WITNESSETH, That the Contractor and the Owner, for the consideration hereinafter set out, agree as follows: Article 1 - Scope of Contract A The Contract between the parties is set forth in the "Contract Documents" which consists of this Agreement, the Drawings and Specifications, to which are attached the current edition of AIA Document A201, "General Conditions of the Contract for Construction", and FHA Form No., 2554, "Supplementary Conditions of the Contract for Construction." The provisions of this instrument and the said FHA Supplementary Conditions take precedence over all inconsistent provisions in the said ALA General Conditions. Any provisions in said ALA General Conditions whereby the undersigned waive all rights against each other for damages caused by fire and other perils covered by insurance shall be inapplicable. This Contract constitutes the entire agreemmat between the parties, and any previously existing contract concerning the work contemplated by the Contract Documents is hereby revoked. B. The Contractor shall furnish all of the materials and perform all of the work (within the property lines) shown on, and in accordance with, the Drawings and specifications entitled The Cathedral Square Towers The Architect administering the Construction Contract (hereinafter, and elsewhere in the Contract Documents, referred to as the D. A master set of said Drawings and Specifications, identified by the parties hereto and by the Design Architect, the Architect, and the Contractor's Surety or Guarantor have been placed on file with the Department of Housing and Urban Development (“HUD”), and shall govern in all matters which arise with respect to such Drawings and Specifications. E. Changes in the Drawings and Specifications or any terms of the Contract Documents, or orders for extra work, or changes by altering or adding to the work, which will result in any net construction cost increase, or will change the design concept, or which will result in a net cumulative construction cost decrease of more than 2% of the contract amount may be effected only with the prior written approval of HUD under such conditions as HUD may establish. Article 2-Time A The work to be performed under this Contract shall be commenced within 10 days of this Agreement, and shall be completed by November 22 .1978 The time by which the work shall be completed may be extended in accordance with the terms of the said ALA General Conditions only with the prior written approval of <HUD. B. The Contractor shall correct any defects due to faulty materials or workmanship which appear within one year from the date of substantial completion. C. If the work is not substantially completed in accordance with the Drawings and Specifications, including any authorized changes, by the date specified above, or by such das to which the contract time may be extended, the maximum sum stated in Article 3A(1) below shall be reduced by $ 503.38 as liquidated damages, for each day of delay until the date of substantial completion. The total of any such liquidated damages shall be reduced by an amount equal to the project's net operating income (as defined and determined bu HUD) for the period upon which liquidated damages are based. D. The date of substantial completion shall be the date HUD executes the final Project Inspection Report (FRA Form Number 2449). Article 3-Payments A (1) Subject to the provisions hereinafter set out, the Owner shall pay to the Contractor for the performance of this Contract the following items in cash: ** Architect Drawing Al through Al7; Structural Drawing S1 through $7; Mechanical & Electrical MEL & ME2 and Ml through M6 and El through Eigluding Addendum No. 1 and Change Order No. 1. *** General document and technical specifications for Cathedral Square Towers, A through D and Divi: In no event, however, shall the total cash payable pursuant to this paragraph (1) exceed following: $4,255,610 (2) In addition to any cash fee provided for in paragraph (1) Owner shall pay to the Contractor by means of cash, the (3) If, upon completion, the Contractor shall have received cash payments in excess of (a) the actual cost of construction, plus (b) the cash fee specified in paragraph (1), plus the additional amount to be paid under the provisions of paragraph (3), all such excess shall be refunded to the Owner. B. Each month after the commencement of work bereunder, the Contractor shall make a monthly request for payment (in quadruplicate on FHA Form No., 2448) by the Owner for work done during the preceding month. Each request for payment shall ba filed at least 15 days before the date payment is desired Subject to the approval of HUD, the Contractor shall be entitled to payment thereon in an amount equal to (1) the toul value of classes of work acceptably completed; plus (2) the value of materials and equipment not incorporated in the work, but delivered to and suitably stored at the site; less (3) ten percent (10%) holds back and less prior payments. The "values" of both (1) and (2) shall be computed in accordance with the amounts assigned to classes of the work in the "Contractor's and/or Mortgagor's Cost Break down", attached hereto as Exhibit "A". The Contractor agrees that no materials or equipment required by the Specifications will be purchased under a conditional sale contract or with the use of any security agreement or other vendor's title or lien retention instrument C. The balance due the Contractor hereunder shall be payable upon the expiration of 30 days after the work hereunder is fully completed, provided the following have occurred: (1) All work hereunder requiring inspection by municipal or other governmental authorities having jurisdiction has been inspected and approved by such authorities and by the rating or inspection organization, bureau, association or office having jurisdiction; (2) All certificates of occupancy, or other approvals, with respect to all units of the project have been issued by State or local governmental authorities having jurisdiction; and D. (3) Permissions to Occupy (FHA From No., 2485) for all units of the project have been issued by HUD. With its final application for payment by the Owner, the Contractor shall disclose, on a form prescribed by HUD, all unpaid obligations contracted in connection with the work performed under this Contract. The Contractor agrees that within 15 days following receipt of final payment, it will pay such obligations in cash and furnish satisfactory evidence of such payment to the Owner. Article 4 - Receipts and Releases of Liens The Owner may require the Contractor to attach to each request for payment its acknowledgement of payment and all subcontractors' and materialmen's acknowledgements of payment for work done and materilas, equipment and fixtures furnished through the date covered by the previous payment. Concurrently with the final payment, the Owner may require the Contractor to execute a waiver or release of lieh for all work performed and materials furnished hereunder, and may require