Standard Terms and Conditions

The parties desire to define the master terms and conditions upon which Generis Collective LLC (“Company”) may perform services, and/or engage others to perform services, on behalf of and for the benefit of any customer of Company (“Owner”), in connection with the design, implementation, and construction of Owner’s Development Program as described in any Work Order or Proposal.  The following standard terms and condition of service shall govern any services performed by Company and/or Company’s sub-contractors for Owner pursuant to any proposal given by Company to Owner or any Work Order issued by Owner to Company, except as otherwise expressly agreed by the parties pursuant to a separate written agreement between Company, Owner, and/or any of their respective affiliates.  By Company’s acceptance of any Work Order or Owner’s acceptance of any proposal given by Company, Owner agrees to be bound by the terms and conditions contained herein unless otherwise expressly agreed by the parties in writing.

The Owner and Company agree as follows:

1. INITIAL INFORMATION

  • 1.1 This Master Service Agreement is based on the Initial Information set forth in the Company’s initial Work Order.
  • 1.2 The Owner and Company may rely on the Initial Information. Both parties, however, recognize that such information may materially change and, in that event, the Owner and the Company shall appropriately and equitably adjust the schedules, the Company’s services, and the Company’s compensation.

2. COMPANY’S RESPONSIBILITIES

  • 2.1 Company shall provide the services set forth in Company’s initial Work Order, which may be supplemented from time to time by additional Work Orders and/or Change Orders executed by Owner and Company in substantially the same form as the initial Work Order, which may relate to individual projects (“Project”) that form the entire Program. In the event of any conflict between this Master Service Agreement and any Work Order, the terms of the most recently executed Work Order/Change Order shall control and supersede the terms of this Master Service Agreement as further provided in Article.
  • 2.2 Company shall perform its services consistent with the skill and care ordinarily provided by companies practicing in the same or similar locality under the same or similar circumstances. The Company shall perform its services as expeditiously as is consistent with such skill and care and the orderly progress of the Program and individual Projects.
  • 2.3 The Company shall provide its services in conjunction with the services of such specialized firms and individuals (“Contractors”) and employees of Company, including without limitation, designers, schedulers, architects, budgeting contractors, site selectors, general contractors, specialty sub-contractors, and the like. To the extent any Project within the Program requires the services of an “architect of record” in connection with the permitting and construction of such Project, such architect shall be referred to herein as the (“Architect”). The Company shall not be responsible for actions taken by the Architect or other design professionals or consultants engaged under separate contracts.
  • 2.4 The Company shall identify a representative authorized to act on behalf of the Company with respect to the Program and any Project(s).
  • 2.5 The Company shall provide to the Owner certificates of insurance coverage upon request. Where applicable, the certificates will show the Owner as an additional insured.

