issuing company will mail 60 days written notice to the
certificate holder named to the left, in accord with the requirements of ACT 86 of
the Commonwealth of Pennsylvania.
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B. Failure by the insuring company to properly notify the named and additional insured shall not
relieve the insurer of the insurance obligations and liabilities.
11.2 OWNER'S LIABILITY INSURANCE.
11.2.1: Add the following:
11.2.1.1: The Owner shall provide the following kinds of insurance for the project:
a.
General Aggregate
(Other than Products and Completed Operations)
$1,000,000
b.
Products and Completed Operations Aggregate
$1,000,000
$1,000,000
$1,000,000
c.
Personal and Advertising Injury
d.
Each Occurrence
11.3 PROPERTY INSURANCE.
11.3.1.1: Add the following:
"Owner will provide "ALL RISK" Builders Risk Insurance coverage without Change Order, as
stipulated, but requires that Contractor be responsible for the first $1,000, per occurrence, of any
loss under this insurance. No coverage for Contractor's equipment and/or tools will be included."
11.3.1.2: Add the following:
"In accord with the provisions of this Article, the Owner hereby notifies the Contractors that he
(Owner) does not intend to carry Property Insurance on construction materials or equipment stored
on or off site, or in transit. Each Contractor shall supply this coverage. The Owner will provide
coverage for alterations and additions to existing structure under the Owner's existing policy."
"Note: The Contractor should be aware of any "BOOM" Exclusion in his insurance coverage for
Contractor's Equipment."
11.4 PERFORMANCE BOND AND PAYMENT BOND.
11.4.1: Add the following:
"PERFORMANCE AND LABOR AND MATERIAL PAYMENT BONDS: the contractor shall provide
a performance bond and a labor and material payment bond, each in the amount of 100% of the
contract price, before the award of the contract. (Sections 756 and 757 of the Public School Code
of 1949, as amended, and the Public Works Contractors Bond Law of 1967). Contractor shall also
provide a Maintenance Bond for workmanship and materials in an amount not less than 10% of the
Contract Price for a period of one year from the date of Substantial Completion. Each bond shall
be with surety licensed to do business in the Commonwealth of Pennsylvania with a minimum A.M.
Best Rating of A- or better and acceptable to the Owner and each payable to the Owner.
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11.4.1: Insert Subparagraphs 11.4.1.1 through 11.4.1.6:
11.4.1.1: The Contractor shall deliver the required bonds to the Owner on the date the Agreement
is entered into, or if the Work is to be commenced prior thereto in response to a letter of intent, the
Contractor shall, prior to the commencement of the Work, submit evidence satisfactory to the
Owner that such bonds will be furnished.
11.4.1.2: The Contractor shall require the attorney-in-fact, who executes the required bonds on
behalf of the surety, to affix a certified and current copy of the power of attorney to each of the
bonds.
11.4.1.3: The costs of all bonds furnished hereunder shall be included in the Contract Sum.
11.4.1.4: Upon the request of any person or entity appearing to be a potential beneficiary of bonds
covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a
copy of the bonds or shall permit a copy to be made.
11.4.1.5: If any Surety hereunder makes any assignment for the benefit of creditors or commits any
act of bankruptcy, or is declared bankrupt, or files a voluntary petition for bankruptcy, or in the
reasonable opinion of the Owner is insolvent, the Contractor shall immediately furnish and maintain
another Surety satisfactory to the Owner.
11.4.1.6: If the Owner is damaged by the failure of the Contractor to purchase or maintain any bond
required by these Contract Documents, without the written consent of the Owner, then Contractor
shall pay all costs incurred by the Owner, including, but not limited to, reasonable attorney's fees.
Add new Article:
11.5 INSURANCE CARRIERS.
11.5.1: If any party is damaged by the failure of the other to purchase or maintain insurance required
under Article 11 and so notifies the other party, then the party who failed to purchase or maintain the
insurance shall bear all reasonable costs properly attributable thereto.
11.5.2: Whenever the Contractor is required under these Contract Documents to furnish insurance
coverage, all policies of insurance so furnished shall be issued by an insurance company or by
insurance companies qualified to do business in the Commonwealth of Pennsylvania.
ARTICLE 12 UNCOVERING AND CORRECTION OF WORK
12.2 CORRECTION OF WORK.
12.21: Add the word, ", Owner," after the phrase "Construction Manager".
12.2.1: Add Subparagraph 12.2.1.1:
12.2.1.1: If prior to the Date of Substantial Completion, the Contractor, a Subcontractor or anyone
for whom either is responsible uses or damages any portion of the Work, including, without
limitation, mechanical, electrical, plumbing and other building systems, machinery, equipment or
other mechanical device, the Contractor shall cause such item to be restored to "like new" condition
at no expense to the Owner.
@ 2000 by Foreman Architects Engineers
00800-37
98146
9/21/2000
DOCUMENT 00800
SUPPLEMENTARY CONDITIONS
12.2.2: Add Subparagraphs 12.2.2.1 and 12.2.2.2:
12.2.2.1: The obligations under Paragraph 12.2 shall cover any repairs and replacement to any part
of the Work or other property caused by the defective Work.
12.2.2.2: Upon completion of any Work under or pursuant to this Subparagraph 12.2.2, the one
year correction period in connection with the Work requiring correction shall be renewed and
recommence.
12.2.4: At the end of the third sentence, fourteenth line, Add: "and attorneys' and "accountants' fees
and expenses".
12.2.4: The last sentence is amended by the words: "immediately upon demand."
ARTICLE 13. MISCELLANEOUS PROVISIONS
13.5 TESTS AND INSPECTIONS.
13.5.1: At the end of second sentence, add the words:
", including the cost of retesting for verification of compliance if necessary, until the Architect
certifies that the Work in question does comply with the requirements of the Contract Documents,
and all such costs shall be included in computing the Contract Sum."
13.6: INTEREST.
13.6.1: Delete Subparagraph 13.6.1 in its entirety and insert the following:
13.6.1: Final Payment due the Contractor from the contracting body after Substantial Completion of
the Contract shall bear interest at a rate of 6% per annum for all Contracts with provisions for
retainage, such interest to begin after the date that such payment shall become due and payable to
the Contractor; provided, however, that where the contracting body has issued bonds to finance the
project, interest shall be payable to the Contractor at the rate of interest of the bond issue or at the
rate of 10 percent per annum, whichever is less
13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD.
13.7.1: Add Subparagraph 13.7.1.4:
13.7.1.4: Latent Defects: Nothing herein contained shall be deemed to have caused any applicable
statute of limitations to commence to run or any alleged cause of action to have accrued in the
event of any latent defect not discovered until after the issuance of the final certificate for payment.
The statute of limitations shall commence to run on any alleged latent cause of action only upon
actual discovery of such latent defect.
@2000 by Foreman Architects Engineers
00800-38
98146
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9/21/2000
DOCUMENT 00800
SUPPLEMENTARY CONDITIONS
Add new Paragraph:
13.8 INTERPRETATIONS.
13.8.1: Where required hereunder to effectuate the intent of the Contract Documents, masculine shall
mean neuter or feminine and the singular shall mean the plural.
13.8.2: The captions and headings of various Articles and Paragraphs in the Contract Documents are
for convenience only and are not to be construed as defining or limiting, in any way, the scope or intent
of the provisions hereof.
13.8.3: The invalidity of any covenant, restriction, condition, limitation or any other part or provision of
the Contract Documents shall not impair or affect in any manner the validity, enforceability or effect of
the remainder of the Contract Documents.
13.9 EQUAL EMPLOYMENT OPPORTUNITY.
13.9.1: The Contractor shall maintain policies of employment as follows:
13.9.1.1: The Contractor and the Contractor's Subcontractors shall not discriminate against any
employee or applicant for employment because of race, religion, color, sex or national origin. The
Contractor shall take affirmative action to ensure that applicants are employed, and that employees are
treated during employment without regard to their race, religion, color, sex or national origin. Such
action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising; lay-off or termination; rates of payor other forms of
compensation; and selection for training, including apprenticeship. The Contractor agrees to post in
conspicuous places, available to employees and applicants for employment, notices setting forth the
policies of non-discrimination.
13.9.1.2: The Contractor and the Contractor's Subcontractors shall, in all solicitations or advertisements
for employees placed by them or on their behalf, state that all qualified applicants will receive
consideration for employment without regard to race, religion, color, sex or national origin.
ARTICLE 14. TERMINATION OF THE CONTRACT
141 TERMINATION BY THE CONTRACTOR.
14.1.1: Delete Subparagraph in its entirety and insert the following:
14.1.1: If the work is stopped for a period of thirty days under an order of any court or other public
authority having jurisdiction, other than the Owner, through no act or fault of the Contractor or a
Subcontractor or their agents or employees or any other persons performing any of the Work under
a contract with the Contractor, then the Contractor may, upon seven additional days' written notice
to the Owner and the Architect, terminate the Contract and recover from the Owner payment for all
Work executed. The foregoing sentence shall be the exclusive and sole remedy available in the
event of termination, and the Owner shall not be liable to the Contractor for any losses, lost profits,
or damages.
14.1.2: Delete in it entirety.
14.1.3: Delete in its entirety.
@ 2000 by Foreman Architects Engineers
00800-39
98146
9/21/2000
DOCUMENT 00800
SUPPLEMENTARY CONDITIONS
14.2 TERMINATION BY THE OWNER FOR CAUSE.
14.2.4: Add the following sentence:
"The costs of finishing the Work include, without limitation, all reasonable attorney's fees, additional
title costs, insurance, additional interest because of any delay in completing the Work, and all other
direct and indirect consequential costs incurred by the Owner by reason of the termination of the
Contractor as stated herein."
Add new Paragraph:
. 14.4 TERMINATION BY THE OWNER FOR CONVENIENCE.
14.4.1: The Owner may, at any time, terminate the Contract for the Owner's convenience and without
cause.
14.4.2: Upon receipt of written notice from the Owner of such termination for the Owner's convenience,
the Contractor shall:
.1 Cease operations as directed by the Owner in the notice.
.2 Take actions necessary, or that the Owner may direct, for the protection and preservation of
the Work.
.3 Except for Work directed to be performed prior to the effective date of termination stated in
the notice, terminate all existing Subcontracts and purchase orders and enter into no further
Subcontracts and purchase orders.
14.4.3: In case of such termination for the Owner's convenience, the Contractor shall be entitled to
Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and
construction equipment and machinery, including reasonable overhead, profit, and damages.
END OF DOCUMENT
@ 2000 by Foreman Architects Engineers
00800-40
98146
Exhibit D
Apr. 2. 2224 ~:!8PV
No 3180
PI/I
Faxed & Mailed
(717) 243-6486
2 April 2004
Mr James Flower, Jr.
Re: High School Complex - Additions and Renovations
Swartz/Educational Technology Center - Phase 1
Carlisle Area School District
Dear Mr. Flower.
