Construction Agreement [Supplement] - Cerner Properties Inc. and J. E. Dunn Construction Co.
SUPPLEMENT TO GENERAL CONDITIONS OF
THE CONTRACT FOR CONSTRUCTION
Owner: Cerner Properties, Inc.
Contractor: J. E. Dunn Construction Company
Dated as of: September 1, 1994
This Supplement modifies, deletes from and adds to the General Conditions
of the Contract for Construction, AIA Document A201, Fourteenth Edition, 1987.
Except to the extent modified by the express provisions of this Supplement or
by necessary implication, all provisions of the General Conditions shall
remain in effect. If and to the extent that this Supplement is inconsistent
with the Standard Form of Agreement (AIA Document A111, hereinafter the
"Agreement"), the Specifications or the General Conditions, this Supplement
shall control.
ARTICLE 1
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1.3.1. Add the following at the end of Subparagraph 1.3.1:
The provisions of this Subparagraph 1.3.1 govern the rights and obligations
of the Contractor with respect to the Drawings, Specifications and other
documents prepared by the Architect, but shall not be deemed to restrict
any rights the Owner may have with respect thereto under the agreement
between the Owner and the Architect concerning the Project.
ARTICLE 2
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2.3.1 Delete the word "persistently" in the first sentence of
Subparagraph 2.3.1.
2.4.1. Delete the first two sentences of Subparagraph 2.4.1. and
substitute the following in lieu thereof:
If the Contractor defaults or neglects to carry out the work in
accordance with the Contract Documents and fails within a seven-day
period after receipt of written notice from the Owner to commence and
continue correction of such default or neglect with diligence and
promptness, the Owner may, without prejudice to other remedies the Owner
may have, commence and continue to carry out the Work.
Delete the fourth sentence of Subparagraph 2.4.1 in its entirety. Add at
the end of Subparagraph 2.4.1 the following sentence:
The right of the Owner to correct deficiencies pursuant to this
Subparagraph 2.4.1 shall not give rise to any duty on the part of the
Owner to exercise this right for the benefit of the Contractor or any
other person or entity.
ARTICLE 3
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3.2.4. Add the following provision as a new Subparagraph 3.2.4:
3.2.4. In any and all cases of discrepancies in dimensions,
words, numbers, drawings, and/or specifications, the matter shall
immediately be submitted in writing to the Architect for his decision, and
without such decision such discrepancies shall not be adjusted by the
Contractor, save only at Contractor's expense, and in case of any
settlement of any complications arising from such adjustment by the
Contractor made without such decision of the Architect, the Contractor
shall bear all extra expenses involved.
3.3.2. At the end of Subparagraph 3.3.2, add, "Subcontractors or Sub
subcontractors."
3.5.1. Add the following sentence at the end of Subparagraph 3.5.1:
The obligations of the Contractor under all provisions for warranties,
guaranties and provisions relating to correction of Work contained in the
Contract Documents shall be cumulative and no such provision shall be
deemed to limit the Contractor's obligations under any other such
provision.
3.18.1. Delete the first sentence of Subparagraph 3.18.1 and substitute
the following in lieu thereof:
To the fullest extent permitted by law, the Contractor shall indemnify and
hold harmless the Owner, Architect, Architect's consultants, and agents
and employees of any of them from and against claims, damages, losses and
expenses, including but not limited to punitive damages and attorneys'
fees, arising out of or resulting from performance of the Work but only to
the extent caused in whole or in part by tortious or negligent acts or
omissions of the Contractor, a Subcontractor, anyone directly or indirectly
employed by them or anyone for whose acts they may be liable, regardless of
whether or not such claim, damage, loss or expense is caused in part by the
tortious or negligent acts or omissions of a party indemnified hereunder.
To the extent that Owner has paid Contractor, the Contractor shall
indemnify and hold harmless the Owner and Owner's lenders, if any, against
any assertion of claims for mechanics' liens by Subcontractors, Sub-
subcontractors or material suppliers, and against any assertion of security
interests by suppliers of goods or materials.
