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Hard Rock Hotel Holdings - Construction Management And General Contractor's Agreement
Exhibit 10.1
CONSTRUCTION MANAGEMENT AND
GENERAL CONTRACTOR' S AGREEMENT
between
HRHH HOTEL/CASINO, LLC &
HRHH DEVELOPMENT, LLC Owner,
and M.J. DEAN CONSTRUCTION, INC.
Contractor
(License #0032338)
Project:
Hard Rock Hotel & Casino Renovation and Expansion
Las Vegas, Nevada
As of February 22, 2008 Jones Day
222 East 41st Street
New York, New York 10017
TABLE OF CONTENTS
Page
ARTICLE 1.
Contract Documents 3
ARTICLE 2.
General Provisions and Definitions 5
ARTICLE 3.
Contractor' s Compensation 9
ARTICLE 4.
Items Included in Costs 12
ARTICLE 5.
Items Not Included in Costs (Non-Reimbursables) 16
ARTICLE 6.
Schedule of Work and Early Occupancy 17
ARTICLE 7.
Contractor' s Work and Warranty 26
ARTICLE 8.
Subcontracting of the Work 39
ARTICLE 9.
Discount, Rebates and Refunds 42
ARTICLE 10.
Accounting Records 42
ARTICLE 11.
Application for Payment 42
ARTICLE 12.
Assignment 47
ARTICLE 13.
Liens and Claims 48
ARTICLE 14.
Events of Default and Termination or Suspension of Agreement 49
ARTICLE 15.
Bonds 53
ARTICLE 16.
Management of the Work by Contractor and Owner 54
ARTICLE 17.
Consultants 54
ARTICLE 18.
Applicable Laws 54
ARTICLE 19.
Insurance 55
ARTICLE 20.
Owner' s Elections 56
ARTICLE 21.
Materials and Equipment 57
ARTICLE 22.
Substitutions 58
ARTICLE 23.
Changes in the Work 60
ARTICLE 24.
Inspection and Testing 63
ARTICLE 25.
Ownership and Use of Documents; Confidentiality 65
ARTICLE 26.
Nondisclosure 66
ARTICLE 27.
Right to Perform Work and to Award Separate Contracts; and Cooperation With Separate Contractors 66
ARTICLE 28.
Terrorist Acts 68
ARTICLE 29.
Additional Provisions 68
DEFINED TERMS INDEX 77 SCHEDULES " 1-A," " 1-B," and " 1-C" Project Site (Legal Description)
EXHIBIT " A" Work Authorization
EXHIBIT " B" Subcontract Approval Letter
EXHIBIT " C-1" Form of Contractor Payment and Performance Bonds
EXHIBIT " C-2" Form of Subcontractor Payment and Performance Bonds
EXHIBIT " D" Phase I Environmental Site Assessment
EXHIBIT " E" General Conditions Work Items
EXHIBIT " F" Insurance Requirements
EXHIBIT " F-1" Project Insurance Manual
EXHIBIT " G-1" Conditional Waiver and Release Upon Progress Payment
EXHIBIT " G-2" Unconditional Waiver and Release Upon Progress Payment
EXHIBIT " G-3" Conditional Waiver and Release Upon Final Payment
EXHIBIT " G-4" Unconditional Waiver and Release Upon Final Payment
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TABLE OF CONTENTS
Page
EXHIBIT " H" Major Subcontractor's Consent
EXHIBIT " I" Subcontract Form
EXHIBIT " J-1" General Contractor' s Consent
EXHIBIT " J-2" General Contractor' s Certificate
EXHIBIT " J-3" Form of Anticipated Cost Report
EXHIBIT " J-4" AIA Form G702 Application For Payment
EXHIBIT " J-5" Contractor' s Affidavit
ii
THIS AGREEMENT is made as of the day of February, 2008, by and between HRHH HOTEL/CASINO, LLC , and HRHH DEVELOPMENT, LLC, each a Delaware limited liability company, and each having an office c/o Morgans Hotel Group, 4185 Paradise Road, Las Vegas, Nevada 89169 (collectively " Owner" ) and M.J. Dean Construction, Inc., a Nevada corporation, having an office at 5055 W. Patrick Lane, Suite 101, Las Vegas, Nevada 89118 (" Contractor" ).
