CTCLUSI Example CONSTRUCTION Contract.pdf

CTCLUSI CONSTRUCTION AGREEMENT

Cover Schedule – Page 1

EFFECTIVE DATE:

OWNER’S NAME

AND ADDRESS:

Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians 1245 Fulton Ave.

Coos Bay, OR 97420

SITE OR PROPERTY:

PROJECT:

CONTRACTOR’S

NAME AND

ADDRESS:

WORK: All labor and materials required to construct the improvements generally described as: xxxxxxxxxxxxxxxxxxxxxxxxxxxx - in accordance with the “Scope of Work” shown on Exhibit “A” attached hereto.

CONTRACT SUM:

ORIGINAL SUBSTANTIAL

COMPLETION DATE:

ADDITIONAL INSURED/

CERTIFICATE HOLDER

NAME AND ADDRESS:

BOND: N/A

EXHIBITS

Exhibit A Scope of Work

Exhibit B Cost of the Work

Exhibit C Change Order Format

Exhibit D Insurance Requirements

CONSTRUCTION AGREEMENT

This Construction Agreement (together with the “Cover Schedule” at the beginning of this document) and all exhibits, schedules, and any appendices attached to this Construction Agreement are collectively referred to as the “Agreement”) is made as of the Effective Date designated on the Cover Schedule, between the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (the “Tribe” or the “Contracting Agency”) and the “Contractor.” Each of the Tribe and the Contractor is sometimes singly referred to herein as a “Party” and collectively as the “Parties.”

ARTICLE I: Scope and Description of Work

1.01 Scope of Work.

(a) Contractor agrees to perform all of the Work required by the Contract Documents. The “Contract Documents” consist of:

(1) Request for Bids, Information for Bidders, Bid Form, Contract, General Requirements, Design Set, 2021 Oregon Standard Specifications for Construction (OSSC) as modified or supplemented by the Waite Ranch Tidal Wetland Restoration Project Construction Specifications Special Provisions, Regulatory Permit Conditions, Incidental Discovery Form, Change Orders, Schedule of Values, Scope of Work and Addenda.

(b) In the event of any inconsistencies between any of the Contract Documents, the Contract Document imposing the greater obligation or limitation on Contractor shall govern and prevail unless Tribe specifies otherwise.

(c) Contractor shall further perform all Work which may be reasonably inferable from the Contract Documents as being necessary to produce the intended results for the completion of the Work.

1.02 Buy Local Requirements.

(a) Among equally qualified subcontracts for goods or services, preference shall be afforded to businesses headquartered within one hundred miles of Florence, OR.

(b) In order to comply with The Build America, Buy America Act (BABAA), provisions in Section1.02 (a) are not applicable if there are no local subcontractors for good or services that meet BABAA requirements.

ARTICLE II: Contract Price, Payment, and Claims

2.01 Contract Sum.

(a) Subject to additions and deductions by change orders as provided for in this Agreement, Tribe shall pay Contractor, in consideration of the performance of the Work and pursuant to the Contract Documents, a total “Contract Sum” as set forth in the Cover Schedule.

(b) Payment of the Contract Sum is subject to additions or deductions in accordance with the provisions of this Agreement.

2.02 Schedule of Values.

(a) If an agreed upon Schedule of Values allocated to the various portions of the Work is set forth on Exhibit A hereto, then:

(1) The Schedule of Values will serve as the basis for Contractor’s Applications for Payment, and;

(2) Each application for payment shall include the approved Schedule of Values reflecting the portion of Work for each line item which is then complete.

2.03 Applications for Payments.

(a) By the fifth (5th) day of each month, beginning with the first full month following the effective date of this Agreement, Contractor shall submit to Tribe (i) an itemized application for payment (partial or final, as applicable) for the preceding calendar month, supported by proper affidavits and lien waivers from Contractor for the preceding calendar month in a form deemed acceptable to Tribe, along with any other statements or documentation reasonably deemed necessary by Tribe, in order to substantiate Contractor’s right to payment in accordance with the application for payment and (ii) proper affidavits and lien waivers from all subcontractors and material suppliers in a form deemed acceptable to Tribe, for payments made based upon the prior application for payment, along with any other statements or documentation reasonably deemed necessary by Tribe.

(b) Unless the completed Cover Schedule specifies that the Contract Sum is a fixed price, all applications for payment shall be based upon the Cost of the Work (as defined in Exhibit B) performed to the date of the application for payment.

(c) If the completed Cover Schedule specifies that the Contract Sum is a fixed price, applications for payment shall be based upon the percentage completion of each portion of the Work.

(d) Until all Work under this Agreement is complete and accepted by Tribe and a final application for payment has been approved by Tribe, Tribe will pay ninety- percent (95%) of the amount due Contractor for each progress payment, except as otherwise provided in this Agreement. The remaining five percent (5%) shall be held by Tribe as retainage and released to Contractor upon fulfillment of all contractual requirements for final payment.

(e) In no event shall Tribe ever be obligated to pay Contractor more than the Contract Sum unless adjusted by appropriate change order.