3.18.3. Delete the phrase "provided such giving or failure to give is the
primary cause of the injury or damage" from Subparagraph 3.18.3 and substitute
in lieu thereof the phrase "to the extent such giving or failure to give is
the cause of the injury or damage."
ARTICLE 4
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4.1.4. Delete Subparagraph 4.1.4 in its entirety and add the following
provision in lieu thereof:
4.1.4. The contractual arrangements between the Owner
and the Architect are governed by a separate written agreement between
the Owner and the Architect, and nothing contained in these General
Conditions shall be deemed to control over anything to the contrary
contained in such separate written agreement as to the legal
relationship between the Owner and the Architect.
4.2.1. Change the word "representative" in the third line of
Subparagraph 4.2.1 to "consultant."
4.3.3. Add the following provision at the end of the first sentence of
Subparagraph 4.3.3:
; provided, however, that this requirement and the requirement of
Subparagraph 4.3.9 shall not apply to Claims by the Owner arising from
any of the matters referred to in Clauses 4.3.5.1, 4.3.5.3.
4.3.5.2. Add the following provision to Clause 4.3.5.2, before the
semicolon: ", and claims made by the Owner pursuant to Paragraphs 3.5 and
12.2."
4.4.4. Delete the phrase ", which decision shall be final and binding on the
parties but subject to arbitration" from Subparagraph 4.4.4.
4.5. Delete Paragraph 4.5 in its entirety. Any and all references contained
in the General Conditions to arbitration shall be of no effect.
ARTICLE 7
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7.1.1. Add the following sentence at the end of Subparagraph 7.1.1:
Under no circumstances shall any change in the Work be authorized or
performed except as expressly provided for in accordance with this
Article 7. No change in the Contract Time or Contract Sum shall be
permitted except as set forth in a change order signed by the Owner,
Contractor and Architect, or as determined under Paragraph 7.3 pursuant
to a Construction Change Directive signed by the Owner and Architect.
ARTICLE 8
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8.3.1. Add the following at the end of the last sentence of
Subparagraph 8.3.1:
; provided, however, that in no event shall the Contract Time be
extended in the aggregate for more than 20 days beyond the date
established for Substantial Completion of the Work under Paragraph 4.2
of the Agreement, except for delay attributable to the Owner or
Architect, or an employee or separate contractor of either, or caused by
unavoidable casualties or other factors (e.g. weather).
ARTICLE 9
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9.3.1. Add the following Clause 9.3.1.3 to Subparagraph 9.3.1:
9.3.1.3. Until Substantial Completion of the Work, the Owner shall pay
95% of the amount due to the Contractor on account of progress payments.
Following the date of Substantial Completion and the receipt by the Owner
of consent of surety to release of a portion of the retainage, the Owner
shall pay 95% of the amount due to the Contractor on account of progress
payments.
9.3.3. Delete the last sentence of Subparagraph 9.3.3 and add at the end
of the first sentence of Subparagraph 9.3.3, the phrase ", free and clear
of liens, claims, security interests and encumbrances."
9.3.4. Add the following provision as a new Subparagraph 9.3.4:
9.3.4. The Contractor shall supply a Contractor's Release or Waiver of
liens with each Application for Payment with respect to the work,
materials and equipment for which payment is requested and prior to
receipt of funds for any subsequent application for payment, shall supply, with
respect to the work, materials and equipment for which payment has previously
been requested and received, separate Releases or Waivers of Liens from all
Subcontractors and separate Releases or Waivers of Liens from material and
equipment suppliers for material and equipment.
9.7.1. Delete from the first sentence of Subparagraph 9.7.1 the words
"the Architect does not issue a Certificate for Payment, through no fault
of the Contractor, within seven days after receipt of the Contractor's
Application for Payment, or if".
9.8.1. Insert after the words "Contract Documents" in Subparagraph 9.8.1
the words "and when all required certificates of occupancy, if any, have
been issued".
