T13_Sample Contract_Technology Systems and Installation Agreement for DHE 02202018 vD1.pdf

This document is based on AIA Document A175ID-2003 and A275ID-2003. Copyright 2003 by The American Institute of Architects.

AGREEMENT FOR PURCHASE AND INSTALLATION OF TECHNOLOGY SYSTEM(S)

This Agreement for Purchase and Installation of Technology System(s) (this “Agreement”) is made as of the ____ day of ______, 2018 (the “Effective Date”), by and between:

Birmingham Public Schools (the “Owner”) 31301 Evergreen Road Beverly Hills, MI, 48025 and

Name (the “Contractor) Address City, State ZIP

Recitals

A. As set forth in the Contract Documents (as defined below), Owner desires to have the System(s) (both Contractor-furnished and/or Owner-furnished) installed at the site of the Project (the “Project Site”), and Contractor desires to provide the System(s) to Owner and provide all necessary equipment, components, materials, documentation, labor, migration services, testing, and other related Services for its installation and configuration, as required in the Contract Documents, based on the terms and conditions set forth in this Agreement.

Agreement

Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Contractor agree as follows:

1. Contract Documents

1.1 As used in this Agreement, the “Contract Documents” include the following documents, which are incorporated herein by reference into this Agreement:

(a) this Agreement;

(d) post-bid review form dated __________________;

(c) the Request For Proposal dated _________ (the “RFP”) assembled by Barton Malow Company (“BMC”) on behalf of the Owner, for the labor, materials, and services required for the Contractor to complete the scope of work in accordance with the Contract Documents for the Project (collectively, the “Work”). Contractor is being awarded the following bid categories: __________;

(d) Addendums issued during the bid period: ___________________;

(e) any graphic and pictorial representations showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams (collectively, the “Drawings”);

(f) the written requirements for the System(s) and workmanship standards for the Work (collectively, the “Specifications”);

(f) Contractor’s response to the RFP, including the Drawings and Specifications dated ____________ except to the extent exceptions contained in the Contractor’s response to the RFP are not expressly accepted by the Owner in writing and incorporated into this Agreement.

(g) any Change Orders or other written amendments to this Agreement signed by both parties; and

(h) a written order for a minor change in the Work issued by BMC or the Owner.

1.2 The order of precedence for the Contract Documents is the order set forth above in Paragraph 1.1. The Owner and Contractor agree that where there is a conflict between terms of this Agreement and the other Contract Documents, this Agreement shall take precedence. However, the parties also agree that where there is not a conflict between any of the terms and conditions contained in the above-referenced Contract Documents, all of the Contract Documents shall be binding upon both parties, except to the extent the exceptions contained in the Contractor’s response to the RFP are not expressly accepted by the Owner in writing and incorporated into this Agreement.

1.3 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results.

1.4 Unless otherwise stated in the Contract Documents, words that have well-known technical or industry meanings are used in the Contract Documents in accordance with such recognized meanings.

This document is based on AIA Document A175ID-2003 and A275ID-2003. Copyright 2003 by The American Institute of Architects.

1.5 Because the Contract Documents are complementary, the Contractor shall, before starting the Work, carefully study and compare the various Drawings, Specifications, and other Contract Documents relative to the Work, as well as the information furnished by the Owner. These obligations are for the purpose of facilitating delivery and installation of the System(s) and are not for the purpose of discovering errors, omissions or inconsistencies in the Contract Documents;

however, the Contractor shall report promptly to BMC any errors, inconsistencies or omissions the Contractor discovers.

1.6 It is recognized that the Contractor’s review of the Contract Documents is made in the Contractor’s capacity as a Contractor and not as a licensed design professional. The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations, but the Contractor shall report promptly to BMC any nonconformity discovered by or made known to the Contractor. If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes or rules and regulations without such notice to the Owner and BMC, the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction.

1.7 The Contractor’s execution of this Agreement is a representation that the Contractor has reviewed the Contract Documents, visited the Project Site, become generally familiar with the conditions under which the Work is to be performed and correlated personal observations with the requirements of the Contract Documents and the Project Site’s suitability for the Owner’s intended use as such use relates to the Work.

2. Owner’s Obligations

2.1 The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner’s approval or authorization with respect to the Contract Documents unless expressly provided in writing by the Owner, BMC does not have such authority.

2.2 The Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. The Owner shall furnish any other information or services under the Owner’s control and relevant to the Contractor’s performance of the Work after receipt from the Contractor of a written request for such information or services.

