850 Senior Center PEMB.pdf

ConsensusDocs® 850 – Standard Agreement Between Owner And Trade Contractor - © 2015. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel is strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

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ConsensusDocs® 850

STANDARD AGREEMENT BETWEEN OWNER AND TRADE CONTRACTOR

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ConsensusDocs® 850 – Standard Agreement Between Owner And Trade Contractor - © 2015. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel is strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

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ConsensusDocs 850

STANDARD AGREEMENT BETWEEN OWNER AND TRADE CONTRACTOR

TABLE OF ARTICLES

1. AGREEMENT

2. GENERAL PROVISIONS

3. TRADE CONTRACTOR’S OBLIGATIONS

4. OWNER’S RESPONSIBILITIES

5. SUBCONTRACTS

6. TRADE CONTRACT TIME

7. TRADE CONTRACT PRICE

8. CHANGES

9. PAYMENT

10. INDEMNITY, INSURANCE, WAIVERS, AND BONDS

11. SUSPENSION, NOTICE TO CURE, AND TERMINATION OF AGREEMENT

12. DISPUTE MITIGATION AND RESOLUTION

13. MISCELLANEOUS PROVISIONS

14. TRADE CONTRACT DOCUMENTS

ARTICLE 1 AGREEMENT

This Trade Contractor Agreement is made effective as of the 19th day of May in the year 2021, by and between the

OWNER City of Sulphur Springs 201 N Davis Street Sulphur Springs, TX 75482 and the

TRADE CONTRACTOR [_____]

Tax identification number (TIN) [_____] Contractor License No., if applicable [_____] for work in connection with the following

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PROJECT Sulphur Springs Senior Center 301 Oak Avenue Sulphur Springs, TX 75482

CONSTRUCTION MANAGER ADVISOR is Don Roundtree Tandem Consulting 204A Linda Drive Sulphur Springs, TX 75482

Design Professional for the Project is Rees Associates, Inc.

1025 N. Stemmons Freeway Suite 737 Dallas, TX 75207

ENGINEER for the Project is Dynamic Engineering Consultants, PLLC 200 Hillcrest Suite C Sulphur Springs, TX 75482

Landscape Architect is MHS Planning & Design 212 W 9th St.

Tyler, TX 75701

Notice to each Party shall be given at the above addresses.

ARTICLE 2 GENERAL PROVISIONS

2.1 PARTIES’ RELATIONSHIP The Parties agree to proceed with this Agreement on the basis of mutual trust, good faith, and fair dealing and shall cooperate with each other and with Construction Manager Advisor and Design Professional in furthering Owner’s interests. Trade Contractor shall use its diligent efforts to perform the Trade Contract Work in an expeditious manner consistent with the Trade Contract Documents. The Parties will endeavor to promote harmony and cooperation among all Project Participants.

2.2 ETHICS The Parties shall each perform its obligations with integrity, ensuring at a minimum that each:

(a) avoids conflicts of interest and promptly discloses any to the other Party; and (b) warrants that it has not and shall not pay or receive any contingent fees or gratuities to or from the other Party, including its agents, officers, and employees, Subcontractors, or others for whom they may be liable, to secure preferential treatment.

2.3 PROJECT ORGANIZATION This Agreement is for the performance of the Trade Contract Work in connection with the construction of the Project. Owner also may enter into separate agreements with other trade contractors for other portions of the Project. Owner has entered or will enter into a Construction Management Agreement with Construction Manager Advisor, and a design agreement with a Design Professional.

2.4 INDEPENDENT CONTRACTOR Trade Contractor represents that it is and shall act as an independent contractor. Neither Trade Contractor nor any of its agents or employees shall act on behalf of Owner except as provided in this Agreement or unless authorized in writing by Owner.

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2.5 CONSTRUCTION MANAGER ADVISOR IS OWNER’S AGENT Construction Manager Advisor will represent Owner as its agent in the administration and management of this Agreement. Any instructions, reviews, approvals, orders, or directions given to Trade Contractor by Construction Manager Advisor will be given on behalf of and as agent for Owner. Trade Contractor shall be obligated to respond or perform as if the same were given directly by Owner.

2.6 CONSTRUCTION MANAGER ADVISOR NOT IN PRIVITY WITH TRADE CONTRACTOR This Agreement shall not give Trade Contractor any claim or right of action against Construction Manager Advisor. Trade Contractor and its Subcontractors shall not be beneficiaries of any obligations of Construction Manager Advisor. This Agreement shall not create a contractual relationship between any parties except Owner and Trade Contractor.