Per the request of Mr. Robert C. WillIams of Carlisle Area School District, we offer the following
for your use:
The Demolil1on Drawings on all sheets under "General Note" "B" state: "Areas disturbed
through demolition are to be patched to match surrounding finish or condition, if necessary. .-
Drawing Gl3S, The Epoxy Terrazzo Floonng Color Legend Hatched Area states: "Overall
Color Malch Existing Tan ". (The Product installed IS Red).
I hope is mformation will assist you in your process.
Should you have any questions, feel free to contact me at 724-452-9690.
Sincere i'j,
Fore n Architects
cc: Mr Robert C WIlliams, CASD
Mr. Dave Miller, F AE
FIle
J :\9& 146\Docs\Lcltcr:5\Flower 4.2~04.doc\rlb
Exhibit E
APr. 2. 2J8L 4:18QV
No 3180
P. ]/1
Faxed & Mailed
(717) 243-6486
2 April 2004
Mr James Flower, Jr.
Re: High School Complex - Additions and Renovations
Swartz/Educational Technology Center - Phase 1
Carlisle Area School District
Dear Mr. Flower:
Per the request ofMr Robert C. WJ1!iams ofCarhsle Area School District, we offer the following
for your use:
The DemolItion Drawings on all sheets under "General Note" "B" state: "Areas disturbed
through demolition are to be patched to match surrounding finish or condition. if necessary. ..
Drawing G 13S, The Epoxy Terrazzo Floonng Color Legend Hatched Area states: "Overall
Color Match Existing Tan" (The Product installed IS Red).
I hope is information will assist you in your process.
Should you have any questions, feel free to contact me at 724-452-9690.
s
cc: Mr. Robert C. Williams, CASD
Mr. Dave Miller, FAE
FIle
J :\98146\Docs\Ldtct:s\FJower 4"2~04.doc\rlb
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9/21/2000
7.3 CONSTRUCTION CHANGE DIRECTIVES.
DOCUMENT 00800
SUPPLEMENTARY CONDITIONS
7.3.6 In the first sentence. delete the words
"...a reasonable allowance for overhead and profit." and insert the words "...an allowance of 10%
for overhead and 5% for profit which shall include the cost of all bonds and insurance." In the event
that the 'Nork is done by a subcontractor the Contractor shall be entitled to an allowance of 10% to
cover both overhead and profit. In the event that equipment is used in the Work the rental value of
such equipment shall be defined as the adjusted monthly Blue Book rental value divided by 163
plus the operator cost."
7.4 MINOR CHANGES IN THE WORK.
Ti'Yt
'0
7.4.1: In the second sentence, change "through" to "by".
ARTICLE 8. TIME
82 PROGRESS AND COMPLETION.
8.2.1: At the end of this Subparagraph, Add:
"The dates listed in the Preliminary Construction Schedule are minimum performance dates and
each Prime Contractor shall agree to schedule, coordinate, and staff in accord with actual progress
of the Work. Each Prime Contractor agrees to increase manpower, increase work hours, and to
increase equipment necessary to maintain projected progress schedule without additional cost to
Owner. I!
8.2.3: At the end of this Subparagraph, Add:
"Each Prime Contractor agrees to increase manpower, increase work hours, and to increase
equipment necessary to maintain projected progress schedule without additional cost to Owner."
8.2: Add Subparagraphs 8.2.4 through 8.2.7:
8.24 It is mutually agreed by and between the parties hereto that time shall be an essential part of
this contract and that in case of the failure on the part of the contractor to complete the contract
within the time specified and agreed upon, the Owner will be damaged thereby; and the amount of
said damages, inclusive of expenses for inspection, superintendence and necessary traveling
expenses, being difficult if not impossible of definite ascertainment and proof, it is hereby agreed
that the reasonable amount of such damages shall be $1000.00 for each and every days' delay, per
phase, per Contractor in finishing the work in excess of the number of days prescribed in the
Preliminary Construction Schedule, and the signed agreed upon Project Construction Schedule;
and the Contractor hereby agrees that said sum shall be deducted from monies due the Contractor
under the Contract or if no money is due the Contractor, the Contractor hereby agrees to pay to the
Owner as liquidated damages, and not by way of penalty, such total sum as shall be due for such
delay.
@ 2000 by Foreman Architects Engineers
00800-27
98146
9/21/2000
DOCUMENT 00800
SUPPLEMENTARY CONDITIONS
8.2.4.1: In addition to the Liquidated Damages listed in Subparagraph 8.2.4, the Contractor agrees
to pay all costs for the Construction Manager and Architect to extend their Contract to remain on
the Project due to the failure of the Contractor to complete the Work within the time frame in the
Project Construction Schedule. Damage to other Prime Contractors that are an extension of this
clause, are to be recovered pursuant to Article 6.2 et seq., of the General Conditions of the
Contract and the Supplementary Conditions of the Contract.
8.2.5: APPLICATION OF PROVISIONS.
A. Within fourteen days after Award of Contract, Contractor must present to the Project
Manager a preliminary construction schedule. If shift, premium time. or overtime work
must be utilized to permit timely completion, it should be so noted on the preliminary
schedule. The cost of the shift, overtime or pr,emium time is to be included in the
contractor's bid price. The cost of all schedule submittals is the responsibility of the
Contractor.
B. Working with the contractors, the Construction Manager will finalize the "Project
Construction Schedule". The Construction Mana.ger intends to use the schedule as a
tool to run the project Weekly updates to the schedule will be provided by the
contractors in a format provided by the Construction Manager. Look-ahead window
schedules will be provided by the Construction Manager to assist the contractors in
planning their new term work in accord with the ollerall schedules.
8.2.6: PROGRESS MEETINGS.
A. During the construction period, the Contractor shall provide weekly to the Construction
Manager a progress update report showing progness during the previous week and any
changes to accepted schedule. This will be provided in a format issued by the
Construction Manager. Construction Manager will correlate all Contractors' reports to
formulate updated project schedule. Anticipated work for the upcoming week will be
shown in the look-ahead schedule provided by the Construction Manager.
B. There will be weekly meetings during the construction period. The Contractor must
have an on-site coordinator avai!able to attend trese meeti;igs and be res~onsible for
interfacing with the overall planning and coordination effort. Meetings may be held
more or less frequently at the discretion oi the Construction Manager.
82.7: ADHERENCE TO SCHEDULE.
A. The Owner reserves the right to withhold monthly progress payments if the Contractor
is behind schedule, unless the Contractor documents in writing any delays that are not
the fault of the Contractor and to which the Construction Manager agree.
B. The monthly progress payments will only be released after the Contractor reaches the
status of completion ior that month comprehended by the construction schedule.
@ 2000 by Foreman Architects Engineers
00800-28
98146
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HIGH SCHOOL COMPLEX . PHASE 1.~ SWAfirTZI EDUCATIONAL TECHNOLOG'
eARUSU AR[A HIOM SCHOOl CAIn.15LE BOROUGH
12$ Wl:Si PENH ST. CMUSlE. PA. 17013 CUMBERlAND COUHTT
CARLISLE AREA SCHOOL DISTRICT
~~- ..- l'tH" - ~'-'JSU PA, 17013
,..; E/S . d_80ZS' ON .
~V Z I 8 V 0 0 Z . 6 ! J d V
SHERIFF'S RETURN - REGULAR
CASE NO: 2004-01660 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CARLISLE AREA SCHOOL DISTRICT
VS
LYONS CONSTRUCTION SERVICES
SHANNON SHERTZER
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
LYONS CONSTRUCTION SERVICES INC
the
DEFENDANT
, at 1030:00 HOURS, on the 29th day of April
, 2004
at 5237 EAST TRINDLE ROAD
MECHANICSBURG, PA 17055
by handing to
MARCIA ESPENSHADE, ASST SEC,
ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
6.90
.00
10.00
.00
34.90
So Answers:
r%-~~~
R. Thomas Kline
Sworn and Subscribed to before
04/30/2004
SAIDIS SHUFF FLOWER LI~.D~ Y
By: ~ /r
D~"puty S eriff
me this I~ ... day of ~
~OQY A.D.
1j~~;- ....w1e4-'1w I ..0 - ~
prtt')(;notary t? ~r i:::I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
CARLISLE AREA SCHOOL DISTRICT,
Plaintiff
2004 CIVIL TERM, NO. 04-1660
vs.
LYONS CONSTRUCTION SERVICES,
INC., Defendant
NOTICE TO PLEAD
TO: CARLISLE AREA SCHOOL DISTRICT
You are hereby notified to file a written response to the enclosed New Matter and
Counterclaim within twenty (20) days from service hereof or ajudgment may be entered against you.
RILEY AND FA]~
BY: ~
.
SUDHIR R. PATEL, ESQUIRE
1. D. No. 75914
The Necho Allen
No.1 Mahantongo Street
Pottsville, P A 17901
(570) 622..2455
Counsel for Defendant/Counterclaim
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
CARLISLE AREA SCHOOL DISTRICT,
Plaintiff
2004 CIVIL TERM, NO. 04-1660
vs.
LYONS CONSTRUCTION SERVICES,
INC., Defendant
ANSWER WITH NEW MATTER
AND NOW, comes Defendant, Lyons Construction Services, Inc., by and through its counsel,
Riley and Fanelli, P.C., and answers the Complaint of the Plaintiff as follows:
COUNT I - UNJUST ENRICHMENT
I. - 3. Admitted.
4. It is denied that Lyons has not completed its work in a satisfactory manner.
5. It is denied that the amount properly due Lyons iis as set forth in this averment.
6. It is denied that there was any inadvertent payment by the School District. To the
contrary, the School District was obligated to make additional payments to Lyons.
7. It is denied that there is an overpayment in the: amount of $210,728.38. To the
contrary, Lyons is owed additional monies over and above what Carlisle School District claims by
virtue of the fact that Carlisle School District unilaterally took a credit/backcharged Lyons and
unilaterally assessed liquidated damages which were not appropriate.
8. It is denied that there has been an overpayment as set forth by Carlisle School District
1
or that Lyons has been unjustly enriched. It is further denied that any prompt repayment is due in
the amount specified by Carlisle School District.
9. It is specifically denied that there has been any dilatory, obdurate or vexatious conduct
by Lyons.
WHEREFORE, Defendant, Lyons Construction Services, Inc., respectfully requests judgment
in its favor and against Plaintiff.
COUNT II - BREACH OF CONTRACT
10. A. It is specifically denied that liquidated damages are appropriate or warranted.
By way of further answer, Carlisle School District improperly assessed liquidated
damages against Lyons.
10. B. It is denied that Lyons breached the conditions of the contract and it is further
denied that Carlisle School District suffered any diminution in value.
10.
C.
It is denied that Lyons breached the conditions of the contract and it is further
denied that Carlisle School District suffered any diminution in value.
10.
D.
It is denied that any extra work was required by the plumbing contractor or
that the District incurred a reasonable or necessary charge of Two Hundred Fifty-Six
($256.00) Dollars for the same.
WHEREFORE, Defendant, Lyons Construction Services, Inc., respectfully requests judgment
in its favor and against Plaintiff.
NEW MATTER
1. Plaintiff's claims are barred by the doctrine of unclean hands.
2
2. Plaintiff's claims are barred, in whole or in pan, by the doctrine of estoppel.
3. Plaintiffs claims are barred by its own breach of contract.
COUNTERCLAIM
I. The Counterclaim Plaintiff is the Defendant in this action, Lyons Construction
Services, Inc. ("Lyons").
