ADDENDUM: OWNER’S AMENDMENTS TO OWNER-CONTRACTOR AGREEMENT,
AIA DOCUMENT A105—2007
This Addendum is hereby made a part of and incorporated into that agreement between the State of North Dakota, acting through ____________________________________ (Owner) and _____________________________________ of ______________ (Contractor) to amend the AIA Document A105—2007 entitled “Standard Form of Agreement between Owner and Contractor for a Residential or Small Commercial Project” relative to the “____________________________ Project.” The parties agree to the following terms and conditions and expressly agree that if any of the following terms and conditions are in conflict with any of the terms and conditions of the Contract, then notwithstanding any term in the Contract, the following terms and conditions govern and control the rights and obligations of the parties. Any amendments to the Contract or to this Addendum, or any other amendments, must be in writing and executed by both parties.
AIA B101—2007
Section
Reference The following sections and paragraphs are amended as follows:
Page 1 The name of the Owner is:
State Board of Higher Education, acting through ______________________________
1.1.5 This document, “Addendum: Owner’s Amendments to Owner-Architect Agreement, AIA Document A105-2007.”
4.1 Add to this paragraph:
Reduction or limitation of retainage, if any, shall be as follows: Retainage and payments to Contractor shall be pursuant to NDCC section 48-01.2-13.
4.2 Change this paragraph to state:
Payments due and unpaid under the Contract Documents shall bear interest according to NDCC section 48-01.2-14.
5.1 Add to this section to include the following:
Contractor shall secure and keep in force during the term of the Agreement and for two years thereafter, from insurance companies authorized to do business in North Dakota:
1. Commercial General Liability Insurance:
For projects for which total estimated costs exceeds $100,000:
Commercial general liability, with minimum limits of liability of $1,000,000 per occurrence, $2,000,000 general aggregate limit and $1,000,000 aggregate products and completed operations.
For projects for which total estimate cost is $100,000 or less:
Commercial general liability, with minimum limits of $250,000 per occurrence, $1,000,000 general aggregate limit and $1,000,000 aggregate products and completed operations.
The aggregate limit shall apply separately to occurrences at the location project to which the contract relates. The policy shall include a “stop-gap” Employers Liability endorsement to cover the employer’s liability for injury to employees which fall outside the State’s Workers’ Compensation Laws.
2. Business and Automobile Liability Insurance, covering owned, non-owned and hired vehicles, with combined single limit for bodily injury and property damage of not less than $1,000,000.
3. Indemnification:
Contractor agrees to indemnify, save and hold harmless the Owner and State of North Dakota and its agencies, officers and employees, from any and all claims of any nature, including all costs, expenses and attorneys’ fees, which may in any manner arise out of or result from Contractor’s performance of the Work under this Agreement, except for claims arising out of the sole negligence of Owner or Sate. Contractor’s obligation to indemnify, save and hold harmless the Owner and State shall not be limited to the amount of insurance actually secured under this Agreement, including any insurance above the minimum required, but shall extend to the full amount on any claims, loss or damage incurred or awarded, including costs, expenses and attorneys’ fees.
4. Additional provisions relative to the above listed insurances:
· The Owner and State of North Dakota and its agencies, officers and employees shall be endorsed on the commercial general liability policy and automobile liability policy, including any excess policies (to the extent applicable), as Additional Insureds. The Owner and State shall have all the benefits, rights and coverages of an Additional Insured under these policies.
· Contractors shall furnish certificates of insurance and copies of the additional Insured endorsements prior to commencement of the contract.
· Endorsement containing a “Waiver of Subrogation” waiving any right of recovery the insurance companies may have against the State.
· Endorsement in which Owner is a “designated entity” giving Owner same notification rights as Contractor under the policy regarding cancellation or nonrenewal of policy or endorsements.
· Contractor’s insurance coverage shall be primary as respects any insurance, self-insurance of self-retention maintained by the Owner. Any insurance, self-insurance or self-retention maintained by the Owner shall be in excess of the Contractor’s insurance and shall not contribute with it.
· The insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and be placed with insurers rated “A” or better by A.M. Best Company, Inc.