2.04 Processing Applications.

(a) Within forty five (45) days after the receipt of Contractor’s complete partial and final, as applicable, application for payment (which must be supported by fully executed affidavits and lien waivers as set forth above or as otherwise required by Tribe, Engineer and/or Tribe’s Lender, all as a condition precedent to Tribe’s acceptance of such application for payment), Tribe will either approve the application for payment and issue payment to Contractor for such amount as is properly due, or notify Contractor in writing of Tribe’s reasons for withholding such approval and payment, or portion thereof.

(b) If Tribe withholds any portion of an application for payment submitted by Contractor, then within three (3) business days of notice to Contractor of such withholding, Contractor shall notify Tribe in writing that Contractor either (i) shall correct all or part of the reasons that certification was withheld and resubmit such application for payment for processing pursuant to the Contract Documents or (ii) requests payment to be made for such amounts certified for payment by Tribe, in which case Contractor may re-submit such portions of that application for payment for which certification was withheld as part of any subsequent application for payment.

(c) If Contractor fails to timely notify Tribe of such election in writing, Contractor shall be deemed to have elected that the application for payment be processed for only the amount certified for payment by Tribe or Engineer, as applicable. In no event shall Contractor stop the Work in connection with any withholding of certification for payment, or failure to make payment, in connection with a good faith dispute.

2.05 Withholding Payment.

(a) Payments may be withheld by Tribe on account of, among other things:

(1) defective Work not remedied;

(2) claims filed or violations of legal requirements asserted by agencies having jurisdiction over the Project;

(3) failure of Contractor to make payments properly to subcontractors or for labor, materials, or equipment;

(4) Tribe, another contractor, or a third party is damaged by an act or failure to act for which Contractor is responsible;

(5) unsatisfactory prosecution or performance of the Work by Contractor, including the fact that the Work has not progressed to the point indicated in the application for payment; or

(6) incomplete or insufficient application for payment or documents related thereto submitted to Tribe.

2.06 Substantial Completion and Punchlist.

(a) “Substantial Completion” occurs when:

(1) Contractor has provided the Tribe with written notice that Contractor considers that the Work is at least 95% complete and capable of 100% completion within 30 days;

(2) Contractor has provided to Tribe a punchlist of incomplete items (the failure to include any item on a punchlist does not alter the responsibility of Contractor to complete all Work in accordance with the Contract Documents);

(3) Tribe can legally and fully occupy and use the Project for its intended purpose;

(4) Tribe has inspected the Work to determine if it has reached the point of substantial completion and verified Contractor’s draft of the punchlist, adding to such list those items Tribe or its designee deem to be appropriate;

(5) Tribe has found the Work substantially completed under the Contract Documents subject to the revised punchlist, and;

(6) Tribe has prepared a certificate of substantial completion which shall establish the date of substantial completion of the Work (the “Original Substantial Completion Date”) and shall state the responsibilities of Tribe and Contractor related thereto.

(b) Contractor shall complete all “punchlist” items on the revised punchlist within thirty (30) days following the date of the certificate of substantial completion.

(c) Upon completion of the punchlist and all other Work, and upon application for final payment by Contractor, Tribe shall make final payment pursuant to this Agreement.

(d) If punchlist items are not completed within 30 days of providing the punchlist to the Tribe, Contractor and Tribe agree that the damages which Tribe will incur are difficult if not impossible to ascertain. Therefore, Contractor and Tribe agree that if the punchlist items are not complete within such time, Contractor shall pay Tribe, as liquidated damages solely for delayed completion of the punchlist items and not as a penalty, the sum listed on the Cover Schedule of this Agreement as the Per Day Liquidated Damage for each day beginning with the thirty-first (31st) day following the date of the certificate of substantial completion and for each day thereafter until all punchlist items are complete.

(e) It is hereby agreed that such liquidated damages (i) are a reasonable pre-estimate of damages Tribe will incur as a result of delayed completion of the punchlist items and (ii) are not intended to cover, and shall not limit Tribe's remedies against Contractor attributable to any cause other than delayed completion of the punchlist items. Tribe shall be entitled to offset all such liquidated damages against amounts otherwise due and owing to Contractor. Additionally, Contractor shall pay such amounts to Tribe immediately upon Tribe’s demand (to the extent such amounts are not offset as set forth above).

2.07 Final Inspection. Upon receipt of written notice that the Work is ready for final inspection (and all punchlist items on Tribe’s revised list have been rectified) and upon receipt of and acceptance of a final application for payment, Tribe will promptly make such final inspection and, when Tribe finds the Work acceptable under the Contract Documents and this Agreement fully performed, Tribe will promptly approve a final application for payment.