2.7 DESIGN PROFESSIONAL Owner, through its Design Professional, shall provide all architectural and engineering design services necessary for the completion of the Work, except the following: [_____].

Trade Contractor shall not be required to provide professional services that constitute the practice of architecture or engineering except as otherwise provided in section 3.14.

2.8 Owner shall obtain from Design Professional either a license for Trade Contractor and Subcontractors to use the design documents prepared by Design Professional or ownership of the copyrights for such design documents, and shall defend, indemnify, and hold harmless Trade Contractor against any suits or claims of infringement of any copyrights or licenses arising out of the use of the design documents.

2.9 DEFINITIONS

2.9.1 “Agreement” means this ConsensusDocs 850 Standard Agreement Between Owner and Trade Contractor, as modified by the Parties, and exhibits and attachments made part of this Agreement upon its execution.

2.9.1.1 The following exhibits are part of this Agreement:

Exhibit A: Scope of the Work Exhibit B: Labor Relations, if applicable Exhibit C: Insurance Requirement Forms Exhibit D: Rees Associates Plans

2.9.2 “Business Day” means all Days, except weekends and official federal or state holidays where the Project is located.

2.9.3 “Construction Manager Advisor” means Construction Manager Advisor identified in ARTICLE 1 and its authorized representative. If Owner does not contract with a separate Construction Manager Advisor, then references to Construction Manager Advisor shall be the Owner.

2.9.4 The “Construction Schedule” is the document initially prepared by and updated by Construction Manager Advisor and approved by Owner that indicates proposed activity sequences, durations, or milestone dates for such activities as receipt and approval of pertinent information, issuance of the Construction Documents, the preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, Owner’s occupancy requirements, and estimated date of Substantial Completion of the Project.

2.9.5 “Cost of the Work” means the costs and discounts specified in subsection 2.1.1.

2.9.6 “Day” means calendar day unless otherwise specifically defined.

2.9.7 “Date of Commencement” is as set forth in section 6.1.

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2.9.8 “Defective Work” is any portion of the Work that does not conform to the requirements of the Contract Documents.

2.9.9 “Design Professional” means the architect, design professional, or engineer identified in ARTICLE 1 and its consultants, retained by Owner to perform design services for the Project, and licensed in the State in which the Project is located.

2.9.10 “Final Completion” occurs on the date when Trade Contractor’s obligations under this Agreement are complete and accepted by Owner and final payment becomes due and payable. This date shall be confirmed by a Certificate of Final Completion signed by Owner and Trade Contractor.

2.9.11 “Laws” mean federal, state, and local laws, ordinances, codes, rules, and regulations applicable to the Work with which Trade Contractor must comply that are enacted as of the Agreement date.

2.9.12 A “Hazardous Material” is any substance or material identified now or in the future as hazardous under Laws, or any other substance or material that may be considered hazardous or otherwise subject to statutory or regulatory requirement governing handling, disposal, or cleanup.

2.9.13 “Interim Directed Change” is a change to the Work directed by Owner pursuant to section 8.2.

2.9.14 “Others” means other contractors, suppliers, and persons at the Worksite who are not employed by Trade Contractor or Subcontractors.

2.9.15 “Overhead” means (a) payroll costs and other compensation of Trade Contractor employees in Trade Contractor’s principal and branch offices; (b) general and administrative expenses of Trade Contractor’s principal and branch offices including charges against Trade Contractor for delinquent payments; and (c) Trade Contractor’s capital expenses, including interest on capital used for the Work.

2.9.16 “Owner” is the person or entity identified in ARTICLE 1 as Owner, and includes Owner’s representative.

2.9.17 “Parties” are collectively Owner and Trade Contractor.

2.9.18 “Project,” as identified in ARTICLE 1, is the building, facility, or other improvements for which Trade Contractor is to perform the Trade Contract Work.

2.9.19 Project Participants shall mean Owner, Construction Manager Advisor, Design Professional, Trade Contractor, and their respective Subcontractors, Suppliers, and any other subcontractors, suppliers, or other trade contractors of any tier involved in the Project.

2.9.20 A “Subcontractor” is a person or entity retained by Trade Contractor as an independent contractor to provide the labor, materials, equipment, or services necessary to complete a specific portion of the Work. Subcontractor does not include Design Professional or Others.