2. The Counterclaim Defendant is the Plaintiff in this action, Carlisle Area School
District ("Carlisle").
3. Counterclaim Plaintiff, Lyons, incorporates by reference paragraphs I through 3 of
Carlisle's Complaint in this matter, together with the exhibits attached by Carlisle to its Complaint.
4. As set forth in Paragraph lOA. of the Complaint, Carlisle has assessed Eight-Nine
Thousand ($89,000.00) Dollars in liquidated damages against Lyons.
5. Carlisle has also unilaterally taken a creditlbackcharged Lyons in the amount of Two
Hundred Fifty Thousand ($250,000.00) Dollars.
6. Carlisle's assessing liquidated damages in the amount of Eighty-Nine Thousand
($89,000.00) Dollars against Lyons is unjustified and unwarranted. The delays for which Carlisle
seeks to assess Eighty-Nine Thousand ($89,000.00) Dollars in liquidated damages against Lyons
were caused in whole or in part by Carlisle and/or its architects, engineers, construction managers,
agents or other prime contractors, as a consequence of which liquidated damages may not be
properly assessed against Lyons.
7. Insofar as Carlisle's assessment ofIiquidated danlages in the amount of Eighty-Nine
Thousand ($89,000.00) Dollars against Lyons was unwarranted, unjustified and in breach of its
3
contract with Lyons, Lyons has suffered damages in the amount of Eighty-Nine Thousand
($89,000.00) Dollars.
8. There was no adequate legal justification for Carlisle's assessment of liquidated
damages in the amount of Eighty-Nine Thousand ($89,000.00) Dollars against Lyons and Lyons has
performed all conditions precedent to maintaining this claim for breach of contract.
9. Carlisle's unilateral credit/backcharge in the amount of Two Hundred Fifty Thousand
($250,000.00) Dollars to Lyons was unwarranted, unjustified and in breach of its contract with
Lyons.
10 Insofar as Carlisle's unilateral credit/backcharge in the amount of Two Hundred Fifty
Thousand ($250,000.00) Dollars against Lyons was unwarranted, unjustified and in breach of its
contract with Lyons, Lyons has suffered damages in the amount of Two Hundred Fifty Thousand
($250,000.00) Dollars.
11. There was no adequate legal justification for Carlisle's unilateral credit/backcharge
in the amount of Two Hundred Fifty Thousand ($250,000.00) Dollars against Lyons and Lyons has
performed all conditions precedent to maintaining this claim for breach of contract.
WHEREFORE, Counterclaim Plaintiff, Lyons Construction Services, Inc., respectfully
requests that this Honorable Court grant judgment in its favor and against Counterclaim Defendant,
Carlisle Area School District, in the amount of Three Hundred Thirty-Nine Thousand ($339,000.00)
Dollars, exclusive of interest, costs and attorney's fees.
Respectfully submitted,
4
RILEY AND F A]~.lJ5j
BY: A~
SUDHIR R. PATEL, ESQUIRE
1. D. No. 75914
The Necho Allen
No.1 Mahantongo Street
Pottsville, P A 17901
(570) 622..2455
Counsel for Defendant/Counterclaim
Plaintiff
5
VERIFICATION
I, BARRY T. LYONS, President of Lyons Construction Services, Inc., hereby certif)rthat the
statements made in the foregoing Answer, New Matter and Counterclaim are true and correct to the
best of my belief. I understand that false statements herein are made subject to the penalties of 18
Pa. C.S.A. 94904, relating to unsworn falsification to authori ',.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct of the within Answer, New Matter and Counterclaim
was served on this date by first class mail, postage prepaid, addressed as follows:
James D. Flower, Jr., Esquire
Saidis, Shuff, Flower & Lindsay
26 West High Street
Carlisle, PA 17013
DATE:
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SAlOIS
SHUFF, FLOWER
& LINDSAY
AITORNEVS-AT.[.AW
26 W. High Street
Carlisle. P A
CARLISLE AREA SCHOOL DISTRICT
Plaintiff,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO. 04-1660
Defendant.
REPLY TO NEW MATTER
AND
ANSWER TO COUNTERCLAIM
NEW MATTER
1. Denied. Plaintiffs claim is not barred by the doctrine of unclean
hands.
2. Denied. Plaintiff's claim is not barred by the doctrine of estoppel.
3. Denied. Plaintiffs claims are not barred by its breach of contract.
COUNTERCLAIM
1. Admitted.
2. Admitted.
3. Admitted.
4.
It is admitted that CARLISLE AREA SCHOOL DISTRICT is
entitled to Eighty-nine Thousand ($89,000.00) Dollars in liquidated
damages from LYONS, pursuant to the Supplemental Conditions
of the contract, which were attached to the Plaintiff's Complaint as
Exhibit "C". The CARLISLE AREA SCHOOL DISTRICT has not
retained any money on account of liquidated damages, but has, in
fact, paid the entire contract sum to LYONS and now seeks
liquidated damages from LYONS for delays in completing the
project.
5. Denied. CARLISLE AREA SCHOOL DISTRICT has not taken a
credit/backcharge against LYONS, but, in fact, has paid LYONS
the entire amount due under the contract and has, in fact,
overpaid LYONS at least the sum of Two Hundred Ten Thousand
Seven Hundred Twenty-eight and 38/1.00 ($210,728.38) Dollars.
6. Denied. CARLISLE AREA SCHOOL DISTRICT is entitled to
liquidated damages pursuant to the Supplemental Conditions of
the contract, which were attached to the Plaintiff's Complaint as
Exhibit "C", and continues to seek these funds from LYONS. The
delays in question were caused by LYONS, not by CARLISLE
AREA SCHOOL DISTRICT, its architects, engineers, construction
managers, agents or other prime contractors.
7. Denied. CARLISLE AREA SCHOOL DISTRICT'S assessment of
liquidated damages is meritorious pursuant to the Supplemental
SAlOIS
SHUFF, FLOWER
& LINDSAY
Conditions of the contract, which were attached to the Plaintiff's
AlTORNEYS.AT-LAW
26 W. High Street
CarUsle. P A
Complaint as Exhibit "C". Although CARLISLE AREA SCHOOL
DISTRICT seeks these funds, the monies are currently in the
SAlOIS
SHUFF, FLOWER
& LINDSAY
A1TORNEVS-AT-LAW
26 W. High Street
Carlisle, P A
11
possession of LYONS CONSTRUCTION INC., and LYONS,
therefore, has suffered no damages.
8. CARLISLE AREA SCHOOL DISTRICT is entitled to liquidated
damages of Eighty-nine Thousand ($89,000.00) Dollars, pursuant
to the Supplemental Conditions of the contract, which were
attached to the Plaintiff's Complaint as Exhibit "C", as a result of
the delays caused by LYONS.
9. Denied. No such unilateral credillbackcharge was ever made.
10. Denied. No such unilateral credillbackcharge was ever made.
Defendant LYONS has been paid in full on the contract, and has,
in fact, been overpaid at least the sum of Two Hundred Ten
Thousand Seven Hundred Twenty-eight and 38/1.00
($210,728.38) Dollars even assuming LYONS arguments are
valid with respect to the liquidated damages and alleged breaches
of contract. President of LYONS CONSTRUCTION SERVICES,
INC., Barry Lyons, acknowledged under oath at a recent
arbitration that his company was, in fact, paid the full amount of
the contract and that he is, indeed, holding some funds of
CARLISLE AREA SCHOOL DISTRICT in excess of any amounts
he could conceivably be entitled to. Therefore, the assertion of
this counterclaim is arbitrary, vexatious, and is made entirely in
bad faith.
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATI'ORNEYS'AT'LAW
26 W. High Street
Carlisle, PA
II
I
11. Denied. No such unilateral creditlbackcharge was ever made and
LYONS counterclaim is utterly without merit.
WHEREFORE, the CARLISLE AREA SCHOOL DISTRICT requests that the
relief sought in the Counterclaim of LYONS CONSTRUCTION SERVICES, INC. be
denied, and that the CARLISLE AREA SCHOOL DISTRICT be granted attorney's
fees as a result of LYONS CONSTRUCTION SERVICES, INC.'S arbitrary, vexations
and bad faith assertion of this Counterclaim.
Respectfully submitted,
SAlOIS, SHUFF, FLOWER & LINDSAY
Attorneys for the Plaintiff
By
IwJ,
(Z~ ~. Flower, Jr.
1.0. #27742
26 West High Street
Carlisle, PA 17013
(717) 243-6222
VERIFICATION
I, ROBERT CRAIG WILLIAMS, Board Secretary and Director of Finance
of the Carlisle Area School District, hereby verify that the statements made in the within
Reply to New Matter and Answer to Counterclaim are true and correct to the best of my
knowledge, information and belief. I understand that false statements herein are made
subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to
authorities.
AREA SCHOOL DISTRICT
By
cJ~
Robert Craig Williams
Board Secretary and Director of Finance
Date: June 7, 2004
SAIDIS
SHUFF, FLOWER
& LINDSAY
AlTORNt:VS-AT-LAW
26 W. High Street
Carlisle, P A
CARLISLE AREA SCHOOL DISTRICT : IN THE COURT OF COMMON PLEAS OF
Plaintiff, :CUMBERLAND COUNTY, PENNSYLVANIA
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO. 04-1660
Defendant.
CERTIFICATE OF SERVICE
On this ~ day of June, 2004, I, Adele Group, hereby certify that I served a
true and correct copy of the foregoing PLAINTIFF'S REPLY TO New MATTER & ANSWER TO
COUNTERCLAIM via United States Mail, first-class, postage prepaid
Sudhir R. Patel, Esquire
RILEY & FANELLI
One Mahantongo Street
Pottsville, PA 17901
SAlOIS, SHUFF, FLOWER & LINDSAY
By: (LdJu
Adele Group
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SAlOIS
SHUFF, FLOWER
& LINDSAY
A1TORNEYS-AT-LAW
26 W. High Street
Carlisle, PA
II
CARLISLE AREA SCHOOL DISTRICT
IN THE COURT OF COMMON PLEAS
Plaintiff,
CUMBERLAND COUNTY,
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO. 04-1660
Defendant.
MOTION TO COMPEL
AND NOW, comes the CARLISLE AREA SCHOOL DISTRICT by and
through its Attorneys, Saidis, Shuff, Flower & Lindsay and makes the following
averments:
I. The Plaintiff filed a Complaint in this matter on April 16, 2004, alleging an
inadvertent overpayment of funds in excess of those specified in a construction
contract.
2. The Defendant filed an Answer, with New Matter and Counterclaim on or about
May 19,2004.
3. The Plaintiff filed its Reply to New Matter and Answer to Counterclaim on June 7,
2004.
4. Plaintiff served Plaintiffs First Set ofInterrogatories and Request for Production of
Documents on counsel for Defendant, Sudhir R. Patel, Esquire by letter of June 18,
2004. A copy of the First Set ofInterrogatories and Request for Production of
Documents is attached hereto as Exhibit' A' .
