Agreement Between Owner And Contractor

AIAae Document A111 TM - 1997


Standard Form 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 6th

day of

September

in the year Two Thousand and Six

(In words, indicate day, month and year)


BETWEEN the Owner:

(Name, address and other information)


NORTHFIELD WINDSOR LLC

151 Farmington Avenue

Hartford, CT 06106

Attn: Ronald E. Falkner


and the Contractor:

(Name, address and other information)


JOHN MORIARTY & ASSOCIATES, INC.

25 New Britain Avenue

Unionville, CT 06085

Attn: Raymond C. Galvin


The Project is:

(Name and location)


ING Regional Office Headquarters, Windsor, Connecticut


The Architect is:

(Name, address and other information)


Spagnolo/Gisness Architecture LLC

200 High Street

Boston, MA 02110

Attn: Al Spagnolo


The Engineer is:

(Name, address and other information)


F.A. Hesketh & Associates, Inc.

6 Creamery Brook

East Granby, CT 06026

Attn: David Ziaks


The Owner and Contractor agree as follows:


AIA Document A11199 1997. Copyright a9 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects . All rights reserved. WARNING: This AIAae Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAae Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 10:01:05 on 04/12/2006 under Order No.1000220641_2 which expires on 2/21/2007, and is not for resale.

User Notes: (3986435044)


1


ARTICLE 1 THE CONTRACT DOCUMENTS

The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement; these form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract 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, including the Pre-Construction Services listed in Exhibit Q attached hereto and incorporated herein, except to the extent specifically indicated in the Contract Documents to be the responsibility of others. The Contractor' s services shall be performed in conjunction with and in coordination with the services of a Construction Manager designated by Owner, which shall initially be Trammell Crow Company (" Construction Manager" ). References to the Construction Manager herein shall be deemed to include the Construction Manager as Owner' s representative. The designation of a Construction Manager to administer this Agreement, in no way, affects the responsibilities, obligations, rights and liabilities of the Architect under this or any other agreement, including, without limitation, Architect' s responsibility and obligation to review and approve Applications for Payment and to assure that the Project and the Work is completed in accordance with applicable requirements as set forth in this and all other agreements related to the Project.


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 perform the Work in an expeditious and economical manner consistent with the Owner's interests. The Owner agrees to furnish and approve, in a timely manner, information required by the Contractor and to make payments to the Contractor in accordance with the requirements of the Contract Documents.


ARTICLE 4

DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION

a7 4.1 Although this Agreement is entered as of the date first above written, the date of commencement of the Work was January 3, 2006 .


a7 4.2 The Contract Time is set forth on the Construction Schedule.


a7 4.3 The Contractor shall achieve Substantial Completion of the entire Work in accordance with the Construction Schedule attached hereto as Exhibit F and incorporated herein, subject to adjustments of this Contract Time as provided in the Contract Documents.


ARTICLE 5

BASIS FOR PAYMENT

a7 5.1 CONTRACT SUM

a7 5.1.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract. The Contract Sum is the Cost of the Work as defined in Article 7 plus the Contractor's Fee.


AIA Document A11199 1997. Copyright a9 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects . All rights reserved. WARNING: This AIAae Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAae Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 10:01:05 on 04/12/2006 under Order No.1000220641_2 which expires on 2/21/2007, and is not for resale.

User Notes: (3986435044)


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a7 5.1.2 The Contractor's Fee is: 2.75% of the Cost of Work. The sum of the Contractor' s Fee, the Cost of Work and the cost of subguard bonding, as set forth in the Contract Documents, is not to exceed the Guaranteed Maximum Price set forth on Exhibit L, Schedule of Values, attached hereto and incorporated herein, subject to the provisions of this Article 5.