2.08 Final Payment.

(a) Neither the final payment nor the remaining retained percentage shall become due until Contractor submits to Tribe:

(1) a declaration that upon payment of the amounts shown in such application for payment all payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which Tribe or its property might in any way be responsible shall have been paid or otherwise satisfied;

(2) consent of surety, if any, to final payment;

(3) waivers of liens, in the form provided or approved by Tribe, from Contractor and all subcontractors and suppliers who performed portions of the Work or supplied materials or equipment in connection with the Work;

(4) if required by Tribe, other data establishing payment or satisfaction of all such obligations, such as receipts, releases, and waivers of all possible liens arising out of this Agreement, contractor’s and subcontractor’s affidavits, to the extent and in such form as may be designated by Tribe, and;

(5) as-built drawings, operation and maintenance data, warranties, and other such data as may be required by the Contract Documents, all in form and substance acceptable to Tribe.

2.09 Waiver of Claims.

(a) The acceptance of final payment by Contractor shall constitute a waiver of all claims by Contractor against Tribe except those made or amended in writing with Contractor’s final application for payment which remain still unsettled.

(b) Tribe’s making of the final payment shall not constitute a waiver of any claims by Tribe, nor shall it terminate Contractor's continuing obligations as set forth in this Agreement.

2.10 Taxes.

(a) The Contract Sum includes all sales, consumer, use, personal property and other similar taxes applicable to the Work or any portion thereof provided by Contractor.

(b) Contractor shall pay all applicable sales, consumer, use and other similar taxes for the Work or portions thereof provided by Contractor, regardless of whether such taxes are legally enacted at the time bids are received.

(c) Notwithstanding anything in the foregoing to the contrary, Contractor understands that Tribe is a federally recognized Indian tribe and is therefore entitled to certain immunities from federal, state and local taxation. Contractor agrees to cooperate with Tribe to ensure the goods and services provided under this Agreement (whether by Contractor or subcontractors or other third parties under the Contractor’s control) receive the full benefit of such tax immunities, including but not limited to completion of any necessary tax exemption certificates.

2.12 Liens.

(a) Contractor warrants that the title to all Work, including all materials and equipment incorporated therein, will pass to Tribe either by incorporation in the construction or upon receipt of payment by Contractor, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances (hereinafter collectively referred to in this Article as “liens”).

(b) If any such lien is filed or asserted in connection with Work performed and/or materials supplied to the Site, Tribe shall have the right, in addition to any other right reserved hereunder or at law or equity, to withhold all further payments due Contractor until such lien has been bonded off, or discharged of record, or otherwise disposed of to the Tribe’s satisfaction.

(c) Failure to remove, bond off, or otherwise satisfy any such lien within 10 days after written demand by Tribe shall constitute an event of default hereunder and Tribe, in addition to any other remedies provided for by law or herein, may terminate Contractor pursuant to this Agreement.

(d) If Contractor fails to post a bond or other security acceptable to Tribe in connection with any lien, Tribe may discharge such lien or lien claim by payments to the lien claimant or by such other means as Tribe, in Tribe’s sole discretion, determines is the most economical or advantageous method of settling the dispute. Contractor shall promptly reimburse Tribe, upon demand, for any payments so made by Tribe, and Contractor agrees to indemnify and hold Tribe harmless from all costs and expenses incurred by Tribe in connection with such liens.

(e) Contractor warrants that no Work, including all materials or equipment incorporated therein, will have been acquired by Contractor, or by any other person performing Work at the Site or furnishing materials and equipment for the Work, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller (or may be created at any time in the future) or otherwise imposed by Contractor or such other person.

ARTICLE III: Starting and Completion Dates

3.01 Schedule.

(a) “Schedule,” for purposes of this Agreement means: (i) the progress schedule set forth on Exhibit “A” hereto, or (ii) if no such schedule is set forth on Exhibit “A” hereto, then “Schedule” refers to achievement of Substantial Completion on or before the Required Substantial Completion Date (as defined below).

(b) Work shall be commenced within three (3) days of the date this Agreement is executed and delivered by both parties.

(c) Contractor shall complete each item set forth on the schedule described in Section 5.19 of this Agreement, by the date set forth thereon for the completion of said item.

(d) Contractor shall achieve substantial completion of the Work not later than the Original Substantial Completion Date set forth on the Cover Schedule, subject to extensions authorized by fully-executed change orders (the “Required Substantial Completion Date”) and shall achieve final completion of the Work not later than 30 days thereafter, subject to extensions authorized by change orders.

(e) As used herein, “Date of Substantial Completion of the Work” shall refer to the latest of (i) the date on which the Work is sufficiently complete, in accordance with the Contract Documents, so that Tribe can occupy or utilize the Work for the use for which it is intended.

Without limiting the generality of the immediately preceding phrase “use for which it is intended,” if the Work shall include construction in or about office or other space used directly or indirectly for the conduct of any business, then such use shall include availability to Tribe of all utilities, communication systems, and access facilities (to the extent each is included as part of the Work) sufficient to conduct such business as is contemplated by Tribe upon final completion of the Work, and on which any unfinished items (which are to be listed on the punchlist) can be completed within a thirty (30) day period, (ii) the date that all designated or required governmental inspections have been successfully completed and any required final, unconditional certificate of occupancy has been delivered to Tribe, (iii) the date that all Project systems included in the Work are operational as designed and specified, (iv) the date that all final finishes required by the Contract Document are in place (except for minor punchlist items which do not materially detract from the appearance and utility of the Project for its intended use), and (v) the date that Contractor has provided Tribe’s property management and operations personnel with training in the operation and maintenance of building systems and controls installed as part of the Work.