5. Said Discovery requests were served by Certified Mail, Return Receipt Requested,
with an accompanying letter, dated June 18, 2004, which is attached hereto as
Exhibit 'B'.
2
SAlOIS
SHUFF. FLOWER
& LINDSAY
AITORNEYS-AT-LAW
26 w. High Street
Carlisle, P A
6. Defendant's counsel, Sudhir R. Patel, Esquire, accepted service by Certified Mail
and the Return Receipt card evidencing such service on June 19, 2004 is attached
hereto as Exhibit' C' .
7. Defendant's counsel, Sudhir R. Patel, Esquire and Defendant, Lyons Construction
Services, Inc., have not responded to Plaintiffs Discovery requests to date, and
have not served upon Plaintiff's counsel any objection to said Discovery requests.
WHEREFORE, Plaintiff requests that Defendant be directed to respond to Plaintiffs
First Set ofInterrogatories and Plaintiffs Request for Production of Documents within a
specified time frame.
Respectfully submitted,
Saidis, Shuff, Flower & Lindsay
Date: ~r1.Q/M/u., ;;(~, .;wo 'i
/
~
By:
Ja es D. Flower, Jr., Esquire
) orney ID #27742
\fi6 West High Street
Carlisle, PA 17013
Phone: 717.243.6222
Fax: 717.243.6510
Attorney for Plaintiff
3
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATTORNEYS'AT-LAW
26 W. High Street
Carlisle. P A
VERIFICATION
I, James D. Flower, Jr., Esquire, attorney for the Plaintiff, Carlisle Area School
District, verifY that the statements made in the foregoing MOTION To COMPEL are true and
correct and certifY that I am authorized to do so, the Plaintiff lacks sufficient knowledge to
verifY, and this Verification is based on my personal knowledge of the matters alleged in this
pleading. I understand that false statements herein are made subject to the penalties of 18 Pa.
C.S. S 4904, relating to unsworn falsification to authorities.
Saidis, Shuff, Flower & Lindsay
Date: ~ fW-t I.u... ~~ ~ y
By ~.H'_.
4
,
"
SAIDIS
SHUFF, FLOWER
& LINDSAY
AlTORNEYS.AT.LAW
26 W. High Street
Carlisle, P A
CARLISLE AREA SCHOOL DISTRICT
Plaintiff,
FILE COpy
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVil., TERM, NO. 04-1660
Defendant.
PLAINTIFF'S FIRST SET OF INTERROGATORIES
PROPOUNDED UPON THE DEFENDANT
To: Lyons Construction Services, Inc.
C/o Sudhir R. Patel, Esquire
Riley and Fanelli, P.c.
The Necho Allen
No.1 Mahantongo Street
Pottsville, P A 17901
Plaintiff, CARLISLE AREA SCHOOL DISTRICT (hereinafter the "DISTRICT")
by its undersigned attorney, requests defendant to answer under oath the following
Interrogatories within thirty days from service thereof, in accordance with Pa. R.C.P. 4005
and 4006. These Interrogatories are deemed to be contirLUing to the extent provided in Pa.
R.C.P. No. 4007.4:
DEFINITIONS
In answering these Interrogatories, the following defmitions are to be applied:
1. "You," "yours," and "defendant," means the defendants in this action, both
individual and corporate, as well as the present and former officers, directors,
agents, employees and authorized representatives of said defendants, and all other
persons acting or purporting to act on its or their behalf.
2. "Document" includes any written, recorded or graphic material, however produced
or reproduced, including but not limited to the original or any copies of records,
reports, invoices, billing statements, photographs, correspondence, memoranda,
notes, written communications, telegrams and cables, notes of oral or telephonic
communications, diaries, schedules, calendars, eontracts, agreements, releases,
instructions, minutes or notes of meetings of the defendant or other persons acting
on its own behalf, checks, messages and prelimi.nary versions, drafts or revisions of
any of the foregoing.
3. "Employee" shall include all sales agents and representatives of defendants, as well
as all other persons receiving wages, salaries or sales commissions from defendants
during the specified time periods.
4. "IdentifY" when used in reference to a natural person, means to state in the answer
in each instance his (or her) full name, present or last known residence address, and
his (or her) occupation or business, including the name and address of his (or her)
present employer and position, if known.
SAIDIS
SHUFF, FLOWER
& LINDSAY
AITORNEYS.AT.UW
26 W. High Street
Carlisle, P A
5. "IdentifY" when used in reference to a document means to state in the answer in
each instance, whether or not such document is known to be in existence at the time
of making the answer, (i) the date and type of document, and (ii) the present or last
known location and custodian of the document and all copies thereof. If any such
document is no longer in your possession or subject to your control, state what
disposition was made of it, the date thereof, and identifY the person or persons
responsible for such disposition and the policy, rule, order or other authority by
which such disposition was made.
2
INTERROGATORIES
l. Identify each individual who participated in preparing responses to these
Interrogatories.
ANSWER:
2. State the date of incorporation of Lyons Construction Services, Inc. (hereinafter
"LYONS").
ANSWER:
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIDRNEYS-Ar.LAW
26 W. High Street
Carlisle, PA
3
3. State the identity of the incorporator or incorporators ofL YONS.
ANSWER:
4. Identif'y by name and title each officer ofL YONS, including their term of office.
ANSWER:
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS'AT"LAW
26 W. High Street
Carlisle, PA
4
5. State whether any officer of LYONS currently acknowledges or has ever
acknowledged that the company was, in fact, paid the full amount due under the
construction contract for the Carlisle Area High School and that LYONS is,
indeed, holding some funds of CARLISLE AREA SCHOOL DISTRICT in
excess of any amounts LYONS could be entitkd to pursuant to the terms of the
contract.
ANSWER:
6. If your answer to Interrogatory 5, is anything but an unqualified negative, state:
a. What sum offunds of the DISTRICT does LYONS believe it holds that is
in excess of anything it could be entitled to under the contract?
ANSWER:
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS-AT.UW
26 W. High Street
Carlisle, PA
5
7. Did LYONS receive two separate payments of the same invoice of Four Hundred
Fourteen Thousand Nine Hundred Eighty-four and 34/1.00 ($414,984.34) Dollars
by checks dated December 18, 2003, and January 15, 2004?
ANSWER:
8. How many separate payments of the sum of Four Hundred Fourteen Thousand
Nine Hundred Eighty-four and 34/1.00 ($414,984.34) Dollars did LYONS receive
from DISTRICT for work on this Project. Please provide the dates that each of
those payments was received.
ANSWER:
9. For each payment received by LYONS from DISTRICT in the amount of Four
Hundred Fourteen Thousand Nine Hundred Eighty-four and 34/1.00 ($414,984.34)
Dollars, please provide the corresponding invoiee from LYONS.
ANSWER:
SAIDIS
SHUFF, FLOWER
& LINDSAY
AlTORNEVSeAToLAW
26 W. High Street
Carlisle, P A
6
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS-AT.LAW
26 W. High Street
Carlisle. PA
/
I
,
/
/
10. What amount does L VaNS contend it should have received from DISTRICT for
only the original contract work and change orders performed, after payment for all
retainage. ~ "= ~~ ~
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-i-rll> .t>.'L '59
ANSWER:
II. What total amount did L VaNS actually receive from DISTRICT for the
construction contract work and the change orders performed?
ANSWER:
12. Please list by check number and corresponding invoice number all payments
received by L vaNS from DISTRICT for work performed on the original
construction and all change orders.
ANSWER:
0(.(\<;,. ~<::\\4,ICJ0U -1i!I.<e. \,a~:~;).....I1L <'S--ND ~ .
7
13. With regard to the Terrazzo Cafeteria Floor, state whether LYONS failed to
provide a color that would match the existing terrazzo floor in this area?
ANSWER:
14. If your answer to Interrogatory 13, is anything but an unqualified negative, state:
a. What was the color of the floor actually installed by LYONS?
ANSWER:
15. In areas that were disturbed through demolition and that were to be patched to
match the surrounding finish or condition, did LYONS in performing the
patchwork utilize tiles that did not match the surrounding finish?
ANSWER:
16. If your answer to Interrogatory 15, is anything but an unqualified negative, state:
a. What was the color of the tiles actually installed by LYONS for each patch
area?
SAIDIS
SHUFF, FLOWER
& LINDSAY
ANSWER:
ATTORNEYS.AT.LA W
26 W. High Street
Carlisle, PA
8
^
17. Does LYONS contest that one of its employees damaged a toilet that required
additional work and, if so, on what grounds does LYONS deny such averment?
ANSWER:
18. Does LYONS admit that it has been paid in full on the contract and the change
orders?
ANSWER:
SAIDIS
SHUFF, FLOWER
& LINDSAY
AITORNEYS"AT"LAW
26 w. High Street
Carlisle, PA
9
-'
19. If your answer to Interrogatory 18 is anything other than an unqualified positive,
state:
a. What sum does LYONS believe is outstanding pursuant to the contract and
the change orders from the DISTRICT?
b. What work was performed for which LYONS is stilled owed money, please
be specific.
c. Set for the detailed calculation showing the amoimts billed by LYONS and
the payments made by the Carlisle Area School District, and attach copies
of documentation to fully support this calculation.
ANSWER:
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYSoAToLAW
26 W. High Street
Carlisle, PA
10
20. If your answer to Interrogatory 18 was an unqualified positive, then please explain
how LYONS has suffered damages in the amount of Eighty-Nine Thousand
($89,000.00) Dollars as alleged in Paragraph '7 of your New Matter?
ANSWER:
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATTORNEYS-AT-LAW
26 w. High Sl:reet
Carlisle, P A
11
21. If your answer to Interrogatory 18 was an unqualified positive, then please explain
how L VONS has suffered damages in the amount of Two Hundred Fifty Thousand
($250,000.00) Dollars as alleged in Paragraph 10 of your New Matter?
ANSWER:
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATTORNEYS"AT_LAW
26 W. High Street
Carlisle, P A
12
22. Do the answers submitted by LYONS to Intenogatory 19(a)(b), ifany, equal the
amount of damages alleged by LYONS in its New Matter? If not, why not?
ANSWER:
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS.AT.LAW
26 W. High Street
Carlisle, PA
13
23. Please explain the nature of the DISTRICT's alleged breach of contract, when it
occurred, how it occurred, and identifY the individuals who participated in the
alleged breach.
Date: <c - i!. of
By:
Respectfully submitted,
S~d"i~~
~lonage, Esquire
For Plaintiff, Carlisle Area School District
26 West High Street
Carlisle, P(:nnsylvania 17013
(P) 717.243.6222
(F) 717.243.6510
SAIDIS
SHUFF, FLOWER
& UNDSAY
ATl'ORNEVS.AT.U.W
26 W. High Street
Carlisle, P A
14
SALOIS
SHUFF, FLOWER
& LINDSAY
ATI'ORNEVS.Ar-LAW
26 W. High Street
CarUsle, P A
CERTIFICATE OF SERVICE
I, Adele Group, certifY that on the 18th day of June, 2004, served a true and correct
copy of the within PLAINTIFF'S FIRST SET OF INTERROGATORIES PROPOUNDED UPON THE
DEFENDANT upon counsel for Defendant in this matter by depositing same in the United
States mail, certified, return receipt, first class, postage prepaid, addressed as follows:
Lyons Construction Services, Inc.
