TranSystems Corporation - LGM Construction

(b) The Contractor’s Fee, as adjusted by Change Orders executed in accordance with
the terms of this Agreement and by the procedures set forth in Article 26 following FedEx’s
execution and delivery of Construction Change Directives, is inclusive of all remuneration that
FedEx must pay Contractor in connection with the Work and the performance of the obligations
Contractor undertakes under the terms of this Agreement, including, without limitation,
Contractor’s obligation to pay Transaction Taxes and Contractor Taxes in accordance with the
terms of Article 14 below, and will not be increased by reason of losses, costs and expenses that
are incurred by reason of the bad faith or willful misconduct of Contractor, including, without
limitation, losses, costs and expenses to the extent attributable to:
(i) Contractor's continued performance of the Work without prior
notice to FedEx after Contractor discovers or becomes aware of
any errors, inconsistencies or omissions in the Contract Documents
or in the earlier performance of the Work or of any violations of
Legal Requirements;
(ii) Contractor’s performance of the Work without prior notice to
FedEx after Contractor discovers or becomes aware of any
unanticipated condition, or the occurrence of any event, that is
likely to adversely affect performance of the Work; and
(iii) Contractor's intentional or grossly negligent failure to adhere to
particular methods or operating procedures or sequences or
techniques specified in the Contract Documents or applicable
Legal Requirements, unless FedEx expressly directs it to do so in
writing.
Section 4.02. Allowances.
The Contractor’s Fee includes all allowances (individually, an
“Allowance” and collectively, the “Allowances”) set forth in the Contract Documents. An
Allowance will cover the cost of the Materials delivered and unloaded at the Site and all
applicable Transaction Taxes. The costs Contractor incurs in connection with the handling of an
Allowance item at the Site, including, without limitation, labor costs, installation costs, overhead
and profit, are included in the Contractor’s Fee and not in the Allowance for that item. If the
actual cost of performing that portion of the Work included within an Allowance is more or less
than the Allowance amount, the parties will execute a Change Order to adjust the Contractor’s
Fee to reflect the shortage or surplus in the Allowance. Contractor must cause that portion of the
Work included within an Allowance to be performed for such amounts and by such persons as
FedEx may direct; FedEx, however, may not require Contractor to use any person to whom
Contractor has a reasonable objection.
Section 4.03. Retainage. (a) In making any payment to Contractor (other than Final
Payment), FedEx will retain ten percent (10%) of the amount FedEx approves for payment
("Retainage"). The Retainage will become due and payable to Contractor only when Final
Payment becomes due and payable as provided in this Agreement. If permitted by applicable law,
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