· The Owner and State shall be defended, indemnified, and held harmless to the full extent of any coverage actually secured by the Contractor in excess of the minimum requirements set forth above. The duty to indemnify the Owner and State under this agreement shall not be limited by this insurance required in this agreement.
· Any attorney who represents the Owner under the policy must first qualify and be appointed by the North Dakota Attorney General as required under NDCC section 54-12-08.
· Cross liability/severability of interest for all policies and endorsements.
· The legal defense provided to Owner and State under the policy and any endorsements must be free of any conflicts of interest, even if retention of separate legal counsel for the Owner and State is necessary.
· Insolvency or bankruptcy of insured Contractor shall not release the Insurer from payment under the policy, even when such insolvency or bankruptcy prevents the Insured Contractor from meeting the retention limit under the policy.
5. All Risk Builder’s Risk, insuring the interest of the State, contractor(s) and subcontractors of all tiers including coverage on an All Risk basis, including but not limited to, coverage against fire, lightning, wind damage, hail, explosion, riot or civil commotions, aircraft and other vehicles, collapse, flood, earth movement, and coverage available under the so-called Installation Floater. The policy(ies) for such coverage shall be secured and maintained by contractor in an amount equal to the Full Completed Value of the project. Any deductible amount under the policy(ies) shall be the sole responsibility of the Contractor.
6. Workers compensation coverage meeting all statutory requirements.
Additionally, Contractor shall provide certificate of insurance and all endorsements to Owner prior to commencement of this agreement. Failure to provide insurances as required in this agreement is a material breach of contract, entitling Owner to terminate this agreement immediately.
5.4 DELETE in its entirety.
8.4.1 Add a new paragraph:
Pursuant to NDCC section 43-07-20, the Contractor must give preference to the employment of bona fide North Dakota residents, as determined by NDCC section 54- 01-26, with preference given first to honorably discharged disabled veterans and veterans of the armed forces of the United States, as defined in NDCC section 37-19.1- 01, who are deemed to be qualified in the performance of that work. The preference shall not apply to engineering, superintendence, management, or office or clerical work.
8.4.2 Add a new paragraph:
The Owner has an obligation to make information available to the campus on where to get information about Registered Sex Offenders who are working on State Institution property. Contractor is therefore obligated to inform the Campus Police or Security Office or other designated campus office of any employee who is a Registered Sex Offender prior to that employee being on State Institution property. This obligation includes property owned or controlled by the institution, regardless of its location.
Article 13 Add as a new paragraph:
For all projects for which the total estimated costs exceeds $100,000, Contractor shall submit to Owner a copy of the written safety program to be used as guidelines and direction of the Contractor’s and subcontractors’ worksite activities. This program must meet all federal, state and local laws and other legal requirements and include the following minimum provisions: (1) a worksite safety policy and mission statement; (2) assigned responsibilities among management, supervisors and employees; (3) a system for periodic self-inspections, including inspection of job site, materials, work performance and equipment; (4) a thorough accident and injury reporting and investigation process; (5) a safety orientation program including first aid, medical attention, emergency facilities, fire protection and prevention, housekeeping, illumination, sanitation, personal protective equipment and occupational noise exposure; and (6) a safety training program including safety “tool box” meetings and other systems for ongoing training, including training for employees on the recognition, avoidance and prevention of unsafe conditions.
It shall be a condition of the Contract, and shall be made a condition of each subcontract entered in pursuant to the Contract, that the Owner assumes no liability relating to its receipt and review of the Contractor’s safety plan. Safety remains the responsibility of the Contractor. Additionally, the right of the Owner to receive and review the safety plan shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity.
15.3 Change this one-sentence paragraph to read:
The Contract is governed by the laws of the state of North Dakota.
16.3 Change the second sentence of this two-sentence paragraph to read:
The Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination.
[signature page follows]
This Addendum is entered into and agreed to by:
OWNER: CONTRACTOR:
BY:________________________________________ BY:___________________________________
ITS:_______________________________________ ITS:___________________________________
DATE:_____________________________________ DATE:_________________________________
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