(f) “Final Completion of the Work” as used herein, shall refer to the date on which the Work is fully completed, to the satisfaction of Tribe, in accordance with the Contract Documents, all punchlist items are completed, and all other conditions precedent to final payment contained in this Agreement have been satisfied.

3.02 Time of the Essence. All time limits for Contractor’s performance stated in the Contract Documents are of the essence.

3.03 Schedule Extensions.

(a) If Contractor is delayed at any time in the progress of the Work by any act or neglect of Tribe or any of its employees, or by any separate contractor employed by Tribe or by fire or other unavoidable casualty, unusual delay in transportation, adverse weather conditions not reasonably anticipated, or any causes beyond Contractor’s control, or by delay authorized by Tribe or by any other cause which Tribe determines may justify the delay, then Contractor shall file a claim in accordance with Section 3.04 below and, if approved by Tribe, the contract time shall be extended by change order for such reasonable time as Tribe may determine.

(b) In no event shall any such extension of contract time exceed the actual period of time lost by reason of the causes aforesaid.

(c) In all events, Contractor shall use Contractor’s best efforts to eliminate the cause of any delay or to minimize delay.

(d) Contractor further acknowledges and agrees that the Schedule shall not be adjusted for any delay to the extent such delay:

(1) is caused or could have been avoided or limited by Contractor;

(2) could have been limited or avoided by Contractor’s timely notice to Tribe of any delay, or;

(3) resulted from a concurrent or contributing cause for which Contractor would not be entitled to an extension of the contract time.

(e) Contractor’s sole and exclusive remedy for any (i) delay in the commencement, prosecution or completion of the Work, (ii) hindrance or obstruction in the performance of the Work, (iii) loss of productivity, or (iv) other similar claims (collectively referred to in this Section 3.03 as “Delays”) whether or not such Delays are foreseeable, shall be an extension of time in which to complete the Work if permitted under this Article 3.

(f) In no event shall Contractor be entitled to any adjustment of the Contract Sum or any other remedy, compensation or recovery of any damages in connection with any Delay, including consequential damages, lost opportunity costs, impact damages or other similar remuneration.

3.04 Schedule Extension Claim.

(a) Any claim for extension of time shall be made in writing to Tribe not more than five (5) days after the commencement of the delay; otherwise said claim shall be waived. In the case of a continuing delay, only one claim is necessary. The presentation of any such claim shall not establish the validity of the claim.

(b) With such claim, Contractor shall provide an estimate of the probable effect of such delay on the progress of the Work, and Contractor shall immediately use its best efforts to lessen the adverse impact of such delay.

(c) If Tribe shall approve the claim, Tribe shall issue a change order extending the contract time.

(d) If Tribe shall disapprove the claim, Tribe shall issue a written statement setting forth the reasons for such disapproval.

(e) Any extension of the contract time shall be net of any contingency or “float” time in the Schedule.

3.05 Tribe Suspends Work. If Owner directs Contractor to temporarily suspend performance of the Work, Contractor shall be entitled to an extension of the contract time equal to the number of days performance of the Work is suspended plus one additional day, which extension shall be evidenced by a change order.

ARTICLE IV: Information and Services Required of Tribe

4.01 Tribe Information. Information in the possession of Tribe which is needed for furthering the Work shall be furnished by Tribe within a reasonable time.

4.02 Tribe Furnishes Utilities. If the Work is to be performed in an existing structure, and unless otherwise specifically noted, Tribe shall furnish water, heat and other utilities required for the Work. Tribe may direct Contractor to arrange for utility services required for completion of the Work.

ARTICLE V: Performance

5.01 Contractor Review of Contract Documents.

(a) Contractor represents that (i) Contractor has carefully reviewed the Contract Documents,

(ii) the Contract Documents are complete, and (iii) the Contract Documents are sufficient to enable Contractor to construct the Work for the Contract Sum, within the contract time and in strict accordance with the Contract Documents, in accordance with all laws, regulations, and other government requirements, and otherwise to fulfill all Contractor’s obligations hereunder.

(b) Contractor represents that Contractor has visited the Site, examined and made itself fully familiar with all conditions affecting the Work, and affecting the Site and has correlated Contractor’s observations with the requirements of the Contract Documents.

(c) If Contractor performs any Work in accordance with the Contract Documents which Contractor knows, or a first-class contractor upon reasonable inquiry should have known, to be contrary to any applicable laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the Work, Contractor shall assume full responsibility therefor and shall bear all costs attributable thereto, including any necessary alterations.

(d) Errors, inconsistencies or omissions known to or discovered by Contractor shall be immediately reported in writing to Tribe and, if applicable, the Engineer.

(e) Contractor shall be responsible for inspection of portions of Work already performed under this Agreement to determine that such portions are in proper condition to receive subsequent Work.