W I T N E S S E T H :
WHEREAS , Owner is the owner in fee simple of two (2) parcels of land, one comprised of approximately 16.7 acres and the other comprised of approximately 23 acres (collectively the " Project Site" ) located on the intersection of Paradise Road and Harmon Avenue, within the area in Las Vegas, Nevada commonly referred to as the " Harmon Corridor" , which Project Site is described on Schedules " 1-A," " 1-B," and " 1-C" annexed hereto; and
WHEREAS , a portion of the Project Site is currently improved by the existing 11 story Hard Rock Hotel & Casino Tower and other amenities and improvements (the " Existing Improvements" ); and
WHEREAS , Owner intends to undertake a major renovation of, and expansion to and around, the Existing Improvements generally described as (i) the Phase I-A Shell Expansion, (ii) Tenant Improvement Packages, (iii) Drainage Channel Improvements, (iv) South Parking Garage Improvements, (v) Central Plant Improvements, (vi) Meeting Rooms, (vii) North Tower Expansion (viii) South Tower/Podium, (ix) Casino Expansion, (x) Joint Remodel, (xi) New Pool West, and (xii) certain other development comprised of the construction of related parking, retail and other amenities and improvements (hereafter collectively referred to as the " Work" ); which Work is sometimes referred to as (the " Project" ); and
WHEREAS , Contractor has been advised that, under separate agreement, Owner has retained the services of Klai Juba Architects, Ltd. (" Architect" ) as Architect of record and will retain, or cause Architect to retain the services of (i) one or more mechanical engineering firms, (ii) one or more structural engineering firms, (iii) one or more civil engineering firms, (iv) a vertical transportation consulting firm, (v) an electrical engineering firm, and (vi) a fire suppression engineering firm (which Architect and engineering firms are sometimes hereafter referred to as the " Design Team" ) to perform all requisite programming, architectural and engineering design, oversight and other design-related services, and to prepare (for approval by Owner) preliminary and final design plans, specifications, working drawings and other construction documents for the Project (the " Construction Documents" ); and
WHEREAS , Contractor has been advised that, under separate agreements, Owner intends to retain or cause Architect to retain the services of geotechnical, environmental, conceptual design, interior design, acoustical, landscaping, code, lighting, signage, graphics, interior, laundry, kitchen, life-safety, low-voltage and audio, security, and wind tunnel consultants as well as such other consultants as Owner may deem necessary and proper in the interest of the Project (collectively, " Consultants" ); and
CONSTRUCTION MANAGEMENT AND GENERAL CONTRACTOR' S AGREEMENT
WHEREAS , Contractor has been advised that, pursuant to this Agreement Owner intends to retain Contractor to perform the " Pre-Construction Phase" services for the Project, as well as the " Construction Phase" services for the Work (which Pre-Construction Phase services and Construction Phase services are hereafter individually and collectively referred to as the " Work" ); and
WHEREAS , Contractor acknowledges that during the course of the Pre-Construction Services (as defined in Section 7.1) and Construction Phase (as defined in Section 7.2) required pursuant to this Agreement, Owner will separate the overall Project into different, discrete sub-projects and tasks (each of which is referred to herein as a " Project Phase" ). A Project Phase may consist of an entire independent portion of the Project (such as a parking garage) or may consist of a portion of the Work required with respect to the Project or a Project Phase (such as the installation of elevators). Owner and Contractor agree that as and when the Construction Documents are at least 80% complete for each Project Phase and the scope of Work, related Guaranteed Maximum Cost and Completion Dates for each Project Phase are agreed to by Owner and Contractor (subject to Owner' s right to elections in ARTICLE 20), Owner and Contractor shall execute a written Work Authorization defining and setting a Guaranteed Maximum Cost (as defined in Section 20.1, and Completion Date for the applicable Project Phase. Each such Work Authorization (" Work Authorization" ) that is entered into from time to time by Owner and Contractor shall become a part of this Agreement and shall be deemed to be incorporated herein in its entirety by this reference. Each Work Authorization shall be substantially in the form of Exhibit " A" attached hereto and shall identify the Project Phase, the scope of Work to be provided by Contractor pursuant to such Work Authorization, the Progress Schedule for commencement and for completion of the Work under the relevant Work Authorization (including the Substantial Completion Date and the Final Completion Date), the separate, individual Guaranteed Maximum Cost for the Project Phase under the relevant Work Authorization, a Schedule