2.9.21 “Substantial Completion” of the Trade Contract Work, or of a designated portion, occurs on the date when the Trade Contract Work is sufficiently complete in accordance with the Contract Documents so that Owner may occupy or utilize the Project for the use for which it is intended, without unscheduled disruption. The issuance of a certificate of occupancy is not a prerequisite for Substantial Completion if the certificate of occupancy cannot be obtained due to factors beyond

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Trade Contractor’s control. The date for Substantial Completion of the entire Work shall be confirmed by a Certificate of Substantial Completion signed by Owner and Construction Manager Advisor.

2.9.22 A “Subsubcontractor” is a person or entity who has an agreement with a Subcontractor or another Subsubcontractor to perform a portion of the Subcontractor’s Work

2.9.23 A “Supplier” is a person or entity retained by Trade Contractor to provide material or equipment for the Trade Contract Work.

2.9.24 “Terrorism” means a violent act, or an act that is dangerous to human life, property, or infrastructure, that is committed by an individual or individuals and that appears to be part of an effort to coerce a civilian population or to influence the policy or affect the conduct of any government by coercion. Terrorism includes, but is not limited to, any act certified by the United States government as an act of terrorism pursuant to the Terrorism Risk Insurance Act, as amended.

2.9.25 A “Trade Contract Change Order” is a written order signed by Owner and Trade Contractor after execution of this Agreement, indicating changes in the scope of the Trade Contract Work, the Trade Contract Price, or Trade Contract Time, including substitutions proposed by Trade Contractor and accepted by Owner.

2.9.26 The Trade Contract Documents consist of those documents identified in ARTICLE 14 of this Agreement, and any modifications and new or revised drawings and specifications incorporated into this Agreement by Change Order.

2.9.27 The “Trade Contract Price” is the amount indicated in section 7.1.

2.9.28 The Trade Contract Time is the period between the Date of Commencement and Final Completion.

2.9.29 “Trade Contract Work” means the construction and services to be provided by Trade Contractor under this Agreement and the Trade Contract Documents.

2.9.30 “Trade Contractor” is the person or entity identified in ARTICLE 1.

2.9.31 “Worksite” means the geographical area at the location of the Project as identified in ARTICLE 1 where the Trade Contract Work is to be performed.

ARTICLE 3 TRADE CONTRACTOR’S OBLIGATIONS

3.1 GENERAL RESPONSIBILITIES

3.1.1 RESPONSIBILITIES Trade Contractor shall provide all of the labor, materials, equipment, and services necessary to complete the Trade Contract Work, all of which shall be provided in full accord with or as reasonably inferable from the Trade Contract Documents as being necessary to produce the indicated results.

3.1.2 Trade Contractor shall be responsible for the supervision and coordination of the Trade Contract Work, including the construction means, methods, techniques, sequences, and procedures utilized, unless the Trade Contract Documents give other specific instructions. In such case, Trade Contractor shall not be liable to Owner for damages resulting from compliance with such instructions unless Trade Contractor recognized and failed to timely report to Owner any error, inconsistency, omission, or unsafe practice that it discovered in the specified construction means, methods, techniques, safety, sequences, or procedures.

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3.1.3 Trade Contractor shall perform Trade Contract Work only within locations allowed by the Trade Contract Documents, applicable permits, and applicable local law.

3.2 COOPERATION WITH WORK OF OWNER AND OTHERS

3.2.1 Owner may perform work at the Worksite directly or by Others. Any agreements with Others to perform construction or operations related to the Project shall include provisions pertaining to insurance, indemnification, waiver of subrogation, coordination, interference, cleanup, and safety that are substantively the same as the corresponding provisions of this Agreement.

3.2.2 In the event that Owner elects to perform work at the Worksite directly or by Others, Trade Contractor and Owner shall cooperate with the efforts of Construction Manager Advisor to coordinate the activities of all forces at the Worksite and agree upon fair and reasonable schedules and operational procedures for Worksite activities. Owner shall require each separate trade contractor to cooperate with Trade Contractor and assist with the coordination of activities and the review of construction schedules and operations.

3.2.3 With regard to the work of Owner and Others, Trade Contractor shall (a) proceed with the Trade Contract Work in a manner that does not hinder, delay, or interfere with the work of Owner or Others or cause the work of Owner or Others to become defective, (b) afford Owner or Others reasonable access for introduction and storage of their materials and equipment and performance of their activities, and (c) cooperate with Construction Manager Advisor’s efforts to coordinate Trade Contractor’s construction and operations with the work of Owner or Others as required by this subsection.