a7 5.1.3 If Contractor substantially completes the work on or before December 8, 2007, Contractor shall also be entitled to an additional incentive fee (" Incentive Fee" ), which Incentive Fee is calculated by multiplying (i) 0.35% by (ii) the actual Cost of the Work. For the purposes of this article, the December 8, 2007 timeline included herein shall not be extended for any reason, including, without limitation because of force majeure or any other reason allowed to extend any required timelines under this Agreement or any of the other Contract Documents. Provided that the sum of the Cost of the Work, the Contractor' s Fee and the cost of the subguard bonding does not exceed the Guaranteed Maximum Price and if Contractor is entitled to the Incentive Fee pursuant to this paragraph, then the sum of (i) the Cost of the Work, (ii) the Contractor' s Fee, (iii) the cost of subguard bonding, and (iv) the Incentive Fee may exceed the Guaranteed Maximum Price, but only to the extent of the amount of the Incentive Fee.


a7 5.2 GUARANTEED MAXIMUM PRICE

a7 5.2.1 The sum of the Cost of the Work, , the Contractor's Fee and the cost of subguard bonding is guaranteed by the Contractor not to exceed Seventy Million Five Hundred Fifteen Thousand Eight Hundred and Twenty Three Dollars ($70,515,823) (the " Guaranteed Maximum Price" ), subject to additions and deductions by Change Order as provided in the Contract Documents. The Guaranteed Maximum Price is also set forth on Exhibit L, Schedule of Values, attached hereto and incorporated herein. Such maximum sum is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without reimbursement by the Owner.


(Insert specific provisions if the Contractor is to participate in any savings.)

(a) If the sum of the Contractor' s Fee, the Cost of the Work and the cost of the subguard bonding is less than the Guaranteed Maximum Price, such savings shall accrue one hundred percent (100%) to the Owner.


a7 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: None.


(State the numbers or other identification of accepted alternates. If decisions on other alternates are to be made by the Owner subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when the amount expires.)


a7 5.2.3 Unit prices, if any, are as follows:


Description

Units

Price ($ 0.00)

See Exhibit L, Schedule of Values


a7 5.2.4 Allowances, if any, are as follows

(Identify and state the amounts of any allowances, and state whether they include labor, materials, or both.)


Allowance

Amount ($ 0.00)

Included items

See Exhibit G


a7 5.2.5 Assumptions, if any, on which the Guaranteed Maximum Price is based are as follows:


See Exhibit H


AIA Document A11199 1997. Copyright a9 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects . All rights reserved. WARNING: This AIAae Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAae Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 10:01:05 on 04/12/2006 under Order No.1000220641_2 which expires on 2/21/2007, and is not for resale.

User Notes: (3986435044)


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a7 5.2.6 To the extent that the Drawings and Specifications are anticipated to require further development by the Architect, the Contractor has provided in the Guaranteed Maximum Price for such further development consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order.


ARTICLE 6

CHANGES IN THE WORK

a7 6.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work may be determined by any of the methods listed in Section 7.3.3 of AIA Document A201-1997.


a7 6.2 In calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and "fee" as used in Section 7.3.3.3 of AIA Document A201-1997 and the terms "costs" and "a reasonable allowance for overhead and profit" as used in Section 7.3.6 of AIA Document A201-1997 shall have the meanings assigned to them in AIA Document A201-1997 and shall not be modified by Articles 5, 7 and 8 of this Agreement. Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts.


a7 6.3 In calculating adjustments to the Guaranteed Maximum Price, the terms "cost" and "costs" as used in the above-referenced provisions of AIA Document A201-1997 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 Contractor's Fee as defined in Section 5.1.2 of this Agreement.


a7 6.4 Changes in the Work accomplished by Change Order or Construction Change Directive shall not cause any modification to Contractor' s Fee, except as follows: to the extent the Work accomplished by Change Order or Construction Change Directive constitutes a change in the scope of work which requires Contractor to employ additional staff to complete such additional Work, then Contractor' s Fee shall be increased by 2.75% of the amount required for such additional staff; if such changes result in a decrease in the Guaranteed Maximum Price, then Contractor' s Fee shall not be reduced, it being understood and agreed that Contractor' s Fee shall not be subject to any reduction by reason by any savings achieved by Contractor in the Cost of the Work or changes in scope.


