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<br />Agreement between Client, KCDA and Contractor - Washington Page 11
<br />156691459.1
<br />damages, choose alternative options, adjust the budget, delete
<br />or modify the impacted Work, and/or monitor time, cost and
<br />quantities. For these and other reasons, the parties stipulate that
<br />KCDA and the Client are prejudiced by the Contractor’s failure
<br />to timely submit notices or Claims as required by the Contract
<br />Documents.
<br />
<br /> 13.5 Claims for Concealed or Unknown
<br />Conditions. If conditions unknown to the Contractor are
<br />encountered at the site which are (1) subsurface or otherwise
<br />concealed physical conditions that differ materially from those
<br />indicated in the Contract Documents or (2) unknown physical
<br />conditions of an unusual nature, which differ materially from
<br />those ordinarily found and generally recognized as inherent in
<br />activities of the character provided for in the Contract
<br />Documents, then the Contractor shall give written notice to
<br />KCDA and the Client promptly before conditions are disturbed
<br />and in no event later than seven days after the first observance
<br />on the conditions. The Contractor shall make any Claim arising
<br />from such condition in accordance with the dispute resolution
<br />procedure in Section 13.3.
<br />
<br /> 13.6 Claims for Consequential Damages. The
<br />Contractor, the Client, and KCDA waive Claims against each
<br />other for consequential damages arising out of or relating to this
<br />Agreement. This mutual waiver includes without limitation:
<br />
<br />.1 damages incurred by KCDA or the Client for
<br />rental expenses, for losses of use, income, profit,
<br />financing, business and reputation, and for loss of
<br />management or employee productivity or of the
<br />services of such persons; and
<br />
<br />.2 damages incurred by the Contractor for
<br />principal and home office overhead and expenses
<br />including without limitation the compensation of
<br />personnel stationed there, for losses of financing,
<br />business and reputation, for losses on other projects,
<br />for loss of profit, and for interest or financing costs.
<br />
<br />This mutual waiver is applicable to all consequential damages
<br />of any cause, including without limitation due to either party’s
<br />termination in accordance with Article 20. Nothing contained
<br />in this Section 13.6 shall be deemed to preclude an award of
<br />liquidated damages, when applicable, in accordance with the
<br />requirements of the Contract Documents.
<br />
<br /> 13.7 The Contractor (including Subcontractors of
<br />any tier) shall not in any event be entitled to damages arising
<br />out of actual or alleged loss of efficiency; morale, fatigue,
<br />attitude, or labor rhythm; constructive acceleration; home office
<br />overhead; expectant underrun; trade stacking; reassignment of
<br />workers; concurrent operations; dilution of supervision;
<br />learning curve; beneficial or joint occupancy; logistics; ripple;
<br />season change; extended overhead; profit upon damages for
<br />delay; impact damages; or similar damages.
<br />
<br />ARTICLE 14
<br />TIME
<br />
<br /> 14.1 Within seven days of executing the
<br />Agreement, the Contractor shall deliver any required bond to
<br />the Client with a copy to KCDA; no Progress Payments shall
<br />be due until the bond is delivered.
<br />
<br /> 14.2 If, through no fault of the Contractor or a
<br />Subcontractor of any tier, the Work is delayed at any time in
<br />progress of the Work by changes ordered in the Work, by
<br />unanticipated general labor disputes, fire, unusual delay in
<br />deliveries, abnormal adverse weather conditions not reasonably
<br />anticipatable, unavoidable casualties, delays caused by the
<br />Client or its separate contractors, or any causes beyond the
<br />Contractor’s control and for which it and its subcontractors of
<br />any tier are not responsible, or by other causes which may
<br />justify delay, then the Contract Time shall be extended b y
<br />Change Order to the extent the critical path is affected. The
<br />Contractor (including Subcontractors) shall be entitled to
<br />damages for delay, the total limited to the liquidated rate of
<br />Section 2.3, only where KCDA or the Client’s own actions or
<br />inactions were the actual, substantial cause of the delay and
<br />where the Contractor could not have reasonably avoided the
<br />delay by the exercise of due diligence. If a delay was caused
<br />by the Contractor, a Subcontractor of any tier, or anyone acting
<br />on behalf of any of them, the Contractor is not entitled to an
<br />increase in the Contract Time or in the Contract Sum.
<br />
<br /> 14.3 THE TIMELY COMPLETION OF THIS
<br />PROJECT IS ESSENTIAL TO KCDA AND THE CLIENT.
<br />KCDA and the Client will incur serious and substantial
<br />damages if Substantial Completion of the Work does not occur
<br />within the Contract Time; however, it may be difficult if not
<br />impossible to determine the amount of such damages.
<br />Consequently, this Agreement may include provisions for
<br />liquidated damages. KCDA and the Client’s right to liquidated
<br />damages is not affected by partial completion, occupancy, or
<br />beneficial occupancy. If this Agreement does not contain an
<br />agreed amount for liquidated damages, KCDA and the Client
<br />may prove their actual damages.
<br />
<br />ARTICLE 15
<br />PAYMENTS AND COMPLETION
<br />
<br /> 15.1 Progress Payments. Payments shall be
<br />made as provided in Articles 3 and 4 of this Agreement. If
<br />Progress payments are specified, they will be made monthly for
<br />Work duly approved and performed during the calendar month
<br />preceding the application according to the following procedure.
<br />
<br /> 15.1.1 Draft Application. Within the first five days
<br />of each month, the Contractor shall submit to KCDA and the
<br />Client, for the Client’s approval, a report on the current status
<br />of the Work as compared to the Progress Schedule and a draft
<br />itemized AIA Application for Payment for Work performed
<br />during the prior calendar month. This shall not constitute a
<br />payment request. KCDA or the Client may request the
<br />Contractor to provide data substantiating the Contractor ’s right
<br />to payment, such as copies of requisitions or invoices from
<br />Subcontractors.
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