Back

eCases

Search Menu

Court of Appeals of Texas

Document Info

DocketNumber： 15-0674

Filed Date： 11/16/2015

Status： Precedential

Modified Date： 4/17/2021

FILED
15-0674
11/16/2015 2:17:39 PM
tex-7866695
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
1R
,QWKH
6XSUHPH&RXUWRI7H[DV

2ULJLQDO3URFHHGLQJ

,QUH)RUXP6WXGLR,QF
DQG&OD\FR,QF )URPWKHWK'LVWULFW&RXUW
Relators

2I'DOODV&RXQW\7H[DV

5HDO3DUW\LQ,QWHUHVW¶V$SSHQGL[

465 U.S. 1

, 10 (1984); Jack B. Anglin Co., Inc. v. Tipps,

842 S.W.2d 266

, 268
(Tex. 1992).
7
United Offshore Company v. Southern Deepwater Pipeline Co.,

899 F.2d 405

, 408 (5th Cir.1990); Colt
Unconventional Resources, LLC v. Resolute Energy Corp., CA No. 3:13–CV–1324–K,

2013 WL 3789896

, 3 (N.D.
Tex. July 19, 2013); In re First Merit Bank, N.A.,

52 S.W.3d 749

, 753 (Tex. 2001).
8
See Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp.,

460 U.S. 1

, 24 (1983); Rojas v. TK Commc’ns, Inc.,

87 F.3d 745

, 749 (5th Cir. 1996); Austin Mun. Sec., Inc. v. Nat’l. Ass’n of Sec. Dealers, Inc.,

757 F.2d 676

, 696 (5th
Cir. 1985); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,

473 U.S. 614

, 626 (1985).
9
American Heritage v. Lang,

321 F.3d 533

, 537 (5th Cir. 2003); Webb v. Investacorp,

89 F.3d 252

, 257 (5th Cir.
1996).
10
Fedmet Corp. v. M/V Buyalyk,

194 F.3d 674

(5th Cir. 1999). Colt Unconventional Resources, LLC v. Resolute
Energy Corp., CA No. 3:13–CV–1324–K,

2013 WL 3789896

, 3 (N.D. Tex. July 19, 2013).
11
Alford v. Dean Witter Reynolds, Inc.,

975 F.2d 1161

, 1164 (5th Cir.1992).
DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION
Page 3 of 6
R.P. Appx. 308
In rejecting Plaintiffs’ Application to Stay Arbitration, this Court determined that a valid
12
arbitration agreement exists and that the Parties’ claims fall within its scope.                              An order
compelling arbitration is now required. Under the very statute Plaintiffs invoked, “[i]f the Court
13
finds for the party opposing the stay, the court shall order the parties to arbitrate.”                  To formally
enforce this Court’s prior Order, the Court should grant this Motion and stay the instant matter
pending arbitration.
III.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant Intellicenter Dallas Investments
LLP requests that the Court grant this Motion to Compel Arbitration and award all relief, in law
and in equity, to which it may show itself justly entitled.
12
See March 17, 2015 Order Denying Plaintiffs’ Application to Stay Arbitration. As it did in its Response to
Plaintiffs’ Application to Stay Arbitration, Intellicenter notes that FS does not seek to avoid arbitration as a “non-
signatory” to the Contract. But even had FS asserted this defense, it would ultimately fail. Non-signatories to a
contract containing an arbitration clause may be required to arbitrate under principles of equity. See In re Labatt
Food Serv., L.P.,

279 S.W.3d 640

, 644 (Tex. 2009); see also In re Weekley Homes, L.P.,

180 S.W.3d 127

, 131 (Tex.
2005). To that end, Texas courts recognize the doctrine of direct benefits estoppel. “Under the doctrine of ‘direct
benefits equitable estoppel,’ a person who has not agreed to arbitrate may nevertheless be compelled to do so when
the person seeks to derive a direct benefit from the contract containing the arbitration provision.” In re Morgan
Stanley & Co., Inc.,

293 S.W.3d 182

(Tex. 2009). Direct benefits equitable estoppel also applies to a non-signatory
who sues on a contract containing an arbitration clause.

Id. Here, there

can be no dispute that FS received direct,
financial benefits from the Contract—the same agreement on which it has filed suit. As a result, claims arising out
of or related to the services FS rendered are properly subject to binding arbitration.
13
TEX. CIV. PRAC. & REM. CODE ANN. § 171.023(c) (emphasis added).
DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION
Page 4 of 6
R.P. Appx. 309
Respectfully submitted,
MUNSCH HARDT KOPF & HARR, P.C.
/s/ Greg Noschese
Greg C. Noschese
State Bar No. 00797164
John Devin Wagner
State Bar No. 24090451
500 North Akard Street, Suite 3800
Dallas, Texas 75201-6659
(214)855-7500 (Telephone)
(214)855-7584 (Facsimile)
gnoschese@munsch.com
dwagner@munsch.com
ATTORNEYS FOR DEFENDANT
INTELLICENTER DALLAS
INVESTMENTS LLP
CERTIFICATE OF CONFERENCE
I hereby certify that on March 27, 2015, the undersigned conferred with counsel for
Plaintiffs in an attempt to resolve the issues discussed herein. Those efforts failed, necessitating
the filing of this Motion.
/s/ Greg C. Noschese
Greg C. Noschese
DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION
Page 5 of 6
R.P. Appx. 310
CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of March, 2015, a true and correct copy of the
foregoing instrument was served on the following by Eserve:
Kenneth B. Chaiken
CHAIKEN & CHAIKEN, PC
5801 Tennyson Pkwy, Suite 440
Plano, TX 75024
(214)265-0250
(214)265-1537 (fax)
Email: kchaiken@chaikenlaw.com
R. Thomas Avery
BLITZ, BARDGETT & DEUTSCH, LC
120 South Central Avenue, Suite 1650
St. Louis, Missouri 63105
(314)863-1500
(314)863-1877 (Fax)
Email: rtavery@bbdle.com
/s/ Greg C. Noschese
Greg C. Noschese
DEFENDANT INTELLICENTER DALLAS INVESTMENT LLP’S
MOTION TO COMPEL ARBITRATION
Page 6 of 6
R.P. Appx. 311
6025276v.1
FILED
DALLAS COUNTY
3/16/2015 4:37:05 PM
FELICIA PITRE
DISTRICT CLERK
DC-15-02018
FORUM STUDIO, INC. and § IN THE DISTRICT COURT
CLAYCO, INC., §
§
Plaintiffs, §
§
v. § OF DALLAS COUNTY, TEXAS
§
INTELLICENTER DALLAS §
INVESTMENTS LLP, §
§
Defendants. § 160TH JUDICIAL DISTRICT
DEFENDANT INTELLICENTER DALLAS INVESTMENTS LLP's RESPONSE TO
PLAINTIFF’S APPLICATION TO STAY ARBITRATION
Defendant Intellicenter Dallas Investments LLP (“Intellicenter”) files its Response to
Plaintiffs’ Application to Stay Arbitration. In support thereof, Intellicenter would respectfully
show as follows:
I.
FACTUAL BACKGROUND AND INTRODUCTION
On or about May 19, 2006, Intellicenter contracted with Plaintiff Clayco, Inc. ("Clayco")
under a Design Build contract ("Contract") for the design and construction of a 4 story
speculative office building consisting of approximately 211,637 square feet located at 3701
Regent Boulevard, Irving Texas ("Project"). 1 The Contract assigned Clayco as the general
contractor and Plaintiff Forum Studio, Inc. (“FS”) as the Project’s architect. Clayco and FS are
collectively referred to as “Plaintiffs”. 2
1
See Standard Form Agreement Between Owner and Contract and General Conditions of the Contract for
Construction, a true and correct copy of which is attached hereto as Exhibit A.
2
See

id. at 1.

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 1 of 12
R.P. Appx. 312 1
Pursuant to Section 4.6.1 of the Contract, the Parties agreed that "[a]ny Claim arising out
of related to the Contract . . . shall be subject to binding arbitration.” The clause further provides
that “[p]rior to arbitration, the parties shall endeavor to resolve disputes by mediation.” Section
4.6.2 of the Contract instructs that “[c]laims not resolved in mediation shall be decided by
binding arbitration which, unless the parties mutually agree otherwise, shall be in accordance
with the Construction Industry Arbitration Rules of the American Arbitration Association.”
On or about September 5, 2014, Intellicenter filed a demand for arbitration to recover the
losses sustained as a result of Plaintiffs’ breach of contract, breach of implied warranty, unjust
enrichment, deficient design, fraud and/or negligent misrepresentation. 3 The Parties
subsequently submitted the claims to mediation before Judge Glen M. Ashworth. Efforts to
resolve the dispute in mediation failed. As expressly stipulated by the terms of the Contract,
Intellicenter began preparing for arbitration before the AAA.
On February 20, 2015, Plaintiffs filed their Original Petition requesting a stay of the
arbitration proceedings and related Motion for Dismiss and Request for Declaratory
Judgment. 4 Arguing that Intellicenter failed to satisfy “a condition precedent” to its right to
arbitrate, Plaintiffs contend the right has been waived. 5 Intellicenter filed its answer and
counterclaims on March 2, 2015.
Intellicenter now files this Response to Plaintiffs’ Application to Stay the Arbitration
Case (“Response”). The plain terms of the Contract and binding precedent instruct that the
arbitrability of this dispute be decided solely by the AAA. And Plaintiffs’ grounds for avoiding
3
See Intellicenter’s Demand for Arbitration, a true and correct copy of which is attached hereto as Exhibit B.
4
See Plaintiff’s Original Petition, at ¶¶ 26-35.
5

Id. at ¶

27.
Defendant's Response to Plaintiffs' Application to Stay Arbitration                                        Page 2 of 12
R.P. Appx. 313                                                                                                       2
arbitration merely demonstrate why it is required. This Court should refuse to disturb the
Parties’ agreement and deny the application to stay arbitration.
II.
ARGUMENT AND AUTHORITIES
1.         THE ARBITRABILITY OF THIS DISPUTE IS A MATTER RESERVED FOR THE AAA.
“An arbitrator's jurisdiction is defined by the parties' contract.” 6 The arbitrator has the
power to decide what matters are arbitrable where the arbitration clause “clearly and
unmistakably” gives that power to the arbitrator. 7 Here, the Parties “clearly and unmistakably”
gave that power to the AAA.
The Contract’s arbitration clause is broad, covering “[a]ny claim arising out of or related
to the Contract.” 8 Federal and state courts agree that the broader the arbitration clause, the
stronger the presumption of arbitrability. 9 In addition, “the express incorporation of rules that
empower the arbitrator to determine arbitrability—such as the AAA Commercial Arbitration
Rules—has been held to be clear and unmistakable evidence of the parties' intent to allow the
arbitrator to decide such issues.” 10 The Parties elected to pursue arbitration “in accordance with
6
Am. Realty Trust, Inc. v. JDN Real Estate- McKinney, L.P.,

74 S.W.3d 527

, 531 (Tex. App.—Dallas 2002, pet.
denied).
7
Howsam v. Dean Witter Reynolds,

537 U.S. 79

, 83 (2002).
8
See Exhibit A, at 4.6.1; see also Ascendant Anesthesia PLLC v. Abazi,

348 S.W.3d 454

, 461 (Tex. App.—Dallas
2011, no pet.) (noting arbitration provision that assigns “any controvery, dispute, or claim” to arbitration is
construed broadly and in favor of arbitration); 950 Corbindale, L.P. v. Kotts Capital Holdings Ltd. P'ship,

316 S.W.3d 191

, 195–96 (Tex.App.—Houston [14th Dist.] 2010, no pet.) (“presumption of arbitrability is particularly
applicable when the clause is broad; that is, it provides for arbitration of ‘any dispute arising between the parties'”).
9
See, e.g., AT&T Technologies, Inc. v. Communications Workers of America,

475 U.S. 643

, 650 (1986).
10
Schlumberger Tech. Corp. v. Baker Hughes Inc.,

355 S.W.3d 791

, 802 (Tex. App.—Houston [1st Dist.] 2011, no
pet.); see also Qualcomm Inc. v. Nokia Corp.,

466 F.3d 1366

, 1372–73 (Fed. Cir. 2006) (concluding that
agreement's incorporation of AAA rules clearly and unmistakably showed parties' intent to delegate issue of
determining arbitrability to arbitrator); Terminix Int'l Co., LP v. Palmer Ranch Ltd. P'ship,

432 F.3d 1327

, 1332–33
(11th Cir. 2005) (holding that by incorporating AAA Rules into arbitration agreement, parties clearly and
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 3 of 12
R.P. Appx. 314 3
the Construction Industry Arbitration Rules of the American Arbitration Association.”
(“CIARAAA”). 11 The CIARAAA recognize the arbitrator’s authority “to rule on his or her own
jurisdiction, including any objections with respect to the existence, scope or validity of the
arbitration agreement.” 12 Thus, the breadth of the arbitration clause and specific language of the
applicable rules mandate that issues of arbitrability remain with the AAA. Plaintiffs’ application
to stay the proceedings should thus be denied.
2. THE ARBITRATION CLAUSE COVERS THE PARTIES’ DISPUTE.
Alternatively, if the Court finds it may properly decide arbitrability, the arbitration clause
subsumes the Parties’ dispute. Both Texas and federal courts have long shown favor toward the
13
enforcement of arbitration agreements. Because state and federal policies continue to favor
14
arbitration, a presumption exists favoring agreements to arbitrate. In light of these strong state
and federal policies, Texas and federal courts agree that any written agreement to submit a
dispute to arbitration should be liberally construed, and any doubt as to the arbitrability –
unmistakably agreed that arbitrator should decide whether arbitration clause was valid); Contec Corp. v. Remote
Solution, Co.,

398 F.3d 205

, 208 (2d Cir. 2005) (“[W]hen ... parties explicitly incorporate rules that empower an
arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties'
intent to delegate such issues to an arbitrator.”); Citifinancial, Inc. v. Newton,

359 F. Supp. 2d 545

, 549–52 (S.D.
Miss. 2005) (holding that by agreeing to be bound by procedural rules of AAA, including rule giving arbitrator
power to rule on his or her own jurisdiction, defendant agreed to arbitrate questions of jurisdiction before arbitrator);
Sleeper Farms v. Agway, Inc.,

211 F. Supp. 2d 197

, 200 (D. Me. 2002) (holding arbitration clause stating that
arbitration shall proceed according to rules of AAA provides clear and unmistakable delegation of scope-
determining authority to arbitrator).
11
Exhibit A, at 4.6.2.
12
CIARAAA R-9(a).
13
See Southland Corp. v. Keating,

465 U.S. 1

, 10 (1984); see also Jack B. Anglin Co., Inc. v. Tipps,

842 S.W.2d 266

, 268 (Tex. 1992).
14
United Offshore Company v. Southern Deepwater Pipeline Co.,

899 F.2d 405

, 408 (5th Cir. 1990); Colt
Unconventional Resources, LLC v. Resolute Energy Corp., CA No. 3:13–CV–1324–K,

2013 WL 3789896

, 3 (N.D.
Tex. July 19, 2013); In re First Merit Bank, N.A.,

52 S.W.3d 749

, 753 (Tex. 2001).
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 4 of 12
R.P. Appx. 315 4
whether construction of the contract or any defense to arbitrability – should be resolved in favor
15
of arbitration.
Generally, if the facts alleged “touch matters,” have a “significant relationship” to, are
“inextricably enmeshed” with, or are “factually intertwined” with the contract that is subject to
the arbitration agreement, the matter is arbitrable. 16 However, if the facts alleged are completely
independent of the contract, and the claim could be maintained without reference to the contract,
the claim is not subject to arbitration. 17 The Federal Arbitration Act strongly favors arbitration
and, as discussed above, any doubts as to whether a claim falls within the scope of an arbitration
agreement must be resolved in favor of arbitration. 18 Thus, Plaintiffs’ application to stay
arbitration should be denied “unless it can be said with positive assurance that the arbitration
clause is not susceptible to an interpretation which would cover the dispute at issue.” 19
The live pleadings clearly demonstrate the inextricably enmeshed nature of the terms of
the Contract and the allegations at play. Plaintiffs’ Original Petition concerns conditions to
invoking the arbitration clause and the “contractual accrual date” of Intellicenter’s claims and
causes of action. 20 Similarly, Intellicenter’s allegations turn on whether Plaintiffs designed and
constructed the Project in accordance with their contractual obligations. It is self-evident that an
adjudicator cannot resolve these disputes “without reference to the contract,” as each are
15
See Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp.,

460 U.S. 1

, 24 (1983); Rojas v. TK Commc’ns, Inc.,

87 F.3d 745

, 749 (5th Cir. 1996); Austin Mun. Sec., Inc. v. Nat’l. Ass’n of Sec. Dealers, Inc.,

757 F.2d 676

, 696 (5th
Cir. 1985); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,

473 U.S. 614

, 626 (1985).
16
Pennzoil Co. v. Arnold Oil Co., Inc.,

30 S.W.3d 494

, 498 (Tex. App.—San Antonio 2000, no pet.).
17

Id. (citing Fridl

v. Cook,

908 S.W.2d 507

, 511 (Tex. App.—El Paso 1995, writ dism'd w.o.j.) (emphasis added).
18

Id. 19 Id.

(internal quotation and citations omitted); see also, AT & T Technologies, Inc. v. Communications Workers of
Am.,

475 U.S. 643

, 650 (1986).
20
See Plaintiffs’ Original Petition, at ¶¶ 24, 27.
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 5 of 12
R.P. Appx. 316 5
factually intertwined with the very terms to which the Parties agreed. Because the allegations
and Contract cannot be divorced, this Court cannot “with positive assurance” determine that
arbitration should be stayed. Accordingly, Plaintiffs’ application to stay the proceedings should
be denied. 21
3. PLAINTIFFS’ POSITION MERELY PROVES WHY ARBITRATION IS REQUIRED.
Plaintiffs aver that Intellicenter’s compliance with Section 150.002 of the Texas Civil
Practices & Remedies Code represents a “condition precedent” to Intellicenter’s right to
arbitration. 22 Plaintiffs argue Intellicenter “waive[d]” that right because the “condition precedent
cannot be satisfied.” 23 The argument is unavailing, misguided and simply self-defeating.
Unlike issues of substantive arbitrability, “[p]rocedural arbitrability is the province of the
arbitrator.” 24 Procedural arbitrability entails “[i]ssues of notice, time limits, laches, and
estoppel,” or “generally any issue requiring the adjudicator to decide if a party has satisfied the
prerequisites” of a right to arbitration. 25 “[W]hether the issue is described as being a failure to
21
Intellicenter notes that FS does not seek to avoid arbitration as a “non-signatory” to the Contract. That issue is
thus not properly before the Court. But even if FS had asserted this defense, it would ultimately fail. Non-
signatories to a contract containing an arbitration clause may be required to arbitrate under principles of equity. See
In re Labatt Food Serv., L.P.,

279 S.W.3d 640

, 644 (Tex. 2009); see also In re Weekley Homes, L.P.,

180 S.W.3d 127

, 131 (Tex. 2005). To that end, Texas courts recognize the doctrine of direct benefits estoppel. “Under the
doctrine of ‘direct benefits equitable estoppel,’ a person who has not agreed to arbitrate may nevertheless be
compelled to do so when the person seeks to derive a direct benefit from the contract containing the arbitration
provision.” In re Morgan Stanley & Co., Inc.,

293 S.W.3d 182

(Tex. 2009). Direct benefits equitable estoppel also
applies to a nonsignatory who sues on a contract containing an arbitration clause.

Id. Here, there

can be no dispute
that FS received direct, financial benefits from the Contract—the same agreement on which it has filed suit. As a
result, claims arising out of related to the services FS rendered are properly subject to binding arbitration.
22
Plaintiff’s Original Petition, at ¶ 27.
23

Id. 24 In

re Global Const. Co., L.L.C.,

166 S.W.3d 795

, 798 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (citing

Howsam, 537 U.S. at 84-85

).
25

Id. Defendant's Response

to Plaintiffs' Application to Stay Arbitration                                       Page 6 of 12
R.P. Appx. 317                                                                                                       6
meet a condition precedent or is described as waiver . . . each one presents an issue of
procedural arbitrability.” 26
Here, Plaintiffs seek to quash arbitration with defenses that are decidedly
procedural. 27 But Plaintiffs’ position only demonstrates why arbitration is required. Plaintiffs
simply cannot avoid the well-established precept that “[t]rial court[s] [are] not authorized to
address questions of procedural arbitrability such as the satisfaction of conditions precedent to a
right of arbitration.” 28 Intellicenter is unaware of any authority removing the “condition
precedent” claimed here from the gamut of the rule. And given that “any doubts concerning the
scope of arbitrable issues should be resolved in favor of arbitration[,]” a strained analysis is not
required. 29 Because Plaintiffs’ challenges to arbitration are admittedly procedural, their request
to stay the proceedings should be denied.
4.         INTELLICENTER SATISFIED THE MUTUALLY AGREED CONDITIONS TO ARBITRATION.
Even if the Court could decide issues of procedural arbitrability—which it cannot—
Intellicenter has satisfied all conditions for arbitrating this dispute. Section 4.6.1 of the Contract
26

Id. (emphasis added);

see also Grand Homes 96, L.P. v. Loudermilk,

208 S.W.3d 696

, 703 (Tex. App.—Fort
Worth 2006, pet. denied) (noting Texas courts hold that “matters of waiver and delay in requesting arbitration
should be presented to the arbitrator for resolution”); In re Weekley Homes,

985 S.W.2d 111

, 114 (Tex. App.—San
Antonio 1998, no pet.) (holding plaintiffs’ “contention that [defendant’s] failure to perform a condition precedent
released them from the arbitration provision is a procedural question the arbitrator should address”); City of Lubbock
v. Hancock,

940 S.W.2d 123

, 127 (Tex. App.—Amarillo 1996, no writ) (noting Section 171 of the Texas Civil
Practices & Remedies Code “does not require or authorize a court to address questions of procedural arbitrability
such as the satisfaction of conditions precedent to a right of arbitration”).
27
See

Howsam, 537 U.S. at 84-85

.
28
In re Gardner Zemke Co.,

978 S.W.2d 624

, 627 (Tex. App.—El Paso 1998, no pet.); see also John Wiley & Sons,
Inc. v. Livingston,

376 U.S. 543

, 557 (1964) (holding that an arbitrator should decide whether the first two steps of a
grievance procedure were completed, where these steps are prerequisites to arbitration).
29
Moses H. Cone Mem. Hosp. v. Mercury Const. Corp.,

460 U.S. 1

, 24-25 (1983); In re FirstMerit Bank, N.A.,

52 S.W.3d 749

, 753 (Tex. 2001) (“courts must resolve any doubts about an arbitration agreement's scope in favor of
arbitration”).
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 7 of 12
R.P. Appx. 318 7
provides that “[p]rior to arbitration, the parties shall endeavor to resolve disputes by
mediation . . .” The Parties completed that endeavor but resolution failed. As for any remaining
prerequisites, the Parties expressly agreed that:
Claims not resolved by mediation shall be decided by binding
arbitration which, unless the parties mutually agree otherwise,
shall be in accordance with the Construction Industry Rules of
the American Arbitration Association currently in effect. The
demand for arbitration shall be filed in writing with the other party
to the Contract and with American Arbitration Association.“ 30
The CIARAAA set forth the requirements to initiate a demand for arbitration. 31 Plaintiffs
do not contest Intellicenter’s compliance with these rules, and the Parties have not agreed to any
further or additional conditions to arbitration. 32 Thus, Plaintiffs’ procedural arbitrability
arguments—had they been properly raised—still ultimately fail.
5. SECTION 150.002 HAS NO BEARING ON THIS CASE.
A. Section 150.002 Does Not Apply to the Pending Arbitration.
While Intellicenter maintains that only the AAA may adjudicate this dispute, it offers a
glimpse of why Plaintiffs’ reliance on section 150.002 is misplaced. The plain language of the
statute reveals it does not apply to the Parties’ pending arbitration. The statute’s certificate of
30
Exhibit A, at 4.6.2 (emphasis added).
31
Those prerequisites are found in CIAAA R-4:
(i) The initiating party (“the claimant”) shall, within the time period, if any, specified in the contract(s), file
with the AAA a demand for arbitration, the administrative filing fee, and a copy of the applicable
arbitration agreement from the parties’ contract which provides for arbitration. Filing may be accomplished
through use of AAA WebFile, located at www.adr.org, or by filing the demand with any AAA office.
(ii) The claimant shall simultaneously provide a copy of the demand and the applicable arbitration agreement
to the opposing party (“the respondent”).
(iii) The demand shall include:
(a) The name of each party;
(b) The address for each party, including, if known, telephone and fax numbers and email addresses;
(c) If applicable, the names, addresses, telephone and fax numbers and, if known, email address of the
known representative for each party;
(d) A statement setting forth the nature of the claim including the relief sought and the amount involved;
(e) The locale requested, if the arbitration agreement does not specify one.
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 8 of 12
R.P. Appx. 319 8
merit requirements apply only to a “plaintiff.” 33 But Intellicenter is not a “plaintiff” by
definition; Intellicenter is a “claimant” in an arbitration proceeding. 34 Likewise, the statute only
applies to “complaints.” 35 Intellicenter did not file a “complaint,” but rather a “demand for
arbitration.” 36
If “plaintiff” was intended to include “claimant,” as Plaintiffs may ultimately contend, the
Texas Legislature would not consider amending the statute to change “plaintiff” to
“claimant.” But that is exactly what the Texas Legislature is currently considering. 37 Simply
put, Intellicenter is not a “plaintiff,” it did not file a “complaint” and the statute’s procedural
requirements do not apply. To hold otherwise ignores that courts are bound to interpret a statute
in accordance with “the plain meaning of the provision's words and terms.” 38
B. Section 150.002 Does Not Apply to Plaintiffs.
Nor do Plaintiffs qualify for the shelter they seek. The statute’s certificate of merit
requirements apply only in actions “arising out of the provision of professional services by a
licensed or registered professional.” 39 Because neither FS nor Clayco satisfy the statutory
definition of “licensed or registered professional,” section 150.002 has no bearing on this case.

33 Tex. Civ

. Prac. & Rem. Code Ann. § 150.002(a).
34
See Exhibit B.

35 Tex. Civ

. Prac. & Rem. Code Ann § 150.002(a).
36
See Exhibit B.
37
2015 Tex. H.B. 1353, 84th Leg., R.S. (2015).
38
Fitzgerald v. Advanced Spine Fixation Sys., Inc.,

996 S.W.2d 864

, 865 (Tex. 1999).

39 Tex. Civ

. Prac. & Rem. Code Ann. § 150.002(a) (emphasis added).
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 9 of 12
R.P. Appx. 320 9
Texas Civil Practices & Remedies Code 150.001(1-a) defines “licensed or registered
professional as a licensed architect, licensed professional engineer …or any firm in which such
licensed or registered professional practices . . . .” The express terms of the Contract recognize
that “[Clayco] is not a licensed architect or engineer[,]” 40 and Hans Hecker, FS’s principal and
the individual who signed the Architect’s Certificate, 41 is not licensed by the Texas Board of
Architectural Examiners. 42 The statute plainly provides that a firm qualifies as a “licensed or
registered professional” only if its practicing architect does. 43 Because Hecker does not satisfy
the statutory definition of licensed or registered professional, neither does FS. Plaintiffs’
procedural posturing is fatally flawed, and their application to stay arbitration should be denied.
III.
CONCLUSION AND PRAYER
For these reasons, Defendant Intellicenter Dallas Investments LLP respectfully requests
that the Court deny Plaintiffs’ Application to Stay the Arbitration Case and further requests any
such additional or other relief to which it may show itself justly entitled, whether in law or in
equity.
40
See Exhibit A, at Article 3.
41
See Architect’s Certificate executed by Hans Hecker as principal of Forum Studio, Inc., a true and correct copy of
which is attached hereto as Exhibit C.
42
Intellicenter requests the Court take judicial notice of Hecker’s status by visiting:
http://www.tbae.state.tx.us/publicinformation/finddesignprofessional.
43
See

id. § 150.001(1-a).

Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 10 of 12
R.P. Appx. 321 10
Respectfully submitted,
MUNSCH HARDT KOPF & HARR, P.C.
/s/ Greg Noschese
Greg C. Noschese
State Bar No. 00797164
John Devin Wagner
State Bar No. 24090451
500 North Akard Street, Suite 3800
Dallas, Texas 75201-6659
(214)855-7500 (Telephone)
(214)855-7584 (Facsimile)
gnoschese@munsch.com
dwagner@munsch.com
ATTORNEYS FOR DEFENDANT
INTELLICENTER DALLAS
INVESTMENTS LLP
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 11 of 12
R.P. Appx. 322 11
CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of March, 2015, a true and correct copy of the
foregoing instrument was served on the following by Eserve:
Kenneth B. Chaiken
CHAIKEN & CHAIKEN, PC
5801 Tennyson Pkwy, Suite 440
Plano, TX 75024
(214)265-0250
(214)265-1537 (fax)
Email: kchaiken@chaikenlaw.com
R. Thomas Avery
BLITZ, BARDGETT & DEUTSCH, LC
120 South Central Avenue, Suite 1650
St. Louis, Missouri 63105
(314)863-1500
(314)863-1877 (Fax)
Email: rtavery@bbdle.com
/s/ Greg C. Noschese
Greg C. Noschese
Defendant's Response to Plaintiffs' Application to Stay Arbitration Page 12 of 12
R.P. Appx. 323
MHDocs 6013443_1 5554.38
12
Exhibit A
R.P. Appx. 324 13
AlA DocumentA111'" -1997
Standard Fonn of Agreement Between Owner and Contractor
where the basis for payment is the COST OF THE WORK PLUS A FEE with a negotiated
Guaranteed Maximum Price
AGREEMENT made as of the nineteenth day of Mu_in the year two thousand six
(In words, indicate day, month and year)
BETWEEN lhe Owner.
(Name, address and other infomUJtion) This document has important
legal consequences.
COnsultation wlth an attorney
Is encouraged with respect to
its completion or modlfrcatlon.
Intellicenter Dallas Investments. LLP This document is not intended for
8115 Preston Rd .. Suite #700 use In competitive bidding.
Dallas, IX 75225 AlA Document A201-1997,
and the Contractor. General Conditions of the
(Name, address and other informOJion) Contract for Construction, Is
adopted in this document by
ref8fenoe. Do not use with oth81'
general conditions unless this
document Is modified.
CJaypo. Inc.
This document has been
2199 Innerbelt Business Center Qrive
approved and endorsed by the
St. Louis. Missouri 63114
Associated Gen8fal Contractors
of America.
Tbe Project is:
(Name and location)
The design and construction of a 4-storv speculative office building. consistine of
aooroximately 211.637 gross square feet. located at 3701 Regent Blvd.. Irvim:. Texas.
The Architect is:
(Name, address and other information)
FS Ar<:hitecture. PC
c/o Forum Studios. Inc.
2199 Innerbelt Business Cemer Drive
St. Louis. Missouri 63114
Structural. mechanical. electrical and civil engineering services and the consulting services
of other Design Professionals for the Project will be proyided contractually Jbrough the
Architect except as follows: Topographic and boundary survey to be provided by Owner.
The Owner and Contractor agree as follows.
AlA Document At11TII-1897. Copyright Cl1920, 1925, 1951, 1958,1961, 1983, 1967, 1974, 1978,1987 and 1997 by The American Institute of Arclliteels.
All rigllb nt..ved. WARNING: Thla AlA• Document Is protected by U.S. Copyright Lew and lnt.ernatlooal Treaties. UniUthortred reproduction or 1
distribution ot this AlA• Document, or 1ny po1!11on ot it, may result In severe civil and criminal ~nallles, and wHI be prosecuted to the maximum
elCien1 possible under the law. This document was pwauced by AlA software at 15:11:31 on 05/19/2006 under Order No.1000182995~1 which expires on
712312006, and Ia not lor resale.
u..r NotH: Clayco A111- Koll - lntelllcenter · Dallas v3 (5-19•08) (2347931739)
R.P. Appx. 325 14
ARTICLE 1 THE CONTRACT DOCUMENTS
The Contract Documents consist of Ibis specifically modified Agreement, the specifically modified AlA Document
A201-l997. General Conditions ef lfte Centfeet (G&fleftll, Supplemenwy enEI ether Cenditiens), C"A201"),
Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this
Agreement and Modifications issued after execution of this Agreement; these fonn the Cenlfaet; "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 Documents, other than Modifications, appears in
Article 15. If anything in the other Contract Documents is inconsistent with this Agreement, this Agreement shall
govern.
ARTICLE 2 THE WORK OF THIS CONTRACT
The Contractor shall fully execute the Work described in the Contract Documents, except to the extent specifically
indicated in the Contract Documents to be the responsibility of others.
ARTICLE 3 RELATIONSHIP OF THE PARTIES
The Contractor accepts the relationship of trust and confidence established by this Agreement and covenants with
the Owner to cooperate with the Architect and exercise the Contractor's skill and judgment in furthering the interests
of the Owner; to furnish efficient business administration and supervision; to furnish at all times an adequate supply
of workers and materials; and to perfonn the Worlc in an expeditious and economical manner consistent with the
Owner's interests. Tbe Owner agrees to furnish and approve, in a timely manner, infonnation required by the
Contractor and to malce payments to the Contractor fn accordance with the requirements of the Contract Documents.
The Contractor will enter into a direct contractual relationship with the Architect. engineers. design/build
subcontractors and other design professionals (collectively. the "Desi&n Prof~ionals") to provide the design of the
Project The Owner acknowledges and agrees that the Contractor is not a licensed architect or engineer and is not
agreeing to pedorm serrjces which require such a license in the State in which the Project is located. Such services
will be oerfonned by ljcensed architects, engineers and design/build subcontractors under separate agreements. The
fees and expenses of all such design wofessjonals shall be included as part of the Cost of the Work. The Contractor
shall cause the Architect to prepare and submit as part of the Cost of the Worlc. the Construction Documents
necessary for the construction of the Project. The contractual obligations of such the Architect. engineers and other
deSign oorsons or entities are undertaken and performed in the interests of the Contractor, The agreements between
the Contractor and the Architect, engineers and other design professionals shall be in writing and lhese
IIIJl!ngements. including financial amngements with respect to the Project. shall be promptly and fully disclosed to
the Owner upon request. The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's
employees. subcontractors and their agents and employees. and other persons. including the Architect. engineers and
otber Design ProCessionals. oerformjng any ponion of the Contractor's obligations under thjs Anicle 3 wjth resoect
to the design of the Projecb The "Construction Documents" may include drawings. specifications. and other
documents and elec(!Qnlc data setting forth the reQuirements for construction of the Work. and shall (i) be consistel]t
with the intent of the Proiect as a whole. Cii) provide infonnation for the use of those in the building trades: and (iii)
include documents customarily required for re&ulatozy agency approvals. The fees and expenses of all such Design
Professionals shall be included as Part of the Contract Sum.
ARTICLE 4 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
§ 4.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated
below or provision is made for the date to be fixed in a notice to proceed issued by the Owner.
(lnsen the date ofcommencement, ifir differs from the date ofthis Agreement ar, if applicable, state that the date
will be fixed in a notice to proceed.)
February 21. 200§.
If, prior to commencement of the Work, the Owner requires time to file mortgages, mechanic's liens and other
security interests, the Owner's time requirement shan be as follows:
AlA Document A111™ -1997. Copyright @ 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects.
All rights rtl8rved. WARNING: Thl• AJA• Doo1.1ment Is proltellld by U.S. Copynghl lAw and International Treaties. Unauthorized reproduction or 2
distribution of this AlA* Dowment, or any portion ollt, m.y result In severe civil and criminal pe1111tles, and will be prosecuted to the maximum
extent possible under the law. This docoolent was proc:l.uced by AlA sottware at 15:11:31 oo 05/1912006 under Ordef No. 1000182995_1 which expires oo
712312006, and Is not for resale.
UHI' NotH: Clayco A111 - Koll . lntelicenter • Dallas v3 (5·19·06) (2347931739)
R.P. Appx. 326 15
§ 4.2 The Contract Time shall be measured from the date of commencement
§ 4.3 The Contractor shall achieve Substantial Completion of the entire Work not later than EI&¥S ffem December 26.
20()6. subject to extensions for any delays contemplated jn Paragraph 4.1 of this As.reement or Paragraph 8.3.1 of
the form the Genera} Conditions (AlA Document No. A201) attached he.reto. such completion date 9f
eemmeneeM&IIq er being l'eferred to herein as fellewe:the "Substantia) Completion Date."
(Insert number ofcalendar days. Alternatively, a calerukJr tklte 171(ly be used when coordinated with the date of
commencement. Unless staled elsewhere in the Contract Documents, insert an:y requirements for earlier Substantial
Completion ofcertain portions of the Work.)
I ~Ftien ef WeFk
, subject to adjustments of this Contract Time as provided in the Contract Documents.
(Insert provisions, if any, for liquidtlted damages relating to failure to complete on time, or for bonus payments for
early completion ofthe ~Work.!The initial consttuction schedule (the "Proiect Schedule" I for the Project is
attached hereto as Exhlbh "A
ARTICLE 5 BASIS FOR PAYMENT
§ 5.1 CONTRACT SUM
§ 5.1.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of
the Contract Tbe Contract Sum is the Cost of the Work as defined in Article 7 plus the Contractor's Fee.
§ 5.1.2 The Contractor's Fee is:
(State a lump sum. percentage of Cost ofthe Work or other provision for tktermining the Contractor's Fee, and
describe the method ofadjustment of the Contractor's Fee for changes in the Work. )
The "Contractor's Fee" shall be fow percent <4%) ofd!e Cost of the Work subject to an increase in the fee of four
oercent (4%) on all Change Orders. as defined in Paragraph 6.3 herein below. increasing the Cost of the Work. and
subject to a decrease in the fee of four oercent (4%>on all Change Orders decreasing the Cost of the Work.
§ 5.2 GUARANTEED MAXIMUM PRICE
§ 5.2.1 The sum of the Cost of theWorl< and the Contractor's Fee is guaranteed by the Contractor not to exceed
~Fourteen Mmion Three Hundred Fiftv-Three Thousand Nine Hundred Seventv-Tbree and 00/100 Dollars
($14.353.973.00). subject to additions and deductions by Change Order as provided in the Comract Documents.
Such maximum sum is referred to in the Contract Documents as the Guaranteed Maximum Price Cas the same may
be adjusted from time to time by Change Order or otherwjse. the "Guaranteed Maximum Pt:i6&:-I!i£!Ll...Costs which
would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement
by the Owner If. upon Final Completion. the OMP exceeds Cost of the Work plus the Contractor's Fee. then the
amount of such excess shall be referred to herein as the "savin~": and the savings shall be shared by the Owner and
the Conqactor as follows: sixty percent <60%l of the savings shall be retained by the Owner: and forsv oercent
(40%) of the savings sha11 be paid to the Contractor as a fee in addition to the QwaenContractor's Fee described in
Paragraph 5.1.2 above.
(Insert specific provisions if the Contractor is to participate in any savings.)
AlA Document A111 "' -1997. Copyright C 1920. 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by Tile Ame~can Institute ot ArcMects.
All rights rtHI'Yed. WARNING: This AtA• Document It prottcted by U.S. Copyright law and International Treatlu. Unauthorized reproduction or 3
distribution ol thls AlA,. Document. or any portlon of it, may result In severe clvJI and criminal penalties, and will be prosecuted to the maximum
extent possible under the law. This document was proc:luoed by AlA sollware at15:11:31 on0511912006 under Order f\10.1000182995_1 which elq)lres on
712312006, and is not for resale.
U~er Notes: Clayco A111 • Koll • lntelllceoter . Da~as v3 (5·19-QS) (2347931739)
R.P. Appx. 327 16
§ 5.2.2 The Guaranteed Maximum Price is based on the following alternates, if any, which are described in the
Contract Documents and are hereby accepted by the Owner:
(State the numbers or other identification ofaccepted alternates. If decisions on other alternates are to be made by
the Owner subsequent to the execution of this Agreement, attach a schedule ofsuch other alternates showing the
amount/or each and the date when the amount expires.)
See Outline Soecificatioo & Drawings (the "Outline Specs") attached to thjs Contract as Exhibit "B" A'R8f'6 pfier 69R&eRt an the
easis ef east plus a fee~, the teRm "east" and "fee" as used In Seelien 7.3.:U ef AJA Dee11H1ent ,o\2Ql 1997 ami the
teRM "sesl6" ans "a reasenallle allawaaee fer a'ler4tead all(l JIFefit" as used iR Seeaen 7.le ef,r\IA DesYR'IeRt
J\2Q} 11}9:7 &hall have the Jlle8AiRg6 889igMd te lh8AI iA ,\lA l)eeyment J\201 199;7 QflQ shall net \le 199dified ey
,\nieles ~. 7 Md 8 ef lhis :\gfeeH!ent i\EijllsHHeal6 te s118eentFaet& awardeEI wilh the Owner's prier eeasent eR the
easis ef east pl11s a fee shall ee ealeulateEI in aeeef6aftee with the tefRls ef these sul:Jeena:aets.
~In calculating adjustments to the Guaranteed Maximum Pfi6&;-Price or the impact of any Change Order.
the terms "cost" and "costs" as used in the above-referenced provisions of AlA Document A20I-Im shall mean the
Cost of the Work as defined in Article 7 of this Agreement and the terms "fee" and "a reasonable allowance for
overhead and profit" shall mean the percentage for the Contractor's Fee as ElefiAed indicated in Section 5. I .2 of this
Agreement.
AlA Document A111"'- 1997. COpyright (11920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American lnstltuto or Architects.
All rtghts re~ WARNING: Thla AlA• Document Is protected by U.S. Copyright l aw and lnlarnatlonal Trutles. Unauthorized reproduction or 4
dl8trlbutlon of this AlA• Oowmem, or any portion of It, may ntaultln severe civil and criminal penahles, and wBI be prosecuted to the maximum
extent po$$ible under the law. This doc~nt was produced by AlA sollwara at 15:11:31 on 0511912006 under Order No.1000182995_1 which expires on
712312006. and Is not !of resale.
UNr Notes: Clayco A111 • Koll · lntelicenter • Dallas v3 (5-19·06) (2347931739)
R.P. Appx. 328 17
§ &.4 If 88 speeifie Jlfe'ASieR is II'Hid& iR SeetieA S.l fer adjwstmeRt ef£Re Ceamteler's Jiee iR me ease efehaflges iR
£fte WerlE, er if me eJiteat ef s~teh ehaRges is s11eh, ill the aggregate, that applieatieA ef the adjii51HieAI pre•tisieA& ef
SeeaeaS.l will eaYSe Slle&taAtial iRe~tvity te die CW.·Rer er CeREFeeter, the Centraeter's Fee shall ee 8EIIIita91y
IIEijY&teEI 9A die llasis ef tM rea estalllishee fer IRe eFigiR&l Werk, &RQ the Gwar&RIIIQ Maxi IIIII III PFiee shall ee
IIEijws~ aeeeftlingly.
§ 6.3 If Cal the Owner requests a change in the Work or Cbl the Contractor otherwise is entitled to a Change Order as
provided in the Contract Documents. then the Contractor Shall have the right to submit to the Owner a written
change order request (a ''CO Request"). which shall set forth such change to the Contract as shall be appropriate.
Such CO &guest shall be in writing and shall set forth the appr9j!riate changes. jf any. to the (i) Cost of the Work,
Cii> the Contractor's Fee. (iii) the Guaranteed Maximum Price. Civl the Contract Sum. Cvl the schedule of values.
(vjl the Substantial Completion Date. or Cviil any other provisions of the Contract. Each CO Request shall
constitute an offer by tbe Contractor to amend the Contract. If the Owner accepts such offer in writing and without
revision. then such offer and acceptance. together. shall constitute a "Change Orcler" which shall ooerate to amend
the Contract. If the Owoer ~Pts such offer subject to revisions not previously agreed to by the Contractor in
writing. then such "acceptance" shall constitute a counteroffer by the Owner to the Contractor which the Contractor
may ejther accept in writing or reject. If the Contractor accepts such counteroffer in writing. the same shall
constitute a written Change Order. The Contractor shall have no obligation or right to perform any changes in the
Work except Pursuant to a Change Order made as provided herein.
ARTICLE 7 COSTS TO BE REIMBURSED
§ 7.1 COST OF THE WORK
The tenn Cost of the Work shall mean costs necessarily incurred by tbe Contractor in the proper performance of the
Work. Such costs shall be at rates not higher than the standard paid at the place of the Project except with prior
~consent of the Owner. The Cost of theWork shall include only the items set forth in this Article 7.
§ 7.2LABOR COSTS
§ 7.2.1 Wages of construction workers directly employed by the Contractor to perform the construction of the Work
at the site or, with the Owner's app.roval, at off-site workshops.
§ 7.2.2 Wages or salaries of the Contractor's supervisory and administrative peFSeMel oersonnel, based upon the
time expended oo the Project when stationed at the site with the Owner's appFe"al.written aoproval. Time expended
on the Proiect by the Contractor's Project Manager for the Project shall be included as a Cost of the Work.
regardless of w)lere the Proiect Manager js located.
(If it is intended that the wages or salaries ofcertain personnel stationed at the Coruractor's principal or other
offices shall be included in the Cost ofthe Work, identify in Anicle 14 the personnel to be included and whether for
all or only pan oftheir time, and the rates at which their time will be charged to the Work. )
§ 7.2.3 Wages and salaries of the Contractor's supervisory or administrative personnel engaged, at factories,
workshops or on the road, in expediting the production or transportation of materials or equipment required for the
Work, but only for that portion of their time required for the Work.
S7.2.4 Costs paid or incurred by the Contractor for taxes, insurance, contributions, assessments and benefits required
by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits
such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on
wages and salaries included in the Cost of the Work under Sections 7.2.1 through 7.2.3.
§ 7.3 SUBCONTRACT COSTS
§ 7.3.1 Payments made by the Contractor to Subcontractors (including. without limitation. the Contractor jf the
Contractor or a division of the Contractor is also a subcontractor but only if approved in writing in advance by
Owner) in accordance with the requirements of the subcontracts.
§ 7.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION
§ 7.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in
the completed construction.
AlA Document A111 111 -1887. Copyrlgl)t C 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Archhects.
All rlghq reMMid. WAANING: This AlA• Doalment Is protected by U.S. Copyright Law and International Troatiee. Unauthorlled reproduction or 5
distribution of this AlA• Document, or any portion of It, may result In sewre civil and criminal penalties, and wMI be prosecuted to the maximum
mctent possible undet' the IIW. This document was produoed by AlA sottware at 15:11:31 on 05f1912006 under Order No.1000182995_1 which expires on
7/2312006, and iS not for resale.
Uter Noles: Clayoo A1 11 • Koll · lntelllcenter • DaPas v3 (5·19·06) (2347931739)
R.P. Appx. 329 18
§ 7.4.2 Costs of materials described in the preceding Section 7.4.1 in excess of those actually installed to allow for
reasonable waste and spoilage. Unused excess materials. if any, shall become the Owner's property at the
completion of the Work or, at the Owner's option, shall be sold by the Conttactor. Any amounts realized from such
sales shall be credited to the Owner as a deduction from the Cost of the Work.
§ 7.5 COSTS Of OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACIUTIES AND RELATED ITEMS
§ 7.5.1 Costs, including transportation and storage, installation, maintenance, dismantling and removal of materials,
supplies, temporary facilities, machinery, equipment, and hand tools not customariJy owned by construction
workers, that are provided by the Contractor at the site and fully consumed in the performance of the Work; and cost
(less salvage value) of such items if not fully consumed, whether sold to others or retained by the Contractor. Cost
for items previously used by the Contractor shall mean fair market value.
§ 7.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by
construction workers that are provided by the Contractor at the site, whether rented from the Contractor or others,
and costs of lransportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and
quantities of equipment rented from the Contractor shall &e sttejeet te not exceed the OwAer's jJI'ier appreYal.fair
market value thereof.
§ 7.5.3 Costs of removal of debris from the site.
§ 7.5.4 Costs of document reproductions, facsimile transmissions and long-distance telephone calls, postage and
parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office.
§ 7.5.5 That portion of the reasonable expenses of the Contractor's personnel incurred while traveling in discharge of
duties connected with the Work.
§ 7.5.6 Costs of materials and equipment suitably stored off the site at a mutually acceptable location, if approved in
advance by the Owner.
§ 7.6 MISCElLANEOUS COSTS
§ 7.6.1 That portion of insurance aRd beBEitnemiYRl5 that can be directly attributed to this Contract. The parties
stipulate and agree that Conttactor's cost for providing such insurance is six tenths of one oercent (0.75%) of the
Cost of the Work. excluding such cost of insurance. Ceatfasll
§ 7.6.2 Sales, consumer. use or similar taxes imposed by a governmental authority that are related to the Work.
§ 7.6.3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the
Contractor is required by the Contract Documents to pay.
§ 7.6.4 Fees of laboratories for tests required by the Contract Documents, except those related to defective or
nonconforming Work for which reimbursement is excluded by Section 13.5.3 of AlA Document A201-l997 or other
provisions of the Contract Documents, and which do not fall within the scope of Section 7.7.3.
§ 7.&.5 Reyal~es aadlieease fees paid fer me \l&e af a p&Ftielllar design, flF968S9 er predttet AIEJIIif~ ey the Cana=ast
DesttHients; the sast ef aefenEiiRg &llil5 er elaiHI& fer iftft:iRgemeAt ef paleat figkss arisiag ~HI s11eh ~ttireRl8Rt ef
me Cea~Het Qe611ffl8Rl&; 8ll4 payHieA~:& IR&Eie in aeeer4anse with legal j11Eigmea111 agaiA6t tile CeA~Heter Feslll\ing
frefR stteli sttil!l er slaiHis and payt``ents ef settlemeBtB Hlade with me OwRer's seASeAt. Hewe~·er. ~N~sh eests af legal
Elefeases, j11EigRl8RIS BAEI sealemeal!lsllall Ael be inelttEied ia the ea.lelllatieB ef tile Caalfaeter's Pee er &Y!Jjeet te lbe
~llfaRteee MallimttHI Priee.lfs116h reyalties, fees aREI eeStB are e*elwded by lbe last seAteaee ofSeeaeR 3.17.1 ef
AlA DeellH!eAt t'U91 1997 eF etiler previsieRs ef IRe Cealfeet Deellmefls, lheA tlley shall aet be iReludeEi in IAe
Cest ef the W8fk:
§ 7.6.5 Royalties and license fees paid for the use of a particular design. process or product required by the Conttact
Documents if such royalty and license fees are disclosed to Owner prior to Contractor commencing construction of
the Project and Owner approves same in writing.
§ 7.6.6 Data processing costs related to the Work.
AlA Document A111"' - 1097. Copyright @ 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American tnslitute ot Architects.
All rlghtereterved. WARNING: Thla AlA• Document 11 prottcttd by U.S. Copyright law 1nd International Treaties. Unauthorized reproduction or 6
dl• tributfon of this AlA"' Document, or any portion of It, may result In se,.re civil and criminal penalties, and will be pr0$eculed to the miJCimum
extent possible under the lew. ThiS document was produced by AlA SOftwale at 15:11:31 oo 05119/2006 IJ'Ider Order No.1000182995_1 which expires on
712312006, and is not lor resale.
UMr Notes: Clayoo A111 • Koll · \otelllcenter- Dallas vs (5·1 9-06) (2347931739)
R.P. Appx. 330 19
§ 7.6.7 Deposits lost for causes other than the Contractor's negligence or failure to fulfill a specific responsibility to
the Owner as set fonh in the Contract Documents.
§ 7.6.8 Legal, mediation and arbitration costs, including attorneys' fees, other than those arising from disputes
between the Owner and Contractor, reasonably incurred by the Contractor in the performance of the Work and with
the Owner's prior wrinen approval; which approval shall not be unreasonably withheld.
§ 7.6.9 Expenses incurred in accordance with the Contractor's standard personnel policy for relocation and
temporary living allowances of personnel required for the Work, if approved by the Owner.
§ 7.6.10 Payments by the Contractor Into reserves established unde! the CCIP for tbe Project for providing
Subcontractor insurance. The Contractor represents that the amount of such reserve payments shall not excHd the
Insurance premiums that reasonably would be Incurred for the Proiect In the absence of the CCIP.
§ 7.6.11 Other direct reasonable exoenses incurred by the Contractor in connection wjth the Project to !he extent not
described in this Section 7.6.
§ 7.6.12 Design service feel pavab!e to the Architect and any other design professionals engaged by Architect or the
Contractor to provide the detlan for the Proiect.
§ 7.7 OTHER COSTS AND EMERGENCIES
§ 7.7.1 Other costs incurred in the perfonnance of the Work if and to the extent approved in advance in writing by
the Owner.
§ 7.7.2 Costs due to emergencies incurred in taking action to prevent threatened damage, injury or Joss in case of an
emergency affecting the safety of persons and property, as provided in Section 10.6 of AlA Document A201-1997.
§ 7.7.3 Costs of repairing or correcring damaged er neHeeRfemtiRg Work executed by the ContraCtor, Subcontractors
or suppliers, provided that such damaged er HeneenfeRtliRg Work was not caused by aegligeRee NEGLIGENCE.
intentional misconduct or failure to fulfill a specific responsibility of the COntractor and only to the extent that the
cost of repairer eeffeetiell is not Eeeetterallle recovered by the Contractor from insurance, sureties, Subcontractors
or suppliers.
ARTICLE 8 COSTS NOT TO BE RBMBURSED
§ 8.1 The Cost of the Work shall not include:
§ 8.1.1 Salaries and other compensation of the Conttactor's personnel stationed at the COntractor's principal office or
offices other than the site office, except as specifically provided in Sections 7.2.2 and 7.2.3 or as may be provided in
Article 14.
§ 8.1.2 Blipeases Except to the extent provided in Article 7, expenses of the Contractor's principal office and offices
other than the site office.
§ 8.1.3 Overhead and general expenses, except as may be expressly included in Article 7.
§ 8.U The Contractor's capital expenses, including interest on the COnttactor's capital employed for the Work.
§ 8.1.5 Rental costs of machinery and equipment, except as specifically provided in Section 7.5.2.
§ 8.U Except as provided in Section 7.7.3 of this Agreement, costs due to the negligence orfailure to fulfill a
specific responsibility of the Contractor, Subcontractors and suppliers or anyone directly or indirectly employed by
any of them or for whose acts any of them may be liable.
§ 8.1.7 Any cost not specifically and expressly described in Article 7.
AlA Document A111"' -1m. Copyright c 1920, 1925, 1951,1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American lnSiltute ol AtcMeC1s.
All rlghte reserved. WARNING: This AlA• Oocumenl is protected by U.S. Copyright Law and International Treaties. Unauthorlztd reproduction or 7
di$tributlon of this AlA• Doc;ument, or any portion of it, may result in severe civil and criminal penallles, and wll be prosecuted to the mulmum
extent po$Sible under the law. This document was produced by AlA $011Ware 11115:11:31 on 0511912006 under Order No.1000182995_1 which expires on
7123/2006, and Is not lor resale.
Ueer NotH: ClaycoA111. Koll ·lnlelllcenter . Oallasv3 (5-19·06) (2347931739)
R.P. Appx. 331 20
§ 8.1.8 Costs, other than costs included in Change Orders approved by the Owner. that would cause the Guaranteed
Maximum Price to be exceeded.
§ 8.1.9 The m!ease. or waiyer or bondjng. of any liens or claims which may be claimed. threatened or tecorded so
long as Owner paid Contractor all undisputed amounts under this Contract
Costs recpvered by Contractor through insurance or otherwise.
ARTICLE 9 DISCOUNTS, REBATES AND REFUNDS
§ 9.1 Cash discounts obtained on payments made by the Contractor shall accrue to the Owner if ( 1) before making
the payment, the Contractor included them in an Application for Payment and received payment therefor from tbe
Owner, or (2) the Owner has deposited funds with the Contractor with which to make payments; otherwise, cash
discounts shall accrue to the Contractor. Trade discounts, rebates, refunds and amounts received from sales of
surplus materials and equipment shaD accrue to the Owner, and the Contractor shall make provisions so that they
can be secured.
§ 9.2 Amounts !hat accrue to the Owner in accordance with the provisions of Section 9.1 shall be credited to the
Owner as a deduction from the Cost of the Work.
ARTICLE 10 SUBCONTRACTS AND OTHER AGREEMENTS
§ 10.1The Owner hereby agrees that portions of the Work may be subcontracted to the Contractor or any division of
the Contractor if agreed to in writing jn advance by Qwner. Those portions of the Work that the Contractor does not
eYstemarily perform with the Contractor's own personnel (or which are not subcontracted to the Contractor or a
division thereof as aforesaid) shall be performed under subcontracts or by other appropriate agreements with the
Contractor. The Owner may designate specific persons or entities from whom lhe Contractor shall obtain bids. The
Contractor shall obtain bids from Subcontractors and from suppliers of materials or equipment fabricated especially
for the Work and shall deliver such bids to the ~The Owner shall then determine, with the advice of
the Cea~reeter aRdlhe Afeh:ileel, Contractor. which bids will be accepted. The Contractor shall not be required to
contract with anyone to whom the Contractor has reasonable objection. For each oortion of the Work having an
estimated cost in excess of $SO,QQ(), Contractor shall endeavor In good faith, usjng significant efforts. to obtain. and
orovide to Owner uoon reouest bids for said oortion of the Work {rom at least 3 qualified subcontractors. If
Contractor cannot obtain bids from 3 qualified bidders. Contractor shall jofonn Owner of this before entering into
the relevant Subcontract. Contractor shall not subcontract performance of all or any oortion of the Project under the
Contract Documents pursuant to any subcontract in excess of $50.000 without first notifying Owner of the intended
subcontracting and obtaining Owner's acceptance in writing of the subcontracting and the subcontractot which
acceptance or rejection shall be promptly given. If reouested by Owner. Contractor shall furnish Owner a copy of
the prooosest subc9ntract for Owner's review of the teonS and conditions thereof and shall oot execute such
subc9ntract until Owner has accepted such terms. Failure of Contractor to comply wi!h this Section may be deemed
to be a material breach of the Contract Documents, Contractor shall not remove any of the following major
subcontractors and replace any of such rnaior subcontractors with any other subcontractor without Owner's prior
written llJ>.P!"'VaJ. which shall not be unreasonably withheld or delayed. provided the proposed replacement
subcontractor has the experience, financial backing and history of quality cons!rUction for projects of the nature and
timing of the Projecl Thc: major subcontr.tctpn: that can only be replaced in accordance with the tc1regoing
procedures ure as follows; . (d) an affidavit executed by Owner .indicating the names of all
AlA Document AIH'M -11187. CopyTigtlt C 1920. 1925, 1951, 1953, 1961, 1963, 1967. 1974, 1978. 1987 and 1997 by The American Institute of AA:hltects.
All rtghn ,.....,.d.