C/o Sudhir R. Patel, Esquire
Riley and Fanelli, P.e.
The Necho Allen
No. I Mahantango Street
Pottsville, P A 1790 I
15
S:!idis, Shuff, Flower & Lindsay
ILuu ~
Adele Group ,
SAIDlS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS-AT-UW
26 W. High Street
Carlisle, PA
FILE COpy
CARLISLE AREA SCHOOL DISTRlCT
Plaintiff,
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO. 04-1660
Defendant.
PLAINTIFF'S REOUEST FOR PRODUCTION OF DOCUMENTS
To: Lyons Construction Services, Inc.
C/o Sudhir R. Patel, Esquire
RILEY AND FANELLI, P. C.
The Necho Allen
No.1 Mahantongo Street
pottsville, P A 17901
pursuant to Pa. R.C.P. 4009, Plaintiff, Carlisle Area School District, hereinafter
the "DISTRICT", hereby requests Defendant, Lyons Constructions Services, Inc.,
hereinafter "L VONS", to produce the following documents for inspection and copying on
July 15, 2004, at 26 West High Street, Carlisle, Pennsylvania 17013, or forward true and
correct copies thereofto the undersigned counsel within thirty (30) days.
DEFINITIONS
For the purpose of this request, the term "document" is defmed as any written,
recorded, or graphic matter, regardless of the manner in which it is produced or
reproduced. It includes, but is not limited to, the following: correspondence; notes;
calculations; telegrams; facsimiles; written or electronically transmitted communications;
notes or minutes from meetings; calendars, appointment books, or diaries; log books;
investigative files; contracts; agreements; memoranda; reports; studies; recordings; films or
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS-AT.LAW
26 W. High Street
Carlisle, P A
photographs; video materials; charts or other visual materials; computer printouts;
computer diskettes or tapes; analyses; projections; work papers; orders, work orders or
change orders, extra work orders, additional work orders, force account work orders; plans;
drawings; specifications; test results; invoices; and materials from which data or
information can be obtained.
The term "document" also includes non-identical copies and drafts of the above, in
addition to the original writings, notations, corrections or markings peculiar to that copy
or draft that were made or placed regardless of the manner in which they were made or
placed.
The term "DISTRICT" and "Plaintiff' shall mean the Plaintiff CARLISLE
AREA SCHOOL DISTRICT.
The term "LYONS" and "Defendant" shall mean the Defendant LYONS
CONSTRUCTION SERVICES, INC. (general contractor).
The term "Project" shall mean the project known as the "Additions and Alterations
to High School Complex: Phase 1- SwartzlEducational Technological Center".
The scope of this request covers all documents in your possession, access or control
and within the possession, access or control of your attorneys and other representatives.
INSTRUCTIONS
If any document herein requested was formerly in the possession, custody, or
control of Defendant and has been lost or destroyed, you are requested to produce in lieu of
each document a written statement which: (1) describes in detail the nature of the
2
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYSoAT-LAW
26 W. High Street
Carlisle, P A
document(s) and its content; and (2) identifies the person who prepared or authored the
document(s) and, if applicable the person(s) to whom the document was addressed; and (3)
specifies the date on which the document was prepared ,md transmitted; and (4) specifies
the date on which the document was lost or destroyed, and if destroyed, the conditions of
or reasons for such destruction and the persons requesting and performing the destruction.
If your response is that the requested documents are not in your possession or
custody, describe the unsuccessful efforts to locate them..
If your response is that the requested documents are not in your control, identify
who has control, and the location of the documents.
If a request seeks a document or class of documents not in your possession, custody
or control, provide any documents that you have that contain all or part of the information
contained in the requested documents.
Each request for production of documents shall be deemed continuing so as to
require prompt supplemental responses if further documents called for herein are obtained
or discovered between the time of responding to this request and the time of the trial.
If any documents called for in this demand are withheld under a claim or privilege,
please furnish a list identifying each document for which the privilege is claimed by setting
forth all the following information: (1) the date of the document; (2) the name and address
of each person who prepared, received, viewed and has possession, custody or control of
the document; (3) the name of each person shown on the document as distributees; and (4)
if the document purports to describe communications or occurrences at a meeting,
conference or conversation, the identity of each participant at such meeting, conference or
3
o
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS-AT-LAW
26 W. High Street
Carlisle, P A
conversation; and (5) a statement of the basis for the assertion of privilege. If the basis for
the assertion of privilege is the attorney-client privilege, also set forth the identity of the
client and the attorney.
DOCUMENTS TO BE PRODUCED
1. Any and all documents that you intend to rely upon, utilize, or introduce as
evidence in defending this claim.
2. Any and all project files that concern or relate in any way to the Project.
3. Any and all transmittal or submittal files concerning or relating in any way to the
Proj ect.
4. Defendant's documents regarding work perfomled on the Project, including
sunnary sheets, and all estimates or take-off's (and all backup documents relating
thereto) for the furnishing of labor, material or services, whether prepared by
Defendant or furnished to Defendant by a third person or entity, relating to the
design or construction of the Project, or any pOliion of Defendant's work.
5. All of Defendant's financial records reflecting regular invoices, receipts,
disbursements, credits and all other fmancial transactions including all sources of
original entry relating to the Project.
6. Original schedule of values of all work performed by Defendant or any
subcontractors on the Project together with all documents reflecting:
a. Adjustments or modifications thereto;
4
SAIDIS
SHUFF, FLOWER
& LINDSAY
AITORNEYS-AT.UW
26 W. High Street
Carlisle. P A
b. Reconciliation of the final schedule of values to original schedule of values;
c. reconciliation of each payment request to the schedule of values; and
d. Reconciliation of each change order to the schedule of values.
7. All Defendant's periodic job cost reports and all other job cost reports maintained
on the Proj ect.
8. Proof of any and all payments received by the Defendant from DISTRICT
regarding work performed on the Project. Specifically, proof of payments received
in December 2003 and January 2004.
9. Any and all documents generated which in any way document any damages
allegedly sustained by Defendant in connection with the Project.
10. Any and all expert reports generated by any expert witness whom the Defendant
reasonably intends to call at trial.
11. Any and all documents, transcripts or the like that verify that Defendant is in
possession of monies from the DISTRICT to which Defendant does not believe it
is entitled for work performed on the Project.
12. Any and all change order requests and/or change order proposal, including all back-
up documentation generated in the preparation of a change order and/or change
order proposal.
13. Any and all backup documentation associated with any claims for extra work or
other damages or costs allegedly incurred by Defendant on this Proj ect.
5
CJ
o
14. Any documentation that suggests the DISTRICT, its architects, or others
employed by it were responsible for delays on the Project.
15. Ledgers, journals, cancelled checks, invoices, cash books, credit memos, vouchers,
and checkbook stubs in Defendant's possession or control relating to any
transaction between Defendant and Plaintiff from February 15,2001, to the present.
16. All correspondence between Defendant and Plaintiff, from February 15, 2001, to
the present.
17. All statements of account received by Defendant from Plaintiff from February 15,
2001, to the present.
Date:
(p. \ <i. .0"'\
By:
Respectfully submitted,
Saidis, SlZFlower & Lindsay
~Ift:::
F or Plaintiff, Carlisle Area School District
26 West High Street
Carlisle, Pennsylvania 17013
(P) 717.243.6222
(F) 717.243.6510
SAlOIS
SHUFF, FLOWER
& LINDSAY
A1TORNEYS.AT.LAW
26 W. High Street
Carlisle, P A
6
[J
o
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS.AT.LAW
26 W. High Street
Carlisle, PA
CERTIFICATE OF SERVICE
I, Adele Group, certify that on the 18th day of June, 2004, served a true and correct
copy of the within PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS upon counsel
for Defendant in this matter by depositing same in the United States mail, certified, return
receipt, fIrst class, postage prepaid, addressed as follows:
Lyons Construction Services, Inc.
C/o Sudhir R. Patel, Esquire
Riley and Fanelli, P.C.
The Necho Allen
No.1 Mahantongo Street
Pottsville, P A 17901
Sa.idis, Shuff, Flower & Lindsay
LUtb~
, P
Adele Group
7
JOHN E. SLlKE
ROBERT C. SAlOIS
GEOFFREY S. SHUFF
JAMES D. FLOWER, JR
CAROL j. LINDSAY
MATTHEW J. ESHELMANt
KIRK S. SOHONAGE
mOMAS E. FLOWER
LINDSAY GINGRICH MACLAY
jACLYN SMITIi
LAW OFFICES
SAIDIS, SHUFF, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST ffiGH STREET
CARUSLE, PENNSYLVANIA 17013
TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
EMAlL: attomey@ssfl-law.com
www.ssfl-Iaw.com
CAMP HILL OFFICE:
2109 MARKET STREET
CAMP HILL, PA 17011
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
Fill "" ~Opy
tBQ.BrdCertifLedCrllditors'
Rights RllpresDl1tation
REPLY TO CARLISLE
June 18, 2004
Via Certified, Return Receipt
Sudhir R. Patel, Esquire
Riley and Fanelli, P.C.
The Necho Allen
No.1 Mahantongo Street
Pottsville, P A 17901
RE: CARLISLE AREA SCHOOL DISTRICT V. LYONS CONSTRUCTION SERVICES, INC.
DOCKET No.: 2004 CIVIL TERM No. 04-1660
Dear Attorney Patel:
Enclosed please find the original, along with two copies, of the Plaintiff's First Set of
Interrogatories Propounded Upon the Defendant and the Plaintiff's Request For Production of
Documents.
I ask that you answer the interrogatories within the next thirty (30) days, and that you
produce the documents for inspection and copying on July 15, 2004 at 26 West High Street,
Carlisle, Pennsylvania 17013, or forward true and correct copies to me within thirty (30) days.
Failure to do so will cause me to file a motion compelling you to do the same.
If you have any questions regarding this matter, please feel free to contact me. Thank
you.
Very truly yours,
S~""'~P
A_e, fuq"ire
KSS: ahg
Ce: Robert Craig Williams, Board Secretary and
Director of Finance, Carlisle Area School District
Enclosures
. Complete items 1, 2, and 3. Also complete
item' 4 if Restricted Delivery is desired.
. Print your name and address on the reverse
so .+,hat we can return the card to you.
. Attach this card to the back of the mail piece,
or on the front if space permits.
1. Art;;;:le Addressed to:
5{lth/i- t,.h.fcl/ E,jJ
/Ct!C ~ " f /t./'JUI, / 11,1:.
flit fI,/t. tli filii/vI..
!Je.lltlLhtUrjpllff;Sf
Ppff'!'/I///~/ 1-1 /1-4~/
D. Is delivery address different from item 1?
If YES, enter d-alivery address below:
3.~lce Type
Certified Mail
Registered
D Insured Mal(
D Express Mail
tr'Return Receipt for Merchandise
o C.O.D.