3. SCOPE OF COMPANY’S BASIC SERVICES

  • 3.1 Definition. The Company’s Basic Services consist of those services described in the Company’s initial proposal, which may be supplemented or amended by additional Work Orders and/or Change Orders from time to time without invalidating this Agreement, and may include usual and customary design, construction planning, coordination and scheduling, constructibility review, cost estimating (collectively, “Design Development Phase”), and allocation of construction activities among general contractors (the “Multiple Prime Contractors”) that may be engaged by Company to perform construction services in connection with Project(s) within the Program (the “Construction Phase”), subject to the terms and conditions Work Orders and/or Change Orders approved by Owner from time to time. Nothing in this Agreement shall obligate Company and Owner to enter into any Work Order.
    • 3.1.1 The Company shall provide administrative, management, and related services to complete the Company’s Basic Services and to coordinate scheduled activities and responsibilities of the Multiple Prime Contractors with each other and with those of the Company, the Owner, and the Architect. The Company shall coordinate the activities of the Multiple Prime Contractors in accordance with the latest approved Project schedule and the Contract Documents.
    • 3.1.2 The Company shall schedule and conduct meetings to discuss such matters as procedures, progress, coordination, and scheduling of the Work. The Company shall monitor and evaluate actual costs for activities in progress and estimates for uncompleted tasks and advise the Owner and Architect as to variances between actual and budgeted or estimated costs. If the Contractor is required to submit a Control Estimate, the Company shall meet with the Owner and Contractor to review the Control Estimate. The Company shall promptly notify the Contractor if there are any inconsistencies or inaccuracies in the information presented. The Company shall also report the Contractor’s cost control information to the Owner.
    • 3.1.3 Where the Company’s Basic Services include Construction Phase Services, Owner may issue Work Orders and/or Change Orders from time to time to Company for the Work necessary to fabricate, construct and implement each individual Project. Upon execution of a Work Order for any Project, Company shall engage qualified Multiple Prime Contractors to complete the Work described in the Contract Documents for each Project, except as specifically indicated in the Contract Documents to be the responsibility of Company. Owner acknowledges that Company will not complete the Work with its own forces. The general terms and conditions of construction, production of FF&E and other services necessary to complete the Work for any Project, including without limitation, payment terms, performance standards, procedures for Change Orders, indemnities, warranties, Project close-out procedures and other standard terms of project delivery (collectively the “General Conditions”), shall be governed by contracts between Company and any subcontractors, fabricators, installers and other service providers and independent contractors performing the Work and Owner shall be a third-party beneficiary of all such subcontracts.
    • 3.1.4 Where the Company’s Basic Services include the review and approval of Contractors’ Applications for Payment and the like, the Company shall develop and implement procedures for the review and processing of Applications for Payment by Multiple Prime Contractors for progress and final payments. When such services are included, not more frequently than monthly, the Company shall review and certify the amounts due the respective Contractors as follows:
      • 3.1.4.1 Where there is only one Contractor responsible for performing the Work or Multiple Prime Contractors responsible for performing different portions of the Project, the Company shall review the Application and certify the amount the Company determines is due the Contractor. Company shall pay Contractor based on the contract fee schedule and payment terms set forth in any applicable Work Order. Except as otherwise provided in a Work Order, Contractor(s) shall send invoices to Company on a monthly basis for such fees, and Company shall pay such fees within thirty (30) days after receipt of such invoice.
      • 3.1.4.2 All Contractor invoices shall be submitted in such form and/or in such manner as Company may approve from time to time, and shall be accompanied by appropriate lien releases as may be reasonably requested by Company. Contractor shall be responsible for payment of its own overhead and expenses, including but not limited to administrative staff, information technology, wages, insurance costs and any other expenses necessary to perform the Services. Contractor shall invoice Company, and Company shall pay for those reimbursable expenses identified in any applicable Work Order, subject to the terms and conditions described therein.
    • 3.1.5 The Company’s certification for payment shall constitute a representation to the Owner, based on the Company’s evaluations of the Work and on the data comprising the Contractors’ Applications for Payment, that, to the best of the Company’s knowledge, information and belief, the Work has progressed to the point indicated and the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, the existence of latent defects in materials and workmanship, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Company.