WARNING: This AlA• Doeumen111 protected by U.S. Copyright Law a nd lnleroallonal Treaties. Unauthorized reproduction or g
dlstribullon of lhls AlA• Document, or any portion of 11, may result In severe civil and criminal penalties, and will be prosecuted to tile maximum
emn1 possible under the law. This documenl was prodU<:ed by AlA software at 15:11 :31 on O!i/1912006 under Order No.I 000182995_1 wtliell expires on
712312006, and Is no1 for resale.
U•r Notes: Clay<:o A111 • Koll - 1n1etacenter . oanas v3 (5·19-06) (2347931739)
R.P. Appx. 333 22
subconrracrs and materialmen that have worked on the Project since the date qf the last Application for Payment
and (e) within 45 days after the foundation for the Project has been ooured. a foundation survey showing lhe
location of the foundation for the Project. along with the boundaries of tbe Land. the location of any flood plain and
all easements and other title exceptions affecting the Land and any set back or other building restrictions as set fonb
on the most recent Survey.
§ 12.1.5 Each Application for Payment shall be based on the most recent schedule of values submitted by the
Contractor and aPProved in writing by Qwner in accordance with the Contract Documen!S. The schedule of values
shall allocate the entire Guaranteed Maximum Price and the Contractor's current estimate of the Cost of the Work
among the various portions of the Work, except that the Contractor's Fee shaU be shown as a single separate item.
The schedule of values shall be prepared in such form and supponed by such data to substantiate irs accuracy as the
~may require. This schedule, unless objected to by the A:rehit.eet Owner. shall be used as a basis for
reviewing the Contractor's Applications for Payment.
§ 12.1.6 Applications for Payment shall show the percentage of completion of each ponion of the Work as of the end
of the period covered by the Application for Payment The percentage of completion shall be the lesser of (1) the
percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by
dividing (a) the expense that has actually been incurred by the Contractor on account of that portion of the Work for
which the Contractor has made or intends to make actual payment prior to the next Application for Payment by (b)
the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.
§ 12.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be
computed as follows:
.1 take that ponion of the Guaranteed Maximum Price properly anocable to completed Work as
determined by multiplying the percentage of completion of each ponion of the Work by the share of
the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values.
Pending final detennination of cost to the Owner of changes in the Work, amounts not in dispute
shall be included as provided in Section 7.3.8 of AJ.A Qee11meRt 1\2~1 199+;the A201:
.2 add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the Work, or if approved in
advance by the Owner; suitably stored off the site at a location agreed upon in writing;
.3 add the Contractor's Fee, less retainage of ( ).The ten percent (1 0%) of the first 50% of the Cost pf
the Work (ysjng the Guaranteed Maximum Price as the Cost of the Work for this QUipOSe) and zero
percent (Q%) retainage tbereafter. The Contractor's Fee shall be computed upon the Cost of the Work
described in the two preceding Clauses at the rate stared in Section 5.1.2 or, if the Contractor's Fee is
stated as a fixed sum in that Subparagraph, shall be an amount that bears the same ratio to that fixed-
sum fee as the Cost of the Work in the two preceding Clauses bears to a reasonable estimate of the
probable Cost of the Work upon its completion;
.4 subtract the aggregate of previous paymenrs made by the Owner;
.5 subtract the shonfall, if any, indicated by the Contractor in the documentation required by Section
12.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently
discovered by the Owner's accountants in such documentation;&Jl6
.6 subtract amounts, if any, for which the ~has withheld er a1111ifieEI not aporoved a
CeRiHeat.e fer Payment as provided in Section 9.5 of AlA Document A2~l 199+.A201-1997: and.
.7 Thiny <30) days after Substantial Completion of the Work. any retainage then held by the Owner
shall be due and payable to the Contractor provided that such payroent may be refluced by the cost of
completing any incomplete Work or the disputed amount ot any unsettled claims.
§ 12.1.8 Except with the Owner's prior approval, payments to Subcontractors shan be subject to retainage ef net less
lhaa ( ). as set forth jn Section 12. 1.7.3 3bove. The Owner and the Contractor shall agree upon a mutually
AlA OocUIMnt A111" -18117. Copyright \01920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Arctlitects.
All rlghll re``ervt. and (ii) a copy of as-built plans and an as-built survey for the Projecl
(jii) evjwaer's Felflles£; !he Geatra:eter ifteefS eests Elesel'$ed iR A.rtiele 7
BR~ Ret e``elllded lly Artiele 8 te ea~et Elefeslive ar eeReeRfeFRiiag Werk, llte OwAer sllan reilllbll£6e tile
CeRtraetar sueh east& aRS the GaRtfa.eter's Fee applieallle lherete 9R the same llasis as if s11eh east& haEI bee&
iBeliMEI f.'fier te fiMl peyme&~ l111t aet ill &JHie86 ef !he Gu816Aieed MaMiiiiiiAI Pfiee. If tbe GeRtRieter has
paraeipated iB &a¥iBg& ae !!f9Yided in Seefies j.~. 1M ameiHit ef swah saviRgs shaU 13e ~eeale11late8 a``EI &flfJFefJriate
eresit git;en te lbe OwRer in determining 1M Ret 8JR911Rt te l3e paid lly the 0vfRef te the GaRtraGter.
ARTICLE 13 TERMINATION OR SUSPENSION
§ 13.1 The Contract may be terminated by the Contractor, or by the Owner for convenience, as provided in Article
14 of AlA Document A201-1997. However, the amount to be paid to the Contractor under Section 14.1.3 of AlA
Document A201-1997 shall not ~the BHI911Rt !he Centraeter we11IEi 13e e&~i£1eEi Guaranteed Max.irnum
~to reeei¥e 11RE1er 8ee8ea 13.a llelew, e~teept that the CeRtraeter's Jlee shall be saleulateEi as if !he Wefk had
•B fltHy ea111pletedey dte Ceslfaeter, inelwEliRg a reaseaaele estimate ef the Cast ef !he Wefk fer WeI'll Ret
aet11ally ee111pletes.excee4cd.,
§ 13.2 The Contract may be terminated by the Owner for cause as provided in Article 14 of AlA Document A201-
J997. The amount. if any, to be paid to the Contractor under Section 14.2.4 of AlA Document A201-1997 shall not
cause the Guaranteed Max.imum Price to be exceeded, nor shall it exceed an amount calculated as follows:
§ 13.2.1 Take the Cost of the Work incurred by the Contractor to the date of tennination;
§ 13.2.2 Add the Contractor's Fee computed upon the Cost of the Work to the date of termination at the rate stated in
Section 5.1.2 or, if the Contractor's Fee is stated as a fixed sum in that Section. an amount that bears the same ratio
to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the
probable Cost of the Work upon its completion; and
§ 13.2.3 Subtract the aggregate of previous payments made by the Owner.
§ 13.3 The Owner shall also pay the Contractor fair compensation, either by purchase or rental at the election of the
Owner, for any equipment owned by the Contractor that the Owner elects to retain and that is not otherwise included
in the Cost of the Work under Section 13.2.1. To the extent that the Owner elects to take legal assignment of
subcontracts and purchase orders (including rental agreements), the Contractor shall, as a condition of receiving the
payments referred to in this Article I 3, execute and deliver all such papers and take all such steps, including the
legal assignment of such subcontracts and other contractual rights of the Contractor, as the Owner may require for
the purpose of fully vesting in the Owner the rights and benefits of the Contractor under such subcontracts or
purchase orders.
§ 13.4 The Work may be suspended by the Owner as provided in Article 14 of AlA Document A201-l997; in such
case, the Guaranteed Maximum Price and Contract Time shall be increased as provided in Section 14.3.2 of AlA
AlA Document A111l"M - 1997. Copyright ~ 19-20, 1925, 1951, 1958, 1961, 1963, 1967. 1974, 1978, 1987 and 1997 by The American lns«tute ot Archh&cts.
All rlghte reeerwd. WARNING: Thla AlA• Oocumemls protected by u.s. Copyright law and International Treatlea. Unauthorlltd reproduction o. 12
distribution of this AlA• Document. or any portion of It, may result In severe clvU and criminal penalties, and will be prosccu1ed to the meximum
extent possible under the law. This document was produced by AlA sottwan1 8115:11:31 on 0511912006 under Order No.1000182995_ t wNch expires on
712312006, and Is not tor resllle.
U•r Notes: Clayco At 11 • Koll · lnleNioenter · Dallas v3 (5·19.06) (2347931739)
R.P. Appx. 336 25
Document A201-1997 except that the tenn "profit" shall be understood to mean the Contractor's Fee as described in
SeGlieAS Section 5.1.2 &Ad SeetieA 6.4 of this Agreement
ARTICLE 14 MISCB.LANEOUS PROVISIONS
§ 14.1 Where reference is made in this Agreement to a provision of AlA Document A201-1997 or another Contract
Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract
Documents.
§ 14.2 Payments due and unpaid under the Contract shall bear interest from the date payment 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 rate ofinterest agreed upon, if any.)
One oercent (1%) over the "prime rate" as reoorted in The Wall Street Journal.
(Usury laws and requirements under the Federal Truth in Lending Act, simiwr state and local consumer credit laws
and other regulations at the Owner's and Contractor's principal places ofbusiness, the location of the Project and
elsewhere may affect the validity ofthis provision. U!gal advice should be obtained with respect to deletions or
modifications, and also regarding requirements such as written disclosures or waivers.)
§ 14.3 The Owner's representative is:
(Name, address and other infonnation.)
Mike Rosamond
8411 Preston Road, Suite 700
Dallas. Texas 75225
With copy of all notices to:
Wayne Angel
8411 Preston Road. Suite 700
Dallas. Texas 75225
§ 14.4 Tbe Contractor's representative is:
(Name, address and other infonnation..)
Attn:Tom Sieckhaus
Clayco. Jnc.
2199 lnneffielt Business Center Drive
StLouis. Missouri 63114
At all times during the course of the Project Contractor shall orovide at the job site a qualified. competent and
res,ponsible suoervisor who shall be satisfactorv to Owner. The supervisor shall be Doug Gellner. Any cmoloyee of
Contractor reasonably deemed by Owner to be objectionable shall be removed from the job site promptly uoon
Owner request and shall be promptly replaced by Contractor at no extra exoense to Owner. Contractor shall
nevertheless retain all authoritv and control oyer its emo!oyees. including resoonsibilitv for all costs arising from
providing reasonable accommodations for its emp1oyees.
§ 14.5 Neither the Owner's nor the Contractor's representative nor the supervisor shall be changed without ten days'
written notice to the other p&fty:party and only wjth the other partv's approval. which approval may not be
unreasonably wjthbeld or delayed.
AlA Document A111'" - 1997. Copyright @ 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Arcllltects.
AU rfghta re•rved. WARNING: Thla AlA" Document Is proleeted by U.S. Copyright Law and fnternlltlonal Treatlea. Unauthorized reproduction or 13
distribution ot thla AlA" Document, or any portion ot It, may nlliiUitln severe clvU and criminal penelliM, and will be prosecuted to the maximum
extent possible under the taw. This document was produced by AlA soltwat& at 15:11:31 on05119/2006 under Order No.t000182995_1 which expires on
712312006, and is not tor resale.
u - Not": Clayco A111 • Koll • lnteHioenter · Dallas V3 (5-19·06) (2347931739)
R.P. Appx. 337 26
§ 14.6 Other provisions:
.I If there is any conflict among the Contract Documents. then the following priority shall be given
to the same: firsl. the provisjons of any Change Orders, Change Directives or other modifications shall
govern. with later modifications contrnmng over earlier modifications. second. this Agreement . (iv) automobile liability coverage of not less than $1.000,()()(). (y) umbrella policy of commercial
general liabjlity insurance wjth limits of not less than $10.000,()()(). Such insurance policies sball be issuec! by
insurance companies with a rating of not less than A-Class ym in the latest edition of Best's Insurance Guide.
Owner and Prudential Insurance Company of America ("Prudential") shall be a named additional insured partv on
all such insurance poljcjes. and Contrac!Qr shall deliver to Owner certified copies of such insurance oolicies,
together with certificates evidencing the coverage of Owner and Prudential under all such insurance policies and a
certified copy of the declarations page to each of the insurance policies. promptly uoon issuance or ~newal thereof.
Simultaneously with the execution hereof, Contractor shall enter into the Construction Indemnity and Assignment in
the form ·attached hereto as Exhibit "D".
AlA Document A1HTM -1997. COpyright tC 1920, 1925, 1951, 1958. 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Arcl'!nects.
All right• reservtd. WARNING: This AlA• Oooomentlt protected by U.S. Copyright Law and 1nterna11onll Trea1les. Un.,thor1%ed reproduction or 15
dislrllxltlon olthls AlA• Document, or any portion of It, may result in severe civil and criminal penahles, and wMI be proteeuted to the maximum
exten1 possible under 1he law. This docU'Il90t was produced by AlA software a115:11:31 on 05/1912006 under Order No.1000182995_ 1 which expiM on
712312006, ancl Is n01 for resale.
u- Note1: Clayco A111 • KOII · lntelicenter • Dallas v3 (S·19·06) (2347931739)
R.P. Appx. 339 28
This Agreement is entered into as of the day and year first written above and is executed in at least three original
copies, of which one is to be delivered to the Contractor, one to the Architect for use in the administration of the
Contract, and the remainder to the Owner.
Exhibit "A"- Project Schedule
Exhibit "B"- Ou!line Specifications & Drawings
Exhibit "C" - Clayoo Control Budget
Exhibit ''D"- Construction ln.
l!s paanC(
By: KPC-HPB Inyesupeots Pallas GP. u.c.
jts genqaJ partner
Bv: Koll Development Company I. !.,P.. Member
By; swy, U.C. Mana&jpg Oencnl Partner
OWNER (Signature)
(Printed name and title) (Printed name and title)
VIN" /It~!...,- `` OAPtffl4
AlA Document A111"'-1997. COpyright C 1920, 1925, 1951, 1958, 1961, 1963, 1987, 1974, 1978, 1987 an:! 1997 by The American lnstitule of Architects.
All rigllll ,...rved. WARNING: This AlA• Document is PfOiecled by U.S. Copyright Law and lnterollllonal Treatlte. Unauthorized reproduction or 16
distribution of this AlA• Document, or any portion ot It, may reeult in severe civil and criminal penalties, and will be proseculed to the maximum
extent possible under the law. This document was produced by AlA sollWIIre at 15:11:31 on 0511912006 under Order No.1000182995_t which expires on
712312006, and Is no1 for resale.
User Notte: Clayco A111 - Koll • lntelllcenter. Dallas v3 (5·19·06) (2347931739)
R.P. Appx. 340 29
AlA Document A201™- 1997
General Conditions of the Contract for Construction
for the following PROJECT:
(Name and location or address):
The design and construction of a 4-story speculative office building. consisting of
approximately 211.637 gross square feet. located at 3701 Regent Blvd., Irving, Texas. T~is document has Important
legal consequences.
THE OWNER: Consultation with an attorney
(Name and address): Is encouraged with respect to
its completion or modification.
lntellicenter Dallas Investments. LLP This document has been
approved and endorsed by The
81 15 Preston Rd., Suite #700
Associated General Contractors
Dallas. TX 75225
of America
THE ARCHITECT:
(Name and address):
FS Architecture. PC
c/o Forum Studios. Inc.
2199 Innerbelt Business Center Drive
St. Louis, Missouri 63114
TABLE OF ARTICLES
1 GENERAL PROVISIONS
2 OWNER
3 CONTRACTOR
4 ADMINISTRATION OF THE CONTRACT
5 SUBCONTRACTORS
6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
7 CHANGES IN THE WORK
8 TIME
9 PAYMENTS AND COMPLETION
10 PROTECTION OF PERSONS AND PROPERTY
11 INSURANCE AND BONDS
AlA Document A201"' -1997. Copyright © 1911 . 1915, 1918, 1925, 1937, 1951, 1956, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Ia protected by U.S. Copyright Law and International Treatlea. Unauthorized 1
reproduction or distribution of this AlA• Document, or any portion ollt, may result In severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the lew. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7/23/2006, and is not for resale.
User Notes: Ciayeo A201 - Koll · lntelllcenter - Dallas v2 (5-19•06) (986536188)
R.P. Appx. 341 30
12 UNCOVERING AND CORRECTION OF WORK
13 MISCELLANEOUS PROVISIONS
14 TERMINATION OR SUSPENSION OF THE CONTRACT
AlA Document A201 111 -1997. Copyright Clil1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserv~ WARNING: This AlA• Document Ia protected by U.S. Copyright Law and lntema1lonal TreaUes. Unauthorized 2
reproduction or distribution of this AlA Document, or any portion of It, may reault In severe c:lvll and criminal penellles, and will be prosecuted to the
maximum eJCtent poulble under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll -lntalliconter · Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 342 31
INDEX 3.1.3, 4.2, 4.3.4, 4.4, 9.4, 9.5
(Numbers and Topics in Bold are Section Headings) Architect's Appmvals
2.4, 3.1.3, 3.5.1' 3.10.2, 4.2.7
Acceptance of Nonconforming Work Architect's Authority to Reject Work
9.6.6, 9.9.3, 12.3 3.5.1, 4.2.6, 12.1.2, 12.2.1
Acceptance of Work Architect's Copyright
9.6.6,9.8.2, 9.9.3, 9.10.1, 9. 10.3, 12.3 1.6
Access to Work Architect' s Decisions
3.16, 6.2. 1, 12.1 4.2.6, 4.2.7, 4.2. 11 , 4.2.12, 4.2.13, 4.3.4, 4.4. 1' 4 .4.5,
Accident Prevention 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1 , 9.2, 9.4,
4.2.3, 10 9.5.1,9.8.4, 9.9. 1, 13.5.2, 14.2.2,14.2.4
Acts and Omissions Architect's Inspections
3.2, 3.3.2, 3. 12.8, 3.18, 4.2.3, 4.3.8, 4.4.1, 8.3.1, 4.2.2, 4.2.9, 4 .3.4, 9 .4.2, 9.8.3, 9.9.2, 9. 10.1, 13.5
9.5.1, 10.2.5, 13.4.2, 13.7, 14.1 Architect's lnstructions
Addenda 3.2.3, 3.3.1, 4.2.6, 4.2.7, 4.2.8, 7.4.1' 12.1 , 13.5.2
1.1.1,3.11 Architect' s Interpretations
Additienal Costs, Claims for 4.2.11, 4.2. 12, 4.3.6
4.3.4, 4.3.5, 4.3.6, 6.1. I, 10.3 Architect's Project Representative
Additional Im;pections and Testing 4.2. 10
9.8.3, U.2.1, 13 .5 Architect's Relationship with Contractor
Additional Time, Claims for 1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3. 1, 3.4.2, 3.5.1 ,
4.3.4, 4.3.7, 8.3.2 3.7.3, 3.10, 3. 11, 3.12, 3. 16, 3.18, 4.1.2, 4.1 .3, 4.2,
ADMINISTRATION OF THE CONTRACT 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1 , 9.2, 9.3, 9.4,
:u .3, 4, 9.4, 9.5 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12,
Advertisemeot or Invitation to Bid 13.4.2, I 3.5
l. L.l Architect' s Relationship with Subcontractors
Aesthetic Effect ] .1.2, 4.2.3, 4.2.4, 4.2.6, 9.6.3, 9.6.4, 11.4.7
4.2.13,4.5.1 Architect's Representations
Allowances 9.4.2, 9.5.1, 9 .10.1
3.8 Architect' s Site Visits
All-fisk lnsurance 4.2.2, 4.2.5, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9. J0.1 ,
11 .4. 1.1 13.5
Applications for Payment Asbestos
4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5. 1, 9c6.3, 9.7.1 , 9.8.5, 10.3.1
9.1 0, 11.1.3, 14.2.4, 14.4.3 Attorneys' Fees
Approvals 3. 18.1 , 9.10.2, 10.3.3
2.4, 3.1.3, 3.5, 3.10.2, 3. 12, 4.2.7, 9.3.2, 13.4.2, 13.5 Award of Separate Contracts
Arbitration 6.1.1, 6.1.2
4.3.3, 4.4, 4.5.1' 4.5.2, 4.6, 8.3.1, 9.7.1' 11.4.9, A ward of Suibcontracts and Other Contracts for
11.4.10 Portions of the Work
Architect 5.2
4.1 Basic Definitions
Architect, Definition of 1.1
4.1.1 Bidding Requirements
Architect, Extent of Authority l.l.l, 1.1.7, 5·.2. 1, JJ.5. J
2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2, 7.3.6, 7.4, Boiler and Machinery Insurance
9.2, 9.3.1 , 9.4, 9.5, 9.8.3, 9.10. 1, 9.10.3, 12.1 , 12.2.1 , 11.4.2
13.5.1, 13.5.2, 14.2.2, 14.2.4 Bonds, Lien
Architect, Limitations of Authority and 9 . 10.2
Responsibility Bonds, Performance, and Payment
2. 1.1, 3.3.3, 3.12;4, 3.12.8, 3. I 2.1 0, 4. 1.2, 4.2.1, 7.3.6.4, 9.6.7. 9.10.3, 11.4.9, 11.5
4.2.2, 4.2.3, 4.2.6, 4.2.7, 4.2.10, 4.2.12, 4.2.13, 4.4, Building Permit
5.2.1 ' 7.4, 9.4.2, 9.6.4, 9.6.6 3.7.1
Architect's Additional Services and Expenses Capitalization
2.4, 11.4. 1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4 1.3
Architect's Adminis~ratioo of the Contract Certificate of Subst.antial Completion
AlA Document A201m -1997. Copyright © 1911. 19t 5, 19t8, 1925. 1937, 1951, 1958. 1961. 1963, 1966, t 970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Law and International Treaties. Unauthorb:ed 3
reproduction or dfatrlbullon of this AlA• Document, or any portion of It, may result In severe c:tvlland c:rlmlnal penalties, and will be prosecuted to the
maximum extent possible under the law. This document was produced by AlA software at 14.:42:43 on 05119/2006 under Order No.1000t 82995_ t which
expires on 7/23/2006, and is not tor resale.
User Notes: Clayco A201 • Koll · lntelllcenter · Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 343 32
9.8.3, 9.8.4, 9.8.5 1.6.1, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6.4,
Certificates for Payment 4.6.6, 9.6.4, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1,
4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6. I, 9.6.6, 9.7.1 , 9.10. 1, 13.5.2, 13.6, 14.1.) , 14.2.1.3
9.10.3, 13.7, 14.1.1.3, 14.2.4 Concealed or Unknown Conditions
Certificates of Inspection, Testing or Approval 4.3.4, 8.3.1 , 10.3
13.5.4 Conditions of the Contract
Certificates of Insurance 1.1.1 , 1.1.7, 6.l.l, 6.1.4
9.1 0.2, 11.1.3 Consent, Written
Change Orders 1.6. 3.4.2, 3.12.8. 3.14.2, 4.1 .2, 4.3.4, 4 ..6.4, 9.3.2,
1.1.1 , 2.4.1' 3:4.2, 3.8.2.3, 3. 11.1 , 3.12.8, 4.2.8, 4.3.4, 9.8.5, 9.9.1, 9.1 0.2, 9.1 0.3, 11.4.1 , 13.2, I 3.4.2
4.3.9, 5.2.3, 7.1, 7.2, 7.3, 8.3.1, 9.3.U, 9.10.3, CONSTRUCTION BY OWNER OR BY
I I .4.1.2, I 1.4.4, 11.4.9, 12.1.2 SEPARATE CONTRACTORS
Cbange Orders, Definition of 1.1.4, 6
7.2.1 Construction Change Directive, Definition of
CHANGES IN THE WORK 7.3.1
3.ll, 4.2.8, 7, 8.3. 1, 9.3.1.1, 11.4.9 Construction Change Directives
Claim, Definition of 1.1.1, 3.12.8, 4.2.8, 4.3.9, 7.1, 7.3, 9.3.).1
4.3.1 Construction Schedules, Contractor's
Claims and Disputes 1.4. 1.2, 3.1 0, 3.12. I ' 3.12.2, 4.3.7 .2, 6.1.3
3.2.3, 4.3, 4.4, 4.5, 4.6, 6.l.l, 6.3, 7.3.8, 9.3.3, 9.10.4, Contingent Assignment of Subcontracts
10.3.3 5.4, 14.2.2.2
Claims and Timely Assertion of Claims Continuing Contract Performance
4.6,5 4.3.3
Claims for Additional Cost Contract, Definition of
3.2.3, 4.3.4, 4.3.5, 4.3.6, 6. I .I , 7 .3.8, 10.3.2 1.1.2
Claims for Additional Time CONTRACT, TERMINATION OR
3.2.3, 4.3.4, 4.3.7, 6.1. I , 8.3.2, 10.3.2 SUSPENSION OF THE
Claims for Concealed or Unknown Conditions 5.4.1.1, 11.4.9, 14
4.3.4 Contract Administration
Claims for Damages 3.1.3, 4. 9.4, 9.5
3.2.3, 3.18, 4.3. 10, 6.1.1, 8.3.3, 9.5.1 , 9.6.7, 10.3.3, Contract Award and Execution, Conditions Relating
1 J.l.l, 11.4.5, 11.4.7, 14.1.3, 14.2.4 to
Claims Subject to Arbitration 3.7.1,3.10,5.2,6. 1, 11.1.3, 11.4.6, 11.5.1
4.4.1 , 4.5.1, 4.6.1 Contract Documents, The
Cleaning Up 1.1, 1.2
3.15,6.3 Contract Docu ments, Copies Furnished and Use of
Commencement of Statutory Limitation Period 1.6, 2.2.5, 5.3
13.7 Contract Documents, Definition of
Commencement of the Work, C6nditions Relating to 1.1.1
2.2.1, 3.2.1 ' 3.4.1' 3.7. 1' 3.10.1, 3.12.6, 4.3.5, 5.2.1' Contract Sum
5.2.3, 6.2.2, 8.1 .2, 8.2.2, 8.3.1' 11.1, 11.4.1' 11.4.6, 3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, 9.1, 9.4.2,
11.5.1 9.5. 1.4, 9.6.7, 9.7, 10.3.2, ll.4.1, 14.2.4, 14.3.2
Commencement of the Work, Definition of Contract Sum, Definition of
8.1.2 9.1
Communications Facilitating Contract Contract Time
Administration 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4, 8. 1.1 , 8.2,
3.9.1,4.2.4 8.3.1 , 9.5.1, 9.7, 10.3.2, 12.1.1, 14.3.2
Completion, Conditions Relating to Contract Time, Definition of
1.6.1 ' 3.4.1, 3.11, 3.15, 4 .2.2, 4.2.9, 8.2, 9.4.2, 9.8, 8.1.1
9.9.1, 9.10, 12.2, 13.7, 14.1.2 CONTRACTOR
COMPLETION, PAYMENTS AND 3
9 Contractor, Definition of
Completion, Substantial 3.1, 6.1.2
4.2.9, 8.1.1 , 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9. 10.3, Contractor's. Construction Schedules
9.10.4.2, 12.2, 13.7 1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3
Compliance with Laws Contractor's Employees
AlA Document A20f'"' -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document 11 protected by U.S. Copyright Law and International Treaties. Uneulhor~ed 4
reproduction or distribution of thll AlA• Document, or any portion ollt, may result In severe civil and criminal penalties, and will be prosecuted to the
maximum extent poaslble under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 712312006, and is not lor resale.
User Notes: Clayco A201 • Koll • lntellicenter • Dallas v2 (5·19.06) (986536188)
R.P. Appx. 344 33
3.3.2, 3.4.3, 3.8. 1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, 6.2.5, 3.14
I 1.1.1 , 11.4.7, 14.1, 14.2. 1.1 , Damage to Construction or Owner or Separate
Contractor 's Liability Insurance Contractors
11.1 3. 14.2, 6.2.4, 9.2.1.5, I 0.2. 1.2, 10.2.5, 10.6, 11.1 ,
Contractor's Relationship with Separate Contractors I I .4, 12.2.4
and Owner's Forces Damage to the Work
3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2, 12.2.4 3.14.2, 9.9.1.10.2.1.2, 10.2.5, 10.6, 11.4, 12.2.4
Contractor's Relationship with Subcontractors Damages, Claims for
1.2.2, 3.3.2, 3.18.1 , 3.18.2, 5, 9.6.2, 9.6.7, 9.10.2, 3.2.3, 3. 18, 4.3.10, 6.1 . 1. 8.3.3, 9.5.1, 9.6.7, 10.3.3,
11.4. 1.2, 11.4.7, 11.4.8 II. I. I. 11.4.5, 11.4.7, 14. 1.3, 14.2.4
Contractor's Relationship with the Architect Damages for Delay
I. I .2, 1.6, 3.1.3, 3.2. 1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 6. 1.1 , 8.3.3, 9 .5. 1.6, 9.7, 10.3.2
3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4 .1.2, 4.1.3. 4.2, Date or Commencement of the Work, Definition of
4.3.4, 4.4. 1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 8.1.2
9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12. Date of Substantial Completion, Definition of
13.4.2, 13.5 8. 1.3
Contractor's Representations Day, Definition of
1.5.2, 3.5.1, 3. 12.6, 6.2.2, 8.2.1 , 9.3.3, 9.8.2 8.1.4
Contractor's Responsibility for Those Performing the Decisions of the Architect
Work 4.2.6, 4.2.7, 4.2.11' 4.2. 12. 4.2. 13, 4.3.4, 4.4. 1' 4.4.5,
3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1 ' 6.1.3, 6.2, 6.3, 9.5. 1, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3. 1, 9.2, 9.4,
10 9.5.1. 9.8.4, 9.9. 1, 13.5.2, 14.2.2, 14.2.4
Contractor's Review of Contract Documents Decisions to Withhold Certification
1.5.2, 3.2, 3.7.3 9.4 . 1, 9.5, 9.7, 14. 1.1.3
Contractor' s Right to Stop the Work Defective or Nonconforming Work, Acceptance,
9.7 Rejection and Correction of
Contractor's Right to Terminate the Contract 2.3, 2.4, 3.5.1, 4.2.6. 6.2.5, 9.5. 1, 9.5.2, 9.6.6, 9.8.2,
4.3.10, 14. 1 9.9.3, 9.10.4, 12.2.1. 13.7. 1.3
Contractor's Submittals Defective Work, Definition of
3.10, 3. 11 , 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 3.5.1
9.8.2, 9.8.3, 9.9.1, 9.10.2, 9. 10.3, 11.1.3, 11.5.2 Definitions
Contractor's Superintendent 1.1 , 2.1.1, 3.1, 3.5.1, 3.12. 1, 3.12.2, 3.12.3, 4.1.1,
3.9, 10.2.6 4 .3.1, 5. 1, 6.1.2, 7 .2. 1, 7.3. 1, 7.3.6, 8.1, 9.1 , 9.8. 1
Contractor's Supervision and Construction Delays and Extensions of T ime
Procedures 3.2.3, 4.3.1 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1 , 7.3.1 ,
I
1.2.2, 3.3, 3.4, 3.12.1 0, 4.2.2, 4.2.7' 4.3.3, 6.1 .3, 7.4.1, 8.3, 9.5. 1, 9.7. 1, 10.3.2, 10.6.1, 14.3.2
6.2.4, 7.1.3, 7.3.4, 7.3.6, 8.2, 10, 12, 14 Disputes
Contractual Liability Insurance 4.1.4, 4.3, 4.4 , 4.5, 4.6, 6.3, 7.3.8
ll.J . 1.8, 11.2, I 1.3 Documents and Samples at the Site
Coordination and Correlation 3.11
1.2, 1.5.2, 3.3.1 , 3. 10, 3.12.6, 6.1.3, 6.2.1 Drawings. Defmition or
Copies Furnished of Drawings and Specifications 1. 1.5
1.6, 2.2.5, 3.11 Drawings and Specifications, Use and Ownership of
Copyrights 1.1.1 , 1.3, 2.2.5, 3.1 I, 5.3
1.6,3. 17 Effective Date of Insurance
Correction of Work 8.2.2, 11.1.2
2.3, 2.4, 3.7.4, 4.2.1, 9.4.2, 9.8.2, 9.8.3, 9.9.1 ' 12.1 .2, Emergencies
12.2, 13.7.1.3 4.3.5, 10.6, 14.1.1.2
Correlation and Intent of the Contract Documents Employees, Contractor's
1.2 3.3.2, 3.4.3, 3.8.1 , 3.9, 3.18.2. 4.2.3, 4.2.6, 10.2, 10.3,
Cost, Definition of 11.1.1 , 11.4.7. 14.1 ' 14.2.1.1
7.3.6 Equipment, Labor, Materials and
Costs I. 1.3, 1.1.6, 3.4, 3.5. 1, 3.8.2, 3.8.3, 3.12, 3.13, 3. 15.1 ,
2.4, 3.2.3, 3.7.4, 3.8.2, 3. 15.2, 4.3, 5.4.2, 6.1.1 ' 6.2.3, 4.2.6, 4.2.7, 5.2.1 ' 6.2.1 , 7 .3.6, 9.3.2, 9.3.3, 9.5. 1.3.
7.3.3.3, 7.3.6, 7.3.7, 7.3.8, 9. 10.2, 10.3.2, 10.5, 11.3, 9. 10.2, 10.2. 1, 10.2.4, 14.2.1.2
11.4, 12.1, 12.2.1.12.2.4, 13.5, 14 Execution and Progress o f the Work
Cutting and Patching
AlA Document A201.,. - 1997. Copyright and Contractors
10.2.5, 11.4 1.1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6, 8.3.1 '
PROTECTION OF .fERSONS AND PROPERTY 11.4.7, 12. 1.2, 12.2.5
10 Shop Drawings, Definition of
Regulations and Laws 3.12.1
1.6, 3.2.2, 3.6, 3.7, 3. 12.10, 3. 13, 4.1.1, 4.4.8, 4.6, Shop Drawings, Product Data and Samples
9.6.4, 9.9.1, 10.2.2, lJ.l , 11.4, 13.1, 13.4, 13.5. 1. 3.11 , 3.12. 4.2.7
13.5.2, 13.6, 14 Site, Use of
Rejection of Work 3.13, 6.1.1, 6.2.1
3.5.1 , 4.2.6, 12.2.1 Site Inspections
Releases and Waivers of Liens 1.2.2, 3.2.1 , 3.3.3, 3 .7. J, 4.2, 4.3.4, 9.4.2, 9.10.1 ' 13.5
9. 10.2 Site Vi.sits, Architect's
Representations 4.2.2, 4.2.9, 4 .3.4, 9.4.2, 9.5.1 , 9.9.2, 9.10.1 , .1 3.5
1.5.2, 3.5.1 , 3.12.6, 6.2.2, 8.2.1 t 9.3.3, 9.4.2, 9.5. I I Special Inspections and Testing
9.8.2, 9.10.1 4.2.6, 12.2.1 , 13.5
Represe ntatives Specifications, Definition of the
2.1.1 ' 3. 1.1' 3.9, 4.1.1, 4.2. 1, 4.2.10, 5 . I. I, 5.1.2, 1.1 .6
13.2.1 Specifications, The
Resolution of Claims and Disputes 1.1.1 , 1.1.6, 1.1.7, 1.2.2, 1.6, 3. 11, 3.1 2. I 0, 3.17
4.4, 4.5, 4.6 Statute of Limitations
Responsibility for Those Petforming toe Work 4.6.3, 12.2.6, 13.7
3.3.2, 3.18, 4.2.3, 4.3.8, 5.3. 1, 6. 1.3, 6.2, 6.3, 9.5. I , Stopping the Work
10 2.3, 4.3.6, 9.7, 10.3, 14.1
Retainage Stored Materials
9.3.1 , 9.6.2, 9.8.5, 9.9.1 , 9.10.2, 9. 10.3 6.2.1 , 9.3.2, 10.2.1.2, 10.2.4, I 1.4.1.4
Review of Contract Documents and Field Subcontractor, Definition of
Conditions by Contractor 5.1.1
1.5.2, 3.2, 3.7.3, 3.12.7. 6.1.3 SUBCONTRACTORS
AlA Document A201.,.,. -1997. Copyright © 1911 , 1915, 1918, 1925. 1937. 1951 , 1958. 1961. 1963, 1'966, 1970, 1976, 1987 and 1997 by The Ameriean
Institute of Architects. All rights reserved. WAR NING: Thia At A• Document Ia protected by U.S. Copyright L.w and International Treatlea. Unauthorized 8
reproduction or distribution of this AIA8 Document, or any portion ollt, may result In aevere civil and criminal penalties, and will be prosecuted to the
maJCimum edent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7/23/2006, and is not for resale.
User Notes: Clayco A201 · Koll • lntellicenter · Dallas v2 (5·19·06) (986536188)
R.P. Appx. 348 37
5 TERMINATION OR SUSPENSION OF THE
Subcontractors, Work by CONTRACT
1.2.2, 3.3.2, 3.12.1 I 4.2.3, 5.2.3, 5.3, 5.4, 9.3. 1.2, 14
9.6.7 Tests and Inspections
Subcontractual Relations 3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9. 9.4.2, 9.8.3, 9.9.2,
5.3, 5.4, 9.3.1.2, 9.6, 9.10 10.2.1, 11.4 .7, 11.4.8, 14.1, 9.10.1 , 10.3.2, 11.4.1.1 , 12.2. 1,13.5
14.2,1, 14.3.2 TIME
Submittals 8
1.6, 3. JO, 3. 11 , 3.12, 4.2.7, 5.2. 1, 5.2.3, 7.3.6, 9.2, Time, Delays and Extensions of
9.3. 9.8, 9.9.1, 9. 10.2, 9.10.3, 11.1.3 3.2.3, 4.3. 1I 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1 I 7.3. 1)
Subrogation, Waivers of 7.4. 1, 8.3. 9.5.1, 9 .7. 1, 10.3.2, 10.6.1, 14.3.2
6. 1.1 , 11.4.5, 11.4.7 Time Limits
Substantial Completion 2.1.2, 2.2, 2.4, 3.2.1, 3.7.3. 3.10, 3. J I , 3 .12.5, 3.15.1.
4.2.9, 8.1.1, 8.1.3. 8.2.3, 9.4.2, 9.8, 9.9.1' 9.10.3, 4.2, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4,
9.10.4.2, 12.2, 13.7 8.2, 9.2, 9.3.1' 9.3.3, 9.4.1' 9.5, 9.6, 9.7, 9.8, 9.9,
Substantial Completion, Defi,ni~on of 9.10, 11.1.3, ]1.4.1.5, 11.4.6, 11.4.10, 12.2, l3.5,
9.8.1 13.7, 14
Substitution of Subcontractors Time Limits on Claims
5.2.3, 5.2.4 4.3.2, 4.3.4, 4.3.8, 4.4, 4.5, 4.6