3. Contractor’s Obligations

3.1 The Contractor shall perform the Work in accordance with the Contract Documents.

3.2 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of BMC in its administration of this Agreement or by tests, inspections or approvals required or performed by persons other than the Contractor.

3.3 This Agreement and the other Contract Documents set forth the terms and conditions upon which the Contractor will provide a "turnkey" solution for installation and operation of the System(s) for use by the Owner. The Contractor agrees that it will provide a complete "Turnkey Solution" to the Owner. The Contractor shall be responsible for the successful installation and operation of the System(s) in all phases of design, acceptance testing and documentation of the System(s) as detailed in the Contract Documents.

4. Time

4.1 Unless otherwise directed by Owner in writing, within five (5) business days of the Effective Date of this Agreement, Contractor shall commence the Work. The Work may constitute the whole or a part of the Project with regard to the System(s) required by the Contract Documents.

4.2 Contractor shall proceed expeditiously with adequate forces and shall complete the installation and configuration on or before _________ with any remaining post-install work and documentation completed by ________ (the “Completion Date”) with phases complete as shown in the Contract Documents.

4.3 Time limits stated in the Contract Documents are of the essence of this Agreement. By executing the Agreement, the Contractor confirms that the Completion Date stated above provides a reasonable period for performing the Work.

4.4 In the event the Contractor is unable to adhere to the implementation schedule or complete the Work, the Owner shall have the option to terminate this Agreement, award the remaining work to another contractor or negotiate a final Completion Date. In the event the Owner so terminates this Agreement and awards the remaining work to another contractor, the Contractor shall be responsible for and shall hold Owner harmless from any costs or fees to complete the Work which exceed the amount of the Contract Sum remaining unpaid at the time of termination. Any changes or deviations to the schedule caused by failure of the Owner or any third parties to meet the Completion Date for any phase set forth therein, shall result in an adjustment to the Completion Date in the same magnitude which shall be subject to the Contractor’s approval, which approval shall not be unreasonably withheld. Contractor shall not be entitled to monetary recovery for delays in installation caused by failure of the Owner, Owner’s employees or the Owner’s independent contractors.

This document is based on AIA Document A175ID-2003 and A275ID-2003. Copyright 2003 by The American Institute of Architects.

5. Contract Sum and Payments

5.1 The Owner shall pay the Contractor the sum of _______________ and __/100 Dollars ($_____.__) in current funds, including all applicable taxes (collectively, the “Contract Sum”), for the Contractor's satisfactory performance of its obligations under the Contract Documents; provided, however, that the Contract Sum is subject to change, as provided in this Agreement. The Contract Sum is based on the following:

Base Bid: $ Alternate X: Description $ Vol. Alternate Y: Description $ Total Contract Sum: $

5.1A The Contract Sum will be adjusted using the alternate pricing submitted with the Contractor’s response to the RFP if the associated scope of work is authorized by the Owner and added to this Agreement.

5.2 The Contractor may submit for progress payments at most once monthly. Pay applications shall be submitted using the Application and Certificate for Payment (AIA Documents G702 and G703 Continuation Sheet) or other form approved in advance by BMC.

5.3 Before the first application for payment, the Contractor shall submit to the Owner a quotation schedule showing the values allocated to each quotation for portions of the Work (“Schedule of Values”). The Contractor’s schedule of values shall be accompanied by a certified statement from the Contractor prepared in such form and supported by such data to substantiate its accuracy as the Owner may require. This schedule, when approved by the Owner, shall be submitted with each application for payment and shall be used as a basis for reviewing the Contractor’s applications for payment.

5.4 Unless otherwise specified by BMC, on or before the twentieth (20th) of the month, the Contractor may submit a draft of the Application for Payment. The Contractor is to invoice for Work completed from the twentieth (20th) of last month to the twentieth (20th) of the present month. The Contractor shall submit during the review, the itemized rough draft of the Application and Certificate for Payment (AIA Documents G702 and G703 Continuation Sheet) or other form approved in advance by BMC identifying the Work completed, if any, during the current calendar month; shall review same with BMC and obtain a preliminary approved copy of the draft for official submission. Contractor’s pay application shall only reflect Work completed through the date of submission. In no event will payments be authorized for forecasted Work.