    •  3.1.6 The certification of an Application for Payment or a Project Application for Payment by the Company shall not be a representation that the Company has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work; (2) reviewed construction means, methods, techniques, sequences for the Contractor’s own Work, or procedures; (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor’s right to payment; or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum.
    • 3.1.7 The Company shall determine in general that the Work of each Contractor, including Owner’s furniture, fixture and equipment (“FF&E”) vendors and any Architect, is being performed in accordance with the requirements of the Contract Documents applicable to such vendor and notify the Owner, Contractor and Architect of material defects and deficiencies in the Work. The Company shall have the authority to reject Work that does not conform to the Contract Documents and shall notify the Architect, if applicable, about the rejection. The failure of the Company to reject Work shall not constitute the acceptance of the Work. The Company shall record any rejection of Work in its daily log and include information regarding the rejected Work in any progress reports to the Owner. Upon written authorization from the Owner, the Company may require and make arrangements for additional inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed, and the Company shall give timely notice to the Architect, if applicable, of when and where the tests and inspections are to be made so that the Architect may be present for such procedures.
    • 3.1.8 The Company shall advise and consult with the Owner during the performance of its Construction Phase Services, if any. The Company shall have authority to act on behalf of the Owner only to the extent provided in this Agreement. The Company shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the Contractors, since these are solely the Contractor’s rights and responsibilities under the Contract Documents. Additionally, the Company does not have any control over the means and methods employed in the design, fabrication and installation of FF&E for the Project. The Company shall not be responsible for a Contractor’s failure to perform the Work or a vendor’s failure to produce and install FF&E in accordance with the requirements of the Contract Documents. The Company shall be responsible for the Company’s negligent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractor or Multiple Prime Contractors, Subcontractors, vendors, or their agents or employees, or any other persons or any other persons or entities performing portions of the Work.
    • 3.1.9 Utilizing the submittal schedules provided by each Contractor, the Company shall prepare, and revise as necessary, a Project submittal schedule incorporating information from the Owner, Owner’s consultants, Owner’s separate contractors and vendors, governmental agencies, and all other participants in the Project under the management of the Company. The Project submittal schedule and any revisions shall be submitted to the Architect, if applicable, for approval. The Company shall promptly review all Shop Drawings, Product Data, Samples and other submittals from the Multiple Prime Contractors for compliance with the submittal requirements of the Contract, coordinate submittals with information contained in related documents, and transmit to the Architect, if applicable, those that the Company recommends for approval. The Company’s actions shall be taken in accordance with the Project submittal schedule, or in the absence of an approved Project submittal schedule, with such reasonable promptness as to cause no delay in the Work or in the activities of the Contractor, other Multiple Prime Contractors, the Owner, or the Architect.
    • 3.1.10 Where the Company’s Basic Services include Project closeout services, the Company shall undertake such services as follows. When the Company considers each Contractor’s Work or a designated portion thereof is substantially complete, the Company shall, jointly with the Contractor, prepare a list of incomplete or unsatisfactory items and a schedule for their completion. The Company shall assist in conducting inspections to determine whether the Work or designated portion thereof is substantially complete. When the Work or designated portion thereof is substantially complete, the Company shall prepare and execute a Certificate of Substantial Completion. The Company shall submit the executed Certificate to the Owner and Contractor. The Company shall coordinate the correction and completion of the Work. Following issuance of a Certificate of Substantial Completion of the Work or a designated portion thereof, the Company shall evaluate the completion of the Work of the Contractor or Multiple Prime Contractors and make recommendations to the Architect, if applicable, when Work is ready for final inspection. The Company shall assist in conducting final inspections.
    • 3.1.11
      • 3.1.11.1 The Company shall forward to the Owner the following information received from the Contractor or Multiple Prime Contractors: (1) certificates of insurance received from the Contractor or Multiple Prime Contractors; (2) consent of surety or sureties, if any, to reduction in or partial release of retainage or the making of final payment; (3) affidavits, receipts, releases and waivers of liens or bonds indemnifying the Owner against liens; and (4) any other documentation required of the Contractor under the Contract Documents, including warranties and similar submittals.
      • 3.1.11.2 The Company shall deliver all keys, manuals, record drawings and maintenance stocks to the Owner. The Company shall forward a final Project Application for Payment and Project Certificate for Payment or final Application for Payment and final Certificate for Payment upon the Contractor’s compliance with the requirements of the Contract Documents.