(f) Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of shop drawings, product data or samples until the required submittal has been approved (or approved as noted).

5.02 Subcontractor and Material Supplier Approval.

(a) Contractor shall not award or enter into any contract with any subcontractor or material supplier without Tribe’s approval of the identity of such subcontractor or material supplier.

(b) Contractor shall furnish to Tribe in writing the names of the proposed subcontractors and material suppliers (including those who are to furnish materials or equipment fabricated to a special design) anticipated for each of the principal portions of the Work.

(c) Each subcontract agreement shall allow assignment to Tribe, at Tribe’s written election, following any termination of this Agreement and, in the alternative, shall allow termination without penalty if this Agreement is terminated for Tribe’s convenience.

5.03 Rejection of Subcontractor.

(a) Contractor shall not contract with any such proposed person or entity to whom Tribe has made reasonable objection.

(b) Contractor shall not be required to contract with anyone to whom it has a reasonable objection.

5.04 Means and Methods. Contractor shall be responsible for all means and methods utilized in the performance of the Work, and shall perform all Work in accordance with industry standards for quality, timeliness, and safety.

5.05 Discipline, Order and Replacements.

(a) Contractor shall at all times enforce strict discipline and good order among its employees and any other persons acting on Contractor's behalf and shall not employ on the Work any unfit person or anyone not skilled in the task assigned to him.

(b) Tribe may request the replacement of any of Contractor’s or subcontractor’s employees or independent contractors, with or without cause, and Contractor or subcontractor shall immediately remove and replace such employee or independent contractor with a substitute acceptable to Tribe.

5.06 Contractor’s Conduct.

(a) Contractor agrees that Contractor shall be responsible for the conduct of all of Contractor’s employees and those of its subcontractors.

(b) Contractor shall not permit workers to interrupt the business being conducted by any party in any areas not within the specific area within which the Work is to be performed or do any other act which may be offensive or detrimental to the reputation of Tribe, the Site, or any tenant or offensive to the patrons of the tenants of the adjoining enterprises.

5.07 Acts and Omissions. Contractor shall be responsible to Tribe for the acts and omissions of its employees, subcontractors, material suppliers, their respective agents and employees and all other persons performing any of the Work by agreement with or under the direction of Contractor.

5.08 Labor and Materials. Unless otherwise specifically noted, Contractor shall provide and pay for all labor, materials, equipment, tools, construction equipment, machinery, transportation, and other facilities and services necessary for the full, timely, and proper execution and completion of the

5.09 Warranty.

(a) In addition to the Contractor's warranty obligations specified in Section 5.12, Contractor warrants to Tribe all Work performed and material and equipment furnished against defects and deficiencies which develop within a period of one year. Contractor shall require each subcontractor to execute and deliver to Tribe a warranty of the Work to be performed by such subcontractor, in form satisfactory to Tribe which shall equal or exceed the requirements of Section 5.10 and shall be freely assignable by Tribe and otherwise be in form and substance satisfactory to Tribe. Such warranty by a subcontractor shall be enforceable directly by Tribe against each such subcontractor and shall be in addition to any guaranty or warranty provided by Contractor herein. Each subcontract agreement shall specifically provide that Tribe is an intended third-party beneficiary of such subcontract agreement, and is entitled to the benefit of the performance of the subcontractor and may enforce the obligations and responsibilities of the subcontractor directly against the subcontractor. Contractor shall assign all such subcontractor warranties and guaranties to Tribe as a condition precedent to Contractor’s receipt of the final payment of the Contract Sum. Contractor shall also require each subcontractor, to the extent of the Work to be performed by the subcontractor, to be bound to Contractor by the terms of the Contract Documents, and to assume with respect to Contractor all the obligations and responsibilities which Contractor, under the Contract Documents owes to Tribe, including Contractor’s indemnification obligations. Such warranty period shall be extended with respect to portions of the Work first performed after Substantial Completion (including correction work) (“Extension Work”) to the same warranty period after substantial completion of such Extension Work.

(b) Contractor shall promptly correct any Work that fails to conform to the requirements of the Contract Documents where such nonconformity appears during the progress of the Work and the applicable warranty period.

(c) The foregoing time limitations shall not apply to defects and deficiencies which are latent and not readily ascertainable by ordinary observation.

(d) The warranty period for heating, ventilating, air conditioning, or other utility or building systems incorporated as part of the Work shall not commence until the same are turned over to and accepted by Tribe for Tribe’s exclusive use after Substantial Completion of the

(e) Nothing contained in this Section 5.09 shall be construed to establish a period of limitation with respect to other obligations which Contractor has under Section 5.12 of this Agreement or under any of the other Contract Documents.

(f) Establishment of the period for correction of Work as described in this Section 5.09 relates only to the specific obligation of Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish Contractor's liability with respect to Contractor's obligations other than specifically to correct the Work as provided in this Section 5.09.

5.10 Material and Equipment Warranties.

(a) Contractor shall obtain warranties with respect to all equipment and materials and personal property supplied with respect to the Project from the respective suppliers, at least as favorable as those generally supplied with respect to such equipment, materials and personal property by suppliers thereof, which warranties shall be enforceable directly by Tribe against such suppliers and shall be in addition to any warranty or guarantee provided by Contractor herein.