of Values in a form acceptable to Owner, daily liquidated damages amount and applicable cap, Contractor' s continued representation regarding Concealed Conditions under Section 2.6 hereof, owner controlled insurance policy (" OCIP" ) reconciliation requirement, Contractor' s list of assigned supervisory personnel, and any other particular terms relevant to the Work to be performed by Contactor for the Project Phase pursuant to such Work Authorization. Contractor acknowledges that Owner may eliminate some Project Phases and proceed with only some of the Project Phases at any given time (and may sequence their construction) and that Owner reserves the right to eliminate or reduce the scope of any Project Phase (so long as such Phase is not already the subject of an executed Work Authorization) without eliminating others or terminating the entire Project; provided, however, that in the event that Contractor believes any of the above actions by Owner will necessitate additional time and/or expense to perform the Work under any other Work Authorization(s), Contractor shall promptly report the extent of the requested increase in cost or time to Owner and the request will be handled pursuant to ARTICLE 23. Contractor will be responsible for the construction for each Work Authorization with which Owner chooses to proceed, as well as the overall coordination and integration of the construction of each subject Project Phase with the other Project Phases and with the existing structures and conditions at the Project Site. WHEREAS , Contractor has been advised that (i) Owner has obtained and may hereafter obtain funding for the Project through one or more institutional lenders or through others (which institutional lenders and/or others providing funding for the Project are hereafter collectively
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CONSTRUCTION MANAGEMENT AND GENERAL CONTRACTOR' S AGREEMENT
referred to as " Lender" ), and (ii) as a condition to the procurement of such funding, Lender' s review and approval of this Agreement, as well as the design and construction of the Project may be required; and
WHEREAS , Contractor understands that in the interest of the timely and economic development of the Project, the design and construction of portions of the Project may proceed, and be implemented on, a " fast track and/or design-assist" basis (as such term is defined in Section 2.5 hereof); and
WHEREAS , Contractor desires to be retained by Owner to perform the Work, all as set forth in this Agreement and the other Contract Documents (as such term is defined in ARTICLE 1 hereof).
NOW , THEREFORE , in consideration of the mutual covenants and agreements contained herein, Contractor and Owner hereby agree as follows:
ARTICLE 1. CONTRACT DOCUMENTS
1.1. Contract Documents
The contract documents (collectively, the " Contract Documents" ) shall consist of the following:
(a) This Agreement, including the Exhibits annexed hereto;
(b) The Construction Documents as identified in the applicable Work Authorization; (c) The Environmental Report (as such term is defined in Section 2.7 hereof); (d) The subcontract approval letter set forth in Exhibit " B" annexed hereto, or such other form of approval letter as Owner may elect to use to evidence its approval of the award of Subcontracts to Subcontractors (as such terms are defined in ARTICLE 8 hereof) (the " Subcontract Approval Letter" );
(e) Change Orders and Directives (as such terms are defined in ARTICLE 23 hereof);
(f) The payment and performance bonds required to be provided by Contractor in accordance with the provisions of ARTICLE 15 hereof in the form set forth in Exhibit " C-1" annexed hereto; (g) The payment and performance bonds if required by Owner to be provided by Subcontractors in accordance with the provisions of Section 15.2 hereof in the form set forth in Exhibit " C-2" annexed hereto;
(h) The Progress Schedule (as such term is defined in subsection (c) hereof) for each Work Authorization to be prepared by Contractor in consultation with the Design Team and
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CONSTRUCTION MANAGEMENT AND GENERAL CONTRACTOR' S AGREEMENT
submitted to Owner for approval in accordance with the provisions of said subsection (c) for the construction, " Substantial Completion" (as such term is defined in Section 6.2(a) hereof) and " Final Completion" (as such term is defined in 6.2(d) hereof) of the various components of the Work Authorization, as the same may be updated, modified and/or extended subject to Owner' s prior written approval in each instance in accordance with the provisions of this Agreement; and
(i) [Purposely deleted.]
(j) Executed Work Authorization(s).
1.2. The Contract Documents form the contract between Owner and Contractor. References in the Contract Documents to " the Contract" or " this Contract" shall be deemed to include all of the Contract Documents. References to " this Agreement" or " the Agreement" shall refer to this instrument, which is one of the Contract Documents.