3.2.4 Before proceeding with any portion of the Trade Contract Work affected by the construction or operations of Owner or Others, Trade Contractor shall give Owner and Construction Manager Advisor prompt written notification of any defects Trade Contractor discovers in their work that will prevent the proper execution of the Trade Contract Work. Trade Contractor’s obligations in this section do not create a responsibility for the work of Owner or Others, but are for the purpose of facilitating the Trade Contract Work. Following receipt of written notice from Trade Contractor of defects, Owner, through Construction Manager Advisor, shall promptly inform Trade Contractor what action, if any, Trade Contractor shall take with regard to the defects.

3.3 RESPONSIBILITY FOR PERFORMANCE

3.3.1 In order to facilitate its responsibilities for completion of the Trade Contract Work in accordance with and as reasonably inferable from the Trade Contract Documents, prior to commencing the Trade Contract Work, Trade Contractor shall examine and compare the drawings and specifications with information furnished by Owner pursuant to subsection 4.3.3 and identified as Contract Documents, relevant field measurements made by Trade Contractor, and any visible conditions at the Worksite affecting the Trade Contract Work.

3.3.2 Should Trade Contractor discover any errors, omissions, or inconsistencies in the Contract Documents, Trade Contractor shall promptly report them to Owner and Construction Manager Advisor. It is recognized, however, that Trade Contractor is not acting in the capacity of a licensed design professional, and that Trade Contractor’s examination is to facilitate construction and does not create an affirmative responsibility to detect errors, omissions, or inconsistencies or to ascertain compliance with applicable laws, building codes, or regulations. Following receipt of written notice from Trade Contractor of defects, Owner shall promptly inform Trade Contractor what action, if any, Trade Contractor shall take with regard to the defects.

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3.3.3 Trade Contractor shall have no liability for errors, omissions, or inconsistencies discovered under subsections 3.3.1 and 3.3.2 unless Trade Contractor knowingly fails to report a recognized problem to Owner and Construction Manager Advisor.

3.3.4 Trade Contractor may be entitled to additional costs or time because of clarifications or instructions arising out of Trade Contractor’s reports described in the three preceding Subsections.

3.3.5 Nothing in this section shall relieve the Trade Contractor of responsibility for its own errors, inconsistencies, and omissions.

3.4 CONSTRUCTION PERSONNEL AND SUPERVISION

3.4.1 Trade Contractor shall provide competent supervision for the performance of the Trade Contract Work. Before commencing the Trade Contract Work, Trade Contractor shall notify Owner and Construction Manager Advisor in writing of the name and qualifications of its proposed superintendent(s) and project manager so Owner and Construction Manager Advisor may review the individual’s qualifications. If, for reasonable cause, Owner or Construction Manager Advisor refuses to approve the individual, or withdraws its approval after once giving it, Trade Contractor shall name a different superintendent or project manager for Owner’s and Construction Manager Advisor’s review.

Any disapproved superintendent shall not perform in that capacity thereafter at the Worksite.

3.4.2 Trade Contractor shall be responsible to Owner for acts or omissions of parties or entities performing portions of the Trade Contract Work for or on behalf of Trade Contractor or any of its Subcontractors.

3.4.3 Trade Contractor shall permit only qualified persons to perform the Trade Contract Work. Trade Contractor shall enforce safety procedures, strict discipline, and good order among persons performing the Trade Contract Work. If Owner or Construction Manager Advisor determines that a particular person does not follow safety procedures, or is unfit or unskilled for the assigned work, Trade Contractor shall immediately reassign the person on receipt of Owner’s or Construction Manager Advisor’s written notice to do so.

3.4.4 TRADE CONTRACTOR’S REPRESENTATIVE Trade Contractor’s authorized representative is [_____]. Trade Contractor’s representative shall possess full authority to receive instructions from Owner and to act on those instructions. Trade Contractor shall immediately notify Owner and Construction Manager Advisor in writing of a change in the designation of Trade Contractor’s representative or the representative’s authority.

3.5 MATERIALS FURNISHED BY OWNER OR OTHERS If the Trade Contract Work includes installation of materials or equipment furnished by Owner or Others, it shall be the responsibility of Trade Contractor to examine the items so provided and thereupon handle, store, and install the items, unless otherwise provided in the Trade Contract Documents, with such skill and care as to provide a satisfactory and proper installation. Loss or damage due to acts or omissions of Trade Contractor shall be the responsibility of Trade Contractor and may be deducted from any amounts due or to become due Trade Contractor. Any defects discovered in such materials or equipment shall be reported at once to Owner and Construction Manager Advisor. Following receipt of written notice from Trade Contractor of defects, Owner shall promptly inform Trade Contractor what action, if any, Trade Contractor shall take with regard to the defects.