5.5 With the draft information agreed upon, the Contractor will prepare a formal application for payment request. Three (3) originals of the request and three (3) originals of the sworn statements must be submitted to BMC's office on or before the twenty-fifth (25th) of the month, or as otherwise scheduled with the project team. Late or incomplete application packets will not be accepted. The payment request will be made on an Application and Certificate for Payment form (AIA documents G702 and G703) or other form approved in advance by BMC. Each Contractor is responsible for obtaining the forms. Before submitting these documents to BMC, each request for payment must be signed by a duly authorized agent of the Contractor and notarized. The Contractor must include with each request for progress payment a waiver of lien for all previous payments, Contractor’s sworn statement and any necessary backup data, Waivers of Lien and Sworn Statements. In addition, at submission of the final pay application Contractor shall provide unconditional final waivers of lien for all Subordinate Parties, as well as all documentation required. In requests for payment which follow the execution of a Change Order in excess of twenty-five percent (25%) of the Agreement price, Contractor must present a bond rider evidencing that the penal sum of any required payment and performance bonds have been increased to one hundred percent (100%) of the adjusted Agreement price. Submission of the required back-up data is a condition precedent to payment.

5.6 No payment shall be issued to a Contractor for materials stored off-site unless approved in writing by the Owner. If approved, the Contractor will be required to provide additional documentation for the stored materials. If billing for stored materials will be requested by the Contractor, the Contractor must review the additional requirements with BMC prior to submission on the Application for Payment.

5.7 Owner shall be entitled to withhold ten percent (10%) of each payment due to a Contractor until the punchlist has been completed and all closeout documents have been submitted.

5.8 Each application for payment shall be based on the payment terms as described in this Section and shall be prepared in such form and supported by such data to substantiate its accuracy as the Owner may require.

5.9 Second and final payments must be accompanied by lien waivers from the Contractor, its Subordinate Parties or receipted invoices covering payment to the Contractor for previous billings. Lien waivers must be unconditional and must show the amount paid.

5.10 An “Acknowledgment of Payment and Partial Unconditional Release” will be provided by BMC to be signed by an authorized representative of the Contractor. Under no circumstances will payment be released to the Contractor until the completed "Acknowledgment of Payment and Partial Unconditional Release" has been submitted and signed by the Contractor from the previous month.

5.11 Final payment will not be made until an Unconditional Final Release and Waiver has been submitted. This will also be distributed by BMC for Contractor signature and must be returned by the Contractor. The Unconditional Final Release and Waiver must be signed by an authorized representative of the Contractor and must be notarized.

5.12 An Unconditional Final Release and Waiver will be required from all of Contractor’s Subordinate Parties (e.g. suppliers) and must be submitted along with the Unconditional Final Release and Waiver, before payment can be made.

This document is based on AIA Document A175ID-2003 and A275ID-2003. Copyright 2003 by The American Institute of Architects.

5.13 Provided an Application for Payment is submitted to BMC and approved not later than the twenty-fifth (25th) day of a month, the Owner’s payment to the Contractor will be issued not later than forty-five (45) days from the date the approved invoice is received by the Owner, unless and to the extent reasonably disputed by the Owner in good faith.

6. Taxes, Permits, Fees and Notices

6.1 The Contract Sum is inclusive of any applicable taxes. The Owner, however, is a tax-exempt entity except if the Project makes additions and/or enhancements to real property. The Contractor shall pay all required sales, consumer, use and similar taxes for the Work provided by the Contractor.

6.2 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required as of that date.

6.3 The Contractor shall comply with and give notices required by all laws, ordinances, rules, regulations and lawful orders applicable to the Project.

7. Supervision of the Work

7.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for and have control over the means, methods, techniques, sequences and procedures of completing the Work and for coordinating all portions of the Work under this Agreement, unless the Contract Documents give other specific instructions concerning these matters.

7.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor’s employees, Subcontractors and their agents and employees, and other persons or entities performing or providing portions of the Work to, for or on behalf of, the Contractor or any of its Subcontractors. In using Subcontractors, the Contractor agrees to be responsible for all their acts and omissions to the same extent as if the Subcontractors were employees of the Contractor.

7.3 The Contractor shall not contract with a proposed Subcontractor, person or entity to whom the Owner or BMC has made reasonable objection or change a Subcontractor, person or entity previously selected if the Owner or BMC makes reasonable objection to such change. If the Owner or BMC has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the Owner or BMC has no reasonable objection.

7.4 By appropriate written agreement, each Subcontractor to the extent any of the Work to be performed by Subcontractor(s), shall agree to be bound to the Contractor by all of the terms and conditions contained in the Contract Documents and all of the obligations and responsibilities which the Contractor through the Contract Documents has agreed to be bound.

Each subcontract agreement shall preserve and protect the rights of the Owner, Construction Manager, BMC, and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies, and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with persons or entities who have a direct or indirect contract with a Subcontractor to perform a portion of the Work at the Project Sites (each, a “Sub-subcontractor”).