1.3. The intent of the Contract Documents is to include in the Work all labor, materials and supplies, insurance, tools, equipment, permits, licenses, taxes, approvals, transportation, testing, field surveying and other services and any other items required in connection with the satisfactory performance, execution and Final Completion of the Work in accordance with the Contract Documents. Items, details or other similar matters not expressly included in the Contract Documents but which are reasonably inferable therefrom as being necessary to produce the intended results shall be deemed included as a part of the Work.
1.4. The Contract Documents are complementary, and what is called for by one shall be as binding as if required by all. In the event of any conflict or inconsistency within or between parts of the Contract Documents, Contractor shall notify Owner of the conflict and obtain Owner' s direction as to its resolution before proceeding with any affected Work. Contractor shall be entitled to rely on the accuracy and completeness of the Contract Documents, as well as the compliance of such documents with applicable laws, statutes, ordinances, building codes, and rules and regulations.
1.5. Words and abbreviations which have well known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings.
1.6. If any conflicts or ambiguities are found by, or are apparent to, Contractor in or between the Construction Documents, the Construction Documents and any other of the Contract Documents, or between the Construction Documents and existing conditions at the Project Site, Contractor immediately shall bring the same to the attention of Owner and the appropriate members of the Design Team. It is agreed that such members of the Design Team, in consultation with Owner and subject to Owner' s approval, shall be the interpreter(s) of the Construction Documents and shall resolve any such conflicts and ambiguities. Any Work relating to any such conflict or ambiguity which is performed either by Contractor or by any Subcontractor prior to the timely resolution of the same, as provided herein, shall be at Contractor' s sole risk, cost and expense.
1.7. Modifications to parts of the Construction Documents are for the purpose of varying, modifying, rescinding or adding to the Construction Documents. All modifications should be read together with the portions of the Construction Documents to which they pertain.
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CONSTRUCTION MANAGEMENT AND GENERAL CONTRACTOR' S AGREEMENT
1.8. The drawings and specifications comprising the Construction Documents are complementary. Anything shown in any drawings and not mentioned in the specifications, or mentioned in any of the specifications and not shown in the drawings, shall have the same effect as if shown or mentioned in both. Likewise, if the drawings call for a greater quantity or higher quality than the specifications, or if the specifications call for a greater quantity or higher quality than the drawings, then the greater quantity or higher quality, resulting in the most favorable interpretation to Owner, shall prevail.
1.9. [Purposely Deleted]
1.10. The layout of mechanical and electrical systems, equipment, fixtures, piping, ductwork, conduits, specialty items and accessories indicated on the Construction Documents is diagrammatic. The actual scope of the Work shall be carried out so as not to affect Architectural and structural integrity and limitations of the Work and shall be performed in such sequence and manner so as to avoid conflicts and provide clear access to all control points, including valves, strainers, control devices and specialty items of every nature related to such systems and equipment. If Contractor discovers or has knowledge of (i) any conflicts in or between the Shop Drawings (as such term is defined in Section (m) hereof), the coordination drawings or the Construction Documents, or (ii) any conflicts between any of the foregoing documents and existing conditions at the Project Site, Contractor immediately shall bring the same to the attention of Owner and the appropriate members of the Design Team for resolution in the manner provided in Section 1.6 hereof. Any Work relating to any such conflict which is performed by Contractor or by any Subcontractor prior to the resolution of the same, as provided in said Section 1.6, shall be at Contractor' s sole risk, cost and expense.
ARTICLE 2.
GENERAL PROVISIONS AND DEFINITIONS
2.1. Construction Management Services . Contractor shall perform all professional construction management services described in this Agreement. Each Project Phase will be developed into a detailed design and construction program and further refined as the preparation of the Construction Documents progresses so as to include, and further define, (i) the scope, parameters and anticipated timing for the Work, and (ii) Owner' s and Contractor' s understanding of the quality of the materials and workmanship required and expected. Contractor represents that (i) it has acquainted itself with the general scope of the Project and (ii) it has inspected the Project Site, the Existing Improvements, the location of adjacent improvements, structures and utilities and access to and from the Project Site and it is familiar with their physical condition. Such inspections are for the purpose of facilitating construction by Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or omissions of a material nature actually discovered by Contractor shall be reported promptly to Owner or Design Team.