Substitution of Architect Title to Work
4.1.3 9.3.2, 9.3.3
Substitutions of Materials UNCOVERING AND CORRECTION OF
3.4.2, 3.5.1, 7,3.7 WORK
Sub-subcontractor, Definition of 12
5.1.2 Uncovering of Work
Subsurface Conditions 12.1
4.3.4 Unforeseen Conditions
SuccessOrs and Assigns 4.3.4, 8.3.1, I 0.3
13.2 Unit Prices
Superintendent 4.3.9, 7 .3.3.2
3.9, 10.2.6 Use of Documents
Supervision and Construction Procedures 1.1.1 , 1.6, 2.2.5, 3.12.6, 5.3
1.2.2, 3..3, 3.4, 3.1 2.1 0, 4.2.2, 4.2.7, 4.3.3, 6. 1.3, Usc of Site
6.2.4, 7.1.3, 7.3.6, 8.2, 8.3. 1, 9.4.2, 10, 12, 14 3.13, 6.1.1, 6.2.1
Surety Values, Schedule of
4.4.7, 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2 9.2, 9.3.1
Surety, Consent of Waiver of Claims by the Architect
9.10.2, 9.10.3 13.4.2
Surveys Waiver of Claims by the Contractor
2.2.3 4.3. 10, 9.10.5, 11.4.7, 13.4.2
Suspension by the Owner for Convenience Waiver of Claims by the Owner
14.4 4.3.10, 9.9.3, 9.10.3, 9 . 10.4, 11.4.3, 11.4.5, 11 .4.7'
Suspension of the Work 12.2.2. 1, 13.4.2, 14.2.4
5.4.2, 14.3 Waiver of Consequential Damages
Suspension or Termination of the Contract 4.3.10, 14.2.4
4.3.6, 5.4.1.1, 11.4.9, 14 Waiver of Liens
Taxes 9.10.2, 9.10.4
3.6, 3.8.2.1, 7.3.6.4 Waivers of Subrogation
Termination by the Contractor 6.1.1, 11.4.5, 11.4.7
4.3.10, 14.1 Warranty
Termination by the Owner for Cause 3.5, 4.2.9, 4.3.5.3, 9.3.3, 9.8.4, 9.9.1, 9.10.4, 12.2.2.
4.3. 10, 5.4.1.1, 14.2 13.7.1.3
Termination of the Architect Weather Delays
4.1.3 4.3.7.2
Termination of the Contractor Work, Definition of
14.2.2 1.1.3
Written Consent
AlA Document A201lM-1997. Copyright <11>19 11 , 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976. 1987 and 1997 by The American
1
Institute of Architects. All rights reserved. WARNING: This AIA Document Is protected by U:S. Copyright Law and lntornetlonal Treatlea. U'nauthoi'Ued 9
reproduction or distribution of this AlA' Document. or any portion of It, may result In seva1'81 civil end criminal penalties, snd will be prosecuted to tho
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expir'es on 7/2312006, and is not for resale.
User Notes: Ciayeo A201 • Kolf · lntelflcenter · Dallas v2 (5·19·06) (986536188)
R.P. Appx. 349 38
1.6. 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2. 2.3, 2.4, 3.3.1. 3.9, 3.1 2.9, 3.12.10, 4.3, 4.4.8, 4.6.5,
9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.), 13.2. 13.4.2 5.2.1 , 8.2.2. 9.7, 9.10, 10.2.2. 10.3. 11.1.3, 11.4.6,
Written Interpretations 12.2.2, 12.2.4, 13.3, 14
4.2.11, 4.2.12, 4.3.6 Written Orders
Written Notice 1.1.1, 2.3, 3.9, 4.3.6, 7. 8.2.2, 11.4.9, 12.1 ' 12.2,
13.5.2, 14.3.1
AlA Document A201T10 -1997. Copyright © 191 1, 1915, 1918, 1925, 1937, 1951. 1958, 1961 , 1963. 1966, 1970, 1976. '1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Ia protected by U.S. Copyright Law and International Treatl&a. Unauthorized 10
reproduction or dlatrlbullon of this AlA• Document, or any portion ollt, may reault In severe civil and criminal penalties, and will be prolle'cuted to the
mliXImum extent possible under the taw. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1 000182995_ 1 which
expires on 7123/2006, and is not for resale.
User Notes: Clayco A201 • Kol! • lntelllcenter • Dallas v2 (5·19·06) (986536188)
R.P. Appx. 350 39
ARTICLE 1 GENERAL PROVISIONS
§ 1.1 BASIC DEFINITIONS
§ 1.1.1 THE CONTRACT DOCUMENTS
The Contract Documents consist of the Agree meat betweea O•.vtlef an£1 Coatraetar (hereiaafter l!!e Agreemeal),
Agreement. this specifically modified AlA Document A20 1.-1997. General Conditions of the Ceatreet (Geaerel,
S\iflfllemeatary Qflti ol!!er Coatiitioas), (" A20 I"), Ora wings, Specl1ications, Addenda issued prior to 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, QL(2) a Change Oreer, (31 a
Cea:Jtffictiea Cl:lQflge Direea·'e or (4) a wFiUea omer ~r a miaor eaaage ia tl:le Work isseed by the Arehitect. Order.
Unless specifically enumerated in the Agreement, the Contract Documents do not include other documents such as
bidding requirements (advertisement or invitation to bid, Instructions to Bidders, sample forms, the Contractor' s bjd
or portions of Addenda relating to bidding requirements). References herein to the "Agreement'' shall mean and
refer to the specifically modified Standard Form of Agreement Between Owner and Contractor. or Owner and
Construction Manager, which may be an AlA Document AIOI. Alii or Al2l. whichever is applicable.
§ 1.1.2 THE CONTRACT
The Contract Documents fom1 the Co.ntract for Construction. The Contract represents the entire and integrated
agreement between the parties hereto .and supersedes prior negotiations, representations or agreements, either written
or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be
construed to create a contractual relationship of any kind (I) between the Architect and Contractor, (2) between the
Owner and a Subconti:actor or Sub-subcontractor, (3) between the Owner and Architect or (4) between any persons
or entities other than the Owner and Contractor.Tile A:ehiteet shall, however, be eatitlea to f!er4'erataaee aae
eefel'eemeat of ol:lligaaoas Haser the Coatraet i:Rteaded to facilitate performance of the Al:chitect's duties.
§ 1.1.3 THE WORK
The term "Work" 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 tbe whole or a part of the Project.
§ 1.1.4 THE PROJECT
The Project is the total construction of which the Work performed under the Contract Documents may be the whole
or a part and which may include construction by the Owner or by separate contractors.
§ 1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and
dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams.
§ 1.1.6 THE SPECIFICAliONS
The Specifications are that portion ofthc Contract Documents consisting of the written requirements for materials.
equipment, systems, standards and workmanship for the Work, and performance of related services.
§ 1.1.7 THE PROJECT MANUAL
The Project Manual is a volume assembled for the Work which may include the bidding requirements, sampJe
forms, Conditions of the Contract and Specifications.
§ 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
§ 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and
completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by
one shall be as binding as if required by all; performance by 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
indica.ted results.
§ 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings sh,all not
control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be
performed by any trade.
AlA Document A201"' -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute or Architects. All rights reserve~. WARNING: This AJA8 Document Is protected by U.S. Copyright Law 1nd International Treaties. Unauthorized 11
reproduction or distribution of thht AlA Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the
maximum extent poulble under tile law. This document was produced by AlA software at 14:42:43 on 05119/2006 under Order No.1 000182995_ 1 which
expires on 7/23/2006, and is not for resale.
User Notes: Clayco A201 - Koll - lntellicenter · Dallas v2 (5·19·06) (986536188)
R.P. Appx. 351 40
§ 1.2.3 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 GAPITALIZATION
§ 1.3.1 Tenns capitali7.ed in these General Conditions include those which are (I) specifically defined, (2) the titles.
of numbered ruticles or (3) tbe titles of other documents published by the American Institute of Architects.
§ 1.41NTERPRETATION
§ 1.4.1ln the interest of brevity the Contract Documents frequently omit modifying words such as "all" 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 intende.d to affect the interpretation of either statement.
§ 1.5 EXECUTION OF CONTRACT DOCUMENTS
§ 1.5.1 The Contract Documents shall be signed by the Owner and Contractor.If either the Qv,'f!er ar CaHtraetar or
aath da Ret sigA ttl! W!e Cealfaet Doeameots, the ,'\n;hiteel shall ideotify ~I:IEll'll:lnsiga.etl Doel:lments l:lpon r:eqaest.
§ 1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site,
become generaUy familiar with local conditions under which the Work is to ibe performed and correlated personal
observations with requirements of the Contract Documents.
§ 1.6·OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE
§ 1,&,1 Tile Drawing:;, Sfleeifieat:iens II:Rti etlier Elee1:1ments, iRei1:1Eiing l:l~ese iA: eleeEFeffie farm, f!reparee ey the
Arelliteet aad the Arehiteet' 5 eea:sl:lltaats are lnSlfl:lfReRtS ef Service threl:lgA which the Werk ta ee e){eCI:IleG ey lhe
CeRlfaeter is Eleserieea. The Ceatraet~lF FHay retain one reeorEI set. ~leitller tJ:te Ceatraeter ner any 8-aaeeatraeter,
S1:1b saaeonlfas«~r or ERaterial or equipa1eat s~;~pplier seal! own or elaifR a copyright ifl the Drawi:Hgs, Speeifieatieat;
ana eY!er aeeu~Rts flFeparea by the Arelliteet er the Arekite.et' s eeftRUitaal!>, ana I:IAiess et:Aerwise iaaieatea lhe
Arel!iteet aftd the A:fehitect'S 601lSI:IItantS SRaiJ ae SeeFHed the autREIFS ef tReffl ll:Rd will retttiR ail 69ffiRI8ft law,
statutery aM other reser¥ed rights, in additieR to lR:e eepyrights. AIJ eepies of lHstruFHents ef Serviee, e*eept the
Centraeter's reee£6 :;et, sllall ee retafAetl er sl:litaaly aeeo1:1nted fer te tile Arehiteet, eA req1:1est, 1:1pen ce!Bplet:ien et
the Werk. The Drawiags, SpeeifieatieBs and e!:her deel:lfRBftt!i pr:etJareEI ey tke Arelliteel ttHS t:Ae Architect's
eansultaats. asa eepies tl!ereef faFRisaed te the Centraetar, are fer use salely with re~eet te tlli:; Prejeet. Tiley are
net te be 'I:!sea by the Ceattaeter er QFIY S~:~eeentraeter, S1:1e s~:~eeoatractor or ERaterial or eq~:~ipFHent Sl:lflfllier en ather
prejeets er fer edelitieas ta this Prejeet eat:1iae the seeJ!e ef !:he WerlE witheut !:he specifie written eonsent of tile
Owner, t\rehiteet ll:Ra the Ar:ehiteet's eeasl:lltants. The Ceatreetar, S~:~aeenli'aeters, .S1:1a 9ueeen~raetars aaa material
er eEJH:ipFAeat sapf!liers are autherizea te use aaEI reprea~:~ee apf!lieable pertiaas ef the Drawisgs, Sj3eeifieatiaas aad
ether aeeumentG j3Fepai'eEI ey tile Arehiteet aaa Hie t\:elliteet' s eensl:lltanl(; apJ3F8'j:lriate to aaa i"er ase in the
8l(B.el:ltiea af their '\lla.rk !lASer tile Ceel:Faet DeeumeHt:l. All 60fliBfl FHaae under !:his au!:horizatioR shall eear the
Statl:ltary 69J3)oflgRt aoaee, if any, shows 9R tile Drawings, Speeifieatians aHd ather ElaetlmeR~ flFefli:H'ea ey the
Arelliteet aHd tl!e Arehiteet's eoHsll:itants. Submittal or aistria-aties te FReet affieial reg1:1latory reEJatre!BeRtt; ar for
.ether fll:lrpeses iHeeooeetiea witll this Projeet is not to be eoRstruea at; flUelieation in aerogation oftl=le Arellitect's
er .\re!Hteet' s eeasaltants' eepyrightG ar etl!er rese£'1eEI rights.
§ 1.6.1 The Drawings, Specifications and other documents prepared by the Architect or by any engineer or other
design consultant working under the Architect or the Contractor (the "Other Design Consultants") for this Project
(the "Design Documents") are instruments of the Architect's and Other Design Consultants' service through which
the Wotk to be executed by the Contractor is described and, unless otherwise provided. the Architect and Other
Design Consultants shall be deemed the author of these documents and shall retain all common law. statutory and
other reserved rights, including the copyright until such time as the Owner has provided full and final payment to the
Contractor for all services provided by the Architect and Other Design Consultants under this Agreement. Until final
payment has been made by Owner. the Contractor shall cause the Architect .and Other Design Consultants to grant in
writing. upon execution of this Agreement. to the Owner a fu ll and exclusive lkense for all copyright rights and
privileges held by the Architect and Other Design Consultants with respect to the Design Documents. Such written
agreement by the Architect and Other Design Consultants shall also provide that, upon full and final payment for
Architect's and the Other Design Consultants' services. all rights reserved for the Architect and the Other Design
Consultants with respect to the Design Documents shall pass to the Owner. The Architect and Other Design
Consultants shall he permitted t() retain copies. including reproducible and electronic copies. of the Design
Documents for information and for use in the marketing of the Architect's and Other Design Consultants' services.
AlA Document A201TM -1997. Copyright © 1911, 1915, 1918. 1925, 1937, 1951, 1958. 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: Thla AlA"' Document II protected by U.S. Copyright Law eod lnternellonel Treaties. U neuthorlz;ed 12
reproduction or distribution of this AtA• DoeUl'l'lent, or tny portion of It, may result In severe- civil and criminal penaltltt, and will be prosecuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05119/2006 under Order No.1000182995_ 1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll • lntellicenter • Dallas v2 (5·19·06) (986536188)
R.P. Appx. 352 41
Architect and the Other Design Consultants shalJ also be permitted to use any standard details from the Design
Documents for other projects by the Architect o.r Other Design Consultants.
Any use of the copyright license or use or distribution of the Design Documents by the Owner. other than for this
specific project. shall be at the Owner's sole risk. The Owner waives any right to make claims and waives. to the
fullest extent permitted by law. any claim or cause of action against the Architect. the Other Design Consultants.
their employees, agents or subconsultants. which may arise out of the Owner's use of this copyright license or its use
or distribution of the Design Documents for other than this specific project without the concurrent and associated
use of the Architect's or Other Design Consultants' services. The Owner hereby agrees to defend. indemnify and
hold harmless the Contractor. Architect and Architect's consultants from any and all claims. damages. liabilities.
losses and expenses. including reasonable attorney's fees. arising out of or resulting from the use of the "instruments
of service." This docs not relieve the Architect or Other Design Consultants from their responsibility to properly
design this project for future renovations or expansions to the extent the criteria for such are specifically identified
by the Owner and documented in the programming of this project.
The Architeet and Other Design Consultants shall deliver to the Owner a complete set of the Design Documents
prepared by the Architect. Other Design Consultants or their subconsultants in the form of electronic files within
thirty (3{)) days·of the Substantial Completion date or the date of the last Owner-initiated revision, whichever is
latest. Architect and the bther Design Consultants shall also maintain an electronic copy of the Design Documents
for a period of three (3) years from the date of Substantial Completion of the Project.
ARTICLE 2 OWNER
§ 2.1 GENERAL
§ 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 Owner shaJI designate in writing a representative who shall have
express authority to bind the Owner with respect to all matters requiring the Owner's approval or authorb.ation.
Except as otherwi$e provided in Section 4.2. 1, the Architect does not have such authority. The term "Owner" means
the Owner or the.Owner's authorized representative.
§ 2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information
necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic' s lien rights. Such
information shaH include a correct statement of the record legal title to the property on which the Project is located,
usuafly referred to as the site, and the Owner's interest therein.
§ 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
§ 2.2.1 The Owner shall, at the written request of the Contractor, prior to commencement of the Work and thereafter,
furnish to the Contractor reasonable evidence that financial arrangements have been made to fulfill the Owner's
obligations under the Contract. Furnishing of such evidence shall be a condition precedent to commencement or
continuati.o n of the Work. After such evidence has been furnished, the Owner shaJJ not materially vary such
financial arrangements without prior notice to the Contractor.
§ 2~2 Except for permits and fees, including those required under Section 3.7.1, which are the responsibility of the
Contractor 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 exjsting facilities.
§ 2.2.3 The Owner shall f11mish surveys describing physical characteristics, legal limitations and utility locations for
the site of the Pn~ect, Project (the "Surveys"), and a legal description of the site. The Contractor shall be entitled to
rely on the accur!!-CY of information furnished by the Owner but shall exercise proper precautions relating to the safe
performance of the Work. The Owner shall disclose. to the extent known to the Owner. the results and reports of
studies. prior tests. inspections \)r investigations conducted for the Project (collectively, the "Project Information")
involving: structural or mechanical system.~;. chemical. air and water pollution; hazardous materials; geotechnical
conditions; Surveys; studies and plans or other environmental, subsurface or concealed conditions. The Owner shall
disclose all information known to the Owner regarding the presence of hazardous materials. pollutants or
contaminants at the Project's site. The Contractor shall review all such Project Information and shall cause the
Architect, the structural engineer and other Design Professionals hired by Contractor and/or Architect to design, and
AlA Document A201.,.. -1997. Copyright © 191 1, 1915, 1918, i925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by TheAmelican
Institute of Architects. All rights reserved. WARNING: Thla AlA• Document Ia protected by U.S. Copyright Lew and International Treaties. Unauthorized 13
reproduction or distribution of thla AlA• Doc11ment, or any portion of II, may re.ult In severe civil and criminal penal tiel, and will be prosecuted to the
maximum extent possible under the IIIW. This document was produced by AlA software at 14:42:4J on 05/ 19/2006 under Order No.1 000182995~1 which
expires on 7123/2006, and is not for resale.
User Notes: Clayco A201 • Koll • lntelllcenter · Dallas v2 {5-19·06) (986536188)
R.P. Appx. 353 42
Contractor shall construct. the Project in accordance with the recommendations and findings set forth in such Project
Information.
§ 2.2.4 Information or services required of the Owner by the Contract Documents shall be furnished by the Owner
with reasonable promptness. Any other information or services relevant to me Contractor' s performance of the
Work under the Owner's control shaJJ be furnished by the Owner after receipt from the Contractor of a written
request for such information or services.
§ 2.2.5 Unless otherwise provided in the Contract Documents, the ContractOI will be furnished, free of charge, such
copies of Drawings and Project Manuals as are reasonably necessary for execution of the Work.
§ 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 requirements of the Contract
Documents as required by Section 12.2 or persistently fails to carry out Work in accordance with the Contract
Documents, the Owner muy issue a written order to the Contractor to stop the Work, or uny 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 Gf the Owner to exercise this right for the benefit of the Contractor or any other person or entity,
except to the extent required by Section 6.1.3. No part of the time lost due to any such stop work orders shall be
made the subject of a claim for extension of time or for increased costs or damages by Contractor.
§ 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
§ 2.4.1lf the Contractor defaults or neglects to carry out the Wo rk in accordance with the Contract Document<; 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 after such seven-day period give the
Contractor a second written notice to correct such deficiencies within a three-day period. If the Contractor within
such three-day period after receipt of such second notice fails to commence and continue to correct any deficiencies,
the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. ln such case an
appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the
reasonable cost of correcting such deficiencies, including Owner' s expenses ttfld eeftl~f:Utllat:ion fer the A:reJ:titeet's
aeEiil:ieseJ serviees made necessary by such default, neglect or failure. SYea ae!:iea ey tl:te Owner and amom1ts
ehaFged te the Cont:Fae~er aFe eet:A SYejeet te ~fier a``re·,oal ef the ,\fel:titeet. If payment<; then or thereafter due the
Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. lf the
Contractor defaults in the Contractor's obligations to the Owner. the Architect shall grant a license to the Owner to
use the drawings. specifications. and other document'! and electronic data furnished by the Architect to the
Contractor for the completion of the Project.
ARTJCLE 3 CONTRACTOR
§ 3.1 GENERAL
§ 3.1.1 The Contractor 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 "Contractor" means the Contractor or the Contractor's
authorized representative.
§ 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents.
§ 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract
Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests,
inspections or approvals required or performed by persons other than the Contractor.
§ 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
§ 3.2.1 Since the Contract Documents arc complementary, before starting each portion of the Work, the Contractor
shall carefully study and compare the various Drawings and other Contract Documents relative to that portion of the
Work, as well as the information furnished hy the Owner pursuant to Section 2.2.3, shall take field measurements of
any existing conditions related to that portion of the Work and shalJ observe any conditions at the site affecting it.
These obligations are for the purpose of faciljtating construction by the Contractor and are not for the purpose of
djscovcring errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or
omissions djscovered by the Contractor shall be reported promptly to the Arehiteet Owner as a request for
information in such form a,<; the Arehiteet Owner may reasonably require.
AlA Document A201TM - 1997. Copyright © 1911 . 1915, 1918, 1925. 1937, 1951 , 1958, 1961. 1963, 1966, 1970, 1976. 1987 and 1997 by The American
Institute of Architects. All rlghta reserved. WARNING: This AIA1 Document 11 protected by U.S. Copyright Llw 1nd lntern1t1onal Treaties. Unauthorized 14
reproduction or dlatrlbuUon ol this AIA1 Document, or any portion ol It, may result In severe civil and criminal pan•IU. ., and will be proa~t<~uted to the
maximum extent possible under the law. This document was produced by AlA software at t 4:42:43 on 05119/2006 under Order No.1000182995_ 1 which
expires on 712312006, and Is not for resale.
User Notes: Clayco A201 • Koll • lntelllcenter • Dhall Ret ee
liable te !be Owaer er A:rehiteet fer aamages res1:1ltiag free errors, ~soesisleaGies or emissioAS ifl me CoAtFaet
Deet~meats er fer aiffereaees eetweea iiela measaremeats er eeRaitioas at'la. me Ceatraet DoeYmeRts YAless !be
CeR~meter reeegnizea s1:1ea effer. iAeof'lsisteRey, emissiaR or EliffereFtee aRe lEI:lO\ViAgly t'ailea te rep eFt it te the
Areliit.eet.
§ 3.3 SUPERVISION AND CO~STRUCTION PROCEDURES
§ 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The
Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences
and procedures and for coordinating alJ portions of the Work under the Contract, unJess the Contract Document'>
give other specific instructions concerning these matters. If the Contract Documents give specific .instructions
concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the
jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such
means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods,
techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner
and ,<\feffiteet liRa shall not proceed with that portion of the Work without further written instructions from the
:z'\rehiteet Owner. If the Contractor is then instructed to proceed with the required means, methods, techniques,
sequences or procedures..without acceptance of changes proposed by the Contractor, the Owner shall be solely
responsible for any resulting loss or damage.
§ 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees,
Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or
on behalf of the Contractor or any of its Subcontractors.
§ 3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed 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 to be incorporated in the Work.
§ 3.4.2 The Contract0r may make substitutions only with the consent of the Owner, after evaluation by the Architect
and in accordance with a Change Order.
§ 3.4.3 The Contractor soall 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 tasks assigned to them.
§ 3.4.4 The Contractor shall inspect all materials. supplies and equipment that are to be incorporated into the Project.
In addition. Contractor shall be responsible for construction quality control f{>r all Work. Contractor's quality control
program and inspection procedures for the foregoing shall be submitted in writing to Owner for review and
approval. in sufficient detail to delineate those items to be inspected and the manner in which they are to be
AlA Document A201,. -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961 , 1963. 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Ia protected by U.S. Copyright Law and International Treatla.. Unauthorized 15
reproduction or distribution ot this AlA• Document, or 1ny portion of It, m•y result In 1evera c.l vll and crl!llfnal pen11tles, 1nd will be prosecuted to tha
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7123/2006. and is not for resale.
User Notes: Ciayeo A201 • Kotl - lntellicemer - Dallas v2 (5-1 9-06) (986536188)
R.P. Appx. 355 44
inspected, and shall adequately describe all construction quality control activities contemplated. including provision
for adequate documentation of Contractor's performance of such quality control and inspection.
§ 3.4.5 Contractor shall, during the course of performance of the Project hereunder. without additional compensation.
make or cause to be made all inspections required by the Contract Documents. Owner may require at Owner's
expense additional inspections. Contractor shall furnish Owner with satisfactory documentation of the results of all
inspections. Owner shall be given not less than three (3) working days notice of any inspections to be made by
Contractor or Contractor' s subcontractors in order that Owner may witness any such inspections.
§ 3.4.6 Owner and its representatives. and others as may be required by applicable laws. ordinances and regulations.
shall have the right at all reasonable times to inspect the Project and all material and equipment for the Project at the
job site and at Contractor's and its subcontractors' shops for conformance w]th the Contract Documents. Contractor
shall provide. or cause to be provided access and sufficient, safe and proper facilities for such inspections.
§ 3.4.7 Neither the failure by Owner to make any insoection under the Contract Documents nor to discover defective
workmanship, ,materials oreauipment nor approval of any Work or payment to Contractor for such Work shall
constitute Contractor's satisfaction of its obligations under the Contract Documents. nor shall any such inspections
or approvals prejudice the right<> of Owner.
§ 3.5 WARRANTY
§ 3.5.1 The Contractor warrants to the Owner a:aa Arekiteet 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 to
the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions
not properly approved and authorized~ may be considered defective. The Contractor's warranty e,l(cludes 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 and normal usage. If required by the AreJ:Jiteet, Owner.
the Contt;actor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. All
warranties under this Paragraph shall commence as of the date of Substantial Completion of the Work. and shall
continue for a oeriod of one ( l) year. except as otherwise noted in the Outline Specs (as such term js defined in the
Agreement). THE CONTRACTOR .H EREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED
WARRANTIES. INCLUDING WITHOUT LIMITATION. ANY WARRANTIES OF FITNESS FOR ANY
PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY WARRANTED HEREIN. THERE ARE NO
WARRANTIES BEYOND THE DESCRIPTION ON THE FACE HEREOF. All subcontractor's and
manufacturer' s warranties shall be deemed furnished and assigned to the Owner pursuant to this Contract without
further action by the Contractor upon Final Payment by the Owner as required under this Contract.
§ 3.6 TAXES
§ 3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor
which are legally enacted when bids arc received or negotiations concluded, whether or not yet 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 Contractor shall secure and pay for the building
permit and other permits and governmental fees, licenses . waivers, consents. approvals and authorizations and make
all material registrations. qualifications , designations and filings required and shall secure and pay for all 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 arc received or negotiations concluded.
§ 3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful
orders of public authorities applicable to performance of the Work.
§ 3.7.3It is Aet Contractor shall cause the CeRtfaetor's resf.!eRsiaility Architect and other design professionals to
ascertain that the Contract Documents are i.n accordance with applicable laws, statutes, ordinances, building codes,
and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at
variance therewith, the Contractor shall promptly notify the ,'\Eelti~eet aaa Owner in writing, and necessary changes
shaiJ be accomplished by appropriate Modilication.
AlA Document A201TM -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963. 1966. 1970, 1976, 1987 and 1997 by The American
Institute ol Architects. All rights reservei· WARNING: This AJA1 Document Ia protected by U.S. Copyright Law and International Treaties. Unauthorlted
reproduction or distribution of this AlA Document, or any portion ollt, may result In Mvera, civil and criminal panallles, and will be prosecuted to the
16
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.10001 82995_ 1 which
expires on 712312006, and Is not tor resale.
User Notes: Clayco A201 • Koll · lntellicenter · Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 356 45
§ 3.7.4lf the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and
rules and regulations without such notice to the ~wner, lhe Contractor shall assume appropriate
responsibility for such Work and shall bear the costs attributable to correction.
§ 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 Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable
objection.
§ 3.8.2 Unless otherwise provided in the Contract Documents:
.1 allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and
all required taxes, less applicable trade discounts;
.2 Contractor' s costs for unloading and handling at the site, labor, installation costs, overkeael, ~refit
Contractor's Fee based on the percentage set forth in Section 5.1.2 of the Agreement and other
expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in
the allowances;
.3 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 shal1 reflect (1) the difterence between actuaJ
costs and the allowances under Section 3.8.2.1 and (2) changes in Contractor's ~osts.
Contractor's Fee based! on the percentage set forth in Section 5. 1.2 of the Agreement and other
expenses under Section 3.8.2.2.
§ 3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient time to avoid delay
in the Work.
§ 3.9 SUPERINTENDENT
§ 3.9.1 The Contract.o r $hall employ a competent superintendent and necessary assistants who shall be in attendance
at the Project site durin,g performance of the Work. The superintendent shall represent the Contractor, and
communications given to the superintendent shall be as binding as if given to the Contractor. Important