4. ADDITIONAL SERVICES

  • 4.1 Additional Services may be provided after execution of this Agreement, without invalidating this Agreement, by execution of Work Orders and/or Change Orders. Except for services required due to the negligence of the Company, any Additional Services provided in accordance with this Article 4 shall entitle the Company to compensation pursuant to Article 9.
  • 4.2 Upon recognizing the need to perform the following Additional Services, the Company shall notify the Owner with reasonable promptness and explain the facts and circumstances giving rise to the need. The Company shall not proceed to provide the following services until the Company receives the Owner’s written authorization:
    • 4.2.1 Services necessitated by a change in the Initial Information, previous instructions or approvals given by the Owner, or a material change in the Project including, but not limited to, design, size, quality, complexity, the Owner’s schedule or budget for the Work, or procurement method;
    • 4.2.2 Services necessitated by the Owner’s request for extensive environmentally responsible design alternatives, such as unique system designs, in-depth material research, energy modeling, or sustainability certification programs;
    • 4.2.3 Changing or editing previously prepared Instruments of Service (as hereinafter defined) necessitated by the enactment or revision of codes, laws or regulations or official interpretations;
    • 4.2.4 Services necessitated by decisions of the Owner not rendered in a timely manner or any other failure of performance on the part of the Owner;
    • 4.2.5 Preparing digital data, in a format other than previously agreed to, for transmission to the Owner’s consultants and contractors, or to other Owner authorized recipients;
    • 4.2.6 Preparation for, and attendance at, a public presentation, meeting or hearings; or
    • 4.2.7 Preparation for, and attendance at a dispute resolution proceeding or legal proceeding, except where the Company is party thereto;
    • 4.2.8 Services required for asbestos, lead & hazardous material removal & remediation;
    • 4.2.9 Bonding or additional insurance requirements, including builder’s risk insurance;
    • 4.2.10 Services required for floor moisture mitigation systems, not expressly included;
    • 4.2.11 Services required for pest control;
    • 4.2. 12 Services required to bring existing conditions into code compliance or to comply with the orders of local permitting or building code officials to perform Work not required by any Work Order and/or Change Order;
    • 4.2.13 Services or costs required to address utility Company back-charges / fees or schedule delays resulting from utility Company delays.
  • 4.3 To avoid delay in the Construction Phase, the Company shall provide the following Additional Services, notify the Owner with reasonable promptness, and explain the facts and circumstances giving rise to the need. If the Owner subsequently determines that all or parts of those services are not required, the Owner shall give prompt written notice to the Company, and the Owner shall have no further obligation to compensate the Company for those services:
    • 4.3.1 Services in evaluating an extensive number of Claims submitted by a Contractor or others in connection with the Work when the Architect is serving as the Initial Decision Maker.
    • 4.3.2 To the extent the Company’s Basic Services are affected, providing Construction Phase Services sixty (60) days after (1) the date of Substantial Completion of the Work or (2) the anticipated date of Substantial Completion, identified in Initial Information, whichever is earlier.
    • 4.3.3 Services required in an emergency to coordinate the activities of a Contractor or Multiple Prime Contractors in the event of risk of personal injury or serious property damage.
  • 4.4 If the services covered by any Work Order have not been completed by the deadlines set forth in any Work Order, through no fault of the Company, extension of the Company’s services beyond that time shall be compensated as Additional Services, unless otherwise expressly provided in any Work Order.

 