3.6 TESTS AND INSPECTIONS

3.6.1 Trade Contractor shall schedule all required tests, approvals, and inspections of the Trade Contract Work or portions thereof at appropriate times so as not to delay the progress of the Trade

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Contract Work or other work related to the Project. Trade Contractor shall give proper notice to Construction Manager Advisor and to all required parties of such tests, approvals, and inspections. If feasible, Owner and Others may timely observe the tests at the normal place of testing. Except as provided in subsection 3.6.3, Owner shall bear all expenses associated with tests, inspections, and approvals required by the Trade Contract Documents, which, unless otherwise agreed to, shall be conducted by an independent testing laboratory or entity retained by Owner. Unless otherwise required by the Trade Contract Documents, required certificates of testing, approval or inspection shall be secured by Trade Contractor and promptly delivered to Owner and Construction Manager Advisor.

3.6.2 If Owner, Construction Manager Advisor or appropriate authorities determine that tests, inspections or approvals in addition to those required by the Trade Contract Documents will be necessary, Trade Contractor shall arrange for the procedures and give timely notice to Owner, Construction Manager Advisor and Others who may observe the procedures. Costs of the additional tests, inspections or approvals are at Owner’s expense except as provided in subsection 3.6.3.

3.6.3 If the procedures described in subsections 3.6.1 and 3.6.2 indicate that portions of the Trade Contract Work fail to comply with the Trade Contract Documents, Trade Contractor shall be responsible for costs of correction and retesting.

3.7 WARRANTY

3.7.1 The Trade Contractor warrants that all materials and equipment shall be new unless otherwise specified, of good quality, in conformance with the Trade Contract Documents, and free from defective workmanship and materials. Upon Owner’s or Construction Manager Advisor’s request, Trade Contractor shall furnish satisfactory evidence of the quality and type of materials and equipment furnished. Trade Contractor further warrants that the Trade Contract Work shall be free from material defects not intrinsic in the design or materials required in the Trade Contract Documents. Trade Contractor’s warranty does not include remedies for defects or damages caused by normal wear and tear during normal usage, use for a purpose for which the Project was not intended, improper or insufficient maintenance, modifications performed by Owner or Others, or abuse. Trade Contractor’s warranty pursuant to this section shall commence on the Date of Substantial Completion of the Project.

3.7.2 To the extent products, equipment, systems, or materials incorporated in the Trade Contract Work are specified and purchased by Owner; they shall be covered exclusively by the warranty of the manufacturer. There are no warranties which extend beyond the description on the face of any such warranty.

3.7.3 Trade Contractor shall obtain from its Subcontractors and Suppliers any special or extended warranties required by the Trade Contract Documents. Trade Contractor’s liability for such warranties shall be limited to the one-year correction period referred to in section 3.8. After that period Trade Contractor shall provide reasonable assistance to Owner in enforcing the obligations of Subcontractors or Suppliers for such extended warranties.

3.8 CORRECTION OF TRADE CONTRACT WORK WITHIN ONE YEAR

3.8.1 If, prior to Substantial Completion or within one year after the date of Substantial Completion of the Trade Contract Work, any Defective Work is found, Owner shall promptly notify Trade Contractor in writing. Unless Owner provides written acceptance of the condition, Trade Contractor shall promptly correct the Defective Work at its own cost and time and bear the expense of additional services required for correction of any Defective Work for which it is responsible. If within the one-year correction period Owner discovers and does not promptly notify Trade Contractor or give Trade

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Contractor an opportunity to test or correct Defective Work as reasonably requested by Trade Contractor, Owner waives Trade Contractor’s obligation to correct that Defective Work as well as Owner’s right to claim a breach of the warranty with respect to that Defective Work.

3.8.2 With respect to any portion of Trade Contract Work first performed after Substantial Completion, the one-year correction period shall be extended by the period of time between Substantial Completion and the actual performance of the later Trade Contract Work. Correction periods shall not be extended by corrective work performed by Trade Contractor.