(b) Contractor shall assign all warranties and guaranties relating to all such equipment and materials and personal property supplied with respect to the Project to Tribe as a condition precedent to Contractor’s receipt of final payment of the Contract Sum.

5.11 New Equipment and Materials.

(a) Contractor covenants and warrants to Tribe that all materials and equipment incorporated in the Work will be new unless otherwise specified, and that all Work will be of good quality and workmanship consistent with industry standards, free from faults and defects and in conformance with the Contract Documents.

(b) Contractor’s obligations set forth in Subsection 5.12(a) shall not be limited by any specific warranty set forth in Section 5.09 or to any of the durations set forth in Section 5.09. The warranty provided in this Section 5.12 is in addition to and not in limitation of any other warranty specified in this Agreement or elsewhere in the Contract Documents or otherwise provided by law.

(c) All Work not so conforming to these standards, including substitutions not properly approved or authorized, may be considered defective.

(d) If required by Tribe, Contractor shall furnish satisfactory evidence of the kind and quality of labor, materials and equipment incorporated in any portion of the Work.

5.12 Damage to Property.

(a) Should Contractor or any subcontractor or person for whom Contractor has responsibility cause damage to the Work or the property of Tribe, or to other work on the Site, Contractor shall promptly remedy such damage.

(b) In the event Contractor fails to do so, Tribe may remedy such damage and charge the cost thereof to Contractor and deduct the amount of any such payment from future amounts otherwise due or to become due to Contractor or require Contractor to immediately reimburse Tribe, at Tribe’s option.

5.13 Government Requirements. Contractor shall give all notices and comply with all laws, ordinances, rules, regulations, and other government requirements of any public authority bearing on the performance of the Work, and shall notify Tribe if, to the best of Contractor’s knowledge acting as a first-class contractor, any drawings and specifications are at variance therewith.

5.14 Use of Site.

(a) Contractor shall confine operations at the Site to areas permitted by law, ordinances, permits, and the Contract Documents and shall store materials in accordance with Tribe’s direction.

(b) Contractor shall not utilize the Site so as to interfere with Tribe’s operations or any Work being prosecuted by others, and Contractor shall control construction traffic and parking as Tribe directs.

(c) Contractor shall use the Site only for purposes necessary to the performance of the Work.

(d) Only materials and equipment which are to be used directly in the Work shall be brought to and stored on the Site by Contractor.

(e) Materials or equipment no longer required for the Work shall be promptly removed from the Site.

5.15 Signage.

(a) Neither Contractor nor any entity controlled or supervised by Contractor shall erect any sign on the Site without the prior written consent of Tribe, which may be withheld, conditioned or delayed in the sole discretion of Tribe.

(b) The size, content, and placement of all signs advertising operations of Contractor or any of its subcontractors shall be subject to Tribe’s prior approval, which may be withheld, conditioned or delayed in the sole discretion of Tribe.

5.16 Debris.

(a) At all times Contractor shall keep the Site and surrounding area free from accumulation of waste materials or rubbish caused by Contractor’s operations.

(b) At the completion of the Work, Contractor shall remove all of its waste materials and rubbish, as well as all of its tools, construction equipment, machinery, and surplus materials (including those of Contractor’s subcontractors and material suppliers and others for whom Contractor is responsible) from and about the Site.

(c) If Contractor fails to clean up at the completion of the Work, Tribe may do so and charge the cost thereof to Contractor, or at Tribe’s option, deduct the expense thereof from amounts due or otherwise to become due to Contractor or require Contractor to immediately reimburse Tribe, at Tribe’s option.

5.17 Schedule.

(a) Should the Work fall behind schedule for any reason other than a reason for which an extension of contract time may be permitted as described in this Agreement, Contractor immediately shall take all necessary action to return, and shall be solely responsible for any additional costs associated with returning, the Work to an on-schedule condition.

(b) If Tribe determines that the performance of the Work is behind schedule or the level of completion required by the Contract Documents, Tribe shall have the right, but no obligation, to order Contractor to take corrective measures necessary to expedite the progress of construction, including (1) working additional shifts or overtime, (2) supplying additional manpower, equipment, and facilities and (3) other similar measures (collectively “Curative Measures”).

(c) The determination of whether the progress of the Work is behind schedule shall take into account any extensions in time to which Contractor is entitled under this Agreement.

(d) Tribe may continue to require Contractor to use Curative Measures until the progress of the Work complies with the stage of completion required by the Contract Documents.

(e) Contractor shall not be entitled to an adjustment in the Contract Sum in connection with Curative Measures required by Tribe pursuant to this Section.

(f) Tribe may exercise its rights under or pursuant to this Section as frequently as Tribe deems necessary to ensure that Contractor’s performance of the Work will comply with the Schedule and the Contract Documents.