communications (including but not limited to any communication that may affect the items in subparagraphs (i)
through (vii) of Section 6.5 of the Agreement) shall be confirmed in writing. Other communications shall he
similarly confirmed on written request in each case.
§ 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
§ 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner' s 600
,'\reftiteet's information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits
current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the
Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall
provide for expeditious and practicable execution of the Work.
§ 3.10.2 The Contractor shall prepare and keep current, for the Arckiteel's Owner' s approval, a schedule of
submittals which is coordinated with the Contractor's construction schedule and allows the ~
reasonable time to review submittals.
§ 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to
the OWfier ll:llE! Arehi~eetOwner.
§ 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, Specifications,
Addenda, Change Orders and other Modifications, in good order and marked currently to record field changes and
selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and
similar required submittals. These sbaU be available to the Afeltiteet Owner and shall be delivered te the ,'\Fskiteet
fer submittal to the Owner upon completion of the Work.
AlA Document A201"' - 1997. Copyright © 191 1, 1915, 1918, 1925, 1937, 1951 , 1958, 1961, 1963, 1966. 1970. 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Ia protected by U.S. Copyright law end International Treatlea. Unauthorized 17
reproduction or distribution of this AlA• Document, or any portion of It, may result In severe civil and criminal penalties, and will be proa"cuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll - lntellicenter · Dallas v2 (5·19-06) (986536t 88)
R.P. Appx. 357 46
§ 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
§ 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work 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, performance 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 materials, equipment or workmanship and establish
standards by which the Work will be judged.
§ 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of
their submittal 'is to demonstrate for those portions of the Work for which submittals are required by the Contract
Documents the way by which the Contractor proposes to conform to the information given and the design concept
expressed in the Contract Documenrs. Review by the Architeot Owner is subject to the limitations of Seotiea section
4.2.7. Informational submittals upon which the Ai'cb:iteet Owner is not expected to take responsive action may be so
identified in the Contract Documents. Submittals ~that are not required by the Contract Documents may be
returned by the Areffiteet Owner without action.
§ 3.12.5 The Contractor shall review for compliance with the Contract Documents, 8fJfJFOve and submikiirect the
Owner to review the A:-el!itect Shop Drawings, Product Data, Samples and similar submittals required by the
Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the
activities of the Owner or of separate contractors.SaeeliuaJ.s wfti.ch are Ret IBaEkeel a:s revieweel for COHI:J:lHEIHee with
tile Coetraet DeeiUAeRI:S aRe! approved ay t:Ae CeRkaeter may ae retYFReel ey
t:Ae ,'\reffiteet witAOii:t aetieH.
§ 3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contract(lr
represents that the Contractor has determined and verified materials, field measurements and field construction
criteria related thereto;or will do so, and has checked and coordinated the information contained within such
submittals with the requirements of the Work and of the Contract Documents.
§ 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal
and review by the Owner of Shop Drawings, Product Data, Samples or similar submittals until the respective
submittal has been approved by tli,e At:eh~teet.Owner.
§ 3.12;8 l'he Work shall be in accordance with approved submittals exceptthat the Contractor shall not be relieved of
responsibility for deviations from requireme nts of the Contract Documents by the Arehitect's Owner's approval of
Shop Drawings, Product Data, Samples -or similar submittals unless the Contractor has specifically informed the
AFehiteet Owner in writing of such deviation at the time of submittal and (J) the A::cll:iteet Owner has given written
approval to the specific deviation as a minor change in the Work, or (2) a Change Order or CoRstrnetiea Cl!aege
Direeti•re has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors
or omissions in Shop Drawings, Product Data, Samples or similar submittals by the t\:eJ:titect'!; Owner's approval
thereof.
§ 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data,
Samples or similar submittals, to revisions other than those reque.~tcd by the AFeRitect Owner on previous
submittals. In the absence of such wrinen notice the Arelliteet's Owner's approval of a resubmission shall not apply
to such revisionS.
§ 3.12.10 The Contractor shall not be required to provide professional services which constitute the practice of
architecture or engineering unless such services are spec-ifically required by the Contract Documents for a portion of
the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's
responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be
required to provide professional services in violation of applicable law. If professional design services or
certifications by a design professional related to systems, materials or equipment are specifically required of the
Contractor by the Contract Documents, the Owner aAEI ~he Arelliteet will specify all performance and design criteria
that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a
properly licensed design professional, whose signature and seal shall appear on all drawings, calculations,
AlA Document A201TM -1997. Copyright © 191 1, 1915, 1918, 1925, 1937, 1951 , 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AtA• Document Ia protected by U.S. Copyright Law and lnternatlonel Treatloa. Unauthorized
reproducti on or distribution of lhla AlA• Document, or any portion ol It, may result In severe. elvlland criminal penalties, and will be prosecuted to the 18
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 0511912006 under Order No.1000182995_1 which
expires on 7123/2006, and is not for resale.
User Notes: Ciayeo A201 • Koll · lntellicenter · Dallas v2 (5·19·06) (986536188)
R.P. Appx. 358 47
specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings
and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear
such professional's written approval when submitted to the l\reJ:Uteet. Owner. The Owner aaEI tae Areaiteel shall be
entitle'd to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed
by such design professionals, provided the Owner aRE! AreJ:Iiteet have has specified to the Contractor aJI performance
and design criteria that such services must satisfy. Pursuant to this Section 3.12.10, the ,'\i'el:liteet Owner will review,
approve or take other appropriate action on submittals only for the limited purpose of checking for conformance
with information given and the design concept expressed in the Contract Documents. The Contractor shall not be
responsible for the adequacy of the performance or design criteria required by the Contract Documents.
§ 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 shaH not unreasonably encumber the site with materials or equipment.
§ 3.14 CUTTING AND PATCHING
.§ ~.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make
its parts fit together properly.
§ 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed
construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by
excavation. The· Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor
except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably
withheld. The Contractor .shall not unreasonably withhold from the Owner or a separate contractor the Contractor's
consent to cutting or otherwise altering the Work.
§ 3.15 CLEANING UP
§ 3.15.1 The Contractor shall keep the premises and surrounding 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 Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus
materials.
§ 3.15.2 If the Contract{)r fails to clean up as provided in the Contract I)ocuments, the Owner may do so and the cost
thereof shall be charged to the Contractor.
§ 3.16 ACCES.S TO WORK
§ 3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress
whe~;ever located.
§ 3.17 ROYALTIES, PATENTS AND COPYRIGHTS
§ 3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for
infringement of copyrights and patent rights and shall hold the Owner aaEI AFebiteet 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 manufacturer or manufacturers is required by the Contract Documents or where the copyright violations
are contained in Drawings, Specifications or other documents prepared by the Owaer er ArcJ:Iiteet. Owner. However,
if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright
or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the
AreJ:Iiteet.Owner.
§ 3.181NDEMNIFICATION
§ 3.18.1 To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered
by U!l:Proje<;t Management Protective Liability insurance purchased by the Contractor in accordance with Section
~I L3 or (b) builder' s risk or property insurance maintained with respect to the Project. the Contractor shall
indemnify and hold harmless the Owner, 1\re&i~eet, ATe&iteet' s eaam:l!tan~. aeEI ageets aaEI 8HI:f3leyees af aay ef
lfiem.from and against claims, damages, losses and expenses, including but not limited to reasonable attorneys' fees,
arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than
the Work itself), but only to the extent caused by the aegligent acts or omissions of the Contractor, a Subcontractor,
AIADocumentA201TN-1997.Copyrlght ©1911 , 1915,1918, 1925,1937,1951,1958. 1961, 1963, 1966, 1970,1976,1987and 1997byTheAmerican
Institute of Architects. All rights reserved. WARNING: Thla AlA• Document Is protected by U.S. Copyright Law and International Treetlea. Unauthorized 19
reproduction or dlatrlbutlon of thl1 AlA• Document, or any portlon oil!, may result In severe civil and criminal penalties, and will be proseauted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1 000182995_1 which
expires on 7/23/2006, and is not lor resale.
User Notes: Ciayeo A201 • Koll · lntellicenter ·Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 359 48
anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regaraless but only to
the extent that such claim. damage. loss or expense is not caused by breach. or acts of omissions of the Owner. To
the fullest extent permitted by Jaw, the Owner shall indemnify and hold harmless the Contractor, its Subcontractors.
and the agents and employees of any of whether er them from and against claims, damages. losses and expenses.
including but not limited to reasonable attorneys' fees. arising out of the Project. 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, but only to the extent caused by the Owner's breach of this Contract. or the acts or omissions of the
0'Wller. the Owner' s separate contract against any person or entity indemnified under this Section 3.18 by an employee of the Contractor,
a Subcantractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the
indemnification obligation under Section 3.18.1 shall not be limited by a limitation. on amount or type of damages,
compensation or benetits payable by or for the Contractor or a Subcontractor under workers' compensation acts,
disability benefit acts or other employee benefit acts.
ARTICLE 4 AD.MINISTRAliON OF THE CONTRACT
§ 4.1 ARCHITECT
§ 4.1.1 The Architect is the persen lawfully licensed to practice architecture or an entity lawfully practicing
architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular
in number. The .term "Architect" means the Architect or the Architecl's authorized representative.
§ 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents
shall not be restricted, modified or extended without written consent of the Owaer, Caaa=ae~er Owner and Arehi~eet.
the Contractor. Consent shall not be unreasonably withheld.
§ 4.1.3 If the employment ofthe Architect is terminated, the ~ontractor shall employ a new Architect against
whom the Ceaa=aeter 0'Wller has no reasonable objection aatl-whose status under the Contract Documents shall be
that of the fonner Architect.
§ 4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT
§ 4.2.1 The Arehiteet will pre.,.iae aElmiAistratiea ef the CaAa=aet as aeserieed ia the Ceaa=aet DeeYFBeats, aaEi will ee
QA ov..aer' s rej3reseAtati·~e (1) SliriBg ea~klietiee, (2) liAlil .fiaal J38Ytl}eAt is E:iae QtlS (3) with~ Owaer' s
eeAei:HTeeee, frem ~:mete ~e E:ilifiAg the aAe year periea l'er eerreetiaa afWerlc E:ieserieea i:A Seetiee 12.2. The
,'\rehi~ee~ will ha•le al:ltherity ta aet eft behalf af the Owner a ely te the eKtent J3FOvided in the Centraet DoeHmeats,
HBles$ otherwi!;e FBodifiea ia writing iAaeeardaaee •Nith ether J3Fe''isiens af ·the Cana=aet.
§ 4.2.1 The Contractor shall keep the Owner infonned of the progress and quality of the Work. Within thirty (30)
calendar days after full execution and delivery of the Contract Documents and before submittal of the first progress
payment invoice, and at each construction progress meeting on site. Contractor shall submit to Owner for Owner' s
reasonable approval (i) a revised Project Schedule (the most recent schedule so approved in writing by Owner
becoming the revised Project Schedule for all purposes of the Contract Documents) showing changes from the prior
Project Schedule, the sequence in which Contractor proposes to perform the Project. the start and completion dates
of all separable portions of the Project in sufficient detail. manpower forecasts (incremental and cumulative percent
complete), materials procurement and delivery plans. the anticipated Substantial Completion Date and the
anticipated date that Contractor will tender possession of the Project and any other information reasonably specified
by 0'Wller pertaining to the construction schedule, along wi:th (ii) a proforma Project Schedule that "looks ahead"
two weeks containing the same details as set forth in subpart (i) above. Contractor agrees to adhere to the Project
Schedule and attend and participate in scheduled progress and coordination meetings called by Owner. Within thirty
(30) calendar days after full execution and delivery of the Contract Documents and before submittal of the first
progress payment invoice. and at each construction progress meeting on site, Contractor shall also submit to Owner
a revised budget for the Project, in form and content reasonably approved by Owner. including all hard and soft
construction costs {the "Bud2et"l. along with a construction cost report in fom1 and content reasonably acceptable
to Owner. Contractor shall use commercially reasonable efforts to keep the Budget as accurate as possible.
AlA Document A2011M - 1997. Copyright © 191 1, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute ol Architects. All rights reserved. WARNING: This AJA• Document Ia protected by U.S. Copyright Law and International Treatlu. Unauthorized 20
reproduction or dlatrlbuUon o1lhis AIA8 Document, or a.ny portion ol It, may result In severe olvila.nd criminal penaJUea, end will be pros&euted to the
maximum extent possible under the law. This document was prOduced by AlA software at 14:42:43 on 05!19/2006 under Order No.1000182995_ 1 which
expires on 7!2312006, and is not for resale.
User Notes: Clayco A201 • Koll • lntellicenter - D.allas v2 (5-1 9·06) (986536188)
R.P. Appx. 360 49
Contractor shall provide Owner with monthly reports no later than the tenth (lOth} day of each month, which shall.
at the minimum, include the most current Project Schedule and a Project Change Order log update (with pricing
information).
§ 4.2.2ln the event Contractor's perfonnance of the Project is not in compliance with the Project Schedule, Owner
may, in writing, reguire the Contractor to submit its plan for schedule recovery, or specify in writing the steps to be
taken to achieve compliance with such Project Schedule, and/or exercise any other remedies under the Contract
Documents. Contractor shall thereupon take such commercially reasonable steps as may be directed by Owner or
otherwise necessary to improve its progress.
§ 4.2.2 The Arel:iiteet, as a Tef!Feseatali \'e ef !he O•...•aer, will visit the site at ieterva-ls Bflf!ref!riate ta the stage ef the
Ceatraeter's 9f1eratieas (1) te eeeeA'Ie geRerally fa&~iliar 'i'ogress
aREI ~u~ity ef the pe:Ft:ieH ef the W~:~rk eemf!leted, (2) te eadeaver te gliara the Qv,r-ser agaiast Elefeets aREI
EleeeieReies i.e the Wefl(, aaEI (3) te Eleterffiiae ia geaeral if the Werle is eeiag tJerfermea ia a meaaer iaEiiealiag that
the 'Nark, 'lihea f~:~Uy semf!leted, •.vill ee ia ascordaAse with the Coatraet Deeumeats. gewever, the Arehiteet will
aet be re~EI te A'!alce exhaa;sti¥e er eeatiaue~;~s ea site iasf!eetieas te e~ek the E}l:la!ity er EJuantity ef the Werle
The Arehiteet will aeiti:ler h&><'e eeatral ever er ei:large ef, Aor ae respaasiele fEJr, the eeastruetiea meeRs, metheEis,
tecllaiEjHes, seq~;~eaees er fJFeceEiures, or fur the safety f!FeCautieas aRd f!Fegram.s ia eeaaeetiea with the \lledc, siRe e
thet;e are solely tRe Coatractor's right~• aAd resf!oasieilities uader the CeRtraot Documeats, eKeept as provided ia
SeetioA J .3 .I.
§ 4.2.3 Contractor acknowledges and agrees Prudential Insurance Company of America (''Prudential") shall employ
one or more. construction consultants or engineers (collectively. the "Prudential Construction Consultant") to
advise Prudential with respect to the progress of construction and compliance of construction with the construction
plans and specifieations for the Project. applicable legal requirements and good construction practices. Contractor
shall inform the Prudential Construction Consultant of the usual location. date and time of periodic construction
meetings for the Project. The Prudential Construction Consultant shall be permitted to attend all such construction
meetings. Contractor shall provide the Owner and Prudential Construction Consultant with at least three (3)
business days' pri0r notice of any change in the date, time or location of a periodic construction meeting. Contractor
shaH permit Owner and the Prudential Construction Consultant to have access to the Project during the period of
construction to enable the Owner and Prudential Construction Consultant to examine all aspects of such construction
and all matters related thereto. Contractor shall provide Owner and the Prudential Construction Consultant wjth at
least three (3) business days' prior written notice of each of the following trades commencing construction at the
Project: mechanical. -electrical, plumbing. framing, paving, curtain wall installation and foundations. Contractor
shall provide to Owner and the Prudential Construction Consultant reasonable access during normal business hours
to all books. records: shop drawings. and engineering and other reports and tests related to the Project as may be
reguested by Owner or the Prudential Construction Consultant. The Owner and the Prudential Construction
Consultant shall have the right to make copies of all such materials. Contractor shall provide to Owner and the
Prudential Construction Consultant a _reasonable working space and access to telephone and other such facilities as
may be reasonably requested by Owner or the Prudential. Construction Consultant. Upon execution of this
Agreement, Contractor shall deliver to Owner and the Prudential Construction Consultant a list of all current and
potential bidders who may perform work at or supply materials to the Project together with a list of al.l bid packages
which were 'sent to any of such bidders and all bids which were received from such bidders. Such bidding
information shall be updated by Contractor on a monthly basis by delivering revised lists to Owner and the
Prudential Construction Consultant. The Owner and the Prudential Construction Consultant shall have the right to
review any bid packages or any bids received upon request.
§ 4.2.3 T~ Arelliteet v•iH aot ee reSflOASiele for the Cootraetor's failure te f!erferm the WerlE iR aeeerdaflee witA me
~iremeAlA ef the Cem:raet Deenuaeflts. The Ai'e&iteet wil:l aet J:ia¥e ooatreJ o¥er or ettarge of aaEI will sot ee
resf!easiele Fer aets er emi:ssieas ef the Ceetraeter, Suaeeatreetors, or their ageats er employees, er any other
perseAs er eat:it:ies f!erfermiRg f!OrtieRs ef t.Ae Werk.
§ 4.2.4 If requested by Owner. Contractor shall furnish it with the names of the subcontractors who have performed
or are -performing the Work hereunder.
~Communications Facilitating Contract Admi_nistration. ell6ef!t as et.Aerwise flFEH Shop Drawings, Product Data and Samples, but only for the limited purpose of
checking for conformance with information given and the design concept expressed in the Contract Documents. The
Aremteet's Owner's action will be taken with such reasonable promptness as to cause no delay in the Work or in the
activities of the ~Contractor or separate contractors, while allowing s~1ffieieat time ia ti:le Arel:liteet's
fiF&iessieaal jl:llilgmeat to permit adequate review. 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
Contractor as required by the Contract Documents. Tile AxcbiEeet's Owner's review of the Contractor's submittals
shall not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The J\:'eftiteet's Owner's review
shall not constitute approval of safety precautions er, 1:1aless stherwise SfJeeii'teally stated by the Arehitee~. or of any
construction means, methods, techniques, sequences or procedures. The Arehiteet's Owner's approval of a specific
item shall not indicate approval of an assembly of which the item is a component.
§ 4,3,8 The AFebiteet will pref1are Cba:Age Orders aeEI CaaGtr~etiea C8aage Direetives, aaEI may &l:ltheril!e mf.nor
ehruiges ia the Work as fJFOViEieEi ill Seetiea 7.4.
§ 4.2.9 The Owner will submit CO Requests as provided in Section 6.5 of the Agreement.
~The Arehiteet Owner wilt conduct inspections to determine the date or dates of Substantial
Completion and the date of final ee~letiea, will reeeive aaEI ferwarEI te ti:le Owaer, for the 0'JiAer's reviev,. ll:fle
reeo~s, writtea warraaaes aaEI related Eleeameats req1:1ired by the Coatract aad assemble<:! by the Caatraetor, ll:fiEI
w+ll iss1:1e a fiaal Certifieate fer Pay mea~ l:lfiOR sempliaaee with t8e req~ireraeats ef the Ceatraet
Dec1:1meats.completion.
§ 4.3.10 If the Owner aaEI,'\:Fci:litoeet agFee, ti:le Aichitect •Nill J3revide eae or IIISFEI J3rejeet represeatati'les to assist ia
eaR"yiag e~t the Ai=eaiteet's respoasieilities at ti:le site. The d1:1ties, reHfJeRsiailities aaEi liraitatioas of i~t:ltberity ef
Sl:l€R fiTejeet FEifJFesea~tiYe!'l shallee
as set ferth ia Qft exhteit ta be iACOffJOFaEeEi ia tile Cealfaet Dasl:lmeats.
§ 4.2.11 Contractor represents and warrants it is an independent contractor and an employer subject to all applicable
unemployment compensation, occupational safety and health. workers' compensation, or similar statutes so as to
.relieve Owner of _any responsibility or liability for treating Contractor's employees as employees of Owner for the
purpose of their safety or of keeping records. making reports or paying of any payroll taXes or contribution.
Contractor agrees to defend, indemnify and hold Owner harmless and reimburse them for any expense or liability
incurred under said statutes in connection with employees of Contractor. including a sum equal to any
unemployment benefits paid to those who were Contractor's employees. where such benefit payments are charged to
Owner under any merit plan or to Owner reserve accounts pursuant to any statute. Nothing contained in the Contract
Documents or any subcontract awarded by Contractor shall create any contractual relationship between any
subcontractor and Owner.
AIADocument A201 ~ - 1997.Copyright @19"11, 1915,1918,1925, 1937,1951. 1958, 1961, 1963, 1966, 1970,1976.1987and 1997byTheAmerican
Institute ot Architects. All rights reserved. WARNING: Thla AlA• Document Ia protected by U.S. Copyright law and International Treatlea.llnauthorlzed 22
reproducUon or dlatrlbullon of this AIA8 Document, or any portion of It, may result In aevere civil and criminal penalties, and will be proaecuted to tho
mnlmum extent possible under the law. This document was pr.oduced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll · lntellicenter · Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 362 51
§ 4.2,11 The t\rehheet will iatsrpret aeEi EieeiEie matters eooeemiag 13erfermaaee aaaer oaEI reEJllll=emeat~ af, the
Contract DocHRleRffi oR writtea reetHe.st of eil:Rer H'te OvfHer or Coaa-eeter. The ,'\rehiteet's FeSfJORse te SHch reEJHests
will be maEie ie writiag wit Ria aay time limits agreeE11:1~ea or etherwise with reaseaaele prem)!ltaess. If ao
agFeeme~ is RlaEie ceacemiag H'te time withia which iaterpretatieas reEjHireEI ef me Arc:!Htec.t shall ee fl:lmisheEI iR
eomtJ~ianee vlith a=tis Seetiea 4.2, tkea EieJay shall aet ee reeegRir:eEi ea aeeeaRt ef faihu=e ey the Arehiteet te farnish
s1:1ch iaterpFetatieas Yatil 15 Eiays after 'NAtteR ref:}Yest is IRilEie fer them.
§ 4.2.12 Contractor represents and warrant~ that it will keep and have available all necessary records and make all
payments. reports. collections and deductions and otherwise do any and all things so as to fully comply with all
federal. state and local laws. ordinances and regulations as they affect performance of the Contract Documents, so as
to fully relieve and protect Owner from any and all responsibility or liability therefore or in regard thereto: (I) the
production. purchase and sale. furnishing and delivering. pricing, and use or consumotion of materials. supplies and
equipment (2) the hire, tenure or conditions of employment of employees and their hours of work and rates of the
payment of their Work. and (3) the keeping of record~. making of reports. and the payment. collection and/or
deduction of rederal. state. commonwealth and local taxes. contributions. pension funds. welfare funds. or similar
assessments.
§ 4.2.12 bi!ElFJ!lretatieas &REI Eieeisieas ef the Areliiteet will ee eeasiHteAt witk: tile iRteAt of aRt:! reaseAaely iRferaele
frem me Ceaka~t DeeYmefl~ aaa wiU ae iR writieg er ia the farm af drawiags. Wliea maiEiRg SHell iaterpFetatiBRS
ana iajlial Eiesisioas, the. :1\J:ehitest will eREieaYer te seeYre faia=tful ~erformS:Rce by eeth OwReF ant:! Ceaa=aeter, will
Ret shew JJartiality te either anEI wiJI aet ee liaele fer resylts of iaterpretatiens or Eieeisioar; se reAEiereEi ia geeEI f11ith.
§ 4.2.13 T!!e Are:!Hteet's Eleei:sieas ea matters relatiag te aestlietie effect •n•iJI ee flfl&l if eonsisteat with the iRteRt
e*f!Fe:;seEi ia the CoH:tTact DecYmeats.
§ 4.2.13 Nothjng in the Contract Documents shall be deemed to represent that Contractor. or any of Contractor's
·employees or agents. are the agents. representatives or employees of Owner. Contractor shall be an independent
contractor and shall have resoonsibility for and control over the details and means for performing the Proiect.
Anything in the Contract Documents that may appear to give Owner the right to direct Contractor as to the details of
the perf0rmance of the Project or to exercise a measure of control over Contractor shall mean that Contractor shall
follow tbe desires of Owner onJy as to the intended results of the Project.
§ 4.3 CLAIMS AND DISPUTES
§ 4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or
interpretation 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 di~putes and matters in question between the Owner and Contractor
arising out of or relating to the Contract. Claims must be initiated by written notice. The responsibility to
substantiate Claims shaU rest with the party making the Claim.
§ 4.3.2 Time Limits on Claims. Claims by either party must be initiated within 2 1 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. Claims must be initiated by written notice to the Architect aad the other party.
§ 4.3.3 Continuing Contraat Performance. Pending final resolution of a Claim except as otherwise agreed in writing
or as provided in Section 9.7 .I and Article 14, the Contractor shall proceed diligently with performance of the
Contract and the Owner shall continue to make payments in accordance with the Contract Documents.
§ 4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (I)
subsurface or otherwise concealed physical conditions which differ 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 exi.<;t and generally recognized as inherent in construction activities of the character 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. Tlie Areliitect willf3F9fl'!~tly
iRvest:igate sl:lcl:! cenEiiheRs aad, if ~Re~· Eiiffer materially aRE! ea1:1se Qfl inerease er Eieerease ia tke CeRa=aeter' ~ east
ef, er t:ime re€:j:HireEI fer, perfern:taaee ef any f'art ef tae \Veri<, •.viii reeeRl!BeAEi aa ef:}eitable aEljYstmeat ia the
Ceaa-aet St~fl'! er Ceaa-eet Tia1e, or eats. If the :1\J:ehitect determiaes that tile eoaditieas at the site are. Ret materially
EiiffereRt from tkese inEiisateEi iR lhe CeAlraet Deeymeats aREI that ae ehaRge ia tae terms of tae CeRtraet is jYstifieEI,
H'te ,'\reJ:iiteel saall se ROt:ify a=te o·. . aer aRE! Ceaa-aeter iR writing, stat:iag the reaseas. Claifl'lfi ey eia=ter flertj ill
ElfJJ!lEISit:iea te SYeh EletermiRatieR mYSt ee maae \ Athia 21 Elays after a=te Architeet has gi'leA Rotiee afthe EieeisieR. If
1
AlA Document A201lN-1997. Copyright © 1911, 1915, 1918, 1925, 1937. 1951 , 1958, 1961, 1963., '1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Lew and lntem•tlonal Treatlea. Unau1horlzed 23
reproduction or dletrlbutlon of thll AlA• Document, or any portion ot It, may result In severe ~;:lvlland criminal penaltlea, and will be prosecuted to the
maximum extent posaible under the law. This document was produced by AlA software at 14:42:43 on 05119/2006 under Order No.1 000182995_ 1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 · Kall· lntellicenter · Dallas v2 (5·19·06) (986536188)
R.P. Appx. 363 52
the conditions encountered arc materially different, the Contract Sum and Contract Time shall be equitably adjusted,
but if the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time, the
aajllstm~t ~shall be referred te the Areh:i.teet fer ie:ilial dete!'ffii:flatieR, Sl:lejeet te Fl:lrtl:!er praeeeaiRgs Pl:lfSI:IaBt
t9 Seetiea 4.4.considered a Claim and be resolved in accordance with Sections 4.4-4.6 below.
§ 4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum,
written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required
for Claims relating to an emergency endangering life or property arising under Section 10.6.
§ 4.3.6 If the Contractor believes additional cost is involved for reasons including but not limited to (I) a written
interpretation from the Ai'ehitect, Owner, (2) an order by the Owner to stop the Work where the Contractor was not
at fault, (3) a written order for a minor change in the Work issued by the Areaiteet, Owner. (4) failure of payment by
the Owner, (5) terminati.o n of the Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds,
Claim shall be filed in accordance with this Section 4.3.
§ 4.3.7 Claims for Additional Time
§ 4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided
herein shaH be given. The Contractor's Claim shall include an estimate of cost and ofprobable effect of delay on
progress of the Work. In the case of a continuing delay only one Claim is necessary.
§ 4:3.7.2 If eaverse weather eoaairioas are the easis fer a Claiftl fer aelairieRal tiftle, SHch Claim shall ee elecl:IFAeRtea
ey aala Sl:IBStEllltiat4ng that Vf'eather eena.itioes were aeserm!H fer the periea ef time, eo1:1la eot !:lave eeea reaseaaely
I!:Baeit>atea ena.haEla:B ea¥erse effect OR the sched1:1lea cOBSa.=l:letioa
§ 4.3.7.2 Adverse weather conditions or adverse site conditions caused by adverse weather may be the basis for a
Claim for additional time to the extent that the days lost during a particular calendar month due to such inclement
weather exceeds three (3) days of lost time (in work days) for the calendar month. If adverse weather conditions or