3.8.3 If Trade Contractor fails to correct Defective Work within a reasonable time after receipt of written notice from Owner prior to final payment, Owner may correct it in accordance with Owner’s right to carry out the Trade Contract Work in section 11.2. In such case, an appropriate Trade Contract Change Order shall be issued deducting the cost of correcting such deficiencies from payments then or thereafter due Trade Contractor. If payments then or thereafter due Trade Contractor are not sufficient to cover such amounts, Trade Contractor shall pay the difference to Owner.

3.8.4 Trade Contractor’s obligations and liability, if any, with respect to any Defective Work discovered after the one-year correction period shall be determined by the Law. If, after the one-year correction period but before the applicable limitation period has expired, Owner discovers any Trade Contract Work which Owner considers Defective Work, Owner shall, unless the Defective Work requires emergency correction, promptly notify the Trade Contractor and allow Trade Contractor an opportunity to correct the Trade Contract Work if Trade Contractor elects to do so. If the Trade Contractor elects to correct the Work, it shall provide written notice of such intent within fourteen (14) Days of its receipt of notice from Owner and shall complete the correction of Work within a mutually agreed timeframe. If Trade Contractor does not elect to correct the Trade Contract Work, Owner may have the work corrected by itself or Others, and, if Owner intends to seek recovery of those costs from Trade Contractor, Owner shall promptly provide Trade Contractor an accounting of the correction costs it incurs.

3.8.5 If Trade Contractor’s correction or removal of Defective Work causes damage to or destroys other completed or partially completed Work or existing buildings, Trade Contractor shall be responsible for the cost of correcting the destroyed or damaged property.

3.8.6 The one-year period for correction of Defective Work does not constitute a limitation period with respect to the enforcement of Trade Contractor’s other obligations under the Trade Contract Documents.

3.8.7 Prior to final payment, at Owner’s option and with Trade Contractor’s agreement, Owner may elect to accept Defective Work rather than require its removal and correction. In such case the Contract Price shall be equitably adjusted for any diminution in the value of the Project caused by such Defective Work.

3.9 CORRECTION OF COVERED TRADE CONTRACT WORK

3.9.1 On request of Owner or Construction Manager Advisor, Trade Contract Work that has been covered without a requirement that it be inspected prior to being covered may be uncovered for Owner’s or Construction Manager Advisor’s inspection. Owner shall pay for the costs of uncovering and replacement if the Work proves to be in conformance with the Trade Contract Documents, or if the defective condition was caused by Owner or Others. If the uncovered Trade Contract Work proves to be defective, Trade Contractor shall pay the costs of uncovering and replacement.

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3.9.2 If, contrary to specific requirements in the Trade Contract Documents or contrary to a specific request from Owner or Construction Manager Advisor, a portion of the Trade Contract Work is covered, Owner or Construction Manager Advisor, by written request, may require Trade Contractor to uncover the Trade Contract Work for Owner’s or Construction Manager Advisor’s observation. In this circumstance the Trade Contract Work shall be uncovered and recovered at Trade Contractor’s expense and with no adjustment to the Trade Contract Time.

3.10 SAFETY

3.10.1 SAFETY PRECAUTIONS AND PROGRAMS Trade Contractor shall have overall responsibility for safety precautions and programs in the performance of the Trade Contract Work. However, such obligation does not relieve Trade Contractors and their Subcontractors of their responsibility for the safety of persons or property in the performance of their work or for compliance with Laws.

3.10.2 Trade Contractor shall seek to avoid injury, loss, or damage to persons or property by taking reasonable steps to protect:

3.10.2.1 its employees and other persons at the Worksite;

3.10.2.2 materials and equipment stored at on-site or off-site locations for use in the Trade Contract Work; and

3.10.2.3 property located at the Worksite and adjacent to Trade Contract Work areas, whether or not the property is part of the Trade Contract Work.

3.10.3 TRADE CONTRACTOR’S SAFETY REPRESENTATIVE Trade Contractor’s Worksite Safety Representative is [_____] who shall act as Trade Contractor’s authorized safety representative with a duty to prevent accidents in accordance with subsection 3.10.2. If no individual is identified in this section, the authorized safety representative shall be Trade Contractor’s Representative. Trade Contractor shall report immediately in writing to Owner and Construction Manager Advisor all recordable accidents and injuries occurring at the Worksite. When Trade Contractor is required to file an accident report with a public authority, Trade Contractor shall furnish a copy of the report to Owner and Construction Manager Advisor.