7.5 All contracts between Contractor and Subcontractors and Subcontractors and Sub-subcontractors shall be in writing and shall specifically provide that the Owner is an intended third-party beneficiary of such subcontracts. Each such agreement shall also be assigned to the Owner, provided, that (a) assignment is effective only after termination of this Agreement by the Owner and only for those agreements which the Owner expressly accepts by notifying the Subcontractors or the Sub-subcontractors in writing; and (b) assignment is subject to the prior rights of the surety, if any, obligated under bond relating to this Agreement.

8. Labor and Materials

8.1 Contractor shall provide and pay for any labor, materials, tools, machinery, delivery, installation and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated into the Work.

8.2 The Contractor shall not make substitutions until after evaluation by BMC and approval by the Owner.

9. Indemnification

9.1 Contractor shall indemnify, defend and hold harmless the Owner, its Board of Education, its Board Members, in their official and individual capacities, its administrators, employees, contractors and agents, including Plante Moran Cresa, LLC (“PMCRESA”) and BMC including their employees, contractors, and agents, from and against any and all claims, counter claims, suits, debts, demands, actions, judgments, liens, costs, expenses, damages, injuries, losses, and liabilities, including attorney’s fees and expert witness fees, arising out of, in connection with or resulting from: (i) the negligent acts or willful misconduct of the Contractor, its officers, directors, employees, agents, Subcontractors and Sub- Subcontractors at any tier, and their respective agents and employees, and other persons performing portions of the Work for, or on behalf of, the Contractor; (ii) any breach of the terms of this Agreement by the Contractor, its officers, directors, employees, agents Subcontractors and Sub-Subcontractors at any tier, and their respective agents and employees, and other persons performing portions of the Work for, or on behalf of, the Contractor; (iii) any violation or breach of any applicable law and/or licensing and permitting requirements applicable to providing the Work; or (iv) any breach of any representation or warranty by the Contractor, its officers, directors, employees, agents and Subcontractors and Sub-

This document is based on AIA Document A175ID-2003 and A275ID-2003. Copyright 2003 by The American Institute of Architects.

Subcontractors at any tier, and their respective agents and employees, and other persons performing portions of the Work for, or on behalf of, the Contractor under this Agreement. Contractor shall notify the Owner by certified mail, return receipt requested, immediately upon knowledge of any claim, suit, action, or proceeding for which it may be entitled to indemnification under this Agreement. This Section shall survive the expiration or earlier termination of this Agreement.

9.2 In claims against any person or entity indemnified under this Section by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section 9.1 of this Agreement shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers’ compensation acts, disability benefit acts or other employee benefit acts.

9.3 Contractor warrants that the transfer to Owner and the Owner’s use of any and all software and related documentation and that the manufacture, installation or sale by Contractor of any System(s) or use thereof by Owner required for the Work pursuant to the Contract Documents will not infringe any proprietary rights (including patents, copyrights, trademarks, service marks, trade secrets or other ownership rights) of any other entity. Contractor shall indemnify, defend and hold harmless the Owner, its Board of Education, its Board Members, in their official and individual capacities, its administrators, employees, contractors and agents, including BMC and PMCRESA’s employees, contractors, and agents from and against any and all claims, counter claims, suits, debts, demands, actions, judgments, liens, costs, expenses, damages, injuries, losses, and liabilities, including attorney’s fees and expert witness fees, arising out of, in connection with or resulting from any breach of the foregoing warranty, violation of United States patents or copyrights or claims of misappropriation or misuse of trade secrets resulting from the Contractor’s or the Owner’s use of any System(s), documentation, and/or data developed in connection with the services and products described in this Agreement. The Owner will provide the Contractor with a written notice of any such claim or suit. The Owner will also assist the Contractor, in all reasonable ways, in the preparation of information helpful to the Contractor in defending the Owner against this suit.