adverse site conditions caused by adverse weather are the basis for a Claim for additional time, such Claim shall be
documented by·data substantiating that either (i) weather conditions had an adverse effect on the scheduled
construction. or (ii) weather conditions prevented the type of Work then scheduled, or (iii) adverse site conditions
caused by adverse weather prevented the type of Work then scheduled.
§ 4.3.8 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, or of others for whose acts such party is legally
responsible, 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 discovery. The notice shall provide sufficient detail to enable the other
party to investigate the matter.
§ 4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally
contemplated are materially changed in a proposed Change Order er Cossl:f~:~el:ioR Clumge Directive so 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.
§ 4.3.10 Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for
consequential damages arising out of or relating to this Contract. This mutual waiver includes:
.1 dan1ages incurred by the Owner for rental expenses, for losses of use, income, profit, financing,
business and reputation, and for loss of management or employee productivity or of the services of
such persons; and
.2 damages incurred by the Contractor for principal office expenses including the compensation of
personnel stationed there, for losses of financing, business and reputation, and for loss of profit
except anticipated profit arising directly from the Work.
This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination
in accordance with Article 14. Nothing contained in this Section 4.3.10 shall be deemed to preclude an award of
liquidated direct damages, when applicable, in accordance with the requirements of the Contract Documents.
AlA Document A201"' - 1997. Copyright © 1911, 19l5, 1918, 1925, 1937, 1951 , 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The ATflerican
Institute of Architect$. All rights reserv~ WARNING: This AIA8 Document Ia protected by U.S. Copyright Law end lnternstlonsl Trestles. Unauthorl:ted 24
reproduction or dlstrlbuUon of thlt AlA Docum ent, or any portion of lt1 may result In severe civil and criminal penaiUea, and will be prose<:utad to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/23.12006, and is not for resale.
User Notes: Clayco A201 • Koll • lntellicenter - Dallas v2 {5-19·06) (986536188)
R.P. Appx. 364 53
§ 4.4lNDEMNITY & RESOLUTION OF CLAIMS AND DISPUTES
§ 4.4.1 Deeiniaa ef Arekiteet. ClaiFRs, iaelaeiag tk9se allegiag aR err9r 9F 9R'Mssi9R l:)y tke kekiteet aut elEelal:iiag
mefie arisiag aaeer SeetieR!i 10.3 tA.rewgl:l lQ.5, shall ee refen-ee initially £9 tile i\:rek:it.eet fer eeeisioa. Aa iaitial
eeeisi9B By tRe t\reftiteet shftlJ Be f8Ej!:IH8Q aS a eeftE!itiea f!F8eeEleat te IBeEf.iatiOB, areiB"-atiOB OF litigatioB of alJ
·Claims eetweeR tke Ceatraeter aae Owaer arisiRg f'AOF to tke eate fiaal!lllYFfi8At is eue, URiess 3Q eayl; kave fltl!iSee
after the ClaiFR kas eeea referree to Hie AreA:iteet with ae eeeisiea l:laviag eeea reaaeree ey tA:e Arekiteet. Tke
Arehiteet will aot eeeiee dispwtes betweeR the Ceatraeter aaa perseRs or eAtities otker thQR tke Owaer.
§ 4.4.1 Contractor agrees to defend. indemnify and hold Owner. the affiliated companies of Owner. and all of their
directors, officers, employees. agent~ and representatives. harmless from and against any claim, demand, cause of
action. liability. loss or expense arising:
.1 By reason of Contractor's actual or asserted failure to comply with any law, ordinance. regulation. rule
or order. or with the Contract Documents. This Section 4.4. 1.1 includes, but is not limited to, fines or penalties by
government authorities and claims arising from Contractor' s actual or asserted failure to pay taxes .
.2 From actual or asserted violation or infringement of rights in any patent. copyright, proprietary
information. trade secret or other property right caused or alleged to be caused by the use or sale of goods. materials,
methods, processes. designs or information. including construction methods. construction equipment and temporary
wnstruction facilities. furnished by Contractor or its subcontractors in performance of the Project. Should any goods
or services provided by Contractor become, or appear likely to become. the subject of a claim of infringement of a
patent. copyright or other property right Contractor shall. at Owner's option, either procure for Owner the right to
continue using such gOOds or services. replace same with equivalent. non-infringing goods or services. or modify the
goods ()r services so that the use thereof becomes non-infringing. provided that any such modification or
replacement is ofequal quality and provides equal perfonnance to the infringing goods or services.
.3 From actual ,or alleged contamination. pollution. or public or private nuisance. directly caused by any
negligence or intentional misconduct of the Contractor or its subcontractors.
§ 4.4.2 The Arehiteet v.411 :eeviev; Claims aRa w~tl:liR tea aays af the reeeifjt ef the ClaiFR tal~ aee er FRere af the
feJia?l'ia:g ae~aes: (I) FeEJ:~test aEieitieeal SYppertiag eata freFR the elaimaet era respoase witk SI:IJ3pertieg data A-am
me ether f!'!l:llJ', (2) rejeet t:l!e ClaifR mwkele aria flart, (3) aj3preve the Claim, (4) sHggest a e9FRfl£9FRifle, er (5)
advise the flaFties taat tke Arebiteet is l::IAable to resolve the ClaiFR if tke Arehiteetlaeks saffieieat ieferFRatiea te
e"alaate tke FBerit§ 9f the Qaiffl er if the i\:rehiteet e9A€Il::lees_that, ia the Anzhitest' s sale eiseretiea, il weala ee
ifl:appropriate fer the 1\i:ehiteet to resolve the ClaiFR.
§ 4.4.2 Contractor's indemnity obligations in this Subparagraph 4.4 arc subiect to the provisions of
Subparagraphs 4,3.10 and 11.4.7 and ArtiCle 10. and shall apply to the extent that the amount to be
indemnified was not caused by the negligence or willful misconduct of. or by defects in design furnished by,
the party to be indemnified. Contractor's defense and indemnity obligations shaD include the duty to
reimburse any attorneys' fees and expenses reasonably incurred by Owner for legal action to enforce
Contractor's indemnity obligations.
§ 4.4.3 Ia tWall::lat-iag Claiffl5. the Arsltiteel FRay, aut skall Bet ee eeligatee te, seasalt witk flf Reek ffiforFRalieR freffi
eitlte.r f!arty 9F froFR f'e£S9as vlith Sf!eeial lffiowleage er eJEf!ertise who FRay assist tlte Arehiteet iR reaeeriRg a
eeetsiae. The Arekiteet may reEJaest the Owner te authorize reteaaea of sael:l l"ersoRs at tke Owaer' s eM:pease.
§ 4.4.3In the event that the indemnity provL~ions in the Contract Documents are contrary to the law governing the
Contract Documents, then the indemnity obligations applicable hereunder shall be construed to be to the fullest
extent allowed by applicable law.
§ 4.4.4 If tke Arehiteet reEJaests a party to (:lFOVide a reS(:lOR:68 te a Clai-m er te ~mish aeaitioaal Sl::lj3j39rti-ag eal:a,
s.aeh flarly shall resfleRe, withia tee eays after reeeipt ofsush re~1:1est, aHa shall either fl£9\'ide a resf!oese oe tke
FeEJ:l:lestee SllflflOI'tiRg eata, QQ~'iSe the Arekiteet \'/ReA tlte FeSfiORSe er Sllfl!"9rtiR:g eata wiH ee famiskee or aEivise tbe
:Arehi*eet that BO SYflfl9rURg eata will ee fl::lmishee. Upea reeeiflt of the respease 9f sappertiag eata, if aey, me
Arehiteet will eit-Rer rejeet er apf!reve tlte ClaiFR ia whole or ia f!art.
§ 4.4.4 With respect to claims by employees of Contractor or its subcontractors. the indemnity obligations created
under this Section 4.4 shall not be limited by the fact of. amount or type of benefits or compensation payable by or
for Contractor. its subcontractors or suppliers under any workers' compensation, disability benefits. or other
employee benefits acts or regulations. and Contractor waives any limitation of liability or immunity arising from
workers' compensation or such other acts or regulations.
AlA Document A201TM - 1997. Copyright @ 1911 , 1915. 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: Thla AlA• Document Ia protected by U.S. Copyright Law and lntematlonel Treaties. Unauthorized 25
reproduction or distribution of this AlA" Document, or any portion of It, may result In sevel'8 civil and criminal penaltlea. and will be prose-cuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/23/2006, and is not for resale.
User Notes: Clayco A201 • Koll · lntellloenter • Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 365 54
§ 4.4.5 The ;\rekiteet vt'ill &flflFO're or Fejeet ClaciHis ey writteR deeisioa, wR:ich shall state tke reauoa~ tkerefer ltfld
wJ:tiee shall aeti:fy tee flarties af aay eJ.laage ia tke Caatraet S1:1H1 oF CoRtraet TiHie or eatk. The a'f'lj:l£0\'al er rejeetioa
ef a Cla'i:£6 ey the AreR:iteet shll'll be fiaal aHEi eiad:iag OR the j'larties bl:lt Sl:lbj eet te med:iatiea aRel arbitratiOR.
§ 4.4.5 Unless Contractor has provided Owner with a bond or other form of security in form and amount reasonably
acceptable to Owner. amounts may be retained from payments otherwise du·e Contractor as shall reasonably be
considered necessary to satisfy any mechanics' or materialmen's lien.~ for damages that fall within Contractor's
indemnity obligations under this Section 4.4 until such claims suits or liens have been settled and satisfactory
evidence to that effect .has been furnished to Owner. Notwithstanding anything to the contrary in the foregoing. if
the Contractor provides the Owner with a lien bond or other form of security sufficient to cover mechanics' liens
filed by the Contractor or any Subcontractor. the Owner shall not withhold payment as set forth in this Section or in
Section 9.5. I herein. The Contractor will diligently pursue the removal of any lien filed by a Subcontractor. and.
regardless of whether a lien bond is provided as set forth above. during such time the Owner shall not satisfy or pay
off the lien or otherwise settle or compromise the Contractor's claim; provided, however. that promptly after a final.
non-appealable judgment is rendered directing that the property be sold to satisfy the lien. and in any event prior to
tbedate ofsuch sale. the Contractor will satisfy the lien and pay the Contractor all amounts owing.
§ 4.4.& Vlkea a writteH Eleeisiea ef the ,'\i:ekiteet states tJ.lat (l) tke aeeisieR is fiaal al:lt Sl:lajee.t te H!ed:iaaea aaa
areitratieR aad (2,) a aemaREI fer arbitratieR af a ClaiR! severed by SliGh eeei&ieR HII:ISt ae HIaGe witJ.liR 30 days afte:r
tBe Sate OR wfl:iea the 'flart)' Hl.aking tl:!.e S8FHa.Rel reseives the flRal WFJ\'teH EleeisieH, thea faiiYf@ te demaREI areitrati9R
witkia said 39 d:ays' fleried skaJI resYit ia the Archlteet'!> deeision becoHiing final aad biaaiag l:lflOR tke Owaer afld
CeRtraeter. If tl:le ,'\:rekiteet Eeaeers a deeisiea a.fEe£ arbitratiea preeeeeiag!l J:lave eeea iaitiated, s1:1eJ:i deeisien may
be eHtered as e"'.:Eleeee, e1:1t saa!I Ret Sl:lfleFsede arbitratieR J3FOeeediegs l:lftiess tke deeifd8R is aeeeptaele tO all parties
eeeeemea.
§ 4.4.6 Notwithstanding any provision in the Contract Documents to the contrary, Owner and Contractor
mutually waive any and all claims against the other for special, consequential or punitive damages arising out
of or relating to the Contract Documents. This waiver includes but is not limited to damages incurred for
rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of
management or employee productivity or of the services of such persons;
§ 4.4.7 Upon receipt of a Claim against the Contractor or at any time thereafter, the Arel:!iteet er tJ.le Owner may, but
is not obligated to, notify the surety, if any, of the nature and amount of the C laim. lf the Claim relates to a
possibility of a Contractor's default, the ,'\i:el:!iteet OF the Owner may, but is not obligated to, notify the surety and
request the surety's assistance in resolving the controversy.
§ 4.4.8 If a Claim relates to or is the subject of a mechanic' s lien, the party asserting such Claim may proceed in
accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the ClaiR! B)'
~by mediation or by arbitration.
§ 4.5 MEDIATION
§ 4.5.1 Any Claim arisin,g out of or related to the Contract, except Claim6 relaliag to aes~hetie effeet !IRa e*eept tbose
waived as provided for in Sectioll$ 4.3 .J 0, 9.I 0.4 and 9 . I0.5 shall, after iniaal Eleeisiea by tke A.reJ.liteet er 30 days
after s~:~emissiea ef ~l:!e ClaiR! te tJ.le A:eJ.liteet, be subject to mediation as a condition precedent to arbitratieR er
binding arbitration.~Except with the Owner's prior written consent, neither the assertion of a Claim nor the
iastitl:ltiea prosecution of ~mediation or eEjl:litable pFeeeediags by either party.arbitration hereunder shall cause
any Work to be haJted pending resolution of same.
§ 4.5.2 The parties shall endeavor to resolve their Claims hy mediation which, unless the parties mutually agree
otherwise, .shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration
Association C\llTently in effect. Request for mediation shall be filed in writing with the other party to the Contract
and with the American Arbitration Association. The request may be made concurrently with tbe filing of a demand
for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings,
which shaJl be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer
period by agreement of the parties or court order.
AlA Document A201 110 -1997. Copyright @ 1911 , 1915. 1918, ~925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, t 976, 1987 and 1997 by The American
Institute of Architects. All rights reserve~. WARNING: This AJA Document Is p rotected by U.S. Copyright Law and lntematlon11l Treaties. Unauthorized
reproducUon or distribution of t hla AJA Document, or any portion of It, may result In eevere civil and criminal penalties, and will be prollelcuted to the 26
maximum extent poss.lble under the law. This document was produced by AlA software al t4:42:43 on 05119/2006 under Order No.1 000182995_1 which
expires on 7/2312006, and is 11otlor resale.
User Notes: Clayco A201 • Koll · lntellicenter · Dallas v2 (5·19·06) (986536188)
R.P. Appx. 366 55
§ 4.5.3 The parties shall share the mcd!iator's fee and any filing fees equally. The mediation shaU be held in the place
where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall
be enforceable as settlement agreements in any court having jurisdiction thereof.
§ 4.6 ARBITRATION
§ 4.6.1 Any Claim arising out of or related to the Contract, except Claims relatiag te aesthetie effeetanEI e:Kee13t those
waived as provided for in Sections 4.3.10, 9.1 0.4 and 9.1 0.5, shaH, after Elee3sioa ey t.he Arehi~eet or 30 Elays after
s~JemissieR ef tae Claim te tae Afeftiteet, shall be s ubject to binding arbitration. Prior to arbitration, the parties shall
endeavor to resolve disputes by mediation in accordance with the provisions of Section 4.5.
§ 4.6.2 Claims not resolved by mediation shall be decided by binding arbitration which, unless the parties mutually
agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American
Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party
to the Contract and with the American Arbitration Assoeiatiea, aaEI a eej3y 5hall ee f:iJeEI wim me
AJ.:GAiteot.Association. BY lNITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP ANY RIGHTS YOU
MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.
Owner Initials Contractor Initials
§ 4.6.3 A demand for arbitration shall be made within tke time limits specified i-s Seetieas 4.4 .e eBfi 4.€i.l as
&j3j31ieaele, anEI iR ether eases \'lithia a reasonable time after the Claim has arisen, and in no event shall it be made
after thedate when institution of legal or equitable proceedings based on such Claim would be barred by the
applicable statute of limitations as det·ermined pursuant to Section I ~.7.
§ 4.6.4 Limitation on Consolidation or Joinder. No arei~atiea arisiRg o11t of or relatiag te the Cena=aet shall iacl11de,
ey eefl:'leliEiatiee erjei-BEier or iR aay aEher mQfiRer, the Arekiteet, the i\::effiteet's empleyees er eefltlai~Rts, e:Keej3t
ey v,rriuea eeaseat.eeataiaiag specifie refereaee to me Agreemeat aaEI sigRee by the Arehiteet, OwRer, Cea~aeter
EI8Eiany ether persea er eat:ity tiollght to ee jeiAed. ~le arei~atieR shall iRelllele, ey eoaseliEiatieR erjeieEier or ia any
etd:ler maRBer, fJal'ties ether man td:le 0'1;ser, CeRa-actor, a se13arate eena=aetor as EieserieeEI i-s: A"'tiele 9 aad ather
persons sllestaijliia:lly iJwelYeEI iRa eemmea c.'jHesaea offact or law whe5e preseRce is re€JilireEI if eeH!plete relief is
te ee aeeen:EieEI ia areitra~ieR. No 13ersoR er eatity ether than tile Owaer, CeRtraerer er a fiej3arate eentraeter as
Eleserieed ia Acr-ae!e 6 shall ae iBciYdeEI as ae erigiaal th-ir4 fJartY er aEIEiitietHtl third fJaFtY te aR a;reia=atien whese
iaterest er respeAsieility is i-as11bs~anti a.J. Ceeseet te areia=atioR iR\'eh•iRg aa aEiditieRal 13erseR er eatity tihall ROt
eeastit11te eeaseat to areitratie:a ef a Claim Ret eleserieed thereia or with a j3ersee or effiity aet B:IHHee er described
thereiR. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity
duly consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court
havjng jurisdiction thereof.
§ 4.6.5 Clailtl$ and Timely Assertion of Claims. The party filing 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.
§ 4.6.6 Judgment on Final Award. The award rendered by the arbitrator or arbitrators shall be final, and judgment
may be entered upon it in accordance with applicable law in any court 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 Contractor to perform a portion of the
Work at the site. The term "Subcontractor" is referred to throughout the Con1ract Documents as if singular in
number and mearis a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor"
does not include a separate contractor or subcontractors of a separate contractor.
§ 5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to
perform a portion of the Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract
AlA Document A201'M -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961 , 1963, 1966. 1970, 1976, 1987 and 1997 by The· American
Institute ol Architects. All rights reserved. WARNING: This AtA• Document Is protected by U.S. Copyright Lew and International Treallea. U'nauthorlzed 27
reproduction or dlatrlbutlon of this AlA" Document, or any portion ollt, may result In severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll - lntellicenter - Dallas v2 (5-19-06) (98.6536188)
R.P. Appx. 367 56
Documents as if singular in number and means a Sub-subcontractor or an authoriz.ed representative of the Sub-
subcontractor.
§ 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
§ 5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as
practicable after award of the Contract, shall furnish in writing to the Owner tbro~:~gli ~e Arekiteet the names of
persons or entities (including those who are to furnish materials or equipment fabricated to a special design)
proposed for each principal portion of the ~Work and will, upon request therefor by Owner. update such list
during construction of the Project. The A rchitect Owner will promptly reply to the Contractor in writing stating
whether or not the Owner er lke Afebiteet, Owner, after due investigation, has reasonable objection to any such
proposed person or entity. Failure of the Owner or Architect to reply promptly shall constitute notice of no
reasonable objection. Notwithstanding anything herein to the contrary, the Contractor may subcontract portions of
the Work to the Contractor or divisions of the Contractor pursuant to a subcontract agreement. and the subcontract
sum thereof shall constitute a Cost of the Work. but only if such subcontract agreement is approved in writing in
advance by Owner.
§ 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner er Arekheet has made
reasonable and timely oojection. The Contractor shaJJ not be required to contract with anyone to whom the
Contractor has made reasonable objection.
§c5.2.3 lf the Owner er Arekiteet has reasonable objection to a person or enti"ty proposed by the Contractor, the
Contractor shaJJ propose another to whom the Owner ar A::ebiteet has no reasonable objection. If the proposed but
rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall
be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order
shall be issued before commencement of the substitute Subcontractor's Work. However, no increase in the Contract
Sum or Contract Time shall be ano wed for such change unless the Contractor has acted promptly and responsively
in submitting na.mes as required.
§ 5.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the Owner er
Arehiteet makes reasonable objection to such substitute.
§ 5.3 SUBCONTRACTUAL RELATIONS
§ 5.3.1 By appn~priate agreement, written where legally required for validity, the Contractor shall require each
Subcontractor, 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,
including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents,
assumes toward the Owaer aae :t\Feliiteet. Owner. Each subcontract agreement shall preserve and protect the rights
of the Owner aRe Arel:titeet under the Contract Documenlc; with respect to the Work to be performed by the
Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor,
unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress
against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate,
the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The
Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement,
copies of the Contract Documen~ to which the Subcontractor will be bound, and, upon written request of the
Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may
be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of
such documents available to their respective proposed Sub-subcontractors.
§ 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
§ 5.4.1 Each 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 Contract by the Owner for cause pursuant to
Section 14.2 and only for those subcontract agreements which the Owner accepts by notifying the
Subcontractor and Contractor in writing; and
.2 assignment is subject to the prior rights of the s urety, if any, obligated under bond relating to the
Contract.
AlA Document A201 TIII-1997. Copyright © 1911 , 1915, 1918, 1925, 1937, 1951 , 1958, 1961 , 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA" Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 28
reproduction or dletrlbutlon of this AlA• Document, or any portion of it. may result In eevere civil and criminal penalties, and will be prosecuted to the
maximum extent poSJJible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7/23/2006, and is not for resale.
User Notes: Clayco A201 • Koll · lntellicenter · Dallas v2 (5·19.06) (986536188)
R.P. Appx. 368 57
§ 5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Subcontractor's
compensation shall be equitably adjusted for increases in cost resulting from the suspension.
ARTICJ.:E 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
§ 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
§ 6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's
own forces, and to award separate contracts in connection with other portions of the Project or other construction or
operations on the site under Conditions of the Contract identical or substantially similar to these including those
portions related to insura.n ce and waiver of subrogation. If the Contractor claims that delay or additional cost is
involved because of such action by the Owner, the Contractor shall make such Claim as provided in Section 4.3.
§ 6.1.2 When separate contracts arc awarded for different portions of the Project or other construction or operations
0n the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes
each separate Owner-Contractor Agreement.
§ 6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate
contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with
other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The
Contractor shaH make any revisions to the construction schedule deemed necessary after a joint review and mutual
agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate
contr;,tctors a,nd the Owner until subsequently revised.
§ 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations
related to the Project with the Owner's own ~forces or pursuant to separate contracts with other contractors.
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 Conditions of the Contract, including, without excluding others, those stated in Article 3, this
Article 6 and Articles 10, 11 and 12. Without limiting the generality of the foregoing. if the Owner awards separate
contracts with any other contractors for any work at the Project site during the performance of the Work. then the
Owner shall cause each and every such other contractor (and their subcontractors of any tier) to name the Contractor
as an additional insured on all liability insurance policies maintained by such other contractor (and their
subcontractors of any tier) to the extent such policies cover liabiJities relating to the Project or other work being
performed at the Project site. The Owner shall furnish to the Contractor written evidence that such insurance is in
effect and that the Contractor has been named an additional insured as aforesaid upon the first to occur of the award
or execution of any such separate contract.
§ 6.2 MUTUAL RESPONSIBILITY
§ 6.2.1. The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and
storage of their materials and equipment and performance of their activities, and shall connect and coordinate the
Contractor's construction and operations with theirs as required by the Contract Documents.
§ 6.2.2 If part of the Contractor's Work depends fo( proper execution or resu Its upon construction or operations by
the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly
report to the ~apparent discrepancies or defects in such other construction that would render it
unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an
acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and
proper to receive the Contractor's Work, except as to defects not then rea-;onably discoverable.
§ 6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to a
separate contractor because of delays, improperly timed activities or defective construction of the Contractor. The
Owner shall be responsible to the Contractor for costs incurred by the Contractor because of delays, improperly
timed activities, damage to the Work or defective construction of a separate contractor.
§ 6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially
completed construction or to property of the Owner or separate contractors as provided in Section 10.2.5.
§ 6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are
described for the Contractor in Section 3.14.
AlA Document A201TM - 1997. Copyright© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The Americatl
lns1itute of Architects. All rights reserved. WARNING: This AlA• Document Ia p rotected by U.S. Copyright Law and International Treatlea. Unauthorized 29
reproduction or d~trlbutlon of thla AlA• Docwnent, or en~ portion of It, may reaullln severe clvlllnd criminal ponlltlu, and will be prosecuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05119/2006 under Order No.1 000182995_ 1 which
expires on 7123/2006, and is not for resale.
User Notes: Clayco A201 • Koll · lntellicenter · Dallas v2 (5·19·06) (986536188)
R.P. Appx. 369 58
§ 6.3 OWNER'S RIGHT TO CLEAN UP
§ 6.3.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under
their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish,
the Owner may clean up and the Ar-eiliteet will alloeate the cost among those FeSf'Oiliitble.responsible shall be
equitably allocated.
ARTICLE 7 CHANGES IN THE WORK
§ 7.1 GENERAL
§ 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the
Contract, by Change Order, Coastr~etioa Cllange Di£eet1ve or oraer fer a miaor ehange in the Work, subject to the
limitations stated in this Article 7 and elsewhere in the Contract Documents.
§ 7.1.2 A Chaage OrEier sllall ae aaseEf lipOR agreeffieRt affiORg the Owner, Contraetor ana Arehlteet; a CeHstruetiofl
Change Difeetive Fe~ ~:!ires agreeffient ay tlle Owner ana Ai:Gaiteet aA:d RiQy or ll'l&Y AOt ae agreed to ay !:he
Contraetor;· aa oFde£ for a £Bitter e!lange ia the Work may ee iss1:1ea ey the t\rehiteet a:loae.
§ 7.1.2 A Change Order shall be based upon agreement between the Owner and the Contractor as provided in Sectj()n
6.5 of the Agreement.
§ 7.1.3 Cha~:~ges in the Work shall be performed under applicable provisions of the Contract Documents, and the
Contractor shall proceed promptl'y, unless otherwise provided in the Change OFaer, CeHstRtetion Change Direetive
er erEier fer a ~Hiaer ehange iB the Work.Order.
§ 7.2 CHANGE ORDERS
§ 1.2.1 A Chaege OrEier is a written instrHtHent prepared ey the ,'\ftlJ:Iiteet aaa sigaea ay the 0VIflef, Coatraeter l:lHEI
Areaiteet, statiag tkeif agreetHMlli~e:n all ef the fellewiRg:
,1 eaaage in tke Werk;
.2 the amooot ofthe adjust~Hent, if aay, ia the Conwaet 8~ffi; and
,3 the e)(teRt ef tlle aeljast~Heet, if aRy, in the Ceatrast Time.
§ 7.2.1 If the other provisions of the Contract require that a Change Order be issued and the Owner and the
Contractor are unable to agree upon the terms thereof as provided in Section 6.5 of the Agreement
within ten days of a written demand given by either party to the other party to so agree. then the
dispute shall be resolved ·as provided in Article 4 herein. Tn any such dispute resolution proceedings
the parties agree that the terms of the Change Order set forth in subparagraphs (i)-(vii) of Section 6.5
ofthe Agreement shall be determined.
§ 7.2.2 Methoa!i In any dispute..resolution proceeding over a Change Order, the methods used in determining
adjustments to the Contract Sum may include those Jjsted in Section ~7.33.
§ 7.2.3 Contractor shall not suspend performance of the Contract Documents during the review and negotiation of
any Change Order.
§ 7.3 CONSTRUCTION CHANGE DIRECTIVES
§ 1.3.1 A Ceastruetiea Oiaage Difeeti..,·e is a written oraer !*E!PaFea ay t:l:te Arehiteet afl£1 sigaed ay the Owner aad
,<\fehiteet, Elireetiag a ehaage iR tlle Werk prier to ag:ree~HeRt on aEijlist!fleet1 'if any, in the CoRa:&et Sl:llfl or Contrast
TIH!e, Of 9oth. The Owner ~Hay ay COf!Strl:letioa Ckaage Direetive. witROI:Il iflvaliaatiag tke Coatraet, orEler ehange s
in the \Veri< within tlle general seope of the CoBtraet eonsi!itiAg ef aEiditieRS, aeletiens Of other re,·isioas, the
Ceatraet S1:1ffi ana Contraet Time 9etag aelj1:1s*eEi eeeerEI:iRgly.
§ 7.3.1 !Intentionally Omitted].
§ 1.3.2 ;>'\ Ceast:rlietien ChaBge Difeeti'<'e saall ae l:lsea ia tlle aasenee of le~al agreement OH the terms of a Chaage
OFEier.
§ 7.3.211ntentionally Omitted).
§ 7.3.3 If the Coastn1etien Change Direeti·;e Order provides for an adjustment *&-ill...the Contract Sum, the adjustment
shall-may be based on one of the following methods:
AlA Document A2011M -1997. Copyright© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: Thle AlA• Document Ia protected by U.S. Copyright Law 811d International Treatlea. Unauthorized 30
reproduction or dlatrlbutlon of this AlA• Document, or any portion ollt, may result In eevere civil 811d criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 wiJich
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll - lntellicenter • Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 370 59
.1 mutual acceptance of a lump sum properly itemized and supp<>rted by sufficient substantiating data to
permit evaluation;
.2 unit prices stated in the Contract Documents or subsequently agreed upon;
.3 cost to be determined in a manner agreed upon by the parties and a Rll:ltl:laJly aeeeptaele fix eEl er
Contractor Fee based on the percentage feet-set forth in Section 5.1.2 of the Agreement: or
.4 as provided in Section 7.3.6.
§ 7.3.4 UflOA Feeeipt of a CoRstFl:letioR ClulAge DiFecti·;e, ilie CeAtraeter shall premf!t.IY preeeeEI witfl the ellaage iA
the Werle iAWll¥eEI. aREI aEI¥ise t:Re Arelliteet ef t!ie Ceatr-aeter' s agTeemeRt er ElisagreemeRt with tf:le JaetheEI, if aRy,
pro•,riaea iA tile Con!ltRietieR Change Directive for aetermiaiag the proposed aEiji:IStmeat iR tl:!e Ceatraet Sl:lm er