2.2. General Contracting Services (a) In addition to the services referred to in Section 2.1 hereof, and except as otherwise provided herein, Contractor also shall perform and/or furnish, or cause to be
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CONSTRUCTION MANAGEMENT AND GENERAL CONTRACTOR' S AGREEMENT
performed and/or furnished, as hereinafter provided, all general contracting services, including, all labor, materials and supplies, also shall perform and furnish all of the General Conditions Work Items identified as a part of General Conditions Costs (as such terms are defined in subsection (a) hereof), and also shall provide all services, business administration and supervision, necessary for, or incidental to, the successful prosecution and Substantial Completion and Final Completion of the Work for each Project Phase in accordance with the applicable Work Authorization, in the most expeditious and economical manner, consistent with (i) the standards and construction practices observed by general contractors of comparable stature to Contractor on projects of similar scope to the Project within the " Las Vegas" metropolitan area, and (ii) the interests of Owner relating to quality, timely completion and economics. The Work shall be performed and executed in the best and most workmanlike manner by qualified and efficient workers, and in strict conformance with the Contract Documents. Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures relating to the proper execution of the Work, except when such means, methods, techniques, sequences and procedures are expressly set forth in the Construction Documents. Owner agrees to exercise its best efforts to enable Contractor to perform the Work in the best way and most expeditious manner by among other things, furnishing and approving, in a timely manner, information reasonably required by Contractor, releasing areas of the Project and otherwise sequencing the Project Phases, as required by Contractor so as not to delay the progress of the Work, and making payments to Contractor in accordance with the requirements of the Contract Documents.
(b) Contractor shall at all times maintain labor harmony at the Project Site. Should workers employed by Contractor or any Subcontractor not work in harmony with other workers performing labor or services at the Project Site and should they engage or participate in or cause any strike, work stoppage, delay, suspension of the Work or any other interference with the smooth progress of the Work or other work being performed at the Project Site by union or non-union labor, or otherwise fail to perform or are prevented from performing labor or services by reason of labor disharmony or otherwise prevent others from performing labor or services by reason of labor disharmony, then, in any such event, Owner shall have the right, in its sole and absolute discretion and without prejudice to any other rights and remedies it may have elsewhere under the Contract Documents, at law or in equity, to terminate this Agreement in accordance with the provisions of Section 14.1 hereof. This subsection (b) shall not be construed to obligate Contractor to supervise or take responsibility for the labor practices of others with whom it has no contractual relationship.
2.3. Trust Relationship . Contractor (i) agrees to furnish its best skill and judgment in connection with the Project, and (ii) agrees to cooperate reasonably with Owner, the Design Team, Consultants and Lender in the interests of the timely and economic completion of each Project Phase. Owner understands and agrees that its assistance and cooperation is essential to Contractor' s successful and timely completion of the Work. Owner and its agents shall be available upon twenty-four (24) hours notice during business hours during business days to review and discuss any issues or questions that may arise during Contractor' s performance of the Work. Should Owner be unavailable, the time fixed for completion shall be equitably extended for delays actually documented and directly caused thereby, and which shall be agreed upon in a Change Order.
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2.4. Avoidance of Nuisance . To the extent practical in connection with a Project of this size and scope, Contractor shall take such precautions as may be reasonably necessary to minimize the impact of noise, dust, truck traffic, nuisances and other consequences of construction activities. 2.5. Fast-Tracking/Design-Assist . It is understood and agreed that the Construction Documents may be developed and furnished by the Design Team to Contractor on a " fast-track" basis. The time requirements for the delivery of the various portions of the Construction Documents on a " fast-track" basis shall, if applicable, be reflected in the Progress Schedule for each Project Phase referred to in subsection 7.1(c) hereof. In addition, Contractor and Owner agree that certain Work will be performed on a " design-assist" basis to include shop drawings or detailing as customarily performed by subcontractors. Contractor hereby represents that it has all requisite expertise in the " fast-track and/or design-assist" method of construction and related " fast-tracking and/or design-assist" practices, understands that said representation has served as a material inducement in Owner' s selection, and retention of the services, of Contractor hereunder. Contractor expressly recognizes that the " fast-track and/or design-assist" method of design and construction may require Contractor to prepare, issue and analyze bid packages for trade labor that is different from, or is in excess of the number of, bid packages ordinarily required under standard construction practices and hereby agrees to prepare, issue and analyze the same, if and as needed, in a timely manner. It is understood and agreed that " fast-track" means that portions of the Design Team' s preparation of portions of the Construction Documents will overlap with the construction of the Work.