4. Restricted Delh/ery? (Extra Fee) 0 Yes
2. Article Number
(Transfer from service label)
PS Form 3811, August 2001
7003 1010 0001 1189 5113
Domestic Return Receipt
102595-01-M-0381
r'I
CJ
C] RebJm Reclept Fee
C] (Endor'8em8nI Required)
C] Restricl:ed Delivery Fee
M (Endorsement ReqUired)
CJ
r'I
-.
In
r'I
r'I
LJ1
tr
..,
r'I
r'I
Certified Fee
(..,
?':;1
.
!':. .:.;'."':.",>
,p...m'ItJ"
I7fHElrel~'~
\ ,,?,'
,;::.:.:> ~ ~:' :
Total Postage & Fees
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c
CARLISLE AREA SCHOOL
DISTRICT,
Plaintiff
v.
LYONS CONSTRUCTION
SERVICES, INC.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 04-1660 CIVIL TERM
ORDER OF COURT
AND NOW, this 29th day of September, 2004, upon consideration of Plaintiffs
Motioo To Co_,, , Rill, i, hereby '''0''\ upon "'f,ndant to ,how ,~" why th' reli,f
requested should not be granted.
RULE RETURNABLE within 20 days of service.
~mes D. Flower, Jr., Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiff
~dhir R. Patel, Esq.
Riley and Fanelli, P.C.
The Necho Allen
No. 1 Mahantongo Street
pottsville, PA 17901
Attorney for Defendant
:rc
BY THE COURT,
J.
"1
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JO'0I-0~
\I;'t\}tl;~\ llS/,,-.!t'l:ld
1/ i'l!n.;<". r!_I'~'~l '-~;'I'tr'1"
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61 :ZI Ud DE: d3S 700Z
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n V.t.\Ai 14<. 0 ~ ~i
3JId.:lD-ClJ7/.:I
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYSoAToLAW
26 W. High Street
Carlisle, P A
II
CARLISLE AREA SCHOOL DISTRlCT
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO. 04-1660
Defendant.
MOTION TO MAKE RULE ABSOLUTE
AND NOW, comes the Carlisle Area School District, by and through its attorneys,
Saidis, Shuff, Flower & Lindsay, and makes the following averments:
1. The Plaintiff filed a Complaint in this matter on April 16, 2004, alleging an
inadvertent overpayment of funds in excess of those specified in a construction contract.
2. The Defendant filed an Answer, with New Matter and Counterclaim on or
about May 19, 2004.
3. The Plaintiff filed its Reply to New Matter and Answer to Counterclaim on
June 7, 2004.
4. Plaintiff served its First Set of Interrogatories and its Request for Production
of Documents on counsel for Defendant, Sudhir R. Patel, Esquire by letter of June 18,
2004.
5. Plaintiffs First Set ofInterrogatories and its Request for Production of
Documents were served by certified mail, return receipt requested, with an accompanying
letter dated June 18, 2004.
6.
Defendant's counsel, Sudhir R. Patel, Esquire, accepted service of
Plaintiffs discovery requests by signing the return receipt card on June 19,2004.
7. As of September 22, 2004, Defendant had not served answers to Plaintiff s
discovery requests.
8. On September 22, 2004 Plaintiff filed its Motion to Compel.
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYSoAToLAW
26 W. High Street
Carlisle, PA
II
I
9. Documentation supporting paragraphs 4-6 set forth above is attached to
Plaintiff s Motion to Compel.
10. On September 29,2004, upon consideration of Plaintiffs Motion to
Compel, the Honorable J. Wesley Oler, Jr. entered an order, in which a rule, returnable
within twenty days of service, was issued upon Defendant to show cause why the relief
requested in Plaintiffs Motion should not be granted. A copy of the Court's Order is
attached hereto as Exhibit "A."
11. The Court's order of September 29,2004 was served upon counsel for the
parties on October 1, 2004.
12. As of the date of filing of the instant motion, Defendant has not filed or
served an answer to Plaintiffs Motion to Compel or otherwise responded to the Court's
Order of September 29, 2004.
13. As of the date of filing of the instant motion, Defendant has not served
answers to Plaintiffs First Set ofInterrogatories or to its Request for Production of
Documents.
WHEREFORE, Plaintiff requests the Court to make its September 29,2004 Order
absolute, and order Defendant to serve answers to Plaintiffs First Set of Interrogatories
and Plaintiffs Request for Production of Documents within twenty days after the date of
the Court's Order.
Date: (\JtJy - I ~ :z. OD f
Respectfully submitted,
Saidis, Shuff, Flower & Lindsay
By~~_7 '
~~~...~:~frey, Esqui
Attorney ID #42667
26 West High Street
Carlisle, P A 17013
Phone: 717.243.6222
Fax: 717.243.6510
Attorney for Plaintiff
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS-AT-LAW
26 W. High Street
Carlisle, P A
II
VERIFICATION
I, Brian C. Caffrey, Esquire, attorney for the Plaintiff, Carlisle Area School District,
verify that the statements made in the foregoing MOTION To MAKE RULE ABSOLUTE are
true and correct and certify that I am authorized to do so, the Plaintiff lacks sufficient
knowledge to verify, and this Verification is based on my personal knowledge of the matters
alleged in this pleading. I understand that false statements herein are made subject to the
penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification to authorities.
Saidis, Shuff, Flower & Lindsay
Date: tVe--v . (7, ;2DOtf
a~'~!
By: /'-'
ri n C. Caffrey, Es ir
""
. .
CARLISLE AREA SCHOOL
DISTRlCT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
LYONS CONSTRUCTION
SERVICES, INC.,
Defendant
NO. 04-1660 CIVIL TERM
ORDER OF COURT
AND NOW, this 29th day of September, 2004, upon consideration of Plaintiffs
Motion To Compel, a Rule is hereby issued upon Defendant to show cause why the relief
requested should not be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
~es D. Flower, Jr., Esq.
26 West High Street
Carlisle, P A 17013
Attorney for Plaintiff
~dhir R. Patel, Esq.
Riley and Fanelli, P.C.
The Necho Allen
No.1 Mahantongo Street
Pottsville, P A 17901
Attorney for Defendant
/
l{rlll
~.I
JOJOJ-O~
:rc
, .'
SAIDIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYSoAToLA W
26 W. High Street
Carlisle, PA
II
CARLISLE AREA SCHOOL DISTRICT
Plaintiff,
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
Defendant.
2004 CIVIL TERM, NO, 04-1660
CERTIFICATE OF SERVICE
'rJ..,H\.;
I, Adele Group, certify that on the / '7 day of Novembef- 2004, served a true
and correct copy of the within MOTION TO MAKE RULE ABSOLUTE upon counsel for
Defendant in this matter by depositing same in the United States mail, certified, return receipt,
first class, postage prepaid, addressed as follows:
Lyons Construction Services, Inc.
C/o Sudhir R. Patel, Esquire
Riley and Fanelli, P.C.
The Necho Allen
No.1 Mahantongo Street
Pottsville, PAl 7901
Saidis, Shuff, Flower & Lindsay
(LJdO ;itujV
Adele Group
- - .
c; ,.., ) 0
C,-::J
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=< c..ll ...<
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYSoAToLAW
26 W. High Street
Carlisle, P A
CARLISLE AREA SCHOOL DISTRICT
Plaintiff,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO. 04-1660
Defendant.
MOTION TO MAKE RULE ABSOLUTE
AND NOW, comes the Carlisle Area School District, by and through its attorneys,
Saidis, Shuff, Flower & Lindsay, and makes the following averments:
1. The Plaintiff filed a Complaint in this matter on April 16, 2004, alleging an
inadvertent overpayment of funds in excess of those specified in a construction contract.
2. The Defendant filed an Answer, with New Matter and Counterclaim on or
about May 19,2004.
3. The Plaintiff filed its Reply to New Matter and Answer to Counterclaim on
June 7, 2004.
4. Plaintiff served its First Set of Interrogatories and its Request for Production
of Documents on counsel for Defendant, Sudhir R. Patel, Esquire by letter of June 18,
2004.
5. Plaintiffs First Set of Interrogatories and its Request for Production of
Documents were served by certified mail, return receipt requested, with an accompanying
letter dated June 18, 2004.
6.
Defendant's counsel, Sudhir R. Patel, Esquire, accepted service of
Plaintiffs discovery requests by signing the return receipt card on June 19,2004.
7. As of September 22,2004, Defendant had not served answers to Plaintiffs
discovery requests.
8. On September 22, 2004 Plaintiff filed its Motion to Compel.
" .
SAlOIS
SHUFF, FLOWER
& LINDSAY
A1TORNEYSoAToLAW
26 W. High Street
Carlisle, PA
9. Documentation supporting paragraphs 4-6 set forth above is attached to
Plaintiff s Motion to Compel.
10. On September 29,2004, upon conside:ration of Plaintiffs Motion to
Compel, the Honorable J. Wesley Oler, Jr. entered an order, in which a rule, returnable
within twenty days of service, was issued upon Defendant to show cause why the relief
requested in Plaintiffs Motion should not be granted. A copy of the Court's Order is
attached hereto as Exhibit "A."
11. The Court's order of September 29,2004 was served upon counsel for the
parties on October 1, 2004.
12. As of the date of filing of the instant motion, Defendant has not filed or
served an answer to Plaintiffs Motion to Compel or otherwise responded to the Court's
Order of September 29, 2004.
13. As of the date of filing of the instant motion, Defendant has not served
answers to Plaintiffs First Set ofInterrogatories or to its Request for Production of
Documents.
WHEREFORE, Plaintiff requests the Court to make its September 29,2004 Order
absolute, and order Defendant to serve answers to Plaintiffs First Set ofInterrogatories
and Plaintiff s Request for Production of Documents within twenty days after the date of
Respectfully submitted,
Saidis, Shuff, Flower & Lindsay
. '~. 7
Hl . Caffrey, Esqui
Attorney ID #42667
26 West High Street
Carlisle, P A 17013
Phone: 717.243.6222
Fax: 717.243.6510
Attorney for Plaintiff
the Court's Order.
Date: (\JW - I ~ A 00 f
By:
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYSeATeLAW
26 W. High Street
Carlisle. P A
VERIFICATION
I, Brian C. Caffrey, Esquire, attorney for the Plaintiff, Carlisle Area School District,
verifY that the statements made in the foregoing MOTION To MAKE RULE ABSOLUTE are
true and correct and certifY that I am authorized to do so, the Plaintiff lacks sufficient
knowledge to verifY, and this Verification is based on my personal knowledge of the matters
alleged in this pleading. I understand that false statements herein are made subject to the
penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification to authorities.
Saidis, Shuff, Flower & Lindsay
Date: tV"..."... . /7, ;lDDt{-
a-..,
......-
/
By: ~
ri n C. Caffrey, Es
~
~
1~
CARLISLE AREA SCHOOL
DISTRlCT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
LYONS CONSTRUCTION
SERVICES, INC.,
Defendant
NO. 04-1660 CIVIL TERM
ORDER OF COURT
AND NOW, this 29th day of September, 2004, upon consideration of Plaintiffs
Motion To Compel, a Rule is hereby issued upon Defendant to show cause why the relief
requested should not be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
~es D. Flower, Jr., Esq.