ARTICLE 10
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10.1.4. Add the following new Subparagraph 10.1.5:
10.1.5. The Contractor shall supply the Owner and the Architect with
Material Safety Data Sheets (MSDS) on any hazardous materials that the
Contractor, any Subcontractor or any Sub-subcontractor intends to, or does,
bring on site in connection with the performance of the Work. In addition,
the Contractor shall remove all surplus chemicals and hazardous materials
brought on site by the Contractor, any Subcontractor, or any Sub
subcontractor or otherwise in connection with performance of the Work. In
empty) be placed in any trash dumpster or trash truck or other waste
disposal system for disposal at any public trash dump or other waste
disposal site not authorized by law to receive such hazardous materials.
ARTICLE 11
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11.1.1.7. Insert following the words "Paragraph 3.18" in Clause 11.1.1.7
of Subparagraph 11.1.1 the words "or Subparagraph 10.2.5."
11.1.2. Delete the phrase ", whether written on an occurrence or claims-
made basis," in Subparagraph 11.1.2 and substitute in lieu thereof the
words "shall be written on an occurrence basis and".
In addition, add the following new Clauses 11.1.2.1 and 11.1.2.2 to
Subparagraph 11.1.2:
11.1.2.1. The insurance required by Subparagraph 11.1.1 shall be
written for not less than the following limits, or greater if required
by law:
1. Workers' Compensation (Voluntary Compensation by any
exempt entities):
(a) State (all) and applicable Federal statutory;
(b) Employer's Liability:
$100,000 per Accident
$500,000 Disease, Policy Limit
$100,000 Disease, Each Employee
2. Commercial General Liability (including Premises-Operations;
Independent Contractors' Protective; Products and Completed Operations;
Broad Form Property Damage; personal injury; blanket contractual;
explosion, collapse and underground):
(a) Combined Single Limit Bodily Injury & Property Damage:
$1,000,000 per occurrence
$1,000,000 aggregate
(b) Products and Completed Operations Insurance shall be
maintained for a minimum period of 5 years after final payment, and
the Contractor shall continue to provide evidence of such coverage
to the Owner on an annual basis during the aforementioned period.
(c) Contractual Liability (Hold Harmless Coverage) -
Combined Single Limit Bodily Injury & Property Damage:
$1,000,000 per occurrence
$1,000,000 aggregate
(d) Personal Injury (with Employment Exclusion deleted, if applicable):
$1,000,000 aggregate
(e) If the General Liability includes a General Aggregate, such
General Aggregate shall be not less than $1,000,000. The policy
shall be endorsed to have General Aggregate apply to this Project
only.
3. Business Auto Liability (including owned, non-owned and hired vehicles):
Combined Single Limit Bodily Injury and Property Damage:
$1,000,000 per accident
4. Umbrella Excess Liability:
$10,000,000 over primary insurance
No Self-Insured Retention
11.1.2.2. The Owner shall be named as an additional insured on the
Commercial General Liability and Umbrella Liability policies required under
Clause 11.1.2.1. The Certificates showing that all coverages required of
the Contractor under the Contract Documents are in effect shall be delivered
to the Owner before the Work is commenced.
11.1.3. There shall be added to Paragraph 11.1.3 the following two
sentences:
Contractor shall obtain and furnish to Owner Certificates of Insurance
from all of Contractor's subcontractors evidencing minimum limits as
specified in Paragraphs 11.1.2.1.1, 11.1.2.1.2 and 11.1.2.1.3 of Document
A201. The Owner shall be named as an additional insured under the General
Liability Policies of all such subcontractors.
11.3.1.5. Add the following provision as a new Clause 11.3.1.5:
11.3.1.5. The deductible for the property insurance to be
maintained by the Owner under this Paragraph 11.3 is $1,000 per claim;
the Contractor shall pay costs not covered because of such deductible.
The limit of such insurance on covered property at any one temporary
storage site is $1,000,000; the limit of such insurance on covered
property in or on any one vehicle while in transit is $1,000,000. The
limitations described in this Clause 11.3.1.5 are accepted by the Contractor
as meeting the requirements of this Paragraph 11.3.