Ceatract Time.
§ 7.3.4 [Intentionally Omitted!.
§ 7.3.5 IJnteritionally Omitted).
§ 7.3.5 A CefiStrl:letieA Cl:!aage Directive sigaee ay tile Ceatraeter iRaieates the agreemeat ehJ:te Cealfaeter
there•.vith; iaoluaiag aEij~:~stmeRt iR Ce;ntrast S1:1m. aRG Ceetrast Tim.e er t:Re Rltiltf:led fur Eletenaiaiag tl:!em. .. SYeh
agFeeffteRt shall be eft:eel:ive immeEiiMely aAEi shall ee reeoraea as a CI:!Mlge Order.
§ 7.3.6 lf-In any dispute between the Contractor does Ret reSfHlRa j:lrflFRpltly ar disagrees witf:l and the Owner over the
method for adjustment in the Contract ~Sum in connection with any Change Order or in connection with. any
other adjustment in the Contract Sum to which the Contractor is entitled under the Contract Documents. then the
method and the adjustment shaH be determined by tile J\.Fekiteet 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
reasoaaele allewaRse fer eYerlleaa aR9 ~refit. Contractor' s Fee based on the percentage set forth in Sectjon 5.1.2 of
the Agreement. In such case, aae alse 1:1aEier Sectiea 7.3.3.3, the Contractor shall keep and present, in such form as
the Arehiteet Owner may reasonably prescribe, aa-a reasonably itemized accounting together with appropriate
supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Section 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, permit fees, and sales, use or similar taxes related to
the Work;aaa
.5 additional costs of supervision and field office personnel directly attributable to the eaaage.change;
and
.6 if the Agreement is an AlA Document A Ill or A 121. all other costs which would be considered to be
Costs of the Work under the Agreement.
§ 7.3.7 The amount of credit to be .allowed by the Contractor to the Owner for a deletion or change which results in a
net decrease in the Contract Sum sha!J be actual net east as eell41rmea B)' the Architect. cost. When both additions
and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit
shall be figured on the basis of net increase, if any, with respect to that change.
§ 7~3.8 Pending final determination of the total cost of a CeRstrHetiea Change Direetive te t:Re Q·,..'fler, Order,
amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by
a Change Order indicating the parties' agreement with part or all of such cos.ts. For aay portiea ef costs and the
Owner shall be obligated to pay such east that FemaiAs costs together with a Contractor's Fee based on the
percentage set forth in aiSfl\:lte, the Areaiteel will malce aa iAteriFR aeteFFRiaatioR for pl:lrpeses efmeately
eeft:iijeatiea fur payFReAt fer these eests. That aeterFRinatioa Section 5.1.2 of eost shan adjust the Coatract 81:1m ea
tee same basis as a Cfiaage OrEier, sY&jeet Agreement to the right of either ~arty to disagree &fla assert a elaim ia
aeeora&flee with Article 4.Contractor.
§ 7.3.9 When the Owner and Contractor agree with tf:le aeteFFRiaatiea ftl&Ele by the Architect concerning ~.ill!Y
adjustments in any one or more of the Work. the Contract Sum aM-or the Contract Time, or otherwise reach
AlA Document A201"' -1997. Copyright © 1911 , 1915, 1918, 1925, 1937, 1951 , 1958, 1961 ,1963, 1966, 1970, 1976, 1987 and 1997 by The American
111
Institute of Architects. All rights reserved. WARNING: Tllla AJA Document II protected by U.S. Copyright Law and International Treaties. Unauthorized 31
reproduction or distribution of lhla AlA• Document, or any portion of It, may result In eevare civil and criminal penaiUaa, and will bl proMCuted to the
maximum extent possible under the law. This document was produced·by AlA software at 14:42:43 on 05/1912006 under Order No.1000182995_ 1 which
expires on 7123/2006. and Is not for resale:
User Notes: Clayco A201 - Koll • lntellicenter - Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 371 60
agreement upon the aEij1:1stmeets. adjustments in the items set forth in subparagraphs (i)-(vii) of Section 6.5 of the
Agreement. such agreement shall be effective immediately and shall be recorded by preparation and execution of an
appropriate Change Order.
§ 7.4 MINOR CHANGES IN THE WORK
§ 7.4.1 The Architect Owner will have authority to eR:Ief-make 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 and shall be binding on the OwAer ana 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 adjustments, allotted in
the·Contract Documents for Substantial Completion of the Work.
§ 8.1.2 The date of commencement of the Work is the date established in the Agreement.
§ 8.1.3 The.date of Substantial Completion is the date certifies B)' the Arehiteet when Substantial Completion is
actually achieved in accordance with Section 9.8.
§ 8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically
defined.
§ 8.2 PROGRESS AND COMPLETION
§ 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement
the Contractor confirms that the Contract Time is a reasonable period for performing the Work.
§ 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely
commence 0peratioos on the site or elsewhere prior to the cffccti vc date of insurance required by Article 11 to be
furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the
effective date of such insurance. Unless the date of commencement is established by the Contract Documents or 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 security interests.
§ 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantia] Completion
within the Contract Time.
§ 8.3 DELAYS AND EXTENSIONS OF TIME
§ 8,3,1 If the CeAa:aeter is clelayea at ilAY time ie the commencement or progress ef th:e Werk BY ae act er eegleet of
the Owaer er Afehitect, er ef Bfl eff!ployee ef either, or ef a sepllfate eeea-aet:or emJ:lloyea l:ly !fle OwRer, or ey
changes eFE!ereE! iA the Wor-k, or ey la~er EHSfH:Ites, t'ire, I:IBI:ISHal aelay in deliveries, HAaveiaaele eas1:1ahies or ether
caYses eeyeea t:Re Cent:raetor's eeea-el, er BY aelay al:ltheri:tea By the Owfler peAEiiRg meaiatieA aRe areil:fatioA, er
B~' ether ea~:~ses which the Ai'eliitect aetefftliaes nlay ji:IStify aelay, thea the CeRtract Time shall Be ex:teaaea B)'
QaRge OFEler fer s1:1eh reaseAaele tiate as the ArcJ:Iitect may cletermiee.
§ 8.3.1 If the Contractor js delayed at any time in the commencement or progress of the Work that adversely affect
the sequencing of the Work resulting 1n a delay in Substantial Completion by (i) an act or neglect of the Owner. or
of an employee of Owner. or of a separate contractor emplgyed by the Owner. or (ii) changes ordered in the Work.
or (iii) labor disputes, or (iv) fire. or (v) unusual delay in deliveries. or (vi) the imposition after the date of the
Agreement of guotas or other restrictions on the ability of the Contractor to obtain material or eguipment. or (vii)
unavoidable casualties or (viii) other causes not reasonably foreseeable on the date the Work commenced or which
are beyond the Contractor's control, or (ix) adverse weather conditions or adverse site conditions as set forth in
Section 4.3.7.2, or Cx) delays caused by governmental authorities (not caused as a result of fault on the part of the
Contractor) or (xi) delay authorized by the Owner pending mediation and arbitration (provided that no such event
has been caused by the delay or negligent or other wrongful act or omission of the Contractor or any of its
employees.or agents). and provided that Contractor has delivered to Owner wdtten notice of the occurrence of such
event within ten (I 0) business days after the occurrence thereof. then the Contract Time shall be extended by
,AIADocumentA20tTM -1 997. Copyrlght ©191 1,1915, 1918.1925, 1937, 1951,1958. 1961. 1963.1966, 1970.1976, 1987and 1997by TheAmerlcan
Institute of Architects. All rights reserved. WARNING: This AIA8 Document Is protected by U.S. Copyright Lew and International Treaties. Unauthorized 32
reproduction or distribution of I his AIA8 Ooc~m~ent, or any portion of it, may result In .evere civil and criminal penalties, and will be proaecutad to the
maximum ex1ent possible under the Jaw. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll - lntelllcenter - Dallas v2 (5-19·06) (986536188)
R.P. Appx. 372 61
Change Order for a reasonable time and the Contract Sum shall be adjusted to the extent reasonably necessary to
compensate the Contractor for any increases in the Cost of the Work caused by such delay.
§ 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Section 4.3.
§ 8.3.3 This Section 8.3 does not preclude recovery of damages for delay by either party 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, js the total amount
payable by the Owner to the Contractor for performance of the Work under the Contract Documents.
§ 9.2 SCHEDUlE OF VALUES
§ 9.2.1 Before the first Application for Payment, the Contractor shall submit to the Afe~Owner a schedule of
values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate
its accuracy as the Afehiteet Owner may require. This schedule, unless objected to by the Arehtteet, Owner. shall be
used as a basis for reviewing the Contractor' s Applications for Payment.
§ 9.3 APPLICATIONS FOR PAYMENT
§ 9~3:1 At least tett-twenty days before the date established for each progress payment, the Contractor shall submit to
the Afehiteet Owner an itemized Application for Payment for operations completed in accordance with the schedule
of values. Such application shall be notarized, if required, and supported by s uch data substantiating the Contractor's
right to payment as the Owner er Areaiteet may reasonably require, such as 'c opies of requisitions from
Subcontractors and material suppliers, and reflecting rctainage if provided for in the Contract Documents. See the
Agreement for additional provisions relating to Applications for Payment.
§ 9.3.1.1 As tJrevieeEI i:a Seetiea 7.3.8, sae8 Bymeats received
from the Owner sl:ta:ll, ta the eest ef Hie CeAtraeter' s kRewleEige, iafefRlQtiea &REI eelief, shall be free and clear of
liens, claims, security interests or encumbrances in favor of the Contractor, S ubcontractors, material suppliers, or
other persons or entities making a claim by rea~on of havjng provided labor, materials and equipment relating to the
Work. To the extent permitted by applicable law. good and clear title to all materials furnished by Contractor under
the Contract Documents for the Project shall pass to Owner upon incorporation into the Pro ject. Contractor shall
ensure that subcontractors from whom Contractor obtains materials do not retain or reserve title to such items. and
Contmctor shall defend, indemnify and hold Owner harmless from any such claims by Contractor's subcontractors.
Notwithstanding the foregoing, the care. custody and control of Contractor's Work incorporated into the Project
shall remain with Contractor until such Work has been accepted jn writing by Owner and shall thereon pa~s to
Owner unless Owner notifies Contractor in writing that such care. custody and controJ is assumed by Owner at a
earlier date.
AlA Document A201lltl -1997. Copyright © 191 1. 1915. 1918, ~925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976. 1987 and 1997 by The American
Institute of Architects. All rights reserveflinioR the refJreseatatioRs to the Owner reql:lired ay SeetieR
9.4 .2 eaf'Jiot ae made. If the Afehiteel iAt~aaele te eertify withholds a payment ia the ame~:~al of all or any portion of
an Application for Payment. then tbe a\fJfJJieatioa, !:lie ,<\i:ehiteet Owner will notify the Contractor aHa OwHer as
provided in Section 9.4. I. If the Contractor and Arehiteet the Owner cannot agree on a revised amount, the A:-ehiteet
Owner will promptly iss1:1e a Certifieate for PaymeRt for lli!Y_the amount fer-which the Arehltect is aale te malce s~:~ca
R!lfJreSea~oas to the Owaer. not in dispute. The ,'\Fehiteet Owner may a:lse-withhold a Certitieate fur Paylfleat
payment or, because of subsequently discovered evidence, may ~request a refund of the whole or a part of a
Certifieate fur Paymeflf payment previously tssue&,-made to such extent as may be reasonably necessary i:fl-the
A£e8iteet's BfJinioa to protect the Owner from loss for which the Contractor is responsible, iaelaEiia:g less resulting
from acts and on1issions described in Section 3.3.2, because of:
.1 defective Work not remedied;
.2 third party claims filed or reasonable evidence indicating probable filing of such claims against
Owner, the Land or the Project or reasonable evidence indicating the probable filing of such claims.
unless security acceptable to the Owner is provided by the Contractor to protect Owner against such
claims (such security may include, without limitation. Contractor's compliance with its
indemnification or bonding obligations under the Ceatraerer;Contract);
.3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or
equipment;
.4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum;
.5 damage to the Owner or another contractor;
.6 reasonable evidence that the Work wiU not be completed within the Contract Time, and that the
unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay;
er
.7 persistent failure lo carry out the Work in accordance with the Contract bocuments; or
.8 without limiting the generality of the above, any other reason for which Owner is entitled to withhold
or deduct payment under the express provisions of the Contract Documents.
§ 9.5.2 Wben the above reasons for withholding eertifiaatiea payment are removed, eertit=ieatiea payment will be
made for amounts previously withheld.
AlA Document A201TM -1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The A.nnerican
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S, Copyright Law and International Treaties. Unauthorized 34
reproduc~on or dletrlbutlon of lhll AlA• Document, or any portion of It, may result In severe civil end criminal penaiUes, end will be pro~eeuted to the
maximum extent poulble under the law. This document was produced by AlA so1tware at 14:42:43 on 05/19/2006 under Order No. 1000182995_ 1 which
expires on 7/23/2006, and is not for resale.
User Notes: Clayco A201 · Koll - lntelllcenter • Dallas v2 (5-1 9·06) (986536188)
R.P. Appx. 374 63
§ 9.6 PROGRESS PAYMENTS
§ 9.6.1 After the Arehiteet Owner has issaeE:I a CeFtif;ieate received an Application for PayFAeRt, Payment which
complies with the requirements of the Contract Documents, the Owner shall make payment in the manner and
within the time provided in the Contract DeeaRle.R£5, aeEI shall se eetify the Arehiteet.Documents.
§ 9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the
amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said
Subcontractor is entitled, retlecling percentages actually retained from payments to the Contractor on account of
sucb Subcontractor's portion of the Work. The Contractor shaH, by appropriate agreement with each Subcontractor,
require each Subcontractor to make payments to Sub-subcontractors in a similar manner.
§ 9.6.3 The Arshi~es~ Owner will, on request, furnish to a Subcontractor, if practicable, information regarding
percentages of completion or amounts applied for by the Contractor and acti.on taken thereon by the Arehiteet aREI
0wner on account of portions of the Work done by such Subcontractor.
§ 9.6.4 Neither Contractor shall use the sums advanced to it pursuant to the Contract documents solely for the
pumose of the performance of the Work. The Owner ear A:ehi~ee~ shall not have an obligation to pay or to see to
the payment of money to a Subcontntctor 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 Sections 9.6.2, 9.6.3 and
9.6.4.
§ 9.6.6 A CeFtiflea~ fer PayRleet, a progress payment, o.r partial or entire use or occupancy of the Project by the
Owner shall not constitute acceptance of Work not in accordance with the Contract DoeaRleRts.Documents and shall
not relieve Contractor of its obligations under the Contract Documents with respect thereto.
§ 9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum.
paym~.:uts received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by
the Contractor for those Subcontractors or suppliers who performed Work or furnished materials, or both, under
contract with the Co_ntractor for which payment was made by the Owner. Nothing contained herein shall require
money to be placed in a separate account and not commingled with money of the Contractor, shall create any
fiduciary liability or tort liability on the part of the Contractor for breach of urust or shall entitle any person or entity
to an award of punitive damages against the Contractor for breach of the requirements of this provision.
§ 9.7 FAILURE OF PAYMENT
§ 9.7.1 If the ,'\feh;i~et Owner does not ts&ae-make a CeFtif;ieate fur Payment, through no fault of the Contractor,
within~twenty days after receipt of the Contractor's Application for Payment, or if the Owner does not pay the
Contractor within seven days after the date established in the Contract Documents the amount eertifieEI ey due to the
A:reffi:teet Contractor hereunder or awarded by arbitration, then the Contractor Rlay, I:IJ:lOR seveR aEIEI:itioRal Elays'
wri~R eetiee te the Oweer aes At=ekiteel, may 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
Contractor's reasonable costs of shut-down, delay and start-up, plus interest as provided for in the Contract
Documents.
§ 9.8 SUBSTANTIAL COMPLETION
§ 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof
is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the
Work for its intended usc.
§ 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner a~:.,.ees to accept
separately, is substantially complete, the Contractor shall prepare and submit to the Arel:!iteet Owner a
comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such
list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract
Documents.
§ 9.8.3 Upon receipt of the Contractor•s list, the l\rehiteet Owner will make an inspection to determine whether the
Work or designated portion thereof is substantially complete. If the Arel:!iteet's Owner's inspection discloses any
AlA Document A201"' - 1997. Copyright © 1911 , 1915, 1918, 1925, 1937, 1951 , 1958. 1961, 1963, 1966, 1970, 1976. 1987 and 1997 by The American
Institute of Architects. All rights relierved. WARNING: This AIA8 Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 35
reproduction or distribution of thl1 AIA8 Document, or any portion otlt, may re1ullln severe civil and criminal penaltle1, and will be prosecuted to the
maximum extent possible under the law. Thi.s document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1 000182995_ 1 which
expires on 7/23/2006, and is not for resale.
User Notes: Clayco A201 • Koll · lntellicenter · Dallas v2 (5· 19..06) (986536188)
R.P. Appx. 375 64
item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the
Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended
use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item
upon nptification by the Arehit.eet Owner. In such case, the Contractor shall then submit a request for another
inspection by the /'.fehiEeet Owner to determine Substantial Completion.
§ 9.8.4 When the Work or designated portion thereof is substantially complete, the At=ehi~ee~ Owner will prepare a
Certificate of Substantial Completion which shall estabUsh the date of Substantial Completion, shall estabHsh
responsibilities of the Owner and Contractor for security, maintenance, beat, utilities, damage to the Work and
insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the
Certificate. Warranties required by the Contract Documents shaiJ commence on the date of Substantial Completion
of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion.
Upon the Owner providing such Certificate of Substantial Completion. Contractor shall cause (a) the Architect to
sign and deliver to Owner and Prudential a certificate in the form of Exhibit "E" attached hereto. and (b) the civil
engineer for the Project to sign and deliver to Owner and Prudential a certificate in the form of Exhibit "F" attached
hereto.
§ 9.8.5 The Certific.~te of Subst.antial Completion shall be submitted to the Owner and Contractor for their written
acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if
any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment
shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents.
§. 9.9 PARTIAL OCCUPANCY OR USE
§ 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage whe01
soch portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented
to by the insurer as required under Section 11.4.1.5 and authorized by public authorities having jurisdiction over the
Work. Such partial occupancy or usc may commence whether or nm the portion is substantially complete, provided
the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments,
retrunage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in
writing concerning the period for correction of the Work and commencement of warranties required by the Contract
Documents. When the Contractor considers a portion substantially complete, the Contractor shaU prepare and
submit a list to the Arshitest Owner as provided under Section 9.8.2. Consent of the Contractor to partial occupancy
or use shalf not be.unreasonably withheld. The stage of the progress of the Work shall be determined by written
agreement between the Owner and Ce~aeter er, if ae agt:eemet'lt i:~ reaeheEl, by deeisioa of the
A:ehiteet.Contractor.
§ 9.9.2 Immediately prior to such partial occupancy r>r use, the O·Naer, Owner and the Contractor aoa Arsi:Nteet 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 acceptance of Work not complying with the requirements of the Contract Documents.
§ 9.10 FINAL COMPLETION AND FINAL PAYMENT
§ 9.10.1 Upori receipt of written notice from Contractor to Owner that all Punch List Items have been completed and
that the Work is ready for final inspection and acceptance and upon receipt of a fmaJ Application for Payment, the
A,rel!Jteet Owner will promptly make such inspection and, when tke Arehiteet .Raas the Work aeeeptable Hnder has
been finally completed in accordance with the Contract Documents and the Contract fully performed, the kehitest
Owner will promptly isslla-a-make final Certifieate fer Paymeat stat=.iag that t:e the best payment of the Arekiteet's
lmowleage, iaformatioR all amounts due and eeliel', aad OR the easifl ef' ~Ae ,'\i'ehiteet' 5 ea Site visits aoEI iaspeetieAti,
!:he Werk BB5 beea esHtf!letea in aceeraaoee with terms ami eeadilieftS of the Ceatras~ Dee~:~mea~s aed that the eatire
ealaaee feaRS owing to 9&4:1e-the Contractor aad ROttld iR under the final Certi.Reate is d~;~e and Jlayable. The
Arelijteet' s fiaal Certificate fer Paylfleat will eeastit~:~te a fNrtJter represeatatiea tJtat ceaaitieos listed iB Sec tieR
9.1 0.2 as !3Fe6edeRt te the Ceatraster's eeif!g eatitled to tiaal fltl·}'meat ba\'e eeee fHlfilled.Contract Documents.
§ 9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits
to the Ai'ehiteet Owner (I) an affidavit that payrolls, bills for materials and equipment, and other indebtedness
AlA Document A201TM -1997. Copyright © 191 1, 1915. 1918, 1925, 1937, 1951 , 1958, 1961, 1963, 1966,-1970, 1976, 1987 and 1997 by The American
tnstitu1e of Archi1ects. All rights reserved. WARNING: This AlA• Document Ia protcc;ted by U.S. Copyright Law and International Treaties. Unauthorized 36
reproduction or dlatrlbutlon of t hla AfA8 Document, or any portion of It, may result In aevere clvlf and criminal peneitlea, end will be prosecuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1 000182995_ 1 which
expires on 7/23/2006. and is not lor resale.
User Notes: Clayco A201 · Koll · lntelllcenter • Daffas v2 (5·19·06) (986536188)
R.P. Appx. 376 65
connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (Jess
amounts withheld by Owner) have been paid or otherwise satistied, (2) a certificate evidencing that insurance
required by the Contract Documents to remain in force after tina! payment is currently in effect and will not be
canceled or allowed to expire until at least 30 days' 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 Contract Documents, (4) consent of surety, if any, to final paymeRt payment, (5) a certificate
stating that to the best of Contractor's knowledge, the Project is in compliance with all applicable laws, statutes,
ordinances, rules and regulations with respect to the Project. and that there is no action or proceeding pending or
threatened before any court or administrative agency with respect to the validity of the certificates. permits, licenses,
waivers. consents. approvals, authori7.ations. registrations. qualifications, designations. declarations and filings
required or compliance with any laws, statutes. ordinances. rules and regulations and Contractor has not received
any notice to the contn.lry. (6) evidence satisfactory to Owner that all utilities necessary or appropriate for the
operation of the Project have been installed and are fully operational and are actually operating to the satisfaction of
the governmental authorities or utility companies responsible for the operation thereof and that all costs in
connection with such installation and operation (including but not limited to impact fees. development fees. tap·on
fees and recapture costs) have been paid in full and ~if required by the Owner, other data establishing
payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or
encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. If a
Subcontractor refuses to furnish a release or waiver required by the Owner, rhe Contractor may furnish a bond
satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments
are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in
discharging such lien, including all costs and reasonable attorneys' fees.
§ 9.10.3lf, after Substantial Completion of the Work, final completion thereof is mater.ially delayed through no fault
of the Contractor or by issuance of Change Orders atl'ecting final completion, ana tbe A:£e9i.teelse eeRfirms, the
Owner shall, upon application by the CeRtraster aHa eertifieatieR by the Arehiteet, Contractor, and without
terminating the Contract, make payment of the balance due for that portion of the Work fully completed and
-accepted. lf the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the
Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due
for tha(,portion of the Work fully completed and accepted shall be submitted by the Contractor to the ,'\i'effiteet flA er
te eeftifieatiea ef st~ek p&ymeRt. Owner. Such payment shall be made under terms and conditions governing final
payment, except that it shall not constitute a waiver of claims.
§ 9.10.4 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 arising oul of the Contract and unsettled;
.2 failure of the Work to comply with the requirements of the Contract Documents; or
.3 terms of special warranties required by the Contract Documents.
§ 9.10.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a
waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at
the time of final Application for Payment.
ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
§ 10.1 SAFETY PRECAUTIONS AND PROGRAMS
§ 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Contract.
§ 10.2 SAFETY OF PERSONS AND PROPERTY
§ 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to
prevent damage, injury or loss to:
.1 employees on the Work and other persons who may be affected thereby;
.2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the
Site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-
subcontractors; and
.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements,
roadways, structures and utilities not designated for removal, relocation or replacement in the course
of construction.
AlA Document A201"' - 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright L1w and International Treaties. Unauthorized 37
reproduellon or distribution ol thla AlA• Docu ment. or any portion al it, may result In !Ievere civil and erimlnal penalties, and will be proSGCuted to the
maximum extent possible und.er the law. This document was produced by AlA software at 14:42:43 on 05119/2006 under Order No.1000182995_1 which
expires on 7/23/2006, and is not for resale.
U1er Notes: Clayco A201 • Koll· lntellicenter · Dallas v2 (5·19·06) (986536188)
R.P. Appx. 377 66
Contractor shall comply strictly with local. municipal. provincial. stare and national laws. orders, and
regulations pertaining to health or safety which are applicable to Contractor or to the Project, including
without limitation the Occupational Safety and Health Act of 1970 (84 U.S. Statutes 1590), as amended and
any state plans approved thereunder. and regulations thereunder. to the extent applicable. and Contractor
warrants the materials. equipment and facilities. whether temporary or permanent. furnished by Contractor
in connection with the performance of the Project shall comply therewith. At all times while any of
Contractor's employees. agents or subcontractors are on Project. Contractor shall provide them with a safe
place of employment, and Contractor shall inspect the places where its employees. agents or subcontractors
are or may be present on the Project and shall promptly take action to correct conditions which are or may
become an unsafe place of employment for them.
Contractor shall incorporate necessary safety precautions and programs in a written safety program manual.
Contractor shall provide Owner with a copy of such safety program manual.
Contractor shall take reasonable steps to erect and maintain safeguards for the protection of workers and the
public and eliminate orabate safety hazard~ created by or otherwise resulting from the performance of the
Work. Contractor shall take ail precautions r subcontractors that is to be used on the
job site shall be in operating. condition. safe. fit for the uses for which intended. and suitable for the safe.
legal and efficient performance of the Project.
§ 10.2.2 The Contractor shall g·ive notices 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 maintain, as required by existing conditions and performance of the Contract,
reasonable safeguards for safety and protection, including posting danger sig ns and other warnings against hazards,
promu.lgating safety regulations and notifying owners and users of adjacent sites and utilities.
§ 10.2.4 The Contractor will not use. store or keep at the Project any har.ardous materials. except those customarily
andpruclently used in construction of projects similar to the Project and in compliance with all environmental laws.
When use or ,storage of explosives or o ther hazardous materials or equipment or unusual methods arc necessary for
execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of
properly qualified personnel.
§ 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property
insurance required by the Contracr Documents) to property referred to in Sections I 0.2. 1.2 and 10.2. 1.3 caused in
whole ox: 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 act~ they may be liable and for which the Contractor is responsible under
AlA Document A2011M -1 997. Copyright @ 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966. 1970, 1976, 1987 and 1997 by The American
Institute ot Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Law and International Treatlea. Unauthorized 38
reproducUon or distribution of this AIA111 Document, or any portion of It, may reault In M vere civil and criminal peneiUee, end will be prosecuted to the
maximum extent possible under the lew. This document was produced by AlA soltware at 14:42:43 on 05/19/2006 under Order No.1 000182995_ 1 which
expires on 7/23/2006, and is not tor resale.
User Notes: Clayoo A201 • Koll • lntellicenter · Dallas v2 (5·19·06) (986536188)
R.P. Appx. 378 67
Sections I0.2.1.2 and I0.2. J.3, except damage or loss attributable to acts or 0 1nissions. of the Owner or Arehiteet er
anyone directly or indirectly employed by eiH:ier ef theiH, the Owner. or by anyone for whose acts either of them
may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the
Contra<;:tQr are in addition to the Contractor's obligations under Section 3.1&.
§ 10.2.6 T he Contractor shall designate a responsible member of the Contractor' s organi7.ation at the site whose duty
shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise
designated by the Contractor in writing to the Owaer aaEl A-rebiteet.Owner.
§ 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 HAZARDOUS MATERIALS