2.6. Concealed Conditions . If conditions are encountered at the Project Site which are (i) subsurface or otherwise concealed physical conditions which differ materially from facts or information of which Contractor has actual knowledge or which are reasonably foreseen or inferable from such knowledge or (ii) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents (all causes identified in clauses 2.6(i) and 2.6(ii), hereinafter the " Concealed Conditions" ), then, Contractor shall give Owner notice of such conditions prior to materially disturbing the same (in no event later than twenty-one (21) days after first observance of the conditions). Owner shall investigate the site conditions promptly after receiving the notice. If the conditions do materially differ and if they do actually cause an increase or decrease in Contractor' s cost or the time required for performing any part of the Work, an equitable adjustment shall be made and a written Change Order executed. If Owner and Contractor cannot agree on adjustment within ten (10) days, the adjustment shall be referred to further proceeding pursuant to this Agreement. 2.7. Hazardous Materials
(a) Contractor acknowledges that Owner has retained the services of IVI Due Diligence Services, Inc., to act as its environmental Consultant who has prepared a Phase I Environmental Site Assessment dated November 28, 2006 and further described in the attached Exhibit " D" (the " Environmental Report" ) identifying any and all Hazardous Materials (hereafter defined) located on or about the Project Site. Contractor also acknowledges it has received a copy of said Environmental Report and agrees that, at Owner' s option and as part of the Work, it shall be responsible, to the extent identified in the Environmental Report, for removing or
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otherwise remediating soil and oil pits, the cost of which shall be included in the Costs and the Guaranteed Maximum Cost. If Owner exercises its option to have Contractor be responsible for said remediation, Contractor and the Subcontractor to whom performance of such portion of the Work is awarded shall work closely with the environmental Consultant, who will observe the execution of such portion of the Work and provide contact and compliance with regulatory environmental entities all to the end so as to render the Project Site free of Hazardous Materials. Contractor further acknowledges that the continued sound environmental condition of the Project Site and its compliance with Environmental Laws (hereinafter defined) is of paramount importance to Owner and Lender and represents that at all times in its performance of the Work, it will refrain from causing or permitting any Hazardous Materials to be generated, produced, brought, used, stored, treated, discharged, released, spilled or disposed of upon, in, under, or about the Project or the Project Site which is, in any case, in violation of Environmental Laws or otherwise cause or permit the violation of any Environmental Law in connection with the performance of the Work at the Project Site, unless the Contract Documents require use of such Hazardous Materials. Contractor shall comply with all Environmental Laws for the dredge, turbidity protection, proper drainage and filtering, spoil disposal and spoil mixing and placement, all as proscribed for the Project Site under the applicable environmental mitigation plan. If Contractor or Subcontractor encounters on the Project Site material believed to be toxic or Hazardous Materials (as defined below), it will immediately stop Work in the affected area and report the condition to Owner in writing. The Work in the affected area will be resumed when the Hazardous Materials have been removed or rendered harmless.
(b) Contractor hereby agrees to immediately stop remedial work in the affected area and to notify Owner of any adverse discrepancy between the Hazardous Materials found at the Project Site and the Hazardous Materials identified in the Environmental Report. Contractor hereby represents that if Owner exercises its option to have Contractor perform any work relating to the removal of Hazardous Material, then, in such event, all Subcontractors engaged by Contractor to perform such Work will be qualified to carry out and perform such Work by reason of the fact that such Subcontractors will possess and comply with all licensing, registration, certification, reporting, notification, training, testing, disposal and any other requirements governing the performance of such Work, all as required by the Environmental Laws. If the Work is stopped pursuant to this Section 2.7, Contractor shall be entitled to an equitable adjustment of the Progress Schedule and to an adjustment for extra costs incurred as a result of such stoppage, which will be agreed upon in a written Change Order.
(c) Subject to Contractor' s and its Subcontractor' s compliance with the requirement that remedial Work be immediately stopped in an area affected by Hazardous Materials differing from those identified in the Environmental Report, to the fullest extent permitted by law, Owner shall indemnify and hold Contractor and its Subcontractors harmless against claims, damages, losses and expenses, including, but not limited to attorneys' fees, arising out of or resulting from the presence of Hazardous Materials differing in an adverse manner from those identified in the Environmental Report and not introduced to the Project Site by Contractor or its Subcontractors (unless Hazardous Materials were required by the Contract Documents).