5. OWNER’S RESPONSIBILITIES

    • 5.1 Unless otherwise provided for under this Agreement, the Owner shall provide information in a timely manner regarding requirements for and limitations on the Project, including the Owner’s program, other objectives, schedule, constraints and criteria, special equipment, systems, and site requirements. Within 15 days after receipt of a written request from the Company, the Owner shall furnish the requested information as necessary and relevant for the Company to evaluate, give notice of, or enforce any lien rights, if any.
    • 5.2 The Owner shall establish and periodically update the Owner’s budget for the Project, including (1) the budget for the Cost of the Work, whether stipulated sum or guaranteed maximum price as provided in any Work Order for Construction Phase services, (2) the Owner’s other costs, and (3) reasonable contingencies related to all of these costs. If the Owner significantly increases or decreases the Owner’s budget for the Cost of the Work, the Owner shall notify the Company. The Owner in consultation with the Company shall thereafter agree to a corresponding change in the budget for the Cost of the Work or in the Project’s scope and quality.
    • 5.3 The Owner acknowledges that accelerated, phased or fast-track scheduling provides a benefit, but also carries with it the risk of additional costs. If the Owner selects accelerated, phased or fast-track scheduling, the Owner agrees to include in the budget for the Project sufficient contingencies to cover such costs.
    • 5.4 PROGRAM RELATED COPYRIGHTS AND LICENSES; PROGRAM NON-CIRCUMVENTION
      • 5.4.1 The Company shall be deemed the author and owner of all Instruments of Service associated with the Program and the Project, as between Owner and Company, including the Drawings and Specifications, and shall retain all common law, statutory and other reserved rights, including copyrights. Submission or distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the reserved rights of the Company and the Company’s Subcontractors. The term “Instruments of Service” shall mean all representations, in any medium of expression now known or later developed, of the tangible and intangible creative work performed by Company or any architect, fabricator or other contractor retained by Company for the Program and any Project.
      • 5.4.2 Upon execution of this Agreement, the Company grants to the Owner a nonexclusive license to use the Company’s Instruments of Service solely and exclusively for the Program and each Project within the Program, provided that the Owner substantially performs its obligations, including prompt payment of all sums when due, under this Agreement. The Company shall obtain similar nonexclusive licenses from Company’s Contractors consistent with this Agreement. The license granted under this section permits the Owner to authorize its consultants and separate contractors, to reproduce applicable portions of the Instruments of Service solely and exclusively for use in performing services for the Program. If the Company rightfully terminates this Agreement for cause and/or if the Owner terminates for convenience, the license granted in this Section shall terminate. Owner may not use Company’s Instruments of Service in connection with other programs.
      • 5.4.3 In the event the Owner uses the Company’s Instruments of Service after terminating Company’s services or for other programs, the Owner releases the Company and its Contractors from all claims and causes of action arising from such uses. The Owner, to the extent of insurance coverage, further agrees to indemnify and hold harmless the Company and its Contractors from all costs and expenses, including the cost of defense, related to claims and causes of action asserted by any third person or entity to the extent such costs and expenses arise from the Owner’s use of the Instruments of Service under this Section. The Terms of this Section shall not apply if the Owner rightfully terminates this Agreement for cause.
      • 5.4.4 Except for the licenses granted in this Section, no other license or right shall be deemed granted or implied under this Agreement. The Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any license granted herein to another party without the prior written agreement of the Company. Any unauthorized use of the Instruments of Service shall be at the Owner’s sole risk and without liability to the Company and Company’s Subcontractors and consultants.
      • 5.4.5 Owner acknowledges that Company has invested substantial time and resources to develop relationships with Company’s Contractors, Multiple Prime Contractors, vendors, architects, employees and other professionals and suppliers (“Protected Relationships”) necessary to complete the Program and each Project within the Program. In order to preserve Company’s Protected Relationships, Owner shall not, directly or indirectly, enter into any agreement or arrangement, or solicit any agreement or arrangement, with any of Company’s Protected Relationships, for the performance of any service in connection with the Program. This provision is intended to protect and preserve Company’s connection with Company’s Protected Relationships and prevent Owner from directly contracting with Company’s Protected Relationships to complete the Program or any Project under the Program, except pursuant to this Agreement with Company.
      • 5.4.6 Owner acknowledges and agrees that, in the event of its breach of any of the covenants contained in this Section the extent of damage to Company would be difficult or impossible to ascertain and there would be no adequate remedy at law available to Company. Consequently, Owner agrees that, in the event of such breach by it, Company shall be entitled to enforce any or all of the covenants contained in this Section by injunctive or other equitable relief in addition to receiving damages or other relief to which it may be entitled.
    • 5.5 The Owner shall identify a representative authorized to act on the Owner’s behalf with respect to the Project. The Owner shall render decisions pertaining to documents the Company submits in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Company’s services.
    • 5.6 Unless provided by the Company under any Work Order, the Owner shall furnish surveys to describe physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; designated wetlands; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths.
    • 5.7 Unless provided by the Company under any Work Order, where applicable, the Owner shall furnish services of geotechnical engineers, which may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, seismic evaluation, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations.
    • 5.8 The Owner shall coordinate the services of its own consultants with those services provided by the Company. Upon the Company’s request, the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner’s consultants. The Owner shall furnish the services of consultants other than those designated in this Agreement, or authorize the Company to furnish them as an Additional Service, when the Company requests such services and demonstrates that they are reasonably required by the scope of the Project. The Owner shall require that its consultants maintain professional liability insurance and other liability insurance as appropriate to the services provided.
    • 5.9 The Owner shall furnish tests, inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials.
    • 5.10 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner’s needs and interests.
    • 5.11 The Owner shall provide prompt written notice to the Company if the Owner becomes aware of any fault or defect in Project, including errors, omissions or inconsistencies in the Architect’s Instruments of Service or any fault or defect in the Company’s services.
    • 5.12 The Owner reserves the right to perform construction and operations related to the Project with the Owner’s own forces, and to award contracts in connection with the Project which are not part of the Company’s responsibilities under this Agreement, subject to the terms and conditions of this Agreement. The Company shall notify the Owner if any such independent action will interfere with the Company’s ability to perform the Company’s responsibilities under this Agreement. When performing construction or operations related to the Project, the Owner agrees to be subject to the same obligations and to have the same rights as the Contractors.
    • 5.13 Except as otherwise provided in this Agreement, or when direct communications have been specially authorized, the Owner shall endeavor to communicate with the Contractor and the Company’s consultants through the Company about matters arising out of or relating to the Contract Documents. The Owner shall promptly notify the Company of any direct communications that may affect the Company’s services.
    • 5.14 Before executing the Contract for Construction, the Owner shall coordinate the Company’s duties and responsibilities set forth in the Contract for Construction with the Company’s services set forth in this Agreement. The Owner shall provide the Company a copy of the executed agreements between the Owner and Contractors, including the General Conditions of the Contracts for Construction.
    • 5.15 The Owner shall provide the Company access to the Project site prior to commencement of the Work and shall obligate the Contractor to provide the Company access to the Work wherever it is in preparation or progress.