3.10.4 Trade Contractor shall provide Owner and Construction Manager with copies of all notices required of Trade Contractor by law or regulation. Trade Contractor’s safety program shall comply with the requirements of governmental and quasi-governmental authorities having jurisdiction.

3.10.5 Damage or loss not insured under property insurance that may arise from the Trade Contract Work, to the extent caused by the negligent acts or omissions of Trade Contractor, or anyone for whose acts Trade Contractor may be liable, shall be promptly remedied by Trade Contractor.

3.10.6 If Owner or Construction Manager Advisor reasonably deems any part of the Trade Contract Work or Worksite unsafe, Owner or Construction Manager Advisor, without assuming responsibility for Trade Contractor’s safety program, may require Trade Contractor to stop performance of the Trade Contract Work or take corrective measures satisfactory to Owner, or both. If Trade Contractor does not adopt corrective measures, Owner may perform them and deduct their cost from the Trade Contract Price. Trade Contractor agrees to make no claim for damages, for an increase in the Trade Contract Price or for a change in the Trade Contract Time based on Trade Contractor’s compliance with Owner’s or Construction Manager Advisor’s reasonable request.

ConsensusDocs® 850 – Standard Agreement Between Owner And Trade Contractor - © 2015. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel is strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

CONTENT SECURE ID: 4F2B64C0-F52C

3.11 EMERGENCIES In an emergency, Trade Contractor shall act in a reasonable manner to prevent threatened damage, injury, or loss. Any change in the Contract Price or Contract Time resulting from the actions of Trade Contractor in an emergency situation shall be determined as provided for in ARTICLE 8.

3.12 HAZARDOUS MATERIALS

3.12.1 Trade Contractor shall not be obligated to commence or continue Trade Contract Work until any Hazardous Material discovered at the Worksite has been removed, rendered, or determined to be harmless by Owner as certified by an independent testing laboratory and approved by the appropriate governmental agency.

3.12.2 If, after the commencement of the Trade Contract Work, a Hazardous Material is discovered at the Worksite, Trade Contractor shall be entitled to immediately stop Trade Contract Work in the affected area. Trade Contractor shall report the condition to Owner, Design Professional, Construction Manager Advisor, and, if required, the governmental agency with jurisdiction.

3.12.3 Trade Contractor shall not be required to perform any Trade Contract Work relating to or in the area of Hazardous Material without written mutual agreement.

3.12.4 Owner shall be responsible for retaining an independent testing laboratory to determine the nature of the Hazardous Material encountered and whether the material requires corrective measures or remedial action. Such measures shall be the sole responsibility of Owner, and shall be performed in a manner minimizing any adverse effects upon the Trade Contract Work. Trade Contractor shall resume Trade Contract Work in the area affected by any Hazardous Material only upon written agreement between the Parties after the Hazardous Material has been removed or rendered harmless and only after approval, if necessary, of the governmental agency with jurisdiction.

3.12.5 If Trade Contractor incurs additional costs or is delayed due to the presence or remediation of Hazardous Material, Trade Contractor shall be entitled to an equitable adjustment in the Trade Contract Price or the Trade Contract Time.

3.12.6 To the extent permitted by section 6.6 and to the extent not caused by the Hazardous Materials brought to the Worksite by Trade Contractor and its Subcontractors or Subsubcontractors or not caused by the negligent acts or omissions of Trade Contractor, its Subcontractors and Subsubcontractors, and the agents, officers, directors, and employees of each of them, Owner shall indemnify, and hold harmless the Trade Contractor, its Subcontractors and Subsubcontractors, and the agents, officers, directors, and employees of each of them, from and against all claims, damages, losses, costs, and expenses, including but not limited to reasonable attorneys’ fees, costs, and expenses incurred in connection with any dispute resolution process, arising out of or relating to the performance of the Work in any area affected by Hazardous Material.

3.12.7 MATERIALS BROUGHT TO THE WORKSITE

3.12.7.1 Safety Data (SDS) Sheets as required by law and pertaining to materials or substances used or consumed in the performance of the Trade Contract Work, whether obtained by Trade Contractor, Subcontractors, Owner or Others, shall be maintained at the Worksite by Trade Contractor and made available to Owner, Construction Manager Advisor, Subcontractors, and Others.

3.12.7.2 Trade Contractor shall be responsible for the proper delivery, handling, application, storage, removal, and disposal of all materials and substances brought to the Worksite by Trade Contractor in accordance with the Trade Contract Documents and used or consumed in the performance of the Trade Contract Work.