11.3.2. Add the following at the end of subparagraph 11.3.2:
The insurance required by this Subparagraph 11.3.2 shall be provided with
a limit of $7,000,000, and a $1,000 deductible and shall cover boilers,
fixed vessels and electric steam generators and all unfired vessels
requiring operating permits.
11.3.7. In line 9 of Subparagraph 11.3.7, after the word "Work," add the
following phrase: "even though such damage may have been occasioned by the
negligence of the person or entity in whose favor this waiver is made,".
11.3.10. Delete from the first sentence in Subparagraph 11.3.10 the
words "; if such objection be made, arbitrators shall be chosen as provided
in Paragraph 4.5". In addition, delete the second and third sentences of
Subparagraph 11.3.10, and substitute in lieu thereof the following
sentence:
If such objection be made, the Owner shall not make any settlement with
respect to such loss until a resolution has been reached by agreement
between such parties in interest and the insurers or by a court of
competent jurisdiction.
ARTICLE 13
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13.2.1. Delete the second sentence of Subparagraph 13.2.1 and
substitute the following in lieu thereof:
The Contractor may not assign its rights or obligations under this
Contract. The Owner may assign its rights and obligations hereunder to its
lender, if any, and the Contractor agrees to enter into an agreement with
such lender pursuant to which, at such lender's request, the Contractor
will complete the Work upon appropriate provision for payment of the
balance of the Contract Sum. Any entity which shall succeed to the rights
of the Owner shall be entitled to enforce its rights hereunder.
In addition,(i) delete the words "either party" in the immediately
following sentence and substitute in lieu thereof the words "the
Contractor", and (ii) delete the words "that party" in the same sentence
and substitute the word "it" in lieu thereof.
13.3.1. Delete Subparagraph 13.3.1 in its entirety and add the following
new Subparagraph 13.3.1 in lieu thereof:
13.3.1. Written notice shall be deemed to have been duly served if delivered
in person, or sent by registered or certified mail, postage prepaid, or sent
by overnight courier, to the following person and address, or to such other
person or address specified by prior notice to the sender given pursuant to
this Subparagraph 13.3.1:
If to Owner: Cerner Properties, Inc.
2800 Rockcreek Parkway
Kansas City, MO 64117
Attn: Clifford W. Illig, President
If to Contractor: J. E. Dunn Construction Company
929 Holmes
Kansas City, MO 64106
Attn: Terrence P. Dunn
13.7. Delete Paragraph 13.7 in its entirety.
ARTICLE 14
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14.1.2. Insert between the words "including" and "reasonable" in the
phrase", including reasonable overhead" in Subparagraph 14.1.2 and the
phrase ", if the Contract is terminated for the reasons set forth in Clauses
14.1.1.3, 14.1.1.4, or 14.1.1.5,".
14.2.1. Delete the word "persistently", and delete the word "or" following
the word "jurisdiction", in Clause 14.2.1.3 of Subparagraph 14.2.1. In
addition, insert "; or" following the words "Contract Documents" in Clause
14.2.1.4 and add the following new Clause 14.2.1.5:
14.2.1.5. becomes insolvent or admits in writing its inability
to pay its debts as they come due, makes an assignment for the benefit of
creditors, files or has filed against it a petition in bankruptcy or
proceedings for the appointment of a receiver or trustee for any substantial
part of its property, or commences any action under any reorganization,
arrangement, readjustment of debt, dissolution or liquidation law now or
hereafter in effect.
14.4. Termination by the Owner for convenience.
14.4.1. The Owner may, without cause, and upon seven (7) days notice, order
the Contractor in writing to terminate performance of the Contract. The
Contractor shall then have 60 days following the termination date to submit
to the Owner its claim for termination costs. Such costs to be paid by the
Owner within 30 days of presentation shall include those costs allowed by
Paragraph 14.1.2 hereof.
OWNER: CONTRACTOR:
CERNER PROPERTIES, INC.
By:/s/Clifford W. Illig By:/s/Terrence P. Dunn
Printed Name: Clifford W. Illig Printed Name: Terrence P. Dunn
Title: President Title: President