5.18 Site Documents.

(a) Contractor shall maintain at the Site for Tribe one record copy of all drawings, specifications, addenda, change orders, and other modifications, in good order and marked currently to record all changes made during construction and approved shop drawings, product data and samples (the “Site Documents”).

(b) The Site Documents shall be delivered to the Tribe upon completion of the Work.

5.19 Equal Opportunity.

(a) Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, age or national origin or ancestry or any other protected classification in the jurisdiction in which the Work is performed.

(b) Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, age or national origin or ancestry, or any other protected classification in the jurisdiction in which the Work is performed.

(c) Such action shall include, but not be limited to, the following: employment, job classification, upgrading, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for and quality of training, including apprenticeship.

5.20 Hazardous Substances.

(a) Contractor shall not use in connection with the Work any hazardous waste, toxic substance or related materials (“Hazardous Materials”), in such manner as would violate any law, regulation or other government requirement or would cause substantial damage or a risk of substantial damage to the environment, or in such a manner as to be unlawful or leave any residue which could be hazardous to persons or property or cause liability to Tribe.

(b) Upon Contractor encountering any Hazardous Materials at the Site not contemplated to be handled as part of the Contract Documents, Contractor shall immediately notify Tribe in writing of such encounter and stop all Work related to such Hazardous Materials until Contractor and Tribe can determine an appropriate course of action to take.

(c) For purposes of this Agreement the term “Hazardous Materials” shall include, but shall not be limited to, substances defined as “hazardous substances” or “toxic substances” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9061 et seq., Hazardous Materials Transportation Act, 49 U.S.C.

Sec. 1802, and the Resource Conservation Act and Recovery Act, 42 U.S.C. Sec. 6901 et seq., and any other substances identified in laws or regulations applicable to the Work.

(d) The foregoing shall not be deemed to prohibit Contractor from using in the Work any item specified by name in the plans and specifications so long as the use of such item is in accordance with its instructions and applicable laws.

5.21 Overtime. Any overtime work or payments must be specifically approved in advance by Tribe in writing.

5.22 Submittals.

(a) Contractor shall procure, review, and submit, with reasonable promptness and in such sequence as to cause no delay in the Work or in the Work of Tribe or any separate contractor, all shop drawings, product data and samples required by Contract Documents (the “Submittals”).

(b) Contractor shall promptly prepare and deliver to Tribe and Engineer of Record a complete and detailed schedule specifying all Submittals which are required or anticipated to be delivered by the Contract Documents.

(c) Should any portion of the Work requiring submission of a shop drawing, product data or sample be commenced prior to such submittals having been approved by the Tribe and Engineer of Record, such portion of the Work, to the extent the same shall not be in accordance with subsequently approved submittals, shall be at Contractor’s sole risk, shall be deemed defective Work, and shall be corrected by Contractor pursuant to this Agreement.

5.23 Deviation from Specifications – Submittals. Contractor shall be responsible to ensure that all Submittals are based upon the plans and specifications for the Work and do not deviate from said plans and specifications, notwithstanding that Tribe or Engineer of Record may have reviewed and approved such shop drawings, samples or other items, it being agreed by Contractor that such review and approval by Tribe or Engineer of Record shall in no way relieve Contractor from Contractor’s responsibility to perform the Work in accordance with the Contract Documents unless such deviations are specifically noted in writing by Contractor and specifically approved in writing by Tribe.

5.24 Contractor Restrictions.

(a) Contractor shall not permit either its employees or those of its subcontractors to possess or consume drugs or alcohol on the Site.

(b) Contractor shall prohibit smoking and use of vapor devices by Contractor’s and all subcontractor’s employees except in areas, if any, designated by Tribe as places where smoking is allowed.

5.25 Work in Occupied Areas. Contractor shall take special care in occupied areas to safeguard equipment and furniture and where Work occurs in proximity to computer and other equipment, extraordinary precautions will be required to ensure that such equipment suffers no damage.

5.26 Building Service Shutdown. If the Work requires a temporary shut-down of a building service in an occupied facility, Contractor shall cause the Work to be accomplished during other than normal hours and coordinated with Tribe at Contractor’s expense; provided further that Contractor shall give adequate notice to Tribe that Contractor will require a shut-down of such services.

ARTICLE VI: Work by Tribe or by Separate Contractors

6.01 Work on Site by Others.

(a) Tribe reserves the right to perform work related to the Site with its own forces, and to award separate contracts in connection with other portions of the Site or other work on the Site under these or similar Contract Documents.

(b) If Contractor claims that delay is involved because of such action by Tribe, Contractor shall make such claim for an extension of time as provided in Section 3.03, which shall be Contractor’s exclusive remedy and compensation.

6.02 Coordination of Work by Others. Contractor shall afford Tribe and separate contractors reasonable opportunity for the introduction and storage of their materials and equipment and the execution of their work and shall connect and coordinate with such Work as the circumstances may require.

6.03 Acceptance of Work by Others.

(a) If any part of Contractor’s Work depends for proper execution or results upon the work of Tribe or any separate contractor, Contractor shall, prior to proceeding with its Work, promptly notify Tribe in writing of any apparent discrepancies or defects in such other work that render it unsuitable for the containment of such proper execution or such anticipated results.