ConsensusDocs® 850 – Standard Agreement Between Owner And Trade Contractor - © 2015. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel is strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

CONTENT SECURE ID: 4F2B64C0-F52C

3.12.7.3 To the extent caused by the Hazardous Materials brought to the Worksite by Trade Contractor, Subcontractor, or Subsubcontractor, negligent acts or omissions of Trade Contractor, its Subcontractors, or Subsubcontractors, and agents, officers, directors, and employees, Trade Contractor shall indemnify and hold harmless Owner, Construction Manager Advisor, their agents, officers, directors, and employees, from and against any and all claims, damages, losses, costs, and expenses, including but not limited to attorneys’ fees, costs and expenses incurred in connection with any dispute resolution procedure, arising out of or relating to the delivery, handling, application, storage, removal, and disposal of all materials and substances brought to the Worksite by Trade Contractor in accordance or not in accordance with the Trade Contract Documents.

3.12.7.4 Section 3.12 shall survive the completion of the Trade Work or any termination of this Agreement.

3.13 SUBMITTALS

3.13.1 Trade Contractor shall submit to Owner and Construction Manager Advisor, and, if directed, to its Design Professional, for review and approval all shop drawings, samples, product data, and similar submittals required by the Trade Contract Documents. Submittals may be submitted in electronic form if required or authorized by the Trade Contract Documents and subsection 4.7. Trade Contractor shall be responsible to Owner for the accuracy and conformity of its submittals to the Trade Contract Documents. Trade Contractor shall prepare and deliver its submittals to Owner in a manner consistent with the Construction Schedule and in such time and sequence so as not to delay the performance of the Trade Contract Work or the work of Owner and Others. When Trade Contractor delivers its submittals to Owner and Construction Manager Advisor, Trade Contractor shall identify in writing for each submittal all changes, deviations, or substitutions from the requirements of the Trade Contract Documents. The review and approval of any Trade Contractor submittal shall not be deemed to authorize changes, deviations, or substitutions from the requirements of the Trade Contract Documents unless express written approval is obtained from Owner specifically authorizing such deviation, substitution, or change. To the extent a change, deviation, or substitution causes an impact to the Contract Price or Contract Time, such approval shall be promptly memorialized in a Change Order. Further, Owner shall not make any change, deviation, or substitution through the submittal process without specifically identifying and authorizing such deviation to Trade Contractor.

In the event that the Trade Contract Documents do not contain submittal requirements pertaining to the Trade Contract Work, Trade Contractor agrees upon request to submit in a timely fashion to Owner for review and approval any shop drawings, samples, product data, manufacturers’ literature, or similar submittals as may reasonably be required by Owner.

3.13.2 Owner shall be responsible for review and approval of submittals with reasonable promptness.

3.13.3 Trade Contractor shall perform all Trade Contract Work strictly in accordance with approved submittals. Approval of shop drawings is not authorization to Trade Contractor to perform changed Trade Contract Work, unless the procedures of ARTICLE 8 are followed. Approval does not relieve Trade Contractor from responsibility for Defective Work resulting from errors or omissions of any kind on the approved shop drawings.

3.13.4 Record copies of the following, incorporating field changes and selections made during construction, shall be maintained by Trade Contractor at the Worksite and available to Owner upon request: drawings, specifications, addenda, Trade Contract Change Order, and other modifications, and required submittals including product data, samples, and shop drawings.

ConsensusDocs® 850 – Standard Agreement Between Owner And Trade Contractor - © 2015. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel is strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

CONTENT SECURE ID: 4F2B64C0-F52C

3.13.5 No substitutions shall be made in the Trade Contract Work unless permitted in the Trade Contract Documents and then only after Trade Contractor obtains approvals required under the Trade Contract Documents for substitutions. All such substitutions shall be promptly memorialized in a Change Order no later than seven (7) Days following approval by Owner and, if applicable, provide for an adjustment in the Contract Price or Contract Time.

3.13.6 Trade Contractor shall prepare and submit to Construction Manager Advisor for submission to Owner:

X Final marked up as-built drawings X Updated electronic data, in accordance with subsection 4.7 X Such documentation as defined by the Parties by attachment to this Agreement, in general documenting how the various elements of the Trade Contract Work were actually constructed or installed.

3.14 PROFESSIONAL SERVICES If the Contract Documents specifically require Trade Contractor to provide design services to Owner, Owner shall specify all required performance and design criteria. Trade Contractor shall not be responsible for the adequacy of such performance and design criteria.