6. COST OF THE WORK

  • 6.1 In the event the Initial Information to be found in the first Work Order or in any subsequent Work Order includes a total Cost of the Work for the entire Project (and not the total cost for the Company’s services only) the Cost of the Work shall be the total cost to the Owner to construct all elements of the Project designed or specified by the Architect and shall include the Contractors’ general conditions costs, overhead and profit. The Work shall include the planning, design, fabrication, delivery and installation of FF&E, to the extent applicable. The Cost of the Work includes the compensation of the Company and Company’s Consultants during the Construction Phase only, including compensation for reimbursable expenses at the job site, if any. The Cost of the Work does not include the compensation of Owner’s contractors and personnel, the costs of the land, rent, additional rent or other costs paid to the Landlord, if any, (other than leasehold improvements that constitute part of the Work) rights-of-way, financing, contingencies for changes in the Work or other costs that are the responsibility of the Owner.
  • 6.2 The Owner’s budget for the Cost of the Work is provided in Initial Information, and may be adjusted throughout the Project as required under Sections 5.2 and 6.4. To the extent the Company’s Basic Services include Project budget related services, evaluations of the Owner’s budget, preliminary estimates for the Cost of the Work and detailed estimates of the Cost of the Work prepared by the Company represent the Company’s judgment as a person or entity familiar with the construction industry. It is recognized, however, that neither the Company nor the Owner has control over the cost of labor, materials or equipment, over Contractors’ methods of determining bid prices, or over competitive bidding, market or negotiating conditions. Accordingly, the Company cannot and does not warrant or represent that bids or negotiated prices will not vary from the budget proposed, established or approved by the Owner, or from any cost estimate or evaluation prepared by the Company.
  • 6.3 If the Architect is providing detailed cost estimating services as an Additional Service, and a discrepancy exists between the Company’s cost estimates and the Architect’s cost estimates, the Architect and the Company shall work cooperatively to conform the cost estimates to one another.
  • 6.4 If, prior to the conclusion of the Design Development Phase, the Company’s estimate of the Cost of the Work exceeds the Owner’s budget for the Cost of the Work, the Company, in consultation with the Architect, shall make appropriate recommendations to the Owner to adjust the Project’s size, quality or budget, and the Owner shall cooperate with the Company and Architect in making such adjustments.