the Contractor to obtain similar waivers or releases from all subcontractors and materialmen. Article 5 - Requirements of Contractor A. The Contractor shall furnish, at its own expense, all building and other permits, licenses, tools, equipment and temporary structures necessary for the construction of the project. The Contractor shall give all required notices and shall comply with all applicable codes, laws, ordinances, rules and regulations, and protective covenants, and with the current regulations of the National Board of Fire Underwriters, wherever applicable. The Contractor further shall comply with the provisions of the “Manual of Accident Prevention in Construction" of the Associated General Contractors of America. The Contractor shall immediately notify HUD of the delivery of all permits, licenses, certificates of inspection, certificates of occupancy, and any other such certificates and instruments required by law, regardless of to whom issued, and shall cause them to be displayed to HUD upon request. B. If the Contractor observes that the Drawings and Specifications are at variance with any applicable codes, laws,<-ordinances, rules or regulations, or protective covenants, it shall promptly notify the Architect in writing, and any necessary changes shall be made as provided in this Contract for changes in the Drawings and Specifications. the Contractor performs any work knowing it to be contrary to such codes, laws, ordinances, rules or regulations, or propective covenants, without giving such notice to the Architect, it shall bear all costs arising there from. с Upon completion of construction, the Contractor shall furnish to the Owner a survey showing the location on the site of all improvements constructed thereon, and showing the location of all water, sewer, gas and electric lines and mains, and of all existing utility casements. Such survey shall be prepared by a licensed surveyor who shall certify that the work is installed and erected entirely upon the land covered by the mortgage and within any building restriction lines on said land, and does not overhang or otherwise encroach upon any casement or right-of-way of others. In addition, if the Owner shall so require, the Contractor shall furnish a survey with each application for payment for any improvements, including structures and utilities, not theretofor located on a survey. * D. The Contractor shall assume full responsibility for the maintenance of all landscaping which may be required by the Drawings and Specifications until such time as both parties to this Contract shall receive written notice from HUD that such landscaping has been finally completed. The Owner hereby agrees to make available to the Contractor, for such purpose, without cost to the latter, such facilities as water, hose and sprinkler. Article 6-Assurance of Completion The Contractor shall furnish to the Owner assurance of completion of the work in the form of Such assurance of completion shall run to the Owner and HUD as obligees. Article 7 - Waiver of Lien or Claira The Contractor shall file no mechanic's of materialman's lien or maintain any claim against the Owner's real estate ofijmprovements for or on account of any work done, labor performed or materials furnished under this Congre Article 8- Right of Entry and Interpretation A HUD, its agents or assigns, at all times during construction, have the right of entry and free access to the project and the right to inspect all work done and materials, equipment and fixtures furnished, installed or stored in and about the project. For such purpose, the Contractor shall furnish such enclosed working space as HUD may require and find acceptable as to location, size, accommodations and furnishings. B. HUD shall also have the right to interpret the Contract Documents and to determine compliance therewith. A This Contract shall not be assignable by either party without prior written consent of the party that the Owner may assign the Contract, or any rightts hereunder, to HUD. and HUD, except B. The Contractor shall not subcontract all of the work to be performed hereunder without the prior written consent of the Owner and HUD. C. Upon request by the Owner, or HUD, the Contractor shall disclose the names of all persons with whom it has contracted or will contract with respect to work to be done and materials and equipment to be furnished hereunder. D. The Contractor understands that the work under this contract is to be financed by a building loan to be secured by a mortgage and subject to the terms of a Building Loan Agreement between the Owner and HUD. The Contractor further understands that said Building Loan Agreement provides that in the event of the failure of the Owner to perform its obligations to HUD thereunder, HUD may, as attorney-in-fact for the Owner, andertake the completion of the project in accordance with this Contract. In the event HUD elects not to undertake such completion, the Contractor's obligations under this Contract shall terminate. Article 10 - Certification of Actual Cost A. ·The "actual cost of construction", as used in Article 3 above, shall include all items of cost and expense incurred by the Contracter in the performance of this Contract, including costs and expenses of labor, materials for construction, equipment and fixtures, field engineering, sales taxes, workmen's compensation insurance, social security, public liability insurance, job overhead expenses, and all other expenses directly connected with construction, and including general overhead expenses, but excluding kickbacks, rebates or discounts received in connection with the construction of the project; and excluding any return on or cost of the Contractor's working capital, such return on or cost of working capital being a part of or to be paid from the Contractor's fee or profit. B. The Contractor shall keep accurate records of account of the said actual cost of construction, and shall, upoa demand, make such records and invoices, receipts, subcontracts and other information pertaining to the construction of the project available for inspection by the Owner and HUD. с With its final application for payment, the Contractor shall furnish to the Owner a completed "Contractor's Certificate of Actual Cost", which shall be accompanied and supported by an independent public accountant's certificate as to actual cost (in form acceptable to HUD). qpment lessor or supplier to certify its costs incurred in connection with the project, in the event HUD determines there mory of interest between the Owner or the Contractor and any such subcontractor, equipment lessor or supplier. IN WITNESS WHEREOF, the parties to these presents have executed this contract in six (6) counterparts, each of l be deemed an original, in the year and day first above mentioned NOTE: (Witness) (Title) By J. E DUNN CONSTRUCTION COMPANY President (Title) (Witness) 929 Holmes, Kansas City, MO 64106 (Address) Secretary of the Owner should attest. If Contractor is a corporation, Secretary should attest. |