In the event that the Owner is required to pay monies, in defending such claims, resulting from the Contractor being uncooperative or unsuccessful in representing the Owner’s interest, or in the event that the Owner is ordered to pay damages as a result of a judgment arising out of an infringement of patents and/or copyrights and/or trade secrets, etc., Contractor agrees to fully reimburse Owner for all monies expended in connection with these matters. The Owner retains the right to offset against any amounts owed Contractor under this Agreement any such monies expended by the Owner in defending itself against such claims. In the event a claim of infringement is asserted, Contractor may (a) replace or modify the software, System(s), and related documentation transferred to Owner, so long as Owner agrees that such replacements or modifications are, in the Owner’s sole opinion, of equal or greater quality or (b) procure, at its expense, appropriate licenses and the rights to continue using the contested software, System(s), and related documentation. If (a) or (b) are not commercially feasible, Contractor will refund all monies paid to the Contractor for the software, System(s), and related documentation. The Contractor shall also pay to the Owner all reasonable related losses related to the software, System(s), and related documentation and for all reasonable expenses related to the installation and conversion to the new software, System(s), and related documentation Such obligation of Contractor shall not be construed to negate, abridge or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section.

10. Title and Risk of Loss

10.1 Notwithstanding the provisions of Section 14 of this Agreement, title to all System(s), including any software, software configurations, components, and systems associated with such System(s), together with their respective titles, license numbers, serial numbers, and associated use, maintenance and operating manuals, as required by the Contract Documents, shall be transferred to the Owner upon Acceptance of the System by Owner free and clear of all liens, encumbrances, claims and charges of any kind or nature.

10.2 The risk of loss, with respect to all System(s) provided by the Contractor, shall remain with the Contractor until title to the System(s), or designated portion thereof, is transferred to the Owner pursuant to Section 10.1 of this Agreement.

10.3 The Owner shall be under no obligation to insure any System(s) that does not conform to the Contract Documents or has been rejected by the Owner. Under such circumstances, the risk of loss shall remain with the Contractor.

11. Clean Up

11.1 The Contractor shall keep the Project Site and surrounding area free from accumulation of waste materials and other debris created by operations required of the Contractor under the Contract Documents. At completion of the Work, the Contractor shall remove or cause to be removed from and about the Project Site any and all waste materials and other debris created by Contractor’s activities, tools, System, machinery and surplus materials, including, but not limited to, any and all packing materials for the System(s).

11.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so with its own or separately contracted forces, and, in either case, the cost thereof shall be charged to the Contractor.

11.3 The Contractor is responsible for providing a dumpster for all demolition and construction debris, or responsible for taking the debris off-site for disposal or recycling. The Owner’s dumpster can only be used for minor debris.

This document is based on AIA Document A175ID-2003 and A275ID-2003. Copyright 2003 by The American Institute of Architects.

12. Delivery

12.1 Contractor shall become fully informed of the conditions relating to delivery, installation and labor under which the Work will be performed. Contractor shall employ such labor and means and methods of carrying out the Work as are required by such conditions.

12.2 Delivery and installation of all System(s) shall be made to the location or locations specified by the Owner and confirmed by the Contractor in writing. The Contract Sum includes all costs for delivery of the System(s) under this Agreement, whether accomplished in single or multiple deliveries. Installation of System(s) shall include testing as required by the Contract Documents.

12.3 Delivery of the System(s)shall also include delivery to Owner in electronic and written form compiled code and original source code, together with applicable documentation, for any software or software configuration that has been custom-configured for the Project or is otherwise not commercially available to the general public,.

12.4 Contractor shall consult with Owner and BMC to identify the route to be used within the Project Site from the point of initial delivery to the place of final placement and/or installation. After its selection, the route shall be made available for delivery of System(s)as provided in the Contract Documents.

12.5 Contractor shall, within a reasonable time prior to delivery, provide the Owner and BMC with schedules for access and arrange for the use of elevators and unloading facilities as required.

13. Installation

13.1 Any access to the Owner’s facilities, data network, telecommunications network, proprietary network, systems and/or components necessary for the installation required by the Contract Documents shall be limited to specifically designated areas defined by Owner in writing for a specified, limited period of time, as required for the Work related to the Project.

13.2 Contractor shall keep all security, confidential information, data, network, systems, access privileges and passwords of Owner (collectively, the “Confidential Information”) in strictest confidence and shall use its best efforts and utmost diligence to safeguard Owner’s Confidential Information and to protect it against disclosure, misappropriation, misuse, espionage, loss, and theft. Contractor shall notify Owner immediately in the event of any breach or threat of breach of the Confidential Information.

13.3 Contractor shall change initial administrator accounts, password, etc. and disable guest accounts unless directed otherwise by the Owner in writing. Contractor shall terminate all temporary user log-ins and passwords created to complete the Project upon termination of Contractor or completion of the Project. Contractor shall notify Owner and obtain Owner’s consent to any “back door” methods of System(s) entry upon termination of Contractor or completion of the Project; in the event Owner does not approve any such entry, Contractor shall eliminate all such methods as a condition to final payment.