7. CLAIMS AND DISPUTES

  • 7.1 General
    • 7.1.1 The Owner and Company shall commence all claims and causes of action, whether in contract, tort, or otherwise, against the other arising out of or related to this Agreement in accordance with the requirements of the method of binding dispute resolution selected in this Agreement within the period specified by applicable law. The Owner and Company waive all claims and causes of action not commenced in accordance with this Section 7.1.1.
    • 7.1.2 To the extent damages are covered by property insurance, the Owner and Company waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance. The Owner or the Company, as appropriate, shall require of the contractors, consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated herein.
    • 7.1.3 The Company shall indemnify and hold the Owner and the Owner’s officers and employees harmless from and against damages, losses and judgments arising from claims by third parties, including reasonable attorneys’ fees and expenses recoverable under applicable law, but only to the extent they are caused by the negligent acts or omissions of the Company, its employees and its consultants in the performance of professional services under this Agreement. The Company’s duty to indemnify the Owner under this provision shall be limited to the available proceeds of insurance coverage.
    • 7.1.4 The Owner shall indemnify and hold the Company and the Company’s officers and employees harmless from and against damages, losses and judgments arising from claims by third parties, including reasonable attorneys’ fees and expenses recoverable under applicable law, but only to the extent they are caused by: i) the negligent acts or omissions of the Owner, its employees and its consultants in the performance of professional services under this Agreement; ii) the Owner’s breach of any obligation to any third-party under separate contracts.
    • 7.1.5 The Company and Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination of this Agreement.
  • 7.2 BINDING ALTERNATIVE DISPUTE RESOLUTION PROCEDURES. The provisions of this Section 7.2 shall not apply to any action by Company to collect undisputed amounts owed on account of the Contract Sum. Any other dispute arising out of or relating to the Program shall be resolved only pursuant to the terms of this Section 7.2. The dispute resolution provisions contained herein are mandatory and not permissive thereby precluding the possibility of any litigation except in compliance with the terms described herein. If any dispute arises regarding the interpretation or application of this Agreement, the Contract Documents and/or the parties’ rights or obligations with respect to the Work and/or any Project, then the parties will take the following steps in good faith to resolve the dispute amicably before commencing any arbitration as provided below. It shall be a violation of this Agreement if any party institutes any judicial proceedings or legal remedy of any kind, without complying with the alternative dispute resolution provisions of this Agreement as follows:
    • 7.2.1 The parties will discuss the dispute in person at the Project site (or other mutually agreeable location) upon no less than three (3) business days’ advance notice.
    • 7.2.2 In the event the dispute is not resolved at such meeting, the parties shall schedule a conference call within five (5) business days of such meeting to discuss the dispute further.
    • 7.2.3 If that conference call fails to resolve the dispute, then they will engage in non-binding mediation before a jointly-selected mediator and otherwise in accordance with its Construction Industry Mediation Procedures of the American Arbitration Association in effect on the date of this Agreement, splitting the cost of mediation equally.
    • 7.2.4 If mediation is unsuccessful, then the parties may submit the dispute to binding arbitration administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of the Owner-Company Agreement, splitting the cost of mediation equally.
    • 7.2.5 Any mediation or arbitration shall take place in the jurisdiction in which the applicable Project is located, or if the dispute does not involve a Project, in Boston, Massachusetts.

8. TERMINATION OR SUSPENSION

  • 8.1 If the Owner fails to make payments to the Company in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at the Company’s option, cause for suspension of performance of services under this Agreement. If the Company elects to suspend services, the Company shall give seven days’ written notice to the Owner before suspending services. In the event of a suspension of services, the Company shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services, the Company shall be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of the Company’s services. The Company’s fees for the remaining services and the time schedules shall be equitably adjusted.
  • 8.2 If the Owner suspends the Program or any Project, the Company shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the Company shall be compensated for expenses incurred in the interruption and resumption of the Company’s services. The Company’s fees for the remaining services and the time schedules shall be equitably adjusted.
  • 8.3 If the Owner suspends the Project for more than 90 cumulative days for reasons other than the fault of the Company, the Company may terminate this Agreement by giving not less than seven days’ written notice.
  • 8.4 Either party may terminate this Agreement upon not less than seven days’ written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination.The Owner may terminate this Agreement upon not less than seven days’ written notice to the Company for the Owner’s convenience and without cause.
  • 8.5 In the event of termination not the fault of the Company, the Company shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses as defined in Section 8.7.
  • 8.6 Termination Expenses are in addition to compensation for the Company’s services and include expenses directly attributable to termination for which the Company is not otherwise compensated, plus an amount for the Company’s anticipated profit on the value of the services not performed by the Company, as set forth below.
  • 8.7 In the event of termination for the Owner’s convenience, the Company shall be entitled to receive payment for services performed, costs incurred by reason of such termination and reasonable overhead and profit on services not completed.
  • 8.8 Any individual Work Order may be terminated in accordance with the terms and conditions regarding termination set forth therein, if any.