ARTICLE 7

COSTS TO BE REIMBURSED

a7 7.1 COST OF THE WORK

The term Cost of the Work shall mean costs necessarily and actually incurred by the 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 the Work shall include only the items set forth in this Article 7.


a7 7.2 LABOR COSTS

a7 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 approval, at off-site workshops.


a7 7.2.2 Wages or salaries of the Contractor's supervisory and administrative personnel when stationed at the site with the Owner's approval, but only for that portion of their time required for the work. The persons listed on Exhibit M shall be charged at the rates set forth for them on such Exhibit M, attached hereto and incorporated herein.

(If it is intended that the wages or salaries of certain personnel stationed at the Contractor's principal or other offices shall be included in the Cost of the Work, identify in Article 14 the personnel to be included and whether for all or only part of their time, and the rates at which their time will be charged to the Work.)


a7 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. The persons listed on Exhibit N shall be charged at the rates set forth for them on such Exhibit N.


AIA Document A11199 1997. Copyright a9 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects . All rights reserved. WARNING: This AIAae Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAae Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 10:01:05 on 04/12/2006 under Order No.1000220641_2 which expires on 2/21/2007, and is not for resale.

User Notes: (3986435044)


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a7 7.2.4 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. For those persons listed on Exhibit O, the respective rates included in Exhibits M and N already include the items listed in this subparagraph and no amount in addition to the rates on Exhibits M and N shall be charged for the persons listed on Exhibit O.


a7 7.3 SUBCONTRACT COSTS

a7 7.3.1 Payments made by the Contractor to Subcontractors in accordance with the requirements of the subcontracts, but only for subcontracts approved by the Owner. Approvals of subcontracts shall not create any liability for the Owner in any way and shall not be unreasonably withheld.


a7 7.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION

a7 7.4.1 Costs, including transportation and storage, of materials and equipment incorporated or to be incorporated in the completed construction.


a7 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 Contractor. Any amounts realized from such sales shall be credited to the Owner as a deduction from the Cost of the Work.


a7 7.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS

a7 7.5.1 Costs, including transportation and storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily 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.


a7 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 transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the Owner's prior approval.


a7 7.5.3 Costs of removal of debris from the site.


a7 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.


a7 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.


a7 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.


a7 7.6 MISCELLANEOUS COSTS

a7 7.6.1 That portion of insurance and bond premiums that can be directly attributed to this Contract:


a7 7.6.2 Sales, use or similar taxes imposed by a governmental authority that are related to the Work.


a7 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.


AIA Document A11199 1997. Copyright a9 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects . All rights reserved. WARNING: This AIAae Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAae Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 10:01:05 on 04/12/2006 under Order No.1000220641_2 which expires on 2/21/2007, and is not for resale.

User Notes: (3986435044)


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a7 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 AIA Document A201-1997 or other provisions of the Contract Documents, and which do not fall within the scope of Section 7.7.3.


a7 7.6.5 Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent rights arising from such requirement of the Contract Documents; and payments made in accordance with legal judgments against the Contractor resulting from such suits or claims and payments of settlements made with the Owner's consent. However, such costs of legal defenses, judgments and settlements shall not be included in the calculation of the Contractor's Fee or subject to the Guaranteed Maximum Price. If such royalties, fees and costs are excluded by the last sentence of Section 3.17.1 of AIA Document A201-1997 or other provisions of the Contract Documents, then they shall not be included in the Cost of the Work.


a7 7.6.6 Intentionally omitted.


a7 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 forth in the Contract Documents.


a7 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 written approval, which approval shall not be unreasonably withheld.


a7 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 in writing.


a7 7.7 OTHER COSTS AND EMERGENCIES

a7 7.7.1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner.


a7 7.7.2 Costs due to emergencies incurred in taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section 10.6 of AIA Document A201-1997.


a7 7.7.3 Costs of repairing or correcting damaged or nonconforming Work executed by the Contractor, Subcontractors or suppliers, provided that such damaged or nonconforming Work was not caused by negligence or failure to fulfill a specific responsibility of the Contractor and only to the extent that the cost of repair or correction is not recoverable by the Contractor from insurance, sureties, Subcontractors, suppliers or others.


