PNK » Topics » Procedures For Substantial Completion . In addition to the other provisions of this Article 9 , procedures to be utilized to determine Substantial Completion of the Work in its entirety, or a designated portion thereof, shall be as follows:

This excerpt taken from the PNK 8-K filed May 17, 2007.

Procedures For Substantial Completion. In addition to the other provisions of this Article 9, procedures to be utilized to determine Substantial Completion of the Work in its entirety, or a designated portion thereof, shall be as follows:

 

  9.8.6.1 Either party may initiate procedures for Substantial Completion of the Work in its entirety or a designated portion thereof, but Owner shall not be required to make a determination and accept partial Substantial Completion unless: (a) specific areas or phases of the Work are designated for partial Substantial Completion by Owner; or (b) Owner assumes physical possession of a portion of the Work solely for purposes of Owner’s full use and occupancy. The use or occupancy of a portion of the Work by Owner or its other contractors to inspect and/or correct defective workmanship pursuant to the Contract Documents shall not be considered as use and occupancy.

 

  9.8.6.2 Unless waived by Owner in writing, Substantial Completion of either the Work in its entirety or a designated portion thereof shall not occur earlier than the date of all designated or required governmental certificates of occupancy and other permits, inspections and certifications for the Project or such portion thereof as the case may be, have been achieved and issued to Owner by the relevant governmental authority, and posted for the Project or such portion thereof, by the relevant governmental authority (provided that a temporary certificate of occupancy (“TCO”) rather than a permanent certificate of occupancy may have been achieved and issued to Owner, and posted, so long as the obtaining of a TCO, rather than a permanent, certificate of occupancy does not prevent any aspect of the Project from being open to the general public). Provided, however, if Contractor has fully complied with and performed all of its obligations under the Contract Documents and is not in default, but is unable to obtain a TCO through no fault, act or omission of Contractor or any party for whom Contractor is responsible, including, but not limited to, any Subcontractor or Vendor, such failure to obtain a TCO shall not alone be a bar to Substantial Completion.

 

  9.8.6.3 If Owner or Owner’s Lenders disagree that Substantial Completion has been achieved, Owner shall provide the Contractor with a list of the items which should be completed or corrected for purposes of Substantial Completion. Owner’s failure to advise Contractor of any items specified in the Contract Documents shall not alter the Contractor’s responsibility to complete all Work necessary for Substantial Completion in accordance with the Contract Documents.

 

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  9.8.6.4 Upon receipt of Owner’s list, Contractor shall complete and/or correct all listed items. Contractor shall then submit its request to Owner for another inspection to determine Substantial Completion. Such subsequent inspection or re-inspections to determine if the Work is acceptable for purposes of Substantial Completion shall be made jointly by Owner and Contractor.

 

  9.8.6.5 Prior to the issuance of a Certificate of Substantial Completion by Owner, the parties shall develop a final punch list which must be completed prior to Final Completion. The final punch list shall include the Contractor’s punch list items and other incomplete or missing items which Owner elected in its discretion to waive for purposes of Substantial Completion.

 

  9.8.6.6 Immediately prior to the issuance of a Certificate of Substantial Completion, Owner and Contractor shall jointly inspect and document the condition of the Work, or designated portion thereof, at the time of Owner’s initial possession to determine and record its condition. Such inspection and acceptance by Owner shall not, however, alter the Contractor’s responsibility to complete all Work necessary for Final Completion in accordance with the Contract Documents, including items discovered by Owner after Substantial Completion.

 

  9.8.6.7 When Owner determines that the Work in its entirety, or a designated portion thereof, is substantially complete in accordance with the Contract Documents, Owner shall prepare and issue a “Certificate of Substantial Completion,” which shall certify the date of Substantial Completion.

 

9.9.1 Section 9.9.1 of the General Conditions is amended by adding the following after the end of that paragraph:

“Contractor’s consent to early or partial occupancy by Owner is not required. If Contractor has any objection or concern relating to Owner’s earlier partial occupancy of any part of the Work, Contractor shall promptly inform Owner of such objection or concern in writing as a Claim or request for a Change Order.”

 

9.9.3 The following is added in lieu of Section 9.9.3 of the General Conditions:

“In the event of partial occupancy before Substantial Completion as provided above, Contractor shall cooperate with the Owner in making available for Owner’s use and benefit building services such as heating, ventilation, security, cooling, water, lighting, telephone, and security for the portion or portions to be occupied, and if the Work required to furnish these services is not entirely completed at the time Owner desires to occupy the aforesaid portion or portions, Contractor shall make every reasonable effort to complete such Work or make temporary provisions for such Work as soon as possible so that the aforementioned building services may be put into operation and use.”

 

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9.9.4 The following is added as Section 9.9.4 of the General Conditions:

“In the event of partial occupancy prior to Substantial Completion, mutually acceptable arrangements shall be made between Owner and Contractor in respect of the operation and cost of necessary security and maintenance. Further, mutually acceptable arrangements shall be made between Owner and Contractor in respect of insurance and damage to the Work. Contractor’s acceptance of arrangements proposed by Owner in respect of these matters shall not be unreasonably withheld, delayed, or conditioned.”

 

9.9.5 The following is added as Section 9.9.5 of the General Conditions:

“It shall be understood, however, that partial occupancy shall not: (1) constitute final acceptance of any Work, or (2) relieve the Contractor of responsibility for loss or damage because of or arising out of defects in, or malfunctioning of, any Work, material, or equipment, or from any other unfulfilled obligations or responsibilities under the Contract Documents; provided that Contractor shall not be liable for ordinary wear and tear resulting from such partial occupancy.”

 

9.9.6 The following is added as Section 9.9.6 of the General Conditions:
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