26 West High Street
Carlisle, P A 17013
Attorney for Plaintiff
~dhir R. Patel, Esq.
Riley and Fanelli, P.C.
The Necho Allen
No.1 Mahantongo Street
Pottsville, PA 17901
Attorney for Defendant
/
JO-OI~Otj
:rc
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS'AT'LAW
26 W. High Street
Carlisle, P A
"
CARLISLE AREA SCHOOL DISTRICT
Plaintiff,
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
Defendant.
2004 CIVIL TERM, NO. 04-1660
CERTIFICATE OF SERVICE
I, Adele Group, certify that on the J r:frl'v day of November, 2004, served a true
and correct copy of the within MOTION TO MAKE: RULE ABSOLUTE upon counsel for
Defendant in this matter by depositing same in the United States mail, certified, return receipt,
first class, postage prepaid, addressed as follows:
Lyons Construction Services, Inc.
C/o Sudhir R. Patel, Esquire
Riley and Fanelli, P.C.
The Necho Allen
No.1 Mahantongo Street
Pottsville, P A 17901
Saidis, Shuff, Flower & Lindsay
Udu Ji,ufl-!
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SHUFF, FLOWER
& LINDSAY
ATIORNEYSoAToLAW
26 W. High Street
Carlisle, P A
o
CARLISLE AREA SCHOOL DISTRICT
Plaintiff,
NO
IN THE COURT OF COMMO
CUMBERLAND COUNTY,
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO. 04-1660
Defendant.
ORDEJ~
AND NOW, this ~day of Nv to. .
, 2004, upon
consideration of Plaintiffs motion to make absolute the Court's Order of September 29,
2004, and the Defendant having made no response to the Court's Order, Plaintiffs motion
is hereby granted. The Rule of the Court's September 29,2004 Order is hereby made
absolute, and Defendant is ORDERED and DIRECTED to serve answers to Plaintiffs
First Set of Interrogatories and to Plaintiffs Request for Production of Documents within
twenty days after service of this order.
BY THE COURT,
, 1~fb~
J.
4rian c. Caffrey, Esq.
26 West High Street
Carlisle, PA 17013
Attorney for Plaintiff
>
~dhir R. Patel, Esq.
Riley and Fanelli, P.C.
The Necho Allen
No.1 Mahantongo Street
Pottsville, PA 17901
Attorney for Defendant
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26 W. High Street
Carlisle, P A
11
CARLISLE AREA SCHOOL DISTRICT
PLAINTIFF,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO. 04-1660
DEFENDANT.
MOTION FOR SANCTIONS
AND NOW, comes the Carlisle Area School District, by and through its attorneys,
Saidis, Shuff, Flower & Lindsay, pursuant to Rule 4019 of the Pa. Rules of Civil
Procedure, and makes the following averments:
1. The Plaintiff filed a Complaint in this matter on April 16, 2004, alleging an
inadvertent overpayment of funds in excess of those specified in a construction contract.
2. The Defendant filed an Answer, with New Matter and Counterclaim on or
about May 19,2004.
3. The Plaintiff filed its Reply to New Matter and Answer to Counterclaim on
June 7, 2004.
4. Plaintiff served its First Set of Interrogatories and its Request for Production
of Documents on counsel for Defendant, Sudhir R. Patel, Esquire by letter of June 18,
2004.
5. Plaintiff's First Set ofInterrogatories and its Request for Production of
Documents were served by certified mail, return receipt requested, with an accompanying
letter dated June 18, 2004.
6. Defendant's counsel, Sudhir R. Patel, Esquire, accepted service of
Plaintiff's discovery requests by signing the return receipt card on June 19,2004.
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATTORNEYS.AT.LAW
26 W. High Street
Carlisle, PA
I'
7. As of September 22,2004, Defendant had not served answers to Plaintiff's
discovery requests.
8. On September 22, 2004 Plaintiff filed its Motion to Compel.
9. Documentation supporting paragraphs 4-6 set forth above is attached to
Plaintiff's Motion to Compel.
10. On September 29,2004, upon consideration of Plaintiff's Motion to
Compel, the Honorable J. Wesley Oler, Jr. entered an order, in which a rule, returnable
within twenty days of service, was issued upon Defendant to show cause why the relief
requested in Plaintiff's Motion should not be granted. A copy of the Court's Order is
attached hereto as Exhibit "A."
11. The Court's order of September 29,2004 was served upon counsel for the
parties on October 1, 2004.
12. As of November 17,2004, Defendant had not filed or served an answer to
Plaintiff's Motion to Compel or otherwise responded to the Court's Order of September
29,2004.
13. On or about November 17,2004 Plaintiff filed a motion to make the Court's
Order of September 29, 2004 absolute.
14. On November 29,2004 the Court, by Judge Oler, entered an order making
its order of September 29, 2004 absolute and ordering and directing Defendant to serve
answers to Plaintiff's discovery requests within twenty days after service of the order. A
copy of the Court's Order is attached hereto as Exhibit "B."
15.
Plaintiff served Defendant with a copy of the Court's November 29,2004
order on December 1,2004. See Exhibit "C," attached hereto, consisting of undersigned
counsel's December 1,2004 letter and return receipt signed by Defense counsel's agent.
3
SAlOIS
SHUFF, FLOWER
& LINDSAY
AITORNEYSoAToLA W
26 W. High Street
Carlisle. P A
16. As of the date of filing of the instant motion, Defendant has not served
answers to Plaintiffs First Set ofInterrogatories or to its Request for Production of
Documents.
17. Undersigned counsel contacted counsel for Defendant, Sudhir R. Patel,
Esquire, in writing by facsimile transmission on December 23,2004, to seek his
concurrence in the instant motion. Undersigned counsel's letter is attached hereto as
Exhibit "D."
18. As of the date of filing the instant motion, counsel for Defendant had not
responded to undersigned counsel's December 23,2004 letter.
19. Plaintiff has incurred considerable attorneys' fees in the preparation and
prosecution of its Motion to Compel, its Motion to Make Rule Absolute, and the instant
motion.
WHEREFORE, Plaintiff requests the Court to order the following relief:
a. Default judgment in favor of Plaintiff, or in the alternative,
b. An order that the allegations of Plaintiffs complaint be taken as established
and/or that Defendant be prohibited from opposing Plaintiffs claims and/or
presenting evidence in support of Defendant' s claims, defenses and
counterclaim, or in the alternative,
c. An order prohibiting Defendant from introducing into evidence any of the
documents sought by Plaintiff in its Request for Production, and
d.
An order directing Defendant to pay to Plaintiff its attorneys' fees incurred
in the preparation and prosecution of its Motion to Compel, its Motion to
Make Rule Absolute, and the instant motion, such fees to be determined at a
subsequent hearing.
4
SAlOIS
SHUFF, FLOWER
& LINOSAY
ATIORNEYSoAToLAW
26 W. High Street
Carlisle. P A
"
Date:
Respectfully submitted,
Saidis, Shuff, Flower & Lindsay
c12' II J3'
By: ,f;} L:.
. rian C. Caffrey, Esq-~.
Attorney ID #42667 tf.t
26 West High Street
Carlisle, P A 17013
Phone: 717.243.6222
Fax: 717.243.6510
Attorney for Plaintiff
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SAlOIS
SHUFF, FLOWER
& LINDSAY
ATTORNEYS.AT-LAW
26 W. High Street
Carlisle, P A
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VERIFICATION
I, Brian C. Caffrey, Esquire, attorney for the Plaintiff, Carlisle Area School District,
verify that the statements made in the foregoing MOTION FOR SANCTIONS are true and
correct and certify that I am authorized to do so, the Plaintiff lacks sufficient knowledge to
verify, and this Verification is based on my personal knowledge of the matters alleged in this
pleading. I understand that false statements herein are made subject to the penalties of 18 Pa.
C.S. 9 4904, relating to unsworn falsification to authorities.
Saidis, Shuff, Flower & Lindsay
Date: /;< -- 27-0,/
6
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CARLISLE AREA SCHOOL
DISTRlCT,
Plaintiff
IN THE COURT OF COMM:ON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL,ACTION -LAW
LYONS CONSTRUCTION
SERVICES, INC.,
Defendant
NO. 04-1660 CIVIL TERM
ORDER OF COURT
AND NOW, ~is 29th day of September, 2004, upon consideration of Plaintiffs
Motion To Compel, a Rule is hereby issued upon Defendant to show cause why the relief
requested should not be granted.
RULE RETURNABLE within 20 days of service.
BY THE COURT,
~es D. Flower, Jr., Esq.
26 West High Street
Carlisle, P A 17013
Attorney for Plaintiff
~dhir R. Patel, Esq.
Riley and Fanelli, P.C.
The Necho Allen
No.1 Mahantongo Street
Pottsville, P A 17901
Attorney for Defendant
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SAlOIS
:HUFF, FLOWER
& LINDSAY
ATTORNEYS.AT.LAW
26 W. High Street
Carlisle, P A
NOV 1 9 2004
CARLISLE AREA SCHOOL DISTRICT
Plaintiff,
IN THE COURT OF C01\.1MON PLEAS
CUMBERLAND COUNTY,
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CIVIL TERM, NO. 04-1660
Defendant.
AND NOW, this
11th
ORDER
UrJ\/ .
, 2004, upon
day of
consideration of Plaintiff's motion to ma1ce absolute the Court's Order of September 29,
2004, and the Defendant having made no response to the Court's Order, Plaintiffs motion
is hereby granted. The Rule of the Court's September 29,2004 Order is hereby made
absolute, and Defendant is ORDERED and DIRECTED to serve answers to Plaintiffs
First Set of Interrogatories and to Plaintiff's Request for Production of Documents within
twenty days after service of this order.
BY THE COURT,
/S/ d -16'1 {[)jLAJi::k,
Brian C. Caffrey, Esq.
26 West High Street
Carlisle, P A 17013
Attorney for Plaintiff
Sudhir R. Patel, Esq.
Riley and Fanelli, P .C.
The Necho Allen
No.1 Mahantongo Street
Pottsville, P A 17901
Attorney for Defendant
JOHNE.SLIKE
ROBERT C. SAIDlS
GEOFFREY S. SHUFF
JAMES D. FlDWER, JR
CAROL]. LINDSAY
BRIAN C CAFFREY
GEORGE F. DOUGLAS, III
MA ITHEWJ. FSHELMANt
THOMAS E. FlDWER
LINDSA Y GINGRICH MACLA Y
] ACL YN SMITH
LAW OFFICES
SAID IS, SHUFF, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
CARliSLE, PENNSYLVANIA 17013
TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
EMAlL: attorney@ssfI-Iaw.com
www.ssfl-law.com
fIL[ COpy
CAMP HILL OFFICE:
2109 MARKET STREET
CAMP HILL. P A 17011
TELEPHONE: (717)737-3405
FACSIMIL.E: (717)737-3407
tBoDrd Ccruflcd Creditors'
Rlglll.s Rcprcscm.ntJol1
REPLY TO CARLISLE
December 1, 2004
Via Certified Mail, Return Receipt
Sudhir R. Patel, Esq.