(d) For purposes of this Agreement, " Hazardous Materials" shall mean (i) petroleum and its constituents; (ii) radon gas, asbestos in any form which is or could become friable, urea formaldehyde, asbestos products, foam insulation, transformers or other shipment which contain
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dielectric fluid containing levels of polychlorinated biphenyls in excess of federal, state or local safety guidelines, whichever are more stringent; (iii) any substance, gas, material or chemical which is or may hereafter be defined as or included in the definition of " hazardous substances" , " hazardous materials" , " hazardous wastes" , " pollutants or contaminants" , " solid wastes" or words of similar import under any Environmental Law; and (iv) any other chemical, material, gas or substance, the exposure to or release of which is regulated by any Governmental Authority (hereafter defined).
(e) For purposes of this Agreement, " Environmental Laws" shall mean all applicable requirements relating to the protection of human health or the Environment, including, without limitation, requirements relating to reporting, licensing, permitting, investigation and remediation of any Release or Threat of Release of Hazardous Materials, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials or pertaining to the protection of the health and safety of employees or the public, as such requirements are contained in all applicable federal, state and local environmental, public health, and safety laws, regulations, orders, permits, licenses, approvals, ordinances and directives now or hereafter in effect. 2.8. Utilities and Continued Operation of the Existing Improvements . Contractor understands that maintenance of the integrity and continuous and uninterrupted functionality and operation of the Existing Improvements, including, without limitation, all utilities servicing the Project Site and adjacent property, is of critical importance and agrees to perform the Work in a manner consistent with said understanding and not unreasonably interfering with the same. Nevertheless, it is understood and agreed that there will be times during the Work when there will be interruptions to the utilities servicing the Project Site and adjacent property. Contractor agrees to use its best efforts to minimize such interruptions and the impacts caused thereby and to provide Owner at least seven (7) days' prior written notice of such interruptions. ARTICLE 3.
CONTRACTOR' S COMPENSATION
3.1. Demolition Work . Owner and Contractor entered into an AIA Construction Agreement for the demolition of the paradise Bay Club Apartments. Contractor shall be compensated for the performance of that demolition work in accordance with the terms of that separate agreement.
3.2. Pre-Construction Phase Compensation . Contractor has been compensated for the performance of the Pre-Construction Services performed prior to the execution of this Agreement and it is agreed that subsequent to execution of this Agreement, Contractor will perform Pre-Construction Services (as approved in advance by Owner). Owner shall, on a monthly basis, make payments for such Pre-Construction Phase services. 3.2.1. Any compensation paid by Owner to Contractor for the Pre-Construction Services provided by Contractor for each Project Phase of the Project shall be absorbed in any Guarantee Maximum Cost established for any such Project Phase and shall be included in the applicable Work Authorization.
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CONSTRUCTION MANAGEMENT AND GENERAL CONTRACTOR' S AGREEMENT
3.3. Construction Phase Compensation . Owner shall pay Contractor in current funds for Contractor' s performance of the Work required by this Agreement during the Construction Phase of the Project, the Contract sum consisting of the Cost of the Work as defined in ARTICLE 4, and Contractor' s Fixed Fee of 4% (" Fixed Fee" ) of the Cost of the Work, which Contract sum may be subject to a Guaranteed Maximum Cost Work Authorization and to the Owner' s Elections as set forth in ARTICLE 20 below. 3.3.1. Change Order Fee. Subject to the provisions of ARTICLE 23, Contractor' s Fixed Fee on Change Orders is four percent (4%). Work Authorizations are not Change Orders, therefore, this subsection is not applicable to Work Authorizations.
3.3.2. Self-Performed Work . Owner and Contractor acknowledge and agree that Contractors Fixed Fee excludes any overhead and profit that Contractor shall receive for portions of the Work that Contractor self-performs which may include concrete, drywall, studs, painting, doors and hardware, and any other trades that Owner and Contractor mutually agree upon (the " Self-Performed Work" ). In addition to its Fixed Fee, Contractor shall be entitled to receive a self-perform fee equal to 12.5% of the Costs of the Work for any Self-Performed Work.
3.3.3. Owner Provided Materials and Equipment . In the event that Work includes materials or equipment fur...
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