ARTICLE 8

COSTS NOT TO BE REIMBURSED

a7 8.1 The Cost of the Work shall not include:


a7 8.1.1 Salaries and other compensation of the Contractor'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.


a7 8.1.2 Expenses of the Contractor's principal office and offices other than the site office.


a7 8.1.3 Overhead and general expenses, except as may be expressly included in Article 7.


a7 8.1.4 The Contractor's capital expenses, including interest on the Contractor's capital employed for the Work.


a7 8.1.5 Rental costs of machinery and equipment, except as specifically provided in Section 7.5.2.


AIA Document A11199 1997. Copyright a9 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 1987 and 1997 by The American Institute of Architects . All rights reserved. WARNING: This AIAae Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAae Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This draft was produced by AIA software at 10:01:05 on 04/12/2006 under Order No.1000220641_2 which expires on 2/21/2007, and is not for resale.

User Notes: (3986435044)


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a7 8.1.6 Except as provided in Section 7.7.3 of this Agreement, costs due to the negligence or failure 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.


a7 8.1.7 Any cost not specifically and expressly described in Article 7.


a7 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.


ARTICLE 9

DISCOUNTS, REBATES AND REFUNDS

a7 9.1 The Contractor shall take all affirmative action to ensure that the full advantage of any and all available discounts, rebates, refunds, and returns are exercised for the benefit of Owner. 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 the Owner, or (2) the Owner has deposited funds with the Contractor with which to make payments; otherwise, cash discounts shall accrue to the Contractor, or (3) the Contractor fails fully to perform the duties imposed by this subparagraph. The Contractor shall notify the Owner of the availability of such cash discounts so that the Owner has the opportunity to make funds available to take advantage of such discounts. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Contractor shall make provisions so that they can be secured.


a7 9.2 Amounts that 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.


a7 9.3 Contractor acknowledges that Owner is entering into a Sales and Use Tax Relief Program Implementing Agreement with the State of Connecticut or one of its agencies (collectively, the " State" and such agreement is the " Sales and Use Tax Agreement" ). The Sales and Use Tax Agreement provides benefits to the Owner by allowing the State to purchase materials on behalf of the Owner without paying sales tax. Contractor acknowledges that the benefits from and under the Sales and Use Tax Agreement are solely for the benefit of Owner and not of Contractor. The Contractor agrees that it shall sign all documents requested to confirm that all benefit under the Sales and Use Tax Agreement are for the exclusive benefit of the Owner and Contractor has no interest in such benefits. If required by the State in connection with the Sales and Use Tax Agreement, the Owner may require Contractor to file documents or undertake purchases on behalf of or for Owner in accordance with State regulations or rules and the Contractor hereby agrees to file such documents or undertake such purchases accordingly.


ARTICLE 10

SUBCONTRACTS AND OTHER AGREEMENTS

a7 10.1 Those portions of the Work that the Contractor does not customarily perform with the Contractor's own personnel shall be performed under subcontracts or by other appropriate agreements with the Contractor. Contractor shall submit a list of proposed subcontractors to the Construction Manager and Owner for Owner' s approval. Contractor shall not enter into a subcontract with any subcontractor to which the Owner objects. In addition to the persons and entities selected by the Contractor, the Owner may designate specific persons or entities from whom the Contractor shall obtain bids. The Contractor shall obtain bids from Subcontractors for all bid items with an estimated cost of $50,000 or more or for any bid item so designated ...