RILEY AND FANELLI, P .C.
The Necho Allen
No.1 Mahantongo Street
Pottsville, P A 17901
RE: CARLISLE AREA SCHOOL DISTRICT v. LYONS CONSTRUCTION SERVICES, INC.
DOCKET No. 2004 CIVIL TERM, No. 04-1660
Dear Mr. Patel:
today.
I am enclosing a copy ofthe Court's Order to make the Rule Absolute, which I received
Please co~pl:)Twi!~Jg~ ~Qllrt'sOrder. Thank you.
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Very truly yours,
~ S" ervice
;f"ERTIFIED MAil RECEIPT
(Domestic Mall Only; No Insurance COlIP, <19" p, D",Ocrl)
Postage
$~(p/)
:1.30
1.15
Certified Fee
Return Receipt Fee
Endorsement ReqUired)
!'estrlcted Delivery Fee
=ndorsement ReqUired)
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Saidis, Shuff, Flower & Lindsay
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Brian C. Caffrey, Esquire
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CARLISLE AREA SCHOOL DISTRICT
PLAINTIFF,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
VS.
LYONS CONSTRUCTION SERVICES,
INC.,
2004 CML TERM, NO. 04-1660
DEFENDANT.
SENDER L'OI\IPLF rr r j' . ('T/ON
l ~) f', 1 J \ t f ; f 'f t j' f r I j \ ~ I } r.. '1 j J \ ( I
. <;.omplete items 1, 2, and 3. Also complete
i~m 4 if Restricted Delivery is desired.
. P'nt your name and address on the reverse
se that we can return the card to you.
. Attach this card to the back of the mail piece.
or on the front if space permits.
51. Arti;le/:~dresse<}/o:(}jti k6 /,U It
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(Transfer from service label)
PS Form 3811. August 2001
7001 2510 0000 3040 0317
Domestic Retum Receipt
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]OHNE.SLIKE
ROBERI' C. SAlDIS
GEOFFREYS. SHUFF
]AMESD.FLOWERJR
CAroLJ. LINn3AY
BRIAN C CAFFREY
GEORGE F. DOUa..A5, ill
MATIHEWJ. ESHELMANt
THOMASE. FLOWER
LINDSAY GINGRlrn MACLAY
JACLYNSMlTH
LAW OFFICES
SAIDIS, SHUFF, FLOWER & LINDSAY
A PROFESSIONAL CORPORATION
26 WEST HIGH STREET
CARUSLE, PENN SYLVANIA 17013
TELEPHONE: (717) 243-6222 - FACSIMILE: (717) 243-6486
EMAIL: attomey@ssfl-Iaw.com
www.ssfl-law.com
FILE COpy
December 23, 2004
Via Facsimile 570.622.5336 & Regular Mail
Sudhir R. Patel, Esq.
RILEY AND FANELLI, P.C.
The N echo Allen
No.1 Mahantongo Street
Pottsville, P A 17901
CAMP HlLL OFFICE:
2109 MA.RKIIT STREET
CAM' Hll..I.. P A 17011
TELEPHONE: (717)737-3405
FACSIMILE: (717)737-3407
tBoard Ccr1iftod C<cdilors'
Righ1s RoprcsontatiOll
REPLY TO CARLISLE
RE: CARLISLE AREA SCHOOL DISTRICT V. LYONS CONSTRUCTION SERVICES, INc.
DOCKET No. 2004 CIVIL TERM, No. 04-1660
Dear Mr. Patel:
As a consequence of your client's failure to comply with the Court's Order of November
29,2004 directing your client to respond to my client's Interrogatories and Request for
Production of Documents, I have prepared a Motion for Sanctions against your client. Local
Rules of Court require me to inquire of you whether or not you concur in the motion. Please let
me know by noon on Monday, December 27 whether you concur in the Motion. Thank you for
your cooperation. .
BCC: ahg
Cc: Robert Craig Williams
Very truly yours,
Saidis, Shuff, Flower & Lindsay
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SAlOIS
SHUFF, FLOWER
& LINDSAY
ATIORNEYS'AT'LAW
26 W. High Street
Carlisle, PA
II
CARLISLE AREA SCHOOL DISTRICT
Plaintiff,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
Defendant.
2004 CIVIL TERM, NO. 04-1660
CERTIFICATE OF SERVICE
I, Adele Group, certify that on the ~ 1~ day of December, 2004, served a true
and correct copy of the within MOTION FOR SANCTIONS upon counsel for Defendant in this
matter by depositing same in the United States mail, certified, return receipt, first class,
postage prepaid, addressed as follows:
Lyons Construction Services, Inc.
C/o Sudhir R. Patel, Esquire
Riley and Fanelli, P.C.
The Necho Allen
No. 1 Mahantongo Street
Pottsville, P A 17901
Saidis, Shuff, Flower & Lindsay
w~
Adele Group
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CARLISLE AREA SCHOOL DISTRICT,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v
CIVIL ACTION - LAW
LYONS CONSTRUCTION SERVICES,
INC. ,
Defendant 04-1660 CIVIL TERM
IN RE: MOTION FOR SANCTIONS
ORDER OF COURT
AND NOW, this 9th day of February, 2005, upon
consideration of Plaintiff's Motion for Sanctions, and pursuant
to an agreement of counsel in the person of James D. Flower, Jr.,
Esquire, and Brian C. Caffrey, Esquire, on behalf of the
Plaintiff and Sudhir R. Patel, Esquire, on behalf of the
Defendant, it is ordered and directed as follows:
1. Plaintiff's Motion for Sanctions is granted.
2. Defendant Lyons Const~uction Services, Inc.,
shall make a payment of $215,000.00 to Plaintiff's counsel by
Friday, February 11, 2005, which payment shall be held in escrow
pending further order of this Court. The purpose of the escrow
deposit provided for herein is to provide some security to the
Plaintiff in the event that the Plaintiff is successful in this
action.
3. Defendant Lyons Construction Services, Inc.,
shall make a payment of $3,500.00 to Plaintiff's counsel, which
sum represents Plaintiff's reasonable counsel fees and costs for
noncompliance with this Court's discovery orders, said payment to
be made by Friday, February 11, 2005.
4. Defendant shall make a complete answer in
response to the pending discovery requests of Plaintiff and shall
deliver all nonpriveleged documents related to the Carlisle Area
School District High School construction project to Plaintiff's
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counsel's office by Friday, February 11, 2005.
By the Court,
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J. Wesley 01 ,., .
~mes D. Flower, Jr., Esquire
Brian C. Caffrey, Esquire
26 West High Street
Carlisle, PA 17013
For the Plaintiff
~dhir R. Patel, Esquire
Riley and Fanelli, PoCo
The Necho Allen
No. 1 Mahantongo Street
Pottsville, PA 17901
For the Defendant
:mae
~
0:;"-/0 -05
PRAECIPE FOR LISTING CASE i~R TRIAL
(Must be typewritten and submitted in duplicate)
TO THE POOTHOIDrARY OF CUMBERLAND COUNTY
Please list the following case:
(Check one)
for JURY trial at the next tenn of civil court.
( x
for trial without a jury.
-----------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
(check one)
(x)
civil Action - Law
Carlisle Area School District,
Appeal from Arbitration
(other)
(Plaintiff)
vs.
Lyons Construction Services, Inc.,
The trial lis t will be called on
and August 23, 2005
Trials corrrrence on September 19, 2005
(Defendant)
Pretrials will be held on Auaust 31. 2005
(Briefs are due 5 days before pretrials.)
vs.
(The party listing this case for trial shall
provide fortmd th a copy of the praecipe to
all counsel, pursuant to local Rule 214.1.)
No. 04-1660 Civil
}!:~ 2004
Indicate the attorney who will try case for the pccr:ty who files this praecipe:
Brian C. Caffrey, Esquire
Indicate trial counsel for other parties if known: Sudhir R. Patel, Esquire,
No. 1 Mahantango Street, Pottsville, PA 17901 Phone: 570.622.2455
This case is ready for trial.--
**Defendant's principal's deposition
postponed due to mother's illness.
~"\
Signed: I::::/cTI-
Print Narre: Brian C.
Date:
August 1, 2005
Attorney for: Plaintiff
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CARLISLE AREA SCHOOL DISTRICT, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERU\ND COUNTY, PENNSYLVANIA
V.
LYONS CONSTRUCTION SERVICES,
INC.,
DEFENDANT
AND NOW, this
: 04-1660 CIVIL TERM
ORDER OF COURT
~
day of August, 2005, a bench trial shall
commence at 1 :30 p.m., Monday, August 29, 2005, in Courtroom Number 2,
Cumberland County Courthouse, Carlisle, Pennsylvania.
~ian C. Caffrey, Esquire
26 West High Street
Carlisle, PA 17013
For Plaintiff
~dhir R. Patel, Esquire
The Necho Allen
No.1 Mahantongo Street
Pottsville, PA 17901
For Defendant
Court Administrator
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CARLISLE AREA SCHOOL DISTRICT, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
V.
LYONS CONSTRUCTION SERVICES,
INC.,
DEFENDANT
04-1660 CIVIL TERM
ORDER OF COURT
~
2--) day of August, 2005, the bench trial currently
AND NOW, this
scheduled for August 29,2005, is cancelled and rescheduled to 8:45 a.m., Thursday,
November 3, 2005, in Courtroom Number 2, Cumberland County Courthouse, Carlisle,
Pennsylvania.
By the Co~
t/
Brian C. Caffrey, Esquire
26 West High Street
Carlisle, PA 17013
For Plaintiff
Sudhir R. Patel, Esquire
The Necho Allen
NO.1 Mahantongo Street
Pottsville, PA 17901
For Defendant
Court Administrator - ..L-' ~
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26 W. High Street
Carlisle, P A
CARLISLE AREA SCHOOL DISTRICT
PLEAS
PLAINTIFF,
vs.
LYONS CONSTRUCTION SERVICES,
INC.,
DEFENDANT.
: IN THE COURT OF COMMON
: CUMBERLAND COUNTY,
: PENNSYLVANIA
2004 CNIL TERM, NO. 04-1660
PRAECIPE TO SETTLE, DISCONTINUE AND END ACTION
TO THE PROTHONOTARY:
Please mark the above-captioned action settled, discontinued and ended.
Date: 11- J' - OS"'--
Saidis, Shuff, Flower & Lindsay
By:
/
.
SAlOIS
SHUFF, FLOWER
& LINDSAY
ATTORNEYS-AT-LAW
26 W. High Street
Carlisle, P A
CERTIFICATE OF SERVICE
I hereby certify that on November 8, 2005 I served a copy of the foregoing
Praecipe on Sudhir R. Patel, Esquire, attorney for Defendant, by causing it to be
mailed via first class U.S. Mail to his address at Riley & Fanelli, P.c., The Necho
Allen, No. I Mahantongo Street, Pottsville, PA 17901.
agri
rian C. Caffrey
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