13.4 All installation included in the Work shall comply with all rules, regulations, requirements and/or standards established by the National Electric Code, the Underwriters Laboratory, and all applicable building, fire and safety codes.

13.5 When the Contractor considers installation of all or a designated portion of the System(s) required by the Contract Documents to be complete, Contractor shall advise the Owner and BMC in writing.

14. Acceptance

14.1 Prior to the tender of delivery by the Contractor, the Owner may conduct a preliminary inspection of the System(s) for the purpose of verifying the delivery of the System, including an inventory of quantities. Such preliminary inspection shall not, however, constitute an acceptance of, taking charge over or control of such System(s). Any defects, damages, deficiencies, or nonconformity discovered by the Owner shall be reported to the Contractor.

14.2 Upon completion of delivery and installation of the System(s), the Owner, shall conduct an acceptance inspection, including, but not limited to, an inventory of the System(s). If the Owner determines that the System(s) complies with the requirements of the Contract Documents, the Owner shall notify the Contractor that a System has been accepted. If the Owner determines that all or any portion of a System does not conform to the requirements of the Contract Documents, the Owner shall reject such nonconforming portion by notifying the Contractor in writing of such rejection.

14.3 If the Owner rejects all or any portion of the delivery, the Owner shall notify the Contractor within a reasonable time, which shall not be more than ten (10) days after the date of the Owner’s inspection of the delivery, and such notice shall include the specific basis for rejection.

14.4 If the Owner rejects all or any portion of the delivery, the Owner shall hold such portion for a reasonable time to permit such portion to be removed from the Project Site by the Contractor at Contractor’s sole cost and expense.

14.5 Upon rejection by the Owner, the Contractor shall have ten (10) days to provide acceptable evidence of arrangements to remedy the basis for rejection. If the Contractor remedies the basis for rejection, the Contractor shall notify the Owner in writing. The Owner shall have an additional period to conduct an acceptance inspection of the previously rejected System.

If the Owner agrees to accept the System, the Owner shall so notify the Contractor in writing. If the Owner rejects the tender of such System, the Owner shall notify the Contractor within a reasonable time, which shall not be more than ten

(10) days. Such notice shall include the specific basis for rejection. Upon rejection, the Contractor shall remove the rejected System(s) from the Project Site at Contractor’s sole cost and expense.

14.6 If System(s) that has been previously accepted is found not to comply with the requirements of the Contract Documents, the Owner shall be entitled to revoke acceptance so long as the Contractor does not suffer actual prejudice by virtue of

This document is based on AIA Document A175ID-2003 and A275ID-2003. Copyright 2003 by The American Institute of Architects.

the Owner's prior acceptance of such System. Such revocation of acceptance shall be made by giving prompt notice to the Contractor. In such event, the Contractor shall proceed in accordance with Section 14.4

14.7 The System(s) proposed shall be defined to be finally accepted by Owner after meeting all requirements of this Agreement and the other Contract Documents. The Owner or Owner’s representative shall be the sole judge of whether all conditions for final acceptance have been met.

14.8 The provisions of this Section do not limit or supersede the provisions of Section 10 or preclude recovery of damages as provided by law.

15. Warranties

15.1 The Contractor expressly warrants to the Owner and BMC that the System(s) and the Work once installed shall comply with the requirements of the Contract Documents. The Contractor further warrants that the Owner shall receive the benefit of standard manufacturer’s warranties and guarantees applicable to the Work and the System.

15.2 The Contractor shall provide to the Owner and BMC all warranties relating to the System(s) implied by law, including but not limited to the warranty of merchantability, warranty of fitness for a particular purpose and any and all manufacturer’s warranties. Contractor represents and warrants that the purchase of the System(s) and installation services provided to the Owner will constitute a fully operational solution as contemplated by the Contract Documents. Contractor will guarantee its design, operation and functionality of the System(s), in accordance with the Contract Documents.

15.3 The Contractor acknowledges that no exclusion of or limitation on warranties contained in any proposal, product literature or other submittal shall affect the warranties provided pursuant to this Section.

15.4 During the warranty period, the Contractor will, without charge to Owner, correct any defects in the System(s) and any such additions, modifications and adjustments to the System(s) as may be necessary to keep the System(s) in operating order.

15.5 All warranties are effective from the date of final acceptance of the System(s). All warranties shall survive the expiration or termination of this Agreement.

16. Claims and Disputes

16.1 For any disputes that arise under this Agreement between the parties, the parties shall resolve such disputed in a court of competent jurisdiction located in Oakland County, Michigan, unless the parties mutually agree in writing to an alternative method for dispute resolution.