(b) Failure of Contractor to so report shall constitute an acceptance of Tribe’s or separate contractor’s Work as fit and proper to receive its Work, except as to latent defects which may subsequently become apparent in the work performed by others.

6.04 Defective Work by Others. Any costs caused by defective or ill-timed Work shall be borne by Contractor or the separate contractor responsible therefor, as the case may be.

6.05 Contractor Damage to Work by Others.

(a) Should Contractor cause damage to the work or property of any separate contractor, upon due notice Contractor shall promptly and in good faith attempt to settle with such other contractor by agreement, or otherwise, to resolve the dispute.

(b) If such separate contractor sues or initiates proceedings against Tribe on account of any damage alleged to have been caused by Contractor, Tribe shall notify Contractor, who shall defend such proceedings at Contractor’s expense; and if any such judgment or award against Tribe arises therefrom, Contractor shall pay or satisfy it and shall reimburse Tribe for all attorneys’ fees, court and other costs which Tribe has incurred.

6.06 Clean Up. If a dispute arises between Contractor and separate contractors as to their responsibility for cleaning up areas of Work, Tribe may clean up and charge the cost thereof to the contractors responsible therefor as Tribe shall determine to be just.

ARTICLE VII: Changes in the Work

7.01 Tribe Initiated Change Orders.

(a) Tribe may order additions, deletions or other modifications in the Work by giving Contractor written notice of said change or modification pursuant to a change order, in the form as set forth on Exhibit C, attached hereto and incorporated herein, stating with particularity the changes involved, the adjustments to the Schedule or other provisions of the Contract Documents relating to time and other pertinent information.

(b) A change order signed by the Tribe and the Contractor shall constitute the final agreement on all matters relating to the change in the Work which is the subject of the change order, including all direct and indirect costs associated with such change and any and all adjustments to the Contract Sum and the Schedule. When a change order is issued by the Tribe, the Contract Sum shall be adjusted as follows:

(1) Additions

(A) If Contractor performs the additional Work, Contractor shall be allowed an increase in the Contract Sum amounting to the actual cost of performing the additional Work without a change in general conditions items unless agreed to in writing and in advance by Tribe.

(B) If a subcontractor performs the additional Work, Contractor will be allowed an increase in the Contract Sum amounting to the subcontractor’s actual cost of performing the additional Work together.

(C) In no event, however, shall Tribe pay Contractor more than the sum of the actual cost of the additional Work paid to subcontractors.

(2) Deletions.

(A) Where Tribe decreases the Work resulting in a decrease in Contractor’s cost of performing the Work without a change in general conditions items unless agreed to in writing and in advance by Tribe, Tribe shall be allowed a decrease in the Contract Sum amounting to the estimated cost of performing the deleted Work.

(B) If a subcontractor had been engaged to perform the deleted Work, Tribe shall be allowed a decrease in the Contract Sum amounting to the estimated cost of performing the deleted Work.

(c) Allowances.

(1) The Contract Sum may include items which are considered to be allowances.

(2) If the cost of these items is increased or decreased, the Contract sum shall be altered by the increase or decrease of said allowance.

7.02 Acceptance.

(a) Contractor shall not receive any compensation or any adjustment in the Contract Sum or the time for performance under this Agreement for any alterations or additions in connection with any work, services or other activities of Contractor pertaining to the Project unless such work, services or other activities is authorized in a change order, as more specifically described under Section 7.01 above.

(b) No course of conduct or dealing between the parties, no express or implied acceptance of alterations or additions to the Work and no claim that Tribe has been unjustly enriched by any alteration or addition to the Work, whether there is any unjust enrichment, shall be the basis of any claim for adjustment in compensation due Contractor in connection with the Project or for adjustment in any time period provided for under the Agreement.

(c) Contractor hereby waives and forfeits all claims that any work, services or other activities were performed pursuant to an oral contract or other oral agreement separate from the Contract Documents.

7.03 Calculation of Changes in Work.

(a) If the adjustment to the Contract Sum set forth in Section 7.01 is not agreed upon by Tribe and Contractor in advance, Tribe may nevertheless give Contractor written direction to proceed with the Work in question, in which event Contractor shall promptly proceed to perform the Work as directed.

(1) The cost of such Work shall then be determined by Tribe or its designee on the basis of the reasonable expenditures and savings of those performing the Work attributable to the change.

(2) In such case, Contractor shall keep and present, in such form as Tribe may prescribe, an itemized accounting together with appropriate supporting data for inclusion in a change order within twenty (20) days of request for change.

(3) Unless otherwise provided in the Contract Documents, the cost of the Work with respect to any change in the Work shall be limited to the following items to the extent attributable to such change in the Work: cost of materials, including sales tax and cost of delivery (notwithstanding the preceding clause, for any materials relating to Work which is being paid for by Tribe on a unit price basis, such materials shall only constitute a “cost” when and to the extent fully incorporated into the Work); cost of labor, including social security, old age, and unemployment insurance,…