9. COMPENSATION

  • 9.1 For the Company’s Basic Services described under Article 3, the Owner shall compensate the Company as provided in the Work Order and/or any Work Orders executed from time to time.
  • 9.2 Compensation for Reimbursable Expenses. Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Company and the Company’s consultants directly related to the Project, as follows:
    • 9.2.1 Transportation and authorized out-of-town travel and subsistence;
    • 9.2.2 Long distance services, dedicated data and communication services, teleconferences, Project Web sites, and extranets;
    • 9.2.3 Fees paid for securing approval of authorities having jurisdiction over the Project;
    • 9.2.4 Printing, reproductions, plots, standard form documents;
    • 9.2.5 Postage, handling and delivery;
    • 9.2.6 Expense of overtime work requiring higher than regular rates, if authorized in advance by the Owner;
    • 9.2.7 Professional photography, and presentation materials requested by the Owner;
    • 9.2.8 Company’s consultant’s expense of professional liability insurance dedicated exclusively to this Project, or the expense of additional insurance coverage or limits if the Owner requests such insurance in excess of that normally carried by the Company’s consultants;
    • 9.2.9 All taxes levied on professional services and on reimbursable expenses;
    • 9.2.10 Site office expenses; and
    • 9.2.11 Other similar Project-related expenditures.
  • 9.3 Payments to the Company
    • 9.3.1 Unless otherwise agreed in the Work Order, payments for services shall be made monthly in proportion to services performed. Payments are due and payable upon presentation of the Company’s invoice. Amounts unpaid thirty (30) days after the invoice date shall bear interest at the legal rate prevailing from time to time at the principal place of business of the Company.
    • 9.3.2 The Owner shall not withhold amounts from the Company’s compensation to impose a penalty or liquidated damages on the Company, or to offset sums requested by or paid to Contractors for the cost of changes in the Work unless the Company agrees or has been found liable for the amounts in a binding dispute resolution proceeding.
    • 9.3.3 Records of Reimbursable Expenses, expenses pertaining to Additional Services, and services performed on the basis of hourly rates shall be available to the Owner at mutually convenient times.

10. MISCELLANEOUS PROVISIONS

  • 10.1 The general terms and conditions of this Agreement shall be governed by the laws of the State of Massachusetts without regard to conflict of laws. The terms and conditions of any Work Order and related construction of any underlying Project shall be governed by the law of the place where the Project is located, subject to the Federal Arbitration Act as applicable.
  • 10.2 Terms in this Agreement left undefined shall have the same meaning as those in AIA Document A232–2009, General Conditions of the Contract for Construction, except for purposes of this Agreement, the term “Work” shall include the work of all Contractors under the administration of the Company.
  • 10. 3 The Owner and Company, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreement. Neither the Owner nor the Company shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to a lender providing financing for the Project subject to terms and conditions reasonably acceptable to Company if the lender agrees to assume the Owner’s rights and obligations under this Agreement.
  • 10.4 If the Owner requests the Company to execute certificates, the proposed language of such certificates shall be submitted to the Company for review at least 14 days prior to the requested dates of execution. If the Owner requests the Company to execute consents reasonably required to facilitate assignment to a lender, the Company shall execute all such consents that are consistent with this Agreement, provided the proposed consent is submitted to the Company for review at least 14 days prior to execution. The Company shall not be required to execute certificates or consents that would require knowledge, services or responsibilities beyond the scope of this Agreement.
  • 10.5 Unless otherwise required in this Agreement, the Company shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site.
  • 10.6 The Company shall have the right to include photographic or artistic representations of the design of the Project among the Company’s promotional and professional materials. The Company shall be given reasonable access to the completed Project to make such representations. However, the Company’s materials shall not include the Owner’s confidential or proprietary information if the Owner has previously advised the Company in writing of the specific information considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Company in the Owner’s promotional materials for the Project.
  • 10.7 If the Company or Owner receives information specifically designated by the other party as “confidential” or “business proprietary,” the receiving party shall keep such information strictly confidential and shall not disclose it to any other person except to (1) its employees, (2) those who need to know the content of such information in order to perform services or construction solely and exclusively for the Project, or (3) its consultants and contractors whose contracts include similar restrictions on the use of confidential information.
  • 10.8 The parties intend for this Agreement to be enforced strictly according to its terms; however, if any provision of this Agreement is found illegal or unenforceable by reason of scope or the reach thereof or otherwise, it is the intention of the parties that such determination not bar or in any way affect the enforceability of any remaining terms and conditions of this Agreement, which for purposes of enforceability, shall be severable and independent covenants.

SCOPE OF THE AGREEMENT

  • 11.1 This Agreement together with the Schedules, Exhibits, Work Orders and other documents expressly incorporated herein by reference, represents the entire and integrated agreement between the Owner and the Company and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Company. In the event of any conflict between two or more documents, which form part of this Agreement, those documents will be interpreted in the following order of priority: i) the most recently executed Work Order, ii) the Company’s initial proposal, and then iii) this Master Service Agreement, except as set forth above in Article 2.1.