16.2 Disputes shall be referred initially to the designer. An initial recommendation in writing by the designer, followed by negotiation of the parties, shall be required as a condition precedent to litigation of all disputes between the Contractor and Owner arising prior to the date final payment is due, unless thirty (30) days have passed after the dispute has been referred to the designer with no recommendation having been made by the designer.

16.3 Pending final resolution of a dispute, the Contractor shall proceed diligently with performance of this Agreement, and the Owner shall continue to make payments in accordance with the Contract Documents.

16.4 The Contractor and the Owner waive claims against each other for consequential damages arising out of or relating to this Agreement, including (a) damages incurred by the Owner for rental expenses, losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons, and (b) damages incurred by the Contractor for principal office expenses, including the compensation of personnel stationed there; for losses of financing, business and reputation; and for loss of profit, except anticipated profit arising directly from the Work. Nothing contained in this Section shall be deemed to preclude an award of liquidated direct damages, when applicable, in accordance with the requirements of the Contract Documents.

17. Termination

17.1 Each party shall have, in addition to all other remedies available to it, the right to terminate this Agreement immediately upon written notice to the other party that the other party has committed a material breach of any of its obligations herein and such material breach shall not have been cured or corrected within ten (10) days following written notice of the same.

17.2 Upon termination of this Agreement by either party for breach or default of the other party, each party shall be entitled to exercise any other right, remedy or privilege which may be available to it under applicable law or proceed by appropriate court action to enforce the terms of this Agreement or to recover damages for the breach of this Agreement. Upon termination of this Agreement, the Contractor shall immediately provide the Owner with all current Drawings and documentation regarding this Project. In the event of termination, title to all equipment purchased by the Contractor for integration into the Project shall pass to Owner, and Contractor shall deliver possession of said equipment to Owner at a location to be designated by Owner.

18. Not used

19. Not used

This document is based on AIA Document A175ID-2003 and A275ID-2003. Copyright 2003 by The American Institute of Architects.

20. Bonds

20.1 The Contractor shall furnish a Performance Bond and a Payment Bond, in amounts equal to the Agreement price, by a qualified surety naming both the Owner and Barton Malow Company as Dual Obligees. All sureties providing bonds on this Project must be listed in the Department of Treasury’s Circular 570, entitled “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” with the bond amounts less than or equal to the underwriting limitation indicated in the Circular, and/or must have an A.M. Best rating of A - or better. Bonds shall be duly executed by the Contractor, as principal, and by a surety that is licensed in the state in which the Work is to be performed.

20.2 The Contractor shall deliver the required bonds to BMC prior to execution of this Agreement. If the Work is to be commenced prior thereto in response to a letter of intent, the Contractor, at a minimum, shall submit evidence to the satisfaction of BMC that such bonds will be furnished prior to commencement of on-site Work. In no event may the Contractor commence on-site Work without the required bonds properly issued and delivered.

20.3 Performance Bond and Payment Bond form AIA Document A312 (1984 Edition) must be used for this Project.

20.4 The Contractor’s proposed surety must be acceptable to the Owner and BMC. If, at any time, after acceptance of the Contractor’s bonds, the surety fails to meet the criteria stated above, the Contractor must, as a precondition to continuing Work and receiving further payments, replace the bonds with bonds from a surety that meets the stated criteria.

20.5 The Performance and Payment Bond penal sums (i.e., the Contract Sum) must be listed as a separate line item on the bid proposal and payment requests.

20.6 In the event of a Change Order to this Agreement that increases the Contract Sum, the penal sum of any required Performance and Payment Bonds shall also be increased so that each penal sum equals the adjusted Contract Sum.

BMC or Owner shall have the right to request submission of bond riders, issued by the original qualified surety, evidencing that such increase to the penal sum of the bonds has been accomplished. Notwithstanding the foregoing, in the next pay application after the Contract Sum has been increased by twenty-five percent (25%) or more, as a condition precedent to payment, Contractor shall deliver a bond rider issued by the original qualified surety evidencing that the appropriate increase in penal sums has been accomplished. No alteration, erasure, or addition is to be made in the typewritten matter.

21. Insurance

21.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims listed in this Section which may arise out of or result from the Contractor’s performance under this Agreement and for which the Contractor may be legally liable, whether such performance be by the Contractor, by a Subcontractor, by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: (a) claims under workers’ compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed;

(b) claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor’s employees; (c) claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor’s employees; (d) claims for damages insured by usual personal injury liability coverage; (e) claims for damages, other than to the Work itself, because of injury to, or destruction of, tangible property, including loss of use resulting therefrom; (f) claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; (g) claims involving contractual liability insurance applicable to the Contractor’s obligations; and (h) claims for products liability insurance.