§ 10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons
resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB),
encountered on the site. by ~e Contractor, the Contractor shall, upon recogni:ting the condition, immediately stop
Work in the affected area and report the condition to the Owner aaEl Arrebiteet in writing.
§ 10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material
or substance reported by the Contractor and, in the event such material or substance is found to be present, to verifY
that it has been rendered harmless. UnJess otherwise required by the Contract Documents, the Owner shall furnish in
writing to the Contractor aAEl Areb:iteet the names and qualifications of persons or entities who are to perform tests.
·verifying the presence or absence of such material or substance or who are to perform the task of removal or safe
C'e, the O·Nfler shall se iRf'enfl the Cestraeter iR writisg prier te
eemmeaeemeat ef the Werk. The Ce~eter may t8ea effeet iRstmmee which will fHeteet the iRt8fests ef the
Ceatraeter, S~:~eeefltfaeters afla S<~e sueee·a traeters iR the Werk, a.Rd by SJ)f:JFOpriate ChaRge Oreler the SllSt thereef
shall ee eaargeel te !:be OwRer. l:f the Cefta=aetor is elamageel ey l:he faihlre er Regleet ~:~f the OwRer te pl:lrehase er
maietaia iRsaraaee as eleseribee aee'>'e, withe at se ROtifyiag the Ceal:faeter ift writiag, thea the OwRer shall eear ai1J
reaseRable ees~s properly att:rie~:~table therete.fintentionally Omitted].
§ 11.4.1.3 If the property insurance requires deductibles, the Owner shall pay as a Cost of the Wor.k costs not
covered because of such elea~:~etibles.deductibles; provided, however. that except for claims arising from tlood or
earthquake damage, the cost of such deductible.~ shall not exceed $10,000 per occurrence.
§ 11 .4.1 .4 This property insurance shall cover portions of the Work stored off the site, and also portions of the Work
in transit
§ 11.4.1.5 Partial occupancy or use in accordance with Section 9.9 shall not commence until the insurance company
or companies providing property insurance have consented to such partial occupancy or use by endorsement or
otherwise. The Owner and the Contractor shall tak,e 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 cancellation, lapse or reduction of insurance.
§ 11.4.2 Boiler and Machinery Insurance. Tae Oweer Contractor shall purchase and maintain boiler and machinery
insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during
installati.o n and until final acceptance by the Owner; this insurance shall include interests of the Owner, Contractor,
Subcontractors and Sub-subcontractors in the Work, and the Owner and Contractor shaH be named insureds.
§ 11.4.3 Loss of Usc Insurance. The OwRer, at the OwRer's ef!aea, may Contractor shall purchase and maintain such
insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however
AlA Document A201 1 M -1997. Copyright <&> 1911, 1915. 1918. 1925, 1937, 1951, 1958, 1961 , 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Law and International Treaties. U'nauthorized 41
reproduction or distribution of this AlA• Document, or any portion of It, may result In severe civil 1nd criminal penalties, and will be proncuted to the
mulmum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05119[2006 under Order No.1000182995_1 which
expires on 712312006, and is not for resale.
User Notes: Clayco A201 • Koll - lntellicenter ·Dallas v2 (5·19·06) (986536188)
R.P. Appx. 381 70
caused. The OwReF Contractor waives all rights ef aetiee against tl:le CoRa:aeter Owner for less ef 1:1se af the
OwRer's flF9flert-y, iRehHliRg ceesequeRtial losses a~:~e te damages caused by fire or other ha;r,aras hewe:Yer
~perils to the extent covered bv property insurance obtained pursuant to the terms of this Section 11.4.
§ 11,4.4 [Intentionally Omitted!.
§ 11.4,4 If the Ceatraeter reEl1:1ests ia writiRg that iRs~:~raaee fer risks ether than thene ae!;erieea hereiR er ether
Sfleeial ea~:~ses ef less ee iRel~:~aea iR the J3F9f!erty ia!ll:lraRee peliey, the OwRer shall, if J3ossiele, iRel~:~Eie s1:1eh
iRSSraRee, QRQ l:ke east the.reef shall ee ehargeEI ta the Caea:aetar ey &J3flF9tJJ'iate Chaflge Order.
§ 11.4.5 If during the Project construction period the Owner insures properties, real or personal or both, at or adjacent
to the site by property insurance under policies separate from those insuring the Project, or if after finaJ payment
property insurance is to be provided on the completed Project through a po.licy or policies other than those insuring
the Project during the construction period, the Owner shall waive aJI rights in accordance with the terms of Section
11.4:7 for damages caused by fire or other causes of loss covered by this separate property insurance. AJI separate
policies shall provide this waiver of subrogation by endorsement or otherwise.
§ 11.4.6 Before an exposure to loss may occur, the ~ontractor shall file with the Ce11kaeter Owner a copy of
each policy that includes insurance coverages required by this Section 11.4. Each policy shall contain all generally
applicaole conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a
provision that the policy will not be canceled or aHowed to expire, and that it!> limits will not be reduced, until at
least 30 ·d ays' prior written notice has been given to the Contractor.
§ 11.4.7 W~vers of Subrogation. The Owner and Contractor waive aH rights against ( l ) each other and any of their
subcontractors, sub-subcontractors, agents and employees, each of the other. and (2) the Arehiteet, l\r-ekitect' s
ceRsliltaets, separate contractors described in Article 6, if any, and any of their subcontractors, sub-subcontractors,
agents and employees, for damages caused by ftre or other causes of loss to the extent covered by property insurance
obtained pursuant to this Section 11.4 or other property insurance applicable to the Work, except such rights as they
have to proceeds of such ins.urance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall
require of the Arehiteet, Arehiteet' s eoRsl:lltaRts, separate contractors described in Article 6, if any, and the
subcontractors, sub-subcontmctors, agents and employees of any of them, by appropriate agreements, written where
legally required for va.Jidity, similar waivers each in favor of other parties enumerated herein. The policies shall
provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shaH be effective as to a
person or eritity even though that person or entity would otherwise have a duty of indemnification, contractual or
otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an
insurdble interest in the property damaged.
§ 11.4.8 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 clause and of Section 11 .4.10. The Contractor shalJ pay Subcontractors their just shares of
insurance proceeds received by the ContractOr, and by appropriate agreements, written where legally required for
validity, shalJ require Subcontractors to make payments to their Sub-subcontractors in similar manner.
§ 11.4.9 If required in writing by a party in interest, the Owner as fiduciary shall, upon occurrence of an insured loss,
give bond fo,r proper performance of the Owner's duties. The cost of required bonds shaH 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 Section 4.6. If after such loss no other
special agreement is made and unless the Owner terminates the Contract for convenience, replacement of damaged
property shall be performed by the Contractor after notification of a Change in the Work in accordance with Article
7.
§ 11.4.10 The 0wner as fiduciary shaH have power to adjust and settle a loss with insurers unless one of the parties in
interest shaH object in writing within five days after occurrence of Joss to the Owner's exercise of this power; if suc h
objection is made, the dispute shall be resolved as provided in Sections 4.5 and 4.6. The Owner as fiduciary shall, in
the case of arbitration, make settlement with insurers in accordance with directions of the arbitrators. If distribution
of insurance proceeds by arbitration is required, the arbitrators will direct such distribution.
AlA Document A201'M - 1997. Copyright © 1911 , 1915, 1918, 1925, 1937. 1951, 1958. 1961 , 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 42
reproduction or distribution ol this AlA• Document, or any portion of It, may result In Jevere olvllsnd criminal penalties, and will be prose-cuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/2312006, and is not for resale.
User Notes: Clayco A201 • Koll · lnlellicenter · Dallas v2 (5·19-06) (986536188)
R.P. Appx. 382 71
§ 11.5 PERFORMANCE BOND AND PAYMENT BOND
§ 11.5.1 The Owner shall have the right to require the Contractor to furnish bonds covering faithful performance of
the Contract and payment of obligations arising thereunder as stipulated in bidding requirements or specifically
Iequired in the Contract Documents on the date of execution of the Contract.
§ 11.5.2 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
§ 12.1.11f a portion of the Work is covered contrary to the Arel:liteet's F8EjY8Sl er te requirements specifically
expressed in the Contract Documents, any written inspection schedule agreed to by Contractor, or as previously
requested in writing by Owner, it must, if required in writing by the Areffiteoet, Owner, be uncovered for the
Areffiteet's Owner's examination 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 ~has not specifically requested to
examine prior to its being rovered, the Arel:liteet Owner 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 uncovering and replacement
shall, by appropriate Change Order, be at the Owner's expense. (f such Work is not in accordance with the Contract
Documents, correction shall be at the Contractor's expense unless the condition was caused by the Owner or a
separate contractor in which event the Owner shall be responsible for payment of such costs.
§ 12.2 CORRECTION OF WORK
§ 12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
§ 12.2.1.1 The Contractor shal) promptly correct Work rejeeted by the Arel:liteet er failing to conform to the
requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or
not fabricated, mstalled or completed. Cost~ of correcting such rejected Work, including additional testing and
inspections and compensation for the A:reffi\eet's serYiees &Ad expenses made necessary thereby, shall be at the
Contractor's expense.
§ 12.2.2 AFTER SUBSTANTIAL COMPLETION
§ 12.2.2.'1 In addition to the Contractor's obligations under Section 3.5, if, within one year after the date of
Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties
established under Sectien 9.9.1, or by terms of an applicable speciaJ warranty 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
shalLcorrect 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. The Owner sham! give such notice promptly after
discover)' of the condition. During the one-year period for correction of Work, if the Owner fails to notify the
Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights t0 require
correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct
nonconforming Work within a re.asonable time during that period after receipt of notice from the OwRer er
/'&emteet, Owner. the Owner may correct it in accordance with Section 2.4.
§ 12.2.2.2 The one-year period for correction of Work 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.
§ 12..2.2.3 The o.ne-year period for correction of Work shall not be extended by corrective Work performed by the
Contractor pursuant to this Section 12.2.
§ 12.2.3 The Contractor shall remove from the site portions of the Work which arc not in accordance with the
requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner.
§ 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or
partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work
which is not in accordance with the requirements of the Contract Documents.
AlA Document A201TM -1997. Copyright © 1911, 1915, 1918, 1925. 1937, 1951 , 1958, 1961 . 1963, 1966. 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This A1A8 Document Ia protected by U.S. Copyright Law and International Treaties. Unauthorized 43
reproduction or distribution of thla AtA• Document, or any portion of It, may result In severe civil and criminal penaltlea, and will be proleeluted to the
maximum extent possible under the law. This document was produced by AlA soltware at 14:42:43 on 05/19/2006 under Order No.1000182995_'1 which
expires on 7/23/2006, and is not lor resale.
User Notes: Clayco A201 • Koll · lnlelllcenter · Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 383 72
§ 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to
other obligations which the Contractor might have under the Contract Document.<;. Establishment of the one-year
period for correction of Work as described in Sec~ion 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 comply 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 correct the Work.
§ 12.3 ACCEPTANCE OF NONCONFORMING WORK
§ 12.3.1 If the Owner prefers to accept Work whic)l is not in accordance with the requirements of the Contract
Documents, the Owner may do so instead of requiring hs removal and correction, in which case the Contract Sum
will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has
been made.
ARTICLE 13 MISCELLANEOUS PROVISIONS
§ 1:3.1 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 themselves, their partners, successors, assigns and legal
Fepresentatives 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. Except as provided
in Section 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the
other. 1f either party attempts to make such an assignment without such consent, that party shall nevertheless remain
legally responsil;>le for -all obligations under the Contract. Notwithstanding the foregoing. Owner may assign the
Contract Documents to Prudential or any entity controlled by Prudential.
§ 13.2.2 The Owner may, without consent of the Contractor, assign the Contract to an institutional lender providing
construction financing for the Project. In such event, the lender shall assume the Owner' s rights and obligations
under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such
assignment. Contractor hereby subordinates any mechanics" and materialmen's liens or other claims or
encumbrances that may be brought by Contractor against any or all of the Work, the Land or the Project to any liens
granted in favor of Owner's lender(s). whether such lien in favor of Owner's lender(s) is created. attached or
perfected prior to or after any such liens, claims or encumbrances. and shall require by subcontract its
Subcontractors, and Sub"subcontractors to the extent required by Owner's lender(s), to similarly subordinate their
lien. claim and encumbrance rights. Contractor agrees to comply with reasonable request of Owner for supporting
documentation required by Owner's lender(s). including any necessary lien subordination agreements. affidavits or
other documents that may be required to demonstrate that Owner's property and premises are free from liens. claims
and encumbrances arising out of the furnishing of Work under the Contract. This subordin ation of lien is made in
consideration of and a~ an inducement to the execution and delivery of this agreement. and shall be applicable
despite any dispute between the parties hereto or any others. or any default by Owner under the Contract Documents
or otherwise. Owner's lenders may require periodic inspections and certifications by an inspector or inspecting
architect. and Contractor will make the Project available at all times for such. inspections.
§ 13.3 WRITTEN NOTICE
§ 13.3.1 Written notice shall be deemed to have been du~y 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 Documents and rights and remedies available thereunder
shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available
by law.
§ 13.4.2 No action or failure to act by the Owner, Architect or Contractor shaJI 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 acquiescence in a
breach thereunder, except as may be specifically agreed in writing.
AlA Document A201''"' - 1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951. 1958, 1961, 1963. 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AlA• Document Is protected by U.S. Copyright Law and lrrtarnallonal Treaties. Unauthorized
reproduction or distribution of this AIA8 Document, or any portion of It, msy result In severe civil and c:r1mlnel penalties, and will be prosecuted to the 44
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 which
expires on 7/2312006, and is not for resale.
User Notes: Ciayeo A201 • Koll · lntellicenter - Dallas v2 {5--19·06) (986536188)
R.P. Appx. 384 73
§ 13.4.3 If any mediation or arbitration is commenced by either party hereunder to enforce the obligations of the
other party. then (a) the identity of the prevailing party in any such proceeding shall be determined by the mediator
or arbitrator (whichever is applicable). (b) such prevailing party shall be reimbursed by the nonprevailing party for
all of the prevailing party's reasonable out-of-pocket expenses incurred in connection therewith. including without
limitation reasonable attorneys' fees and (c) the mediator or arbitrator (whichever is applicable) shall be authori7.ed
to make an award of such expense in any such proceeding.
§ 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,
ordinances, rules, regulatjons or orders of public authorities having jurisdiction shall be made at an appropriate time.
Unless otherwise provided, the Contractor shall make arrangements for such test~. in~pections 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 A:-crutect Owner timely notice
of when and where tests and inspections arc to be made so that the Arel:liteel Owner may be present for such
procedures. The Owner shall bear costs of tests, inspections or approvals which do not be.c ome requirements until
after bids are received or negotiations concluded.
§ 13.5.2 If the ,'\J:ehiteot, Owner or public authorities having judsdiction determine that portions of the Work require
additional testing.• inspection or approval not included under Section 13.5.1, the A:el:iiteet will, l:ltJ9R writteR
atttherizati~;JR fram t:Re OwRer, Owner will instmct 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
t\Fel:li~eet Owner of when.and where tests and inspections are to be made so that the Archi~ect Owner may be present
for such procedures. Such costs, except as provided in Scct)on J 3.5.3, shall be at the Owner's expense.
§ 13.5.3Jf such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure of the
portions of the Work to comply with requirements established by the Contrac t Documents, all cos~s made necessary
by such failure including those of repeated procedures and cempeRsatioR fur the Architect's serYice!'i ana expeases
shall be at the Contractor's expense.
§ 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract
Documents, be secured by the Contractot and promptly delivered tb the Areftiteet.Owner.
§ 13.5.5 If the i\Fei:Hteet Owner is to observe tests, inspections or approvals required by the Contract DocumenLc;, the
Arcrutect OwneF,will do so promptly and, where practicable, at the normal place of testing.
§ 13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid
unreasonable delay in the Work.
§ 13.6 INTEREST
§ 13.6.1 Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at
such rate as the parties may agr;ee 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.
§ 13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
§ 13.7.1 As between the Owner and Contractor:
.1 Before Substantial Completion. As to act'> or failures to act occurring prior to the relevant date of
Substantial Completion , any applicable 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 such date of
Substantial Completion;
.2 Between Substantial Completion and Final Certificate for Payment. As to acts or failures to act
occurring subsequent to the relevant date of Substantial Completion and prior to issuance of the final
Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged
cause of action shall be deemed to have accrued in any and alJ events not later than the date e.f
insaaeee ef Owner is required to make the ftnal Certifieate fur Paymeet; payment hereunder; and
.3 After Final Certificate for Payment. As to acts or failures to act occurring after the reieY8flt date e.f
issaaaee of tl:le-final Certifisate fur Paymeat, payment, any applicable statute of limitations shall
AlA Document A2DtTM-t997. Copyright © 1911, 1915, 1918, 1925. 1937. 1951 , 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: Tills AlA• Document Is protected by U.S. Copyright Law and International Treatlea. Unauthorized 45
reproduction or dlatrlbuUon of thla AtA• Document, or any portion of It, may result In aevere c:lvll and c:rlmlnal penaltlea, and will be prosecuted to the
maximum extent possible under the law. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1 000182995_ 1 whicl)
expires on 7123/2006, and is not for resale.
User Notes: Clayco A201 • Koll • lntellicenter · Dallas v2 (5·19.06) (986536188)
R.P. Appx. 385 74
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 Section 3.5, the date of any correction of the Work or failure to correct the Work by
the Contractor under Section 12.2, or the date of actual commission of any other act or failure to
perform any duty or obligation 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 consecutive days
through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any
other persons or entities _performing portions of the Work under direct or indirect contract with th_
e Contractor, for
any of the following reasons:
.1 issuance of an order of a court or other public authority having jurisdiction which requires all Work to
be stopped;
.2 an act of government, s uch as a declaration of national emergency which requires all W<)rk to be
stopped;
.3 because the ~has not issued a Certitieale fer PaymeHl payment and has not notified
the Contractor of the reason for withholding eertifieatieH payment as provided in Section 9.4.1, or
because the Owner has not made payment eRa Certifieate fer Pa-ymeRt within the time stated in the
Contract Documents; or
.4 the Owner has failed to furnish to the Contractor promptly, upon the Contractor's request, reasonable
evidence as required by Section 2.2. 1.
§ 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor,
Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work
under direct or indir~t contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work
by the Owner as described in Section 14.3 constitute in the aggregate more than l 00 percent of the total number of
days scheduled for completion, or 120 days in any 365-day period, whichever is less.
§ 14.1.3 If one of the reasons described in Section 14.l.l or 14.1.2 exist~, the Contractor may, upon seven da-ys'
written notice to the Ow.Rer and Arehiteet, Owner. terminate the Contract and recover from the Owner payment for
Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and
machinery, including Feasonable o~·erhead, prefit aad eamages.Contractor's Fee based on the percentage set forth in
Section 5.1.2 of the Agreement on Work completed to date.
§ 14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a
Subcontractor or their agents or empJoyees or any other persons performing portions of the Work under contract
.with the Contractor because the Owner has persistently failed to fulfill the Owner's obligations under the Contract
Documents with respect to matters important to the progress of the Work, the Contractor may, upon Aevea additieAal
~written notice tb the Owaer aRd tRe Arehifeet; Owner. term.inate the Contract and recover from the Owner as
provided in Section 14.1.3.
§ 14.2 TERMINATION BY THE OWNER FOR CAUSE
§ 14.2.1 The Owner may terminate the Contract if tile Coatraetor::
.1 the Contractor persistently or repeatedly refuses or fails to supply enough properly skilled workers or
proper materials;
.2 the Contractor fai ls to make payment to Subcontractors for materials or labor in accordance with the
respective agreements between the Contractor and the Subcontractors;
.3 the Contractor persistently disregards laws, ordinances, or rules, regulations or arders of a public
authority having jurisdiction;
.4 a mechanic's or materialmen's lien, stop notice or other encumbrance is filed or served by a
Subcontractor. Sub-subcontractor or any person or entity claiming by. through or under Contractor
against the Land or the Project or any funds due Contractor, or any part thereof. and the lien, stop
notice or encumbrance is not discharged. insured over. or bonded off within 45 days after filing or
service. or
.4 otherwise is guilty of substantial bre_ach of a provision of the Contract Documents.
AlA Document A201 111 - 1997. Copyright © 1911 . 1915, 1918. 1925, 1937, 1951, 1958, 1961, 1963, 1'966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: This AIA1 Document Is protected by U.S. Copyright Law and International TrtaUea. Unauthorized 46
reproduction or distribution of this AtA• Document, or any portion of It, may reault In eevere civ il and criminal penalties, and will be prosecuted to the
mu imum extent possible under the IIIW. This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_ 1 whi,ch
expires on 7/2312006. and Is not tor resale.
User Notes: Clayoo A201 - Koll - lntellicenter - Dallas v2 (5·19·06) (986536188)
R.P. Appx. 386 75
Without limiting the foregoing. Contractor shall be in default (a "Contractor Default") allowing Owner to
terminate the-Contract if Contractor fails to perform any obligation under the Contract Documents and does
not correct such failure within five (5) working days following written notice thereof.from Owner;
provided. however. no Contractor Default shall occur if the matter is not subject to being cured within such
five (5) day period. but Contractor ha~ promptly begun the correction thereof and diligently proceeds to the
correction thereof within thirty (30) working days. In the event of Contractor's Default, Owner may.
without prejudice to any other rights or remedies Owner may have. hold in abeyance further payments to
Contractor to the extent reac;onably deemed necessary by Owner to correct any Contractor Default and/or
terminate Contractor's right to continue performance of the Contract Documents by written notice to
Contractor specifying the date of termination. In the event of such termination. Owner may take possession
of the Work at the job site and any or all materials and equipment (whether delivered to the job site or on
order therefore by Contractor). tools and construction equipment at the job site and finish the Work by
whatever method Owner may deem expedient.
In the event of termination by Owner, Contractor shall, upon request by Owner. promptly advise it of all
outstanding subcontracts, rental agreements and purchase orders which Contractor has with others
pertaining to performance of the Project and furnish Owner with complete copies thereof. Upon .request by
Owner. Contractor shall assign to Owner. in form and content reasonably satisfactory to Owner.
Contractor's title to materials and equipment for the Project and those subcontraqs designated by Owner.
In the event of termination by Owner, Contractor shall not be entitled to receive any further payment until
the Project is completed. Upon completion and final acceptance of the Project, Owner will determine the
total cost incurred .in comp.leting the Project including, without limitation, additional overhead. legal and
other costs incurred by Owner to effect such termination and to complete the Project. If the total costs noted
above exceed the balance of the Contract Sum unpaid at the time of the termination. Contractor shall.
promptly after receipt of an invoice. pay to Owner the amount of such excess. Owner shall have the right
and is authorized to set-off against and deduct from any excess payable to Contractor any other damages
sufferetl. by Owner due to said default or event giving rise to the termination or due to othe'r defaults of
Contractor in complying with the terms of the Contract Documents. Contractor shall continue to be fully
liable for all such other damages to Owner. A waiver by Owner of one default by Contractor shall not be
considered to be a waiver of any subsequent default by Contractor. nor be deemed to amend or modify the
terms of the Contract Documents. Contractor expressly waives any formal notice by Owner of Contractor's
failure to perform, or passive breach of, Contractor's express obligations under the Contract Documents.
Contractor agrees that upon ·commencement of a case, receivership, civil action or other proceeding hy or
against Contractor under state. federal or other applicable insolvency Jaw and if such case is not dismissed
within thirty (30) days thereafter, or upon any general assignment by Contractor for the benefit of its
creditors. Owner may, in its sole discretion. treat Contractor as in default and may exercise any of the
remedies of this Section 14.2.1. In the event Owner's remedies are Jimited by the commencement by or
against the Contractor of a case under any chapter of the United States Bankruptcy Code, Contractor
stipulates. acknowledges and agrees that time is of the essence in determination of whether the Contract
Documents should be "assumed" or "rejected." within the meaning of ll U.S.C. § 365; and Contractor
therefore further stipulates and agrees that subject only to calendaring constraints of the Bankruptcy Court
having jurisdiction. it will take all necessary action to cause the assumption or rejection of the Contract
Documents on or before the thirtieth day following the filing of the Petition commencing any such case. In
such event if Contractor seeks to "assume" the Contract Documents, Contractor expressly stipulates,
acknowledges and agrees that "adequate assurance of future performance" within the meaning of 11 U.S.C.
§ 365 (b)(l )(C) means a determination that there is no foreseeable ljkelihood that there will be any further
interruption of Contractor's performance under the Contract Documents following its assumption.
In the event Owner dctcnnines, in its rea~onable discretion; that Contractor has become insolvent or is in
danger of becoming insolvent, then Owner is authorized, but not required. to make direct payment to
Contractor's subcontractors with resoect to any current or pa~t-due invoices then outstanding.
Alternatively, Owner may. in its sole discretion. require that agreements between Contractor and any such
subcontractor be assigned to Owner. and Contractor hereby authorizes and consents to any such
assignment. Owner shall be entitled to full credit against any obligations to Contractor for any payments
made to any subcontractor under this Section. whether made pursuant to assigned subcontracts or
AlA Document A20tTM -1997. Copyright @ 1911 , 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American
Institute of Architects. All rights reserved. WARNING: Thla AlA• Document It protected by U.S. Copyright law and International Treatlea. Unauttiorlzctd 47
reproduction or dlttrlbutlon of thla AlA"' Document, or any portion ollt, may result In severe civil and criminal penaiUu, and will be prosecuted to the
maximum extent possible under the 1- . This document was produced by AlA software at 14:42:43 on 05/19/2006 under Order No.1000182995_1 which
expires on 7/23/2006, and Is not for resale.
User Notes: Clayco A201 - Koll - lntelllcenter · Dallas v2 (5· 19·06) (986536188)
R.P. Appx. 387 76
otherwise. Title to any materials or equipment for which such direct payment is made shall pass directly
from such subcontractor to Owner.
§ 14.2.2 When any of the above reasons exist, the Ov3 Wall Sections 312612007
AB-<>4 Wall Sections :l/2612007
A9- view this page U!ling Firefox, Chrome. Safari, or an earlier version of Internet
Explorer if rltli.'I.'SSary while we worl. on the solution. lm;tructions lo view result:. in Mit:rosoll
Internet Explor<:r 11
Enter your search criteria
lUg II: BR Firm Name: Cluyco City: SL Louis Stwte: "u Zip: 63114
Sclcc.ot Prof~:-11:;ion ~
There Is No Re.'l\111 Based On Your Search Crhet!a.
R.P. Appx. 413
hitps-Jibizreg.tbae.!rulle.ll<.IJ$/Homc/llu_