21.2 The insurance required above shall be written for not less than the limits of liability specified on Exhibit A, attached hereto and incorporated herein by this reference, or required by law, whichever coverage is greater.

22. Protection of Persons and Property

22.1 Neither the Contractor nor its agents, employees, Subcontractors, consultants, subcontractors, or the like shall enter the location of the Project without the prior consent of Owner and BMC, which consent may be conditioned upon Contractor’s providing Owner with satisfactory evidence of safety training for those persons entering the Project Site.

22.2 Contractor shall comply fully with all federal, state and local laws, statutes, ordinances, rules, orders regulations and codes applicable to the Work performed as well as all applicable provision of the Revised School Code, applicable Board of Education policies and guidelines, Occupational Safety and Health Act and the Michigan Occupational Safety and Health Administration throughout the duration of the Project. The Contractor shall be responsible for adhering to all local and state fire codes and shall be responsible for firestopping all penetrations utilized.

22.3 The Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of this Agreement, in accordance with the safety program established for the Project by the Owner and/or BMC (the “Project Safety Plan”). In case of any conflict between Contractor’s safety program and the Project Safety Plan, the Project Safety Plan shall control.

22.4 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to (a) employees on the Work and other persons who may be affected thereby, (b) the Work and materials, furniture, furnishings, and System(s)to be incorporated therein, including the System, whether in storage on or off the Project Site, under care, custody, or control of the Contractor or Subcontractors, and (c) other property at the Project Site or adjacent thereto, including property of the Owner, separate Contractors, or other persons, whether or not completed or installed.

This document is based on AIA Document A175ID-2003 and A275ID-2003. Copyright 2003 by The American Institute of Architects.

22.5 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations, and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury, or loss.

22.6 When use or storage of flammable, volatile or other Hazardous Materials or System(s)or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. As used in this Agreement, “Hazardous Materials” means asbestos; cadmium;

chlorofluorocarbons; chromium VI; hydrochlorofluorocarbons; lead; mercury; nickel; polybrominated biphenyls;

polychlorinated biphenyls and terphenyls; azo colorants, aromatic amines, and azo dyes; halogenated flame retardants, and additives; tributyl tin, tributyl tin oxide, and triphenyl tin; polychlorinated naphthalene; antimony; arsenic; beryllium;

bismuth; phthalates; selenium; ozone depleting substances; chloroparaffins; polyvinyl chloride; halogenated plastics, or polymers; expanded polystyrene foam; any materials containing such substances; compounds of such substances, including, but not limited to, their ethers and oxides; molds; and any other chemical, material, or substance subject to regulation as a hazardous material, hazardous substance, toxic substance, or otherwise, under applicable federal, state, or local law, and any other chemical, material, or substance that may have adverse effects on human health or the environment.

22.7 The Contractor shall promptly remedy damage and loss to property caused in whole or in part by the Contractor or anyone directly or indirectly employed by the Contractor. The Owner shall determine whether the Contractor shall remedy the damage or a third party shall remedy the damage, to be compensated by the Contractor. The Owner shall have the authority to back-charge the contract amount or receive reimbursement from the Contractor related to remedying such damage.

23. Administration of this Agreement

23.1 Plante Moran Cresa, LLC and Barton Malow Company will provide administration of the Agreement as described in the Contract Documents. BMC will serve as the Technology Designer and PMCRESA will act as the Owner’s Representative during performance of the Work until final payment is due. PMCRESA/BMC will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise modified in writing in accordance with other provisions of this Agreement.

23.2 PMCRESA/BMC will not be responsible for failure of the Contractor or a Subcontractor to meet schedules for completion or to perform their respective duties and responsibilities in conformance with such schedules.

23.3 PMCRESA/BMC shall not have control over, charge of or responsibility for the means, methods, techniques, sequences or procedures of the Work, or for the safety precautions and programs in connection with the Work.

23.4 PMCRESA/BMC will not be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents. PMCRESA/BMC shall not have control over, charge of or responsibility for acts or omissions of the Contractor, Subcontractors, their agents or employees, or any other persons or entities performing portions of the Work.

23.5 PMCRESA/BMC will have authority to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the time, and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders promptly.

23.6 Unless otherwise provided, PMCRESA/BMC’s authority shall not extend to…